KACEY LEWIS v. FREEDOM OF INFORMATION COMMISSION
(AC 42997)
Connecticut Appellate Court
February 16, 2021
Moll, Alexander and DiPentima, Js.
Submitted on briefs October 7, 2020
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Syllabus
The plaintiff appealed to this court from the judgment of the trial court dismissing his appeal from the final decision of the defendant Freedom of Information Commission for lack of subject matter jurisdiction. The ground for dismissal was the plaintiff‘s failure to file his administrative appeal in the Superior Court within forty-five days of the mailing of the defendant‘s final decision, as required by statute (
Procedural History
Appeal from the decision of the defendant dismissing the plaintiff‘s complaint regarding a records request he submitted to the Department of Correction, brought to the Superior Court in the judicial district of New London, where the matter was transferred to the judicial district of New Britain; thereafter, the court, Hon. Henry S. Cohn, judge trial referee, granted the defendant‘s motion to dismiss and rendered judgment dismissing the appeal, from which the plaintiff appealed to this court. Affirmed.
Kacey Lewis, self-represented, filed a brief as the appellant (plaintiff).
Kathleen K. Ross, commission counsel, and Colleen M. Murphy, general counsel, filed a brief for the
Opinion
ALEXANDER, J. The self-represented plaintiff, Kacey Lewis, appeals from the judgment of the trial court dismissing his administrative appeal from the final decision of the defendant, the Freedom of Information Commission, for lack of subject matter jurisdiction on the ground that he failed to file his administrative appeal with the Superior Court within the time requirement of
The following facts and procedural history are relevant to our resolution of this appeal. On or about July 12, 2017, the plaintiff, who is incarcerated, submitted a written request to the Department of Correction (department) to review and inspect certain documents. On or about July 21, 2017, the Freedom of Information Administrator for the department acknowledged the plaintiff‘s request. On July 27, 2017,1 the plaintiff filed an appeal with the defendant alleging that the department had violated the Freedom of Information Act,
On June 14, 2018, the plaintiff signed his fee waiver application and subsequently mailed the application, an appeal of the defendant‘s final decision, and a civil summons to the Superior Court in the judicial district of New London. The plaintiff‘s fee waiver was granted on June 28, 2018. In an undated letter, a temporary assistant clerk at the court informed the plaintiff that his fee waiver had been granted, his civil summons had been signed, and he was responsible for serving the appeal on the defendant using the services of a state marshal. The clerk further instructed the plaintiff that “[o]nce the [s]tate [marshal] has given you the return of service that the defendant has been served, please send all originals [to the court] including the [f]ee [w]aiver so that the case [may] be initiated.”
On July 6, 2018, the plaintiff mailed his approved application for fee waiver, civil summons, and notice of appeal (collectively, appeal papers) to a state marshal in Hartford and requested that she serve the appeal papers on the defendant at its Hartford office. On or about July 24, 2018, the appeal papers were returned to the plaintiff with an attached note that the marshal “is unavailable.” On July 24, 2018, the plaintiff served the defendant by certified mail. On that same day, the plaintiff mailed his appeal papers to the court along with a signed affidavit attesting that he had served the defendant by certified mail. On or about July 26, 2018, the clerk‘s office sent the plaintiff a notice by mail indicating that his papers were being returned, and included the message that “[a]ffidavit of service is provided by the [marshal]. Please contact the [marshal] [who] served the summons and complaint and return all paper work to court.”
On August 24, 2018, the plaintiff sent his appeal papers by certified mail to the court with a note informing the clerk‘s office that he had served the defendant by certified mail and, therefore, a state marshal was not required to serve the defendant with the appeal papers. On September 10, 2018, the plaintiff received a letter from the clerk‘s office indicating that his appeal papers again were being returned and informing him that his affidavit constituted insufficient proof of service because “[t]he [c]ourt requires that a ‘Green Card’ from the post office be submitted to prove that
On November 26, 2018, the defendant filed a motion to dismiss the appeal, with an accompanying memorandum of law, arguing that the court lacked subject matter jurisdiction over the plaintiff‘s appeal because he had failed to serve and file his appeal within forty-five days of the mailing of the final decision of the defendant, as required by
A hearing was held on May 1, 2019, and, on May 6, 2019, the court issued its memorandum of decision dismissing the plaintiff‘s appeal for lack of subject mat-ter jurisdiction. The court determined that the plaintiff‘s appeal had not been filed until October 10, 2018, beyond the forty-five day statutory time period of
The plaintiff contends that his appeal was timely filed on July 24, 2018, and that, but for impropriety by the court clerk, he met the time limitation under
“We begin our discussion by setting forth the well settled standard of review that governs an appeal from a judgment granting a motion to dismiss on the ground of a lack of subject matter jurisdiction. A motion to dismiss properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. . . . A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide. . . . [B]ecause [a] determination regarding a trial court‘s subject matter jurisdiction is a question of law, our review is plenary.” (Emphasis omitted; internal quotation marks omitted.) Godbout v. Attanasio, 199 Conn. App. 88, 95, 234 A.3d 1031 (2020). “[F]ailure to meet the time limitation [of
It is well established that “[t]here is no absolute right of appeal to the courts from a decision of an administrative agency. . . . The [Uniform Administrative Procedures Act,
Appeals to the Superior Court from a final decision of an agency are governed by
The record reflects that the defendant issued its Notice of Final Decision and mailed the same to the plaintiff on May 25, 2018. Pursuant to
The plaintiff contends that any untimeliness of his appeal was caused by misinformation given to him by the clerk and the clerk‘s misreading of the applicable statutes, and that his appeal was timely filed on July 24, 2018, and should proceed. We disagree. In Godaire v. Freedom of Information Commission, 141 Conn. App. 716, 718, 62 A.3d 598 (2013), the plaintiff claimed that his administrative appeal was served late because of misinformation he had received from a court clerk at the Superior Court in the judicial district of New London. The defendants moved to dismiss for lack of subject matter jurisdiction and the trial court dismissed the appeal. Id., 717-18.
This court affirmed the judgment of dismissal stating that, “[a]lthough the plaintiff‘s admittedly late service of his administrative appeal is claimed to have resulted from misinformation he had received from a court clerk in the judicial district of New London as to how he was required to serve his appeal, we conclude that his late appeal cannot be saved from dismissal under the doctrine of equitable tolling because the forty-five day service requirement established by
In the present case, the plaintiff was initially informed by the clerk of the court that service had to be completed by a marshal. This information was incorrect. Notwithstanding this misinformation, he timely and properly served the defendant by certified mail in accordance with
The judgment is affirmed.
In this opinion the other judges concurred.
Because we conclude that the plaintiff‘s appeal was untimely filed, thereby depriving the trial court of subject matter jurisdiction, we need not address whether the trial court improperly denied the plaintiff‘s application for the issuance of subpoenas.