Doe v. Hartford Roman Catholic Diocesan Corp. ( 2015 )

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DOE v. HARTFORD ROMAN CATHOLIC DIOCESAN CORP.—
CONCURRENCE
ZARELLA, J., concurring. I generally agree with the
majority’s analysis, and I concur in the result that the
majority reaches. I write separately, however, because
I believe that the framework for analyzing state consti-
tutional claims announced in State v. Geisler, 222 Conn.
672, 684–85, 610 A.2d 1225 (1992), requires modifica-
tion. In my view, when interpreting our state constitu-
tion, we generally should examine only the text of the
constitution, the historical circumstances surrounding
its adoption, and Connecticut case law to the extent that
each is applicable. The other factors of consideration
announced in Geisler, namely, federal case law, sister
state case law, and sociological and economic consider-
ations, do not shed any light on the meaning of our
constitution except in certain, rare instances. Although
I recognize that this court has analyzed state constitu-
tional claims under Geisler for years, I believe that
Geisler was overly expansive insofar as it listed factors
of consideration that are wholly unrelated to our state’s
constitutional history and traditions. Accordingly, I
respectfully concur.
In determining the appropriate method of constitu-
tional interpretation, we must recognize that our consti-
tution begins with a declaration that it comprises a
‘‘social compact’’ among the people of Connecticut.
Conn. Const., art. I, § 1. This notion of a social compact
has a long-standing history both in our jurisprudence;
see Opinion of the Judges of the Supreme Court, 30
Conn. 591, 593 (1862) (‘‘[t]he constitution of the state
. . . embodies [the] supreme original will [of the peo-
ple], in respect to the organization and perpetuation of
a state government’’ [emphasis in original]); and the
concept of constitutional government generally. See,
e.g., J. Locke, Two Treatises of Government (1821)
§ 171, p. 338 (‘‘[political] power . . . has its origin only
from compact and agreement, and the mutual consent
of those who make up the community’’ [emphasis omit-
ted]); T. Paine, Rights of Man: Being an Answer to Mr.
Burke’s Attack on the French Revolution (2d Ed. 1791)
p. 36 (‘‘[t]he constitution of a country is not the act of
its government, but of the people constituting a govern-
ment’’); see also G. Tarr, Understanding State Constitu-
tions (1998) p. 200 (‘‘in interpreting a state constitution,
a state court is interpreting a unique collection of provi-
sions with a distinctive generating history’’); cf. Calder
v. Bull, 3 U.S. (3 Dall.) 386, 388, 1 L. Ed. 648 (1798)
(‘‘The people of the United States erected their [c]onsti-
tutions, or forms of government, to establish justice, to
promote the general welfare, to secure the blessings of
liberty; and to protect their persons and property from
violence. The purposes for which men enter into society
will determine the nature and terms of the social com-
pact . . . .’’ [Emphasis omitted.]).
With the understanding that our state constitution is
a social compact between the citizens of Connecticut,
it becomes clear that we must interpret the state consti-
tution by focusing on considerations and concerns of
those who came together to form the social compact.
Our charge as a court is to determine what powers
those who entered into the compact wished to delegate
to their government and what rights and privileges they
wished to reserve for themselves. Cf. Bridgeport Public
Library & Reading Room v. Burroughs Home, 85 Conn.
309, 319, 82 A. 582 (1912) (‘‘our [c]onstitution is to be
construed as a grant and not as a limitation of power’’).
Accordingly, when interpreting the state constitution,
our principal focus should be on ascertaining the intent
of the framers as reflected in the text of the constitution,
any instructive history, and Connecticut precedent.
Conversely, we rarely should consider the three Geisler
factors that are unrelated to our constitution, namely,
sister state case law, federal case law, and sociological
and economic concerns, because they generally cannot
shed light on the social compact formed by the people
of Connecticut. To further explain why consideration
of these factors is inappropriate, I now address each
in turn.
With respect to sister state case law, I fail to see
why we should consider other courts’ interpretations
of other state constitutions to interpret our constitution
in the absence of a specific connection to our constitu-
tion and its history. For instance, interpretations of
constitutions such as Wyoming’s, which was adopted
in 1890; Stogner v. State, 792 P.2d 1358, 1360 (Wyo.
1990); rarely will be helpful in interpreting a provision
originally adopted in our 1818 constitution. On the other
hand, interpretations of the Mississippi constitution
may be helpful because ‘‘[t]he declaration of rights
adopted in 1818 appears to have its antecedents in the
Mississippi constitution of 1817 . . . .’’ (Internal quota-
tion marks omitted.) State v. Williams, 311 Conn. 626,
634, 88 A.3d 534 (2014). Likewise, interpretations of
other states’ constitutions may be of some small weight
in our interpretation of a constitutional provision added
at our 1965 constitutional convention if there is evi-
dence that the delegates and voters considered a coter-
minous provision of another state’s constitution in
adopting the Connecticut provision. Additionally, the
legislative history of amendments not adopted at a con-
vention, which may refer to decisional law of another
state, may be helpful in determining their meaning and
scope. We should not, however, indiscriminately con-
sider sister state case law because our object is to
interpret Connecticut’s constitution, not to conform it
to some national consensus.
With respect to federal case law, the same principles
apply. Because the federal constitution was drafted
prior to Connecticut’s first constitution, federal prece-
dent interpreting the federal constitution may be helpful
in interpreting our constitution if there is historical or
textual evidence that a certain provision of our constitu-
tion was patterned after a provision in the federal con-
stitution. See, e.g., State v. Davis, 283 Conn. 280,
306–307, 929 A.2d 278 (2007) (‘‘[T]his court repeatedly
has observed that the language of article first, § 7, of
the state constitution closely resembles the language
of the fourth amendment to the federal constitution.
. . . That linguistic similarity undermines the defen-
dant’s contention that the state constitution provides a
greater opportunity to challenge the legality of a search
than the federal constitution. The similarity denotes ‘a
common source and, thus, [supports] a common inter-
pretation of the provisions.’ ’’ [Citations omitted; foot-
note omitted.]). The fact that the framers of our first
constitution did not adopt the federal constitution
wholesale but, instead, drafted a unique text suggests
that the differences between our constitution and the
federal constitution were intentional and should be
given their due weight. Thus, I believe that interpreta-
tions of the federal constitution may be instructive only
insofar as there is a specific connection between the
federal constitution and our state constitution.
With respect to the final Geisler factor, sociological
and economic concerns, this factor apparently was
intended to allow this court to independently review
the economic and sociological impact of a given statute
or program. See State v. Geisler, supra, 222 Conn. 685,
citing State v. Jewett, 146 Vt. 221, 500 A.2d 233 (1985).
At the very least, that is how we have analyzed this
factor in applying Geisler. See, e.g., Connecticut Coali-
tion for Justice in Education Funding, Inc. v. Rell, 295
Conn. 240, 310–14, 990 A.2d 206 (2010) (interpreting
article eighth, § 1, of state constitution by considering
statistics regarding economic and sociological impact
of secondary and higher education).
I do not believe that such considerations ever can
be an appropriate tool of constitutional analysis, aside
from historical considerations of public policies consid-
ered by the framers of our constitution. To suggest that
we should interpret the state constitution according to
our own assessment of the public policy implications
of a statute or program is antithetical to our role as a
judicial body. Indeed, prior to Geisler, we stated that
‘‘the primary responsibility for formulating public policy
must remain with the legislature.’’ State v. Whiteman,
204 Conn. 98, 103, 526 A.2d 869 (1987); see also Cologne
v. Westfarms Associates, 192 Conn. 48, 65, 469 A.2d
1201 (1984) (‘‘It is not the role of this court to strike
precise balances among the fluctuating interests of
competing private groups which then become rigidified
in the granite of constitutional adjudication. That func-
tion has traditionally been performed by the legislature,
which has far greater competence and flexibility to deal
with the myriad complications which may arise from
the exercise of constitutional rights by some in diminu-
tion of those of others.’’). Thus, we come dangerously
close to usurping the role of the legislature when we
independently analyze the public policy implications of
a statute to determine its constitutionality. Accordingly,
public policy considerations should play no role in our
interpretation of the state constitution.1
In the present case, the majority considers all six
Geisler factors in its analysis and concludes that each
supports the position of the plaintiff, Jacob Doe, except
for the text of the state constitution, which the majority
concludes is neutral. As previously discussed, I believe
that it is unnecessary to consider the three Geisler
factors that are unrelated to Connecticut in interpreting
the Connecticut constitution. I agree, however, that
Connecticut’s case law and constitutional history sup-
port the plaintiff’s interpretation. I also agree that the
text of the state constitution supports neither party but
for a different reason than the majority’s.
The majority concludes that the text of our constitu-
tion supports neither party because the language in
article first, §§ 8 and 10, of the state constitution is ‘‘at
best ambiguous with respect to the constitutional issue
presented in this appeal.’’ In my view, the focus of
our textual analysis should be on the constitutional
language that specifically pertains to the claim of the
defendant, Hartford Roman Catholic Diocesan Corpora-
tion, namely, the term ‘‘property.’’ The basis of the
defendant’s claim is that it has a vested right to a legal
defense under a lapsed statute of limitations that
amounts to a property interest. There is no question
that the constitution protects individuals from govern-
mental interference with their property interests, as
article first, § 8, provides in relevant part that ‘‘[n]o
person shall be . . . deprived of life, liberty or property
without due process of law . . . .’’ (Emphasis added.)
Thus, there is some basis for the defendant’s claim in the
text of the constitution insofar as it generally protects
private property.
This language, however, is not determinative.
‘‘Because the [c]onstitution protects rather than creates
property interests, the existence of a property interest
is determined by reference to existing rules or under-
standings that stem from an independent source such
as state law.’’ (Internal quotation marks omitted.) A.
Gallo & Co. v. Commissioner of Environmental Protec-
tion, 309 Conn. 810, 824, 73 A.3d 693 (2013), cert. denied
sub nom. A. Gallo & Co. v. Esty, U.S. , 134 S.
Ct. 1540, 188 L. Ed. 2d 581 (2014); see also Giaimo v.
New Haven, 257 Conn. 481, 499, 778 A.2d 33 (2001)
(‘‘Property interests . . . are not created by the [c]on-
stitution. Rather, they are created and their dimensions
are defined by existing rules or understandings that
stem from an independent source such as state law.’’
[Internal quotation marks omitted.]). Accordingly, we
must refer to sources beyond the text of the constitution
to determine whether a statute of limitations defense
can, as the defendant claims, constitute a vested prop-
erty interest.
Specifically, we must turn to the historical circum-
stances surrounding the adoption of our constitution
because, ‘‘[i]f the words [of the state constitution] have
a doubtful meaning, or are susceptible of two meanings,
they should receive that which will effectuate the intent
of the framers of the [c]onstitution and the general
intent of the instrument.’’ (Internal quotation marks
omitted.) Cologne v. Westfarms Associates, supra, 192
Conn. 62, quoting Borino v. Lounsbury, 86 Conn. 622,
625, 86 A. 597 (1913). As previously stated, I agree with
the majority that our constitutional history provides no
support for the defendant’s claim, as the legislature
passed a resolution prior to 1818 that allowed a couple
to appeal from an adverse ruling of the Probate Court
even though the applicable limitation period for appeals
had lapsed, thereby divesting certain individuals of a
legal defense under a lapsed statute of limitations. See
Calder v. Bull, supra, 3 U.S. (3 Dall.) 386–87 (discussing
1795 resolution). On the basis of this state history alone,
I would determine that a lapsed statute of limitations
does not give rise to a protected property interest and
that there is no need to resort to federal case law, sister
state case law, or sociological and economic considera-
tions. Thus, I agree with the majority that our state
constitution affords no greater protection to the defen-
dant than does the federal constitution.
For the foregoing reasons, I concur.
1
I note, however, that the majority’s analysis of this Geisler factor in the
present case is internally inconsistent. Specifically, the majority purports
to undertake an independent review of the sociological and economic consid-
erations at stake, in accordance with Geisler, but then fails to do so. The
crux of the problem is the majority’s assertion that, when considering this
factor, ‘‘we must defer to the legislature’s ‘primary responsibility’ in pro-
nouncing the public policy of our state.’’ Text accompanying footnote 62
of the majority opinion. This is inconsistent with how we previously have
applied Geisler.
In reviewing constitutional claims, we certainly defer to the legislature
insofar as ‘‘a validly enacted statute carries with it a strong presumption of
constitutionality, [and] . . . those who challenge its constitutionality must
sustain the heavy burden of proving its unconstitutionality beyond a reason-
able doubt.’’ (Internal quotation marks omitted.) Kerrigan v. Commissioner
of Public Health, 289 Conn. 135, 155, 957 A.2d 407 (2008). We also defer
to the legislature, of course, whenever our state constitution specifically
delegates a matter of public policy to the legislature, such as the implementa-
tion of free elementary and secondary education; see Conn. Const., art. VIII,
§ 1; or the establishment of lower courts. See Conn. Const., art. V, § 1.
When interpreting the state constitution, however, we owe no such defer-
ence to the legislature. See State v. McCahill, 261 Conn. 492, 504, 811 A.2d
667 (2002) (‘‘[this court] . . . serve[s] as the body through which our state
laws will be measured against the Connecticut constitution’’), citing Pratt
v. Allen, 13 Conn. 119, 132 (1839). If we were to defer to the legislature
when considering the sociological and economic implications of a statute
under Geisler, as the majority suggests we must, then that factor always
would support the constitutionality of a statute. Thus, I disagree with the
majority’s suggestion that, ‘‘because of the actions of our legislature,’’ public
policy considerations under Geisler necessarily support a determination
that General Statutes § 52-577d is constitutional.