The Supreme Court of Connecticut refused to usurp the Chief Justice’s statutory authority to permit a direct, interlocutory appeal to the Supreme Court under Conn. Gen. Stat. § 52-265a, holding that the Chief Justice’s determination of whether the action “involves a matter of substantial public interest and in which delay may work substantial injustice” is not reviewable on appeal. See State v. Kemah, 289 Conn. 411, 423, n.13 (2008).  

Like most appellate systems, Connecticut permits appeals only from final judgments. But there are exceptions to the “final judgment rule,” found both in the common law, see State v. Curcio, 191 Conn. 27, 31 (1983) (immediate appeal allowed “(1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them”), and in the statutes. See, e.g., Conn. Gen. Stat. §§ 31-118 (injunctions involving labor disputes), 49-35c (mechanic’s liens), 51-164x (sealing of court documents), 52-278l (prejudgment remedies), and 52-325c (lis pendens). Another exception, Conn. Gen. Stat. § 52-265a, permits parties immediately to appeal to the Supreme Court when the Chief Justice determines that the issues involved are of “substantial public interest” and that “delay may work a substantial injustice.” Conn. Gen. Stat. § 52-265a(b). The statute also provides that, upon making such a determination, the Chief Justice shall “call a special session of the Supreme Court for the purpose of an immediate hearing upon the appeal.” Conn. Gen. Stat. § 52-265a(c).  

In Kemah, in which the defendant was charged with sexual assault, the trial court ordered the victim’s mental health records to be disclosed to the defendant because the victim had previously agreed to release those records to the State to further a criminal investigation. See 289 Conn. at 422. The State appealed under § 52-265a. Id. at 414, n.2. The Connecticut Criminal Defense Lawyers Association, as amicus curiae, argued that the Chief Justice had improperly granted the State’s interlocutory appeal because the issue was “not of substantial public interest.” Id. at 423 n.13. The Court gave that argument short shrift, noting only that “the amicus has not pointed us to any authority that would permit us to overrule a decision vested exclusively by statute in the Chief Justice.” Id. at 423 n.13. (On the merits, the Court reversed the trial court, holding that a victim’s agreement to disclose mental health records for the sole purpose of a criminal investigation does not operate as a general waiver of the statutorily protected confidentiality of those records under Conn. Gen. Stat. §§ 52-146d and 52-156e.)  

The case adds to an emerging line of cases in which the Court has allowed parties to use the “substantial public interest” exception in Conn. Gen. Stat. § 52-265a to obtain immediate appellate review of orders requiring the disclosure of confidential documents. Indeed, while pre-trial discovery rulings are often treated as the quintessential example of interlocutory, non-appealable orders, the Supreme Court has permitted several immediate appeals of discovery rulings involving the disclosure of documents claimed to be privileged. See, e.g., Babcock v. Bridgeport Hosp., 251 Conn. 790, 817 (1999) (granting appeal pursuant to Conn. Gen. Stat. § 52-265a, but upholding a discovery order requiring a hospital to turn over documents that allegedly fell within statutory privileges); Metropolitan Life Ins. Co. v. Aetna Cas. & Sur. Co., 249 Conn. 36, 50-51 (1999) (granting appeal pursuant to Conn. Gen. Stat. § 52-265a, and reversing discovery order requiring the disclosure of documents claimed to be protected by the attorney-client privilege). Kemah reflects the Supreme Court’s recognition of the need to keep a watchful eye on orders requiring the disclosure of documents claimed to be privileged because, once the information is disclosed, any confidentiality is irretrievably lost.