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outer limits of a builder's liability in 1964 in Kentucky to a third party injured by the negligence of the builder whose work had been completed and accepted by the owner. We are satisfied that, under the precise facts of this case, the builder at that time was at the least subject to liability to third parties for negligent construction, though completed and accepted, that created a latent defect in a stone mantel and fireplace in a home where innocent third parties on the property could foreseeably be injured by such dangerous and concealed condition. Therefore, we hold that there was an existing right of action in this state for the type of negligence claimed in this lawsuit when the questioned statutes were enacted.

The legislature's power to enact statutes of limitation governing the time in which a cause of action must be asserted by suit is, of course, unquestioned. In this state, however, it is equally well settled that the legislature may not abolish an existing commonlaw right of action for personal injuries or wrongful death caused by negligence. KRS 413.120 (14) provides than an action for personal injuries caused by the negligence of the builder of a home must be brought within five years, and the "cause of action shall be deemed to accrue at the time of original occupancy of the improvements which the builder caused to be erected." KRS 413.135(1) provides, in part, that no action "sounding in tort" resulting from "deficiency" in the construction of any improvement to real property or "for injury to the person or for wrongful death arising out of any such deficiency," shall be brought against the builder after the expiration of five years following "the substantial completion of such improvement." In our view the application of these statutory expressions to the claims here asserted destroys, pro tanto, a common-law right of action for

Discussion Notes

1. The court quotes section 54 of the Kentucky Constitution. Why would such provisions be in state constitutions?

2. These access to court issues illustrate only one of numerous state constitutional rights which have no federal analogue. Another example would be state "Equal Rights Amendments." See gen

Sterling v. Cupp

290 Or. 611, 625 P.2d 123 (1981)

LINDE, Justice.

Plaintiffs, who are male inmates of the Oregon State Penitentiary, sued to enjoin Superintendent Cupp and other prison officials from assigning female

negligence that proximately causes personal injury or death, which existed at the times the statutes were enacted. The statutory expressions as they related to actions based on negligence perform an abortion on the right of action, not in the first trimester, but before conception.

The right of action for negligence proximately causing injury or death, which is constitutionally protected in this state, requires more than mere conduct before recovery can be attempted. Recovery is not possible until a cause of action exists. A cause of action does not exist until the conduct causes injury that produces loss or damage. The action for negligence evolved chiefly out of the old common-law form of action on the case, and it has always retained the rule of that action, that proof of damage was an essential part of the plaintiff's case. See Prosser, Handbook of the Law of Torts, section 30, page 143 (4th Edition 1971). Indeed, the Supreme Court of New Jersey realized the relevance of this consideration in the recent case cited by the defendant builder in support of his argument on another phase of the case. See Rosenberg v. Town of North Bergen, 61 N.J. 190, 293 A.2d 662, 666 (1972).

"It is not within the power of the legislature, under the guise of a limitation provision, to cut off an existing remedy entirely, since this would amount to a denial of justice, and, manifestly, an existing right of action cannot be taken away by legislation which shortens the period of limitation to a time that has already run." 51 Am.Jur.2d, Limitations of Actions, section 28, page 613. Surely then, the application of purported limitation statutes in such manner as to destroy a cause of action before it legally exists cannot be permissible if it accomplishes destruction of a constitutionally protected right of action.

erally, Comment, "Equal Rights Provisions: The Experience Under State Constitutions," California Law Review, 65 (September 1977): 1086; Robert F. Williams, "Equality Guarantees in State Constitutional Law," Texas Law Review, 63 (March/April 1985): 1212-14; Note, "Rediscovering the New Jersey E.R.A.: The Key to Successful Sex Discrimination Litigation," Rutgers Law Journal 17 (Winter 1986): 253.

guards to duties which involve frisking male prisoners or observation of prisoners in showers or toilets, or for such other relief as the court deemed proper. After allowing a number of female corrections officers to intervene as parties defendant, the court enjoined defendants Cupp and Watson from "assigning female correctional officers to any position in which the job description or actual duties include frisks or patdowns of male prisoners, except in emergency situations. . . .”

The Oregon Constitution long has included in its Bill of Rights, besides the prohibition of cruel and unusual punishments, no less than five such provisions that have no federal parallel. It undertakes to guarantee that punishment shall be designed for reformation and not "vindictive justice” and shall not reach beyond the guilty individual, to forbid excessive fines and disproportionately heavy penalties, and, most relevant here, to confine "rigorous" treatment of prisoners within constitutional bounds of necessity. Or.Const. Art. I, sec. 13.9

"No person arrested, or confined in jail, shall be treated with unnecessary rigor."

"Excessive bail shall not be required, nor excessive fines imposed. Cruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense. ..."

Provisions like these have antecedents as early as New Hampshire's 1783 constitution, coming to Oregon by way of Ohio and Indiana. They reflect a widespread interest in penal reform in the states during the post-Revolutionary decades. The clauses are not as universal as more familiar parts of the bills of rights, and ideas of humanitarian "reform" have changed with time and among the states. The Pennsylvania Constitution, among the first, provided that the penal laws were to be reformed and punishments made less "sanguinary" (i.e. bloody) by substituting imprisonment at hard labor, open for observation by the public. Penn. Frame of Government secs. 38, 39 (1776). Practice often did not follow aspirations. Even in theory, a "Golden Age of Penology" could not be discerned before the 1870's. In 1870 the Tennessee Constitution provided for "the erection of safe and comfortable prisons, the inspection of prisons, and the humane treatment of prisoners." Tenn.Const. Art. I, sec. 32. But while constitutional texts differ the present point is that many states thought a commitment to humanizing penal laws and the treatment of offenders to rank with other principles of constitutional magnitude independently of any concern of the Congress or of Madison's Bill of Rights. The same commitment took the form of two interstate compacts adopted by Oregon and enacted as statutes, which provide that inmates of correc

"Or.Const. Art. I, sec. 15:

"Laws for the punishment of crime shall be founded on the principles of reformation, and not of vindictive justice."

7Or.Const.Art. I, sec. 25:

"No conviction shall work corruption of blood, or forfeiture of estate."

Or.Const. Art. I, sec. 16:

Or.Const. Art. I, sec. 13:

tional institutions "shall be treated in a reasonable and humane manner." ORS 421.245, Art. IV(5); ORS 421.284, Art. IV(e). Oregon's article I, section 13 is in this tradition.15

It may well be that the interest asserted by the prisoners in this case can be brought within one of the kinds of "privacy" said to be protected by unexpressed penumbras of the United States Constitution.... But in three respects the guarantee not to be "treated with unnecessary rigor" in Oregon's article I, section 13, is a more cogent premise than such a federal "right of privacy."

First, it has an unquestioned source in a provision expressly included in the political act of adopting the constitution.

Second, that provision is addressed specifically to the treatment of persons "arrested, or confined in jail." Unlike rights of privacy, there can be no argument that rights under this guarantee are forfeited by conviction of crime or under lawful police custody, as those are the circumstances to which its protection is directed.

Third, "privacy" poses the paradox that its elasticity in the face of important public policies contradicts its theoretical premise as a right so fundamental as to be implied in the national Constitution; by contrast, article I, section 13, itself makes necessity the test of the practice it controls.

For these reasons, although in this case the considerations under "privacy" or under article I, section 13, are much the same, we proceed under the section of our own constitution directly addressed to prison practices.

II. Opposite-Sex Search as Indignity

The guarantee against "unnecessary rigor" is not directed specifically at methods or conditions of "punishment," which are the focus of article I, sections 15 and 16, as section 13 extends to anyone who is arrested or jailed; nor is it a standard confined only to such historically "rigorous" practices as shackles, the ball and chain, or to physically brutal treatment or conditions, though these are the most obvious examples. Thus the Indiana Supreme Court wrote, in sustaining a conviction of police officers for assault and battery on a prisoner:

The law protects persons charged with crime from ill or unjust treatment at all

16Equivalent clauses are found also in Georgia Const. sec. 2-114 (1976) (“. . . nor shall any person be abused in being arrested, while under arrest, or in prison"); Tenn.Const. Art. I, sec. 13 (1980); Utah Const. Art. I, sec. 9 (1971); Wyo.Const. Art. I, sec. 16 (1977) (“No person arrested and confined in jail shall be treated with unnecessary rigor. The erection of safe and comfortable prisons, and inspection of prisons, and the humane treatment of prisoners shall be provided for.").

times. Only reasonable and necessary force
may be used in making an arrest,... 'no per-
son arrested, or confined in jail, shall be
treated with unnecessary rigor,' section 15,
art. I, Const.... 'While the law protects the
police officer in the proper discharge of his
duties, it must at the same time just as effec-
tively protect the individual from the abuse
of the police.'

U.S. v. Pabalan (1917) 37 Philippine 352, 354.”

Bonahoon v. State, 203 Ind. 51, 178 N.E. 570, 571, 79 A.L.R. 453, 456 (1931). “Unnecessary rigor” is not to be equated only with beatings or other forms of brutality. Thus Georgia's phrasing of the constitutional clause, supra note 15, is simply that prisoners shall not "be abused." Since it is "unnecessary" rigor that is proscribed, the first question under this clause is whether a particular prison or police practice would be recognized as an abuse to the extent that it cannot be justified by necessity.

TONGUE, Justice, specially concurring.

I concur in the result reached by the majority insofar as it holds that male prisoners cannot be subjected to searches by female guards involving touching of genital or anal areas except in emergencies. I do not, however, agree with the grounds on which the majority opinion is based, not only because I believe them to be wrong, but also because they are based upon a theory wholly different from the theory on which the case was both tried and appealed to the Court of Appeals.

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2. The constitutional right of prisoners to be protected from "treatment with unnecessary rigor" as a ground to prohibit “patdown” searches by guards of the opposite sex.

The opinion by the majority is indeed a scholarly opinion. I do not, however, agree with the majority in its holding that prisoners have a constitutional right under Article I, sec. 13 of the Oregon Constitution to protection against such searches. It may be, for reasons stated by the majority, that to hold that prisoners have a constitutional "right of privacy" is to adopt a concept subject to the criticism that "[a] concept in danger of embracing everything is a concept in danger of conveying nothing," and that the law should not "pay [such] a price in clarity and cogency," as stated by the majority. (P. 127).

To me, however, the concept that a prisoner's constitutional right to be protected against treatment with "unnecessary rigor" is subject to much the same criticism particularly when extended to what prisoners may consider to be "unnecessary" searches. I am also concerned that to confer upon prisoners a constitutional right to object to such searches may open a Pandora's Box from which prisoners may, by habeas corpus or otherwise, deluge the courts with litigation based upon claims that many of the rules and practices customary in the operation of penal institutions are "unnecessarily rigorous."

If required to choose between a constitutional "right of privacy" and a constitutional right to object to "treatment" which is "unnecessarily rigorous," I would choose the former for the reasons stated by the majority opinion of the Court of Appeals, despite its conceptual problems.

ality of Capital Punishment in Oregon," Willamette Law Review 16 (Winter 1979): 30-52.

2. Georgia's constitutional provision, referred to by Justice Linde, is discussed by Dorothy T. Beasley, "The Georgia Bill of Rights: Dead or Alive?" Emory Law Journal 34 (Spring 1985): 380-415.

privacy receives special protection. This court has consistently recognized that the home is constitutionally protected from unreasonable searches and seizures, reasoning that the home itself retains a protected status under the Fourth Amendment and Alaska's constitution distinct from that of the occupant's person. The privacy amendment to the Alaska Constitution was intended to give recognition and protection to the home. Such a reading is consonant with the character of life in Alaska. Our territory and

now state has traditionally been the home of people who prize their individuality and who have chosen to settle or to continue living here in order to achieve a measure of control over their own lifestyles which is now virtually unattainable in many of our sister

states.

The home, then, carries with it associations and meanings which make it particularly important as the situs of privacy. Privacy in the home is a fundamental right, under both the federal and Alaska constitutions. We do not mean by this that a person may do anything at anytime as long as the activity takes place within a person's home. There are two important limitations on this facet of the right to privacy. First, we agree with the Supreme Court of the United States, which has strictly limited the Stanley guarantee to possession for purely private, noncommercial use in the home. And secondly, we think this right must yield when it interferes in a serious manner with

Discussion Notes

1. A number of states, like Alaska, have specific privacy provisions in the texts of their state constitutions. See Note, "Toward a Right of Privacy as a Matter of State Constitutional Law," Florida State University Law Review 5(Fall 1977): 631; Gerald B. Cope, Jr., "To Be Let Alone: Florida's Proposed Right of Privacy," Florida State University Law Review, 6 (Summer 1978): 671.

2. The New Jersey Constitution, along with several others, guarantees the right to organize and bargain collectively for public and private employees. See Richard A. Goldberg and Robert F. Williams, "Farmworkers' Organizational and Col

Tucker v. Toia

43 N.Y. 2d 1, 371 N.E. 2d 449 (1977)

GABRIELLI, J.

The Commissioner of the State Department of Social Services appeals directly to this court...from a judgment of the Supreme Court... declaring section 15 of chapter 76 of the Laws of 1976 (now a part of Social Services Law, sec. 158), to be unconstitutional, and enjoining its implementation and enforcement. We affirm the judgment appealed from, on the ground that the challenged section constitutes a substantive violation of section 1 of article XVII of the New York State Constitution.

New York residents under the age of 21 who are in need of public assistance normally receive aid

the health, safety, rights and privileges of others or with the public welfare. No one has an absolute right to do things in the privacy of his own home which will affect himself or others adversely. Indeed, one aspect of a private matter is that it is private, that is, that it does not adversely affect persons beyond the actor, and hence is none of their business. When a matter does affect the public, directly or indirectly, it loses its wholly private character, and can be made to yield when an appropriate public need is demonstrated.

Thus, we conclude that citizens of the State of Alaska have a basic right to privacy in their homes under Alaska's constitution. This right to privacy would encompass the possession and ingestion of substances such as marijuana in a purely personal, non-commercial context in the home unless the state can meet its substantial burden and show that proscription of possession of marijuana in the home is supportable by achievement of a legitimate state interest.

lective Bargaining Rights in New Jersey: Implementing Self-Executing State Constitutional Rights," Rutgers Law Journal 18 (Summer 1987): 729; Comment, "State Constitutional Right to Damages for Private Discrimination in Employment," DePaul Law Review 28 (Fall 1978): 229.

3. See also Michael L. Perlin, "State Constitutions and Statutes as Sources of Rights for the Mentally Disabled: The Last Frontier? Loyola of Los Angeles Law Review 20 (June 1987): 1249; Rivers v. Katz, 67 N.Y. 2d 485, 495 N.E. 2d 337 (1986) (state constitutional right of involuntarily committed mental patients to refuse antipsychotic drugs).

through either the Federally subsidized Aid to Families with Dependent Children Program (AFDC) (Social Services Law, sections 343-362), or the State's broad Home Relief Program (Social Services Law, secs 157-166). The determination of which program is applicable in a particular instance is based on whether the needy individual under 21 is residing with either a parent or a legally responsible relative. If he is residing with such a person, he is eligible for AFDC, but not home relief, whereas if he is not residing with such a person, entitlement to benefits stems from the home relief program and not AFDC.

Section 15 of chapter 76 of the Laws of 1976 amended subdivision (a) of section 158 of the Social Services Law, the section which determines eligibility for home relief. As amended, the statute provides that home relief is not to be provided to a person under the age of 21 who does not live with a parent or legally responsible relative, unless and until the

applicant commences a support proceeding against any such parent or relative and an order of disposition is obtained in that support proceeding. Prior to the enactment of section 15, no such limitation was imposed upon a needy young person's right to public assistance. Rather, the public welfare authorities were subrogated to whatever right the recipient might have to support from a parent or responsible relative (see Social Services Law, sec. 101 et seq.; Family Ct Act, sec. 415). Under that system, a person under the age of 21, whether or not residing with a parent or responsible relative, was entitled to public assistance upon proof of need, regardless of existence of a parent or responsible relative, and it was left to the State to seek to recoup its welfare expenditures via a support proceeding against any such parent or relative. This is the method which was used in both AFDC and home relief cases prior to adoption of the section under attack and it is of interest to note that it is the method still used in AFDC cases.

Plaintiffs in this action are three individuals under the age of 21 who are not living with a parent or responsible relative, and are thus eligible only for home relief, not for AFDC. They are concededly needy and, prior to the effective date of section 15, they would have been and were entitled to home relief, having met all requisite criteria.

One of the plaintiffs was 18 years old at the time this action was commenced. His father had abandoned his mother before plaintiff's birth, and his whereabouts are unknown. Until 1976, the son had lived with his mother, and was receiving an AFDC grant. His mother was then committed to a State hospital due to mental illness and, as a result, the son became ineligible for AFDC. Although he ultimately obtained a final disposition in a support proceeding against his mother in an attempt to satisfy section 15, he was denied home relief on the ground that he had not obtained a final disposition in a support proceeding against his missing father.

Standing uncontroverted is the accepted fact and reality that in each of these cases in order to obtain the required "disposition," it would take from several weeks to several months, during which time no public assistance would be available to these needy young people.... In certain areas of the State even greater delays are normal, and, in fact, it has been estimated that in New York City it will often take from 10 to 12 months to obtain a "disposition" in such a support proceeding. Under the challenged statute, the plaintiffs and others in similar situations are, of course, denied any public assistance during this period,

although they meet all criteria for measuring need, solely on the basis of their failure to obtain a disposition. Since they do meet the need criteria, and are thus a fortiori unable to support themselves without public aid, one must wonder how they are to survive this period of waiting for an overcrowded Family Court system to process their often quite futile support petitions.

In New York State, the provision for assistance to the needy is not a matter of legislative grace; rather, it is specifically mandated by our Constitution. Section 1 of article XVII of the New York State Constitution declares: "The aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions, and in such manner and by such means, as the legislature may from time to time determine." This provision was adopted in 1938, in the aftermath of the great depression, and was intended to serve two functions: First, it was felt to be necessary to sustain from constitutional attack the social welfare programs first created by the State during that period (cf. People v. Westchester County Nat. Bank, 231 NY 465); and, second, it was intended as an expression of the existence of a positive duty upon the State to aid the needy.

The legislative history of the Constitutional Convention of 1938 is indicative of a clear intent that State aid to the needy was deemed to be a fundamental part of the social contract. For example, the report of the Committee on Public Welfare, the group which drafted what became section 1 of article XVII of our Constitution, specifically states that one purpose of the amendment was to "recognize the responsibility of the State for the aid, care and support of persons in need" (Revised Record of the Constitutional Convention of the State of New York, vol II, p 1084 [1938]). Even more explicit are the comments by Edward F. Corsi, Chairman of the Committee on Social Welfare, in moving the adoption of the provision by the convention:

"We have made provision for the relief of the needy. Convinced that the care of the unemployed and their dependents is in our modern industrial society a permanent problem of major importance affecting the whole of society, we have recommended that:

""The aid, care and support of the needy are public concerns and shall be provided by the State and by such of its subdivisions and in such manner and by such means as the Legislature may from time to time determine.'

"Here are words which set forth a definite policy of government, a concrete social obligation which no court may ever misread. By this section, the committee hopes to achieve two purposes: First: to remove from the area of constitutional doubt the responsibility of the State to those who must look to society for the bare necessities of life; and, secondly, to set down

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