Lieberman v. Reliable Refuse Co., Inc., 13601

• Decision Date: 22 August 1989
• Docket Number: No. 13601,13601
• Citation: 212 Conn. 661,563 A.2d 1013
• Parties: , 58 USLW 2162, 1989-2 Trade Cases P 68,714 Joseph I. LIEBERMAN, Attorney General v. RELIABLE REFUSE COMPANY, INC.
• Court: Connecticut Supreme Court

Page 1013

563 A.2d 1013

212 Conn. 661, 58 USLW 2162, 1989-2

Trade Cases P 68,714

Joseph I. LIEBERMAN, Attorney General v. RELIABLE REFUSE COMPANY, INC.

No. 13601.

Supreme Court of Connecticut.

Argued June 8, 1989.

Decided Aug. 22, 1989.

Steven M. Rutstein, Asst. Atty. Gen., with whom were Phillip Rosario and Robert M. Langer, Asst. Attys. Gen., and, on the brief, Clarine Nardi Riddle, Acting Atty. Gen., for appellant (Atty. Gen.).

Jacob D. Zeldes, with whom were Shelley R. Sadin and, on the brief, David P. Atkins, Bridgeport, for appellee (respondent).

Before PETERS, C.J., and SHEA, CALLAHAN, GLASS and COVELLO, JJ.

GLASS, Associate Justice.

The issue in this case is whether a corporation under investigation for antitrust violations may invoke the privilege against self-incrimination of General Statutes § 52-199 ¹ to avoid compliance with interrogatories and a subpoena duces tecum issued by the attorney general. The trial court ruled that § 52-199 created a privilege against self-incrimination for corporations and that General Statutes § 35-42(d) ² specifically incorporated that privilege into the Connecticut Anti-Trust Act. We find error.

I

The Connecticut Anti-Trust Act, General Statutes § 35-24 et seq., bestows upon the attorney general broad powers in connection with the enforcement of antitrust laws. General Statutes § 35-32. ³ The act provides that the attorney general "shall investigate suspected violations and institute proceedings, for any violation of the provisions of" the act. General Statutes § 35-32(a). In conducting his investigation, the attorney general may serve "upon any person, by subpoena duces tecum, a demand requiring such person to submit to him documentary material relevant to the scope of the alleged violation." General Statutes § 35-42(a). ⁴ The attorney general may also issue subpoenas ad testificandum, notices of deposition and written interrogatories upon any person "as to any matters relevant to the scope of the alleged violations." General Statutes § 35-42(e) and (h). In the event that any person duly served with a subpoena or interrogatory fails to comply therewith, the attorney general may apply to the trial court for an order requiring compliance. General Statutes § 35-42(f).

General Statutes § 52-197 et seq. governs discovery in civil actions. ⁵ The legislature enacted the provisions critical to this case, §§ 52-198 and 52-199, as part of one act in 1889; Public Acts 1889, c. XXII, §§ 3, 4; see 1 E. Stephenson, Connecticut Civil Procedure § 138(f); and the pertinent language has not undergone significant revision since then. Section 52-198 presently provides: "If a corporation is party to an action, the opposite party may examine the president, treasurer, secretary, clerk or any director or other officer thereof in the same manner as if he were a party to the suit." Section 52-199 provides: "(a) In any hearing or trial, a party interrogated shall not be obliged to answer a question or produce a document the answering or producing of which would tend to incriminate him, or to disclose his title to any property if the title is not material to the hearing or trial. (b) The right to refuse to answer a question, produce a document or disclose a title may be claimed by the party interrogated or by counsel on his behalf." Section 35-42(d) of the antitrust statute provides that no demand for documentary material requires the submission of material "the contents of which would be privileged."

The respondent, Reliable Refuse Company, Inc. (Reliable), is engaged in the business of refuse hauling. On March 25, 1987, during an investigation of alleged antitrust violations in Connecticut's refuse hauling industry, the attorney general served interrogatories and a subpoena duces tecum on Reliable. On July 11, 1987, Reliable's counsel informed the attorney general that it would not respond. On August 27, 1987, the attorney general commenced this action pursuant to § 35-42(f) by filing an application in the trial court for an order requiring Reliable to comply with the interrogatories and subpoena duces tecum. Reliable replied with an answer and special defenses, asserting as its principal defense the statutory privilege against self-incrimination contained in § 52-199. On July 13, 1988, the trial court ruled that § 52-199 provided no "blanket" privilege against self-incrimination, and ordered Reliable to comply with the attorney general's demands "subject to protection afforded Reliable by §§ 52-199 and 35-42(d), if any, as to individual questions asked or documents requested." Thereafter, Reliable complied with the order of the trial court by interposing its claimed privilege as to each interrogatory and request for production.

On October 4, 1988, the attorney general renewed his application, arguing that § 52-199 did not create a privilege against self-incrimination for corporations, and that the absence of a pending civil action precluded the application of § 52-199. For the purposes of the application, the attorney general conceded that Reliable's answers to the interrogatories or production of the subpoenaed documents "may ... tend to incriminate it." On December 8, 1988, the trial court ruled "that section 52-199 created a privilege against self-incrimination in favor of corporations and section 35-42(d) specifically incorporated that privilege into the Connecticut Anti-Trust Act." The court also found that the hearing on the attorney general's action to compel Reliable to comply with its discovery demands was itself a "hearing" to which the privilege applied. Accordingly, the trial court denied the attorney general's application. The attorney general appealed from this decision to the Appellate Court, and we transferred the appeal to ourselves pursuant to Practice Book § 4023.

II

On appeal, the attorney general claims that the trial court erred in ruling that § 52-199 applies to corporations, arguing that, despite its use of the word "party," the statute merely incorporates the common law rule making the privilege against self-incrimination available only to natural persons. Reliable contends, however, that the plain language of § 52-199 makes its privilege against self-incrimination available to any "party," including corporations. We agree with the attorney general that § 52-199 does not grant a corporation a privilege against self-incrimination. ⁶

We first note that Reliable has not raised any claim that it has a federal or state constitutional privilege against self-incrimination. It is well established that the fifth amendment privilege against self-incrimination is "limited to its historic function of protecting only the natural individual from compulsory incrimination through his own testimony or personal records." United States v. White, 322 U.S. 694, 701, 64 S.Ct. 1248, 1252, 88 L.Ed. 1542 (1944); Braswell v. United States, 487 U.S. 99, 108 S.Ct. 2284, 2287, 101 L.Ed.2d 98 (1988); Bellis v. United States, 417 U.S. 85, 88, 94 S.Ct. 2179, 2183, 40 L.Ed.2d 678 (1974); Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771 (1911); see also Hale v. Henkel, 201 U.S. 43, 74-75, 26 S.Ct. 370, 378-379, 50 L.Ed. 652 (1906); State v. Biller, 190 Conn. 594, 600, 462 A.2d 987 (1983) (corporation has no fifth amendment privilege). Moreover, the common law privilege, embodied in the phrase "nemo tenetur seipsum accusare," meaning "no one is bound to accuse himself"; Black's Law Dictionary; was coextensive with the constitutional privilege, and did not apply to "collective groups." 8 J. Wigmore, Evidence (McNaughton Rev.Ed.1961) § 2259a, p. 354. That the privilege extended to only natural persons is evident from our observation in State v. Ford, 109 Conn. 490, 496, 146 A. 828 (1929), that "[t]he history of the development of the privilege discloses that the object sought to be obtained thereby was the prevention of the employment of legal process to extract from the person's own lips an admission of his guilt which would then take the place of other evidence." (Emphasis added.)

Because there is no constitutional privilege against self-incrimination asserted in this case, our task is limited to determining whether § 52-199 grants such a privilege to corporations. "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." General Statutes § 1-1(a). "When the words of a statute are plain and unambiguous, we need look no further for interpretive guidance because we assume that the words themselves express the intention of the legislature. 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)." Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986). We interpret statutory terms by reading them in context and not in isolation. See Greenwich Trust Co. v. Tyson, 129 Conn. 211, 222, 27 A.2d 166 (1942).

Although "[c]ourts are bound to accept the legislative definition of terms in a statute"; Toll Gate Farms, Inc. v. Milk Regulation Board, 148 Conn. 341, 347, 170 A.2d 883 (1961); there is no definition of the word "party" or the term "party interrogated" in either the civil discovery sections or the general definitional sections of the general statutes. Further, analyzing the word "party" by its "commonly approved usage" is inappropriate. Ordinarily, the word "party" has a technical legal meaning, referring "to those by or against whom a legal suit is brought ... the party plaintiff or defendant, whether composed of one or more individuals and whether natural or legal persons." Black's Law Dictionary, citing Golatte v. Mathews, 394 F.Supp. 1203, 1207 (M.D.Ala.1975); see Hardware Mutual Casualty Co. v....