Opinion
HHDCV176081368S
10-17-2019
Joseph S. ELDER, Esq. v. 21ST CENTURY MEDIA NEWSPAPER, LLC et al.
UNPUBLISHED OPINION
OPINION
CESAR A. NOBLE, J.
The court herewith provides the articulation requested by the plaintiff/appellant, Joseph S. Elder, of the court’s disposition of state constitutional law claims. As explained below, the court did not consider the plaintiff/appellant’s state constitutional law claims because they were inadequately briefed.
By decision dated February 14, 2019, the court granted the motions for summary judgment of the defendants CBS Radio, Inc., 21st Century Media Newspaper, LLC; 21st Century Media, LLC; Hearst Media Services Connecticut, LLC, Matthew Kaufman and the Record Journal Publishing Company (collectively the defendants). In its memorandum of decision the court held that the fair report privilege protects the defendants from claims of defamation and false light invasion of privacy. See Elder v. 21st Century Media Newspaper, LLC et al., Superior Court, judicial district of Hartford, Docket No. 176081368, 2019 WL 1399865 (February 14, 2019, Noble, J.). The plaintiff/appellant accurately notes that the decision did not address his state constitutional law claims, to wit, that the plaintiff’s rights under article first, ¶10 of the constitution of Connecticut are superior to the defendant’s claims of privilege and that "at a minimum consideration of [article first, § 10 rights] would seem to require that all such claims be decided as matters of fact by the jury after hearing all relevant evidence." Elder’s Memorandum of Law in Opposition to Motion for Summary Judgment filed by Matthew Kauffman, April 9, 2018, Entry No. 145, p. 34.
The constitution of Connecticut, article first, § 10, provides that "[a]ll courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay."
The identical language appears in all memoranda filed by the plaintiff in opposition to the various motions. See Opposition to CBS Radio Motion for Summary Judgment, Entry No. 146, p. 32; Amended Opposition to 21st Century defendants and Hearst Corporation Motion for Summary Judgment, Entry No. 149, p. 33-4; Opposition to Record Journal Motion for Summary Judgment, Entry No. 151, p. 33-4.
The plaintiff/appellant provides the identical argument regarding article first, § 10 in the various opposition memoranda to the defendants’ motions for summary judgment that include a history of section 10 and other sections of article first of the constitution of Connecticut, a discussion of commentary related to the importance of reputation and honor, a reference to the English common law practice of conducting jury trials in libel cases and a discussion of the importance of redress for injury to reputation. What the plaintiff did not do in his various memoranda was to provide the court with an identification of the precise contours of the protection afforded by article first, section ten. Neither did the plaintiff offer any analysis of how to address tension between the article first, § 10 right to a remedy by due course of law for injury to reputation and the fair reporting privilege. While any analysis of the competing weight to be provided to the article first, § 10 remedy by due course of law and the fair reporting privilege requires discussion of the nature and source of the privilege, none was provided by the plaintiff/appellant.
Courts are not required to review claims that are inadequately briefed. Heyward v. Judicial Department of State, 159 Conn.App. 794, 802, 124 A.3d 920 (2015). "The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited ... It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones." (Citation omitted; internal quotation marks omitted.) State v. Prosper, 160 Conn.App. 61, 74-75, 125 A.3d 219 (2015). "These same principles apply to claims raised in the trial court." Connecticut Light & Power v. Department of Public Utility, 266 Conn. 108, 120, 830 A.2d 1121 (2003).
It is true that that the plaintiff provides reference to commentators on the Connecticut constitution in which they refer to the right to redress for injury to reputation. The plaintiff/appellant, however, did not bring to the court’s attention any appellate decision that addresses the meaning and breadth of the article first, § 10 remedy by due course of law for injury to reputation. This is particularly significant in the present case where the plaintiff/appellant’s memoranda are also bereft of any mention of the factors articulated in State v. Geisler, 222 Conn. 672, 685, 610 A.2d 1225 (1992), that must be applied to analyze Connecticut constitutional claims and which permit a reasoned and principled consideration of the meaning and contours of article first, § 10. See Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 157, 957 A.2d 407 (2008) (application of Geisler factors permits courts to "reach reasoned and principled results as to [the state constitution’s] meaning"). Our Supreme Court has recognized the importance of using the Geisler factors which "serve dual purpose[s]: they encourage the raising of state constitutional issues in a manner to which the opposing party- the state or the defendant- can respond; and they encourage a principled development of our state constitutional jurisprudence." Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 271, 990 A.2d 206 (2010).
For example, the plaintiff quotes the preamble to the Code of 1650, written by Roger Ludlow, which provides that "no mans life shall be taken away, no mans honor or good name shall bee stained, no mans person shall be arrested ... unless it bee by the virtue or equity of some express Law of the Country."
In Geisler our Supreme Court identified six factors, referred to commonly as the Geisler factors, with which to construe the contours of our state constitution. State v. Geisler, supra, 222 Conn. 685.
The failure to provide an analysis of the constitution of Connecticut under Geisler renders such claims unreviewable. See State v. Allan, 131 Conn.App. 433, 435 n.2, 27 A.3d 19 (2011), aff’d, 311 Conn. 1, 83 A.3d 326 (2014) (claim of violation of rights under article first, § 8 not reviewed due to failure to provide analysis required by Geisler); State v. Knight, 125 Conn.App. 189, 194 n. 6, 7 A.3d 425 (2010), cert. denied, 300 Conn. 927, 16 A.3d 704 (2011) (failure to provide independent analysis under Geisler of rights provided by article first, § § 8 and 9, of the constitution of Connecticut resulted in court declining to consider claim) and State v. Sulewski, 98 Conn.App. 762, 774 n.10, 912 A.2d 485 (2006) (court declined to review claim of violation of rights under article first, § 9 where "separate and distinct analysis" under Geisler not provided).
Moreover, the memoranda of the plaintiff/appellant contain no analysis of the source of the fair report privilege. If the privilege originates from our common law then it may well yield to state constitutional rights. If, however, the privilege emanates from Federal constitutional sources, such as the freedom of speech and press protection flowing from the first amendment to the United States constitution, then the fair reporting privilege is likely to prevail when in conflict with the Connecticut constitution. See e.g. Cox Broad. Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975) ("[T]he First and Fourteenth Amendments will not allow exposing the press to liability for truthfully publishing information released to the public in official court records").
The court therefore declines to consider the Connecticut constitutional claim because of the absence of appropriate briefing. "Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly." Connecticut Light & Power Co. v. Department of Public Utility Control, supra, 266 Conn. 120.