Thomas v. Siddiqui

¶1concurring.

¶2I concur with the decision of the majority, excepting only the reference to the tort of alienation of affection. The reference implies our continued recognition of such a cause of action.

¶3Many of the reasons that support abolishing the tort of criminal conversation also apply to alienation of affection. Hopefully, the idea of having a “property right” in another person is long since passed. "While I agree that we should attempt to protect marriage and the family unit, I doubt that lawsuits for money serve that goal. More often than not such suits will only continue the pain and abuse the parties have already suffered.

¶4Without the issue being raised, briefed, and before us, I believe it is poor jurisprudence to anticipate whether such a tort should continue in existence, or in what form it should continue.

¶5dissenting.

¶6I respectfully dissent.

¶7Under the laws of Missouri, marriage is a “civil contract.” § 451.010, RSMo 1986. The relationship that results from the entry of two persons into such a contract is one that the state seeks to foster and preserve where possible because of the societal stability marriage lends. See Hesington v. Estate of Hesington, 640 S.W.2d 824, 826 (Mo.App.1982). Thus, the state permits dissolution of the marriage contract without reference to fault only where one of the parties to the marriage believes that “there remains no reasonable likelihood that the marriage can be preserved and therefore the marriage is irretrievably broken.” § 452.305, RSMo 1986.

¶8Criminal conversation and alienation of affection are species of the tort genus interference with contract. To a degree not present in most other torts, however, criminal conversation and alienation of affection actions speak to the core moral concerns society wishes to claim for itself and foster in its members. One of the original foundations for these actions lay in a husband’s property rights in his wife. We no longer recognize *743that justification, nor should we. It does not follow, however, that no rationale for the causes of action exists.

¶9Some apologists for the tort system argue that tort laws exist to provide incentives to channel human activity toward society’s valued behaviors. “[0]ne primary purpose of legal systems is to modify human behavior, to induce at least some people to act in ways that they would not choose but for the pressure of legal incentives or disincentives.” Charles J. Goetz, Law and Economics, 1 (1984). Though the efficacy of the sanction is subject to debate, criminal conversation and alienation of affection actions provide some economic incentive designed to channel human behavior toward preserving the sanctity of marriage.

¶10In this case, the majority chooses to exercise its common law authority to abolish one of the common law’s incentives focused on the marriage contract. Courts have long claimed the ability to adjust the common law’s incentives and disincentives as the times require and, in that claim, have asserted prescience as to the requirements of the times. That the Court has that authority is beyond serious debate. For me, the more serious question in this case is not whether the Court can exercise that authority, but whether it should.

¶11Our constitution separates the powers of government, leaving it to the political branches to assess the direction in which the popular moral compass points. By constitutional design, we judges are insulated from the ebb and flow of popular tides, responsive instead to the neutral dictates of the law. The people have no frequently exercisable power to remove us if they disagree with us; the voters are limited to expressions of satisfaction or dissatisfaction concerning us, and then only once every twelve years; no candidate runs against us, offering the voters competing policy choices to those we impose through our opinions. To presume that a majority of the members of this Court feels the pulse of the people and can speak for them on issues of morals and values is a nearly irresistible temptation. To succumb to that temptation, however, is to assume more than we have a right to assume either constitutionally or personally.

¶12The decision to abolish either cause of action seems to me profoundly of the sort we generally leave to the political branches. Indeed, of the thirty-six states that have abolished criminal conversation, twenty-seven have done so by legislative decision.1 Of the nine courts that have exercised their common law authority to abolish criminal conversation, four 2 relied on prior legislative or judi*744cial decisions abolishing alienation of affection actions.3 Of the remaining five, Kentucky abolished both criminal conversation and alienation of affection actions in a single judicial decision. Hoye v. Hoye, 824 S.W.2d 422 (Ky.1992). This record hardly seems a national groundswell for judicial intervention in this area.

¶13To be fair, this case is limited to criminal conversation. Whether alienation of affection actions remain viable in Missouri is not an issue before the Court today. The experience in other states, and the separate opinion of Judge Price, leaves that question very much an open one, despite the majority’s dicta. Nevertheless, the policy of Missouri’s laws says unequivocally that the marriage contract is of a special status, far more important and worthy of protection than a contract for the sale of widgets or for the acquisition of a business opportunity. And yet, if alienation of affections does not survive as a cause of action ultimately, Missouri will continue to recognize a common law tort for the intentional interference with economically driven contractual relationships, while abolishing a cause of action for interference with a relationship the success of which is a major determinant of the strength of our social fabric.

¶14The Court takes a major step today, addressing an important question in the piecemeal fashion that is the hallmark of the common law’s movement. The Court may well be correct in the conclusion it reaches as to criminal conversation. Were I a member of the General Assembly, I would readily vote in support of a bill that abolishes criminal conversation and would hope that such a bill would also address the broader societal concerns this issue raises. But as a member of the General Assembly, I would be far more pleased if this Court would do the deed for me, shielding me from the disfavor of constituents who do not agree with me on this issue.

¶15For the reasons expressed, I respectfully dissent from the Court’s holding. Despite our common law power, I believe the Court would be better served were we to exercise our discretion in favor of a political solution to this question.