Farricielli v. Connecticut Personnel Appeal Board

440 A.2d 286, 186 Conn. 198, 1982 Conn. LEXIS 438

• Court: Supreme Court of Connecticut
• Decided: February 9, 1982
• Status: Published

Opinions

Arthur H. Healey, J.

On March 25, 1977, the plaintiff, Charles Farricielli, was dismissed from his position as an institutional security officer at Southern Connecticut State College for failure to obtain and retain Connecticut State Police powers as required by job specifications. The plaintiff appealed this dismissal to the Connecticut personnel appeal board (the board) on March 31, 1977, pursuant to General Statutes § 5-202 (a). The board dismissed the plaintiff’s appeal for lack of subject matter jurisdiction on May 25, 1977.

On June 23,1977, the plaintiff appealed from the decision of the board, under General Statutes § 4-183 (b),¹ to the Court of Common Pleas in Hartford County. Service was duly made upon the defendant by serving the office of the attorney general in Hartford. The plaintiff resided in New Haven County at the time he took the appeal to the Court of Common Pleas. The defendant moved to dismiss the plaintiff’s appeal on the ground that the appeal was not filed in the Court of Common Pleas for the county in which the plaintiff resided as § 4-183 (b) then required. The court, Fracasse, J., granted the motion to dismiss for lack of jurisdiction upon finding that the venue provisions of § 4-183 (b) were mandatory and jurisdictional and that strict compliance was required. The plaintiff, after certification was granted, appealed to this court.

The main issue in this case is whether, on June 24, 1977, the venue provisions of General Statutes §4-183 (b) were mandatory and jurisdictional, thereby rendering lack of strict compliance a fatal defect.

In 1977, a person who had exhausted all administrative remedies and was aggrieved by a final decision of an administrative agency could then seek judicial review under General Statutes § 4-183 (b), ² which is part of the Uniform Administrative Procedure Act (UAPA), which provided that “[proceedings for review shall be instituted by filing a petition in the court of common pleas in the county wherein the aggrieved person resides . . . .” The plaintiff, however, instead of filing his appeal in the Court of Common Pleas in New Haven County, the county where he resided, filed his appeal in the Court of Common Pleas for Hartford County, the county where the defendant board is located. The plaintiff now claims that the lower court erred in dismissing his appeal because the venue provisions of § 4-183 (b) are merely directory and not mandatory and failure strictly to comply with these provisions does not rise to the level of a jurisdictional defect. He also claims that it would not be fair to allow the lower court to dismiss his appeal for improper venue in light of the fact that the legislature amended § 4-183 (b) in 1977³ to allow administrative appeals “to the superior court for Hartford County or for the county or judicial district wherein the aggrieved person resides . . . .” (Emphasis added.)

We have stated that “ ‘Mppeals to courts from administrative agencies exist only under statutory authority. Tazza v. Planning & Zoning Commission, 164 Conn. 187, 190, 319 A.2d 393 [1972]; East Side Civic Assn. v. Planning & Zoning Commission, 161 Conn. 558, 560, 290 A.2d 348 [1971]. A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created. In re Nunes, 165 Conn. 435, 441, 334 A.2d 898 [1973]; Chanosky v. City Building Supply Co., 152 Conn. 449, 451, 208 A.2d 337 [1965]; 4 Am. Jur. 2d, Appeal and Error, § 4.’ ” Royce v. Freedom of Information Commission, 177 Conn. 584, 587, 418 A.2d 939 (1979). See also Vecchio v. Sewer Authority, 176 Conn. 497, 502, 408 A.2d 254 (1979). In Royce, supra, we held that the time provisions of § 4-183 (b) were mandatory and that lack of strict compliance would be fatal to an appeal. We can find no justification for treating the venue provisions of the same statute any differently. We have said that not only does the UAPA provide for uniform standards by which certain agency action is to be judged but that it provides a vehicle for judicial review as an alternative to preexisting statutes or in situations in which no appellate review was previously provided. McDermott v. Commissioner of Children & Youth Services, 168 Conn. 435, 440-41, 363 A.2d 103 (1975). This is the first time we have construed the venue provisions of the UAPA.

K ‘Appellate jurisdiction is derived from the constitutional or statutory provisions by which it is created, and can be acquired and exercised only in the manner prescribed. Thus, the determination of the existence and extent of appellate jurisdiction depends upon the terms of the statutory or constitutional provisions in which it has its source.’ 4 Am. Jur. 2d 535, Appeal and Error, §4.” LaReau v. Reincke, 158 Conn. 486, 492, 264 A.2d 576 (1969); In re Nunez, 165 Conn. 435, 438, 334 A.2d 898 (1973). In this case, the legislature chose to confer exclusive appellate jurisdiction in appeals under the TTAPA to “the court of common pleas in the county wherein the aggrieved person resides . . . .” “ ‘The decisive question here involves the appellate jurisdiction of a particular . . . court to review a particular administrative decision; “venue” in the usual sense is not involved.’ ” State ex rel. State Tax Commission v. Luten, 459 S.W.2d 375, 377 (Mo. 1970).⁴ See also Minnesota Valley Canning Co. v. Rehnblom, 242 Iowa 1112, 49 N.W.2d 553 (1951); 2 Cooper, State Administrative Law (1st Ed. 1965), pp. 613-14. “In many instances matters of venue are not determined either by general venue statutes or by statutes relating generally to actions against public officers but by specific provisions as to venue in administrative procedure acts or statutes relating to particular adminstrative agencies.” 2 Am. Jur. 2d, Administrative Law § 737. See also 73 C.J.S., Public Administrative Bodies and Procedure §26 (2), p. 320. Moreover, our conclusion that the provisions of § 4-183 (b), as it was when the plaintiff took his appeal, were mandatory and not directory, is buttressed by the fact that § 4-183 selectively used the words “shall” and “may” in a number of its subsections. Section 4-183 (b) provided that “[proceedings for review shall be instituted by filing a petition in the court of common pleas in the county wherein the aggrieved person resides . . . (Emphasis added.) It also stated that “[c]opies of the petition shall he served upon the agency and all parties of record.” (Emphasis added.) Section 4-183 (e), for example, provided “[t]he agency may grant, or the reviewing court may order, a stay upon appropriate terms.” (Emphasis added.) The use of “shall” and “may” which are words “commonly mandatory and directory in connotation, [is] a factor that evidences affirmative selectivity of terms with specific intent to he distinctive in meaning. . . . [They] must then he assumed to have been used with discrimination and a full awareness of the difference in their ordinary meanings.” Jones v. Civil Service Commission, 175 Conn. 504, 509, 400 A.2d 721 (1978). See Shulman v. Zoning Board of Appeals, 154 Conn. 426, 428-29, 226 A.2d 380 (1967); Blake v. Meyer, 145 Conn. 612, 616, 145 A.2d 584 (1958). There is nothing in § 4-183 (h) expressive of any contrary intent. Thus, the words “shall” and “may” should he interpreted according to their plain and ordinary meaning. General Statutes § 1-1; Jones v. Civil Service Commission, supra.⁵ As further support for our conclusion that the venue provision of §4-183 (h) is mandatory, we point to General Statutes § 38-62 (c) which in providing for appeals from certain orders of the insurance commissioner provides that “ [a]ny person aggrieved by any such order of the commissioner may appeal therefrom in accordance with the provisions of section 4-183, except venue for such appeal shall be in the judicial district of Hartford-New Britain.” (Emphasis added). The venue provisions of § 4-183 (b) are jurisdictional and “mandatory, and, if not complied with, render the appeal subject to abatement. Daley v. Board of Police Commissioners, 133 Conn. 716, 719, 54 A.2d 501 [1947].” Royce v. Freedom of Information Commission, supra, 587; see Savings Bank of Danbury v. Downs, 74 Conn. 87, 49 A. 913 (1901).

The fact that the legislature subsequently amended the statute to allow the very act which it had previously not allowed, i.e., to institute the action by petition filed in the Superior Court for Hartford County, is not persuasive and does not support the plaintiff’s claim. See City Council v. Hall, 180 Conn. 243, 251, 429 A.2d 481 (1980). “A statute which provides that a thing shall be done in a certain way carries with it an implied prohibition against doing that thing in any other way.” State ex rel. Barlow v. Kaminsky, 144 Conn. 612, 620, 136 A.2d 792 (1957); see State ex rel. Barnard v. Ambrogio, 162 Conn. 491, 498, 294 A.2d 529 (1972). Moreover, it is well settled that it can be assumed that in amending § 4-183 (b), the legislature acted “to accomplish some purpose”; Brown v. Cato, 147 Conn. 418, 421, 162 A.2d 175 (1960); see In re Application of Plantamura, 149 Conn. 111, 176 A.2d 61 (1961), cert. denied, 369 U.S. 872, 82 S. Ct. 1141, 8 L. Ed. 2d 275 (1962); and “we may not presume that the legislature has enacted futile or meaningless legislation.” Hartford Electric Light Co. v. Sullivan, 161 Conn. 145, 152, 285 A.2d 352 (1971). “ ‘ “The General Assembly is always presnmed to know all the existing statutes and the effect that its action or non-action will have upon any one of them. And it is always presumed to have intended that effect which its action or non-action produces.” State v. Staub, 61 Conn. 553, 566, 23 A. 924 [1892]; Coombs v. Darling, 116 Conn. 643, 646, 166 A. 70 [1933]; Hartley v. Vitiello, [113 Conn. 74, 82, 154 A. 255] [1931].’ Knoll v. Kelley, 142 Conn. 592, 595, 115 A.2d 678 [1955].” New Haven Water Co. v. North Branford, 174 Conn. 556, 565, 392 A.2d 456 (1978). At the time that the plaintiff filed his appeal, the only court with subject matter jurisdiction was the Court of Common Pleas for New Haven County.

The plaintiff has also claimed that his administrative appeal should not fail for improper venue because General Statutes §§ 51-347b and 51-351⁶ operate to transfer the appeal to the proper court. The court, however, was powerless to so act under these statutes as claimed.

“A court has no power or jurisdiction to order a change of venue where it has no jurisdiction of the subject matter of the parties defendant.” 92 C.J.S. Venue §§ 129, 157. See Bell v. Union Trust Co. of Indianapolis, 213 Ind. 333, 12 N.E.2d 510 (1938); Newell v. Huston, 35 App. Div. 2d 908, 317 N.Y.S.2d 66 (1970). Proceedings conducted or decisions made by a court are legally void where there is an absence of jurisdiction over the subject matter. Marshall v. Clark, 170 Conn. 199, 205, 365 A.2d 1202 (1976); see Chrysler Credit Corporation v. Fair-field Chrysler-Plymouth, Inc., 180 Conn. 223, 229, 429 A.2d 478 (1980); Krueger v. Krueger, 179 Conn. 488, 493, 427 A.2d 400 (1980). Since we have held that the lower court had no jurisdiction of the subject matter, a motion by the plaintiff to transfer venue could not have been granted.

There is no error.

In this opinion Speziale, C. J., and Akmentaho, J., concurred.

1 In June, 1977, General Statutes §4-183 (b) provided: “Proceedings for review shall be instituted by filing a petition in the court of common pleas in the county wherein the aggrieved person resides within thirty days after mailing of the notice of the final decision of the agency or, if a rehearing is requested, within thirty days after the decision thereon. Copies of the petition shall be served upon the ageney and all parties of record.”

2 As amended by Public Acts 1973, No. 73-620, § 13 and Publie Acts 1976, No. 76-436, § 252.

3 Public Acts 1977, No. 77-603, §1 (b), effective July 1, 1977. This statute was amended again before July 1, 1978, to substitute “the judicial district of Hartford-New Britain” for “Hartford County.” Public Acts 1978, No. 78-280, § 10, effective date July 1, 1978.

4 For an example of such a provision see Radzanower v. Touche Ross & Co., 426 U.S. 148, 96 S. Ct. 1989, 48 L. Ed. 2d 540 (1976), where the United States Supreme Court held that the “narrow venue provision” of the National Bank Act, which allows national banking associations to be served only in the district where they are established, was not repealed by the broad venue provisions of the subsequently enacted Securities Exchange Act which provided that any action to enforce any liability or duty under that Act may be brought in any district where the violation occurred or in the district wherein the defendant is found or transacts business.

5 Section 4-183 (b) is only one subsection of § 4-183 which is entitled “Appeal to Superior Court.” We note that in a number of the other subsections of § 4-183 the words “shall” and “may” are used, again indicating affirmative selectivity of those terms by the legislature. Although not crucial on the specific issue before us, it is clearly a factor of the continuing legislative determination, at least in § 4-183, not only to use them according to their commonly accepted meaning, but with discrimination as to their connotations. See Mazzola, v. Southern New England Telephone Co., 169 Conn. 344, 365, 363 A.2d 170 (1975).

6 General Statutes § 51-347b, at the time of the plaintiff’s appeal to the Court of Common Pleas, was codified as § 52-31 and provided: “TRANSFER of causes by motion, agreement or chief court administrator. Any cause or the trial of any issue or issues therein may be transferred, by order of the court on its own motion or on the granting of a motion of any of the parties, or by agreement of the parties, from the superior court for one county or judicial district to the superior court for any other county or judicial district or from the court of common pleas for one county or judicial district to the court of common pleas for any other county or judicial district, upon notice by the clerk to the parties after the order of the court, or upon the filing by such parties of a stipulation to that effect in the cause, signed by them or their attorneys. The chief court administrator may, on his own motion, when required for the efficient operation of the courts and to insure the prompt and proper administration of justice, order like transfers. Upon the order of the court or the chief court administrator and the notices to the parties or on the filing of such stipulation, the clerk of the court shall transfer the files in the cause to the clerk of the court for such other county or judicial district, and, if simply the trial of an issue or issues in such cause has been transferred, the flies, after such issues have been disposed of, shall be returned to the clerk of the court for the original county or judicial district, and judgment may be entered in such court. No entry fee shall be required to be paid to the court to which any such transfer was made.”

Section 51-351 was enacted in 1977, Public Acts 1977, No. 77-576, §§ 10, 65, effective July 1, 1978, and provides: “return to improper locations. No cause shall fail on the ground that it has been made returnable to an improper location.”

The dissent indicates that $ 31-351 should be applied retroactively to a pending ease. We do not agree. This statute, which was enacted as Public Acts 1977, No. 77-576, § 10, did not become effective until July 1, 1978, which was after the plaintiff brought his aetion in the Court of Common Pleas at Hartford. “It is a rule of construction that statutes are not to be applied retroactively to pending actions, unless the legislature clearly expresses an intent that they shall be so applied.” New Haven v. Public Utilities Commission, 165 Conn. 687, 726, 345 A.2d 563 (1974). “The test of whether a .statute is to be applied retroactively, absent an express legislative intent, ‘is not a purely mechanical one’ and even if it is a procedural statute, which ordinarily will be applied retroactively without a legislative imperative to the contrary, ‘it will not be applied retroactively if considerations of good sense and justice dictate that it not be so applied. Lavieri v. Ulysses . . . [149 Conn. 396, 401, 180 A.2d 632] [1962]; E. M. Loew’s Enterprises, Inc. v. International Alliance, 127 Conn. 415, 418, 17 A.2d 525 [1941].’ Carvette v. Marion Power Shovel Co., 157 Conn. 92, 96, 249 A.2d 58 [1968]; Jones Destruction, Inc. v. Upjohn, 161 Conn. 191, 196, 286 A.2d 308 [1971].” American Masons’ Supply Co. v. F. W. Brown Co., 174 Conn. 219, 223, 384 A.2d 378 (1978). The legislature has expressed no such intent here and we do not feel that it should be applied retroactively.