Calfee v. Usman

• Decision Date: 30 October 1992
• Docket Number: No. 14541,14541
• Citation: 224 Conn. 29,616 A.2d 250
• Court: Connecticut Supreme Court
• Parties: Elizabeth CALFEE v. Ahmed USMAN.

Page 250

616 A.2d 250

224 Conn. 29

Elizabeth CALFEE v. Ahmed USMAN.

No. 14541.

Supreme Court of Connecticut.

Argued Sept. 22, 1992.

Decided Oct. 30, 1992.

Berdon, J., filed opinion concurring in part and dissenting in part.

Martin M. Looney, with whom, on the brief, was John A. Keyes, for appellant (plaintiff).

Edward V. Walsh, with whom were Robert M. Wechsler and, on the brief, Catherine N. Anderson, for appellee (defendant).

Before PETERS, C.J., and CALLAHAN, BORDEN, BERDON and NORCOTT, JJ.

PETERS, Chief Justice.

The dispositive issue in this appeal is whether, in a tort action, two prejudgment remedy statutes, General Statutes §§ 52-278c and 52-278d, ¹ are unconstitutionally vague as a matter of law. The plaintiff, Elizabeth Calfee, made an application for a prejudgment remedy in conjunction with her complaint that the defendant, Ahmed Usman, had negligently operated his automobile so as to cause her serious personal injury. During an adversarial hearing at which the plaintiff made an offer of proof about the automobile accident and its physical sequelae, the trial court denied the application for a prejudgment remedy as a matter of law. When the trial court thereafter denied the plaintiff's motion to open, she filed a timely appeal to the Appellate Court in accordance with General Statutes § 52-278l. ² We transferred her appeal to this court in accordance with Practice Book § 4023 and General Statutes § 51-199(c) and now reverse the judgment of the trial court.

The validity of the plaintiff's complaint is not at issue in this appeal, since the trial court reached no conclusion about the sufficiency of the complaint's allegations or the evidence that the plaintiff proffered in support of her claim to a prejudgment remedy. For present purposes, we note only that the plaintiff alleged that the defendant had struck her with his car as he was backing out of a driveway onto a public street. As a result of the accident, the plaintiff allegedly suffered a hip fracture requiring emergency room admittance, surgery and intensive physical therapy.

To secure the right to collect whatever judgment might subsequently be rendered against the defendant, the plaintiff at an adversarial hearing sought, in accordance with § 52-278d, to establish probable cause to sustain the validity of her claim. The trial court refused to hear the plaintiff's evidence, but allowed her to make an offer of proof. Relying on Connecticut v. Doehr, --- U.S. ----, 111 S.Ct. 2105, 115 L.Ed.2d 1 (1991), the trial court ruled that §§ 52-278c and 52-278d were facially unenforceable as a matter of federal constitutional law. The trial court held that the statutory standards for judicial determination of probable cause were both conflicting and obscure and hence failed to satisfy the constitutional requirements of due process.

The plaintiff's appeal challenges the validity of this ruling by the trial court. The plaintiff urges us to hold that the two statutes have been interpreted consistently to provide a meaningful standard for a prejudgment remedy determination. She maintains that, in the context of an adversarial hearing, the statutes pass constitutional muster. We agree with the plaintiff. ³ 3]

We begin our analysis with three well established principles that govern constitutional challenges to validly enacted statutes. Because a statute carries with it a strong presumption of constitutionality, a challenger must establish its unconstitutionality beyond a reasonable doubt. Bartholomew v. Schweizer, 217 Conn. 671, 675, 587 A.2d 1014 (1991); State v. Floyd, 217 Conn. 73, 79, 584 A.2d 1157 (1991); Zapata v. Burns, 207 Conn. 496, 508, 542 A.2d 700 (1988). In the absence of weighty countervailing circumstances, it is improvident for the court to invalidate a statute on its face. Lehrer v. Davis, 214 Conn. 232, 234-35, 571 A.2d 691 (1990); Motor Vehicle Manufacturers Assn. of the United States, Inc. v. O'Neill, 203 Conn. 63, 75, 523 A.2d 486 (1987); State v. Zach, 198 Conn. 168, 176-78, 502 A.2d 896 (1985). In construing a statute, the court must search for an effective and constitutional construction that reasonably accords with the legislature's underlying intent. Bartholomew v. Schweizer, supra, 217 Conn. at 675-76, 587 A.2d 1014; State v. Floyd, supra; McConnell v. Beverly Enterprises-Connecticut, Inc., 209 Conn. 692, 705-706, 553 A.2d 596 (1989).

Applying these principles to the prejudgment remedy statutes, we are persuaded that the provisions for a prejudgment remedy in §§ 52-278c and 52-278d are not unconstitutionally vague on their face. As this court has already indicated in two cases postdating Connecticut v. Doehr, supra, if the defendant is afforded the opportunity, in an adversarial hearing, to contest the validity of the claims made by the plaintiff in support of an application for a prejudgment remedy, a prejudgment attachment may constitutionally be issued without a showing of exigent circumstances. Shawmut Bank, N.A. v. Valley Farms, 222 Conn. 361, 373, 610 A.2d 652 (1992); Union Trust Co. v. Heggelund, 219 Conn. 620, 624 n. 3, 594 A.2d 464 (1991). ⁴ When there is no ex parte impairment of the defendant's property rights, a judicial finding of probable cause suffices to satisfy the defendant's constitutional right to due process.

The defendant advances three arguments in support of the contrary ruling of the trial court. He maintains that: (1) the holding of Connecticut v. Doehr, supra, directly addresses and resolves the issue of the vagueness of the probable cause directives in §§ 52-278c and 52-278d in his favor; (2) the analytic model developed in Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S.Ct. 893, 902-03, 47 L.Ed.2d 18 (1976), upon which Connecticut v. Doehr, supra, relied, renders the statutory probable cause standard violative of due process, especially in the context of a plaintiff's action sounding in tort; and (3) the plaintiff's attempt to secure a prejudgment remedy for a single accident on three pieces of property owned by the defendant manifestly impairs his due process rights as a matter of law.

The decision of the United States Supreme Court in Connecticut v. Doehr, supra, did not deal directly with the validity of a prejudgment remedy under §§ 52-278c or 52-278d. The statute that the court found to be constitutionally defective was General Statutes (Rev. to 1991) § 52-278e(a)(1), ⁵ which authorizes the prejudgment attachment of real property "without affording prior notice or the opportunity for a prior hearing to the individual whose property is subject to the attachment." Id., --- U.S. at ----, 111 S.Ct. at 2109. The court's decision relied on other prejudgment cases in which due process violations had been found in statutes authorizing the ex parte impairment of property rights. North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 605-607, 95 S.Ct. 719, 722-723, 42 L.Ed.2d 751 (1975); Fuentes v. Shevin, 407 U.S. 67, 96, 92 S.Ct. 1983, 2002, 32 L.Ed.2d 556 (1972); Sniadach v. Family Finance Corporation of Bay View, 395 U.S. 337, 342, 89 S.Ct. 1820, 1823, 23 L.Ed.2d 349 (1969). The court's opinion repeatedly emphasized the ex parte nature of the proceedings before it. It quoted Justice Frankfurter's concurrence in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 170-72, 71 S.Ct. 624, 648-49, 95 L.Ed. 817 (1951): "[F]airness can rarely be obtained by secret, one-sided determination of facts decisive of rights.... [And n]o better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and an opportunity to meet it." Connecticut v. Doehr, supra, --- U.S. at ----, 111 S.Ct. at 2114. In its concluding paragraph on this issue, the court reiterated that § 52-278e failed to comport with the demands of due process "by failing to provide a preattachment hearing without at least requiring a showing of some exigent circumstance." Id., --- U.S. at ----, 111 S.Ct. at 2116. The court's decision, therefore, does not determine the constitutionality of a prejudgment remedy to be issued after an adversarial hearing in accordance with § 52-278d.

The defendant advances a more plausible claim in his contention that § 52-278d cannot withstand the three-fold due process inquiry identified in Mathews v. Eldridge, supra. That inquiry requires a consideration of "the private interest that will be affected by the official action," "the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards," and lastly "the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Id., 424 U.S. at 334-35, 96 S.Ct. at 902-03. It is unarguable that "the private interest that will be affected by the official action" is the same whether an attachment is ordered after an adversarial hearing or ex parte. Neither party has advanced a contention that the government's interest in providing prejudgment remedies to private litigants is either enhanced or diminished by an adversarial hearing as opposed to ex parte proceedings. The gravamen of the defendant's claim is that "the risk of an erroneous deprivation of such interest" continues to be constitutionally unacceptable, even after an adversarial hearing, because such a hearing cannot overcome the unconstitutional obscurity of the statutory standards for probable cause established by §§ 52-278c and 52-278d.

Section 52-278d authorizes a trial court to issue a prejudgment attachment upon a determination of "probable cause to sustain the validity of the plaintiff's claim." Although § 52-278c speaks of "probable cause that judgment will be rendered in the matter in favor of the plaintiff," we have held that both of these probable cause formulations require the trial court to...