Attorney General: Judge Aaron Ment, Supreme Court Building, 1996-011 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General Richard Blumenthal

August 2, 1996

Judge Aaron Ment
Chief Court Administrator
Supreme Court Building
231 Capitol Ave.
Hartford, CT 06106

Dear Judge Ment:

Your office has posited several questions regarding the retroactive versus prospective application of Public Acts 96-63 and 96-79, which amend Conn. Gen. Stat. 54-142a, commonly referred to as the Connecticut Erasure Statute. The primary effects of the amendments are to remove the category of transcripts of criminal trials from the types of records that are subject to erasure, and to delay the actual physical destruction of erased records.

As a general rule, the law disfavors the retroactive application of a statute effecting substantive, as opposed to procedural, changes. Our Supreme Court, applying the principles embodied in Conn. Gen. Stat. 1-1(u) and 55-3 Endnote 1along with general principles of law, has consistently expressed a reluctance to "construe statutes retroactively where the statutes affect substantial changes in the law, unless the legislative intent clearly and unequivocally appears otherwise." State v. Lizotte, 200 Conn. 734, 741 (1986). "Statutes are applied retroactively in a very narrow category of cases. Retroactive application is the rule for amending statutes that are procedural in their impact. . . . An act that has been passed to clarify an existing statute, that is, one that was passed shortly after controversies arose as to the judicial interpretation of the original act, is also to be applied retroactively. . . . All other statutes are applied prospectively unless the legislature expressly specifies the contrary." Rudewicz v. Gagne, 22 Conn. App. 285, 288 (1990). Even if a statute is procedural, however, absent an express legislative intent, it will not be applied retroactively when "considerations of good sense and justice dictate that it not be so applied." DeAlmeida v. M.C.M. Stamping Corp., 29 Conn. App. 441, 450 (1992).

"These aids to legislative interpretation apply with equal force to amendatory acts which effectuate changes in existing statutes." American Masons' Supply Co. v. F. W. Brown Co., 174 Conn. 219, 223 (1978). Thus, a statute affecting vested rights or imposing new obligations is construed to apply prospectively unless the legislature clearly and unequivocally expresses its intent that the legislation shall apply retrospectively. Turner v. Turner, 219 Conn. 703, 712 (1991).

We turn now to an analysis of Public Acts 96-63 and 96-79.

P.A. # 96-63

P.A. 96-63 adds a new subsection, (h), to Conn. Gen. Stat. 54-142a, to provide: "For the purposes of this section, 'court records' shall not include a record or transcript of the proceedings made or prepared by an official court reporter, assistant court reporter or monitor." This section effectively overrules a Supreme Court decision holding that court transcripts do in fact constitute "court records" for purposes of 54-142a. Lechner v. Holmberg, 165 Conn. 152, 160 (1973). Thus, before the passage of this statute, a criminal defendant had a statutory right, following an acquittal or dismissal of charges against him Endnote 2 to have all records of his arrest and prosecution erased, including any transcripts of proceedings before the court. After the passage of P.A. 96-63, a criminal defendant who has been acquitted or whose charges have been dismissed does not have a right to have the transcripts of the criminal proceedings erased Endnote 3 We cannot see how this change in the law can be viewed as anything but substantive, affecting vested rights. Endnote 4 There is nothing in this public act or its legislative history to indicate either that the legislature viewed this change as a clarification of the law or that it intended the change to apply retroactively. Accordingly, in our opinion, Public Act 96-63 should be construed as applying prospectively only. The Court will not construe a statute to "disrupt settled expectations . . . absent a specific mandate from the legislature." Darak v. Darak, 210 Conn. 462, 469 (1989).

Having determined that the change in the statute applies prospectively, we must now determine what constitutes a prospective application. The right to erasure vests at the time the conditions for erasure are satisfied -- i.e., at the expiration of the appeal or appeal period following the acquittal or dismissal, as provided in Conn. Gen. Stat. 54-142a. Consequently, in prosecutions that are in progress but that have not reached this final status on October 1, 1996, P.A. 96-63 cannot be considered to be applied retroactively, and so fall within the amended version of the statute. This is because a criminal defendant's potential reliance on the right to erasure--the feature that creates a substantive right-- has not been immutably fixed prior to his fulfillment of all conditions which would entitle him to erasure. If the exclusion of transcripts from the term "court records" in the amended version of the statute is unsatisfactory to a criminal defendant at any time prior to the completion of all conditions which would lead to a dismissal, he or she may seek to change his plea or opt out of the diversionary program on the basis of the change in the statute. Endnote 5 He will not have suffered an irrevocable loss caused by the change in the law.

Since, therefore, the right to erasure vests only at the point when all relevant conditions have been fulfilled, the amendment to Conn. Gen. Stat. 54-142a contained in Public Act 96-63 is retroactive only as it applies to prosecutions that have already resulted in acquittal or dismissal within the definition and time frame of the statute prior to October 1, 1996,

We therefore answer your questions regarding P.A. 96-63 in this way:

1. Does the exclusion of a record or transcript of the proceedings made or prepared by a court reporter or monitor from the meaning of "court records" in C.G.S. 54-142a apply to cases that were erased prior to October 1, 1996?

Answer: No. Such cases still fall within the earlier version of the statute, and are accordingly still subject to erasure.

2. Does the exclusion of a record or transcript of the proceedings made or prepared by a court reporter or monitor from the meaning of "court records" in C.G.S. 54-142a apply to cases where the defendant has either applied for or entered a diversionary program which could result in an eventual erasure, but which program either has not yet been granted or the defendant has not yet completed the program as of October 1, 1996?

Answer: Yes.

3. Does the exclusion of a record or transcript of the proceedings made or prepared by a court reporter or monitor from the meaning of "court records" in C.G.S. 54-142a apply to cases which were filed but not yet disposed as of October 1, 1996?

Answer: Yes.

4. Does the exclusion of a record or transcript of the proceedings made or prepared by a court reporter or court monitor from the meaning of "court records" in C.G.S. 54-142a apply to offenses committed prior to October 1, 1996 but the establishment of a court file does not occur until on or after October 1, 1996?

Answer: Yes.

P.A. # 96-79 (as it amends Conn. Gen. Stat. 54-142a)

Conn. Gen. Stat. 54-142a(e) establishes the procedures for the erasure and destruction of court records. Endnote 6 P.A. 96-79, enacted after P.A. 96-63, amends Conn. Gen. Stat. 54-142a(e) to provide:

Such clerk or such person, as the case may be, shall provide adequate security measures to safeguard against unauthorized access to or dissemination of such [erased] records or upon the request of the accused cause the actual physical destruction of such [erased] records, EXCEPT THAT SUCH CLERK SHALL NOT CAUSE THE ACTUAL PHYSICAL DESTRUCTION OF SUCH RECORDS UNTIL THREE YEARS HAVE ELAPSED FROM THE DATE OF THE FINAL DISPOSITION OF THE CRIMINAL CASE TO WHICH SUCH RECORDS PERTAIN. (new language in caps)

The legislative history of P.A 96-79 indicates that by this amendment the legislature intended to delay the actual destruction of any records until the statute of limitations had passed on the criminal defendant's right to sue law enforcement agencies for false arrest or malicious prosecution. See 39 S. Proc., April 10, 1996, at 1223-27; 39 S.Proc., April 23, 1996, at 2224. We believe that this section does not affect substantive rights, and may be applied retroactively.

Specifically, even under the pre- P.A. 96-79 version of the statute, civil defendants in false arrest and malicious prosecution actions have a right to obtain otherwise erased records under an exception to the erasure statute. Conn. Gen. Stat. 54-142a(f)(1); State v. Cutler, 33 Conn. Supp. 158 (1976). At the same time, a criminal defendant whose case results in a nolle, dismissal or acquittal-- the potential plaintiff in a false arrest or malicious prosecution action -has the option of requesting the physical destruction of his or her erased records under 54-142a(e). Under the version of the statute prior to the amendment, if such a criminal defendant makes an erasure request prior to filing such an action, the civil defendant may effectively be denied his concurrent right to obtain the records to prepare his defense.

The amendment contained in P.A. 96-79 does not adversely affect either of these sets of rights, but instead attempts to preserve them. It works out a procedure for balancing the criminal defendant's right to the destruction of records under Conn. Gen. Stat. 54-142a(e) with the civil defendant's right to obtain the records pursuant to the 54-142a(f)(1) exception, despite their erasure, thus protecting both substantive sets of rights. Only the timing of the actual destruction--a purely procedural matter -- has been changed.

Because this amendment affects only procedural rights, and there are no "considerations of good sense and justice [that] dictate that it not be so applied," DeAlmeida v. M.C.M. Stamping Corp., 29 Conn. App. 441, 450 (1992), it may be applied retroactively.

We therefore answer your questions concerning P.A. 96-79 in this way:

1. Does the three-year prohibition on the actual physical destruction of erased records apply to records erased prior to October 1, 1996 but not yet physically destroyed?

Answer: Yes.

2. If the answer to the above question is "yes" and a request for physical destruction of an erased record is received prior to October 1, 1996 but the record is not actually physically destroyed prior to October 1, 1996, is such an erased record subject to the three-year prohibition on the actual physical destruction of erased record or should such a record be physically destroyed as soon as possible even though it is on or after October 1, 1996?

Answer: The request for destruction is subject to the three-year prohibition.

3. Does the three-year prohibition on the actual physical destruction of erased records apply to pending cases where the defendant has applied for or entered a diversionary program which could result in erasure but the defendant either has not yet been granted entrance into or has not completed the program as of October 1, 1996?

Answer: Yes.

4. Does the three-year prohibition on the actual physical destruction of erased records apply to cases that were filed but not yet disposed of as of October 1, 1996?

Answer: Yes.

5. Does the three-year prohibition on the actual physical destruction of erased records apply to offenses committed prior to October 1, 1996 but the arrest or establishment of a court file does not occur until on or after October 1, 1996?

Answer: Yes.

P.A. # 96-79 (as it amends Conn. Gen. Stat. 51-51l)

Finally, P.A. 96-79 also amended part of the Judicial Review Council's statute, Conn. Gen. Stat. 51-51l(a), to add: "In conducting its investigation under this subsection, the Council may request that a court furnish to the Council a record or transcript of court proceedings made or prepared by a court reporter, assistant court reporter or monitor and the court shall, upon such request, furnish such record or transcript."

The legislative history indicates that the General Assembly intended this amendment as a clarification of the law. See 39 H.Proc., April 16, 1996, at 1228 ("For some reason, the current statute leaves this vague and this was simply to clarify that issue."). Clarifying legislation should be construed as applying retroactively. Darak v. Darak, 210 Conn. 462, 473 (1989).

Accordingly, we answer your final question as follows.

Does the amendment to subsection (a) of C.G.S. 51-51l, authorizing the Judicial Review Council in conducting an investigation pursuant to that subsection to request a court to furnish a record or transcript of court proceedings made or prepared by a court reporter or monitor and directing the court to furnish such record or transcript upon such request, apply to transcripts that were erased prior to the Council's request?

Answer: Yes.

We hope that we have answered your questions completely.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Gregory T. D'Auria
Carolyn K. Querijero
Henry S. Cohn
Assistant Attorneys General


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