Opinion
No. CV-07-4006688
July 12, 2010
MEMORANDUM OF DECISION RE MOTION TO STRIKE FROM JURY LIST #136
FACTS
On February 19, 2010, the defendants, the Connecticut Technical High School System and the State Department of Education, filed a motion to strike this case from the jury list and a memorandum of law in support. On August 17, 2009, the plaintiff, Walter Moriarty, filed a "Memorandum of Law in Support of Jury Claim." This memorandum was in response to the defendants' original objection to the plaintiff's claim for a jury trial. The plaintiff's arguments with respect to the motion to strike are contained within this memorandum.
The court recognizes that, typically, the plaintiff would file an objection to the motion to strike from the jury list. In this case, however, the plaintiff's position is set forth in his original memorandum and the plaintiff argued this position at oral argument. The defendant responded to the plaintiff's arguments in their reply brief and at oral argument. The court will consider the plaintiff's brief pursuant to its case management authority, which "is an inherent power necessarily vested in trial courts to manage their own affairs in order to achieve the expeditious disposition of cases." (Internal quotation marks omitted.) Vertex v. Waterbury, 278 Conn. 557, 563-64, 898 A.2d 178 (2006).
The plaintiff alleges the following facts in his amended complaint. The plaintiff is a Caucasian, fifty-nine year old man. In October 2002, the plaintiff was hired by the defendants to work at Grasso Southeastern Technical High School (Grasso) as a part-time instructor. In 2005, the plaintiff applied for a full-time art instructor position at Grasso and was interviewed along with nine other candidates. The position was offered to a thirty-one-year-old Caucasian female. The defendants, acting through their agents and representatives, have discriminated against the plaintiff on the basis of his age and gender by rejecting him for the full-time position in favor of a younger and less experienced female candidate. On or about February 15, 2006, the plaintiff filed a timely charge of employment discrimination with the Connecticut Commission on Human Rights and Opportunities.
The plaintiff alleges that all conditions precedent to jurisdiction under the Connecticut Fair Employment Practices Act, General Statutes § 46a-60 et seq., have been satisfied. The plaintiff filed this action on December 19, 2006, and on July 24, 2009, the plaintiff filed a claim for the inventory of jury cases.
DISCUSSION
The defendants argue that the plaintiff's claim should be stricken from the jury docket because the claims are brought against the state of Connecticut and § 46a-60 does not provide the plaintiff with a right to a jury trial against the state. The defendants argue that the statute does not provide a right to a jury trial and, further, the principles of sovereign immunity prohibit a jury trial. In response, the plaintiff argues that General Statutes § 46a-100 has been interpreted by judges of the Superior Court as providing a right to a jury trial. Further, the plaintiff argues that the Connecticut Supreme Court has held that § 46a-100 expressly waives sovereign immunity and creates a cause of action in the Superior Court.
"Under article first, [ § ] 19, of the Connecticut constitution, as amended, `[t]he right of trial by jury shall remain inviolate.' We have consistently held that the scope of article first, [ § ]19, is defined by applying a historical test. The right to a jury trial may not be abrogated for causes of action that were triable to the jury prior to the constitution of 1818, and extent at the time of its adoption . . . Consequently, statutory actions established since the adoption of the constitution of 1818 ordinarily fall outside the scope of the provision, unless, perhaps, the new remedy constitutes a modification of existing remedies, so vital as to unduly limit and violate the right of trial by jury." (Citations omitted; internal quotation marks omitted.) Ford v. Blue Cross Blue Shield of Connecticut, Inc., 216 Conn. 40, 49-50, 578 A.2d 1054 (1990).
"Accordingly, in determining whether a party has a right to a trial by jury under the state constitution . . . the court must ascertain whether the action being tried is similar in nature to an action that could have been tried to a jury in 1818 when the state constitution was adopted. This test requires an inquiry as to whether the course of action has roots in the common law, and if so, whether the remedy involved was one in law or equity. If the action existed at common law and involved a legal remedy, the right to a jury trial exists and the legislature may not curtail that right either directly or indirectly . . .
"The historical test we apply is flexible and may require a jury in a new cause of action, not in existence in [1818], if it involves rights and remedies of the sort traditionally enforced in an action at law or if its nearest historical analogue is an action at common law . . . In determining whether an action existed at common law and involved a legal remedy, we look for guidance to Connecticut case law, to the common law of England and to federal and state jurisdictions that have considered the question." (Citation omitted; internal quotation marks omitted.) Evans v. General Motors Corp., 277 Conn. 496, 510, 893 A.2d 371 (2006).
I
The court first considers whether this action is similar in nature to an action that could have been tried to a jury in 1818. "There is a split of authority in the Superior Court on the issue of whether there is a right to a trial by jury in actions brought pursuant to . . . § 46a-100. In Stedman v. Konover [Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. CV 93 0457003 (December 6, 1994, Holzberg, J.) ( 13 Conn. L. Rptr. 79)] the plaintiff's action was brought against a private employer. The court determined that historical evidence `points to the conclusion that an action under [ § ]46a-100 is substantially similar to common law cause of action available in Connecticut prior to 1818.' Id. The court also determined that the statute specifically provides for legal relief. Id., citing § 46a-104. Based on these determinations, the court concluded that the test set forth in Skinner v. Angliker [ 211 Conn. 370, 376, 559 A.2d 701 (1989)], was satisfied and held that the plaintiff was entitled to a trial by jury. Id.
" Trantolo v. State [Superior Court, judicial district of Hartford, Docket No. CV 97 0569475 (June 8, 1999, Teller, J.) ( 25 Conn. L. Rptr. 19)], and Massey v. Connecticut Mental Health Center, Superior Court, judicial district of New Haven, Docket No. CV 96 0388542 (February 3, 1997, Silbert, J.) ( 19 Conn. L. Rptr. 89), involved actions in which the state of Connecticut was a defendant. In Massey v. Connecticut Mental Health Center, supra, 19 Conn. L. Rptr. 89, the court determined that there was no right to a jury trial in actions against the sovereign when the state constitution was adopted in 1818. Furthermore, the court noted that the right to a jury trial must be affirmatively expressed in statutes waiving sovereign immunity. Id., citing Canning v. Lensink, 221 Conn. 346, 354, 603 A.2d 1155 (1992), and Skinner v. Angliker, supra, 211 Conn. 381. Accordingly, the court held that there was not a right to a trial by jury. In Trantolo v. State, the court determined that the identical issue had been addressed in Massey v. Connecticut Mental Health Center and adopted the reasoning set forth therein. Trantolo v. State, supra, 25 Conn. L. Rptr. 19." Thayer v. Electro-Methods, Inc., Superior Court, judicial district of Hartford, Docket No. CV 04 0830647 (June 20, 2005, Booth, J.) [ 39 Conn. L. Rptr. 592].
In Skinner v. Angliker, supra, 211 Conn. 370, the Connecticut Supreme Court addressed the issue of whether a party was entitled to a jury trial in an action brought against the state pursuant to General Statutes § 31-51q. The Supreme Court found that "[a]lthough the absolute bar of actions against the state has been greatly modified both by statutes effectively consenting to suit in some instances as well as by judicial decisions in others . . . it was not until the enactment of [ § ]31-51q in 1983 that this bar was removed in suits against the state for wrongful discharge due to an employee's exercise of his or her first amendment rights. No principle of common law, prior to 1818, allowed actions against the state for wrongful discharge or related claims. Such actions, with or without a jury, simply did not exist against the state in 1818 . . ."We are not implying that the right to a jury trial does not exist in any cause of action that was not specifically recognized at common law in 1818. The historical test we apply is flexible and may require a jury in a new cause of action, not in existence in [1818], if it involves rights and remedies of the sort traditionally enforced in an action at law or if its nearest historical analogue is an action at common law . . . But this flexible approach does not mandate a jury in this case. The cases that have required jury trials for new causes of action have involved legislative enhancement or creation of rights and duties in circumstances where the common law enforced similar rights and duties . . . They did not involve removal or modification of blanket immunity, which creates enforceable rights and duties in circumstances where none existed before . . . Accordingly, to entitle one to a right to a jury trial, it is not enough that the nature of the plaintiff's action is `legal' rather than equitable; the action must also be brought against a defendant who was suable at common law in [1818] . . . Because the state was immune from suit in 1818 for this type of action, the plaintiff now has no right to a jury trial brought against the state under [ § ]31-51q." (Citations omitted; emphasis in original; internal quotation marks omitted.) Skinner v. Angliker, supra, 211 Conn. 377-78.
General Statutes § 31-51q provides: "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 attorneys 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 attorneys fees to the employer."
In the present case, the plaintiff alleges causes of action for discrimination and retaliation in violation of the Connecticut Fair Employment Practices Act. These claims are related to claims for wrongful discharge, as analyzed by the Supreme Court in Skinner. Thus, the principles of common law did not allow a plaintiff to maintain such claims against the state in 1818.
II
When an action could not be maintained under the common law in 1818, "the right to a jury trial . . . will exist only if the legislature . . . has made the right applicable." Id., 380. The court must next determine whether the legislature has provided the right to a jury trial in the statute itself.
To begin, the Supreme Court recently held that "§ 46a-100 represents an unambiguous waiver of sovereign immunity, authorizing actions against the state for alleged discriminatory employment practices in violation of § 46a-60." Lyon v. Jones, 291 Conn. 384, 397, 968 A.2d 416 (2009). In light of this holding, the plaintiff asserts that "[i]f the state can be sued under § 46a-100 and draw liability for the same legal damages under [General Statutes] § 46a-104 as a private employer, then, by necessary implication, it follows that, absent an express prohibition, sovereign immunity cannot act as a bar to the same rights afforded a plaintiff under the statute, such as the right to a jury trial." (Emphasis omitted.) Plaintiff's Memorandum of Law in Support of Jury Claim, 7.
In Duguay v. Hopkins, 191 Conn. 222, 226, 464 A.2d 45 (1983), the Connecticut Supreme Court faced a similar issue to that in Lyon, namely, whether General Statutes § 19a-24 "constitutes a waiver of sovereign immunity and permits persons injured at state training schools to bring action directly against the state of Connecticut by suing the commissioner of mental retardation without first obtaining permission from the commissioner of claims." The Supreme Court concluded that "that [ § ]19a-24 was intended by the legislature to apply to all civil actions against the commissioner of health and the commissioner of mental retardation or any member of their staffs. By its enactment the legislature has waived the sovereign immunity of the state in those cases to which the statute applies." Id., 232.
At the time Duguay was decided, § 19a-24(a) provided: "[a]ny civil action for damages on account of any official act or omission of the commissioner of health services or the commissioner of mental retardation or any member of their staffs . . . shall be brought against the commissioners in their official capacities and said commissioners shall be represented therein by the attorney general . . ." Duguay v. Hopkins, supra, 191 Conn. 226.
After determining that § 19a-24 represented a waiver of sovereign immunity, the Supreme Court faced the issue of whether § 19a-24 provided a right to a jury trial in Canning v. Lensink, supra, 221 Conn. 346. Concluding that there was no such right, the Supreme Court reasoned that "[s]ome statutory waivers of sovereign immunity enacted by the legislature expressly preclude a right of jury trial. See, e.g., General Statutes [ § ]4-61(a) (actions against the state on highway and public works contracts), and [General Statutes § ]4-160(e) (actions against the state authorized by the claims commissioner). One statute provides such a right explicitly. General Statutes [ § ]13a-144 (damages for injuries sustained on state highways or sidewalks). In the absence of such a specification, we have concluded that the legislature intended that the action should be tried without a jury. When the state, by statute, waives its immunity to suit, as it has in [ § ]19a-24, the right to a jury trial cannot be implied, but rather, must be affirmatively expressed . . . Since [ § ]19a-24 contains no indication of a legislative intention to provide a right of jury trial, we conclude that no such right exists in an action pursuant to the statute." (Citation omitted; internal quotation marks omitted.) Canning v. Lensink, supra, 221 Conn. 354. See also Skinner v. Angliker, supra, 211 Conn. 381 ("When the state, by statute, waives its immunity to suit, as it has in [General Statutes § ]31-51q, the right to a jury trial cannot be implied, but rather, must be affirmatively expressed . . . Neither [ § ]31-51q nor any other statute in Connecticut contains a specific provision for jury trials for wrongful discharge." (Citations omitted.)).
Thus, when the legislature waives sovereign immunity pursuant to a statute, it does not necessarily follow that a litigant bringing a cause of action under that statute has a right to a jury trial. The legislature must also affirmatively express the right to a jury trial in the statute. Without an explicit indication of the legislature's intention to provide that right, the plaintiff is not entitled to a jury trial.
In the present case, the plaintiff has brought his claims pursuant to § 46a-100, which provides: "Any person who has timely filed a complaint with the Commission on Human Rights and Opportunities in accordance with section 46a-82 and who has obtained a release from the commission in accordance with section 46a-83a or 46a-101, may also bring an action in the superior court for the judicial district in which the discriminatory practice is alleged to have occurred or in which the respondent transacts business, except any action involving a state agency or official may be brought in the superior court for the judicial district of Hartford." Section 46a-100 does not affirmatively express the right to a jury trial. The lack of affirmative declaration is in direct contrast with statutory provisions that explicitly provide the right, such as § 13a-144, which provides, in relevant part: "Such action shall be tried to the court or jury . . ." Accordingly, § 46a-100 does not provide the plaintiff with the right to a jury trial.
CONCLUSION
The plaintiff's action would not have been tried to a jury in 1818. Further, § 46a-100 does not explicitly provide the right to a jury trial. Thus, the defendants' motion to strike from the jury list is granted.