Cislo v. City of Shelton ( 1996 )

HEIMAN, J.

The plaintiff appeals from the judgment of the trial court, rendered in favor of the defendant, after the granting of the defendant’s motion for summary judgment. On his appeal as amended, the plaintiff claims that the trial court improperly (1) granted the defendant’s motion for summary judgment and (2) denied the plaintiffs motion to open the judgment and to set aside the summary judgment. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. On October 12, 1989, the plaintiff, a Shelton police officer, was arrested and charged with the sexual assault of a police informant. Subsequent to the arrest of the plaintiff, the informant disappeared. On January 24, 1991, the assistant state’s attorney entered a nolle prosequi in open court in the criminal action against the plaintiff.¹ The assistant state’s attorney entered the nolle because of the disappearance of the informant. The plaintiffs counsel in the criminal action objected to the entry of the nolle and moved to dismiss the case. The trial court declined to dismiss the case and accepted the entry of the nolle pursuant to Practice Book § 726.²

On March 4, 1992, the plaintiff brought an action against the defendant pursuant to General Statutes § 53-39a,³ seeking indemnification for the economic losses he incurred in the defense of the criminal charges brought against him. Subsequent to the filing of the complaint, the plaintiff and the defendant filed cross motions for summary judgment. On January 11, 1994, the trial court, Rush, J., denied the plaintiffs motion for summary judgment and granted the defendant’s cross motion. In its memorandum of decision regarding the cross motions for summary judgment, the trial court determined that the plaintiff was not entitled to relief under § 53-39a. The trial court found as a matter of law that the plaintiff was not entitled to relief because § 53-39a provides for indemnification only where the criminal charges against a police officer are dismissed or where the officer is found not guilty, and that here, the underlying criminal action against the plaintiff was terminated by the entry of a nolle prosequi. On January 27,1994, judgment was rendered in favor of the defendant and this appeal followed. In his initial appeal, the plaintiff claims that the trial court improperly granted the defendant’s motion for summary judgment.

On April 16,1994, during the pendency of his appeal, the plaintiff filed a motion in the trial court seeking to dismiss the criminal charges against him that had previously been nolled. On April 27,1994, the trial court in the criminal action, Skolnick, J., granted the motion to dismiss. On May 3, 1994, the plaintiff filed a motion in the trial court to open the judgment and to set aside the summary judgment in the present action, claiming that the recent dismissal of the nolled criminal charges made him eligible for indemnification under § 53-39a. On August 19, 1994, the trial court in the civil action, Rush, J., denied the plaintiff’s motion to open and found that because the criminal charges against the plaintiff had been nolled, they were no longer pending and could not have been properly dismissed for the purpose of seeking indemnification under § 53-39a. On September 7, 1994, the plaintiff filed an amendment to his appeal, adding the claim that the trial court improperly denied the plaintiffs motion to open the judgment and to set aside the summary judgment.

I

The plaintiff first claims that the trial court improperly granted the defendant’s motion for summary judgment. The plaintiff posits that the trial court, in granting the defendant’s motion for summary judgment, improperly determined that § 53-39a does not provide for indemnification where criminal charges against a police officer have been nolled. We are unpersuaded.

We first set forth our standard of review. “The standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Pursuant to Practice Book § 384, summary judgment ‘shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ ” Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 780-81, 595 A.2d 334 (1991). Here, the facts are not in dispute. The plaintiffs claim is that the trial court improperly construed § 53-39a in granting the defendant’s motion for summary judgment. “The dispute between the parties here does not arise out of contested versions of the facts, but out of the legal significance of the facts as they relate to relevant statutoiy definitions.” Pinheiro v. Board of Education, 30 Conn. App. 263, 268, 620 A.2d 159 (1993). Thus, the question before us is whether the defendant was “ ‘entitled to judgment as a matter of law.’ ” Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 402, 528 A.2d 805 (1987).

In deciding whether the defendant was entitled to judgment as a matter of law, we must determine whether the trial court was correct when it found that § 53-39a does not provide for indemnification where criminal charges against a police officer have been nolled. In making this determination, we must engage in statutory construction.

We begin with the text of § 53-39a.⁴ “That statute affords a police officer a right of indemnity for economic loss incurred for a prosecution ‘for a crime allegedly committed by such officer in the course of his duty as such’ if ‘the charge is dismissed or the officer found not guilty.’ ” Rawling v. New Haven, 206 Conn. 100, 104, 537 A.2d 439 (1988). Thus, “any person who invokes § 53-39a must sustain a twofold burden of proof. In order to receive indemnity, a police officer must prove not only that the charges against him were dismissed, or that he was acquitted, but also that the charges arose in the course of his duty as a policeman.” (Internal quotation marks omitted.) Id., 106. Whether the plaintiff was acting in the course of his duty is not in issue here. The plaintiff claims that the entry of a nolle prosequi is included “under the umbrella” of the term “dismissal” for the purposes of § 53-39a, thereby making him eligible for indemnification. The plaintiff posits that because § 53-39a should be construed in that way, the trial court’s rendering of summary judgment in favor of the .defendant was improper.

“In construing any statute, we seek to ascertain and give effect to the apparent intent of the legislature. United Illuminating Co. v. Groppo, 220 Conn. 749, 755, 601 A.2d 1005 (1992). It is a well established rule of statutory construction that when the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent. American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 193, 530 A.2d 171 (1987). . . . Courts should not read into clearly expressed legislation provisions which do not find expression in its words. Local 218 Steamfitters Welfare Fund v. Cobra Pipe Supply & Coil Co., 207 Conn. 639, 645, 541 A.2d 869 (1988).” (Internal quotation marks omitted.) Berry v. Loiseau, 223 Conn. 786, 830-31, 614 A.2d 414 (1992).

In construing § 53~39a in particular, our Supreme Court has followed the well settled rule that “[statutes that abrogate or modify governmental immunity are to be strictly construed. Struckman v. Burns, 205 Conn. 542, 558, 534 A.2d 888 (1987); Ahern v. New Haven, 190 Conn. 77, 82, 459 A.2d 118 (1983). This rule of construction stems from ‘the basic principle that when a statute is in derogation of common law or creates a liability where formerly none existed, it should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of construction.’ Edmundson v. Rivera, 169 Conn. 630, 633, 363 A.2d 1031 (1975); see also Dennis v. Shaw, 137 Conn. 450, 452, 78 A.2d 691 (1951).” Rawling v. New Haven, supra, 206 Conn. 105.

In light of the above principles, we decline to extend the language of § 53-39a to provide for indemnification where a nolle prosequi has been entered by the prosecuting authority. The language of § 53-39a is plain and unambiguous. The statute clearly provides that in order to qualify for indemnification, the plaintiff must prove either that the charges against him were dismissed or that he was found not guilty. Id., 106. The entry of a nolle prosequi is neither a dismissal nor a verdict of not guilty. “The state’s right to terminate a prosecution by the entry of a nolle prosequi has its origins in practices recognized at common law. The effect of a nolle prosequi is to end pending proceedings without an acquittal and without placing the defendant in jeopardy. Bucolo v. Adkins, 424 U.S. 641, 642, 96 S. Ct. 1086, 47 L. Ed. 2d 301 (1976); see United States v. Jorn, 400 U.S. 470, 479, 91 S. Ct. 547, 27 L. Ed. 2d 543 (1971); 4 Wharton, Criminal Procedure (12th Ed. 1976) § 518.” State v. Lloyd, 185 Conn. 199, 201, 440 A.2d 867 (1981); see also Practice Book § 727. After the entry of a nolle, “the defendant shall be released from custody. If subsequently the prosecuting authority decides to proceed against the defendant, a new prosecution must be initiated.” Practice Book § 727. Furthermore, thirteen months after the entry of the nolle, all records of the arrest and prosecution of the defendant are erased. General Statutes § 54-142a (c).

Following our Supreme Court’s opinion in Link v. Shelton, 186 Conn. 623, 627, 443 A.2d 902 (1982), we are further guided by General Statutes § 1-1 (a)⁵ in construing § 53-39a according to its plain language. Under § 1-1 (a), specialized legal terms are to be construed according to their proper meaning as understood in the law. The terms “dismissed” and “not guilty” are “term[s] of art, or technical phrase[s], [each with] a ‘peculiar and appropriate meaning in the law’. . . .” Link v. Shelton, supra, 627, quoting General Statutes § 1-1 (a). We therefore must construe each term in accordance with such meaning. General Statutes § 1-1 (a); see also Link v. Shelton, supra, 627. Neither the meaning of the term “dismissed” nor the meaning of the term “not guilty” includes the entry of a nolle prosequi.⁶

Were we to extend § 53-39a to include the entry of a nolle prosequi as an alternative prerequisite to seeking indemnification, we would be presuming that the legislature either mistakenly omitted the entry of a nolle from the parameters of the statute or was unaware of the difference between a nolle and a dismissal at the time of the drafting of § 53-39a. The legislature, however, is presumed to know the existing state of the law when it enacts a statute, and we will not presume otherwise. State v. Dabkowski, 199 Conn. 193, 201, 506 A.2d 118 (1986). We will not broaden the scope of § 53-39a by exercising an option available to the legislature, but that the legislature has declined to exercise. “As we have stated in numerous other cases, ‘it is not the province of a court to supply what the legislature chose to omit. The legislature is supreme in the area of legislation, and courts must apply statutory enactments according to their plain terms.’ Federal Aviation Administration v. Administrator, [196 Conn. 546, 550, 494 A.2d 564 (1985)]; In re Petition of State’s Attorney, Cook County, Illinois, 179 Conn. 102, 107, 425 A.2d 588 (1979); Weingarten v. Allstate Ins. Co., 169 Conn. 502, 507-508, 363 A.2d 1055 (1975).” Glastonbury Co. v. Gillies, 209 Conn. 175, 181, 550 A.2d 8 (1988).

We understand that in recognizing the independent meaning of the term “nolle prosequi” in contrast to the meanings of the terms “dismissal” and “not guilty,” the scope of the indemnification remedy under § 53-39a remains limited. See Rawling v. New Haven, supra, 206 Conn. 112. We must conclude, however, that the legislature intended such a limitation. See id. It is worth repeating that “[n]ot only do we strive to attach independent meaning to every phrase contained in a legislative enactment; DeFonce Construction Corporation v. State, [198 Conn. 185, 187, 501 A.2d 745 (1985)]; State v. Milum, 197 Conn. 602, 619, 500 A.2d 555 (1985); we also are bound to construe narrowly any statute that modifies or abrogates governmental immunity. Ahern v. New Haven, [190 Conn. 77, 82, 459 A.2d 118 (1983)].” Rawling v. New Haven, supra, 112-13. Guided by these principles, we decline to construe § 53-39a to provide for indemnity where the state’s attorney has entered a nolle prosequi in the prosecution of a police officer for a crime allegedly committed by such officer in the course of his duty. Therefore, because the plaintiffs criminal case was terminated by the entry of a nolle prosequi, the trial court properly granted the defendant’s motion for summary judgment.

II

The plaintiff next claims that the trial court improperly denied his motion to open the judgment and to set aside the summary judgment rendered in favor of the defendant. The plaintiff argues that even though the criminal charges against him were nolled, the subsequent dismissal of those charges served to qualify him for indemnification under § 53-39a, and therefore, the judgment rendered against him should have been opened. We do not agree.

Our standard of review of a trial court’s motion to open is well settled. “A motion to open and vacate a judgment ... is addressed to the [trial] court’s discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion. See Manchester State Bank v. Reale, 172 Conn. 520, 523-24, 375 A.2d 1009 (1979); State v. Fahey, 147 Conn. 13, 15, 156 A.2d 463 (1959). In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. State v. Bitting, 162 Conn. 1, 11, 291 A.2d 240 (1971); E. M. Loew’s Enterprises, Inc. v. Surabian, 146 Conn. 608, 612, 153 A.2d 463 (1959). Celanese Fiber, Division of Celanese of Canada, Ltd. v. Pic Yarns, Inc., [184 Conn. 461, 466-67, 440 A.2d 159 (1981)]. Acheson v. White, 195 Conn. 211, 214-15, 487 A.2d 197 (1985). Yanow v. Teal Industries, Inc., 196 Conn. 579, 583, 494 A.2d 573 (1985). The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did. DiPalma v. Wiesen, 163 Conn. 293, 298, 303 A.2d 709 (1972); E. M. Loew’s Enterprises, Inc. v. Sura-bian, [supra, 611]. Ridolfi v. Ridolfi, 178 Conn. 377, 379, 423 A.2d 85 (1979). . . . Gillis v. Gillis, 214 Conn. 336, 340-41, 572 A.2d 323 (1990).” (Internal quotation marks omitted.) Walton v. New Hartford, 223 Conn. 155, 169-70, 612 A.2d 1153 (1992). Applying this standard of review, we conclude that the trial court did not abuse its discretion in denying the plaintiffs motion to open the judgment.

In denying the plaintiffs motion to open, the trial court determined that because the prosecution of the plaintiff had been terminated by the entry of a nolle prosequi, the charges against him could not be dismissed for the purpose of qualifying him for indemnification under § 53-39a. We agree with the reasoning of the trial court. The entry of a nolle prosequi terminates the prosecution without an acquittal and without placing the defendant in jeopardy, and thereafter, the defendant is released from custody. State v. Lloyd, supra, 185 Conn. 201; Practice Book § 727. Thirteen months after the entiy of the nolle prosequi, all records of the arrest and prosecution are erased. General Statutes § 54-142a (c). If after the entry of the nolle prosequi the prosecuting authority decides to proceed against the defendant, a new prosecution must be initiated; Practice Book § 727; regardless of whether the erasure statute has become operative. State v. Herring, 209 Conn. 52, 57-58, 547 A.2d 6 (1988). Thus, “[u]pon entry of a nolle, the individual concerned is no longer a defendant in a criminal case. He stands accused of no crime and his release is unconditional.” State v. Gaston, 198 Conn. 435, 441, 503 A.2d 594 (1986).

In accordance with the above principles, the plaintiff “was not under arrest, not in custody, and not subject to any criminal prosecution” after the entry of the nolle prosequi. (Internal quotation marks omitted.) Id. Consequently, no criminal charges were pending against the plaintiff that could have been dismissed for the purpose of qualifying him for indemnification under § 53-39a.⁷ Therefore, the trial court did not abuse its discretion in denying the plaintiffs motion to open the judgment and to set aside the summary judgment.

The judgment is affirmed.

In this opinion SCHALLER, J., concurred.

1 Practice Book §§ 725 and 727 and General Statutes § 54-142a (c) address the entry and effect of a nolle prosequi. Concerning the entry of a nolle, Practice Book § 725 provides: “A prosecuting authority shall have the power to enter a nolle prosequi in a case. It shall be entered upon the record after a brief statement by the prosecuting authority in open court of the reasons therefor.” Concerning the effect of a nolle, Practice Book § 727 provides: “The entry of a nolle prosequi terminates the prosecution and the defendant shall be released from custody. If subsequently the prosecuting authority decides to proceed against the defendant, a new prosecution must be initiated.” Furthermore, General Statutes § 54-142a (c) provides in relevant part: “Whenever any charge in a criminal case has been nolled in the superior court, or in the court of common pleas, if at least thirteen months have elapsed since such nolle, all police and court records and records of the state’s or prosecuting attorney or the prosecuting grand juror pertaining to such charge shall be erased. . . .”

2 Practice Book § 726 provides: “Where a prosecution is initiated by complaint or information, the defendant may object to the entering of a nolle prosequi at the time it is offered by the prosecuting authority and may demand either a trial or a dismissal, except when a nolle prosequi is entered upon a representation to the judicial authority by the prosecuting authority that a material witness has died, disappeared or become disabled or that material evidence has disappeared or has been destroyed and that a further investigation is therefore necessary.” See also General Statutes § 54-56b, which provides: “A nolle prosequi may not be entered as to any count in a complaint or information if the accused objects to the nolle prosequi and demands either a trial or dismissal, except with respect to the prosecutions in which a nolle prosequi is entered upon a representation to the court by the prosecuting official that a material witness has died, disappeared or become disabled or that material evidence has disappeared or has been destroyed and that a further investigation is therefore necessary.”

3 General Statutes § 53-39a provides in relevant part,: “Whenever, in any prosecution of an officer of ... a local police department for a crime allegedly committed by such officer in the course of his duty as such, the charge is dismissed or the officer found not guilty, such officer shall be indemnified by his employing governmental unit for economic loss sustained by him as a result, of such prosecution, including the payment of any legal fees necessarily incurred.”

4 See footnote 3.

5 General Statutes § 1-1 (a) provides: “In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly."

6 Contrary to the suggestion of the dissent, we decline to apply the definition of “dismissal” set forth in General Statutes § 54-142g (g) to General Statutes §§ 53-39a and 54-142a_ Section 54-142g, by its own terms, applies only to General Statutes §§ 29-11, 54-142c and 54-142g through 54-142p.

7 We note that in State v. Lloyd, supra, 185 Conn. 205-206, our Supreme Court held that after the entry of a nolle prosequi, the trial court retains limited jurisdiction over the case to hear a motion to dismiss based on the alleged denial of the right to a speedy trial. Moreover, Lloyd assumed, a fortiori, that such a motion to dismiss based on speedy trial grounds must be properly raised before the entry of a nolle. State v. Gaston, supra, 198 Conn. 443. The record before us does not indicate that the plaintiff, before the entry of the nolle, moved to dismiss the criminal charges against him based on the denial of his right to a speedy trial. Furthermore, the plaintiff does not claim on appeal that he was denied the right to a speedy trial in the criminal case against him. We decline to extend the scope of Lloyd by holding that the trial court in the plaintiffs criminal case retained jurisdiction to dismiss the charges against the plaintiff for the purpose of qualifying him for indemnification under § 53-39a.