October 26, 2004 CONNECTICUT LAW JOURNAL Page 12-14
271 Conn. 540 OCTOBER, 2004 540-542 Office of the Governor v. Select Committee of Inquiry
OFFICE 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 (SC 17211)
Sullivan, C. J., and Borden, Norcott, Katz, Palmer, Vertefeuille and Zarella, Js.
The defendant, a select committee of inquiry of the House of Representatives, was authorized by the House to conduct. a comprehensive investigation relating to misconduct by Governor John G. Rowland, and to submit its findings and recommendations to the House, including whether sufficient grounds existed for the House to exercise its power to impeach the governor Pursuant to its statutory (§ 2-46) investigative authority, the defendant issued a subpoena to the governor ordering him to appear and to testify in proceedings before the defendant. The plaintiff, the office of the governor filed an action in the trial court seeking to quash the subpoena, to enjoin the defendant from enforcing the subpoena, and to declare the enforcement of the subpoena unconstitutional as a violation of the separation of powers doctrine. The defendant filed a motion to dismiss the action claiming that the trial court lacked subject matter jurisdiction over the plaintiffs challenge to the defendant's issuance of the subpoena. The trial court rendered judgment denying the plaintiffs motion to quash and its request for injunctive and declaratory relief, as well as the defendant's motion to dismiss. Thereafter, the plaintiff, on the granting of certification by the chief justice pursuant to the statute (§ 52-265a) providing for art interlocutory appeal of a matter involving a question of substantial public interest, appealed to this court. Held:
1. The facts that, on the date this court heard this appeal, the proceedings before the defendant were still open and the time frame within which it was required to report to the House had not passed dispelled any question of mootness by operation of the passage of time, which might have occurred had the appeal been heard and decided at a later date; furthermore, because of the collateral consequence of the potential for an article of impeachment on the basis of the governor's noncompliance with the subpoena, the appeal in this case was not moot despite the defendant's representation that 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.
2. Contrary to the defendant's claim, the trial court had subject matter jurisdiction in the first instance, and this court, possessed subject matter jurisdiction on appeal, over the plaintiffs challenge to the defendant's issuance of the subpoena: the legislature's impeachment authority with respect to the governor did not preclude judicial review of the matter in this case, the plaintiff having asserted, in good faith, a colorable claim of a constitutional violation involving the separation of powers; the speech or debate clause of the state constitution did not immunize from judicial review the plaintiff’s colorable constitutional claim, made in good faith, that the legislature violated the principle of the separation of powers during the exercise of its impeachment inquiry; the plaintiff’s challenge to the defendant's issuance of the subpoena was ripe for review, the defendant having indicated that, although it did not intend to enforce compliance with its subpoena, the governor's refusal to comply might have resulted in an article of impeachment, which would have foreclosed for all time any judicial involvement in the dispute, and the plaintiff’s constitutional challenge to the defendant's issuance of the subpoena did not present a nonjusticiable political question that precluded judicial review.
3. The separation of powers provision of the state constitution did not provide the governor with categorical immunity from being subpoenaed to testify before the defendant engaged in its investigative, fact-finding and advisory duties regarding possible impeachment of the governor: because a recommendation of impeachment has the serious and immediate consequences of transferring the executive powers to the lieutenant governor during the impeachment process, there was a compelling need for the defendant to have a full and accurate basis for its findings and recommendations, and the governor was a unique source of the information required by the defendant in making its recommendations to the House; the defendant's ability to obtain evidence from the governor during its investigation into his conduct was in furtherance of the critical constitutional check, as expressed in the separation of powers provision, on executive authority necessary to preserve the constitution's careful balance of powers; and categorical immunity would place a serious impediment on the legislative branch's ability to discharge effectively its own constitutional duty to exercise the impeachment power with which it has been entrusted.
(Two justices dissenting separately in two opinions)
Argued June 18 -- officially released June 18, 2004
Motion to quash a subpoena to compel the governor to testify in proceedings before the defendant investigating whether grounds exist to impeach the governor, and action to enjoin the defendant from enforcing the subpoena and to declare the enforcement of the subpoena unconstitutional as a violation of the separation of powers, brought to the Superior Court in the judicial district of Hartford, where the court, Langenbach, J., denied the defendant's motion to dismiss and issued a memorandum of decision denying the motion to quash and the request for injunctive and declaratory relief, and the plaintiff, upon certification from the Chief Justice that a matter of substantial public interest is at issue, appealed to this court. Affirmed.
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, and Laura Jordan and Mary Anne O'Neill, for the appellee (defendant).