Yanni v. DelPonte

Lavery, J.,

concurring. Although I concur in the judgment of the court, I write separately because, under certain circumstances, the form of notice employed by the commissioner could have important due process consequences for the defendant.

General Statutes § 14-227b (g) states that after the suspension of an operator’s license is affirmed by the commissioner of motor vehicles following a hearing,the commissioner “shall render a decision at the conclusion of such hearing or send a notice of his decision by certified mail to such person not later than thirty-five days or, if a continuance is granted, not later than forty-five days from the date such person received notice of his arrest by the police officer. The notice of such decision sent by certified mail to the address of such person as shown by the records of the commissioner shall be sufficient notice to such person that his operator’s license or nonresident operating privilege is reinstated or suspended, as the case may be. . . .” (Emphasis added.)

In accordance with the statutory mandate of General Statutes § 14-22b (1), the commissioner has adopted regulations to implement the provisions of the statutory scheme embraced by § 14-227b. Of importance to this case is § 14-227b-21 of the Regulations of Connecticut State Agencies, which provides: “The decision of the hearing officer shall be in writing, and a copy of the decision shall be sent to the person who requested the hearing by bulk certified mail not later than thirty-five days, or if a continuance is granted not later than forty-five days, after the person received notice of his arrest.” (Emphasis added.)

*356As the plaintiff points out, “certified mail” and “bulk certified mail” are two different procedures. The United States Postal Service recognizes “certified mail” and “bulk mail certified.” If a letter is sent by “certified mail,” a record exists of both the mailing of the letter by the sender and its receipt by the recipient, who must sign for the letter. United States Postal Service Domestic Mail Manual, Issue 43, Item 912.11. If a letter is sent by “bulk mail certified” a record exists of only the fact that it was mailed by the sender and not of its receipt by the recipient, since the recipient’s signature is not required. United States Postal Service Domestic Mail Manual, Issue 43, Item 931.1. As the plaintiff also notes, the distinction between certified mail and bulk mail certified could be crucial if the operator, in later proceedings, is called on to prove whether he had received notice of his suspension.

Section 14-227b-21 of the Regulations of Connecticut State Agencies conflicts directly with the enabling statute, General Statutes § 14-227b. The statute requires that notice of suspension be sent by certified mail, while the regulation requires that the notice be sent by bulk certified mail. I do not believe that the commissioner acted within his authority in promulgating a regulation in direct conflict with the underlying statute. “It is clear that an administrative body must act strictly within its statutory authority, within constitutional limitations and in a lawful manner. ... It cannot modify, abridge or otherwise change the statutory provisions under which it acquires authority unless the statutes expressly grant it that power.” (Citations omitted.) Waterbury v. Commission on Human Rights & Opportunities, 160 Conn. 226, 230, 278 A.2d 771 (1971). “The power of an administrative agency to prescribe rules and regulations under a statute is not the power to make law, but only the power to adopt regulations to carry into effect the will of the legislature *357as expressed by the statute.” Salmon Brook Convalescent Home, Inc. v. Commission on Hospitals & Health Care, 177 Conn. 356, 363, 417 A.2d 358 (1979).

When a statute and regulation conflict, the statute must prevail. In the case of Strain v. Warden, 27 Conn. Sup. 439, 242 A.2d 90 (1968), a prisoner challenged a rule of the board of parole on the ground that it conflicted with a statute. The statute provided that when a prisoner on parole was in violation of the conditions of his parole, the unexpired portion of that person’s prison term was to be determined at the date of the request or order for the parolee’s return; the rule, on the other hand, provided that the unexpired portion of the term was to be determined at the date of the prisoner’s delinquency. On the conflict between statute and rule, Judge Palmer wrote: “In such a case, obviously the statute must prevail, and the rule must be declared void to the extent that it conflicts with the statute. 73 C.J.S. 422, Public Administrative Bodies and Procedure, § 103; 42 Am. Jur. 355, Public Administrative Law, § 49.” Strain v. Warden, supra, 445. “ ‘The general rule is well established that [w]here a specified mode of giving notice is prescribed by statute, that method is exclusive.’ ” Windsor Properties, Inc. v. Great Atlantic & Pacific Tea Co., 35 Conn. Sup. 297, 301, 408 A.2d 936 (1979).

It is important to note that the notice requirement of General Statutes § 14-227b (g) could be crucial in a criminal procedure context. General Statutes § 14-215 prohibits operating a motor vehicle while one’s vehicle registration or operator’s license has been refused, suspended, or revoked. Subsection (c) of § 14-215, which makes direct reference to § 14-227b, provides: “Any person who operates any motor vehicle during the period his operator’s license or right to operate a motor vehicle in this state is under suspension or revocation on account of a violation of subsection (a) or sec*358tion 14-227a or section 53a-56b or 53a-60d or pursuant to section lJ¡.-227b, shall be fined not less than five hundred dollars nor more than one thousand dollars and imprisoned not more than one year, thirty consecutive days of which may not be suspended or reduced in any manner.” (Emphasis added.) The legislative history of § 14-227b reveals that when the legislature voted on and passed that section, it concurrently amended § 14-215 to include the words “or pursuant to section 14-227b.” The legislature was aware, therefore, that it was approving an overall reform of the drunk driving statutes, including the criminal sanctions for violating § 14-215.

Section 14-215 provides a mandatory jail term and fine for driving while one’s license is suspended pursuant to § 14-227b. Whether and when a person received notice of suspension would be crucial to that person’s defense were that person to face the severe sanctions provided by § 14-215.

The majority opinion correctly states our well settled test for determining whether a statutory requirement is mandatory or directory, and the proposition that “use of the word ‘shall’ does not in and of itself create a mandatory duty to perform an action.” We recently stated, however, that “[wjhere the word ‘shall’ is employed in criminal procedural rules, it indicates that the requirements that follow are mandatory rather than directory.” Miller v. Commissioner of Correction, 29 Conn. App. 773, 779, 617 A.2d 933 (1992). I believe that the legislature’s use of the word “shall” in § 14-227b makes the certified mail requirement mandatory rather than directory in the criminal procedure context of § 14-215.

I agree with the judgment of the majority because under the facts of this case, criminal procedure rules were not implicated. Had they been implicated, how*359ever, I believe that regulation § 14-227b-21 would have been invalid. Because in this case the plaintiff was not prejudiced by the commissioner’s use of bulk mail certified to send notice, I concur in the judgment.