In re Judicial Inquiry Number 2005-02

• Citation: 293 Conn. 247,977 A.2d 166
• Decision Date: 25 August 2009
• Docket Number: No. 18069.,18069.
• Court: Connecticut Supreme Court
• Parties: In re JUDICIAL INQUIRY NUMBER 2005-02.

977 A.2d 166

293 Conn. 247

In re JUDICIAL INQUIRY NUMBER 2005-02.

No. 18069.

Supreme Court of Connecticut.

Argued February 11, 2009.

Decided August 25, 2009.

Proloy K. Das, with whom was Glenn E. Coe, Hartford, for the appellant (intervenor three judge panel).

Michael A. Georgetti, Hartford, for the appellee (petitioner Robert Lawlor).

Harry Wetter, senior assistant state's attorney, with whom, on the brief, were

Michael Dearington, state's attorney, Susan C. Marks, supervisory assistant state's attorney, and Kevin C. Doyle, senior assistant state's attorney, for the appellee (state).

ROGERS, C.J., and NORCOTT, KATZ, VERTEFEUILLE and ZARELLA, Js.

ZARELLA, J.

The issue ultimately dispositive of this certified appeal is whether the Appellate Court correctly construed General Statutes §§ 54-47b through 54-47g (grand jury statutes). The intervening three judge panel (panel) appealed from the judgment of the Appellate Court, which concluded that the panel is required to hold a hearing to determine whether the petitioner, Robert Lawlor, is entitled to disclosure of the state's application for, and the panel's order authorizing, a grand jury investigation pursuant to the grand jury statutes. The panel asserts that General Statutes § 54-47e¹ is nondiscretionary in that it provides that the application and order "shall be sealed," without recourse through appellate review.² The petitioner, on the other hand, joined in this appeal by the state,³ claims that § 54-47g(a)⁴ controls the disposition of the documents at issue and requires that the panel hold a hearing to consider whether disclosure of the application and order would be in the public interest. The petitioner further argues that the proper application of § 54-47g precludes this court from asserting jurisdiction over this appeal. Because we agree with the panel that the grand jury statutes do not contemplate the disclosure of the sealed application and order, we conclude that the hearing that the Appellate Court ordered is contrary to the grand jury statutes. Therefore, we reverse the judgment of the Appellate Court and remand the case to that court with direction to deny the relief requested in the petition for review.

The following facts and procedural history, which are set forth in the Appellate Court's opinion, are undisputed. "In the fall of 2005, John A. Connelly, [the] state's attorney for the judicial district of Waterbury, filed with the panel an application for an investigation into the commission of a crime [or crimes] stemming from the shooting death of Jashon Bryant on May 7, 2005. The panel approved the application, and the Honorable George N. Thim, a judge of the Superior Court, was appointed as an investigatory grand jury. Pursuant to ... § 54-47e, both the application for the investigatory grand jury and a copy of the panel's order thereon were sealed. In addition, the original order and a copy of the application were transmitted to the investigatory grand jury, as required by General Statutes § 54-47d(b). Judge Thim thereafter conducted an investigation, at the conclusion of which he issued a report that concluded that there was probable cause to believe that the petitioner ... [a police officer with] the Hartford police department, committed [one or more] crime[s].⁵ On that basis, an arrest warrant signed by the court, Damiani, J., subsequently was issued, charging the petitioner with manslaughter in the first degree in violation of General Statutes § 53a-55(a)(3) and assault in the first degree in violation of General Statutes § 53a-59(a)(5). The petitioner was arrested on June 22, 2006.

"On June 14, 2007, the state filed with the panel a request for disclosure of `a copy of the application for the appointment of a grand [jury] filed by [Connelly] and a copy of the order issued by the [panel] appointing the [investigatory grand jury].' That filing concluded that `it is requested that for the purpose of full and fair discovery, such material be ordered unsealed for viewing by [the] office [of the state's attorney] and [by] the [petitioner].' In denying that request, the ... panel stated: `[The] request for disclosure is denied, pursuant to § 54-47e, which specifically requires that any application filed with the panel and any order authorizing the investigation "shall be sealed."'" In re Judicial Inquiry No. 2005-02, 104 Conn.App. 398, 400-401, 934 A.2d 248 (2007).

The petitioner, who sought to challenge the panel's decision, filed a petition for review with the Appellate Court, which the Appellate Court granted.⁶ The Appellate Court determined that the requested documents, i.e., the application and order, are part of the "record" under § 54-47g; id., at 406, 934 A.2d 248; and thus concluded that the panel was statutorily required to conduct a hearing on the request for disclosure of these documents in order to determine whether such disclosure is in the public interest. Id., at 415-16, 934 A.2d 248. The Appellate Court's conclusion was based primarily on dictionary definitions of the word "record," as well as an unrelated reference in Practice Book § 61-10 to the scope of the phrase "adequate record for review."⁷ In re Judicial Inquiry No 2005-02, supra, 104 Conn.App. at 404-405, 934 A.2d 248. The Appellate Court also placed weight on the fact that the panel was required to file the application and order with the grand jury once the grand jury was appointed. Id., at 405, 934 A.2d 248. This certified appeal followed.⁸

I

As a threshold matter, we must address the issue of this court's jurisdiction to consider the panel's appeal. The petitioner argues that this court lacks jurisdiction to consider a petition for certification from a decision of the Appellate Court on a petition for review filed pursuant to § 54-47g (a). The petitioner claims that our decision in State v. Ayala, 222 Conn. 331, 610 A.2d 1162 (1992), supports this position. We conclude that Ayala is distinguishable from the present case and that the principles expressed in that case do not deprive this court of jurisdiction to consider this appeal.

Consideration of the petitioner's jurisdictional claims requires adherence to several well established principles. First among these principles is that "[a] court lacks discretion to consider the merits of a case over which it is without jurisdiction ...." (Internal quotation marks omitted.) Soracco v. Williams Scotsman, Inc., 292 Conn. 86, 91, 971 A.2d 1 (2009). "Subject matter jurisdiction is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong." (Internal quotation marks omitted.) MBNA America Bank, N.A. v. Boata, 283 Conn. 381, 389, 926 A.2d 1035 (2007). Although it is a critical prerequisite to any court's involvement in a case, we repeatedly have held that, when "a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged." Demar v. Open Space & Conservation Commission, 211 Conn. 416, 425, 559 A.2d 1103 (1989); see also Seebeck v. State, 246 Conn. 514, 533, 717 A.2d 1161 (1998) (noting "the long recognized presumption in favor of appellate jurisdiction"). With these principles in mind, we examine our decision in Ayala.

In Ayala, the defendant, Enrique Ayala, filed a petition for review with the Appellate Court pursuant to General Statutes § 54-63g,⁹ challenging the trial court's revocation of his bail. See State v. Ayala, supra, 222 Conn. at 334, 610 A.2d 1162. Critical to our conclusion that this court lacked jurisdiction to consider the merits of Ayala's appeal was our determination that, "[i]n th[at] case, the Appellate Court did not undertake finally to determine an appeal. Instead, in accordance with § 54-63g, the Appellate Court granted [Ayala's] petition for review of the revocation of his bail but denied the relief that he had requested. That decision was neither the determination of `an appeal' nor action that constituted a final judgment."¹⁰ (Emphasis added.) Id., at 338-39, 610 A.2d 1162. We further noted that "[t]he legislature ... has the authority to make interlocutory orders immediately reviewable, in summary fashion, by authorizing petitions for review, usually within a limited time period, and often specifically to the Appellate Court." Id., at 340, 610 A.2d 1162. Thus, our conclusion in Ayala that we lacked jurisdiction¹¹ apparently was based on two subsidiary determinations, namely, that (1) the Appellate Court had not finally determined an appeal and that, (2) because the trial court's revocation of Ayala's bail was an interlocutory order, the petition for review was not an "appeal" to the Appellate Court for purposes of General Statutes § 51-197f.¹² See id., at 338-39, 610 A.2d 1162. We now conclude, however, that the former determination was incorrect.¹³

Although it is true that, "[i]n a criminal proceeding, there is no final judgment until the imposition of a sentence"; id., at 339, 610 A.2d 1162; the fact that there remained an unresolved, underlying criminal case in Ayala is not determinative of whether the Appellate Court's decision to uphold the trial court's revocation of bail was a "final determination" of the petition for review for purposes of § 51-197f. The authors of one prominent treatise on Connecticut appellate procedure, in commenting on the distinction between the final judgment rule and the requirement of a "final determination" under § 51-197f, have noted that, "the final determination of an appeal rule looks at the finality of the appeal, not at the finality of the underlying judgment. Thus, even though a remand by the Appellate Court may vitiate the finality of the trial court's judgment, the appeal to the Appellate Court has been finally determined because that court has completed its work. As stated by the Supreme Court in the context of the finality of a Superior Court remand in an administrative appeal: Nothing further...