ROGERS, C.J.
The primary issue to be resolved in this matter is the proper construction of General Statutes (Sup.2012) § 9-249a.
The record reveals the following undisputed facts and procedural history. On July 26, 2012, Jerry Labriola, Jr., the chairman of the Republican Party, John McKinney, the Senate Republican leader, and Lawrence F. Cafero, Jr., the House of Representatives Republican leader (collectively, Republicans), in their capacities as party leaders as well as candidates for state office, sent a letter to the defendant in which they stated that Tom Foley, the Republican candidate for the office of governor in the 2010 election, had received 560,874 votes, all of which were on the Republican Party line, and Dannel Malloy, the Democratic candidate for the office of governor, had received 540,970 votes on the Democratic Party line and 26,308 votes on the party line for the Working Families Party. The Republicans also pointed out that, in the 2011 municipal elections, the Democratic Party had been listed first on the ballots. The Republicans contended that, under § 9-249a, the Republican Party should have been listed first on the ballots in the 2011 election and it should be listed first on the ballots in the 2012 election because Foley had "polled the highest number of votes in the last-preceding election" for the office of governor on the Republican Party line. General Statutes § 9-249a (a). In support of their argument, the Republicans relied on a similar situation that had occurred in New York in 1995, when it was determined that the party whose candidate had received the most votes on the candidate's party line in the preceding election should be placed first on the ballot.
On July 27, 2012, the defendant responded to the Republicans' letter. The defendant stated that the Republicans had failed to "differentiate between the appearance of a candidate on the ballot by `party' nomination and by nominating petition with a `party designation.' Taking this crucial difference into account results in the conclusion reached by my office in 2011: the Democratic Party is listed on the first row on the ballot followed by the Republican Party listed on the second row. Governor Malloy was a candidate of only a single `party' on the ballot in 2010, that of the Democratic Party. Ballot access by Governor Malloy on the Working Families Party line was achieved by nominating petition with `party designation' in 2010."
Thereafter, the plaintiff brought this action for declaratory and injunctive relief
After oral argument on the reserved questions before this court, we ordered the parties to submit supplemental briefs on the two additional questions we previously set forth, which we subsequently reframed. The defendant contended in its supplemental brief that the plaintiff was required to request a declaratory ruling pursuant to General Statutes § 4-176(a)
We agree with the plaintiff that it exhausted its administrative remedies. Accordingly, we treat this action as an administrative appeal, with respect to which the state has waived its sovereign immunity by statute. On the merits of the plaintiff's statutory claim, we conclude that § 9-249a requires the defendant to list the plaintiff's candidates first on the ballot for the 2012 election.
We first address the question of whether the plaintiff exhausted its administrative remedies. As we have indicated, in her supplemental brief, the defendant contended that the plaintiff was required pursuant to § 4-176 to request from the defendant a declaratory ruling on the meaning and proper application of § 9-249a before the plaintiff could bring an action in the trial court. The plaintiff contends that it had no administrative remedy because, among other reasons, the power to interpret § 9-249a lies with the attorney general, pursuant to General Statutes § 3-125, not with the defendant. See footnote 16 of this opinion for the text of § 3-125. Alternatively, the plaintiff argues that it had, in fact, exhausted this administrative remedy. We conclude that the plaintiff was required to request a declaratory ruling from the defendant before it could seek redress in the trial court and that the Republicans' July 26, 2012 letter to the defendant constituted such a request.
"The doctrine of exhaustion of administrative remedies is well established in the jurisprudence of administrative law.... Under that doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum.... In the absence of exhaustion of that remedy, the action must be dismissed." (Citation omitted; internal quotation marks omitted.) Piteau v. Board of Education, 300 Conn. 667, 678, 15 A.3d 1067 (2011); see also id., at 684, 15 A.3d 1067 ("[i]f the available administrative procedure... provide[s] the [plaintiff] with a mechanism for attaining the remedy that [he] seek[s] ... [the plaintiff] must exhaust that remedy" [internal quotation marks omitted]).
Section 4-176(a) provides in relevant part that "[a]ny person may petition an agency ... for a declaratory ruling as to... the applicability to specified circumstances of a provision of the general statutes...." An aggrieved party can appeal from a declaratory ruling to the Superior Court pursuant to General Statutes § 4-183. See General Statutes §§ 4-166(3)
This court repeatedly has held that when a plaintiff can obtain relief from an administrative agency by requesting a declaratory ruling pursuant to § 4-176, the
We further conclude that the plaintiff exhausted its administrative remedies under § 4-176 because the July 26, 2012 letter to the defendant constituted a request for a declaratory ruling. This court previously has concluded that, under certain circumstances, a letter to a state agency by a person seeking a determination regarding the applicability of a statute to specific facts may be treated as a petition for a declaratory ruling even if the person does not expressly invoke § 4-176. In Cannata v. Dept. of Environmental Protection, 239 Conn. 124, 680 A.2d 1329 (1996), the plaintiff landowners submitted a letter to the commissioner of environmental protection (commissioner) in which they requested a determination that the proposal to clear-cut their land was exempt from regulation by the defendant department of environmental protection (department) or, if it was not, that they were entitled to a permit authorizing them to clear-cut the land. Id., at 126-27, 680 A.2d 1329. They did not, however, expressly seek a declaratory ruling pursuant to § 4-176. The commissioner concluded that the land was not exempt from the department's regulations and the plaintiffs were not entitled to a permit. Id., at 131, 680 A.2d 1329. The plaintiffs appealed from the decision pursuant to § 4-183, and the department and the defendant attorney general moved to dismiss the appeal on the ground that the decision was not a final decision in a contested case pursuant to § 4-166(2). Id., at 131-32, 680 A.2d 1329. The plaintiffs conceded that the decision was not a final decision in a contested case, but contended that it was a declaratory ruling and, therefore, was appealable pursuant to § 4-166(3)(B). Id., at 135, 680 A.2d 1329. The trial court denied the motion to dismiss, concluding that "the plaintiffs had requested, and the commissioner had issued, a declaratory ruling...." Id., at 133, 680 A.2d 1329.
On appeal, this court concluded that the plaintiffs' express request for a decision as to whether the proposed use of the land was exempt from regulation by the department fell "squarely within the purview of § 4-176(a)." Id., at 135, 680 A.2d 1329. This court rejected the defendants' contention that the failure of the parties to comply with the notice requirements
In the present case, the Republicans' July 26, 2012 letter to the defendant clearly sought a decision on the "applicability to specified circumstances of a provision of the [G]eneral [S]tatutes," as required by § 4-176(a). In addition, it met all of the substantive requirements of the defendant's regulations governing declaratory rulings
We are mindful that the plaintiff did not characterize the Republicans' letter as a request for a declaratory ruling in the proceedings before the trial court and continues to claim before this court that § 4-176(a) does not provide an adequate remedy. Indeed, because the Republicans' letter sought written confirmation of the defendant's intended prospective application of the statute shortly before initiation of the present declaratory judgment action, the logical inference is that the plaintiff's intention was merely to obtain a statement of the defendant's position to support the plaintiff's entitlement to declaratory relief in the likely event that the defendant declined to change the ballot order for the 2012 election. See Wilson v. Kelley, 224 Conn. 110, 121, 617 A.2d 433 (1992) ("An action for declaratory judgment is a special proceeding ... [that] requires the existence of an actual bona fide and substantial question in dispute which requires settlement between the parties.... [T]he declaratory judgment procedure may not be utilized merely to secure advice on the law ... or to secure the construction of a statute if the effect of that construction will not affect a plaintiff's personal rights." [Citation omitted; internal quotation marks omitted.]). Nevertheless, the plaintiff's intention in filing the letter does not change the essential fact that, for purposes of exhaustion of administrative remedies, the letter meets all of the defendant's substantive requirements for a request for a declaratory ruling, nor does that intention bear on the defendant's election to respond to the letter in a manner bearing all of the hallmarks of a declaratory ruling. The letter clearly raised an actual controversy regarding the application of § 9-249a to the specific facts of this case, and the Republicans clearly had taken the position that the defendant was violating the statute, thereby affecting their existing rights both as candidates and as party leaders. Thus, the letter cannot reasonably be characterized as a request either for an advisory opinion or for instructions.
We also conclude that the defendant's July 27, 2012 letter in response constituted a declaratory ruling. The defendant gave no indication in the letter that her position that the Democratic Party should be listed first on the ballot pursuant to § 9-249a was anything other than a full and final disposition of the issue raised by the Republicans in their July 26, 2012 letter or that she might reconsider her position if they resubmitted the letter with an express request for a declaratory ruling. To the extent that the defendant claims that she might have given notice to other interested parties, conducted a hearing on the issue or requested an opinion from the attorney general pursuant to General Statutes § 3-125
Finally, we conclude that, under the circumstances of this case, we may treat this declaratory judgment action as an administrative appeal pursuant to § 4-183. See Mario v. Fairfield, 217 Conn. 164, 167 n. 6, 585 A.2d 87 (1991) (treating declaratory judgment action as administrative appeal). The plaintiff has reaped no procedural advantage by bringing a declaratory judgment action and seeks the same remedy and relief that it would have been entitled to seek in an administrative appeal.
We begin our analysis of the second reserved question with the standard of review. The meaning of § 9-249a is a question of statutory interpretation over which our review is plenary.
The present case concerns the order of candidates on a general election ballot. Specifically, it requires us to determine the order of parties on general election ballots when the current governor required the votes of a cross-endorsing party to prevail in the election contest. According to the plaintiff, the top line on the ballot is reserved for the party with the most votes on its party line in the preceding gubernatorial election. In contrast, the defendant contends that the party of the current governor should be placed first, regardless of whether the margin of victory was achieved through votes on a different line
"The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation." (Internal quotation marks omitted.) DaimlerChrysler Services North America, LLC v. Commissioner of Revenue Services, 274 Conn. 196, 203, 875 A.2d 28 (2005). As we explain in the following paragraphs, we conclude that the text and surrounding statutes allow for more than one reasonable interpretation of § 9-249a for the purposes of determining the order of parties on the ballot.
We begin by noting that the subject matter of the statute is the order of parties on election ballots, and the text of General Statutes (Sup.2012) § 9-249a begins with the command: "The names of the parties shall be arranged on the ballots in the following order...." (Emphasis added.) Section 9-249a thus appears primarily addressed to political parties, not candidates. It is therefore reasonable to conclude that the statute intends to measure party, not candidate, support. We recognize, however, that the plain language of the statute could be subject to reasonable contrary interpretations.
The defendant contends that "the statute focuses on the candidate's vote total, not the party's vote total," arguing that the placement of the word "polled" following the word "candidate" compels an interpretation of the statute whereby the party of the candidate with the most total votes has precedence on the ballots in the subsequent general election. Although we have held that referential words and phrases usually refer to the last antecedent, this instruction applies only to the extent that "no contrary intention appears" and the construction does not otherwise impair the meaning of the sentence. (Emphasis added; internal quotation marks omitted.) Foley v. State Elections Enforcement Commission, 297 Conn. 764, 786, 2 A.3d 823 (2010); see 2A N. Singer & J. Singer, Sutherland Statutory Construction (7th Ed.2007) § 47:33, pp. 487-90. Here, the order of the words in § 9-249a is not sufficient to support the defendant's argument that the statute is clear and unambiguous on its face.
The defendant's interpretation, while plausible, does not overcome the statute's ambiguity. Most fatal to the defendant's view of the statute's plain meaning is the fact that the term "party" is not defined in § 9-249a, and has different meanings in related statutes. In her July 27, 2012 letter to the Republicans, the defendant relied on the definition of party provided in General Statutes § 9-372
The definitions in § 9-372, however, do not, by their own terms, apply to the ballot ordering statute. Indeed, § 9-249a is conspicuously absent from the list of statutes to which the definitions in § 9-372 apply.
In addition, another election statute, General Statutes § 9-453t,
In seeking to determine the legislative intent behind an ambiguous statute, we turn to "the legislative history and circumstances surrounding [the statute's] enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter...." (Internal quotation marks omitted.) Bysiewicz v. Dinardo, supra, 298 Conn. at 765, 6 A.3d 726. We conclude that these interpretive aids support the plaintiff's construction of the statute, under which the party whose candidate received the most votes for the office of governor on its party line is entitled to the top line on the ballot in the succeeding election.
Most important to our analysis is the legislative history of § 9-249a and its predecessor statutes. It is undisputed that, before 1953, the ballot ordering statute directed that the party with the most support on its party line in a governor's race be given the top place in the next election. The defendant urges that subsequent changes in the language of the ballot ordering statutes were substantive, and
We turn to a review of the genealogy and legislative history of Connecticut's ballot ordering statutes. Before 1953, the relevant statutory language was set forth in General Statutes (1949 Rev.) § 1199, which provides in relevant part that "[t]he name of the political party polling the largest number of votes for governor shall be first, and the party polling the next largest number of votes for the same office shall be second, and so on...." This language had been substantially similar since 1903, and was reenacted in various ballot ordering measures throughout the years.
According to the defendant, this change is significant and compels the conclusion that the legislature intended to modify the meaning of the ballot ordering statute from one focused on a party's support to one focused on a candidate's support. We have already noted that the plain language of the statute is ambiguous and could support either party's construction. An examination of the legislative history, moreover, contradicts the defendant's assertion, and demonstrates that the 1953 revisions were not intended to change the meaning of the statute.
The 1953 revisions originated in a Special Act directing the secretary of the state to "prepare a revision of the sections of the [G]eneral [S]tatutes relating to elections, primaries, caucuses and conventions for the purpose of consolidating and clarifying the same ...." 26 Spec. Acts 363, No. 521 (1951). The report of the then secretary of the state, Alice Leopold, to the legislature listed the proposed revisions alongside the current statutes. See A. Leopold, Proposed Revision of the Sections of the General Statutes Pertaining to Elections (1953). In the preface to the report, Leopold was careful to note that the proposed revisions dealt only with "clarification and recodification" of Connecticut's election laws.
This conclusion is supported by an analysis of the statute in the context of contemporaneous elections. At the time that the revisions were adopted, the meaning of the ballot ordering statute was well settled. First, the plain meaning of the statutory text in General Statutes (1949 Rev.) § 1199, providing that "[t]he name of the political party polling the largest number of votes for governor shall be first," clearly directed that precedence be given to the party with the most votes. Any doubt as to the meaning of the statute was settled in 1939, when a controversy similar to the one now before us was raised as a result of the 1939 governor's race. In that election, the Republican candidate for the office of governor, Raymond E. Baldwin, received 358 fewer votes than his Democratic Party opponent, but was declared governor by a margin of 3046 votes due to his cross endorsement on the Union Party line.
Subsequent to the election, then Secretary of the State Sara B. Crawford, sought the opinion of then Attorney General Francis A. Pallotti on the following question: "[D]ue to the fact that the [g]overnor was elected at the last general election by the combined votes polled by two parties, which major party shall, therefore, be placed in the first column of election ballots to be used in coming elections?" Opinions, Conn. Atty. Gen. (March 21, 1939) p. 230. The attorney general was charged with interpreting General Statutes (1930 Rev.) § 587, which provided in relevant part that "[e]ach column shall be headed by the name of the party whose candidates are listed therein ... precedence being given to the party which polled the highest number of votes for governor at the last preceding general election for such office, and so on...."
This genealogy clarifies the legislature's understanding of the language adopted in 1953 and preserved in the current revision of § 9-249a. Pallotti's 1939 opinion settled any questions arising from the application of the ballot ordering statute to races for the office of governor decided by the votes on a cross endorsing party's line. A review of the legislative history and genealogy reveals no evidence of legislative objection to this interpretation. Subsequently, when the legislature did change the language of the statute in 1953, the legislative history indicates that the legislature steered clear of the "controversy" associated with substantive change by limiting itself to reorganization. See Conn. Joint Standing Committee Hearings, supra, at p. 34, remarks of Leopold. When viewed through the historical prism of the 1938 election, the circumstances surrounding the statutory revision lead us to conclude that the legislature did not intend to change the ballot ordering law in a way that would have reversed the prevailing understanding of the law.
This conclusion is also supported by our review of related election statutes. Although the 1953 revisions and their successor statutes changed the language of the ballot ordering statute for machine ballots,
Finally, the public policy underlying the election statutes also supports construing § 9-249a to give priority to the party receiving the most votes on its party line. The legislative history of the ballot ordering statute reveals that it was intended to completely remove the defendant's discretion in ordering the parties on the ballot. See Conn. Joint Standing Committee Hearings, Elections, 1976 Sess., p. 13, remarks of Henry Cohn (purpose of bill is to ensure that "there will be no question" as to how parties were listed on ballot); 19 S. Proc., Pt. 3, 1976 Sess., p. 1144, remarks of Senator Joseph Schwartz (bill provides for order of parties that did not participate in last gubernatorial election, "takes the authority away from the [s]ecretary of the [s]tate's [o]ffice").
We conclude that § 9-249a is an ambiguous statute, and that the legislative history, genealogy, and public policy all support a construction requiring the party whose candidate for governor polled the highest number of votes on that party's line be given precedence on the ballot in the subsequent general election. Because the Republican Party's gubernatorial candidate received more votes on his party's line in the 2010 election than Governor Malloy received on either the Democratic Party or the Working Families Party lines, we
In this opinion the other justices concurred.
Section 3-77-22 of the Regulations of Connecticut State Agencies provides in relevant part: "(a) These rules set forth the procedure to be followed by the Secretary of the State in the disposition of requests for declaratory rulings as to the applicability of any statutory provision or of any regulation or order of the Secretary of the State.
"(b) Any interested person may at any time request a declaratory ruling from the Secretary of the State with respect to the applicability to such person of any statute, regulation or order enforced, administered, or promulgated by the Secretary of the State. Such request shall be in writing, signed by the petitioner or petitioner's attorney, and submitted by mail or hand delivered during normal business hours to the office of the Secretary of the State. In addition, such a request shall:
"(c) The Secretary of the State may give notice to any person that such a declaratory ruling has been requested, and may receive and consider data, facts, arguments, and opinions from persons other than the person requesting the ruling.
"(d) The Secretary of the State may conduct a hearing pursuant to [General Statutes §§ 4-177 and 4-178] for the purpose of finding facts as the basis for a declaratory ruling. The Secretary of the State shall give notice of such hearing as shall be appropriate. The provisions of sections 3-77-14 through and including 3-77-19 of these regulations shall apply to such hearings.
"(e) If the Secretary of the State determines that a declaratory ruling will not be rendered, the Secretary of the State shall within thirty (30) days, after receipt of the petition notify the person so inquiring that the request has been denied. If the Secretary of the State renders a declaratory ruling, a copy of the ruling shall be sent to the petitioner and to the petitioner's attorney, if any, and to any other person who has filed a written request for a copy with the Secretary of the State."
The defendant also points out that the plaintiff failed to make all of the arguments in the July 26, 2012 letter that it is now making to this court. Again, the defendant points to no authority for the proposition that the Republicans were required to include in their letter all of the arguments that would support their interpretation of § 9-249a. Once the issue was fairly before her, it was the defendant's responsibility to interpret § 9-249a based on all of the relevant considerations or, if she was unable to do so on the basis of the information provided, to request additional information or to seek an opinion from the attorney general pursuant to § 3-125.
General Statutes § 9-372(6) defines a "`[m]inor party'" as "a political party or organization which is not a major party and whose candidate for the office in question received at the last-preceding regular election for such office, under the designation of that political party or organization, at least one per cent of the whole number of votes cast for all candidates for such office at such election...." We note that, under § 9-372(6), the Working Families Party will be a minor party for purposes of the 2014 gubernatorial election, because it received approximately 2.29 percent of the vote on its party line in the 2010 gubernatorial election. The Working Families Party, however, is not a major or minor party for purposes of the 2012 presidential election.
A few years later, the legislature enacted No. 250, § 1, of the 1909 Public Acts, governing the order of candidates on paper ballots, which provides in relevant part: "Each column... shall be arranged in such order as the secretary [of the state] may direct, precedence, however, being given to the party which polled the highest number of votes for governor at the last preceding general election for such office, and so on."
Likewise, No. 262, § 5, of the 1909 Public Acts provided, with respect to the order of candidates on ballots voted by machine: "The name of the political party polling the largest number of votes for the head of the ticket shall come first, and that of the party polling the next largest number of votes for the same office shall come second, and so on...."
Thereafter, the legislature enacted No. 33, § 576, of the 1919 Public Acts, which provides in relevant part: "Each column shall be headed by the name of such party, and shall be arranged in such order as the secretary [of the state] may direct, precedence being given to the party which polled the highest number of votes for governor at the last preceding general election for such office, and so on."
The 1930 revision of the General Statutes contained equivalent provisions for both paper and machine ballots. General Statutes (1930 Rev.) § 587 provides in relevant part:
General Statutes (1930 Rev.) § 722, addressing machine ballots, provides in relevant part: "The name of the political party polling the largest number of votes for governor shall be first, and the party polling the next largest number of votes for the same office shall be second, and so on...."
These provisions remained the same in 1941, when the legislature addressed straight and split tickets. Significantly, the 1941 revisions were enacted following the 1938 gubernatorial election, in which the Republican candidate was elected only with the help of the Union Party, and the subsequent attorney general's opinion directing the secretary of the state to place the Democratic Party first in the 1940 general election. General Statutes (Cum.Sup.1941) § 107f provides in relevant part: "The names of the parties shall be listed in the straight ticket section of each ballot in such order as the secretary [of the state] may direct, precedence being given to the party which polled the highest number of votes for governor at the last preceding general election for such office, and so on. The names of the candidates in the split ticket section shall be arranged in such order as the secretary may direct, precedence being given to the candidates of the party which polled the highest number of votes for governor at the last preceding general election for such office, and so on."
The subsequent 1949 statutory revision retained the same language. General Statutes (1949 Rev.) § 1199 provides in relevant part: "The name of the political party polling the largest number of votes for governor shall be first, and the party polling the next largest number of votes for the same office shall be second, and so on...."
"Both [c]ommissions did splendid jobs. However, in light of their experience we have adopted the policy of separating substantive changes from clarification and recodification of our laws. This proposed revision deals only with the problem[s] of:
"Any changes in meaning, substance, or policy will be processed separately through the proper legislative channels for individual and specific consideration by the General Assembly." A. Leopold, supra, preface.