Federalism & Actions for Violation of the Connecticut Constitution

November 9, 2009

By: David K. Jaffe

Recent Historical and Legal Evolution of State Constitutional Claims

In addressing a plaintiff's state constitutional claims against defendant police officers, a critical issue to discuss is that of federalism, as well as the recognized vital importance of dual sovereignty as a structural component of our federal system. [1] As early as a quarter century ago, Justice Rehnquist, writing for the majority in Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980), explained that in our system of federalism, state constitutions may be a source of "individual liberties more expansive than those conferred by the federal Constitution." Id. at 81. Even before Pruneyard, states had been urged to examine their own state constitutions for greater protections than were available under the federal Constitution. In his classic 1977 Harvard Law Review article, Justice Brennan wrote: [2]

"[T]he point I want to stress here is that state courts cannot rest when they have afforded their citizens the full protections of the federal Constitution. State constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the Supreme Court's interpretation of federal law. The legal revolution which has brought federal law to the fore must not be allowed to inhibit the independent protective force of state law -- for without it, the full realization of our liberties cannot be guaranteed." [3]

Thus, in State v. Dukes, 209 Conn. 98 (1988), Justice Healey noted: "We have turned to our own constitution, when appropriate, to afford our citizens broader protection of certain personal rights than that afforded by similar or even identical provisions of the federal constitution." Dukes, supra, at 112. In emphasizing that the Constitution has historically been seen as a fluid "instrument of progress," Justice Healey elaborated: "Although in interpreting the Connecticut constitution we have agreed with and followed the federal handling of consonant provisions of the federal constitution, this court has never considered itself bound to adopt the federal interpretation in interpreting the Connecticut constitution. Our system of federalism requires no less. But of even weightier concern is the authority of our state constitution, the fundamental charter of our state, and it is this court's duty to interpret and enforce our constitution." Id. at 114-16.

Somewhat more recently, in Fair Cadillac-Oldsmobile Isuzu P'tship v. Bailey, 229 Conn. 312 (1994), Justice Berdon pronounced: "It is beyond dispute that we are not bound by federal precedents in interpreting our own state constitutional provisions. 'Federal decisional law is not a lid on the protections guaranteed under our state constitutions.' Doe v. Maher, 40 Conn. Supp. 394, 419 (1986). As we stated in State v. Geisler, 222 Conn. 672, 684 (1992), 'federal constitutional and statutory law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection. ...' (Internal quotation marks omitted.) Id, at 316-17. [4]

Support and Need for a Direct Constitutional Cause of Action.

It is against this backdrop of the rapidly evolving notions of federalism and proactivism in enforcing uniquely state, as opposed to federal, constitutional rights, that in 1998, the Connecticut Supreme Court, in Binette v. Sabo, 244 Conn. 23 (1998), recognized a direct civil cause of action to remedy alleged state Constitutional violations.

Justice Borden, in Kelley Property Development, Inc. v. Town of Lebanon, 226 Conn. 314 (1993), in dissent, comments on precisely the central point raised by Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001): "I see no reason, contrary to the position of the majority opinion, why we would be required to follow the post- Bivens retreat from its original principles, simply because that has been the course that the United States Supreme Court subsequently followed. This case is our first opportunity to consider the issue, and I do not see why our initial analysis has to begin where the United States Supreme Court's analysis has ended." Id, at 346

Although, it is true that a number of lower Connecticut courts have expressed a certain hesitancy in upholding a claim brought under the Article I, § 7, they typically do so only because no Connecticut appellate court has "paved the way" for them, by expressly recognizing such a cause of action under this provision. [5]

On the other hand, one prescient Federal District Court judge has decided to buck this trend, while providing the following trenchant analysis in so doing:

Currently, no appellate courts in Connecticut have recognized Section 8 as providing a basis for recovering monetary damages. See, e.g., Kelley Property v. Lebanon, 226 Conn. 314 (1993) (finding no cause of action for money damages under section 8 where there is a reasonably adequate statutory remedy). However, the Connecticut Supreme Court has established a cause of action for monetary damages under sections 7 and 9 of the First Article to the state constitution. Binette v. Sabo, 244 Conn. 23 (1998). In that case, the court held that 'whether to recognize a cause of action for alleged violations of other state constitutional provisions in the future must be determined on a case-by-case basis.' 244 Conn., at 48. The Court is not prepared to conclude that the Connecticut Supreme Court would not allow a cause of action for monetary damages under Section 8. Therefore, the defendants' motion to dismiss Doe's claims under Section 8 of Article 1 of the Connecticut State Constitution is denied, without prejudice to renew if the pertinent case law develops to the contrary in the state appellate courts.

Doe v. City of Hartford, 2004 U.S. Dist. LEXIS 8545 (D. Conn., May 13, 2004; Hall, J.).

It must be emphasized that in Binette, it was duly noted that the Bivens Court had "also observed that Congress had not provided another remedy, equally effective ... nor had it prohibited an award of damages." [6] Binette also cited to McCarthy v. Madigan, 503 U.S. 140, 151 (1992) ("we have recognized that a Bivens remedy does not lie ... where Congress has provided an equally effective alternative remedy and declared it to be a substitute for recovery under the Constitution"). [7] Id. at 38.

[1]In regard thereto, see Robert Satter and S. Labelle, Litigation Under the Connecticut Constitution - Development of a Sound Jurisprudence, 15 Conn. L. Rev. 76 (1982); Robert Deichert, Honoring the Social Compact: Arguing for a State Duty of Protection Under the Connecticut Constitution, 33 Conn. L. Rev. 1069 (Spring, 2001).

[2]As described by former Chief Justice Ellen A. Peters: "His famous 1977 article ... was an eloquent and cogent reminder that because of dual sovereignty, state law and state courts could play an important role as guarantors of civil and political rights. His article was a clarion call to lawyers and judges not to overlook the capacity of state law, especially state constitutional law, to assist in the pursuit of justice for all. Ellen A. Peters, Brennan Lecture: Capacity and Respect: A Perspective on the Historic Role of the State Courts in the Federal System, 73 N.Y.U.L. Rev. 1065, 1067 (October, 1998).

[3]William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 491 (1977).

[4] See also State v. Marsala, 216 Conn. 150 (1990), in which Justice Shea also eloquently recognizes, in essence, the fact that the state Constitution provides a "floor" and not a "ceiling" in regard to fundamental Constitutional rights. Id. at 159-60.

[5] See, e.g., Klein v. City of Stamford, 43 Conn. Supp. 441 (J.D. Stamford; June 13, 1994; Mottolese, J.). Similarly, in Peters v. Greenwich, 2001 Conn. Super. LEXIS 21 (J.D. Stamford; Jan. 2, 2001; D'Andrea, J.), the court stated: "[T]his court will not overstep its bounds, legislate, and create a new cause of action under article first, § 8, of the Connecticut constitution ...." Id.

[6]Binette, supra, at 36. The Court then reiterated "the frequently quoted passage from Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163, 2 L. Ed. 60 (1803), that ' "the very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury." ' '' Id.

[7]Binette also quoted Judge Borden's dissent in Kelley ("it would be incongruous to hold that our constitution is a drier source of private rights than the federal constitution or our own statutes." Id. at 355), and Judge Berdon's (concurring in part and dissenting in part) reasoning in Kelley ("if the legislature has not provided a remedy or if the remedy is not reasonably adequate ... in view of the facts of a particular case, a private cause of action is constitutionally available to right the wrong." Id.) Binette, supra, at 34.