Opinion
No. CV 04-0830647S
June 30, 2005
MEMORANDUM OF DECISION
FACTS
The plaintiff, Michael C. Thayer, brings the present action against the defendant, Electro-Methods, Inc., alleging violation of the Connecticut Fair Employment Practices Act, General Statutes § 46a-60 et seq. The plaintiff demanded a trial by jury in the original complaint. The defendant requested that the plaintiff amend his complaint, asserting that the demand had been raised improperly. The plaintiff amended his complaint and filed a separate claim for a trial by jury. The defendant subsequently objected to the claim for a jury trial and moves to strike this case from the jury docket on the ground that the Connecticut Fair Employment Practices Act does not provide for a trial by jury.
DISCUSSION
Under the current rules of practice, an objection to a claim of case for the jury should be raised by an objection rather than a motion to strike. Trantolo v. State, Superior Court, judicial district of Hartford, Docket No. CV97-0569475 (June 8, 1999, Teller, J.) (25 Conn. L. Rptr 19); W. Horton K. Knox, 1 Connecticut Practice Series: Superior Court Civil Rules (2005) § 14-10, p. 651. Here, the defendant's pleading is labeled as both an objection and a motion to strike and was filed in response to the plaintiff's claim for jury trial made pursuant to Practice Book § 14-10. The defendant's objection has been properly raised.
"General Statutes § 46a-100 creates a cause of action for any employee who has been the victim of a discriminatory employment practice in violation of General Statutes § 46a-60." Stedman v. Konover, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. CV93-0457003 (Dec. 6, 1994, Holzberg, J.) ( 13 Conn. L. Rptr. 79). "The court may grant a complainant in an action brought in accordance with section 46a-100 such legal and equitable relief which it deems appropriate including, but not limited to, temporary or permanent injunctive relief, attorneys fees and court costs." General Statutes § 46a-104.
"The right of trial by jury shall remain inviolate . . ." Conn. Const., Art. I, § 19. "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 extant 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., 226 Conn. 40, 49-50, 578 A.2d 1054 (1990). "We have held, therefore, that the right to a jury trial exists both in cases in which it existed at common law at the time of the adoption of the constitutional provisions preserving it and in cases substantially similar thereto." (Emphasis in original.) Id., 50.
"General Statutes § 52-215, provides that as a matter of right civil actions involving such an issue offset as, prior to January 1, 1880, would not present a question properly cognizable in equity should be entered on the docket as jury cases upon proper request. Section 52-215 goes on to state that certain enumerated actions and all other special statutory proceedings, which, prior to January 1, 1880, were not triable by jury, shall be tried to the court without a jury . . . [T]he term `special statutory proceedings' cannot be construed, under the constitutional provisions guaranteeing jury trials, [however,] to mean any cause of action whatsoever, simply because it is authorized by an enactment of the legislature. If it could, the legislature by the process of giving legislative sanction to common-law causes of action, could, in the course of time, obviate the guarantee of jury trial completely." Id., 50-51. Thus, "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." Skinner v. Angliker, 211 Conn. 370, 375-76, 559 A.2d 701. (1989).
In Skinner, the Supreme Court considered whether a discharged employee that brought an action pursuant to General Statutes § 31-51q, liability of employer for discipline or discharge of employee on account of employee's exercise of certain constitutional rights, was entitled to a trial by jury. The defendants were the director of the Whiting Forensic Institute, a mental health facility operated by the state, and the commissioner of the state department of mental health. Id., 372. Both defendants were sued in their official capacities. Id. The court held that the plaintiff was not entitled to a trial by jury because: (1) there was no right to a jury trial for persons asserting claims against the state under the common law in 1818; and (2) "the legislature has not specifically provided for a jury in § 31-51q actions . . ." Id., 382. In Ford, the Supreme Court considered whether an action against a private employer based on a violation of the provision of the Workers' Compensation Act prohibiting discharge or discrimination, General Statutes § 31-290a, was properly tried to a jury. Ford v. Blue Cross Blue Shield of Connecticut, Inc., supra, 216 Conn. 49-53. There, the court reasoned that § 31-290a "is in essence a statutorily created tort deriving from the action for wrongful discharge set forth in Sheets [v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980)]." Id., 52. The court further reasoned: "It should be recalled that our modern law of torts has its origins in the common law actions of trespass and trespass on the case . . . We conclude, therefore, that because the classical theory upon which recovery is based in actions brought pursuant to § 31-290a was redressable at common law, the plaintiff's action was properly tried to a jury." Id., 52-53.
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 General Statutes § 46a-100. In Stedman v. Konover, supra, 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, supra, 211 Conn. 376, was satisfied and held that the plaintiff was entitled to a trial by jury. Id. Trantolo v. State, supra, 25 Conn. L. Rptr. 19 and Massey v. Connecticut Mental Health Center, Superior Court, judicial district of New Haven, Docket No. CV96-0388542 (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.
The present action has been brought against a private employer. The historical bar on actions against the sovereign upon which the courts rely in Skinner v. Angliker, Trantolo v. State and Massey v. Connecticut Mental Health Center does not apply here. Furthermore, because no issue exists regarding a waiver of sovereign immunity, the right to a trial by jury need not be affirmatively expressed in the statute. Based upon the reasoning of Ford v. Blue Cross Blue Shield of Connecticut, Inc., supra, 216 Conn. 52-53, as well as a review of the specific historical underpinnings of the cause of action set forth here; see Stedman v. Konover, supra, Conn. L. Rptr. 79; the court holds that the conduct complained of by the plaintiff was redressable at common law. Accordingly, the plaintiff has a right to a jury trial in the present action and the defendant's objection to the plaintiff's claim for jury trial is overruled.
There is at least one case brought pursuant to General Statutes § 46a-100 that was tried to a jury. See Davis v. Manchester Health Center, Inc., 88 Conn.App. 60, 867 A.2d 876 (2005), cert. denied, 273 Conn. 936 (2005). A review of the case detail does not indicate that the issue of the propriety of a jury trial was ever raised by the parties and the issue was not before the court on appeal.
BY THE COURT
Kevin E. Booth, J.