Judicial Inquiry No. 85-01, In re

• Decision Date: 14 April 1992
• Docket Number: No. 14292,14292
• Citation: 221 Conn. 625,605 A.2d 545
• Court: Connecticut Supreme Court
• Parties: In re JUDICIAL INQUIRY NO. 85-01.

Page 545

605 A.2d 545

221 Conn. 625

In re JUDICIAL INQUIRY NO. 85-01.

No. 14292.

Supreme Court of Connecticut.

Argued Dec. 12, 1991.

Decided April 14, 1992.

Henri Alexandre, Asst. Atty. Gen., with whom, on the brief, was Richard Blumenthal, Atty. Gen., for appellants (petitioners).

Roger J. Frechette, with whom was Matthew E. Frechette, New Haven, for appellee (investigatory grand jury).

Before PETERS, C.J., and CALLAHAN, COVELLO, FRANCIS X. HENNESSY and MARY R. HENNESSEY, JJ.

COVELLO, Associate Justice.

This is a petition for review of a ruling by a grand jury panel that denied the petitioners' request for the release of evidence used in grand jury proceedings. The dispositive issue is whether, despite intervening legislative changes that created a right of appellate review, the statute governing the release of evidence that was in effect at the time when the grand jury filed its report, which contained no right of appeal, governs a subsequent request for disclosure of the evidence before that grand jury. We conclude that: (1) the statute in effect at the time the grand jury filed its report governs the subsequent request for disclosure of evidence before that particular grand jury; and (2) there was no appeal available from the decision of the grand jury panel denying the petitioners' request for the release of evidence. We therefore remand the matter to the Appellate Court with direction to dismiss the petition for review.

The relevant facts are not in dispute. On October 24, 1985, a panel of judges authorized an investigation into the commission of crimes in the city of Waterbury. ¹ That same day, pursuant to the panel's authorization, the chief court administrator appointed the Honorable Barry R. Schaller as grand juror. ² Frank D'Amico, an inspector in the division of criminal justice, and Paul Reid, a state police officer, assisted with the grand jury investigation. Thomas R. Brown and John Ariola were the subjects of the investigation. In July, 1987, Judge Schaller filed a report of his findings as grand juror.

At the conclusion of the investigation, D'Amico applied for and obtained an arrest warrant for Brown. Reid applied for and obtained an arrest warrant for Ariola. Both applications were based upon testimony and other evidence accumulated during the grand jury investigation. The criminal charges against Brown were subsequently dismissed. Ariola was placed on accelerated rehabilitation.

Thereafter, Brown and Ariola began federal civil rights actions pursuant to 42 U.S.C. § 1983 in the United States District Court alleging that D'Amico and Reid had made material misrepresentations in their applications for arrest warrants with the intention of misleading the judicial authorities into issuing warrants that were, in reality, not based upon probable cause. Deposition and discovery requests in the federal actions have not been complied with because of D'Amico's and Reid's lack of access to the transcripts and records of the grand jury investigation.

On June 14, 1989, D'Amico and Reid filed applications with the grand jury panel seeking the release of the testimony and exhibits in the grand jury proceedings pursuant to General Statutes § 54-47g(a). ³ On February 15, 1991, after a hearing, the panel denied the applications. The petitioners then filed petitions for review with the Appellate Court pursuant to General Statutes § 54-47g(a) and Practice Book § 2037. ⁴ The Appellate Court granted the petitions for review but denied the relief sought. We thereafter granted the petitioners' petition for certification to appeal from the Appellate Court. In re Judicial Inquiry, 219 Conn. 905, 593 A.2d 132 (1991). ⁵ In the interim, we granted the grand jury panel's application to be designated as a party solely for the purpose of raising a jurisdictional issue.

The grand jury panel argues that the Appellate Court lacked subject matter jurisdiction in this instance as there was no authority, under the then applicable statute, for appellate review of the panel's determination. Because of its jurisdictional character, we must consider this issue at the outset. "[J]urisdiction of the subject matter is a question of law and cannot be waived or conferred by consent either in the trial court or here. Practice Book §§ 143, 145; Circle Lanes of Fairfield, Inc. v. Fay, 195 Conn. 534, 540, 489 A.2d 363 (1985); Neyland v. Board of Education, 195 Conn. 174, 177, 487 A.2d 181 (1985); Reed v. Reincke, 155 Conn. 591, 598, 236 A.2d 909 (1967). Once brought to the attention of the court, regardless of the form of the motion, it must be acted upon. East Side Civic Assn. v. Planning & Zoning Commission, 161 Conn. 558, 559, 290 A.2d 348 (1971); Carten v. Carten, 153 Conn. 603, 610, 219 A.2d 711 (1966). Moreover, ' "whenever a court discovers that it has no jurisdiction, it is bound to dismiss the case, without regard to previous rulings." ' Chzrislonk v. New York, N.H. & H.R. Co., 101 Conn. 356, 358, 125 A. 874 (1924)." Cahill v. Board of Education, 198 Conn. 229, 238, 502 A.2d 410 (1985).

Specifically, the grand jury panel argues that prior to June 7, 1988, the effective date of Public Acts 1988, No. 88-345, ⁶ no statute or rule of practice authorized an appeal from the proceedings of a grand jury panel. Section 1(a) of Public Acts 1988, No. 88-345, now General Statutes § 54-47g(a), added a new review provision, that had not previously existed, which stated: "Any person aggrieved by an order of the panel shall have the right to appeal such order by filing a petition for review with the appellate court within seventy-two hours from the issuance of such order." Because Judge Schaller was appointed as an investigative grand juror on October 24, 1985, almost three years prior to the passage of Public Acts 1988, No. 88-345, and since he filed his report on July 10, 1987, eleven months prior to the effective date of that act, June 7, 1988, the panel argues that the provision for direct appeal to the Appellate Court is simply inapplicable to this grand jury investigation. The petitioners argue, on the other hand, that the provision authorizing appellate review may be applied retroactively because it only affects the procedure by which appellate review can be secured. We agree with the grand jury panel that there is no right of appellate review of its determination in this instance.

In In re Grand Jury Investigation by Judge John M. Alexander, 207 Conn. 98, 540 A.2d 49 (1988) (In re Grand Jury ), we had occasion to consider the identical issue in the context of Public Acts 1985, No. 85-611, codified as General Statutes §§ 54-47a through 54-47h. This act significantly altered existing procedures governing the investigatory grand jury system and included, for the first time, a provision that requests for public disclosure were to be determined by a panel of judges. ⁷ In that instance, on July 1, 1985, Judge George D. Stoughton ordered a grand jury inquiry. In response thereto, on July 15, 1985, the chief court administrator appointed the Honorable John M. Alexander to serve as grand juror. On October 1, 1985, Public Acts 1985, No. 85-611 became effective. On November 24, 1986, Judge Alexander filed his final report. Thereafter, the petitioner filed a petition in Superior Court for public disclosure of the report. The trial court concluded that since the request for public disclosure came after the effective date of Public Acts 1985, No. 85-611, such a request should have been considered by a panel of judges, as the new act provided, rather than by a judge of the Superior Court, as had been the procedure prescribed prior to the adoption of Public Acts 1985, No. 85-611. The trial court determined, therefore, that it lacked jurisdiction to entertain the petition for disclosure. On appeal, we stated that the issue was "whether the legislature intended a different statute to govern public access to the report, transcript and other documentation...." In re Grand Jury, supra, at 107, 540 A.2d 49. We concluded "that no such bifurcation was intended." Id. That conclusion was consistent with our earlier determination that "Public Acts 1985, No. 85-611 ... did not revoke the authority of or alter the procedures governing investigatory grand juries that had been properly authorized before October 1, 1985." (Emphasis added.) State v. Blasko, 202 Conn. 541, 543, 522 A.2d 753 (1987).

Public Acts 1988, No. 88-345 continued the evolution of the reforms in the procedures governing the investigatory grand jury system. Its provision for a direct appeal to the Appellate Court, where no such appeal previously existed, constitutes a substantive change in the law and is not the procedural change that the petitioners suggest. The enactment's specific provision that it would "be applicable to findings filed on or after the effective date of this act" comports with our own understanding that " '[s]tatutes should be construed retroactively only when the mandate of the legislature is imperative.' Adamchek v. Board of Education, 174 Conn. 366, 369, 387 A.2d 556 (1978), quoting Michaud v. Fitzryk, 148 Conn. 447, 449, 171 A.2d 397 (1961); see New Haven v. Public Utilities Commission, 165 Conn. 687, 726, 345 A.2d 563 (1974); Little v. Ives, 158 Conn. 452, 457, 262 A.2d 174 (1969). Moreover, statutes that effect substantial changes in the law do not apply in pending actions unless it clearly and unequivocally appears that such was the legislative intent; American Masons' Supply Co. v. F.W. Brown Co., 174 Conn. 219, 223, 384 A.2d 378 (1978); E.M. Loew's Enterprises, Inc. v. International Alliance, 127 Conn. 415, 418, 17 A.2d 525 (1941); Old Saybrook v. Public Utilities Commission, 100 Conn. 322, 325, 124 A. 33 (1924); and we have consistently expressed our reluctance to give such statutes retroactive application. East Village Associates, Inc. v. Monroe, 173 Conn. 328, 332, 377 A.2d 1092 (1977)." Sherry H. v. Probate Court, 177 Conn. 93, 100, 411 A.2d...