Date: 11-26-2013

Case Style: Carmen L. Lopez v. Board of Education of the City of Bridgeport, et al.

Case Number: SC 19172

Judge: Norcott

Court: Supreme Court of Connecticut

Plaintiff's Attorney: Norman A. Pattis, with whom were Bruce L. Levin
and Kevin Smith and, on the brief, Barbara M. Schellenberg,
for the appellees (plaintiffs).

Defendant's Attorney: Steven D. Ecker, with whom were James J. Healy
and, on the brief, M. Caitlin S. Anderson, for the appellant
(defendant Paul Vallas).

Gregory T. D’Auria, solicitor general, George Jepsen,
attorney general, and Henry A. Salton and Jane R.
Rosenberg, assistant attorneys general, filed a brief for
the State Board of Education et al. as amici curiae.

Description: An action seeking a writ of quo warranto
provides a ‘‘limited and extraordinary remedy’’
that is the ‘‘exclusive’’ avenue under both the common
law and General Statutes § 52-4911 for judicial review of,
inter alia, a person’s qualifications to hold a particular
public office. (Internal quotation marks omitted.) Bateson
v. Weddle, 306 Conn. 1, 10–11, 48 A.3d 652 (2012).
In this public interest appeal, we consider whether,
when an administrative agency has issued a license,
certification, or waiver that is required by statute to
hold a public office, a court may issue a writ of quo
warranto because it has deemed a person to be unqualified
for that office on the ground that the agency
improperly granted the requisite license, certification,
or waiver. The defendant Paul Vallas2 appeals, upon
certification by Chief Justice Rogers pursuant to General
Statutes § 52-265a,3 from the judgment of the trial
court granting the writ of quo warranto sought by the
plaintiffs, Carmen Lopez and Deborah Reyes-Williams,4
and ordering the removal of the defendant from his
office as acting superintendent of the public schools of
the city of Bridgeport. On appeal, the defendant claims,
inter alia, that the trial court improperly concluded that
he was not qualified to serve as a superintendent on
the ground that he had failed to complete the ‘‘school
leadership program’’ required by subsection (b) of General
Statutes § 10-157,5 notwithstanding the conclusions
to the contrary during the administrative vetting process
by Stefan Pryor, the Commissioner of Education
(commissioner), and the State Board of Education
(state board). We conclude that a quo warranto action
may not be utilized to avoid the administrative process
by mounting a collateral attack on an administrative
agency’s decision to issue a license, certification, or
waiver that renders a public officer qualified to hold his
or her position. Accordingly, we reverse the judgment of
the trial court.
The record reveals the following undisputed facts,
as set forth in the record and the trial court’s memorandum
of decision, and procedural history. In December,
2011, the Board of Education of the City of Bridgeport
(city board) selected the defendant to serve as its acting
superintendent of schools. The defendant has an extensive
professional background in public education and
state and local government, including: service as a
school teacher in the 1970s; service in numerous high
level state and municipal positions in Illinois; service
as the chief executive officer of the public school systems
in the cities of Chicago and Philadelphia; and
service as the superintendent of the public school system
in the city of New Orleans after Hurricane Katrina.
The defendant has not, however, taken any graduate
courses in education and is not certified as a school
superintendent in Connecticut.
Because the defendant is not certified to serve as a
school superintendent in Connecticut, Robert Trefry,
the chairperson of the city board at the time, requested
that the commissioner approve the defendant’s appointment
as acting superintendent for a ninety day period
from January 1, 2012 through March 30, 2012. Trefry
simultaneously requested an extension of that ninety
day period from April 1, 2012 through December 31,
2012. The commissioner approved these requests, pursuant
to General Statutes (Rev. to 2011) § 10-157 (b),6
by two separate letters issued on December 23, 2011.
The defendant’s tenure as acting superintendent commenced
on January 1, 2012.
During the defendant’s tenure as acting superintendent,
the legislature enacted Public Acts 2012, No. 12-
116, § 58, which, effective July 1, 2012, amended the
certification waiver process previously provided by
General Statutes (Rev. to 2011) § 10-157 (b) and (c). As
amended, § 10-157 (b) permits the appointment of an
acting superintendent ‘‘who is or is not properly certified
for a probationary period, not to exceed one school
year, with the approval of the Commissioner of Education.
During such probationary period such acting
superintendent shall assume all duties of the superintendent
for the time specified and shall successfully
complete a school leadership program, approved by the
State Board of Education, offered at a public or private
institution of higher education in the state. . . .’’ As
amended, § 10-157 (c) permits the commissioner, upon
a local school board’s request, to grant a waiver of
certification to a person ‘‘who has successfully completed
a probationary period as an acting superintendent
pursuant to subsection (b) of this section, and
who the commissioner deems to be exceptionally qualified
for the position of superintendent.’’ For the complete
text of the current revision of § 10-157, see
footnote 5 of this opinion.
On January 23, 2013, the commissioner sent a letter
to Jacqueline Kelleher, who was elected chairperson of
the city board following our decision in Pereira v. State
Board of Education, 304 Conn. 1, 37 A.3d 625 (2012),7
approving the defendant’s appointment as acting superintendent
for a probationary period of January 1, 2013
through December 31, 2013. Shortly thereafter, the
defendant contacted Robert Villanova, the director of
the Executive Leadership Program at the University of
Connecticut’s Neag School of Education (UConn), to
inquire about the ‘‘school leadership programs’’ mandated
by § 10-157 (b). Villanova proposed a three credit
independent study course in district leadership (independent
study course) for the defendant, which they
subsequently designed together. Thereafter, the commissioner
reported to the state board that UConn had
developed the independent study course as ‘‘an individualized,
noncertification leadership program’’ specifically
for the defendant. At its April 15, 2013 meeting,
the state board approved the independent study course
pursuant to § 10-157 (b). The commissioner subsequently
notified Thomas DeFranco, dean of education
at UConn, of the state board’s decision.
The defendant completed the independent study
course by submitting six papers over the course of ten
weeks from April 10, 2013 through May 30, 2013, along
with attending a pair of meetings that were approximately
two hours in duration and having several telephone
conversations with Villanova. Villanova awarded
the defendant a grade of ‘‘A’’ for the course. Subsequently,
on June 14, 2013, Kenneth Moales, the current
chairperson of the city board, requested that the commissioner
waive certification for the defendant pursuant
to § 10-157 (b) and (c), on the basis of the
defendant’s completion of a school leadership program
approved by the state board, successful completion of
a probationary period, and a requested finding that he
is ‘‘exceptionally qualified’’ to serve as a permanent
superintendent. The commissioner made the requisite
findings and granted that waiver by letter dated June
17, 2013.
In the interim, on May 8, 2013, the plaintiffs filed
their amended complaint; see footnote 2 of this opinion;
seeking a writ of quo warranto that would remove the
defendant from his office as acting superintendent. With
respect to relevant pretrial motions practice, the trial
court first denied the defendant’s motion to dismiss the
quo warranto action for lack of subject matter jurisdiction
on the ground that the plaintiffs had not exhausted
their administrative remedies, including seeking a
declaratory ruling under General Statutes § 4-176, concluding
that ‘‘no administrative procedure exists to
redress the specific injury [the plaintiffs] claim—the
unlawful holding of a public office.’’8 The trial court
subsequently denied the defendant’s motion in limine
seeking to preclude, on relevance and political question
grounds, the admission of ‘‘any and all evidence relating
to the merits or sufficiency of any ‘school district leadership
program’ ’’ identified in the complaint or § 10-157.
After a two day court trial, the trial court issued a
twenty-seven page memorandum of decision rendering
judgment in favor of the plaintiffs. The trial court concluded
that the defendant ‘‘did not complete a school
leadership program’’ and, therefore, was ‘‘not entitled
to a waiver of certification pursuant to § 10-157 (c).’’
Consequently, the trial court concluded that ‘‘[t]he
waiver [of] certification that [the defendant] receive[d]
on June 17, 2013, was invalid.’’ Specifically, the trial
court determined that the independent study course
completed by the defendant was not a ‘‘school leadership
program’’ as contemplated by § 10-157 (b), notwithstanding
its approval by the state board.9 In so
concluding, the trial court rejected the defendant’s argument
that determining whether such a ‘‘school leadership
program’’ passes muster is a task committed to
the state board, noting that, unlike other statutes, § 10-
157 (b) ‘‘does not explicitly give or commit to the sole
discretion of the state board . . . the authority to
define terms within the statute.’’10 (Emphasis omitted.)
Accordingly, the trial court rendered judgment for the
plaintiffs, and granted a writ of quo warranto ordering
the removal of the defendant from his office as acting
school superintendent. This expedited public interest
appeal followed.11 See footnote 3 of this opinion.
On appeal, the defendant claims, inter alia,12 that
‘‘[t]his lawsuit never should have made it out of the
starting gate’’ because ‘‘the writ of quo warranto cannot
properly be used to collaterally attack a state administrative
agency’s licensing determination.’’13 Noting that
this argument is a subset of his jurisdictional claim
that the plaintiffs failed to exhaust their administrative
remedies before the state board, the defendant posits
that the writ of quo warranto ‘‘is a limited and extraordinary
remedy’’ that ‘‘has never been used or recognized
as the plaintiffs wish to use it here, i.e., as a means to
challenge a state agency’s licensing/waiver determination
that serves as a prerequisite to eligibility for any
particular public office.’’ (Emphasis in original; internal
quotation marks omitted.) Citing, for example, State ex
rel. Williams v. Kennelly, 75 Conn. 704, 55 A. 555 (1903),
State ex rel. McIntyre v. McEachern, 231 Ala. 609, 166
So. 36 (1936), and People ex rel. Beardsley v. Harl, 109
Colo. 223, 124 P.2d 233 (1942), the defendant contends
that the plaintiffs cannot pursue a legal theory that he
is not qualified for the superintendent’s position ‘‘in a
quo warranto action, because the writ of quo warranto
cannot be used to challenge an officeholder’s professional
qualifications issued by the appropriate state
administrative authority.’’ The defendant further posits
that permitting the use of quo warranto for the collateral
attack of agencies’ licensing decisions ‘‘would wreak
havoc if adopted under Connecticut law,’’ observing
that this would open the floodgates to ‘‘any taxpayer
acting on any motivation’’ to test the underlying professional
qualifications of dozens of public officers.
(Emphasis in original.)
In response, the plaintiffs argue first that we should
decline to consider the defendant’s collateral attack
claim because he failed to preserve it before the trial
court. Turning to the merits, the plaintiffs posit that they
had no administrative remedies available to exhaust, as
‘‘unless otherwise provided by statute, a quo warranto
action is the exclusive method of trying the title to an
office . . . .’’ (Internal quotation marks omitted.) Bateson
v. Weddle, supra, 306 Conn. 11. The plaintiffs argue
that quo warranto is appropriately used here, ‘‘because
it challenges an individual’s right to hold office, not his
performance.’’ Noting that § 52-491, which provides for
the use of quo warranto actions to challenge the usurpation
of ‘‘the exercise of any office, franchise or jurisdiction,’’
does not restrict the reach of such actions at
common law, the plaintiffs further rely specifically on
Deguzis v. Jandreau, 27 Conn. App. 421, 606 A.2d 52
(1992), wherein the Appellate Court reviewed a trial
court’s validation of the grading of a specific fire officer
civil service examination, as demonstrating the ‘‘wide
reach of quo warranto.’’ The plaintiffs then emphasize
that ‘‘[t]here is no requirement in the law of quo warranto
that the appointing board be found to have violated
the law,’’ observing that the action and the writ are
directed at the office holder, rather than the appointing
authority. Finally, the plaintiffs argue that the body of
case law relied upon by the defendant, specifically State
ex rel. McIntyre v. McEachern, supra, 231 Ala. 609, and
People ex rel. Beardsley v. Harl, supra, 109 Colo. 223,
has: (1) been rejected by other courts, citing Ex parte
Sierra Club, 674 So. 2d 54 (Ala. 1995), People ex rel.
Henderson v. Redfern, 48 Ill. App. 2d 100, 197 N.E.2d
841 (1964), and State ex rel. Oregon Consumer League
v. Zielinski, 60 Or. App. 654, 654 P.2d 1161 (1982),
review denied, 294 Or. 682, 662 P.2d 725 (1983); and
(2) is distinguishable because the ‘‘plaintiffs did not
challenge [the] defendant’s professional qualifications.
Instead, [the] plaintiffs claimed that [the defendant]
failed to complete a statutorily required school leadership
program.’’ We disagree with the plaintiffs, and conclude
that a quo warranto action may not be used to
challenge the underlying administrative determinations
made by the state board and the commissioner qualifying
the defendant to serve as a school superintendent.
We begin with the applicable standard of review. The
defendant’s claim that a quo warranto action may not
be used to mount a collateral attack on a decision of
an administrative agency regarding licensing or certification
implicates the jurisdictional issue, considered by
the trial court and discussed at oral argument before
this court, of whether the plaintiffs had exhausted all
available administrative remedies before bringing the
present action seeking a writ of quo warranto.14 See,
e.g., Republican Party of Connecticut v. Merrill, 307
Conn. 470, 478, 55 A.3d 251 (2012) (exhaustion of administrative
remedies implicates subject matter jurisdiction).
Accordingly, we need not consider the plaintiffs’
preservation arguments relative to this issue, as issues
of subject matter jurisdiction may be raised at any time,
including by the court sua sponte, regardless of the
manner in which the issue is treated by the parties. See,
e.g., Waterbury v. Washington, 260 Conn. 506, 527–29,
800 A.2d 1102 (2002). Further, and as the parties agree
given the undisputed facts relevant to this issue, our
review is plenary. See, e.g., Bateson v. Weddle, supra,
306 Conn. 7.
‘‘Historically, the writ of quo warranto originated as
a device to require [Norman kings’] barons to justify
their claims to power or to abandon them. . . . Today,
unless otherwise provided by statute, a quo warranto
action is the exclusive method of trying the title to an
office . . . . It lie[s] to prevent the usurpation of a
public office or franchise . . . by placing the burden on
the defendant to prove lawful entitlement to a particular
office . . . and oust[ing] individuals illegally occupying
public offices . . . . The purpose of the proceeding,
therefore, is to test the actual right to the office
and not merely a use under color of right. . . . In other
words, in a quo warranto proceeding, a plaintiff15 may
contest an individual’s right to hold an office; however,
a challenge to the manner in which a lawful incumbent
is exercising the powers, privileges and duties pertaining
to an office exceeds the scope of such an action.
Thus, the writ of quo warranto developed and has continued
as a limited and extraordinary remedy . . . to
test who the lawful public official is.’’ (Citations omitted;
emphasis omitted; footnote added; internal quotation
marks omitted.) Id., 10–11.
‘‘A successful quo warranto action unseats an illegal
office holder and declares the position vacant. It does
not place the rightful claimant into the office.’’ New
Haven Firebird Society v. Board of Fire Commissioners,
219 Conn. 432, 436, 593 A.2d 1383 (1991). ‘‘The
parties defendant or respondent in quo warranto proceedings
are those charged with exercising the particular
office or franchise without lawful right. Stated
otherwise, a writ of quo warranto must be directed
toward the objectionable person holding an office and
exercising its functions in his or her individual capacity.’’
(Internal quotation marks omitted.) Demarest v.
Fire Dept., 76 Conn. App. 24, 29, 817 A.2d 1285 (2003).
‘‘It is well established that in quo warranto proceedings
the burden is upon the defendant to show a complete
title to the office in dispute.’’ (Internal quotation marks
omitted.) Cheshire v. McKenney, 182 Conn. 253, 257,
438 A.2d 88 (1980).
Whether a court evaluating the qualifications of a
public officer in a quo warranto action may examine
the merits of an administrative licensing or certification
decision that has rendered that person qualified to hold
the office is a question of first impression in Connecticut.
Numerous sister state decisions, however, demonstrate
the existence of a century old common-law rule
that, absent allegations of fraud, a quo warranto action
may not be used to mount a collateral attack on a
governmental agency’s licensing or certification decision
that has qualified a public officer to hold his or her
position. For example, in State ex rel. Pape v. Hockett, 61
Wyo. 145, 154–55, 156 P.2d 299 (1945), a challenge was
based on a claim that the winner of a county school
superintendent election ‘‘did not possess the requisite
qualifications to be nominated or elected to the office.’’
The relators contended, inter alia, that the superintendent’s
administrative certificate16 had been improperly
issued fourteen years earlier, on the ground that she
lacked the required teaching experience. See id., 162.
The Wyoming Supreme Court rejected this claim, calling
it ‘‘clearly a collateral attack on the certificate which
may not be made in this action,’’ and cited Corpus Juris
for the proposition that a ‘‘teacher’s certificate is prima
facie evidence of the teacher’s qualifications, and of
the fact that the board or committee issuing such certificates
have properly performed their duty as to the manner
and requisites of their issuing it, and in the absence
of fraud cannot be collaterally impeached . . . .’’
(Internal quotation marks omitted.) Id., 162–63; see 78
C.J.S. Schools and School Districts § 307 (2013).
Similarly, in Wendt v. Waller, 46 N.D. 268, 270, 176
N.W. 930 (1920), the North Dakota Supreme Court
rejected a challenge to the qualifications of a county
school superintendent, which claimed that ‘‘the facts
with reference to the [defendant superintendent’s] qualifications
to receive the [required teaching] certificates
show that they could not have been legally issued.’’ The
court concluded that the ‘‘legislature . . . imposed this
duty upon the state superintendent of public instruction,
and, when that officer has determined the existence
of the necessary qualifications to entitle one to
a certificate, such determination cannot be reviewed
by a judicial tribunal except for fraud.’’ (Emphasis
added.) Id. Given the existence of an administrative
remedy, which had not been utilized, and the lack of a
fraud claim, the court concluded that ‘‘the attempt to
go back to the certificate of qualification given by the
proper authority in this proceeding involves a collateral
attack on the certificate, such as we have recently held
. . . is not permissible.’’ (Citation omitted.) Id., citing
McDonald v. Nielson, 43 N.D. 346, 354, 175 N.W. 361
(1919) (The state superintendent of public instruction
‘‘determined that the defendant was so qualified, and
he issued to [the defendant] a certificate in kind and
form as prescribed by law as formal evidence of his
determination, and he entered upon the proper record
in his office an entry of such determination. It seems
self-evident that the certificate or commission so issued
ought not to be subject to collateral impeachment.’’);
accord Kimball v. School District No. 122 of Spokane
County, 23 Wash. 520, 526–27, 63 P. 213 (1900) (The
court concluded in a breach of contract action that the
plaintiff teacher had maintained the required certification
for her position, despite the fact that her certification
was legally questionable, because ‘‘[w]e do not
think that this temporary certificate was subject to a
collateral attack. We do not mean, however, to hold
that it could not be assailed for fraud, but the pleadings
in this case contain no allegations of fraud or collusion
in obtaining the certificate.’’).
Moving beyond public education, we also find persuasive
the decision of the Colorado Supreme Court in
People ex rel. Beardsley v. Harl, supra, 109 Colo. 223,
which concerned a challenge to the gubernatorial
appointment of the defendant state banking commissioner
on the ground that he did not have the statutorily
mandated five years of experience as a banker. Id.,
225–26. Prior to being appointed, the banking commissioner
had been vetted and examined by the state civil
service commission, which ranked him at the top of
the eligibility list it maintained for the position. Id., 225.
The court upheld the dismissal of the quo warranto
action, determining that the state constitution’s civil
service amendment17 ‘‘did confer upon the [c]ivil [s]ervice
[c]ommission, and upon it alone, the discretion
to ascertain the qualifications, fitness and merit of all
applicants under the classified service, whether the
standards thereof were prescribed by [c]onstitution,
statute or rule. Thus, it would follow that the resolution
of the question as to whether [the defendant] had ‘five
[years of] experience as a banker’ involved a factual
and discretionary determination by the commission.’’
(Emphasis omitted.) Id., 227. The court further emphasized
that the case ‘‘was not instituted to compel action
by the commission nor to inquire directly into any
alleged failure by it to regularly pursue its authority in
making the certification of which complaint is made,
but, on the contrary, sought to have the [D]istrict
[C]ourt by way of an original adjudication, as a matter
of first impression, determine a question of fact constitutionally
within the discretion of the commission
. . . .’’ Id.
Similarly, in State ex rel. McIntyre v. McEachern,
supra, 231 Ala. 613, the Alabama Supreme Court concluded
that a quo warranto action could not be used
to remove a county road foreman who had been deemed
qualified for appointment by the appropriate local legislative
body. In that case, the relevant statute provided
that the office shall be held ‘‘by an experienced road
builder who shall be a competent engineer.’’ Id. The
court concluded that ‘‘there should have been no inquiry
into the fact on this trial of whether [the] appellee was
thus qualified’’ because it ‘‘was the duty of the county
commissioners to determine whether the [defendant]
was an experienced road builder and competent engineer
before electing and inducting him into office. Such
qualifications have no definite and fixed standard for
measurement. They are relative in essence. Persons
often differ as to whether one is so qualified. The county
commissioners pass on that when they elect one to that
office. They may think he possesses the qualifications,
and his later conduct in office may show that they were
mistaken. But, when they elected [the defendant] and
inducted him into office, he was not usurping it nor
holding it illegally, and had not thereby forfeited it.’’18 Id.
Other authorities revealed by the parties’ briefs and
our independent research are consistent with this common-
law rule that, in the absence of fraud, a quo warranto
action may not be used to mount a collateral
attack on a governmental agency’s licensing or certification
decision that has qualified a public officer to hold
his or her position. See People ex rel. Neilson v. Wilkins,
101 Idaho 394, 396, 614 P.2d 417 (1980) (rejecting quo
warranto challenge based on elected commissioner’s
residency because board of county commissioners previously
had exercised its statutory powers to alter commissioner
districts, and when that board ‘‘acts on
matters within its jurisdiction and no appeal is taken,
then the act becomes final and is not subject to collateral
attack’’); People ex rel. Henderson v. Redfern,
supra, 48 Ill. App. 2d 110–12 (reversing dismissal of quo
warranto action seeking ouster of highway superintendent,
and rejecting his reliance on executive discretion
and civil service agency’s administrative determination
as to eligibility, on basis of allegation that superintendent
had provided false and fraudulent information to
induce agency to find him qualified to sit for examination);
19 cf. Attorney General ex rel. O’Hara v. Montgomery,
275 Mich. 504, 510–11, 267 N.W. 550 (1936)
(rejecting claim that review of criminal conviction prohibiting
service as county clerk would constitute impermissible
collateral attack on ground that attack was
based on convicting court’s lack of jurisdiction, rather
than legal errors); but cf. State ex rel. Oregon Consumer
League v. Zielinski, supra, 60 Or. App. 656–58 (upholding
challenge to gubernatorial appointment to state agriculture
board of defendant who was farmer, farmer’s
wife, and officer of two farming trade associations, on
ground that she did not qualify for appointment as one
of two members mandated to be ‘‘ ‘representative of
consumer interests of the state,’ ’’ and concluding that
relevant statutory standards ‘‘are sufficiently definite
to permit judicial inquiry into the validity of [the] defendant’s
appointment as one of the two consumer representatives
on the [agriculture board]’’).20
Contrary to the plaintiffs’ arguments, Connecticut’s
body of quo warranto case law is consistent with this
common-law rule. First, this court’s venerable decision
in State ex rel. Williams v. Kennelly, supra, 75 Conn.
704, makes clear that a quo warranto action is not to
be used to second-guess the discretion and motivations
of appointing officials. In that case, the relator, the
former public works director for the city of Bridgeport,
challenged the mayoral appointment of a new public
works director. Id., 704–705. The mayor, however, had
terminated the relator from his position ‘‘for sufficient
cause’’ on the ground that he had been negligent, incompetent,
and had conflicts of interest. Id., 705. This court
noted the great discretion given to executive decisions
with respect to the appointment and removal of public
officials when that decision is unconstrained by municipal
charter provisions, observing that ‘‘[a]n executive
removal may be unjust and induced by reprehensible
motives, but it is not therefore invalid. The executive
discretion, whether in appointment or removal, is
absolute. The person abusing that discretion may be
punished, but not by judicial reversal of his official
action. When the absolute discretion, whether in
appointment or removal, is limited by law, while the
due observance of those limits may be enforced, yet
the action of the executive within the limits prescribed
cannot be controlled by the court.’’ (Emphasis added.)
Id., 708.
Second, the common-law rule is consistent with the
separation of powers principles underlying the exhaustion
doctrine, namely, ‘‘to foster an orderly process of
administrative adjudication and judicial review, offering
a reviewing court the benefit of the agency’s findings
and conclusions. It relieves courts of the burden of
prematurely deciding questions that, entrusted to an
agency, may receive a satisfactory administrative disposition
and avoid the need for judicial review. . . .
Moreover, the exhaustion doctrine recognizes the
notion, grounded in deference to [the legislature’s] delegation
of authority to coordinate branches of [g]overnment,
that agencies, not the courts, ought to have
primary responsibility for the programs that [the legislature]
has charged them to administer. . . . Therefore,
exhaustion of remedies serves dual functions: it
protects the courts from becoming unnecessarily burdened
with administrative appeals and it ensures the
integrity of the agency’s role in administering its statutory
responsibilities.’’ (Citations omitted; emphasis
added; internal quotation marks omitted.) Stepney, LLC
v. Fairfield, 263 Conn. 558, 564–65, 821 A.2d 725 (2003).
Given that the legislature, through the enactment of
§ 10-157 (b) and (c), has placed the determination of
the defendant’s eligibility to serve as a superintendent
squarely in the hands of an executive branch agency
with the greatest expertise in the administration of public
education, we are loath to second-guess that
agency’s determination in the guise of deciding a quo
warranto action. This is particularly so given the plaintiffs’
failure to invoke administrative remedies, such as
a declaratory ruling pursuant to § 4-176, available for
voicing their objection to the defendant’s qualifications
to serve. See also footnote 23 of this opinion.
Given these policy considerations, we disagree with
the plaintiffs’ assessment of the Appellate Court’s decision
in Deguzis v. Jandreau, supra, 27 Conn. App. 421,
as ‘‘illustrat[ive] [of] the wide reach of quo warranto,’’
in support of their argument that the writ may be utilized
to challenge underlying qualification matters that are
prerequisite to the appointment of a public official. In
Deguzis, which was a challenge to the grading of Bristol’s
fire captain civil service examination,21 the Appellate
Court concluded that the trial court had not
committed clear error in finding that the challenged
fire captain had proven his entitlement to that office,
on the ground that the record factually supported the
proposition that the answer he had selected was the
correct choice. See id., 424–26. The Appellate Court’s
opinion in Deguzis is, however, confined to the propriety
of the trial court’s factual determination, and does
not address the jurisdictional issue argued by the defendant
in this appeal. Accordingly, it does not support
the plaintiffs’ attempt to expand the reach of quo warranto.
Cf. State ex rel. Kelly v. Alcorn, 6 Conn. Supp. 210,
214 (1938) (court’s appointment of special prosecutor is
‘‘judicial determination which [cannot] be attacked on
quo warranto proceedings,’’ because ‘‘[t]he [c]ourt having
jurisdiction to enter the order when the order is
entered, it is final and conclusive even though the
[c]ourt had erred in finding that the state’s attorney
was disqualified in the sense prescribed by the statute’’).
We, therefore, adopt the common-law rule followed
by our sister states and conclude that a quo warranto
action may not be used to avoid the administrative
process by mounting a collateral attack on a governmental
agency’s licensing or certification decision that
has qualified a public officer to hold his or her position.22
Thus, we further conclude that the trial court exceeded
the bounds of its quo warranto jurisdiction in determining,
as matters of statutory interpretation and finding
of fact, that the defendant was not qualified for his
position as superintendent of the public schools of
Bridgeport on the ground that he had not completed a
‘‘school leadership program’’ as prescribed by § 10-157
(b). That determination, which underlay the commissioner’s
ultimate decision to waive certification requirements
for the defendant, was a licensing decision
squarely committed to the state board and the commissioner
by the legislature, and the plaintiffs failed to
avail themselves of appropriate avenues to raise this
challenge to the defendant’s qualifications in the appropriate
administrative forum.23
The judgment is reversed and the case is remanded
to the trial court with direction to dismiss the
amended complaint.
In this opinion the other justices concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
1 General Statutes § 52-491 provides: ‘‘When any person or corporation
usurps the exercise of any office, franchise or jurisdiction, the Superior
Court may proceed, on a complaint in the nature of a quo warranto, to
punish such person or corporation for such usurpation, according to the
course of the common law and may proceed therein and render judgment
according to the course of the common law.’’
2 Also originally named as defendants in this case were Stefan Pryor, the
state Commissioner of Education (commissioner), and the named defendant,
the Board of Education of the City of Bridgeport (city board). The trial
court subsequently granted the commissioner’s motion to dismiss the case
against him for lack of personal jurisdiction. Thereafter, the plaintiffs voluntarily
withdrew this action against the city board, leaving Vallas as the sole
defendant in this case. Accordingly, all references herein to the defendant
are to Vallas.
3 General Statutes § 52-265a provides: ‘‘(a) Notwithstanding the provisions
of sections 52-264 and 52-265, any party to an action who is aggrieved by
an order or decision of the Superior Court in an action which involves a
matter of substantial public interest and in which delay may work a substantial
injustice, may appeal under this section from the order or decision to
the Supreme Court within two weeks from the date of the issuance of the
order or decision. The appeal shall state the question of law on which it
is based.
‘‘(b) The Chief Justice shall, within one week of receipt of the appeal,
rule whether the issue involves a substantial public interest and whether
delay may work a substantial injustice.
‘‘(c) Upon certification by the Chief Justice that a substantial public
interest is involved and that delay may work a substantial injustice, the trial
judge shall immediately transmit a certificate of his decision, together with
a proper finding of fact, to the Chief Justice, who shall thereupon call a
special session of the Supreme Court for the purpose of an immediate
hearing upon the appeal.
‘‘(d) The Chief Justice may make orders to expedite such appeals, including
orders specifying the manner in which the record on appeal may be
prepared.’’
4 We note that the plaintiffs in the present case brought the underlying
action in their capacity as taxpaying residents of the city of Bridgeport. See
footnote 15 of this opinion.
5 General Statutes § 10-157 provides: ‘‘(a) Any local or regional board of
education shall provide for the supervision of the schools under its control
by a superintendent who shall serve as the chief executive officer of the
board. The superintendent shall have executive authority over the school
system and the responsibility for its supervision. Employment of a superintendent
shall be by election of the board of education. Except as provided
in subsection (b) of this section, no person shall assume the duties and
responsibilities of the superintendent until the board receives written confirmation
from the Commissioner of Education that the person to be employed
is properly certified or has had such certification waived by the commissioner
pursuant to subsection (c) of this section. The commissioner shall
inform any such board, in writing, of the proper certification, waiver of
certification or lack of certification or waiver of any such person not later
than fourteen days after the name of such person is submitted to the commissioner
pursuant to section 10-226. A majority vote of all members of the
board shall be necessary to an election, and the board shall fix the salary
of the superintendent and the term of office, which shall not exceed three
years. Upon election and notification of employment or reemployment, the
superintendent may request and the board shall provide a written contract
of employment which includes, but is not limited to, the salary, employment
benefits and term of office of such superintendent. Such superintendent
shall, at least three weeks before the annual town or regional school district
meeting, submit to the board a full written report of the proceedings of
such board and of the condition of the several schools during the school
year preceding, with plans and suggestions for their improvement. The board
of education shall evaluate the performance of the superintendent annually
in accordance with guidelines and criteria mutually determined and agreed
to by such board and such superintendent.
‘‘(b) A local or regional board of education may appoint as acting superintendent
a person who is or is not properly certified for a probationary
period, not to exceed one school year, with the approval of the Commissioner
of Education. During such probationary period such acting superintendent
shall assume all duties of the superintendent for the time specified and shall
successfully complete a school leadership program, approved by the State
Board of Education, offered at a public or private institution of higher
education in the state. At the conclusion of such probationary period, such
appointing local or regional board of education may request the commissioner
to grant a waiver of certification for such acting superintendent
pursuant to subsection (c) of this section.
‘‘(c) The commissioner may, upon request of an employing local or regional
board of education, grant a waiver of certification to a person (1) who has
successfully completed at least three years of experience as a certified
administrator with a superintendent certificate issued by another state in
a public school in another state during the ten-year period prior to the date
of application, or (2) who has successfully completed a probationary period
as an acting superintendent pursuant to subsection (b) of this section, and
who the commissioner deems to be exceptionally qualified for the position
of superintendent.’’
6 General Statutes (Rev. to 2011) § 10-157 (b) provides: ‘‘A local or regional
board of education may appoint as acting superintendent a person who is
or is not properly certified for a specified period of time, not to exceed
ninety days, with the approval of the Commissioner of Education. Such
acting superintendent shall assume all duties of the superintendent for the
time specified, provided such period of time may be extended with the
approval of the commissioner, which he shall grant for good cause shown.’’
We also note that General Statutes (Rev. to 2011) § 10-157 (c) provides:
‘‘The commissioner may, upon request of an employing local or regional
board of education, grant a waiver of certification to a person (1) who has
successfully completed at least three years of experience as a certified
administrator with a superintendent certificate issued by another state in
a public school in another state during the ten-year period prior to the date
of application, or (2) who the commissioner deems to be exceptionally
qualified for the position of superintendent. In order for the commissioner
to find a person exceptionally qualified, such person shall (A) be an acting
superintendent pursuant to subsection (b) of this section, (B) have worked
as a superintendent in another state for no fewer than fifteen years, and (C)
be certified or have been certified as a superintendent by such other state.’’
7 In July, 2011, the city board voted to dissolve itself and request that the
state board reconstitute it pursuant to General Statutes § 10-223e. See Pereira
v. State Board of Education, supra, 304 Conn. 9–10. Thereafter, the
state board granted the city board’s request for reconstitution, and the
interim Commissioner of Education, George A. Coleman, appointed the
members of the reconstituted city board in August, 2011. See id., 10–11. On
February 28, 2012, this court concluded, however, that the reconstitution
of the city board violated § 10-223e (h) because the city board lacked the
authority to waive the training session that the statute mandated prior to
reconstitution by the state. See id., 60–61. Thereafter, a special election was
held, pursuant to this court’s order, and the new city board took office in
September, 2012.
8 For additional discussion of the defendant’s jurisdictional claims, see
footnotes 14 and 23 of this opinion.
9 The trial court specifically concluded that ‘‘a proposed course of study
may only be called a ‘program’ within the meaning of subsection (b) of § 10-
157 if the institution that offers it recognizes the course of study as a
‘program,’ ’’ and emphasized that ‘‘other evidence . . . establishes that a
‘program’ means something more intensive than a single course,’’ comparing,
for example, the thirteen month Executive Leadership Program, which provides
students with course instruction, mentoring, and an internship.
10 The trial court further found, as a factual matter, that even assuming
that the independent study course ‘‘was a ‘program’ within the meaning of
§ 10-157 . . . [the defendant] did not successfully complete a school leadership
program because the course that [he] did complete was not the course
that the state board . . . believed it had approved,’’ inasmuch as the defendant
had never actually ‘‘attended a class or in-person seminar, nor did he
participate in any technology assisted discussions . . . .’’
11 We note that, prior to the defendant’s filing of a petition for an expedited
appeal pursuant to § 52-265a, the plaintiffs filed a motion with the trial court,
over the defendant’s objection, seeking termination of an automatic stay of
execution pursuant to Practice Book § 61-11. Thereafter, on July 10, 2013,
following an evidentiary hearing, the trial court granted the plaintiffs’ motion
and terminated the automatic stay, thus requiring the defendant to leave
office immediately. This court, however, subsequently granted the defendant’s
motion for review of that decision pursuant to Practice Book § 66-
6, and granted the requested relief by ordering the trial court to reinstate
the automatic stay.
12 The defendant also claims that the trial court improperly construed
§ 10-157 in determining that he had not completed the ‘‘school leadership
program’’ requisite to his positions as acting and permanent superintendent.
Because we resolve this appeal in favor of the defendant on the basis of
his procedural claims, we need not decide the statutory construction issues
presented in this case.
13 We note that this claim is echoed in the amicus brief filed by the state
board and the commissioner.
14 In the defendant’s motion to dismiss, he contended that the plaintiffs
had failed to exhaust their administrative remedies before the state board
by seeking a declaratory ruling pursuant to General Statutes § 4-176 and
§§ 10-4b-1 through 10-4b-10 of the Regulations of Connecticut State Agencies.
The trial court concluded, however, that these ‘‘administrative procedures
. . . could not provide the plaintiffs with the relief they now seek—ouster
of [the defendant] and a finding that his appointment was void ab initio—
when the law of our state provides that such relief is only available through
quo warranto. The plaintiffs have not, therefore, impermissibly failed to
exhaust their administrative remedies because no administrative procedure
exists to redress the specific injury they claim—the unlawful holding of a
public office.’’
We note that the defendant’s arguments with respect to the unavailability
of quo warranto for mounting a collateral attack on an administrative
agency’s licensing decision are framed under the exhaustion doctrine,
although the defendant does not make a classic exhaustion argument in his
primary brief. In his reply brief, however, the defendant echoes the exhaustion
arguments advanced by the amici curiae in their brief, contending that
the plaintiffs were required first, pursuant to § 4-176, to submit ‘‘a petition
for a declaratory ruling to [the state board] or the [c]ommissioner suggesting
that the ‘school leadership program’ the defendant had taken was not appropriate
or that he had not ‘successfully completed’ his probationary period.
. . . Had such a remedy been invoked, there would have been a record of
the reasons supporting the administrative agencies’ action if judicial review
were available to an aggrieved party.’’ (Citations omitted.)
We agree with the defendant that his quo warranto claims are jurisdictional
in nature, particularly given the ‘‘limited’’ nature of that ‘‘extraordinary
remedy’’; (internal quotation marks omitted) Bateson v. Weddle, supra, 306
Conn. 11; and the fact that they are colored significantly by the well established
policy concerns, including the doctrine of the separation of powers,
that underlie the exhaustion requirement, including, inter alia, ‘‘to foster an
orderly process of administrative adjudication and judicial review, offering
a reviewing court the benefit of the agency’s findings and conclusions. It
relieves courts of the burden of prematurely deciding questions that,
entrusted to an agency, may receive a satisfactory administrative disposition
and avoid the need for judicial review.’’ (Internal quotation marks omitted.)
Stepney, LLC v. Fairfield, 263 Conn. 558, 564, 821 A.2d 725 (2003).
15 Wenote that, in Bateson v. Weddle, supra, 306 Conn. 12–13, we reaffirmed
the existence of a ‘‘broader and more lenient threshold [under State ex rel.
Waterbury v. Martin, 46 Conn. 479, 482 (1878)] to establish [taxpayer]
standing as an exception limited to the particular context of quo warranto
proceedings. Thus, to determine whether the plaintiffs had standing to pursue
the present action, we must determine (1) whether the plaintiffs’ complaint
does, indeed, sound in quo warranto, and (2) whether they
demonstrated sufficient interest to establish standing to pursue the present
action.’’
16 Observing regulatory changes in the relevant licensing structure, the
Wyoming Supreme Court first noted that the trial court therein had credited
testimony of the state education superintendent and the Commissioner of
Education that the administrative certificate held by the winner was of
sufficient grade to qualify her as a county superintendent under the applicable
rules. State ex rel. Pape v. Hockett, supra, 61 Wyo. 160–62.
17 The court noted that ‘‘the presently operative civil service amendment
to the [Colorado] [c]onstitution, § 13, article XII, which it is conceded, as
is positively certain, placed the office of state bank commissioner under
the classified civil service. The first paragraph of this amendment recites:
‘Appointments and employments in and promotions to offices and places
of trust and employment in the classified civil service of the state shall be
made according to merit and fitness, to be ascertained by competitive tests
of competence, the person ascertained to be the most fit and of the highest
excellence to be first appointed. All appointees shall be qualified electors
of the state of Colorado, except as to those offices or positions held by the
civil service commission to require special training and technical qualifications,
in which cases competitive tests need not be limited to qualified
electors and may be held without the state.’ ’’ People ex rel. Beardsley v.
Harl, supra, 109 Colo. 226.
18 Ex parte Sierra Club, supra, 674 So. 2d 54, the more recent Alabama
Supreme Court decision relied upon by the plaintiffs, does not undermine
that court’s decision in State ex rel. McIntyre v. McEachern, supra, 231 Ala.
609. In Ex parte Sierra Club, the Alabama Supreme Court concluded that
the trial court lacked jurisdiction over a declaratory judgment action brought
by the plaintiff, an environmental advocacy organization (club), challenging
the legality of certain appointments to the state environmental management
commission. Ex parte Sierra Club, supra, 55–57. The court determined that
the club lacked standing to bring a declaratory judgment action because it
had no interest in the offices at issue, but noted that the Alabama state
legislature had provided for the writ of quo warranto, wherein the club
would have had the limited standing necessary to challenge the legality of
the commissioners’ appointments and their qualifications for office. Id.,
57–58; see also id., 58 (‘‘The question whether [the appointees] were properly
or improperly appointed and confirmed strikes directly at the heart of their
qualifications for those offices. Because [the appointees’] qualifications for
service in office are being questioned, the writ of quo warranto is [the
club’s] only proper remedy in this case. . . . To suggest otherwise—that
the qualifications of [the appointees] are not at issue—is to ignore [the
club’s] attempts to remove them from office or, at the least, require them
to submit to another confirmation process.’’ [Citations omitted.]).
In our view, Ex parte Sierra Club is distinguishable from State ex rel.
McIntyre and inapposite to the present case. Specifically, we view Ex parte
Sierra Club as limited to the topics of standing and appointment procedure.
It did not address the club’s specific objections to the merits of the commissioners’
qualifications, or whether the writ of quo warranto could provide
relief vis-a´ -vis those particular objections. See id., 59 (Butts, J., dissenting)
(noting that claims at issue centered on club’s challenge to appointment and
confirmation process, and ‘‘did not involve an allegation that the commission
members are unqualified to hold those positions, and their qualifications
are not at issue in this case’’).
19 We note that, in concluding that fraud in the underlying application
process was challengeable via quo warranto, the Appellate Court of Illinois
also distinguished State ex rel. McIntyre v. McEachern, supra, 231 Ala. 609,
and People ex rel. Beardsley v. Harl, supra, 109 Colo. 223, on the ground
that the statutory qualifications at issue in those cases were vague and
indefinite, rendering them more subject to administrative discretion, than
the more specific educational and experiential qualifications at issue in
the Illinois case. People ex rel. Henderson v. Redfern, supra, 48 Ill. App.
2d 111–12.
20 The plaintiffs rely specifically on People ex rel. Henderson v. Redfern,
supra, 48 Ill. App. 2d 100, and State ex rel. Oregon Consumer League v.
Zielinski, supra, 60 Or. App. 654. In our view, both of these cases are,
however, distinguishable. First, the Illinois decision in People ex rel. Henderson
is grounded in the official’s fraudulent submissions to the certifying
civil service agency—an issue not present in the present case. People ex
rel. Henderson v. Redfern, supra, 110. Further, Zielinski is inapposite
because the statutory qualifications of the agriculture board member therein
were not subject to a licensing or certification determination that previously
had been made by an administrative agency. See State ex rel. Oregon Consumer
League v. Zielinski, supra, 658.
Moreover, we note that Zielinski was not a unanimous decision. The
dissenting judge astutely observed that the ‘‘majority’s holding constitutes
an unauthorized intrusion into the domain of the executive branch of our
state government, and the reasoning on which the holding rests unfortunately
opens the door to similar intrusions in the future,’’ arguing that, ‘‘as the
majority has apparently forgotten, that we are not called upon here to
determine the merits of this appointment.’’ (Emphasis omitted.) Id., 660
(Rossman, J., dissenting). The dissenting judge relied on the Alabama decision
in State ex rel. McIntyre v. McEachern, supra, 231 Ala. 609, noting that,
as in that case, ‘‘where there were no definite, statutorily-defined standards
for determining whether the road and bridge foreman was an ‘experienced
road builder’ and a ‘competent engineer,’ here there are no specific, objective
criteria prescribed in the pertinent statute on which to base a determination
whether [the] defendant ‘[is] representative of consumer interests of the
state.’ ’’ State ex rel. Oregon Consumer League v. Zielinski, supra, 661. The
dissent then attacked the majority’s interpretation of the governing statute
as providing that, ‘‘in effect, that anyone engaged in farm production is
automatically disqualified from serving on the [agricultural board] as a
‘representative of consumer interests,’ ’’ and emphasized that whether a
candidate is ‘‘ ‘representative of consumer interests’ ’’ is ‘‘relative in essence,
and different persons are likely to disagree whether a prospective appointee
‘possesses’ those qualities. Thus, this decision is committed to the executive
branch and not the courts.’’ (Emphasis omitted.) Id., 661–63.
21 Specifically, in Deguzis, the plaintiffs, who had received lower scores
on the promotional examination than the defendant, contended that the
defendant had been appointed to the office of fire captain in violation of
the Bristol city charter; Deguzis v. Jandreau, supra, 27 Conn. App. 422;
which required that the prerequisite civil service examination ‘‘ ‘be based
on [f]ire [d]epartment material taken from current reference sources. Prior
to the exam, each applicant shall upon request, be provided by [d]irector
of [p]ersonnel, with a bibliography of the sources used in preparing the
test.’ ’’ Id., 422 n.2. Relying on this charter provision, the plaintiffs alleged that
the defendant, who achieved the highest score on the test, had improperly
received credit for his answer to a specific multiple choice question; further,
the plaintiffs had improperly not received credit for selecting a different
answer choice. Id., 423–24.
22 We recognize that the common-law rule provides for an exception in
cases of fraud perpetrated by the public officer during the vetting process.
See, e.g., People ex rel. Henderson v. Redfern, supra, 48 Ill. App. 2d 110–12;
State ex rel. Pape v. Hockett, supra, 61 Wyo. 162–63. Because allegations of
fraud are not, however, before us in the present case, we need not consider
herein whether to adopt that exception.
23 We disagree with the plaintiffs’ claim that they were not required to
exhaust their administrative remedies because, had the ‘‘state board . . .
entertained a request by [the] plaintiffs to determine whether [the] defendant
had completed a school leadership program, [the] plaintiffs would certainly
not have been aggrieved by an adverse decision, and not, therefore, entitled
to appeal.’’ The plaintiffs accurately cite Bingham v. Dept. of Public Works,
286 Conn. 698, 706, 945 A.2d 927 (2008), for the proposition that the ‘‘expansive
right to petition for a declaratory ruling under § 4-176 therefore does
not confer an automatic right to appeal under [General Statutes] § 4-183.’’
See id., 706–707 (petition for declaratory ruling does not, without more,
‘‘establish the first requisite for classical aggrievement—that [the plaintiffs]
had a specific, personal and legal interest in the decision of the commissioner
different from that of the general public’’). We view the plaintiffs as arguing,
in essence, that resort to administrative procedures would be futile or inadequate
because, unlike with a quo warranto action; see Bateson v. Weddle,
supra, 306 Conn. 12–13; they lack the standing necessary to challenge an
adverse administrative determination in court in a subsequent administrative
appeal brought pursuant to § 4-183. See, e.g., Piteau v. Board of Education,
300 Conn. 667, 684–85, 15 A.3d 1067 (2011) (explaining futility and inadequacy
exceptions to exhaustion doctrine). We disagree, and instead agree
with the reliance of the amici on River Bend Associates, Inc. v. Water
Pollution Control Authority, 262 Conn. 84, 101, 809 A.2d 492 (2002), for the
proposition that it does not matter for exhaustion purposes that those
administrative remedies ‘‘could not provide the relief the plaintiffs preferred:
removal of the defendant.’’ ‘‘It is well established . . . [t]he plaintiff’s preference
for a particular remedy does not determine the adequacy of that remedy.
[A]n administrative remedy, in order to be adequate, need not comport
with the [plaintiff’s] opinion of what a perfect remedy would be.’’ (Internal
quotation marks omitted.) Piteau v. Board of Education, supra, 685. This
‘‘lack of standing to pursue administrative appeals . . . does not constitute
futility that would excuse the necessity of recourse to those procedures.’’
Andross v. West Hartford, 285 Conn. 309, 334, 939 A.2d 1146 (2008); cf. id.,
335 (‘‘[i]t would be anomalous to excuse the plaintiffs from exhausting
administrative remedies because they lacked standing to pursue those remedies
in that forum and then permit them to obtain relief in another forum
by way of an independent action by applying a less stringent standing
requirement’’); see also Connecticut Business & Industry Assn., Inc. v.
Commission on Hospitals & Health Care, 218 Conn. 335, 346–48, 589 A.2d
356 (1991) (plaintiffs lacked standing to bring declaratory judgment action,
despite fact that their previous administrative appeals challenging same
administrative decision had been dismissed for lack of aggrievement).

Outcome: The judgment is reversed and the case is remanded
to the trial court with direction to dismiss the
amended complaint.

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