Farricielli v. Connecticut Personnel Appeal Board
Farricielli v. Connecticut Personnel Appeal Board
Opinion of the Court
On March 25, 1977, the plaintiff, Charles Farricielli, was dismissed from his position as an institutional security officer at
On June 23,1977, the plaintiff appealed from the decision of the board, under General Statutes § 4-183 (b),
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.
We have stated that “ ‘Mppeals to courts from administrative agencies exist only under statutory authority. Tazza v. Planning & Zoning Commission,
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
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 plaintiff has also claimed that his administrative appeal should not fail for improper venue because General Statutes §§ 51-347b and 51-351
There is no error.
In this opinion Speziale, C. J., and Akmentaho, J., concurred.
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.”
As amended by Public Acts 1973, No. 73-620, § 13 and Publie Acts 1976, No. 76-436, § 252.
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.
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.
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).
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
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.
Dissenting Opinion
(dissenting). This case marks the first time this court has held that failure to comply with a statutory venue provision constitutes a defect in jurisdiction over the subject matter. “Venue is not a jurisdictional question but a procedural one.” 77 Am. Jur. 2d, Venue $ 1. A statutory requirement fixing the place where an action must be brought is regarded as existing for the convenience of the litigants and simply confers a privilege not to be required to attend court at a particular location. Id., § 45. Accordingly, it may be waived by the parties, unlike subject matter jurisdiction, which cannot be conferred by consent. Ibid. Heretofore we have followed these well-established principles in distinguishing venue from jurisdiction. Guerriero v. Galasso, 144 Conn. 600, 604, 136 A.2d 497 (1957); Fine v. Wencke, 117 Conn. 683, 684, 169 A. 58 (1933); Mower v. State Department of Health, 108 Conn. 74, 77, 142 A. 473 (1928). In Savings Bank of Danbury v. Downs, 74 Conn. 87, 89-90, 49 A. 913 (1901), a case cited by the majority, where the statute specified that a scire facias action against a garnishee should be brought to the court where the judgment had been rendered, noncomplianee was treated as jurisdictional. The court viewed this requirement, however, as created not for the bene
The majority opinion concludes that strict compliance with the place requirement for filing an appeal is necessary because of its nature as a creature of statute. All of the cases of this court which are cited in support of that proposition involve noncomplianee with a time specification rather than a designation of court location. Royce v. Freedom of Information Commission, 177 Conn. 584, 418 A.2d 939 (1979); Vecchio v. Sewer Authority, 176 Conn. 497, 408 A.2d 254 (1979); In re Nunez, 165 Conn. 435, 334 A.2d 898 (1973); LaReau v. Reincke, 158 Conn. 486, 264 A.2d 576 (1969); Chanosky v. City Building Supply Co., 152 Conn. 449, 208 A.2d 337 (1965); Daley v. Board of Police Commissioners, 133 Conn. 716, 54 A.2d 501 (1947). Time limitations for taking appeals do not exist merely for the convenience of the parties but involve a strong public interest in the finality of legal proceedings. For this reason they have been generally regarded as jurisdictional. 2 Am. Jur. 2d, Administrative Law § 719. Defects of venue in appeals from administrative agencies have not been given the same effect. Industrial Addition Assn. v. Commissioner, 323 U.S. 310, 65 S. Ct. 289, 89 L. Ed. 260 (1945); Peoria S PUR Co. v. United States, 263 U.S. 528, 535-36, 44 S. Ct. 194, 68 L. Ed. 427 (1924). In two cases decided by this court, both administrative agency appeals, the contention that a failure to bring an appeal to the proper court location destroyed subject matter jurisdiction was expressly rejected. Guerriero v. Galasso, supra, 604; Mower v. State Department of Health, supra, 77. Such a deviation from the statute creating the right of
An additional reason for my disagreement is the enactment of General Statutes § 51-351 which became effective on July 1, 1978, while this action was pending in the trial court but before the trial court decided the motion to dimiss.
There can hardly be any question but that the legislature intended to authorize the transfer of cases such as the appeal of this plaintiff in enacting § 51-351, because there is no other established mechanism for implementing this declaration of policy. Already in existence was § 51-347b which authorized transfer of “[a]ny cause” by order of the court on its own motion or the motion of any party. The use of the broader word “cause” in this statute, as well as in § 51-351, instead of “action” makes it clear that the authority to transfer extends to administrative appeals as well as ordinary civil actions. Connecticut Light and Power Co. v. Costle, 179 Conn. 415, 423, 426 A.2d 1324 (1980).
Because the position of the majority that a venue defect defeats jurisdiction over the subject matter renders § 51-351 wholly nugatory even in respect to appeals commenced after its effective date, consideration of whether this statute should be applied retroactively in the pending case has been relegated to a footnote in the majority opinion. “[A]s regards statutes which are general in their terms and affect matters of procedure, the presumption is that they are intended to apply in all actions, whether pend
I would find error in the granting of the motion to dismiss because the venue defect relied upon does not involve jurisdiction and because the legislature’s intention in enacting § 51-351 was to provide the remedy of transfer rather than dismissal in such a situation. Therefore, I dissent.
In this opinion Parskey, J., concurred.
The motion to dismiss was not filed until April 25, 1979.
Reference
- Full Case Name
- Charles Farricielli v. Connecticut Personnel Appeal Board
- Cited By
- 71 cases
- Status
- Published