Kindl v. Dept. of Social Services

• Decision Date: 07 May 2002
• Docket Number: (AC 21918)
• Court: Connecticut Court of Appeals
• Parties: JOHN KINDL, TEMPORARY ADMINISTRATOR (ESTATE OF RAYMOND PAGNI) v. DEPARTMENT OF SOCIAL SERVICES

69 Conn. App. 563

795 A.2d 622

JOHN KINDL, TEMPORARY ADMINISTRATOR (ESTATE OF RAYMOND PAGNI) v. DEPARTMENT OF SOCIAL SERVICES

(AC 21918)

Appellate Court of Connecticut.

Argued February 15, 2002.

Officially released May 7, 2002.

Lavery, C. J., and Bishop and Peters, Js. Thomas J. Riley, with whom was Shawn L. Rutchick, legal intern, for the appellant (plaintiff).

Patrick B. Kwanashie, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Richard J. Lynch, assistant attorney general, for the appellee (defendant).

Opinion

PETERS, J.

The right to take an appeal from the decision of an administrative agency is purely statutory. General Statutes § 4-183 (c) specifies the manner in which, to take an appeal, an administrative appellant must serve process on the agency in question. In the absence of proper service of process, the Superior Court must dismiss the appeal because it lacks subject matter jurisdiction. Practice Book § 10-33. The only issue in this case is whether there are any circumstances under which an administrative appeal can go forward despite partial noncompliance with the statute. The issue arises in the context of service of process by someone who had no statutory authority to do so. Unlike the trial court, we conclude that this defect in the service of process did not deprive the trial court of subject matter jurisdiction. Accordingly, we reverse the judgment and remand the case for further proceedings.

The plaintiff, John Kindl, is the temporary administrator of the estate of Raymond Pagni. He sought to appeal from a decision of the defendant department of social services that had turned down his request for reimbursement of certain medical expenses incurred by Pagni.

The defendant responded to the plaintiffs appeal on its merits. Because it filed no motion to dismiss, it waived any claim of lack of personal jurisdiction. See Practice Book § 10-32; Pitchell v. Hartford, 247 Conn. 422, 433, 722 A.2d 797 (1999); Knipple v. Viking Communications, Ltd., 236 Conn. 602, 605, 674 A.2d 426 (1996); Brunswick v. Inland Wetlands Commission, 222 Conn. 541, 550-51, 610 A.2d 1260 (1992); United States Trust Co. v. Bohart, 197 Conn. 34, 39, 495 A.2d 1034 (1985).

The defendant's failure to file a motion to dismiss was not, however, a waiver of a claim of lack of subject matter jurisdiction. That claim properly may be raised at any time by the parties or by the court. Practice Book § 10-33; Daley v. Hartford, 215 Conn. 14, 27-28, 574 A.2d 194, cert. denied, 498 U.S. 982, 111 S. Ct. 513, 112 L. Ed. 2d 525 (1990). "[W]henever a court discovers that it has no jurisdiction, it is bound to dismiss the case...." (Internal quotation marks omitted.) Zoning Commission v. Fairfield Resources Management, Inc. 41 Conn. App. 89, 103, 674 A.2d 1335 (1996), citing Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 557, 529 A.2d 666 (1987). In this case, the trial court, sua sponte, raised the question of subject matter jurisdiction.

The court concluded that it lacked subject matter jurisdiction because § 4-183 (c) requires service of process to be made either by a "proper officer" or by an "indifferent person." It is undisputed that, in this case, service on the defendant was made by an employee in the office of the plaintiff's counsel. The employee was neither a "proper officer" nor an "indifferent person." It is equally undisputed that, in every other respect, service met the requirements of the statute. The defendant received proper appeal papers within the time specified by the statute. The defendant has not claimed that it was prejudiced by the fact that process was served by someone who was not an "indifferent person."

The court held that § 4-183 (c) should be construed strictly so that any deviation from the statutory requirements for an administrative appeal automatically deprived the court of subject matter jurisdiction to hear the appeal. In effect, the court equated the failure to serve process by an "indifferent person" with a failure to serve process at all.

In his appeal to this court, the plaintiff challenges the validity of the trial court's strict construction of § 4-183 (c). Because a question of statutory construction raises an issue of law, our review is plenary. See, e.g., State v. Russo, 259 Conn. 436, 447, 790 A.2d 1132 (2002); Davis v. Norwich, 232 Conn. 311, 317, 654 A.2d 1221 (1995); Masko v. Wallingford, 67 Conn. App. 276, 280, 786 A.2d 1209 (2001). The scope of our plenary review is governed by well established principles. "[I]t is axiomatic that the process of statutory interpretation involves a reasoned search for the intention of the legislature.... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." (Internal quotation marks omitted.) Connelly v. Commissioner of Correction, 258 Conn. 394, 403, 780 A.2d 903 (2001); Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 26, 717 A.2d 77 (1998). In undertaking that plenary review in this case, we are mindful of the principle that legislation is to be construed in light of a strong presumption in favor of jurisdiction. See, e.g., Williams v. Commission on Human Rights & Opportunities, 257 Conn. 258, 266, 777 A.2d 645 (2001); Banks v. Thomas, 241 Conn. 569, 582-83, 698 A.2d 268 (1997); Olympia Mortgage Corp. v. Klein, 61 Conn. App. 305, 307, 763 A.2d 1055 (2001).

In his argument for reversal, the plaintiff contends that the trial court's construction of § 4-183 (c) was improper because it ran counter to the policy behind the statute as that policy has been interpreted by our Supreme Court. The defendant argues, to the contrary, that numerous Connecticut precedents have adopted a strict construction of § 4-183 (c). Such a construction is especially appropriate, in its view, because the use of the word "shall" demonstrates the intent of the legislature that compliance with each of the stated requirements for service of process is mandatory. We agree with the plaintiff.

STATUTORY TEXT

Construction of a statute starts with an examination of the statutory text. In relevant part, § 4-183 (c) describes service of an administrative appeal as follows: "Service of the appeal shall be made by ... (2) personal service by a proper officer or indifferent person making service in the same manner as complaints are served in ordinary civil actions...."

Contrary to the position taken by the defendant, the legislature's use of the word "shall" is not sufficient to make compliance with this aspect of the statute mandatory. "While we generally will not look for interpretative guidance beyond the language of the statute when the words of that statute are plain and unambiguous ... our past decisions have indicated that the use of the word shall, though significant, does not invariably create a mandatory duty.... In order to determine whether a statute's provisions are mandatory we have traditionally looked beyond the use of the word shall and examined the statute's essential purpose.... The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience.... If it is a matter of substance, the statutory provision is mandatory. If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words.... A statutory provision of this type directs what is to be done but does not invalidate any action taken for failure to comply.... Furthermore, if there is no language that expressly invalidates any action taken after noncompliance with the statutory provisions, the statute should be construed as directory." (Citations omitted; internal quotation marks omitted.) State v. Trahan, 45 Conn. App. 722, 730-31, 697 A.2d 1153, cert. denied, 243 Conn. 924, 701 A.2d 660 (1997); see also Martinez v. Dept. of Public Safety, 258 Conn. 680, 685, 784 A.2d 347 (2001). Applying Trahan to the facts of this case, we conclude that the use of "shall" in this statute, in all likelihood, indicates an intent that the requirement of service by an "indifferent person" be directory rather than mandatory.

STATUTORY POLICY

In the absence of other illuminating language in the text of § 4-183 (c), we turn to the statute's legislative history and the circumstances surrounding its enactment and amendment. That history was comprehensively reviewed and explained in Bittle v. Commissioner of Social Services, 249 Conn. 503, 734 A.2d 551 (1999), a case in which the question was whether service through the use of certified mail was timely when it was mailed, but not delivered, within the statutory period for such service.

In Bittle, the court read the statute's legislative history as demonstrative of a legislative intent "to enhance rather than constrain" the rights of an administrative appellant. Id., 506-507. Amendments subsequent to the enactment of the statute were designed to "simplify administrative procedures in order to make the administrative process easier, and thus more practically useful to the public." Id., 514. The 1988 amendment of § 4-183, for example, was intended to "greatly enhance the administrative practices in the state of Connecticut and enhance them from the point of view of the consumer, the public." (Internal quotation marks omitted.) Id., 513, citing 31 S. Proc., Pt. 7, 1988 Sess., p. 2481, remarks of Senator James H. Maloney.¹

In light of this unbroken...