Collett v. Bither

• Citation: 262 A.2d 353
• Parties: H. Eugene COLLETT v. Thomas O. BITHER.
• Decision Date: 19 February 1970
• Court: Supreme Judicial Court of Maine (US)

Page 353

262 A.2d 353

H. Eugene COLLETT v. Thomas O. BITHER.

Supreme Judicial Court of Maine.

Feb. 19, 1970.

Malcolm Berman, Houlton, for plaintiff.

John O. Rogers, Houlton, for defendant.

Before WEBBER, MARDEN, DUFRESNE, WEATHERBEE and POMEROY, JJ.

DUFRESNE, Justice.

In preparation for trial of his action charging the defendant with the alienation of his wife' affections, plaintiff sought under Rule 33, M.R.C.P., answers to 19 interrogatories. Defendant's timely objections thereto on the ground of constitutional privilege against self-incrimination were heard in the Superior Court and the defendant was ordered to answer questions numbered 1, 2, 3, 4, 12, 14, 17, 18 and 19 but excused from answering the others. Aggrieved in part by the Court's decree, defendant under Rule 72(c), M.R.C.P., made a motion to the Court below for the report of the case to the Law Court to have the question of law involved in the Court's interlocutory order determined before any further proceedings are taken in the action. The reference ruling on the enumerated interrogatories is before this Court on the report of the Justice below.

Plaintiff raises the jurisdictional propriety of the report, contending that the case was not reportable under Rule 72(c), since the Court below had rendered its decision upon the interlocutory matter. The rule reads as follows:

'(c) Report of Interlocutory Rulings. If the court is of the opinion that question of law involved in an interlocutory order or ruling made by it in any action ought to be determined by the Law Court before any further proceedings are taken therein, it may on motion of the aggrieved party report the case to the Law Court for that purpose and stay all further proceedings except such as are necessary to preserve the rights of the parties without making any decision therein.' (Emphasis supplied.)

A close reading of the rule dispels any possible ambiguity and requires as a prerequisite to permissive unilateral report of an interlocutory matter by a trial judge, 1) a judicial ruling thereon, 2) a motion to report the same by the aggrieved party and 3) a certificate by the trial judge that in his opinion the question of law involved in the interlocutory order or ruling ought to be determined by the Law Court before any further proceedings are taken. It is any after the trial judge has made his ruling that his interlocutory determination can be tested in the Law Court on report, and then, while action by the Law Court on the report is pending, all further proceedings stop in the trial court except such as are necessary to preserve the rights of the parties short of a final decision in the case. Such is the natural purport of the language of the rule. Our Court has so construed it in practical operation. See, Brawn v. John Lucas Tree Expert Co., Inc., 1961, 157 Me. 242, 170 A.2d 694, where this Court acted upon the lower Court's report to determine the propriety of its grant of summary judgment in favor of the plaintiff on the sole issue of liability on motion of the aggrieved defendant.

The power of a judge of the Superior Court to report to this Court any action is wholly derived from statute, 4 M.R.S.A. § 57, as implemented by Rule 72, M.R.C.P. The Supreme Judicial Court sitting as a Law Court is of limited jurisdiction. As such, it is a statutory court and can hear and determine only those matters authorized by statute and brought to it through the statutory course of procedure or that outlined by court rule implementing enabling legislation. See, Sears, Roebuck & Co. v. City of Portland, 1949, 144 Me. 250, at 253-254, 68 A.2d 12, at 14.

Our Rule 72(c) provides for the report of an interlocutory order or ruling without the consent of all the parties to the action and when adopted in 1959 was an innovation in Maine practice. It was patterned in part after the provisions of the Massachusetts General Laws, Chapter 231, Section 111. Field and McKusick, Maine Civil Practice, Rule 72, Reporter's Notes, p. 538. The Massachusetts statute, couched in perhaps clearer language than our rule, confirms our interpretation thereof. It reads in pertinent part as follows:

'If a justice of the supreme judicial or the superior court is of opinion that an interlocutory finding or order made by him ought to be determined by the full court before any further proceedings in the trial court, he may report the case for that purpose and stay all further proceedings except such as are necessary to preserve the rights of the parties.'

The Massachusetts Court has construed the statute as we do our Rule 72(c), that a judge of the Superior Court cannot report an interlocutory matter unless he had made an order deciding the interlocutory issue. Pierce's Case, 1950, 325 Mass. 649, 92 N.E.2d 245. When the Justices of the Supreme Judicial Court of Maine adopted the Massachusetts practice in reporting interlocutory matters for the purpose of appellate review, it must be assumed that they were familiar with the interpretative rulings previously made by the courts of that Commonwealth respecting the enabling procedural legislation and intended to adopt the same. See, by analogy, Mt. Vernon Tel. Co. v. Franklin Farmers' Co-op. Tel. Co., 1915, 113 Me. 46, 49, 92 A. 934; Foye v. Consolidated Baling Machine Company, 1967, Me., 229 A.2d 196. We conclude that the instant report is properly before us.

The plaintiff further contends that if this Court will entertain the present report, it should review the propriety of the lower Court's entire order, that is, not only that part of the decree requiring the defendant to answer certain interrogatories, but also that excusing him from answering the remaining questions.

Public Laws, 1959, Chapter 317, Section 69, enlarged the jurisdiction of the Law Court and permitted in reports of cases appellate review of interlocutory orders or rulings of such importance as to require, in the opinion of the justice, review by the Law Court before any further proceedings in the action. Rule 72(c) was adopted to implement the enabling legislation. Prior to this change in appellate procedure, if a case was reported to the Law Court, the report was considered a submission of the whole controversy, unless it contained restrictions as to the questions to be decided. Under our previous statutory structure this Court frowned upon interlocutory matters being sent to it, even upon report at the request of the parties, except at such stage of the case, or upon such stipulation, that a decision of the reported question would, in one alternative at least, dispose of the case itself. Mather v. Cunningham, 1910, 107 Me. 242, 78 A. 102. Under the new legislative directive as restricted by rule implementation, the Superior Court is limited in its report of cases involving questions of law purely interlocutory in nature, to such instances only as arise upon motion for such report of the party aggrieved by the interlocutory ruling. Field and McKusick, Maine Civil Practice, Commentary § 72.6. Rules of the Supreme Judicial Court, properly established and not repugnant to law, respecting the procedures governing appellate review, have the force of law and are binding upon the court, as well as upon the parties to an action. Cunningham v. Long, 1926, 125 Me. 494, 135 A. 198; Hutchins v. Hutchins, 1939, 136 Me. 513, 4 A.2d 679. We shall therefore limit our present review within the specific framework of the submission.

The single issue before us is whether the decree of the Justice below erroneously deprives the defendant of his constitutional privilege against self-incrimination when ordering him to answer the following questions:

1) State your full name, date of birth, and occupation.

2) What was your occupation on January 1, 1967?

3) Did you know Plaintiff's then wife Carolyn C. Collett while she was married to Plaintiff while you were married to Betsey Bither?

4) If the answer to Question 3 is yes, did you pay any expenses for food or lodging or both for Carolyn C. Collett in 1967?

12) Have you ever told anyone you were in love with Carolyn C. Collett?

14) On or about the time of the so-called Hospital Charity Ball at Houlton, Maine in 1967, did Plaintiff request you to stop seeing his wife Carolyn C. Collett?

17) Did you know or have reason to know that Plaintiff was becoming distressed emotionally as a result of your relationship with his wife Carolyn C. Collett?

18) Did you do anything to ease or eliminate this distress of Plaintiff at your relationship with his wife Carolyn C. Collett?

19) If your answer or Question 18, above, is yes, explain in detail what you did to ease or eliminate Plaintiff's emotional distress at your continuing your relationship with his wife Carolyn C. Collett?

The pertinent Maine constitutional provisions read as follows: Constitution of Maine, Art. 1, § 6. Rights of persons accused

'Section 6. In all criminal prosecutions, the accused shall have a right to be heard by himself and his counsel, or either, at his election;

To demand the nature and caused of the accusation, and have a copy thereof;

To be confronted by the witnesses against him;

To have compulsory process for obtaining witnesses in his favor;

To have a speedy, public and impartial trial, and, except in trials by martial law or impeachment, by a jury of the vicinity.

He shall not be compelled to furnish or give evidence against himself, nor be deprived of his life, liberty, property or privileges, but by judgment of his peers or the law of the land.'

'Section 6-A. No person shall be deprived of life, liberty or property without due process of law, nor be denied the equal protection of the laws, nor be denied the enjoyment of his civil rights or be discriminated against in the exercise thereof.' (Emphasis in each instance supplied.)

The federal constitutional provisions of the Fifth Amendment are of similar tenor:

'* * * nor shall (any person) be compelled in any criminal case to be a witness against...