216 Conn. 85 | Conn. | 1990
The principal issue in this appeal is whether the class of indigent women represented by the named plaintiff
This case began on August 20,1981, when the named plaintiff and her physician brought a class action
After a further evidentiary proceeding pursuant to a bifurcation order,
The date that our decision in Doe v. Heintz was released, June 9, 1987, the plaintiffs filed a notice of claim with the claims commissioner requesting the state to pay their attorneys’ fees and costs “incurred to implement their right to judicial redress of injuries for violations by the state of the plaintiffs’ statutory and constitutional rights.” In the alternative, they sought permission from the claims commissioner to sue the state.
The plaintiffs, thereafter, brought this action on March 17, 1988, seeking attorneys’ fees and costs in the amount of $164,942.83, “incurred [while] remedy
In appealing from the judgment rendered June 28, 1989, the defendants maintain that the trial court erred by concluding that: (1) the plaintiffs’ claim was timely filed with the claims commissioner; (2) the claims commissioner had the authority to grant the plaintiffs permission to sue the state; and (3) article first, § 10 of the Connecticut constitution requires the state to pay the plaintiffs’ attorneys’ fees and costs.
I
On appeal, the defendants argue, as a threshold issue, that the trial court erred when it held that the plaintiffs’ claim was not time-barred by General Statutes § 4-148. The following facts are relevant to this argument. On April 9,1986, the trial court, Berdon, J., rendered a declaratory judgment that the regulation at issue was invalid because it contravened General Statutes §§ 17-134a through 17-134Z and because it violated the rights of the plaintiffs under certain provisions of the Connecticut constitution. The court enjoined the commissioner from enforcing the regulation and ordered the defendants to pay the costs of all medically necessary abortions on the same basis as other claims under the Medicaid program. After the decision, the court conducted further hearings on the plaintiffs’ bifurcated claim for attorneys’ fees and costs. In addition, the plaintiffs’ attorneys prepared a court ordered judgment file and monitored the defendants’ compli-
The defendants contend that the plaintiffs failed to file their claim with the claims commissioner on a timely basis in accordance with General Statutes § 4-148 (a), which states in pertinent part: “No claim shall be presented under this chapter but within one year after it accrues.” Because the legislature has chosen not to define the term “accrues,” the defendants urge us to construe it to mean the date on which judgment was entered. They argue that because the plaintiffs failed to file their claim with the claims commissioner until June 9,1987, more than one year after April 9,1986, the date that judgment was entered, the claim was not timely filed. Consequently, they contend, the claims commissioner lacked jurisdiction to consider it. We need not decide that issue at this time, however, because we agree with the trial court’s conclusion that the plaintiffs timely filed their claim in accordance with § 4-148.
When the claim for attorneys’ fees is based upon continuous legal representation, the statute of limitations does not begin to run until the legal services are complete. See Connell v. Colwell, 214 Conn. 242, 253, 571
In this case, the plaintiffs are seeking attorneys’ fees and costs “which were incurred to implement their right to judicial redress of injuries for violations by the state of the plaintiffs’ statutory and constitutional rights.” As part of that continuing legal representation, the plaintiffs’ attorneys were obligated to perform services for the plaintiffs after the date judgment was entered, April 9, 1986. The plaintiffs’ attorneys were ordered, by the court, to prepare a judgment file and to assist in the implementation of notice of the availability of Medicaid funds to the members of the class of indigent women in need of medically necessary abortions. Since the plaintiffs were seeking an award for attorneys’ fees and costs incurred in obtaining necessary health related benefits, their claim would not fully accrue until those services were completed. See Handler v. Remington Arms Co., 144 Conn. 316, 321, 130 A.2d 793 (1957) (“[w]hen the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed”). In order to effectuate the trial court’s judgment, the plaintiffs’ counsel were obligated to carry out the court’s orders. Thus, the plaintiffs’ claim was not ascertainable in toto until August 5, 1986. We conclude, therefore, that the trial court correctly determined that the plaintiffs had timely filed their notice of claim with the claims commissioner.
II
The defendants next contend that the doctrine of sovereign immunity bars the plaintiffs’ claim for attor
Both of these arguments, however, ignore the basis of the trial court’s conclusion. The trial court held that in order to effectuate article first, § 10 of our state constitution, the court could award the indigent plaintiffs attorneys’ fees and costs. The trial court squarely determined that the “requirements of article first, § 10 create a constitutional necessity” that supersedes § 4-160 (a) and hence the state’s sovereign immunity.
The defendants’ principal claim on appeal is that the trial court erred by ruling that, in order to “effectuate” article first, § 10 of our constitution, the plaintiffs are entitled to an award of attorneys’ fees and costs. At the proceedings below, the plaintiffs advanced a number of theories to justify such an award. While the trial court rejected most of these arguments, recognizing the weight of legal precedent barring a monetary award against the state, it did conclude that the “open courts” and the “right to redress” provisions of article first, § 10 of the state constitution authorized an award of attorneys’ fees and costs to the plaintiffs.
In arriving at its conclusion, the court formulated the following list of “standards”: (1) the plaintiff’s “injury” must arise under the state constitution; (2) “the deprivation of constitutional rights by the state must be the result of an intentional policy”; (3) the constitutional claim must be sufficiently complex to require the services of an attorney; (4) the plaintiff must be unable to afford legal counsel because of his or her poverty; (5) “resort to the courts for relief” must be necessary to end the constitutional deprivation; and (6) the private interest affected must be “substantial.” Because the plaintiffs satisfied all of these “standards,” the trial court concluded that an award of counsel fees was appropriate in this case.
In the absence of any legal precedent authorizing such a monetary award against the state, the trial court relied, in part, upon our decision in Lavertue v. Niman, 196 Conn. 403, 493 A.2d 213 (1985), to derive its standards. In Lavertm, we concluded that an indigent defendant in a state-supported paternity action had a constitutional right to court-appointed counsel at state expense under the due process clause of the fourteenth
The United States Supreme Court decision in Lassiter v. Department of Social Services, 452 U.S. 18, 27, 101 S. Ct. 2153, 68 L. Ed. 2d 640, reh. denied, 453 U.S. 927, 102 S. Ct. 889, 69 L. Ed. 2d 1023 (1981), provided the basis for our analysis in Lavertue. “The pre-eminent generalization that emerges from [the United States Supreme Court’s] precedents on an indigent’s right to appointed counsel is that such a right has been recognized to exist only where the litigant may lose his physical liberty if he loses the litigation.” Lassiter v. Department of Social Services, supra, 25. It is the defendant’s interest in personal freedom that triggers the right to appointed counsel. Id.; see In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967) (juvenile has right to appointed counsel in a delinquency proceeding, even though it may be considered a “civil” proceeding, when it may result in committing the juvenile to an institution). “Significantly, as a litigant’s interest in personal liberty diminishes, so does his right to appointed counsel.” Lassiter v. Department of Social Services, supra, 26. Thus, in Lavertue we balanced a “mix of factors” against each other, and then weighed the result against the presumption that there is no right to court-appointed counsel unless a loss of physical liberty is at stake. Lavertue v. Niman, supra, 412; Lassiter v. Department of Social Services, supra, 27.
We need not decide in this case, however, whether the risk of impairment of a plaintiff’s health, safety and personal integrity implicates a loss of physical liberty similar to that represented in Lavertue. The plaintiffs in this case, unlike those in Lavertue, do not maintain that they were entitled to court-appointed counsel. Rather, they retained their own counsel and now request the state to pay their attorneys’ fees and costs. See In re Smiley, 36 N.Y.2d 433, 438-39, 330 N.E.2d 53, 369 N.Y.S.2d 87 (1975) (while trial court had discretion to appoint counsel, it had no power to direct the state to pay the costs of providing counsel absent statutory authority). Lavertue, therefore, does not support the plaintiffs’ claim.
Any analysis of the question presented, i.e., whether article first, § 10 requires the state to pay the costs of plaintiffs’ counsel, must begin with the clear language of the constitution itself. Article first, § 10, contained in our Declaration of Rights, provides: “All courts shall
The historical background of article first, § 10 provides a useful framework to address the question presented. That provision, which originated in the Magna Carta, has been adopted in substantially the same form, in the constitutional provisions of most of the states. See, e.g., Florida, Article I, § 21; Missouri, Article I, § 14; Oklahoma, Article 2, § 6; Pennsylvania, Article I, § 11; Wisconsin, Article I, § 9. We may look to the precedents of sister states when construing similar language in our own constitution. E. Peters, “State Constitutional Law: Federalism in the Common Law Tradition,” 84 Mich. L. Rev. 583, 585 (1986).
Early state court opinions have generally construed the “open courts” provision as prohibiting the state from selling justice by imposing unreasonable charges on the litigants in the courts; Malin v. La Moure County, 27 N.D. 140, 152, 145 N.W. 582 (1914); and as ending the practice by a corrupt judiciary of demanding gratuities for giving or withholding decisions in pending cases.
The trial court analogized this case to Boddie v. Connecticut, 401 U.S. 371, 380-81, 91 S. Ct. 780, 28 L. Ed. 2d 113 (1971), in which the the United States Supreme Court held that the due process clause of the federal constitution forbade the imposition of filing fees that denied indigents, who were unable to pay the fees, access to the courts, the sole means in Connecticut for obtaining a divorce. Implicitly relying on Boddie, the trial court reasoned that, in order to ensure that the plaintiffs had access to the courts, it could impose a positive financial burden upon the state for attorneys’ fees. Such a broad interpretation of Boddie, however, is unfounded.
In Robertson v. Apuzzo, 170 Conn. 367, 371, 365 A.2d 824, cert. denied, 429 U.S. 852, 97 S. Ct. 142, 50 L. Ed. 2d 126 (1976), the defendant had a right to a jury trial pursuant to General Statutes § 52-438, but, because of his indigency, he was unable to pay “the jury fee required by statute to be paid by any party to a civil action who desires a jury rather than a court trial.” Id., 377. After acknowledging the limitations the due
On the basis of the record before us and the plain meaning of the open courts provision, it is clear that, in this instance, our courts were “open,” and that the plaintiffs had “access” to them. Unlike the defendant in Boddie, the plaintiffs successfully brought their action to court. The Connecticut Civil Liberties Foundation, Inc., acted as the legal counsel for the plain
Having concluded that the state did not impede the plaintiffs in their pursuit of constitutionally adequate “access” to the courts, the question that remains to be resolved is whether the state is obligated, pursuant to article first, § 10, to pay the attorneys’ fees of indigent persons to ensure they have “access to a remedy for a violation of the state constitution.” The plaintiffs argue that the state must pay their attorneys’ fees because the state intentionally passed a regulation that infringed upon their constitutional entitlement to medically necessary abortions at state expense and therefore forced them to go to court to vindicate their rights. Without an award of counsel fees, the plaintiffs argue, indigents would be unable to pursue their right to judicial redress for injuries as provided by our state constitution. The plaintiffs cite no case which has so held.
When addressing whether a statute unconstitutionally restricts a plaintiff’s right to a remedy pursuant to article first, § 10, we have long adhered to the principle that “[although this constitutional provision safeguards a person’s ‘right to redress’ in the courts, it does not protect this right unless ‘one suffers a recognized injury.’ Gentile v. Altermatt, 169 Conn. 267, 284, 363
The plaintiffs contend that they have suffered a “cognizable injury,” the “ ‘necessary prerequisite’ for the right to redress,” on the basis of the trial court’s holding in Doe v. Maher that the challenged regulation was invalid. The trial court did not hold nor do the plaintiffs contend, however, that all litigants who prevail in constitutional claims against the state, regardless of their economic status, are entitled to an award of counsel fees pursuant to article first, § 10. Rather, it is the plaintiffs’ indigency which becomes the keystone of their argument. Their analysis thus confuses the claim on which they have already prevailed with their claim for counsel fees. Their current claim is that, as prevailing indigents, they are entitled to attorneys’ fees, not that the constitutional violation from which they suffered a cognizable injury has not been redressed.
After a trial on the merits, the trial court declared the regulation invalid. Consequently, it enjoined the commissioner from enforcing the regulation and ordered the commissioner to pay for medically necessary abortions to the same extent as the defendants pay for all
Although the plaintiffs do not explain why the indigents could not receive a remedy, their argument implicitly assumes that the indigents’ inability to afford counsel would also prevent them from obtaining either the assistance of lawyers who provide pro bono services
Further, article first, § 10 “does not guarantee that all injured persons will receive full compensation for their injuries.” Estate of Cargill v. Rochester, 119 N.H. 661, 665, 406 A.2d 704 (1979), appeal dismissed, 445 U.S. 921, 100 S. Ct. 1304, 63 L. Ed. 2d 754 (1980). For example, we have unquestionably recognized the legislature’s authority to limit an injured party’s cause of action; Gentile v. Altermatt, supra, 283; to limit the scope of a judicial hearing; Southern Connecticut Gas Co. v. Housing Authority, supra, 523 (application for rent receivership); and to enact statutes of limitations. Stein v. Katz, 213 Conn. 282, 289, 567 A.2d 1183 (1989); Ecker v. West Hartford, 205 Conn. 219, 234, 530 A.2d 1056 (1987); Daily v. New Britain Machine Co., 200 Conn. 562, 582-86, 512 A.2d 893 (1986); see also Morris v. Hartford Courant Co., supra, 684-85 (failure to state a claim upon which relief can be granted). Similarly, other states have recognized the legislature’s authority to place statutory limits on the amount that a plaintiff can recover; Estate of Cargill v. Rochester, supra; and to impose governmental immunity; Brown v. Wichita State University, 219 Kan. 2, 10, 547 P.2d 1015, appeal dismissed, 429 U.S. 806, 97 S. Ct. 41, 50 L. Ed. 2d 67 (1976); without violating the “right to redress.” See Carroll v. County of York, 496 Pa. 363, 366, 437 A.2d 394 (1981) (legislature could confer tort immunity upon political subdivisions without denying plaintiffs a “remedy by due course of law”). In addition, other states have recognized that the doctrine of sovereign immunity does not violate similar constitutional provisions. E.g., Griggs v. State, 702 P.2d 1017, 1019 (Okla. 1985); Neal v. Donahue, 611 P.2d 1125, 1129 (Okla. 1980); see Ryszkiewicz v. New Britain, 193
Although article first, § 10 prohibits the state from placing obstacles in the path of the plaintiffs’ quest to gain access to our courts, the state has no affirmative obligation to remove obstacles that it did not create. Florida Bar v. Brumbaugh, 355 So. 2d 1186, 1192 (Fla. 1978). “The financial circumstances of these plaintiffs, which are the root cause of their inability” to pay for the services of counsel, have not been produced by any action of the state. Savage v. Aronson, 214 Conn. 256, 284, 571 A.2d 696 (1990). While it is unfortunate that the plaintiffs cannot afford to pay their attorneys, it is a problem caused by their indigency and not by anything that the state has done to prevent their access to the courts.
The constitutional right to a remedy for all cognizable injuries does not delegate to the courts the legislative authority to create new rights under the law. Cason v. Baskin, 155 Fla. 198, 213-14, 20 So. 2d 243 (1944). The text of article first, § 10 is explicit: “[EJvery person, for an injury done to him in his person . . . shall have a remedy by due course of law. ” (Emphasis added.) Thus, the plaintiffs’ right to a remedy must be recognized by an established legal principle, either in the common law or by statute, to be enforceable. This constitutional provision was “never intended to independently create new causes of action.” Harrell v. State, 361 So. 2d 715, 718 (Fla. App. 1978) (no constitutional violation of access to courts provision of the state constitution when the welfare department refused to sup
We are bound by the command of the text of the constitution. We do not have the authority to require the expenditure of public funds to the prevailing parties in cases where we, based upon our own predilections, might favor an award of attorneys’ fees. “This court has never viewed constitutional language as newly descended from the firmament like fresh fallen snow upon which jurists may trace out their individual notions of public policy uninhibited by the history which attended the adoption of the particular phraseology at issue and the intentions of its authors. The faith which democratic societies repose in the written document as a shield against the arbitrary exercise of governmental power would be illusory if those vested with the responsibility for construing and applying disputed provisions were free to stray from the purposes of the originators.” Cologne v. Westfarms Associates, 192 Conn. 48, 62, 469 A.2d 1201 (1984).
IV
It is well entrenched in our jurisprudence that Connecticut adheres to the American rule. Marsh, Day & Calhoun v. Solomon, 204 Conn. 639, 653, 529 A.2d 702 (1987). Under the American rule, a party cannot recover attorneys’ fees in the absence of statutory authority or a contractual provision. Id.; Doe v. Heintz, supra, 22-23; Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 14-15, 513 A.2d 1218 (1986); Gino’s Pizza of East Hartford, Inc. v. Kaplan, 193 Conn. 135, 140, 475 A.2d 305 (1984).
The plaintiffs do not claim that there is any statute or contract provision which would entitle them to attorneys’ fees in this case. Instead, the plaintiffs renew their arguments, first raised in Doe v. Heintz, supra, 21-29, that this court should exercise its equitable powers to affirm the award of attorneys’ fees to the plaintiffs. Specifically, they urge this court to adopt either the “private attorney general” doctrine or the “substantial benefit” doctrine as a court-authored exception to the American rule. Although we have previously rejected both of these doctrines as excep
A
The private attorney general doctrine “ ‘seeks to encourage suits effectuating a strong [public] policy by awarding substantial attorney’s fees, regardless of defendants’ conduct, to those who successfully bring such suits and thereby bring about benefits to a broad class of citizens.’ [D’Amico v. Board of Medical Examiners, 11 Cal. 3d 1, 27, 112 Cal. Rptr. 786, 520 P.2d 10 (1974)].” Serrano v. Priest, 20 Cal. 3d 25, 43, 141 Cal. Rptr. 315, 569 P.2d 1303 (1977).
In Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 271, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975), the United States Supreme Court declined to adopt the private attorney general doctrine as an exception to the American rule. While recognizing that commentators have criticized the American rule in recent years, the court found it clear that Congress had not chosen to pass a statute abrogating the rule. Id., 260. Instead, the court found that Congress had fabricated a statutory structure in which it had specifically delineated when a prevailing party is entitled to attorneys’ fees. Having done so, “it is not for [the court] to invade the legislature’s province by redistributing litigation costs in the manner suggested” by the plaintiffs. Id., 271. The court concluded that any exception to the American rule should properly be made by Congress and not the court. Id., 262.
Likewise our legislature has not chosen to repudiate the American rule, but rather has made specific provisions for attorneys’ fees in selected cases. For example, General Statutes § 52-251b allows the prevailing party in any civil action seeking damages for injuries
B
Under the substantial benefit doctrine, “when a class action or corporate derivative action results in the conferral of substantial benefits, whether of a pecuniary or nonpecuniary nature, upon the defendant in such an action, that defendant may, in the exercise of the court’s equitable discretion, be required to yield some of those benefits in the form of an award of attorney’s fees.” Serrano v. Priest, supra, 34. Under this theory, “those receiving the benefit should contribute to the costs of its production.” Id., 38. The rationale for such fee shifting is that “[t]o allow the others to obtain full benefit from the plaintiff’s efforts without contributing equally to the litigation expenses would be to enrich the others unjustly at the plaintiff’s expense.” Mills
The plaintiffs argue that they have conferred a “substantial benefit on all poor women in Connecticut, [i.e.] the right to state aid for medically necessary abortions.” Leaving aside the question of whether the plaintiffs bestowed a benefit upon all poor women or only those poor women who seek a state financed abortion, we conclude that the plaintiffs have not conferred a substantial benefit upon all those on whom they seek to impose the financial burden of their counsel fees. To request the state, and hence the public, to pay for the plaintiffs’ litigation expense imposes a financial burden on the state treasury, “a fund in which all citizens of this state, not just the plaintiff class of indigent women who may seek abortions, have a common interest.” Doe v. Heintz, supra, 26.
To avoid this conclusion, however, the plaintiffs argue that they have conferred a benefit upon all citizens of this state by challenging unconstitutional actions by the state. To adopt such an abstract definition, however, would expand the substantial benefit doctrine beyond its underpinnings. We conclude that this is an inappropriate case for the application of the substantial benefit doctrine.
C
The plaintiffs next urge this court simply to exercise its equitable powers to award them attorneys’ fees. Citing the equitable maxims that “every wrong has its remedy”; Chappell v. Jardine, 51 Conn. 64, 69 (1884); and “ 'in an equitable action the court endeavors to do complete justice. . . .’; Howarth v. Northcott, 152 Conn. 460, 465, 208 A.2d 540 (1965) [overruled on other grounds, Hao Thi Popp v. Lucas, 182 Conn. 545, 551, 438 A.2d 755 (1980)]”; McGaffin v. Roberts, 193 Conn.
To support their argument, the plaintiffs assert that General Statutes § 52-251b, enacted three years after commencement of this action, evinces a broad legislative policy to allow fee-shifting under the facts of this case. To the contrary, we conclude that § 52-251b manifests an intent by the legislature to delineate specific exceptions to the American rule. Section § 52-251b (a) allows the prevailing party in “any civil action to recover damages for injury to the person or to real or personal property arising out of a violation of section 46a-58” to recover his costs, including reasonable attorney’s fees. General Statutes § 46a-58 (a) makes it a discriminatory practice for any person to subject another to “the deprivation of any rights, privileges or immunities, secured or protected by the constitution or laws of this state or of the United States, on account of religion, national origin, alienage, color, race, sex, blindness or physical disability.”
By its terms, § 52-251b applies only to civil actions to recover damages. Therefore, even if it applied retroactively, it would not apply to the current case because “no damages were awarded by the court or even sought in the complaint [in Doe v. Maher] as finally amended.” Doe v. Heintz, supra, 28; General Statutes § 52-251b (a). Second, the statute explicitly rejects the expansive view advanced by the plaintiffs. Section 52-251b (b) distinctly provides that subsection (a), cited above, does not create a new cause of action against the state. “Statutory analogies may furnish guidance in filling a void in the law, but cannot
The plaintiffs’ final argument is that by requiring proof that the six factors set forth in the trial court’s memorandum of decision are satisfied, see part III, supra, this court could and should use its equitable powers to formulate a narrowly circumscribed rule to authorize fee awards. We are unpersuaded. The legislature is in a far better position than the courts to balance the myriad of factors necessary to formulate policy on matters that so intimately concern the state budget. We must respect the “legislative prerogative of choosing the special circumstances under which such awards may be made.” Doe v. Heintz, supra, 29.
We recognize that our decision may lead to harsh results where plaintiffs might be unable to vindicate their rights because they lack the necessary funds to hire an attorney and have no contractual or statutory right to attorneys’ fees. Recognizing this problem, attorneys and organizations throughout the state provide pro bono services to needy clients. To the extent this solution is inadequate, it is the prerogative of the legislature, not the courts, to determine the circumstances under which an award of attorneys’ fees to the prevailing party will be authorized.
The judgment is reversed and the case is remanded with direction to render judgment for the defendants.
In this opinion the other justices concurred.
At the inception of this litigation, the named plaintiff obtained an order of the trial court that permitted her to prosecute the action under a fictitious name.
After a hearing, on October 9,1981, the trial court certified two classes of plaintiffs: “(1) indigent pregnant women eligible for Medicaid who seek a medically necessary abortion, represented by the named plaintiff; and (2) physicians certified by the state to provide medical care under Medicaid who agree to perform medically necessary abortions or advise women concerning them, represented by the named plaintiff’s physician.” Doe v. Heintz, 204 Conn. 17, 20, 526 A.2d 1318 (1987).
The treasurer of the state of Connecticut was also a party defendant. Because the plaintiffs sought to sue both state officers in their official capacities, the suit, in effect, was against the state of Connecticut. Doe v. Maher, 40 Conn. Sup. 394, 395 n.2, 515 A.2d 134 (1986); see Sentner v. Board of Trustees, 184 Conn. 339, 342, 439 A.2d 1033 (1981). “Therefore, we have dealt with such suits as if they were solely against the state and have referred to the state as the defendant.” Sentner v. Board of Trustees, supra.
The regulation issued by the department of income maintenance closely paralleled the June 5, 1981 version of the Hyde Amendment as enacted by Congress. In Harris v. McRae, the United States Supreme Court had upheld the validity of an earlier version of the Hyde Amendment that denied public funding for certain medically necessary abortions. Harris v. McRae, 448 U.S. 297, 100 S. Ct. 2671, 65 L. Ed. 2d 784, reh. denied, 448 U.S. 917, 101 S. Ct. 39, 65 L. Ed. 2d 1180 (1980). The court rejected claims that the Hyde Amendment: (1) violated the due process right of a woman to terminate her pregnancy; (2) interfered with her freedom of religion; and (3) denied indigent women equal protection of the laws. Id., 326-27. The court also concluded that a state participating in the Medicaid program is not obligated by that program to pay for medically necessary abortions for which Congress has withheld federal funding. Id., 326.
The trial court defined medically necessary or therapeutic abortions as “abortions necessary to ameliorate a condition that is deleterious to a woman’s physical and or psychological health.” Doe v. Maher, 40 Conn. Sup. 394, 396 n.4, 515 A.2d 134 (1986).
The plaintiffs made a claim for attorneys’ fees and costs in their original complaint.
The trial court denied the request for attorneys’ fees and costs made by the class of physicians.
The plaintiffs filed an amended notice of claim on October 21,1987. The amended notice of claim apparently sought to clarify that the claim for attorneys’ fees was not limited to the fees claimed and allowed by the trial court in June, 1986, but also encompassed services rendered through August, 1986.
The finding and order make no reference to the plaintiffs’ claim for payment of attorneys’ fees and costs.
The trial court rejected the plaintiffs’ claim that a multiplier be added to enhance the actual fees.
The trial court stated: “In this case, in response to a motion for clarification and order of notice filed by the plaintiffs, Judge Berdon, on May 15, 1986, directed as further relief to the plaintiffs that the defendants furnish a written notice to all members of the plaintiff class ‘on or before July 1, 1986’ including a Spanish translation which he ordered the plaintiffs to prepare. Plaintiffs’ counsels’ work in securing the defendants’ initial compliance with this portion of the remedy was part and parcel of its representation of the plaintiffs in the litigation and was part of the initial securing of a remedy.” The order dated May 15, 1986, was subsequently amended by the trial court, Berdon, J., directing the defendants to send notice on or before August 1, 1986.
The plaintiffs argue that when the claims commissioner granted them permission to sue the state, he implicitly denied their request for payment. We agree. Thus, having exhausted their administrative remedies, the plaintiffs were free to bring their constitutional claim to the Superior Court. Sullivan v. State, 189 Conn. 550, 559, 457 A.2d 304 (1983).
The original purpose of this constitutional provision has been described as follows: “That provision is very old. Its history dates back to the days of Magna Carta. It was designed to prevent a species of official exactions made as the price of delaying or expediting justice. From the lowest officer to the king himself, in the olden times, bribes were freely demanded and taken to procure the benefits of the laws. They bore no relation whatever to our system of exactions for expenses of litigation, called costs, or the charge as a tax on suits, imposed under laws which bear equally upon all; but they were arbitrary exactions sanctioned by the manners of the times, that went to the personal benefit of the judicial head or body controlling the execution of the law, or to servants or officers connected therewith. It was such abuse, among others, that the barons of England forced
Robertson v. Apuzzo, 170 Conn. 367, 371, 365 A.2d 824, cert. denied, 429 U.S. 852, 97 S. Ct. 142, 50 L. Ed. 2d 126 (1976), involved a claim pursuant to the due process clause of the federal constitution rather than article first, § 10 of the Connecticut constitution.
At the time this action was commenced Practice Book § 50 “provided for a waiver of court costs and necessary expenses in commencing an action by an indigent ‘[i]n any case in which the plaintiff, without such a waiver will be deprived of a right by which he is entitled to bring an action . . . The named plaintiff never sought such a waiver when this suit was brought.” Doe v. Heintz, 204 Conn. 17, 22, 526 A.2d 1311 (1987).
Rule 6.1 of the Rules of Professional Conduct provides: “A lawyer should render public interest legal service. A lawyer may discharge this responsibility by providing professional services at no fee or a reduced fee to persons of limited means or to public service or charitable groups or organizations, by service in activities for improving the law, the legal system or the legal profession, and by financial support for organizations that provide legal services to persons of limited means.”