William Rubenstein, Commissioner of Consumer Protection v. Vacation Smart International, Inc. (2013)

Ruling on Motion to Dismiss

The defendant, Vacation Smart International, Inc., moves for dismissal of this proceeding to enforce an investigatory subpoena on the ground that the plaintiff, the state commissioner of consumer protection (commissioner), did not commence the proceeding with a writ of summons as required by Practice Book § 8–1 and General Statutes § 52–45a.   The court holds that the rule requiring a writ of summons does not apply to this type of statutory proceeding and therefore denies the motion to dismiss.

I

In July 2012, the commissioner issued a subpoena to the defendant under the provisions of the Connecticut Unfair Trade Practices Act (CUTPA);  General Statutes §§ 42–110a et seq.;   as part of his investigation into the marketing and sale of travel club memberships to Connecticut consumers.   See General Statutes § 42–110d(b).¹  The defendant complied in part and objected in part.   The commissioner then brought this proceeding to enforce the subpoena under General Statutes § 42–110k.²  The commissioner served on the defendant the following documents:  a typed summons, a verified application for an order to show cause, a signed order to show cause, a proposed final order, and a five-page document that sets out the commissioner's allegations and contains a prayer for relief.

The defendant now moves to dismiss on the ground that the commissioner did not serve a writ of summons that complies with Practice Book § 8–1 ³ and General Statutes § 52–45a.⁴  In particular, the defendant complains that the summons used by the commissioner did not contain a return date and a full description of the parties.

II

Paragraph (a) of § 8–1 provides that “[m]esne process in civil actions shall be a writ of summons ․ describing the parties, the court to which it is returnable and the time and place of appearance, and shall be accompanied by the plaintiff's complaint.” ⁵  It also provides that, except as otherwise provided in paragraph (b), the writ of summons shall be “on a form substantially in compliance with” various judicial branch forms.   Paragraph (b) then provides that these judicial branch forms “shall not be used in the following actions and proceedings ․” Included in these proceedings are a number of miscellaneous matters such as probate appeals, administrative appeals, and various “applications” such as applications for change of name, for custody, and for visitation.

These exceptions have in common that they are not the typical actions for money damages, summary process, or dissolution.   Rather, the exceptions tend to be more specialized and, in cases such as applications for a change of name, matters of more limited scope.

It is true that § 8–1(b) does not include an application to enforce an investigative subpoena under CUTPA.   However, Connecticut authorities have long recognized that several types of special proceedings not listed in § 8–1(b) do not require a writ of summons.   Indeed, the Supreme Court stated in 1950 that:  “Not every proceeding requires service of process before it gets into court ․ Among them are an application relating to the taking of property by eminent domain under General Statutes, 2267, an appeal from probate and a foreclosure action in which the defendant cannot be served because he is out of the state.   To these might be added an application for the reduction of an attachment under 8044 and a writ of prohibition under 8226.   In all of these instances the case is in court upon the filing of the application;  the notice to the adverse party comes thereafter.”  Boltuch v. Rainaud, 137 Conn. 298, 300–01, 77 A.2d 94 (1950).⁶  The Appellate Court has specifically held that, in a condemnation case in which a statute allows a person aggrieved by a statement of compensation to “apply to” the Superior Court for review, an application rather than a separate civil action is legally sufficient.   Killingly v. Wells, 18 Conn.App. 508, 511–13, 558 A.2d 1039, cert. denied, 212 Conn. 807, 563 A.2d 1357 (1989) (citing General Statutes § 8–132 and noting that the Practice Book forms are “illustrative and not mandatory”).   See also Waterbury v. Waterbury Police Union, 176 Conn. 401, 407, 407 A.2d 1013 (1979) (“It has long been established by the courts of this state that certain statutory proceedings are not ‘civil actions' within the meaning of title 52 of the General Statutes”);  W. Horton & K. Knox, 1 Connecticut Practice Series:  Connecticut Superior Court Civil Rules (2012) § 8–1a, authors' comments, pp. 419–23 (identifying writs of habeas corpus, writs of mandamus, small claims cases, and eminent domain matters as special proceedings not requiring a writ of summons).   Thus, it is apparent that the list of exceptions in § 8–1(b) is not exhaustive.

The defendant explains the failure to include small claims and eminent domain matters in § 8–1(b) on the ground that these matters have their own procedural rules in either the Practice Book or our statutes.   See Practice Book, Ch. 24 (“Small Claims”);  General Statutes §§ 8–129 to 8–132a, 48–12 (eminent domain or condemnation).   But the defendant fails to explain the omission from § 8–1(b) of some of the other more unusual proceedings such as a writ of prohibition.

Further, a review of § 42–110k reveals that, not unlike the small claims and eminent domains provisions, it contains sufficient procedural guidance to initiate an action.  Section 42–110k provides that, if a person fails to obey a subpoena, the commissioner shall 1) apply to the superior court, 2) provide notice to the party of interest, 3) file the application in the judicial district of Hartford, and 4) expect a hearing thereon.   In this case, the commissioner served a typed summons on the defendant that clearly identified the parties as “William M. Rubenstein, Commissioner of Superior Court, petitioner,” and “Vacation Smart International, Inc., defendant,” and referred the defendant to the application and order to show cause.   The order to show cause summoned the defendant to appear in Superior Court for the judicial district of Hartford on April 22, 2013 at 9:30 a.m. and show cause why the order requested in the application should not issue against it.   Thus, the statute, especially as applied by the commissioner in giving the defendant notice of the parties and the time for the hearing, provided the defendant all the essential information of a standard form writ of summons.⁷

This type of statutory application to obtain compliance with a subpoena is a common enforcement mechanism for state agencies.  Section 42–110k is one of approximately thirty-four statutes that authorize a state agency to “apply” for, or “upon [or ‘on’] application” to obtain, enforcement of a subpoena, investigatory demand, or administrative order.   See General Statutes §§ 1–205(d) (freedom of information commission);  5–276a(e)(1) (state board of mediation and arbitration);  9–7b(a)(1) (state elections enforcement commission);  10–153e(f) (state board of labor relations);  12–405k(b) (commissioner of revenue services);  12–565 (commissioner of consumer protection and gaming policy board);  16a–5(a) (secretary of the office of policy and management);  17b–60, 17b–99a(k), 17b–238(d), 17b–531(a) (commissioner of social services);  19a–486c(b) (attorney general);  19a–486d(b), 19a–498(b), 19a–633 (commissioner of public health);  21a–190i(c) (commissioner of consumer protection);  22–228 (commissioner of agriculture);  28–5(a) (commissioner of emergency services and public safety);  30–8 (department of consumer protection);  35–42(f) (attorney general);  36a–17(e), 36a–428l (d), 36b–26(c), 36b–71(c) (banking commissioner);  38a–687(f), 38a–817(a) (insurance commissioner);  42–110k (commissioner of consumer protection);  42–182(a), 42–511(h) (attorney general);  46a–5(a) (permanent commission on the status of women);  46a–13m(c) (child advocate);  51–44a(g) (judicial selection commission);  53–392d (attorney general);  54–205(d) (victim compensation commissioner).⁸  See also General Statutes § 1–3b (provision for enforcement of agency subpoena when no other statute applies).   The court agrees with the observation of another Superior Court judge that, in these special statutory proceedings, the commissioner is “asserting his right to be heard expeditiously on a matter that is limited in scope ․” Southridge Capital Management, LLC v. Pitkin, Superior Court, judicial district of Hartford, Docket No. CV07–4034033 (March 24, 2008, Elgo, J.) [45 Conn. L. Rptr. 238].   The formalities of a writ of summons are neither required nor meaningful in such a proceeding.   Essentially, the statute authorizing enforcement of the investigatory subpoena creates its own specialized procedure.   For these reasons, the court holds that a statutory application to enforce an investigatory subpoena does not constitute one of the “civil actions” that would require a writ of summons as otherwise provided in Practice Book § 8–1 or General Statutes § 52–45a.

III

The court denies the motion to dismiss.⁹

It is so ordered.

Carl J. Schuman

Judge, Superior Court

FOOTNOTES

FN1. Section 42–110d(b) provides:  “b) Said commissioner or his authorized representatives shall have the right to (1) enter any place or establishment within the state, at reasonable times, for the purpose of making an investigation;  (2) check the invoices and records pertaining to costs and other transactions of commodities;  (3) take samples of commodities for evidence upon tendering the market price therefor to the person having such commodity in his custody;  (4) subpoena documentary material relating to such investigation;  and (5) have access to, for the purpose of examination, documentary material and the right to copy such documentary material of any person being investigated or proceeded against.   The commissioner or his authorized representatives shall have power to require by subpoena the attendance and testimony of witnesses and the production of all such documentary material relating to any matter under investigation.”.  FN1. Section 42–110d(b) provides:  “b) Said commissioner or his authorized representatives shall have the right to (1) enter any place or establishment within the state, at reasonable times, for the purpose of making an investigation;  (2) check the invoices and records pertaining to costs and other transactions of commodities;  (3) take samples of commodities for evidence upon tendering the market price therefor to the person having such commodity in his custody;  (4) subpoena documentary material relating to such investigation;  and (5) have access to, for the purpose of examination, documentary material and the right to copy such documentary material of any person being investigated or proceeded against.   The commissioner or his authorized representatives shall have power to require by subpoena the attendance and testimony of witnesses and the production of all such documentary material relating to any matter under investigation.”

FN2. Section 42–110k provides:  “If any person fails or refuses to file any statement or report, or obey any subpoena or investigative demand issued by the commissioner or his authorized representatives, the commissioner may, after notice, apply to the superior court for the judicial district of Hartford, which court, after a hearing thereon, may issue an order:  (1) Granting injunctive relief to restrain the person from engaging in the advertising or sale of any commodity or the conduct of any trade or commerce that is involved in the alleged or suspected violation;  (2) vacating, annulling or suspending the corporate charter of a corporation created by or under the laws of Connecticut or revoking or suspending the certificate of authority to do business in this state of a foreign corporation or revoking or suspending any other licenses, permits or certificates issued pursuant to law to such person which are used to further the allegedly unlawful practice;  and (3) granting such other relief as may be required, until the person files the statement or report, or obeys the subpoenas or investigative demand.   Any disobedience of any final order entered under this section by any court shall be punished as a contempt thereof.”.  FN2. Section 42–110k provides:  “If any person fails or refuses to file any statement or report, or obey any subpoena or investigative demand issued by the commissioner or his authorized representatives, the commissioner may, after notice, apply to the superior court for the judicial district of Hartford, which court, after a hearing thereon, may issue an order:  (1) Granting injunctive relief to restrain the person from engaging in the advertising or sale of any commodity or the conduct of any trade or commerce that is involved in the alleged or suspected violation;  (2) vacating, annulling or suspending the corporate charter of a corporation created by or under the laws of Connecticut or revoking or suspending the certificate of authority to do business in this state of a foreign corporation or revoking or suspending any other licenses, permits or certificates issued pursuant to law to such person which are used to further the allegedly unlawful practice;  and (3) granting such other relief as may be required, until the person files the statement or report, or obeys the subpoenas or investigative demand.   Any disobedience of any final order entered under this section by any court shall be punished as a contempt thereof.”

FN3. Practice Book § 8–1 provides:  “(a) Mesne process in civil actions shall be a writ of summons or attachment, describing the parties, the court to which it is returnable and the time and place of appearance, and shall be accompanied by the plaintiff's complaint.   Such writ may run into any judicial district or geographical area and shall be signed by a commissioner of the superior court or a judge or clerk of the court to which it is returnable.   Except in those actions and proceedings indicated below, the writ of summons shall be on a form substantially in compliance with the following judicial branch forms prescribed by the chief court administrator:Form JD–FM–3 in family actions, Form JD–HM–32 in summary process actions, and Form JD–CV–1 in other civil actions, as such forms shall from time to time be amended.   Any person proceeding without the assistance of counsel shall sign the complaint and present the complaint and proposed writ of summons to the clerk;  the clerk shall review the proposed writ of summons and, unless it is defective as to form, shall sign it.(b) Form JD–FM–3, Form JD–HM–32, and Form JD–CV–1 shall not be used in the following actions and proceedings:(1) Applications for change of name.(2) Proceedings pertaining to arbitration.(3) Probate appeals.(4) Administrative appeals.(5) Verified petitions for paternity.(6) Verified petitions for support orders.(7) Any actions or proceedings in which an attachment, garnishment or replevy is sought.(8) Applications for custody.(9) Applications for visitation.(c) A plaintiff may, before service on a defendant, alter printed forms JD–FM–3, JD–HM–32, and JD–CV–1 in order to make them conform to any relevant amendments to the rules of practice or statutes.”.  FN3. Practice Book § 8–1 provides:  “(a) Mesne process in civil actions shall be a writ of summons or attachment, describing the parties, the court to which it is returnable and the time and place of appearance, and shall be accompanied by the plaintiff's complaint.   Such writ may run into any judicial district or geographical area and shall be signed by a commissioner of the superior court or a judge or clerk of the court to which it is returnable.   Except in those actions and proceedings indicated below, the writ of summons shall be on a form substantially in compliance with the following judicial branch forms prescribed by the chief court administrator:Form JD–FM–3 in family actions, Form JD–HM–32 in summary process actions, and Form JD–CV–1 in other civil actions, as such forms shall from time to time be amended.   Any person proceeding without the assistance of counsel shall sign the complaint and present the complaint and proposed writ of summons to the clerk;  the clerk shall review the proposed writ of summons and, unless it is defective as to form, shall sign it.(b) Form JD–FM–3, Form JD–HM–32, and Form JD–CV–1 shall not be used in the following actions and proceedings:(1) Applications for change of name.(2) Proceedings pertaining to arbitration.(3) Probate appeals.(4) Administrative appeals.(5) Verified petitions for paternity.(6) Verified petitions for support orders.(7) Any actions or proceedings in which an attachment, garnishment or replevy is sought.(8) Applications for custody.(9) Applications for visitation.(c) A plaintiff may, before service on a defendant, alter printed forms JD–FM–3, JD–HM–32, and JD–CV–1 in order to make them conform to any relevant amendments to the rules of practice or statutes.”

FN4. General Statutes § 52–45a provides:  “Civil actions shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day, the date and place for the filing of an appearance and information required by the Office of the Chief Court Administrator.   The writ shall be accompanied by the plaintiff's complaint.   The writ may run into any judicial district and shall be signed by a commissioner of the Superior Court or a judge or clerk of the court to which it is returnable.”.  FN4. General Statutes § 52–45a provides:  “Civil actions shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day, the date and place for the filing of an appearance and information required by the Office of the Chief Court Administrator.   The writ shall be accompanied by the plaintiff's complaint.   The writ may run into any judicial district and shall be signed by a commissioner of the Superior Court or a judge or clerk of the court to which it is returnable.”

FN5. Under a Practice Book amendment effective January 1, 2014, the word “mesne” will be deleted..  FN5. Under a Practice Book amendment effective January 1, 2014, the word “mesne” will be deleted.

FN6. Section 8–1(b) now includes probate appeals..  FN6. Section 8–1(b) now includes probate appeals.

FN7. Although the papers served by the commissioner do not contain a formal return date, the commissioner explained at oral argument that he does not expect the defendant to have to file a formal response to the application..  FN7. Although the papers served by the commissioner do not contain a formal return date, the commissioner explained at oral argument that he does not expect the defendant to have to file a formal response to the application.

FN8. The defendant cites to Lieberman v. Reliable Refuse Co., 212 Conn. 661, 563 A.2d 1013 (1989), for the point that a respondent faced with an application to enforce a subpoena under § 35–42(f) has a right to file an answer and special defenses.   The Supreme Court did observe that the respondent in that case did file such a response, but it did not hold that the respondent has a right to do so or that it, if it did have such a right, a writ of summons was essential to trigger that right.  Id., 664.   The Court simply did not address those issues..  FN8. The defendant cites to Lieberman v. Reliable Refuse Co., 212 Conn. 661, 563 A.2d 1013 (1989), for the point that a respondent faced with an application to enforce a subpoena under § 35–42(f) has a right to file an answer and special defenses.   The Supreme Court did observe that the respondent in that case did file such a response, but it did not hold that the respondent has a right to do so or that it, if it did have such a right, a writ of summons was essential to trigger that right.  Id., 664.   The Court simply did not address those issues.

FN9. At oral argument, the defendant abandoned its second argument that the manner of service did not comply with General Statutes § 52–59b in that the commissioner failed to serve the Connecticut secretary of the state.   The defendant does not dispute the commissioner's response that the governing authority for service of unregistered foreign corporations such as the defendant is General Statutes § 33–929 and that the commissioner complied with that statute..  FN9. At oral argument, the defendant abandoned its second argument that the manner of service did not comply with General Statutes § 52–59b in that the commissioner failed to serve the Connecticut secretary of the state.   The defendant does not dispute the commissioner's response that the governing authority for service of unregistered foreign corporations such as the defendant is General Statutes § 33–929 and that the commissioner complied with that statute.

Schuman, Carl J., J.