Constance SAVAGE et al.
Lorraine M. ARONSON, Commissioner of Income Maintenance.
Argued Jan. 9, 1990.
[Copyrighted Material Omitted]
Hugh Barber, Asst. Atty. Gen., with whom were Martin Rosenfeld, Asst. Atty. Gen., and, on the brief, Clarine Nardi Riddle, Atty. Gen., and Richard J. Lynch, Asst. Atty. Gen., for appellant (defendant).
Graham Boyd, Certified Legal Intern, with whom were Robert A. Solomon and, on the brief, Stephen Wizner, Jean Koh Peters, J.L. Pottenger, Jr., Mary McCarthy and Carroll Lucht, New Haven, for appellees (plaintiffs).
Before ARTHUR H. HEALEY, SHEA, CALLAHAN, GLASS, COVELLO, HULL and SANTANIELLO, JJ.
[214 Conn. 257] SHEA, Associate Justice.
The principal issue in this case is whether the defendant commissioner of income maintenance may be enjoined from reducing the period of eligibility for emergency housing of Aid to Families with Dependent Children (AFDC) recipients from 180 to 100 days following their eviction or other displacement from their former homes. The named plaintiff and seven other mothers of dependent children were receiving AFDC benefits and were residing in various motels in New Haven that had been made available to them as emergency housing because of their inability to find affordable housing. They brought this action seeking [214 Conn. 258] certification as a class, injunctive relief, a declaratory judgment, and attorney's fees in relation to the 100 day per calendar year limit on emergency housing that had been established by the department of income maintenance (DIM). After certifying the plaintiffs, pursuant to Practice Book § 88, as representatives of the class of all AFDC recipients receiving emergency housing benefits, the trial court rendered judgment for the plaintiffs enjoining the commissioner from enforcing the 100 day limit upon emergency housing benefits and declaring that the limit violated General Statutes §§ 17-85, 17-82d and 17-38a(a) as well as various provisions of our federal and state constitutions. The court denied the claim for attorney's fees.  See Doe v. Heintz, 204 Conn. 17, 526 A.2d 1318 (1987).
In her appeal from the judgment, the commissioner claims that the trial court erred: (1) in failing to dismiss the action for lack of jurisdiction because (a) the case was tried as a "housing matter," as the complaint alleged, rather than as an ordinary civil action, (b) the defense of sovereign immunity was available and (c) the plaintiffs failed to exhaust their administrative remedies; (2) in holding that the limitation of emergency housing benefits to 100 days violates §§ 17-85, 17-82d and 17-38a(a); (3) in declaring that this limitation violates the rights of the AFDC recipients and their children to family integrity and to education as those rights are protected by our federal and state constitutions; and (4) in issuing an injunction that (a) transgresses the principle of separation of powers and
(b) conflicts with the requirements of federal law. We conclude that the court did not lack jurisdiction to entertain this action, but that its interpretation or application of the statutory and constitutional provisions relied upon was erroneous. As these determinations are dispositive of the appeal, we do not address the fourth claim of error. [214 Conn. 259] Accordingly, we set aside the judgment and remand the case with direction to render judgment for the commissioner.
The subordinate facts are not disputed. In addition to the payments made to AFDC recipients for food, shelter and other necessities in the form of a basic grant equal to the "standard of need" as determined pursuant to General Statutes § 17-2, an emergency housing program has been established by the commissioner as a "special needs" program, under which payments are made to those who provide temporary housing to families who have lost their former homes and are unable to find housing they can afford in the marketplace. The maximum period for which these emergency housing payments would be made was 180 days until May, 1988, when it was reduced to 100 days. The emergency housing program itself, as well as the limitations on the period of its availability for a particular AFDC recipient, are the subject of DIM regulations and are not controlled by any specific statute. The money supporting the emergency housing program, like that used for payment of the AFDC basic grants, is provided under a "matching funds" plan by the state and by the federal government, each paying approximately one half. Emergency housing benefits are given to all eligible applicants by DIM regardless of prior legislative appropriations. Even after the initial legislative appropriation has been exhausted, the payments for housing qualified AFDC recipients have continued to be made and the commissioner has retrospectively sought a deficiency appropriation from the legislature. In the July 1988-1989 fiscal year the original six million dollar appropriation for the emergency housing program was increased through a deficiency appropriation by an additional six million dollars.
As previously indicated, eight plaintiffs who represent the class and their children resided in various [214 Conn. 260] motels and similar facilities in the New Haven area to which they had been assigned by DIM after being displaced from their former homes. After each of these plaintiffs had been notified that the 100 day period for which emergency housing had been provided to them would terminate on April 11, 1989, they commenced this action on April 10, 1989, claiming that they had no reasonable alternative but to remain at the emergency housing locations where they were situated, because they had been unable to find permanent housing they could afford.
The trial court on April 14, 1989, issued a temporary injunction prohibiting the commissioner from terminating the emergency housing benefit of any member of the plaintiff class. After the case had been fully tried, the court, declaring the 100 day limit on emergency housing, invalid, enjoined the commissioner from enforcing that regulation and from removing the plaintiffs and putative members of the class from emergency housing, except to place them in permanent homes. The commissioner's application to stay the judgment was denied. 
The commissioner has raised three grounds in support of her claim that the trial court lacked jurisdiction of this case and erred in denying her motion to dismiss: (1) the inappropriateness of treating this complex case as a "housing matter" to be heard by the judge assigned to hear such matters in New Haven; (2) the sovereign immunity of the state; and (3) the failure of the plaintiffs to exhaust administrative remedies. We find none of these grounds meritorious.
[214 Conn. 261] A
General Statutes § 47a-70(a)  provides that "[a]ll proceedings involving a housing matter in the judicial district of ... New Haven ... shall first be placed on the housing docket for that district...." The commissioner, relying on this provision, maintains that the "housing courts" were established for the limited purpose of handling housing litigation exclusively, and that the issues raised in this case far exceed the scope of housing matters as defined by General Statutes § 47a-68.  [214 Conn. 262] Accordingly, she contends that the trial court lacked jurisdiction of the subject matter of the complaint. 
Despite the familiar reference to the judicial district courtroom where the judge assigned to hear housing matters presides as the "housing court," our statutes create no such special jurisdictional entity. "Housing matters" are included within the jurisdiction of the Superior Court, just as family relations matters, small claims matters and juvenile matters are so included. General Statutes § 51-164s. The Superior Court, pursuant to General Statutes § 51-164t and Practice Book § 2, has been divided into four divisions: family, civil criminal and housing. The family, civil and criminal divisions have been subdivided into "parts," but not the housing division. Practice Book §§ 3, 4, 5 and 5A. The evident purpose of the statutes and rules relating to the divisions of the Superior Court was not to impose any jurisdictional limitation on judges but to achieve greater efficiency in the administration of the judicial department. The Superior Court judges assigned to each division or part thereof are authorized by Practice Book § 212 to transfer cases to different court locations as well as between judicial district and geographical area courts. A judge assigned to the housing division at a particular judicial district is authorized by § 47a-70(a), after a case has first been placed on the housing docket, to "transfer such matter to the regular docket for a geographical area or judicial district if he determines that such matter is not a housing matter or that such docket is more suitable for the disposition of the case."
[214 Conn. 263] Even if it were clear that the complaint fails to allege circumstances constituting a housing matter as defined by § 47a-68, it is plain that such a deficiency did not deprive the trial court of jurisdiction over the action. A judge of the Superior Court assigned to hear housing matters does not lose his general authority to
hear any cause of action pending in that court. Since the plaintiffs' action was properly brought to the Superior Court, the trial judge, as a member of that court, did not lack jurisdiction to decide it.
The commissioner's claim that this case is not a housing matter is essentially an objection to venue rather than to jurisdiction, because it does not implicate the authority of the Superior Court to entertain the case but involves only the question of whether one division of that court rather than another should properly have heard the case. "Venue is not a jurisdictional question but a procedural one." 77 Am.Jur.2d, Venue § 1. Statutory venue requirements "simply [confer] a privilege not to be required to attend court at a particular location. Id., § 45." Farricielli v. Personnel Appeal Board, 186 Conn. 198, 207, 440 A.2d 286 (1982) (Shea, J. dissenting). "Accordingly it may be waived by the parties, unlike subject matter jurisdiction, which cannot be conferred by consent." Id.
The commissioner's motion to dismiss did not question whether the complaint alleged a housing matter but was based upon sovereign immunity and failure to exhaust administrative remedies. The trial court, therefore, had no occasion to address the issue the commissioner has belatedly raised on appeal. We hold that, in failing to raise this issue by a seasonable motion to transfer, the commissioner must be deemed to have waived any such deficiency in the complaint and is barred from raising the question on appeal. See State v. Orsini, 187 Conn. 264, 269-71, 445 A.2d 887 (1982).
[214 Conn. 264] B
The commissioner claims that the complaint should have been dismissed because her actions that are the basis for the suit were performed in her official capacity, as the plaintiffs concede,  and she, therefore, may invoke the mantle of the state's sovereign immunity. A suit against a state officer concerning his official acts is, "in effect, against the state," and sovereign immunity is available to bar a suit against the officer just as if the state itself were the defendant. Sentner v. Board of Trustees, 184 Conn. 339, 342, 439 A.2d 1033 (1981); see Doe v. Heintz, supra, 204 Conn. at 31, 526 A.2d 1318.
We have held, however, that "[s]overeign immunity does not bar suits against state officials acting in excess of their statutory authority"; id.; or in violation of constitutional rights. Horton v. Meskill, 172 Conn. 615, 624, 376 A.2d 359 (1977). The complaint in this case alleged that the defendant had failed "to meet her legal duty" as prescribed by §§ 17-85, 17-82d and 17-38a(a) to provide for support of the plaintiffs and their children in homes suitable for their upbringing and in health and decency. It is also alleged that, by requiring these AFDC recipients to leave emergency housing Before they are able to obtain permanent housing, the commissioner has violated their constitutional rights to family unity and to adequate education.  Since the court, in deciding a motion to dismiss, "must consider the allegations of the complaint in their most favorable light"; Reynolds v. Soffer, 183 Conn. 67, 68, 438 A.2d 1163 (1981); it is evident that the plaintiffs [214 Conn. 265] profess to claim breaches of the statutory obligations of the commissioner that have also resulted in violations of their constitutional rights.
The commissioner contends that the trial court erred by overlooking the distinction between acts of a state official that are in excess of statutory authority and those that constitute an erroneous exercise of that authority. Previous decisions of this court have carefully distinguished situations in which the official acted within the limitations of his authority from those in which official ...