Morgan v. Brown

592 A.2d 925, 219 Conn. 204, 1991 Conn. LEXIS 300
CourtSupreme Court of Connecticut
DecidedJune 18, 1991
Docket14228
StatusPublished
Cited by14 cases

This text of 592 A.2d 925 (Morgan v. Brown) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Morgan v. Brown, 592 A.2d 925, 219 Conn. 204, 1991 Conn. LEXIS 300 (Colo. 1991).

Opinion

Peters, C. J.

The principal issue in this consolidated appeal is whether General Statutes § 36-91 (b)1 confers standing upon a bank customer to challenge alleged procedural deficiencies in the manner in which investigative subpoenas for his bank records were served upon his bank. The plaintiffs, Roger Morgan and Paul Legassey (customers), filed applications to quash four administrative subpoenas duces tecum that the defendant, Howard B. Brown, Jr., commissioner of banking (commissioner), had directed to be served, pursuant to General Statutes §§ 36-91 (a) and 36-495 (a), on banks [206]*206in which the customers maintained accounts. The trial court granted the applications to quash, in some instances because of the state’s failure to pay witness fees to the banks, and in others because of the sheriff’s choice of an inappropriate person to serve within the bank. The commissioner appealed to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023. We reverse.

The commissioner caused the administrative subpoenas in this case to be issued in the course of his investigation into the sale of units in four real estate limited partnerships. His investigation was intended to uncover possible violations of the Connecticut Uniform Securities Act; General Statutes §§ 36-470 through 36-502; which includes the sale of such units within its jurisdiction. The customers have not challenged the commissioner’s regulatory authority to undertake this investigation or to issue the relevant subpoenas. See General Statutes § 36-495.2

The commissioner’s investigation led him to cause four administrative subpoenas to be issued on April 24, 1990. Subpoenas for the financial records of the plaintiff Morgan were served on Northeast Savings Bank, and, with respect to the plaintiff Legassey, on the Connecticut Bank and Trust Company, the Bank of Bos[207]*207ton, and the Glastonbury Bank and Trust Company. In accordance with § 36-9Z (a), the commissioner served the customers with certified copies of the bank subpoenas at least ten days prior to the production date stated in the subpoenas. The customers have not challenged the propriety of the commissioner’s conduct with respect to their own service except for their renewal of a claim, rejected by the trial court, that each of them was entitled to be paid witness fees.

The trial court found that the commissioner’s service of the subpoenas on the banks was defective in two respects. The court found that, in executing service, the commissioner failed to tender a witness fee to the Northeast Savings Bank, the Connecticut Bank and Trust Company, or the Glastonbury Bank and Trust Company, and concluded that this failure violated the requirements of General Statutes § 52-260.3 The court further found that, in each case, service had been accomplished by in-hand personal service. The persons so served were: for the Northeast Savings Bank, an employee holding the position of staff counsel; for the Connecticut Bank and Trust Company, the bank’s assistant secretary; for the Bank of Boston, the branch assistant; and for the Glastonbury Bank and Trust Company, its senior vice president. The court concluded that effecting service on a person with the title of staff counsel or branch assistant violated the requirements of General Statutes § 52-57 (c).4 The court concluded, [208]*208therefore, that each of the subpoenas was defectively served in one or more respects.

In the absence of timely objection by the parties served to such alleged procedural defects, the ordinary rule is that the defects have been waived. See Practice Book § 144;5 Bridgeport v. Debek, 210 Conn. 175, 180, 554 A.2d 728 (1989); Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 53, 459 A.2d 503 (1983). The trial court ruled, however, that a different rule obtained in this case because § 36-9Z (b) conferred standing on the customers to challenge the validity of the subpoenas. The trial court therefore granted the customers’ applications to quash all four subpoenas.

The commissioner’s appeal raises three issues of statutory construction: (1) do the customers have standing, under § 36-9Í (b), to challenge the subpoenas because of procedural irregularities in their service on their banks; (2) in light of the state’s sovereign immunity, does § 52-260 include state investigatory subpoenas within its requirements for the payment of witness fees; and (3) in light of the past practices of the respective banks, does § 52-57 (c) invalidate the service of process of the subpoenas? The customers urge us to consider, as alternate grounds for affirming the judgment of the trial court, that the subpoenas should have been quashed because (1) the customers them[209]*209selves should have been paid witness fees, and (2) letters accompanying the subpoenas improperly attempted to induce the banks to deliver the requested documents before the expiration of the ten day waiting period specified in § 36-9Z (a). We agree with the commissioner that the customers lack standing to raise the issues upon which the trial court relied in quashing the subpoenas, and that the trial court correctly ruled against the customers on their alternate grounds for affirmance.

I

The dispositive issue on the commissioner’s appeal is the scope of the standing conferred upon a bank customer by § 36-9Z (b), which provides that “[a] customer of a financial institution shall have standing to challenge a subpoena of his financial records . . . .” Did the legislature thereby intend to confer standing on a bank customer for the specific purpose of permitting him to challenge disclosure of the substantive contents of his financial records? Did the legislature further intend to confer standing on a bank customer to challenge, as a third party surrogate, the procedures by which service of process was effected on the financial institution in which he has his bank account? The text of the statute provides no clear answer.

Three propositions frame our analysis of the scope of the standing that § 36-9Z (b) confers on bank customers. First, a bank customer has “no constitutional right to appear and contest the issuance of [a] 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 Banks Assn. v. Schultz, 416 U.S. 21, 53, 94 S. Ct. 1494, 39 L. Ed. 2d 812 (1974).” In re Petition of State’s Attorney, Cook County, Illinois, 179 Conn. 102, 106, 425 A.2d 588 (1979). Second, a bank customer has no statutory right, apart from § 36-9Z (b), [210]*210to raise procedural defects relating to the service of process on his bank unless those defects adversely implicate a court’s subject matter jurisdiction. Bridgeport v. Debek, supra, 179-80.

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Bluebook (online)
592 A.2d 925, 219 Conn. 204, 1991 Conn. LEXIS 300, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morgan-v-brown-conn-1991.