Hartford Cty. Sheriffs Dept. v. Blumenthal

• Decision Date: 01 August 2001
• Docket Number: No. CV00-0093389S.,No. CV00-0093248S.,No. CV00-0093035S.,No. CV00-0092577S.,No. CV00-0092936S.,No. CV00-0093552S.,No. CV00-0092504S.,No. CV00-0092528S.,No. CV00-0093202S.,No. CV00-0093517S.,CV00-0093035S.,CV00-0093202S.,CV00-0092528S.,CV00-0092936S.,CV00-0093248S.,CV00-0093389S.,CV00-0092504S.,CV00-0092577S.,CV00-0093517S.,CV00-0093552S.
• Court: Connecticut Superior Court
• Parties: HARTFORD COUNTY SHERIFFS DEPARTMENT COMMUNITIES CHARITIES ASSOCIATION v. Richard BLUMENTHAL, Attorney General. George Hammel v. Richard Blumenthal, Attorney General. Charles Valentino v. Richard Blumenthal, Attorney General. Ronald Kadar v. Richard Blumenthal, Attorney General. Richard Moccia v. Richard Blumenthal, Attorney General. Patricia Randall v. Richard Blumenthal, Attorney General. Thomas White, et al. v. Richard Blumenthal, Attorney General. Michael Piccoli, et al. v. Richard Blumenthal, Attorney General. Mark Pesiri v. State of Connecticut, et al. William J. Nolan v. Richard Blumenthal, Attorney General.

806 A.2d 1158

47 Conn.Sup. 447

HARTFORD COUNTY SHERIFFS DEPARTMENT COMMUNITIES CHARITIES ASSOCIATION v. Richard BLUMENTHAL, Attorney General.

George Hammel v. Richard Blumenthal, Attorney General.

Charles Valentino v. Richard Blumenthal, Attorney General.

Ronald Kadar v. Richard Blumenthal, Attorney General.

Richard Moccia v. Richard Blumenthal, Attorney General.

Patricia Randall v. Richard Blumenthal, Attorney General.

Thomas White, et al. v. Richard Blumenthal, Attorney General.

Michael Piccoli, et al. v. Richard Blumenthal, Attorney General.

Mark Pesiri v. State of Connecticut, et al.

William J. Nolan v. Richard Blumenthal, Attorney General.

No. CV00-0093035S.

No. CV00-0093202S.

No. CV00-0092528S.

No. CV00-0092936S.

No. CV00-0093248S.

No. CV00-0093389S.

No. CV00-0092504S.

No. CV00-0092577S.

No. CV00-0093517S.

No. CV00-0093552S.

Superior Court of Connecticut.

August 1, 2001.

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Weisman & Hillman, for the named plaintiff et al. in each case.

Robert B. Teitelman and Clare E. Kindall, assistant attorneys general, with whom was Richard Blumenthal, attorney general, for the named defendant et al. in each case.

MIANO, J.

The defendant attorney general, pursuant to information provided to his office, served various subpoenas duces tecum, requesting certain documents, upon the following entities (and in some instances their respective banking institutions): The Hartford County Sheriffs Department Community Charities Association, Inc., Edward B. Glanz, president; deputy sheriff of Fairfield county George F. Hammel; deputy sheriff of Fairfield county Ronald Z. Kadar; Richard Moccia; deputy sheriff of New Haven county William J. Nolan; sheriff of Tolland County Michael Piccoli and chief deputy sheriff of Tolland County Sharon Uhlman; deputy sheriff Mark Pesiri; Patricia Randall; sheriff of Fairfield county Charles Valentino, Sr.; sheriff of Windham county Thomas W. White and chief deputy sheriff of Windham county Frank A. Zak, Jr.; all hereinafter referred to as the plaintiffs.

The cases come before this court in complaints to quash subpoenas filed by the various named plaintiffs against the attorney general as defendant.

The attorney general is engaged in an ongoing investigation and claims authority for the issuance of the subpoenas pursuant to the investigatory powers provided in General Statutes § 4-61dd.¹ Section 4-61dd has been identified in the vernacular as "the whistleblower statute."

The plaintiffs filed suit in the Superior Courts throughout the state seeking an order quashing the subpoenas. Judge Robert C. Leuba, then chief court administrator, ordered the cases consolidated, and the cases were assigned to this court. During the pendency of these actions, a constitutional amendment was passed which abolished the office of high sheriff. Conn. Const., amend. XXX § 1. On December 1, 2000 the county sheriffs' functions were transferred to the judicial branch of our state government. General Statutes §§ 6-32d, 6-32f and 6-33. Although the change in our constitution rendered moot some of the outstanding subpoenas, there is still a live controversy concerning records and documents which may have been removed from the sheriffs' offices prior to the transfer, as well as all the requested records and documents held by the deputy sheriffs, the sheriffs association, the charity and the banks.

The plaintiffs have raised various claims as to why the subpoenas should be quashed. Based on the arguments of the parties, and a review of the relevant cases, this court determines that the complaints to quash the subpoenas are denied. The plaintiffs are ordered to comply with the outstanding subpoenas within twenty (20) days of the filing of this memorandum of decision.

This court does not intend to present an exhaustive history of the administrative power of investigation. For such an overview, the interested party is directed to 1 K. Davis & R. Pierce, Administrative Law Treatise (3d Ed.1994) § 4.1, pp. 133-41. A modest review of federal case law in this area, however, would be helpful to our task. One must be mindful that the study of administrative law is a relatively new field in our jurisprudence and brings with its study a different perspective as to the scope of judicial review. According to Davis and Pierce, in the late nineteenth and early twentieth centuries, the justices of the United States Supreme Court perceived governmental intervention as an evil to be tolerated only in unusual circumstances. Id., at 141. "They also acknowledged only a limited role for the national government. By 1940, the Court had internalized the prevailing political views of the electorate, as those views were revealed by Congress and the President. The Court accepted the concept of positive government and the potential for governmental intervention to produce desired results. It also acquiesced in a much broader role for the national government. Once the Court accepted the possibility of beneficial positive government at the national level, it had no choice but to acquiesce in the exercise of broad investigatory powers by federal agencies." Id.

The authors go on to state that the action taken in Fleming v. Montgomery Ward & Co., 114 F.2d 384 (7th Cir.), cert. denied, 311 U.S. 690, 61 S.Ct. 71, 85 L.Ed.2d 446 (1940), where the United States Supreme Court denied certiorari after a lower court had held that an agency may inspect books and records "regardless of whether the business is a public utility and regardless of whether there is any ... probable cause for believing there has been a violation of the law"; id., at 390; is particularly noteworthy in that it marked a departure with pre-1940 decisions by declaring that "probable cause" need not be established prior to conducting an administrative investigation. See 1 K. Davis & R. Pierce, supra, at pp. 138, 142-43.

In 1943, "[t]he [United States] Secretary of Labor issued a subpoena for records relating to payrolls in certain plants of a company, under the Walsh-Healey Act, which provided that government contracts shall not be awarded to those who violate minimum wage requirements. The company refused compliance with the subpoena" and sought to have the district court determine, in the first instance, "whether the Act and the contracts covered the employees and plants in question...." Id., 138-39. The United States Supreme Court in Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 509, 63 S.Ct. 339, 87 L.Ed. 424 (1943) held that the issue of coverage was for the secretary to determine, not for the district court. The court further held that "[t]he evidence sought by the subpoena was not plainly incompetent or irrelevant to any lawful purpose of the Secretary in the discharge of her duties under the Act, and it was the duty of the District Court to order its production for the Secretary's consideration." Id.

In 1946, the United States Supreme Court, in Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614 (1946), made a similar ruling relevant to the Fair Labor Standards Act wherein Justice Rutledge wrote in relevant part: "The very purpose of the subpoena ... is to discover and procure evidence, not to prove a pending charge or complaint, but upon which to make one if, in the Administrator's judgment, the facts thus discovered should justify doing so." Id., at 201, 66 S.Ct. 494.

In the words of Davis and Pierce, "[t]he capstone of the revolutionary developments of the 1940s" came in United States v. Morton Salt Co., 338 U.S. 632, 641-42, 652[, 70 S.Ct. 357, 94 L.Ed. 401] (1950), where the [Federal Trade Commission (commission),] in order to enforce a court order, required a `complete statement [of] prices, terms, and conditions of sale' after a designated date." 1 K. Davis & R. Pierce, supra, p. 140. In response to the argument that the commission was engaged in a "fishing expedition" the court stated: "We must not disguise the fact that sometimes, especially early in the history of the federal administrative tribunal, the courts were persuaded to engraft judicial limitations upon the administrative process. The courts could not go fishing, and so it followed neither could anyone else. Administrative investigations fell before the colorful and nostalgic slogan `no fishing expeditions.' It must not be forgotten that the administrative process and its agencies are relative newcomers in the field of law and that it has taken and will continue to take experience and trial and error to fit this process into our system of judicature." United States v. Morton Salt Co., supra, at 642, 70 S.Ct. 357.

"The only power that is involved here is the power to get information from those who best can give it and who are most interested in not doing so. Because judicial power is reluctant if not unable to summon evidence until it is shown to be relevant to issues in litigation, it does not follow that an administrative agency charged with seeing that the laws are enforced may not have and exercise powers of original inquiry. It has a power of inquisition, if one chooses to call it that, which is not derived from the judicial function. It is more analogous to the Grand Jury, which does not depend on a case or controversy for power to get evidence but can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not. When investigative and accusatory duties are delegated by statute to an administrative body, it, too, may take steps to inform itself as to whether there is probable violation of the law." Id., at 642-643, 70 S.Ct. 357.

"Even if one were to regard the request for information in this case as caused by nothing more than official curiosity, nevertheless law-enforcing agencies have a legitimate right to satisfy themselves that corporate behavior is consistent with the law and the public interest." Id., at 652, 70 S.Ct....