Emerick v. Freedom of Information Commission

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ROGER EMERICK v. FREEDOM OF INFORMATION
COMMISSION ET AL.
(AC 36114)
DiPentima, C. J., and Sheldon and Flynn, Js.
Argued November 13, 2014—officially released March 31, 2015
(Appeal from Superior Court, judicial district of New
Britain, Hon. Howard T. Owens, judge trial referee.)
Roger Emerick, self-represented, the appellant
(plaintiff).
Kerry A. Colson, assistant attorney general, with
whom, on the brief, was George Jepsen, attorney gen-
eral, for the appellee (defendant Commissioner of Pub-
lic Health).
Clifton A. Leonhardt, chief counsel, for the appellee
(named defendant).
Opinion
PER CURIAM. The plaintiff, Roger Emerick, appeals
from the judgment of the trial court dismissing his
administrative appeal from the decision of the defen-
dant Freedom of Information Commission (commis-
sion). The plaintiff had filed a complaint with the
commission claiming that the defendant Department of
Public Health (department) improperly had denied him
access to certain public records. We conclude that the
court properly determined that the plaintiff’s appeal of
the commission’s decision was untimely and, accord-
ingly, properly dismissed the appeal.1
The following facts pertinent to this appeal are not
in dispute. On January 3, 2012, the plaintiff filed a com-
plaint with the commission alleging that the department
improperly had denied him access to public records. On
October 25, 2012, the hearing officer issued a proposed
decision concluding that the documents that had been
withheld by the department were protected from disclo-
sure pursuant to General Statutes § 1-210 (b) (4) and
(10),2 and therefore the department had not violated
the Freedom of Information Act, General Statutes § 1-
200 et seq. The commission ultimately adopted the pro-
posed decision of the hearing officer as its final decision
on November 14, 2012.
On November 20, 2012, the plaintiff filed a petition
for reconsideration and/or reargument of the final deci-
sion of the commission. See General Statutes § 4-181a.
Specifically, he claimed that the November 14, 2012
proceedings had not been recorded due to technical
difficulties and that a transcript was necessary for sub-
sequent judicial review. The department objected, and
the plaintiff filed a response, seeking for the first time
to present additional evidence on a matter that had not
been raised in his initial request. See General Statutes
§ 4-181a (a) (1) (B).
On December 12, 2012, the commission granted the
plaintiff’s petition, limited to the relief sought in his
November 20, 2012 petition. After hearing oral argu-
ment, the commission affirmed the final decision.
On December 13, 2012, the plaintiff again filed a peti-
tion for reconsideration based on new evidence pursu-
ant to § 4-181a (a) (1) (B). On January 9, 2013, at a
commission meeting, this petition was denied. Notice
of the denial was mailed to the parties on January 17,
2013. On February 27, 2013, the plaintiff filed an appeal
under General Statutes § 4-183 in the Superior Court.
The defendants filed a joint motion to dismiss the
plaintiff’s appeal for lack of subject matter jurisdiction,
contending that the appeal was untimely pursuant to
§ 4-183 (c) (2). The plaintiff filed an opposition to the
motion. The court dismissed the plaintiff’s appeal, and
this appeal followed.
We begin by stating certain well established legal
principles that guide our resolution of this appeal.
‘‘There is no absolute right of appeal to the courts from
a decision of an administrative agency. . . . The UAPA
[Uniform Administrative Procedures Act] grants the
Superior Court jurisdiction over appeals of agency deci-
sions only in certain limited and well delineated circum-
stances. . . . Judicial review of an administrative
decision is governed by . . . § 4-183 (a) of the UAPA,
which provides that [a] person who has exhausted all
administrative remedies . . . and who is aggrieved by
a final decision may appeal to the superior court . . . .’’
(Internal quotation marks omitted.) Ferguson Mechani-
cal Co. v. Dept. of Public Works, 282 Conn. 764, 771,
924 A.2d 846 (2007).
‘‘The standard of review of a challenge to a court’s
granting of a motion to dismiss is well established. In
an appeal from the granting of a motion to dismiss on
the ground of subject matter jurisdiction, this court’s
review is plenary. A determination regarding a trial
court’s subject matter jurisdiction is a question of law.
When . . . the trial court draws conclusions of law,
our review is plenary and we must decide whether its
conclusions are legally and logically correct and find
support in the facts that appear in the record.’’ (Internal
quotation marks omitted.) Pierce v. Lantz, 113 Conn.
App. 98, 101, 965 A.2d 576, cert. denied, 293 Conn. 915,
979 A.2d 490 (2009).
‘‘[O]nce the question of lack of jurisdiction of a court
is raised . . . [it] must be disposed of no matter in
what form it is presented . . . and the court must fully
resolve it before proceeding further with the case. . . .
Subject matter jurisdiction involves the authority of the
court to adjudicate the type of controversy presented
by the action before it. . . . [A] court lacks discretion
to consider the merits of a case over which it is without
jurisdiction . . . . The subject matter jurisdiction
requirement may not be waived by any party, and also
may be raised by a party, or by the court sua sponte,
at any stage of the proceedings, including on appeal.’’
(Citation omitted; internal quotation marks omitted.)
Pine v. Dept. of Public Health, 100 Conn. App. 175,
179–80, 917 A.2d 590 (2007).
Section 4-183 (c)3 sets forth the time frame to file
an administrative appeal with the Superior Court. The
failure to file such an appeal within that time frame
deprives the court of subject matter jurisdiction. Com-
mission on Human Rights & Opportunities v. Windsor
Hall Rest Home, 232 Conn. 181, 187, 653 A.2d 181 (1995);
see also Glastonbury Volunteer Ambulance Assn., Inc.
v. Freedom of Information Commission, 227 Conn.
848, 853, 633 A.2d 305 (1993); Pine v. Dept. of Public
Health, supra, 100 Conn. App. 181.
The dispute in this appeal centers on the date that
the forty-five day time period to appeal commenced.
The plaintiff maintains that notice of the denial of his
motion for reconsideration was mailed on January 17,
2013, and therefore, he had forty-five days from that
date to file the appeal in Superior Court and to serve
the commission.4 The defendants counter that the forty-
five day time period commenced on January 9, 2013,
the date that the commission orally denied the motion
for reconsideration,5 and therefore the appeal, filed on
February 27, 2013, was untimely. We agree with the
defendants.
In Citizens Against Overhead Power Line Construc-
tion v. Connecticut Siting Council, 139 Conn. App. 565,
574, 57 A.3d 765 (2012), aff’d, 311 Conn. 259, 86 A.3d
463 (2014), we observed that § 4-183 (c) ‘‘clearly lists
four distinct scenarios and provides that a plaintiff shall
appeal within whichever time frame is applicable and
occurs latest.’’ In the present case, a motion for recon-
sideration was filed by the plaintiff, and denied by the
commission. Therefore, § 4-183 (c) (2) was the applica-
ble subdivision of the statute, and it provides that an
appeal must be filed ‘‘within forty-five days after the
agency denies a petition for reconsideration of the final
decision pursuant to subdivision (1) of subsection (a)
of section 4-181a.’’ Unlike subdivisions (1)6 and (3) of
§ 4-183 (c), there is no mention in § 4-183 (c) (2) of the
mailing date of the final decision.7 Pursuant to subdivi-
sion (2), it is the denial of the petition for reconsidera-
tion that commences the time period for an appeal.
‘‘[An appellate] court cannot, by judicial construction,
read into legislation provisions that clearly are not con-
tained therein.’’ (Internal quotation marks omitted.)
Okeke v. Commissioner of Public Health, 304 Conn.
317, 329, 39 A.3d 1095 (2012); see also Southwick at
Milford Condominium Assn., Inc. v. 523 Wheelers
Farm Road, Milford, LLC, 294 Conn. 311, 320–21, 984
A.2d 676 (2009). Put another way, ‘‘[w]e are not free
. . . to create ambiguity when none exists . . . we
cannot accomplish a result that is contrary to the intent
of the legislature as expressed in [a statute’s] plain
language. . . . [A] court must construe a statute as
written. . . . The intent of the legislature, as [our
Supreme Court] has repeatedly observed, is to be found
not in what the legislature meant to say, but in the
meaning of what it did say.’’ (Internal quotation marks
omitted.) LaPlante v. Vasquez, 136 Conn. App. 805, 814,
47 A.3d 897 (2012). The legislature enacted § 4-183 (c)
(2) without the ‘‘after mailing’’ language contained in
subdivisions (1) and (3) of the that subsection, and we
must interpret the statute as it is written. The court
correctly determined that the plaintiff’s appeal was
untimely, and it consequently lacked jurisdiction over
the appeal. See Searles v. Dept. of Social Services, supra,
96 Conn. App. 513–14. We conclude, therefore, that the
court properly dismissed the plaintiff’s appeal.
The judgment is affirmed.
1
The plaintiff also argues that it was reversible error for the court to use
a ‘‘verbatim copy’’ of the defendants’ memorandum of law in support of the
motion to dismiss as its memorandum of decision. Although we disfavor
such practice; see Tellar v. Abbott Laboratories, Inc., 114 Conn. App. 244,
247 n.3, 969 A.2d 210 (2009); we are not persuaded that the plaintiff suffered
injustice as a result. Cameron v. Avonridge, Inc., 3 Conn. App. 230, 235,
486 A.2d 661 (1985). We therefore reject this claim.
2
General Statutes § 1-210 (b) provides in relevant part: ‘‘Nothing in the
Freedom of Information Act shall be construed to require disclosure of . . .
‘‘(4) Records pertaining to strategy and negotiations with respect to pend-
ing claims or pending litigation to which the public agency is a party until
such litigation or claim has been finally adjudicated or otherwise settled
. . .
‘‘(10) Records, tax returns, reports and statements exempted by federal
law or the general statutes or communications privileged by the attorney-
client relationship, marital relationship, clergy-penitent relationship, doctor-
patient relationship, therapist-patient relationship or any other privilege
established by the common law or the general statutes, including any such
records, tax returns, reports or communications that were created or made
prior to the establishment of the applicable privilege under the common
law or the general statutes . . . .’’
3
General Statutes § 4-183 (c) provides in relevant part: ‘‘(1) Within forty-
five days after mailing of the final decision under section 4-180 or, if there
is no mailing, within forty-five days after personal delivery of the final
decision under said section, or (2) within forty-five days after the agency
denies a petition for reconsideration of the final decision pursuant to subdivi-
sion (1) of subsection (a) of section 4-181a, or (3) within forty-five days
after mailing of the final decision made after reconsideration pursuant to
subdivisions (3) and (4) of subsection (a) of section 4-181a or, if there is
no mailing, within forty-five days after personal delivery of the final decision
made after reconsideration pursuant to said subdivisions, or (4) within
forty-five days after the expiration of the ninety-day period required under
subdivision (3) of subsection (a) of section 4-181a if the agency decides to
reconsider the final decision and fails to render a decision made after
reconsideration within such period, whichever is applicable and is later, a
person appealing as provided in this section shall serve a copy of the appeal
on the agency that rendered the final decision at its office or at the office
of the Attorney General in Hartford and file the appeal with the clerk of
the superior court for the judicial district of New Britain or for the judicial
district wherein the person appealing resides or, if that person is not a
resident of this state, with the clerk of the court for the judicial district of
New Britain. . . .’’
4
‘‘Section 4-183 (c) requires both service on the agency and the filing of
the appeal with the Superior Court occur within the forty-five day period.’’
Searles v. Dept. of Social Services, 96 Conn. App. 511, 514, 900 A.2d 598
(2006); see also Glastonbury Volunteer Ambulance Assn., Inc. v. Freedom
of Information Commission, supra, 227 Conn. 853.
5
The defendant was present when the commission orally denied his peti-
tion for reconsideration.
6
We note that subdivision (1) of § 4-183 (c) is inapplicable to the present
case because the plaintiff filed a petition for reconsideration. See Citizens
Against Overhead Power Lines Construction v. Connecticut Siting Council,
supra, 139 Conn. App. 575.
7
Section 4-183 (c) (4) addresses the situation when a motion for reconsid-
eration has been filed, and not acted upon, also does not contain any language
regarding a mailing date. This subdivision is not applicable to the present
case because the commission did act upon the motion for reconsideration
filed by the plaintiff.