Herman v. Division of Special Revenue

• Decision Date: 12 June 1984
• Court: Connecticut Supreme Court
• Parties: David HERMAN v. DIVISION OF SPECIAL REVENUE.

Page 119

477 A.2d 119

193 Conn. 379

David HERMAN v. DIVISION OF SPECIAL REVENUE.

Supreme Court of Connecticut.

Argued Jan. 17, 1984.

Decided June 12, 1984.

Richard M. Sheridan, Asst. Atty. Gen., with whom were Brian J. Comerford, Laura F. Muggeo, Asst. Attys. Gen., and, on the brief, Joseph I. Lieberman, Atty. Gen., for appellant (defendant).

Stewart I. Edelstein, Bridgeport, with whom, on the brief, was Richard L. Albrecht, Bridgeport, for appellant (plaintiff).

Before PETERS, ARTHUR H. HEALEY, PARSKEY, SHEA and MENT, JJ.

MENT, Associate Justice.

This is an appeal and cross appeal from a judgment sustaining the defendant's denial of the plaintiff's request for reinstatement as a patron at a jai alai fronton.

The plaintiff, David Herman, was ejected from the Milford Jai Alai Fronton on or about June 22, 1979, by fronton personnel. The plaintiff, by letter, requested that the division of special revenue (hereinafter the division) reinstate him as a fronton patron and that a reinstatement hearing, if required, be held at the division's earliest convenience. The division acknowledged the request on March 10, 1980, stating "[t]here is no statutory and/or regulatory requirement that the Division conduct a hearing regarding patron reinstatement. However, in an attempt to be fair ... it is the Division's intention to grant your request." The division conducted a hearing on March 21, 1980, at which time evidence was taken, and the plaintiff appeared and testified on his own behalf. On April 10, 1980, the division denied the request stating that reinstatement was not in the best interest of the state or jai alai and that circumstances relative to the ejection had not materially changed since June 22, 1979.

The plaintiff appealed this decision to the Superior Court. The division then filed a motion to dismiss for lack of jurisdiction on the ground that the gratuitous hearing was not required by statute or regulation and therefore that its decision was not appealable. The motion was denied by the court, Wright, J., on July 9, 1980. The division raised the same issue at trial by way of a special defense. At trial, the court, N. O'Neill, J., without addressing the issue of jurisdiction, dismissed the appeal "because the defendant's order denying plaintiff's reinstatement is a nullity and the court cannot order the defendant to grant reinstatement, for that too would be a nullity." The determinative issue on appeal is whether the plaintiff had a statutory right to a hearing which subsequently provided access to the court through the appeal provisions of the Uniform Administrative Procedure Act (hereinafter the UAPA). General Statutes §§ 4-166 through 4-189. This issue, being dispositive of the case, will be addressed first.

The UAPA "applies to all agencies and agency proceedings not expressly exempted." General Statutes § 4-185. The right to judicial review of an administrative decision under the UAPA is governed by § 4-183(a) which provides in pertinent part: "A person who has exhausted all administrative remedies ... and who is aggrieved by a final decision in a contested case is entitled to judicial review by way of appeal under this chapter ...." (Emphasis added.)

An "agency" is defined for the purposes of the UAPA as "each state board, commission, department or officer ... authorized by law to make regulations or to determine contested cases." General Statutes § 4-166(1). The division of special revenue, ¹ as established by § 12-557c of the General Statutes, is within the department of revenue services for administrative purposes only ² and is responsible for implementing and administering the provisions of chapters 226 and 226b of the General Statutes. The division is empowered to adopt regulations governing the operation of jai alai frontons and to insure the integrity and security of fronton operations. ³ We assume for the purposes of this decision that the division of special revenue is an "agency."

A "contested case" is defined as "a proceeding, including but not restricted to rate-making, price fixing and licensing, in which the legal rights, duties or privileges of a party are required by statute to be determined by an agency after an opportunity for hearing or in which a hearing is in fact held ...." General Statutes § 4-166(2); see Rybinski v. State Employees' Retirement Commission, 173 Conn. 462, 378 A.2d 547 (1977); Taylor v. Robinson, 171 Conn. 691, 372 A.2d 102 (1976). The test for determining contested case status has been well established and requires an inquiry into three criteria, to wit: (1) whether a legal right, duty or privilege is at issue, (2) and is statutorily required to be determined by the agency, (3) through an opportunity for hearing or in which a hearing is in fact held. See Taylor v. Robinson, supra, 697, 372 A.2d 102.

The plaintiff urges this court to interpret § 4-166(2) as defining as a "contested case" any proceeding in which "a hearing is in fact held." ⁴ A "hearing" is generally defined as a "[p]roceeding of relative formality ... generally public, with definite issues of fact and of law to be tried, in which ... parties proceeded against have [a] right to be heard ...." (Emphasis added.) Black's Law Dictionary (5th Ed.). In order for a proceeding to qualify as a "hearing" for the purposes of § 4-166(2), the party must have a statutory or regulatory right to be heard by the agency. ⁵ See Rybinski v. State Employees' Retirement Commission, 173 Conn. 462, 469-71, 378 A.2d 547 (1977).

At the time of the plaintiff's request for reinstatement the division had promulgated § 12-574-D25(c)(2) which stated: "An association conducting jai alai games under license from the commission shall eject from its grounds all unauthorized persons, known undesirables, touts, persons believed to be bookmakers, persons under suspension or ruled off, persons of lewd or immoral character, and persons guilty of boisterous or disorderly conduct or other conduct detrimental to jai alai or the public welfare." ⁶ Regs., Conn. State Agencies [193 Conn. 384] *123s 12-574-D25(c)(2). Except for the quoted section, there existed no additional statutory or regulatory enactments which provided for patron ejectment or reinstatement. ⁷ Section 12-574-D25(c)(2) was directed solely to those licensed associations under the division's jurisdiction. Furthermore, an examination of the regulations in force at the time; Regs., Conn. State Agencies § 12-574-D1 et seq.; indicates that the rules and regulations were directed to "associations," or "licensees" together with their employees and the players. Although the division had authority to order the association to comply with its regulations, the trial court was correct in concluding that "[t]here exists no procedure for the commissioner to either eject or reinstate a patron."

Although the "reinstatement hearing" exhibited the characteristic elements of a hearing in that evidence was presented, witnesses were heard, and testimony was taken in an adversarial setting, ⁸ the plaintiff has failed to demonstrate that the division was statutorily required to determine the eligibility for reinstatement of an ejected patron. Therefore, the proceeding, lacking the essential element of a "right to be heard," remained gratuitous and did not qualify as a "hearing in fact held." Consequently, there was no contested case to which the provisions of the UAPA might apply. ⁹ See Rybinski v. State Employees' Retirement Commission, 173 Conn. 462, 378 A.2d 547 (1977); Taylor v. Robinson, 171 Conn. 691, 372 A.2d 102 (1976). As such the trial court had no jurisdiction to entertain the plaintiff's appeal and the dismissal was proper.

"Where the trial court reaches a correct decision but on mistaken grounds, this court has repeatedly sustained the trial court's action if proper grounds exist to support it." Favorite v. Miller, 176 Conn. 310, 317, 407 A.2d 974 (1978).

There is no error.

In this opinion the other Judges concurred.

1 General Statutes § 12-557c(c) provides: "Whenever the term commission on special revenue occurs or is referred to ... it shall be deemed to refer to the division of special revenue ...."

2 "[General Statutes] Sec. 4-38f. 'ADMINISTRATIVE PURPOSES ONLY,' DEFINED. AGENCIES ASSIGNED TO DEPARTMENTS FOR ADMINISTRATIVE PURPOSES ONLY; AGENCIES' POWERS; DEPARTMENTS' DUTIES. (a) An agency assigned to a department for administrative purposes only shall: (1) Exercise any quasi-judicial, rule-making or regulatory authority, licensing and policy-making functions which it may have independent of such department and without approval or control of the department; (2) prepare its budget, if any, and submit its budgetary requests through the department, and (3) hire its own personnel or enter into contracts, if authorized by law, or if the general assembly provides or authorizes the expenditure of funds therefor."

3 General Statutes § 12-574(j) states in relevant part: "The executive director ... shall adopt regulations governing the operation of the tracks, stables, kennels and frontons, including the regulation of betting in connection therewith, to insure the integrity and security of the conduct of meetings held pursuant to this chapter."

4 The plaintiff argues that Rybinsky v. State Employees' Retirement Commission, 173 Conn. 462, 378 A.2d 547 (1977), overruled Taylor v. Robinson, 171 Conn. 691, 372 A.2d 102 (1976), by redefining the test for a contested case. The plaintiff's view clearly misconstrues the holding of Rybinski. A close reading indicates that the court concluded that there existed no statutory requirement that the legal right be determined by the agency. The court in Rybinski noted that, in contrast to Murphy v. Berlin Board of Education, 167 Conn. 368, 373, 355 A.2d 265 (1974), and McDermott v. Commissioner of Children & Youth Services, 168 Conn. 435, 439, 363 A.2d 103 (1975), there was no statutory requirement that a hearing be held, but even...