Opinion
No. CV-09-4032277S
January 28, 2010
MEMORANDUM OF DECISION RE MOTION #102
On October 15, 2009, Bernard Durgin (Durgin) filed an action captioned "Appeal from Town of Madison Police Retirement Board" against the Town of Madison, the Police Retirement Board (board) and its chair, alleging that he was aggrieved, in a number of ways, by a September 3, 2009 decision of the board denying his application for a disability retirement pension and the board's subsequent denial, on September 24, 2009, of his request to reconsider that decision. On November 10, 2009, the defendants filed a motion to dismiss (#102) on the ground that the court lacks subject matter jurisdiction because there is no statutory authority to take an appeal from decisions of the board.
"Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it." (Internal quotation marks omitted.) Peters v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005). In ruling on a motion to dismiss for lack of subject matter jurisdiction, the court is required to indulge "every presumption favoring jurisdiction." Fedus v. Planning Zoning Commission, 278 Conn. 751, 778-79, 900 A.2d 1 (2006). The court must determine whether there is jurisdiction on the face of the record before it. Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 773, 826 A.2d 138 (2003).
It is well established that "[t]he right of appeal exists only under statute; Long v. Zoning Commission, 133 Conn. 248, 252, 50 A.2d 172; Etchells v. Wainwright, 76 Conn. 534, 541, 57 A. 121; and parties have no vested right thereto. Neilson v. Perkins, 86 Conn. 425, 428, 85 A. 686." State v. Vachon, 140 Conn. 478, 485, 101 A.2d 509 (1953). Furthermore, the legislature has "plenary authority to define the scope of administrative appeals." Circle Lanes of Fairfield, Inc. v. Fay, 195 Conn. 534, 540, 489 A.2d 363 (1985). "There is no inherent right to judicial review of administrative actions. This court has repeatedly held that appeals to the courts from administrative officers or boards may be taken only when a statute provides authority for judicial intervention." (Citations omitted) Delagorges v. Board of Education, 176 Conn. 630, 633, 410 A.2d 461 (1979).
In his complaint, Durgin alleges he has brought this appeal pursuant to General Statutes "Sec. 183 [sic]" but the parties agree that he intended to assert § 4-183, which is part of the Uniform Administrative Procedures Act (UAPA). The UAPA, however, applies only to authorized appeals from state administrative agencies. General Statutes § 4-166(1); Danziger v. Demolition Board, 18 Conn.App. 40, 44, 556 A.2d 625, cert. denied, 211 Conn. 805, 559 A.2d 1139 (1989). Thus, the court does not derive subject matter jurisdiction over this matter from jurisdiction over this matter from General Statutes § 4-183.
Alternatively, Durgin maintains that General Statutes §§ 7-450 and 51-197b, when read together, provide a "statutory scheme" for appellate judicial review of the decisions of town retirement boards. Durgin misreads these statutes. Section 7-450 merely provides for the establishment of municipal pension and retirement systems as well as the establishment of a board for the purpose of "management and investment of such systems." General Statutes §§ 7-450(a), 7-450(b)(1)(2). General Statutes § 51-197b(a) simply provides that "all appeals that may be taken from administrative decisions of officers, boards, commissions or agencies of the state or any political subdivision thereof shall be taken to the Superior Court." (Emphasis supplied.) "Put simply, § 51-197b(a) does not create any right of appeal." Lewis v. Stack, 110 Conn.App. 641, 645, 955 A.2d 620, cert. denied, 289 Conn. 953, 961 A.2d 417 (2008).
The use of the word " may" in § 51-197b(a) reaffirms the principle that in order for the court to have jurisdiction over an administrative appeal, it must have been granted that jurisdiction by the legislature. See O'Donnell v. Waterbury, 111 Conn.App. 1, 6, 958 A.2d 163, cert. denied, 289 Conn. 959, 961 A.2d 422 (2008) ("The authority for the [Waterbury] charter's grant of a right to appeal [from a decision of the Waterbury retirement board] comes directly from the legislature's enactment of 26 Spec. Acts. 297, No. 460, § 8 (1951) ( Special Act 51-460) . . . the language providing a right of appeal in Special Act 51-460 is identical to the language providing the same right in the charter"). The record before the court is devoid of any indication that the legislature has granted authority for a right of appeal from a decision of the Madison Police Retirement Board. In the absence of such a provision, the court is without appellate jurisdiction. Carilli v. Hartford, 151 Conn. 703, 704, 197 A.2d 68 (1964).
At the court's request, defense counsel provided copies of Special Act 59-408, An Act Concerning the Establishment of a Police Retirement Fund in the Town of Madison, and Special Act 65-110, An Acting Authorizing the Town of Madison to Enact a Pension Ordinance. Neither of these Special Acts confers a right of appeal.
Although the court lacks jurisdiction over this action as an administrative appeal, the law is clear that the "absence of an express appeal provision does not foreclose other forms of judicial relief where appropriate . . . This means that the aggrieved person may bring a plenary action, rather than an administrative appeal, against the appropriate officials or municipality in order to obtain judicial review of their actions." October Twenty-Four, Inc. v. Planning Zoning Commission, 35 Conn.App. 599, 609, 646 A.2d 926 (1994). "[U]nder certain circumstances, a court has jurisdiction to review administrative action although there is no statutory procedure for an appeal." Diaz v. Board of Directors, 2 Conn.App. 43, 48, 476 A.2d 146 (1984). In Diaz, the plaintiff sought a temporary and permanent injunction to compel the board of the Danbury Police Pension Fund to grant him disability retirement benefits after the board had denied his job-related disability pension application. He claimed that the board's decision was "arbitrary, capricious and discriminatory . . . and denied his right to equal protection of the laws." Id., 44. The Appellate Court concluded that because his constitutional claims were "properly presented . . . to the court for its consideration, the court erred in dismissing the case solely on the basis that the plaintiff's complaint was an appeal and that there was no statutory right thereto." Id., 48.
Here, Durgin alleges that he "filed for a disability retirement pension pursuant to the terms of the Town of Madison Police Department Retirement Plan," (¶ 2). Pursuant to the plan, he submitted a report from his treating physician that "he was unable to perform his police duties due to his physical impairments" (¶ 3), and submitted to an independent medical examination which also found that he was "unable to perform the full duties of his police position" (¶ 4). Although he was aware that the board would meet on September 3, 2009, he alleges that he was not formally notified "of his rights with respect for [an] opportunity to be heard." (¶¶ 7, 8.) He further alleges that at the September 3, 2009 meeting, the board denied his pension application "without any findings of fact or conclusions of law" and with no indication that the board had received any medical evidence. (¶¶ 9, 10, 11, 14.b.) As a result, he alleges that the board "acted illegally, arbitrarily and in abuse of discretion vested in it" and that its decision violated his rights "of procedural and substantive due process" under the state and federal constitutions. (¶ 14.d, e.) He asks the court to grant "such as relief as is proper" under these circumstances.
Construing these allegations broadly and in a manner most favorable to Durgin, as required, see Dyous v. Psychiatric Security Review Board, supra, 264 Conn. 773, they appear to state a justiciable claim against the board for deprivation of property rights without due process of law which may be litigated in a plenary action. However, in light of Durgin's attempt to frame this action as an administrative appeal, the complaint "does not fully disclose the ground of the claim," Practice Book § 10-1, nor the specific relief sought, see Practice Book §§ 10-24, 10-25, 10-27. Accordingly, pursuant to Practice Book § 10-1, the court orders that Durgin file an amended complaint, within thirty days of the date of this decision, containing "a fuller and more particular statement" of his claims and the specific relief sought and omitting any request for appellate review of the board's decision. If Durgin does not file an amended complaint within thirty days, a judgment of dismissal shall enter.
A "plenary action" is simply a "suit or action, independent of any other proceeding, in which the merits of the cause are fully inquired into and determined, as distinguished from a summary proceeding . . ." Ballantine's Law Dictionary, 3rd Ed. (1948).