Lafferty v. JonesLafferty v. Jones
The plaintiffs, a first responder and family members of those killed in the mass shooting at Sandy Hook Elementary School, commenced separate actions, which the trial court consolidated, seeking to recover damages from the defendants, J and several of his affiliated corporate entities, for, inter alia, invasion of privacy, arising out of statements made by J on his radio show advancing certain conspiracy theories about the shooting. The defendants filed special motions to dismiss the plaintiffs’ complaints pursuant to the statute (
1. The trial court did not violate the defendants’ first amendment rights when it imposed sanctions on the basis of J‘s broadcast because, considering J‘s role as a party in the litigation and the threatening nature of his speech, J‘s broadcast presented an imminent and likely threat to the administration of justice: this court concluded that, if extrajudicial
2. The trial court did not abuse its discretion by sanctioning the defendants, as it was undisputed that the court‘s discovery orders were reasonably clear and that the defendants violated four of them, and revoking the defendants’ opportunity to pursue the special motions to dismiss was proportional to their discovery violations and in light of the nature of J‘s broadcast: the record supported the trial court‘s finding that the defendants wilfully disregarded the discovery orders and continued to challenge the underlying merits of the limited discovery despite the court‘s finding that it was supported by good cause, and the defendants’ noncompliance was prejudicial to the plaintiffs because the undisclosed discovery material could have assisted the plaintiffs in proving probable cause that they would succeed on the merits of their complaints; moreover, the sanctions imposed were proportional in light of the defendant‘s wilful, repeated violations of deadlines, when considered in combination with J‘s harassment and intimidation of M during the broadcast, and measured insofar as the sanctions fell short of a judgment of default or dismissal and, instead, merely required the defendants to adjudicate the merits of the cases in the ordinary course of litigation rather than through their special motions to dismiss; furthermore, the defendants’ claim that the sanctions were inappropriate because the limited discovery itself was overbroad did not excuse their failure to comply with the court‘s orders.
3. The defendants’ claim that the trial court denied them their right to due process by imposing sanctions without adequate notice and a meaningful opportunity to be heard was unavailing: the plaintiffs had filed an earlier motion seeking sanctions for the defendants’ discovery noncompliance, and the court repeatedly discussed the possibility of sanctioning the defendants, including warning that it would revoke their opportunity to pursue the special motions to dismiss, and issued an order stating that it would address J‘s broadcast at a hearing to be held the following day; moreover, the court heard thorough argument on the issue of sanctions at the hearing on the broadcast, and at no point did the defendants request additional time to prepare.
Procedural History
Action, in the first case, to recover damages for, inter alia, invasion of privacy, and for other relief, brought to the Superior Court in the judicial district of Fairfield, where the defendant Alex Emric Jones et al. filed a special motion to dismiss, action, in the second case, to recover damages for, inter alia, invasion of privacy, and for other relief, brought to the Superior Court in the judicial district of Fairfield, where the court, Bellis, J., granted the plaintiff William Sherlach‘s motion to add Robert Parker as a plaintiff, and the defendant Alex
ROBINSON, C. J. This public interest appeal presents the opportunity to consider the scope of a trial court‘s inherent authority to sanction a party to litigation for his or her remarks about the case in light of that party‘s right to free speech under the first amendment to the United States constitution. The plaintiffs in these cases, a first responder and family members of those killed in the mass shooting at Sandy Hook Elementary School,1 brought these actions against the defendants, Alex Emric Jones and several of his affiliated corporate entities,2 claiming that statements made on Jones’ radio show advancing certain conspiracy theories about the Sandy Hook shooting were tortious in nature. The defendants appeal3 from the orders of the trial court sanctioning them by revoking their opportunity to pursue the special motions to dismiss provided by Connecticut‘s anti-SLAPP4 statute,
The record reveals the following relevant facts and procedural history. On December 14, 2012, Adam Lanza murdered twenty children and six staff members in a mass shooting at Sandy Hook Elementary School in Newtown. Some conspiracy theorists questioned the circumstances surrounding the shooting and called it a hoax. In response to statements made by Jones and other individuals featured on his radio show, the plaintiffs brought three separate civil actions against the defendants in 2018. The complaints alleged counts of invasion of privacy by false light, defamation and defamation per se, intentional infliction of emotional distress, and negligent infliction of emotional distress, all of which were accompanied by counts of civil conspiracy. In addition, the complaints claimed violations of the Connecticut Unfair Trade Practices Act,
In November, 2018, the defendants filed special motions to dismiss the plaintiffs’ complaints pursuant to the anti-SLAPP statute. See
With respect to the specific discovery requests, the plaintiffs initially requested five special interrogatories and twenty-one requests for production from Jones.6 At a hearing on December 17, 2018, the trial court found good cause and granted the plaintiffs’ motion for limited discovery but indicated that it would not grant all of the plaintiffs’ requests and would consider each of the defendants’ objections individually. The trial court then allowed the parties numerous opportunities to mediate disputes and delineate their discovery obligations at discovery status conferences.
After narrowing the plaintiffs’ requests, the trial court initially ordered the defendants to produce their discovery compliance by February 23, 2019. The defendants failed to meet that deadline.7 The defendants then filed motions for an extension of time, which the trial court granted, allowing them until March 20, 2019, to produce their discovery materials. In granting the motions, the trial court “urge[d] the defendants to honor this court ordered deadline because the defendants are the ones [who] want their motion[s] to dismiss adjudicated, but if they‘re going to continue to ignore court deadlines, they‘re going to lose the ability . . . to pursue their [special] motion[s] to dismiss.”
Two days before the March 20, 2019 discovery deadline, the defendants again moved for an extension of time. This time, the trial court denied the motions, indicating at a hearing with the parties that the defendants had not substantially complied with its discovery orders. The trial court explained that the “defendants, at this point, are coming from a position of weakness. They‘ve blown past the court‘s deadlines. There hasn‘t been a single piece of paper [produced] or interrogatory answered.” In light of the defendants’ noncompliance, the plaintiffs moved for sanctions on March 20, 2019. Specifically, the plaintiffs argued that, under Practice Book § 13-148 and the trial court‘s inherent authority, the court should impose sanctions for the defendants’ violations of discovery deadlines.
At a hearing on April 3, 2019, the trial court began to
Subsequently, in late May, 2019, the plaintiffs brought additional discovery issues to the trial court‘s attention. Specifically, the plaintiffs requested, inter alia, additional responsive marketing data from Google Analytics and a complete search of Jones’ cell phone. After another hearing, the trial court ordered the defendants to produce marketing data responsive to the court approved production requests. The court warned that it would “consider appropriate sanctions for the defendants’ failure to fully and fairly comply” with its latest orders.
On Friday, June 14, 2019, Jones and his attorney, Norman A. Pattis, appeared together on Jones’ radio broadcast to discuss the pending case. Jones explained to the broadcast audience that someone had embedded child pornography in e-mails turned over to the plaintiffs in discovery. Jones then began a long invective against those whom he believed had planted the child pornography, which we quote in relevant part:9
“Jones: I‘m here to tell the little pimps, the Senator Murphys and the prosecutor, the Obama appointed prosecutor [who‘s] doing all this, bitch, I don‘t need to talk about poor dead kids to have listeners.
* * *
“Jones: They say you‘re a pedophile. We knew it was coming. And when the Obama appointed [United States] attorney demanded, out of 9.6 million e-mails in the last seven years since Sandy Hook, metadata, which meant tracking the e-mails and where they went, well, we fought it in court. The judge ordered for us to release a large number of those e-mails. That‘s Chris Mattei [who] got that done, a very interesting individual with the firm of Koskoff & Koskoff run by Senator Murphy and Senator Blumenthal that say, for America to survive, quote, I must be taken off the air. . . .
“It was hidden. In Sandy Hook e-mails threatening us, there was child porn. . . . And they get these e-mails a few weeks ago, and they go right to the [Federal Bureau of Investigation (FBI)] and say, ‘[w]e‘ve got him with child porn.’ The FBI says, ‘[h]e never opened it. He didn‘t send it.’ And then they act like, oh, they‘re our friends. They‘re not going to do anything with
“Now, I wonder who during discovery would send e-mails out of millions and then know what to search and look at. . . . One million dollars on conviction for who sent the child porn. . . . We‘re going to turn you loose, the [internet service providers], the law enforcement. You know who did it. . . .
“You think when you call up, oh, we‘ll protect you. We found the child porn. I like women with big giant tits and big asses. I don‘t like kids like you goddamn[ed] rapists, f-heads. In fact, you fucks are going to get it, you fucking child molesters. I‘ll fucking get you in the end, you fucks. . . . You‘re trying to set me up with child porn. I‘m going to get your ass. One million dollars. One million dollars, you little gang members. One million dollars to put your head on a pike. One million dollars, bitch. I‘m going to get your ass. You understand me now? You‘re not going to ever defeat Texas, you sacks of shit. So you get ready for that.
* * *
“Jones: Why does law enforcement say $5000, dead or alive? One million. ‘Cause we all know who did it.
* * *
“Jones: What a nice group of Democrats. How surprising. What nice people. Chris Mattei, Chris Mattei. Let‘s zoom in on Chris Mattei. Oh, nice little Chris Mattei. What a good American. What a good boy. You think you‘ll put on me—anyways, I‘m done. Total war. You want it? You got it. I‘m not into kids like your Democratic party, you cocksuckers. So get ready. . . .
“Jones: The point is, I‘m not putting up . . . with these guys anymore, man, and their behavior, ‘cause I‘m not an idiot. They literally went right in there and found this hidden stuff. Oh, my God. Oh, my God. And they‘re my friends. We want to protect you now, Alex. Oh, you‘re not going to get in trouble for what we found. F-U man, F-U to hell. I pray God, not anybody else, God visit[s] vengeance upon you in the name of Jesus Christ and all the saints. I pray for divine intervention against the powers of Satan. I literally would never have sex with children. I don‘t like having sex with children. I would never have sex with children. I am not a Democrat. I am not a liberal. I do not cut children‘s genitals off like the left does.
* * *
“Jones: I want them to. I want them to track it back to you know who. . . . I wonder who the person of interest is.
“Pattis: Look, are you showing Chris Mattei‘s photograph on here?10
“Jones: Oh, no. That was an accidental cut. He‘s a nice Obama boy. . . . He‘s a white . . . boy that thinks he
* * *
“Jones: That‘s why I said, one million. I‘m not BS-ing. One million dollars when they are convicted. The bounty is out, bitches, and you know, you feds, they‘re going to know you did it. They‘re going to get your ass, you little dirt bag. One million, bitch. It‘s out on your ass. . . .
“Jones: One million—I pay all debts—one million is on the street for who sent me—and we‘re going to get the e-mails. We‘re going to publish them next week. And we‘re going to make a whole thing. We‘re not going to show the child porn, but we‘re going to put the e-mails out, and we‘re going to show you where they came from. One million on the street. . . .
“Jones: A million dollars is after them. So I bet you‘ll sleep real good tonight, little jerk. ‘Cause your own buddies are going to turn you in, and you‘re going to go to prison, you little white . . . boy jerkoff. Son of a bitch. I mean, I can‘t handle them. They want war? They‘re going to get war. I am sick of these people, a bunch of chicken craps [who] have taken this country over [who] want to attack real Americans. . . .
“Jones: We‘re going to get them. One million. One million dollars is on the street against you. You didn‘t destroy America on time, bitch. I am pissed, man. I will give everything I have to stop living in this world with these people.
* * *
“Jones: I am sure that [the United States] attorneys appointed by Obama are sweet little cupcakes. Come on. . . .
“Jones: I don‘t even think errand boy did this. I‘m actually not saying that.11 . . . And so, if they want war—you know, it‘s not a threat. It‘s like an AC/DC song. If you want blood, you‘ve got it. Blood on the streets, man. . . .
“Jones: And I‘m just asking the Pentagon and the patriots that are left, and 4chan and 8chan, and Anonymous, anybody [who‘s] a patriot, I am under attack, and if they bring me down, they‘ll bring you down. I just have faith in you. I‘m under attack. And I summon the mean war. I summon all of it against the enemy. . . .
“Jones: . . . How would you like an Obama appointed [United States] attorney, man, [who] literally found a needle in a field of haystacks and tried to go to the feds and get me indicted? . . . And now I ask my listeners and everyone, you claimed I sent people. I never sent anybody. And I want legal and lawful action. But I pray to God that America awaken[s]. Will Texas be defeated? You will now decide. This is war.” (Footnotes added.)
The next day, June 18, 2019, the parties appeared and argued whether the trial court should order sanctions as a result of the broadcast. After hearing argument, the trial court imposed sanctions against the defendants and revoked their opportunity to pursue the merits of their special motions to dismiss pursuant to
On appeal, the defendants claim that the trial court (1) improperly sanctioned them in violation of their first amendment rights, (2) abused its discretion in fashioning sanctions for discovery noncompliance, and (3) denied them due process by failing to afford them notice and a meaningful opportunity to be heard.
I
We begin with the defendants’ challenge to the merits of the sanctions orders, which the trial court based on two grounds. First, the trial court found that the defendants were noncompliant with discovery, with their failure to comply with additional production deadlines viewed in light of their previous noncompliance. Second, the trial court found that, on the June 14, 2019 broadcast, Jones accused Mattei of committing a felony and then harassed, intimidated, and threatened him.13 Because the trial court provided these two bases for its sanctions orders, we must assess the court‘s orders both for their propriety as sanctions and their constitutionality. We first conclude that the sanctions did not run afoul of the first amendment because they addressed speech that was an imminent and likely threat to the administration of justice. We also conclude that these two rationales, when considered together, provided sufficient grounds for sanctioning the defendants. Accordingly, it was not an abuse of the trial court‘s discretion to sanction the defendants for their discovery violations and Jones’ vituperative speech.
A
We first consider whether the trial court‘s sanctions were permissible under the first amendment‘s free speech protections. The defendants argue that the trial court‘s ruling is “bereft of any analysis of the first amendment” and that the court‘s inherent authority is not an adequate ground to sanction them on the basis
It is well settled that a trial court “has the inherent authority to impose sanctions against an attorney and his client for a course of claimed dilatory, bad faith and harassing litigation conduct . . . .” (Internal quotation marks omitted.) CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 375, 393, 685 A.2d 1108 (1996), overruled in part on other grounds by State v. Salmon, 250 Conn. 147, 735 A.2d 333 (1999); see also R. Pushaw, “The Inherent Powers of Federal Courts and the Structural Constitution,” 86 Iowa L. Rev. 735, 764–65 (2001) (“The inherent authority to administer judicial proceedings carries with it a corollary power to control those involved in court business—parties, witnesses, jurors, spectators, and lawyers—to maintain order, decorum, and respect. Sanctions have long been deemed imperative to protect against the disruption or abuse of judicial processes and to ensure obedience to a court‘s orders, thereby preserving its authority and dignity.” (Footnote omitted.)).
A long line of decisions makes clear that this inherent authority to sanction a party extends to sanctioning participants to litigation for engaging in threatening and harassing behavior. See Maurice v. Chester Housing Associates Ltd. Partnership, 188 Conn. App. 21, 22–23, 204 A.3d 71 (dismissing writ of error stemming from sanctions order, issued under court‘s inherent authority, against nonparty partner in defendant partnership for sending “an inappropriate e-mail” to opposing counsel and telling her to “sit on his fucking head” (internal quotation marks omitted)), cert. denied, 331 Conn. 923, 206 A.3d 765 (2019);14 see also Waivio v. Board of Trustees of the University of Illinois, 290 Fed. Appx. 935, 936–37 (7th Cir. 2008) (affirming judgment of dismissal when plaintiff engaged in “delaying and threatening conduct in the course of the litigation,” including threatening to kill opposing counsel), cert. denied, 557 U.S. 926, 129 S. Ct. 2842, 174 L. Ed. 2d 563 (2009); Thomas v. Tenneco Packaging Co., 293 F.3d 1306, 1308 (11th Cir. 2002) (upholding sanctions against lawyer for
When acting under its inherent powers, a court should proceed with caution; “[b]ecause of their very potency, inherent powers must be exercised with restraint and discretion.” Chambers v. NASCO, Inc., 501 U.S. 32, 44, 111 S. Ct. 2123, 115 L. Ed. 2d 27 (1991). This cautionary approach requires that any exercise of the inherent power to sanction be limited by constitutional concerns, such as the requirements of due process. See, e.g., Roadway Express, Inc. v. Piper, 447 U.S. 752, 767, 100 S. Ct. 2455, 65 L. Ed. 2d 488 (1980) (“[l]ike other sanctions, attorney‘s fees certainly should not be assessed lightly or without fair notice and an opportunity for a hearing on the record“); R. Pushaw, supra, 86 Iowa L. Rev. 784 (“[t]o be sure, the [c]ourt has recognized that the [c]onstitution limits federal judges’ inherent powers“). As a result, a trial court‘s exercise of its inherent authority to sanction a party for harassing or threatening speech in the context of litigation is limited by the protections of the first amendment.15 “The [f]irst [a]mendment requires courts to tread warily when restricting litigants’ speech. They may do so only when necessary to protect the fairness or integrity of the particular litigation before them.” Bank of Hope v. Chon, 938 F.3d 389, 397 (3d Cir. 2019); see also Economy Carpets Manufacturers & Distributors, Inc. v. Better Business Bureau of Baton Rouge Area, Inc., 330 So. 2d 301, 304 (La. 1976) (“the judicial authority, as all powers of government, is not without limit, and [when] it is asserted an individual‘s right of free speech has been abridged by the exercise of that power, the burden is [on] us to define its limitations“). Speech that might otherwise be protected may be restricted under certain circumstances because of pending judicial proceedings. See, e.g., In re Brianna B., 66 Conn. App. 695, 701, 785 A.2d 1189 (2001) (“[t]he
Fundamental first amendment principles guide our analysis of the defendants’ claims in this appeal. “The [f]irst [a]mendment, applicable to the [s]tates through the [due process clause of the] [f]ourteenth [a]mendment, provides that Congress shall make no law . . . abridging the freedom of speech. The hallmark of the protection of free speech is to allow free trade in ideas—even ideas that the overwhelming majority of people might find distasteful or discomforting. . . . Thus, the [f]irst [a]mendment ordinarily denies [the government] the power to prohibit dissemination of social, economic and political doctrine [that] a vast majority of its citizens believes to be false and fraught with evil consequence. . . . The [f]irst [a]mendment affords protection to symbolic or expressive conduct as well as to actual speech. . . . The protections afforded by the [f]irst [a]mendment, however, are not absolute, and we have long recognized that the government may regulate certain categories of expression consistent with the [c]onstitution.” (Internal quotation marks omitted.) State v. Moulton, 310 Conn. 337, 348–49, 78 A.3d 55 (2013), quoting Virginia v. Black, 538 U.S. 343, 358, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003).
Whether the trial court‘s sanctions constitute an impermissible restriction on the defendants’ speech presents a question of law, over which our review is plenary. “In certain first amendment contexts . . . appellate courts are bound to apply a de novo standard of review. . . . [In such cases], the inquiry into the protected status of . . . speech is one of law, not fact. . . . As such, an appellate court is compelled to examine for [itself] the . . . statements [at] issue and the circumstances under which they [were] made to [determine] whether . . . they . . . are of a character [that] the principles of the [f]irst [a]mendment . . . protect. . . . [I]n cases raising [f]irst [a]mendment issues [the United States Supreme Court has] repeatedly held that an appellate court has an obligation to make an independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion [in] the field of free expression. New York Times Co. v. Sullivan, [376 U.S. 254, 284–86, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964)]. . . . This rule of independent review was forged in recognition that a [reviewing] [c]ourt‘s duty is not limited to the elaboration of constitutional principles . . . . [Rather, an appellate court] must also in proper cases review the evidence to make certain that those principles have been constitutionally applied. . . . Therefore, even though, ordinarily . . . [f]indings of fact . . . shall not be set aside unless clearly erroneous, [appellate courts] are obliged to [perform] a fresh examination of crucial facts under the
Whether judicial sanctions imposed for extrajudicial statements made by a party to pending litigation run afoul of the first amendment presents a question of first impression in Connecticut. We find instructive the test that the United States Supreme Court has adopted for considering the constitutionality of contempt as a sanction for out-of-court statements commenting on judicial proceedings.16 The leading case is Bridges v. California, 314 U.S. 252, 275–77, 62 S. Ct. 190, 86 L. Ed. 192 (1941), in which the Supreme Court considered whether a union leader could be held in contempt when a newspaper published statements that he had made threatening a strike. The court considered whether the speech presented a “clear and present danger” to the administration of justice. Id., 261–262, 273. Specifically, the court analyzed “the particular utterances . . . in question and the circumstances of their publication to determine to what extent the substantive evil of unfair administration of justice was a likely consequence, and whether the degree of likelihood was sufficient to justify summary punishment.” Id., 271. The court reversed the contempt finding because it concluded that a threat to call an impending strike, which the court observed was a legal course of action,17 had not interfered with the administration of justice. Id., 277–78.
Subsequently, in Craig v. Harney, 331 U.S. 367, 368, 375–78, 67 S. Ct. 1249, 91 L. Ed. 1546 (1947), the court applied Bridges to a contempt finding imposed for news articles that criticized a judge‘s ruling and discussed the community‘s response. Illuminating further clear and present danger, the court explained: “The vehemence of the language used is not alone the measure of the power to punish for contempt. The fires which it kindles must constitute an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil.” (Emphasis added.) Id., 376. In Craig, the court deemed speech critical of an elected judge “appropriate, if not necessary.” Id., 377. Because “there was . . . no threat or menace to the integrity of the trial“; id.; the court held that the speech was protected. Id., 378.
The Supreme Court again considered the applicability of Bridges in Wood v. Georgia, 370 U.S. 375, 82 S. Ct. 1364, 8 L. Ed. 2d 569 (1962). In Wood, a state court judge convened a grand jury to investigate election law violations, and a local sheriff published a written statement outside of court criticizing the judge and the investigation, which was made available to the grand jury. Id., 376–80, 393. As a result, the state judge held the
But, as first amendment case law has progressed, the clear and present danger standard articulated in Bridges has been subject to criticism. For example, Justice William O. Douglas excoriated the use of clear and present danger in his concurrence in Brandenburg v. Ohio, 395 U.S. 444, 452–54, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969). See also, e.g., T. Emerson, “Toward a General Theory of the First Amendment,” 72 Yale L.J. 877, 912 (1963) (“There is still some blood remaining in the doctrine, and it has continued to be used in certain types of situations. But, as a general test of the limits of the first amendment, [clear and present danger] must be regarded as unacceptable.” (Footnote omitted.)). One major criticism is the ease with which the test may be manipulated to include protected speech. See Brandenburg v. Ohio, supra, 454 (Douglas, J., concurring) (“When one reads the opinions closely and sees when and how the ‘clear and present danger’ test has been applied, great misgivings are aroused. . . . [T]he threats were often loud but always puny and made serious only by judges so wedded to the status quo that critical analysis made them nervous.“); L. Kendrick, “On ‘Clear and Present Danger,’ ” 94 Notre Dame L. Rev. 1653, 1660 (2019) (explaining that clear and present danger test “has been criticized time and again for depending too much on circumstances and thereby giving judges too much discretion and failing to give speakers proper notice of the legality of their activities” (footnotes omitted)).
Although the United States Supreme Court has not directly rejected clear and present danger, the court has alluded to its evolution as a first amendment doctrine. For example, Justice David Souter, in his concurrence in Denver Area Educational Telecommunications Consortium, Inc. v. Federal Communications Commission, 518 U.S. 727, 778, 116 S. Ct. 2374, 135 L. Ed. 2d 888 (1996), argued that clear and present danger has evolved into the incitement test from Brandenburg, under which “constitutional guarantees of free speech and free press do not permit a [s]tate to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or
More recently, the United States Supreme Court considered a similar issue to that presented in this case in the context of attorney speech. See generally Gentile v. State Bar of Nevada, 501 U.S. 1030, 111 S. Ct. 2720, 115 L. Ed. 2d 888 (1991). In Gentile, the court concluded that a “substantial likelihood of material prejudice” standard was a constitutionally permissible standard to limit extrajudicial attorney speech. (Internal quotation marks omitted.) Id., 1075. In the absence of an express indication from the Supreme Court that a lower standard is permissible, we decline to extend the court‘s holding in Gentile to nonattorneys. This is because the court supported its reasoning by relying on the special status of attorneys, demonstrated through the government‘s role in attorney regulation and rules already in existence restricting attorney speech. See id., 1066–74. The court specifically declined to state which standard would apply to the speech of nonattorneys. See id., 1072–73 n.5 (noting that rule being interpreted did not apply to nonattorneys or attorneys outside of pending case).
Courts after Gentile have continued to apply clear and present danger to extrajudicial speech in certain circumstances. See, e.g., In re Kendall, 712 F.3d 814, 826 (3d Cir. 2013) (applying clear and present danger when analyzing whether judge was improperly held in criminal contempt for speech contained in judicial opinion); Standing Committee on Discipline v. Yagman, 55 F.3d 1430, 1443 (9th Cir. 1995) (applying clear and present danger to attorney speech outside of pending judicial proceeding); United States v. Bingham, 769 F. Supp. 1039, 1045 (N.D. Ill. 1991) (concluding that defense counsel‘s speech in televised interview on eve of jury selection constituted clear and present danger). For example, the court in In re White, Docket No. 2:07CV342, 2013 WL 5295652, *24–26, *68 (E.D. Va. September 13, 2013), considered whether sanctions for attorney‘s fees should enter as a result of a nonparty‘s allegedly threatening speech. The court analyzed this request for sanctions in light of different first amendment tests, including clear and present danger.19 See
“The [United States] Supreme Court has held that speech otherwise entitled to full constitutional protection may nonetheless be sanctioned if it obstructs or prejudices the administration of justice.” Standing Committee on Discipline v. Yagman, supra, 55 F.3d 1442, citing Gentile v. State Bar of Nevada, supra, 501 U.S. 1074–75, and Sheppard v. Maxwell, 384 U.S. 333, 363, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966). Importantly, “[a] rule governing speech, even speech entitled to full constitutional protection, need not use the words ‘clear and present danger’ in order to pass constitutional muster.” Gentile v. State Bar of Nevada, supra, 1036 (Kennedy, J.). Because the Supreme Court has not yet clearly supplanted clear and present danger in the area of extrajudicial speech, we will use it as a guideline in our analysis. Even still, it is necessary to refine the standard to our present circumstances to incorporate the requirements of Brandenburg and the inquiries outlined in Gentile. “Properly applied, the test requires a court to make its own inquiry into the imminence and magnitude of the danger said to flow from the particular utterance and then to balance the character of the evil, as well as its likelihood, against the need for free and unfettered expression.” Landmark Communications, Inc. v. Virginia, supra, 435 U.S. 842–43; see also Turney v. Pugh, 400 F.3d 1197, 1202 (9th Cir. 2005). We conclude that, if extrajudicial speech by a party to litigation poses an imminent and likely threat to the administration of judicial proceedings at issue, a court may sanction a party for that speech.
It is necessary to outline certain factors that affect whether extrajudicial speech threatens the administration of justice. “The [United States Supreme] Court gave two principal reasons for adopting this lower threshold
If the speaker is a party to litigation, the government‘s interest in ensuring the fair administration of justice is heightened, especially if the trial involves a criminal defendant. See Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 248 (7th Cir. 1975) (“[t]hat courts have the duty to ensure fair trials—‘the most fundamental of all freedoms‘—is beyond question” (footnote omitted)), cert. denied sub nom. Cunningham v. Chicago Council of Lawyers, 427 U.S. 912, 96 S. Ct. 3201, 49 L. Ed. 2d 1204 (1976); id., 257–58 (“we require even a greater insularity against the possibility of interference with fairness in criminal cases“). Judicial restrictions on a litigant‘s speech are more permissible than judicial restrictions on comments made by an outsider to the litigation, such as the press. See In re Application of Dow Jones & Co., 842 F.2d 603, 608 (2d Cir.) (“there is a substantial difference between a restraining order directed against the press—a form of censorship which the [f]irst [a]mendment sought to abolish from these shores—and the order here directed solely against trial participants“), cert. denied sub nom. Dow Jones & Co. v. Simon, 488 U.S. 946, 109 S. Ct. 377, 102 L. Ed. 2d 365 (1988); see also Standing Committee on Discipline v. Yagman, supra, 55 F.3d 1443 (“[w]hen lawyers speak out on matters unconnected to a pending case, there is no direct and immediate impact on the fair trial rights of litigants” (emphasis added)).
Relying in part on the distinction made in Gentile between trial participants and those outside the litigation, the Fifth Circuit declined to apply the stringent clear and present danger standard to a trial participant gag order. United States v. Brown, 218 F.3d 415, 426–27 (5th Cir. 2000), cert. denied, 531 U.S. 1111, 121 S. Ct. 854, 148 L. Ed. 2d 769 (2001). In Brown, the court decided that the lower standard in Gentile may be extended to nonattorney litigation participants, as there was “no reason . . . to distinguish between [attorneys and parties] for the purpose of evaluating a gag order directed at them both.” Id., 428; see also State v. Carruthers, 35 S.W.3d 516, 562–63 (Tenn. 2000) (declining to apply clear and present danger test to trial participants), cert. denied, 533 U.S. 953, 121 S. Ct. 2600, 150 L. Ed. 2d 757 (2001). We decline to completely extend the reasoning in Brown to this case and instead invoke a higher stan-
Courts must have the ability to restrict the rights of participants to the extent necessary to protect the fairness of the litigation. “Although litigants do not surrender their [f]irst [a]mendment rights at the courthouse door . . . those rights may be subordinated to other interests that arise in this setting. For instance, on several occasions [the] [c]ourt has approved restriction on the communications of trial participants where necessary to ensure a fair trial for a criminal defendant. . . . In the conduct of a case, a court often finds it necessary to restrict the free expression of participants, including counsel, witnesses, and jurors.” (Citations omitted; internal quotation marks omitted.) Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32–33 n.18, 104 S. Ct. 2199, 81 L. Ed. 2d 17 (1984). “Neither prosecutors, counsel for defense, the accused, witnesses, court staff nor enforcement officers coming under the jurisdiction of the court should be permitted to frustrate its function.” (Internal quotation marks omitted.) Gentile v. State Bar of Nevada, supra, 501 U.S. 1072. “[The United States Supreme Court] expressly contemplated that the speech of those participating before the courts could be limited. This distinction between participants in the litigation and strangers to it is brought into sharp relief by [the] holding in Seattle Times Co. v. Rhinehart, [supra, 20].” (Emphasis omitted; footnote omitted.) Gentile v. State Bar of Nevada, supra, 1072–73. “The primary danger of extrajudicial speech to the administration of justice must be that the outcome of a judicial proceeding, or the ability of the court to do its work, might be improperly influenced by people who have no legitimate part in the courts’ resolution of that matter. Of course, the person making an extrajudicial statement might actually be a party in an ongoing proceeding. Or, an out-of-court statement might not affect any pending matter, but might influence the course of some future proceeding. The point is that an attempt to interfere with the outcome of a case is properly punishable because justice is being affected through means other than those established for the proper disposition of a controversy.” L. Raveson, “Advocacy and Contempt: Constitutional Limitations on the Judicial Contempt Power; Part One: The
A related, but necessary inquiry, considers the timing and the nature of the speech. Speech is more likely to interfere with the administration of justice if it is calculated to intimidate or threaten other participants in the litigation. “It is without question that courts may sanction parties and their attorneys who engage in harassment of their opponents. . . . The [f]irst [a]mendment does not shield improper tactics used by litigants to advance their interests, even if those tactics involve communication of a message.” (Citation omitted.) B. Willis, C.P.A., Inc. v. Goodpaster, 183 F.3d 1231, 1234 (10th Cir.), cert. denied sub nom. Willis v. Goodpaster, 528 U.S. 1046, 120 S. Ct. 581, 145 L. Ed. 2d 483 (1999); see D‘Agostino v. Lynch, 382 Ill. App. 3d 960, 970, 887 N.E.2d 590 (“harassing the court and the litigants appearing before it” was “calculated to disrupt court proceedings and bring the administration of law into disrepute“), appeal denied, 229 Ill. 2d 619, 897 N.E.2d 250 (2008); Fidelity National Title Ins. Co. of New York v. Intercounty National Title Ins. Co., supra, 2002 WL 1433717, *11 (“A party‘s use of anonymous letters to opposing counsel to sabotage the litigation is an abuse of the judicial process. Anonymous, threatening letters prevent a speedy, open, and just resolution of the dispute on its merits.“).
Additionally, “[t]he possibility that other measures will serve the [s]tate‘s interests should also be weighed.” Landmark Communications, Inc. v. Virginia, supra, 435 U.S. 843. We also consider whether the sanction is narrowly tailored to achieve the government‘s substantial interest in ensuring the administration of justice. Gentile v. State Bar of Nevada, supra, 501 U.S. 1075.
Our analysis also is informed by several cases from our sister states’ appellate courts applying the clear and present danger standard to uphold contempt findings arising from statements by litigants.20 In one recent decision, the Georgia Court of Appeals upheld the contempt conviction of a witness who, while at the courthouse as a character witness in his son‘s criminal trial, insulted the minor victim‘s mother in the hallway outside the courtroom and “exclaim[ed] that he hoped God would make the children and grandchildren of those who lied about his son suffer in the same way his son was currently suffering.” Moton v. State, 332 Ga. App. 300, 300, 772 S.E.2d 393 (2015). An Illinois appeals court upheld a contempt conviction after the contemnor filed a motion alleging, inter alia, that the opposing parties and their attorney were part of the Mafia and had bribed the presiding judge. See D‘Agostino v. Lynch, supra, 382 Ill. App. 3d 961. In that case, the court stated that “[c]omments that are systematically designed to thwart the judicial process constitute a ‘clear and present danger’ to the administration of justice” and concluded that the
In establishing the constitutional bounds of the court‘s authority, we also find instructive those cases concluding that the litigant‘s conduct did not present a clear and present danger to the administration of justice. See Pennekamp v. Florida, 328 U.S. 331, 336–39, 348, 66 S. Ct. 1029, 90 L. Ed. 1295 (1946) (publishers of editorials and cartoon critical of judges did not pose clear and present danger); Garland v. State, 253 Ga. 789, 789, 791, 325 S.E.2d 131 (1985) (reversing contempt conviction of attorney whose remarks criticizing judge for violating judicial ethics and conducting “sham proceeding” were published in newspaper (internal quotation marks omitted)); Worcester Telegram & Gazette, Inc. v. Commonwealth, 354 Mass. 578, 579–83, 238 N.E.2d 861 (1968) (reversing contempt convictions of publisher and reporter, whose newspaper article inferred that defendant in pending criminal proceeding previously had been “convicted of a serious crime” leading to mistrial, because they did not purposefully try to affect trial‘s outcome); In re Contempt of Dudzinski, 257 Mich. App. 96, 106–107, 667 N.W.2d 68 (reversing contempt conviction of appellant who had worn “Kourts Kops Krooks” shirt in courtroom while quietly observing proceedings (internal quotation marks omitted)), appeal denied, 469 Mich. 988, 673 N.W.2d 756 (2003); Smith v. Pace, 313 S.W.3d 124, 126–27, 137 (Mo. 2010) (concluding that there was no interference or imminent threat of interference with administration of justice when lawyer defendant used “strong words . . . in petitioning the court . . . for a writ seeking to quash a subpoena” and therein accused judge and prosecutor of “misconduct” and “impropriety” (internal quotation marks omitted)). These cases demonstrate the types of speech that are protected and stand in stark contrast to Jones’ speech in this case.
In applying this precedent to the speech at issue in the present case, we first observe that the trial court did not expressly consider whether the speech posed an imminent and likely threat to the administration of justice in ruling on the motions for sanctions.21 The trial court instead found its authority to sanction under the court‘s inherent authority “to address out-of-court, bad faith litigation misconduct where there is a claim that a party harassed or threatened or sought to intimidate counsel on the other side” and noted its “obligation to ensure the integrity of the judicial process and [the] functioning of the court.” Nevertheless, the findings that led
Balancing the risk of fairness to the proceedings with “the need for free and unfettered expression,” as required by Landmark Communications, Inc. v. Virginia, supra, 435 U.S. 843, does not render Jones’ speech immune to sanctions under the first amendment, and we reject the defendants’ assertion that “there is no barrier to a litigant, especially a litigant who is a broadcaster, speaking freely about pending litigation. [Jones‘] decision to air his grievances over the airwaves and online is hardly remarkable. These media constitute the new public square.” Although we recognize and reaffirm the importance of robust public comment about the court system and the judicial process, and acknowledge that, out-side of litigation, Jones’ speech may be protected,22 the trial court‘s duty to ensure a fair trial for those appearing before it permits some restrictions on harassing and threatening speech toward participants in the litigation. Without the ability to place such restrictions, trial courts will be left defenseless to stop both actual interference and perceived threats to just adjudications. ” ‘Freedom of discussion should be given the widest range compatible with the essential requirement of the fair and orderly administration of justice.’ Pennekamp v. Florida, [supra, 328 U.S. 347]. But it must not be allowed to divert the trial from the ‘very purpose of a court system . . . to adjudicate controversies, both criminal and civil, in the calmness and solemnity of the courtroom according to legal procedures.’ ” Sheppard v. Maxwell, supra, 384 U.S. 350–51.
Regardless of whether enforcement comes in the form of civil or criminal penalties, speech that interferes with the administration of justice cannot be tolerated. In State v. Taupier, 330 Conn. 149, 193 A.3d 1 (2018), cert. denied, ___ U.S. ___, 139 S. Ct. 1188, 203 L. Ed. 2d 202 (2019), this court considered a first amendment challenge to a defendant‘s conviction of threatening in the first degree for an e-mail communication concerning a Superior Court judge. Id., 153–54. In that case, the defendant had “made it clear that he was extremely angry at the ‘court,’ over which [the judge] had presided,
There are two important distinctions between Bridges and its progeny, on the one hand, and the present case, on the other, that lead us to conclude that Jones’ broadcast posed an imminent and likely threat to the administration of justice. The first is Jones’ role as a party in the litigation and the second is the unmistakably threatening and vituperative nature of the speech at issue. Both of these factors influence the imminence and likelihood of the threatened harm. In both Wood and Bridges, the statements were made by nonparties criticizing judicial action. In the present case, Jones is a party commenting on his own litigation and, therefore, has a greater opportunity and perceived incentive to affect the outcome of the case.23 As a party to a judicial proceeding, Jones is participating in a government function and therefore is under the court‘s jurisdiction. For this reason, the trial court may sanction him for speech that, when made by a stranger to the litigation, may be acceptable.24
The second difference between the present case and Bridges and Woods is the nature of the intimidating and threatening speech, which demonstrates the coercive influence that might reasonably be expected as a result of Jones’ broadcast. “Since we are committed to a government of laws and not of men, it is of the utmost importance that the administration of justice be absolutely fair and orderly. [The United States Supreme Court] has recognized that the unhindered and untrammeled functioning of our courts is part of the very foundation of our constitutional democracy.” Cox v. Louisiana, 379 U.S. 559, 562, 85 S. Ct. 476, 13 L. Ed. 2d 487 (1965). “Courts must have [the] power to protect the interests of . . . litigants before them from unseemly efforts to pervert judicial action.” Pennekamp v. Florida, supra, 328 U.S. 347. The record in this case reflects additional threats targeting those involved in the case in connection with Jones’ speech.25 In an order dated June 21, 2019, the trial court stated: “In the interest of full disclosure to all parties, the court was contacted
Jones’ speech further was calculated to interfere with the fairness of the proceedings as it directly targeted opposing counsel, accusing him of felonious behavior and threatening him, and reasonably can be expected to influence how the plaintiffs litigate their case.27 On the broadcast, Jones declared war on those who planted the child pornography, implicated the plaintiffs’ counsel, and promoted a million dollar bounty. Jones stated: “You‘re trying to set me up with child porn. I‘m going to get your ass. One million dollars. One million dollars, you little gang members. One million dollars to put your head on a pike. One million dollars, bitch. I‘m going to get your ass.” A party who places a one million dollar bounty on the head of opposing counsel, whether literally or figuratively in the form of his conviction, undeniably interferes with the proceedings. This speech clearly ” ‘is directed to inciting or producing’ a threat to the administration of justice that is both ‘imminent’ and ‘likely’ to materialize.” Turney v. Pugh, supra, 400 F.3d 1202. Harassing and intimidating counsel so that they withdraw from litigating a case is beyond cavil; it is an unfair and inappropriate litigation strategy that strikes at the core of our system.28 See Harry v. Lagomarsine, Docket No. 18-CV-1822 (BMC) (LB), 2019 WL 1177718, *3 (E.D.N.Y. March 13, 2019) (explaining how threats to opposing counsel “effected a permanent change in [the] defendants’ representation“); Kalwasinski v. Ryan, supra, 2007 WL 2743434, *3 (“[b]y deliberately and intentionally participating in making threats of physical harm against parties and witnesses in his case, he has engaged in conduct that he should have known would threaten a fair decision in this matter“). We recognize that there is a place for strong advocacy in litigation, but language evoking threats of physical harm is not tolerable. In light of these reasons, we conclude that Jones’ speech could pose a threat to the plaintiffs’ ability to litigate their case, rendering it an imminent and likely threat to the administration of justice.
Finally, we consider whether the state‘s interests may be served in another manner and whether the sanctions imposed are narrowly tailored to the state‘s interest in
B
We next consider whether the trial court abused its discretion by sanctioning the defendants for their discovery abuses and Jones’ broadcast. A trial court‘s power to sanction a litigant or counsel stems from two different sources of authority, its inherent powers and the rules of practice. Millbrook Owners Assn., Inc. v. Hamilton Standard, 257 Conn. 1, 9–10, 776 A.2d 1115 (2001) (“One source of the trial court‘s authority to impose sanctions is the court‘s inherent power. . . . In addition, our rules of practice, adopted by the judges of the Superior Court in the exercise of their inherent rulemaking authority . . . also [provide] for specific instances in which a trial court may impose sanctions.” (Citations omitted; footnote omitted.)); see Chambers v. NASCO, Inc., supra, 501 U.S. 50–51 (discussing relationship between sanctions under Federal Rules of Civil Procedure and court‘s inherent power). As discussed previously, this inherent authority permits sanctions for “dilatory, bad faith and harassing litigation conduct . . . .” (Internal quotation marks omitted.) CFM of Connecticut, Inc. v. Chowdhury, supra, 239 Conn. 393. Additionally, under Practice Book § 13-14, a court may sanction a party for noncompliance with the court‘s discovery orders. Among the permissible sanctions is foreclosing judgment on the merits for a party, such as by rendering a default judgment against a defendant or by dismissing a plaintiff‘s case. See Practice Book § 13-14 (b). The anti-SLAPP statute does not limit the court‘s authority to impose sanctions. See
In reviewing the portion of the sanctions based on the violation of discovery orders, we consider three factors. “First, the order to be complied with must be reasonably clear. In this connection, however, we also state that even an order that does not meet this standard may form the basis of a sanction if the record establishes that, notwithstanding the lack of such clarity, the party sanctioned in fact understood the trial court‘s intended meaning. This requirement poses a legal question that we will review de novo. Second, the record must establish that the order was in fact violated. This requirement poses a question of fact that we will review using a clearly erroneous standard of review. Third, the sanction imposed must be proportional to the violation. This requirement poses a question of the discretion of the trial court that we will review for abuse of that discretion.” Millbrook Owners Assn., Inc. v. Hamilton Standard, supra, 257 Conn. 17–18. “The determinative question for an appellate court is not whether it would have imposed a similar sanction but whether the trial court could reasonably conclude as it did given the facts presented. Never will the case on appeal look as it does to a [trial court] . . . faced with the need to impose reasonable bounds and order on discovery.” (Internal quotation marks omitted.) Usowski v. Jacobson, 267 Conn. 73, 85, 836 A.2d 1167 (2003). “Trial court judges face great difficulties in controlling discovery procedures which all too often are abused by one side or the other and this court should support the trial judges’ reasonable use of sanctions to control discovery.” (Internal quotation marks omitted.) Mulrooney v. Wambolt, 215 Conn. 211, 223, 575 A.2d 996 (1990).
In its oral decision granting the motions for sanctions, the trial court observed that “the discovery in this case has been marked with obfuscation and delay on the part of the defendants . . . .” The court cited two specific examples of discovery noncompliance: (1) the defendants failed to produce adequate Google Analytics information with respect to marketing data and to conduct a complete search of Jones’ cell phone, and (2) the defendants “disregarded” discovery deadlines on multiple occasions, “continue[d] to object to . . . discovery, and failed to produce that which is within their knowledge, possession, or power to obtain.”
It is undisputed that the trial court‘s discovery orders were reasonably clear and that the defendants violated four of them.30 The defendants do not raise distinct arguments under the first two prongs of Millbrook Owner‘s Assn., Inc., but, instead, largely challenge the “harshness” of the sanctions imposed. In considering whether the sanction revoking the defendants’ opportunity to pursue the special motions to dismiss was proportional to the defendants’ discovery violations, we are guided by “the factors we previously have employed when review-
The plaintiffs argue that the sanctions are proportional because the defendants’ violations were “deliberate,” “wilful,” and in “bad faith . . . .” The defendants counter that their actions were not taken in bad faith. “[I]n assessing proportionality, a trial court must consider the totality of the circumstances, including, most importantly, the nature of the conduct itself.” Ridgaway v. Mount Vernon Fire Ins. Co., 328 Conn. 60, 76, 176 A.3d 1167 (2018); see also Millbrook Owners Assn., Inc. v. Hamilton Standard, supra, 257 Conn. 16 (“dismissal of an action is not an abuse of discretion where a party shows a deliberate, contumacious or unwarranted disregard for the court‘s authority” (internal quotation marks omitted)). In the present case, the trial court did not expressly find that the defendants’ discovery abuses were performed in bad faith but, in its oral decision, pointedly characterized their actions as being marked by a pattern of “obfuscation and delay . . . .” Additionally, the record supports the trial court‘s finding that the defendants repeatedly ignored court deadlines and continued to challenge the underlying merits of discovery, even after the court found the requisite good cause to allow discovery under
This wilful disregard was exacerbated by Jones’ con-
With respect to the defendants’ ability to comply with discovery, one mitigating factor that potentially could have explained the defendants’ noncompliance with the discovery deadlines was their change in counsel midway through the discovery process. Although the parties disagree as to whether this change in counsel was a “strategic” tactic, the record indicates that, even under the defendants’ original counsel, the documents were still far from ready for production.32 Moreover, the record supports the trial court‘s determination that the change in counsel did not by itself affect the defendants’ ability to produce the discovery on time.33
Turning to the prejudice factor, we consider the importance of the undisclosed discovery material, the effect the information would have on the party requesting it, and whether the information was available through other means. Yeager v. Alvarez, supra, 302 Conn. 787–88; see id., 789–90 (defendants were not prejudiced by noncompliance when materials that they sought had been indirectly included in plaintiffs’ production). In the present case, the record supports the trial court‘s implicit finding that the defendants’ noncompliance was prejudicial to the plaintiffs34 because, each time the defendants did not comply with the court ordered discovery, the plaintiffs were unable to access information that could assist them in proving probable cause that they would succeed on the merits of their complaints. For example, access to the defendants’ marketing data would be relevant to proving a financial connection between the defendants’ actions and the statements made during the broadcast.35 See Krahel v. Czoch, 186 Conn. App. 22, 35–36, 198 A.3d 103 (considering importance of unproduced discovery and its effect on plaintiff‘s case when analyzing prejudice), cert. denied, 330 Conn. 958, 198 A.3d 584 (2018).
Finally, we consider the proportionality of the specific sanction employed to the violations at issue. Here, the trial court was not just considering one violation of a court deadline but several, and, therefore, the defendants’ noncompliance warranted an appropriate sanction by that court. See Emerick v. Glastonbury, 177 Conn. App. 701, 736–37, 173 A.3d 701 (2017) (“The plaintiff‘s conduct, considered in its entirety, satisfied this standard. . . . The court‘s repeated warnings, suggestions and fines had no impact on the plaintiff, as he
Although the sanctions imposed by the trial court are not the sanctions enumerated within the rules of practice, this does not mean they were disproportionate or impermissible as a matter of law. For example, in Yeager v. Alvarez, supra, 302 Conn. 772, we concluded that a trial court had the authority to “strike an otherwise valid offer of compromise” as a sanction for a discovery violation; id., 778; because it “falls well within the ambit of judicial power contemplated by both the court‘s inherent authority and the rules of practice. Significantly, [Practice Book § 13-14 (a)] authorizes a trial court to penalize discovery violations by entering orders ‘as the ends of justice require.’ In fact, § 13-14 (b) contains sanctions even more severe than those imposed in this matter. These severe sanctions, which may strip a party of all prospect of prevailing, logically encompass a host of lesser penalties. Such milder sanctions may include orders that reduce a party‘s likelihood of success at trial . . . .” Id., 781.
The sanctions imposed by the trial court in the present case revoked a statutory benefit, namely, the opportunity to pursue the special motions to dismiss under
In assessing the proportionality of the sanctions, we next turn to the defendants’ central argument for excusing their noncompliance, namely, that the discovery in this case was overbroad and that the sanctions, therefore, were not appropriate. According to the defendants, “[w]hen discovery is allowed under
First, notwithstanding the merits of the defendants’ breadth argument, the plaintiffs correctly point out that, despite the defendants’ grievances with the scope of discovery, the defendants are still required to comply with the court‘s orders. “[A] party has a duty to obey a court order even if the order is later held to have been unwarranted.” Tomasso Bros., Inc. v. October Twenty-Four, Inc., 230 Conn. 641, 658 n.20, 646 A.2d 133 (1994); see also Mulholland v. Mulholland, 229 Conn. 643, 649, 643 A.2d 246 (1994). “An order of the court must be obeyed until it has been modified or successfully challenged, and the consequences for noncompliance may be severe indeed.” Fox v. First Bank, 198 Conn. 34, 40 n.3, 501 A.2d 747 (1985).
Second, nothing in the anti-SLAPP statute limits the trial court‘s discretion to order “specified and limited discovery relevant to the special motion to dismiss” beyond the “good cause” standard set forth in
II
The final issue in this appeal is whether the defendants were afforded adequate notice and a meaningful opportunity to respond before the trial court imposed sanctions. The defendants argue that the court ordered sanctions in an overly summary process because, on Monday, June 17, 2019, the plaintiffs filed their motion requesting court review of the broadcast, along with expedited briefing on “what orders must issue in connection with [Jones‘] on-air statements,” and indicated they would move for “specific relief on an expedited basis,” and, the very next day, the court ruled on the merits of the plaintiffs’ motion for sanctions without any briefing by the defendants. Additionally, the defendants argue that the court handed their attorney a copy of a recent judicial decision the court considered instructive; see Maurice v. Chester Housing Associates Ltd. Partnership, supra, 188 Conn. App. 21; and gave the defendants’ counsel only the lunch hour to prepare for argument on whether the trial court should order sanctions. The plaintiffs counter that the defendants were afforded sufficient due process because the trial court repeatedly had warned them that it would revoke the opportunity to pursue the special motions to dismiss. They also point out that a June 17, 2019 court order notified counsel that they should be prepared to discuss the broadcast at the hearing scheduled for the following day. Finally, the plaintiffs argue that the defendants did not at any point indicate to the court that they needed additional time to prepare. We agree with the plaintiffs and conclude that the trial court‘s sanctions did not violate the defendants’ due process rights.
“At their core, the due process clauses of the state and federal constitutions require that one subject to a significant deprivation of liberty or property must be accorded adequate notice and a meaningful opportunity to be heard.” Council on Probate Judicial Conduct re James H. Kinsella, 193 Conn. 180, 207, 476 A.2d 1041 (1984); see CFM of Connecticut, Inc. v. Chowdhury, supra, 239 Conn. 393 (“As a procedural matter, before
Having reviewed the record, we conclude that the defendants received adequate notice so as to be apprised of the possibility of sanctions entering as a result of their conduct.37 Specifically, the plaintiffs filed a motion seeking sanctions several months earlier because of the defendants’ discovery noncompliance. The trial court discussed the possibility of sanctioning the defendants on several occasions and had reissued this warning in its order on June 10, 2019, regarding the outstanding Google Analytics material. The day before the hearing, the plaintiffs indicated that they would seek interim relief, and the court issued an order stating that it would address the broadcast at the hearing. Because of the trial court‘s countless warnings that it would sanction the defendants in this specific manner, the defendants cannot reasonably contest that they were not adequately notified of the possibility of such sanctions. Cf. Fattibene v. Kealey, 18 Conn. App. 344, 350, 353–54, 558 A.2d 677 (1989) (reversing sanctions order when trial court ruled on motion for sanctions without first considering plaintiff‘s objection). In addition, the trial court held a hearing, at which it heard thorough argument on the issue, and at no point during the argument did the defendants request additional time.38 This satisfies the due process requirement for a meaningful opportunity to be heard. See, e.g., Thalheim v. Greenwich, 256 Conn. 628, 650–51, 775 A.2d 947 (2001) (concluding that sanctioned attorney had been afforded “adequate notice and a meaningful opportunity to be heard” when trial court issued order requesting that he “show cause why [he] should not be sanctioned” and attorney received hearing (internal quotation marks omitted)).
The sanctions orders are affirmed.
In this opinion the other justices concurred.
Notes
The additional defendants named in the complaint, Wolfgang Halbig, Cory T. Sklanka, Genesis Communications Network, Inc., and Midas Resources, Inc., are not parties to this appeal.
“(c) Any party filing a special motion to dismiss shall file such motion not later than thirty days after the date of return of the complaint, or the filing of a counterclaim or cross claim described in subsection (b) of this section. The court, upon a showing of good cause by a party seeking to file a special motion to dismiss, may extend the time to file a special motion to dismiss.
“(d) The court shall stay all discovery upon the filing of a special motion to dismiss. The stay of discovery shall remain in effect until the court grants or denies the special motion to dismiss and any interlocutory appeal thereof. Notwithstanding the entry of an order to stay discovery, the court, upon motion of a party and a showing of good cause, or upon its own motion, may order specified and limited discovery relevant to the special motion to dismiss.
“(e) (1) The court shall conduct an expedited hearing on a special motion to dismiss. . . . (2) When ruling on a special motion to dismiss, the court shall consider pleadings and supporting and opposing affidavits of the parties attesting to the facts upon which liability or a defense, as the case may be, is based. (3) The court shall grant a special motion to dismiss if the moving party makes an initial showing, by a preponderance of the evidence, that the opposing party‘s complaint, counterclaim or cross claim is based on the moving party‘s exercise of its right of free speech, right to petition the government, or right of association under the Constitution of the United States or the Constitution of the state in connection with a matter of public concern, unless the party that brought the complaint, counterclaim or cross claim sets forth with particularity the circumstances giving rise to the complaint, counterclaim or cross claim and demonstrates to the court that there is probable cause, considering all valid defenses, that the party will prevail on the merits of the complaint, counterclaim or cross claim. (4) The court shall rule on a special motion to dismiss as soon as practicable.
“(f) (1) If the court grants a special motion to dismiss under this section, the court shall award the moving party costs and reasonable attorney‘s fees, including such costs and fees incurred in connection with the filing of the special motion to dismiss. (2) If the court denies a special motion to dismiss under this section and finds that such special motion to dismiss is frivolous and solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney‘s fees to the party opposing such special motion to dismiss.
“(g) The findings or determinations made pursuant to subsections (e) and (f) of this section shall not be admitted into evidence at any later stage of the proceeding or in any subsequent action. . . .”
“(b) Such orders may include the following: (1) The entry of a nonsuit or default against the party failing to comply . . . [and] (5) If the party failing to comply is the plaintiff, the entry of a judgment of dismissal. . . .”
In their appellate briefs, the defendants noted the inconsistencies between the two transcripts and that the trial court had not ruled on their motion to correct, but they do not specifically challenge the accuracy of this phrase on appeal. As the trial court did not decide the motion to correct, we omit the words “Jew” and “shoe” in the quoted transcript.
The transcripts of the broadcast each exceed thirty pages, so we have not reproduced them in their entirety. We include only those portions relied on by the trial court, supplemented when necessary for context. Specifically, we have omitted those portions in which Jones discusses the case‘s background and the details of the child pornography incident, Jones’ introduction of Pattis, Jones’ critique of the plaintiffs’ case and the Google Analytics reports, discussion of the first amendment ramifications of questioning the veracity of the Sandy Hook shooting, most of Pattis’ statements, and other duplicative or irrelevant portions of the broadcast.
The defendants also argue that Jones, in a subsequent broadcast, “made clear he did not intend to threaten [Mattei].” The trial court interpreted this later broadcast as a classic nonapology, stating: “[W]hen I watched the broadcast several times, I wasn‘t able to see an apology in there. . . . It doesn‘t sound like an apology.”
This case originally was scheduled to be argued before a panel of this court consisting of Chief Justice Robinson and Justices Palmer, McDonald, D‘Auria, Mullins, Kahn and Ecker. Although Justice Palmer was not present when the case was argued before the court, he has read the briefs and appendices, and listened to a recording of the oral argument prior to participating in this decision.