Investigation of Grand Juror into Cove Manor Convalescent Center, Inc., In re, 2490

• Decision Date: 30 July 1985
• Docket Number: No. 2490,2490
• Citation: 4 Conn.App. 544,495 A.2d 1098
• Parties: In re INVESTIGATION OF the GRAND JUROR INTO COVE MANOR CONVALESCENT CENTER, INC.
• Court: Connecticut Court of Appeals

Page 1098

495 A.2d 1098

4 Conn.App. 544

In re INVESTIGATION OF the GRAND JUROR INTO COVE MANOR CONVALESCENT CENTER, INC.

No. 2490.

Appellate Court of Connecticut.

Argued Feb. 6, 1985.

Decided July 30, 1985.

Louis B. Todisco, Milford, with whom, on brief, was Stephen E. Ronai, Milford, for appellant (plaintiff Arnold J. Ryder).

Richard J. Lynch, Asst. Atty. Gen., with whom, on brief, was Joseph I. Lieberman, Atty. Gen., for appellee (defendant Dept. of Health Services).

Before DUPONT, C.P.J., and HULL and SPALLONE, JJ.

DUPONT, Chief Presiding Judge.

The plaintiff, a licensed nursing home administrator, was arrested, pleaded nolo contendere to five counts of larceny and was sentenced after a grand juror completed a private inquiry into medicaid provider fraud at the nursing home of which he was the administrator. The report of the grand juror, the transcript, and all of the evidence relating thereto were sealed by court order. Thereafter, the department of health services instituted administrative proceedings against the plaintiff, charging him with unacceptable conduct as a nursing home administrator in violation of General Statutes § 19a-517(b)(1). Under that section, a person licensed to practice as a nursing home administrator may be disciplined, including the revocation of his license, if found to have "engaged in fraud or material deception in the course of professional services or activities...."

The plaintiff sought to prevent the report of the grand juror, the transcript and other evidence from being released to the department. The department, also referred to hereinafter as the defendant, cross applied to the trial court to allow such release and to release the witnesses and the plaintiff from any order of secrecy. The plaintiff appeals from the denial of his application and the granting of the defendant department's application. ¹ We find error.

The plaintiff claims that the trial court erred (1) in not requiring the department to show a particular need and compelling circumstances before ordering the various releases, (2) in allowing the fruits of a grand jury investigation to be released to an administrative agency for use by it in a civil administrative proceeding and (3) in releasing witnesses from an order of secrecy so that they might testify before a state administrative agency.

All of these claimed errors may be reduced to one issue. The question for resolution is what standard should be used to determine when sealed investigative grand juror materials may be made available to a civil governmental agency for use in a subsequent administrative proceeding against the target of a grand jury investigation after the grand jury has concluded its investigation, and after criminal charges against the target have been concluded by a judgment of guilty, following a plea of nolo contendere. No Connecticut case resolves this issue. The question raises the subsidiary question of whether federal case precedent should be followed and, if so, whether such cases require a preliminary showing by the agency of a particular and compelling need for the material or whether a balancing test weighing the traditional reasons for grand juror secrecy against the particular facts of the case will suffice. The trial court in this case did not require such a preliminary showing but, by using the reasons for the safeguarding of the confidentiality of federal grand juries as articulated in United States v. Sells Engineering, Inc., 463 U.S. 418, 103 S.Ct. 3133, 77 L.Ed.2d 743 (1983), concluded that these reasons were of little force within the context of this case and that such force as the reasons might have were "outweighed by the public interest in the efficient functioning of the administrative process." In so concluding, the trial court looked to federal decisions for direction, but chose not to follow their path.

The plaintiff argues that the trial court erred in granting the department access to the grand jury materials, absent a showing of particularized need, for the purpose of preparing for and pursuing an administrative hearing on whether his license as a nursing home administrator should be revoked. He relies on federal case law for that proposition. United States v. Baggot, 463 U.S. 476, 479-80, 103 S.Ct. 3164, 3166-67, 77 L.Ed.2d 785 (1983); United States v. Sells Engineering, Inc., supra, 463 U.S. at 442-46, 103 S.Ct. at 3147-49; Illinois v. Abbott & Associates, Inc., 460 U.S. 557, 103 S.Ct. 1356, 75 L.Ed.2d 281 (1983). These cases all involve Rule 6 of the Federal Rules of Criminal Procedure. ²

The investigatory grand jury in Connecticut is governed by General Statutes § 54-47. ³ General Statutes § 54-47(g) provides that "the court shall direct whether, and to what extent, the report [of the grand juror] shall be made available to the public or interested parties." Pursuant to the same statute, the trial court has the same power with reference to the transcript of the testimony. The trial court, pursuant to that authority, released the requested materials and the witnesses from their oath of secrecy. ⁴ The predecessor of General Statutes § 54-47(g) was enacted in 1941. Public Acts 1941, No. 158. ⁵

A rule on the federal grand jury was not contained in the Federal Rules of Criminal Procedure until the third draft of the rules, dated March 4, 1942, was circulated. United States v. Sells Engineering, Inc., supra, 463 U.S. at 452-53, 103 S.Ct. at 3152-53, (Burger, C.J., dissenting); Orfield, The Federal Grand Jury, 22 F.R.D. 343, 346 (1959). The argument, thus, that General Statutes § 54-47 be interpreted in light of the decisional authority pertaining to federal grand jury disclosure is persuasive, not because the Connecticut statute was patterned on the federal rule but because both originate from the common law requirement that grand jury testimony be secret. The indicting grand jury governed by federal rule and the investigatory grand jury governed by § 54-47 are similar in function.

Prior to the enactment of General Statutes § 54-47, Connecticut's courts had sought direction from federal case law on issues involving grand jury proceedings. State v. Hayes, 127 Conn. 543, 577-80, 18 A.2d 895 (1941); State v. Kemp, 126 Conn. 60, 67, 9 A.2d 63 (1939). Our Supreme Court, in the context of a grand jury proceeding pursuant to General Statutes § 54-45(a), relying on federal case law, stated that "the traditional secrecy of grand jury proceedings is well entrenched in the common law--'older than our Nation itself,' Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399, 79 S.Ct. 1237 [1240], 3 L.Ed.2d 1323 (1959)...." State v. Canady, 187 Conn. 281, 287, 445 A.2d 895 (1982).

"Rule 6(e) of the Federal Rules of Criminal Procedure codifies the traditional rule of grand jury secrecy." United States v. Sells Engineering, Inc., supra, 463 U.S. at 425, 103 S.Ct. at 3138; Illinois v. Abbott & Associates, Inc., supra, 460 U.S. at 566 n. 11, 103 S.Ct. at 1361 n. 11. That portion of the rule authorizing a court to disclose grand jury materials provides no substantive standard governing the issuance of such orders. United States v. Sells Engineering, Inc., supra, 463 U.S. at 442-43, 103 S.Ct. at 3147-48. The United States Supreme Court has "consistently construed the Rule, however, to require a strong showing of particularized need for grand jury materials before any disclosure will be permitted." Id., at 443, 103 S.Ct. at 3148. The standard was set forth in Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979). The court commented: "Parties seeking grand jury transcripts under Rule 6(e) must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only the material so needed." Id., at 222, 99 S.Ct. at 1674. The United States Supreme Court also provided the typical instances where the particularized need is met, as where "a litigant seeks to use 'the grand jury transcript at the trial to impeach a witness, to refresh his recollection, to test his credibility and the like.' Such use is necessary to avoid misleading the trier of fact. Moreover, disclosure can be limited strictly to those portions of a particular witness' testimony that bear upon some aspect of his direct testimony at trial." Id., at 222 n. 12, 99 S.Ct. at 1674 n. 12.

An historical analysis of General Statutes § 54-47 is necessary so that the federal case law can be compared to the practice in Connecticut. Our Supreme Court has analogized the investigatory inquiry pursuant to General Statutes § 54-47 to the common law grand jury which could inquire into crimes. State v. Moynahan, 164 Conn. 560, 565, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S.Ct. 291, 38 L.Ed.2d 219 (1973); State v. Menillo, 159 Conn. 264, 273, 268 A.2d 667 (1970). Indeed, the only material distinction between the two is that the common law grand jury had the authority or power to issue an indictment. State v. Moynahan, supra, 164 Conn. at 565, 325 A.2d 199. It is appropriate, thus, to examine the case law concerning Connecticut's common law grand jury.

In State v. Fasset, 16 Conn. 457 (1844), the defendant moved to quash the indictment handed down by the grand jury. In support thereof, the defendant sought to elicit testimony from the grand jurors and the witnesses before the grand jury impeaching the grand jury's verdict. Citing the policy of the law that such proceedings be in secret, the court ruled that the defendant's evidence was inadmissible.

Connecticut has limited the lifting of the veil of grand jury secrecy of the testimony before it to prosecutions for perjury and to contradicting witnesses. State v. Coffee, 56 Conn. 399, 412, 16 A. 151 (1888). In that case, the admission of the grand juror's testimony concerning the defendant's...