State v. Banks ( 2016 )

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STATE v. BANKS—CONCURRENCE
ROGERS, C. J., with whom ZARELLA, J., joins, con-
curring. I agree with the majority opinion, but write
separately because I believe that the time has come
to attempt to clarify our jurisprudence regarding the
distinction between mandatory and directory statutes,
and specifically the use of the term ‘‘shall’’ in statutory
language. As I discuss more fully in this opinion, the
distinction between mandatory statutes, which must be
strictly complied with, and directory statutes, which
merely provide direction and are of no obligatory force,1
despite the use of the term ‘‘shall,’’ originated in cases
that involved statutes that vested power in a public
official. Over time, however, parties have begun to claim
that the mandatory/directory distinction applies to stat-
utory provisions that impose substantive requirements
on private persons. The state in the present case con-
tends that General Statutes (Rev. to 2011) § 54-102g (a),
which provides in relevant part that ‘‘[a]ny person who
has been convicted of a . . . felony . . . shall, prior
to release from custody and at such time as the [C]om-
missioner [of Correction] may specify, submit to the
taking of a blood or other biological sample for DNA
. . . analysis,’’ is mandatory, not directory. I agree.
As I have indicated herein, the distinction between
mandatory and directory requirements first arose in
cases involving statutes vesting power or jurisdiction
in a public officer or body. See Gallup v. Smith, 59
Conn. 354, 357, 22 A. 334 (1890) (‘‘statutes directing the
mode of proceeding by public officers are directory,
and are not regarded as essential to the validity of the
proceedings themselves, unless it be so declared in
the statute’’ [emphasis added; internal quotation marks
omitted]); id. (‘‘[w]here words are affirmative, and
relate to the manner in which power or jurisdiction
vested in a public officer or body is to be exercised,
and not to the limits of the power or jurisdiction itself,
they may and often have been construed to be direc-
tory’’ [emphasis added; internal quotation marks omit-
ted]).2 In determining whether a statutory provision is
mandatory or directory, ‘‘the test most satisfactory and
conclusive 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 matter of convenience or of substance.’’
Id., 358. When a statutory provision involving the power
of a public officer or body is mandatory, strict compli-
ance is required and the failure to strictly comply invali-
dates all further proceedings. Id., 356 (when statute
is mandatory, ‘‘the precise mode prescribed must be
pursued’’); see Santiago v. State, 261 Conn. 533, 542,
804 A.2d 801 (2002) (noncompliance with mandatory
provision will invalidate any future proceedings con-
templated by statute).3 In contrast, noncompliance with
a directory statute will invalidate further proceedings
only if it has prejudiced the opposing party.4 Santiago v.
State, supra, 542 (noncompliance with directory statute
‘‘will not invalidate any future proceedings contem-
plated by the statute unless the noncompliance has
prejudiced the opposing party’’). Courts have not
required strict compliance with statutes that relate to
a matter of convenience rather than substance when
they are directed at public officials because, unlike pri-
vate persons, public officials ordinarily are not acting
on their own behalf, but for the benefit of the public,
and it would be unfair to hold members of the public
responsible for acts and omissions over which they had
no control. See 3 N. Singer & J. Singer, Sutherland
Statutory Construction (7th Ed. 2008) § 57.15, p. 66.5
More recently, however, the mandatory/directory dis-
tinction has been applied to statutes that impose sub-
stantive requirements on private parties.6 By way of
example, in Southwick at Milford Condominium
Assn., Inc. v. 523 Wheelers Farm Road, Milford, LLC,
294 Conn. 311, 984 A.2d 676 (2009), the defendant con-
tended that General Statutes § 47-280 (a), providing in
relevant part that ‘‘the declarant [in a common interest
community] shall complete all improvements depicted
on any site plan or other graphic representation, includ-
ing any surveys or plans prepared pursuant to section
47-288’’ was directory, not mandatory, because ‘‘the
word shall is not [necessarily] dispositive on the issue
of whether a statute is mandatory.’’ (Internal quotation
marks omitted.) Southwick at Milford Condominium
Assn., Inc. v. 523 Wheelers Farm Road, Milford, LLC,
supra, 320. This court concluded that the completion
requirement was a matter of substance and, therefore,
was mandatory. Id., 320. In contrast, in Weems v. Citi-
group, Inc., 289 Conn. 769, 961 A.2d 349 (2008), the
defendant contended that, under General Statutes § 31-
71e, which provides that ‘‘[n]o employer may withhold
or divert any portion of an employee’s wages unless
. . . (2) the employer has written authorization from
the employee for deductions on a form approved by
the [C]ommissioner [of Labor (commissioner)],’’ the
requirement that an employer use a form approved by
the commissioner was directory. Weems v. Citigroup,
Inc., supra, 789–90. This court agreed that the require-
ment was only directory because, ‘‘[i]f the employee
has knowingly and voluntarily consented to the deduc-
tion at issue, and even benefited from it, then invalidat-
ing deductions because of a technical violation does
not further the purpose of the wage collection stat-
utes.’’7 Id., 794 n.26.
As I previously have explained, the mandatory/direc-
tory distinction originally arose in cases involving pro-
cedural requirements directed at public officials, for
reasons that are specific to that context. Accordingly,
I would conclude that any substantive statute that
requires a private party to perform or to refrain from
some act in order to assert his or her own rights or
to protect the substantive rights of other persons is
mandatory, at least in the absence of clear legislative
intent to the contrary. Indeed, even procedural require-
ments directed at private parties have generally been
considered mandatory, in the sense that they must be
complied with in the absence of waiver or consent by
the opposing party. See footnote 6 of this concurring
opinion. Thus, I do not believe that in the present case
we are required to consider whether the requirement
of General Statutes (Rev. to 2011) § 54-102g (a) that
‘‘[a]ny person who has been convicted of a . . . felony
. . . shall, prior to release from custody and at such
time as the [C]ommissioner [of Correction] may specify,
submit to the taking of a blood or other biological sam-
ple for DNA . . . analysis,’’ is, as a matter of legislative
intent, mandatory or directory.8 In my view, the statute
is mandatory because it uses the term ‘‘shall’’ and is
directed at a private party.9
When a party has failed to comply with a mandatory
statute, the only questions that the court should address
are whether the mandatory requirement is subject to
waiver and, if so, whether it has been waived. Williams
v. Commission on Human Rights & Opportunities,
257 Conn. 258, 284, 777 A.2d 645 (2001) (mandatory
statute ‘‘must be complied with, absent such factors as
consent, waiver or equitable tolling’’); see also Rosado
v. Bridgeport Roman Catholic Diocesan Corp., 292
Conn. 1, 57, 970 A.2d 656 (‘‘[a]s a general rule, both
statutory and constitutional rights and privileges may
be waived’’), cert. denied sub nom. Bridgeport Roman
Catholic Diocesan Corp. v. New York Times Co., 558
U.S. 991, 130 S. Ct. 500, 175 L. Ed. 2d 348 (2009); compare
Santiago v. State, supra, 261 Conn. 543–44 (certification
requirement of General Statutes § 54-95 [a] ‘‘serves
important public and institutional policy objectives
that are independent of, and perhaps even paramount
to, the state’s interest as a party to the litigation’’ and,
therefore, cannot be waived [emphasis in original]),
with Hensley v. Commissioner of Transportation, 211
Conn. 173, 178, 558 A.2d 971 (1989) (mandatory statu-
tory requirement that trial referee ‘‘ ‘shall view the
land’ ’’ in reassessment appeal is subject to waiver). I
find it extremely doubtful, and the defendant, Mark
Banks, makes no claim, that the state could waive the
requirement that he submit to the taking of a DNA
sample, which serves ‘‘important public . . . policy
objectives’’; (emphasis omitted) Santiago v. State,
supra, 543; or, if so, that the state has waived it. Accord-
ingly, it is clear to me that the defendant was required
to comply with § 54-102g (a).
Of course, as the majority points out, this does not
answer the separate question of whether the defendant
may be compelled by force to submit to the taking of
a DNA sample. Because I agree with the majority’s
analysis of that question, I concur with the majority
opinion.
1
Black’s Law Dictionary (4th Ed. 1968) defines a directory requirement
as ‘‘[a] provision in a statute, rule of procedure, or the like, which is a mere
direction or instruction of no obligatory force, and involving no invalidating
consequence for its disregard, as opposed to an imperative or mandatory
provision, which must be followed. . . . The general rule is that the pre-
scriptions of a statute relating to the performance of a public duty are so
far directory that, though neglect of them may be punishable, yet it does
not affect the validity of the acts done under them, as in the case of a statute
requiring an officer to prepare and deliver a document to another officer
on or before a certain day.’’ (Citation omitted.) See also id. (‘‘Under a
general classification, statutes are either ‘mandatory’ or ‘directory,’ and, if
mandatory, they prescribe, in addition to requiring the doing of the things
specified, the result that will follow if they are not done, whereas, if directory,
their terms are limited to what is required to be done. . . . A statute is
mandatory when the provision of the statute is the essence of the thing
required to be done; otherwise, when it relates to form and manner, and
where an act is incident, or after jurisdiction acquired, it is directory merely.’’
[Citation omitted.]).
2
See also People v. Gray, 58 Cal. 4th 901, 909, 319 P.3d 988, 168 Cal. Rptr.
3d 710 (2014) (‘‘provisions defining time and mode in which public officials
shall discharge their duties and which are obviously designed merely to
secure order, uniformity, system and dispatch in the public bureaucracy
are generally held to be directory’’ [emphasis added; internal quotation
marks omitted]); In re M.I., 989 N.E.2d 173, 181 (Ill.) (‘‘we presume that
language issuing a procedural command to a government official indicates
an intent that the statute is directory’’ [emphasis added; internal quotation
marks omitted]), cert. denied, U.S. , 134 S. Ct. 442, 187 L. Ed. 2d 296
(2013); Ladd v. Lamb, 195 Va. 1031, 1035, 81 S.E.2d 756 (1954) (‘‘[a]s a rule
a statute prescribing the time within which public officers are required to
perform an official act regarding the rights and duties of others, and enacted
with a view to the proper, orderly, and prompt conduct of business, is
directory unless it denies the exercise of the power after such time, or the
phraseology of the statute, or the nature of the act to be performed, and
the consequences of doing or failing to do it at such time are such that the
designation of the time must be considered a limitation on the power of
the officer’’ [emphasis added; internal quotation marks omitted]); Muskego-
Norway Consolidated Schools Joint School District No. 9 v. Wisconsin
Employment Relations Board, 32 Wis. 2d 478, 483, 151 N.W.2d 84 (1967)
(‘‘[a] statute prescribing the time within which public officers are required
to perform an official act is merely directory’’ [emphasis added; internal
quotation marks omitted]); Black’s Law Dictionary (4th Ed. 1968) (stating
under definition of ‘‘directory’’ that ‘‘[t]he general rule is that the prescrip-
tions of a statute relating to the performance of a public duty are so far
directory that, though neglect of them may be punishable, yet it does not
affect the validity of the acts done under them, as in the case of a statute
requiring an officer to prepare and deliver a document to another officer
on or before a certain day’’ [emphasis added]).
3
See also People v. Gray, 58 Cal. 4th 901, 909, 319 P.3d 988, 168 Cal. Rptr.
3d 710 (2014) (‘‘[t]he mandatory or directory designation does not refer to
whether a particular statutory requirement is obligatory or permissive, but
instead denotes whether the failure to comply with a particular procedural
step will or will not have the effect of invalidating the governmental action
to which the procedural requirement relates’’ [internal quotation marks
omitted]); Ladd v. Lamb, 195 Va. 1031, 1035, 81 S.E.2d 756 (1954) (‘‘[a]
mandatory provision in a statute is one the omission to follow which renders
the proceeding to which it relates illegal and void, while a directory provision
is one the observance of which is not necessary to the validity of the
proceeding’’ [internal quotation marks omitted]).
4
See, e.g., United Illuminating Co. v. New Haven, 240 Conn. 422, 424
n.1, 466, 692 A.2d 742 (1997) (statute providing that ‘‘[t]he assessor or board
of assessors shall notify [property owner] . . . of any . . . increase in
assessed valuation’’ was directory because no statutory language expressly
invalidated defective notice, language was indicative merely of intent to
create ‘‘safe harbor’’ provision, time was not of essence with regard to
notice and plaintiff had made no showing of prejudice [internal quotation
marks omitted]).
5
‘‘There is an essential difference between statutory directions to public
officers and to private persons. As to the former, the protection of public or
private rights often depends upon the proper performance by the designated
officer, a person whose dereliction in that respect is beyond the direct and
particular control of those whose rights are at stake. Thus, it has been
held that omissions or failures by public officials should not prejudice the
interests of those who have no direct and immediate control over the public
officials. But as to the latter, frequently the individual’s own rights depend
upon his own compliance with statutory directions, so no one is to blame
but himself for the loss of those rights by a failure to comply. Accordingly,
a different rule is followed in the latter situation. Where an individual’s
rights depend upon his compliance with the provisions of a statute, those
provisions are generally mandatory, and compliance therewith is a condition
precedent to the perfection of such rights.’’ (Footnote omitted.) 3 N. Singer &
J. Singer, supra, § 57.15, pp. 66–67.
6
The mandatory/directory distinction has also arisen in cases involving
procedural time limitations on private causes of action, which is not the
type of statute at issue here. In Williams v. Commission on Human Rights &
Opportunities, 257 Conn. 258, 267, 777 A.2d 645 (2001), this court suggested
that our cases addressing the effect of a failure to comply with these timing
requirements have blurred the mandatory/directory distinction with the con-
cept of subject matter jurisdiction. See id. (This court has applied ‘‘inconsis-
tent approaches in determining whether a time limitation is jurisdictional.
One line of cases has focused on whether the legislature intended the
[statutory] time limitation to be subject matter jurisdictional, and a second
line of cases has focused on whether the statutory provision is mandatory
or directory.’’).
I would note that in Williams, this court failed to observe that the cases
it cited involving the mandatory/directory distinction, as opposed to the
jurisdictional/nonjurisdictional distinction, involved statutory provisions
directed at public officials. See id., 268, citing Doe v. Statewide Grievance
Committee, 240 Conn. 671, 681, 694 A.2d 1218 (1997) (considering whether
statute requiring panel of Statewide Grievance Committee to ‘‘render its
decision not later than four months from the date of the panel’s determina-
tion of probable cause or no probable cause was filed with the [Statewide]
[G]rievance [C]ommittee’’ was directory or mandatory [internal quotation
marks omitted]), and Angelsea Productions, Inc. v. Commission on Human
Rights & Opportunities, 236 Conn. 681, 689, 674 A.2d 1300 (1996) (consider-
ing whether statutes providing 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’’ and that ‘‘hearing shall be held not later
than ninety days after a finding of reasonable cause’’ were mandatory or
directory [emphasis omitted; internal quotation marks omitted]). I believe
that this distinction has continued validity as applied to statutes directed
at public officials. Nevertheless, I agree with the Williams analysis to the
extent that it holds that, when considering the effect of noncompliance with
a statutory time limitation imposed on a private party, which was the case in
Williams; see Williams v. Commission on Human Rights & Opportunities,
supra, 257 Conn. 260 n.1, 266 (considering effect of plaintiff’s failure to
comply with statute providing that ‘‘[a]ny complaint [of a discriminatory
practice] filed pursuant to this section must be filed within one hundred
and eighty days after the alleged act of discrimination’’ [internal quotation
marks omitted]); the proper distinction is not whether the limitation is
mandatory or directory, but whether the statute is subject matter jurisdic-
tional or, instead, the mandatory requirement can be abrogated by waiver
or consent. See id., 269. I would also conclude that all statutes imposing
a time limitation or other procedural requirement on private parties are
mandatory, in the sense that they must be complied with in the absence of
consent or waiver by the opposing party. See id., 284 (even nonjurisdictional
time limitation directed at private party ‘‘must be complied with, absent
such factors as consent, waiver or equitable tolling’’); see also Federal
Deposit Ins. Corp. v. Hillcrest Associates, 233 Conn. 153, 173, 659 A.2d 138
(1995) (fact ‘‘that . . . time limitation . . . is not subject matter jurisdic-
tional, does not mean . . . that it can be ignored with impunity’’); Federal
Deposit Ins. Corp. v. Hillcrest Associates, supra, 173 (nonjurisdictional time
limitation ‘‘is more properly considered to be mandatory, which means that
it must be complied with absent waiver or consent by the parties’’).
It is clear to me, therefore, that our cases have used the word ‘‘mandatory’’
in two distinct senses. With respect to statutes vesting power in public
officials, the term ‘‘mandatory’’ is used to describe provisions with which
the public official must strictly comply, as distinguished from ‘‘directory’’
provisions, which have no obligatory force. In contrast, with respect to
statutes placing time limitations on private parties, all such statutes are
mandatory in the sense that the party must strictly comply with them, but
the failure to comply strictly with a nonjurisdictional statute is fatal only
in the absence of waiver, consent or equitable excuse. A comprehensive
review of all of the hundreds, if not thousands, of Connecticut cases involving
these distinctions is beyond the scope of this concurring opinion. Suffice
it to say, however, that, as this court acknowledged in Williams, our jurispru-
dence in this area has not always been entirely clear or consistent. See,
e.g., Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 240–43,
558 A.2d 986 (1989) (concluding that limitation on time within which subcom-
mittee of Statewide Grievance Committee, which is public body, must con-
clude hearings and render proposed decision was mandatory, which
ordinarily would mean that noncompliance would invalidate any further
proceedings, but ultimately concluding that noncompliance did not deprive
trial court of subject matter jurisdiction over presentment proceeding).
7
I do not agree that the statutory requirement that an employer use a
form approved by the commissioner is directory, i.e, that it constitutes
‘‘a mere direction or instruction of no obligatory force, and involving no
invalidating consequence for its disregard . . . .’’ Black’s Law Dictionary
(4th Ed. 1968). First, I would conclude that the mandatory/directory distinc-
tion properly applies only to procedural requirements directed at public
officials, and § 31-71e (2) is not directed at a public official, but requires
the employer to use a form approved by the commissioner. Second, the
court’s conclusion in Weems renders the statutory language entirely superflu-
ous and essentially allows an employer to determine for itself whether a
written authorization to withhold wages complies with substantive statutory
requirements that are intended to protect employees, a result that the legisla-
ture could not have contemplated. Accordingly, I believe that the sole ques-
tions that the court should have addressed in Weems were whether the
requirement that the employer use a form approved by the commissioner
was waivable and, if so, whether the plaintiffs had waived it. I express no
opinion on those questions here.
8
I note that the plain language of General Statutes (Rev. to 2011) § 54-
102g (a) clearly requires a defendant to submit a blood or other biological
sample for DNA analysis, and does not merely authorize or permit him to
do so. Compare C. R. Klewin Northeast, LLC v. Fleming, 284 Conn. 250,
262–64, 932 A.2d 1053 (2007) (statute providing that ‘‘[s]uch certificate [of
authorization by the governor to settle a disputed claim by or against the
state] shall constitute sufficient authority to such officer or department or
agency to pay or receive the amount therein specified in full settlement of
such claim’’ did not require officer or department to pay upon receipt of
authorization, but merely authorized payment [emphasis omitted; internal
quotation marks omitted]). I further note that the question of whether a
statute is mandatory, i.e., it requires certain conduct, or permissive, i.e., it
authorizes certain conduct, is different than the question of whether a
statute is mandatory or directory, i.e., of no obligatory force. See People v.
Gray, 58 Cal. 4th 901, 909, 319 P.3d 988, 168 Cal. Rptr. 3d 710 (2014) (‘‘[t]he
mandatory or directory designation does not refer to whether a particular
statutory requirement is obligatory or permissive, but instead denotes
whether the failure to comply with a particular procedural step will or will
not have the effect of invalidating the governmental action to which the
procedural requirement relates’’ [internal quotation marks omitted]).
9
Whether the reasons for applying the mandatory/directory distinction in
cases involving statutes directed at public officials continue to be convincing
is not at issue in the present case. Accordingly, I leave that question to
another day.