Michelle Snyder v. Administrator, Unemployment Compensation Act et al. (2012)

RULING RE MOTION FOR TRANSCRIPT NO. 103

The plaintiff has moved the court to order the board of review to produce a transcript of the referee's hearing in the underlying administrative proceeding now on appeal pursuant to General Statutes § 31–249b.   The defendant, in a pleading dated May 30, 2012, has objected to the motion because, pursuant to Practice Book § 22–4, a transcript of the referee's hearing is considered for purposes of a motion to correct the findings of fact of the board of review.   The defendant further argues as follows:  Because the plaintiff did not file a motion to correct or a motion to extend the time in which to file a motion to correct within two weeks of the board's filing of the record in March 2012, a motion to correct would be untimely and must be denied.   Therefore, the motion for a transcript for purposes of a motion to correct must also be denied.

The trial court has previously stated:  “Practice Book sec. 22–1(c) ¹ provides that the court may order the defendant board on request of a party or on its own motion to prepare a transcript of the hearing before the referee.   This section is entirely separate from section 22–4 ² relating to motions to correct findings of the board, and there is nothing to indicate that the board's obligation to prepare a transcript is wholly dependent on the filing of a motion by the appellant under 22–4.   Indeed, the mention of the court's option to order a transcript suo moto underscores the independence of the two sections.

“Although the scope of the court's review of the factual record in unemployment compensation act appeals is strictly limited, ‘the court's ultimate duty is ․ to decide whether, in light of the evidence, the board of review has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion.’  (Emphasis added.)  Burnham v. Administrator, 184 Conn. 317, 322 (1981).   The proper discharge of the court's responsibility may, therefore, require an examination of at least parts of a transcript of the evidentiary proceedings before the referee, and it is not unreasonable per se for the plaintiff to request a transcript.”   JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of Hartford, Docket No. CV 97 0575801 (June 8, 2000, Maloney, J.) (27 Conn. L. Rptr. 342), rev'd on other grounds, 265 Conn. 413, 828 A.2d 603 (2003).

At least one court has declined to exercise its discretion to order a transcript pursuant to Practice Book § 22–1(c) when “[n]othing in the available record [suggested] to the court that it should exercise its discretion under the rule to order the board to prepare and verify such a transcript.”   Oquendo v. Administrator, Superior Court, judicial district of New Britain, Docket No. CV 11 5015518 (May 17, 2012, Shortall, J.T.R.).   Compare Keegan v. Administrator, Unemployment Compensation Act, Superior Court, Judicial District of Hartford, Docket No. CV 92 0515253 (July 29, 1996, Sheldon, J.) (ordering a transcript of the hearings before the referee and board when “the gravamen of the plaintiff's appeal [was] that he was denied due process of law by the decisions of the appeals referee and the [b]oard to restrict the evidence he could present ․” and when the board's decision was based, in part, on a tape recording of the testimony presented at the hearing before the referee).

In the present case, the board has filed a certified record with the court.   This record discloses that the plaintiff has not filed a timely motion to correct the findings of the board.   See Practice Book § 22–4 et seq.   The plaintiff, however, did not state in her pleadings that the purpose of her motion for a transcript of the hearing before the referee was to file a motion to correct.   Furthermore, pursuant to Practice Book § 22–1(c), the court may order the board to prepare and verify a transcript of the hearing before the referee regardless of whether the plaintiff filed a timely motion to correct.   See JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, supra, Superior Court, Docket No. CV 97 0575801.   Nonetheless, as in Oquendo, nothing in the available record of the present case suggests to the court that it should exercise its discretion under Practice Book § 22–1(c) to order a transcript of the hearing before the referee.   In addition, the only claim made by the plaintiff on this appeal is that the evidence she presented in the underlying administrative proceeding supports her contention that she left work with good cause attributable to her employer.   See General Statutes § 31–236(a)(2)(A).   In other words, unlike in Keegan, the plaintiff disputes only the factual findings of the board.

“A trial court's review of the findings of the board is circumscribed.   To the extent that an administrative appeal, pursuant to General Statutes § 31–249b, concerns findings of fact, a court is limited to a review of the record certified and filed by the board of review.   The court must not retry the facts nor hear evidence ․ [The court] cannot review the conclusions of the board when these depend upon the weight of the evidence and the credibility of witnesses ․ In the absence of a motion to correct the finding of the board, the court is bound by the board's finding.”  (Citations omitted;  internal quotation marks omitted.)  Warner v. Administrator, Unemployment Compensation Act, 135 Conn.App. 84, 88–89, 41 A.3d 348 (2012).

Accordingly, because in this appeal the court is bound by the board's findings of fact, a transcript of the hearing before the referee would serve no purpose.   Therefore, the motion is denied.

SO ORDERED.

BY THE COURT

PETER EMMETT WIESE, JUDGE

FOOTNOTES

FN1. Practice Book § 22–1(c) provides in relevant part:  “The judicial authority may, on request of a party to the action or on its own motion, order the board to prepare and verify to the court a transcript of the hearing before the referee in cases in which the board's decision was rendered on the record of such hearing ․” In the present case, the board reviewed the record of the hearing before the referee.  (Return of Record, p. 46).  FN1. Practice Book § 22–1(c) provides in relevant part:  “The judicial authority may, on request of a party to the action or on its own motion, order the board to prepare and verify to the court a transcript of the hearing before the referee in cases in which the board's decision was rendered on the record of such hearing ․” In the present case, the board reviewed the record of the hearing before the referee.  (Return of Record, p. 46)

FN2. Practice Book § 22–4 provides:  If the appellant desires to have the finding of the board corrected, he or she must, within two weeks after the record has been filed in the superior court, unless the time is extended for cause by the board, file with the board a motion for the correction of the finding and with it such portions of the evidence as he or she deems relevant and material to the corrections asked for, certified by the stenographer who took it;  but if the appellant claims that substantially all the evidence is relevant and material to the corrections sought, he or she may file all of it, so certified, indicating in the motion so far as possible the portion applicable to each correction sought.   The board shall forthwith upon the filing of the motion and of the transcript of the evidence, give notice to the adverse party or parties..  FN2. Practice Book § 22–4 provides:  If the appellant desires to have the finding of the board corrected, he or she must, within two weeks after the record has been filed in the superior court, unless the time is extended for cause by the board, file with the board a motion for the correction of the finding and with it such portions of the evidence as he or she deems relevant and material to the corrections asked for, certified by the stenographer who took it;  but if the appellant claims that substantially all the evidence is relevant and material to the corrections sought, he or she may file all of it, so certified, indicating in the motion so far as possible the portion applicable to each correction sought.   The board shall forthwith upon the filing of the motion and of the transcript of the evidence, give notice to the adverse party or parties.

Wiese, Peter E., J.