NORCOTT, J.
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 § 52-491
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),
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
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),
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
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.
On appeal, the defendant claims, inter alia,
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. at 11, 48 A.3d 652. 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. at 609, 166 So. 36, and People ex rel. Beardsley v. Harl, supra, 109 Colo. at 223, 124 P.2d 233, 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
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.
"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 plaintiff
"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 certificate
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. Nielsen, 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 Wn. 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. at 223, 124 P.2d 233, 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., at 225-26, 124 P.2d 233. Prior to being appointed, the banking commissioner had been vetted and examined
Similarly, in State ex rel. McIntyre v. McEachern, supra, 231 Ala. at 613, 166 So. 36, 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."
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. at 704, 55 A. 555, 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., at 704-705, 55 A. 555. 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., at 705, 55 A. 555. 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
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. at 421, 606 A.2d 52, 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,
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.
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.
In this opinion the other justices concurred.
"(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."
"(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."
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."
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. at 11, 48 A.3d 652; 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).
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-á-vis those particular objections. See id., at 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").
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., at 660, 654 P.2d 1161 (Rossman, J., dissenting). The dissenting judge relied on the Alabama decision in State ex rel. McIntyre v. McEachern, supra, 231 Ala. at 609, 166 So. 36, 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, at 661, 654 P.2d 1161. 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., at 661-63, 654 P.2d 1161.