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The Jurisprudence of the Connecticut Constitution

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The Jurisprudence of the Connecticut Constitution University of Connecticut OpenCommons@UConn Faculty Articles and Papers School of Law 1984 The urJ isprudence of the Connecticut Constitution Richard Kay University of Connecticut School of Law Follow this and additional works at: https://opencommons.uconn.edu/law_papers Part of the Common Law Commons, Jurisprudence Commons, and the State and Local Government Law Commons Recommended Citation Kay, Richard, "The urJ isprudence of the Connecticut Constitution" (1984). Faculty Articles and Papers. 66. https://opencommons.uconn.edu/law_papers/66 +(,121/,1( Citation: 16 Conn. L. Rev. 667 1983-1984 Content downloaded/printed from HeinOnline (http://heinonline.org) Mon Aug 15 16:59:26 2016 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=0010-6151 THE JURISPRUDENCE OF THE CONNECTICUT CONSTITUTION by Richard S. Kay* The transformation of a law school from an institution of voca- tional competence into one of intellectual excellence is often associated with an increased attention to legal subjects that are national in scope. It is fair to say that as the University of Connecticut School of Law has grown in academic quality and ambition it has acquired that breadth of curricular offerings and scholarly interest which, we like to think, entitle it to be regarded as a national law school of the first rank. This has become particularly apparent under, and in large measure be- cause of, the.decanal leadership of Phillip Blumberg. It is also true, however, that this broadening of interest need not be accompanied by an abandonment of a special concern for the legal issues and problems that are peculiar to a law school's home. Certainly that has been the case with the University of Connecticut School of Law. Of particular interest here is continuing scholarly attention to the law of Connecticut,1 which has been strongly encouraged and sup- ported by Dean Blumberg. Such scholarship has two special values. * Professor of Law, University of Connecticut School of Law. A.B., Brandeis University;, M.A., Yale University;, J.D., Harvard University. Professor Kay teaches Constitutional Law, Commercial Law, and Contracts. 1. See, e.g., L. ORLAND, CONNECTICT CRIMINAL PRACTICE (1983); C. TMT & J. LAPLANTE HANDBOOK OF CONNECTICUT EVIDENCE (1976); T. TONDRO, CONNECTICUT LAND USE REGULA- TION (1979); Special Section The Connecticut Constitution, 15 CONN. L REV. 7 (1982); Bysiewicz, Connecticut: ERA, 51 CONN. BJ. 113 (1977); Mann, Rationality. Legal Change, and Community in Connecticut 1690-1760, 14 LAw & Soc'Y. REV. 202 (1980); Sacks, Promises. Performance, and Principles:An Empirical Study of Parole Decislonmaking In Connecticut. 9 CONN. L. REV. 347 (1977); Tait, The New FederalRules of Evidence" A Summary of the Differ- ences Between the Rules and the Connecticut Law of Evidence, 9 CONN. L REV. 1 (1975). In addition, notes and comments by members of the Connecticut Law Review provide useful insight into developments in Connecticut law on an ongoing basis. Among the more recent articles are: Note, Connecticut's Lis Pendens Shapes Up: Williams v. Bartlett, 16 CONN. L REV 413 (1984); Note, Court Rule-Making in Connecticut Revisited-Three Recent Decisions: State v. King, Steadwell v. Warden and State v. Canady, 16 CONN. L. REV. 121 (1983); Note, Employee Right to Active Union Representation at Investigative Interviews: The Connecticut State Labor Board Decision in State Department of Education, 16 CONN. L. REV. 179 (1983). CONNECTICUT LAW REVIEW [Vol. 16:667 First, it allows the school to make a contribution to the state which sustains and nurtures it by providing that critical examination which is prerequisite to improving the quality of law. Second, the study of legal problems within the limited bounds of one jurisdiction may allow a thoroughness of inquiry which more global approaches foreclose. Con- sequently it may shed light on a more general subject in ways not oth- erwise possible. Thus the two missions of a state law school, general and specific, national and local, reinforce each other. A particularly compelling example of the special insight considera- tion of state law may supply into more general questions is provided by the recent decision of the Supreme Court of Connecticut in the case of Cologne v. Westfarms Associates.2 That case illustrates the necessary connection between the roles played by the constitutional law of a state and the constitutional law of the United States. It also illuminates cer- tain fundamental questions which are inevitably prior to any legal the- ory of constitutional adjudication. The plaintiffs in Westfarms, Christine Cologne and the Connecti- cut National Organization for Women (NOW), desired to solicit signa- tures on petitions supporting the proposed Equal Rights Amendment to the United States Constitution in the Westfarms Mall, a large enclosed shopping center owned and operated by the defendants. When the de- fendants denied access to the mall for that purpose, the plaintiffs brought suit in the superior court to enjoin the defendants from inter- fering with NOW's petitioning in the mall. The plaintiffs claimed that the defendants' refusal to allow their activity was a violation of NOW's constitutional right to freedom of expression. The superior court granted the injunction and required the mall to allow NOW to petition for a limited period and under specified conditions. Upon the expiration of this period and the renewal of the mall's original policy, NOW brought a second action asking for permanent access to the mall for petitioning and for distributing literature. A second superior court judge granted a permanent injunction requiring access, but also limit- ing the activities permitted to certain times and subjects. It was this second judgment which was brought on appeal to the Connecticut Su- preme Court. The plaintiffs could not base their claim on the first amendment to the United States Constitution. In three decisions in the 1960's and 2. Cologne v. Westfarms Assocs., 192 Conn. 48, 469 A.2d 1201 (1984) [hereinafter Westfarms]. 19i"4] FACULTY SYMP.OSIUM, 1970's the United States Supreme Court had recognized, narrowed, and finally rejected the idea that rights of free expression were asserti- ble against private parties and, in particular, against privately owned shopping centers.3 Rather, the plaintiffs relied on sections four and fourteen of Article First of the Connecticut Constitution, the state Dec- laration of Rights. In so doing, they asked the Connecticut court to follow the lead of the supreme courts of three other states, which had found that their state constitutions protected the right of expression against infringement by private parties as well as the state.5 Because these decisions were based on independent state law, they were in no way inconsistent with the United States Supreme Court's holding that the first amendment did not extend so far. Indeed, the United States Supreme Court had explicitly held that the restriction on private con- duct that such an interpretation of a state constitution entailed did not, in the kind of case at issue in Westfarms, constitute an impermissible interference with federal constitutional rights.6 Both trial courts that granted the relief requested by the plaintiffs distinguished the Connecticut free expression clauses from the federal one on the basis of the different language employed. After balancing the competing private interests to determine the scope of the constitu- tional protection afforded in this case, both courts held that NOW's need to use the mall as a forum to petition and disseminate information outweighed the defendants' interest in controlling the use of their prop- erty.7 The results were the limited injunctions granted. The Connecti- 3. Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, 391 US. 308 (1968); Lloyd Corp. v. Tanner, 407 U.S. 551 (1972); Hudgcns v. NLRB, 424 U.. 507 (1976). 4. CONN. CONsT. art. I, §§ 4, 14: § 4. Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty. § 14. The citizens have a right, in a peaceable manner, to assemble for their common good, and to apply to those invested with the powers of government, for redress of griev- ances, or other proper purposes, by petition, address or remonstrance. 5. Brief of Plaintiffs-Appellees and Reply Brief of Plaintiffs-Appellants at 39-47, IVestfarms. Plaintiffs argued that the Westfarms facts were indistinguishable from those in three other shop- ping center cases, Robins v. Pruneyard Shopping Center, 23 Cal. 3d 899, 592 P.2d 341, 153 Cal. Rptr. 854 (1979), affd sub nom. Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980); Batchelder v. Allied Stores Int'l, 388 Mass. 83, 445 N.E.2d 590 (1983); Alderwood Assocs. v. Washington Envtl. Council, 96 Wash. 2d 230, 635 P.2d 108 (1981). Further support for such protection, they argued, came from two cases allowing access to campuses of private universities, State v. Schmid, 84 N.J. 535, 423 A.2d 615 (1980), appeal dismissed sub nmi. Princeton Univer- sity v. Schmid, 455 U.S. 100 (1982); Commonwealth v. Tate, 495 Pa. 158. 432 A.2d 1382
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