Massameno v. Statewide Grievance Committee, Nos. 14930

• Court: Supreme Court of Connecticut
• Writing for the Court: Before PETERS; KATZ; At trial before the court, Wagner; In this opinion PETERS; BERDON
• Citation: 663 A.2d 317,234 Conn. 539
• Parties: John M. MASSAMENO v. STATEWIDE GRIEVANCE COMMITTEE.
• Decision Date: 01 August 1995
• Docket Number: Nos. 14930,14931

Page 317

663 A.2d 317 234 Conn. 539 John M. MASSAMENO
v.
STATEWIDE GRIEVANCE COMMITTEE. Nos. 14930, 14931. Supreme Court of Connecticut. Argued April 26, 1995.
Decided Aug. 1, 1995.

Page 320

[234 Conn. 541] Louis B. Blumenfeld, with whom was Sharone G. Kornman, Hartford, for appellant in Docket No. 14930 (plaintiff).

Steven M. Sellers, Deputy Chief State's Atty., with whom, on the brief, was Guy W. Wolf III, Sr. Asst. State's Atty., for appellant in Docket No. 14931 (intervening plaintiff).

Elizabeth F. Collins, Asst. Bar Counsel, with whom was Cathy A. Dowd, Asst. Bar Counsel, for appellee in both cases (defendant).

Before [234 Conn. 539] PETERS, C.J., and BERDON, KATZ, DUPONT, and LAVERY, JJ.

[234 Conn. 541] KATZ, Associate Justice.

This case presents an issue of first impression, whether the judicial branch of government, through the statewide grievance committee (committee), can regulate and sanction conduct by a prosecutor for the exercise of his official judgment without violating the separation of powers mandated by article second of the constitution of Connecticut. We conclude that it can.

The following facts are undisputed. In 1990, a warrant was issued for the arrest of Jacob Zamstein, a physician, in which he was charged with having sexually molested his two minor children. The warrant was signed by then state's attorney John Bailey and Judge Raymond Norko. The case was assigned to the plaintiff, assistant state's attorney John M. Massameno, for prosecution. Following a trial to the court, Clifford, J., [234 Conn. 542] Zamstein was found not guilty. ¹ Thereafter, in December of 1991, and January of 1992, grievance complaints against Massameno were filed with the committee by attorney Mark Swerdloff, counsel for Zamstein's wife in an action seeking the dissolution of her marriage to Zamstein (Swerdloff complaint), attorney Gerald Roisman, counsel for Zamstein in that dissolution action (Roisman complaint), and Charles P. Zamstein, the brother of Zamstein (Zamstein complaint). Each complaint alleged violations of the Rules of Professional Conduct by Massameno during the course of his prosecution of Zamstein.

In April of 1992, the local grievance panel for the judicial district of Hartford-New Britain (local panel), in regard to the Swerdloff complaint, found probable cause to believe that Massameno had violated rule 4.2 of

Page 321

the Rules of Professional Conduct ² by interviewing Zamstein's wife, the complaining witness in the criminal trial, in the absence of Swerdloff, the attorney representing her in the dissolution action. The local panel found no probable cause to believe that Massameno had violated additional rules of conduct as had been alleged in the Roisman and Zamstein complaints.

In August of 1992, the statewide grievance panel (statewide panel) reviewed the Roisman and Zamstein complaints and reversed the local panel's determination, finding probable cause that Massameno had violated: (1) rule 3.8(a) of the Rules of Professional [234 Conn. 543] Conduct ³ by prosecuting the case without probable cause to believe Zamstein was guilty; (2) rules 3.4(c) and 3.5(c) of the Rules of Professional Conduct ⁴ by requesting a psychiatric examination of the children to assess their testimonial capacity; (3) rule 4.4 of the Rules of Professional Conduct ⁵ by improperly conducting the cross-examination of a defense witness; and (4) rule 8.4(d) of the Rules of Professional Conduct ⁶ by engaging in the foregoing alleged misconduct. On September 8, 1992, after the committee had informed him of its intention to pursue the complaints and to seek appropriate sanctions, Massameno filed an action for injunctive relief and a declaratory judgment against the committee, claiming that, as an arm of the judicial branch of government, the committee had no subject matter jurisdiction over allegations involving misconduct by a state prosecutor because he is an officer of the executive branch. Massameno claimed that the [234 Conn. 544] separation of powers principle embodied in the constitution of Connecticut, article second, ⁷ would be violated were the defendant allowed to investigate and discipline a state prosecutor for acts committed in that prosecutor's official capacity. That same day, the court, M. Hennessey, J., issued a temporary injunction against the defendant and a stay of further grievance proceedings relating to Massameno. Thereafter, the parties agreed to continue the stay of the defendant's grievance proceedings pending resolution of the declaratory judgment action.

On September 14, 1992, the trial court, Schaller, J., granted the motion to intervene as plaintiff filed by then chief state's attorney Richard N. Palmer. In his complaint, Palmer represented the following: "2. The Chief

Page 322

State's Attorney and the several State's Attorneys are Constitutional Officers established by Article XXIII of the Amendments to the Connecticut Constitution. 3. Under the provisions of the Constitution and the Statutes of the State of Connecticut, the Chief State's Attorney is the administrative head of the Division of Criminal Justice, an agency established by the Constitution in the Executive Department.... 17. In order to preserve and protect the plaintiff's above-referenced rights, and to prevent the above-referenced harm to the plaintiff, it is necessary that the jurisdiction of the Statewide Grievance Committee to investigate and hear complaints made against plaintiff [234 Conn. 545] Massameno and any other attorney in the Division of Criminal Justice be judicially determined...." In his prayer for relief, Palmer requested in part: "1. A declaratory judgment determining whether and to what extent the Statewide Grievance Committee has jurisdiction to investigate, discipline, or recommend the suspension or removal of prosecutorial officials within the Division of Criminal Justice; 2. A declaratory judgment determining whether and to what extent the Statewide Grievance Committee has jurisdiction to investigate, discipline, or recommend the suspension or removal of a Senior Assistant State's Attorney pursuant to a complaint alleging that the state's attorney violated the Rules of Professional Conduct during the course of a criminal prosecution...."

At trial before the court, Wagner, J., the parties ⁸ stipulated to the facts underlying the allegations in the grievance complaints. Additionally, during three days of hearings, the plaintiffs presented the testimony of five prosecutors that the prosecutorial conduct under investigation by the defendant was within the scope of prosecutorial power and was part of the standard practice of prosecutors in Connecticut. Massameno testified that the subjection of prosecutors to grievance proceedings would substantially encroach on the time that prosecutors would otherwise be spending on their official duties. Furthermore, he and several other prosecutors testified that grievance proceedings would have a chilling effect on the exercise of their independent prosecutorial judgment. Finally, the plaintiffs presented unchallenged evidence regarding the disciplinary system that operates within the division of criminal justice (division). ⁹

[234 Conn. 546] Although it recognized the "special role that prosecutors play," the trial court concluded that the separation of powers clause did not preclude the judiciary from supervising and disciplining prosecutors. Accordingly, the trial court rendered judgment in favor of the defendant. Thereafter, the plaintiffs filed separate appeals to the Appellate Court. We transferred the cases to this court pursuant to General Statutes § 51-199(c) and Practice Book § 4023. We affirm the judgment of the trial court.

Page 323

I

Before reaching the merits of the plaintiffs' constitutional claims, we must resolve whether the trial court had subject matter jurisdiction over this case even though the criminal justice commission (commission) was not given notice of the pendency of the action. ¹⁰

[234 Conn. 547] Practice Book § 390(d) provides in pertinent part that "[t]he court will not render declaratory judgments upon the complaint of any person ... (d) unless all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof." Failure to comply with § 390(d) deprives the trial court of subject matter jurisdiction to render a declaratory judgment. Serrani v. Board of Ethics, 225 Conn. 305, 308, 622 A.2d 1009 (1993). ¹¹ "[J]urisdiction ... is a question of law and cannot be waived or conferred by consent either in the trial court, or here.... Once brought to the attention of the court, regardless of the form of the motion, it must be acted upon." (Internal quotation marks omitted.) Id. We conclude that § 390(d) did not deprive the trial court of jurisdiction over this case.

All parties contend that the commission is not an interested party whose knowledge of, or participation in, the present declaratory judgment action was required in order to confer upon the trial court subject matter jurisdiction over this controversy. The plaintiffs argue that the disciplinary power conferred on the commission by General Statutes § 51-278b ¹² does not [234 Conn. 548] give it an interest sufficient to entitle it to notice, under § 390(d), of any action seeking a declaratory judgment concerning the jurisdiction of the committee over the professional conduct of an assistant state's attorney.

The plaintiffs contend that the powers under § 51-278b were delegated to the chief

Page 324

state's attorney, as the chief of the division; see General Statutes § 51-275; ¹³ under a collective bargaining agreement with the prosecutor's union. See 33 H.R.Proc., Pt. 2, 1990 Sess., p. 309 (favorable report on House Resolution entitled "Resolution Proposing Approval Of An [234 Conn. 549] Arbitration Award Between The State Of Connecticut Division Of Criminal Justice And Connecticut...