Peruta v. Comm'r of Pubilc Safety, AC 31142

• Decision Date: 24 May 2011
• Docket Number: AC 31142
• Court: Connecticut Court of Appeals
• Parties: EDWARD A. PERUTA v. COMMISSIONER OF PUBILC SAFETY, ET AL.

EDWARD A. PERUTA v. COMMISSIONER OF PUBILC SAFETY, ET AL.

AC 31142

THE COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued January 4 2011

Officially released May 24, 2011

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All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative.

The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.DiPentima, C. J., and Harper and Pellegrino, Js.

(Appeal from Superior Court, judicial district of New Britain, Cohn. J.)

Rachel M. Baird, for the appellant (plaintiff).

Matthew B. Beizer, assistant attorney general, with whom, on the brief, was Richard Blumenthal, former attorney general, for the appellants (defendants).

Opinion

DiPENTIMA, C. J. The plaintiff, Edward A. Peruta, appeals from the judgment of the trial court granting the defendants' motion to dismiss his complaint for lack of subject matter jurisdiction. On appeal, the plaintiff claims that the court improperly determined that (1) he had failed to exhaust his administrative remedies and (2) the administrative remedies available to him were not inadequate and futile. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history relevant to our discussion.¹ The plaintiff travels throughout the state and possesses a permit to carry pistols or revolvers (permit) issued by the department of public safety (department) pursuant to General Statutes § 29-28 (b). On July 28, 2007,² the plaintiff sent an e-mail to the department and to the board of firearms permit examiners (board) stating that he was researching the laws and regulations that govern the possession of a permit to carry a firearm and set forth nine questions seeking to clarify the extent to which the holder of a valid permit may openly carry a firearm in the state.³ The plaintiff delivered a document with these same questions to the department on July 30, 2007. In response, the department's legal affairs unit sent a letter to the plaintiff on August 1, 2007, stating that it was unable to provide answers to his questions and recommended that he seek the advice of an attorney.⁴

Thereafter, the plaintiff commenced an action for a declaratory judgment in the Superior Court naming three defendants: the department, the board and the police officer standards and training council (council).⁵In his complaint, the plaintiff asserted that the department and the municipalities served by the council had violated the statutory and constitutional rights of Connecticut citizens to bear arms by prohibiting, under threat of arrest, valid permit holders from openly carrying a pistol or revolver and by immediately confiscating a holder's valid permit upon such arrest. The plaintiff alleged that the board had denied his request for a declaratory ruling, and, consequently, he suffered from uncertainty with respect to his legal obligations to conceal his firearm and relinquish, upon demand, his permit to the department. Thus, the plaintiff requested a judicial determination of whether he lawfully could carry a pistol or revolver openly in the state and whether the defendants lawfully may confiscate permits if a permit holder is arrested for openly carrying a firearm. The plaintiff served a copy of his complaint on the office of the attorney general.

The defendants, represented by the attorney general's office, filed a motion to strike the plaintiff's complaint, which the court denied. Thereafter, the defendants fileda motion to dismiss the plaintiff's complaint claiming, inter alia, that the court should exercise its discretion and refuse to issue a declaratory judgment because the plaintiff had adequate administrative remedies available to him. After a hearing on the matter and after both parties filed supplemental briefs, the court granted the defendants' motion to dismiss. The court reasoned that although the plaintiff had presented a petition for a declaratory ruling to the board, which had declined to rule on the matter, the department had a central role to play in deciding the petition and should be given an opportunity to do so. The court then determined that because the plaintiff had not submitted a petition to the department, he had not complied with General Statutes §§ 4-175 and 4-176. The court further concluded that because the plaintiff had only claimed that the department was ''likely'' to issue a ruling adverse to him, futility could not be established.

Thereafter, the plaintiff filed a motion to reargue claiming that the department's failure to promulgate rules of practice for filing requests for declaratory rulings acted as a waiver of its jurisdiction to issue such rulings and excused the plaintiff's failure to petition the department. The court summarily denied this motion. The plaintiff then filed a second motion to reargue claiming that the e-mail he sent to the department on July 28, 2007, was a valid petition for a declaratory ruling and because the department lacked rules of practice for submitting petitions for declaratory rulings, he had exhausted his administrative remedies to the extent possible. The court, however, denied the plaintiff's motion concluding that the overall thrust of the questions he presented to the department were not sufficient to satisfy the requirements of § 4-176.⁶ The plaintiff then appealed to this court and, pursuant to Practice Book § 66-5, filed a motion for articulation with respect to the trial court's conclusion that his July 28, 2007 e-mail to the department was not a petition for a declaratory judgment.⁷

As a preliminary matter, we set forth our standard of review. ''A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.'' (Internal quotation marks omitted.) C. R. Klewin Northeast, LLC v. State, 299 Conn. 167,174, 9 A.3d 326 (2010). ''A motion to dismiss tests . . . whether, on the face of the record, the court is without jurisdiction. . . . When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . . The motion to dismiss . . . admits all facts whichare well pleaded, invokes the existing record and must be decided upon that alone.'' (Internal quotation marks omitted.) State v. Marsh & McLennan Cos., 286 Conn. 454, 463-64, 944 A.2d 315 (2008). "[O]ur review of the trial court's ultimate legal conclusion and resulting [grant] of the motion to dismiss will be de novo. . . . Factual findings underlying the court's decision, however, will not be disturbed unless they are clearly erroneous. . . . The applicable standard of review for . . . a motion to dismiss, therefore, generally turns on whether the appellant seeks to challenge the legal conclusions of the trial court or its factual determinations.'' (Internal quotation marks omitted.) LaSalle Bank, National Assn. v. Bialobrzeski, 123 Conn. App. 781, 786-87, 3 A.3d 176 (2010). With these principles in mind, we turn to the plaintiff's claims.

I

The plaintiff first claims that the court erroneously concluded that he had failed to exhaust his administrative remedies. Specifically, the plaintiff argues that because the department has failed to promulgate rules setting forth the required form and filing procedure for petitions for declaratory rulings in accordance with its duty under § 4-176 (b),⁸ he was unable to know what the department required for such petitions. Therefore, according to the plaintiff, his July 28, 2007 e-mail to the department, to the extent possible, was a petition for a declaratory ruling.⁹ We disagree.

Our Supreme Court has determined previously that whether a party's communication with an agency constitutes a petition for a declaratory ruling is ''essentially [a] fact-based issue . . . .'' See Cannata v. Dept. of Environmental Protection, 239 Conn. 124,135 n.18, 680 A.2d 1329 (1996). We, therefore, will not disturb the court's conclusion unless it is clearly erroneous. Id.

The right to petition an agency for a declaratory ruling is statutorily granted to a party by § 4-176 (a). That section, in relevant part, provides: ''Any person may petition an agency . . . for a declaratory ruling as to the validity of any regulation, or the applicability to specified circumstances of a provision of the general statutes, a regulation, or a final decision on a matter within the jurisdiction of the agency.'' (Emphasis added.) That section sets ''the ground rules'' for...