Lewis v. Connecticut Gaming Policy Bd.

• Decision Date: 23 February 1993
• Docket Number: No. 14481,14481
• Citation: 620 A.2d 780,224 Conn. 693
• Court: Connecticut Supreme Court
• Parties: J. Blaine LEWIS v. CONNECTICUT GAMING POLICY BOARD et al.

Page 780

620 A.2d 780

224 Conn. 693

J. Blaine LEWIS v. CONNECTICUT GAMING POLICY BOARD et al.

No. 14481.

Supreme Court of Connecticut.

Argued Oct. 30, 1992.

Decided Feb. 23, 1993.

William S. Rogers, with whom was Susan Quinn, Hartford, for appellant (plaintiff).

Richard M. Sheridan, Asst. Atty. Gen., with whom, on the brief, was Richard Blumenthal, Atty. Gen., for appellees (defendants).

Before CALLAHAN, BORDEN, BERDON, NORCOTT and KATZ, JJ.

CALLAHAN, Associate Justice.

This appeal raises two procedural issues: (1) whether a Superior Court judge was prohibited from reviewing and reversing a ruling, made earlier in the same case by a coordinate judge, relating to a question of subject matter jurisdiction; and (2) whether the proceedings before an administrative agency terminating the employment of an appointed, unclassified permanent state employee who served as a unit head in the division of special revenue constituted a "contested case" under General Statutes § 4-166(2). The plaintiff, J. Blaine Lewis, filed an administrative appeal in the Superior Court from a decision terminating the plaintiff's employment with the defendant division of special revenue. ¹ The Superior Court, Norko, J., dismissed the plaintiff's administrative appeal for lack of subject matter jurisdiction. The plaintiff appealed from the court's judgment to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c). We affirm the judgment of the Superior Court.

The following facts are relevant to this appeal. The plaintiff was employed by the defendant state department of revenue services in its division of special revenue (division). For nine years, until 1989, the plaintiff served as the head of the lottery unit of the division. The division works in cooperation with the defendant gaming policy board (board) to implement and administer all Connecticut lottery games. The plaintiff's immediate supervisor was the defendant William V. Hickey, executive director of the division.

On May 16, 1989, the executive director informed the plaintiff that the division was changing one of the lottery games, LOTTO, from a game consisting of forty numbers to one consisting of forty-four numbers. The executive director ordered the plaintiff to design and implement the changed format and to prepare a favorable presentation of the changed format to the board. The plaintiff refused to comply with the executive director's order and requested that the executive director withdraw the order. The executive director thereupon placed the plaintiff on paid leave of absence. On May 22, 1989, the plaintiff was notified that a "pre-disciplinary decision hearing" would be conducted before the executive director on May 24, 1989, pursuant to the division's personnel procedure No. 1, to discuss the plaintiff's refusal to comply with the executive director's order. The executive director himself presided at the "pre-disciplinary decision hearing" and terminated the plaintiff's employment for disobeying his order.

Thereafter, the executive director requested that the board add the matter of his decision to terminate the plaintiff's employment to its agenda for its next executive session. At an executive session of the board on May 26, 1989, the plaintiff appeared, accompanied by counsel, to testify on his own behalf. At the conclusion of a summary proceeding, the board voted in favor of a resolution to approve the executive director's decision to terminate the plaintiff's employment.

On August 17, 1989, the plaintiff appealed the order of termination to the Superior Court pursuant to General Statutes § 4-183(a) of the Uniform Administrative Procedure Act (UAPA). ² The defendants ³ filed a motion to dismiss the plaintiff's action based on a lack of subject matter jurisdiction, claiming that the plaintiff had not appealed from a "contested case" as defined in § 4-166(2). ⁴ The trial court, Freed, J., denied the defendants' motion. The defendants then filed an answer to the plaintiff's complaint in which they alleged as a special defense that the court lacked subject matter jurisdiction.

The plaintiff's appeal was assigned to Judge Raymond R. Norko, who heard argument on both the merits of, and the court's subject matter jurisdiction over, the appeal. The court, Norko, J., dismissed the plaintiff's appeal, concluding that the court was without subject matter jurisdiction because the proceedings surrounding the plaintiff's termination from the division did not involve a "contested case" as required under the UAPA. This appeal followed.

The plaintiff argues on appeal to this court that the trial court, Norko, J., improperly: (1) reviewed and reversed a decision of a coordinate court; (2) concluded that the proceedings surrounding the plaintiff's termination from employment with the division did not constitute a contested case under § 4-166(2) from which he had a right to appeal; and (3) failed to address whether the plaintiff's right to employment as secured by General Statutes §§ 31-51m and 31-51q was sufficient to qualify the termination proceedings for "contested case" status. We conclude that Judge Norko properly reviewed the prior ruling by a coordinate judge on the issue of the court's subject matter jurisdiction over the plaintiff's appeal and the court properly dismissed the plaintiff's appeal because the appeal had not been taken from a decision in a contested case.

I

The plaintiff first claims that Judge Norko improperly reviewed and reversed the decision of Judge Freed on the issue of whether the proceedings terminating the plaintiff's employment with the division constituted a contested case. The plaintiff argues that, under the doctrine of the law of the case, the previous ruling was binding on Judge Norko and there was no cause for review or reversal of that ruling. We do not agree.

"The law of the case ... expresses the practice of judges generally to refuse to reopen what has been decided and it is not a limitation on their power.... Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided...." Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982). "Nevertheless, if the case comes before [a subsequent judge] regularly and he becomes convinced that the view of the law previously applied by his coordinate predecessor was clearly erroneous and would work a manifest injustice if followed, he may apply his own judgment." Id. at 100, 439 A.2d 1066.

On November 29, 1990, Judge Freed addressed the court's subject matter jurisdiction over the plaintiff's appeal pursuant to the defendants' motion to dismiss and concluded that the plaintiff's appeal presented a contested case under § 4-166(2). Thereafter, Judge Norko, on November 14, 1991, again addressed the same issue after it had been reasserted as a special defense in the defendants' answer to the plaintiff's complaint. Judge Norko recognized that, although the law of the case doctrine ordinarily restrains a judge's review of a prior ruling in the same case by a coordinate judge, the doctrine did not prevent him from revisiting the issue of the court's subject matter jurisdiction.

It is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time. Sasso v. Aleshin, 197 Conn. 87, 89, 495 A.2d 1066 (1985). Practice Book § 145 provides: "Any claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found after the suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action."

"Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. 1 Restatement (Second), Judgments § 11." Craig v. Bronson, 202 Conn. 93, 101, 520 A.2d 155 (1987). " '[A] court lacks discretion to consider the merits of a case over which it is without jurisdiction....' " Neyland v. Board of Education, 195 Conn. 174, 181, 487 A.2d 181 (1985), quoting Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379, 101 S.Ct. 669, 676, 66 L.Ed.2d 571 (1981). "The objection of want of jurisdiction may be made at any time ... [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention." (Internal quotation marks omitted.) Doe v. Heintz, 204 Conn. 17, 35, 526 A.2d 1318 (1987); Woodmont Assn. v. Milford, 85 Conn. 517, 524, 84 A. 307 (1912). "The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings.... If at any point, it becomes apparent to the court that such jurisdiction is lacking, the appeal must be dismissed." Laurel Park, Inc. v. Pac, 194 Conn. 677, 679 n. 1, 485 A.2d 1272 (1984); see also Practice Book § 145.

The obligation of Judge Norko to revisit a claim of lack of jurisdiction made in the defendants' answer to the plaintiff's complaint tempers the application of the doctrine of the law of the case. Although Judge Norko's review of the first ruling was not predicated on the existence of new evidence or a change in the law since the first ruling, it revealed a conviction on his part that the prior decision was clearly erroneous. Breen v. Phelps, supra, 186 Conn. at 100, 439 A.2d 1066. Furthermore, because we determine herein that the initial ruling on the issue of the court's subject matter jurisdiction was in fact incorrect, the plaintiff's first claim is without merit. ⁵

II

The plaintiff next claims that the trial court incorrectly concluded that the termination proceedings before the administrative agency did not constitute a "contested case" under General Statutes § 4-166(2), and, as a consequence, the court lacked subject matter...