Farricielli v. Connecticut Personnel Appeal Bd.

• Decision Date: 09 February 1982
• Court: Connecticut Supreme Court
• Parties: Charles FARRICIELLI v. CONNECTICUT PERSONNEL APPEAL BOARD.

Page 286

440 A.2d 286

186 Conn. 198

Charles FARRICIELLI v. CONNECTICUT PERSONNEL APPEAL BOARD.

Supreme Court of Connecticut.

Argued Nov. 12, 1981.

Decided Feb. 9, 1982.

Robert J. Krzys, Hartford, with whom, on the brief, was John W. Breen, Jr., Hartford, for appellant (plaintiff).

Christina G. Dunnell, Asst. Atty. Gen., with whom, on the brief, were Carl R. Ajello, Atty. Gen., and Bernard F. McGovern, Jr., and Robert E. Walsh, Asst. Attys. Gen., for appellee (defendant).

Before SPEZIALE, C. J., and HEALEY, PARSKEY, ARMENTANO and SHEA, JJ.

ARTHUR H. HEALEY, Associate Justice.

On March 25, 1977, the plaintiff, Charles Farricielli, was dismissed from his position as an institutional security officer at Southern Connecticut State College for failure to obtain and retain Connecticut State Police powers as required by job specifications. The plaintiff appealed this dismissal to the Connecticut personnel appeal board (the board) on March 31, 1977, pursuant to General Statutes § 5-202(a). The board dismissed the plaintiff's appeal for lack of subject matter jurisdiction on May 25, 1977.

On June 23, 1977, the plaintiff appealed from the decision of the board, under General Statutes § 4-183(b), ¹ to the Court of Common Pleas in Hartford County. Service was duly made upon the defendant by serving the office of the attorney general in Hartford. The plaintiff resided in New Haven County at the time he took the appeal to the Court of Common Pleas. The defendant moved to dismiss the plaintiff's appeal on the grounds that the appeal was not filed in the Court of Common Pleas for the county in which the plaintiff resided as § 4-183(b) then required. The court, Fracasse, J., granted the motion to dismiss for lack of jurisdiction upon finding that the venue provisions of § 4-183(b) were mandatory and jurisdictional and that strict compliance was required. The plaintiff, after certification was granted, appealed to this court.

The main issue in this case is whether, on June 24, 1977, the venue provisions of General Statutes § 4-183(b) were mandatory and jurisdictional, thereby rendering lack of strict compliance a fatal defect.

In 1977, a person who had exhausted all administrative remedies and was aggrieved by a final decision of an administrative agency could then seek judicial review under General Statutes § 4-183(b), ² which is part of the Uniform Administrative Procedure Act (UAPA), which provided that "(p) roceedings for review shall be instituted by filing a petition in the court of common pleas in the county wherein the aggrieved person resides ...." The plaintiff, however, instead of filing his appeal in the Court of Common Pleas in New Haven County, the county where he resided, filed his appeal in the Court of Common Pleas for Hartford County, the county where the defendant board is located. The plaintiff now claims that the lower court erred in dismissing his appeal because the venue provisions of § 4-183(b) are merely directory and not mandatory and failure strictly to comply with these provisions does not rise to the level of a jurisdictional defect. He also claims that it would not be fair to allow the lower court to dismiss his appeal for improper venue in light of the fact that the legislature amended § 4-183(b) in 1977 ³ to allow administrative appeals "to the superior court for Hartford County or for the county or judicial district wherein the aggrieved person resides ...." (Emphasis added.)

We have stated that " '(a)ppeals to courts from administrative agencies exist only under statutory authority. Tazza v. Planning & Zoning Commission, 164 Conn. 187, 190, 319 A.2d 393 (1972); East Side Civic Assn. v. Planning & Zoning Commission, 161 Conn. 558, 560, 290 A.2d 348 (1971). A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created. In re Nunez, 165 Conn. 435, 441, 334 A.2d 898 (1973); Chanosky v. City Building Supply Co., 152 Conn. 449, 451, 208 A.2d 337 (1965); 4 Am.Jur.2d, Appeal and Error, § 4.' " Royce v. Freedom of Information Commission, 177 Conn. 584, 587, 418 A.2d 939 (1979). See also Vecchio v. Sewer Authority, 176 Conn. 497, 502, 408 A.2d 254 (1979). In Royce, supra, we held that the time provisions of § 4-183(b) were mandatory and that lack of strict compliance would be fatal to an appeal. We can find no justification for treating the venue provisions of the same statute any differently. We have said that not only does the UAPA provide for uniform standards by which certain agency action is to be judged but that it provides a vehicle for judicial review as an alternative to preexisting statutes or in situations in which no appellate review was previously provided. McDermott v. Commissioner of Children & Youth Services, 168 Conn. 435, 440-41, 363 A.2d 103 (1975). This is the first time we have construed the venue provisions of the UAPA.

" 'Appellate jurisdiction is derived from the constitutional or statutory provisions by which it is created, and can be acquired and exercised only in the manner prescribed. Thus, the determination of the existence and extent of appellate jurisdiction depends upon the terms of the statutory or constitutional provisions in which it has its source.' 4 Am.Jur.2d 535, Appeal and Error, § 4." LaReau v. Reincke, 158 Conn. 486, 492, 264 A.2d 576 (1969); In re Nunez, 165 Conn. 435, 438, 334 A.2d 898 (1973). In this case, the legislature chose to confer exclusive appellate jurisdiction in appeals under the UAPA to "the court of common pleas in the county wherein the aggrieved person resides ...." " 'The decisive question here involves the appellate jurisdiction of a particular ... court to review a particular administrative decision; 'venue' in the usual sense is not involved.' " State ex rel. State Tax Commission v. Luten, 459 S.W.2d 375, 377 (Mo.1970). ⁴ See also Minnesota Valley Canning Co. v. Rehnblom, 242 Iowa 1112, 49 N.W.2d 553 (1951); Cooper, State Administrative Law, (1st Ed. 1965), Vol. II, pp. 613-14. "In many instances matters of venue are not determined either by general venue statutes or by statutes relating generally to actions against public officers but by specific provisions as to venue in administrative procedure acts or statutes relating to particular administrative agencies." 2 Am.Jur.2d, Administrative Law § 737. See also 73 C.J.S., Public Administrative Bodies and Procedure § 26(2), p. 320. Moreover, our conclusion that the provisions of § 4-183(b), as it was when the plaintiff took his appeal, were mandatory and not directory, is buttressed by the fact that § 4-183 selectively used the words "shall" and "may" in a number of its subsections. Section 4-183(b) provided that "(p)roceedings for review shall be instituted by filing a petition in the court of common pleas in the county wherein the aggrieved person resides ...." (Emphasis added.) It also stated that "(c)opies of the petition shall be served upon the agency and all parties of record." (Emphasis added.) Section 4-183(c), for example, provided "(t)he agency may grant, or the reviewing court may order, a stay upon appropriate terms." (Emphasis added.) The use of "shall" and "may" which are words "commonly mandatory and directory in connotation, (is) a factor that evidences affirmative selectivity of terms with specific intent to be distinctive in meaning.... (They) must then be assumed to have been used with discrimination and a full awareness of the difference in their ordinary meanings." Jones v. Civil Service Commission, 175 Conn. 504, 509, 400 A.2d 721 (1978). See Shulman v. Zoning Board of Appeals, 154 Conn. 426, 428-29, 226 A.2d 380 (1967); Blake v. Meyer, 145 Conn. 612, 616, 145 A.2d 584 (1958). There is nothing in § 4-183(b) expressive of any contrary intent. Thus, the words "shall" and "may" should be interpreted according to their plain and ordinary meaning. General Statutes § 1-1; Jones v. Civil Service Commission, supra. ⁵ As further support for our conclusion that the venue provision of § 4-183(b) is mandatory, we point to General Statutes § 38-62(c) which in providing for appeals from certain orders of the insurance commissioner provides that "(a)ny person aggrieved by any such order of the commissioner may appeal therefrom in accordance with the provisions of section 4-183, except venue for such appeal shall be in the judicial district of Hartford-New Britain." (Emphasis added). The venue provisions of § 4-183(b) are jurisdictional and "mandatory, and, if not complied with, render the appeal subject to abatement. Daley v. Board of Police Commissioners, 133 Conn. 716, 719, 54 A.2d 501 (1947)." Royce v. Freedom of Information Commission, supra, 177 Conn. at 587, 418 A.2d 939; see Savings Bank of Danbury v. Downs, 74 Conn. 87, 49 A. 913 (1901).

The fact that the legislature subsequently amended the statute to allow the very act which it had previously not allowed, i.e., to institute the action by petition filed in the Superior Court for Hartford County, is not persuasive and does not support the plaintiff's claim. See City Council v. Hall, 180 Conn. 243, 251, 429 A.2d 481 (1980). "A statute which provides that a thing shall be done in a certain way carries with it an implied prohibition against doing that thing in any other way." State ex rel. Barlow v. Kaminsky, 144 Conn. 612, 620, 136 A.2d 792 (1957); see State ex rel. Barnard v. Ambrogio, 162 Conn. 491, 498, 294 A.2d 529 (1972). Moreover, it is well settled that it can be assumed that in amending § 4-183(b), the legislature acted "to accomplish some purpose"; Brown v. Cato, 147 Conn. 418, 421, 162 A.2d 175 (1960). See In re Application of Plantamura, 149 Conn. 111, 176 A.2d 61 (1961), cert. denied, 369 U.S. 872, 82 S.Ct. 1141, 8 L.Ed.2d 275 (1962); and "we may not presume that the legislature has enacted futile or meaningless legislation." Hartford Electric Light Co. v. Sullivan, 161 Conn. 145, 152, 285 A.2d 352 (1971). " ' "The General...