Michele Seibold v. Commissioner of the Department of Motor Vehicles (2014)

MEMORANDUM OF DECISION

The principal issue raised in this administrative appeal is whether the court has subject matter jurisdiction over the appeal if the only manner of service upon the agency was by faxing a copy of the appeal to the Office of the Attorney General and/or the agency.   Because General Statutes § 4–183(c)(1) requires service of the appeal by either certified mail or by personal delivery within forty-five days of the agency's decision, this court concludes that it lacks subject matter jurisdiction over this appeal.

FACTS AND PROCEDURAL HISTORY

The record discloses the following relevant facts and procedural history.   On February 8, 2013, the plaintiff, Michele Seibold, was arrested by the Westport police department for operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14–227a.¹

While at the Westport police department, the plaintiff refused to submit to a chemical alcohol test.   Subsequently, on March 5, 2013, the defendant, the department of motor vehicles, held a hearing pursuant to General Statutes § 14–227b.   The purpose of the hearing was to determine whether the plaintiff's driver's license should be suspended due to her alleged refusal to submit to the chemical alcohol test.   On the same day, the defendant's hearing officer issued a final decision finding that (1) the police officer had probable cause to arrest the plaintiff for violating § 14–227b, (2) the plaintiff was placed under arrest, (3) the plaintiff refused to submit to a chemical alcohol test, (4) the plaintiff was operating a motor vehicle, and (5) the plaintiff was not under twenty-one years of age.   As a result of these findings, the plaintiff's driver's license was suspended for six months.

On March 21, 2013, the plaintiff filed this administrative appeal of the hearing officer's decision with the superior court pursuant to General Statutes § 4–183(c)(1).   The plaintiff, however, did not serve a copy of the appeal on the agency or the Office of the Attorney General by sending it by certified mail or by personally delivering it within forty-five days of the agency's final decision.   Instead, the plaintiff, on March 21, 2013, simply faxed a copy of the appeal to the Office of the Attorney General and to the agency.

On May 29, 2013, the defendant filed a motion to dismiss the appeal for lack of subject matter jurisdiction.   In response, the plaintiff filed an objection to the motion on July 5, 2013.   On July 23, 2013, Judge Cohn heard argument on the motion to dismiss but declined to rule on it until the merits of the appeal could be heard.

This court, Prescott, J., subsequently heard arguments on both the motion to dismiss and the merits of the underlying appeal.   For the following reasons, this court concludes that it lacks subject matter jurisdiction over the appeal and that the case must be dismissed.

ANALYSIS

“Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it ․ [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction.”  (Internal quotation marks omitted.)  Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 550, 23 A.3d 1176 (2011).  “[O]nce the question of lack of jurisdiction of a court is raised ․ [it] must be disposed of no matter in what form it is presented ․ and the court must fully resolve it before proceeding further with the case.”  (Internal quotation marks omitted.)  D'Eramo v. Smith, 273 Conn. 610, 616, 872 A.2d 408 (2005).  “A motion to dismiss ․ properly attacks the jurisdiction of the court ․” Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011).

The defendant moves to dismiss the appeal for lack of subject matter jurisdiction on the ground that this administrative appeal was not served within forty-five days from the mailing date of the commissioner's decision as required by General Statutes § 4–183(c).  Specifically, the defendant argues that the plaintiff did not serve the commissioner of motor vehicles or the Attorney General by certified mail return receipt requested or by personal service as required by General Statutes § 4–183(c)(1).   Rather, the plaintiff only sent a copy of the appeal to the agency and the Office of the Attorney General by telefax.

The plaintiff contends that she (1) filed the appeal with the Superior Court within forty-five days from the date that the commissioner's decision was mailed, (2) the office of the Attorney General received actual notice of the appeal when the appeal was faxed to its office, and (3) the defendant is not prejudiced by the failure to make proper service.   The plaintiff asserts that, under these circumstances, the court has subject matter jurisdiction over the appeal.

“[T]here is no absolute right of appeal to the courts from a decision of an administrative agency ․ Appeals to the courts from administrative [agencies] exist only under statutory authority ․ Appellate jurisdiction is derived from the ․ statutory provisions by which it is created ․ and can be acquired and exercised only in the manner prescribed ․ In the absence of statutory authority, therefore, there is no right of appeal from [an agency's] decision ․” (Internal quotation marks omitted.)  New England Road, Inc. v. Planning & Zoning Commission, 308 Conn. 180, 183, 61 A.3d 505 (2013).  “The [Uniform Administrative Procedure Act (UAPA) ] grants the Superior Court jurisdiction over appeals of agency decisions only in certain limited and well delineated circumstances ․ Judicial review of an administrative decision is governed by ․ [General Statutes] § 4–183(a) of the UAPA, which provides that [a] person who has exhausted all administrative remedies ․ and who is aggrieved by a final decision may appeal to the superior court ․” (Internal quotation marks omitted.)  Evans v. Tiger Claw, Inc., 141 Conn.App. 110, 117–18, 61 A.3d 533, cert. denied, 310 Conn. 926, 78 A.3d 856 (2013).

Specifically, § 4–183(c) provides in relevant part:  “Within forty-five days after mailing of the final decision under section 4–180 or, if there is no mailing, within forty-five days after personal delivery of the final decision under said section ․ a person appealing as provided in this section shall serve a copy of the appeal on the agency that rendered the final decision at its office or at the office of the Attorney General in Hartford and file the appeal with the clerk of the superior court for the judicial district of New Britain or for the judicial district wherein the person appealing resides ․ Within that time, the person appealing shall also serve a copy of the appeal on each party listed in the final decision at the address shown in the decision, provided failure to make such service within forty-five days on parties other than the agency that rendered the final decision shall not deprive the court of jurisdiction over the appeal.   Service of the appeal shall be made by United States mail, certified or registered, postage prepaid, return receipt requested, without the use of a state marshal or other officer, or by personal service by a proper officer or indifferent person making service in the same manner as complaints are served in ordinary civil actions.”   In comparison, § 4–183(d) provides in pertinent part:  “If the failure to make service causes prejudice to any party to the appeal or to the agency, the court, after hearing, may dismiss the appeal.”

Under § 4–183, different rules govern depending on whether there is a mere defect in the service of process on the agency or whether there was a total failure of service.   In Tolly v. Dept. of Human Resources, 225 Conn. 13, 27–28, 621 A.2d 719 (1993), our Supreme Court noted that the language of subsections (c) and (d) of § 4–183 “appear to conflict with respect to the effect of a failure to make service on the agency.   The language of § 4–183(c), that a ‘failure to make such service within forty-five days on parties other than the agency ․ shall not deprive the court of jurisdiction over the appeal,’ implies that a failure to make such service on the agency will deprive the court of jurisdiction over the appeal, namely, subject matter jurisdiction ․ The text of § 4–183(d) provides, however, that ‘[i]f the failure to make service causes prejudice ․ to the agency, the court, after hearing, may dismiss the appeal.’   This language provides that even a timely motion to dismiss will not automatically lead to dismissal;  dismissal follows only if the court, after hearing, finds that prejudice resulted from the failure to make service.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)

The court in Tolly harmonized this apparent conflict between the two subsections by holding that “[i]f there is no service at all on the agency within the forty-five day period, the court lacks subject matter jurisdiction over the appeal ․ If, however, ․ there is an arguable defect in the process that was timely served on the agency ․ rather than a failure to make service at all within the applicable time period, the court does not lack subject matter jurisdiction over the appeal.   Under those circumstances, § 4–183(d) applies, and the appeal is dismissable only upon a finding of prejudice to the agency.”  (Citation omitted;  internal quotation marks omitted.)  Id., 28–29.

In Tolly, the plaintiff filed an administrative appeal of a decision from the department of human resources.  “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.   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.”  (Footnote omitted.)  Id., 15–16.   The trial court granted the defendant's motion to dismiss on the ground that the plaintiff failed to include a citation in her appeal.  Id., 17.   Nevertheless, the Supreme Court reversed and explained that § 4–183(d) applied because, using the rule above, omitting the citation was merely a defect in the process, rather than a failure to make service at all.  Id., 28.

Similarly, in Kindl v. Dept. of Social Services, 69 Conn.App. 563, 565, 795 A.2d 622 (2002), the plaintiff brought an administrative appeal from a decision of the department of social services.   Service on the defendant was made by an employee in the office of the plaintiff's counsel.  Id., 566.   The trial court, sua sponte, raised the question of subject matter jurisdiction and 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.”  Id. Our Appellate Court “conclude[d] that the use of ‘shall’ in this statute, in all likelihood, indicates an intent that the requirement of service ․ be directory rather than mandatory.”  Id., 569.   Thus, the Appellate Court held that the trial court improperly dismissed the plaintiff's appeal because the defendant received all of the required documents to which it was entitled and the requirement of service by an “indifferent person” is directory rather than mandatory.  Id., 569, 575.

In Bittle v. Commissioner of Social Services, 249 Conn. 503, 504, 734 A.2d 551 (1999), our Supreme Court examined 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 that case, the court read the legislative history of § 4–183(c) as demonstrative of a legislative intent “to enhance rather than constrain” the rights of an administrative appellant.   Id., 506–07.   As a result, the court concluded that the forty-five-day window of opportunity to serve process was not closed by a short delay in receipt of mail service by certified mail.  Id., 522–23.   Rather, the court held that the appropriate date by which to measure the timeliness of service was the date of the post-marking of the relevant appeal papers.  Id., 515.

Unlike the facts in Tolly, Bittle, and Kindl, the present case is easily distinguishable because, here, there was a total failure to make service at all in either of the two methods permitted by the statute rather than defects in a particular manner of service authorized by § 4–183.   More particularly, the plaintiff did not serve the appeal on the commissioner of motor vehicles or the office of the Attorney General by either (1) certified or registered mail return receipt requested or (2) through personal service, which are the only two enumerated methods of service that are listed in the statute.   Rather, the plaintiff faxed the appeal to the office of the Attorney General.   Service by telefax is simply not authorized by the statute.

Taken to its logical extreme, the plaintiff's argument is that § 4–183 allows service of the appeal on the agency by any means, including by a carrier pigeon, as long as the agency actually receives the appeal and is not prejudiced.   Such a conclusion is not warranted by the language of § 4–183 or the decisions in Tolly, Bittle and Kindl.

The legislature could have expressly allowed facsimile service as a valid form of service, as it allows service by certified postal mail or personal delivery.   It has not chosen to do so.   When the text of a statute is plain and unambiguous, General Statutes § 1–2z directs the court to use the plain meaning of the statute.   The plain meaning of the statutory language in § 4–183(c) clearly limits service to only (1) certified or registered mail return receipt requested or (2) personal service.   Allowing a third method of service would render the two specifically enumerated methods superfluous.

Permitting the plaintiff to serve the appeal via facsimile would also fundamentally alter the current administrative appeals process.   By judicial fiat, such a rule would create a third permissible method of service.   Indeed, most administrative appeals would likely be served in this manner, shifting the burden to state agencies to establish prejudice or that the appeal was not received.   This court declines to make such a policy choice, which is more appropriately left to the legislature, particularly where the proposed rule could unduly burden state agencies.   For example, unlike a physical address to which certified mail to can be sent from a post office, an agency's telefax machine may not be working at the time the appeal period is expiring.   Moreover, an agency and/or the Office of the Attorney General are likely to have many fax numbers thereby increasing the likelihood that the appeal sought to be served does not reach the correct hands in a timely fashion.   Issues with proof of service would likely arise because, unlike certified or registered mail, facsimiles are not certified by the receiving party as having been actually received.   As a result, the likelihood of the parties disputing whether an agency properly received service by facsimile is substantial, which invariably would lead to increased litigation costs.

In conclusion, the plaintiff's decision to use a manner of service that is not contemplated by § 4–183 amounts to a total failure of service upon the agency.   In other words, the defect of service in this case was a defect in kind, not degree.  “If there is no service at all on the agency within the forty-five day period, the court lacks subject matter jurisdiction over the appeal by virtue of the clear implication of the language in § 4–183(c) ․” Tolly v. Dept. of Human Resources, supra, 225 Conn. 28.   Accordingly, the court lacks subject matter jurisdiction over the appeal, and it must be dismissed.

Judgment shall enter accordingly.

Prescott, J.

FOOTNOTES

FN1. Section 14–227a(a) provides in relevant part:  “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both.   A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if such person operates a motor vehicle (1) while under the influence of intoxicating liquor or any drug or both, or (2) while such person has an elevated blood alcohol content.”.  FN1. Section 14–227a(a) provides in relevant part:  “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both.   A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if such person operates a motor vehicle (1) while under the influence of intoxicating liquor or any drug or both, or (2) while such person has an elevated blood alcohol content.”

Prescott, Eliot D., J.