Opinion
No. CV 05-4012032
March 9, 2006
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO DISMISS
Factual and Procedural Background
On May 17, 2005, the plaintiffs, Michael D'Amato, Kyle Klewin, Charlie Klewin and Klewin Building Co., Inc., filed a ten-count complaint for injunctive and declaratory relief, seeking protection against the enforcement of legislative subpoenas issued by the defendants, government administration and elections committee (GAEC), Christopher Caruso and Donald DeFronzo. The complaint alleges, in part, that the defendants are not authorized to issue the subpoenas, which sought to compel the attendance of the plaintiffs at committee hearings held in April and May of 2005, that the subpoenas were improperly served and that their issuance fell outside the protections of the speech or debate clause of article third, § 15, of the constitution of Connecticut.
The government administration and elections committee is a joint committee of members of the Connecticut House of Representatives and Senate. Defendants Caruso and DeFronzo are the committee's co-chairs.
On July 8, 2005, the defendants moved to dismiss the plaintiffs' action on the ground that the court lacks subject matter jurisdiction because "the subpoenas were issued in furtherance of the GAEC's consideration of possible revisions to state ethics laws. Thus, the subpoenas fall squarely within the sphere of the GAEC's legitimate legislative activity and, as such, are immune from judicial review under the speech or debate clause of Article Third, § 15, of the Connecticut Constitution." The defendants also filed a memorandum of law in support of their motion to dismiss as required by Practice Book § 10-31(a), and on August 4, 2005, the plaintiffs filed a memorandum of law in opposition to the motion to dismiss pursuant to § 10-31(b).
In their memorandum of law the defendants state that they "submit this memorandum, in support of their motion to dismiss the petition for lack of subject matter jurisdiction and in opposition to the petitioners' motion to quash." (Emphasis added.) The plaintiffs' action is one for injunctive and declaratory relief, which, in the prayer for relief, seeks, inter alia, "[a] temporary and permanent injunction or an order quashing the subpoena duces tecum directed to the plaintiffs . . ." There is no motion to quash, per se, in the present case; therefore, all the defendants' arguments are considered to be in support of their motion to dismiss.
"The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . Where, however . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001).
"The plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." Fink v. Golenbock, 238 Conn. 183, 199 n. 13, 680 A.2d 1243 (1996). "[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) St. George v. Gordon, 264 Conn. 538, 544-45, 825 A.2d 90 (2003).
The defendants argue in their memorandum of law in support of their motion to dismiss that the issuance of the subpoenas falls within the sphere of the committee's legitimate legislative activity and is therefore protected by the speech or debate clause. The defendants argue that the committee was acting in its legitimate legislative capacity because the purpose for the subpoenas was to obtain testimony at hearings that were held in furtherance of the committee's consideration of possible changes to state ethics laws. They further argue that the court is not permitted to look to the committee's motives in conducting the hearings or issuing the subpoenas to determine their legislative legitimacy and that once the committee's conduct is found to be within the sphere of legitimate legislative activity, the immunity conferred by the speech or debate clause is absolute. They further argue that the subpoenas were properly issued and served.
The plaintiffs argue in opposition that the committee was not authorized to investigate ethics legislation, that the hearings were conducted and the subpoenas were issued in procedurally irregular manners, and that the subpoenas were not served properly. Specifically, they argue that Caruso and DeFronzo scheduled hearings and issued subpoenas without the majority approval of the committee as required by the joint rules of the house and senate. They further argue that the deadlines for considering new amendments or proposed bills had passed. The plaintiffs argue that the real purpose of the hearings is to lay a foundation for future criminal proceedings for alleged violations of state ethics laws. These factors, the plaintiffs argue, remove the issuance of the subpoenas from the sphere of legitimate legislative activity and the immunity conferred by the speech or debate clause. They argue that their allegations raise a colorable constitutional claim that the defendant is not acting in a legitimate legislative sphere.
The plaintiffs argue, specifically, that the subpoenas were not signed by a clerk of the court, as required by General Statutes § 52-143, that the petitioners have not received witness fees pursuant to General Statutes § 52-260(a), and that the subpoenas were served by a marshal not authorized in the judicial district of New London where the plaintiffs are located.
The speech or debate clause of the constitution of Connecticut provides that, "for any speech or debate in either house, [state senators and representatives] shall not be questioned in another place." Conn. Const., art. III, § 15. In Office of the Governor v. Select Committee of Inquiry, 271 Conn. 540, 560, 858 A.2d 709 (2004), our Supreme Court noted that while "[o]ur appellate courts previously have not had occasion to consider the meaning of our state constitution's speech or debate clause," Connecticut courts, in deciding cases involving that clause, may seek the guidance of federal law because the state's clause "closely resembles the speech or debate clause contained in article one, § 6, of the constitution of the United States . . ." Other states have similarly looked to federal law for guidance in interpreting the speech or debate clauses of their state constitutions. See, e.g., State v. Neufeld, 260 Kan. 930, 939-40, 926 P.2d 1325 (1996). As a preliminary matter, therefore, this court will undertake a review of state and federal case law relevant to the determination to be made in the present case, that is, whether the speech or debate clause of the Connecticut constitution protects the defendants' issuance of subpoenas and therefore deprives this court of subject matter jurisdiction.
"[T]he design of the federal speech or debate clause is to ensure that the legislative branch will be able to discharge its duties free from undue external interference." Office of the Governor v. Select Committee of Inquiry, supra, 271 Conn. 560, citing Eastland v. United States Servicemen's Fund, 421 U.S. 491, 502, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975). "In order to effectuate the important considerations underlying the federal speech or debate clause, the United States Supreme Court has voiced a willingness to interpret the immunity afforded by the clause generously . . ." Office of the Governor v. Select Committee of Inquiry, supra, 561. The Supreme Court of Kansas, in State v. Neufeld, supra, 260 Kan. 930, pointed out this willingness to interpret broadly the immunity afforded by the clause. The Neufeld court noted that all the federal cases that it had found to assist in the interpretation of the Kansas constitution speech or debate clause held that the clause applies to a wide variety of legislative conduct, including "committee reports, resolutions, voting and all things generally done in a legislative session in relation to the business at hand. Hutchinson v. Proxmire, 443 U.S. 111, 61 L.Ed.2d 411, 99 S.Ct. 2675 (1979); United States v. Helstoski, 442 U.S. 477, 61 L.Ed.2d 12, 99 S.Ct. 2432 (1979); Davis v. Passman, 442 U.S. 228, 60 L.Ed.2d 846, 99 S.Ct. 2264 (1979); Eastland v. United States Servicemen's Fund, 421 U.S. 491, 44 L.Ed.2d 324, 95 S.Ct. 1813 (1975); Scheuer v. Rhodes, 416 U.S. 232, 40 L.Ed.2d 90, 94 S.Ct. 1683 (1974); Doe v. McMillan, 412 U.S. 306, 36 L.Ed.2d 912, 93 S.Ct. 2018, motion for clarification denied, 419 U.S. 1043 (1973); [United States v.] Gravel, 408 U.S. 606 [ 33 L.Ed.2d 583, 92 S.Ct. 2614 (1972)]; United States v. Brewster, 408 U.S. 501, 33 L.Ed.2d 507, 92 S.Ct. 2531 (1972); Powell v. McCormack, 395 U.S. 486, 23 L.Ed.2d 491, 89 S.Ct. 1944 (1969); Dombrowski v. Eastland, 387 U.S. 82, 18 L.Ed.2d 577, 87 S.Ct. 1425 (1967); [United States v.] Johnson, 383 U.S. 169; Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377 (1880)." State v. Neufeld, supra, 260 Kan. 939-40.
As broadly as the clause has been construed, however, the immunity conferred by it is not limitless. Office of the Governor v. Select Committee of Inquiry, supra, 271 Conn. 562. "[E]ven for conduct within the penumbra of legislative activities, the immunity conferred by the federal speech or debate clause is limited to conduct occurring within the sphere of legitimate legislative activity." (Emphasis added; internal quotation marks omitted.) Id., 563. In United States v. Brewster, supra, 408 U.S. 501, for example, the clause did not extend to protect a legislator from prosecution for bribery charges because such prosecution did not require an inquiry into legislative acts or the motivation for them. Id., 528-29. "An official's bad motivation, or unworthy purpose, does not affect the immunity privilege so long as the actions fall within the ambit of protected legislative activity." (Internal quotation marks omitted.) Acevedo-Garcia v. Vera-Monroig, 204 F.3d 1, 8 (1st Cir. 2000). "Whether an act is legislative turns on the nature of the act, rather than on the motive or intent of the official performing it." Bogan v. Scott-Harris, 523 U.S. 44, 54, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998). "[O]nce it is determined that [m]embers are acting within the legitimate legislative sphere [however] the . . . [c]lause is an absolute bar to interference." (Emphasis added; internal quotation marks omitted.) Eastland v. United States Servicemen's Fund, supra, 421 U.S. 503.
"In determining whether particular activities other than literal speech or debate fall within the legitimate legislative sphere [courts] look to see whether the activities took place in a session of the House by one of its members in relation to the business before it . . . More specifically, [courts] must determine whether the activities are an integral part of the deliberative and communicative processes by which [m]embers participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the [c]onstitution places within the jurisdiction of either House." Office of the Governor v. Select Committee of Inquiry, supra, 271 Conn. 563-64, quoting Eastland v. United States Servicemen's Fund, supra, 421 U.S. 503-04.
Legitimate legislative activity has also been interpreted to include investigations relating to subjects upon which legislation could be had. Tenney v. Brandhove, 341 U.S. 367, 377, 71 S.Ct. 783, 95 L.Ed. 1019. Issuing subpoenas in conjunction with such investigations has also been construed as legitimate legislative conduct. Eastland v. United States Servicemen's Fund, supra, 421 U.S. 504-05.
One federal district court case states that in the sensitive areas of first amendment rights and racial discrimination, "[w]here there exists the clear possibility of an immediate and irreparable injury to such rights by state legislative action the federal courts have exercised their equitable powers including the declaratory judgment and the injunction" to intervene. Jordan v. Hutcheson, 323 F.2d 597, 601-02 (4th Cir. 1963). The United States Supreme Court in Eastland v. United States Servicemen's Fund, supra, however, stated that an allegation that first amendment rights might be infringed upon by congressional action does not empower the judiciary to intervene to protect those rights, for such an interpretation "ignores the absolute nature of the speech and debate protection and our cases which have broadly construed that protection." Id., 509-10. "The privilege . . . permits Congress to conduct investigations and obtain information without interference from the courts, at least when these activities are performed in a procedurally regular fashion . . . That Americans might suffer injustices (perhaps even unconstitutional ones) [does] not permit courts to scrutinize the purposes and methods of congressional inquiry. Rather, the legislative privilege is absolute where it applies at all . . . Those distressed by the investigation [have] no judicial remedy so long as Congress [acts] in a procedurally regular manner. [R]isk of such abuse was the conscious choice of the Framers." (Citations omitted; internal quotation marks omitted.) Brown v. Williamson, 62 F.3d 408, 416 (D.C. Cir. 1995).
As has previously been noted, the only Connecticut appellate case to consider the meaning of the speech or debate clause is Office of the Governor v. Select Committee of Inquiry, supra, 271 Conn. 540. In that case, the plaintiff and the defendant were coequal branches of government, the executive and legislative branches, respectively. The governor challenged the validity of a subpoena issued by the defendant, a legislative committee authorized by the House of Representatives, inter alia, to conduct an investigation relating to misconduct by the governor on two grounds. Those grounds were: "(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." Id., 544. The defendant committee contended that both the trial court and the Supreme Court lacked subject matter jurisdiction over the governor's challenge to the subpoena because of the immunity provided the committee by the speech or debate clause contained in the Connecticut constitution. Id. In that case, the Supreme Court set forth "the standard by which we consider the extent to which judicial review of impeachment proceedings against a sitting governor is authorized by our constitutional structure." Id., 555.
In determining whether subject matter jurisdiction was lacking, the court concluded that "our speech or debate clause does not immunize from judicial review a colorable constitutional claim, made in good faith, that the legislature has violated the separation of powers by exceeding the bounds of its impeachment authority and, therefore, has conducted itself outside the sphere of legitimate legislative activity." Id., 559-60. The court was not persuaded by the legislature's reliance on Eastland v. United States Servicemen's Fund, supra, 421 U.S. 491, although it recognized that the case before it and Eastland both involved the legislative issuance of a subpoena for investigative purposes. The court noted that the claims raised in both cases were poles apart: "In Eastland, the gravamen of the servicemen fund's claim was not that the legislative subpoena was an illegitimate exercise of the congressional investigatory power, but rather that the subpoena was improper because of its adverse collateral consequences on the constitutional rights of the servicemen fund's members . . . In the present case, the plaintiff's claim is not that the subpoena should be quashed because of its collateral constitutional consequences render it improper; rather, the plaintiff claims that the subpoena should be quashed because the legislative authority to investigate in aid of the impeachment power does not extend to the compulsion of testimony from the sitting chief executive and the subpoena, therefore, is outside the sphere of legitimate legislative activity. Furthermore, Eastland is distinguishable because it involved a claim raised by a private party, not, as here, a challenge to legislative conduct by a coequal branch of government." Id., 567-68.
Turning now to the present case, this court, bearing in mind that it must construe the facts alleged in the complaint in a manner most favorable to the plaintiffs; see Filippi v. Sullivan, supra, 273 Conn. 1; must determine whether, based on the allegations in the plaintiffs' complaint, the defendants' issuance of the subpoenas falls within the sphere of legitimate legislative activity. For if this court concludes that the defendants were acting within the sphere of legitimate legislative activity, then this court lacks subject matter jurisdiction over the plaintiffs' claims for injunctive and declaratory relief because the defendants are absolutely immune from judicial review of their activity under the speech or debate clause contained in article three, § 15, of the constitution of Connecticut. See, Eastland v. United States Servicemen's Fund, supra.
The plaintiffs allege in paragraph six of their complaint that the committee "has all of the powers of any committee of the General Assembly under Connecticut General Statutes Section 2-46, which includes the power to issue subpoenas in any `case under their examination.'" General Statues § 2-46(a) does state in relevant part that "[t]he president of the Senate, the speaker of the House of Representatives, or a chairman of the whole or any committee of either house . . . shall have the power to compel the attendance and testimony of witnesses by subpoena and capias issued by any of them, require the production of any necessary books, papers or other documents and administer oaths to witnesses in any case under their examination." In paragraph eight of their complaint, the plaintiffs quote from an opinion of the attorney general, which opinion is attached as an exhibit to their memorandum of law in opposition to the defendants' motion to dismiss. The attorney general offers the opinion that "the phrase `case under their examination' in Section 2-46(a) means any matter which the designated legislative officers are otherwise authorized to investigate. The specific facts would determine whether a particular situation comes under the authorization." (Emphasis in original.) Opinions, Conn. Atty. Gen. No. 84-130 (November 16, 1984). "Although an opinion of the attorney general is not binding on a court, it is entitled to careful consideration and is generally regarded as highly persuasive." (Internal quotation marks omitted.) Velez v. Commissioner of Correction, 250 Conn. 536, 545, 738 A.2d 604 (1999).
The plaintiffs have also alleged in paragraph four of their complaint that the defendant committee is a joint committee of members of the Connecticut House of Representatives and the Senate and have attached as exhibit 8 to their memorandum of law copies of the Joint Rules of the Senate and House of Representative. Under those rules, the committee is described as a committee, "which shall have cognizance of all matters relating to the Department of Administrative Services, including purchasing and central collections . . . all matters relating to the Department of Public Works, and the Department of Information Technology; all matters relating to state government organization, structures and procedures; all matters relating to leasing, construction, maintenance, purchase and sale of state property and facilities and all bills authorizing the conveyance of real property or any interest therein, by the state shall be referred to said committee; the Freedom of Information Commission and the Ethics Commission . . ." (Emphasis added.)
In paragraphs ten through nineteen of their complaint, the plaintiffs allege that neither an "informational hearing" nor a "discussion" is a "case under examination" as opined in the attorney general's opinion and that the GAEC is not authorized under § 2-46 to issue a subpoena relating to informational hearings or discussions. This court's reading of the attorney general's opinion leads to a different conclusion than the plaintiffs' conclusion that the hearings before which the committee subpoenaed the plaintiffs could not be deemed a "case under examination" as that phrase is used in § 2-46(a) because those hearings were "informational" hearings or "discussions," not investigations. This court notes that the attorney general's opinion was issued in response to a general question, "namely, what does the phrase `in any case under their examination' mean." The opinion states that "[b]ecause of the general nature of the question without a supporting underlying factual situation, we must of necessity answer you in general terms." (Emphasis added.) The plaintiffs' interpretation would result in a narrow view of the legislative acts protected by the speech or debate clause.
Paragraphs one through twenty-three of the first count of the plaintiffs' complaint are incorporated by reference in counts two through ten.
The plaintiffs have also raised constitutional claims. Specifically, they claim in paragraph nineteen that the subpoenas are unlawful because they "are not signed by a clerk of court or a commissioner of the Superior Court as required by Connecticut General Statues Section 52-143 and, therefore, violate the separation of powers in Article second of the Constitution. The issuance of subpoenas by the Committee that are not signed by a clerk of court or commissioner of the Superior Court as required by 52-143, powers that lie exclusively under the control of the courts, violate Article Second of the Connecticut Constitution." The plaintiffs, however, provide no legal authority to support this conclusion.
On the contrary, General Statues § 2-46(a) specifically states that "any committee of either house . . . shall have the power to compel the attendance and testimony of witnesses by capias and subpoena issued by any of them . . ." (Emphasis added.) In addition, the attorney general's opinion previously cited states: "In reviewing relevant legislative history, we noted that the subpoena powers provided by this statute were intended to be comprehensive. When the amendment providing for this authority was discussed in the House of Representatives on the day it was passed, it was stated in support of the favorable committee report: This bill would clarify the section and remove any doubt that the General Assembly has full and complete subpoena powers which the General Assembly and the Legislature should have." To read into § 2-46(a) a requirement that the subpoenas issued by the legislature must be signed by a clerk of the court or a commissioner of the Superior Court as required by General Statutes § 52-143, a statute that governs the judicial branch, could, as the defendants have argued, constitute a violation of the separation of powers doctrine.
Although the Connecticut Supreme Court in Office of the Governor v. Select Committee of Inquiry, supra, 271 Conn. 540, did carve out an exception to the immunity from judicial review that the speech or debate clause provides the legislature, that exception was narrowly drawn. The court held that "our speech and debate clause does not immunize from judicial review a colorable constitutional claim, made in good faith, that the legislature has violated the separation of powers by exceeding the bounds of its impeachment authority and, therefore, has conducted itself outside the sphere of legitimate legislative activity." Id., 559-60. The separation of powers claim raised by the plaintiffs in the present case is not the same as the claim raised in Office of the Governor; the present case does not involve the exercise of the legislature's impeachment powers. In addition, as previously noted, the court in Office of the Governor, in distinguishing Eastland, noted that it was dealing with a claim between two coequal branches of government. The facts of the present case are more closely aligned to those found in Eastland. Here, as in Eastland, the challenge to legislative conduct is being made by private parties, not a coequal branch of government.
The plaintiffs have also alleged in paragraph twenty-four of count one of their complaint that "[r]equiring Plaintiffs to testify violates their rights under the due process clauses of the federal and state constitutions." The effect of such a claim on the immunity provided by the speech or debate clause was addressed by the court in Eastland v. United States Servicemen's Fund and Brown v. Williamson, recounted earlier in this memorandum. To reiterate, the United States Supreme Court in Eastland stated that if a court were to permit allegations that constitutional rights may be infringed by congressional action as a justification for the court's intervention to protect those rights, such court would be ignoring "the absolute nature of the speech or debate clause protection and our cases which have broadly construed that protection." Eastland v. United States Servicemen's Fund, supra, 421 U.S. 509-10.
In light of the joint rules of the senate and house of representatives, which give the committee cognizance of all matters relating to the Ethics Commission, the committee's subpoena powers under § 2-46(a), and the other factual allegations in the plaintiffs' complaint, as reviewed above, it appears to this court that the activities of the committee in conducting hearings and issuing subpoenas fall within the "legitimate legislative sphere." Accordingly, those activities are therefore absolutely protected from judicial review by our constitution's speech or debate clause. As a result, this court lacks subject matter jurisdiction, and the defendants' motion to dismiss is therefore granted.
Notwithstanding the granting of this motion to dismiss, the committee's conduct will continue to be subject to the requirements of legitimate legislative conduct, for as stated in United States v. Icardi, 140 F.Sup. 383, 388 (D.D.C. 1956), "[w]hile a committee or subcommittee . . . has the right to inquire whether there is a likelihood that a crime has been committed touching upon a field within its general jurisdiction . . . this authority cannot be extended to sanction a legislative trial."