Opinion
No. CV 05-4007003
April 6, 2006
MEMORANDUM OF DECISION ON MOTION TO DISMISS
I. INTRODUCTION
The captioned matter is an appeal from a decision ("decision") of the department of motor vehicles ("department"), acting by a hearing officer. The decision suspended the plaintiff's operator's license based upon the results of a blood alcohol test taken by him following his arrest for operating a motor vehicle under the influence of alcohol or drugs. The department has moved to dismiss the appeal on the ground that it was not filed within the 45 days limited for taking an appeal by Connecticut General Statutes § 4-183 (all further section references are to the General Statutes, unless otherwise indicated), thereby depriving the court of subject matter jurisdiction.
§ 4-183(c) provides that a person may appeal to the superior court from a decision by an agency "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."
II. FACTS
On May 25, 2005, the department mailed a copy of the decision to the plaintiff, but not to counsel ("counsel") who had appeared for the plaintiff at the department's hearing. In accordance with Regulations of Connecticut State Agencies § 14-137-38(p)(3), the department faxed a copy of the decision to counsel, at his request, on June 3, 2005. On June 8, 2005, the plaintiff petitioned the department for reconsideration of the decision. On June 14, 2005, the department denied that petition and mailed a copy of that denial to counsel. This appeal was filed on July 18, 2005, which was more than 45 days following the mailing of a copy of the decision to the plaintiff, but within 45 days of counsel's receipt of a copy of the decision. CT Page 6644
Regulations of Connecticut State Agencies § 14-137-38(p)(3) mandates the following procedure for the issuance of final decisions by the department: "Parties shall be notified either personally or by mail of any decision or order. Upon request, a copy of the text of the final decision or order shall be sent by mail to each of the respondents and respondents' counsel, and to any other party of record."
III. DISCUSSION
Filing an appeal within the 45 days dictated by § 4-183© is a mandatory jurisdictional requirement. Hefti v. Commission on Human Rights Opportunities, 61 Conn.App. 270, 275, 763 A.2d 688, cert. denied, 255 Conn. 948, 769 A.2d 62 (2001). Filing a petition for reconsideration does not stay the 45-day appeal period under § 4-183. Therefore, the dispositive issue on this motion is whether the 45-day appeal period was triggered by the mailing of a copy of the decision to the plaintiff or, on the other hand, by the faxing of a copy of the decision to counsel.Section 4-180(c) provides, in relevant part:
The agency shall state in the final decision the name of each party and the most recent mailing address, provided to the agency, of the party or his authorized representative. The final decision shall be delivered promptly to each party or his authorized representative, personally or by United States mail, certified or registered, postage prepaid, return receipt requested. The final decision shall be effective when personally delivered or mailed or on a later date specified by the agency. (Emphasis added).
The notice provision of § 4-180(c), which requires a decision to be delivered "to each party or his authorized representative," is susceptible to two different interpretations. On the one hand, it could be read to grant to an agency the choice of sending a copy of the decision to either the party or to the attorney who has appeared for the party in a proceeding. On the other hand, one could imply into the statute the phrase "if a party is represented." The sentence in issue would then read, by implication, "The final decision shall be delivered promptly to each party or, if a party is represented, to his authorized representative."
In Vega v. Waltsco, Inc., 46 Conn.App. 298, 699 A.2d 247 (1997), the Appellate Court rejected the claim that the time in which to appeal a decision by the workers' compensation review board did not begin to run until the attorney for the claimant received notice of the commissioner's decision. Dismissing the appeal as untimely, the Vega court articulated its conclusion that the rules of practice which apply to court proceedings do not extend to workers' compensation proceedings:
Practice Book [Section 7-5] implements § 51-53 by providing that, in matters pending in court, the "clerk shall give notice to attorneys of record and pro se parties" of judicial decisions. The Superior Court judges have inherent power to make rules governing procedure in the courts. The judges exercise that power by enacting rules of practice that are expressly limited to governing practice and procedure in the Superior Court. Nowhere in those rules do the judges purport to extend their rule-making authority to procedures before administrative agencies.
"Accordingly, that portion of the rules of practice pertaining to filing of appearances and directing notices and pleadings to counsel of record does not pertain to workers' compensation proceedings . . . It is perhaps understandable that an attorney, accustomed to the court procedure, might be lulled into expecting that the same rubrics will be followed in administrative and quasi-judicial agencies. Should these court procedures be relied on in an agency proceeding, however, it would be done at counsel's peril.
Vega at 302-03 (internal citations omitted; emphasis added).
The issue in Vega was governed by the Workers' Compensation Act, §§ 31-275 et seq., not the Uniform Administrative Procedures Act ("UAPA"), §§ 4-166 et seq. In fact, § 4-186(c) of the UAPA expressly exempts from the provisions of § 4-180(c) appeals from decisions of a workers' compensation commissioner. However, the guidance to be gleaned from Vega is that an attorney who files an appearance in an administrative proceeding is not entitled to the same notice required in a superior court proceeding. This court finds the rationale in Vega to be persuasive.