D'Amato v. Government Administration & Elections Committee, No. CV 05-4012032 (CT 3/9/2006)

• Decision Date: 09 March 2006
• Docket Number: No. CV 05-4012032,CV 05-4012032
• Court: Connecticut Supreme Court
• Parties: Michael D'Amato et al. v. Government Administration and Elections Committee et al. Opinion No.: 92654

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Unpublished Opinion

Michael D'Amato et al. v. Government Administration and Elections Committee et al. Opinion No.: 92654

No. CV 05-4012032

Connecticut Superior Court

Judicial District of Hartford at Hartford

March 9, 2006

MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO DISMISS

SAMUEL FREED, JUDGE TRIAL REFEREE.

Factual and Procedural Background

On May 17, 2005, the plaintiffs, Michael D'Amato, Kyle Klewin, Charlie Klewin and Klewin Building Co., Inc., filed a ten-count complaint for injunctive and declaratory relief, seeking protection against the enforcement of legislative subpoenas issued by the defendants, government administration and elections committee (GAEC), Christopher Caruso and Donald DeFronzo.¹ The complaint alleges, in part, that the defendants are not authorized to issue the subpoenas, which sought to compel the attendance of the plaintiffs at committee hearings held in April and May of 2005, that the subpoenas were improperly served and that their issuance fell outside the protections of the speech or debate clause of article third, §15, of the constitution of Connecticut.

On July 8, 2005, the defendants moved to dismiss the plaintiffs' action on the ground that the court lacks subject matter jurisdiction because "the subpoenas were issued in furtherance of the GAEC's consideration of possible revisions to state ethics laws. Thus, the subpoenas fall squarely within the sphere of the GAEC's legitimate legislative activity and, as such, are immune from judicial review under the speech or debate clause of Article Third, §15, of the Connecticut Constitution." The defendants also filed a memorandum of law in support of their motion to dismiss as required by Practice Book §10-31(a),² and on August 4, 2005, the plaintiffs filed a memorandum of law in opposition to the motion to dismiss pursuant to §10-31(b).

Issue

The issue before this court is whether the defendants' issuance of legislative subpoenas against the plaintiffs is protected by the speech or debate clause of Article third, §15, of the constitution of Connecticut.

Discussion and Conclusion

"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction . . . When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . [A] court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Citation omitted; internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005).

"The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . Where, however . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001).

"The plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." Fink v. Golenbock, 238 Conn. 183, 199 n.13, 680 A.2d 1243 (1996). "[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) St. George v. Gordon, 264 Conn. 538, 544-45, 825 A.2d 90 (2003).

The defendants argue in their memorandum of law in support of their motion to dismiss that the issuance of the subpoenas falls within the sphere of the committee's legitimate legislative activity and is therefore protected by the speech or debate clause. The defendants argue that the committee was acting in its legitimate legislative capacity because the purpose for the subpoenas was to obtain testimony at hearings that were held in furtherance of the committee's consideration of possible changes to state ethics laws. They further argue that the court is not permitted to look to the committee's motives in conducting the hearings or issuing the subpoenas to determine their legislative legitimacy and that once the committee's conduct is found to be within the sphere of legitimate legislative activity, the immunity conferred by the speech or debate clause is absolute. They further argue that the subpoenas were properly issued and served.

The plaintiffs argue in opposition that the committee was not authorized to investigate ethics legislation, that the hearings were conducted and the subpoenas were issued in procedurally irregular manners, and that the subpoenas were not served properly.³ Specifically, they argue that Caruso and DeFronzo scheduled hearings and issued subpoenas without the majority approval of the committee as required by the joint rules of the house and senate. They further argue that the deadlines for considering new amendments or proposed bills had passed. The plaintiffs argue that the real purpose of the hearings is to lay a foundation for future criminal proceedings for alleged violations of state ethics laws. These factors, the plaintiffs argue, remove the issuance of the subpoenas from the sphere of legitimate legislative activity and the immunity conferred by the speech or debate clause. They argue that their allegations raise a colorable constitutional claim that the defendant is not acting in a legitimate legislative sphere.

The speech or debate clause of the constitution of Connecticut provides that, "for any speech or debate in either house, [state senators and representatives] shall not be questioned in another place." Conn. Const., art. III, §15. In Office of the Governor v. Select Committee of Inquiry, 271 Conn. 540, 560, 858 A.2d 709 (2004), our Supreme Court noted that while "[o]ur appellate courts previously have not had occasion to consider the meaning of our state constitution's speech or debate clause," Connecticut courts, in deciding cases involving that clause, may seek the guidance of federal law because the state's clause "closely resembles the speech or debate clause contained in article one, §6, of the constitution of the United States . . ." Other states have similarly looked to federal law for guidance in interpreting the speech or debate clauses of their state constitutions. See, e.g., State v. Neufeld, 260 Kan. 930, 939-40, 926 P.2d 1325 (1996). As a preliminary matter, therefore, this court will undertake a review of state and federal case law relevant to the determination to be made in the present case, that is, whether the speech or debate clause of the Connecticut constitution protects the defendants' issuance of subpoenas and therefore deprives this court of subject matter jurisdiction.

"[T]he design of the federal speech or debate clause is to ensure that the legislative branch will be able to discharge its duties free from undue external interference." Office of the Governor v. Select Committee of Inquiry, supra, 271 Conn. 560, citing Eastland v. United States Servicemen's Fund, 421 U.S. 491, 502, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975). "In order to effectuate the important considerations underlying the federal speech or debate clause, the United States Supreme Court has voiced a willingness to interpret the immunity afforded by the clause generously . . ." Office of the Governor v. Select Committee of Inquiry, supra, 561. The Supreme Court of Kansas, in State v. Neufeld, supra, 260 Kan. 930, pointed out this willingness to interpret broadly the immunity afforded by the clause. The Neufeld court noted that all the federal cases that it had found to assist in the interpretation of the Kansas constitution speech or debate clause held that the clause applies to a wide variety of legislative conduct, including "committee reports, resolutions, voting and all things generally done in a legislative session in relation to the business at hand. Hutchinson v. Proxmire, 443 U.S. 111, 61 L.Ed.2d 411, 99 S.Ct. 2675 (1979); United States v. Helstoski, 442 U.S. 477, 61 L.Ed.2d 12, 99 S.Ct. 2432 (1979); Davis v. Passman, 442 U.S. 228, 60 L.Ed.2d 846, 99 S.Ct. 2264 (1979); Eastland v. United States Servicemen's Fund, 421 U.S. 491, 44 L.Ed.2d 324, 95 S.Ct. 1813 (1975); Scheuer v. Rhodes, 416 U.S. 232, 40 L.Ed.2d 90, 94 S.Ct. 1683 (1974); Doe v. McMillan, 412 U.S. 306, 36 L.Ed.2d 912, 93 S.Ct. 2018, motion for clarification denied, 419 U.S. 1043 (1973); [ United States v.] Gravel, 408 U.S. 606 [33 L.Ed.2d 583, 92 S.Ct. 2614 (1972)]; United States v. Brewster, 408 U.S. 501, 33 L.Ed.2d 507, 92 S.Ct. 2531 (1972); Powell v. McCormack, 395 U.S. 486, 23 L.Ed.2d 491, 89 S.Ct. 1944 (1969); Dombrowski v. Eastland, 387 U.S. 82, 18 L.Ed.2d 577, 87 S.Ct. 1425 (1967); [United States v.] Johnson, 383 U.S. 169; Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377 (1880)." State v. Neufeld, supra, 260 Kan. 939-40.

As broadly as the clause has been construed, however, the immunity conferred by it is not limitless. Office of the Governor v. Select Committee of Inquiry, supra, 271 Conn. 562. "[E]ven for conduct within the penumbra of legislative activities, the immunity conferred by the federal speech or debate clause is limited to conduct occurring within the sphere of legitimate legislative activity." (Emphasis added; internal quotation marks omitted.) Id., 563. In United States v. Brewster, supra, 408 U.S. 501, for example, the clause did not extend to protect a legislator from prosecution for bribery charges because such prosecution did not require an inquiry...