Opinion
No. AC 27878
February 9, 2007.
MEMORANDUM OF DECISION RE MOTION TO DISMISS
The matter before the Court pertains to the State of Connecticut Department of Social Services' claim that the plaintiff Raymond Peter Godaire failed to file an appeal from a decision of the Department of Social Services within the statutory mandated period of time provided for in Section 4-183 of the Connecticut General Statutes. The Court has reviewed the motion and memorandum of law of the plaintiff and memorandum of law and exhibits submitted by the defendant. The Court concludes that the motion to dismiss should be denied.
"The record of a Court, is the act of the Court; and the clerk is merely a recording officer. If there appear any mistake of the clerk, in making up the record, the Court will direct him to amend it; and in this, as well as in his other entries, he is entirely ministerial." Hillhouse v. Dunning, 7 Conn. Reports 139, 141 (1828). Furthermore, clerks of the court are mere recording officers; if they make a mistake, the Court may amend it. Their function is merely ministerial. State v. Rowe, 24 Conn.Sup. 100, 103, 1 Conn. Cir.Ct., 427, 430, 186 A.2d 809, cert. denied 150 Conn. 708, 204 A.2d 934 (App.Div. 1962).
The Court finds that the plaintiff attempted to file his appeal within the 45-day statutorily mandated period. The defendant had insufficient funds to file the appeal on the date he attempted to file it. On the next day, he filed and was granted a waiver of fees for purposes of filing. He attempted to file an appeal and was denied that right. All of the above acts occurred within the statutory time period for the appeal.
Furthermore, the plaintiff had the ability to serve the defendant by way of registered mail return receipt requested. The plaintiff was apparently not advised by the clerk as to that right nor was he aware that Section 4-183c(1) of the Connecticut General Statutes so provided. It is also important to note that the defendant fax filed a copy of the appeal to the attorney general's office within the 45-day period of time.
The Court concludes that the defendant attempted to file the appeal within the 45-day period and further attempted to serve the attorney general within said period. While the fax filing within the 45 days is not in compliance with the Connecticut General Statutes, this Court concludes that the clerk should have accepted the appeal prior to the termination of the 45 days. Furthermore, the Court finds that the attorney general received actual notice of the appeal within said 45-day period resulting in no prejudice to the attorney general. See Bittle v. Commission of Social Services, 249 Conn. 514 (1999); Kindl v. Department of Social Services, 69 Conn.App. 563 (2002).
The defendant further contends that the present appeal should be dismissed because the plaintiff is not aggrieved. Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it. Med-Trans, Inc. v. Dept. of Public Health Addiction Services, 242 Conn. 152, 159 (1997). The defendant admits that the plaintiff has a specific personal and legal interest in the subject matter of the decision. Whether the plaintiff's interest has been specially and injuriously affected by the decision would be left for the trial judge to decide.
ORDER
The defendant's motion to dismiss dated January 10, 2007 is hereby denied.