Salvaggio v. Cotter, Civ. A. No. B-232.

• Court: United States District Courts. 2nd Circuit. United States District Court (Connecticut)
• Citation: 324 F. Supp. 681
• Docket Number: Civ. A. No. B-232.
• Decision Date: 17 March 1971
• Parties: Anthony SALVAGGIO, Plaintiff, v. The Honorable John P. COTTER, Chief Court Administrator, John P. Evans, Esq., Acting "Chief Circuit Court Prosecutor" and the Honorable Sidney A. Johnson, State Referee, Defendants.

324 F. Supp. 681

Anthony SALVAGGIO, Plaintiff,
v.
The Honorable John P. COTTER, Chief Court Administrator, John P. Evans, Esq., Acting "Chief Circuit Court Prosecutor" and the Honorable Sidney A. Johnson, State Referee, Defendants.

Civ. A. No. B-232.

United States District Court, D. Connecticut.

March 17, 1971.

324 F. Supp. 682

Howard Owens, Jr., Owens & Schine, Bridgeport, Conn., for plaintiff.

Daniel R. Schaefer, Asst. Atty. Gen. of Conn., Hartford, Conn., Joseph Harbaugh, West Hartford, Conn., for defendants.

RULING ON PLAINTIFF'S MOTION TO CONVENE A THREE-JUDGE DISTRICT COURT AND FOR EQUITABLE RELIEF; AND DEFENDANT'S MOTION TO DISMISS

CLARIE, District Judge.

The plaintiff has brought this suit against Supreme Court Justice John P. Cotter, who serves also as Chief State Court Administrator, John P. Evans, Chief State Circuit Court Prosecutor and the Honorable Sidney A. Johnson, a State Referee, under the provisions of 42 U.S.C. §§ 1981, 1983 and 1988. The relief which he requests would require the convening of a three-judge district court, pursuant to 28 U.S.C. §§ 2281, 2282, to rule upon the constitutionality of Conn.Gen.Stat. §§ 54-47 and 54-47a, as amended. The first section challenged authorizes the naming of a one-man grand jury to investigate the commission of crimes; the second outlines the procedures for compelling incriminating testimony, coincident with the granting of immunity from criminal prosecution. The plaintiff requests that this Court grant permanent injunctive relief restraining the enforcement of the statutes, together with a declaratory judgment finding that the aforesaid sections

324 F. Supp. 683

of state law are unconstitutional. He also asks this Court not only to interpret these state statutes, but also to rule upon the legal status of the office of the Chief State Court Prosecutor and the validity of the defendant Johnson's occupancy of the office of State Referee. The defendants have responded by a motion, pursuant to Rule 12(b), Fed.R.Civ. P., to dismiss the complaint for failure to state a cause of action and for lack of jurisdiction. The Court finds that the plaintiff's claims are without merit on their face and that this Court is without jurisdiction to grant the relief requested

FACTS

Acting upon an application of the State Circuit Court's Chief Prosecutor, pursuant to Conn.Gen.Stat. § 54-47(b), the defendant Cotter on October 14, 1970, ordered that the Hon. Sidney A. Johnson, a State referee, conduct an inquiry in private, pursuant to Conn.Gen. Stat. § 54-47(c), to determine whether or not there was probable cause to believe, that any crime or crimes had been committed within the jurisdiction of said Court.¹ Numerous witnesses, including the plaintiff, were then summoned to appear at a grand jury session, which had been convened to hear testimony and review relevant records.

Having been served with a subpoena duces tecum on November 11, 1970, the plaintiff filed a motion in the State Superior Court to vacate and quash said process. However, before the motion could be heard by a judicial officer, the plaintiff was interrogated before the grand jury, where he was denied the presence of his counsel in the inquiry room. During this hearing, he purportedly invoked the privilege of the fifth amendment in response to a great majority of the questions propounded to him. His presence before the grand jury was publicized in area newspapers; and there were two newspaper articles which carried a reference to his prior criminal record.

The plaintiff again requested the State Superior Court to hear a motion to quash and the court decided that it had no jurisdiction to entertain the motion; there is no evidence that an appellate review was sought. The plaintiff represents that he has been unable to obtain a judicial determination of his claims on their merits. Subsequently he filed an application for a Writ of Prohibition, directed against the defendant State Referee and the defendant Chief Court Prosecutor. This motion was heard and summarily denied November 17, 1970; no appellate review followed.

On December 10, 1970, in answer to a subpoena, the plaintiff appeared with counsel at a session of the Bridgeport Circuit Court. The defendant prosecutor delivered to him a copy of the latter's application for confirmation of criminal immunity². The judge reviewed the matter with the plaintiff in chambers, but his counsel was excluded. The judge then issued an order granting immunity from prosecution to the plaintiff under the statute³ and directed that he appear before the grand jury the following week to resume his testimony. Since the plaintiff continues to challenge the validity of the grand jury as constituted, as well as the status of its affiliated officers, the plaintiff intends to exercise his fifth amendment constitutional privilege, when the hearings resume. He represents that because of his stand, he is now confronted with a clear and present danger of being imprisoned for an indefinite and unlimited period of time.

It is the plaintiff's contention that the defendant Cotter, a constitutional judicial officer, has been unlawfully delegated with executory investigatory powers by the legislature; and the legislature has unlawfully attempted to give him

324 F. Supp. 684

the discretion to determine whether or not the grand jury session should be open to the public or held in private. The plaintiff also challenges the administrative office of defendant Evans, as Chief Circuit Court Prosecutor, on the grounds that such a public office has no lawful statutory existence; and further, that the defendant State Referee, as a member of the judicial branch of the government, has been unlawfully delegated with executive authority under Article II and Article IV, § 12 of the state constitution and in violation of the plaintiff's rights of due process as guaranteed under the fifth and fourteenth amendments to the United States Constitution. The plaintiff finally claims that the statute which authorizes immunity from criminal prosecution, where a witness voluntarily gives self-incriminating testimony before the grand jury is too restrictive, is constitutionally inadequate, and therefore a nullity

The plaintiff also represents that the unfavorable publicity toward him, which has emanated from his presence at the grand jury session, has affected his credit rating in the area and caused irreparable harm to his reputation; furthermore, as a direct result thereof, he claims that he may in the future be charged with criminal contempt, be convicted and incarcerated.

DISCUSSION

Whenever an application for a three-judge district court is submitted to the court, the threshold question to be resolved is whether the plaintiff's claim of unconstitutionality is unsubstantial, "either because it is obviously without merit or because its unsoundness so clearly results from the previous decisions of this court (the Supreme Court) as to foreclose the subject." California Water Service Co. v. City of Redding, 304 U.S. 252, 255, 58 S.Ct. 865, 867, 82 L.Ed. 1323 (1938).

"When a complaint for an injunction makes a claim of unconstitutionality which on its face would require a court of three judges under 28 U.S.C. § 2281 or 2282, the single district judge should consider whether the claim is substantial and, if he finds it is not, refuse to convoke a court of three judges and dismiss the action. Ex parte Poresky,

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