OFFICE OF GOV. v. SELECT COMMITTEE OF INQ.

Decision Date18 June 2004
Docket NumberNo. 17211.,17211.
Citation271 Conn. 540,858 A.2d 709
CourtConnecticut Supreme Court
PartiesOFFICE OF the GOVERNOR v. SELECT COMMITTEE OF INQUIRY to Recommend Whether Sufficient Grounds Exist for the House of Representatives to Impeach Governor John G. Rowland Pursuant to Article Ninth of the State Constitution.

Ross H. Garber, with whom was Melinda M. Decker, for the appellant (plaintiff).

Cynthia S. Arato, pro hac vice, with whom were Steven F. Reich, pro hac vice, Marc Isserles, pro hac vice, New York City, and Laura Jordan and Mary Anne O'Neill, for the appellee (defendant).

SULLIVAN, C.J., and BORDEN, NORCOTT, KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.

BORDEN, NORCOTT, KATZ, PALMER and VERTEFEUILLE, Js.1

The principal issue in this appeal2 is whether the plaintiff, the office of the governor of Connecticut,3 John G. Rowland, is categorically immune, by virtue of the separation of powers provision contained in article second of the constitution of Connecticut, as amended by article eighteen of the amendments,4 from a subpoena issued by the defendant, the select committee of inquiry to recommend whether sufficient grounds exist for the House of Representatives to impeach Governor John G. Rowland pursuant to article ninth of the state constitution, to compel the governor to testify before the defendant in connection with its duties. The plaintiff claims that the subpoena is invalid because: (1) the separation of powers provision affords the governor categorical immunity from being compelled to testify, regarding the performance of his official duties, before the defendant; and (2) even if the governor is not categorically immune, this subpoena is inconsistent with the separation of powers provision. The defendant, in addition to responding to the plaintiff's claims on the merits, contends that both the trial court and this court lack subject matter jurisdiction over the plaintiff's challenge to the subpoena because it is: (1) barred under this court's decision in Kinsella v. Jaekle, 192 Conn. 704, 475 A.2d 243 (1984); (2) barred by the speech or debate clause contained in article third, ? 15, of the constitution of Connecticut;5 (3) premature; and (4) a nonjusticiable political question.

We reject the defendant's jurisdictional claims. We further conclude that: (1) the governor is not categorically immune from the legal obligation to testify pursuant to this subpoena;6 and (2) this subpoena is not inconsistent with the separation of powers provision of the state constitution. We therefore conclude that the trial court properly denied the plaintiff's motion to quash the subpoena and for injunctive relief.

The defendant is a select committee of the House of Representatives, authorized originally on January 26, 2004, by virtue of House Resolution No. 702, and continued thereafter by various House actions, "to conduct a comprehensive investigation relating to misconduct by Governor John G. Rowland, and submit its findings and recommendations to the House of Representatives, including whether sufficient grounds exist for the House to exercise its power to impeach Governor John G. Rowland pursuant to Article Ninth of the state constitution." On May 18, 2004, the defendant issued the subpoena in question in this case to the governor, ordering him to appear and testify before the defendant on June 8, 2004.7 On May 27, 2004, the plaintiff filed the present action in the trial court seeking to have the court quash the subpoena and for injunctive and declaratory relief. On June 1, 2004, that court issued a temporary stay of the subpoena until it could hear argument on the plaintiff's motion. On June 7, 2004, the trial court, after submission of briefs and oral argument, denied the plaintiff's motion in a written memorandum of decision. Following the trial court's decision, the plaintiff, representing that it intended to appeal from the court's judgment pursuant to General Statutes ? 52-265a; see footnote 2 of this opinion; applied to the trial court for a stay of the subpoena until this court could hear and decide the appeal. The trial court stayed the subpoena until 5 p.m. on June 10, 2004, "to afford the plaintiff an opportunity to appeal." The trial court also ordered that "[a]ny further applications for stay must be directed to the ... Supreme Court."

On June 8, 2004, the plaintiff filed an application with the Chief Justice for certification and immediate appeal to this court pursuant to General Statutes ? 52-265a, and requested an order setting an expedited briefing schedule for the appeal. In connection therewith, the plaintiff also filed an application for a stay of the subpoena until this court rendered a decision on the appeal. On June 10, 2004, the defendant filed its response in this court, specifically consenting to the plaintiff's request for an expedited briefing and hearing schedule and for a stay pending the appeal, "because the [defendant] believes that the public interest will best be served by this action being resolved expeditiously and without additional litigation...." On June 10, 2004, the Chief Justice granted the plaintiff's application for an immediate and expedited appeal pursuant to ? 52-265a. Following a scheduling hearing in this court on that date, the Chief Justice set the matter down for oral argument at 10 a.m., on June 18, 2004, and this court continued the stay of the subpoena until 5 p.m., on June 18, 2004. This court heard oral argument on the appeal on June 18, 2004, and, following the argument, rendered its judgment as previously described; see footnote 1 of this opinion; affirming the trial court's judgment, and vacating the stay, effective immediately.

Certain facts and procedural history are undisputed. On January 26, 2004, the state House of Representatives unanimously adopted House Resolution No. 702. That resolution authorized the creation of the defendant and ordered it "to conduct a comprehensive investigation relating to misconduct by Governor John G. Rowland, and submit its findings and recommendations to the House of Representatives, including whether sufficient grounds exist for the House to exercise its power to impeach Governor John G. Rowland pursuant to Article Ninth of the state constitution." More specifically, under that resolution, the defendant was charged with the responsibility "to review and investigate the facts or circumstances relating to misconduct of Governor John G. Rowland; and ... submit to the House of Representatives its findings and recommendations in the form of a final report, including, if it concludes such action is warranted, articles of impeachment describing the acts or omissions with which Governor John G. Rowland is charged." Although the defendant initially was instructed to submit its final report "no later than April 14, 2004," that date was later extended to June 30, 2004. The resolution also specified that the defendant had "all the powers of any committee of the General Assembly under [General Statutes ? 2-46]"8 including the power "to compel the attendance and testimony of witnesses by subpoena."

Following its inception, the defendant commenced an impeachment investigation pursuant to its authorizing resolution. It subpoenaed numerous witnesses for documents and deposed numerous persons. Other potential witnesses refused either to testify or to produce documents, invoking their constitutional privilege against self-incrimination. The defendant issued a subpoena duces tecum to the governor for numerous documents, to which neither the plaintiff nor the governor objected. Ultimately, the defendant issued the subpoena that is the subject of the present case, and the trial court proceedings and this appeal followed.

I

We first address several issues regarding questions of mootness and justiciability relating to this appeal and the trial court's ruling, because they implicate both this court's and the trial court's subject matter jurisdiction. We conclude that the appeal is not moot, and that the matter is justiciable.

A Mootness

The first question concerning the mootness of this appeal derives from the defendant's obligation to report its findings and recommendations to the House of Representatives on or before June 30, 2004. Accordingly, at the scheduling hearing before this court on June 10, 2004, we raised the question of whether, depending on the dates on which we heard and ultimately decided this appeal, it would be moot, because by that point the defendant would have closed its investigative proceedings or perhaps issued its final report to the House of Representatives. Ultimately, however, the defendant at that hearing represented to this court that, if we were to hear the appeal on June 18, 2004, its proceedings would still be open as of that date, so that, as of that date, the case would not be moot.

Accordingly, on June 18, 2004, we heard and decided the present appeal. Because at that time the defendant was still in session, any question of mootness by operation of the passage of time, which might have occurred had this appeal been heard and decided at a later date, had been dispelled. The appeal, therefore, is not moot by virtue of the defendant's time frame for reporting to the House of Representatives.

Also at the June 10 hearing, however, the defendant represented to us that, although it intended to invoke neither the capias nor the penal provisions of ? 2-46 in the event that the governor refused to comply with the subpoena,9 and that it did not intend to seek contempt proceedings in that event, it was retaining the option of making the governor's noncompliance a ground for an article of impeachment on the basis of an alleged obstruction by the governor of the defendant's responsibilities. This factual scenario raises a second question concerning mootness because, if there would be no consequence of the governor's failure to comply with the subpoena, a decision of this...

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