author: Peters, C. J.

text:
    State of Connecticut v. George Blasko
    (13003)
    Peters, C. J., Healey, Shea, Santaniello and Callahan, Js.

      Argued January 14
    decision released March 17, 1987

      JohnM. Massameno, assistant state’s attorney, with whom, on the brief, were John J. Kelly, chief state’s attorney, and Domenick J. Galluzzo, assistant state’s attorney, for the appellant (state).

      Barbara Aaron, with whom, on the brief, were Albert J. McGrail and Patrick Tomasiewicz, for the appellee (defendant).
   Peters, C. J.

The issue in this appeal is whether the 1985 reform of the procedures governing investigatory grand juries terminated the authority of grand juries that had been duly constituted before the effective date of Public Acts 1985, No. 85-611. Because the continuing validity of a number of preexisting grand juries is affected by our resolution of this issue, this is an unusual case demanding expedited resolution. Accordingly, on January 27,1987, we announced our decision that Public Acts 1985, No. 85-611, as clarified by Public Acts 1986, No. 86-317, did not revoke the authority of or alter the procedures governing investigatory grand juries that had been properly authorized before October 1, 1985. State v. Blasko, 202 Conn. 189, 520 A.2d 207 (1987). We indicated then that a full opinion would follow in due course.

This case arises out of an information, dated December 12,1985, charging the defendant, George Blasko, with two counts of sale of cocaine, in violation of General Statutes § 19-480 (a) (now § 21a-277 [a]), and two counts of sale of marihuana, in violation of General Statutes § 19-480 (b) (now § 21a-277 [b]). The trial court granted, in part, the defendant’s motion to suppress evidence arising out of an investigation by a grand jury whose authority allegedly had been revoked by the enactment of Public Acts 1985, No. 85-611 (hereinafter P.A. No. 85-611), effective October 1,1985. When the legislature thereafter enacted Public Acts 1986, No. 86-317 (hereinafter P.A. No. 86-317), the state filed a motion to reargue the dismissal, but the trial court, after a hearing, affirmed its earlier ruling in favor of the defendant. On the state’s motion, the trial court dismissed the charges against the defendant with prejudice, and the state has appealed. See State v. Ross, 189 Conn. 42, 49-51, 454 A.2d 266 (1983).

The state does not contest the facts that underlie the trial court’s ruling. On October 12, 1984, pursuant to General Statutes § 54-47, the chief court administrator appointed Superior Court Judge Anthony V. DeMayo to investigate professional gambling and related criminal activity in Torrington. After completing part of this inquiry, Judge DeMayo on December 12, 1985, filed with the Superior Court for the judicial district of Hartford-New Britain at Hartford a report entitled “first interim report.” That same day, the defendant was arrested on the criminal charges described above.

While the grand jury investigation was pending, and prior to the defendant’s arrest, the legislature enacted P.A. No. 85-611, entitled “An Act Concerning The Investigatory Grand Jury System,” which became effective October 1, 1985. That act repealed General Statutes § 54-47, under which grand juror DeMayo had been authorized to pursue his inquiry, and instituted far-reaching procedural reforms of the investigatory grand jury system. The new act substituted, as authority for the appointment of a grand jury, the approval of a panel of three Superior Court judges, whereas under the prior law an applicant could obtain the requisite permission from the Superior Court or from the chief court administrator. Under the new act, but not under the old, an applicant requesting the appointment of an investigatory grand jury must demonstrate a reasonable belief that there is probable cause to believe that crimes have been committed. Furthermore, the new act describes in detail the information that must be furnished in the application, including the identity of the applicant and his authority to make the application, the facts and circumstances that justify his reasonable belief that an investigation will lead to a finding of probable cause, and any additional facts and evidence the panel may require to evaluate the application. The act also limits the duration of authorized grand juries to six months, subject to express but limited extension, to avoid the continuation of protracted and indefinite grand jury investigations. The grand jury investigation conducted by Judge DeMayo complied with none of these procedural requirements.

Because of the enactment of P.A. No. 85-611, the trial court granted the defendant’s motion to suppress information obtained by the grand jury after October 1, 1985. The trial court relied on the legislative history of the new act, the absence of a grandfather clause that would preserve the authority of preexisting grand juries, and the explicit repeal of § 54-47, for its conclusion that investigatory grand juries appointed under the prior statute were not authorized to conduct further inquiry after the effective date of the new act. Accordingly, the court ordered the suppression of any information obtained by the grand jury after October 1, 1985, but declined to invalidate the grand jury’s interim report or to dismiss the charges pending against the defendant.

Subsequent to the trial court’s ruling, the legislature enacted P.A. No. 86-317, entitled “An Act Concerning Investigatory Grand Juries,” which became effective as of May 8,1986. That act provides, in relevant part, that the authority of any investigatory grand jury to conduct an inquiry initiated under § 54-47 “shall continue until the conclusion of the inquiry and [until] a final report has been filed." General Statutes § 54-47Í (a). The act further validates “any action taken” and “any evidence obtained," on or after October 1,1985, pursuant to the authority previously conferred upon a grand jury under § 54-47.

Armed with this new statute, the state filed a motion to reargue the trial court’s earlier ruling. It maintained that the 1986 statute had clarified the legislature’s original intention, in P.A. No. 85-611, to preserve the validity of grand juries duly constituted under § 54-47 prior to October 1,1985. The trial court, after a hearing, reaffirmed its prior decision. The court concluded that the retroactive application of P.A. No. 86-317 to its earlier ruling would deprive the defendant of substantive rights conferred upon him by P.A. No. 85-611, in violation of the constitutional prohibition against ex post facto laws. U.S. Const., art. I, § 9.

In its appeal from that ruling, the state claims that: (1) the legislature’s enactment of P.A. No. 85-611 did not terminate the authority of investigatory grand juries properly appointed under § 54-47; (2) the legislature’s enactment of P.A. No. 86-317 clarified that it had not intended to terminate the authority of duly constituted grand juries when it enacted P.A. No. 85-611; (3) the defendant has no standing to challenge the admissibility of grand jury evidence at his trial; and (4) the defendant may not rely on the exclusionary rule to challenge the admissibility of evidence at his trial. We will address jointly the state’s first two claims. Because we resolve those claims in favor of the state, we need not consider its remaining two claims.

In determining the effect of P.A. No. 85-611 on the authority of preexisting investigatory grand juries, we are guided by well defined principles of statutory interpretation that require us to ascertain and give effect to the apparent intent of the legislature. Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986); Norwich v. Silverberg, 200 Conn. 367, 370-71, 511 A.2d 336 (1986); State v. Kozlowski, 199 Conn. 667, 673, 509 A.2d 20 (1986); 2A J. Sutherland, Statutory Construction (4th Ed. Sands 1984) § 45.05. If the language of a statute is plain and unambiguous, we need not look beyond the statute because we assume that the language expresses the intention of the legislature. Rhodes v. Hartford, supra; Johnson v. Manson, 196 Conn. 309, 316, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S. Ct. 813, 88 L. Ed. 2d 787 (1986); Mazur v. Blum, 184 Conn. 116, 118-19, 441 A.2d 65 (1981). When we are faced with ambiguity in a statute, however, we turn for interpretive guidance to its legislative history, the circumstances surrounding its enactment, and the purpose the statute is to serve. Rhodes v. Hartford, supra; State v. Kozlowski, supra; State v. Ellis, 197 Conn. 436, 445, 497 A.2d 974 (1985).

The defendant contends that the plain language of P.A. No. 85-611 explicitly evidences the legislature’s intent to revoke, as of October 1, 1985, the authority of investigatory grand juries appointed under § 54-47. His argument relies exclusively on § 9 of the act, which provides: “Section 54-47 of the general statute is repealed.” (Emphasis added.) In his view, the use of the word “repeal” not only signifies the repeal of § 54-47 as authority for the impaneling of future grand juries, but also mandates the immediate termination of the authority of preexisting grand juries duly appointed under § 54-47. To ascribe so definitive a meaning to the term “repeal” is, however, inconsistent with well understood patterns of legislative usage. We recently noted, in State v. Kozlowski, supra, 675, that use of the word “repeal” reflects no more than the characteristic practice of the legislature of “casting] acts which alter language within existing statutory subsections in the form of repeal and substitution,” and “reserving the label of amendment for acts which add entirely new subsections.” Standing by itself, the fact that the legislature “repealed” § 54-47 does not persuade us that the legislature intended the revocation of the authority of preexisting grand juries.

None of the other express terms of P.A. No. 85-611 supports the defendant’s argument that the statute plainly terminates the authority of grand juries duly constituted before October 1,1985. It bears emphasis that the question of the effect of the 1985 enactment is a matter of statutory construction and not of legislative power. The legislature undoubtedly had plenary power to apply the procedural reforms of the 1985 act retroactively. We have frequently recognized “the right of the legislature retroactively to make legal and regular that which was previously illegal and irregular, provided that vested rights are not unjustly abrogated.” Enfield Federal Savings & Loan Assn. v. Bissell, 184 Conn. 569, 572, 440 A.2d 220 (1981); C.S.E.A., Inc. v. Connecticut Personnel Policy Board, 165 Conn. 448, 454-55, 334 A.2d 909 (1973); Carvette v. Marion Power Shovel Co., 157 Conn. 92, 95-96, 249 A.2d 58 (1968). The problem posed by the 1985 act is that the statute is conspicuously silent about whether the legislature intended to exercise its power to invalidate preexisting grand juries. Confronted with this latent ambiguity, we must look beyond the words of the statute to determine the legislature’s intent. State v. Kozlowski, supra, 674; Tramontano v. Dilieto, 192 Conn. 426, 433-34, 472 A.2d 768 (1984); see 2A J. Sutherland, supra, § 46.07, p. 110.

The state urges us to rely on General Statutes § 1-1 (u) in interpreting the scope of the 1985 act. General Statutes § 1-1 (u), commonly referred to as the saving clause for newly enacted legislation, provides that “[t]he passage or repeal of an act shall not affect any action then pending.” (Emphasis added.) The state argues that the legislature assumed, because of this statutory saving clause, that it did not need to make explicit its intent that the act would have no impact on pending grand jury investigations. As the defendant correctly points out, however, the statutory saving clause is inapplicable in the present circumstances because the proceedings of an investigatory grand jury do not fall within the definition of an “action” under § 1-1 (u). This court has defined the term “action” as the lawful demand of one’s right in a court of justice for the purpose of obtaining whatever redress the law provides. In re Investigation of the Grand Juror, 188 Conn. 601, 606, 452 A.2d 935 (1982); Waterbury Blank Book Mfg. Co. v. Hurlburt, 73 Conn. 715, 717, 49 A. 198 (1901). An investigatory grand jury proceeding does not provide a forum for the assertion of a legal right. It is not an adversary proceeding in which the parties present their respective positions and have an opportunity to examine and cross-examine witnesses. Furthermore, an investigatory grand jury has no authority to try, condemn or accuse parties under investigation. In re Investigation of the Grand Juror, supra, 604-605; State v. Moynahan, 164 Conn. 560, 565, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219 (1973). Because the sole function of such a grand jury is to inquire into criminal activity and report its findings to the court, its proceedings do not constitute an “action” within § 1-1 (u). In re Investigation of the Grand Juror, supra, 604. The statutory saving clause therefore cannot be read to preserve the authority of preexisting grand juries.

Given the inapplicability of the statutory saving clause, we would face an arduous interpretative task if we were confronted only with the absence of express terms, in the text of P.A. No. 85-611, either validating or invalidating the continuing authority of preexisting grand juries. Our inquiry into the legislative intent of P.A. No. 85-611 is, however, facilitated by unequivocal legislative action in 1986. The terms of P.A. No. 86-317 explicitly provide that the inquiry of an investigatory grand jury “ordered prior to October 1,1985, in accordance with section 54-47 of the general statutes, revision of 1958, revised to January 1,1985, shall continue until the conclusion of such inquiry and a final report has been filed with the court . . . .” P.A. No. 86-317 poses no great difficulty of interpretation. It is clear what the legislature intended, in 1986, to do. What is debatable is whether the legislature then had the power to effectuate its intent.

The state argues that P.A. No. 86-317 serves to clarify the legislature’s original intention in enacting P.A. No. 85-611, and that it was well within the prerogative of the legislature to enact such a clarifying act. The defendant maintains, to the contrary, that P.A. No. 86-317 is a curative act that unconstitutionally attempts to revitalize the authority of grand juries that were divested, by P.A. No. 85-611, of their power to pursue further investigations. We agree with the state that P.A. No. 86-317 is clarifying rather than curative legislation.

Our cases have drawn a clear distinction between curative and clarifying legislation. Although a curative act may validate any past action that the legislature might originally have authorized, we have held that “[cjurative acts cannot cure a want of authority to act at all.” Montgomery v. Branford, 107 Conn. 697, 705, 142 A.2d 574 (1928); McAdams v. Barbieri, 143 Conn. 405, 420, 123 A.2d 182 (1956); 2 J. Sutherland, supra, § 41.11. By contrast, a clarifying act, which “in effect construes and clarifies a prior statute must be accepted as the legislative declaration of the meaning of the original act.” Tax Commissioner v. Estate of Bissell, 173 Conn. 232, 246, 377 A.2d 305 (1977); State v. One 1977 Buick Automobile, 196 Conn. 471, 479, 493 A.2d 874 (1985); Circle Lanes of Fairfield, Inc. v. Fay, 195 Conn. 534, 540, 489 A.2d 363 (1985); Neyland v. Board of Education, 195 Conn. 174, 180, 487 A.2d 181 (1985); Lee v. Board of Education, 181 Conn. 69, 75, 434 A.2d 333 (1980); see 1A J. Sutherland, supra, §§ 22.31, 22.35.

To the extent that legislative history can illuminate whether an act is curative or clarifying legislation, the legislative history of P. A. No. 86-317 demonstrates that the legislature intended that act to clarify its original intent that grand juries duly constituted before October 1,1985, would be authorized to finish their inquiries without having to comply with the 1985 act. Senator Richard B. Johnston, cochairman of the Judiciary Committee and cosponsor of the act, explained: “Last year, the general assembly, effective October 1,1985, passed Public Act 85-611 . . . [i]t was not at that time our intent to terminate through the passage of that legislation any then initiated and ongoing grand jury investigations.” 29 S. Proc., Pt. 7, 1986 Sess., p. 2400. Senator Johnston added: “[T]his legislation before us really, in essence, provides a clarification to that legislative intent, that is that those grand juries that were initiated prior to the passage of the Public Act last year were lawfully constituted after the passage of that legislation and legitimately ongoing. It was—when Judge Pickett speaks in his ruling on the motion, he speaks of that there was no grandfathering of any then initiated grand jury investigations. Well, I recall thinking . . . that the grandfathering of any already instituted actions [was] provided in other passages of the Connecticut general statutes . . . .” Id., 2400-2401. Nothing in the reported legislative history indicates that the legislature intended in 1986 to revive grand juries whose authority had been terminated by the 1985 act. The legislature intended instead to exercise its ongoing power to clarify the law as it existed under the 1985 act.

The legislature could not, even by extensive protestations of legislative intent, convert an act that is truly curative into one that is effectively clarifying. In this case, however, there is no reason not to accept the legislative history of P.A. No. 86-317 at face value. In enacting P.A. No. 85-611, the legislature failed to address its effect on preexisting grand juries. Once litigation brought that ambiguity to light, the legislature acted to remove any doubt about its earlier intentions. Its action in 1986 therefore invokes the principle of statutory construction that “[i]f the amendment was enacted soon after controversies arose as to the interpretation of the original act, it is logical to regard the amendment as a legislative interpretation of the original act . . . .” 1A J. Sutherland, supra, § 22.31. Even though the legislative clarification was prompted by a judicial decision that the legislature deemed mistaken, such a clarification does not constitute an invasion of judicial authority. Like legislators, judges are fallible. The legislature has the power to make evident to us that it never intended to provide a litigant with the rights that we had previously interpreted a statute to confer. Circle Lanes of Fairfield, Inc. v. Fay, supra, 540-41; Neyland v. Board of Education, supra, 180-81; Lee v. Board of Education, supra, 75; Tax Commissioner v. Estate of Bissell, supra, 245.

Our conclusion that P.A. No. 86-317 is to be given effect as clarifying legislation finds support in the presumption that the legislature intended to accomplish a reasonable and rational result, rather than the “difficult and possibly bizarre” result of terminating several ongoing grand jury investigations sub silentio. Maciejewski v. West Hartford, 194 Conn. 139, 152, 480 A.2d 519 (1984); Dukes v. Durante, 192 Conn. 207, 214, 471 A.2d 1368 (1984); State v. Delafose, 185 Conn. 517, 523, 441 A.2d 158 (1981); State v. Campbell, 180 Conn. 557, 563, 429 A.2d 960 (1980). The legislature was of course empowered to decide, in 1985, that in light of the wide perception of serious abuses in the previous investigatory grand jury system, it was urgent to implement reform measures immediately, even at the cost of disrupting the ongoing proceedings of preexisting grand juries. The legislature might have determined that public policy required the dismantling of all ongoing grand juries, despite the risk of resultant delay in the completion of their assignments and the possible disruption of investigative inquiries. It is, however, highly unlikely that the legislature would have undertaken so troubling a choice—between the benefits of reform and the costs of premature termination of preexisting investigations—Avithout making that decision expressly. We conclude that legislative silence on this matter is indicative of legislative intent that P.A. No. 85-611 should operate to safeguard against abuses in the appointment and operation of future investigatory grand juries without terminating the authority of preexisting grand juries.

Having concluded that P.A. No. 86-317 is clarifying legislation, we have removed the necessary predicate for the defendant’s claim that the. 1986 act retroactively and hence unconstitutionally deprived him of vested rights. The defendant’s argument is that P.A. No. 85-611 conferred substantive rights upon him that the legislature could not revoke in 1986 without violating his constitutional rights to due process and to protection against ex post facto laws. These substantive rights arose, according to the defendant, because the effect of P.A. No. 85-611 was to terminate the investigatory authority of Judge DeMayo’s grand jury. It is essential to this argument that we agree with the defendant’s assertion that the 1985 act conferred upon him the right to have further grand jury investigations conducted according to the ground rules therein established for future grand juries. In light of the 1986 act, we have concluded to the contrary. Since P.A. No. 85-611 conferred no rights, vested or otherwise, upon the defendant in 1985, he cannot have been deprived of vested rights in 1986. Neyland v. Board of Education, supra, 181; accord Connecticut Steel Co. v. National Amusements, Inc., 166 Conn. 255, 263, 348 A.2d 658 (1974). His claim that his constitutional rights have been violated is therefore without merit.

There is error, the judgment is set aside and the case is remanded with direction for further proceedings in accordance with this opinion.

In this opinion the other justices concurred.

       General Statutes § 54-47, which was repealed in 1985, provided:
      “Sec. 54-47. INVESTIGATIONS INTO COMMISSION OF CRIME, (a) Whenever it appears to the superior court for any judicial district that the administration of justice requires an investigation to determine whether or not there is probable cause to believe that a crime or crimes have been committed within the judicial district, said court may order an inquiry to be made into the matter, to be conducted before any judge, state referee, or any three judges of said court designated by it.
      “(b) The chief state’s attorney and the deputy chief state’s attorney may also apply to the chief court administrator for an order that an inquiry be made to determine whether or not there is probable cause to believe that a crime or crimes have been committed. If the chief court administrator is satisfied from the application and any other papers or evidence submitted in support thereof that the administration of justice requires such an inquiry, he shall order that it be made and shall appoint a judge, a state referee or any three judges of the superior court to conduct the inquiry, with the assistance of the chief state’s attorney, deputy chief state’s attorney or any state’s attorney or assistant state’s attorney.
      “(c) Such inquiries shall be conducted in public or private as said court or chief court administrator orders.
      “(d) The attendance of witnesses and the production of documents at such inquiries may be compelled by subpoena, signed by any official authorized to issue such process.
      “(e) If any witness properly summoned fails to appear or to produce any documents included in the subpoena, or if he fails to answer any proper question, the judge, referee or judges conducting the inquiry may report the matter to the state’s attorney for the judicial district wherein the investigation is being conducted and such state’s attorney may file a complaint setting forth the facts at any criminal session of the superior court in such judicial district. The court shall thereupon issue a citation to the witness to appear before said court and show cause why he should not be punished as for a contempt, and if, after hearing, the court finds that he failed to appear without due cause or failed to produce any document properly to be presented to the judge, state referee or judges conducting the investigation or failed to answer any proper question in the course of the investigation, it may punish him as it might a witness failing to appear, to produce a document properly to be considered or to answer a proper question before the court.
      “(f) Witnesses may be examined by the judge, state referee or judges conducting the inquiry, by the state’s attorney or assistant state’s attorney or by any other attorney or attorneys appointed by the court for such purpose. The official stenographer of such superior court or his assistant shall record any testimony so taken. At any such hearing a witness shall have a right to counsel and shall be informed of such right by the official conducting the inquiry.
      “(g) At the conclusion of such inquiry the judge, referee or judges conducting the inquiry shall file with the court a report and the court shall direct whether, and to what extent, the report shall be made available to the public or interested parties. Any transcript of testimony taken at the inquiry shall likewise be filed with the court and it shall have the same powers with reference to it as it has with reference to the report; provided any person accused of crime as a result of the inquiry shall have access at all reasonable times to the transcript of his own testimony given by him in such inquiry.”

       Judge DeMayo was the second investigatory grand juror appointed to conduct an inquiry into professional gambling and other criminal activity in Torrington. The first investigatory grand juror, the Honorable John D. Brennan, was appointed by the chief court administrator on January 13, 1984, pursuant to General Statutes § 54-47. After completing his investigation, Judge Brennan filed a report on October 11, 1984, with the Superior Court for the judicial district of Hartford-New Britain at Hartford.

       Public Acts 1985, No. 85-611, has been codified in General Statutes §§ 54-47a through 54-47h, which provide:
      “Sec. 54-47a. COMPELLING TESTIMONY OF WITNESS. IMMUNITY FROM prosecution, (a) Whenever in the judgment of the chief state’s attorney, a state’s attorney or the deputy chief state’s attorney, the testimony of any witness or the production of books, papers or other evidence of any witness (1) in any criminal proceeding involving narcotics, arson, bribery, gambling, election law violations, felonious crimes of violence or any violation which is an offense under the provisions of title 25, before a court or grand jury of this state or (2) in any investigation conducted by an investigatory grand jury as provided in sections 54-47b to 54-47g, inclusive, is necessary to the public interest, the chief state’s attorney, the state’s attorney, or the deputy chief state’s attorney, may, with notice to the witness, after the witness has claimed his privilege against self-incrimination, make application to the court for an order directing the witness to testify or produce evidence subject to the provisions of this section.
      “(b) Upon the issuance of the order such witness shall not be excused from testifying or from producing books, papers or other evidence in such case or proceeding on the ground that the testimony or evidence required of him may tend to incriminate him or subject him to a penalty or forfeiture. No such witness may be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he is compelled to testify or produce evidence, and no testimony or evidence so compelled, and no evidence discovered as a result of or otherwise derived from testimony or evidence so compelled, may be used as evidence against him in any proceeding, except that no witness shall be immune from prosecution for perjury or contempt committed while giving such testimony or producing such evidence. Whenever evidence is objected to as inadmissible because it was discovered as a result of or otherwise derived from compelled testimony or evidence, the burden shall be upon the person offering the challenged evidence to establish a source independent of the compelled testimony or evidence.”
      “Sec. 54-47b. investigatory grand jury, definitions. For the purposes of sections 54-47a to 54-47h, inclusive:
      “(1) ‘Applicant’ means any judge of the superior court, appellate court or supreme court, the chief state’s attorney or a state’s attorney who makes an application to a panel of judges for an investigation into the commission of a crime or crimes.
      “(2) ‘Crime or crimes’ means (A) any crime or crimes involving corruption in the executive, legislative or judicial branch of state government or in the government of any political subdivision of the state, (B) fraud by a vendor of goods or services in the medical assistance program under Title XIX of the Social Security Act Amendments of 1965, as amended, (C) any violation of chapter 949c and (D) any other class A, B or C felony for which the chief state’s attorney demonstrates that he has no other means of obtaining sufficient information as to whether a crime has been committed.
      “(3) ‘Investigatory grand jury’ means a judge, constitutional state referee or any three judges of the superior court, other than a judge designated by the chief justice to serve on the panel, appointed by the chief court administrator to conduct an investigation into the commission of a crime or crimes.
      “(4) ‘Panel of judges’ or ‘panel’ means a panel of three superior court judges designated by the chief justice of the supreme court from time to time to receive applications for investigations into the commission of crimes in accordance with the provisions of sections 54-47a to 54-47h, inclusive, one of whom may be the chief court administrator.”
      “Sec. 54-47c. application for investigation into commission of CRIME, (a) Any judge of the superior court, appellate court or supreme court, the chief state’s attorney or a state’s attorney may make application to a panel of judges for an investigation into the commission of a crime or crimes whenever such applicant has reasonable belief that the administration of justice requires an investigation to determine whether or not there is probable cause to believe that a crime or crimes have been committed.
      “(b) Each application for an investigation into the commission of a crime or crimes shall be made in writing upon oath or affirmation to a panel of judges. Each application shall include the following information: (1) The identity of the applicant and his authority to make such application; (2) a full and complete statement of the facts and circumstances relied upon by the applicant to justify his reasonable belief that the investigation will lead to a finding of probable cause that a crime or crimes have been committed; (3) a full and complete statement of the facts concerning all previous applications known to the applicant, made to any panel of judges, for investigation of any one or more of the same criminal offenses involving any of the same persons specified in the application, including the action taken by the panel on each such application; and (4) such additional testimony or documentary evidence in support of facts in the application as the panel of judges may require. If the application is made by the chief state’s attorney or a state’s attorney, it shall also include a full and complete statement of facts showing that other normal investigative procedures with respect to the alleged crime have been tried and have failed or reasonably appear to be unlikely to succeed if tried or be too dangerous to employ.”
      “Sec. 54-47d. appointment of investigatory grand jury, duration and scope of investigation, (a) If the panel approves the application and orders and investigation into the commission of a crime or crimes, the chief court administrator shall (1) appoint an investigatory grand jury to conduct the investigation and (2) designate the court of the judicial district where any motions to quash and any contempt proceedings shall be heard and conducted and any findings and records of the investigation shall be filed.
      “(b) Each order authorizing the investigation into the commission of a crime or crimes by the panel shall specify: (1) The date of issuance of the order, (2) the period of time within which the investigation is to be conducted, provided in no event shall the investigation be longer than six months from the date the chief court administrator appoints the investigatory grand jury to conduct the investigation, unless an application for an extension of time is filed and granted pursuant to subsection (c) of this section, (3) the scope of the investigation, and (4) its reasons for finding that the administration of justice requires an investigation to determine whether or not there is probable cause to believe that a crime or crimes have been committed. The panel shall retain a copy of the order and the original application and shall transmit to the investigatory grand jury, appointed pursuant to subsection (a) of this section, the original order and a copy of the application filed with the panel.
      “(c) The investigatory grand jury may make an application to the panel of judges for an extension of time within which to conduct its investigation or for an amendment to the scope of its investigation. The application for extension or amendment shall set forth the reasons for the necessity of such extension or amendment and, in addition, shall contain the findings thus far made. No more than two extensions or amendments of an order may be granted by the issuing panel. The period of any extension shall be no longer than the panel deems necessary to achieve the purposes for which it was granted and in no event shall any extension be for a period longer than six months.”
      “Sec. 54-47e. sealing of order and application, investigation conducted in private. Any order authorizing the investigation into the commission of a crime or crimes and any application filed with the panel pursuant to section 54-47c or subsection (c) of section 54-47d shall be sealed. Any investigation by the investigatory grand jury shall be conducted in private, provided the panel, by a majority vote, may disclose the fact that any matter has been referred for an investigation by a grand jury and may order the investigation or any portion thereof to be public when such disclosure or order is deemed by the panel to be in the public interest.”
      “Sec. 54-47Í. CONDUCT OF INVESTIGATION. TESTIMONY OF WITNESSES, (a) The investigatory grand jury, in conducting the investigation, may (1) seek the assistance of the chief state’s attorney or state’s attorney who' filed the application, or his designee, (2) appoint an attorney to provide assistance if a judge of the superior court, appellate court or supreme court filed the application or (3) appoint any other attorney to provide assistance when necessary in the interest of justice.
      “(b) The attendance of witnesses and the production of documents at such investigations may be compelled by subpoena, signed by any official authorized to issue such process.
      “(c) If any witness properly summoned fails to appear or to produce any documents included in the subpoena, or if he fails to answer any proper question, the investigatory grand jury conducting the investigation may report the matter to the state’s attorney for the judicial district which has been designated in subsection (a) of section 54-47d unless such state’s attorney is the applicant or has been appointed to assist in such investigation, in which case the investigatory grand jury shall report the matter to the chief state’s attorney, and such state’s attorney or chief state’s attorney, as the case may be, may file a complaint setting forth the facts at any criminal session of the superior court in such judicial district. The court shall thereupon issue a citation to the witness to appear before the court and show cause why he should not be punished as for a contempt, and if, after hearing, the court finds that he failed to appear without due cause or failed to produce any document properly to be presented to the investigatory grand jury or failed to answer any proper question in the course of the investigation, it may punish him as it might a witness failing to appear, to produce a document properly to be considered or to answer a proper question before the court.
      “(d) Witnesses may be examined by the investigatory grand jury conducting the investigation or by any attorney or attorneys appointed by such investigatory grand jury for such purpose. At the hearing, the official conducting the investigation shall inform the witness that he has the right to have counsel present and to consult with such counsel.
      “(e) The official conducting the investigation shall inform any witness who is. a target of the investigation that he is a target and shall advise him that he has the right under the constitution of the United States and the constitution of Connecticut not to be compelled to be a witness, or to give evidence, against himself.
      “(f) Any attorney appointed to assist in conducting the investigation shall disclose to the investigatory grand jury any exculpatory information or material in his possession, custody or control concerning any person who is a target of the investigation.
      “(g) An official stenographer of the superior court or his assistant shall record any testimony taken at the investigation.”
      “Sec. 54-47g, finding and record of investigation, access to testimony. (a) Within sixty days of the conclusion of the investigation, the investigatory grand jury conducting such investigation shall file its finding, and the stenographer shall file any record of the investigation, with the court of the judicial district designated in subsection (a) of section 54-47d. Such finding shall state whether or not there is probable cause to believe that a crime or crimes have been committed. The finding and record of the investigation shall be sealed, provided the panel, by a majority vote, may disclose such finding and record when such disclosure is deemed by the panel to be in the public interest.
      “(b) Any witness, upon request, may have access at all reasonable times to the record of his own testimony unless the administrative judge or his designee finds after a hearing and for good cause shown that it is not in the best interest of justice to grant the witness access to his testimony.
      “(c) A person accused of a crime as a result of the investigation shall be permitted to have access, at all reasonable times, to the record of his own testimony.”
      “Sec. 54-47h. report. In January of each year, the panel of judges appointed pursuant to section 54-47b shall report to the chief court administrator, who shall in turn report to the chief justice, governor and general assembly, the following information with respect to applications made during the preceding calendar year: (1) The number of applications for an investigation into the commission of a crime or crimes filed with the panel; (2) the number of applications approved by the panel; and (3) the number of applications approved for extensions of time or amendments to the order.”

       Public Acts 1985, No. 85-611, also established a number of safeguards for witnesses that might well be described as substantive, not procedural. Those safeguards include, for example, the constitutional right against self-incrimination and the right to have counsel present during grand jury proceedings. General Statutes § 54-47f (d) and (e). These provisions are not at issue in this case because the defendant’s claims are not premised on alleged violations of any of these safeguards.
      Representative Christopher Shays explained the purpose of the act as follows: “And it seems to me that there is a need to change the one-man grand jury system in terms of all the mechanisms that are in the bill such as having to go before a three-member panel; such as having a grand jury only last for six months and then have to renew the request; such as being required to file your report of whether there’s probable cause within 60 days after the grand jury has ended. . . . Presently grand juries once impaneled go on for years and years and years. That’s been one of the areas of abuses and that’s where I think this bill addresses. Another area that its addressed where we had abuse. You previously could go to almost any judge and ask for a one-man grand jury so that the Chief Court Administrator didn’t know how many grand juries existed throughout the state. . . . The protection from abuse is that [the] panel of 3 judges who will have to give permission before you impanel a one-man grand jury. . . . The protections are in the bill.” 28 H.R. Proc., Pt. 17,1985 Sess., pp. 6028-29, 6061, 6064.

       Public Acts 1986, No. 86-317, has been codified in General Statutes § 54-47Í, which provides:
      “See. 54-47i. authority of investigation ordered prior to October 1,1985. (a) The authority of any judge, state referee or three judges of the superior court to conduct an inquiry to determine whether or not there is probable cause to believe that a crime or crimes have been committed, where such inquiry was ordered prior to October 1,1985, in accordance with section 54-47 of the general statutes, revision of 1958, revised to January 1,1985, shall continue until the conclusion of such inquiry and a final report has been filed with the court pursuant to said section, and any action taken or caused to be taken by such judge, state referee or three judges of the superior court pursuant to such inquiry, otherwise valid, shall be valid notwithstanding that such action was or is taken or caused to be taken on or after October 1,1985, and any evidence obtained pursuant to such inquiry, otherwise admissible, shall be admissible in any criminal prosecution of a person accused as a result of such inquiry notwithstanding that such evidence was or is obtained on or after October 1, 1985.
      “(b) The appointment of any judge or referee after October 1,1985, to replace a judge or referee ordered to conduct an inquiry to determine whether or not probable cause to believe that a crime or crimes have been committed, where such inquiry was ordered prior to October 1, 1985, in accordance with section 54-47 of the general statutes, revised to January 1,1985, shall not be deemed to create a new inquiry and the authority of such judge so appointed shall continue as provided in subsection (a) of this section.”

       For purposes of this appeal, we may take judicial notice of the assertion by the state in its brief and at oral argument before this court that there are presently three grand jury investigations pending in Connecticut pursuant to General Statutes § 54-47.

       The fourteenth amendment to the United States constitution provides in part: “Section 1. ... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law . . . . ”
      Article one, § 9, of the United States constitution provides: “No bill of Attainder or ex post facto Law shall be passed.”
      Article first, § 8, of the Connecticut constitution provides in relevant part: “No person shall be . . . deprived of life, liberty or property without due process of law . . . .”


source: Caselaw Access Project

license: Public Domain

text:
    Denise Wetzel et al. v. Gareth Thorne, Commissioner of Mental Retardation
    (12777)
    Peters, C. J., Healey, Santaniello, Düpont and Hadden, Js.
    Argued February 3
    decision released March 17, 1987

      Kathryn Calibey, with whom was Andrew S. Groher, for the appellants (petitioners).

      Patricia Lilly Harleston, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Robert W. Garvey, assistant attorney general, for the appellee (respondent).
   Peters, C. J.

The sole issue in this case is whether the trial court abused its discretion in concluding that the petitioners had failed to establish “reasonable cause” in their petition for a new trial pursuant to General Statutes § 52-270 (a). The petitioners, Denise Wetzel and her father, Donald Wetzel, sought a new trial in order to have a hearing on the merits of their claims against the respondent, Gareth Thorne, commissioner of mental retardation of the state of Connecticut. These claims had been dismissed in a previous Superior Court action, from which no appeal was taken. In the present proceedings, the respondent relied on this failure to take an appeal as a basis for his motion to strike. The motion was granted by the trial court, Quinn, J., and judgment was rendered against the petitioners by the trial court, Stoughton, J. The petitioners have appealed. We find no error.

The history of this case is undisputed. The petitioner Denise Wetzel suffered severe burns when, on August 16, 1978, she was accidentally placed in a tub of scalding hot water at the Hartford Regional Center in Newington. To recover damages for these injuries, she and her father first filed a claim with the state claims commission and then, during the pendency of that claim, initiated a suit against the defendant in Superior Court. That suit was dismissed on January 13, 1983, on the ground that General Statutes § 19a-24 (formerly § 19-5a) did not authorize an action against the state without the prior consent of the claims commissioner. Instead of taking an appeal from the judgment of dismissal, the petitioners continued to pursue their rights with the claims commission.

On August 23, 1983, this court released its decision in Duguay v. Hopkins, 191 Conn. 222, 464 A.2d 45 (1983). Contrary to the conclusion of the Superior Court in the petitioners’ original suit, we held that, in enacting § 19a-24, the legislature had waived the state’s sovereign right not to be sued and thus had authorized direct civil actions against the commissioner of mental retardation. Id., 232. Because of our holding in Duguay, the claims commission, on September 12, 1983, dismissed the pending claims of the petitioners.

After this administrative setback, the petitioners returned to the Superior Court, seeking a new trial pursuant to § 52-270 (a). That statute authorizes the Superior Court to grant a new trial “for mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or the want of actual notice to any plaintiff of the entry of a nonsuit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rules in such cases. . . . ” Relying on the procedural infirmities that had led to the unfortunate dismissal of their claims, both in court and before the claims commission, the petitioners urged the trial court to hold that they had established “reasonable cause” for a new trial. The trial court concluded, however, that this ground was unavailable to the petitioners because of their unexcused failure to appeal the Superior Court’s adverse ruling dismissing their original suit against the respondent.

In their present appeal, the petitioners contend that the trial court erred in denying their request for a new trial. The essence of their claim is that they have unjustly been deprived of any forum in which their case can be heard on its merits. They maintain that the authorization of a new trial under § 52-270 (a) “for other reasonable cause” incorporates a broad equitable power to prevent injustice to a litigant. Recognizing that a petition for a new trial is ordinarily not a substitute for an appeal, they argue that their case warrants an exception from this general rule because their failure to appeal was the result of their good faith compliance with a directive of the Superior Court that they should pursue administrative rather than judicial relief. We disagree.

In order to prevail, the petitioners would have to establish that the trial court’s denial of their petition for a new trial constituted a clear abuse of its discretion. Kubeck v. Foremost Foods Co., 190 Conn. 667, 670, 461 A.2d 1380 (1983); Burr v. Lichtenheim, 190 Conn. 351, 355, 460 A.2d 1290 (1983). Our limited scope of review is not expanded by the petitioners’ invocation of equitable principles, because equitable relief equally depends upon an exercise of sound discretion by the trial court. Doublewal Corporation v. Toffolon, 195 Conn. 384, 392, 488 A.2d 444 (1985); Berin v. Olson, 183 Conn. 337, 340, 343, 439 A.2d 357 (1981); Dupuis v. Submarine Base Credit Union, Inc., 170 Conn. 344, 356, 365 A.2d 1093 (1976).

The petitioners’ claim of an abuse of discretion in their case cannot be reconciled with long-standing case law principles that limit the meaning of “reasonable cause” in § 52-270. In Tilo Co. v. Fishman, 164 Conn. 212, 214-15, 319 A.2d 409 (1972), this court undertook a comprehensive restatement of the relationship between a right of appeal and the right to petition for a new trial. As that case notes, the basic test of “reasonable cause” is whether a litigant, despite the exercise of due diligence, has been deprived of a fair opportunity to have a case heard on appeal. Black v. Universal C. I. T. Credit Corporation, 150 Conn. 188, 194, 187 A.2d 243 (1962); Wojculewicz v. State, 142 Conn. 676, 678, 117 A.2d 439 (1955); Dudley v. Hull, 105 Conn. 710, 719, 136 A. 575 (1927). A new trial may be granted “to prevent injustice in cases where the usual remedy by appeal does not lie or where, if there is an adequate remedy by appeal, the party has been prevented from pursuing it by fraud, mistake or accident.” Krooner v. State, 137 Conn. 58, 60, 75 A.2d 51 (1950). Absent such special circumstances, “[a] petition for a new trial does not furnish a substitute for or an alternative to an ordinary appeal.” Tilo Co. v. Fishman, supra, 215; State v. Grimes, 154 Conn. 314, 325, 228 A.2d 141 (1966); Black v. Universal C. I. T. Credit Corporation, supra, 193; Wojculewicz v. State, supra; Bishop v. Copp, 96 Conn. 571, 574, 114 A. 682 (1921); Andersen v. State, 43 Conn. 514, 516 (1876).

Nothing in the record of this case distinguishes its facts from the ordinary case in which a litigant fails to take a timely appeal. As one of the petitioners’ trial briefs indicates, they responded to the Superior Court’s dismissal of their original suit by making a strategic decision to return to the administrative arena rather than incur the expense of an appeal. We may assume that this decision was made in good faith. Nonetheless, a good faith decision that subsequently turns out to have been misguided does not, in and of itself, demonstrate a lack of opportunity to pursue an alternate course of action. Despite the personal hardship associated with the injuries suffered by the petitioners, we can discern no abuse of discretion in the trial court’s conclusion that they have not established “reasonable cause” for a new trial.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 52-270. causes for which new trials may be granted, (a) The superior court may grant a new trial of any action that may come before it, for mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or the want of actual notice to any plaintiff of the entry of a non-suit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rules in such cases. The judges of the superior court may in addition provide by rule for the granting of new trials upon prompt request in eases where the parties or their counsel have not adequately protected their rights during the original trial of an action.”

       General Statutes § 19a-24 provides in relevant part: “Sec. 19a-24. (Formerly Sec. 19-5a). civil actions against commissioners of health services AND MENTAL RETARDATION, COUNCIL MEMBERS, EMPLOYEES; INDEMNIFICATION OF CERTAIN BOARD MEMBERS AND TRUSTEES, (a) Any civil action for damages on account of any official act or omission of the commissioner of health services or the commissioner of mental retardation or any member of their staffs, any member of the council on tuberculosis control, hospital care and rehabilitation, the council on mental retardation or either of the boards of trustees of the state training schools or any member of any regional advisory and planning council or any superintendent, director, employee or staff member of any chronic disease hospital or state training school or state mental retardation region shall be brought against the commissioners in their official capacities and said commissioners shall be represented therein by the attorney general in the manner provided in chapter 35. Damages recovered in such action shall be a proper charge against the general fund of the state and shall be paid in the manner provided in section 3-117.”

       The respondent’s motion to strike included grounds other than a failure to qualify for relief under General Statutes § 52-270 (a), and the trial court ruled in the respondent’s favor on these alternate grounds as well. We need not consider the merits of these alternate grounds in light of our holding that the petitioners have failed to state claims cognizable under § 52-270 (a).


text:
    Dart and Bogue Company, Inc. v. Milton O. Slosberg
    (12942)
    Peters, C. J., Healey, Shea, Callahan and F. Hennessy, Js.

      Argued January 14
    decision released March 24, 1987

      Cheever Tyler, with whom was Penelope I. Bellamy, for the appellant (plaintiff).

      DavidS. Pickett, for the appellant (Official Unsecured Creditors Committee of Dart & Bogue Company, Inc.).

      Joseph B. Collins, pro hac vice, with whom were Patricia H. Modzelewski and, on the brief, Joseph H. Reinhardt, for the appellee (defendant).

      Theodore M. Space, Ira H. Goldman, Coleman H. Casey and David L. Huntoon filed a brief for the Connecticut Attorneys Title Insurance Company as amicus curiae.
   Peters, C. J.

The sole issue in this case, on certification from the United States District Court, is whether certain mortgages, which fail to state the maximum term of the obligation they secure, are invalid against subsequent lien creditors under Connecticut law. The plaintiff, Dart & Bogue Company, Inc., is a debtor-in-possession under chapter 11 of the Bankruptcy Code, 11 U.S.C. § 101 et seq. Exercising the powers of a trustee in bankruptcy under 11 U.S.C. § 544, the plaintiff brought an adversary proceeding in the United States Bankruptcy Court, District of Connecticut, seeking to invalidate two mortgages on its real property held by the defendant, Milton O. Slosberg. The plaintiff moved for summary judgment on its complaint alleging that the mortgages were unenforceable, under General Statutes § 49-31b (a), because they failed to “furnish information from which there can be determined the maximum term” of the note they purported to secure. In its ruling on that motion, the bankruptcy court determined that the plaintiffs claim involved an “unsettled issue of state law.” Accordingly, with the consent of the parties, the proceeding was removed to the district court, which certified to this court the question of the validity of the defendant’s mortgages under Connecticut law.

The certified question requires us to consider the impact of General Statutes § 49-31b (a) upon the mortgages held by the defendant. The statute provides: “A mortgage deed given to secure payment of a promissory note, which furnishes information from which there can be determined the date, principal amount and maximum term of the note, shall be deemed to give sufficient notice of the nature and amount of the obligation to constitute a valid lien securing payment of all sums owed under the terms of such note.”

The following facts underlie the certified question. The defendant’s two mortgages secure a $1.45 million promissory note that the plaintiff executed in the defendant’s favor on November 13, 1980. In the first mortgage, which the plaintiff executed on the same day as the note, the plaintiff granted the defendant an interest in certain real property located in the town of Waterford. On March 11,1981, the plaintiff executed a supplemental mortgage to the defendant. This mortgage purported to encumber an additional tract of land inadvertently omitted from the first mortgage. Each mortgage stated the mortgagee’s name and address, the principal amount of the promissory note, and the applicable interest rate, but neither stated the maximum term of the note. The mortgages, unaccompanied by the note, were recorded in the Waterford land records.

Under the relevant provisions of the Bankruptcy Code, 11 U.S.C. § 544, the plaintiff is entitled to assert the legal rights of a subsequent lien creditor with respect to the defendant. The plaintiff argues that § 49-31b (a) sets forth minimum information that mortgages must contain in order to be valid against subsequent lien creditors. Alleging that the failure to state a maximum term in the mortgages constitutes noncompliance with this statutory standard, the plaintiff claims that the mortgages are unenforceable against it.

The plaintiffs argument raises two principal issues. The first issue is whether § 49-31b (a) is properly interpreted as setting minimum standards or should instead be construed as a “safe harbor,” setting forth adequate, but nonexclusive, means of notifying third parties of the essential elements of a secured obligation. The amicus curiae, the Connecticut Attorneys Title Insurance Company, urges us to view § 49-3lb (a) as a “safe harbor,” and to hold that the mortgages presently before us satisfy common law standards of validity. The second issue is whether, even accepting the plaintiffs position that § 49-31b (a) imposes mandatory standards, the terms of the mortgages in this case meet the requirements of the statute. The defendant claims that the mortgages do, in fact, comply with the statute. Because we agree that § 49-3 lb (a) supplements but does not supplant relevant common law standards, and that the mortgages in this case meet common law standards, we need not address the validity of the mortgages under the criteria set out in § 49-31b (a).

I

Whether § 49-31b (a) sets minimum standards, as the plaintiff maintains, or provides a “safe harbor,” as the amicus contends, is an issue that this court has not previously addressed. It has, however, been considered in various Superior Court cases. Epitomizing the disagreement manifested in the Superior Court are the opinions of Judge Borden in Roisman & Rosenberg, P.C. v. N.M.I., Inc., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 282051 (September 12,1983), and Judge Loiselle in Resnick v. Berkowitz, Superior Court, judicial district of Windham, Docket No. 800022436 (October 4,1982). In Roisman & Rosenberg, P.C., the court held that § 49-31b (a) “sets the minimum measure of the validity of a mortgage as against subsequent encumbrancers.” In Resnick, by contrast, the court interpreted § 49-3 lb (a) as a nonexclusive route to assuring the validity of a mortgage, and held that “common law principles . . . would still apply in the event any one of the elements recited in the statute was missing.” Under the Resnick court’s construction, § 49-31b (a) is a “safe harbor” provision setting forth sufficient, but not necessary, conditions for giving notice of a secured obligation to subsequent lien creditors. We agree with Judge Loiselle and the amicus curiae that § 49-3lb (a) creates a “safe harbor” for real property mortgages and does not not supersede common law criteria of validity.

We acknowledge, at the outset, that the legislature had the authority to supplant common law notice-giving standards when it enacted § 49-31b (a). The issue, however, is not what the legislature had the power to do but what it manifested its intent to do. The relevant language in § 49-3 lb (a) is the provision that a mortgage deed containing, inter alia, “information from which there can be determined the . . . maximum term” of the note secured by the mortgage, “shall be deemed to give sufficient notice of the nature and amount of the obligation . . . .” The plaintiff maintains that the words “shall be deemed to give sufficient notice” impose a mandatory obligation to furnish the information specified in the statute in order to provide the notice prescribed by the statute. We find this reading unpersuasive for a number of reasons, which can be summarized as follows: (1) the customary presumption in favor of retaining common law standards; (2) the absence from § 49-3 lb (a) of language elsewhere employed by the legislature when specific information is made a statutory requirement; and (3) the use in § 49-31b (a) of the phrase “shall be deemed,” a phrase often associated with “safe harbor” provisions in other regulatory contexts.

Because the meaning of § 49-31b (a) is not evident on its face, our construction of the statute begins with the presumption that statutory and common law should, where possible, be read in harmony. “A statute should not be construed as altering the common law rule, farther than the words of the statute import, and should not be construed as making any innovation upon the common law which the statute does not fairly express.” Skorpios Properties, Ltd. v. Waage, 172 Conn. 152, 156, 374 A.2d 165 (1976); State v. Kish, 186 Conn. 757, 764, 443 A.2d 1274 (1982); 2A J. Sutherland, Statutory Construction (4th Ed. Sands) § 50.01.

In our search for an expression of legislative intent, it is helpful to compare § 49-31b (a) with other statutes governing the validity of mortgages that are contained in chapter 846 of the General Statutes. A particularly illuminating model for comparison is General Statutes § 49-5b, entitled “Required information in a mortgage contingency clause,” which sets forth minimum standards for satisfaction of the requirements of the statute of frauds, General Statutes § 52-550. See Maturo v. Scranton, 177 Conn. 569, 571 n.l, 418 A.2d 928 (1979). Section 49-5b provides that such a clause “shall satisfy” § 52-550 “if such mortgage contingency clause contains at least the following: (1) The principal amount in dollars of the loan the purchaser must obtain to fulfill such contingency; (2) the limit of the time period within which a commitment for such loan must be obtained, and (3) the term of the mortgage expressed in years.”

Section 49-31b (a) differs from § 49-5b in several significant respects. One obvious difference is that the title of § 49-3 lb contains no language to indicate that the information described in the statute is “required.” Section 49-5b’s title explicitly makes reference to “[Required information.” Cf. General Statutes § 49-4b (title makes reference to “Mortgage deed requirements”); General Statutes § 49-10 (“Requirements for assignments of obligations”).

Section 49-31b (a) also lacks the mandatory language of § 49-5b. Section 49-31b (a) states that a mortgage deed “shall be deemed to give sufficient notice” if it provides the information enumerated therein. (Emphasis added.) Similar language is contained in General Statutes § 49-3, which validates mortgages to secure future advances when they contain stipulated clauses that the statute describes as “sufficiently definite and certain.” We have construed § 49-3 to preserve alternate common law rules governing the validity of such mortgages. Sadd v. Heim, 143 Conn. 582, 589, 124 A.2d 522 (1956). Section 49-5b, by contrast, contains no qualifying language, providing directly that a mortgage contingency clause “shall satisfy” the statute of frauds if it contains the specified provisions. Cf. General Statutes § 49-4b (“If an open-end mortgage meets the requirements of this section, [it] shall secure the obligation of any person who is secondarily liable for an open-end loan . . .”); General Statutes § 49-16 (“The certificate [of foreclosure] shall be recorded in the records of the town where the premises are situated and shall be substantially in the form following . . .”); see generally General Statutes § 49-2 (c).

Section 49-3 lb (a) describes its standards in words of general rather than specific instruction when it states that a mortgage deed satisfies notice requirements if it “furnishes information from which can be determined” the date, principal amount and maximum term of the underlying obligation. Such open-ended phraseology is inconsistent with legislative intent to supplant the common law. “[G]eneral and comprehensive legislation, where course of conduct, parties, things affected, limitations and exceptions are minutely described, indicates a legislative intent that the statute should totally supersede and replace the common law dealing with the subject matter.” 2A J. Sutherland, supra, § 50.05, pp. 440-41; State v. Salafia, 29 Conn. Sup. 305, 313, 284 A.2d 576 (1971). Again, the contrast with § 49-5b is significant. While § 49-3 lb (a) describes a general duty to “[furnish] information,” § 49-5b specifically enumerates the information that a mortgage contingency clause must contain in order to satisfy the statute of frauds. Cf. General Statutes § 49-4a (b) (requirements of open-ended mortgages held by United States or its instrumentalities); § 49-4b (b), (c) and (d) (requirements for open-end mortgages as security for guaranty of open-end loans).

Because the legislature is always presumed to have created a harmonious and consistent body of law, the proper construction of any statute must take into account the mandates of related statutes governing the same general subject matter. State v. West, 192 Conn. 488, 494, 472 A.2d 775 (1984); Connecticut Light & Power Co. v. Costle, 179 Conn. 415, 422, 426 A.2d 1324 (1980). Comparing the language of § 49-31b (a) with that of other statutes governing real property mortgages, we conclude that § 49-3 lb (a) was not intended to supersede established common law principles regarding minimum notice requirements for the validity of mortgages challenged by third party creditors.

This conclusion is reinforced by a comparison of the text of § 49-31b (a), not with statutes imposing mandatory minimum requirements, but rather with regulations that have been been interpreted to furnish a “safe harbor.” Section 49-31b (a) provides that mortgage deeds containing certain information “shall be deemed” to give sufficient notice of the obligations they secure. “[S]hall be deemed” is the operative phrase in several federal regulations that have been interpreted as stipulating conditions that are sufficient but not necessary for compliance with legally imposed standards. Securities and Exchange Commission Regulation D, for example, which provides an exemption from securities registration requirements for certain types of securities offers and sales, provides in part: “Offers and sales of securities by an issuer that satisfy [enumerated conditions] shall be deemed to be transactions not involving any public offering . . . .” (Emphasis added.) 17 C.F.R. § 230.506 (a) (1986); see Securities Industry Assn. v. Board of Governors, 807 F.2d 1052, 1064 (D.C. Cir. 1986) (construing Regulation D as “safe harbor”). Similarly, a United States department of labor regulation governing employers’ reporting and disclosure of information relating to employee pension plans provides: “The administrator of a pension plan . . . shall be deemed to satisfy [such provisions]” by complying with the conditions enumerated in the regulation. (Emphasis added.) 29 C.F.R. § 2520.104-23 (b) (1986); see Barrowclough v. Kidder, Peabody & Co., 752 F.2d 923, 932 (3d Cir. 1985) (construing regulation as a “safe harbor”). These regulatory analogies support a construction of § 49-31b (a) as a “safe harbor” provision. See generally 2A J. Sutherland, supra, § 53.03.

The plaintiff cites the legislative history of § 49-3 lb (a) as evidence that the legislature intended the statute to replace applicable common law standards. In the legislative debate on House Bill No. 5630, now designated as § 49-3 lb (a), it was noted that the bill was intended to have no effect on mortgages executed and recorded before the bill became law. The plaintiff’s argument, that “[o]nly if the legislature had thought that it was setting new standards” would legislators have been concerned about the effect of the bill on pre-existing mortgages, is speculative at best. While the floor debate does evince a legislative intent that § 49-3 lb (a) have only prospective application, it does not aid our resolution of the question of whether the statute was intended to supplant the common law.

We conclude that § 49-3lb (a) is a “safe harbor” provision that does not preempt common law standards governing the validity of mortgages against subsequent lien creditors. Accordingly, we now address the validity of the defendant’s mortgages in light of these common law standards. In our consideration of this question, we acknowledge the substantial assistance furnished to the court by the comprehensive and well reasoned brief of the amicus curiae.

II

In order for a mortgagee to prevail over the claim of a third party lien creditor, our case law has consistently affirmed the principle that the mortgage deed must provide, on its face, “reasonable notice” of the obligation it purports to secure. Sadd v. Heim, supra, 585; Bridgeport Land & Title Co. v. Orlove Co., 91 Conn. 496, 498-99, 100 A. 30 (1917); Pettibone v. Griswold, 4 Conn. 158, 162 (1822). The purpose of the notice requirement is to prevent subsequent third parties from being defrauded or otherwise misled by inaccuracies and omissions in the record that conceal the true nature of the secured obligation. Sadd v. Heim, supra; Bridgeport Land & Title Co. v. Orlove Co., supra, 499; Matz v. Arick, 76 Conn. 388, 391, 56 A. 630 (1904); see 2 M. Merrill, Notice (1952) § 1067. It is not necessary, however, that a mortgage deed recite with particularity all of the details of the underlying transaction. “The object of the [mortgage] is to identify the note or debt secured by the mortgage and give reasonable notice of the extent of the encumbrance. All the terms of the note are not essential to that object; hence all need not be stated.” Winchell v. Coney, 54 Conn. 24, 27, 5 A. 354 (1886); Peoples Savings Bank v. Corvado, 151 Conn. 388, 391, 198 A.2d 209 (1964); Lampson Lumber Co. v. Chiarelli, 100 Conn. 301, 309, 123 A. 909 (1924). Errors and omissions in the recorded mortgage that would not mislead a title searcher as to the true nature of the secured obligation do not affect the validity of the mortgage against third parties. 2 M. Merrill, supra.

The “reasonable notice” necessary to prevent the misleading of subsequent lienors includes, at minimum, notice of the “nature and amount of the encumbrance which the mortgagor intends to place upon the land.” Sadd v. Heim, supra; Peoples Savings Bank v. Corrado, supra; Bridgeport Land & Title Co. v. Orlove Co., supra, 497; Merrills v. Swift, 18 Conn. 257, 265 (1847). The “nature” of a secured debt includes such fundamental characteristics as whether the debt is absolute or contingent, liquidated or unliquidated, or whether it is given to secure an existing liability or future advances. Sadd v. Heim, supra, 585-86; Merrills v. Swift, supra. The “amount” of the debt is the dollar value of the obligation secured, to the extent that it can be ascertained at the time the mortgage is executed. If the debt cannot be definitively ascertained at that time, “such data must be set out with respect to that debt as will put anyone interested in the inquiry upon a track leading to discovery. . . .” Sadd v. Heim, supra, 586; Hamilton v. Nutt, 34 Conn. 501, 504 (1868); 1 L. Jones, Mortgages (8th Ed. 1928) § 1042.

The plaintiffs claim that the defendant’s mortgages are invalid is based on the mistaken premise that “[o]ur recording system is predicated upon the principle that one searching the land records can learn all he needs to know about the ownership of the land and its encumbrances from the records themselves.” (Emphasis added.) This argument overstates the purpose of record notice. The record need not recapitulate all the particulars of a secured obligation, provided it includes enough information to allow subsequent creditors, “by common prudence and by the exercise of ordinary diligence, [to] ascertain the extent of the incumbrance.” First National Bank v. National Grain Corporation, 103 Conn. 657, 663, 131 A. 404 (1925). A creditor who wants to know all of the terms of a secured obligation may inquire of the parties themselves, or examine the note or other instrument evidencing the obligation. Winchell v. Coney, supra, 30-31; see First National Bank v. National Grain Corporation, supra; Pettibone v. Griswold, supra. In modern secured lending, such inquiry is prudent as a matter of course. A potential secured creditor may wish to know, for example, whether a mortgagee has exercised rights under an acceleration clause, or whether contemplated future advances have in fact been made, or whether a mortgagor has exercised rights to extend or renew a promissory note. No creditor can expect to glean all of this information from the record alone. The record is the starting point for inquiry, not, as the plaintiff claims, the starting and ending point.

Our case law elucidates the circumstances in which a subsequent lien creditor can legitimately complain that a mortgage has failed to provide reasonable notice of the nature and amount of the secured obligation. Mortgages have been held invalid for: (1) misidentifying a future obligation as a debt currently due; Sadd v. Heim, supra; Matz v. Arick, supra; (2) misidentifying a contingent obligation as an absolute obligation; North v. Belden, 13 Conn. 376 (1840); Sanford v. Wheeler, 13 Conn. 165 (1839); (3) misidentifying a promise to perform future services as a promissory note for a sum certain; Bramhall v. Flood, 41 Conn. 68 (1874); (4) failing to state the amount of the secured debt when the debt could be definitively ascertained; Hart v. Chalker, 14 Conn. 77 (1840); (5) failing to define the nature and maximum amount of future advances purportedly secured; Bridgeport Land & Title Co. v. Orlove Co., supra; and (6) claiming security in an amount in excess of the actual amount due. McKnight v. Gizze, 107 Conn. 229, 140 A. 116 (1928); Ives v. Stone, 51 Conn. 446 (1883). In all of these cases, the omission or misstatement in the mortgage obscured the nature or amount of the secured obligation, potentially misleading subsequent lien creditors relying on the record.

The plaintiffs sole challenge to the validity of the defendant’s mortgages is that they fail to state the maximum term of the promissory note. Failure to state the maximum term of a promissory note, however, does not, of itself, render a mortgage invalid. See King v. Kilbride, 58 Conn. 109, 109-10, 119, 19 A. 519 (1889); Merrills v. Swift, supra, 266-67; see also Lampson Lumber Co. v. Chiarelli, supra, 312 (no invalidation for failure to state time period for performance of obligation secured by mortgage); Winchell v. Coney, supra, 27 (no invalidation for failure to state terms for payment of interest); see generally 9 G. Thompson, Real Property (1958 Replacement) § 4744, p. 373.

We reiterate that a mortgage need not set forth all of the terms of the underlying obligation provided that it gives notice of the nature and amount of the obligation, so that subsequent lien creditors are not misled. The plaintiff has expressly disavowed any claim that the mortgages in this case defrauded or otherwise misled subsequent lien creditors. We conclude, therefore, that the mortgages are not invalid under our common law for failure to state the maximum term of the note.

The question certified to us from the district court asked us to determine whether the defendant’s mortgages “are valid and enforceable in light of the provisions of section 49-3 lb (a) of the Connecticut General Statutes.” Having concluded that § 49-31b (a) does not supplant common law standards for the validity of mortgages, and that the defendant’s mortgages are valid under those common law standards, we answer the certified question: “Yes.”

No costs will be taxed in this court to either party.

In this opinion the other justices concurred.

       Title 11 of the United States Code, § 544, provides in relevant part: “TRUSTEE AS LIEN CREDITOR AND AS SUCCESSOR TO CERTAIN CREDITORS AND PURCHASERS.
      “(a) The trustee shall have, as of the commencement of the case, and without regard to any knowledge of the trustee or of any creditor, the rights and powers of, or may avoid any transfer of property of the debtor or any obligation incurred by the debtor that is voidable by—
      “(1) a creditor that extends credit to the debtor at the time of the commencement of the case, and that obtains, at such time and with respect to such credit, a judicial lien on all property on which a creditor on a simple contract could have obtained such a judicial lien, whether or not such a creditor exists;
      “(2) a creditor that extends credit to the debtor at the time of the commencement of the case, and obtains, at such time and with respect to such credit, an execution against the debtor that is returned unsatisfied at such time, whether or not such a creditor exists; or
      “(3) a bona fide purchaser of real property, other than fixtures, from the debtor, against whom applicable law permits such transfer to be perfected, that obtains the status of a bona fide purchaser and has perfected such transfer at the time of the commencement of the case, whether or not such a purchaser exists.”
      Under 11 U.S.C. § 1107 (a), a chapter 11 debtor-in-possession, such as the plaintiff, may exercise the powers of a trustee under § 544.
      The Unsecured Creditors Committee in the plaintiff’s chapter 11 case is a party in the plaintiffs bankruptcy proceeding; see 11 U.S.C. § 705; and, therefore, a party to the certification question before this court. Its arguments in favor of invalidating the defendant’s mortgages are substantially similar to those of the plaintiff.

       General Statutes § 51-199a, the Uniform Certification of Questions of Law Act, provides in relevant part: “uniform certification of questions of law act. (a) This section may be cited as the Uniform Certification of Questions of Law Act.
      “(b) The supreme court may answer questions of law certified to it by the Supreme Court of the United States, a court of appeals of the United States or a United States district court when requested by the certifying court if there are involved in any proceeding before it questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the supreme court of this state.
      “(c) This section may be invoked by an order of any of the courts referred to in subsection (b) of this section upon the court’s own motion or upon the motion of any party to the cause.”

       The certified question stated the issue as follows: “Whether the mortgage deed dated November 13, 1980, from Dart & Bogue Company, Inc. f/k/a Arctos Corporation to Milton O. Slosberg and the mortgage deed dated March 11,1980 [sic], from Dart & Bogue Company, Inc. f/k/a Arctos Corporation to Milton O. Slosberg are valid and enforceable in light of the provisions of Section 49-31b (a) of the Connecticut General Statutes.” Although the certified question asks us to consider the general validity of the defendant’s mortgages under applicable Connecticut law, the sole issue raised by the parties before this court is whether the mortgages are invalid for failing to state the maximum term of the promissory note. Accordingly, we limit our review to a determination of that particular question. See Practice Book § 4185 (formerly § 3063).

       The named grantor on the mortgage and maker on the note is Arctos Corporation. Arctos Corporation is the plaintiffs prior name. On this certification, we treat Arctos and the plaintiff as the same entity.

       The relevant provision, identical in both mortgages, is as follows:
      “THE CONDITION OF THIS DEED is such that whereas the Grantor is justly indebted to the Grantee in the amount of ONE MILLION FOUR HUNDRED FIFTY THOUSAND DOLLARS ($1,450,000.00) by virtue of its promissory note of even date with this instrument, by which note, for value received, the Grantor promises to pay to the order of the Grantee said sum with interest at the rate of ten (10) percent per annum from the date of said note, payable upon the unpaid principal balance until fully paid.”
      With regard to the supplemental mortgage, the reference to the note “of even date with this instrument” is obviously incorrect, since the supplemental mortgage was executed on March 11, 1981, and the note on November 13,1980. The plaintiff makes no claim, however, that this mistake has any bearing on the supplemental mortgage’s validity.

        Sadd v. Heim, 143 Conn. 582, 124 A.2d 522 (1956), construed the statutory predecessor of § 49-3, General Statutes § 2970d. The two statutes are identical in all relevant respects.

       The relevant portion of the legislative history is set forth herein:
      “The Clerk: Calendar 614. Substitute for House Bill No. 5630, an act concerning mortgage deeds with respect to subordination clauses and notes.
      “The Speaker: Gentleman from the 146th.
      “Rep. Elmer W. Lowden (146th): Mr. Speaker I move acceptance of the Joint Committee’s favorable report and passage of the bill.

        “The Speaker: Questions on acceptance and passage. Will you remark?
      “Rep. Elmer W. Lowden (146th): Mr. Speaker, Section 1 of the bill makes it clear that an instrument affecting Real Property may provide therein that it be subordinate to future mortgages without the necessity of a subsequent instrument affecting such organization. Section 2 of the bill obliges that a mortgage deed shall constitute a valid lien on the premises described therein if the note is secured by said mortgage and sufficiently described therein by reference to the date the principal amount thereof and the maximum term thereof; namely, the maturity date. I urge passage of the bill Mr. Speaker.
      “The Speaker: Gentleman from the 136th.
      “Rep. Alan H. Nevas (136th): Mr. Speaker, the Clerk has an amendment and I would ask that he call LCO 2546.
      “The Clerk: House Amendment Schedule ‘A’ offered by Mr. Nevas of the 136th.
      “The Speaker: Do you care to summarize or wish it read[?]
      “Rep. Alan H. Nevas (136th): I would move the amendment, Mr. Speaker and ask that it be read.
      “The Clerk: In line 17 after the comma before the word ‘whether’ insert an opening bracket. In line 19 after the comma and before the word ‘which’ insert a closing bracket.
      “The Speaker: The House Amendment ‘A’. Will you remark?
      “Rep. Alan H. Nevas (136th): Mr. Speaker, the purpose of this amendment is to merely delete that portion of Section 2 which would validate existing mortgages. It’s my feeling and I discussed this with Rep. Healey and with Rep. Lowden that this bill should apply only to future mortgages and not validate existing mortgages and they concur.
      “The Speaker: Remark further on Amendment ‘A’? Gentleman from the 146th.
      “Rep. Elmer W. Lowden (146th): Mr. Speaker, I have no objection to the amendment and will, in fact, support it.
      “The Speaker: Remark further? If not, the question is on acceptance of House Amendment ‘A’. All in favor signify by saying ‘Aye’. Opposed. House ‘A’ is adopted. Ruled technical. . . .” 19 H.R. Proc., Pt. 5, 1976 Sess., pp. 2096-98.
      Later in discussion of the same amendment, one representative asked whether the effect of House Bill No. 5630 was to invalidate previously existing mortgages. Representative Lowden replied: “Not unless they are invalid on the face of them. We haven’t done anything to disturb them. They remain at status quo.” 19 H.R. Proc., Pt. 5, 1976 Sess., p. 2149.

       We note, however, that the originally proposed version of General Statutes § 49-31b (a); Raised Committee Bill No. 5677, General Assembly, February Sess., 1976; included a statement of purpose which provided, inter alia, that the bill was intended to clarify that the information included on certain federally sponsored mortgage forms would satisfy common law notice-giving requirements. The statement of purpose is additional evidence that § 49-31b (a) was intended to supplement, rather than supplant, common law standards.

       Our conclusion that the defendant’s mortgages are valid under common law criteria makes it unnecessary to determine whether they would also be valid under the “safe harbor” provisions of General Statutes § 49-31b (a). Specifically, we do not address the defendant’s argument that, because the mortgages stated the name and address of the mortgagee, they satisfied § 49-31b (a) by providing “information from which there can be determined” the maximum term of the note. We note, however, that such an interpretation would be consistent with the provisions for record notice of security interests in personal property under Article 9 of our Uniform Commercial Code; see General Statutes § 42a-9-401 et seq.; which our legislature enacted in 1959, fifteen years before it enacted § 49a-31b (a).