Connelly v. Commissioner of Correction

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WILLIAM CONNELLY v. COMMISSIONER
OF CORRECTION ET AL.
(AC 35361)
Gruendel, Alvord and Bear, Js.
Argued February 21—officially released April 29, 2014
(Appeal from Superior Court, judicial district of New
Britain, Cohn, J.)
William Connelly, self-represented, the appellant
(plaintiff).
James W. Caley, assistant attorney general, with
whom, on the brief, were George Jepsen, attorney gen-
eral, and Terrence M. O’Neill, assistant attorney general,
for the appellees (named defendant et al.).
Gregory F. Daniels, commission counsel, with
whom, on the brief, was Colleen M. Murphy, general
counsel, for the appellee (defendant Freedom of Infor-
mation Commission).
Opinion
GRUENDEL, J. The self-represented plaintiff, William
Connelly, appeals from the judgment of the Superior
Court dismissing his appeal from the decision of the
defendant Freedom of Information Commission (com-
mission)1 due to the plaintiff’s failure to comply with
the service of process requirements of General Statutes
§ 4-183 (c). Although the plaintiff raises multiple claims
on appeal, the dispositive one is whether the court
correctly concluded that it lacked subject matter juris-
diction over the appeal. We affirm the judgment of the
Superior Court.
At all relevant times, the plaintiff was incarcerated
at the Osborn Correctional Institution (Osborn) in Som-
ers. In a letter dated March 23, 2011, the plaintiff filed a
request with the defendant Commissioner of Correction
(commissioner) and the defendant Department of Cor-
rection (department) to obtain copies of all ‘‘psychiat-
ric/psychological diagnoses and evaluations [and]
military records’’ in his file at Osborn. On April 25, 2011,
the plaintiff filed a complaint with the commission,
alleging that the commissioner and the department vio-
lated the Freedom of Information Act, General Statutes
§ 1-200 et seq., in denying that request. Following a
hearing, the commission issued a final decision in which
it found that none of the requested records were in the
plaintiff’s file at Osborn.2 Accordingly, the commission
dismissed the plaintiff’s complaint. The commission
mailed notice of its decision to the plaintiff on February
14, 2012.
On March 26, 2012, the plaintiff timely filed an admin-
istrative appeal of that decision in the Superior Court,
along with an application for a waiver of fees. That
same day, the court accepted the notice of appeal and
granted the fee waiver request.3 On April 24, 2012, the
plaintiff filed a motion for articulation, stating in rele-
vant part: ‘‘[The court] signed the [waiver] form, but
did not indicate whether the order included entry fee,
filing fee, service of process fee and transcript fee, as
requested by the plaintiff. The transcripts [requested]
are vital to the plaintiff’s claim. The plaintiff must quote
extensively from those transcripts in support of his
claim. Therefore, the plaintiff moves the court for artic-
ulation of the 26 March 2012 order.’’ The very next day,
the court articulated its order as follows: ‘‘The court
articulates its waiver of fees to only include the waiver
of the $300 filing fee and the posting of the $250 recogni-
zance bond. This court has no power to grant waivers of
fees for transcripts of agency proceedings; the plaintiff
should receive copies of those transcripts once the
agency files the administrative record. Additionally, the
court did not waive the marshal fee because of the
ability to serve an administrative appeal by certified
mail.’’
The commission was served, by regular mail, with a
handwritten copy of the plaintiff’s appeal on April 4,
2012—fifty days after the commission mailed notice of
the underlying decision.4 The commission thereafter
filed a motion to dismiss the appeal, alleging that the
plaintiff had failed to comply with the requirements of
§ 4-183 (c). The commissioner and the department filed
a similar motion on July 9, 2012. The plaintiff filed
oppositions to those respective motions. The court
heard argument from the parties on September 12, 2012,
at which the court requested supplemental briefing on
the availability of certified mail service for incarcerated
individuals and whether, as a matter of law, a letter or
parcel is deemed to be mailed at the time an inmate
hands the article to staff for deposit into the mail.
In its December 28, 2012 memorandum of decision,
the court found that the plaintiff had failed to comply
with the service of process requirements of § 4-183 (c).
Specifically, the court found that the plaintiff’s service
of process on the commission was untimely. In so doing,
the court rejected the plaintiff’s exhortation to adopt
the so-called ‘‘prison mailbox rule’’ and instead rea-
soned that ‘‘the failure of the plaintiff to prove that he
actually deposited the appeal in the mail [within the
forty-five day time period required by statute] is grounds
to find a lack of compliance with § 4-183 (c).’’ Conclud-
ing that it lacked subject matter jurisdiction, the court
dismissed the plaintiff’s appeal, and this appeal
followed.
At the outset, we note that ‘‘[a]ppeals to courts from
administrative agencies exist only under statutory
authority. . . . A statutory right to appeal may be taken
advantage of only by strict compliance with the statu-
tory provisions by which it is created. . . . Such provi-
sions are mandatory, and, if not complied with, the
appeal is subject to dismissal. . . . The failure to file
an appeal from an administrative decision within the
time set by statute renders the appeal invalid and
deprives the courts of jurisdiction to hear it.’’ (Emphasis
added; internal quotation marks omitted.) Nizzardo v.
State Traffic Commission, 55 Conn. App. 679, 683, 739
A.2d 744 (1999), aff’d, 259 Conn. 131, 788 A.2d 1158(2002). ‘‘A determination regarding [the Superior
Court’s] subject matter jurisdiction is a question of law.
When . . . the [Superior 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.) Miller’s Pond Co., LLC v.
Rocque, 71 Conn. App. 395, 401, 802 A.2d 184 (2002),
aff’d, 263 Conn. 692, 822 A.2d 238 (2003).
Section 4-183 (c) provides in relevant part that
‘‘[w]ithin forty-five days after mailing of the final deci-
sion . . . a person appealing as provided in this section
shall serve a copy of the appeal on the agency that
rendered the final decision . . . . If service of the
appeal is made by mail, service shall be effective upon
deposit of the appeal in the mail.’’ On our plenary
review, we conclude that the plaintiff failed to comply
with that statutory requirement.
Our Supreme Court has held that ‘‘§ 4-183 (c) requires
both the filing and the service of the appeal within the
forty-five day period’’; Glastonbury Volunteer Ambu-
lance Assn., Inc. v. Freedom of Information Commis-
sion, 227 Conn. 848, 853, 633 A.2d 305 (1993); and that ‘‘a
failure to meet [that] time limitation remains a subject
matter jurisdictional defect.’’ Id., 854; accord Bittle v.
Commissioner of Social Services, 249 Conn. 503, 520,
734 A.2d 551 (1999) (‘‘failing to make proper service on
the agency in accordance with the relevant statutory
provisions [of § 4-183 (c)] is a jurisdictional defect sub-
jecting the appeal to dismissal’’). It is undisputed that
the commission mailed notice of its decision to the
plaintiff on February 14, 2012, and that the commission
received service of the plaintiff’s appeal on April 4,
2012. As the court specifically found in its memorandum
of decision, ‘‘the plaintiff has no proof that the com-
plaint was deposited in the mail’’ within the forty-five
day period.5 That finding is substantiated by the record
before us. The precedent of this state’s highest court
instructs that ‘‘[i]f there is no service at all on the agency
within the forty-five day period, the court lacks subject
matter jurisdiction over the appeal . . . .’’ (Internal
quotation marks omitted.) Glastonbury Volunteer
Ambulance Assn., Inc. v. Freedom of Information Com-
mission, supra, 856. Because the record before us is
bereft of any evidence indicating that the plaintiff com-
plied with that statutory requirement, the court properly
dismissed the administrative appeal. See Godaire v.
Freedom of Information Commission, 141 Conn. App.
716, 719, 62 A.3d 598 (2013).
The plaintiff nevertheless claims that the court misap-
plied that statutory requirement for a variety of reasons,
only two of which merit any discussion. First, the plain-
tiff argues that the forty-five day time period in the
present case commenced not on February 14, 2012—
the date that the commission mailed notice of its final
decision—but rather on February 22, 2012, the date that
prison officials allegedly delivered the notice to the
incarcerated plaintiff. That claim is belied by the plain
language of § 4-183 (c), which provides that the forty-
five day period commences upon the ‘‘mailing’’ of an
agency’s final decision.6 Although the plaintiff argues
that an alleged delay by prison officials in delivering
that notice to him rendered the date of mailing ‘‘mean-
ingless,’’ it remains that the forty-five day time period
set forth in § 4-183 (c) is triggered by the mailing of
notice, not receipt thereof. See Bittle v. Commissioner
of Social Services, supra, 249 Conn. 506 (‘‘service of
process of appeal papers pursuant to § 4-183 [c] [1] is
perfected when the appeal papers are deposited in the
mail within the time limits set’’).
The plaintiff also claims that the court erred in declin-
ing to apply the federal prison mailbox rule. See Hous-
ton v. Lack, 487 U.S. 266, 270, 108 S. Ct. 2379, 101 L.
Ed. 2d 245 (1988) (notice of appeal deemed filed when
prisoner delivers it to prison authorities for forwarding
to court). In Hastings v. Commissioner of Correction,
82 Conn. App. 600, 604, 847 A.2d 1009 (2004), appeal
dismissed, 274 Conn. 555, 876 A.2d 1196 (2005), this
court expressly declined to adopt such a rule. We are
bound by that precedent, as it is axiomatic that one
panel of this court cannot overrule the precedent estab-
lished by a previous panel’s holding. See, e.g., First
Connecticut Capital, LLC v. Homes of Westport, LLC,
112 Conn. App. 750, 759, 966 A.2d 239 (2009) (‘‘this
court’s policy dictates that one panel should not, on its
own, reverse the ruling of a previous panel’’ [internal
quotation marks omitted]).
The plaintiff attempts to circumvent Hastings by
grounding his claim in the protections afforded by arti-
cle first, § 10, of our state constitution.7 We decline to
entertain the merits of that unpreserved claim. A review
of the record demonstrates that the plaintiff did not
raise that distinct claim in any manner before the Supe-
rior Court. ‘‘It is fundamental that claims of error must
be distinctly raised and decided in the trial court. As a
result, Connecticut appellate courts will not address
issues not decided by the trial court. . . . Practice
Book § 60-5 provides in relevant part that our appellate
courts shall not be bound to consider a claim unless it
was distinctly raised at the trial . . . . [T]he reason for
the rule is obvious: to permit a party to raise a claim
on appeal that has not been raised at trial—after it is
too late for the trial court or the opposing party to
address the claim—would encourage trial by ambus-
cade, which is unfair to both the trial court and the
opposing party. . . . Thus, the requirement of Practice
Book § 60-5 that the claim be raised distinctly means
that it must be so stated as to bring to the attention of
the court the precise matter on which its decision is
being asked.’’ (Citations omitted; emphasis in original;
internal quotation marks omitted.) State v. Faison, 112
Conn. App. 373, 379–80, 962 A.2d 860, cert. denied, 291
Conn. 903, 967 A.2d 507 (2009). Moreover, the plaintiff
has not sought review of that unpreserved claim pursu-
ant to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d
823 (1989), or the plain error doctrine. See Practice
Book § 60-5. We thus decline to review that claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Also named as defendants in the plaintiff’s complaint are the Commis-
sioner of Correction and the Department of Correction. They also are parties
to this appeal.
2
Specifically, the commission found that ‘‘none of the requested records
are contained in the [plaintiff’s] master file at [Osborn]. It is further found
that records of ‘psychiatric/psychological diagnoses and evaluations’ would
be contained in the [plaintiff’s] medical file, which is in the custody of the
University of Connecticut [Health Center] Correctional Managed Health
Care. However, the [plaintiff] is specifically interested in determining
whether such records are also contained in his file at Osborn, which they
are not.’’
3
In granting that request, the court found that, as a result of the plaintiff’s
indigence, waiver of both the entry fee for the regular docket and the filing
fee was warranted.
4
It is undisputed that the commission was not served by ‘‘United States
mail, certified or registered, postage prepaid, return receipt requested,’’ as
required by § 4-183 (c). The defendants maintain, as an alternate ground of
affirmance, that such noncompliance provides an additional basis on which
to conclude that the court lacked jurisdiction over the plaintiff’s administra-
tive appeal. We need not address that alternate argument in light of our
conclusion that the appeal was not served on the commission in a timely
fashion.
5
‘‘Our Supreme Court has held that the party bringing the action bears
the burden of proving that the court has subject matter jurisdiction.’’ Young
v. Commissioner of Correction, 104 Conn. App. 188, 193, 932 A.2d 467(2007), cert. denied, 285 Conn. 907, 942 A.2d 416 (2008).
6
The record before us contains copies of both the commission’s February
14, 2012 notice to the plaintiff of its final decision and a certified mail receipt
from the United States Postal Service indicating that the notice was delivered
at 9 a.m. the following day.
7
Article first, § 10, of the Connecticut constitution provides: ‘‘All courts
shall be open, and every person, for an injury done to him in his person,
property or reputation, shall have remedy by due course of law, and right
and justice administered without sale, denial or delay.’’