text:
    GLEN ROSENGARTEN v. PETER DOWNES
    (AC 22253)
    Foti, Flynn and Dupont, Js.

      Argued March 28 —
    officially released July 30, 2002

      Gary I. Cohen, for the appellant (plaintiff).
   Opinion

FLYNN, J.

This is an appeal from the trial court’s judgment dismissing an action to dissolve a same sex civil union for lack of subject matter jurisdiction, which union the plaintiff, Glen Rosengarten, claims was entered into with the defendant, Peter Downes, in Vermont, pursuant to Vt. Stat. Ann. tit. 15, § 1201 et seq. (2001). Service of process on the defendant, who apparently resides in New York, was accomplished by certified mail in accordance with an order of notice. The trial court dismissed the action because it concluded that General Statutes § 46b-l and Practice Book § 25-2 grant powers to the Superior Court to hear and decide actions for dissolution of marriages between a man and a woman, and the Vermont civil union did not fall into the category of other family relations matters set out in General Statutes § 46b-l (17).

The court determined that it was not empowered with “ ‘plenary and general subject matter’ jurisdiction,” much less the ability to exercise its broad statutory equitable powers to dissolve a civil union. On appeal, the plaintiff does not claim that the civil union may be dissolved as a marriage. Instead, he claims that the trial court improperly sua sponte dismissed the action for lack of subject matter jurisdiction because § 46b-l (17) grants the Superior Court subject matter jurisdiction over “all such other matters within the jurisdiction of the Superior Court concerning children or family relations as may be determined by the judges of said court” and that the dissolution of a Vermont civil union is a matter relating to family relations. The plaintiff further claims that principles of full faith and credit demand that Connecticut recognize civil unions entered into under the laws of Vermont, and thereby the right to dissolve them in a Connecticut forum, because Connecticut has a public policy in favor of recognizing civil unions and, therefore, the court improperly dismissed this action seeking a dissolution of such a union for lack of subject matter jurisdiction. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. The plaintiff commenced this action by writ of summons and complaint, dated July 11, 2001. The complaint alleged that the plaintiff and the defendant were joined in a civil union in Vermont on December 31, 2000, pursuant to the statutes of the state of Vermont, that the civil union had broken down irretrievably and that the plaintiff had resided in Connecticut for at least one year preceding the commencement of the action. Pursuant to the complaint, the plaintiff sought “[a]n order dissolving the civil union of the parties” and “[s]uch other and further relief to which the Plaintiff may be entitled in law or equity.” Without holding a hearing, the court ordered the action dismissed on August 8, 2001, holding: “There is no subject matter jurisdiction under § 46b-l, and the matter is hereby dismissed sua sponte pursuant to § 25-14 of the Connecticut Practice Book.” Practice Book § 25-14 provides: “Any claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action.” See also Figueroa v. C & S Ball Bearing, 237 Conn. 1, 4-5, 675 A.2d 845 (1996). This appeal followed. At the time of the dismissal, the defendant had not filed an appearance in the trial court and he has not filed an appearance in this appeal.

On February 25, 2002, this court issued two orders. First, we ordered the parties to file supplemental briefs addressing the following issue: “Was it plain error for the trial court to dismiss this action without notice and a hearing, and should the dismissal be reversed accordingly, with an order directing the trial court to hold a hearing to determine whether it has jurisdiction over this matter?” The only responsive brief filed was that of the plaintiff, who argued that the trial court could raise the issue of subject matter jurisdiction sua sponte and that no hearing was necessary because jurisdictional facts were not in dispute, citing our holding in Pinchbeck v. Dept. of Public Health, 65 Conn. App. 201, 782 A.2d 242, cert. denied, 258 Conn. 928, 783 A.2d 1029 (2001). The plaintiff argued in his brief that “[t]here was simply nothing that any testimony regarding the plaintiffs claim for relief, i.e., dissolution of civil union, could have added to the court’s understanding of the jurisdictional issue: Does the Connecticut Superior Court have subject matter jurisdiction in this case, a complaint for dissolution of a civil union, a matter which concerns ‘family relations matters’?” The plaintiff did not mention his second prayer for relief, which requested that the court grant any other “relief to which the Plaintiff may be entitled in law or equity.”

We agree with the plaintiff that under Pinchbeck v. Dept. of Public Health, supra, 65 Conn. App. 201, the court did not need to hold an evidentiary hearing to aid in determining whether it had jurisdiction to dissolve a civil union. “When issues of fact are necessary to the determination of a court’s jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses.” Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983). In Pinchbeck, however, we explained that “[i]n the absence of any disputed facts pertaining to jurisdiction, a court is not obligated to hold an evidentiary hearing before dismissing an action for lack of jurisdiction.” Pinchbeck v. Dept. of Public Health, supra, 209.

In the present case, there are no factual issues in dispute, and the factual record before us, though sparse, is sufficient to determine whether there is jurisdiction to dissolve the plaintiffs Vermont civil union. There is nothing in the complaint to indicate that both parties to the purported union are of the same sex, and no evidence was taken on that issue. However, § 1201 (2) of title 15 of the Vermont Statutes Annotated provides: “ ‘Civil Union’ means that two eligible persons have established a relationship pursuant to this chapter, and may receive the benefits and protections and be subject to the responsibilities of spouses.” Section 1202 (2) of title 15 of the Vermont Statutes Annotated provides that parties to a civil union must “[b]e of the same sex and therefore excluded from the marriage laws” of Vermont. In Vermont, pursuant to § 1201 (4), marriage is defined as “the legally recognized union of one man and one woman.” Vt. Stat. Ann. tit. 15, § 1201 (4). Although not specifically pleaded, it is therefore clear from the complaint that the civil union described is between two persons of the same sex. We conclude that the record before the trial court was adequate for it to make a determination as to whether it had jurisdiction to dissolve a civil union and, therefore, it was unnecessary for the court to conduct an evidentiary hearing.

Second, we ordered the trial court to articulate, in a memorandum of decision, its reasons for dismissing the matter for lack of subject matter jurisdiction. In its articulation dated March 4, 2002, the court again noted that it had dismissed the matter for lack of jurisdiction pursuant to § 46b-l. The court explained that although the plaintiff had denominated the case a family relations matter by using a judicial branch code, “F00,” on the summons, neither § 46b-l, the statutory provision that defines the family relations matters within the jurisdiction of the Superior Court, nor Practice Book § 25-1, which provides that family matters within, the scope of the rules are those actions brought pursuant to § 46b-1, mentions the court’s power to dissolve civil unions. The court held that “[m]atters such as this which implicate significant issues of public policy are more properly within the domain of the legislature . . . [and] [a]s such, the legislature of a sister state cannot, in effect, make such a determination for the people of Connecticut.” In support of this conclusion, the court relied on General Statutes § 45a-727a (4), which provides that “the current public policy of the state of Connecticut is now limited to a marriage between a man and a woman.” It also relied on the Defense of Marriage Act, Pub. L. No. 104-199, § 2 (a), 110 Stat. 2419, codified at 28 U.S.C. § 1738C. It observed that title 28 of the United States Code, § 1738C, provides: “No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.”

The issue raised by the trial court’s dismissal of the action involves questions about the exercise of subject matter jurisdiction over foreign civil unions. In suggesting that jurisdiction may be found under subdivision 17 of § 46b-l, the plaintiff himself recognizes the difficulty of fitting his claim for relief under subdivision (1) of § 46b-l. Section 46b-l provides in relevant part: “Matters within the jurisdiction of the Superior Court deemed to be family relations matters shall be matters affecting or involving: (1) Dissolution of marriage . . . .” Clearly this civil union is not a marriage recognized under § 46b-l because it was not entered into between a man and a woman. See General Statutes §§ 45a-727a (4) and 46b-21. Nor is it a marriage under our sister state of Vermont’s definition of marriage found in § 1201 (4) of title 15 of the Vermont Statutes Annotated because it too limits the definition of marriage to those entered between “one man and one woman.”

The court held that because the dissolution of a civil union was not a family relations matter as set forth in either § 46b-l or Practice Book § 25-1, it lacked subject matter jurisdiction to dissolve such a union and was, therefore, required to dismiss the plaintiffs action. In his appeal to this court, the plaintiff challenges the validity of the trial court’s construction of § 46b~l. He contends that jurisdiction was vested in the court by § 46b-l, which provides in pertinent part that “[m]atters within the jurisdiction of the Superior Court deemed to be family relations matters shall be matters affecting or involving . . . (17) all such other matters within the jurisdiction of the Superior Court concerning children or family relations as may be determined by the judges of said court.” Thus, the court’s determination that it lacked subject matter jurisdiction turned on its construction of § 46b-l.

Because statutory construction raises an issue of law, our review is plenary. Alvarado v. Black, 248 Conn. 409, 414, 728 A.2d 500 (1999); Davis v. Norwich, 232 Conn. 311, 317, 654 A.2d 1221 (1995). The scope of our plenary review is governed by well established principles. “It is axiomatic that the process of statutory interpretation involves a reasoned search for the intention of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Citations omitted; internal quotation marks omitted.) Giaimo v. New Haven, 257 Conn. 481, 493, 778 A.2d 33 (2001).

Implicit in the plaintiffs argument that jurisdiction exists under § 46b-l (17) is that we must recognize the validity of the Vermont civil union as a matter concerning family relations. If Connecticut does not recognize the validity of such a union, then there is no res to address and dissolve.

We begin our construction of § 46b-l by first examining the text of the statute itself. Section 46b-l provides: “Matters within the jurisdiction of the Superior Court deemed to be family relations matters shall be matters affecting or involving: (1) Dissolution of marriage . . . (2) legal separation; (3) annulment of marriage; (4) alimony, support, custody and change of name incident to dissolution of marriage, legal separation and annulment; (5) actions brought under section 46b-15; (6) complaints for change of name; (7) civil support obligations; (8) habeas corpus and other proceedings to determine the custody and visitation of children; (9) habeas coipus brought by or in behalf of any mentally ill person except a person charged with a criminal offense; (10) appointment of a commission to inquire whether a person is wrongfully confined as provided by section 17a-523; (11) juvenile matters as provided in section 46b-121; (12) all rights and remedies provided for in chapter 815j; (13) the establishing of paternity; (14) appeals from probate concerning: (a) Adoption or termination of parental rights; (b) appointment and removal of guardians; (c) custody of a minor child; (d) appointment and removal of conservators; (e) orders for custody of any child; (f) orders of commitment of persons to public and private institutions and to other appropriate facilities as provided by statute; (15) actions related to prenuptial and separation agreements and to matrimonial decrees of a foreign jurisdiction; (16) custody proceeding brought under the provisions of chapter 815o; and (17) all such other matters within the jurisdiction of the Superior Court concerning children or family relations as may be determined by the judges of said court.”

Clearly, subdivisions two through sixteen have no applicability to the issues in this case because those subdivisions relate to legal separations; annulments; alimony, support, custody and change of name incident to a dissolution of marriage; relief from physical abuse; changes of name; civil support; habeas corpus and other proceedings to determine custody and visitation of children; habeas corpus petitions brought on behalf of persons with psychiatric disabilities; commissions investigating claims of wrongful confinement; certain juvenile matters; proceedings concerning all rights and remedies brought under chapter 815j; paternity matters; appeals from probate concerning: adoption or termination of parental rights, appointment or removal of guardians, custody of minor children, appointment or removal of conservators, orders for custody of any child and orders of commitment to institutions or other statutorily approved facilities; actions related to prenuptial and separation agreements and to matrimonial decrees of foreign jurisdictions; and custody proceedings brought under chapter 815o, the Uniform Child Custody Jurisdiction Act. We note, in passing, that subdivision (12) concerning rights and remedies provided for in chapter 815j is not claimed as a source of jurisdiction by the plaintiff, nor could it be, because it neither confers the right he claims nor does it authorize the remedy he seeks. We also note that subdivision (1) of § 46b-l defines dissolution of marriage as a family relations matter, but the plaintiff does not claim to have been married either under the laws of the state of Connecticut or the laws of the state of Vermont. Nor does he claim entitlement to relief under that subdivision.

The plaintiff does claim that subdivision (17) of § 46b-1 permits the court to exercise jurisdiction. We first observe that the plain words of § 46b-l define two categories of family matters. Subdivisions (1) through (16) statutorily define specific kinds of family matters “within the jurisdiction” of the court. Subdivision (17) is a catchall provision “concerning children or family relations” as may be determined by the judges of the Superior Court. The matter before us does not involve children and, therefore, that part of subdivision (17) does not provide a basis for the exercise of jurisdiction. Additionally, the judges of the Superior Court have not enacted any rule of practice that would define foreign civil unions as a family matter either. We therefore find nothing in the text of § 46b-l (17) or in the rules of the Superior Court pertaining to family matters, Practice Book §§ 25-1 through 25-69, inclusive, that would support the plaintiffs claim that jurisdiction exists.

We next examine the legislative history of the enactment of subdivision (17) of § 46b-l, the statutory provision relied on by the plaintiff in this appeal, and the legislative policy it was designed to implement. During the Senate proceedings, it was noted that the reason for the enactment of § 46b-l (17), which was part of the court merger bill of the Connecticut Court of Common Pleas and the Superior Court, was to eliminate the waste of judicial personnel caused by “ill-defined jurisdictional lines causing duplication of efforts” and “to provide for the unification, simplification, flexibility and effective responsible control of the administration of the courts of the state of Connecticut.” 19 S. Proc., Pt. 7, 1976 Sess., p. 2652, remarks of Senator David H. Neiditz. Our review of the legislative history of § 46b-1 revealed nothing that would support the plaintiffs expansive inteipretation of § 46b-l (17). Instead, its obvious intent was to collect all matters that had previously been divided between the old Common Pleas Court and the old Superior Court, into the newly merged Superior Court.

Finally, we examine the provisions of § 46b-l (17) in relationship with existing legislation and common-law principles to determine whether the recognition of civil unions and the corresponding right to dissolve such unions was contemplated as a family relations matter by our legislature. General Statutes §§ 45a-727b and 46a-81r, both of which are discussed in greater detail later in this opinion, expressly state that Connecticut does not endorse or authorize, respectively, civil unions or any other relationship between unmarried persons. On the basis of these enactments, we conclude that because the legislature expressly refused to endorse or authorize such unions it could not have intended civil unions to be treated as family matters within the jurisdiction of the Superior Court pursuant to § 46b-l (17).

Moreover, common-law principles left the issue about who might marry generally to the ecclesiastical courts. See 1W. Blackstone, Commentaries on the Laws of England (5th Ed. 1773) p. 453. It is plain from a reading of Blackstone, who speaks of husband and wife, and his discussion of the common law as applied to husband and wife, that by using terms like husband and wife or, its Norman French equivalent, baron and feme, the understanding of English common law was that marriage was a contract entered into by a man and a woman. Id., 453, 457. Judge Swift, in his discussion of the common law of Connecticut regarding rights arising out of marital status, makes clear that this legal relation contemplated a contract made between a man and a woman. 1 Z. Swift, A Digest of the Laws of the State of Connecticut (1822) p. 18. This is also clear when one reads Judge Swift’s discussion of limitations on marriage within certain degrees of kindred, which are prohibited on the ground “that such incestuous connection is repugnant to the law of nature.” Id., p. 19. The examples he gives are all of men then unable to marry women of various degrees of kindred. Id.

In determining that the legislative intent in the adoption of subdivision (17) of § 46b-l was not to make Connecticut courts a forum for same sex, foreign civil unions, we, therefore, conclude that the text itself, the rules of court, the legislative history, the strong legislative policy against permitting same sex marriages and the relationship between other statutes, legislative enactments of state policy and the common law are all in accord with that view.

We note that the court based its determination that it lacked jurisdiction to dissolve a civil union, in part, on its conclusion that the Vermont legislature cannot legislate for the people of Connecticut. We agree with the court that the statutes of Vermont do not have extraterritorial effect; see Olmsted v. Olmsted, 216 U.S. 386, 395, 30 S. Ct. 292, 54 L. Ed. 530 (1910); and analyze this full faith and credit claim.

The constitution of the United States, article four, § 1, requires that: “Full faith and credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. . . .” “[W]here statute or policy of the forum State is set up as a defense to a suit brought under the statute of another State . . . the conflict is to be resolved, not by giving automatic effect to the full faith and credit clause and thus compelling courts of each State to subordinate its own statutes to those of others but by appraising the governmental interest of each jurisdiction and deciding accordingly. That is, the full faith and credit clause, in its design to transform the States from independent sovereigns into a single unified Nation, directs that a State, when acting as the forum for litigation having multistate aspects or implications, respect the legitimate interests of other States and avoid infringement upon their sovereignty, but because the forum State is also a sovereign in its own right, in appropriate cases it may attach paramount importance to its own legitimate interests. The clause (and the comparable due process clause standards) obligate the forum Stale to take jurisdiction and to apply foreign law, subject to the forum’s own interest in furthering its public policy. In order for a State’s substantive law to be selected in a constitutionally permissible manner, that State must have a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair.’ ” (Emphasis added.) Congressional Research Service, Library of Congress, The Constitution of the United States of America, Analysis and Interpretation (J. Kil-lian & G. Costello eds. 1996) art. IV, § 1, pp. 855-56, citing Allstate Ins. Co. v. Hague, 449 U.S. 302, 101 S. Ct. 633, 66 L. Ed. 2d 521 (1981); Nevada v. Hall, 440 U.S. 410, 99 S. Ct. 1182, 59 L. Ed. 2d 416 (1979); Carroll v. Lanza, 349 U.S. 408, 75 S. Ct. 804, 99 L. Ed. 1183 (1955); Alaska Packers Assn. v. Industrial Accident Commission, 294 U.S. 532, 55 S. Ct. 518, 79 L. Ed. 1044 (1935).

We conclude that the plaintiff in the present case has a significant set of contacts with this state because he is a resident of Connecticut and has chosen a Connecticut court as the forum in which he seeks the dissolution of this civil union. The only record before us, based on the plaintiffs pleadings, is that, other than having entered the civil union in Vermont, neither party to the civil union has any other significant contact with that state.

The plaintiff contends, “Connecticut public policy clearly favors the conclusion that the Superior Court has subject matter jurisdiction to dissolve the civil union entered into in Vermont.” He claims that principles of full faith and credit demand that Connecticut recognize Vermont’s civil union statutes unless recognition would violate some strong public policy of Connecticut. He further claims that Connecticut does not have a strong public policy against recognition of civil unions but, instead, that Connecticut public policy favors the recognition of civil unions and the right to dissolve them. We disagree. We conclude that Connecticut public policy does not support that conclusion.

The plaintiff first points to General Statutes §§ 46a-81a through 46a-81r, which prohibit discrimination on the basis of sexual orientation as evidence of Connecticut’s clear public policy in favor of recognizing the right of homosexuals to enter into a marriage-like relationship and the corresponding right to dissolve such relationships in Connecticut courts. He claims that, in keeping with Connecticut’s public policy prohibiting discrimination based on sexual orientation, we should extend to homosexual citizens of this state all of the same relief we extend to heterosexual citizens when dissolving a marriage or marriage-like relationship. We disagree that the statutory sections cited by the plaintiff support his position that Connecticut has a clear public policy in favor of the recognition of the right to enter same sex unions or the right to dissolve them in the Superior Court.

General Statutes § 46a-81r, one of the sections of title 46a on which the plaintiff relies, provides in relevant part: “Nothing in sections . . . 46a-81a to 46a-81q, inclusive . . . shall be . . . construed ... (1) to mean the state of Connecticut condones homosexuality or bisexuality or any equivalent lifestyle ... (4) to authorize the recognition of or the right of marriage between persons of the same sex, or (5) to establish sexual orientation as a specific and separate cultural classification in society.”

One of the sources of law is custom and tradition. When § 46a-81r, on which the plaintiff relies, clearly states that “[n]othing in sections . . . 46a-81a through 46a-81q . . . shall be . . . construed ... to authorize . . . the right of marriage between persons of the same sex,” we fail to see how those sections, embodying custom, require Connecticut to provide a forum for recognition and dissolution of a same sex civil union that our law does not authorize. The trial court was entitled to rely on statutes based on that customary source of our law. It does not constitute invidious discrimination simply because a state places some restraints on who may marry. For example, some societies allow polygamous marriages, but Connecticut does not allow such marriages and neither does Vermont. Connecticut has exercised the power to limit by law who may marry since the beginning of the colony. Other than to cite title 46a, which we conclude stands for the opposite proposition of that for which he argues, the plaintiff has failed to brief the issue of the Connecticut legislature’s power to restrict the right to marry or enter into marriage-like relationships in terms of discrimination based on sexual orientation. Accordingly, we conclude that §§ 46a-81a through 46a-81r do not evidence a clear public policy in favor of recognizing same sex civil unions or the right to dissolve them.

The plaintiff next claims that the Connecticut legislature has evinced a willingness to recognize civil unions both by recently amending the adoption laws, found in General Statutes §§ 45a-724 through 45a-737, inclusive, to allow adoptions by same sex partners and by its refusal to enact its own version of the Defense of Marriage Act. Again, we disagree.

General Statutes § 45a-727a, entitled “State policy re best interests of child; public policy re marriage,” is a clear statement of public policy embodied in a statute which should be enforced and upheld despite contrary statutory enactments in the state of Vermont. See General Statutes § 45a-727a (4).

Although our General Assembly has on occasion adopted preambles to some of the enactments, it is not the usual case. However, there have been statutory enactments in which the legislature has expressly stated a particular policy. See, e.g., General Statutes §§ 22a-91 and 22a-92 (a) of the Coastal Management Act. Section 45a-727a of the General Statutes is unusual in that it is completely devoted to a declaration of legislative policy. Subdivision (4) of § 45a-727a provides: “It is further found that the current public policy of the state of Connecticut is now limited to a marriage between a man and a woman.”

The legislative history of the enactment of § 45a-727a shows that members of the General Assembly were initially reacting to what had become known as the In re Baby Z. case. In re Baby Z., 247 Conn. 474, 724 A.2d 1035 (1999). The court in In re Baby Z. held that General Statutes § 45a-727 of our then existing adoption laws did not permit a child with a natural or adoptive legal parent to be adopted by a second person other than that parent’s spouse. In re Baby Z., supra, 498-522. In response to the decision in In re Baby Z., the General Assembly enacted No. 00-228 of the 2000 Public Acts. In speaking against a proposed amendment to House Bill 5830, which ultimately passed without the amendment and became Public Act 00-228 and which amendment he found unnecessary, Senator Donald Williams, the Senate chair of the judiciary committee, in floor debate said that what some had termed the “gay adoption” bill did “not change our policy on marriage in the state of Connecticut.” 43 S. Proc., Pt. 8, 2000 Sess., pp. 2456-57. In floor debate, he stated that the bill had “protections” which made that “absolutely clear.” Id., p. 2457. He pointed to § 1 of the bill, stating that “it is further found that the current public policy of the State of Connecticut is now limited to a marriage between a man and a woman.” Id. He also pointed to the last section of the bill, § 5, which provided that “nothing in this act shall be construed to establish or constitute an endorsement of any public policy with respect to marriage, civil union or any other form of relation between unmarried persons or with respect to any rights of or between such persons other than their rights and responsibilities to a child who is the subject of an adoption.” Id.

It becomes clear from a careful reading of the floor debate on this legislation in both houses, that a number of legislators were opposed to adoption of this legislation if it were to be used later in any way as a wedge by appellate or trial courts to require recognition of civil unions in Connecticut in the manner they ascribed to the Vermont Supreme Court in Baker v. State, 170 Vt. 194, 744 A.2d 864 (1999). Members of the General Assembly in their floor debate in each house did not make explicit mention of Baker. It is clear, however, that several legislators were concerned, as a result of the Vermont experience, that in overriding the ruling in the In re Baby Z. case by permitting adoption of a child who already had a natural or adoptive parent by another person of the same sex who was not lawfully married to that parent, they did not allow an appellate court to use that legislative enactment as a wedge to bring down the laws of Connecticut concerning who may marry. See, e.g., 43 S. Proc., supra, pp. 2451-52. The Baker court had done just that by citing the Vermont legislature’s enactment of a same sex couple adoption law as one of the reasons why there was no proper governmental purpose under the common benefits clause of the Vermont constitution to restrict marriage to unions between a man and a woman. Baker v. State, supra, 218-19. After discussing what it termed the “reality” that some persons in same sex relationships were conceiving children by artificial means, the Vermont court so used the enactment by the Vermont legislature of that change in the law when it stated: “The Vermont Legislature has not only recognized this reality, but has acted affirmatively to remove legal barriers so that same-sex couples may legally adopt and rear the children conceived through such efforts. See 15A V.S.A. § 1-102 (b) (allowing partner of biological parent to adopt if in child’s best interest without reference to sex).” Baker v. State, supra, 218.

In the debate on the adoption of General Statutes §§ 45a-727a and 45a-727b, in answer to pointed questions from Senator Winthrop Smith, Senator Williams agreed that (1) the “finding of fact” at the beginning of the bill is a statement of public policy of the state of Connecticut and was established as such by its placement in the statutes and not through a legislative dialogue; 43 S. Proc., supra, p. 2472; (2) the language on lines eleven through thirteen in the bill establishes that the public policy of Connecticut is that a marriage is defined as being between one man and one woman; id., p. 2473; (3) after a legislature has established and recognized a policy like this that a court could not alter that policy without the legislature first making a change; id.; and (4) the language of the bill precluded a court from reaching a conclusion that Connecticut public policy would allow same sex marriages or unions. Id., pp. 2474-75.

In addition, contrary to the plaintiffs assertions, the legislative history reveals that the legislature failed to enact its own version of the Defense of Marriage Act not because it intended to evince a willingness to recognize civil unions, but because it thought such an enactment unnecessary. During the Senate debate, the following colloquy took place between Senators Smith and Williams. Senator Smith asked: “This amendment is the one that we’ve been calling DOMA, the [D]efens[e] [of] [M]arriage [A]ct, and based on the language we’ve just talked about in the underlying bill and the questions that we’ve just had, my question to you was, would the addition of this to the bill in front of us now be superfluous?” 43 S. Proc., supra, p. 2476. Senator Williams responded: “Exactly. I believe that this amendment would be superfluous.” Id. Furthermore, § 5 of Public Act 00-228, now codified at § 45a-727b, expressly provides: “Nothing in this section and sections 45a-724, 45a-727, 45a-727a and 45a-731 shall be construed to establish or constitute an endorsement of any public policy with respect to marriage, civil union or any other form of relation between unmarried persons or with respect to any rights of or between such persons other than their rights and responsibilities to a child who is a subject of an adoption as provided for in sections 45a-724 and 45a-727.” We therefore conclude that the Connecticut legislature has not demonstrated a willingness to recognize civil unions by either its amendment of the adoption statutes or by its failure to enact its own version of the Defense of Marriage Act.

Finally, the plaintiff relies on Boland v. Catalano, 202 Conn. 333, 521 A.2d 142 (1987), in support of his argument that Connecticut recognizes nontraditional relationships and affords the parties to such relationships a judicial remedy for the dissolution of those relationships. Specifically, he argues that under Boland this court can offer dissolution relief to the parties of this civil union under the theory that the partners to the union entered into an express contract, the terms of which are defined by § 1201 et seq. of title 15 of the Vermont Statutes Annotated. We disagree for the reasons already stated and because the plaintiff did not plead any express or implied contract to share earnings or assets.

In his second claim for relief, the plaintiff sought any relief to which he may be entitled in law or equity. If under any facts provable under a complaint, a court of law has jurisdiction to grant any one of the claims for relief set out in a plaintiffs complaint, then the plaintiffs action should not be dismissed sua sponte for lack of jurisdiction. See Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d 1089 (1998). In Boland, our Supreme Court adopted the holding of the California Supreme Court in Marvin v. Marvin, 18 Cal. 3d 660, 665, 557 P.2d 106, 134 Cal. Rptr. 815 (1976), that “[t]he courts should enforce express contracts between nonmarital partners except to the extent that the contract is explicitly founded on the consideration of meretricious sexual services. ... In the absence of an express contract, the courts should inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract, agreement of partnership or joint venture, or some other tacit understanding between the parties.” (Internal quotation marks omitted.) Boland v. Catalano, supra, 202 Conn. 340-41. The Boland court also expressly ruled, in adopting Marvin, that the court may also employ “equitable remedies” when warranted by the facts of the case. Id., 341. If before or during purportedly entering the Vermont civil union, the parties to this action entered an implied or express contract to “share their earnings and the fruits of their joint labor,” the court had jurisdiction to grant relief in law or equity as to that claim. Id., 342. “Ordinary contract principles are not suspended . . . for unmarried persons living together, whether or not they engage in sexual activity.” Id., 339.

In evaluating whether the complaint here permits jurisdiction to be exercised on the second claim for relief, we do not evaluate what agreements, if any, the plaintiff and defendant entered, explicitly or implicitly, regarding the sharing of assets or income of one with the other and whether such agreements are enforceable because, unlike Marvin v. Marvin, supra, 18 Cal. 3d 660, and Boland v. Catalano, supra, 202 Conn. 333, no such express or implied agreements are alleged in the complaint. Nor has the plaintiff distinctly claimed on appeal that jurisdiction might be exercised on this ground.

Finally, Boland is not authority for the proposition that Connecticut must recognize civil unions between same sex partners and provide a forum for their dissolution in the state of Connecticut. “The rights and obligations that attend a valid marriage simply do not arise where the parties choose to cohabit” without entering a valid marriage relationship. Id., 339.

The plaintiff also cites Practice Book § 25-2 as further grounds for the exercise of jurisdiction. This provision merely sets forth the necessary allegations of a complaint for dissolution of marriage, legal separation or annulment where jurisdiction already exists, but does not confer jurisdiction.

For all of the foregoing reasons, we conclude that a civil union is not a family relations matter and, therefore, the court was correct in determining that it had no subject matter jurisdiction to dissolve the civil union under § 46b-l (17).

The judgment is affirmed.

In this opinion the other judges concurred.

       Section 1202 of title 15 of the Vermont Statutes Annotated provides: “For a civil union to be established in Vermont, it shall be necessary that the parties to a civil union satisfy all of the following criteria:
      “(1) Not be a party to another civil union or a marriage.
      “(2) Be of the same sex and therefore excluded from the marriage laws of this state.
      “(3) Meet the criteria and obligations set forth in 18 V.S.A. chapter 106.”

       Practice Book § 25-1, entitled “Definitions Applicable to Proceedings on Family Matters,” provides: “The following shall be ‘family matters’ within the scope of these rules: Any actions brought pursuant to General Statutes § 46b-l, including but not limited to dissolution of marriage, legal separation, dissolution of marriage after legal separation, annulment of marriage, alimony, support, custody, and change of name incident to dissolution of marriage, habeas corpus and other proceedings to determine the custody and visitation of children except those which are properly filed in the superior court as juvenile matters, the establishing of paternity, enforcement of foreign matrimonial judgments, actions related to prenuptial and separation agreements and to matrimonial decrees of a foreign jurisdiction, actions brought pursuant to General Statutes § 46b-15, custody proceedings brought under the provisions of the Uniform Child Custody Jurisdiction Act and proceedings for enforcement of support brought under the provisions of the Uniform Interstate Family Support Act.”

       General Statutes § 46b-15 (a) provides: “Any family or household member as defined in section 46b-38a who has been subjected to a continuous threat of present physical pain or physical injury by another family or household member or person in, or has recently been in, a dating relationship who has been subjected to a continuous threat of present physical pain or physical injury by the other person in such relationship may make an application to the Superior Court for relief under this section.”

       General Statutes § 17a-523 provides: “Any judge of the Superior Court, on information to him that any person is unjustly deprived of his liberty by being detained or confined in any hospital for psychiatric disabilities, or in any place for the detention or confinement of persons with psychiatric disabilities, or in custody and control of any individual under an order of a court of probate, may appoint a commission of not fewer than two persons, who, at a time and place appointed by them, shall hear any evidence offered touching the case. Such commission need not summon the party claimed to be unjustly confined before it, but shall have one or more private interviews with him and shall also make inquiries of the physicians and other persons having charge of such place of detention or confinement, and within a reasonable time thereafter report to such judge the facts and its opinion thereon. If, in its opinion, such person is not legally detained or confined in such place, or is cured, or his confinement is no longer beneficial or advisable, such judge shall order his discharge; but no commission shall be appointed with reference to the same person more often than once in six months. The judge before whom any of the proceedings provided for in this section are had may tax reasonable costs at his discretion.”

       Chapter 815j, comprised of General Statutes §§ 46b-40 through 46b-87a, inclusive, sets out rights and remedies arising from dissolution of marriage, legal separation and annulment.

       We note that our legislature has recently had the opportunity to authorize same sex marriages and civil unions and has not done so. On February 6, 2002, House Bill No. 5001, which would have authorized two persons to enter into marriage regardless of sex, and House Bill No. 5002, which would have authorized the establishment of civil unions and granted the parties to a civil union the same benefits, protections and responsibilities as granted to spouses in a marriage, were referred to the judiciary committee. A public hearing on that proposed legislation was held on February 11, 2002. No action was taken, and the bills died in committee.

       Blackstone wrote: “Some have divided the common law into two principal grounds or foundations: 1. Established customs . . . and 2. Established rules and maxims .... But I take these to be one and the same thing. For the authority of these maxims rests entirely upon general reception and usage; and the only method of proving, that this or that maxim is a rule of the common law, is by shewing that it hath been always the custom to observe it.” 1 W. Blackstone, supra, p. 68.

       “Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the Legislature. That body prescribes the age at which parties may contract to marry, the procedure or form essential to constitute marriage, the duties and obligations it creates, its effects upon the property rights of both, present and prospective, and the acts which may constitute grounds for its dissolution.” Maynard v. Hill, 125 U.S. 190, 205, 8 S. Ct. 723, 31 L. Ed. 654 (1888).

       “At common law, the second marriage was always void . . . and from the earliest history of England polygamy has been treated as an offence against society. After the establishment of the ecclesiastical courts, and until the time of James L, it was punished through the instrumentality of those tribunals, not merely because ecclesiastical rights had been violated, but because upon the separation of the ecclesiastical courts from the civil the ecclesiastical were supposed to be the most appropriate for the trial of matrimonial causes and offences against the rights of marriage; just as they were for testamentary causes and the settlement of the estates of deceased persons.” (Citation omitted.) Reynolds v. United States, 98 U.S. 145, 164-65, 25 L. Ed. 244 (1878).

       See General Statutes § 53a-190 (c), which makes bigamy a class D felony.

       See Vt. Stat. Ann. tit. 15, § 5, declaring bigamous marriages “null and void for all purposes,” and Vt. Stat. Ann. tit. 13, § 206, which provides that a person who commits the offense of bigamy “shall be imprisoned not more than five years.”

       Practice Book § 25-2 provides: “(a) Every complaint in a dissolution of marriage, legal separation or annulment action shall state the date and place, including the city or town, of the marriage and the facts necessary to give the court jurisdiction.
      “(b) Every such complaint shall also state whether there are minor children issue of the marriage and whether there are any other minor children bom to the wife since the date of marriage of the parties, the name and date of birth of each, and the name of any individual or agency presently responsible by virtue of judicial award for the custody or support of any child. These requirements shall be met whether a child is issue of the marriage or not and whether custody of children is sought in the action. In every case in which the state of Connecticut or any town thereof is contributing or has contributed to the support, or maintenance of a party or child of said party, such fact shall be stated in the complaint and a copy thereof served on the attorney general or town clerk in accordance with the provisions of Sections 10-12 through 10-17. Although the attorney general or town clerk shall be a party to such cases, he or she need not be named in the writ of summons or summoned to appear.
      “(c) The complaint shall also set forth the plaintiff’s demand for relief and the automatic orders as required by Section 25-5.”


source: Caselaw Access Project

author: BISHOP, J. SCHALLER, J.,

license: Public Domain

text:
    MILLER’S POND COMPANY, LLC v. ARTHUR J. ROCQUE, COMMISSIONER OF ENVIRONMENTAL PROTECTION
    (AC 21850)
    Schaller, Bishop and Hennessy, Js.

      Argued February 13 —
    officially released July 30, 2002

      Richard S. Cody, with whom, on the brief, was Jason Westcott, for the appellant (plaintiff).

      Richard F. Webb, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Kimberly P. Massicotte, assistant attorney general, for the appellee (defendant).
   Opinion

BISHOP, J.

The plaintiff, Miller’s Pond Company, LLC, appeals from the judgment of the trial court dismissing on jurisdictional grounds its appeal from an administrative decision of the defendant, Arthur J. Rocque, the commissioner of environmental protection (commissioner), rejecting the plaintiffs application for a permit to divert water and to remove gravel from Miller’s Pond. The plaintiff claims that the court improperly dismissed the appeal on the ground that the commissioner’s action was not a final decision in a contested case within the meaning of the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq. We reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion.

The following facts and procedural history are relevant to this appeal. On November 5, 1998, the plaintiff filed an application with the commissioner, pursuant to the Connecticut Water Diversion Policy Act, General Statutes §§ 22a-365 to 22a-378, for a permit to divert water and to remove gravel from Miller’s Pond. Most of the land on which Miller’s Pond is located is owned by the plaintiff, and the pond has been identified since the 1980s as a future source of potable water to supplement the public water supply in southeastern Connecticut.

The record reflects that, prior to the filing of the application, an official from the department of environmental protection (department) met with the plaintiff’s consultant and indicated that a single public hearing would probably be held on the Miller’s Pond proposal and a competing proposal filed in February, 1998, by the city of New London for the upstream diversion of water from Hunts Brook. The official anticipated that a decision would be made to reject both proposals or to accept one and reject the other.

In December, 1998, the department sent a letter to the city of New London entitled “Notice of Insufficiency,” in which it stated that the Hunts Brook application was “insufficient for processing” and that the department would halt processing until the insufficiencies described in the notice had been corrected. Meanwhile, the department did not act on the Miller’s Pond application.

On September 3,1999, the plaintiff filed a mandamus action seeking to compel the department to process its application. Approximately six weeks later, on October 20, 1999, the department issued a letter to the plaintiff entitled “Rejection Notice,” stating that the plaintiffs application was “insufficient for processing and is hereby rejected pursuant to section 22a-3a-2 (e) 4of the Regulations of Connecticut State Agencies.” The letter described the application as “insufficient” because it failed to include the New London Water and Water Pollution Control Authority (NLWWPCA), a potential user of the diverted water, as a “co-applicant” in accordance with § 22a-377 (c)-2 (g) of the regulations. The letter stated that the NLWWPCA would be required to sign and certify “an amended permit application” and that the applicants would be required to “re-notice” the application. If the plaintiff proposed to convey the water to some other user, it must affirmatively state this intent and describe the proposal in specific detail with full disclosure in the public notice. The letter also identified numerous other “substantive problems” with the application. The letter nonetheless advised that “[t]his rejection does not prejudice you from filing a new application” in which the insufficiencies would be corrected and included an attachment describing new public notice requirements for permit applications. There is no evidence in the record that the commissioner sent notice of, or conducted a public hearing prior to, or following, the issuance of the rejection letter.

The plaintiff appealed to the Superior Court, claiming, inter alia, that the commissioner improperly failed to deem the application complete or insufficient and to hold a public hearing pursuant to General Statutes § 22a-371 before making a final determination to reject the application. The court concluded, in a memorandum of decision dated April 3, 2001, that the notice of rejection did not constitute a final decision in a contested case and, consequently, the court did not have subject matter jurisdiction to hear the appeal. “The legal right or privilege at issue here is the plaintiffs right or privilege to obtain a permit for water diversion and graveling operations from the [department], . . . The October 20, 1999 rejection notice, however, did not adjudicate that right. It indicated that the application, as submitted by the plaintiff, was insufficient and could not be processed because it did not contain information required by agency regulations. Even if the plaintiff had a legal right or privilege to a determination that its application is complete, the plaintiff does not have a right to appeal unless the [department] was statutorily required to make such a determination following a hearing or an opportunity for a hearing.”

The court observed that the law provides, pursuant to § 22a-371, that if the commissioner finds that an application is complete, he shall notify the applicant and hold a public hearing before approving or denying the application, but that the provision does not require the commissioner “to hold a hearing on the matter of whether an application is complete. . . . Accordingly, as the rejection notice was not issued in a contested case, there is no final decision . . . from which the plaintiff can appeal.”

The court concluded that the plaintiff had an adequate remedy at law because the notice of rejection advised that the applicant could file “ ‘a new application in which the above insufficiencies have been corrected.’ . . . Therefore, the plaintiff has yet to have its application processed and its rights adjudicated through the administrative process of the [department]. Accordingly, the plaintiff . . . fails to satisfy the exhaustion requirement of General Statutes § 4-183 (a).”

The court further concluded that it could not consider the merits pursuant to § 4-183 (b), which provides for jurisdiction in exceptional circumstances even if a party has failed to exhaust its administrative remedies, because there were no exceptional circumstances indicating that postponement of the appeal would result in an inadequate remedy. “The plaintiff fails to demonstrate how submitting a new application with the information required by the [department] and postponing the appeal until a final decision on the merits is rendered by the [department], would be futile or an inadequate remedy. The [department] stated in the rejection notice that once the plaintiff corrects the insufficiency, it can submit a new application for processing.” The court then determined that, because the plaintiff had failed to satisfy the requirements of § 4-183 (a) or (b), it lacked subject matter jurisdiction to hear the appeal. This appeal followed.

The plaintiff claims that the court improperly dismissed its appeal for lack of subject matter jurisdiction. The plaintiff claims that it appealed from the commissioner’s final decision in a contested case and that there is no adequate remedy at law. The plaintiff thus claims that it has met the requirements for an appeal under § 4-183. We agree.

We first consider the applicable standard of review. “A determination regarding a trial court’s subject matter jurisdiction is a question of law. When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Doe v. Roe, 246 Conn. 652, 660, 717 A.2d 706 (1998).

General Statutes § 4-183 (a) provides in relevant part: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section. . . .” Section 4-166 (3) defines the term final decision as “(A) the agency determination in a contested case, (B) a declaratory ruling issued by an agency pursuant to section 4-176 or (C) an agency decision made after reconsideration. . . .” Section 4-166 (2) defines a contested case as “a proceeding ... in which the legal rights, duties or privileges of a party are required by statute to be determined by an agency after an opportunity for hearing or in which a hearing is in fact held . . . .” “Three criteria are considered in determining contested case status: (1) whether a legal right, duty or privilege is at issue, (2) [that] is statutorily required to be determined by [an] agency, (3) through an opportunity for a hearing . . . .” (Emphasis added; internal quotation marks omitted.) In re Baby Z., 247 Conn. 474, 491, 724 A.2d 1035 (1999).

Here, the court concluded that the first criterion in determining contested case status was satisfied because “[t]he legal right or privilege at issue here is the plaintiffs right or privilege to obtain a permit for water diversion and graveling operations from the [department].” The court deemed the second two criteria not satisfied, however, when it determined that the provisions of § 22a-371 leave to the commissioner’s discretion the decision to hold a hearing on whether an application is complete.

General Statutes § 22a-371 provides in relevant part: “(a) Within one hundred twenty days of receipt of an application for a permit, the commissioner shall determine if there is any additional information that he deems necessary to carry out the purposes of sections 22a-365 to 22a-378, inclusive. The applicant shall provide such information to the commissioner upon request or may request that the application be deemed complete as is.

“(b) If the applicant does not furnish the requested information, the commissioner shall publish notice of his tentative determination on the application in accordance with section 22a-6h and shall hold or waive a public hearing in accordance with the provisions of subsection (f) of this section.

“(c) If the commissioner finds that an application is complete, he shall notify the applicant by certified mail, return receipt requested. The commissioner shall also notify the applicant of the time, date and location of any public hearing to be held on the application.

if;

“(f) The commissioner shall hold a public hearing before approving or denying an application, except that, when the commissioner determines that the proposed diversion (1) is necessary, (2) will not significantly affect long-range water resource management or the environment, and (3) will not impair proper management and use of the water resources of the state, he may waive the requirement for a hearing . . . .”

In the present case, instead of following the procedure prescribed by the governing statutory provisions, the commissioner issued a notice of rejection under § 22a-3a-2 (e) of the regulations that ended the proceeding without a hearing based on his determination that the application was “insufficient for processing.” Rejection on that basis was improper. Section 22a-3a-2 (e) is one of the early sections of the department regulations entitled “Rules of Practice.” Section 22a-3a-2 is entitled “General” and is, therefore, a regulation of general applicability that governs the processing of applications not subject to more specific statutory and administrative guidelines. Indeed, § 22a-3a-2 (b) (1) of the regulations expressly limits the applicability of § 22a-3a-2 (e) by providing that the rules of practice govern department proceedings “unless otherwise provided by law

The governing statutes in the present case are General Statutes §§ 22a-371, 22a-6n and 22a-6p, and the governing regulation is § 22a-377 (c)-2 (a) (3).* **** That regulation pertains solely to applications for permits under the Connecticut Water Diversion Policy Act and expressly cites § 22a-371 (b) of the General Statutes, with its hearing requirement. It is a well settled principle of statutory construction that “specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling.” (Internal quotation marks omitted.) State v. State Employees’ Review Board, 239 Conn. 638, 653, 687 A.2d 134 (1997).

Under the plain language of General Statutes §§ 22a-371, 22a-6h and 22a-6p; see footnote 5; the commissioner was required to give the applicant an opportunity to remedy any identified deficiencies in its application or to request that the application be deemed complete as submitted. If the plaintiff did not furnish the requested information or remedy the deficiencies, the commissioner was required by statute to publish notice of his tentative determination on the application and to hold a public hearing before making a final decision to grant or deny the application. If the applicant requested that the application be deemed complete as submitted, the commissioner was required to hold a public hearing on the application as deemed complete pursuant to subsection (c) of § 22a-371. The only exception to this procedure, not applicable here, is if the hearing requirement is waived in accordance with subsection (f) of § 22a-371. Accordingly, because the commissioner did not give the plaintiff an opportunity to remedy the application’s deficiencies, or to request that the application be deemed complete as submitted and have those deficiencies examined in the forum of a public hearing, the plaintiff was aggrieved by the commissioner’s failure to hold such a hearing, and the case is contested pursuant to § 4-166 (2).

The commissioner’s rejection of the application is also a final decision from which an appeal may be taken pursuant to § 4-183 because the rejection effectively terminated the proceeding. The department’s letter to the plaintiff stated that the rejection did not prejudice the plaintiff from filing a new application in which the insufficiencies had been corrected. The court similarly noted in its memorandum of decision that the plaintiff had the option of filing a new application following its receipt of the rejection notice. Absent any other comment in the letter indicating that the plaintiff could choose to proceed under the statutory scheme by requesting that the application be deemed complete as submitted, or by providing the additional information requested without filing an entirely new application, the rejection notice constituted a final determination. This conclusion is supported by § 22a-3a-2 (c) (2) of the regulations, which provides that “[a] proceeding terminates when (A) the Commissioner issues a. final decision in a contested case . . . [or] (F) the Commissioner rejects an application for insufficiency pursuant to subsection (e) of this section or any other provision of law . . . .” (Emphasis added.)

The commissioner nonetheless argues that a hearing must be held for an appeal to lie. He argues that since no such hearing was held before he rejected the application, there is no final decision from which the plaintiff may appeal. We do not agree.

Under the statutory scheme, a hearing need not be held for an appeal to lie. This court has previously stated, in a similar factual and legal context, that contested case status does not depend on whether a hearing has been held; Dadiskos v. Connecticut Real Estate Commission, 37 Conn. App. 777, 782, 657 A.2d 717 (1995) (hearing not statutorily mandated, even if gratuitously held, does not create contested case); or whether a hearing is required by an agency rule, policy or regulation. Terese B. v. Commissioner of Children & Families, 68 Conn. App. 223, 235, 789 A.2d 1114 (2002) (agency rule, policy or regulation that requires hearing does not alone qualify proceedings as contested case). The significant fact from a legal standpoint is whether a hearing is statutorily required. See In re Baby Z., supra, 247 Conn. 491. Here, § 22a-371 (b) unquestionably provides that the commissioner “shall hold” a public hearing before making a final determination on a permit application unless waived in accordance with subsection (f). Subsection (f) does not apply in this case. We, therefore, conclude that the commissioner’s notice of rejection was a final decision for appeal purposes, despite the absence of a public hearing.

The commissioner also argues that General Statutes § 22a-374 provides a right to appeal only if an application is deemed incomplete for lack of substantive information, and not, as in the present case, if it merely “failed to meet the legal requirements of form.” The commissioner argues that the plaintiffs failure to include the city of New London as a co-applicant is the same type of “legal” deficiency as an omission of the applicant’s name, address or telephone number, all allegedly matters of incorrect form, and that the plaintiff may not appeal on that basis. This claim has no merit.

Section 22a-369 of the General Statutes provides in relevant part that “[t]he applicant shall submit an application on such form as the commissioner may prescribe and with such information as the commissioner deems necessary . . . .” (Emphasis added.) Section 22a-377 (c)-2 (a) (1) of the Regulations of Connecticut State Agencies similarly requires that “[a]n application for a permit to divert water shall be made on a form available from the Commissioner . . . .” (Emphasis added.)

“[Statutory language should be given its plain and ordinary meaning. . . . We refrain from reading into statutes provisions that are not clearly stated and interpret statutory intent by referring to what the legislative text contains, not by what it might have contained.” (Internal quotation marks omitted.) DiBello v. Barnes Page Wire Products, Inc., 67 Conn. App. 361, 368, 786 A.2d 1234 (2001), cert. granted on other grounds, 260 Conn. 915, 796 A.2d 560 (2002) (appeal withdrawn June 26, 2002).

The plain language of General Statutes § 22a-369a clearly contemplates a distinction, not between legal and substantive information, but between the application form and the information deemed necessary to evaluate the permit request. Moreover, the notice rejecting the plaintiffs application did not note any deficiency of “form,” but simply described the application as “insufficient for processing,” the same language that was used when the department returned, but did not reject, the Hunts Brook application.

Furthermore, the commissioner has cited no statute or regulation that distinguishes between different types of information that may be required in a water diversion permit application, or that would serve as a basis for different levels of department review, and we are aware of none. Had the legislature intended to grant the commissioner discretionary power to make “threshold” determinations of insufficiency without a hearing, it could have done so expressly.

It is a well established principle of statutory construction that the words of a regulation must be interpreted as written. Vecca v. State, 29 Conn. App. 559, 565, 616 A.2d 823 (1992). It is not what a statute or a regulation might have said or should have said that controls, but what, in fact, it actually says. Id. The construction urged by the commissioner would grant to him a power that he does not have, i.e., to reject a water diversion permit application under § 22a-3a-2 (e) of the regulations without giving the applicant an opportunity to respond, and without a public hearing, if the application is simply deemed “insufficient.” The majority refuses to adopt such an interpretation because we cannot, by judicial construction, read into the regulations or relevant statutes a provision that does not exist. Id. To read the regulation as granting the commissioner the discretion to make a threshold determination of sufficiency, as urged by the dissent, is an invitation to reject as insufficient any application not consonant with department policy, thus rendering the hearing requirement of § 22a-371 meaningless. We therefore conclude that the plaintiffs appeal from the commissioner’s decision was properly taken.

Finally, the plaintiff had exhausted its administrative remedies under § 4-183 because the commissioner’s rejection of the application was a final decision in a contested case. We are mindful that § 22a-374 of the Water Diversion Policy Act provides for an appeal to the Superior Court only if an applicant is aggrieved by a decision pursuant to General Statutes § 22a-373 or the return of an application by the commissioner as incomplete pursuant to the provisions of subsection (b) of § 22a-371, and that, here, the commissioner rejected the application pursuant to § 22a-3a-2 (e) of the regulations. The commissioner’s failure to follow the proper statutory procedure, however, should not preclude the plaintiff from filing an appeal from the commissioner’s final decision rejecting the application. We therefore conclude that the plaintiff had exhausted its administrative remedies because the rejection notice offered the plaintiff no other recourse but to file an entirely new application. Accordingly, the court had jurisdiction to hear the appeal.

The judgment is reversed and the case is remanded with direction to remand the matter to the commissioner for further proceedings pursuant to § 22a-371.

In this opinion HENNESSY, J., concurred.

SCHALLER, J.,

dissenting. I would affirm the judgment of the trial court dismissing this administrative appeal for lack of jurisdiction because I disagree with the majority conclusion that the commissioner’s rejection for insufficiency was a final judgment in a contested case giving the trial court jurisdiction to entertain the appeal.

As a matter of law, I believe the majority’s conclusion that a contested case exists and that the applicant was entitled to a hearing is incorrect. The majority states that it was improper for the commissioner to issue a rejection without a hearing because under General Statutes § 22a-371, the commissioner was required to give the applicant an opportunity to remedy any deficiencies or request that the application be deemed complete and then hold a hearing before rendering a final decision. The majority further concludes that the commissioner improperly used § 22a-3a-2 (e), a regulation of “general applicability,” in rejecting the application in this case. The majority offers its view that “[t]he commissioner should have made his determination pursuant to § 22a-377 (c)-2 (a) (3) of the regulations because that is a regulation that specifically relates to the Water Diversion Policy Act, General Statutes §§ 22a-365 to 22a-378.

I disagree with both of these conclusions. With regard to § 22a-371, the majority decision, in essence, revokes the authority of the commissioner to make a threshold determination, under § 22a-3a-2 (e), of the viability of an application. I am not aware of any valid basis in statutory interpretation or other law that allows a court effectively to eliminate § 22a-3a-2 (e) from the regulations and, in the process, to deprive the commissioner of the authority to screen applications for fundamental compliance. With reference to § 22a-377 (c)-2 (a) (3), the majority overlooks the fact that § 22a-3a-2 (e) and this regulation perform entirely different functions. I conclude that the two regulatory sections are not distinguished as general versus specific, but rather operate at different stages of the application process. This conclusion is consistent with the well settled rule of statutory construction, also applicable to regulations, that different sections should be construed in a manner that achieves harmony. See Dept. of Income Maintenance v. Watts, 211 Conn. 323, 328, 558 A.2d 998 (1989) (noting principle of statutory construction “that statutes in apparent conflict should be construed so as to achieve harmony between them” and that statutes “must be construed, if possible, so that both will be operative”).

On the basis of my reading of the applicable statutes and regulations, I conclude that § 22a-3a-2 (e) provides the commissioner with two options when faced with an insufficient application. The commissioner may reject an application as insufficient if it does not meet governing provisions of law or is so manifestly insufficient, for example, when the applicant does not have sufficient interest or standing, that further proceedings are not possible. Under § 22a-3a-2 (e), the commissioner, however, may also deem the application sufficient or not reject it under this subsection. In that event, the regulation provides that nothing shall preclude the commissioner from requiring additional information from the applicant. Should the commissioner choose not to reject the application, it is implicit that he has determined that, while he may need more information before ruling on the application, it is not so defective that it must be rejected. I conclude, therefore, that § 22a-3a-2 (e) is a threshold regulation that allows the commissioner either to reject an application or to keep it active, with the option to request more information.

The next step in the analysis is to determine how the commissioner proceeds to procure additional information. I believe that §§ 22a-371 and 22a-377 (c)-2 (a) (3) are applicable here. Section 22a-371, entitled “request for additional information,” applies when the commissioner decides to not reject the application but also wants more information. Consistent with § 22a-3a-2 (e), § 22a-371 (a) requires that the commissioner, having received the application, determine within one hundred and twenty days whether he requires more information. Section 22a-377 (c)-2 (a) (3) operates as a corollary to this, providing that if the commissioner requests information pursuant to § 22a-371 (a), the applicant must provide it within four months. It is clear that § 22a-377 (c)-2 (a) (3) serves a different function from the “gate keeping” purpose of § 22a-3a-2 (e). While the majority contends that § 22a-377 (c)-2 (a) (3) specifically governs applications such as the one at issue, I believe that it applies only after an application has passed the threshold determination of § 22a-3a-2 (e). At that point, the commissioner has decided to maintain the application, subject to requesting more information. The commissioner then may request more information, under § 22a-371 (a), as he considers the application. As a counterpart, § 22a-377 (c)-2 (a) is designed to provide the applicant with a limited period of time in which to produce the requested material.

I next address the hearing requirement. I first note that in addition to the functions noted, § 22a-377 (c)-2 (a) (3) goes on to state that if this information is not provided, the commissioner will return the application in accordance with § 22a-371 (b). Section 22a-371 (b) provides that in the absence of the information, the commissioner shall provide a tentative decision and then hold a hearing. On the basis of this construction of the statute and regulations, I believe that the healing requirement in § 22a-371 (b) is implicated only when the commissioner decides not to reject the application under § 22a-3a-2 (e), requests more information under § 22a-371 (a) and is not provided with it under § 22a-377 (c)-2 (a). At that point, a hearing is appropriate because the commissioner, having decided to maintain the application, has determined that a decision can be rendered on the application and has received all the information he can expect from the party. If the commissioner tentatively denies the application for lack of information or otherwise, a hearing is necessary in order to determine how to proceed.

I note that this reading of the provisions is also consistent with the appeals provision, General Statutes § 22a-374. This section, in part, allows an appeal to be taken when the commissioner returns an application as incomplete pursuant to § 22a-371 (b). Under this provision, an applicant can appeal from the commissioner’s decision regarding the completeness of the application after the commissioner has first decided to maintain the application pursuant to § 22a-3a-2 (e) and then rendered his tentative judgment on it. An appeal is appropriate at that time because the commissioner has already determined that the application is sufficient to enable a decision to be made.

On the basis of the foregoing, I conclude that when the commissioner rejects an application outright under § 22a-3a-2 (e), § 22a-371 does not come into play. No hearing, therefore, is required in that situation. Furthermore, the § 22a-374 right to appeal is not implicated in such a case because it rests upon § 22a-371. This interpretation falls within our well settled canon of statutory construction that statutes, and regulations, in apparent conflict should be construed in a manner that achieves harmony between them. See Dept. of Income Maintenance v. Watts, supra, 211 Conn. 328. In the present case, I would conclude, contrary to the majority, that a hearing was not required because the commissioner decided to reject the application as insufficient under § 22a-3a-2 (e). Without the right to a hearing, the trial court lacked jurisdiction to hear the appeal.

I also disagree on a procedural level with the majority resolution of this case. I begin by noting that at its core, the plaintiffs appeal actually challenges the failure of § 22a-3a-2 (e) to provide for a hearing when the commissioner decides to reject an application as insufficient. On appeal, however, the plaintiff has failed to raise a due process challenge to the regulation, or to attack § 22a-3a-2 (e) by any other means. Instead of challenging § 22a-3a-2 (e), the plaintiff has launched an indirect attack on the regulation. It contends that there is no meaningful distinction between an insufficiency rejection pursuant to that regulation and an incompleteness determination pursuant to § 22a-371, and that the right to a hearing overrides the regulation.

While the majority apparently accepts that assertion, I do not believe that the plaintiffs implicit attack gives us license to determine the validity or viability of § 22a-3a-2 (e). Absent a specific claim challenging the applicability of § 22a-31-2 (e) or the failure of § 22a-3a-2 (e) to provide for a hearing, these issues are not before us. Since the plaintiff has not challenged § 22a-3a-2 (e) in this proceeding, our function is only to provide an interpretation based on our well settled rules of statutory construction that makes sense of the regulation, considered in light of the entire statutory and regulatory scheme. See id. Consistent with our responsibility under these circumstances, I interpret § 22a-3a-2 (e) to enable the commissioner to reject an application that fails to meet the fundamental requirements for consideration.

I also disagree with the majority decision because of the practical effect it will have on the commissioner’s discretion in the application process. I first note that § 22a-3a-2 (e) obviously serves a vital function in allowing the commissioner to exercise the discretion authorized by statute to reject, without the necessity of a public hearing, applications that are deficient because they fail to include basic predicates that are essential to consideration of the merits of the application. It would be bizarre, indeed, if the commissioner were to be required to hold a public hearing on each and every application, no matter how deficient. For example, must the commissioner hold a public hearing before rejecting an application that failed to contain the applicant’s full name, capacity, address and signature? Similarly, if an individual citizen were to submit an application for diversion of a water source without further explanation, would that individual be entitled to a public hearing, simply because an application was filed?

Despite the importance of § 22a-3a-2 (e) as a regulation dealing with threshold requirements, it would appear that under the majority opinion, no rejection of any application can take place without a public hearing because the result of the decision is to bypass and effectively to eliminate the commissioner’s discretion. I believe that this result is incorrect because the commissioner’s discretion is properly vested in him by virtue of the applicable statutes through § 22a-3a-2 (e) and is essential to enable the commissioner to carry out the puiposes of the Water Diversion Policy Act.

Moreover, I believe it is improper to require the commissioner to hold public hearings on fundamentally deficient applications before rejecting them because such a hearing creates General Statutes § 4-183 appeal rights for applicants who have failed to conform to even the basic requirements for administrative action. Applicants who fail to provide the information necessary to meet the fundamental requirements of form should not be entitled to a § 4-183 appeal because that information is necessary to the actual consideration of the application. As a result, an appeal to the trial court at this stage would not address any substantive decision. Rather, it would mire the courts in matters of administrative form and preliminary conditions that must be met before any substantive action can be taken. I believe such issues should be dealt with prior to any appeal to the courts in the absence of a direct challenge to the regulation in question. As such, I do not believe that an applicant should be able to appeal from the commissioner’s decision without meeting the threshold requirements that are necessary to enable a determination on the merits of the application.

I would also note that this concern is borne out in the present case, in which the plaintiff has failed to show that it can satisfy the application requirements without joining the New London Water and Water Pollution Control Authority (NLWWPCA). The plaintiff has failed to do so because of the evident practical problem it faces in this case, namely, that the proposed user whose signature is required on the application, the NLWWPCA, is a competitor and unlikely to join voluntarily in the application. The plaintiff undoubtedly suspects that if it must join that entity in the application process, it will not be able to obtain a determination on the merits of its application. I do not believe that such problems can legitimately be dealt with in the present appeal.

Despite my present concerns, the majority states that my construction is “an invitation to reject as insufficient any application not consonant with department policy.” The majority further contends that the return without rejection of the NLWWPCA’s application and the rejection of the plaintiffs application illustrate the inequitable exercise of discretionary authority by the commissioner under § 22a-3a-2 (e). To the contrary, the actions considered together constitute consistent and fair action. The Miller’s Pond application was rejected without a request for further information on that application because it was fatally deficient in lacking a fundamental prerequisite—the acquiescence of the water company that was the proposed user of the water that Miller’s Pond sought permission to divert. Without that basic consent to the application, the Miller’s Pond application was meaningless. On the other hand, New London’s application was filed by the actual proposed user involved and therefore complied with basic requirements. No hearing of the Miller’s Pond application could remedy the fatal deficiency. The Miller’s Pond application could not go forward unless it secured the agreement of the ultimate user of the water.

For all the foregoing reasons, I conclude that the rejection of the plaintiffs application for insufficiency did not confer jurisdiction on the trial court for purposes of an appeal under the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq. I would affirm the judgment of the trial court.

       The plaintiff filed the application jointly with Waterford Country School, Inc., a nonprofit institution that, according to the plaintiff, “owns the only other portion of the water body not owned by Miller’s Pond, LLC,” and the Connecticut Water Company, described by the plaintiff as the operating partner.

       The record contains a memorandum to the file dated June 3,1998, from an employee of Baystate Environmental Consultants describing her meeting with a department official to discuss the Miller’s Pond application.

       Section 22a-3a-2 (e) of the Regulations of Connecticut State Agencies provides in relevant part: “The Commissioner may reject an application ... as insufficient if it does not meet the requirements of Section 22a-3a-4 (a) or 22a-3a-5 (a), respectively, of these Rules of Practice, or does not meet the requirements of any other applicable provision of law governing the form, contents, and filing of such application or petition, or is so manifestly insufficient as to make further processing impossible. Except as otherwise provided by law ... a rejection under this subsection shall stop the running of any time period which by law begins to run when the department receives an application . . . any such period shall begin anew when the department receives an amended application .... Nothing shall preclude the Commissioner from requiring additional information from an applicant ... if the application ... is not rejected under this subsection or is deemed sufficient.”

       Section 22a-377 (c)-2 (g) of the Regulations of Connecticut State Agencies provides in relevant part: “If the applicant for a permit will not be the user of all or a portion of the waters proposed to be diverted, the applicant and users shall jointly malee application for the permit. . . .”

       General Statutes § 22a-6h is entitled “Notice of tentative determination re permit application” and provides in relevant part: “(a) The Commissioner of Environmental Protection, at least thirty days before approving or denying an application under section . . . 22a-368 . . . shall publish or cause to be published, at the applicant’s expense . . . notice of his tentative determination regarding such application. Such notice shall include . . . the tenta-five decision regarding the application . . . .”
      General Statutes § 22a-6p is entitled “Time frames for issuance of permits. Regulations.” That section provides in relevant part: “The Commissioner of Environmental Protection shall adopt regulations . . . establishing schedules for timely action for each application for a permit for activity regulated under this title. . . . Each such schedule shall contain the following:
      “(1) A provision that the schedule shall begin when an application is received by the Department of Environmental Protection, any public notice requirements have been fulfilled and the application fee is paid;
      “(2) One or more periods of reasonable length, based on the nature and complexity of the review required of the department, at the end of which time the department shall issue a decision to grant or deny the permit or identify deficiencies in the application, provided the schedule may also reasonably limit the amount of time in which the applicant may remedy such deficiencies;
      “(3) A period of reasonable length, based on the nature and complexity of the review required of the commissioner, beginning with receipt of materials submitted by the applicant in response to the commissioner’s identification of deficiencies, at the end of which time the commissioner shall issue a tentative determination to grant or deny the permit;
      “(4) A period of reasonable length after such tentative determination and the conclusion of any public hearing held with regard to such decision

       Section 22a-377 (c)-2 (a) (3) of the Regulations of Connecticut State Agencies provides: “If at any time during review of an application the Commissioner, pursuant to section 22a-371 (a) of the general statutes, requests additional information from the applicant, the applicant shall provide such information within four months of the request. Unless the information is provided within such time the Commissioner shall return the application to the applicant in accordance with section 22a-371 (b) of the general statutes.”

       “[0]ur rules of statutory construction apply to administrative regulations.” (Internal quotation marks omitted.) Andersen Consulting, LLP v. Gavin, 255 Conn. 498, 512, 767 A.2d 692 (2001).

       “We interpret the regulations of an administrative body pursuant to the principles of statutory construction.” (Internal quotation marks omitted.) Prioli v. State Library, 64 Conn. App. 301, 308, 780 A.2d 172, cert. denied, 258 Conn. 917, 782 A.2d 1246 (2001).

       The inequities that could result when the commissioner is granted such broad discretion may be seen in a comparison of the “rejection notice” that was sent to the plaintiff regarding the Miller’s Pond application, and the “notice of insufficiency” that was sent to the city of New London regarding the Hunts Brook application. Although each of the letters described the subject application as “insufficient for processing,” the plaintiffs application was rejected, while the city of New London was given an opportunity to submit additional information to correct the insufficiencies in its application.

       General Statutes § 22a-374 provides in relevant part that “[a]ny person or municipality aggrieved by the decision of the commissioner made pursuant to section 22a-373 or the return of an application by the commissioner as incomplete pursuant to the provisions of subsection (b) of section 22a-371, may appeal to the Superior Court pursuant to the provisions of section 4-183
      General Statutes § 22a-373 (a) provides in relevant part: “The commissioner shall, within one hundred and twenty days of the close of the hearing, make a decision either granting or denying the application as deemed complete in sedion 22a-371 . . . .”