Halladay v. Commissioner of Correction ( 2021 )

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JOSEPH HALLADAY v. COMMISSIONER
OF CORRECTION
(SC 20369)
Robinson, C. J., and McDonald, D’Auria, Kahn and Ecker, Js.
Syllabus
Pursuant to this court’s decision in State v. Curcio (191 Conn. 27), certain
interlocutory orders and rulings of a trial or habeas court may be appeal-
able when the order or ruling terminates a separate and distinct proceed-
ing or when the order or ruling so concludes the rights of the parties
that further proceedings cannot affect them.
The petitioner, who had been convicted, on a guilty plea, of murder and
tampering with physical evidence, sought a writ of habeas corpus, claim-
ing that his plea agreement was the result of the ineffective assistance
of trial counsel. The respondent, the Commissioner of Correction, subse-
quently filed a motion for the production of relevant materials from
the petitioner’s underlying criminal defense and investigative files. The
habeas court rejected the petitioner’s claim that those materials were
protected by the attorney-client privilege, granted the respondent’s
motion, and ordered the petitioner to produce from the criminal defense
file copies of any materials related to his ineffective assistance claim, as
well as a privilege log identifying any undisclosed materials the petitioner
contended were unrelated to that claim. The habeas court denied the
petitioner’s petition for certification to appeal, and the petitioner
appealed to the Appellate Court, which granted the respondent’s motion
to dismiss the appeal for lack of a final judgment. On the granting of
certification, the petitioner appealed to this court, claiming that the
Appellate Court improperly dismissed his appeal for lack of a final
judgment and claiming, alternatively, that this court should reach the
merits of his privilege claims pursuant to the statute (§ 52-265a) allowing
direct appeals from interlocutory orders in matters involving a substan-
tial public interest. Held:
1. The Appellate Court properly dismissed the petitioner’s appeal for lack
of subject matter jurisdiction, as the habeas court’s discovery order
was not an appealable final judgment under either prong of Curcio: an
interlocutory discovery order terminates a separate or distinct proceed-
ing under the first prong of Curcio only if the lower court has issued
a clear and unequivocal order that is sufficiently definite, specific, and
comprehensive concerning a discovery request served on a nonparty
for information that is not required to resolve the underlying issue in
the case, and, because the petitioner was a party to the habeas proceed-
ings, the discovery order did not terminate a separate and distinct pro-
ceeding concerning his property interest in his criminal defense file;
moreover, the second prong of Curcio was not satisfied because the
right that the petitioner sought to vindicate, namely, the right to confiden-
tiality in his criminal defense file, could still be affected by further
proceedings insofar as the habeas court would conduct, in response to
the privilege log that it ordered the petitioner to produce, an in camera
review of the petitioner’s individual claims of privilege as to specific
items within the file.
2. This court declined the petitioner’s request to reach the merits of his
privilege claims by treating his appeal as a direct appeal from an interloc-
utory order on certification by the Chief Justice pursuant to § 52-265a,
as the present case did not present a matter of substantial public interest
or urgency.
Argued February 17—officially released August 5, 2021*
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
New Haven, where the court, Hon. Jon C. Blue, judge
trial referee, granted the respondent’s motion for pro-
duction and ordered the petitioner to produce certain
materials; thereafter, the court, Hon. Jon C. Blue, judge
trial referee, denied the petitioner’s petition for certifi-
cation to appeal, and the petitioner appealed to the
Appellate Court, which granted the respondent’s
motion to dismiss the appeal, and the petitioner, on the
granting of certification, appealed to this court.
Affirmed.
Vishal K. Garg, for the appellant (petitioner).
Kathryn W. Bare, senior assistant state’s attorney,
with whom, on the brief, were Patrick J. Griffin, state’s
attorney, and Adrienne Russo, assistant state’s attor-
ney, for the appellee (respondent).
Christine Perra Rapillo, chief public defender,
Emily H. Wagner, assistant public defender, and Jenni-
fer Bourn, supervisory assistant public defender, filed
a brief for the Office of the Chief Public Defender as
amicus curiae.
Opinion
ROBINSON, C. J. The principal issue in this certified
appeal is whether a discovery order issued by a habeas
court that implicates the attorney-client privilege
between a petitioner and the attorneys who represented
him during the underlying criminal proceedings is an
appealable final judgment under State v. Curcio, 191
Conn. 27, 31, 463 A.2d 566 (1983). The petitioner, Joseph
Halladay, appeals, upon our grant of his petition for
certification,1 from the judgment of the Appellate Court,
which dismissed his appeal from the order of the habeas
court directing the petitioner to produce certain investi-
gative materials contained in the file of his criminal
defense attorneys. On appeal, the petitioner claims that
(1) the Appellate Court improperly dismissed his appeal
for lack of subject matter jurisdiction, and (2) the
habeas court improperly granted the motion for produc-
tion filed by the respondent, the Commissioner of Cor-
rection, over his claims of privilege. Because the habeas
court’s order does not constitute an appealable final
judgment, we cannot review whether the habeas court
properly rejected the petitioner’s claim that his attor-
neys’ case file was privileged. Accordingly, we affirm
the judgment of the Appellate Court.
The record reveals the following undisputed facts
and procedural history. On February 9, 2011, pursuant
to a plea agreement, the petitioner pleaded guilty to
the crimes of murder in violation of General Statutes
§ 53a-54a (a) and tampering with physical evidence in
violation of General Statutes § 53a-155 (a) (1). The plea
agreement provided that the petitioner would receive
a sentence in a range of twenty-seven to forty years’
imprisonment; the trial court sentenced him to forty
years’ imprisonment. Subsequently, on May 25, 2018,
the petitioner filed a revised amended petition for a
writ of habeas corpus, claiming, inter alia, that the plea
agreement was the result of the ineffective assistance
of the public defenders who had been assigned to repre-
sent him in the underlying criminal proceedings. Specif-
ically, the petitioner alleged that the assistance of
counsel was ineffective because of their failure, among
other things, to perform adequate factual investigation
and legal research, to adequately impeach or cross-
examine certain witnesses, to investigate and present
evidence on specific matters, to consult or present the
testimony of various experts and professionals, to pres-
ent the petitioner’s testimony, to adequately prepare a
defense, to present mitigating evidence during sentenc-
ing, and to preserve the petitioner’s appellate rights, as
well as numerous other failures regarding the plea nego-
tiations.
The respondent subsequently filed a motion for the
production of relevant materials from the petitioner’s
underlying criminal defense and investigative files.2 The
habeas court heard the respondent’s motion on Febru-
ary 22, 2019. In its order granting the respondent’s
motion, the habeas court stated: ‘‘Given the breadth
and generality of the allegations made in the revised
amended petition . . . it seems unlikely that any
investigative materials in . . . trial counsel’s files are
unrelated to those allegations, but, in the absence of
an in camera inspection of the files in question, this
issue cannot be definitively determined by the court.
In the event that the petitioner contends that certain
materials in the files in question are unrelated to his
claims, he is ordered to create a privilege log identifying
those materials. . . .
‘‘The motion for production is granted. The petitioner
is ordered to produce copies of any materials contained
within his underlying criminal defense investigative
files that relate to his claim that criminal defense coun-
sel rendered ineffective assistance . . . in connection
with their representation. The petitioner is additionally
ordered to produce a privilege log of undisclosed
materials.
‘‘Compliance is ordered by March 15, 2019. It is under-
stood that, if the petitioner chooses to file an amended
habeas petition narrowing his claims, the scope of mate-
rials deemed relevant to such amended claims may also
be narrowed.’’ (Citation omitted.)
On March 15, 2019, the petitioner filed both a motion
for reconsideration with the habeas court and an appeal
from the habeas court’s discovery order with the Appel-
late Court.3 The habeas court denied the motion for
reconsideration, and the Appellate Court subsequently
granted the respondent’s motion to dismiss the appeal
for lack of a final judgment. This certified appeal fol-
lowed. See footnote 1 of this opinion.
On appeal, the petitioner claims that (1) the Appellate
Court improperly dismissed the petitioner’s appeal for
lack of a final judgment, and (2) we should reach the
merits of his claims and conclude that the habeas
court’s order would have violated his attorney-client
privilege, as waiver does not commence until trial
begins. We address each claim in turn.
I
The petitioner claims, inter alia, that the habeas
court’s discovery order constituted an appealable final
judgment under State v. Curcio, supra, 191 Conn. 31,
because it (1) terminated a separate and distinct pro-
ceeding regarding his property interests in the case file,
and (2) concluded the petitioner’s right to maintain
the confidentiality of the case file so that no further
proceedings could affect that right.
We begin by setting forth the applicable standard of
review. ‘‘The lack of a final judgment implicates the
subject matter jurisdiction of an appellate court to hear
an appeal. A determination regarding . . . subject mat-
ter jurisdiction is a question of law [and, therefore] our
review [as to whether the Appellate Court had jurisdic-
tion] is plenary.’’ (Internal quotation marks omitted.)
Rockstone Capital, LLC v. Sanzo, 332 Conn. 306, 312–
13, 210 A.3d 554 (2019).
‘‘Because our jurisdiction over appeals . . . is pre-
scribed by statute, we must always determine the
threshold question of whether the appeal is taken from
a final judgment before considering the merits of the
claim.’’ State v. Curcio, supra, 191 Conn. 30. Under
General Statutes §§ 52-263 and 51-197a, the ‘‘statutory
right to appeal is limited to appeals by aggrieved parties
from final judgments.’’ Id. ‘‘In both criminal and civil
cases, however, we have determined certain interlocu-
tory orders and rulings of the Superior Court to be
final judgments for purposes of appeal. An otherwise
interlocutory order is appealable in two circumstances:
(1) [when] the order or action terminates a separate
and distinct proceeding, or (2) [when] the order or
action so concludes the rights of the parties that further
proceedings cannot affect them.’’ Id., 31. We address
each Curcio prong in turn.
A
We begin with the petitioner’s claim that the habeas
court’s order effectively terminated a separate and dis-
tinct legal proceeding for purposes of the first prong
of Curcio because the discovery dispute resolved a
property interest in his case file, which was separate
from the merits of the habeas petition. The petitioner
relies on Abreu v. Leone, 291 Conn. 332, 340–41, 968 A.2d
385 (2009), and Woodbury Knoll, LLC v. Shipman &
Goodwin, LLP, 305 Conn. 750, 755–56, 48 A.3d 16 (2012),
two cases in which this court held discovery orders to
be final judgments. In response, the respondent relies
on Redding Life Care, LLC v. Redding, 331 Conn. 711,
207 A.3d 493 (2019), and argues that the discovery order
is not a separate and distinct proceeding under Curcio
but, rather, a mere step along the road to the final
judgment in the habeas proceeding to which the peti-
tioner is a party, thus distinguishing this case from the
authorities relied on by the petitioner. We agree with
the respondent and conclude that the discovery order
did not terminate a separate and distinct legal pro-
ceeding.
In Abreu, the intervening plaintiff, the Department
of Children and Families (department), appealed from
the order of the trial court compelling it to disclose
information that would violate General Statutes § 17a-
28 (b), which prohibits the disclosure of records main-
tained by the department. See Abreu v. Leone, supra,291 Conn. 334–35. In determining that the challenged
order was an appealable final judgment, we focused on
the fact that the department was not a party to the
underlying action and, thus, lacked the statutory right
to appeal from the conclusion of that proceeding. See
id., 349–50. We also emphasized that the trial court
order at issue was unequivocal in its directives and
that there were no further proceedings concerning the
matter between the plaintiff and the defendant that
involved the department. See id., 345–47.
Subsequently, in Woodbury Knoll, LLC, a nonparty
law firm brought a writ of error from the trial court’s
order to produce materials that it claimed were pro-
tected by attorney-client privilege and the attorney
work product doctrine. See Woodbury Knoll, LLC v.
Shipman & Goodwin, LLP, supra, 305 Conn. 752. In
determining whether there was subject matter jurisdic-
tion, this court identified three guiding principles
emerging through its final judgment jurisprudence: (1)
‘‘the court’s focus in determining whether there is a
final judgment [under the first prong of Curcio] is on
the order immediately appealed, not [on] the underlying
action that prompted the discovery dispute’’; (2)
‘‘determining whether an otherwise nonappealable dis-
covery order may be appealed is a fact specific inquiry,
and the court should treat each appeal accordingly’’;
and (3) ‘‘although the appellate final judgment rule is
based partly on the policy against piecemeal appeals
and the conservation of judicial resources . . . there
[may be] a counterbalancing factor that militates
against requiring a party to be held in contempt in order
to bring an appeal from a discovery order.’’4 (Emphasis
omitted; internal quotation marks omitted.) Id., 760–61.
In applying these principles and holding that there was
an appealable final judgment in Woodbury Knoll, LLC,
we expressly articulated an exception to our final judg-
ment jurisprudence for nonparties to the underlying
matter.5 See id., 769.
Our recent decision in Redding Life Care, LLC v.
Redding, supra, 331 Conn. 711, articulates the status
of the Woodbury Knoll, LLC nonparty exception, as
narrowed by other cases: ‘‘[A]n interlocutory discovery
order [terminates a separate or distinct proceeding]
under the first prong of Curcio only if the trial court has
issued a clear and unequivocal order that is sufficiently
definite, specific, and comprehensive concerning a dis-
covery request served on a nonparty for information
that is not required to resolve the underlying issue.’’6
(Emphasis added.) Id., 736; see also McConnell v.
McConnell, 316 Conn. 504, 512–13, 113 A.3d 64 (2015);
Niro v. Niro, 314 Conn. 62, 72–73, 100 A.3d 801 (2014).
Because the petitioner is indeed a party to the habeas
proceedings, we conclude that the discovery order did
not terminate a separate and distinct proceeding and,
accordingly, is not an appealable final judgment under
the first prong of Curcio.7
B
An interlocutory order is appealable under the second
prong of Curcio ‘‘[when] the order or action so con-
cludes the rights of the parties that further proceedings
cannot affect them.’’ State v. Curcio, supra, 191 Conn.
31. The petitioner contends that the second prong of
Curcio is satisfied because the discovery order threat-
ens the preservation of his right to confidentiality in
his defense counsel’s case file. The petitioner claims
that the right was established in two ways, namely, (1)
by the habeas court’s decision entitling him to withdraw
any claims prior to disclosing the file, and (2) by the
Superior Court’s decision in Breton v. Commissioner
of Correction, 49 Conn. Supp. 592, 600–602, 899 A.2d
747 (2006), which provides that, when a party places
the contents of an attorney’s advice at issue by filing
a habeas petition claiming ineffective assistance of
counsel, that party impliedly waives the attorney-client
privilege but can reassert that privilege by withdrawing
the applicable portions of the habeas petition. In
response, the respondent contends that the discovery
order did not conclude the rights of the parties because
there very well could have been future proceedings
following the receipt of the ordered privilege log. See,
e.g., State v. Jamar D., 300 Conn. 764, 773, 18 A.3d
582 (2011) (defendant’s transfer from youthful offender
docket was not appealable final judgment under Curcio
because it was still subject to future proceeding and
not yet finalized). We conclude that there was no final
judgment under the second prong of Curcio.
‘‘The second prong of the Curcio test, on which the
[petitioner] relies in the present case, permits an appeal
if the decision so concludes the rights of the parties
that further proceedings cannot affect them. . . . That
prong focuses on the nature of the right involved. It
requires the parties seeking to appeal to establish that
the trial court’s order threatens the preservation of a
right already secured to them and that that right will be
irretrievably lost and the [parties] irreparably harmed
unless they may immediately appeal. . . . One must
make at least a colorable claim that some recognized
statutory or constitutional right is at risk. . . . In other
words, the [appellant] must do more than show that
the trial court’s decision threatens him with irreparable
harm. The [appellant] must show that that decision
threatens to abrogate a right that he or she then holds.
. . . The right itself must exist independently of the
order from which the appeal is taken.’’ (Citation omit-
ted; emphasis in original; internal quotation marks omit-
ted.) Blakely v. Danbury Hospital, 323 Conn. 741,
745–46, 150 A.3d 1109 (2016); accord Hartford Acci-
dent & Indemnity Co. v. Ace American Reinsurance
Co., 279 Conn. 220, 226–27, 901 A.2d 1164 (2006).
The key to appellate jurisdiction under the second
prong of Curcio is not so much that the right is already
secured to a party; indeed, what is at issue in an appeal
is the effect of the challenged order on the scope of
the claimed right at issue. Rather, the second prong of
Curcio boils down to whether, as a practical and policy
matter, not allowing an immediate appeal will create
irreparable harm insofar as allowing the litigation to
proceed before the trial court will—in and of itself—
function to deprive a party of that right. See, e.g.,
Blakely v. Danbury Hospital, supra, 323 Conn. 746(‘‘[t]he rationale for immediate appellate review is that
the essence of the protection of immunity from suit is
an entitlement not to stand trial or face the other bur-
dens of litigation’’ (internal quotation marks omitted));
Hartford Accident & Indemnity Co. v. Ace American
Reinsurance Co., supra, 279 Conn. 231 (‘‘even when an
order impinges on an existing right, if that right is sub-
ject to vindication after trial, the order is not appealable
under the second prong of Curcio’’). Paradigmatic
examples of such rights that require immediate vindica-
tion via an interlocutory appeal are double jeopardy
violations resulting in successive prosecutions; see, e.g.,
State v. Crawford, 257 Conn. 769, 777, 778 A.2d 947(2001), cert. denied, 534 U.S. 1138, 122 S. Ct. 1086, 151
L. Ed. 2d 985 (2002); collateral estoppel and res judicata;
see, e.g., Lighthouse Landings, Inc. v. Connecticut
Light & Power Co., 300 Conn. 325, 328 n.3, 15 A.3d
601 (2011); and various immunities from suit. See, e.g.,
Chadha v. Charlotte Hungerford Hospital, 272 Conn.
776, 787, 865 A.2d 1163 (2005) (absolute immunity for
statements made in judicial and quasi-judicial proceed-
ings); Shay v. Rossi, 253 Conn. 134, 166, 749 A.2d 1147(2000) (colorable claim to state’s sovereign immunity
is appealable final judgment because that ‘‘doctrine pro-
tects against suit as well as liability—in effect, against
having to litigate at all’’), overruled in part on other
grounds by Miller v. Egan, 265 Conn. 301, 828 A.2d 549(2003); see also Hartford Accident & Indemnity Co. v.
Ace American Reinsurance Co., supra, 233–34 (denial
of motion for prepleading security by unauthorized
insurer pursuant to General Statutes § 38a-27 (a) is
appealable under second prong of Curcio because,
‘‘once the trial has concluded, the court will be unable
to restore to the plaintiffs either their right to have the
defendants post security or their right to obtain a default
judgment against the defendants’’); cf. Blakely v. Dan-
bury Hospital, supra, 751–52 (This court held that the
defendant’s interlocutory appeal challenging the trial
court’s decision that a savings statute permitted the
plaintiff’s wrongful death action was not a final judg-
ment under the second prong of Curcio, even when the
limitations period was jurisdictional in nature, because
‘‘jurisdictional prerequisites to suit are [not] intended
to confer immunity from suit. If that were the case, an
interlocutory appeal would be permitted every time a
party challenged the satisfaction of any of the numerous
justiciability matters that we have deemed to be juris-
dictional in nature (standing, mootness, ripeness, politi-
cal question doctrine) . . . or any condition precedent
to suit in a statutorily created cause of action that simi-
larly has been deemed jurisdictional,’’ meaning that
‘‘appellate courts would be inundated with interlocu-
tory appeals, in contravention of our intention that the
Curcio exceptions to the final judgment rule be nar-
row.’’ (Citation omitted; internal quotation marks
omitted.)).
The issue presented in the present case falls squarely
into the realm of discovery orders in pending cases
that are not subject to interlocutory appeals under the
second prong of Curcio, even when they concern the
disclosure of materials that are potentially subject to
the attorney-client privilege or other protections. The
leading case on this point is Melia v. Hartford Fire Ins.
Co., 202 Conn. 252, 520 A.2d 605 (1987), in which this
court concluded that the trial court’s order to an insur-
ance company to disclose its claims file was not an
appealable final judgment, despite the insurance com-
pany’s assertion of the attorney-client privilege and
attorney work product doctrine. See id., 253, 259. The
court rejected the insurer’s argument that ‘‘the privacy
interests protected by the attorney-client privilege can-
not be completely restored once they have been invaded
by a disclosure order,’’ observing that, although ‘‘a
remand for a new trial resulting from an erroneous
order to disclose information protected by the privilege
cannot wholly undo the consequences of its violation
. . . the rights of the client in respect to use of privi-
leged material during further proceedings in the litiga-
tion can be adequately safeguarded.’’ Id., 257. The court
further observed that its ‘‘concern for the efficient oper-
ation of the judicial system, which is the practical con-
sideration behind the policy against piecemeal litigation
inherent in the final judgment rule . . . has induced
[it] to dismiss appeals [when] statutorily created rights
of privacy, no less significant than the right of confiden-
tiality for attorney-client communications, have been
at stake.’’ Id., 258. Thus, the court determined that ‘‘the
occasional violation of the attorney-client privilege
. . . is a lesser evil than that posed by the delay in the
progress of cases in the trial court likely to result from
interlocutory appeals of disclosure orders.’’ Id., 259; see
State v. Fielding, 296 Conn. 26, 39–40, 994 A.2d 96(2010) (order directing state to duplicate and provide
to defense counsel materials seized in connection with
defendant’s child pornography arrest was not appeal-
able by state under second prong of Curcio, despite
claim that, ‘‘once the materials at issue . . . are dis-
closed, the proverbial horse is out of the barn’’); Massa-
chusetts Mutual Life Ins. Co. v. Blumenthal, 281 Conn.
805, 807–809, 815, 917 A.2d 951 (2007) (denial of applica-
tion for temporary injunction to enforce confidentiality
protection for internal investigative reports provided
to attorney general pursuant to General Statutes (Rev.
to 2007) § 35-42 was not appealable under second prong
of Curcio).
Applying these principles to the present case, we
observe that the petitioner’s claimed right to maintain
the confidentiality of the case file is one that is not
akin to that narrow set of rights that require immediate
appellate vindication by interlocutory appeal to avert
their loss. This is particularly so given that the petitioner
filed his appeal prior to producing a privilege log to the
habeas court, which means that the appeal preceded
any resolution by the habeas court in camera of individ-
ual claims of privilege as to specific items. The habeas
court’s rulings on these individualized determinations
might well have been to the petitioner’s satisfaction,
obviating any perceived need for an interlocutory
appeal. Put differently, the timing of this interlocutory
appeal renders it a potentially piecemeal appeal even
as to the privilege issue, let alone the habeas action
as a whole.8 Accordingly, we conclude that it is not
appealable under the second prong of Curcio.
Because the discovery order at issue does not satisfy
either prong of Curcio, we conclude that it is not an
appealable final judgment. Accordingly, the Appellate
Court properly dismissed the petitioner’s appeal for
lack of subject matter jurisdiction.
II
Notwithstanding our conclusion that we lack subject
matter jurisdiction over this appeal, the petitioner nev-
ertheless asks us to reach the merits of his privilege
claims. The petitioner argues in his reply brief that the
Chief Justice should certify this issue for an expedited
appeal as a question of great public importance pursu-
ant to General Statutes § 52-265a.9
On the rare occasion, this court has treated a case
certified for appeal from a judgment of the Appellate
Court as a late petition to the Chief Justice under § 52-
265a,10 which does not require a final judgment for
appellate jurisdiction. See, e.g., State v. Komisarjevsky,
302 Conn. 162, 164–65, 25 A.3d 613 (2011) (raising issue
sua sponte); see also Kelsey v. Commissioner of Correc-
tion, 329 Conn. 711, 713 n.1, 189 A.3d 578 (2018) (‘‘[t]his
court has construed § 52-265a to allow the Chief Justice
to certify an appeal in matters of public importance
even if the order challenged is not a final judgment’’).
As we pointed out in Komisarjevsky, however, this
remedy is highly unusual. See State v. Komisarjevsky,
supra, 165–66 n.3. The Chief Justice granted the request
for § 52-265a relief in that case because it presented
urgent matters concerning a death penalty trial arising
from the defendant’s connection with a triple murder,
sexual assault, and arson. See id., 166–67 and n.3. In
Komisarjevsky, the defendant appealed from the trial
court’s granting of a motion to vacate the sealing order
filed by the intervenors, who were members of the
media, claiming that the vacating of that order would
violate his right to a fair trial. See id., 164–66. The
Appellate Court dismissed the appeal for lack of a final
judgment, and this court granted certification to con-
sider that issue. See id., 172. By the time the appeal
was argued before this court, the start of evidence was
scheduled for a date less than three months away. See
id., 166 n.3. Given the urgent nature of the matter, this
court chose ‘‘the most expeditious route properly avail-
able . . . to avoid potentially irreparable harm’’ and
elected to treat the appeal as a late § 52-265a petition,
which it then referred to the Chief Justice for certifica-
tion. See id., 165, 165–66 n.3. Because the present case
does not present a matter of similar public interest or
urgency, we decline to exercise our authority to treat
the petitioner’s appeal as a late petition for certification
to appeal under § 52-265a for consideration by the Chief
Justice. See Hall v. Gilbert & Bennett Mfg. Co., 241
Conn. 282, 301 n.17, 695 A.2d 1051 (1997) (whether to
treat appeal as late § 52-265a petition, ‘‘despite [the
appellant’s] failure to follow the procedures of § 52-
265a,’’ depends ‘‘in large part . . . [on] the importance
of the issues in the case’’); see also State v. Fielding,
supra, 296 Conn. 35 n.7 (declining to treat jurisdiction-
ally defective appeal as § 52-265a petition given Chief
Justice’s determination that appeal from order requiring
state to duplicate and provide defense counsel child
pornography evidence did not present question of sub-
stantial public interest because newly enacted statute
resolved issue for future cases, and trial court’s order
addressed state’s security concerns). Accordingly, we
do not reach the second issue of whether the trial court
properly rejected the petitioner’s claim of privilege in
his criminal defense file.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
* August 5, 2021, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
We granted the petitioner’s petition for certification to appeal, limited
to the following issues: (1) ‘‘Did the Appellate Court properly dismiss the
petitioner’s appeal for lack of a final judgment?’’ And (2) ‘‘If the answer to
the first question is ‘no,’ did the trial court properly reject the petitioner’s
claim of privilege in his attorneys’ case file?’’ Halladay v. Commissioner
of Correction, 333 Conn. 921, 921–22, 217 A.3d 634 (2019).
2
Prior to filing the motion for the production of the relevant materials,
the respondent filed a motion requesting all the materials in the criminal
defense file. The court, Newson, J., denied the motion, stating that it
exceeded the limited discovery provided for in habeas proceedings and that
there were other means by which to develop defenses to the petition. We
note that the habeas court, Hon. Jon C. Blue, judge trial referee, which
issued the ruling that is the subject of the present appeal, was not bound
by that earlier decision. See, e.g., Hudson Valley Bank v. Kissel, 303 Conn.
614, 624, 35 A.3d 260 (2012) (‘‘[a] judge is not bound to follow the decisions
of another judge made at an earlier stage of the proceedings, and if the
same point is again raised he has the same right to reconsider the question
as if he had himself made the original decision’’ (internal quotation
marks omitted)).
3
Following the habeas court’s order of production, the petitioner’s habeas
counsel contacted the Office of the Chief Public Defender (OCPD) to inform
it of the court’s order requiring production of the defense file. Counsel from
the OCPD informed the petitioner’s habeas counsel of its objection to the
disclosure of any work product contained in the file and took the position
that the petitioner could not consent to the disclosure of any such material
because it belonged to the petitioner’s criminal defense counsel and the
OCPD, not the petitioner.
4
Relying on these principles, the petitioner also argues that he should
not have to be subject to a contempt finding before being entitled to appellate
review of the discovery order. See, e.g., Barbato v. J. & M. Corp., 194 Conn.
245, 250, 478 A.2d 1020 (1984) (‘‘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.’’). We disagree. In Abreu and Woodbury Knoll, LLC, the challenged
orders directly conflicted with a statute or ethical duty, respectively, that
precluded the attorney from complying. In this case, no such obligation
binds the petitioner.
We acknowledge the petitioner’s claim that complying with the habeas
court’s order would have exposed him to possible legal action by the Office
of the Chief Public Defender (OCPD). In addition to this being merely
hypothetical, neither the petitioner nor the OCPD, which filed an amicus
curiae brief in support of the petitioner’s position, cites any legal theory
under which the OCPD could take legal action against the petitioner for
turning over the case file as ordered. Thus, we have no occasion to consider
any counterbalancing factor that might militate against requiring the parties
to be held in contempt, as in Abreu and Woodbury Knoll, LLC.
5
In so concluding, we emphasized that a ‘‘different rule for nonparties
would not undermine the rules governing the discovery process between
parties in any manner.’’ (Emphasis added.) Woodbury Knoll, LLC v. Ship-
man & Goodwin, LLP, supra, 305 Conn. 771.
6
Redding Life Care, LLC, concerned a tax appeal between the plaintiff
property owner and the defendant town. See Redding Life Care, LLC v.
Redding, supra, 331 Conn. 714–15. The town filed a motion to depose the
plaintiff in error, who had completed appraisals on the property in dispute
in connection with the tax appeal. See id., 715. The appeal arose from the
trial court’s denial of the plaintiff in error’s motion seeking a protective
order to avoid the deposition. Id.7
Because the petitioner is a party to the habeas proceedings, we need
not consider whether the discovery order in the present case is a clear and
unequivocal order that is sufficiently definite, specific, and comprehensive;
all elements of the standard are required to satisfy the first prong of Curcio.
See Redding Life Care, LLC v. Redding, supra, 331 Conn. 738.
8
In arguing that Melia v. Hartford Fire Ins. Co., supra, 202 Conn. 252, is
not dispositive, the petitioner contends that (1) his interests should be
given more weight than concerns about judicial economy because of the
relationship between the attorney-client privilege and his constitutional right
to counsel, and (2) judicial efficiency concerns are not as poignant in the
habeas context because ‘‘discovery disputes involving attorney-client privi-
lege are almost nonexistent in habeas corpus cases.’’ The respondent con-
ceded the second point at oral argument before this court, and, indeed, this
court has, subsequent to its decision in Melia, rejected the proposition
that allowing interlocutory appeals of discovery orders would open the
floodgates. See Woodbury Knoll, LLC v. Shipman & Goodwin, LLP, supra,
305 Conn. 767–68 (‘‘Simply put, any concern over a flood of discovery order
appeals is both misinformed and speculative. Indeed, we need look no
further than the fact that, in the three years since Abreu was decided, no
flood of appeals from discovery orders has occurred.’’). Although these
pragmatic considerations are well taken, disclosure orders such as the one
at issue in the present case do not fit within the narrow exception provided
by the second prong of Curcio, given our repeated rejections of ‘‘the horse
has left the barn’’ arguments to establish a right that requires immediate
vindication by interlocutory appeal, lest it be lost. See, e.g., State v. Fielding,
supra, 296 Conn. 39.
9
The petitioner also argues in his reply brief that we should invoke our
supervisory authority over the administration of justice to consider the
merits of his claims. We decline the defendant’s invitation given the extraor-
dinary nature of that remedy, which nevertheless depends on the existence
of subject matter jurisdiction in the first instance. See State v. Reid, 277
Conn. 764, 777–78, 894 A.2d 963 (2006).
10
The Chief Justice may waive the ‘‘failure to follow the normal certifica-
tion procedure’’ including a delay in filing, and consider the merits of an
untimely petition for certification of a public interest appeal under § 52-
265a. Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282, 300, 695 A.2d
1051 (1997); see id., 300–301; State v. Ayala, 222 Conn. 331, 342, 610 A.2d
1162 (1992).