Attorney General: Martin R. Libbin, Judicial Branch, Formal Opinion 2008-011, Attorney General State of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

June 16, 2008

 

Martin R. Libbin

State of Connecticut Judicial Branch

Court Operations Division

100 Washington Street

Hartford, CT  06115-0474

 

Dear Mr. Libbin:

 

You have requested a formal legal opinion concerning the calculation of mileage fees owed to state marshals and indifferent persons who serve process. Specifically, you have asked:

(1) whether mileage fees are owed for unsuccessful attempts at service of process, in addition to when service is successful; 1

(2) whether the computation of mileage is “limited to ‘direct’ mileage to the place of service (i.e., the shortest possible driving distance from place of receipt to place of service) or, instead, allows for mileage resulting from a more circuitous route if it was incurred in connection with a bona fide effort to effectuate service or otherwise added value to the service (such as travel for legitimate investigative purposes relative to service);” and

(3) what mileage fees are owed when travel to serve process is started at a location other than where the process was sent. “For example, if a summons and complaint are sent to a state marshal at his or her office in Waterbury for service on a defendant that resides two miles from the marshal’s office, is the marshal entitled to be paid for mileage for service from New Haven to Waterbury if in fact after being in New Haven the marshal goes directly to the defendant’s home in Waterbury?”

The provisions of Conn. Gen Stat. § 52-261(a) and 52-261a compel the following conclusions: mileage fees are not owed for unsuccessful attempts to serve process, mileage should be calculated using the most direct route from the place of receiving the process to the place of service, and mileage fees should not be paid for travel that begins at a location further from the destination point than the place where process was received.

Section 52-261(a) of the Connecticut General Statutes sets forth the fees to be paid to individuals who serve process, summons or attachments, including mileage fees for the travel incurred in effecting such service. In pertinent part, section 52-261(a) states:

[E]ach 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, . . . . 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.

 

Conn. Gen. Stat. § 52-261(a)(emphasis added).  Conn. Gen. Stat. § 52-261a, which pertains to individuals serving process for the Judicial Department or Division of Criminal Justice, contains similar language.2

In construing a statute, the “fundamental objective is to ascertain and give effect to the apparent intent of the legislature.” American Promotional Events, Inc. v. Blumenthal, 285 Conn. 192, 202 (2008). In searching for the legislative intent, a court looks “first to the text of the statute itself and its relationship to other statutes.” Id., citing Conn. Gen. Stat. § 1-2z. If the text of the statute is not clear and unambiguous, it is appropriate to look to the statute’s “legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 679 (2004).

Looking at the language of § 52-261(a), there is no express mention of whether the mileage fees apply to unsuccessful, as well as successful, attempts to serve process. The language implies, however, that mileage fees are payable only for successful service. This implication arises because the first sentence of § 52-261(a) states that “each officer or person who serves process, summons or attachments shall receive a fee of not more than thirty dollars for each process served.” Conn. Gen. Stat. § 52-261(a)(emphasis added). The phrase “each process served” describes a completed action. Thus, the service fee is payable to those officers and persons who successfully serve process. The second sentence of § 52-261(a), which pertains to mileage fees, begins with the words “[e]ach such officer or employee,” thereby referring back to the officers and persons in the first sentence who have successfully served process and implying that fees for mileage are payable specifically to those individuals who have completed the act of serving process.

The conclusion that mileage fees are payable when process is successfully served is supported by the second half of the sentence, which states that the mileage fee is computed “from the place where such officer or person received the process to the place of service.” Conn. Gen. Stat. § 52-261(a). The use of the past tense, coupled with the reference to “the place of service” implies that the mileage fee is payable for service that has been successfully effected.3  

Although no Connecticut case law or legislative history was found that considered whether § 52-261(a) permits the payment of mileage fees for unsuccessful attempts at service, the court in Rioux v. State Ethics Commission, 45 Conn. Supp. 242 (1997), aff’d, 48 Conn. App. 214 (1998), interpreted the statute to permit only those fees explicitly enumerated. Specifically, the court found a sheriff’s $15 “service fee” for advice and review of documents to be improper because § 52-261(a) makes no mention of such a fee. According to the court, “[u]nless there is evidence to the contrary, statutory itemization indicates that the legislature intended the list to be exclusive.” Rioux, 45 Conn. Supp. at 247. This conclusion is consistent with the view expressed in Corpus Juris Secundum that “[t]he right to mileage . . . is purely statutory; for services in connection with which no mileage is allowed by statute a sheriff or constable is entitled to none.” 80 Corpus Juris Secundum, Sheriffs and Constables § 498 (2000).

Courts and Attorneys General in other jurisdictions have similarly concluded that mileage fees are purely statutory and, “[i]n the absence of a statute, a sheriff is not entitled to mileage for service of process.” Sears, Roebuck and Co. v. Braney, 627 A.2d 698, 699 (N.J. Superior Ct., 1992), aff’d in part, rev’d in part, 627 A.2d 662 (N.J. Superior Ct., Appellate Div. 1993). Although out-of-state decisions have reached varying conclusions as to whether mileage fees must be paid for unsuccessful service, in each case the determination has turned on the legislative intent as evidenced, primarily, by the language of the relevant statutes.4  Based on the language of Conn. Gen. Stat. §§ 52-261(a) and 52-261a discussed above, I conclude that the Connecticut General Assembly intended mileage fees to be paid only for those trips that result in successful service.

Your second question asks whether the computation of mileage is “limited to ‘direct’ mileage to the place of service (i.e., the shortest possible driving distance from place of receipt to place of service) or, instead, allows for mileage resulting from a more circuitous route if it was incurred in connection with a bona fide effort to effectuate service or otherwise added value to the service (such as travel for legitimate investigative purposes relative to service).” Although neither Conn. Gen. Stat. § 52-261(a) nor § 52-261a addresses this issue explicitly, both statutes provide that mileage shall 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,” thereby implying that payment applies to direct travel along this specific route and not to other destinations that could be reached along the way if the route were circuitous. Indeed, construing the statute to permit payment for a circuitous route would open the door to potential abuse of the statute by those seeking to augment their fees. Because courts may not “supply statutory language that the legislature may have chosen to omit,” Connecticut Light & Power Co. v. Dept. of Public Utility Control, 206 Conn. 108, 119 (2003), I conclude that Conn. Gen. Stat. §§ 52-261(a) and 52-261a should be construed to permit mileage payments only for the most direct route between the place of receiving process and the place of service.

The answer to your third question follows from the answer to your second question. Your third question asks what mileage fees are owed when travel to serve process begins at a location other than where the process was received. This is a problem, as you point out, when travel begins at a location that is further from the sheriff’s destination than the place where he received the process to be served. As noted above, Conn. Gen. Stat. §§ 52-261(a) and 52-261a state that mileage shall 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.” There is no provision in either statute for payment for travel that begins at a location other than “the place where such officer or person received the process.” Because courts “are not permitted to supply statutory language that the legislature may have chosen to omit,” Connecticut Light & Power Co., 206 Conn. at 119, I conclude that mileage fees are not payable for travel from a location further from the destination point than the place where the process was received.

I trust that this opinion answers your questions.

 

Very truly yours,

 

  

RICHARD BLUMENTHAL

ATTORNEY GENERAL



1 You note that the current practice of the State Marshal Commission is to encourage the allowance of mileage fees when a marshal has made a bona fide, but unsuccessful, effort to effectuate service.  Recently, you have received several invoices for service of process that included claims for mileage for unsuccessful attempts at service.

 

2 Conn. Gen. Stat. § 52-261a(2) states, in pertinent part, that “each officer or person who serves process shall receive, for each mile of travel, the same amount per mile as provided for state employees pursuant to section 5-141c, 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.”

 

3 A similar analysis applies to Conn. Gen. Stat. § 52-261a(2), which states that “each officer or person who serves process shall receive, for each mile of travel, the same amount per mile as provided for state employees pursuant to section 5-141c, 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.” As in section 52-261(a), the underlined language suggests that mileage fees apply when service has been successfully effected.

 

4 None of the decisions found analyzed statutory language identical to Connecticut’s. The following decisions disallowed mileage fees for unsuccessful service: Commonwealth v. Brown, 4 Pa. D. & C. 2d 42 (1955)(constable not entitled to mileage for eleven unsuccessful attempts to serve a warrant); Schneider v. Waukesha County, 79 N.W. 228 (Wis. 1899)(sheriff not entitled to mileage fees for travel in an honest but unsuccessful attempt to execute a criminal warrant); 1987 La. AG Lexis 257, La. Atty. Gen. Op. No. 1987-462 (Sept. 17, 1987)(state statute did not provide fees for unsuccessful service); 1984 Wisc. AG Lexis 10, 73 Op. Atty Gen. Wisc. 106 (Oct. 11, 1984)(statute allowing mileage fee for “each mile actually and necessarily traveled” in serving any summons, writ or other process did not entitle sheriff to payment for unsuccessful service); 1952 N.Y. AG Lexis 279, 1952 N.Y. Op (Inf.) Atty. Gen. 76 (Aug. 15, 1952)(statute providing payment for “miles necessarily traveled going and returning” only applied to the one round trip in which service was effected).

 

The following decisions allowed mileage fees for unsuccessful service: Sears, Roebuck and Co. v. Braney, 627 A.2d 698 (N.J. Superior Ct., 1992), aff’d in part, rev’d in part, 627 A.2d 662 (N.J. Superior Ct., Appellate Div. 1993)(statutory fee for “mileage actually traveled” “[f]or serving or executing process” applied to unsuccessful attempts); Garbenis v. Elrod, 454 N.E. 2d 719 (App. Ct. Ill. 1983)(statute allowing fee for each “mile each way necessarily traveled in making . . . service” permitted sheriff to retain mileage fee for unsuccessful service); 1978 Ky. AG Lexis 672 (Jan. 24, 1978)(mileage for unsuccessful service allowed where sheriff’s affidavit supported conclusion that specific trips were actually made and necessary); 1941 Ore. AG Lexis 209, 20 Op. Atty. Gen. Ore. 381 (Aug. 27, 1941).


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