Attorney General: Robert S. Rudewicz, State Marshal Commission, 2004-017 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

October 12, 2004

Robert S. Rudewicz
Director of Operations
State Marshal Commission
765 Asylum Avenue
Hartford, CT 06105

Dear Mr. Rudewicz:

A recent inquiry from the City of Waterbury has brought to our attention that some marshals are charging a fee of fifteen per cent of the amount of taxes collected for the service of alias tax warrants under Conn. Gen. Stat. § 52-261 as amended by Public Act No.03-224. It is our opinion that the statutorily authorized fee to charge for executing such tax warrants is ten percent of the amount of taxes collected, as provided in Conn. Gen. Stat. § 12-162. Any amount charged by a state marshal in excess of the statutorily authorized amount must be reimbursed to the affected taxpayer. The commission should require audits of these accounts and take appropriate action to ensure that taxpayers are fully compensated for their overpayments.

Conn. Gen. Stat. § 52-261, as amended by Public Act No. 03-224 provides in relevant part:

(a) Except as provided in subsection (b) of this section and section 52-261a, each officer or person who serves process, summons or attachments shall receive a fee of not more than thirty dollars for each process served and an additional fee of thirty dollars for the second and each subsequent service of such process, except that such officer or person shall receive an additional fee of ten dollars for each subsequent service of such process at the same address or for notification of the office of the Attorney General in dissolution and postjudgment proceedings if a party or child is receiving public assistance. Each such officer or person shall also receive the fee set by the Department of Administrative Services for state employees for each mile of travel, to be computed from the place where such officer or person received the process to the place of service, and thence in the case of civil process to the place of return. . . . Notwithstanding the provisions of this section, for summoning grand jurors, such officer or person shall receive only such officer's or person's actual expenses and such reasonable sum for services as are taxed by the court. The following fees shall be allowed and paid: . . . (6) for the levy of an execution, when the money is actually collected and paid over, or the debt or a portion of the debt is secured by the officer, fifteen per cent on the amount of the execution, provided the minimum fee for such execution shall be thirty dollars; . . . The court shall tax as costs a reasonable amount for the care of property held by any officer under attachment or execution. The officer serving any attachment or execution may claim compensation for time and expenses of any person, in keeping, securing or removing property taken thereon, provided such officer shall make out a bill. The bill shall specify the labor done, and by whom, the time spent, the travel, the money paid, if any, and to whom and for what. The compensation for the services shall be reasonable and customary and the amount of expenses and shall be taxed by the court with the costs. (emphasis added)

Conn. Gen. Stat. § 12-162 provides, in part, as follows:

Any collector of taxes, in the execution of tax warrants shall have the same authority as state marshals have in executing the duties of their office, and any constable or other officer authorized to serve any civil process may serve a warrant for the collection of any tax assessed, and the officer shall have the same authority as the collector concerning taxes committed to such officer for collection. Upon nonpayment of any property tax when due, demand having been made therefore as prescribed by law for the collection of such tax, an alias tax warrant may be issued by the tax collector . . . . Any officer serving such warrant shall make return to the collector of such officer's actions thereon within ten days of completion of such service and shall be entitled to collect from such person the fees allowed by law for serving executions issued by any court. Notwithstanding the provisions of section 52-261, any state marshal or constable, authorized as provided in this section, who executes such warrant and collects any delinquent municipal taxes as a result thereof shall receive in addition to expenses otherwise allowed, an amount equal to ten per cent of the taxes collected pursuant to such warrant. The minimum fee for such service shall be twenty dollars . . . . (Emphasis added)

We note that Conn. Gen. Stat. § 52-261 as amended by Public Act No. 03-224 generally discusses fees and expenses of officers and persons serving process. Conn. Gen. Stat. § 12-162, on the other hand, specifically governs alias tax warrants. By its terms, Section 12-162 controls reimbursement for the service of alias tax warrants, “notwithstanding the provisions of section 52-261.” “It is a well-settled principle of [statutory] construction that specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling.” Plourde v. Liburdy, 207 Conn. 412, 417 (1988). In this case, the General Assembly has expressly directed that the specific terms of Conn. Gen. Stat. § 12-162 prevail over the general terms of Conn. Gen. Stat. § 52-261.

It is also our opinion that to the extent that an executing officer has charged and collected a fee of fifteen per cent for executing an alias tax warrant, it was done without any legal basis. Accordingly, any marshal who charged more than 10% of the proceeds must repay to the taxpayer any excess fees charged beyond the amount permitted by Conn. Gen. Stat. § 12-162.

The Commission should exercise its statutory and regulatory authority to review the records of state marshals who have executed alias tax warrants during the period from 2003, when Public Act 03-224 became effective, to the present to determine whether unauthorized fees were charged. Conn. Gen. Stat. § 6-38e requires the State Marshal Commission “to periodically review and audit the records and accounts of the state marshals.” Section 6-38b-6 of the Regulations of Connecticut State Agencies sets forth the standards of conduct for state marshals. It states, inter alia, that state marshals must maintain up-to-date records that identify all fees collected and disbursed, and make their records available for inspection by the State Marshal Commission upon request.

The Commission should also ensure that any excess fees that were charged by state marshals for the service of alias tax warrants are returned to taxpayers. Appropriate action should be taken by the Commission against any marshal who refuses to return any excess fees or fails to account for these funds. Section 6-38b-8(b) of the Regulations of Connecticut State Agencies provides in part: “The commission may suspend or revoke the appointment of a state marshal when it determines, after due notice and hearing that the state marshal: ...(6) Misapplied or misappropriated money or property; or … 8) Failed to account for funds.”1

If my office may be of further assistance, do not hesitate to contact me.

RICHARD BLUMENTHAL
ATTORNEY GENERAL


Henri Alexander
Assistant Attorney General


1The Commission may also suspend or revoke the appointment of a state marshal for any conduct that could harm or otherwise impugn his or her professional reputation, standing or integrity, including violations of section 6-38b-6 of the Regulations of Connecticut State Agencies. Section 6-38b-8(c) of the Regulations of Connecticut State Agencies.


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