Tolly v. Department of Human Resources

• Decision Date: 09 March 1993
• Docket Number: No. 14515,14515
• Court: Connecticut Supreme Court
• Parties: Angelita TOLLY v. DEPARTMENT OF HUMAN RESOURCES.

Page 719

621 A.2d 719

225 Conn. 13

Angelita TOLLY v. DEPARTMENT OF HUMAN RESOURCES.

No. 14515.

Supreme Court of Connecticut.

Argued Dec. 8, 1992.

Decided March 9, 1993.

Ann McClure, Hartford, for appellant (plaintiff).

Judith A. Merrill, Asst. Atty. Gen., with whom, on the brief, were Richard Blumenthal, Atty. Gen., and Richard J. Lynch, Asst. Atty. Gen., for appellee (defendant).

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

BORDEN, Associate Justice.

The sole issue in this appeal is whether service of an administrative appeal by certified mail pursuant to General Statutes § 4-183(c)(1) ¹ of the Uniform Administrative Procedure Act (UAPA) requires a citation. The plaintiff, Angelita Tolly, appealed to the Superior Court from a decision of the defendant, the department of human resources, revoking her family day care registration. The trial court granted the defendant's motion to dismiss the administrative appeal because the appeal lacked a citation.

The Appellate Court affirmed the judgment of dismissal in a per curiam decision; Tolly v. Department of Human Resources, 26 Conn.App. 938, 600 A.2d 1390 (1992); deeming the issue controlled by its three prior decisions: Shapiro v. Carothers, 23 Conn.App. 188, 579 A.2d 583 (1990); Senie v. Carothers, 22 Conn.App. 253, 576 A.2d 1312 (1990); and DelVecchio v. Department of Income Maintenance, 18 Conn.App. 13, 555 A.2d 1007 (1989). We granted certification to appeal on the following issue: "Did the Appellate Court correctly affirm the judgment of the Superior Court dismissing a petition for administrative appeal that was properly served on all necessary parties by United States certified mail as expressly permitted by Connecticut General Statutes § 4-183(c)(1), for the stated reason that no citation form was appended to the petition?" Tolly v. Department of Human Resources, 221 Conn. 922, 608 A.2d 687 (1992). We now reverse.

The facts are undisputed. On December 7, 1990, the defendant issued a final decision revoking the plaintiff's family day care home registration. On January 17, 1991, the plaintiff filed in the trial court an administrative appeal challenging the validity of that decision. The administrative appeal identified the plaintiff and the defendant, the specific judicial district and location of the court, the return date, and the date and nature of the decision from which the plaintiff appealed. ² It did not contain a citation, or any language approximating a citation. Attached to the appeal was a certification executed by the plaintiff's counsel indicating that she had served the appeal by certified mail on twelve named persons, including the commissioner of human resources and the attorney general. On January 31, 1991, the plaintiff's counsel filed an "Affidavit Regarding Service of Administrative Appeal Dated January 16, 1991," indicating that she had mailed, by postage prepaid certified mail, return receipt requested, a copy of the appeal to the twelve named persons, and attaching their return receipts dated January 17, 1991.

On February 20, 1991, the defendant moved to dismiss the appeal, asserting that "[t]he court has no subject matter jurisdiction because the plaintiff failed to include a citation in her appeal." The trial court granted the motion on the authority of the Appellate Court's decision in Senie v. Carothers, supra. This appeal followed.

The plaintiff raises several claims on appeal, all of which, however, distill into the fundamental claim that proper service of an appeal pursuant to § 4-183(c)(1) does not require a citation. We agree.

Both the plaintiff and the defendant agree, as do we, that whether service of process by certified mail pursuant to § 4-183(c)(1) requires a citation is a matter of statutory construction. Thus, it is not persuasive that, as the plaintiff suggests, Practice Book § 49 provides that the judicial department form for a summons in a civil action "shall not be used in ... [a]dministrative appeals." ³ Nor is it persua sive that, as the defendant points out, Practice Book § 256 provides that, '[f]or purposes of these rules, administrative appeals are civil actions.' ⁴

"In administrative appeals, the citation is the writ of summons that directs the sheriff or some other proper officer to seek out the defendant agency and to summon it to a particular sitting of a particular court on a specified day. 1 E. Stephenson, Connecticut Civil Procedure (2d Ed.1970) § 18. The citation, signed by competent authority, is the warrant which bestows upon the officer to whom it is given for service the power and authority to execute its command." (Internal quotation marks omitted.) McQuillan v. Department of Liquor Control, 216 Conn. 667, 671, 583 A.2d 633 (1990); see also Hillman v. Greenwich, 217 Conn. 520, 525, 587 A.2d 99 (1991) (citation is command to duly authorized officer to summon defendant to appear in court on specific day to answer complaint); Sheehan v. Zoning Commission, 173 Conn. 408, 413, 378 A.2d 519 (1977) (citation is direction to officer to summon agency whose decision is being appealed). A proper citation, therefore, requires not only the signature of a competent authority, such as a commissioner of the Superior Court, but the direction to a competent authority, such as a sheriff, constable or indifferent person, to summon the defendant to appear in court. 1 E. Stephenson, supra.

With this background in mind, we turn to the question of whether § 4-183(c)(1) requires a citation. Considering the text of § 4-183(c)(1), in the context of the statute as a whole, its purpose and its legislative history, we conclude that service of process pursuant to § 4-183(c)(1) does not require a citation.

Section 4-183(c)(1) provides: "Service of the [administrative] appeal shall be made by (1) United States mail, certified or registered, postage prepaid, return receipt requested, without the use of a sheriff or other officer." There is nothing in this plain language that suggests the need for anything more than mailing copies of the appeal in the specified manner, as the plaintiff did in this case. The text does not, either directly or by way of implication, provide for a citation.

Furthermore, reading the statute as a whole reinforces the conclusion that no citation is required for service pursuant to § 4-183(c)(1), in contrast to service pursuant to § 4-183(c)(2). See footnote 1. 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. It further provides that such service shall be made by one of two alternative methods: "by (1) United States mail, certified or registered, postage prepaid, return receipt requested, without the use of a sheriff or other officer, or (2) personal service by a proper officer or indifferent person making service in the manner as complaints are served in ordinary civil actions."

Personal service pursuant to § 4-183(c)(2) requires, by clear implication, a citation commanding the "proper officer or indifferent person" to make service "in the same manner as complaints are served in ordinary civil actions." "The citation that is used to commence an administrative appeal is analogous to the writ used to commence a civil action." Brunswick v. Inland Wetlands Commission, 222 Conn. 541, 542 n. 1, 610 A.2d 1260 (1992). The process of serving a complaint in an ordinary civil action requires the use of a writ of summons directed to a sheriff or other authority competent to make service of process. See General Statutes §§ 52-45a and 52-45b. Indeed, personal service by such an authority without a writ of summons has long been regarded as a nullity, because without such a writ the sheriff is no more than a delivery person. Hillman v. Greenwich, supra, 217 Conn. at 525, 587 A.2d 99.

The service required by § 4-183(c)(2) stands in marked contrast to service pursuant to § 4-183(c)(1), which specifically provides that service by certified or registered mail may be "without the use of a sheriff or other officer." That contrast underscores the difference between service made pursuant to the two different statutory methods. Whereas service pursuant to § 4-183(c)(2) requires an authority competent to make service and, therefore, a citation, service pursuant to § 4-183(c)(1), by specifically eliminating the intervention of a "sheriff or other officer" for purposes of service, also eliminates the necessity of a citation. Indeed, because a citation requires, not only a competent signing authority, but a command by that signing authority to a competent serving authority, and because under § 4-183(c)(1) no "sheriff or other officer" is required, it is difficult to conceive what the language of a proper citation would be under § 4-183(c)(1). ⁵ Absent a "sheriff or other officer" to receive such a command, a citation would be meaningless. We do not ascribe to the legislature the intent to require the performance of a meaningless act. See, e.g., Atwood v. Regional School District No. 15, 169 Conn. 613, 621, 363 A.2d 1038 (1975).

The conclusion that § 4-183(c)(1) does not require a citation is buttressed by reference to § 4-183(d). ⁶ That subsection provides that a record of proper service be timely filed with the clerk of the court in either of two ways: (1) by the filing of "the sheriff's return"; or (2) by the appellant's filing "an affidavit ... stating the date and manner in which a copy of the appeal was served on each party and on the agency that rendered the final decision...." This latter method of evidencing service of process indicates a legislative awareness that, as in this case, there are instances in which no serving officer, and therefore no citation, is necessary because the appealing party herself effected service pursuant to § 4-183(c)(1)...