Ahern v. State Employees Retirement Commission

Opinion

HENNESSY, J.

The plaintiff, Donald E. Ahern, appeals from the trial court’s dismissal of his appeal from the state employees retirement commission’s denial of a request for reconsideration of a decision. The commission asserts that there is no right to appeal the calculation of retirement benefits under the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq.; because this proceeding does not qualify as a contested case. The commission argues that this is so because there is no statutory requirement that the retirement commission provide a hearing pursuant to § 4-166 (2). We agree.

The following facts are relevant to the resolution of this claim. On July 21, 1994, a union representative contacted the director of the retirement division of the state comptroller requesting that the division explain the calculation of Ahern’s retirement benefits. The division provided an explanation of its calculation with which Ahern disagreed. Accordingly, on October 14, 1994, the plaintiff filed a claim pursuant to General Statutes § 5-155a (j) in which he requested that the commission review the calculation of benefits. A hearing was held before the commission on November 17, 1994, and on July 20, 1995, the computation of Ahern’s benefits was unanimously affirmed. Ahern requested reconsideration by the commission, and on March 21, 1996, the commission issued its final decision.

On May 1, 1996, Ahern petitioned the Superior Court for review of the commission ruling affirming the computation of benefits. Ahern alleged in his petition that the state employees retirement commission is an administrative agency of the state that is empowered to review and reconsider decisions of the retirement division pursuant to § 5-155a (k). Accordingly, pursuant to General Statutes § 4-183, the Superior Court has jurisdiction to review decisions of the commission. On June 21, 1996, the commission filed a motion to dismiss Ahern’s petition for lack of subject matter jurisdiction over the issues raised.

On August 12, 1996, a hearing was held before the court, O’Neill, J., regarding the commission’s motion to dismiss. The commission argued that there is no right to a hearing before the retirement commission under Derwin v. State Employees Retirement Commission, 234 Conn. 411, 661 A.2d 1025 (1995), and, accordingly, no right to appeal under the UAPA. In response, Ahem argued that a change in the statutory language created an exception, thereby giving him the right to appeal. The trial court dismissed the petition, reasoning that if Ahern’s argument were correct the legislative commissioners’ office would have in effect overruled a Supreme Court decision by making a technical change in the statute.¹ The sole issue on appeal is whether changes in the wording of § 5-155a (j) created a statutory right to appeal that did not previously exist.

Pursuant to § 5-155a (g), the retirement commission “may hold hearings when deemed necessary in the performance [of] its duty.” The Derwin court concluded that this language allowed the commission to determine if it should conduct a hearing and that if the commission granted a hearing, it did not convert the proceeding into a contested case. Therefore, in any matter brought before this agency, there can never be a “contested case” as defined in § 4-166 (2) because decisions of the commission are not final for purposes of the UAPA.

In Derwin v. State Employees Retirement Commission, supra, 234 Conn. 411, the Supreme Court held that the Superior Court lacked subject matter jurisdiction over a plaintiffs appeal from the commission’s denial of a request for reconsideration. Our Supreme Court concluded that there was no right to appeal because the denial did not constitute a “final decision”² in a contested case for purposes of appeal as required by § 4-183 (a). Id., 423.

Prior to the 1994 amendment, General Statutes (Rev. to 1993) § 5-155a (k), which governs the review of retirement benefit claims and sets forth the available appellate remedies, provided: “If any claim is denied, a claimant may request that the decision be reviewed and reconsidered by the commission. Thereafter, any contested case shall be decided in accordance with [the UAPA.]” Section 5-155a (k) was amended during the May 25, 1994, special legislative session by Public Acts 1994, No. 94-1, § 68, to add that “any such case shall be decided as a contested case in accordance with [the UAPA].” Ahem argues that this amendment to the statute is substantive and therefore creates a right to appeal while the commission argues that it was merely technical and does not create a right to appeal. Both parties agree that if we conclude that the 1994 amendment is found to be a technical amendment to the statute, the plaintiff cannot be granted the relief requested.

“To determine whether [a change in language] should be characterized as [technical], we look to the legislative history to determine the legislative intent. Connecticut National Bank v. Giacomi, 242 Conn. 17, 40, 699 A.2d 101 (1997) . . . .’’(Citations omitted; internal quotation marks omitted.) Toise v. Rowe, 243 Conn. 623, 628, 707 A.2d 25 (1998). Our review of the legislative history convinces us that Public Acts, Spec. Sess., May 25, 1994, No. 94-1, House Bill No. 7002, titled, “An Act Concerning the Revisor’s Technical Corrections to the General Statutes and to Certain Public and Special Acts,” was purely technical. The legislative debate in both houses confirms this. For example, Representative Richard D. Tulisano stated that the House had been “advised by [the legislative commissioners’ office] that everything in [H.B. 7002] is technical in nature . . . and it has no substantive import whatsoever.” 37 H.R. Proc., Pt. 25, May 25, 1994 Spec. Sess., p. 9129. In the Senate, Senator George C. Jepsen stated that “we asked the Legislative Commissioners’ Office to go through the bill and [present to us only] those portions which are purely technical in nature. . . . All amendments [in H.B. 7002] . . . are technical in their scope.” 37 S. Proc., Pt. 10, May 25, 1994 Spec. Sess., pp. 3386-87. On the basis of the foregoing, we conclude that the amendment was technical and created no new substantive right to appeal.

The right to appeal from a decision of an administrative agency to the Superior Court is a creature of statute. Circle Lanes of Fairfield, Inc. v. Fay, 195 Conn. 534, 540-41, 489 A.2d 363 (1985). Furthermore, the right to appeal is a substantive right that may not be created through a technical change to a statute. In re Daniel H., 237 Conn. 364, 373-74, 678 A.2d 462 (1996); In re Judicial Inquiry No. 85-01, 221 Conn. 625, 632, 605 A.2d 545 (1992). Under the controlling case law, if the amendment is technical or clarifying, it may not create a substantive right to appeal. Because we conclude that the change in the statute is technical, the phrase may not be interpreted to create the right to appeal.

The judgment is affirmed.

In this opinion SCHALLER, J., concurred.

1 The relevant portion of the trial court’s comments are as follows: “It’s not only that there’s no legislative history, technical changes are made by the legislative commissioners’ office without any input from the state legislature except they put their fingerprints on it at the very end; it’s a good bill, and it should pass.... We have to decide, what did the legislature want. Derwin [v. State Employees Retirement Commission, supra, 234 Conn. 411] has told us that . . . not appealable under 4-183. . . . This is not a contested case, clearly. It doesn’t fit under that at all. . . . The real people who decide these things sit on the other side of Capitol Avenue [in Hartford], They’re on the west side, not the legislative commissioners’ office. They’re not going to decide it. They’re not going to decide an issue like that. Was the Supreme Court wrong? We’ll reverse them. No, not the legislative commissioners. They would never do that intentionally. I don’t know what they’re doing with their technical change, but they’re obviously not doing that.”

2 General Statutes § 4-183 (a) provides: “ 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 an appeal.” In addition, “[t]he appealability of an agency decision is governed by § 4-183 (a) of the UAPA, which provides that ‘[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.’ . . . Accordingly, we have consistently held that the Superior Court has jurisdiction only over appeals from a ‘final decision’ of an administrative agency. See, e.g., State v. State Employees’ Review Board, 231 Conn. 391, 400 n.13, 650 A.2d 158 (1994); Summit Hydropower Partnership v. Commissioner of Environmental Protection, [226 Conn. 792, 811-12, 629 A.2d 367 (1993)].” (Emphasis in original.) Derwin v. State Employees Retirement Commission, supra, 234 Conn. 418.