Interpretive Gloss Saves Recognizance Statute’s Constitutionality

The Connecticut Appellate Court applied interpretive gloss to save the recognizance statute’s constitutionality in an opinion to be officially released on March 1, 2016. The main issue in this appeal, Harnage v. Lightner, was whether an inmate had to post a recognizance bond for his action challenging the conditions of his confinement — namely that defendants were deliberately indifferent to his medical needs. A recognizance bond insures that a prevailing defendant can actually collect costs taxed against plaintiff.

“[T]he trial court found that the plaintiff was indigent and granted him a fee waiver for the entry fee, the filing fee, and the cost of service of process.” Plaintiff commenced his action against defendants in their official and individual capacities. He did not post a recognize bond. Defendants moved to dismiss on the grounds that plaintiff did not properly serve them and for failure to post the recognizance bond. In opposition, defendant claimed, among other things, “that the requirement of posting a recognizance bond pursuant to § 52-185 and Practice Book § 8-3 did not apply to him and, even if it did, the amount of the recognizance bond was in the court’s discretion and should be limited to the nominal amount of one dollar, which, in essence, is a request for a waiver.”

The trial court granted the motion to dismiss but only as to plaintiff’s failure to properly serve defendants in their individual capacities. The court ordered plaintiff to post a $250 recognize bond within ten days. “Because the plaintiff could not afford to post the $250 recognizance bond and desired to appeal from the court’s decision, … he filed a motion for judgment, which the court subsequently granted.”

Plaintiff appealed. The Appellate Court “reversed only as to the dismissal of the plaintiff’s causes of action against the defendants in their in official capacities and the case is remanded for a hearing consistent with this opinion to consider the plaintiff’s request for a waiver of his obligation to post a recognizance bond.”

Plaintiff’s Main Arguments on Appeal

“[T]he plaintiff argue[d] that the recognizance bond requirement does not apply to him, or if it does, it is unconstitutional because it deprives him of his rights to due process and equal protection of the law under the federal constitution.”

Plaintiff also claimed that he did not have to serve defendants in their individual capacities via in hand or abode service pursuant to CGS § 52-57(a). Rather, plaintiff argued that “in a civil action against state employees in their individual capacities, § 52-64(a) permits service of process to be made by a proper officer leaving a copy of process with the attorney general at the Office of the Attorney General in Hartford.”

Appellate Court Concludes Interpretive Gloss Saves Recognizance Statute’s Constitutionality

As to the recognizance bond, the court “conclude[d] that it is necessary to place an interpretive gloss on §§ 52-185 and 52-186 in order to avoid placing them in constitutional jeopardy. Accordingly, we construe these provisions as authorizing the court to waive the plaintiff’s obligation to post, or to reduce significantly the amount of, a recognizance bond in light of a party’s indigency and status as an inmate.” Without the interpretive gloss, the statutes were in constitutional jeopardy because “prisoners have a fundamental constitutional right of access to the courts.” “In civil cases in which a fundamental right is implicated and judicial recourse is the sole manner of resolving the dispute, there cannot be a total deprivation of access to the courts, and a statute conditioning access to the courts on paying court fees or costs raises significant constitutional concerns.” The gloss was necessary to provide a “safety-valve” for those who cannot afford the recognizance bond.

The court rejected plaintiff’s claim that he properly served defendants in their individual capacities by leaving process with the Attorney General. “Decisions of this court have repeatedly held that a plaintiff, who serves a state defendant pursuant to § 52-64 (a) by leaving a copy of the process with the attorney general at the Office of the Attorney General, has properly served the defendant only in his or her official capacity and has failed to properly serve the defendant in his or her individual capacity.”