Binette v. Sabo

• Decision Date: 10 March 1998
• Docket Number: No. 15547,15547
• Citation: 244 Conn. 23,710 A.2d 688
• Court: Connecticut Supreme Court
• Parties: Joseph A. BINETTE et al. v. Mahlon C. SABO et al.

Page 688

710 A.2d 688

244 Conn. 23

Joseph A. BINETTE et al. v. Mahlon C. SABO et al.

No. 15547.

Supreme Court of Connecticut.

Argued June 4, 1997.

Decided March 10, 1998.

F. Timothy McNamara, Hartford, for appellants (plaintiffs).

Thomas R. Gerarde, with whom was David S. Monastersky, Hartford, for appellees (defendants).

Ann M. Parrent, New York City, filed a brief for the Connecticut Civil Liberties Union Foundation as amicus curiae.

Before CALLAHAN, C.J., and BORDEN, BERDON, NORCOTT, KATZ, PALMER and McDONALD, JJ. ¹

PALMER, Associate Justice.

The sole question in this case, which comes to us upon our grant of certification from the United States District Court for the District of Connecticut; ² Binette v. Sabo, Docket No. 3:96CV00179 (PCD) (D.C.Conn. August 22, 1996); is whether, in the circumstances presented, the Connecticut constitution gives rise to a private cause of action for money damages stemming from alleged violations of article first, §§ 7 [244 Conn. 26] and 9, ³ of our state constitution. We answer the certified question in the affirmative.

The record certified by the District Court contains the following facts. The plaintiffs, Joseph A. Binette and Janet Binette, residents of the city of Torrington, initiated this action in the Superior Court for the judicial district of Litchfield seeking compensatory and punitive damages against the defendants, Mahlon C. Sabo, the Torrington police chief, and Anthony A. Languell, a Torrington police officer. The complaint alleges that on December 3, 1994, the defendants entered the plaintiffs' home without permission or a warrant. According to the complaint, Sabo threatened Janet Binette with arrest and imprisonment and pushed her, causing her to fall against a wall and over a table. The complaint also alleges that, outside the plaintiffs' home, Sabo repeatedly slammed Joseph Binette's head against a car and, further, that Languell, in the course of arresting Joseph Binette, struck him on the head and kicked him while he was lying on the ground experiencing an epileptic seizure.

The complaint contains twenty-two counts, four of which purport to state a cause of action directly under the Connecticut constitution. Specifically, counts three and four of the complaint allege that Sabo and Languell, respectively, violated Joseph Binette's rights under article first, §§ 7 and 9, of the Connecticut constitution, and counts sixteen and seventeen allege that Sabo and Languell, respectively, violated Janet Binette's rights under article first, § 7, of our state constitution. The complaint also contains counts alleging common-law torts, including assault and battery, intentional infliction of emotional distress, negligent infliction of emotional distress, and wrongful arrest. In addition, the complaint alleges violations of 42 U.S.C. § 1983 (1994). ⁴

Upon motion of the defendants, the case was removed to the United States District Court for the District of Connecticut. The defendants subsequently filed a motion to dismiss the four counts seeking damages under the Connecticut constitution on the ground that those counts fail to state a legally cognizable claim. The District Court, acknowledging that this court has never addressed the question of whether our state constitution gives rise to a damages action in the circumstances presented, denied the defendants' motion without prejudice and certified the following question to us: "Do [the] plaintiffs have a cause of action for damages for the injuries alleged in the [t]hird, [f]ourth, [s]ixteenth, and [s]eventeenth [c]ounts?" ⁵ We agreed to answer the question posed by the District Court.

The plaintiffs contend that we should recognize a damages remedy directly under article first, §§ 7 and 9, of the state constitution in the circumstances of this case. The plaintiffs posit two theories in support of this claim. First, they contend that the open courts provision of our state constitution, article first, § 10, ⁶ guarantees them the right to bring a state constitutional damages claim because a common-law action for violations of rights akin to those protected under article first, §§ 7 and 9, existed prior to the adoption of our constitution in 1818. ⁷ Alternatively, the plaintiffs maintain that we should create a state constitutional cause of action under the reasoning of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). We reject the plaintiffs' argument under the open courts provision of our state constitution, but we conclude that the plaintiffs are entitled to bring a claim under article first, §§ 7 and 9, for the policy reasons articulated in Bivens.

I

The plaintiffs assert that article first, § 10, of the state constitution guarantees them the right to bring a claim directly under article first, §§ 7 and 9. Specifically, the plaintiffs, relying on dicta in Kelley Property Development, Inc. v. Lebanon, 226 Conn. 314, 330-33, 627 A.2d 909 (1993), contend that they are entitled to bring such an action because a damages remedy existed prior to the adoption of our constitution in 1818 for violations of rights that were viewed as fundamental at that time and which are substantially similar to those protected under article first, §§ 7 and 9. ⁸ We disagree. ⁹

Our resolution of the plaintiffs' claim requires a brief review of our article first, § 10 jurisprudence, which derives from the seminal case of Gentile v. Altermatt, 169 Conn. 267, 363 A.2d 1 (1975), appeal dismissed, 423 U.S. 1041, 96 S.Ct. 763, 46 L.Ed.2d 631 (1976). "We generally have held that article first, § 10, prohibits the legislature from abolishing or significantly limiting common law and certain statutory rights that were redressable in court as of 1818, when the constitution was first adopted, and which were 'incorporated in that provision by virtue of being established by law as rights the breach of which precipitates a recognized injury....' Gentile v. Altermatt, [supra, at 286, 363 A.2d 1]...." (Citation omitted.) Moore v. Ganim, 233 Conn. 557, 573-74, 660 A.2d 742 (1995). The legislature is precluded, therefore, from abolishing or substantially modifying any such right unless it enacts a reasonable alternative to the enforcement of that right. Id., at 574, 660 A.2d 742; Kelley Property Development, Inc. v. Lebanon, supra, 226 Conn. at 331, 627 A.2d 909; Gentile v. Altermatt, supra, at 286-87, 363 A.2d 1. Article first, § 10, however, does not itself create new substantive rights but, instead, protects access to our state's courts. Moore v. Ganim, supra, at 573, 660 A.2d 742; Sanzone v. Board of Police Commissioners, 219 Conn. 179, 194-95, 592 A.2d 912 (1991). With these principles in mind, we turn to our decision in Kelley Property Development, Inc.

In that case, the plaintiff owners of certain real property sought recovery against the town of Lebanon and its planning and zoning commission under the due process clause of the state constitution, article first, § 8, for alleged improprieties by the commission in its rejection of the property owners' subdivision application. The property owners in Kelley Property Development, Inc., relying solely on the nonabrogation principle embraced by Gentile, claimed that, because a damages action to redress the violation of rights analogous to due process rights existed at common law prior to 1818, the open courts provision ensured the continued existence of that remedy through a direct cause of action under article first, § 8. Kelley Property Development, Inc. v. Lebanon, supra, 226 Conn. at 331, 627 A.2d 909. Without expressing a view as to whether Gentile supported their claim under the open courts provision, we concluded that the property owners in Kelley Property Development, Inc., had failed to establish that a damages action for the violation of rights similar to due process rights existed at common law in 1818 and, consequently, that they had not satisfied the constitutional principle that they themselves had espoused. Id., at 333, 627 A.2d 909.

The plaintiffs in this case claim that because they, in contrast to the property owners in Kelley Property Development, Inc., can establish that a damages action to redress rights analogous to the constitutional rights that they claim were violated by the defendants existed at common law prior to 1818; see footnote 8; they have satisfied the test that we applied in Kelley Property Development, Inc., and, therefore, are entitled to bring a claim for damages directly under the state constitution. Because, however, we were not required to consider the merits of the constitutional principle advanced by the plaintiff property owners in Kelley Property Development, Inc., and, in fact, did not do so, we are not bound to accept that principle for purposes of this case.

More importantly, however, we reject the assumption upon which that proposed principle rests, namely, that it necessarily follows from our holding in Gentile. On the contrary, our determination in Gentile that article first, § 10, limits the power of the legislature to abrogate or modify rights extant at common law prior to 1818; Gentile v. Altermatt, supra, 169 Conn. at 286, 363 A.2d 1; bears no direct relation to the much different question of whether the plaintiffs are constitutionally entitled to bring a claim directly under the state constitution. Put another way, the doctrine that, under article first, § 10, the legislature may not diminish pre-1818 common-law or statutory rights without enacting reasonable alternatives; see id.; does not necessarily imply, as the plaintiffs and amicus assume, that article first, § 10, embodies a private cause of action for pre-1818 "fundamental" common-law rights.

Moreover, neither the plaintiffs nor the amicus curiae has sought to explain how the principle that we applied but did not adopt in Kelley Property Development, Inc., may be gleaned from our article first, § 10...