64 CBJ 308. Open Courts and Vested Rights.

• Author: By ROBERT BYRON (fn*)

Connecticut Bar Journal

Volume 64.

64 CBJ 308.

Open Courts and Vested Rights

Open Courts and Vested RightsBy ROBERT BYRON (fn*)I. CONFUSION IN CONNECTICUT In 1988, the Connecticut Supreme Court ruled in three separate cases that a cause of action which existed in 1818 may not be abrogated. (fn1) The Court held and continues to hold that the Connecticut Constitution of 1818 incorporated all rights of action in force at its adoption, and that the Constitution, in effect, created a vested interest in those actions. This holding stands the concept of constitutional law on its head. It does not recognize the Connecticut Constitution to be a break from the past and the start of something new, but rather to be a kind of vacuum jar, in which are preserved all rights of action alive in 1818. There is a bug in the code of the logic used in these cases. It is the purpose of this article to examine the authorities, and to determine why the Connecticut Court has embraced a theory which most other courts have rejected.

In 1975, the Connecticut Supreme Court, in Gentile v. Altermatt, (fn2)held constitutional Connecticut's no-fault motor vehicle statute. But, in dictum, the Court opined that all rights which existed at the time of the Connecticut Constitution are immutable, pursuant to the open courts provision: "The adoption of Article First, Section 10, recognized all existing rights and removed from the power of the legislature the authority to abolish those rights in their entirety." (fn3)

This theory of non-abrogation lay dormant until Daily v. New Britain Machine Co. (fn4) In Daily, the Court held, again in dictum, that Gentile would have prevented the legislature from abolishing a products liability right of action at common law had it not provided a statutory alternative. But given the new remedy in the Droducts liability statute, the legislature was within its power to abolish the common law right.

With the 1988 cases, Gentile became a dynamic force. In these three cases, a primary issue was the right of access to the courts pursuant to the open courts provision, (fn5) which right was deemed contingent upon whether the cause of action existed in 1818.

Zapata v. Bums (fn6) arose from the collapse of the Mianus River Bridge in 1983. The defendant Commissioner of Transportation impleaded the architectural firm which designed the bridge. Summary judgment was entered for the firm pursuant to the statute of limitations in Connecticut General Statutes § 52-584a. The plaintiffs appealed, arguing in part that the statute violated Article First, Section 10. The Court rejected this argument because the injury - resulting from negligence by a party not in privity - was not a "recognized injury" in 1818. (fn7)

In Dubay v. Irish, (fn8)the Court ruled that the plaintiff child could not sue his parents because the attorneys for the child "presented no authority for the proposition that prior to 1818 a child had [a right of action against his parents]." (fn9) The Court further ruled that an injury would not necessarily give rise to a right of action unless 11 a right that existed ... prior to 1818 has been infringed upon or abolished." (fn10)

In Sharp v. Mitchell, (fn11) the plaintiffs brought an action for wrongful death. The Court entered summary judgment for the defendant and the plaintiffs appealed, claiming a violation of their right to a remedy under the open courts provision. The Court rejected his argument because wrongful death was not "a constitutionally incorporated right at the time of the Constitution of 1818." (fn12)

In Dubay, Sharp, and Zapata, the Connecticut Supreme Court ruled that if the cause of action existed in 1818, the open courts provision of the Connecticut Constitution proscribed its abrogation. These cases all rest on Gentile. (fn13) But upon what does Gentile rest? Not much: one Florida case, one equivocal C.J.S. entry, and one reference to a Connecticut Law Review footnote, 11 and cases cited therein." (fn14) To the very limited extent these references support a theory of non-abrogation, they labor against the weight of American jurisprudence, which holds that a state legislature "is entirely at liberty to create new rights or abolish old ones as long as no vested right is disturbed." (fn15)

The first authority cited for the holding in Gentile is Kluger v. White. (fn16) Kluger had deemed unconstitutional a statute which denied a right of action for auto property damage under $500. The Florida Supreme Court ruled this statute violated the open courts provision of the Florida Constitution.

Kluger was, on its face, equivocal. While it held that a cause of action which predated the Florida Constitution could not be abrogated, it did not prohibit all legislative change, and it cited with approval the abolition by the Florida legislature of the right of action for alienation of affection, criminal conversation, seduction and breach of promise. (fn17) Kluger appeared to propound a doctrine it honored in the breach.

However, subsequent decisions by the Florida courts have disregarded the equivocation, and the non-abrogation element of Kluger has become settled law in Florida. (fn18) But Kluger has not become authority for any other jurisdiction, except Connecticut. (fn19) Given the great weight Connecticut has put upon Kluger, it is well to examine its authorities.

For the proposition that the legislature may abolish a cause of action, Kluger cites Rotwein v. Gersten, (fn20) which decision approved the abolition of the actions for alienation of affection, among others. Rotwein held that the abolished actions had "no doubt served a good purpose," but had been abused. The legislature, therefore, was fully competent to "limit or abolish them." (fn21) Kluger had no problem with that proposition: "[Tlhe legislature showed the public necessity required for the total abolition of a right to sue." (fn22) In this vein, Kluger also approved Florida's guest statute, although Kluger stated, disingenuously, that the statute "did not abolish the right to sue. (fn23) But that is precisely what the statute did; it created "[a class of] persons deprived of remedy."(fn24)

Kluger offers no satisfactory rationale as to why it abandons prior Florida law. It merely rules that the legislature may not abolish a cause of action, and cites one authority, 16A C.J.S. Constitutional Law § 710 (1956). This section, referenced by both Kluger and Gentile, reads as follows: A constitutional provision insuring a certain remedy for all injuries or wrongs does not command continuation of a specific statutory remedy. However, in a jurisdiction wherein the constitutional guaranty applies to the legislature as well as to the judiciary ... it has been held that the guaranty precludes the repeal of a statute allowing a remedy where the statute was in force at the time of the adoption of the Constitution. Furthermore ... the guaranty also prevents, in some jurisdictions, the total abolition of a common law remedy. Even a constitutional provision empowering the legislature to repeal or alter any act giving the chancery court jurisdiction does not authorize the legislature to restrict jurisdiction to less than it was when the constitution vesting certain jurisdiction in a chancellor was adopted.

There are two problems in relying upon this section as authority for Kluger, Gentile, and non-abrogation. First, it is internally inconsistent. Initially it says that a provision such as an open courts provision "does not command continuation of a specific statutory remedy." Then it states that a common law remedy may not be abrogated in a jurisdiction where the open courts provision binds the legislature as well as the courts. But this begs the question of the applicability of constitutional guarantees in respect to the courts and the legislature. A constitutional provision which guarantees a specific remedy is different from a provision which commands courts to hear valid actions. This section does not explain how an open courts provision, standing alone, without a guaranty for a specific remedy in the Constitution, becomes a constitutional guaranty for all actions extant at the adoption of the Constitution. As to which branch a guaranty applies, the section offers no test, case law, or rationale. It disregards altogether the common sense conclusion that a state's open courts provision would apply, by definition, to the courts. The section offers no hint as to how this mandate to the courts translates into a stricture upon the legislature. It is an absolute non sequitur to say that because a Constitution mandates open courts, therefore a...