MICHAEL ROBINSON ET AL. v. V. D.
(AC 46477)
Cradle, Suarez and Westbrook, Js.
Argued March 4-officially released November 26, 2024
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The defendant appealed from the trial court‘s denial of his special motion to dismiss filed pursuant to the anti-SLAPP statute (
The trial court erred in failing to dismiss all counts of the plaintiffs’ underlying complaint, with the exception of the statutory and common-law vexatious litigation counts, as they were barred by absolute immunity under the litigation privilege.
The trial court erred in concluding that the defendant failed to meet his initial burden of proving that the allegations in the complaint regarding his conduct during the course of the union grievance proceedings implicated the exercise of his constitutional right to petition the government in connection with a matter of public concern, the allegations of the complaint having sufficiently implicated potential and significant issues regarding the hiring practices within a governmental entity.
The plaintiffs could not demonstrate probable cause that they would have prevailed on their claims of statutory or common-law vexatious litigation to the extent that those counts were based on the union grievance proceedings and, therefore, the special motion to dismiss should have been granted as to those counts.
The trial court properly denied the special motion to dismiss with respect to the defendant‘s efforts to obtain a civil protection order, the defendant‘s conduct having arisen out of a wholly private dispute between the parties that did not have any appreciable connection to a matter of public concern, thus falling outside the ambit of
* In accordance with federal law; see
The plaintiffs failed to establish beyond a reasonable doubt that either prong of the separation of powers doctrine set forth in the state constitution was implicated by
Procedural History
Action for, inter alia, defamation, and for other relief, brought to the Superior Court in the judicial district of New London, where the court, Knox, J., denied the defendant‘s special motion to dismiss, and the defendant appealed to this court. Reversed in part; further proceedings.
Jon L. Schoenhorn, with whom, on the brief, was Sebastian Ullman, certified legal intern, for the appellant (defendant).
Michael P. Carey, for the appellees (plaintiffs).
Daniel E. Livingston and Mary E. Kelly filed a brief for the Connecticut AFL-CIO as amicus curiae.
Opinion
WESTBROOK, J. The defendant, V. D., appeals from the judgment of the trial court denying his special motion to dismiss the underlying civil action pursuant to General Statutes
The following relevant facts and procedural history, which are undisputed for purposes of this appeal, were set forth by our Supreme Court in its earlier opinion in this matter.5 See Robinson v. V. D., 346 Conn. 1002,
“In late 2019 or early 2020, after applying for the full-time, permanent construction control inspector position, the defendant was informed that he had not been selected for the position. The defendant then resumed his job as a carpenter/mason. Thereafter, the defendant filed a formal, written grievance through his union representative [in which he] alleged that the plaintiffs were involved in a quid pro quo arrangement with the candidate selected for the position and the official who had selected the candidate. The defendant also alleged that he was denied the position, in part, because of his known affiliation with the union . . . . A hearing took place, at which, the plaintiffs contend, the defendant made certain statements consistent with the allegations in the written grievance. Administrative officials with the Coast Guard subsequently investigated both of the plaintiffs and cleared them of any wrongdoing.
“Thereafter, in June, 2020, the parties attended a competitive shooting event at a gun club in Burrillville, Rhode Island. After the event was over, Michael Robinson and the defendant had a verbal altercation in the parking lot, during which they exchanged certain insults. Thereafter, the defendant served an application for a [civil protection] order on Michael Robinson. A hearing took place in the Superior Court, which dismissed the application.
“In January, 2021, the defendant filed a special motion to dismiss, pursuant to
“The plaintiffs opposed the motion, and, following a hearing, the trial court denied the special motion to dismiss. The court found that the defendant‘s conduct as alleged in the complaint was not protected under
The defendant appealed from the trial court‘s decision to this court, following which the plaintiffs filed a motion to dismiss the appeal for lack of a final judgment. The defendant then moved to stay proceedings until our Supreme Court issued a decision in Pryor v. Brignole, 346 Conn. 534, 292 A.3d 701 (2023), in which the parties also had raised the issue of whether an appeal from the denial of a
On May 2, 2023, our Supreme Court released its decision in Smith v. Supple, 346 Conn. 928, 293 A.3d 851 (2023), in which it held that the denial of a special motion to dismiss that raises a colorable claim to the anti-SLAPP protections of
“The defendant presented evidence before the trial court that his actions related to a matter of public concern because they (1) arose from a collective bargaining agreement between the Coast Guard and the American Federation of Government Employees, Council 120, to which the defendant belongs, and (2) related to improprieties in the hiring process at the academy that went beyond his own personal position, specifically, that Coast Guard hiring officials disfavor persons with a union affiliation when hiring.” (Citation omitted; internal quotation marks omitted.) Robinson v. V. D., supra, 346 Conn. 1008-1009.
Our Supreme Court concluded on the basis of its review of the record and the plain meaning of right to petition the government that “the defendant has at least
Having determined that the appeal was taken from an appealable final judgment, our Supreme Court transferred the appeal back to this court pursuant to Practice Book § 65-1 “for further proceedings according to law.”6 Id., 1011. Additional facts will be set forth as necessary.
I
The defendant claims that the underlying action is barred by absolute immunity under the litigation privilege because all the relevant conduct alleged in the underlying complaint occurred during the course of judicial or quasi-judicial proceedings. Although the defendant raised the issue of absolute immunity in his
We begin by setting forth the appropriate legal standard and relevant principles of law. “When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it . . . [ordinarily] must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the
Courts often have used the terms absolute immunity and litigation privilege interchangeably. See Tyler v. Tatoian, 164 Conn. App. 82, 83 n.1, 137 A.3d 801, cert. denied, 321 Conn. 908, 135 A.3d 710 (2016). “The litigation privilege is a long-standing [common-law] rule that communications uttered or published in the course of judicial proceedings are absolutely privileged so long as they are in some way pertinent to the subject of the controversy. . . . The privilege . . . applies to every step of the proceeding until [its] final disposition . . . including to statements made in pleadings or other documents prepared in connection with [the] proceeding. . . . The privilege originated in response to the need to bar persons accused of crimes from suing their accusers for defamation. . . . [It] then developed to encompass and bar defamation claims against all participants in judicial proceedings, including judges, attorneys, parties, and witnesses. . . . Subsequently, the privilege was expanded to bar a variety of retaliatory civil claims arising from communications or communicative acts
“The policy underlying the [litigation] privilege is that in certain situations the public interest in having people speak freely outweighs the risk that individuals will occasionally abuse the privilege by making false and malicious statements. . . . Participants in a judicial process must be able to testify or otherwise take part without being hampered by fear of defamation [or other retaliatory litigation]. . . . [In] determining whether a statement is made in the course of a judicial proceeding . . . the court must decide as a matter of law whether the [alleged statement is] sufficiently relevant to the issues involved in [the] proceeding, so as to qualify for the privilege. . . . The test for relevancy is generous, and judicial proceeding has been defined liberally to encompass much more than civil litigation or criminal trials.” (Citations omitted; internal quotation marks omitted.) Deutsche Bank AG v. Vik, supra, 349 Conn. 137-38.
In deciding whether a person is entitled to absolute immunity under the litigation privilege, “[courts] must first determine whether the proceedings [in question] were [judicial or quasi-judicial] in nature. The judicial proceeding to which [absolute] immunity attaches has not been defined very exactly. It includes any hearing before a tribunal which performs a judicial function, ex parte or otherwise, and whether the hearing is public or not. . . . It extends also to the proceedings of many administrative officers, such as boards and commissions, so far as they have powers of discretion in applying the law to the facts which are regarded as judicial or quasi-judicial, in character.” (Emphasis
In addition to the application of law to fact requirement, our Supreme Court has identified additional factors for courts to consider in determining whether a proceeding is quasi-judicial in nature. These factors include whether the body conducting the proceeding has the power to “(1) exercise judgment and discretion; (2) hear and determine or to ascertain facts and decide; (3) make binding orders and judgments; (4) affect the personal or property rights of private persons; (5) examine witnesses and hear the litigation of the issues on a hearing; and (6) enforce decisions or impose penalties. . . . These factors are not exclusive; nor must all factors militate in favor of a determination that a proceeding is quasi-judicial in nature for a court to conclude that the proceeding is, in fact, quasi-judicial. . . . [T]hese factors are [i]n addition to, not in lieu of, the application of the law to fact requirement.” (Citations omitted; internal quotation marks omitted.) Priore v. Haig, 344 Conn. 636, 648, 280 A.3d 402 (2022). It is also important for courts “to consider whether there is a sound public policy reason for permitting the complete freedom of expression that a grant of absolute immunity provides.” (Internal quotation marks omitted.) Id., 652.
Our Supreme Court recently summarized that a proceeding will only be considered quasi-judicial if “the proceeding at issue is specifically authorized by law, applies law to fact in an adjudicatory manner, contains adequate procedural safeguards, and is supported by a public policy encouraging absolute immunity for proceeding participants.” Khan v. Yale University, 347 Conn. 1, 10, 295 A.3d 855 (2023). Accordingly, “whether a particular proceeding is quasi-judicial in nature, for the purposes of triggering absolute immunity, will
In the present case, the alleged conduct of the defendant occurred in connection with two separate and distinct proceedings: (1) the filing and pursuit of a union grievance and (2) the filing and pursuit of an application for a civil protection order. With respect to the grievance proceedings, the plaintiffs allege in the underlying complaint that the defendant made a number of false accusations against them, both in the written grievance complaint and in oral statements made during the grievance hearing. Specifically, the complaint provides that the defendant asserted that the plaintiffs had used their positions within the Coast Guard to influence the hiring process, including by engaging in an improper quid pro quo with Coast Guard officials and the person who eventually was hired for the permanent promotion sought by the defendant.11 With respect to the civil protection order proceedings, which arose out of the parties’ altercation at the gun show, the complaint alleges
First, we conclude that the union grievance proceedings are quasi-judicial in nature for purposes of applying absolute immunity. In Preston v. O‘Rourke, 74 Conn. App. 301, 314 n.6, 811 A.2d 753 (2002), this court recognized and resolved a split in authority over “whether communications made in the course of grievance or arbitration proceedings provided for by collective bargaining agreements should be accorded absolute immunity.” The court concluded that the “better result is the protection of absolute immunity.” Id. That determination is consistent with our Supreme Court‘s subsequent decision in Craig v. Stafford Construction, Inc., 271 Conn. 78, 80-81, 93, 856 A.2d 372 (2004), in which it held that an investigation conducted by the internal affairs division of the city of Hartford‘s police department constituted a quasi-judicial proceeding for the purpose of affording absolute immunity to the citizen whose claim of racial bias had given rise to the investigation. Although the court in Craig recognized “the debilitating affect that a false allegation of racial discrimination can have on a police officer“; id., 95; it nonetheless
Here, as was the case in Craig, the Coast Guard officials who heard the union grievance may not have possessed all of the aforementioned enumerated powers that we look to in determining whether proceedings are quasi-judicial. See Priore v. Haig, supra, 344 Conn. 648. Such deficit is not dispositive, however, of whether the proceeding was quasi-judicial in nature. Rather, we look to the overall facts and circumstances in making our determination.
The defendant was a federal employee and a member of a collective bargaining unit, and he initiated a formal grievance process as set forth in the relevant collective bargaining agreement. The matter was then adjudicated by Coast Guard administrative officials, who ascertained and evaluated the relevant facts and exercised judgment and discretion in applying all relevant rules, regulations and procedures applicable to the union grievance process. See, e.g.,
Very little additional discussion is warranted as to whether the proceeding pertaining to the application for a civil protection order was a judicial proceeding for purposes of absolute immunity. The filing of the application initiated an action in the Superior Court that resulted in a hearing at which a judge heard testimony, ascertained the relevant facts, and exercised judgment and discretion in applying the relevant law. The decision on the application potentially affected the personal rights of the parties. Applications for civil protection orders will often involve the disclosure of highly personal and potentially unfavorable information that is highly pertinent to the order being sought. Sound public policy favors granting absolute immunity in this context so that parties seeking the court‘s protection will not be chilled from bringing these matters to the attention of the court for fear of subsequent civil litigation.
Having reviewed the allegations set forth in the complaint; see footnotes 11 and 12 of this opinion; we conclude that the written statements and/or factual assertions that the defendant allegedly made regarding the plaintiffs in his grievance application and in the application seeking a civil protection order, as well as any oral statements or testimony made during the hearings before the Superior Court or the Coast Guard administrative officials, qualify as statements made during the course of a judicial or quasi-judicial proceeding. Specifically, the subject matter of the alleged statements and assertions-irrespective of their veracity or any ill intent on the part of the defendant-all directly related either to the defendant‘s purported rationale for bringing his union grievance or for seeking a civil protection order.
order. In other words, all statements were pertinent to the subject matter of the grievance or protection order proceedings such that they qualify for absolute immunity under the litigation privilege.
As previously noted, absolute immunity pursuant to the litigation privilege bars not only actions for defamation but a variety of legal theories or causes of actions that similarly may be construed as retaliatory on the basis of written and oral statements made during the course of a judicial or quasi-judicial proceeding. See Deutsche Bank AG v. Vik, supra, 349 Conn. 137-38. Thus, absolute immunity bars not only the plaintiffs’ defamation count but also those counts of the plaintiffs’ complaint sounding in invasion of privacy by false light and intentional and negligent infliction of emotional distress. See Dorfman v. Smith, 342 Conn. 582, 612–13, 271 A.3d 53 (2022) (litigation privilege bars negligent infliction of emotional distress claim); Simms v. Seaman, 308 Conn. 523, 569, 69 A.3d 880 (2013) (claim of intentional infliction of emotional distress is subject to litigation privilege); Tucker v. Bitonti, 34 Conn. Supp. 643, 647, 382 A.2d 841 (App. Sess. 1977) (absolute immunity bars claim of invasion of privacy if challenged conduct occurred in course of judicial proceedings).
We nevertheless agree with the plaintiffs that, in accordance with our Supreme Court‘s holding in Rioux v. Barry, 283 Conn. 338, 927 A.2d 304 (2007), absolute immunity cannot be invoked to bar those counts seeking to recover on theories of statutory and common-law vexatious litigation. Id., 343. The court in Rioux explained that absolute immunity does not attach to statements that provide the grounds for the tort of vexatious litigation, reasoning as follows: “[T]he fact that the tort of vexatious litigation itself employs a test that balances the need to encourage complaints against the need to protect the injured party‘s interests counsels strongly against a categorical or absolute immunity
For the reasons provided, we conclude that, with the exception of the statutory and common-law vexatious litigation counts, all counts of the plaintiffs’ underlying complaint are barred by absolute immunity under the litigation privilege and, therefore, must be dismissed. Because, however, the vexatious litigation counts are not subject to dismissal on that same ground, we still must consider whether the court improperly failed to dismiss those counts pursuant to the defendant‘s special motion to dismiss.
II
In addition to invoking absolute immunity, the defendant claims that the trial court improperly denied his special motion to dismiss filed pursuant to
“A special motion to dismiss filed pursuant to
Moreover, courts in California and Nevada, which have similar anti-SLAPP statutes, have utilized the following principles for distinguishing between a public and private interest: “First, public interest does not equate with mere curiosity. . . . Second, a matter of public interest should be something of concern to a substantial number of people. . . . Thus, a matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest. . . . Third, there should be some degree of closeness between the challenged statements and the asserted public interest . . . the assertion of a broad and amorphous public interest is not sufficient . . . . Fourth, the focus of the speaker‘s conduct should be the public interest rather than a mere effort to gather ammunition for another round of [private] controversy. . . . Finally, those charged with defamation cannot, by their own conduct, create their own defense by making the claimant a public figure. . . . A person cannot turn otherwise private information into a matter of public interest simply by communicating it to a large number of people.” (Citations omitted; internal quotation marks omitted.) Weinberg v. Feisel, 110 Cal. App. 4th 1122, 1132, 2 Cal. Rptr.
Turning first to the alleged conduct related to the defendant‘s efforts to obtain a civil protection order, we agree with the trial court‘s analysis that this conduct arises out of a wholly private dispute between the parties that does not have any appreciable connection to a matter of public concern. Accordingly, such conduct falls outside the ambit of
Contrastingly, we conclude that the court erroneously concluded that the defendant failed to meet his initial burden of proving that the allegations in the complaint regarding his conduct during the course of the union grievance proceedings implicated the exercise of his constitutional right to petition the government in connection with a matter of public concern. As set forth subsequently in this opinion, we agree with the defendant that the court‘s reasoning for denying the special motion to dismiss, at least with respect to this aspect of the complaint, cannot be sustained. In addition, pursuant to the second part of the
There is no dispute that the Coast Guard, as a federal agency, is a governmental body. Accordingly, the statements forming the basis of the plaintiffs’ complaint with respect to the grievance proceedings unquestionably were communications made in the context of the defendant exercising his right to petition the government, as contemplated by the anti-SLAPP statute, as they were made “in connection with an issue under consideration or review by a legislative, executive, administrative, judicial or other governmental body . . . .” (Emphasis added.)
This does not end the query, however. Even if the court failed to properly recognize that the defendant, at least in part, met his initial burden under
A vexatious litigation action brought either pursuant to the common law or pursuant to
III
Finally, because we conclude that a portion of the plaintiffs’ vexatious litigation counts are subject to dismissal pursuant to
“The constitutionality of a statute presents a question of law . . . over which our review is plenary. . . . While the courts may declare a statute to be unconstitutional, our power to do this should be exercised with caution, and in no doubtful case.” (Citations omitted; internal quotation marks omitted.) State v. Bonilla, 131 Conn. App. 388, 392, 28 A.3d 1005 (2011). Our Supreme Court has stated that, “[i]n our assessment of whether [a] statute passes constitutional muster, we proceed from the well recognized jurisprudential principle that [t]he party attacking a validly enacted statute . . . bears the heavy burden of proving its unconstitutionality beyond a reasonable doubt and we indulge in every presumption in favor of the statute‘s constitutionality.” (Internal quotation marks omitted.) State v. Jason B., 248 Conn. 543, 556, 729 A.2d 760, cert. denied, 528 U.S. 967, 120 S. Ct. 406, 145 L. Ed. 2d 316 (1999). “Where a statute is challenged as being unconstitutional on its face, the burden is especially heavy.” State v. Ryan, 48 Conn. App. 148, 154, 709 A.2d 21, cert. denied 244 Conn. 930, 711 A.2d 729, cert. denied, 525 U.S. 876, 119 S. Ct. 179, 142 L. Ed. 2d 146 (1998). With these principles in mind, we address the plaintiffs’ arguments in turn.
A
The plaintiffs first argue that
Thus, as explained by the Superior Court, a court considering a special motion to dismiss “does not need to make factual findings, but merely needs to determine, given all of the evidence provided by the parties, if there is any likelihood a reasonable juror could find in favor of the plaintiff. . . . If the answer is no, the court must dismiss the case and would, thus, only be dismissing a case that would be subject to dismissal on a motion
B
The plaintiffs also argue that
“[T]he primary purpose of [the separation of powers] doctrine is to prevent commingling of different powers of government in the same hands. . . . The constitution achieves this purpose by prescribing limitations and duties for each branch that are essential to each branch‘s independence and performance of assigned powers. . . . Nevertheless, [t]he rule of separation of governmental powers cannot always be rigidly applied. Our state government is not divided in any such
“In challenges to a statute‘s constitutionality on the ground that it impermissibly infringes on the judicial authority in violation of separation of powers principles, [a] statute will be held unconstitutional on [separation of powers] grounds [only] if: (1) it governs subject matter that not only falls within the judicial power, but also lies exclusively within judicial control; or (2) it significantly interferes with the orderly functioning of the Superior Court‘s judicial role.” (Citations omitted; internal quotation marks omitted.) State v. McCleese, 333 Conn. 378, 415, 215 A.3d 1154 (2019).
Contrary to the assertions of the plaintiffs, they have failed to establish beyond a reasonable doubt that either prong of the aforementioned test is implicated by
The plaintiffs have not claimed that
To summarize, we conclude that all counts of the complaint, with the exception of the counts sounding in common-law and statutory vexatious litigation, are barred by absolute immunity under the litigation privilege. With respect to the vexatious litigation counts, we affirm in part and reverse in part the court‘s decision to deny the special motion to dismiss as to those counts, concluding that the court should have granted the
The judgment is reversed in part as to the denial of the motion to dismiss and the case is remanded with direction to dismiss all counts of the plaintiffs’ complaint except those portions of the statutory and common-law vexatious litigation counts related to the protection order proceedings; the judgment is affirmed in all other respects.
In this opinion the other judges concurred.
Notes
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“[e] (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 . . . 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 . . . sets forth with particularity the circumstances giving rise to the complaint . . . 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. . . .
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“(h) The provisions of this section shall not . . . (3) affect, limit or preclude the right of a party filing a special motion to dismiss to any defense, remedy, immunity or privilege otherwise authorized by law . . . .”
“[T]he defendant also falsely alleged that: a. Michael Robinson was part of the alleged conspiracy; b. JW is the best childhood friend of one of the Robinsons’ sons; c. The hiring official was pressured into selecting JW acting against his better judgment; d. Mary Robinson had the means to and may have inappropriately influenced the referral lists used to select a candidate, and covered her tracks with various deceptions; e. Michael Robinson said that he would lie to protect Mary Robinson because she could get in a lot of trouble; f. Veterans’ preference laws were violated; g. JW was unfairly advanced through the quid pro quo arrangement and his personal relationship with [human resources] officials, while [the defendant] was unfairly treated because of his known affiliation with the union; h. Management favors persons who do not affiliate with the union; i. Mary Robinson threatened to investigate anyone who organized or helped the union to organize; j. An insinuation that wrongdoing led to a change in Mary Robinson‘s scope of work circa 2010 when it was determined that Michael Robinson‘s position as [National Association of Government Employees] union steward, which he had just obtained at that time, raised an appearance of potential conflicts of interest, and an assertion that both Robinsons were accused of unfair labor practices based on this situation; k. Mary Robinson had exerted inappropriate control over hiring at the academy for years; l. Mary Robinson received the ‘report of hire’ of JW although she should not have had access to it; m. Michael Robinson, acting on his own behalf and on behalf of Mary Robinson, relentlessly harassed and threatened [the defendant] about the grievance; n. Mary Robinson cut another employee ‘out of the loop’ on the JW hiring process; o. Mary Robinson ‘helped’ JW with his resume for the job posting but did not help anyone else; p. Michael Robinson encouraged [the defendant] not to post for the open position because Mary Robinson could get him a supervisory job; q. Michael Robinson made ‘continual transits to and from [Mary Robinson‘s] office with reports about [the defendant]; and r. Michael Robinson threatened and harassed [the defendant] about filing the grievance.”