author: KATZ, J.

text:
    ANGELSEA PRODUCTIONS, INC. v. COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES ET AL.
    (15341)
    Peters, C. J., and Callahan, Norcott, Katz and Palmer, Js.

      Argued February 13
    officially released April 23, 1996

      Albert Zakarian, with whom, on the brief, were Margaret J. Strange and Peter M. Wendzel, for the appellant (plaintiff).

      Charles Krich, assistant commission counsel II, with whom was Philip A. Murphy, Jr., commission counsel, for the appellee (named defendant).
   KATZ, J.

The issues raised by the parties’ reservation to this court are whether the statutory deadlines embodied in General Statutes (Rev. to 1993) §§ 46a-83 (b) and 46a-84 (b) are mandatory and whether the failure to abide by those deadlines therefore strips the commission on human rights and opportunities of jurisdiction over a complaint before it.

The following facts are undisputed. On or about April 11, 1991, the defendant Susan E. Hyde filed a complaint with the named defendant, the commission on human rights and opportunities (commission), alleging various discriminatory acts by the plaintiff, Angelsea Productions, Inc., which had employed Hyde from September, 1990, until her resignation on January 29, 1991. On March 3, 1993, the plaintiff moved to dismiss the complaint on the basis that the commission’s investigation had not been timely concluded in accordance with the nine month deadline imposed on the commission by § 46a-83 (b). On March 17, 1993, the commission, despite its two year delay in investigating the complaint issued a reasonable cause finding in favor of Hyde. Thereafter, on June 15, 1993, the commission denied the plaintiffs motion to dismiss. Subsequently, on November 29,1993, because of the commission’s failure to comply with the requirements of §§ 46a-83 (b) and 46a-84 (b) that it hold a hearing within ninety days of the issuance of the reasonable cause finding, the plaintiff filed another motion to dismiss and a petition for an expedited declaratory ruling asking the commission to declare that the time limitations of §§ 46a-83 (b) and 46a-84 (b) are mandatory and that failure to follow them strips the commission of jurisdiction over the complaint. On January 4, 1994, the plaintiffs motion to dismiss was denied by the commission’s presiding hearing officer. On March 22, 1994, the ruling on the motion to dismiss was upheld by the agency commissioners, who, in accordance with General Statutes § 4-176 (e) (l), issued a declaratory ruling in which they concluded that the time limitations of §§ 46a-83 (b) and 46a-84 (b) are directory and not mandatory. Pursuant to General Statutes §§ 4-176 (h) and 4-183, the plaintiff appealed from that declaratory ruling to the Superior Court.

To expedite resolution of the administrative appeal, on April 4,1995, the parties submitted a stipulated reservation of questions to the Superior Court for consideration by and the advice of the Appellate Court. The questions upon which advice is sought are as follows: (1) “Is the time limit for investigating a complaint set forth in [General Statutes (Rev. to 1993) § 46a-83 (b)] mandatory?” (2) “If the [commission] fails to make a reasonable cause determination within nine months from the date of filing a complaint, as set forth in [General Statutes (Rev. to 1993) § 46a-83 (b)], must the [commission] dismiss the complaint for lack of jurisdiction?” (3) “Is the time limit for holding a public hearing set forth in [General Statutes (Rev. to 1993) § 46a-84 (b)] mandatory?” and (4) “If the [commission] fails to hold a public hearing within [ninety] days after a finding of reasonable cause, as set forth in [General Statutes (Rev. to 1993) § 46a-84 (b)], must the [commission] dismiss the complaint for lack of jurisdiction?” The trial court reserved the questions for consideration by the Appellate Court pursuant to General Statutes § 52-235 and Practice Book § 4147. We transferred the case from the Appellate Court to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 4023.

To determine whether the commission’s declaratory ruling properly decided that §§ 46a-83 and 46a-84 are directory, we begin with an examination of the statutes. “Ordinarily, this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute’s purposes. Police Department v. State Board of Labor Relations, [225 Conn. 297, 300, 622 A.2d 1005 (1993)]; Crocetto v. Lynn Development Corporation, 223 Conn. 376, 381, 612 A.2d 1212 (1992). [A]n agency’s factual and discretionary determinations are to be accorded considerable weight by the courts. Lieberman v. State Board of Labor Relations, 216 Conn. 253, 262, 579 A.2d 505 (1990). This case, however, presents apure question of law, and therefore invokes a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion. Id., 263; State Medical Society v. Board of Examiners in Podiatry, 208 Conn. 709, 718, 546 A.2d 830 (1988). Furthermore, when a state agency’s determination of a question of law has not previously been subject to judicial scrutiny, as in this case, the agency’s determination is not entitled to special deference. Lieberman v. State Board of Labor Relations, supra [263]; Connecticut Light & Power Co. v. Department of Public Utility Control, 210 Conn. 349, 357, 554 A.2d 1089 (1989).” (Internal quotation marks omitted.) Dept. of Administrative Services v. Employees' Review Board, 226 Conn. 670, 678-79, 628 A.2d 957 (1993).

Therefore, we approach the task relying on familiar principles of statutory construction in order to determine the intent of the legislature. Police Dept. v. State Board of Labor Relations, supra, 225 Conn. 303 n.7. “It is fundamental that statutory construction requires us to ascertain the intent of the legislature and to construe the statute in a manner that effectuates that intent. . . . 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. . . . Petco Insulation Co. v. Crystal, 231 Conn. 315, 321, 649 A.2d 790 (1994). In order to determine the meaning of a statute, we must consider the statute as a whole when reconciling its separate parts in order to render a reasonable overall interpretation. Broadley v. Board of Education, 229 Conn. 1, 6, 639 A.2d 502 (1994); Ganim v. Roberts, 204 Conn. 760, 763, 529 A.2d 194 (1987).” (Citations omitted; internal quotation marks omitted.) Murchison v. Civil Service Commission, 234 Conn. 35, 45, 660 A. 2d 850 (1995). The task of determining whether a particular provision is mandatory or directory involves the same criteria, namely, the statute’s language, the legislative history and the statutory context. Engle v. Personnel Appeal Board, 175 Conn. 127, 129-31, 394 A.2d 731 (1978).

Looking first to the words of the statutes, it appears that their language requires the commission to complete its investigation within nine months and hold a hearing within ninety days. Section 46a-83 (b) provides that “[t]he investigator shall make a finding of reasonable cause or no reasonable cause in writing and shall list the factual findings on which it is based not later than nine months from the date of filing of the complaint . . . .” (Emphasis added.) Section 46a-84 (b) provides that the “hearing shall be held not later than ninety days after a finding of reasonable cause.” (Emphasis added.) Definitive words, such as “must” or “shall,” ordinarily express legislative mandates of a nondirectory nature. State v. Metz, 230 Conn. 400, 410, 645 A.2d 965 (1994); see Statewide Grievance Committee v. Roz bicki, 211 Conn. 232, 240, 558 A.2d 986 (1989); LoSacco v. Young, 210 Conn. 503, 507, 555 A.2d 986 (1989); Caulkins v. Petrillo, 200 Conn. 713, 717, 513 A.2d 43 (1986); Sullivan v. Liberty Mutual Fire Ins. Co., 174 Conn. 229, 233, 384 A.2d 384 (1978). We have noted, however, that the use of the word “shall,” though significant, does not invariably establish a mandatory duty. Hall Manor Owner’s Assn. v. West Haven, 212 Conn. 147, 152, 561 A.2d 1373 (1989); see, e.g., Fidelity Trust Co. v. BVD Associates, 196 Conn. 270, 278, 492 A.2d 180 (1985).

“The test we have adopted for determining whether such a statutory requirement is mandatory or directory is whether the prescribed mode of action is of the essence of the thing to be accomplished, or in other words, whether it relates to matter material or immaterial — to matters of convenience or of substance. . . . If it is a matter of convenience, the statutory provision is directory; if it is a matter of substance, the statutory provision is mandatory.” (Internal quotation marks omitted.) Oller v. Oller-Chiang, 230 Conn. 828, 838-39, 646 A.2d 822 (1994). Stated another way, language is deemed to be mandatory if the mode of action is of the essence of the purpose to be accomplished by the statute; LeConche v. Elligers, 215 Conn. 701, 710, 579 A.2d 1 (1990); but will be considered directory if the failure to comply with the requirement does not compromise the purpose of the statute. Id.

In Mahoney v. Lensink, 213 Conn. 548, 569 A. 2d 518 (1990), this court applied these principles in interpreting a statute addressing the civil rights of persons who are mentally ill. The court noted that the statute, which was part of the patients’ bill of rights, illustrated “the breadth of the legislative concern for the fair treatment of mental patients.” Id., 556. The court therefore held that a statutory provision stating that no person treated in a mental health facility “ ‘shall be deprived of any . . . civil rights’ ” was substantive in nature, and that the word “shall” was mandatory. Id., 557 and n.11. The plaintiff in the case before us likewise argues that both §§ 46a-83 (b) and 46a-84 (b) relate to matters of substance. We agree.

In Waterbury v. Commission on Human Rights & Opportunities, 160 Conn. 226, 235, 278 A.2d 771 (1971), this court stated that the “purpose of [General Statutes § 31-127, the predecessor to today’s discriminatory complaint procedure provisions] is to guard against subjecting a respondent to a hearing upon every complaint which might be made to the commission, however unfounded. To guard against such an eventuality, the statute requires the commission, once a complaint has been filed, to investigate it, and it is only after such preliminary investigation has established that there is reasonable cause for action and after arbitration methods have failed that a hearing is authorized.” In Sullivan v. Board of Police Commissioners, 196 Conn. 208, 217-18, 491 A.2d 1096 (1985), this court concluded that General Statutes §§ 46a-82 through 46a-96 afforded the claimant “meaningful relief under the federal and state statutes that govern his claim of age discrimination” and that his failure to exhaust the administrative remedies available to him deprived the trial couit of jurisdiction to hear his complaint. Although the investigation, the elimination of the discriminatory practice, the subsequent hearing, if necessary, and the granting of relief, where appropriate, are clearly essential, the speed with which these matters are carried out is necessarily a part of the essence of the statutory scheme. Because there can be no further action by either party until there has first been a finding of reasonable cause or no reasonable cause, a claimant is impotent until there is an investigation, and where there is merit to the allegation, failure to investigate in a timely fashion by the commission allows the discriminatory practice to continue without the administrative oversight and enforcement provisions envisioned by the statutory scheme. Similarly, without timely progress, the respondent is equally hamstrung. Even if the claim is frivolous, the respondent nevertheless remains frustrated pending a determination by the commission because its conduct is constrained to avoid a claim of retaliation. The entire discriminatory practice complaint procedure, as amended by No. 89-332 of the 1989 Public Acts (P.A. 89-332), is replete with deadlines essential to further progress in the administrative arena. See, e.g., P.A. 89-332, § 4 (a) (answer to complaint to be filed within fifteen days of receipt of complaint); P.A. 89-332, § 4 (c) (complainant’s request for reconsideration to be filed not later than fifteen days after finding of no reasonable cause; commission to act on request within ninety days); and P.A. 89-332, § 5 (a) (investigator has forty-five days from finding of reasonable cause within which to eliminate discriminatory practice). The policy behind these deadlines of speedy resolution of the claims and elimination of the offending conduct can be implemented only through strict enforcement of the time limits.

We note that this court has previously concluded that the phrases “shall certify the complaint,” “shall refer . . . to an investigator to investigate” and “shall attempt to eliminate by conference, conciliation and persuasion” as used in §§ 46a-83 and 46a-84 denote mandatoiy obligations. See Sullivan v. Board of Police Commissioners, supra, 196 Conn. 215-16. In Waterbury v. Commission on Human Rights & Opportunities, supra, 160 Conn. 234-35, the court examined General Statutes (Rev. to 1958) § 31-127, the predecessor to today’s discriminatory complaint procedure in §§ 46a-82 through 46a-96, and concluded that where it found reasonable cause, the commission was required to investigate complaints and to try to eliminate the discrimination through the conference, conciliation and persuasion process. Similarly, in Sullivan v. Board of Police Commissioners, supra, 216, the court stated that the use of the term “shall” in § 46a-84 required the commission to “certify the complaint, hold a hearing and order appropriate relief.” Because the legislature is presumed to be aware of the judicial construction placed on its enactments; see State v. Crowell, 228 Conn. 393, 401, 636 A.2d 804 (1994); its failure to correct or undermine what we stated in those cases is evidence that the legislature has validated our interpretation. Ralston Purina Co. v. Board of Tax Review, 203 Conn. 425, 439, 525 A.2d 91 (1987). By using the word “shall” to impose deadlines when it revised §§ 46a-83 (b) and 46a-84 (b) in 1989 following our interpretation of the same word in other portions of those provisions, the legislature has signalled its approval of our construction of the term “shall” to denote mandatory obligations. 2A J. Sutherland, Statutory Construction (5th Ed. Singer 1992 Rev.) § 45.10; see Scheyd v. Bezrucik, 205 Conn. 495, 506, 535 A.2d 793 (1987) (because legislature is presumed to be aware of interpretation that courts have placed on existing legislation, failure of legislature to amend statute to change our interpretation presumes that it acquiesced in our interpretation).

Additionally, we recognize the “familiar principle of statutory construction that where the same words are used in a statute two or more times they will ordinarily be given the same meaning in each instance.” (Internal quotation marks omitted.) Weinberg v. ARA Vending Co., 223 Conn. 336, 343, 612 A.2d 1203 (1992). In Sullivan v. Board of Police Commissioners, supra, 196 Conn. 216, prior to the passage of the 1989 amendment that added the time deadlines in issue in this case, this court concluded that the word “shall,” used in various parts of §§ 46a-83 and 46a-84, imposed mandatory obligations. We see no reason to interpret that term differently when it is used elsewhere in the same statute. Indeed, it is counterintuitive to suggest that the legislature would have intended, without comment, to give the word “shall” two distinctly different meanings within the same statute. See Weinberg v. ARA Vending Co., supra, 343.

Moreover, we note the legislature’s use of the word “may” in other subsections of the same statute; see, e.g., General Statutes § 46a-83 (a) (commission may conduct fact-finding conferences); as well as in other statutes within the discriminatory complaint procedure. See General Statutes §§ 46a-101 and 46a-102. The use of the word “shall” in conjunction with the word “may” confirms that the legislature “acted with complete awareness of their different meanings”; Hartford Principals’ & Supervisors’ Assn. v. Shedd, 202 Conn. 492, 506, 522 A.2d 264 (1987); and that it intended the terms to have different meanings. Hinchliffe v. American Motors Corp., 184 Conn. 607, 613, 440 A.2d 810 (1981) (use of different terms within same sentence of statute “plainly” implies different meanings intended), aff'd, 192 Conn. 252, 470 A.2d 1216 (1984); see also Plourde v. Liburdi, 207 Conn. 412, 416, 540 A.2d 1054 (1988).

One final reliable guide in determining whether a statutory provision is directory or mandatory is whether the failure of the state to comply with its provisions results in either a penalty or a requirement that the state seek an extension of time. Caron v. Inland Wetlands & Watercourses Commission, 222 Conn. 269, 273-74, 610 A.2d 584 (1992); State v. White, 169 Conn. 223, 238, 363 A.2d 143, cert. denied, 423 U.S. 1025, 96 S. Ct. 469, 46 L. Ed. 2d 399 (1975). Pursuant to § 46a-83 (b), if the investigator fails to make a finding regarding reasonable cause within the prescribed nine month time period, “the executive director or his designee may grant a single extension of the investigation of three months.” If the investigator merely had to attempt to comply with the nine month deadline, there would be no purpose in providing for an extension. We have often recognized that the legislature is not presumed to enact meaningless legislation. Beloff v. Progressive Casualty Ins. Co., 203 Conn. 45, 61, 523 A.2d 477 (1987).

Our conclusion that both time deadlines are mandatory is buttressed by the legislative history of P.A. 89-332, the act that added the time deadlines in issue. In reporting the bill out of committee, Representative Eric D. Coleman identified a number of changes included in the amendment. He remarked that these amendments were “designed to address some problems that have come to light with the [commission]. It is hoped that some of the changes that are recommended would serve as significant reforms, particularly with respect to the processing of individual complaints of discrimination.” 32 H.R. Proc., Pt. 23, 1989 Sess., pp. 8166-67. Significantly, Representative Coleman addressed the deadline in § 46a-83 (b), explaining that “[t]he hearing subsequent to the finding of reasonable cause and conciliation efforts which fail would be required to be held not later than ninety days from the finding of reasonable cause.” (Emphasis added.) Id., p. 8169.

Similarly, then Senator Richard Blumenthal, reporting the joint bill out of the conference committee, stated that the bill “has the objective of accomphshing the recommendations of the task force appointed by Governor O’Neill to investigate the performance [of the commission], . . . The bill, which represents a compromise among many of the groups and individuals involved in this very important area, makes some major changes in the current law . . . and very essentially places time frames on each of the developments that must occur before a complaint is finally resolved. It provides that the respondent must answer a complaint within [fifteen] days of when he is served, provides that an investigation must commence right away, that a finding and conclusion must be reached within nine months . . . and that within [ninety] days of a finding of reasonable cause, there must be either a hearing held, or the conciliation process must have reached a settlement.” (Emphasis added.) 32 S. Proc., Pt. 12, 1989 Sess., pp. 4150-52. For complaint resolution in the administrative setting to be effective, the legislature understood that resolution of these matters had to be expeditious. It recognized that justice delayed is justice denied. Id., pp. 4150-51. Accordingly, Senator Blumenthal concluded with the “[hope] that [this bill] will move Connecticut forward in terms of providing a more expeditious, fair, timely resolution of civil rights complaints . . . .” Id., pp. 4152-53.

Our conclusion is reinforced by the legislative history of prior amendments made in 1991. Once again, speaking on behalf of the proposals, Representative Coleman stated that “[t]he [commission] is in the nature of an administrative agency and the purpose of the administrative agency is to expeditiously resolve some complaints in more of an informal nature than the court system would allow. If complaints which are filed with [the commission] are going to linger and not be resolved expeditiously I think it’s only fair to the parties that they have the full access of the court system.” 34 H.R. Proc., Pt. 23, 1991 Sess., pp. 8917-18. Consequently, the legislature enacted General Statutes § 46a-101 requiring the executive director of the commission to issue a release allowing the complainant to bring a civil action when the complaint is still pending with the commission after the expiration of 210 days from the date of its filing. It is noteworthy that the original version of the amendment had provided that the commission “may” dismiss an action following the commencement of a civil action in the Superior Court when a release has been granted. In order to respond to concerns that a discretionary dismissal could lead to jurisdiction in two forums, the statute was amended to provide that the commission “shall” dismiss the case to make dismissal mandatory in order to foreclose the possibility of jurisdiction existing in two places. 34 H.R. Proc., supra, p. 8926. On the basis of this legislative history, and of the statute’s language and its context, we conclude that the legislature considered the word “shall” to be mandatory in the context of the discriminatory practice and complaint procedure.

Finally, the commission’s argument that due process requires that it maintain the ability to process the complaint based upon Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S. Ct. 1148, 71 L. Ed. 2d 265 (1982), is equally unconvincing. “[T]he due process clauses of the state and federal constitutions require that one subject to significant deprivation of liberty or property must be accorded adequate notice and a meaningful opportunity to be heard. . . . We note, however, that [d]ue process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances. . . . [D]ue process is flexible and calls for such procedural protections as the particular situation demands.” (Citations omitted; internal quotation marks omitted.) Tedesco v. Stamford, 222 Conn. 233, 242, 610 A.2d 574 (1992). The United States Supreme Court, in Logan, first determined that the right to use the adjudicatory procedures of a state antidiscrimination agency is a property interest protected by the due process clause of the fourteenth amendment to the United States constitution. Logan v. Zimmerman Brush Co., supra, 428-30. Accordingly, the court held that some form of hearing under the Illinois Fair Employment Practices Act was required to allow a civil rights complainant to redress instances of discrimination and to be afforded damages flowing from such wrongs. Id., 433-34. The court further acknowledged that this substantial interest could not be denied on the basis of agency action over which the complaining party had no control. Id., 436. Consequently, the court held that a ruling by the Illinois Supreme Court interpreting as mandatory a state statute requiring the Illinois fair employment practices commission to schedule a fact-finding conference within 120 days of the filing of a complaint violated the complainant’s right to due process. Id., 437.

The plaintiff in the case before us responds that because Hyde, the complainant, can bring a civil action pursuant to General Statutes § 46a-101 et seq., which affords greater relief than § 46a-86 (a), the due process rights of both the complainant and the respondent are protected. We agree with the plaintiff. In Logan, the court specifically noted that the Equal Opportunities for the Handicapped Act, which otherwise would have provided the claimant with the right to bring a civil action, had been repealed. Id., 435-36 n.9. Furthermore, even for claims accruing under that act prior to the repeal date, the court remarked that it was “not clear . . . that such an action is available to [the claimant] .... We . . . hesitate to remit [the claimant] to so speculative a remedy.” Id. In contrast, there is no claim in the present case that the civil action available to Hyde is constitutionally inadequate. On the contrary, as the plaintiff points out, Hyde is entitled to greater damages following a civil action than she could otherwise recover under General Statutes § 46a-86 (a) for a violation of General Statutes § 46a-60. Bridgeport Hospital v. Commission on Human Rights & Opportunities, 232 Conn. 91, 101, 653 A.2d 782 (1995) (damages for emotional distress and attorney’s fees not authorized under § 46a-86 [a] for discriminatory employment practices). Therefore, Hyde will receive an adequate and meaningful opportunity to present her case as is required by due process.

Therefore, under well established principles of statutory construction, we conclude that the legislature’s intent can best be implemented by a determination that the time limits set forth in §§ 46a-83 (b) and 46a-84 (b) are mandatory. Consequently, they must be strictly complied with. Okee Industries, Inc. v. National Grange Mutual Ins. Co., 225 Conn. 367, 373, 623 A.2d 483 (1993).

The commission’s second contention, that its failure to comply with these time limits does not divest it of jurisdiction, depends exclusively on its argument that those limitations are directory and not mandatory. Consequently, the second and fourth reserved questions regarding whether the failure to follow the procedure prescribed in §§ 46a-83 (b) and 46a-84 (b) leaves the commission incompetent to entertain the complaint are likewise resolved in the plaintiffs favor.

The answer to all four reserved questions is yes.

No costs will be taxed in this court to either party.

In this opinion the other justices concurred.

       We note that, although the 1991 revisions of §§ 46a-83 and 46a-84 were in effect when the injury occurred; see Six v. Thomas O’Connor & Co., 235 Conn. 790, 792 n.1, 669 A.2d 1214 (1996) (“ ‘we look to 1he statute in effect at the date of injury to determine the rights and obligations between the parties’ ”); because the parties’ reservation of issues refers to the 1993 revisions and because the provisions are substantively identical, we will use the 1993 revisions of § § 46a-83 and 46a-84 in our discussion. Furthermore, although No. 94-238 of the 1994 Public Acts recodified § 46a-83 (b) as § 46a-83 (d), because the parties’ reservation of issues references this section as it existed in 1993, we refer to § 46a-83 (b) throughout this opinion.
      General Statutes (Rev. to 1993) § 46a-83 provides in relevant part: “Complaint: Investigation; conciliation; disclosure; subpoena; default order, (a) Within ten days after the filing of any discriminatory practice complaint, or an amendment adding an additional respondent, the commission shall cause the complaint to be served upon the respondent together with a notice (1) identifying the alleged discriminatory practice, and (2) advising of the procedural rights and obligations of a respondent under this chapter. The respondent shall file a written answer to the complaint under oath with the commission within thirty days of receipt of the complaint, provided the answer to any complaint alleging a violation of section 46a-64c or 46a-81e shall be filed within ten days of receipt. The executive director of the commission shall refer the same to an investigator to investigate and determine if there is reasonable cause for believing that a discriminatory practice has been or is being committed as alleged in the complaint. The commission may conduct fact-finding conferences during the investigatory process for the purpose of finding facts and promoting the voluntary resolution of complaints. As used in this section and section 46a-84, reasonable cause means a bona fide belief that the material issues of fact are such that a person of ordinary caution, prudence and judgment could believe the facts alleged in the complaint.
      “(b) Before issuing a finding of reasonable cause or no reasonable cause, the investigator shall afford each party and his representative an opportunity to provide written or oral comments on all evidence in the commission’s file, except as otherwise provided by federal law or any other provision of the general statutes. The investigator shall consider such comments in making his determination. The investigator shall make a finding of reasonable cause or no reasonable cause in writing and shall list the factual findings on which it is based not later than nine months from, the date of filing of the complaint, except that for good cause shown, the executive director or his designee may grant a single extension of the investigation of three months. If the investigator makes a determination that there is reasonable cause to believe that a violation of section 46a-64c has occurred, the complainant and the respondent shall have twenty days from receipt of notice of the reasonable cause finding to elect a civil action in lieu of an administrative hearing pursuant to section 46a-84. If either the complainant or the respondent requests a civil action, the commission, through the attorney general or the commission counsel, shall commence an action pursuant to subsection (b) of section 46a-89 within forty-five days of receipt of the complainant’s or the respondent’s notice of election of a civil action.
      “(c) If the investigator issues a finding of no reasonable cause, the complainant may request reconsideration of such finding with the commission not later than fifteen days from the issuance of such finding. The commission shall reconsider or reject within ninety days of the issuance of such finding.
      “(d) Upon a determination that there is reasonable cause to believe that a discriminatory practice has been or is being committed as alleged in the complaint, an investigator shall attempt to eliminate the practice complained of by conference, conciliation and persuasion within sixty days of a finding of reasonable cause. The refusal to accept a settlement shall not be grounds for dismissal of any complaint.” (Emphasis added.)

       General Statutes (Rev. to 1993) § 46a-84 provides in relevant part: “Complaint: Hearing. Order of default, when, (a) If the investigator fails to eliminate a discriminatory practice complained of pursuant to section 46a-82 within forty-five days of a finding of reasonable cause, he shall certify the complaint and the results of the investigation to the executive director of the commission and to the attorney general.
      “(b) Upon certification of the complaint, the executive director of the commission or his designee shall appoint a hearing officer to act as a presiding officer to hear the complaint and shall cause to be issued and served in the name of the commission a written notice, together with a copy of the complaint, as the same may have been amended, requiring the respondent to answer the charges of the complaint at a hearing before the presiding officer at a time and place to be specified in the notice, provided such hearing shall be held not later than ninety days after a finding of reasonable cause.” (Emphasis added.)

       General Statutes § 4-176 provides in relevant part: “Declaratory rulings. Petitions. Regulations, (a) Any person may petition an agency, or an agency may on its own motion initiate a proceeding, for a declaratory ruling as to the validity of any regulation, or the applicability to specified circumstances of a provision of the general statutes, a regulation, or a final decision on a matter within the jurisdiction of the agency. . . .
      “(e) Within sixty days after receipt of a petition for a declaratory ruling, an agency in writing shall: (1) Issue a ruling declaring the validity of a regulation or the applicability of the provision of the general statutes, the regulation, or the final decision in question to the specified circumstances . . . .”

       General Statutes § 4-176 (h) provides: “A declaratory ruling shall be effective when personally delivered or mailed or on such later date specified by the agency in the ruling, shall have the same status and binding effect as an order issued in a contested case and shall be a final decision for purposes of appeal in accordance with the provisions of section 4-183. A declaratory ruling shall contain the names of all parties to the proceeding, the particular facts on which it is based and the reasons for its conclusion.”

       General Statutes § 4-183 provides in relevant part: “Appeal to superior court, (a) 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. The filing of a petition for reconsideration is not a prerequisite to the filing of such an appeal.
      “(b) A person may appeal a preliminary, procedural or intermediate agency action or ruling to the superior court if (1) it appears likely that the person will otherwise qualify under this chapter to appeal from the final agency action or ruling and (2) postponement of the appeal would result in an inadequate remedy. . . .
      “(j) The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings. For purposes of this section, a remand is a final judgment.”

       Because the analysis of these reserved questions overlaps, we have combined the first question with the third question and the second question with the fourth question for purposes of discussion.

       General Statutes § 52-235 provides: “Reservation of questions of law. (a) The superior court, or any judge of the court, with the consent of all parties of record, may reserve questions of law for the advice of the supreme court or appellate court in all cases in which an appeal could lawfully have been taken to said court had judgment been rendered therein.
      “(b) The court or judge making the reservation shall, in the judgment, decree or decision made or rendered in such cases, conform to the advice of the supreme court or the appellate court.”
      Practice Book § 4147 provides: “A reservation shall be taken to the supreme court or to the appellate court from those cases in which an appeal could have been taken directly to the supreme court, or to the appellate court, respectively, had judgment been rendered. Reservations in cases where the proper court for the appeal cannot be determined prior to judgment shall also be taken directly to the supreme court.
      “All questions presented for advice shall be specific and shall be phrased so as to require a Yes or No answer.
      “The court will not entertain a reservation for its advice upon questions of law arising in any action unless the question or questions presented are such as are, in the opinion of the court, reasonably certain to enter into the decision of the case, and it appears that their present determination would be in the interest of simplicity, directness and economy of judicial action.
      “The advice of the appellate court on a reservation may be reviewed by the supreme court only upon the granting of certification as provided by chapter 72.”

       Compare Ghent v. Planning Commission, 219 Conn. 511, 515-16, 594 A.2d 5 (1991) (absence of transcript not fatal to subject matter jurisdiction over administrative appeal despite use of word “shall” in General Statutes § 8-8 [c]), and LeConche v. Elligers, supra, 215 Conn. 710-11 (absence of good faith certificate not fatal to subject matter jurisdiction despite use of word “shall” in General Statutes § 52-190a), with Concept Associates, Ltd. v. Board of Tax Review, 229 Conn. 618, 626 n.9, 642 A.2d 1186 (1994) (because General Statutes § 52-72 relates to matter of substance rather than mere convenience, word “shall” is mandatory).

       General Statutes (Rev. to 1958) § 31-127 provides in relevant part,: “After the filing of any complaint, the chairman of the commission shall refer the same to a commissioner or investigator to make prompt preliminary investigation of such complaint and, if such commissioner or investigator determines after such preliminary investigation that there is reasonable cause for believing that an unfair employment practice has been or is being committed as alleged in such complaint, he shall immediately endeavor to eliminate the unfair employment practice complained of by conference, conciliation and persuasion.”

       We pay particular attention to statements of the legislators who sponsored the bill. Manchester Sand & Gravel Co. v. South Windsor, 203 Conn. 267, 275, 524 A.2d 621 (1987).

       The commission has cited to other portions of the legislative history of P.A. 89-332 to support its argument that the deadlines in §§ 46a-83 (b) and 46a-84 (b) are directory and not mandatory. We are not persuaded. In the context of addressing complaints pending as of January 1,1990, Representative Coleman stated that the commission “would be required to endeavor to eliminate its backlog by July 1, 1991.” 32 H.R. Proc., Pt. 31, 1989 Sess., p. 10, 943. If the commission could not accomplish this within eighteen months, those cases “would still be pending within the Commission on Human Rights and Opportunities.” Id., p. 10,944. In response to questions from other members of the General Assembly regarding the purpose of including the July 1, 1991 date, Representative Richard D. Tulisano stated that “it is important that we establish a deadline for people to work towards to get a job done. There has been a consistent backlog over the years of some 2000 and some odd cases, 2200 cases, and this will ask them to start to work and put some efforts into resolving it . . . .” Id., p. 10,946. Both representatives were addressing the backlog of cases and not the deadlines for investigations and hearings. The legislature recognized the need to treat the then existing backlog with some patience but intended the time limitations for claims not yet filed to be strictly enforced so as to avoid the creation of future backlogs.

       The fourteenth amendment to the United States constitution provides in relevant part: “No State shall . . . deprive any person of life, liberty or property, without due process of law . . . .”

       The parties do not specify whether their reserved questions are in personal or subject matter jurisdictional terms. As stated above, however, resolution of this case does not require consideration of that issue. We note, however, that our decision in this case is consistent with our recent cases in which we decided issues of jurisdiction based upon legislative intent. For example, in Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 764-65, 628 A.2d 1303 (1993), in deciding whether the legislature, in imposing a time limitation, intended to impose a subject matter jurisdictional requirement on the right to appeal, we concluded that where the legislature has manifested an intent to make time constraints mandatory, they act as a subject matter jurisdictional bar. Similarly, we have recently revisited whether time limitations on actions are procedural or substantive and have stated that “where a specific limitation is contained in the statute which establishes the remedy . . . [and where] the remedy exists only during the prescribed period and not thereafter . . . [i]n such situations the Statute of Limitations is considered substantive . . . .” (Internal quotation marks omitted.) Bridgeport v. Debek, 210 Conn. 175, 188, 554 A.2d 728 (1989). Finally, if personal jurisdiction is at issue, we note that the plaintiff made a timely motion to dismiss and that the defendant has failed to assert that the plaintiff has waived its noncompliance with §§ 46a-83 (b) and 46a-84 (b).


source: Caselaw Access Project

author: BERDON, J.

license: Public Domain

text:
    JADE AIRCRAFT SALES, INC. v. ALLAN A. CRYSTAL, COMMISSIONER OF REVENUE SERVICES, ET AL.
    (15131)
    Borden, Berdon, Norcott, Katz and Palmer, Js.
    Argued January 16
    officially released April 23, 1996

      Gary A. Mastronardi, for the appellant (plaintiff).

      Rachel O. Davis, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellees (defendants).
   BERDON, J.

The sole issue presented in this appeal is whether the Superior Court has subject matter jurisdiction to hear a claim brought under 42 U.S.C. § 1983 challenging a use tax assessed against the plaintiff, Jade Aircraft Sales, Inc. On or about May 1,1991, the named defendant, the commissioner of revenue services (commissioner), pursuant to General Statutes § 12-411, assessed a use tax against the plaintiff with respect to the in-state use of an airplane that had been purchased out-of-state. The plaintiff filed a letter of protest in which it requested an agency hearing. The plaintiff’s request was granted and, on November 5, 1992, the commissioner upheld the assessment. On November 20, 1992, pursuant to General Statutes § 12-422, the plaintiff appealed from the commissioner’s decision, alleging that the assessment was contrary to statutory law and that it violated the plaintiffs constitutional rights. Although the appeal was taken within the statutory one month period, on January 3, 1994, the trial court dismissed the appeal for lack of subject matter jurisdiction on the ground that the plaintiff failed to serve properly the commissioner in the manner prescribed by § 12-422. Jade Aircraft Sales, Inc. v. Crystal, 43 Conn. Sup. 10, 673 A.2d 415 (1994). The plaintiff did not appeal from that judgment.

Several months later, the plaintiff brought the present action consisting of two counts. In the first count, the plaintiff essentially renewed its claim from the prior action, that is, pursuant to § 12-422, the commissioner’s use tax assessment was improper because it allegedly violated a variety of statutory and constitutional provisions. The plaintiff relied on the accidental failure of suit statute; General Statutes § 52-592 (a); in an effort to extend the statutory period within which it could renew its claim. The second count alleged that the commissioner’s tax assessment had deprived the plaintiff of its federal constitutional rights under the due process clauses of the fifth and fourteenth amendments, as well as its rights under the commerce clause in violation of 42 U.S.C. § 1983. On the second count, the plaintiff sought declaratory and injunctive relief. Additionally, the plaintiff sought attorney’s fees under 42 U.S.C. § 1988.

The trial court dismissed both counts of the plaintiffs second complaint for lack of subject matter jurisdiction. The plaintiff, pursuing only the § 1983 claim, appealed to this court from the judgment of the trial court. The plaintiffs appeal was stayed pending the United States Supreme Court’s decision in National Private Truck Council, Inc. v. Oklahoma Tax Commission, U.S. , 115 S. Ct. 2351, 132 L. Ed. 2d 509 (1995), after which both parties submitted supplemental briefs regarding the impact of that court’s decision on this case. We affirm the judgment of dismissal by the trial court.

The question presented in this appeal is controlled by our decision in Zizka v. Water Pollution Control Authority, 195 Conn. 682, 490 A.2d 509 (1985), and by the United States Supreme Court’s decision in National Private Truck Council, Inc. v. Oklahoma Tax Commission, supra, 115 S. Ct. 2351. In Zizka, “[t]he plaintiffs brought an action in the Superior Court seeking a judgment declaring that the formula utilized by [the defendants] for a sewer assessment violated the plaintiffs’ rights to equal protection and due process of law under the federal constitution. They alleged that such violations were actionable under 42 U.S.C. § 1983 . . . and also claimed compensatory and punitive damages, injunctive relief and attorney’s fees.” Zizka v. Water Pollution Control Authority, supra, 682-83. The court in Zizka commenced its analysis by recognizing that “[s]tate courts have concurrent jurisdiction with federal courts over § 1983 claims. Maine v. Thiboutot, 448 U.S. 1, 3 n.1, 100 S. Ct. 2502, 65 L. Ed. 2d 555 (1980); Fetterman v. University of Connecticut, 192 Conn. 539, 549, 473 A.2d 1176 (1984). The scope of a § 1983 action in state court [however] depends in part upon the nature of the relief that is sought.” Zizka v. Water Pollution Control Authority, supra, 687-88. The plaintiffs’ § 1983 claim was then examined in light of the remedies sought.

This court concluded in Zizka that the plaintiffs’ § 1983 claim for injunctive relief would be barred “if they had an adequate remedy at law.” Id., 688. The court noted that General Statutes § 7-250 provided the plaintiffs with a public hearing at which their opposition to the proposed assessment could be heard and with a right to appeal the assessment to the Superior Court within twenty-one days of the assessment being filed with a municipal clerk. Id. “[I]n light of the remedial relief provided under § 7-250,” the court concluded that § 7-250 provided an adequate remedy. Id.

The court in Zizka reviewed the plaintiffs’ § 1983 claims for declaratory and monetary relief in light of the Federal Anti-Injunction Act; 28 U.S.C. § 1341 (1988); which provides: “The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State. ” As the court noted, § 1341 creates a jurisdictional barrier “for federal courts when there is a plain, speedy and efficient remedy in the state courts .... The extent to which § 1341 bars actions in state courts is less well defined. . . . Section 1341 is rooted in principles of federalism. It reflects the policy that federal courts should not interfere with the collection of state taxes. The logical implication from federalism is that state couits should themselves determine the adequacy of state remedies for claims contesting state taxes. Although § 1341 does not operate as a jurisdictional barrier in state courts, it nonetheless points the way to the proper standard by which state tax challenges should be measured. In a § 1983 suit seeking relief from the collection of state taxes, [this court] may impose limitations that, like those of § 1341, inquire into whether the claimants have been afforded a statutory remedy that is plain, speedy and efficient.” (Citations omitted; internal quotation marks omitted.) Zizka v. Water Pollution Control Authority, supra, 195 Conn. 689-90. The court concluded “that § 7-250 furnishes a remedy that forecloses the plaintiffs’ § 1983 claims in this action in state court. Since the General Assembly has fashioned an exclusive adequate remedial system for challenging excessive sewer assessments . . . we see no need to subject state tax collectors to state actions brought under § 1983. . . . The bringing of a § 1983 action under these circumstances raises a jurisdictional question. . . . The trial court was, therefore, correct in concluding that it lacked jurisdiction to entertain the present law suit.” (Citations omitted.) Id., 690. Accordingly, Zizka stands for the proposition that if an adequate remedy exists at law for challenging a state tax assessment, state courts do not have jurisdiction to entertain such a challenge under § 1983.

Recently, recognizing that there was conflict among the state courts, the United States Supreme Court granted certiorari in National Private Truck Council, Inc. v. Oklahoma Tax Commission, supra, 115 S. Ct. 2354, to determine whether, in tax cases, state courts have jurisdiction under § 1983 when there is an adequate state remedy. Indeed, the United States Supreme Court referred to Connecticut, by citing to this court’s decision in Zizka, as a jurisdiction that holds that “[s]tates need not provide [a] § 1983 remedy in state tax cases” if an adequate remedy is provided for in state law. Id., 2354 n.3. With an analysis that paralleled the analysis this court had set forth in Zizka, the United States Supreme Court held that “[w]hen a litigant seeks declaratory or injunctive relief against a state tax pursuant to § 1983 . . . state courts, like their federal counterparts, must refrain from granting federal relief under § 1983 when there is an adequate legal remedy.” (Emphasis added.) Id., 2357. Accordingly, in the present case, unless the state remedy is inadequate, the trial court was correct in dismissing the action.

We must, therefore, determine in this case whether there was an adequate legal remedy available to the plaintiff. Section 12-422 affords aggrieved taxpayers the right to appeal an order, decision, determination or disallowance of the commissioner to the Superior Court within one month after they have been served with notice of such an order. The plaintiff argues that § 12-422 does not provide an adequate remedy for two reasons: (1) it does not provide for awards of monetary damages or attorney’s fees; and (2) it provides only one month within which a tax assessment may be appealed. We are not persuaded by either assertion.

First, in addition to legal relief, § 12-422 explicitly provides for “such relief as may be equitable,” including interest. Section 12-422 does not, however, provide for the recovery of attorney’s fees. Nonetheless, the plaintiff fails to cite any statutory or common law authority for its claim that the availability of attorney’s fees is a requisite for a remedy to be deemed adequate. To the contrary, in Zizka, this court held that § 7-250 provides an adequate remedy for challenging state taxes despite the unavailability of attorney’s fees. Zizka v. Water Pollution Control Authority, supra, 195 Conn. 683. Likewise, in National Private Truck Council, Inc. v. Oklahoma Tax Commission, supra, 115 S. Ct. 2351, the United States Supreme Court considered the relief provided to be adequate despite the fact that attorney’s fees were not awarded. Similarly, § 12-422, which provides both legal and equitable relief, affords a successful tax appellant an adequate remedy, despite the inability of the appellant to recover attorney’s fees.

Second, the plaintiff argues that § 12-422 does not provide an adequate remedy because a tax appeal must be brought within one month of the date of the adverse administrative decision. In support of its argument, the plaintiff cites the United States Supreme Court’s decision in Felder v. Casey, 487 U.S. 131, 108 S. Ct. 2302, 101 L. Ed. 2d 123 (1988). In Felder, the court struck down a state notice-of-claim statute that truncated the period of time within which a tort action brought under § 1983 could be filed. Felder, however, does not support the plaintiffs assertion. A tax appeal is not akin to an action in tort, which was the subject of the litigation in Felder. Unlike a tort action, where the plaintiff may be unaware of the existence or extent of his or her injury within one month of the commission of the tort, individuals who wish to challenge the assessment of a state tax are immediately aware of the precise nature and amount of their injury on the date the assessment is rendered. In this case, there is no claim that the plaintiff was not given timely notice. But for the plaintiffs failure to satisfy the jurisdictional requirements of service, the plaintiff would have been able to challenge the assessment in the Superior Court. Therefore, the period of one month in which a tax appeal must be filed pursuant to § 12-422 is adequate. Moreover, this conclusion follows from this court’s decision in Zizka, where a twenty-one day appeal period was deemed to be adequate. Zizka v. Water Pollution Control Authority, supra, 195 Conn. 688.

Because the plaintiff had an opportunity to receive an adequate legal remedy, we conclude that the trial court did not have jurisdiction to entertain the § 1983 claim.

The judgment is affirmed.

In this opinion the other justices concurred.

       Title 42 of the United States Code, § 1983 (1988), provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”

       General Statutes § 12-422 provides: “Any taxpayer aggrieved because of any order, decision, determination or disallowance of the commissioner of revenue services under section 12-418, 12421 or 12425 may, within one month after service upon the taxpayer of notice of such order, decision, determination or disallowance, take an appeal therefrom to the superior court for the judicial district of Hartford-New Britain, which shall be accompanied by a citation to the commissioner of revenue services to appear before said court. Such citation shall be signed by the same authority, and such appeal shall be returnable at the same time and served and returned in the same manner, as is required in case of a summons in a civil action. The authority issuing the citation shall take from the appellant a bond or recognizance to the state of Connecticut, with surety to prosecute the appeal to effect and to comply with the orders and decrees of the court in the premises. Such appeals shall be preferred cases, to be heard, unless cause appears to the contrary, at the first session, by the court or by a committee appointed by it. Said court may grant such relief as may be equitable and, if such tax has been paid prior to the granting of such relief, may order the treasurer to pay the amount of such relief, with interest at the rate of nine per cent per annum, to the aggrieved taxpayer. If the appeal has been taken without probable cause, the court may tax double or triple costs, as the case demands; and, upon all such appeals which are denied, costs may be taxed against the appellant at the discretion of the court, but no costs shall be taxed against the state.”

       Title 42 of the United States Code, § 1988 (b) (1988), provides in pertinent part: “In any action or proceeding to enforce a provision of [section] . . . 1983 ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”

       We raised, sua sponte, the issue of whether appropriate notice was given to interested parties pursuant to Practice Book § 390 (d). Because the only issue before us is whether the trial court has jurisdiction to entertain a § 1983 action wherein the plaintiff challenges a state tax assessment, we are persuaded that the requirements of § 390 (d) have been satisfied. See Steeneck v. University of Bridgeport, 235 Conn. 572, 580, 668 A.2d 688 (1995); Zizka v. Water Pollution Control Authority, 195 Conn. 682, 490 A.2d 509 (1985).

       Although we agree with the judgment of dismissal in this case, we disagree with the trial court’s reasoning. In dismissing the plaintiff’s § 1983 claim, the trial court relied heavily on its opinion in Pechiney Corp. v. Crystal, 43 Conn. Sup. 91, 643 A.2d 319 (1994). In Pechiney Corp., the plaintiffs “filed an appeal from a decision of the commissioner . . . pursuant to General Statutes § 12-237. . . . [The plaintiffs contended] that the commissioner’s action, in addition to being statutorily erroneous, violated a number of provisions of the state and federal constitutions, including the commerce, due process and equal protection clauses. . . . Each final count allege[d] that the commissioner acted under color of state law and that his actions violated 42 U.S.C. § 1983 by depriving the [plaintiff] taxpayers of rights, privileges and immunities secured by the constitution of the United States. In their prayers for relief, the [plaintiffs] askfed] that the assessments be set aside, that attorney’s fees be awarded, and that [the] court grant them such other relief as may be proper and equitable.” Id., 92. In an effort to distinguish this court’s opinion in Zizka v. Water Pollution Control Authority, 195 Conn. 682, 490 A.2d 509 (1985), the trial court in Pechiney Corp. held that a § 1983 action may be brought in state court to challenge a state tax only if it is “appended” to a state tax appeal. Pechiney Corp. v. Crystal, supra, 100. To the extent that Pechiney Corp. held that the trial court has jurisdiction over a § 1983 claim wherein the plaintiff challenges a state tax assessment when the remedy at law is adequate, that case is overruled.

         The court held: “The state action that the plaintiffs challenge falls within the rubric of a state tax. A sewer assessment, although not formally denominated a ‘tax,’ involves the taxing power of the state.” Zizka v. Water Pollution Control Authority, supra, 195 Conn. 689.

       General Statutes § 7-250 provides: “No assessment shall be made until after a public hearing before the water pollution control authority at which the owner of the property to be assessed shall have an opportunity to be heard concerning the proposed assessment. Notice of the time, place and purpose of such hearing shall be published at least ten days before the date thereof in a newspaper having a general circulation in the municipality, and a copy of such notice shall be mailed to the owner of any property to be affected thereby at such owner’s address as shown in the last-completed grand list of the municipality or at any later address of which the water pollution control authority may have knowledge. A copy of the proposed assessment shall be on file in the office of the clerk of the municipality and available for inspection by the public for at least ten days before the date of such hearing. When the water pollution control authority has determined the amount of the assessment to be levied, it shall file a copy thereof in the office of the clerk of the municipality. Not later than five days after such filing, it shall cause a copy of such assessment to be published in a newspaper having a general circulation in the municipality, and it shall mail a copy of such assessment to the owner of any property to be affected thereby at such owner’s address as shown in the last-completed grand list of the municipality or at any later address of which the water pollution control authority may have knowledge. Such publication and mailing shall state the date on which such assessment was filed and that any appeals from such assessment must be taken within twenty-one days after such filing. Any person aggrieved by any assessment may appeal to the superior court for the judicial district wherein the property is located and shall bring any such appeal to a return day of said court not less than twelve nor more than thirty days after service thereof and such appeal shall be privileged in respect to its assignment for trial. Said court may appoint a state referee to appraise the benefits to such property and to make a report of his doings to the court. The judgment of said court, either confirming or altering such assessment, shall be final. No such appeal shall stay proceedings for the collection of the particular assessment upon which the appeal is predicated but the appellant shall be reimbursed for any overpayments made if, as a result of such appeal, his assessment is reduced.”

       Although the United States Supreme Court assumed, without deciding, that “state courts generally must hear § 1983 suits”; National Private Truck Council, Inc. v. Oklahoma Tax Commission, supra, 115 S. Ct. 2355; the court’s holding controls those situations where state law provides an adequate legal remedy for litigants who seek relief pursuant to § 1983 as a result of a tax assessment.

       See footnote 5.


author: PALMER, J.

text:
    M. DEMATTEO CONSTRUCTION COMPANY v. CITY OF NEW LONDON
    (15150)
    Peters, C. J., and Borden, Norcott, Katz and Palmer, Js.

      Argued January 11
    officially released April 23, 1996

      Elliott B. Pollack, with whom were Lucy M. Ziobro and, on the brief, Gregory F. Servididio, for the appellants (plaintiffs).

      Thomas J. Londregan, with whom, on the brief, was Marguerite Driscoll Matt, for the appellee (defendant).
   PALMER, J.

In this tax appeal, the sole issue is whether the trial court properly concluded that it lacked the authority to award costs to the prevailing party for fees that that party had incurred in preparing an appraisal report. The plaintiff, M. DeMatteo Construction Company, filed an. appeal in the Superior Court pursuant to General Statutes § 12-117a from a decision of the board of tax review of the defendant, the city of New London, refusing to reduce the assessment of its property. After a hearing, the trial court reduced the assessed value of the property. The plaintiff thereafter filed a bill of costs that included the payments made by it to its appraiser for an appraisal report. The trial court, concluding that the fee for the report was not a taxable cost under either General Statutes § 12-117a or General Statutes § 52-260 (f), disallowed that item of the plaintiffs bill of costs. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the judgment of the trial court.

The relevant facts and procedural history are undisputed. The plaintiff is the owner of the parcel of land and buildings comprising a shopping center located on Frontage Road in New London known as the New London Mall. The tax assessor of the city of New London determined that the fair market value of the property as of October 1,1993, was $11,136,500. The plaintiff appealed from the assessment by the assessor to the city’s board of tax review (board), which upheld the assessor’s valuation of the property. The plaintiff then appealed from the decision of the board to the Superior Court pursuant to § 12-117a.

In its appeal to the Superior Court, the plaintiff sought a reduction of the assessment that had been levied against it on the ground that the assessor had overvalued its property. In support of its claim, the plaintiff introduced the testimony of a real estate appraiser, Arthur Estrada, who testified that the fair market value of the mall was $9,500,000. The plaintiff also introduced into evidence a report prepared by Estrada detailing his conclusions.

The trial court agreed with the plaintiff that the assessor had overvalued the property and concluded that the fair market value of the mall as of October 1, 1993, was $10,668,858. The plaintiff thereafter filed a bill of costs seeking, among other things, reimbursement for the $12,000 fee that it had paid to Estrada for his appraisal report. The defendant objected to the plaintiffs bill of costs on the ground that the fee for the report was not a taxable cost under either § 12-117a or § 52-260 (f). Concluding that it lacked the statutory authority to tax the cost of the appraisal report, the trial court sustained the defendant’s objection to that portion of the plaintiffs bill of costs, and this appeal followed.

The plaintiff contends, as it did in the trial court, that it is entitled to reimbursement for all reasonable appraisal fees incurred in connection with its successful tax appeal, including the cost of Estrada’s report. The plaintiff, in support of its claim, relies on both § 12-117a and § 52-260 (f). With respect to § 12-117a, the plaintiff maintains that the legislature, by broadly authorizing the taxing of “costs” in favor of the prevailing party, intended that a municipality held responsible for an overassessment of property should bear the reasonable expenses incurred by the taxpayer for an appraisal report. The plaintiff also relies on § 52-260 (f), which provides that the reasonable fee charged by a real estate appraiser for his or her trial testimony shall be taxed as part of the costs in lieu of all other witness fees otherwise payable to the appraiser. Although the plaintiff acknowledges that § 52-260 (f) makes reference only to fees arising out of an expert’s trial testimony, the plaintiff nevertheless claims that, because the work necessary to the preparation of an appraisal report is also essential to the appraiser’s sworn testimony, the fee for the report must also be a taxable cost under the statute. We are not persuaded by either of the plaintiffs claims.

Our analysis of the plaintiffs claims is guided by well established tenets of statutory construction. “[0]ur fundamental objective is to ascertain and give effect to the apparent intent 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.) State v. Burns, 236 Conn. 18, 22-23, 670 A.2d 851 (1996); State v. Spears, 234 Conn. 78, 86-87, 662 A.2d 80, cert. denied, U.S. , 116 S. Ct. 565, 133 L. Ed. 2d 490 (1995). Furthermore, “[w]e presume that laws are enacted in view of existing relevant statutes”; Pollio v. Planning Commission, 232 Conn. 44, 55, 652 A.2d 1026 (1995); Kinney v. State, 213 Conn. 54, 65, 566 A.2d 670 (1989); Shortt v. New Milford Police Dept., 212 Conn. 294, 302, 562 A.2d 7 (1989); and that “[statutes are to be interpreted with regard to other relevant statutes because the legislature is presumed to have created a consistent body of law.” (Internal quotation marks omitted.) In re Valerie D., 223 Conn. 492, 524, 613 A.2d 748 (1992). Applying these precepts to the plaintiffs claims, we agree with the conclusion of the trial court that the fee for the appraisal report is not a taxable cost under either § 12-117a or § 52-260 (f).

It is a settled principle of our common law that parties are required to bear their own litigation expenses, except as otherwise provided by statute. Verrastro v. Sivertsen, 188 Conn. 213, 217, 448 A.2d 1344 (1982). Furthermore, because “[cjosts are the creature of statute . . . unless the statute clearly provides for them courts cannot tax them.” (Internal quotation marks omitted.) Audubon Parking Associates Limited Partnership v. Barclay & Stubbs, Inc., 225 Conn. 804, 814, 626 A.2d 729 (1993); Verrastro v. Sivertsen, supra, 217; Waterbury v. Macken, 100 Conn. 407, 413, 124 A. 5 (1924), appeal dismissed, 273 U.S. 646, 47 S. Ct. 244, 71 L. Ed. 820 (1926). Accordingly, the plaintiff can prevail only if the statutory provisions upon which it relies clearly empower the trial court to tax the cost of a real estate appraisal report.

Section 12-117a, to which we turn first, contains no reference to appraisal fees. Moreover, the pertinent legislative history is devoid of any indication that the legislature’s use of the term “costs” in § 12-117a was intended to authorize the trial court to award to the prevailing party the cost of a real estate appraisal report prepared by its expert. It cannot be said, therefore, that § 12-117a clearly provides that fees incurred for the preparation of a real estate appraisal report shall be considered taxable costs.

Furthermore, in circumstances in which the legislature has intended that the prevailing party shall recover appraisal fees, it has expressly so provided. See, e.g., General Statutes § 8-133 (if redevelopment agency undervalues property it takes by eminent domain, court shall award property owner reasonable appraisal fees); General Statutes § 12-161a (in proceedings by municipality to collect delinquent taxes on personal property, the owner of the property shall pay reasonable appraiser’s fees incurred by municipality); General Statutes § 12-193 (reasonable appraiser’s fees incurred by municipality as result of foreclosure action under General Statutes § 12-181 or § 12-182 shall be taxed against party having title to property so foreclosed); General Statutes § 13a-76 (when transportation commissioner undervalues property taken by state for construction or maintenance of highway, court shall award property owner reasonable appraisal fee); General Statutes § 16-266 (reasonable appraisal fees shall be taxed against corporation authorized to take property for purpose of constructing and operating natural gas pipeline when property owner successfully challenges corporation’s determination of compensation to be paid to property owner); General Statutes § 48-17b (reasonable appraisal fees shall be awarded to plaintiff who prevails in inverse condemnation action against state); General Statutes § 48-26 (court may order condemnor to pay appraisal fees when court award of compensation, damages or benefits to property owner exceeds payment last offered by condemnor to property owner). “Where a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject ... is significant to show that a different intention existed. . . . That tenet of statutory construction is well grounded because [t]he General Assembly is always presumed to know all the existing statutes and the effect that its action or non-action will have upon any one of them.” (Citations omitted; internal quotation marks omitted.) In re Ralph M., 211 Conn. 289, 306-307, 559 A.2d 179 (1989); see also Plourde v. Liburdi, 207 Conn. 412, 416, 540 A.2d 1054 (1988) (“the use of different words [or the absence of repeatedly used words in the context of] the same [subject matter] must indicate a difference in legislative intention”). We conclude, therefore, that the legislature did not intend that a fee incurred for an appraisal report be included as a taxable cost under § 12-117a.

The plaintiff fares no better under § 52-260 (f). By its express terms, § 52-260 (f) treats as taxable only those costs that arise from an expert’s testimony at trial. Furthermore, the plaintiff points to nothing in the legislative history of § 52-260 (f) to suggest that the legislature intended to convey a broader meaning than is imparted by the plain statutory language. See Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 195, 663 A.2d 1011 (1995) (“[w]e will not impute to the legislature an intent that is not apparent from unambiguous statutory language in the absence of a compelling reason to do so”). Although it is undoubtedly true that some or all of the work done by a real estate appraiser in preparing a report will provide the basis for the appraiser’s testimony, that fact alone lends no support to the plaintiffs claim because, as we have previously stated, litigants in this state have long been held responsible for the payment of their own litigation expenses absent a clear expression of legislative intent to the contrary.

The plaintiff also claims that public policy considerations militate in favor of permitting a property owner to recover the cost of an appraisal report following a successful tax appeal under § 12-117a. Specifically, the plaintiff contends that a property owner’s knowledge that he or she must shoulder the burden of the cost of the appraisal report might serve to discourage the filing of meritorious tax appeals. The plaintiff, however, has presented nothing to substantiate this claim. Even if we assume, arguendo, that some taxpayers will be deterred from filing tax appeals, we “may not, by construction, supply omissions in a statute . . . merely because [we opine] that good reason exists for so doing. . . . This is especially so where it appears that the omission was intentional. ... In such a situation, the remedy lies not with the court but with the General Assembly.” (Citations omitted.) Bailey v. Mars, 138 Conn. 593, 598, 87 A.2d 388 (1952); State v. Nelson, 126 Conn. 412, 416, 11 A.2d 856 (1940); see also United Aircraft Corp. v. Fusari, 163 Conn. 401, 414, 311 A.2d 65 (1972).

The judgment is affirmed.

In this opinion the other justices concurred.

       On June 30, 1993, M. DeMatteo Construction Company transferred title to its property to DeMatteo Management, Inc., which was made a plaintiff. References to the plaintiff are to both M. DeMatteo Construction Company and DeMatteo Management, Inc.

       General Statutes § 12-117a provides in relevant part: “Appeals from decisions of boards of tax review concerning assessment lists for assessment years commencing October 1, 1989, to October 1, 1992. Notwithstanding Hie provisions of sections 12-118,12-121aa and 12-121bb, any person, including any lessee of real property whose lease has been recorded as provided in section 47-19 and who is bound under the terms of his lease to pay real property taxes, claiming to be aggrieved by the action of the board of tax review in any town or city with respect to the assessment list for the assessment year commencing October 1, 1989, October 1, 1990, October 1, 1991, October 1, 1992, October 1, 1993, or October 1, 1994, may, within two months from the time of such action, make application, in the nature of an appeal therefrom, to the superior court for the judicial district in which such town or city is situated, which shall be accompanied by a citation to such town or city to appear before said court .... Any such application shall be a preferred case, to be heard, unless good cause appears to the contrary, at the first session, by the court or by a committee appointed by the court .... The court shall have power to grant such relief as to justice and equity appertains, upon such terms and in such manner and form as appear equitable, and, if the application appears to have been made without probable cause, may tax double or triple costs, as the case appears to demand; and, upon all such applications, costs may be taxed at the discretion of the court. If the assessment made by the board of tax review is reduced by said court, the applicant shall be reimbursed by the town or city for any overpayment of taxes, together with interest and costs, or, at the applicant’s option, shall be granted a tax credit for such overpayment, interest and costs. Upon motion, said court shall, in event of such overpayment, enter judgment in favor of such applicant and against such city or town for the whole amount of such overpayment, together with interest and costs. . . .”

       General Statutes § 52-260 (f) provides: “When any practitioner of the healing arts as defined in section 20-1, dentist, registered nurse or licensed practical nurse, as defined in section 20-87a, or real estate appraiser is summoned to give expert testimony in any action or proceeding, the court shall determine a reasonable fee to be paid to the practitioner of the healing arts, dentist, registered nurse or licensed practical nurse, as defined in section 20-87a, or real estate appraiser and taxed as part of the costs in lieu of all other witness fees payable to the practitioner of the healing arts, dentist, registered nurse or licensed practical nurse, as defined in section 20-87a, or real estate appraiser.”

       On appeal, neither party challenges the trial court’s valuation of the property.

       The plaintiff also sought reimbursement for the $2100 fee that it had incurred in connection with Estrada’s trial testimony, and the trial court allowed that item of the bill of costs. The defendant does not challenge that portion of the trial court’s judgment.

       We note that § 12-117a uses the same language as did General Statutes (Rev. to 1995) § 12-118 regarding the authority of the trial court to award costs to a property owner who successfully challenges an assessment of the value of his or her property by the state appeals board for property valuation. The legislative history of § 12-118 also contains no discussion regarding the right of a successful litigant to recover appraisal fees as part of the costs of the tax appeal.


author: PER CURIAM.

text:
    IRAIDA FELICIANO v. JUAN FELICIANO
    (15295)
    Peters, C. J., and Callahan, Berdon, Norcott and Katz, Js.
    Argued March 27
    officially released April 23, 1996

      Margaret P. Levy, for the appellant (defendant).

      Rochelle Homelson, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Donald M. Longley, assistant attorney general, for the appellee (state).
   PER CURIAM.

The dispositive issue in this certified appeal is whether family attribution rules governing the Aid to Families with Dependent Children (AFDC) program may justify the diminution of the parental support obligation otherwise prescribed by applicable child support guidelines. The trial court approved a ruling by the family support magistrate that deviation from the support guidelines is constitutionally required in order to assure that a parent’s support obligation does not exceed his or her child’s pro rata share of AFDC benefits for a family unit that includes children for whom the parent bears no financial responsibility. Upon appeal by the state, the Appellate Court reversed the judgment of the trial court. Feliciano v. Feliciano, 37 Conn. App. 856, 865, 658 A.2d 141 (1995). We granted the defendant’s petition for certification to review whether the Appellate Court’s ruling requiring the defendant to pay support in accordance with the child support guidelines properly took into account the trier’s exercise of discretion and properly resolved the defendant’s constitutional claims. We affirm the judgment of the Appellate Court.

The underlying facts are undisputed. At the time of the dissolution of the marriage between the plaintiff, Iraida Feliciano, and the defendant, Juan Feliciano, the defendant had been ordered to pay $15 per week child support. The attorney general, representing the state, was a party to the dissolution proceedings because, pursuant to the applicable AFDC program, the plaintiff was receiving financial assistance for the defendant’s minor child. General Statutes § 46b-55 (a). The plaintiff receives AFDC payments for a family unit that includes not only the defendant’s child but also two other children for whom the defendant had no financial responsibility.

In 1993, in conformity with the Connecticut child support guidelines, the state moved for an increase in the defendant’s support obligation to $86 per week, and for payments to discharge an arrearage. The family support magistrate granted the state’s motion in part, but increased the defendant’s support obligation only to $56.43 per week, which was his child’s pro rata share of the family’s AFDC benefits. The decision of the family support magistrate was upheld by the trial court, but the Appellate Court reversed the judgment of the trial court, concluding that the state’s motion should have been granted in its entirety. We agree with the Appellate Court.

After examining the record on appeal and after considering the briefs and arguments of the parties, we are persuaded that the Appellate Court properly analyzed the legality of deviations from child support guidelines premised on the availability of income attributable to AFDC public assistance grants. We agree with that court’s conclusion that, as a matter of state law, such deviations are improper because the Connecticut child support guidelines “expressly provide that public assistance grants are not to be included in determination of gross income.” Feliciano v. Feliciano, supra, 37 Conn. App. 859. We also agree with its further conclusion that, as a matter of federal constitutional law, denials of such deviations comport with the requirements of due process and of equal protection in light of the decision by the United States Supreme Court in Bowen v. Gilli ard, 483 U.S. 587, 107 S. Ct. 3008, 97 L. Ed. 2d 485 (1987), which upheld the constitutionality of AFDC family attribution rules pursuant to 42 U.S.C. § 602 (a) (38). Feliciano v. Feliciano, supra, 861-63. Because both of the issues on which we granted certification were properly resolved in the thoughtful and comprehensive opinion of the Appellate Court, it would serve no useful purpose for us to elaborate further on the discussion therein contained. Cf. Gajewski v. Pavelo, 236 Conn. 27, 30, 670 A.2d 318 (1996); Sharp v. Wyatt, Inc., 230 Conn. 12, 16, 644 A.2d 871 (1994); Whisper Wind Development Corp. v. Planning & Zoning Commission, 229 Conn. 176, 177, 640 A.2d 100 (1994).

The judgment is affirmed.

       We granted the defendant’s petition for certification for appeal, limited to the following issues: (1) “Did the Appellate Court correctly conclude that the trial court abused its discretion by deviating from the child support guidelines by limiting the support for the child to the pro rata share of the AFDC grant applicable to the child?” and (2) “Did the Appellate Court correctly conclude that the trial court incorrectly held that entry of a child support order in accordance with the child support guidelines would have violated the defendant’s constitutional rights by applying his payments to the state as reimbursement for AFDC payments for two children whom he had no duty to support?” Feliciano v. Feliciano, 234 Conn. 915, 915-16, 661 A.2d 96 (1995).

       General Statutes § 46b-55 provides in relevant part: “Attorney general as party. Paternity establishment, (a) The attorney general shall be and remain a party to any action for dissolution of marriage, legal separation or annulment, and to any proceedings after judgment in such action, if any party to the action, or any child of any party, is receiving or has received aid or care from the state. The attorney general may also be a party to such action for the purpose of establishing, enforcing or modifying an order for support or alimony if any party to the action is receiving support enforcement services pursuant to Title IV-D of the Social Security Act.”