dissenting.
I respectfully dissent. I do not think that the constitutional issue is properly before the Court in the first place, but if it is, then I think that it has been dealt with by the majority without proper analysis and upon unsound constitutional principles. My joining in the grant of certiorari was for wholly different reasons. I felt that important issues of procedure and practice were presented which had been dealt with insufficiently by the courts below.
I.
This case involves an interlocutory appeal pursuant to T.C.A. § 27-305. The single question certified by the trial court for review is:
“Does ‘evidence’ as used in Tennessee Code Annotated, Section 36-227(1) afford the Defendant in a bastardy proceeding a privilege to refuse to answer interrogatories propounded by the Plaintiff?”
The trial court held that any privilege accorded to the defendant in such a proceeding did not extend to pre-trial discovery procedures, particularly the answering of interrogatories under Rule 33, T.R.C.P. He reserved ruling as to whether the answers to such interrogatories could be used as evidence at trial on the merits.
The Court of Appeals reversed, holding that the privilege extended to pre-trial interrogatories. It found a conflict to exist between Rule 33 and the provisions of the statute. In my opinion, however, when the Rules of Civil Procedure are examined, there is no conflict as found by the Court of Appeals. By their very terms, the Rules do not permit discovery of matters which are otherwise privileged.
The case originated in the Juvenile Court of Shelby County, Tennessee, when appellant, as assignee of Donna Rogers, instituted a proceeding seeking to have appellee declared to be the father of a child born out of wedlock and to require that he provide proper support and maintenance therefor. Upon motion of appellee, the cause was transferred to the circuit court pursuant to -the provisions of T.C.A. § 36-227(1).
The statute provides that upon demand by a defendant the cause shall be transferred to the circuit court for jury trial “on the issue of paternity.”
This procedure was followed in the present case, but after the cause had reached the circuit court, counsel for appellant propounded thirty-four interrogatories to appellee, embracing many issues other than that of paternity. These included the financial status of appellee and his relations with women other than the alleged mother of the child.
Since the only issue then triable before the circuit court was that of paternity, interrogatories on other issues were irrelevant. If the issue of paternity should be resolved against appellee, there are statutory provisions for the taking of proof without a jury regarding the finances of the father and for a suitable order of paternity, support and education. See T.C.A. §§ 36-227(3), -299 et seq.
Accordingly, the only interrogatories which were pertinent to the issue than pending for trial in the circuit court were those dealing with the issue of paternity. As to these, the defendant invoked the statutory privilege contained in T.C.A. § 36-227(1) as follows:
“Both the mother and the alleged father shall be competent to testify but the alleged father shall not be compelled to give evidence.”
The trial court held that the privilege pertained only to the trial of the case and not to pre-trial, interrogatories. The Court of Appeals held otherwise, finding no substantial basis for making a distinction between the terra “evidence” in general and that of trial “testimony” in particular. It traced in some detail the antecedents of the present statutes dealing with paternity and concluded that the privilege accorded to a defendant in such cases extended to pre-trial discovery.
As stated previously, the Court of Appeals concluded that there was a discrepancy or conflict between the statute and the *69Rules of Civil Procedure. In my opinion no such conflict exists. Rule 33, under which the interrogatories in the present case were propounded, provides:
“Interrogatories may relate to any matters which can be inquired into under Rule 26 and the answers may be used to the same extent as provided in Rule 26 for the use of the deposition of a party.”
At all times pertinent to this case, Rule 26.02 provided:
“Unless otherwise ordered by the court as provided in Rule 30, the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action . . . .” (Emphasis added).
It is therefore apparent that if an eviden-tiary privilege is accorded to a party or witness by statute, the constitution, or the common law, matters which are privileged may not be inquired into under Rules 26 and 33.
The Court of Appeals correctly concluded that the Rules of Civil Procedure are applicable, insofar as pertinent, to cases which have been transferred to the circuit court for trial. See Rule 1, T.R.C.P. They do not operate, however, to abrogate evidentiary privileges, nor were they so intended.
Both in the Court of Appeals and in this Court the parties have discussed a number of issues other than the single question certified by the trial court under T.C.A. § 27-305. This Court has undertaken to make clear, for obvious reasons, that it will not permit departure on appeal from specific issues certified for interlocutory review. Tennessee Department of Mental Health & Mental Retardation v. Hughes, 531 S.W.2d 299 (Tenn.1975).
It is my opinion that T.C.A. § 36-227(1) does accord to a putative father a privilege in cases brought pursuant to Chapter 2, Title 36. In the case of Wilkerson v. Benson, 542 S.W.2d 811 (Tenn.1976), the Court referred to it as an “exemption.” In that case the Court did not reach the question certified here. The holding was confined to a decision that a putative father does not have a constitutional privilege from testifying by virtue of the Fifth Amendment to the United States Constitution (protecting against self-incrimination).
It is true that in the case of Patrick v. Dickson, 526 S.W.2d 449, 451 (Tenn.1975), the Court, referring to paternity cases, said:
“As a minimum, they are quasi-criminal in character.”
For that and other reasons, it was determined that the Rules of Civil Procedure were not compatible with proceedings conducted in a juvenile court. It is also true that in earlier cases, the Court had referred to bastardy suits as being offenses against the state. See Crawford v. State, 66 Tenn. 41 (1872).
Nevertheless, in the later case of Wilkerson v. Benson, 542 S.W.2d 811, 813 (Tenn. 1976), the Court noted that it is not now a criminal offense in Tennessee for one to father an illegitimate child. The paternity statutes were held to be basically civil in nature, designed to provide for support, education and maintenance of the child and recoupment of expenses incurred by the mother. Likewise, in earlier cases, the Court had recognized that such actions are not exclusively criminal but have aspects which are both civil and criminal. See Blankenship v. State, 63 Tenn. 383 (1874).
As pointed out by the Court of Appeals, at one time in proceedings such as this neither party was permitted to give oral testimony, and an affidavit of the mother was conclusive evidence of paternity by the man charged. See Goddard v. State, 10 Tenn. 96 (1825). Under statutes enacted in 1822, the affidavit of the mother was no longer conclusive, and- the alleged father was given the right to file countervailing affidavits and to adduce proof, although he was not required to do so.
The present statutes provide that both the mother and the alleged father are competent to give evidence, but they accord a privilege from doing so to the father. In my opinion, this privilege would be undermined if the father were required to respond to pre-trial interrogatories. Such interrogatories, pursuant to Rule 33 T.R.C.P., *70once answered, may be used at trial for any purpose for which the pre-trial deposition of a party could be used.1 As previously stated, Rule 33 does not contemplate that a party be required to respond to matters which are privileged, even though they might otherwise be relevant and pertinent.
Insofar as I am aware, this is the general rule. No authority has been cited for the decision of the trial judge that a party having a privilege from testifying may nevertheless be subjected to pre-trial discovery concerning the matter privileged. As stated in 23 Am. Jr. 2d, Depositions and Discovery § 169 (1965):
“The rules of evidence which would govern privileged matters at trial govern such matters when they arise during discovery, and wherever a claim of privilege would be proper at the actual trial of the case, it is proper at the discovery stage. Thus, a party may not be compelled to make disclosure of privileged or confidential communications concerning which he cannot be compelled to testify in court. This is expressly recognized in the Federal Rules of Civil Procedure and state counterparts thereto, which provide for discovery regarding any matter ‘not privileged’ which is relevant to the subject matter involved in the pending action.”
II.
It is my opinion that the Court of Appeals correctly answered the single question which was certified to it and that its judgment should be affirmed. Since the majority, however, have concluded that it is appropriate to deal with a constitutional issue not decided by the trial court or certified here, I respectfully dissent from its holding that the statute in question is invalid.
The primary contention of the petitioner throughout the litigation has been that the statute as written applies only to trial proceedings and not to pre-trial discovery. This was the only question presented to the Court of Appeals. Indeed,. in that court, appellant asserted the constitutionality of the statute as construed by the trial judge.
After the Court of Appeals held that the statutory privilege accorded to an accused defendant in proceedings such as this extended to pre-trial interrogatories, appellant, for the first time in this Court, asserted that if the statute were so construed, it would be unconstitutional, as constituting invidious discrimination based upon gender and therefore violative of the equal protection clause of the Fourteenth Amendment.
In my opinion, this argument is untenable. If the statutes in question created rights of action against both men and women and accorded a privilege only to men, such a contention would be plausible. As drawn, however, the statutes pertain only to suits against men accused of being the fathers of illegitimate children. Regardless of the miracles of modern science, within the purview of the statutes under consideration paternity of an illegitimate child can only be accomplished by one of the male sex. The statutes do not purport to impose any liability upon females.
Implicitly, the majority opinion holds that a party to a civil action has a constitutional right to the testimony of the other party. This, in my opinion, is both a novel and an unsound proposition.
At common law, as a general rule neither party to a civil action was even permitted to testify. The common-law disability came into the law of this state when the first constitution was adopted in 1796. That same constitution contained a “law of the land,” or due process, clause, and there is no suggestion in any of the cases cited by the majority or in any other cases of which I am .cognizant that there was any conflict between the due process clause and the disability of parties to testify in civil actions. Certainly there was never any hint that the due process clause required that one party make his testimony available to the other party.
*71This disability, except as modified by statute in particular cases (see § I, supra, with reference to bastardy proceedings), continued until 1868 when Tennessee adopted a statute making the rules of evidence in the state courts uniform with those in federal courts. This allowed parties to testify, but the General Assembly on several occasions in the late nineteenth century modified the original statute so as to grant privileges to spouses and to accord privileges to the executors or guardians of deceased or incompetent persons against the use of statements by or transactions with the deceased or incompetent, unless the privilege was waived by the holder thereof. See generally T.C.A. §§ 24-103 et seq.2 As late as 1949 it was held in Hubbard v. Haynes, 189 Tenn. 335, 225 S.W.2d 252 (1949), that statutes authorizing the taking of depositions of witnesses prior to trial for use as evidence did not authorize the deposing of a party litigant.
The legislature has, of course, created a number of privileges against testifying and, on the other hand, in some instances has mandated that the testimony of witnesses be offered whether the parties desire to produce them or not. See e. g., T.C.A. § 32-406 (dealing with will contests).
Both by the constitution and by statute, defendants in criminal cases are accorded a privilege from giving evidence against themselves. Paternity cases were once considered criminal offenses in this state, as previously pointed out. While they are no longer so, they are still considered to be “quasi-criminal” and have many attributes of criminal proceedings, including the arrest and incarceration of a putative father under certain circumstances. See T.C.A. §§ 36-224(5), 225, 231. Once a duty of support is established in such cases, criminal responsibility can flow from its breach. T.C.A. § 39-202. In at least one state, the court trying a bastardy suit must see that the accused has counsel. Ill.Ann.Stat. ch. 106¾, § 55 (Smith-Hurd Supp. 1979).
Even in the permissive society of today, such actions carry with them a stigma as well as financial liability. Both the constitution and statutes require that before an accused in a criminal case may be convicted, it must be upon competent evidence offered from sources other than the defendant, and he is given a privilege against incriminating himself.
The statutory provision involved here is part of a quasi-criminal, statutory cause of action. It accords a similar privilege to one accused of conduct which bears social stigma and disgrace or disrepute. For the Court to hold that the General Assembly is without power to confer upon a person accused of that conduct a privilege of not giving evidence against himself is, in my opinion, most extraordinary. That body created the right of action and expressed concern not only that illegitimate children be supported but that accused defendants not be made the victim of improper accusations. All that the General Assembly has done is to provide that the person making the charges prove them other than by testimony of the accused and to accord such accused a privilege against giving evidence if he so desires.
' To hold that this offends due process or is in any way at odds with the social policy underlying the statutes, is, in my opinion, a non-sequitur. The majority states that the statutes
“are designed to require that the father provide for the support and education of the child, its funeral expenses, the expenses of the mother’s confinement and recovery.” (Emphasis added).
This is certainly true, but only after paternity has been established in accordance with the directives of the legislature. At the stage of the case which we are considering, the accused has denied guilt, and the cause has been transferred to the circuit *72court for trial of the very issue of whether he is or is not the father. The majority convicts him without trial and deprives him of a privilege which the General Assembly has seen fit to accord as a matter of public policy.
The legislature has further provided that the trial court may exclude the general public from the courtroom where such proceedings are being held, again indicating its concern with improper publicity and with the stigma and disgrace' that may be associated with charges against the accused. T.C.A. § 36-227. Once paternity has been established, of course, the statutes provide abundant remedies for the award of support to the child, reimbursement of expenses to the mother and discovery of financial resources of the father.
Statutory provisions on filiation vary among the different states. Tennessee, however, is not the only state according an evidentiary privilege to an accused in cases such as this. A similar New York statute provides:
“The mother or the respondent shall be competent to testify but the respondent shall not be compelled to testify.” N.Y. Fam. Ct. Act, § 531 (1975); see also (Supp. 1979).
Cases construing the New York statute have held that the mother is subject to pre-trial examination without showing special circumstances, see Maureen E. O’H. v. Nicholas C., 65 A.D.2d 491, 411 N.Y.S.2d 658 (1978), while at the same time holding that the statute creates a privilege which exempts the father not only from testifying at trial but from giving pre-trial discovery. Doe v. Roe, 40 Misc.2d 148,242 N.Y.S.2d 742 (1963).
In the Maureen E. O’H. case, supra, the court said:
“Finally, we do not believe that the lack of reciprocity in discovery rights, arising out of the respondent’s statutory privilege against being compelled to testify [citing statute] renders pretrial examination of the petitioner inappropriate.” 411 N.Y.S.2d at 660.
The Tennessee statute is almost identical to that of New York. It reflects the same public policy and in my opinion should be construed the same way. Whether the privilege accorded to the accused defendant is of any real value to him or not, from a tactical standpoint, may be debatable. Its wisdom is not a matter for decision by this Court. In my opinion, however, that the General Assembly has the authority to create such a privilege and that it is reasonably related to the subject matter are clear, and there is neither invidious class discrimination nor any other constitutional infirmity which I can perceive.
I would affirm the judgment of the Court of Appeals although for reasons different from those expressed in its opinion.
COOPER, J., concurs in this opinion.
. Under former Rule 26.04(2) (now Rule 32.01(2», at trial the deposition of a party “may be used by an adverse party for any purpose.”
. An unfortunate interpretation of these statutes occurred in the case of Jackson v. Jackson, 186 Tenn. 337, 210 S.W.2d 332 (1947), when the Court held that spouses could not give testimony against each other in divorce cases regarding acts of cruelty or other misconduct between them. This decision was rectified by statute. See 1949 Tenn. Pub. Acts, ch. 55. For commentary see 2 Vand.L.Rev. 130 (1948).