Opinion
No. CV23-13983
April 3, 2007
MEMORANDUM OF DECISION ON MOTION TO DISMISS
The respondent, the owner/interested party of $4,753.00, by and through his attorney, has filed this motion to dismiss the petition for forfeiture. The petitioner, the State of Connecticut, has filed a motion in opposition. A procedural history is relevant to the resolution of this motion and is set forth as follows.
The owner/interested party, Ricardo Lopez, has not appeared and is currently in rearrest status on his related criminal matter. Said rearrest was ordered on November 23, 2005.
The record discloses the following facts. The petitioner filed a petition for forfeiture of property in a drug case (hereinafter, the "in rem petition") in the clerk's office of GA #23, which in rem petition was filed and date-stamped by the clerk's office on June 8, 2005. This petition was filed against $4,753.00 in U.S. currency and one 1998 Nissan Maxima, subsequent to an on-site arrest of the respondent for various narcotic offenses. The June 8, 2005 date-stamp has an "X" through it; the in rem petition was then date-stamped by the GA #23 clerk's office on January 26, 2006. On January 27, 2006 the court made a finding of ownership and ordered notification to the owner of a hearing date of March 6, 2006. Some time prior to the hearing date, the petitioner amended the in rem petition, seeking forfeiture of the monies only. The court entered a default judgment on April 17, 2006 and ordered the forfeiture of the $4,753.00 to the state's revolving fund, pursuant to C.G.S. § 54-36i.
On May 3, 2006 the respondent, through his attorney, filed a motion to reopen judgment which was granted on June 5, 2006. The matter was then set down for a hearing on the in rem petition for June 19, 2006.
On June 19, 2006, the respondent, through his attorney, filed a motion to dismiss the in rem petition claiming that the court lacked subject matter jurisdiction. The petitioner objected and the parties filed briefs in support of their positions. The matter was heard by the court on August 7, 2006, at which time evidence was received and oral arguments made. On January 26, 2007, the petitioner moved for reassignment, which motion was granted by the court, Keegan, J., on February 26, 2007. On that date, the court declared a mistrial on the matter and the parties agreed that, in rendering its decision on the matter, the court could consider the transcript of August 7, 2006, and the motions and memoranda filed by the parties. Neither the petitioner nor the respondent offered any further evidence on February 26, 2007.
The respondent's argument in support of the motion to dismiss is thus: because more than ninety days passed before the filing of the in rem petition, the court lacks subject matter jurisdiction. C.G.S. § 54-36h(b) states in pertinent part: "Not later than ninety days after the seizure of moneys or property subject to forfeiture . . . in connection with a lawful criminal arrest or a lawful search, the assistant . . . state's attorney may petition the court in the nature of an in rem proceeding to order forfeiture of said moneys or property."
Although on its face, the issue appears straightforward, it is not. While there is no dispute that the instant in rem petition was date-stamped twice, the parties dispute which of the date-stampings controls.
In State v. $1,970, 43 Conn.Sup. 203, 211 (1994), the court addressed the question of a petition that had been filed more than ninety days after the seizure of the property. The court therein noted that C.G.S. § 54-33h is a construction of the legislature, and as such, commencement of any action thereunder can occur only during the prescribed time period of ninety days. The court held that a failure to timely file within the ninety days divests a court of subject matter jurisdiction. It is under this theory that the respondent argues for dismissal. He argues that the latter filing date, as exists on the in rem petition, is controlling and outside of the statutory time limits. The petitioner responds that the first filing date controls and that any errors on the part of the GA #23 clerk's office subsequent to the filing of the matter does not affect the subject matter jurisdiction.
Additional facts adduced at the August 7, 2006 hearing, and considered by this court, are necessary to the resolution of the issue. The court finds the following facts. Virginia Hemming is the deputy clerk of the GA #23 clerk's office and has been since March 2003. One of the duties assigned exclusively to her is the processing of asset forfeiture petitions. In June 2005, Ms. Hemming was the only person who processed these petitions. In June 2005, Ms. Hemming accepted the instant in rem petition from an investigator in the state's attorney's office, filed and date-stamped the petition, and searched in the criminal information system for the criminal case. Once she discovered that the case had been transferred to the Part A division of the Superior Court in New Haven, she crossed out the date-stamp and returned the petition to the investigator for the state's attorney's office. Ms. Hemming testified that she did so, believing that the in rem petition could not be processed because the criminal case was not pending in the GA #23 court. This decision was in contravention of established Judicial branch policies, and without judicial order.
The commencement of process in an in rem proceeding under § 54-36h is governed by subsection (b). The proceeding is deemed to be a civil suit in equity, with the burden on proof on the state. Once the state timely petitions the court for forfeiture, the court has the duty to identify the owner or interested party and require the state to promptly give notice of the hearing. The court must then hold a hearing on the petition, at which time the court hears evidence, makes findings of fact and conclusions of law and issues a final order. The duties of a clerk of the superior court are set out in Practice Book § 7-2. It is the duty of the clerk to receive documents and to have the custody of the files and records.
In the present case, the petitioner met the statutory obligations to commence the filing of an in rem proceeding; namely, that on June 8, 2005, the seventy-second day after the seizure of $4,753.00 in U.S. currency, the state petitioned the court for forfeiture of said money. Through no fault of the petitioner, and without any legal authority, the clerk's office erroneously returned the petition.
This court has found persuasive the reasoning of other Superior Court decisions involving errors made by a clerk's office. In Wight v. Commissioner of Social Services, 1995 WL 263552, (Conn.Super 1995) a clerk's office returned an appellate filing fee because the check was made payable to the incorrect party. The clerk did not stamp the appeal as filed until he received the new check, which was then beyond the statutory time for filing. The court held that it could not reject jurisdiction of the matter. The court noted that the clerk was in error by not accepting the appeal for filing on the date it was first received with the check. "Such an error may not be the basis for defeating the court's jurisdiction and denying the plaintiff her day in court." Id.
In Luckingham v. Campbell, 2006 WL 300448 (Conn.Super. 2006) [ 42 Conn. L. Rptr. 145], the plaintiff attempted to file an amended complaint. The clerk's office rejected the filing, due to the fact that it was not signed by counsel. The clerk's office erred, however, when it returned the pleading to the wrong party, thus depriving the plaintiff the ability to remedy the signature in a timely fashion. Despite the Practice Book provision stating that all pleadings must be signed, the court noted that it was doubtful that the clerk's office had the power to refuse an unsigned pleading. The court found that the error was circumstantial and did not undermine the ability to have "the person and the cause . . . rightly understood." Id., quoting Andrews v. Hammond, 1 Conn.Sup. 21 (1935). Under a similar factual pattern, in Miller v. Kemp, 2002 WL 442150 (Conn.Super. 2002) [ 31 Conn. L. Rptr. 453] the clerk's office erroneously rejected a plaintiff's motion because of the lack of a certification to a party, which party was no longer a party to the action. The court held that the erroneous rejection of the filing was a clerical error that the court had the power to correct at any time. Id.
Finally, in Ciofoletti v. Ridgefield Planning Zoning Commission, 1993 WL 426319 (Conn.Super. 1999) the judgment file, as prepared by the clerk, did not comport with the court's pronounced judgment. The court granted the defendant's motion to correct the judgment file. The court noted that the "writing out of the judgment, in the form of the judgment file to be recorded, is a matter of subsequent clerical action." Accordingly, it held that "clerical error may be corrected at any time." Id.
It is irrelevant when the error caused by the clerk's office occurs; what is relevant is that the error was the result of the clerk's office and not one the parties. "Under the common law rule, a distinction is drawn between `matters of substance' and `clerical errors'; the distinction being that mere clerical errors may be corrected at anytime . . ." Blake v. Blake, 211 Conn. 485, 494, 560 A.2d 396 (1989). In fairness to all parties, the court must and should have the power to correct, at any time, an error made by the clerk's office, to ensure that the parties are given the opportunity for a full and fair hearing of their matter.
For all the above reasons, the respondent's motion to dismiss is DENIED.