September 18, 2006
CONSTITUTIONAL VIOLATIONS AND ATTORNEYS' FEES
By: Christopher Reinhart, Senior Attorney
You asked about federal legislation regarding attorneys' fees awards in claims for violations of the constitution's provisions on religion. You also asked about provisions in Connecticut law on attorneys' fees in cases claiming constitutional violations.
We found two bills in Congress on this topic. Both limit remedies and prohibit awarding attorney's fees in claims against the government for violating the U.S. Constitution's provision on establishment of religion brought under 42 USC § 1983 (the main statute for alleging violation's of an individual's federal civil rights). The Senate bill also includes a general provision limiting remedies and prohibiting attorney's fees for any claim for an injury from a violation of the establishment clause brought against the United States or a federal agency or official acting in an official capacity not brought under 42 USC § 1983. Both bills are still in committee.
We found a number of Connecticut statutes authorizing civil actions that involve constitutional violations. These include statutes regarding a person's exercise of religion; freedom of speech; deprivation of rights, privileges, or immunities; and certain criminal acts that involve constitutional violations. Anti-discrimination statutes also cover some conduct that would also be considered a constitutional violation. These statutes provide a procedure for filing complaints with the Commission on Human Rights and Opportunities (CHRO) but also include provisions on filing lawsuits. Of these statutes, some explicitly authorize the court to award attorneys' fees. Others authorize the court to award appropriate or equitable relief, and it is unclear whether this could include an award of attorneys' fees. Almost all of these statutes apply to the private as well as the public sector.
In addition, we found one case where the Connecticut Supreme Court recognized a cause of action for damages for a constitutional violation. This case authorized a claim against municipal police officers for violating the state constitution's provisions on unreasonable search and seizure and wrongful arrest. The case does not indicate whether the court could award a prevailing party attorneys' fees.
We did not research whether lawsuits alleging constitutional violations that are not brought under a specific statute could lead to an award of attorneys' fees.
PROPOSED FEDERAL LEGISLATION
The House bill affects claims against the government for violating the U.S. Constitution's provision on establishment of religion (claims brought under 42 USC § 1983, the main statute for alleging violation's of an individual's federal civil rights). The bill would (1) limit the remedies in such a case to an injunction and (2) prohibit the court from awarding attorneys' fees to a prevailing plaintiff (H.R. 2679).
The Senate bill amends the same civil rights statute. It limits remedies to injunctions and declaratory relief and prohibits awarding attorneys' fees to a prevailing plaintiff for claims involving the establishment of religion. It states that these claims include those involving a (1) veterans' memorial with religious words or images, (2) public building containing religious words or images, (3) state or political subdivision official seal that has religious words or images, and (4) state or political subdivision chartering a Boy Scout unit or Boy Scouts using state or subdivision public buildings.
The Senate bill also includes a general provision on any claim for an injury from a violation of the establishment clause brought against the United States or a federal agency or official acting in an official capacity. For these cases, it (1) limits remedies to an injunction and declaratory relief and (2) prohibits a court from awarding reasonable attorney fees and expenses to the prevailing party. The bill states that these claims specifically include violations involving (1) a veterans' memorial with religious words or images; (2) a federal building containing religious words or images; (3) religious words or images in the U.S. official seal, currency, or pledge; and (4) chartering Boy Scout units by components of the U.S. armed forces or public entities and Boy Scouts using Department of Defense and other public installations (S. 3696).
We found a number of Connecticut statutes authorizing civil actions based on constitutional violations.
The Connecticut Constitution provides a right of religious liberty (Art 1, § 3). It also prohibits compelling someone to join or support a church, prohibits giving legal preference to any religious society or denomination, and provides equal rights for all religious denominations (Art. 7).
A statute prohibits the state or a political subdivision from burdening a person's constitutional exercise of religion (under Art. 1, § 3) even with a rule of general applicability unless the burden (1) furthers a compelling government interest and (2) is the least restrictive means to further that interest. The statute provides that it does not authorize the state or a political subdivision to burden any religious belief. And it provides that (1) it cannot be construed to affect, interpret, or address the state constitutional provision prohibiting laws giving preference to any religious society or denomination (under Art. 7) and (2) government funding, benefits, or exemptions that are constitutional do not violate the statute (CGS § 52-571b).
This statute addresses actions by any agency, board, commission, department, officer, or employee of the state or a political subdivision.
A person can sue for a violation of these provisions or claim it as a defense and obtain “appropriate relief” from the state or political subdivision. The statute does not specify what “appropriate relief” is and it is possible that a judge might determine that it includes attorneys' fees.
First Amendment and Similar State Constitutional Rights
The law authorizes an employee to sue his employer, including the state or an instrumentality or political subdivision, if the employee is disciplined or discharged for exercising his rights under the First Amendment of the U.S. Constitution (freedom of speech, press, religion, and assembly) or the provisions of the Connecticut Constitution regarding freedom of religion, speech, press, and right to assemble for redress of grievances and other proper purposes (Art. I, §§ 3, 4, 14). This does not apply if the employee's exercise of his rights interferes with the his job performance or his working relationship with his employer. The law allows the employee to recover damages, including punitive damages, and reasonable attorney's fees. The court can award reasonable attorney's fees to the employer if the lawsuit was filed without substantial justification (CGS § 31-51q).
Deprivation of Rights, Privileges, or Immunities
The law provides a civil action for damages for personal injury or property damage, and allows the court to award the prevailing party his costs including reasonable attorney's fee, for depriving a person of his rights, privileges, or immunities under state or federal laws or constitutions on account of religion, national origin, alienage, color, race, sex, blindness, or physical disability. This includes intentionally desecrating public property, monuments, structures, religious objects or places of worship, cemeteries, or private structures; placing burning crosses or simulated ones on public property or private property without written consent. The statute provides that it does not create a new cause of action or confer new jurisdiction on the courts (CGS § 52-251b).
Civil Actions For Violations That Are Criminal Acts
A person can sue for injunctive relief, damages, and other relief the court deems just and equitable when someone uses force or threats (2nd degree threatening) with the intent to deprive him or a class of people of the equal protection or privileges and immunities of the laws of this state or the United States. The prohibition applies to individuals acting alone and to those acting in conspiracy with others (CGS § 52-571a).
A person injured by conduct that falls under the intimidation based on bigotry or bias crimes can sue for damages for his injury. The court must award triple damages if the injured person prevails and may award other relief and reasonable attorney's fees (CGS § 52-571c).
Anti-discrimination statutes cover some conduct that would also be considered a constitutional violation. These laws generally prohibit discrimination in employment, housing, credit practices, public accommodation, and government programs and services on the basis of
such things as race, color, sex, national origin, and ancestry. The statutes provide a procedure for filing complaints with CHRO but also include provisions on filing lawsuits.
A person who timely files a complaint with CHRO regarding discriminatory practices can obtain a release from CHRO to bring an action in court under certain circumstances (CGS §§ 46a-83a, -101). A court in one of these actions is authorized to grant legal and equitable relief that it deems appropriate and this includes attorneys' fees (CGS § 46a-104).
A person can file a claim in court for discriminatory housing practices or breach of a conciliation agreement. A court can grant relief, by injunction or otherwise, as it deems just and suitable. In addition to certain penalties, the statute authorizes the court to grant relief that a presiding officer can grant in a CHRO complaint, which includes allowing a reasonable attorney's fee (CGS § 46a-98a, see CGS § 46a-86(c)).
A person can sue for violations by state agencies including violations regarding equal employment, discriminatory practices, discrimination in licensing, and discrimination in allocating state benefits. The court can award appropriate relief and the power to grant relief, by injunction or otherwise, as just and suitable (CGS § 46a-99).
Search and Seizure and Wrongful Arrest
The Connecticut Supreme Court created a cause of action for damages against municipal police for violations of the state constitution's provisions on unreasonable search and seizure and wrongful arrest (Article I, §§ 7 and 9; see Binette v. Sabo, 244 Conn. 23 (1999), summarized in OLR Report 99-R-0078). In the opinion recognizing a cause of action, the state Supreme Court does not discuss the issue of attorney's fees. The court bases its analysis on the U.S. Supreme Court's Bivens line of cases (which deal with a cause of action under the federal constitution). Under the Bivens federal case law, courts do not award attorney's fees to a prevailing party.
Connecticut courts after the Binette ruling have rejected other attempts to create constitutional causes of action for damages based on other constitutional provisions.