Glastonbury Volunteer Ambulance Ass'n, Inc. v. Freedom of Information Com'n

• Decision Date: 16 November 1993
• Docket Number: No. 14720,14720
• Citation: 633 A.2d 305,227 Conn. 848
• Court: Connecticut Supreme Court
• Parties: GLASTONBURY VOLUNTEER AMBULANCE ASSOCIATION, INC. v. FREEDOM OF INFORMATION COMMISSION et al.

Page 305

633 A.2d 305

227 Conn. 848

GLASTONBURY VOLUNTEER AMBULANCE ASSOCIATION, INC. v. FREEDOM OF INFORMATION COMMISSION et al.

No. 14720.

Supreme Court of Connecticut.

Argued Sept. 21, 1993.

Decided Nov. 16, 1993.

Craig A. Raabe, for appellant (plaintiff).

Catherine Wassel-Nasto, Com'n counsel, for appellee (named defendant), with whom, joining in the brief, was Joel M. Ellis, for appellees (defendant Richard N. Bergen et al.)

Before PETERS, C.J., and CALLAHAN, BORDEN, NORCOTT and PALMER, JJ.

BORDEN, Associate Justice.

The dispositive issue of this appeal ¹ is whether the filing in court of an administrative appeal beyond the forty-five day period provided in General Statutes § 4-183(c) ² of the Uniform Administrative Procedure Act (UAPA) deprives the trial court of subject matter jurisdiction over the administrative appeal. The plaintiff, the Glastonbury Volunteer Ambulance Association, Inc., appeals from the judgment of the trial court dismissing the plaintiff's appeal from a decision of the defendant freedom of information commission (commission). ³ The commission had concluded that the plaintiff is a "public agency" within the meaning of General Statutes § 1-18a (a) ⁴ and is therefore subject to the Freedom of Information Act, title 1, chapter 3 of the General Statutes (act).

The plaintiff claims that the trial court improperly dismissed its appeal because the forty-five day time period provided in § 4-183(c) applies only to the service of an appeal and does not apply to the filing of an administrative appeal. The plaintiff also claims that, even if the time period applies to the filing of an appeal, a failure to meet that time limitation is not a matter of subject matter jurisdiction. ⁵ We affirm the judgment of the trial court.

The facts are undisputed. In March, 1991, Richard Bergen and Susan Ellis filed a complaint with the commission, claiming that the plaintiff had violated certain provisions of the act. In response, the plaintiff asserted that it was not a "public agency" subject to the act. After a hearing, the commission concluded that the plaintiff was a public agency within the meaning of the act and ordered the plaintiff to comply with the act.

On November 20, 1991, the commission mailed its final decision to all parties. At the plaintiff's direction, a deputy sheriff served copies of the plaintiff's appeal from the commission's final decision on all the parties on January 2, 1992, and on the same day the sheriff mailed the appeal, together with his return of service, to the clerk of the trial court. The clerk of the court received the appeal on January 9, 1992, fifty days after the mailing of the commission's decision.

The trial court, having examined the file, determined sua sponte that its subject matter jurisdiction was in question because the plaintiff had filed the appeal beyond the forty-five day deadline provided in § 4-183(c). After a hearing, the trial court dismissed the appeal for lack of subject matter jurisdiction. This appeal followed.

The plaintiff does not dispute that the UAPA governs its right to appeal from the decision of the commission. ⁶ Nor does the plaintiff dispute that, prior to the amendments to the UAPA in 1988, the failure to file an appeal within the time period set by § 4-183 deprived the trial court of subject matter jurisdiction. Rogers v. Commission on Human Rights & Opportunities, 195 Conn. 543, 550, 489 A.2d 368 (1985). The plaintiff claims, however, that the amendments to § 4-183 enacted by the legislature in 1988; see Public Acts 1988, No. 88-317, § 23; eliminated the forty-five day period for filing an appeal and substituted therefor the general return of process provisions of General Statutes §§ 52-48 ⁷ and 52-46a. ⁸ Specifically, the plaintiff argues that the forty-five day requirement applies only to the service of the appeal because, in the first sentence of § 4-183(c), the legislature used the word "shall" before the word "serve" but not before the word "file." We disagree.

Twice recently we have stated that § 4-183(c), as revised in 1988, requires that an appeal be filed within the forty-five day period. "Section 4-183(c), as revised by [Public Acts 1988, No. 88-317] changed the time period to forty-five days for both the filing of an administrative appeal and the service of the appeal upon all parties of record." Raines v. Freedom of Information Commission, 221 Conn. 482, 487, 604 A.2d 819 (1992). "Section 4-183(c) provides, in general terms, that an administrative appeal must, within forty-five days of delivery of the final decision to the person appealing, be filed with the court and served on the agency or the attorney general and on each party listed in the decision." Tolly v. Department of Human Resources, 225 Conn. 13, 19, 621 A.2d 719 (1993). Although the precise issue presented in this case was not before us in those cases, upon plenary consideration of the issue now before us, we conclude that our previous dicta were correct.

The plain language of § 4-183(c), read in the light of ordinary rules of English grammar and sentence structure, compels the conclusion that both the filing and the service of the appeal must be accomplished within the forty-five day period. The first sentence of the section begins with the adverbial phrase, "[w]ithin forty-five days after mailing of the final decision." The subject of the sentence is "person." Two verbs then follow: "serve" and "file." "Serve" is preceded by "shall," but "file" is not. The plainly evident intent however, is that "shall" is to be read together with both "serve" and "file," and that the adverbial phrase, "within forty-five days," modifies both verbs. This conclusion becomes even clearer upon reading the second sentence, which begins with the adverbial phrase, "[w]ithin that time." Thus, throughout the first two sentences there is an emphasis on completion of required acts within forty-five days.

The conclusion that § 4-183(c) requires both the filing and the service of the appeal within the forty-five day period is buttressed by its legislative history. Section 4-183(c) is the outgrowth of the fact that "[i]n 1988, the legislature enacted a comprehensive revision of the UAPA, based upon recommendations made after nearly three years of study and review by the Connecticut law revision commission." Tolly v. Department of Human Resources, supra, 225 Conn. at 26, 621 A.2d 719. With only slight alteration, § 24 of the bill proposed by the law revision commission ultimately became General Statutes § 4-183(c). Compare 1987 Thirteenth Annual Report of the Connecticut Law Revision Commission to the General Assembly, March, 1988, p. 63 (law revision commission report). The commentary to § 24 of the proposal makes clear not only that service must be made within forty-five days, but that "[t]he appeal must also be filed in the court within forty-five days." Law revision commission report, p. 39. There is nothing in the committee hearings or floor debate on Public Acts 1988, No. 88-317 to suggest that the legislature intended to depart from this earlier and clearly expressed intent.

Indeed, the plaintiff's argument that the legislature intended to incorporate into § 4-183(c) the return of process provisions of §§ 52-48 and 52-46a finds no support in either the language or the legislative history of § 4-183(c). Moreover, the plaintiff's argument is contrary to the general intent of Public Acts 1988, No. 88-317, namely, "to simplify and make more fair the process of appealing an agency decision under the UAPA." Tolly v. Department of Human Resources, supra, 225 Conn. at 29-30, 621 A.2d 719.

Having concluded that § 4-183(c) requires the filing of an appeal within the forty-five day time period, we turn to the question of whether the 1988 legislative amendments to the UAPA reversed the prior law that a failure to meet that time limitation deprives the trial court of subject matter jurisdiction over the appeal. See Rogers v. Commission on Human Rights & Opportunities, supra. We conclude that the amendments did not change the existing law, so that a failure to meet the time limitation remains a subject matter jurisdictional defect.

In analyzing whether a statutory time limitation affects the right to appeal, we look to whether the legislature intended the time limitation to be jurisdictional. The legislative intent is to be discerned by reference to the language of the statute, its legislative history and surrounding circumstances, the policy the limitation was designed to implement, and the statute's relationship to the existing legislation and common law principles governing the same subject matter. Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 764, 628 A.2d 1303 (1993). In light of the strong presumption in favor of jurisdiction, "we require a strong showing of a legislative intent to create a time limitation that, in the event of noncompliance, acts as a subject matter jurisdictional bar." Id., at 765, 628 A.2d 1303.

We conclude that such a showing has been made in this case. The legislature intended the forty-five day time limitation for filing of an appeal under the UAPA to remain a prerequisite to subject matter jurisdiction. Our conclusion is supported by the language of the statute, particularly in light of its jurisprudential background and legislative history.

Prior to the 1988 amendments, General Statutes (Rev. to 1989) § 4-183(b) provided: "Proceedings for such appeal shall be instituted by filing a petition ... within forty-five days after mailing of the notice of the final decision of the agency...." ⁹ That language had been held to limit subject matter jurisdiction. Rogers v. Commission on Human Rights & Opportunities, supra. Although the 1988 amendments that resulted in § 4-183(c); see footnote 2; changed the terminology from "petition" to "appeal," and rearranged the sentence structure for purposes of clarity, those linguistic...