Attorney General's Opinion
Attorney General, Richard Blumenthal
June 16, 2008
State of
Court Operations Division
Dear
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.
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
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.”
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.”
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
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,
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
3 A similar analysis applies to
4 None of the decisions found analyzed statutory language identical to
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 (