Barbato v. J. & M. Corp.

• Decision Date: 14 August 1984
• Citation: 194 Conn. 245,478 A.2d 1020
• Court: Connecticut Supreme Court
• Parties: Pasquale A. BARBATO v. J. & M. CORPORATION.

Page 1020

478 A.2d 1020

194 Conn. 245

Pasquale A. BARBATO v. J. & M. CORPORATION.

Supreme Court of Connecticut.

Argued April 3, 1984.

Decided Aug. 14, 1984.

Bruce L. Levin, Milford, with whom, on the brief, was Robert Kapusta, Milford, for appellant (respondent John P. McGill).

Richard K. Greenberg, Asst. Atty. Gen., with whom were Francesca Borges, law student intern, and, on the brief, Joseph I. Lieberman, Atty. Gen., for appellee (plaintiff).

Before SPEZIALE, C.J., and PETERS, HEALEY, PARSKEY and SHEA, JJ.

SPEZIALE, Chief Justice.

The respondent witness, John P. McGill, has appealed from the order of the trial court granting the application of the plaintiff, Pasquale A. Barbato, deputy commissioner of revenue services, to compel testimony in an inquiry conducted by the department of revenue services. Because we hold that the order granting the application to compel testimony is not a final judgment, we dismiss this appeal sua sponte.

In 1980, the department of revenue services of the state of Connecticut notified by letter the J. & M. Corporation, a Delaware corporation, that it had a tax liability of $4590.73 arising from the purchase or use of a boat. At an administrative hearing convened on July 15, 1982, John P. McGill, president of J. & M. Corporation, was subpoenaed by the plaintiff and appeared with counsel but refused to answer any questions concerning J. & M. Corporation and invoked his constitutional privilege against self-incrimination. ¹ The plaintiff then applied to the Superior Court to compel testimony pursuant to General Statutes § 12-429. ² The trial court denied the respondent's motion to quash and strike the application. The respondent has appealed from the order granting the plaintiff's application to compel testimony. ³

It is well established that an appeal brought pursuant to General Statutes § 52-263 lies only from a final judgment . ⁴ State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983). An order is final and appealable "(1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them." State v. Curcio, supra, 191 Conn. at 31, 463 A.2d 566. This order, compelling testimony pursuant to General Statutes § 12-429, is not such a final order.

The respondent contends that the order granting the application is the final step under the statutory section and is thus appealable. A plain reading of the statute and order, however, shows that there are further proceedings to be undertaken. The trial court's memorandum of law on the respondent's motion to quash and strike the application states simply that the respondent may not invoke a blanket constitutional privilege against self-incrimination. In granting the application, the trial court is ordering the respondent to appear before the trial court to answer questions. See General Statutes § 12-429. This respondent, however, has not yet appeared before the trial court to answer any questions. The respondent is appealing from an order requiring his presence in court to answer questions even before such questions have been asked. It is not known whether the respondent will refuse to answer each and every question put to him by the trial court. Nor is it known whether the trial court, upon proper consideration, would uphold the privilege as to each question, deny the privilege as to each question, or uphold the privilege as to some questions. Even after the respondent appears in court, General Statutes § 12-429 provides for further proceedings in that, if the respondent fails to comply with the trial court's order, the trial court "shall commit such person to a community correctional center until he testifies." The statutory proceedings were not yet concluded upon the granting of the plaintiff's application to compel testimony.

In this case, the order granting the application is analogous to a trial court ordering compliance with discovery procedures. Such orders generally are not appealable. See State v. Grotton, 180 Conn. 290, 429 A.2d 871 (1980); Chrysler Credit Corporation v. Fairfield Chrysler-Plymouth, Inc., 180 Conn. 223, 429 A.2d 478 (1980); State v. Kemp, 124 Conn. 639, 1 A.2d 761 (1938). The initial determination of discovery orders "does not so conclude the rights of the appealing party that further proceedings cannot affect those rights." State v. Grotton, supra, 180 Conn. at 292, 429 A.2d 871. Just as we require that those ordered to comply with discovery be found in contempt of court before we consider an appeal, so too must this respondent await the sanction of the trial court before appellate review.

In discovery and analogous situations, the trial court must balance competing concerns. One party may assert that certain information is necessary for a full and fair determination of the action. Another party may desire to keep the information confidential. The judicial system requires the efficient processing of cases and the avoidance of disrupting, piecemeal appeals. See State v. Curcio, supra. The interests of the judicial system would be impaired if parties could interminably delay actions by appeals from interlocutory rulings.

The party seeking to withhold information may have strong needs to keep that information confidential. Due to the interests of the other parties and the judicial system, however, that person may be compelled to disclose the information or be held in contempt. If the party chooses to disclose the information upon order of the trial court and that information is used against him or her and results in an adverse judgment, the party may then appeal and challenge the propriety of the trial court's order to disclose the information. If the party chooses to keep the information confidential, even after being ordered by the trial court to divulge it, he or she may be held in contempt. A judgment of contempt is a final, reviewable judgment.

On appeal from the judgment of contempt this court can review " 'questions of jurisdiction such as whether the court had authority to impose the punishment inflicted and whether the act or acts for which the penalty was imposed could constitute a contempt.' State v. Jackson, 147 Conn. 167, 170, 158 A.2d 166 (1960); see Leslie v. Leslie, 174 Conn. 399, 402-403, 389 A.2d 747 (1978); Potter v. Board of Selectmen, 174 Conn. 195, 197, 384 A.2d 369 (1978); Tobey v. Tobey, 165 Conn. 742, 746, 345 A.2d 21 (1974); Stoner v. Stoner, 163 Conn. 345, 359, 307 A.2d 146 (1972); Goodhart v. State, 84 Conn. 60, 63, 78 A. 853 (1911)." Papa v. New Haven Federation of Teachers, 186 Conn. 725, 731, 444 A.2d 196 (1982); see Hartford Federal Savings & Loan Assn. v. Tucker, 192 Conn. 1, 469 A.2d 778 (1984). This scope of review "is sufficiently broad to encompass many claims of error which may not appear on their face to be jurisdictional in nature. See Baldwin v. Miles, [58 Conn. 496, 20 A. 618 (1890) ]." Papa v. New Haven Federation of Teachers, supra, 186 Conn. at 732, 444 A.2d 196.

Thus, whether the party divulges the information and suffers adverse consequences or refuses to divulge the information and is held in contempt, the issue is at some point reviewable and the claimed right to confidentiality need not be lost without the opportunity for appellate review.

The respondent's claim that his constitutional privilege against self-incrimination will be lost if we do not review the merits of his appeal at this time is not persuasive. Upon hearing the specific questions the trial court may agree with some or all of the respondent's claims, if any, of privilege. Even if the court directs the respondent to answer a specific question after he has claimed the privilege, the respondent may refuse to answer and may be found in contempt. Only after the respondent has been adjudged to be in contempt are the proceedings against him final. The information would remain confidential and the respondent would then have an appealable final judgment. The respondent's claim is premature.

The appeal is dismissed sua sponte.

In this opinion the other Judges concurred.

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