Petition of State's Attorney, Cook County, Ill.

• Decision Date: 11 September 1979
• Citation: 425 A.2d 588,179 Conn. 102
• Court: Connecticut Supreme Court
• Parties: In re Petition of STATE'S ATTORNEY, COOK COUNTY, ILLINOIS.

Page 588

425 A.2d 588

179 Conn. 102

In re Petition of STATE'S ATTORNEY, COOK COUNTY, ILLINOIS.

Supreme Court of Connecticut.

Argued June 7, 1979.

Decided Sept. 11, 1979.

H. B. Carey, III, Hartford, with whom, on brief, was George C. Hastings, Hartford, for appellant-appellee (Anthony R. Martin-Trigona).

Ernest J. Diette, Jr., Chief Appellate Counsel, Asst. State's Atty., with whom, on brief, was George D. Stoughton, State's Atty., for appellee-appellant (petitioner).

Before COTTER, C. J., and BOGDANSKI, LONGO, SPEZIALE and PETERS, JJ.

PER CURIAM.

The dispositive issue in this case is whether a customer of a bank has the requisite standing to appear and contest the legal sufficiency of a subpoena duces tecum issued to a bank employee to produce records of the customer's transactions under General Statutes § 54-22, Connecticut's enactment of the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings. ¹

Pursuant to § 54-22, a certificate signed by a judge of Cook County, Illinois was presented on August 10, 1978, to the Superior Court for the County of Hartford. In the certificate, the Illinois judge stated that an extended May, 1978 grand jury of Cook County, Illinois was investigating possible offenses of theft and forgery by Anthony R. Martin-Trigona, the appellant, regarding a check in the amount of $267,738 and the proceeds thereof. The purposes of the certificate were: (1) to compel the attendance and testimony of Kathy Ucci, customer services representative of The Connecticut Bank and Trust Company (hereinafter "CBT") before the Illinois grand jury; and (2) to compel Ucci to produce CBT records relating to the use of certain funds from the account of Martin-Trigona. Neither Ucci nor CBT challenged the order to attend. On August 10, 1978, after a hearing, the trial court entered an order directing Ucci to appear before the Illinois grand jury on August 24, 1978.

Martin-Trigona had not received prior notice of the August 10 hearing nor had he been sent a copy of the proposed subpoena to compel the attendance of Ucci at the grand jury. Martin-Trigona was first notified of the order and subpoena on August 19, and on August 22 he petitioned the court to open, vacate or stay its order of August 10, 1978. Thereafter, a hearing was held in the trial court at which Martin-Trigona stated under oath that he had testified before the Illinois grand jury that he had endorsed with his own signature and deposited in his personal checking account in an Illinois bank a check in the amount of $267,738, which was payable to three persons, one of whom was himself as beneficiary of a trust. He further claimed to have testified to the grand jury that he used the proceeds from the above check for his own use and benefit and that $175,000 of these proceeds were transferred to his account in CBT in Hartford. No transcript of the grand jury proceeding was produced, however, to verify this testimony.

The trial court found that, assuming arguendo that Martin-Trigona had testified to the above matters before the grand jury, his CBT bank records were nevertheless material and necessary for the grand jury investigation. By order dated October 10, 1978, the court granted the petition and directed Ucci to appear and testify before the Illinois grand jury, and Martin-Trigona appealed therefrom.

On his appeal, Martin-Trigona claims that § 54-22 does not authorize a Connecticut court to issue a subpoena duces tecum, and that the trial court erred in its determination that the testimony and documents requested by the Illinois court were necessary and material to the Illinois grand jury investigation. On his cross-appeal, the Connecticut state's attorney ² asserts that the trial court erred in finding that Martin-Trigona had standing to appear and contest the legal sufficiency of the subpoena directed to CBT. Because the threshold issue of standing raised on the cross-appeal is dispositive of this case, we do not address the claims raised by Martin-Trigona on his appeal.

It is clear that the appellant, Martin-Trigona, as a bank customer, had no constitutional right to appear and contest the issuance of the subpoena for bank records regarding his account. United States v. Miller, 425 U.S. 435, 444-45, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976); see California Bankers Assn. v. Shultz, 416 U.S. 21, 53, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974). He contends, however, that by enacting General Statutes § 36-9l ³ the legislature created a statutory right in a bank customer to contest the sufficiency of a subpoena issued under § 54-22. We do not agree. Had the legislature, which acted after the United States Supreme Court decisions, supra, ⁴ intended to create such a right, it would have specifically written it into the statute. The legislature did not provide for a hearing procedure in § 36-9l, but provided only for service of a copy of the subpoena to the customer, subject to waiver by court order. "If the language of the statute is clear, it is assumed that the words themselves express the intent of the legislature; Houston v. Warden, 169 Conn. 247, 251, 363 A.2d 121 (1975); Hurlbut v. Lemelin, 155 Conn. 68, 73, 230 A.2d 36 (1967); and thus there is no need to construe the statute. Bell v. Planning & Zoning Commission, 173 Conn. 223, 226, 377 A.2d 299 (1977); Houston v. Warden, supra, 169 Conn. 251, 363 A.2d 121; Hartford Hospital v. Hartford, 160 Conn. 370, 375-76, 279 A.2d 561 (1971)." Anderson v. Ludgin, 175 Conn. 545, 552, 400 A.2d 712, 717 (1978); United Aircraft Corporation v. Fusari, 163 Conn. 401, 410-11, 311 A.2d 65 (1972). The legislative intent is clear and unambiguous; thus there is no need for statutory construction or a review of the legislative history as urged in the opinion concurring in part and dissenting in part. Moreover, it is not the province of a court to supply what the legislature chose to omit. The legislature is supreme in the area of legislation, and courts must apply statutory enactments according to their plain terms. Weingarten v. Allstate Ins. Co., 169 Conn. 502, 507-508, 363 A.2d 1055 (1975); International Business Machines Corporation v. Brown, 167 Conn. 123, 134, 355 A.2d 236 (1974); State v. Malm, 143 Conn. 462, 467, 123 A.2d 276 (1956). Therefore we cannot infer the right to a hearing from the provision for notice in § 36-9l, as recommended by the opinion concurring in part and dissenting in part. We hold that Martin-Trigona lacked standing to contest the sufficiency of the subpoena. The effect of this decision is to uphold the order of the trial court directing Ucci to appear before the grand jury of Cook County, Illinois.

There is error on the cross-appeal of the petitioner and the appeal of Martin-Trigona is dismissed.

In this opinion COTTER, C. J., and LONGO and SPEZIALE, JJ., concurred.

PETERS, Associate Justice (concurring in part and dissenting in part).

Although I agree that the appellant, Martin-Trigona, has no constitutional right to appear and to contest the issuance of the subpoena of his bank records, I do not agree with the conclusion of the majority that this lack of standing is unaffected by the enactment of General Statutes § 36-9l.

The legislative history of § 36-9l indicates that the statute was intended to provide bank customers an opportunity to challenge, in court, the propriety of disclosure of their bank records. The statute was passed after and, at least in part, in response to the United States Supreme Court cases cited in the majority opinion. Those cases addressed only a customer's rights under the fourth amendment of the United States constitution, and did not purport to preclude state legislation to govern the legal process by which subpoenas of bank records should be implemented. See United States v. Miller, 425 U.S. 435, 445-46, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976). Cf. Valley Bank of Nevada v. Superior Court, 15 Cal.3d 652, 125 Cal.Rptr. 553, 542 P.2d 977 (1975); Burrows v. Superior Court, 13 Cal.3d 238, 118 Cal.Rptr. 166, 529 P.2d 590 (1974). At the hearings concerning what has become § 36-9l, the bill's chief sponsor testified that the bill's provision requiring ten days' notice before the disclosure of bank records was purposely designed to enable a customer to contest a subpoena in court, if he so chose. 2 H.R.Proc., pt. 7, 1977 Sess., p. 2635. ¹

While legislative history is not dispositive, it does shed useful light on the language actually used by the legislature to effectuate its purpose. The text of § 36-9l is clear and explicit that a customer is entitled to notice ten days prior to disclosure of his financial records by a financial institution. While the statute does not expressly authorize the right to participate in a hearing concerning the records to be subpoenaed, such a right is a logical and necessary inference from the right to notice. A right to notice implies a right to act upon receipt of notice, and the normal consequence of notice is an opportunity to be heard. Slagle v. Zoning Board of Appeals, 144 Conn. 690, 693, 137 A.2d 542 (195...