226 Conn. 314 | Conn. | 1993
Lead Opinion
The principal issue in this civil rights appeal is whether the Connecticut constitution affords a monetary remedy for damages to persons whose state due process rights have allegedly been violated by local zoning officials. The plaintiffs, Kelley Property Development, Inc., and John J. Kelley, Sr. (collectively, Kelley), sought compensatory and punitive damages for injuries allegedly resulting from the defendants’
The record of the findings of fact by the trial court and the stipulation of the parties contains the following relevant facts. In September, 1988, Kelley purchased a 573 acre tract of land (property) located in the towns of Lebanon and Colchester. Although the
In December, 1989, Kelley filed a timely zoning appeal from the commission’s denial to the trial court, J. Walsh, J.,
Kelley thereafter filed this action seeking damages for losses incurred as a result of the delayed approval of his application. In count one of his six count second amended complaint, Kelley alleged that his interest in
After the pleadings had been closed, the trial court granted the defendants’ motion for summary judgment on all six counts.
Kelley first claims that his interest in the approval of his subdivision application was a property interest protected by the federal constitution and, therefore, that the trial court improperly rejected his federal due process claims on the ground that he had no constitutionally protected interest.
A
This court recently adopted the Second Circuit Court of Appeals’ “clear entitlement” test as a guide to determining whether a civil rights claimant in a land regulation case has stated a due process claim under the federal constitution. See Red Maple Properties v. Zoning Commission, 222 Conn. 730, 738-39, 610 A.2d 1238 (1992), citing RRI Realty Corporation v. Incorporated Village of Southampton, 870 F.2d 911, 915-18 (2d Cir.), cert. denied, 493 U.S. 893, 110 S. Ct. 240, 107 L. Ed. 2d 191 (1989). The “clear entitlement” test mandates
The “clear entitlement” test asks whether there is a certainty or a very strong likelihood that the application in question would have been granted, but for the wrongful conduct of the local officials. RRI Realty Corporation v. Incorporated Village of Southampton, supra, 915-17; see also Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972); Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54, 59 (2d Cir. 1985).
B
In this case, the trial court properly held that Kelley’s subdivision application was subject to the commission’s discretion and that the Lebanon land use regulations, therefore, did not clearly entitle Kelley to approval. The relevant Lebanon subdivision regulation, which addresses open space requirements and which served as the basis for the denial of Kelley’s application, provides: “The minimum area of open space shall be 10% of the total area of the land to be subdivided whether or not it is to be so subdivided entirely at the time of application. Generally such dedication shall not be less than one acre and shall be of such size and location as deemed appropriate by the Commission.” Lebanon Subdivision Regulation § 6.8B.
1
If we construe Judge Walsh’s decision as holding merely that the commission abused its discretion, Kelley was not clearly entitled to approval because, at the time his application was filed, the commission nonethe
Kelley contends, however, that the Second Circuit’s decision in Sullivan v. Salem, 805 F.2d 81 (2d Cir. 1986), holds that an agency’s abuse of discretion in denying an application necessarily requires a conclusion that the applicant had a clear entitlement to approval. In Sullivan v. Salem, supra, 83, town officials had denied the plaintiff’s application for certificates of occupancy for newly constructed houses on the ground that the newly constructed road adjacent to the houses had not yet been accepted for dedication. The applicable regulations, however, did not contain any reference to road acceptance and, in fact, gave town officials “no element of discretion” except to the extent that they were obligated to determine whether the construction for which a certificate of occupancy was requested complied with the relevant state and municipal requirements. Id., 85. The Second Circuit held, therefore, that the plaintiff would have a protected property interest in approval of his application if the houses fully conformed to all other requirements.
Kelley’s reliance on Sullivan v. Salem, supra, is unavailing. Read in light of its facts and subsequent Second Circuit decisions, Sullivan does not support the proposition that a discretionary regulation is insufficient to preclude a clear entitlement to approval of an application if the decision to deny the application is based on an improper exercise of that discretion. As we held in Carr v. Bridgewater, supra, 52-53, the “clear entitlement” test focuses on the degree of discretion that the regulation affords the commission at the time the application is filed. No subsequent conduct by the commission could alter that degree of discretion and give the applicant a protected property interest where none had existed at the time of the filing.
Second Circuit precedent is in accord. In RRI Realty Corporation v. Incorporated Village of Southampton, supra, and Dean Tarry Corporation v. Friedlander, 826 F.2d 210, 213 (2d Cir. 1987), the Second Circuit held that a regulation affording discretion to decisionmakers does not give rise to a clear entitlement, even if the decisionmaker in fact exercises that discretion improperly, as long as the reason given for the denial has a basis in the regulation. Distinguishing the circumstances of Sullivan from the circumstances of the case before it in Dean Tarry Corporation, the court stated
The Second Circuit’s subsequent reading of Sullivan is consistent with the specific facts of that case. The denial for which Sullivan sought damages was based on a consideration that had no basis in the applicable regulations, but was plucked “out of thin air.” Dean Tarry Corporation v. Friedlander, supra. The applicant could not reasonably have anticipated denial of its application on the stated ground. In this case, however, the articulated reason for the commission’s denial of Kelley’s application was grounded in the discretionary open space provision of § 6.8B. Accordingly, the commission’s erroneous reliance on insufficient dry land within the proposed open space did not erase the degree of discretion otherwise afforded by the regulation at the time the application was filed and Kelley was thus not clearly entitled to approval.
2
The result of our inquiry into the commission’s degree of discretion is the same even if we assume, contrary to the preceding analysis, that Judge Walsh’s decision invalidated § 6.8B, rather than finding a mere abuse of discretion in the commission’s reliance on that provision to deny Kelley’s application. At the time the application was filed, the relevant regulation, even if
The Second Circuit has decided precisely this issue.
In this case, similarly, the plain language of § 6.8B, at the time Kelley’s application was filed, granted the
Having failed to establish a protected property interest in subdivision approval, Kelley has not satisfied the threshold requirement of a federal due process claim. We conclude, therefore, that the trial court properly rendered summary judgment in favor of the defendants on Kelley’s federal claims, contained in counts one, two and three of the second amended complaint.
II
We turn now to Kelley’s claim that we should recognize
A
Kelley urges us to recognize a cause of action for damages in this case because a common law damages action existed in Connecticut before 1818, when the state constitution was adopted, for injuries substantially similar to those he allegedly sustained as a result of the defendants’ conduct. Kelley contends that article first, § 10, of the state constitution ensures the continued existence of that remedy. We are not persuaded.
We agree with Kelley that we have consistently interpreted article first, § 10, to prohibit the legislature from abolishing a right that existed at common law prior to 1818. “[A]ll rights derived by statute and the common law extant at the time of the adoption of article first, § 10, are incorporated in that provision by virtue of being established by law as rights the breach of which precipitates a recognized injury, thus being exalted beyond the status of common-law or statutory rights of the type created subsequent to the adoption of that provision.” Gentile v. Altermatt, 169 Conn. 267, 286, 363 A.2d 1 (1975), appeal dismissed, 423 U.S. 1041, 96 S. Ct. 763, 46 L. Ed. 2d 631 (1976); see also Sanzone v. Board of Police Commissioners, 219 Conn. 179, 194-95, 592 A.2d 912 (1991). Even if a particular right did exist at common law, however, the legislature is entitled to abolish or modify, consistently with article first, § 10, the right as long as it also enacts a reasonable alternative to the enforcement of the right. Gentile v. Altermatt, supra.
Decisions of this court subsequent to Johnson and Waters clarify that, in those cases, the selectmen’s illegal conduct contravened a statute empowering them to appoint overseers in appropriate cases.
In the absence of a clear indication in Johnson and Waters that the damages awards in those cases redressed rights akin to fundamental constitutional rights, we decline to read these cases as establishing a common law precedent for the existence of a constitutional claim for damages for any and all alleged misconduct by state or local governmental officers. It is more plausible to understand these cases as precursors of the modern principle that violation of statutory rights may allow an injured person to assert a private cause of action or a traditional tort action for damages. See, e.g., Mead v. Burns, 199 Conn. 651, 663, 509 A.2d 11 (1986) (private cause of action exists under CUTPA for alleged CUIPA violations); Conaway v. Prestia, 191 Conn. 484, 491, 464 A.2d 847 (1983) (private cause of action exists under CUTPA for alleged violations of certain landlord-tenant statutes). We conclude, therefore, that Kelley has failed to establish that, in the circumstances of this case, a damages action for the violation of a quasi-constitutional right existed at common law in Connecticut prior to 1818 and thereby became incorporated into the state constitution by virtue of article first, § 10.
As an alternative to his common law argument, Kelley also contends that this court should infer the existence of a cause of action for damages from the existence of the state constitution’s due process provision for the reasons of policy articulated in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra. In that case, the United States Supreme Court created a cause of action for damages for injuries sustained as a result of federal officials’ violation of a citizen’s rights under the fourth amendment to the federal constitution. Relying on the rationale of Bivens, Kelley argues that we should create a state Bivens action because damages are the traditional remedy for invasions of personal rights and because the legislature has not prohibited such a cause of action.
The United States Supreme Court later extended Bivens to create a damages cause of action for injuries sustained when a Congressman discharged an administrative assistant in alleged violation of the fifth amendment due process provision’s protection against sex discrimination. Davis v. Passman, supra. The court in Davis cited several factors in support of its decision. First, the court determined that a cause of action for damages was particularly appropriate in the case at hand for two reasons: (1) the plaintiff sought only back pay and, therefore, no complicated issues of valuation and causation would arise; and (2) equitable relief, such as reinstatement, would be unavailing because the defendant Congressman was no longer in office. Id., 245. Second, although the fact that the defendant had
The United States Supreme Court’s decisions in Bivens, Davis and Carlson reveal that, at least until 1980, the court considered several factors to be significant in determining whether to create a direct cause of action for damages for an alleged federal constitutional violation by federal officials. These factors included: (1) the inadequacy or absence of an alternative remedy; (2) the absence of explicit direction from Congress that no damages remedy should lie; and (3) the absence of any special factors counselling hesitation, such as federal fiscal policy. See J. Steinman, “Backing Off Bivens and the Ramifications of This Retreat for the Vindication of First Amendment Rights,” 83 Mich. L. Rev. 269, 270-77 (1984).
More recently, however, the United States Supreme Court appears to have retreated from the reasoning underlying Bivens. See J. Steinman, supra, 285-97; note, “Two Approaches to Determine Whether an Implied Cause of Action Under the Constitution Is Necessary: The Changing Scope of the Bivens Action,” 19 Ga. L. Rev. 683, 685 (1985). For example, in Chappell v. Wallace, 462 U.S. 296, 103 S. Ct. 2362, 76 L.
In its current configuration, the Bivens line of United States Supreme Court cases thus appears to require a would be Bivens plaintiff to establish that he or she
Turning from the federal analogy, Kelley asserts, however, that decisions of other state courts recognizing damages actions for alleged state constitutional violations support his Bivens claim. We do not agree.
The several sister jurisdictions that have addressed the issue of whether to recognize a state Bivens action have pursued varying methods of analysis, with varying results. In a significant number of cases, however, the focus has been on the presence or absence of an existing alternative remedy, either by way of statute or under the common law, to provide some measure of relief for the injured party. See, e.g., State v. Haley, 687 P.2d 305, 318 (Alaska 1984) (statutory cause of action exists); Gay Law Students Assn. v. Pacific Telephone & Telegraph Co., 24 Cal. 3d 458, 475 n.10, 595 P.2d 592, 156 Cal. Rptr. 14 (1979) (state Bivens action appropriate because of the absence of any administrative remedy); Widgeon v. Eastern Shore Hospital Center, 300 Md. 520, 525-28, 535, 479 A.2d 921 (1984) (no constitutional action in light of common law remedies); Phillips v. Youth Development Program, Inc., 390 Mass. 652, 658 n.4, 459 N.E.2d 453 (1983) (need for judicial protection of rights in the absence of statutory remedies); Rockhouse Mountain Property Owners Assn. v. Conway, 127 N.H. 593, 597-601, 503 A.2d 1385 (1986) (refusal to lay out roads; statutory law provides a remedy in the form of an appeal to the superior court, even
Our examination of these cases leads us to conclude that, as a general matter, we should not construe our state constitution to provide a basis for the recognition of a private damages action for injuries for which the legislature has provided a reasonably adequate statutory remedy. This conclusion accords with the constitutional principle of separation of powers and its requirement for judicial deference to legislative resolution of conflicting considerations of public policy. See, e.g., State v. Campbell, 224 Conn. 168, 179, 617 A.2d 889 (1992); Murphy v. State Employees Retirement Commission, 218 Conn. 729, 736, 590 A.2d 974 (1991); Bartholomew v. Schweizer, 217 Conn. 671, 676, 587 A.2d 1014 (1991). Our legislature has demonstrated its
The circumstances of this case provide no compelling justification for departure from this general principle. We note that the legislature, by enacting General Statutes § 8-8,
As a matter of policy, the existing remedies, although they may not afford as complete relief as a state Bivens action would provide, are particularly appropriate in light of the fact that the Lebanon officials whose conduct allegedly violated Kelley’s state constitutional rights are not professionals but are laypersons with little or no technical expertise. See Gardiner v. Conservation Commission, 222 Conn. 98, 103, 608 A.2d 672 (1992); Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Com
First, although potential defendants could avoid liability by not engaging in unconstitutional conduct, they might not be able to predict accurately what conduct would be found to violate the state constitution. The threat of liability would be apt to entail costs of its own, insofar as that threat may have a chilling effect on the zeal with which zoning commissions and their members undertake their responsibilities.
Second, the availability of a state Bivens action, with its potential for significant monetary awards, would encourage its pursuit by any disappointed zoning applicant whenever a zoning agency denies the sought after permit or application. The cost to towns, zoning commissions and their members of defending against a myriad of such claims, whether or not meritorious, would be great, and the courts also would incur costs in light of the increased caseload.
Accordingly, we conclude that this case does not require the recognition of a state Bivens action because Kelley’s existing statutory remedy strikes a proper bal
We note, finally, that the very considerations to which Kelley points as justification for judicial creation of a state Bivens action point to the advisability of judicial restraint. Kelley suggests that his due process rights were violated because the defendants denied his zoning application, not in the exercise of their administrative discretion, but as a result of improper motivation, political or otherwise. To the extent, however, that the dispute between Kelley and the defendants is a political one stemming from differences in their visions of the future of Lebanon, it is preferable that such a dispute should be resolved not by litigation but within designated political channels: zoning commissions, town boards and other local political institutions. Cf. Hahn v. Zoning Commission, 162 Conn. 210, 214, 293 A.2d 9 (1972). Accordingly, we conclude that judicial creation of a supplemental damages remedy in this case would be inappropriate.
The judgment is affirmed.
In this opinion Callahan, Norcott, Katz and Santaniello, Js., concurred.
The defendants are the town of Lebanon; the Lebanon planning and zoning commission; Harold Liebman, James Abell, Robin Chesmcr, Oliver Manning, Raymond Manning and Richard Dexter, who were, at all times relevant to this case, members of the Lebanon planning and zoning commission; and Edward Tytor, who was, at all times relevant to this case,
The fourteenth amendment to the United States constitution provides in relevant part: “No State shall . . . deprive any person of life, liberty or property, without due process of law . . . .”
Article first, § 8, of the Connecticut constitution provides in relevant part: “No person shall ... be deprived of life, liberty or property without due process of law . . . .”
The summary judgment in favor of the defendants did not specifically apply to the defendant Tytor, who had moved separately for summary judgment. Rather, the memorandum of decision noted that the court had not yet acted on Tytor’s summary judgment motion. Tytor moved for an articulation, seeking to confirm that the judgment applied to him, but the motion was denied.
Tytor represented in this court, however, that the trial court clerk had informed him that the trial court was considering a request for reconsideration of the motion to articulate. For the purpose of this appeal, we will assume that the summary judgment was rendered in favor of Tytor as well as the other defendants.
Also in April, 1989, the commission reviewed a proposal to place a moratorium on subdivisions within lake districts, which presumably would have applied to Kelley’s proposed subdivision. The commission decided not to pursue a moratorium in May, 1989.
Neither the trial court that heard Kelley’s zoning appeal nor the trial court in the present case found that the commission had inappropriately delayed its decision on Kelley’s subdivision application.
We will refer hereinafter to the trial court that heard the administrative appeal as Judge Walsh, so as to reserve the' term “trial court” for the court in which the present damages action originated.
Judge Walsh’s decision also adverted to an additional, albeit related, consideration mentioned by the commission in denying Kelley’s application: the location of part of the open space in an area zoned industrial, whereas the subdivision itself was located in an area zoned residential. Judge Walsh’s decision, as well as that of the trial court, however, focused primarily on the commission’s consideration of the area of dry land within the open space in concluding that the commission abused its discretion. Accordingly, for the purpose of this decision, we will refer to the commission’s reason for denying Kelley’s application as the insufficient area of dry land within the open space proposal, rather than the industrial or residential location of the open space.
See footnote 5.
Kelley also contends that the trial court improperly held that a due process claim under the state constitution must meet the strict threshold requirement of a “protected property interest” as that requirement is defined by the “clear entitlement” test adopted by the United States Court of Appeals for the Second Circuit and this court for federal due process claims. See RRI Realty Corporation v. Incorporated Village of Southampton, 870 F.2d 911, 918 (2d Cir.) (to state a prima facie federal due process claim in a land regulation case, the plaintiff must establish a constitutionally protected property interest in approval of the application at issue by demonstrating a “clear entitlement” to approval, or a certainty or very strong likelihood of approval), cert. denied, 493 U.S. 893, 110 S. Ct. 240, 107 L. Ed. 2d 191 (1989); Carr v. Bridgewater, 224 Conn. 44, 51-52, 616 A.2d 257 (1992) (same). Kelley argues that the test for measuring the existence of a protected property interest under the state constitution should be broader than the federal standard. Specifically, Kelley urges a standard under which the ownership of the property or the right to develop the property for legitimate uses would be sufficient to establish a constitutionally protected property interest. See, e.g., Del Monte Dunes v. Monterey, 920 F.2d 1496, 1508 (9th Cir. 1990) (assuming that the plaintiff’s ownership of the subject property constituted a constitutionally protected property interest); Bello v. Walker, 840 F.2d 1124, 1127-30 (3d Cir.) (same), cert. denied, 488 U.S. 851, 109 S. Ct. 134, 102 L. Ed. 2d 107 (1988).
The defendants assert, however, that the trial court did not decide that the “clear entitlement” test applies in state constitutional due process claims, but merely assumed, because of a concession by Kelley, that the federal standard applied. Moreover, the defendants claim, as to the merits of Kelley’s argument, that the federal “clear entitlement” standard is appropriate under the state constitution because of the similarity of the state and federal constitutional due process provisions.
We need not, however, resolve the parties’ dispute as to either the trial court’s decision on this issue or the appropriate standard by which to assess a claimant’s property interest, in light of our holding that the alleged violation of Kelley’s state constitutional due process rights may not be redressed through a cause of action for damages. The issue regarding the existence of a damages cause of action analytically precedes the issue regarding whether a particular claimant has successfully asserted that cause of action.
Because we affirm the trial court on the grounds on which that court relied, we need not address the defendants’ alternative grounds for affir
Kelley also claims that the trial court’s summary resolution of the issue of whether he possessed a property interest protected under the federal constitution was improper because that issue requires a factual inquiry into the nature of Kelley’s application and the context in which the commission acted on that application. As we held in Red Maple Properties v. Zoning Commission, 222 Conn. 730, 740, 610 A.2d 1238 (1992), however, “the question of whether [a land use] applicant has a property interest is normally a matter of law.” Accordingly, the trial court’s summary resolution of that issue was proper.
Although both the Second Circuit and this court have applied the “clear entitlement” test primarily in cases involving substantive due process claims; see, e.g., RRI Realty Corporation v. Incorporated Village of Southampton, 870 F.2d 911, 916-17 (2d Cir.), cert. denied, 493 U.S. 893, 110 S. Ct. 240, 107 L. Ed. 2d 191 (1989); Red Maple Properties v. Zoning Commission, 222 Conn. 730, 739, 610 A.2d 1238 (1992); that test applies with equal force in procedural due process cases. Indeed, the United States Supreme Court case in which the “clear entitlement” test originated is Board of Regents v. Roth, 408 U.S. 564, 576-78, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972), a procedural due process case. Accordingly, we apply the “clear entitlement” test to Kelley’s federal substantive and procedural due process claims.
The full text of Lebanon Subdivision Regulation § 6.8 provides:
“A. Dedication—The Commission may require dedication of land as open space, parks and playgrounds in a subdivision when it deems that such land will conserve natural or scenic resources; protect natural streams, marshes, and groundwater tables; supplement existing open space and recreational areas; meet recreational needs of present and projected population in the area; save historic sites, wildlife sanctuaries, and outstanding forests; preserve ridges, ravines, ledge outcroppings, and other unusual physical features; or promote orderly community development.
“B. Area—The minimum area of open space shall be 10% of the total area of the land to be subdivided whether or not it is to be so subdivided entirely
“C. Standards—Such open space shall have access from a public street, with such access at least 20 [feet] wide and having a maximum grade of 15%, or shall abut existing open space having such access. Any land to be dedicated as public open space shall be left in its natural state by the sub-divider, except for improvements as may be required by the Commission, and shall not be graded, cleared, or used as a repository for stumps, brush, earth, building materials, or debris. However, open space for parks and playgrounds shall be provided in a condition suitable for the purpose intended. The Commission may require such open space [to] be graded by the subdivider to properly dispose of surface water, that it be seeded with field grass, and that all brush and debris be removed. Such improvement of open spaces will not be required until subdivision is substantially completed.”
Although the defendants denied the allegation in Kelley’s second amended complaint that his subdivision application had “conformed in all respects with applicable regulations,” the commission did approve the application after Kelley’s successful administrative appeal. For the purpose of this appeal, we need not resolve the question whether the application did, in fact, conform to all applicable regulations other than the discretionary portion of the open space provision.
The relevant portion of Judge Walsh’s memorandum of decision states: “Nowhere in these regulations does it state than open space consist of only dry land nor does it state that the land to be dedicated be contained within a residentially zoned area. However, the defendant Commission contends section 6.8B which provides that the land must be such that it is ‘deemed appropriate by the Commission’ gives them broad discretion to deny plaintiff’s application. Denial of plaintiff Kelley’s application for subdivision on this basis is an arbitrary application of defendant Planning and Zoning Commission’s zoning regulations. . . .
“The section of the regulations allowing defendant Planning and Zoning Commission to determine whether open space land is appropriate is not reasonably precise nor sufficient to give ‘those affected by its decision notice of their rights and obligations.’ [Sowin Associates v. Planning & Zoning Commission, 23 Conn. App. 370, 376, 580 A.2d 91 (1990), cert. denied, 216 Conn. 832, 583 A.2d 131 (1991)]. The defendant Planning and Zoning Commission cannot use this part of the regulations to deny plaintiff’s application.”
The trial court interpreted Judge Walsh’s decision as invalidating § 6.8B of the Lebanon Subdivision Regulations.
The trial court in Sullivan v. Salem, 805 F.2d 81, 85 (2d Cir. 1986), had granted summary judgment in favor of the town. The Second Circuit,
Although we are not bound by decisions of the Second Circuit, they “are entitled to great weight in the interpretation of a federal statute,” such as 42 U.S.C. § 1983. (Internal quotation marks omitted.) Red Maple Properties v. Zoning Commission, 222 Conn. 730, 739 n.7, 610 A.2d 1238 (1992). Deference is particularly appropriate in this case, in which we analyze Kelley’s federal constitutional claim pursuant to a mode of analysis that derives from the Second Circuit.
The ordinance in question provided in relevant part: “ ‘In considering the approval of the Site Development Plan, the Planning Board shall take into consideration the public health, safety and general welfare, [and] the comfort and convenience of the public in general and the residents of the immediate neighborhood in particular . . . .’ ” Dean Tarry Corporation v. Friedlander, 826 F.2d 210, 213 n.1 (2d Cir. 1987).
We use the neutral term “recognize” to encompass both Kelley’s claim that we should acknowledge the existence of a common law damages action for constitutional violations and his quite different claim that we should create a damages cause of action by inferring it directly from article first, § 8, of the Connecticut constitution.
Article first, § 10, of the Connecticut constitution provides: “All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.” The current article first, § 10, originally appeared in article first, § 12, of the constitution of 1818.
Compare Widgeon v. Eastern Shore Hospital Center, 300 Md. 520, 526-27, 479 A.2d 921 (1984) (common law damages action against state officials existed for violation of rights akin to constitutional rights: “ ‘[t]he personal injury done to . . . [the plaintiff] was very small, so that if the jury had been confined by their oath to consider the mere personal injury only, perhaps 20 [pounds] damages would have been thought damages sufficient; but . . . they saw a magistrate over all the King’s subjects, exercising arbitrary power, violating Magna Charta, and attempting to destroy the liberty of the kingdom, by insisting upon the legality of this general warrant before them . . . the 29th chapter of Magna Charta . . . which is pointed against arbitrary power, was violated’ ”).
The statute in question provided in relevant part: “an act fob believing AND OEDEEING OF IDIOTS, IMPOTENT, DISTEACTED, AND IDLE PEE-SONS. . . . [Par.] 8. . . . [T]he Select-men for the Time being, in the several Towns in this State, shall from Time to Time, diligently inspect into the Affairs and Management of all Persons in their Town, whether Housholders or others; and if they shall find any Person or Persons that are reduced, or are likely to be reduced to Want by Idleness, Mismanagement, or bad Husbandry, that then such Select-men may appoint an Overseer to advise, direct, and order such Person in the Management of his Business, for such Time or Times as they shall think proper: A Certificate of which Appointment the Select-men shall forthwith set upon the Sign-Post, and lodge a
The parties appear to assume that this court has the power to infer a cause of action for damages directly from the due process provision of the state constitution. For the purpose of this appeal, we will make the same assumption. Cf., e.g., Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 480, 427 A.2d 385 (1980) (recognizing tort of wrongful discharge); Urban v. Hartford Gas Co., 139 Conn. 301, 307, 93 A.2d 292 (1952) (recognizing torts of intentional and negligent infliction of emotional distress); see generally Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 402-406, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971) (Harlan, J., concurring) (discussing the federal courts’ power to create a damages cause of action for an alleged violation of fourth amendment rights); 4 Restatement (Second), Torts § 874A, and comment (a) (1979) (“[w]hen a legislative provision [including constitutional provisions] protects a class of persons by proscribing or requiring certain conduct but does not provide a civil remedy for the violation, the court may, if it determines that the remedy is appropriate in furtherance of the purpose of the legislation and needed to assure effectiveness of the provision, accord to an injured member of the class a right of action, using a suitable existing tort action or a new cause of action analogous to an existing tort action”).
The New Hampshire court’s decision also relied on the limited municipal and official immunity of the defendants, who were the town and its selectmen. Rockhouse Mountain Property Owners Assn. v. Conway, 127 N.H. 593, 599-600, 503 A.2d 1385 (1986).
General Statutes § 31-51q provides: “liability of employer for discipline OR DISCHARGE OF EMPLOYEE ON ACCOUNT OF EMPLOYEE’S EXERCISE OF certain constitutional rights. Any employer, including the state and any instrumentality or political subdivision thereof, who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or section 3, 4 or 14 of article first of the constitution of the state, provided such activity does not substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer, shall be liable to such employee for damages caused by such discipline or discharge, including punitive damages, and for reasonable attorney’s fees as part of the costs of any such action for damages. If the court determines that such action for damages was brought without substantial justification, the court may award costs and reasonable attorney’s fees to the employer.”
General Statutes § 8-8 provides in relevant part: “appeal from board TO COURT. REVIEW BY APPELLATE COURT. . . .
“(b) . . . any person aggrieved by any decision of a board may take an appeal to the superior court for the judicial district in which the municipality is located.”
“This court has long recognized a cause of action for tortious interference with contract rights or other business relations. . . . [F]or a plaintiff successfully to prosecute such an action it must prove that the
Although the cited cases involve actions against private parties, we can discern no reason not to allow the tort of intentional interference with business expectancy to be maintained against public officials as well. Several of our cases in fact suggest that such an action would lie. See, e.g., Tamm v. Burns, 222 Conn. 280, 285, 610 A.2d 590 (1992) (rejecting the plaintiff’s claim that state had taken the plaintiff’s property in the constitutional sense, but suggesting that the plaintiff’s allegations may “support a claim of nuisance or some other sort of tortious interference by the state”); Multi-Service Contractors, Inc. v. Vernon, 193 Conn. 446, 450-52, 477 A.2d 653 (1984) (upholding trial court’s grant of summary judgment in favor of the defendants, who were members of the permanent municipal building committee of the town of Vernon, on the plaintiff’s claim of tortious interference with contract because the plaintiff had failed to allege sufficient facts on the issue of the defendants’ bad faith, but implying that claim would have gone forward if sufficient facts had been alleged); see also Cabinet Realty, Inc. v. Planning & Zoning Commission, 37 Conn. App. 344, 347, 552 A.2d 1218, cert. denied, 210 Conn. 813, 556 A.2d 610 (1989) (jury rendered verdict in favor of the defendants, who were, inter alia, individual members of the Lebanon planning and zoning commission, on the plaintiff’s claim of tortious interference with business relations; that verdict not challenged on appeal).
By contrast, the tort of intentional interference with business expectancy, which may be available to parties like Kelley, requires the plaintiff to establish the bad faith, malice or improper motive of the defendant. See, e.g., Robert S. Weiss & Associates, Inc. v. Wiederlight, 208 Conn. 525, 535-36, 546 A.2d 216 (1988). One could avoid liability under this tort by not acting maliciously or in bad faith. This subjective standard is one to which laypersons can conform their conduct without knowing the contours of constitutional due process protections.
Dissenting Opinion
dissenting. Although I agree with parts I and IIA of the majority opinion, I disagree with part IIB. I would infer a Bivens-type cause of action; Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971); under our state constitutional due process clause. Accordingly, I dissent from the ultimate determination of the case by the majority.
Second, I would hold that the ownership of property or the right to develop it for legitimate uses is sufficient to establish a constitutionally protected property interest under our own constitution. Both the Ninth and the Third Circuit Courts of Appeal; see Del Monte Dunes v. Monterey, 920 F.2d 1496, 1508 (9th Cir. 1990); Bello v. Walker, 840 F.2d 1124, 1127-30 (3d Cir.), cert. denied, 488 U.S. 851, 109 S. Ct. 134, 102 L. Ed. 2d 107 (1988); explicitly use this standard under the federal due process clause, as opposed to the Second Circuit’s and our concomitant, more restrictive standard under the federal constitution. See Carr v. Bridgewater, 224 Conn. 44, 51-52, 616 A.2d 257 (1992).
The more restrictive standard under the federal constitution, employed by the Second Circuit and by Connecticut in the interest of uniformity within this Circuit, is based on considerations that are not present in this case, namely, the notions of federalism and comity, under which the federal courts are reluctant to become federal overseers of the state land use planning process, in 42 U.S.C. § 1983 cases stemming from local land use planning controversies. See RRI Realty Corporation v. Incorporated Village of Southampton, 870
Against this background, I turn to the cause of action asserted in this case. The complaint explicitly alleges, in some detail, that the plaintiffs “subdivision application conformed in all respects with applicable regulations.” It then alleges that “the defendants intentionally, knowingly, and arbitrarily abused their governmental authority as members of a public agency with jurisdiction over land use to obstruct and delay [the plaintiffs] development of the . . . property” in ten specified ways. These ten ways included such conduct as: “misleading Kelley and his attorney about the date of newspaper publication of the Commission’s denial, for the purpose of preventing Kelley from exercising his appeal rights”; “intentionally failing to follow clearly-settled legal obligations to” judge his application on the proper basis; intentionally failing to provide him with fundamental fairness at hearings; and intentionally failing to review his application materials before acting on them.
For the purposes of this appeal, these allegations are unchallenged. The defendants did not move to strike the complaint for insufficiency of these allegations. The principal claim involved in this case, and the gravamen of the trial court's summary judgment in favor of the
I would apply the same factors that informed the original Bivens analysis: (1) the inadequacy or absence of an alternative remedy; (2) the absence of explicit direction from the legislature that no damages remedy should lie; and (3) the absence of any special factors counselling hesitation. In this connection, 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.
Applying these factors, I reach a different conclusion from that of the majority opinion. The gist of the argument of the majority opinion is that “we should not construe our state constitution to provide a basis for the recognition of a private damages action for injuries for
The harm occasioned by the defendants’ intentional and knowing abuse of their official positions was the obstruction and delay of the plaintiff’s project, so that by the time his rights to the permit were vindicated on appeal the project was no longer viable. Indeed, the plaintiff claims that, as a result of that delay, the banks that had loaned him money to finance the project began foreclosure proceedings and, in lieu of foreclosure, the plaintiff was forced to deed the property to the banks. The legislative remedy of a zoning appeal is not an adequate alternative to redress by an action for damages for the kind of conduct alleged here, because that remedy does not address the harm intended and caused by that conduct.
One need not be an expert in real estate development to know that one of the best ways to kill such a development is to delay its implementation in the hopes that, by the passage of time, it will no longer be viable when it is finally approved. That hope, it seems to me, is a fair inference provable under the uncontested allegations of the defendants’ motives and actions in this case. See Westport Bank & Trust v. Corcoran, Mallin & Aresco, 221 Conn. 490, 495, 605 A.2d 862 (1992) (we read pleadings to encompass, not only the specific facts alleged, but all facts fairly provable under them). Nor is it an answer to this argument that such a delay would be inherent in a good faith denial of a subdivision application, rather than a bad faith and malicious denial. Constitutionally, it is one thing for a citizen, in order
I am not persuaded, moreover, at least not without a lot more research and authority than the opinion provides, that an action for tortious interference with a business expectancy supplies such an adequate remedy. It is far from clear to me that the plaintiff would have had such a claim against these public officials. The case cited by the majority, Blake v. Levy, 191 Conn. 257, 260, 464 A.2d 52 (1983), is not an action against a public official.
The second Bivens factor is the question of whether there has been explicit legislative direction that no such action should lie. It seems clear to me that there has been no such explicit direction.
I disagree, also, with the policy argument made by the majority. The argument is twofold: (1) exposure to liability on the part of local, lay zoning commission members would chill the zeal with which they perform their duties; and (2) the availability of a Bivens-type action would encourage disappointed applicants to sue whenever an application is denied, with deleterious financial effects on the towns, commission members and the courts.
I do not underestimate the potential chilling effect, but I think that the argument is overstated. The same officials are already subject to suit under 42 U.S.C. § 1983, although, as I acknowledge previously, a higher threshold must be mounted for the plaintiff to succeed. Furthermore, other local officials are clearly subject to similar federal civil right actions, both in federal
Furthermore, I believe that the chilling effect would be “warmed” by a requirement that either: (1) the plaintiff allege and prove malice; or (2) the defendants be entitled to a defense of qualified immunity. See, e.g., DeLaurentis v. New Haven, supra, 243 (“ ‘[t]he presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties’ ”). Moreover, what the majority opinion regards as having a chilling effect is not an unmitigated disaster. It also has the beneficial effect of discouraging out-of-control local officials, as the defendants are alleged to have been here, from abusing their power at the expense of one of their citizenry.
I also think that the “litigation floodgates” argument is overstated. No doubt, there would be more suits than there are now under federal § 1983. But these are, I suspect, expensive cases to litigate and difficult cases to win, particularly with qualified immunity available as a defense. Those difficulties will act as something of a dike against the feared flood of litigation. More significantly, what I propose here is essentially already available in the states following the decisons of the Ninth and Third Circuit Courts of Appeal, and I am not aware of any flood of litigation in the state courts in those parts of the country.
I also disagree with the suggestion of the majority that a dispute like this should be resolved through
I recognize that we have no right to expect, in our democratic society, that our local public officials will never make mistakes—even terrible ones—in the performance of their duties. We do have the right, however, to expect that they will not use their positions of authority—even if unpaid and difficult, as are the positions of the defendants in this case—to work against us for malicious motives. I believe that our constitutional due process clause is robust enough to offer a remedy for such conduct, and that our honest local citizens are staunch enough that they will continue to perform their duties in good faith even though someone might later claim, baselessly, that they acted as alleged in this case. I would hold that, if a property owner has been victimized as alleged in this case, our state constitutional due process clause does provide a direct remedy by way of an action for damages.
I would also caution, however, that the source of this decision is the conclusion that the legislature has not supplied an adequate alternative remedy. The fact that we infer a remedy from the due process clause, based upon that inadequacy, necessarily also implies that the legislature can still enter the field and supply such a legislative remedy that would supplant this judicially inferred remedy.
Had the legislature, for example, already enacted a specific statutory remedy aimed at this kind of public conduct—or enacted a more general statute that, as properly applied, supplied a reasonably adequate alternate remedy to a direct action under our due process clause—I would agree with the conclusion reached by
If, on the other hand, such an action does lie, that undermines the majority’s policy argument that recognition of this cause of action will chill the officials’ zeal to perform their duties. In any event, it seems to me that the question is uncertain enough so as not to be determinative of the issue in this case.
I would be willing, however, to be persuaded otherwise if there were such evidence available.
Concurrence in Part
concurring in part and dissenting in part. I agree with the majority that the plaintiff has failed to establish a protected property interest in the approval of his subdivision application and therefore has not met the threshold requirement of a federal due process claim under the Second Circuit Court of Appeals’ “clear entitlement” test, adopted by this court in Red Maple Properties v. Zoning Commission, 222 Conn. 730, 738, 610 A.2d 1238 (1992).
Nevertheless, the plaintiff clearly alleged the violation of his due process rights under the state constitution. We recognize that “[i]n the area of fundamental civil liberties—which includes all protections of the declaration of rights contained in article first of the Connecticut constitution—we sit as a court of last resort, subject only to the qualification that our interpretations may not restrict the guarantees accorded the national citizenry under the federal charter. In such constitutional adjudication, our first referent is Connecticut law and the full panoply of rights Connecticut residents have come to expect as their due. Accordingly, decisions of the United States Supreme Court defining fundamental rights are persuasive authority to be afforded respectful consideration, but they are to be followed
Accordingly, although we defer to the Second Circuit by using the “clear entitlement test” in cases involving the application of federal law;
It is clear to me that when the government violates an individual’s state constitutional right, that individual should be made whole. Otherwise, the right would be an empty and meaningless one. “To say that govern
It should not be surprising that damages are available to a person whose state constitutional rights have been violated. Long before the adoption of our constitution of 1818, violations of fundamental rights were redressed by civil action for damages. The parties involved in obtaining, issuing and executing an illegal warrant, for instance, were liable in an action for damages based upon trespass. “If a warrant be granted, which is against law, such as no magistrate or justice of the peace should issue, the magistrate granting it, the officer executing it, and the party obtaining it, are liable in an action of trespass.” 1 Z. Swift, Digest of the Laws of the State of Connecticut (1822) p. 495; see also Grumon v. Raymond, 1 Conn. 39, 44 (1814). Likewise, selectmen who wrongfully and illegally appointed an overseer over the plaintiff without just or legal cause were liable for damages. Johnson v. Stanley, 1 Root
I agree with the majority, however, that a private action for damages is not available for state constitutional violations when “the legislature has provided a reasonably adequate statutory remedy.” In many cases, the right to appeal provided in General Statutes § 8-8 is adequate to protect the property owner from arbitrary and capricious action on the part of government in a land use case. If the legislature has not provided a remedy or if the remedy is not reasonably adequate, however, in view of the facts of a particular case, a private cause of action is constitutionally available to right the wrong.
In this case, given the egregious allegations outlined by Justice Borden in his dissent, the right to appeal pursuant to § 8-8 did not provide an adequate remedy. The appeal resulted merely in the reversal of the Lebanon planning and zoning commission; it did nothing to remedy the harm caused by the defendant’s intentional and arbitrary abuse of government authority “to obstruct and delay [the plaintiff’s] development of the . . . property.”
The majority expresses concern about protecting citizens who serve as members of local zoning boards and commissions. I recently expressed this same concern in Carr v. Bridgewater, 224 Conn. 44, 61, 616 A.2d 257 (1992) (Berdon, J., concurring), as follows: “We depend heavily upon citizen participation in state and town boards and commissions. This is particularly true in the regulation of land use, which is of the utmost importance not only for a town’s orderly development, but also for the protection of our environment. Our legislature has delegated this regulation to the towns.
In view of this need for balance, I believe that public policy requires us to insulate public servants with a qualified immunity, the contours of which are set out in Harlow v. Fitzgerald, 457 U.S. 800, 813-14, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). “[GJovernment officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id., 818. Whether there is qualified immunity is generally a question for the court rather than a jury. Hughes v. Meyer, 880 F.2d 967, 969 (7th Cir. 1989), cert. denied sub nom. Hughes v. Buss, 495 U.S. 931, 110 S. Ct. 2172, 109 L. Ed. 2d 501 (1990).
“Reliance on the objective reasonableness of an official’s conduct, as measured by reference to clearly
In Harlow, however, the court went on to state: “By defining the limits of qualified immunity essentially in objective terms, we provide no license to lawless conduct. The public interest in deterrence of unlawful conduct and in compensation of victims remains protected by a test that focuses on the objective legal reasonableness of an official’s acts. Where an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate; and a person who suffers injury caused by such conduct may have a cause of action. But where an official’s duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken ‘with independence and without fear of consequences.’ ” Id., 819.
In Red Maple Properties v. Zoning Commission, 222 Conn. 730, 739 n.7, 610 A.2d 1238 (1992), we gave deference to the “entitlement theory” only because we are within the Second Circuit. “In deciding to adopt the analysis of the Second Circuit Court of Appeals, we recognize that ‘[t]he decisions of the federal circuit in which a state court is located are entitled to great weight in the interpretation of a federal statute. This is particularly true in 42 U.S.C. § 1983 cases, where the federal statute confers concurrent jurisdiction on the federal and state courts. It would be a bizarre result if this court [adopted the ‘arbitrary and capricious’ analysis] when in another courthouse, a few blocks away, the federal court, being bound by the Second Circuit rule, required [the ‘Roth entitlement test’] [Board of Regents v. Roth, 408 U.S. 564, 576-78, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972)].” Id.
