You asked whether witnesses who are subpoenaed to appear at legislative committee hearings may refuse to answer questions. Our office is not authorized to give legal opinions and this report should not be considered one.

SUMMARY

State law authorizes the legislature to compel the attendance and testimony of witnesses at committee hearings and makes it a crime for a witness who is subpoenaed to refuse to answer any questions pertinent to the issue the committee is considering. State law specifies that the witness may not refuse to testify to any fact because his testimony may tend to disgrace him or otherwise render him infamous.

A witness has a constitutional and statutory right to refuse to answer questions that tend to incriminate him. A witness might also be able to refuse to answer questions based on other state and federal constitutional guarantees and protections such as freedom of speech, association, and religion, equal protection, and due process. But it is not clear whether, or to what extent, these other constitutional provisions give witnesses the right to refuse to answer questions at legislative hearings.

Also, it appears that a witness may refuse to answer questions that are not pertinent to the issues the committee is considering since the statute making it a crime to refuse to answer specifies that the questions must be pertinent to the issues the committee is looking at.

It also appears that a witness may rely on various statutory or common law privileges that prohibit people from revealing confidential information they discover by virtue of a special relationship with another person. These include such relationships as attorney-client, physician-patient, and psychologist-patient. Most of the statutes that establish these privileges explicitly prohibit the disclosure of confidential information at legislative proceedings. Five of the privileges (those involving spouses, social workers, teachers, marital and family therapists, and professional counselors), do not explicitly mention legislative proceedings. Thus, it is not as clear whether these five privileges apply to legislative proceedings.

The law also makes certain information discovered in the course of government investigations or other official functions confidential except under certain limited circumstances. Examples include: (1) the identity of an informer in a criminal investigation, (2) reports of the labor commissioner, (3) drug test results, (4) information disclosed in the divorce mediation program, (5) disease control clinic records, (6) medical peer review proceedings and medical studies, and (7) erased criminal history record information. (We have not attempted to specify all statutes that require the confidentiality of certain information. ) Presumably, witnesses may refuse to answer questions at a legislative hearing that would reveal such information.

In addition witnesses subpoenaed to appear before Connecticut legislative committees might be able to make the following challenges recognized by federal courts in connection with Congressional hearings: (1) the legislature lacked the authority to investigate the subject matter of the hearing; (2) the committee lacked the jurisdiction or authority to deal with the subject matter of the hearing; (3) the questions were not pertinent to the hearing's subject matter; and (4) the committee failed to follow established procedures for issuing the subpoena and conducting the hearing. Presumably, witnesses summoned to appear before a Connecticut legislative committee could raise these same challenges. Since Connecticut courts have not addressed these issues it is unclear whether, or to what extent such challenges would be upheld. But, it is interesting to note that Mason's Manual of Legislative Procedure, 1989 edition, which is incorporated by reference in the House and the Senate rules, mentions these same issues when describing how legislative business should be conducted.

Another possible basis to refuse to answer questions might be based on separation of powers arguments if the subpoenaed witness was part of the executive or judicial branch. Connecticut's constitution specifies that the powers of government are divided into three distinct departments-legislative, executive, and judicial-and that each department has its own authority and power. This "separation of powers" provision has been used in various disputes between the branches of government. The courts have held that one branch may not significantly interfere with the operations of another branch. But they have also held that the authority of branches often overlap. It seems possible that a witness who is employed by the executive or judicial branch of government might rely on this separation of powers provision to refuse to answer questions. Whether or not such a challenge would be upheld would ultimately be decided by our courts and would depend on the precise circumstances involved.

There are cases on the federal level interpreting the federal constitution as it relates to the federal government that address this principle. One such example involves executive privilege. Presidents have asserted this privilege to challenge the authority of Congress to subpoena certain documents and records or compel the testimony of agency heads or others who advise the president. The courts have acknowledged this privilege under certain, limited circumstances. It is possible that executive branch officials and employees might make a challenge similar to executive privilege in Connecticut based on the separation of powers provision.

Finally, our courts have recognized the "mental process rule. Under this rule, judges and other officials who adjudicate disputes are ordinarily not required to answer questions about the mental process they used to reach a decision. Presumably, adjudicators from the executive or judicial branch could try to use this rule to refuse to answer questions from legislators at public hearings. It is unclear whether our courts would apply this rule to legislative hearings. A related "deliberative process privilege" has been recognized by federal courts and at least one Superior Court judge. It applies to confidential deliberations of policy makers and relates to internal opinions, recommendations, and advice. It is unclear whether Connecticut courts will ultimately embrace this privilege or apply it to legislative hearings.

We have tried to identify every type of legal basis upon which a person could refuse to answer questions at a committee hearing. But because no Connecticut court has addressed this precise issue it is not possible to provide a definitive answer. Thus, there may be legal theories that witnesses could rely on that we have not mentioned in this report.

LEGISLATIVE SUBPOENAS AND PENALTIES FOR REFUSING TO TESTIFY

The law gives the president of the Senate, the speaker of the House of Representatives, or the chairman of any committee the power to compel the attendance and testimony of witnesses by subpoena.

Anyone summoned as a witness by the authority of either house of the General Assembly or the Legislative Program Review and Investigations Committee to testify about any matter under inquiry before either house, or any committee, who refuses to be sworn or to answer any question pertinent to the question under inquiry is subject to a fine of $ 100 to $ 1,000, or a prison term of up to one year (CGS § 2-46 (a)).

The law gives people who are subpoenaed to appear and testify before a legislative committee the right to review a copy of the transcript of their testimony and a reasonable amount of time to question its accuracy prior to the public release of the transcript or its permanent filing.

The law specifies that no witness is privileged to refuse to testify to any fact or to produce any paper that he is examined about by either house of the General Assembly or any committee upon the ground that his testimony may tend to disgrace him or otherwise render him infamous (CGS § 2-47).

The law authorizes the president of the Senate or the speaker of the House to certify to the state's attorney for the Judicial District of Hartford that a subpoenaed witness failed to testify at a committee hearing and direct him to prosecute the person who refused (CGS § 2-48).

The law also explicitly authorizes either house of the General Assembly to determine by majority vote that a person is guilty of contempt of the General Assembly. It may do so only after a hearing before an appropriate committee appointed by the presiding officer at which the person is entitled to give evidence and be represented by counsel. That house may refer the matter to the chief state's attorney. Contempt of the General Assembly is punishable by a fine of up to $ 100,

or up to six months in prison, or both (CGS § 2-1c). Presumably, the legislature could also use this law to deal with subpoenaed witnesses who refuse to answer questions at a hearing.

PRIVILEGE AGAINST SELF INCRIMINATION

The U. S. Constitution provides that "no person ... shall be compelled in any criminal case to be a witness against himself .... " This Fifth Amendment guarantee applies to the states through the Fourteenth Amendment to the U. S. Constitution (Malloy v. Hogan, 84 S. Ct. 1489 (1964)). Article First, Section 8 of the Constitution of Connecticut states in part: "No person shall be compelled to give evidence against himself ..."

Although the language in the federal and state constitutions are not identical, the scope of the rights and protections they provide is identical (State v. Asheruran, 193 Conn. 695 (1984), cert den. 105 S. Ct. 1749 (1985)). State statutes, as well as the common law, also provide this protection (CGS §§ 52-100(a); 51-35(b); Tait's Handbook of Connecticut Evidence, § 5. 10)

The privilege against self-incrimination not only protects people against being forced to answer questions in a criminal prosecution but also allows them to refuse to answer questions in any other proceeding, civil or criminal, formal or informal, when the answers might incriminate them in future criminal proceedings (Lefkowitz v. Turley, 94 S. Ct. 316 (1973); Olin Corporation v. Castells, 180 Conn. 49 (1980)). The protection's availability does not depend on the type of proceeding but upon the nature of the statement or admission and the exposure that it invites (Estelle v. Smith, 101 S. Ct. 1866 (1981)).

Thus, the protection applies to all types of proceedings, including questioning before a legislative body or commissioner (Watkins v. United States, 77 S. Ct. 1173; Doyle v. Hofstander, 257 NY 244; 81 Am Jur 2d Witnesses § 88)

The standard for determining whether a claim of privilege against self incrimination is covered by the constitutional and statutory provisions is whether the witness is confronted by a substantial and real as opposed to trifling or imaginary, risk of incrimination (United States v. Apfelbaum, 100 S. Ct. 948 (1980); Rosado v. Bridgeport Roman Catholic Diocesan Corporation, 1995 WL 348181). Thus, for the privilege to apply the answer to any questions posed must have the tendency to incriminate (State v. Cecarelli, 32 Conn. App. 811 (1993)). The right to assert the

privilege does not depend upon the likelihood of prosecution but upon the possibility of prosecution (State v. Williams, 200 Conn. 310 (1986); Hoffman v. United States, 71 S. Ct. 814 (1957)).

OTHER CONSTITUTIONAL RIGHTS AND GUARANTEES

Other federal and state constitutional rights and guarantees, such as freedom of speech, association and religion, equal protection, and due process also might be relied on by a witness to justify his refusal to answer certain questions depending on the circumstance. The U. S. Supreme Court has held that constitutional rights and protections apply to witnesses called to testify before a legislative committee (Watkins v. United States, 354 U. S. 178, 200 (1957)). Some legal commentators have suggested that witnesses might be able to legally refuse to answer questions that focus on a witness's religious or political views or opinions.

The House and Senate rules incorporate Mason's Manual of Legislative Procedure, 1989 edition. Mason's rules recognize the duty of legislative investigations to observe the constitutional provisions relating to the enjoyment of life, liberty, and property (§ 797).

Unfortunately, there are no Connecticut cases that address this issue and only a few on the federal level. Thus, we cannot specify under what circumstances witnesses might be able to rely on these other constitutional rights and protections as a reason to refuse to answer questions.

STATUTORY AND COMMON LAW PRIVILEGES THAT DO OR MAY APPLY TO LEGISLATIVE PROCEEDINGS

Other statutory and common law privileges might apply to witnesses subpoenaed to appear before legislative committees depending on the circumstances.

Following is a summary of the statutory and common law privileges that witnesses might rely on. For each we have indicated the person who can assert the privilege and its legal source, and the type of communications covered.

The first 11 privileges listed explicitly apply to legislative proceedings. Thus, there appears to be little doubt that they would be available to a witness who was subpoenaed to appear before a legislative committee. The next four privileges involving attorneys, spouses, social workers, and teachers do not explicitly refer to legislative proceedings. Thus it is not clear whether a court would decide that they apply to committee hearings. The last two privileges, involving marital and family therapists, and professional counselors also do not explicitly refer to legislative proceedings. In addition, one of the explicit exceptions for each of these two privileges provides that the information may be disclosed when mandated by other provisions of the General Statutes. This might make it more problematic as to whether these two privileges apply in light of CGS § 2-46, which compels subpoenaed witnesses to answer questions asked by legislators at a public hearing.

1. Clergymen. Confidential communications made to clergy in their professional capacity (CGS § 52-146b).

2. Psychologists. All oral and written communications and records relating to the diagnosis and treatment of a person between such person and the psychologist or between the psychologist and the patient's family members (CGS § 52-146c).

3. Physicians. Communications made by, or information obtained from a patient or his conservator or guardian about any actual or supposed physical or mental disease or disorder or information obtained by examining the patient (CGS § 52-146o).

4. Psychiatrists. All oral and written communications and records relating to diagnosis or treatment of a patient's mental condition between the psychiatrist and patient, psychiatrist and patient's family, or between them and a person participating under the supervision of a psychiatrist in accomplishing the objectives of diagnosis and treatment, including a mental health facility's records (CGS § 52-146d; also covered by CGS § 52-146o, above).

5. Battered women's or sexual assault counselors. Information transmitted between a victim and counselor in the course of that relationship and in confidence, by a means which, so far as the victim is aware, does not disclose the information to a third person other than anyone who is present to further the interests of the victim in the consultation or any person to whom disclosure is reasonably necessary for the transmission of the information or for the accomplishment of the purposes for which the counselor is consulted (CGS § 52-146k).

6. Interpreters. Communications privileged under any statute or common law made by a person with the assistance of an interpreter cannot be disclosed by the interpreter (CGS § 52-146l).

7. Operators of Special Telecommunications for the Hearing Impaired. All communications made using this technology are privileged (CGS § 52-146m).

8. Employee assistance counselors for Judicial Department employees. Oral and written communications transmitted in confidence between employee and EAP counselor in the course of their relationship in the program and records (CGS § 52-146n).

9. Government attorneys and their client. Oral and written communications transmitted in confidence between a public official or employee of a public agency acting in the performance of his duties or within the scope of employment and a government attorney relating to legal advice sought by the agency or person from that attorney, and all records the government attorney prepares to render such advice (CGS § 52-146r).

10. State mediators appointed by the Labor Commissioner. Any confidential communication made in the course of mediation duties (CGS § 31-96).

11. Agents of the State Board of Labor Relations. Confidential communications made in the course of his duties (CGS § 31-103).

12. Spouses Confidential communications between spouses (State v. Littlejohn 199 Conn. 631, (1986)).

13. Attorney-client. Confidential communications with an attorney in connection with legal advise. (Conn. Practice Book-rule 1. 6; Doyle v. Reeves, 112 Conn. 521, (1931); Shew v. FOI 44 Conn. App. 611, (1997)).

14. Social workers. Oral and written communications and records relating to the evaluation and treatment of a person between the person or a family member and a social worker or someone acting under the social worker's supervision (CGS § 52-146q).

15. Elementary and high school teachers, administrators, and nurses. Communications made privately and in confidence by a student, when information concerns the student's alcohol or drug abuse or any alcoholic or drug problem (CGS § 10-154a).

16. Marital and family therapists. Oral and written communications and records relating to the diagnosis and treatment of a person between the person or a family member and the therapist (CGS § 52-146p).

17. Professional counselors. Oral and written communications and records relating to diagnosis and treatment between the person or family members and a counselor (CGS § 52-146e).

CONFIDENTIAL INFORMATION

There are numerous laws that require that certain information obtained by government officials in the course of their duties be kept confidential. Presumably, government officials subject to such laws might try to rely on them to justify not answering certain questions posed by legislators at public hearings.

Following are a few examples of such laws and the type of information that they make confidential. None of these laws contains any explicit exemption for legislative proceedings.

1. The government may refuse to disclose the identity of a police informer unless it brings about the denial of a fair trial. (State. v. Harris 159 Conn 521, 527, 528, cert. denial 91 S. Ct. 578 (1970)).

2. Any information the Office of Victim Services receives in connection with an application for crime victim compensation that is confidential under the general statutes remain confidential while in the custody of the Office of Victim Services or a Victim Compensation Commission (CGS § 54-204).

3. Records, notices, and reports to the labor commissioner and any investigation made by him or his agents in connection with workplace accidents are privileged and confidential and not open for examination or inspection (CGS § 31-40).

4. All information provided to the Office of Bail Commission is for the sole purpose of determining and recommending conditions of release and is otherwise confidential and not subject to subpoena or other court process to be used in any other proceeding or for any other purpose (CGS § 54-63d). There are certain exceptions such as information concerning people who are convicted of a crime but the exceptions do not specify legislative proceedings.

5. Investigations and enforcement actions of the State Ethics Commission are confidential until a probable cause finding or until the respondent requests it (CGS § 1-82).

6. Examinations, investigative reports, and other information obtained by or behalf of the state banking commission are confidential (CGS § 36a-21). But the law allows the commissioner to disclose such information for any appropriate supervisory, governmental, law enforcement, or other public purpose. The exception appears broad enough to cover legislative committee hearings but appears to give the commissioner the discretion to decide.

7. Factual statements made to the insurance commissioner regarding the termination of an insurance society's licensed fraternal agent are privileged (CGS § 38a-800(c)).

REFUSALS BASED ON LACK OF AUTHORITY, JURISDICTION, OR PROPER PROCEEDURES

Witnesses who are subpoenaed to testify before legislative committees may have other grounds to refuse to answer questions. While technically not privileges or involving confidential information, such as the attorney-client privilege, they are defenses that might be raised in contempt proceedings brought to punish witnesses for refusing to answer. These defense relate to (1) the authority of the legislative branch to investigate the issue in question, (2) the committee's jurisdiction and authority to conduct the investigation, (3) the relevance of the questions asked, and (4) the failure of the committee to follow applicable procedural rules during the investigation.

Authority of Legislature to Investigate the Issue in Question

Federal case law relating to the authority of Congressional investigations indicates that a witness might be able to refuse to answer questions on the ground that the legislature lacked the authority to investigate the issue in question because the hearing was not related to the exercise of a legislative power. In determining whether particular legislative activities fall within the legitimate legislative sphere, courts look to see whether the activities were done in relation to business before the legislature (Kilbourne v. Thompson 103 U. S. 168, 204 (1880)). More specifically, courts have focused on whether the legislative activities in question are "an integral part of the deliberative and communicative processes by which members participate in committee and house proceedings with respect to other matters which the constitution places within the jurisdiction of either house" (Gravel v. United States, 408 U. S. 606, 625 (1972)).

Courts have held that the power to investigate and to do so through subpoena power falls within the sphere of legitimate legislature activities. For example, the U. S. Supreme Court held that the power to investigate is inherent in the power to make laws because a "legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions that the legislation is intended to affect or change" (McGrain v. Daugherty, 273 U. S. 135, 175 (1927); United States v. Rumely, 345 U. S. 41, 46 (1952)).

Although federal courts have given the legislative branch great latitude in conducting investigations they have occasionally held that Congress was attempting to engage in activities unrelated to its law-making function. The U. S. Supreme Court held that any exercise by a legislature of the investigative power must be related to a legitimate legislative task or be in pursuit of a valid legislative purpose (Barenblatt v. United States, 360 U. S. 109, 111, reh'g denied, 361 U. S. 854 (1959); Watkins v. U. S. , 354 U. S. 178 at 187).

In the leading case of Kilbourn v. Thompson, the Court limited Congress's authority by requiring that it be "in aid of the legislative function" (103 U. S. 168 (1880)). In that case it appeared that the purpose of the hearing was to determine whether an offense had been committed in violation of existing law. And another court decided that a

committee was primarily concerned with determining the guilt or innocence of the witness and was therefore acting without a valid purpose (United States v. Icardi, 140 F. Supp. 383 (D. D. C. ) 1956)).

It appears that a legislature's authority to investigate encompasses investigations of the other two branches of government. Federal courts have held that congressional investigative power reaches the executive branch (McGrain v. Daugherty, 273 U. S. 135 (1927); 1 Syracuse J. Legis. and Policy 1, 4 (1995)).

Mason's Legislative Manual, 1989 edition, echoes the court holdings about the limits of legislative power (as previously noted, House and Senate Rules incorporate this edition of Mason's). For example, section 797 states that the legislature has no power to investigate (1) the private affairs of a citizen except to accomplish some authorized end, (2) to lay a foundation for the institution of criminal proceedings, (3) to intentionally harm people for ulterior purposes, or (4) for political purposes not

connected with any of the matters upon which the legislature should act. And section 801 states that witnesses cannot be punished for contempt unless the matters inquired into are within the legislature's jurisdiction.

Committee Lacked Jurisdiction to Investigate

Another possible basis for a witness to refuse to answer questions is that the committee lacked jurisdiction or authority to conduct the investigation under which the contempt proceeding arose. For example, in United States v. Kamin, the court held that a subcommittee had no jurisdiction to investigate the subject matter of its hearing (136 F. Supp. 791 D. Mass. 1956). In United States v. Rumely, the Supreme Court held that an inquiry regarding private contracts and sales was outside the jurisdiction of the committee authorized to investigate "lobbying activities" (345 US 41 (1953).

Questions Not Pertinent

A third challenge that a witness can raise in a proceeding to punish him for refusing to answer questions at a legislature hearing is that the questions he refused to answer were not pertinent to the inquiry (United States v Ovman, 207 Frd 148 (3d Cir. 1953); Deutch v. United States, 367 U. S. 456 (1961); United States v. Kamin, 136 F. Supp. 791 (D. Mass. 1956)). The Supreme Court held that Congress has the burden to explain to the witness that a question is pertinent and that despite the witness' objection, the committee demands an answer (Watkins v. United States; 354 U. S. 178 (1957)). The Supreme Court also held that if challenged, congress must demonstrate the pertinence of a question in a contempt proceeding (Russell v. United States, 369 U. S. 749 (1962)).

It appears that such a challenge would be successful in Connecticut because the statute making it a crime to refuse to answer question at a legislative hearing specifies that the questions must be pertinent to the issue the committee is investigating.

Failure to Follow Applicable Rules

Another possible defense in a contempt proceeding is that the committee did not follow the applicable procedural rules during the investigation (Yellin v. United States, 374 U. S. 109 (1963)). But some courts have ruled that a committee's technical violations of procedural rules will not disturb a contempt conviction if the violation did not affect the witness' refusal to comply with the subpoena (United States v. Kamin, 136 F. Supp. 791 (DC Mass. 1956)).

SEPARATION OF POWERS PROVISON

The separation of powers provision of article second of the Connecticut constitution provides in relevant part. "The powers of government shall be divided into three district departments, and each of them confided to a separate majesty, to wit, those which are legislative, to one; those which are executive, to another, and those which are judicial to another. " The primary purpose of this provision is to prevent the commingling of different powers of government in the same hands. The constitution achieves this purpose by prescribing limitations and duties for each branch that are essential to its independence and performance of assigned powers. The separation of powers provision serves a dual function: it limits the exercise of power within each branch, yet ensures the independent exercise of that power (State v Kinchen 243 Conn. 690 (1998)).

In deciding whether one branch's actions violate this constitutional provision, courts will consider if the action constitutes: (1) an assumption of power that lies exclusively under another branch's control or (2) a significant interference with the orderly conduct of the essential functions of another branch (Massameno v. Statewide Grievance Committee, 234 Conn. 539, 551-553 (1995)). They have recognized, however, that governmental powers can overlap. Thus, they have concluded that the separation of powers provision cannot always be rigidly applied to render mutually exclusive the roles of each branch of government (Massameno, at 576 and 577).

It seems possible that executive or judicial branch officials and employees who are subpoenaed to testify before a legislative committee might be able to use this provision to justify their refusal to answer certain questions. Depending on the circumstances, they might argue that the questions amount to a significant interference with the orderly conduct of an essential function of their branch of government. It also appears conceivable that the executive branch could advance a theory similar to the executive privilege theory advanced by some United States presidents in an attempt to prevent congressional committees from getting records or compelling the testimony of high-ranking officials who advise the president.

Executive privilege is rooted in the principle that the president must be able to protect the confidentiality of certain types of documents and communications in order to carry out his constitutional responsibly to enforce the laws (1 Syracuse J. Legis and Policy 1, 16 (1995); 66 N. Y. U. L Rev. 563, 615 (1991)). The U. S. Supreme Court recognized the constitutional foundation of this privilege to the extent it relates to the effective discharge of the President's powers (United States v. Nixon, 418 U. S. 683 (1974)). Generally, the few cases that have considered the issue have assumed that the privilege applies to congressional subpoenas. But courts have also found that the privilege is not unqualified and can be overcome by a compelling need by the legislature.

As we have noted before, since no Connecticut court has ruled on such an issue, it is impossible to say whether, or under what circumstances, such a legal theory might justify a government official's refusal to answer questions posed by legislators at a committee hearing.

MENTAL PROCESS RULE

Another possible justification for a refusal to answer questions at a legislative hearing might exist if the witness were an adjudicator in the executive or judicial branch and the questions involved the thought process he used to reach a decision.

No Connecticut case has decided whether, or to what extent, such a rule justifies a witness' refusal to answer questions at a legislative hearing. Thus, it is not clear whether or what extent a court would approve such a justification.

But our courts have held that an adjudicating official may not ordinarily be subject to inquiry concerning the mental process used in reaching a decision (Adriani v. Commission on Human Rights and Opportunities, 228 Conn. 545 (1994); Martone v. Lesnicle, 215 Conn. 49, (1990); Henderson v. Dept. Of Motor Vehicles, 202 Conn. 453 (1987), Breiner v. State Dental Commission et al, 57 Conn. App. 7000 (2000)).

The Connecticut Supreme Courts has stated that "Just as a judge cannot be subjected to such a scrutiny (of cross-examination), so the integrity of the administrative process must be equally protected " (Welch v. Zoning Board of Appeals, 158 Conn. 208, 215 (1969)). The federal courts follow this principle (see United States v. Morgan, 61 S. Ct. 999 (1941)).

In a recent case, a dentist, Mark Breiner, was the subject of a disciplinary proceeding arising out of his view about the removal of mercury fillings. He sought an injunction to stop proceedings that were being conducted by the state dental commission. He claimed the proceedings would be futile because the two dentist members of the three-member administrative panel that was to hear the complaint were unduly biased against him. Specifically, Breiner claimed that they were biased because, as members of the American Dental Association (ADA), they would consider themselves bound to follow an ADA advisory opinion that opposed the removal of otherwise healthy fillings simply because they contained mercury. Breiner was accused of advocating the removal of, and of removing, otherwise healthy fillings simply because they contained mercury. The ADA guidelines called such a dental practice improper and unethical.

The trial court refused to allow Breiner to ask one of the dentists scheduled to serve on the disciplinary panel how he applied the ADA advisory opinion in his own dental practice. The appellate court upheld the refusal stating that the question raised the adjudicator's personal views and his application of those views to his private practice. This, according to the court, was an attempt to make an impermissible inquiry into the personal mental process of the adjudicator (Breiner at 1119).

In Welch v. Zoning Board of Appeals of Town of North Branford, (158 Conn. 208, 257 and 795 (1969)), the Supreme Court upheld the refusal to cross examine members of a municipal zoning board concerning their decision to deny a certificate approving the location of a filling station. Citing the U. S. Supreme Court decision of United States v. Morgan, the court indicated that just as a judge cannot be subjected to such questioning, so the integrity of the administrative process must be equally respected by refusing to allow the questioning of zoning board members.

Some courts in other jurisdictions have concluded that depending on the circumstances, the mental process rule can be overridden. Factors that such courts consider when deciding whether information that falls within the scope of the rule should none-the-less be disclosed include:

1. the relevance of the evidence;

2. the availability of other evidence,

3. seriousness of the proceedings and the issues involved,

4. the role of government in the proceeding, and

5. the possibility of future negative impact on government adjudications (United States v. Hooker Chemicals and Plastics Corporation 123 F. R. D. 3,12 (1988)).

Some of the courts have also held that the rule does not apply when an allegation has been made and there is a showing of illegal or unlawful action, misconduct, bias, or bad faith on the decision maker's part (Singer Sewing Machine Company v. National Labor Relations Board, 329 Fed 200 (4^th Cir. , 1964)).

It is not clear whether Connecticut courts would limit the mental process rule in the same way as these other courts have.

DELIBERATIVE PROCESS PRIVILEGE

The "deliberative process privilege" has been recognized by the United States Supreme Court as necessary to protect the integrity of the administrative process (United States v. Morgan, 313 U. S. 409 (1941)). Under this privilege, the judiciary is foreclosed from investigating the methods by which a decision is reached and the contributing influences of an administrative decision (Zinker v. Doty, 637 F. Supp. 138 (D. C. Conn) (1986)). At least one Connecticut Superior Court judge has recognized it, although the facts of the case appear to fall under the mental process rule. (Barbarino v. Wallingford Inland Wetlands and Watercourses Commission, 1995 WL 591468).

The privilege, which is very similar to the mental process rule, has been fleshed out in other jurisdictions. It applies to confidential deliberations of law or policy making and relates to opinions, recommendations, or advice (In Matter of Granite Purchasers In State Capital-Grand Jury Subpoena Number 86-1, 821 Fed 946 (1987)).

It protects the decision making process of the executive branch in order to safeguard the quality and integrity of governmental decisions (A. Michael's Piano, Inc. v. F. T. C. , 18 Fed 138, 147 (2d Cir. 1994)). It also protects the full and frank exchange of ideas by government officials (United States v. Hooker Chemicals and Plastics Corporation, et al. , 123 FRD 3, (1988)).

The privilege prevents a decision maker from being asked what opinions he and his associates expressed during the decision-making process and shields the exchange of ideas that occur as part of the process (United States v. Hooker Chemicals at 37).

Other jurisdictions have determined that the privilege is not absolute. It may be overcome by a showing that the need for disclosure outweighs the need for confidentiality (In Re Franklin Nat'l Bank Securities Litigation, 478 F. Supp. 577, 583 (EDNY, 1979)).

It is unclear whether Connecticut appellate courts will adopt this privilege or whether, and to what extent, they would apply it to legislative hearings.

GC: ro