Stéphane Sérafin Professeur adjoint | Assistant Professor Faculté de droit, Section de common law | Faculty of Law, Common Law Section

 

Attention : courriel externe | external email

Dear Fred;

I am not an expert in US law either but here is my take. The right to free exercise of religion under the US First Amendment is no less a right than the common law right not to be touched without good reason (actionably in battery) or the right to be free from unjustified detention (actionable in false imprisonment). Like those common law rights which are actionable per se, the right to free exercise is constrained in some circumstances by the rights of others. Clearly there is no right to behead someone else on the basis that this would be a free exercise of your religion. Different tests have been adopted at different times in US jurisprudence as to the limits on free exercise. But it seems that in this case the extremely restrictive rules about when your religion could be spoken of to others, were accepted to go way beyond acceptable limits on that right. Hence there was a breach of a constitutional right enjoyed by Mr U. In that sense (just as if he had been unlawfully struck by police or locked up) he was actually wronged. He was denied the right he had to engage in polite speech with others about his religion. As a result, the SC rules that in recognition of this wrong having been committed (to vindicate his right, if you like), where there was no scope left for an injunction to be given, an order of nominal damages was appropriate.

Our common law systems do not usually allow free-standing civil actions for breach of constitutional principles, but this is allowed in the US. At least that is how I see it. Happy to be corrected by any colleagues here who know more about US law.

Regards

Neil

 

 

 

 

Thanks for this, Neil. I’m confused, though it’s probably a function of my ignorance of US constitutional law.

 

Sometimes a plaintiff in has suffered, or stands to suffer, a wrong if the constitutionally prohibited act goes ahead. If Nebraska electrocutes me, and electrocution is cruel and unusual punishment, I can see that I have been wronged. Nominal damages (at least!) flow from that wrong. (Likewise false imprisonment, as in the HCA, or any manner of SCOTUS cases on seizure, search, etc.) But Mr U’s ‘right’ was that the College was not allowed to proscribe U from ‘preaching’ in public spaces; this is, I take it, a restriction on the College’s powers to control activities by licence or contract. Isn’t U’s ‘right’ just a power to ask the Court to make a declaration that some putative act is void? What is the breach by the College which grounds his claim to damages?

 

I also don’t understand how this decision squares with last the New York Rifle case, but I may be misremembering the facts of that case or what claim was ultimately sought …

 

Fred

 

Dear Colleagues;

We don’t often consider decisions of the US Supreme Court, but I thought this one was worth noting: Uzuegbunam v. Preczewski (19-968, Mar 8, 2021) https://www.supremecourt.gov/opinions/20pdf/19-968_8nj9.pdf . An 8-1 decision (Roberts CJ for the first time in his career as Chief in a solo dissent) holds that where there has been a breach of a person’s constitutional rights, they can maintain an action for nominal damages even where the breach is not ongoing.

The case is particularly interesting to me as it intersects with my interests in law and religion. The facts: Mr Uzuegbunam (no, I can’t pronounce it either) is an evangelical Christian and while a student at Georgia Gwinnett College , (a public college in the State of Georgia) wanted to talk about his faith with others. The College imposed incredibly strict restrictions on his ability to do which were accepted, by the time the matter reached the SC, to be a violation of his First Amendment right to “free exercise”. But when faced with the prospect of litigation the college just dumped its policy, and when Mr U graduated, they said he had no legal basis for a remedy as he was no longer affected by the policy in any case. He accepted that his action for an injunction to enjoin their restrictions had to fail, but he persisted with a claim for nominal damages based on the previous infringement of his rights.

The court’s judgment was written by Thomas J. A lot of it explores the older common law cases. There is an Article III “standing” issue under US law requiring a showing that there is a remedy which will "redress the constitutional violation". Thomas J says that in deciding that issue the court “look[s] to the forms of relief awarded at common law.” He explores a number of older cases, in particular Ashby v. White, 2 Raym. Ld. 938 (K. B. 1703). He adopts the words of Holt CJ which on appeal were upheld by the House of Lords: “every injury imports a damage” and that a plaintiff could always obtain damages even if he “does not lose a penny by reason of the [violation].” (Slip Op p 6).

So here an award of nominal damages may be given for violation of an accepted right, despite no other harm being shown. The matter is referred back to the trial court for determination of quantum.

List members will no doubt see that this sort of reasoning seems to connect well with the view at common law that an award of damages may function in part as vindication of a private right which has been breached. These issues were discussed in the High Court of Australia last year in Lewis v Australian Capital Territory [2020] HCA 26 (5 August 2020) http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2020/26.html where at least a majority of the court recognised that infringement of rights can be vindicated by a nominal damages award, even if there is no separate head of “vindicatory damages”. Gordon J, for example, after citing Ashby v White in para [43], goes on to say:

 

[45] This appeal is concerned with the tort of false imprisonment, a form of

trespass to the person. It is actionable per se, regardless of whether the victim

suffers any harm. It does not require proof of special damage. That is

unsurprising. The tort protects and, where necessary, vindicates a person's right to

freedom from interference with personal liberty as a fundamental legal right….

[47]A right to nominal damages, as one remedy, follows from that finding of

liability. That award of nominal damages marks the fact that "there [was] an

infraction of a legal right". There is then a question as to whether any other relief

should be awarded to a particular plaintiff, in their own unique situation. (footnotes omitted)

 

This is very similar to Thomas J’s decision.

Regards

Neil