Opinion
NNHCV146046516
11-01-2016
Gerardo Monge v. Gary Acabbo
UNPUBLISHED OPINION
CORRECTED RULING RE BILL OF COSTS
Steven D. Ecker, J.
This case presents an interesting problem of statutory construction under General Statutes § 1-2z. The issue arises in a routine personal injury case, tried to a jury, resulting in a verdict in favor of plaintiff Gerardo Monge. The jury awarded damages of $3,124.10. Judgment was entered in that amount on June 8, 2016. Plaintiff timely filed a bill of costs seeking various items to be taxed against defendant. Defendant objected to a number of those items on the ground that the particular expenses are not recoverable as costs under General States § 52-257. Most of the disputed issues are easily resolved, and do not warrant discussion, but one question raised by defendant is not so simple. Among other things, the bill of costs seeks recovery of the $350.00 court entry fee was paid by plaintiff when the writ, summons and complaint were returned and filed with the clerk of the superior court in New Haven. Although this fee, by custom and practice, has long been treated as a taxable cost recoverable by a prevailing plaintiff, the defendant challenges that tradition as unfounded based upon the plain language of the relevant statute.
Court entry fees are set by statute, in an amount that varies depending on the nature of the filing, the nature of the case, and the court in which the filing is made. See General Statutes § 52-259. Not surprisingly, the amount of the entry fee is changed by the legislature from time to time. The entry fee paid by plaintiff in the present case was $350.00. See May 9 Sp. Sess. P.A. 02-1 (effective July 1, 2002), codified as General Statutes § 52-259(a). Section 52-259 itself does not contain any provision making the entry fees taxable as costs.
It turns out that defendant's position, though counter-intuitive, and contrary to custom and practice, is correct as a textual matter. Section 52-257 enumerates with particularity various items as taxable costs; court entry fees are not included in that itemization. Nor is the court entry fee included as a taxable cost in any related statute. The remainder of this decision examines what this omission means for the purpose of deciding defendant's objection to plaintiff's request to recover the $350.00 entry fee as a taxable cost.
We begin with the accepted premise that " the law expects parties to bear their own litigation expenses, except where the legislature has dictated otherwise by statute." Traystman, Coric & Keramidas, P.C. v. Daigle, 282 Conn. 418, 429, 922 A.2d 1056 (2007). " Costs are the creature of statute . . . and unless the statute clearly provides for them courts cannot tax them." Waterbury v. Macken, 100 Conn. 407, 413, 124 A. 5 (1924), appeal dismissed, 273 U.S. 646, 47 S.Ct. 244, 71 L.Ed. 820 (1926); Verrastro v. Sivertsen, 188 Conn. 213, 217, 448 A.2d 1344 (1982) (citing cases); Boczer v. Sella, 113 Conn.App. 339, 343, 966 A.2d 326 (2009). Litigation expenses include court fees, and so the narrow issue presented here is whether any statutory basis exists in Connecticut authorizing (" clearly provid[ing] for") taxation of the court entry fee as a recoverable cost.
The rules of construction are well known. Three of the most prominent rules have direct relevance to the present case. First is the cardinal rule establishing the primacy of the statutory text. Codified at General Statutes § 1-2z, the " plain meaning" rule provides:
The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not lead to absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. General Statutes § 1-2z.
Tuxis Ohio Fuel Co. v. Administrator, Unemployment Compensation Act, 309 Conn. 412, 421-22, 72 A.3d 13 (2013). Only if the statute is not plain and unambiguous may a court " look 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." Id. at 422. Interestingly, the plain meaning rule is expressed as an evidentiary prohibition directed to a court engaged in the task of determining the meaning of a statute: " extratextual evidence shall not be considered" if the meaning of the statutory text, viewed in light of any related statutes, is " plain and unambiguous and does not lead to absurd or unworkable results . . ."
The second relevant rule applies to the construction of a statute containing a list or enumeration of things, events, actions or other items subject to the statute's terms, and instructs that " when a legislature expresses items as part of a group or series, an item that was not included was deliberately excluded." DeNunzio v. DeNunzio, 320 Conn. 178, 194, 128 A.3d 901 (2016). This doctrine is often expressed in the Latin phrase, inclusio unius est exclusio alterius. Id.; see also Felician Sisters of St. Francis of Connecticut, Inc. v. Historic District Commission, 284 Conn. 838, 851, 937 A.2d 39 (2008). For example, a statute containing a particularized enumeration of recoverable costs should be understood to reflect a legislative intention to exclude costs that are not contained in the statutory enumeration.
The rule does not apply if the statutory list is intended to be non-exclusive. See, e.g., Eastern Connecticut Cable Television, Inc. v. Montville, 180 Conn. 409, 413, 429 A.2d 905 (1980) (explaining rule of " ejusdem generis ").
The third relevant rule of construction is a cautionary statement to judges regarding their constitutionally limited role in the field of statutory interpretation. " [A] court may not by construction supply omissions in a statute simply because it appears that good reasons exist for adding them . . ." Battersby v. Battersby, 218 Conn. 467, 470-71, 590 A.2d 427 (1991); see also Costantino v. Skolnick, 294 Conn. 719, 736, 988 A.2d 257 (2010) (" this court cannot, in the interest of public policy, engraft amendments onto the statutory language" (citations omitted)); PJM and Associates v. City of Bridgeport, 292 Conn. 125, 138, 971 A.2d 24 (2009) (" courts must interpret statutes as written, and cannot, by judicial construction, read into them provisions which are not clearly stated") (quotation marks and citations omitted); Doe v. Norwich Roman Catholic Diocesan Corp., 279 Conn. 207, 216, 901 A.2d 673 (2006) (" It is axiomatic that the court itself cannot rewrite a statute to accomplish a particular result. That is a function of the legislature." (internal quotation marks omitted)); Johnson v. Manson, 196 Conn. 309, 315, 493 A.2d 846 (1985) (" We must construe the act as we find it, without reference to whether we think it would have been or could be improved by the inclusion of other provisions" (citations omitted)). Judges are not legislators.
Turning to the present case, plaintiff contends that the court entry fee is taxable under the authority of General Statutes § 52-257(b)(6). All of § 52-257(b) will be quoted here because, as we shall see, the meaning of (b)(6) can be apprehended only by reading it as part of a larger structure:
(b) Parties shall also receive: (1) For each witness attending court, the witness' legal fee and mileage; (2) for each deposition taken out of the state, forty dollars, and for each deposition within the state, thirty dollars; (3) on an application for the sale of property attached, the expenses incurred; (4) in any civil action affecting the title to real property situated in this state, or affecting any mortgage or lien thereon, the actual expense, not exceeding the sum of two hundred twenty-five dollars, of an examination of the land records concerning the title to the real property in question and such amount as the court or judge determines to be reasonable for the services of an expert on the value of the land when such value is in dispute; (5) for maps, plans, mechanical drawings and photographs, necessary or convenient in the trial of any action, a reasonable sum; (6) for copies of records used in evidence, bonds, recognizances and subpoenas, court and clerk's fees; (7) for the signing and service of process, the legal fees payable therefor, except that a fee shall not be allowed for the return of a subpoena to court; (8) the actual expense incurred in publishing orders of notice under direction of the court; (9) for each interpreter necessarily employed in the trial of any civil action, twenty dollars per diem; (10) for premiums upon all bonds or undertakings provided pursuant to statute, rule of court, order of court or stipulation of parties, including bonds in lieu of or in release or dissolution of attachment, the actual amount paid, not exceeding a reasonable amount; (11) documented investigative costs and expenses, not exceeding the sum of two hundred dollars; and (12) for the recording, video-taping, transcribing and presentation of the deposition of a practitioner of the healing arts, as defined in section 20-1, dentist, registered nurse, advanced practice registered nurse or licensed practical nurse, as defined in section 20-87a, or real estate appraiser that is used in lieu of live testimony in the civil action, the reasonable expenses incurred.
Plaintiff relies on the language in (b)(6), which he argues authorizes taxation of costs " . . . [for copies of records used in evidence, bonds, recognizances and subpoenas, [and] court and clerk's fees . . ." (Emphasis added.) A cursory and casual reading of this provision, and the underscored language in particular, appears at first glance to provide a plausible textual basis for plaintiff's position. Additional support is supplied by the (extra-textual) fact that the court entry fee, as a matter of custom and practice, is routinely taxed in favor of a prevailing plaintiff. The item is included as a taxable cost in the model " Plaintiff's Bill of Costs" contained in the unofficial Connecticut standard form book, 3A J. Kaye and W. Effron, Connecticut Practice Series: Civil Practice Forms, Form S-160 (4th ed. 2011); in the official judicial branch Form JD-CV-49 (entitled " Motion for Default for Failure to Appear, Judgment and Order for Weekly Payments"); and in countless published and unpublished orders issued over the years, see, e.g., American Express Centurion Bank v. Pontillo, No. CV-14-6043603, 2015 WL 1014895, *4 (J.D. Fairfield, February 17, 2015) (awarding court entry fee as taxable cost, without citation to statute); Abbas v. Avignone, No. CV-11-6021594, 2013 WL 4046592, *5 n.8 (J.D. New Haven, July 18, 2013) [56 Conn.L.Rptr. 538, ] (awarding court entry fee of $300.00 as taxable cost pursuant to § 52-257(b)(6)); Samuel v . Annunziata, No. CV-03-0480694, 2005 WL 2363469, *1 (J.D. New Haven, August 25, 2005) (awarding court entry fee of $225.00 as taxable cost, without citation to statute); Flores v. Jenison, No. CV-01-0278648, 2004 WL 1559488, *7 (J.D. New Haven, June 23, 2004) [37 Conn.L.Rptr. 328, ] (awarding entry fee of $190.00 as taxable cost pursuant to § 52-257(b)(6)); Label Systems Corp. v. Aghamohammadi, No. X02-CV-93-0156709, 2002 WL 1843051, **6 (J.D. Waterbury, July 12, 2002) (noting that court entry fee of $200.00 had been awarded to plaintiff as a taxable cost, without citation to statute); Wedge v. Gee, No. CV-92-0338299, 1996 WL 367725, *2 (Superior Court, June 5, 1996) (" The court entry fee of $150.00 is clearly covered by [§ 52-257(b)] quoted above."); Krupien v. Bethany, No. CV-92-278666, 1992 WL 204616, *1 (J.D. New Haven, August 4, 1992) (stating intention to award " taxable costs and fees such as the entry fee, sheriff's fee and jury fee").
But the plain meaning rule is not the " cursory and casual" meaning rule, and a more careful review of the statutory provision reveals, very clearly, a fatal defect in plaintiff's proffered construction. The first hint of a misreading is that plaintiff's construction requires us to add a conjunction (" and") to the terminal clause " . . . bonds, recognizances and subpoenas, [ and ] court and clerk fees"). The use of a double conjunction (" and" in the penultimate clause, then a second " and" in the terminal clause) is odd enough to raise an eyebrow, because the items in the penultimate clause (recognizances and subpoenas) would not naturally be conjoined in this fashion except in a terminal clause. This oddity does not itself point to a particular meaning, but it raises a red flag indicating the need to pay closer attention to the text.
The oddity of the double conjunction would disappear if the statute said " bonds and recognizances, subpoenas, and court and clerk's fees." Bonds and recognizances serve a similar function in law, and it would have been sensible if the legislature had chosen to conjoin those items in a single clause. The same cannot be said of recognizances and subpoenas in this context.
The impossibility of plaintiff's construction becomes obvious upon examination of the distinctive syntactical structure used by the legislature in its enumeration of taxable costs in § 52-257. Section 52-257(a) sets the stage for this analysis because it contains the same unusual syntax that the legislature employs in its enumeration of taxable items in § 52-257(b)--including § 52-257(b)(6). Section 52-257(a) states, in relevant part, that a
prevailing party in such a civil action [in which the amount in demand is not less than $15,000] shall receive, by way of indemnity, the following sums: (1) For all proceedings before trial, fifty dollars; for the trial of an issue of an issue of law or fact, seventy-five dollars . . . and (3) in difficult or extraordinary cases in the Superior Court, where a defense has been interposed, a further allowance, in the discretion of the court, not to exceed two hundred dollars.
The important thing to notice is that § § 52-257(a)(1) through (3), above do not say that a prevailing plaintiff shall receive indemnity in the amount of X dollars for all Y proceedings. Rather, the statute inverts the order of the two component parts; using a comma to indicate the inversion, the provisions state that a prevailing plaintiff shall receive " for Y proceedings, X dollars." This construction, called " syntactical inversion, " is not an uncommon rhetorical technique. The inversion reverses or alters the usual order of words in a sentence for the purpose of emphasis or effect. Each of the three indemnity provisions in § 52-257(a), quoted above, uses this inverted structure.
Section 52-257(b) employs the very same syntactical structure to itemize almost all of the twelve categories of costs that the legislature has chosen to authorize as taxable in favor of the prevailing plaintiff in civil cases within the scope of the statute. See above at pp. 3-4 (quoting entire subsection). Each enumerated item that begins with a preposition (for, in or on) follows the same syntactical pattern: rather than saying that a prevailing plaintiff shall receive X amount for the particular category of Y allowable expense, the provisions invert the syntax to say that a prevailing plaintiff, for the specified Y expenditure, shall receive X amount. Thus, § 52-257(b)(1) provides that the prevailing plaintiff shall receive, as a taxable cost, the witness fee and mileage paid by plaintiff for each witness attending court; § 52-257(b)(2) provides that the prevailing plaintiff shall receive, as a taxable cost, forty dollars for each deposition taken by plaintiff out of state, and thirty dollars for every in-state deposition; § 52-257(b)(3) provides that the prevailing party shall receive, as a taxable cost, the expenses incurred by plaintiff on an application for the sale of property, etc. The pattern is unmistakable and deliberate.
The witness fees referenced in this provision appear to be those fees required to be paid to witnesses under General Statutes § 52-260.
Following this same pattern, § 52-257(b)(6) provides that a prevailing plaintiff shall receive, as a taxable cost, the court costs and clerk's fees paid by plaintiff for copies of records used in evidence, bonds, recognizances and subpoenas . The language allows no other possible meaning. The statute does not provide that all court costs and clerk's fees are taxable, but, rather, includes only costs and fees charged by the clerk for the specified items (i.e., copies of records used by the plaintiff in evidence, bonds, recognizances and subpoenas). In light of the grammatical structure used consistently throughout the statute, this is the only reasonable interpretation of the text. Court entry fees are not mentioned, which means that those fees are not taxable as costs.
" [A prevailing plaintiff] shall also receive . . . (6) for copies of records used in evidence, bonds, recognizances and subpoenas, court and clerk's fees . . ."
The plain meaning of the statutory text is confirmed by reference to the legal principles and rules of construction noted earlier in this memorandum. See pp. 2-3 above. It simply cannot be said that § 52-257(b) " clearly provides" for taxation of the court entry fee. To the contrary, the inclusio unius canon compels the opposite conclusion. The legislature, when it wants to do so, knows how to write a statute authorizing a particular litigation expense as a taxable cost. General Statutes § 52-258, which imposes a " jury fee" of $425.00 on a party claiming a case to the jury docket, explicitly states that " [t]he jury fee shall be taxed in favor of the party paying the jury fee in the bill of costs in the action, if final judgment thereon is rendered in such party's favor." Section 52-259(a), the provision requiring payment of the court entry fee, stands in stark contrast in this regard; it says nothing about the entry fee being taxable. Nor does any other statute appear to authorize taxation of court entry fees in favor of a prevailing plaintiff. The failure to include the court entry fee as a taxable cost seems particularly meaningful in a statutory landscape featuring numerous examples of the legislation expressly authorizing taxation of other specified litigation-related expenses. See, e.g., Felician Sisters of St. Francis, supra, 284 Conn. at 851 (when legislature " desires to do so, " it knows how to draft the necessary statutory language).
Other statutes do the same. See, e.g., General Statutes § 52-260(d) (providing for taxation as costs of specified witness fees); General Statutes § 52-261 (providing for taxation as costs of various fees charged for service of certain types of process, custodial care of property subject to attachment or execution, etc.).
With enough effort, it probably is possible to locate ambiguity in any text. But if General Statutes § 1-2z imposes a meaningful limitation on the judicial role in the field of statutory construction, then it must be understood to reject the view that ambiguity is a universal feature of all language. In the court's view, § 52-257(b)(6) is unambiguous in the sense intended by § 1-2z because the statutory text, taken literally, has a clear and certain meaning, and that meaning is not affected (indeed, it is only reinforced) by reference to related statutes currently in effect. A slight shadow of uncertainty arguably might appear by searching behind the surface of the text for what exactly the legislature had in mind when it referred to " court and clerk's fees" for bonds, recognizances and subpoenas. For two reasons, however, the lack of absolute clarity on this particular point does not create any textual ambiguity in connection with the issue before the court. First, the obscurity of the statutory reference to fees for specified items does not identify a linguistic ambiguity so much as a historical curiosity; the statutory scheme governing both court/clerk's fees and taxation of costs have roots deep into the nineteenth century, and various legal processes and procedures which today are available without any official charge were previously subject to fees payable to the court or clerk. See, e.g., General Statutes (1866 Rev.), tit. 53, § 6 (establishing a clerk's fee for a variety of services, including, " [for each recognizance, nine cents"). The possibility of antiquated references in the statute may make its precise meaning unclear in certain respects, but a text is not ambiguous merely because its references are, in part, outdated. Second, a statute is not ambiguous under § 1-2z unless there is more than one plausible interpretation of its language. See, e.g., State v. Johnson, 301 Conn. 630, 650, 26 A.3d 59 (2011) (" because both interpretations are plausible, the statute is ambiguous"); State v. Orr, 291 Conn. 642, 654, 969 A.2d 750 (2009) (" our case law is clear that ambiguity only exists if the statutory language is susceptible to more than one plausible interpretation"). Plaintiff's construction of § 52-257(b)(6) is implausible, and even incoherent. It leaves the provision without any meaning by creating a gaping hole in its center. In plaintiff's version, the prevailing party " shall receive . . . [ what ?] . . . for copies of records used in evidence, bonds, recognizances, and subpoenas, [and] court and clerk's fees." A construction that removes the object of the sentence is not a plausible construction. The statute is not ambiguous, because there is no plausible alternative construction.
Neither party has raised a constitutional challenge to § 1-2z. See, e.g., Kinsey v. Pacific Employers Insurance Co., 277 Conn. 398, 414-15, 891 A.2d 959 (2006) (Borden, J., concurring) (expressing view that there is a " serious constitutional question" under the separation of powers doctrine regarding the constitutionality of Section 1-2z).
In the parlance of § 1-2z, this question may be less about textual ambiguity per se than about the consequences of reading the text literally, that is, whether the plain meaning of the text, when applied functionally, leads to " absurd or unworkable results." This latter issue is examined separately below. Posing the question first as one about textual ambiguity seems valid, however, because the ambiguity of a text sometimes becomes apparent only upon examining the results of a literal reading. The two inquiries can overlap.
It also is necessary to ask whether the plain meaning of the statute, as posited, would produce an absurd or unworkable result, because § 1-2z expressly releases a court from the strictures of the plain meaning rule if adherence to the literal text of the statute would produce such a result See Desrosiers v. Diageo North America, Inc., 314 Conn. 773, 784-86, 105 A.3d 103 (2014). In the court's view, the question of absurdity presents a fairly close case under these circumstances, but ultimately the question cannot be resolved in plaintiff's favor. The court readily acknowledges that the result urged by plaintiff makes good sense. It seems far more reasonable, as a matter of policy, to treat the court entry fee as a taxable cost. Indeed, it is not easy to articulate a meaningful difference between a court entry fee, on the one hand, and taxable items such as jury fees, witness fees, service-of-process fees, interpreter fees, investigative expenses, and the like. The incongruity may even be said to verge on the absurd, if " absurd" means a statutory distinction that cannot be justified solely by reference to a principled difference between everything that is included and everything that is excluded. But this cannot be the definition of " absurd" in this context. Almost all rules (and statutes using rule-like categories or distinctions) have this characteristic. See, e.g., Cormier v. Commissioner of Motor Vehicles, 105 Conn.App. 558, 567, 938 A.2d 1258 (2008) (upholding constitutionality of statute establishing licensing distinction based on vehicle weight being over/under 26, 001 pounds); see generally Kathleen M. Sullivan, The Supreme Court: 1991 Term-Foreword: The Justices of Rules and Standards, 106 Harv. L.Rev. 22, 58 (1992) (" A rule necessarily captures the background principle or policy incompletely and so produces errors of over-or under-inclusiveness"). As observed earlier, it is not a judge's job to re-draw these lines to correct perceived oversights or otherwise improve the legislative scheme. See p. 3 above. To the contrary, as long as constitutional limitations are respected, the legislature is free to draw statutory lines where it will, without being subject to judicial second-guessing. Moreover, the particular statutory scheme at issue here, governing taxation of costs, is notoriously parsimonious--prevailing parties typically recover only a small fraction of their actual litigation expenses under the American Rule, see p. 2 above, and it cannot be said that the legislature has made an absurd decision by choosing to draw the line in one place rather than another by excluding court entry fees from the list of taxable costs in § 52-257.
Perhaps that should be the end of the analysis. An honest application of the plain meaning rule usually stops here: the text has spoken. But honesty also demands an acknowledgment that doubt remains. The legislative choice under review is odd enough to cause one to ask whether the policy choice reflected in the literal language of the statute was a choice ever really made by the legislature. The question is not whether the court should " improve" the statute by supplying an omitted term because it appears that good reasons exist for doing so; that is not the judicial function. The question, rather, is whether an actual, literal mistake --a scrivener's error of some kind--was made at some point in the legislative process, such that supplying the omitted term (i.e., including the court entry fee as a recoverable cost under § 52-257(b)) actually honors the legislative intention. See, e.g., United States National Bank of Oregon v. Independent Insurance Agents of America, Inc., 508 U.S. 439, 462, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993) (Finding that punctuation appearing in a 1916 federal statute " was a simple scrivener's error, a mistake made by someone unfamiliar with the law's object and design"); see generally Michael S. Fried, A Theory of Scrivener's Error, 52 Rutgers L.Rev. 589 (2000) (discussing " scrivener's error" doctrine of statutory interpretation).
Connecticut's appellate courts have not yet had occasion to determine whether the scrivener's error doctrine is accepted as a tool of statutory construction in this state. See State v. Courchesne, 262 Conn. 537, 569 n.26, 816 A.2d 562 (2003) (observing that " [a]lthough we have not confronted it in our jurisprudence, " the scrivener's error doctrine is recognized as a " commonly accepted exception to the plain meaning rule"); id. at 630 n.22 (Zarella, J., dissenting, emphasizing that the Connecticut Supreme Court has not decided whether to adopt the doctrine). This court cannot know if a higher court in Connecticut would adopt the doctrine, nor can the court predict what the precise contours of the doctrine, if adopted, would look like. This court's best guess is that some version of the doctrine would be accepted as part of a judge's analytical repertoire in the field of statutory construction. See Fried, A Theory of Scrivener's Error, supra, 52 Rutgers L.Rev. at 599 (noting the " near unanimity among courts in accepting the power to correct statutory scrivener's error"). Drafting mistakes undoubtedly occur in the legislative process as in every other field of writing, and although it plainly would be best in the usual course to allow the legislature to correct its own mistakes, there will be times when an error remains undiscovered, or legislative priorities and/or resources result in deferred statutory maintenance, or corrective action is not taken for other reasons. There is no prohibition against judicial assistance in this regard, if the error is brought to the attention of a court in the context of a justiciable case or controversy. Cf. Massameno v. Statewide Grievance Committee, 234 Conn. 539, 552, 663 A.2d 317 (1995) (noting overlapping and cooperative roles of three different departments of government). A judicial role seems particularly appropriate if the existence of the scrivener's error is clear enough, and the necessary correction is uncontroversial in nature.
Courchesne was superseded by statute upon enactment of General Statutes § 1-2z.
See Fried, A Theory of Scrivener's Error, supra, 52 Rutgers L.Rev. at 589, 594, 598 (examples); David M. Sollors, The War on Error: The Scrivener's Error Doctrine and Textual Criticism: Confronting Errors in Statutes and Literary Texts, 49 Santa Clara L.Rev. 459, 460 (2009) (" Certainly legislation, which can deal with very technical matters in minute detail and at great length, and which is often subject to repeated revisions throughout the drafting process, is as prone to error as any other textual medium").
Section 1-2z does not appear to bar a court from recourse to the scrivener's error doctrine, at least not in a case where the existence of the scrivener's error becomes evident by reference to either the literal text of a statute or other statutes--including predecessor statutes. To the contrary, § 1-2z instructs courts to ascertain the meaning of a statute from the text of that statute " and its relationship to other statutes, " without limiting that comparative analysis only to other statutes then in effect . The evidence of a scrivener's error in the present case comes from an examination of earlier versions of the statute under review, § 52-257, as the text following this footnote explains.
In the present case, reference to historical sources indicates that all court and clerk's fees, including the court entry fee at issue in this case, at one time were recoverable in Connecticut as taxable costs under predecessor statutes to § 52-257. Case references to such costs are infrequent, but exist. See Seeley v. Gwillim, 40 Conn. 106, 111 (1840) (Reporter's Note) (noting award to plaintiff " for the writ, officer's fees, and half the court and clerk fees"). More to the point, the 1866 version of the Connecticut statute governing taxation of costs plainly authorizes recovery of such fees, by providing that the " fees of parties in civil proceedings, which may be taxed in bills of cost shall [include] . . . for the signing of process, for bonds, recognizances, court fees and clerk fees, the sums fixed by law for such services respectively ." General Statutes (1866 Rev.), tit. 53, § 7 (emphasis added). By 1875, the statutory scheme for taxation of costs had changed in certain respects, but still authorized a court to tax costs incurred by the prevailing party " for copies of records used in evidence, bonds, recognizances, subpoenas, court and clerk's fees, and for the signing of service of process, the legal fees payable therefor, except that no fees will be allowed for the return of a subpoena to court." General Statutes (1875 Rev.), ti. 13, c. 13. This language was preserved in the 1888 revision of the General Statutes as well. See General Statutes (1888 Rev.) § 3720.
Due to its length, the entire provision, as codified in 1866, will not be quoted here, but it is appropriate to reproduce the portion of the statute immediately before and after the " court and clerk's fees" provision, because the context helps show its relationship to the current version in § 52-257(b). The 1866 version states, in pertinent part:
The fees of parties in civil proceedings, which may be taxed in bills of cost, shall be as follows, to wit . . .For each witness attending court, thirty-four cents a day.For travel of witnesses to court, five cents a mile . . .For each deposition taken out of the state, one dollar and fifty cents.For each deposition taken within the state, sixty-seven cents.For attorney fee in the superior court, where the matter in demand is less than one hundred dollars, one dollar and thirty-four cents; and where the matter in demand is more than one hundred dollars or more, two dollars and sixty-eight cents.For each bill in form, at the rate of twenty-five cents for each page of two hundred and eighty words.For the signing of process, for bonds, recognizances, court fees and clerk fees, the sums fixed by law for such services respectively.For each subpoena for witnesses, twenty-five cents . . .
The pertinent portion of the statute, as codified in the 1875 revision of the General Statutes, states:
[F]or each witness attending court his legal fee and mileage. Each deposition if taken out of the State five dollars, but if taken in the State three dollars; the expenses incurred in an application [f]or the sale of property attached; for maps, when necessary, in trials involving title to, or easements in, real estate, a reasonable sum; for copies of records used in evidence, bonds, recognizances, subpoenas, court and clerk's fees, and for the signing and service of process, the legal fees payable therefor, except that no fees will be allowed for the return of a subpoena to court.
The 1888 version states:
[P]arties shall also receive for each witness attending court his legal fee and mileage; each deposition if taken out of the State, five dollars, but if taken in the State, three dollars; the expenses incurred on an application for the sale of property attached; for maps, when necessary, in trials involving title to, or easements in, real estate, a reasonable sum; for copies of records used in evidence, bonds, recognizances, supoenas, court and clerk's fees, and for the signing and service of process, the legal fees payable therefor, except that no fees will be allowed for the return of a subpoena to court.
Things changed with the enactment of chapter 83 of the Public Act 1893, § 2, which amended the relevant portion of Section 3720 to provide for taxation of costs in the following language, which should be very familiar to a reader of 52-257(b) today:
Parties shall also receive, for each witness attending court, his legal fee and mileage; for each deposition if taken out of the state, five dollars; taken within the state, three dollars; on an application for the sale of property attached, the expenses incurred; for maps, when necessary in trials involving title to or easement in real estate, a reasonable sum; for copies of records used in evidence, bonds, recognizances, and subpoenas, court and clerk's fees; for the signing and service of process, the legal fees payable therefor except that no fee shall be allowed for the return of a subpoena to court. [Codified as General Statutes (1902 Rev.) § 4840.]
Here we see a major--if unintended--change in the provision for taxation of court and clerk's fees. Prior to the 1893 amendment, the statute had included court and clerk's fees as part of a list of items (i.e., copies of records used in evidence, bonds, recognizances, subpoenas, and the signing of service of process) for which the prevailing party could recover, as taxable costs, the associated statutory fees (" the legal fees payable therefor, " or " the sums fixed by law for those services"). The 1893 amendment inexplicably inserted a semi-colon (and added the word " for") immediately after the phrase " court and clerk's fees." Because of the inverted syntactical structure used in the statute, see above at pp. 5-6 above, this amendment had the effect of removing the phrase " court and clerk's fees" from the list of items (including everything from " copies of items used in evidence" to " the signing and service of process") for which a party could be reimbursed, and instead transformed the phrase into a description of what a party could recover as costs for the enumerated items (now limited to " copies of records used in evidence, bonds, recognizances, and subpoenas"). Under the 1893 amendment, in other words, a party could recover only the amount of court and clerk's fees charged for copies of records used in evidence, bonds, recognizances, and subpoenas. This change has been retained ever since, and appears today in § 52-257(b)(6).
It is clear to the court that this change was the result of a scrivener's error in 1893. The court has been unable to confirm this conclusion by reference to extra-textual historical evidence, but a scrivener's error provides the only conceivable explanation for the bizarre textual swerve that occurred in 1893. Very likely, a legislative clerk or aide, instructed to revise the statute for simplicity and uniformity, erroneously added an extra semi-colon, and thereby unintentionally rearranged the terms in a way that subtly but undeniably impaired the logic of the statutory enumeration. No other explanation seems plausible. Indeed, after giving the matter considerable thought, the court has been unable to hypothesize any other possible scenario. Accordingly, the statute will be construed to correct for this scrivener's error, and costs will be taxed for the court entry fee paid by plaintiff in this case.
Earlier in this memorandum, the court concluded that the literal words used in § 52-257(b)(6) lead to results that may be characterized as odd or archaic, but not absurd. See above at pp. 7-9. The absurdity doctrine doubtlessly would provide a more straightforward path to the outcome reached here. If it is " absurd" to exclude court entry fees from the enumeration of taxable costs under § 52-257(b), however, the absurdity does not emanate from the text of the statute itself, but emerges upon consideration of the historical context provided above.
Costs shall be taxed as follows:
Complaint C.G.S. § 52-257(a)
$15.00
Proceedings Before Trial C.G.S. § 52-257(a)(1)
$50.00
Trial C.G.S. § 52-257(a)(2)
$75.00
Depositions (three in-state) C.G.S. § 52-257(b)(2)
$90.00
Court Entry Fee C.G.S. 52-257(b)(6)
$350.00
Service of Process Fee C.G.S. 52-257(b)(7)
$219.39
Investigative Costs, Photos, C.G.S. 52-257(b)(5), (6), (11)
$137.52
& Copies of Records Used
in Evidence]
Dr. Morrow C.G.S. § 52-260(f)
$807.45
TOTAL
$1,744.36
It is so ordered.