Palumbo v. MansonPalumbo v. Manson
- Reporters:
- , , ,
- Before:
- Satter
In this habeas corpus proceeding the plaintiff seeks his release from custody in the Hartford County Correctional Center after serving twelve days. He was originally confined on the levy of a body execution issued pursuant to
The judgment in favor of Summers against the plaintiff derives from a particularly vicious sexual assault. The decision in this proceeding does not, however, turn on the cause of action giving rise to the civil judgment hut, rather, turns solely upon the constitutionality of
The issue of the constitutionality of this precise statute was considered by a three-judge panel of the United States District Court in Abbit v. Bernier, 387 F. Sup. 57 (D. Conn.), and found by that court to he unconstitutional. Although the courts of this state give “due respect” to decisions of the United States District Court, such decisions are not con- *132 elusive as to the constitutionality of Connecticut law. State v. Menillo, 171 Conn. 141, 146. Moreover, Connecticut courts “will strive to interpret a statute so as to sustain its validity . . . .” State v. Menillo, supra, 145.
The District Court in
Abbit
rested its decision that
Abbit,
however, recognized that there is an obvious cure to the denial of equal protection inherent in
*133
The
Abbit
court’s finding as to the practice of the Connecticut court is incorrect. In fact, the Connecticut procedure is to require a court hearing before a court clerk will issue a body execution. More specifically, in the habeas corpus proceeding before this court, an assistant Superior Court clerk for Hartford County testified that the regular practice is to hold such a hearing. A hearing was held before a Superior Court judge prior to the issuance of the body execution against the plaintiff. Such a practice cures the facial uneonstitutionality of
A question legitimately arises, however, as to the meaningfulness of that hearing on the issue of the plaintiff’s ability to pay the judgment debt. No evidence was adduced at the hearing on that issue. The reason is that the
Abbit
case is confusing on whether the judgment creditor or the judgment debtor has the burden of proof on the indigency issue. At one point in the
Abbit
case the District Court stated (p. 62) that proof as to the lack of a debtor’s capacity to pay the debt is essential to the constitutionality of
As a consequence the attorney who represented the plaintiff at the time of the preincareeration hearing testified at this habeas corpus proceeding that he had specifically refrained at that hearing from introducing evidence on the plaintiff’s indigency because he had relied upon Abbit to the effect that he did not have the burden of proof. The attorney for the judgment creditor guessed that the District Court was wrong in requiring the judgment creditor to prove the judgment debtor’s indigency. Both counsel were drawn off-course in their trial strategy by Abbit.
This court determines that at a hearing on the issuance of a body execution, after the judgment debtor has been given due notice and has counsel, the judgment debtor has the burden to prove his lack of funds to pay the judgment debt and that it is not a violation of due process to require him to do so. If he wishes to avail himself of the defense of indigency, there is no affront to fair play to require him to establish the defense by evidence clearly within his knowledge. The burden should not fall on the judgment creditor to establish the negative predicate that the judgment debtor lacks funds. 2
*135 In this case because both the judgment creditor (Elaine Carol Summers) and the judgment debtor (the plaintiff) were misled by Ábbit, there was no meaningful preincarceration hearing on the issue of the plaintiff’s ability to pay the judgment debt. Moreover, the Superior Court judge at that hearing never made a finding on this critical issue.
In the habeas corpus proceeding this court required the indigency issue to be litigated. After hearing the parties, the court concludes that, in fact, the plaintiff did not prior to being jailed and does not now have the assets or the funds sufficient to pay the judgment debt. As a consequence, keeping him in jail would violate the equal protection clause of both the federal and state constitutions.
A word should be added about the provisions of the Connecticut statutes (§§ 18-56 — 18-58) which permit a debtor to be released from jail on taking a poor debtor’s oath. The petitioner chose in this case not to avail himself of those statutes because they do not provide an adequate remedy. He chose instead to bring this habeas corpus proceeding for his immediate release. Section 18-56 provides that the oath will not be administered until four days after the application is filed with a Superior Court judge and a hearing is held on the application. Section 18-56 further provides that the judgment debtor cannot even then be released from jail if the creditor gives to the jailer “immediate notice in writing that he intends within fifteen days thereafter, inclusive, to apply for a review, and deposits with the jailer such sum of money for a weekly maintenance as the community correctional center administrator may require in such cases.” Thus even taking the poor debtor’s oath can result in a substantial incarceration. Habeas corpus is a more efficacious remedy and in this case is justified.
*136 Based on the foregoing this court concludes that the plaintiff was jailed solely by reason of his indigency and his jailing is, as a result, unconstitutional. His release from custody is hereby ordered.
Notes
In this regard