Today, the Connecticut Attorney General filed an application for certification to file a public interest appeal in Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, HHD-CV-14-5037565-S, the high-profile school funding lawsuit pending in Hartford Superior Court. The State is seeking permission to pursue an appeal under Connecticut General Statutes Section 52-265a which permits immediate appellate review of decisions rendered before the completion of a case under special circumstances.

Last week, Judge Thomas Moukawsher issued a 90-page post-trial decision declaring that Connecticut’s education funding policy is “irrational.” Rather than enter a final judgment, the court scheduled further proceedings to be held after the State has submitted to the court proposed reforms and after the plaintiffs have commented on those proposals. The judge gave the State until March 6, 2017 to submit its proposal addressing education related concerns such as the relationship between state and local government in education, a formula for statewide funding, standards for hiring, evaluating, and paying teachers, and funding and defining special education. In the last words of its decision, the court “retain[ed] jurisdiction” over the case until those issues had been addressed.

Decisions by superior courts are appealable under General Statutes Section 52-263. However, that statute limits the jurisdiction of Connecticut’s appellate courts to “final judgments,” meaning that a party must wait until after the case has been concluded before seeking appellate review of one or more of the trial court’s decisions in the case. Here, because the court scheduled further proceedings for 2017, the case has not concluded and its September 7, 2016 decision is arguably not appealable.

I say “arguably” because, under a rule announced by the Connecticut Supreme Court in State v. Curcio, 191 Conn. 27, 31 (1983), there are two circumstances when an interlocutory order can be immediately appealed: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them. There is an argument that the trial court’s order encroaches on the legislature’s authority and violates the separation of doctrine. If the judge’s order does violate separate of powers, then the order itself might be said to so conclude the rights of the parties that the further proceedings, the 2017 hearing to be scheduled after the State’s proposal is submitted, will not affect that ultimate issue. Of course, this only speaks to appealability. Whether the court’s order is a proper exercise of the judicial branch’s obligation to protect constitutional rights, and education is a constitutional right under Article Eighth of the Connecticut Constitution, is the question that the Supreme Court will need to decide.

Because it is debatable whether a direct appeal could be brought under Curcio, the State is invoking General Statutes Section 52-265a for its appeal.  That statute permits the Supreme Court to review any decision of a judge of the Superior Court in circumstances where the Chief Justice certifies that the appeal presents: (1) a matter of substantial public interest; and (2) delaying the appeal may work a substantial injustice. The statute requires the Chief Justice to grant or deny a petition for a public interest appeal within seven days. However, as a matter of practice, decisions on public interest appeal applications are made quickly, usually within a day or two of the filing. Only one or two applications are granted each year. After the application is granted, and this case does seem to be one that fits the statutory criteria for certification, the Chief Justice will set a briefing schedule and potentially an argument date. The State will then need to file the appeal. That filing is more than a mere formality because it triggers Practice Book Section 61-11, which creates an automatic stay of the trial court’s order until the appeal has been resolved by the Connecticut Supreme Court.

We expect to hear from the Chief Justice soon on whether and how this appeal will proceed. But it appears that the state constitutional right to an education is returning to the Supreme Court’s docket.

UPDATE:  September 20, 2016 – The Chief Justice has granted the State’s application in an order issued this afternoon.