Attorney General's Opinion
Attorney General, Richard Blumenthal
January 7, 1992
Jon M. Alander
Department of Human Resources
1049 Asylum Avenue
Hartford, CT 06105
Dear Commissioner Alander:
This is in response to your request for a formal opinion of the Attorney General, submitted in your capacity as Chairman of the Commission For Child Support Guidelines, on the following two questions:
(1) Whether the child support guidelines, promulgated on January 1, 1991, are subject to the legislative review provisions of Public Act 91-209; and
(2) Whether the January 1, 1991 child support guidelines, and all future guidelines, are subject to the rule-making procedures under the Uniform Administrative Procedure Act.
For the reasons which follow, we answer each of the Commission's questions in the negative.
Public Act 91-209
The "Child Support Guidelines" promulgated by the Commission For Child Support Guidelines on January 1, 1991 ("1991 Guidelines"), were developed pursuant to 1989 Conn.Pub.Acts 89-203, § 1, An Act Concerning Child Support Guidelines. For purposes relevant to your inquiry, that legislation provided:
The commission for child support guidelines is established to review the child support guidelines ... [promulgated by its predecessor commission] ... and to issue updated guidelines not later than January 1, 1991 and every four years thereafter ... (Emphasis added)
The Commission satisfied the mandate of 1989 Conn.Pub.Acts 89-203, and "issued" updated guidelines on January 1, 1991. However, recognizing that time would be needed to ensure a smooth transition from the old to the new guidelines, the Commission provided for a three (3) month delay between the guidelines' "issuance" and "implementation" dates, stating in the Guidelines document itself:
The updated guidelines issued on January 1, 1991 ... shall be effective March 1, 1991. This ... [delay] ... to allow the Commission ... to ensure a successful and uniform transition ... (Emphasis added)
1991 Guidelines; pg. 7, (d)(1).
Subsequent to the issuance of the 1991 Guidelines, the General Assembly enacted 1991 Conn.Pub.Acts 91-209, effective June 10, 1991, providing for the first time for direct legislative involvement in the child support guidelines promulgation process. In relevant part, 1991 Conn.Pub.Acts 91-209, § 1, provides:
... no child support guidelines issued after January 1, 1991 , by the commission for child support guidelines shall be effective unless such guidelines are submitted by the commission to the standing legislative regulation review committee and approved in accordance with the provisions of Ch. 54 of the general statutes. (Emphasis added)
It is a cardinal rule of statutory construction that when the wording of a statute is clear and unambiguous the words themselves are deemed to express the intention of the legislature. City of Norwich v. Housing Authority of Town of Norwich, 216 Conn. 112, 579 A.2d 50 (1991); Wright v. Commissioner of Correction, 216 Conn. 220, 578 A.2d 1071 (1991); Beloff v. Progressive Casualty Insurance Co., 203 Conn. 45, 523 A.2d 447 (1987). Further, words and phrases used in a statute should be given their ordinary meaning unless their context dictates otherwise. Pintaville (Estate of Pintaville) v. Valkanos, 216 Conn. 412, 581 A.2d 1050 (1991); Kilpatrick v. Board of Education, 206 Conn. 25, 535 A.2d 1311 (1988); Conn.Gen.Stat. § 1-1(a).
Applying these time-honored rules of construction to the language of 1991 Conn.Pub.Acts 91-209 in issue, leads us to conclude that the 1991 Guidelines are clearly not child support guidelines "issued after January 1, 1991" and thereby subject to the legislative review and approval provisions contained therein. The 1991 Guidelines were required to be issued "not later than" January 1, 1991 (1989 Conn.Pub.Acts 89-203), and were in fact "issued on" January 1, 1991 (1991 Guidelines, pg. 7, (d)(1)). As such, since the Commission is required to periodically update the 1991 Guidelines, and is also presently engaged in the process of developing arrearage guidelines, pursuant to 1991 Conn.Pub.Acts 91-391, § 7, we construe 1991 Conn.Pub.Acts 91-209 prospectively.
In concluding that 1991 Conn.Pub.Acts 91-209 does not apply to the 1991 Guidelines, we are mindful that your request was prompted, at least in part, by the suggestion that some members of the General Assembly may have intended otherwise. Although the wording of the statute is clear and unambiguous, to fully address your concerns we have considered the legislative history of 1991 Conn.Pub.Acts 91-209, (Substitute House Bill No. 7345), as well as its literal language.
The favorable report of the Committee on Judiciary, concerning House Bill 7345, was presented to the House of Representatives on May 15, 1991 through Rep. Tulisano. The transcript of those proceedings, particularly the colloquy between Reps. Tulisano and Wollenberg, certainly indicates that the general import of the bill was to have a legislative body approve child support guidelines, or at least review them to some extent. Further, the discussion did reference orders issued under the 1991 Guidelines as having continuing effect once child support guidelines are reviewed by the legislature. However, there is no clear expression of legislative intent to require that the 1991 Guidelines, having been in place for nearly five (5) months and used by the courts for nearly three (3) months, be subject to the new review process. As such, we cannot read the legislative history as being inconsistent with the intent of the legislature, as expressed in the actual language of the statute itself.
Uniform Administrative Procedure Act
This office has not had an occasion to specifically address the question as to whether the 1991 Guidelines are subject to the rule-making procedures under Connecticut's Uniform Administrative Procedure Act ("UAPA"; General Statutes, Ch. 54). However, we have taken the position in prior litigation that the 1987 Guidelines, adopted pursuant to 1985 Conn.Pub.Acts 85-548, § 8, An Act Implementing The Federal Child Support Enforcement Amendments of 1984, were not intended by the General Assembly to be promulgated as regulations under the UAPA. As outlined below, the reasons for that determination are equally applicable to the 1991 Guidelines, promulgated pursuant to 1989 Conn.Pub.Acts 89-203, and the enactment of 1991 Conn.Pub.Acts 91-209 further supports this conclusion.
In the case of Vickery v. Vickery, 25 Conn.App. 555, cert. denied, 220 Conn. 919 (1991), we took the position that the guidelines commission established by 1985 Conn.Pub.Acts 85-548 was not an "agency" (Conn.Gen.Stat. § 4-166(1)) within the meaning of the UAPA and that, as such, the 1987 Guidelines promulgated by that commission were not "regulations" (Conn.Gen.Stat. § 4-166(13)) promulgated by an agency subject to the UAPA's regulation-making requirements. In support of that position we noted that the commission, a special ad hoc creation of the General Assembly, did not satisfy the definition of "agency" because it was not generally "authorized by law to make regulations or to determine contested cases." Conn.Gen.Stat. § 4-166(1). Rather, the commission was established only to develop guidelines to be made "available but not binding upon judges and other officials who have the power to determine child support awards." 1985 Conn.Pub.Acts 85-548, § 8. Indeed, as is the case with the current commission, that commission administered no programs, had no budget or staff, entertained no contested cases and was engaged solely in the business of fulfilling a limited and special legislative mandate. Finally, and perhaps most importantly, the absence of a specific reference to the UAPA in 1985 Conn.Pub.Acts 85-548, § 8 further supported our position that the UAPA was inapplicable to the guidelines promulgation process.
The Appellate Court in Vickery found it unnecessary to decide whether the commission created by 1985 Conn.Pub.Acts 85-548 was an agency under the UAPA or whether its guidelines were regulations. It noted that the General Assembly had subsequently incorporated the guidelines by reference in 1989 Conn.Pub.Acts 89-203, mandating their consideration in child support proceedings, thus rendering moot any question as to their validity. Vickery , 25 Conn.App. at 561.
The 1991 Guidelines were promulgated by a new Commission For Child Support Guidelines, pursuant to 1989 Conn.Pub.Acts 89-203. This legislation was enacted in order to insure that Connecticut's child support guidelines would be the subject of periodic review and that their application would be of a reputably presumptive nature, as mandated by the amendments to Title IV-D (Child Support Enforcement) of the Social Security Act, under the federal Family Support Act of 1988. As was the case with 1985 Conn.Pub.Acts 85-548, this enabling legislation and its legislative history is silent as to the question of UAPA applicability. However, the composition of the Commission was expanded from seven (7) to eleven (11) members, adding, among others, "the chairpersons and ranking members of the joint standing committee on judiciary or their designees ..." 1989 Conn.Pub.Acts 89-203, § 1. Recognizing that the legislature is also specifically excepted from the UAPA's definition of "agency", Conn.Gen.Stat. § 4-166(1), the legislature's direct involvement in the guidelines promulgation process further supports the conclusion that the 1991 Guidelines are not regulations issued by an agency subject to the UAPA's regulation-making methodology.
With the enactment of 1991 Conn.Pub.Acts 91-209, the General Assembly has now clearly indicated its' intent to have future child support guidelines approved by the Legislative Regulation Review Committee ("LRRC") in accordance with applicable provisions of the UAPA. 1991 Conn.Pub.Acts 91-209, § 1, supra. However, this language does not suggest that such guidelines are subject to all of the regulation-making requirements of the UAPA. Rather, we interpret the language concerning legislative oversight to be of a more restrictive nature. If the Commission For Child Support Guideline were to be deemed an "agency", and its guidelines "regulations", for purposes of UAPA analysis, there would have been no necessity for the General Assembly to specifically require that such guidelines be submitted to the legislature for approval. Indeed, § 4-168(e) of the UAPA specifically provides:
... [N]o regulation may be adopted ... by any agency until it is ... (2) approved by the standing legislative regulation review committee, as provided in section 4-170 ...
We cannot presume that the legislature has enacted useless or superfluous legislation. Bergner v. State, 144 Conn. 282, 130 A.2d 293; Amsel v. Brooks, 141 Conn. 288, appeal dismissed 348 U.S. 880. Accordingly, we can only conclude that the General Assembly, in providing for "LRRC" review of child support guidelines in 1991 Conn.Pub.Acts 91-209, was imposing a new obligation on the Commission which did not previously exist. Further, even though there is a reference to General Statutes Ch. 54 in the act, we would interpret that language as meaning that guidelines submitted to the LRRC pursuant to 1991 Conn.Pub.Acts 91-209, are subject to the same LRRC approval processes as are regulations otherwise submitted to that committee pursuant to Conn.Gen.Stat. § 4-170. Had the General Assembly intended that the guidelines were generally to be processed as regulations under the UAPA, it would have simply included a clear directive in the legislation that all future guidelines be adopted "in accordance with chapter 54" which, of necessity, includes LRRC approval under Conn.Gen.Stat. § 4-1701 .
In summary, we are of the opinion that the 1991 Guidelines, having been issued not later January 1, 1991 as required by 1989 Conn.Pub.Acts 89-203, are not guidelines "issued after January 1, 1991" for purposes of 1991 Conn.Pub.Acts 91-209. Further, the special nature of the Commission For Child Support Guidelines and, in particular, the individualized legislative review and approval provisions provided for future Commission guidelines under 1991 Conn.Pub.Acts 91-209, are such that the commission is not required to follow the "regulation-making" provisions of the UAPA in promulgating child support guidelines.
The Commission for Child Support Guidelines, at its October 24, 1991 meeting, discussed the procedures followed, or required to be followed, in promulgating the Child Support Guidelines for current support issued on January 1, 1991 (effective March 1, 1991), pursuant to Public Act 89-203. These discussions also addressed similar issues as they relate to the procedures the Commission must follow in promulgating arrearage guidelines pursuant to section 7 of P.A. 91-391.
1 See, e.g., Conn.Gen.Stat. § 52-362(d)(d), which requires the Commissioner of Human Resources to adopt regulations providing for a notice and hearing as a prerequisite to certain enforcement actions, "in accordance with Chapter 54". Similar language is routinely used in legislation mandating the procedure for the adoption of regulations by other state agencies as well.