State v. Salamon (concurring)
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****************************************************** The officially released date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the officially released date appearing in the opinion. In no event will any such motions be accepted before the officially released date. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** STATE v. SALAMON FIRST CONCURRENCE BORDEN, J., concurring. I agree with and join the majority opinion. I write separately and briefly to underscore two points. First, I note that this case presents the same question that I raised in my concurrence in Kinsey v. Pacific Employers Ins. Co., 277 Conn. 398, 414 19, 891 A.2d 959 (2006), regarding the constitutionality, under the separation of powers doctrine, of General Statutes § 12z. In the present case, the majority finds an ambiguity in the legislature s use of two somewhat linguistically different phrases to define the requisite intent for abduction and restraint, respectively. That is, the intent necessary for an abduction is an intent to prevent [a person s] liberation ; General Statutes § 53a-91 (2); and the intent necessary for a restraint is the intent to interfere substantially with [a person s] liberty . . . . General Statutes § 53a-91 (1). It is that ambiguity that permits the majority to go beyond the literal language of the kidnapping statute, and delve into its historical background and other nontextual sources to conclude that the legislature did not intend that a conviction for kidnapping would lie when the kidnapping is merely incidental to an underlying crime. Although I would readily conclude that the two phrasings in all probability mean the same thing, it is barely plausible that they could have different meanings (although I am hard pressed to say what that difference is), because they do use somewhat different words. See Felician Sisters of Connecticut, Inc. v. Historic District Commission, 284 Conn. 838, 850, 937 A.2d 39 (2008) ( use of the different terms . . . within the same statute suggests that the legislature acted with complete awareness of their different meanings . . . and that it intended the terms to have different meanings [internal quotation marks omitted]). Nonetheless, as in Kinsey, this is a slim but adequate reed on which to base a finding of ambiguity. Kinsey v. Pacific Employers Ins. Co., supra, 415 (Borden, J., concurring). That slim reed does again, however, bring to mind the serious question of the constitutionality of § 1-2z that I outlined in Kinsey, since, without it, the majority would be barred by § 1-2z from relying on the legislative history and likely would be compelled to arrive at a different answer. Id., 416. Second, because I joined the majority in State v. Luurtsema, 262 Conn. 179, 811 A.2d 223 (2002), in which this court affirmed a kidnapping conviction that, under the new standard articulated by the majority in the present case, would in all likelihood be required to be reversed, and because I issued a separate concurrence in that case urging that challenges to kidnapping convictions on the basis of slight degrees of detention be confined to challenges for vagueness; id., 205; I think it is incumbent on me to state why I have changed my mind and now join the majority in the present case. Briefly stated, I am persuaded by the majority opinion s insight that, in establishing our prior kidnapping jurisprudence, this court never fully analyzed the kidnapping statute, its historical background, and the anomalous results that our jurisprudence was producing. In light of that analysis, which the majority has now produced, I am convinced that, in enacting the kidnapping statutes, the legislature did not intend that almost every assault, sexual assault or robbery automatically would be elevated to a kidnapping, with its attendant heavy penalties and opportunities for prosecutorial overcharging, simply by virtue of a minor restraint of liberty that was inherent in the underlying crime. Such a result now strikes me, not simply as counterintuitive ; id., 204 (Borden, J., concurring); but as anomalous and not consistent with the likely legislative intent. It is time that we join the great majority of courts that have so concluded, as the majority has aptly demonstrated.
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