Opinion
No. CV 03-0825352S
November 25, 2003
MEMORANDUM OF DECISION ON MOTION TO STRIKE COMPLAINT
In this case, plaintiff Daniel Albert, an officer of the Hartford (CT) Police Department, has sued defendant Shabbir Shaikh, the general manager of DB Dairy Mart, a convenience store on Maple Avenue in Hartford, to recover compensatory and punitive damages for alleged slander per se. The basis for the plaintiff's claim, as described in his one-count Complaint dated April 29, 2003, is as follows:
As part of his responsibilities as a Hartford police officer, the plaintiff was required and expected to cultivate and befriend store owners visible in the community. Complaint, ¶ 4. One of the business establishments to which the plaintiff was a frequent visitor as part of this community policing effort was the DB Dairy Mart. Id., ¶ 6. The defendant knew that the plaintiff was a Hartford police officer and benefitted from his regular presence at the DB Dairy Mart because it deterred others from committing or attempting to commit crimes on the premises. Id.
Beginning in late 2001 and continuing for approximately five months thereafter, the defendant allegedly gave the plaintiff permission to read newspapers for sale at the DB Dairy Mart without paying for them. Id., ¶ 7. This practice involved the plaintiff's selecting newspapers from the news racks and then returning them to the store after he had read them. Id.
While this arrangement was ongoing, the plaintiff was promoted from the rank of sergeant to the rank of lieutenant. Id. Several Hartford police officers were allegedly resentful of the plaintiff's promotion and displeased because of his reputation as a strict disciplinarian. Id., ¶ 9.
Later, on January 5, 2002, at least one officer who resented and was displeased by the plaintiff's promotion "went to the DB Dairy Mart with a reporter for The Hartford Courant who did not reveal to the defendant that he was a newspaper employee, but, instead acted as though he was part of the police investigation." Id., ¶ 10. "During the course of this interview, the defendant told the officer and reporter that [the plaintiff] removed newspapers from the premises without paying for them and then returned them. At no point did the defendant relay that he had given the plaintiff permission to so remove the newspapers." Id., ¶ 11.
According to the plaintiff "[t]he failure of the defendant to mention that the plaintiff had removed the newspapers with the permission of the manager resulted in the plaintiff's being accused of theft and other acts of professional misconduct by the Hartford Police Department, and the plaintiff was held up to scorn by The Hartford Courant." Id., ¶ 12. "As a direct and proximate result of the defendant's statements[;]" Id., ¶ 14; which the plaintiff claims to have been "defamatory . . . intentional and inspired by malice in fact[;]" Id., ¶ 13; the plaintiff claims that he "suffered the loss of his good name, humiliation, embarrassment, loss of reputation in the community and . . . [a] demot[ion] from the rank of lieutenant to sergeant, suffering considerable economic loss." Id., ¶ 14.
In response to the Complaint, the defendant filed a motion to strike dated June 24, 2003 ("Motion"). The Motion is based on the ground that as pleaded in the Complaint, the defendant's allegedly slanderous statements were made in such circumstances as to make absolutely immune from liability for their utterance. On this score, the defendant contends, more particularly, that he is absolutely immune from liability for making such statements because, as alleged by the plaintiff, he made them during what either was or reasonably appeared to be a police investigation into the plaintiff's on-duty activities. Because the defendant's alleged statements, as described in the Complaint, were not only pertinent to the investigation in question but figured importantly in it, "result[ing] in the plaintiff's being accused of thefts and other acts of professional misconduct by the Hartford Police Department;" id. ¶ 12; and ultimately in his "demot[ion] from the rank of lieutenant to sergeant;" id. 14; the defendant insists that he is absolutely immune from their alleged utterance under the doctrine of Petyan v. Ellis, 200 Conn. 243, 510 A.2d 1337 (1986); Kelley v. Bonney, 221 Conn. 549, 606 A.2d 693 (1992), and Craig v. Stafford Construction, Inc., 78 Conn. App. 549, 827 A.2d 793 (2003). The defendant has supported his Motion with two memoranda of law, to which the plaintiff has responded with three opposing legal memoranda of his own.
I CT Page 12231
The function of a motion to strike is to test the legal sufficiency of the allegations of a complaint to state a claim upon which relief can be granted. Sherwood v. Danbury Hospital, 252 Conn. 193, 213, 746 A.2d 730, 741 (2000); Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 214-15, 618 A.2d 25, 28 (1992); Ferryman v. Groton, 212 Conn. 138, 142, 561 A.2d 432, 434 (1989); Practice Book § 10-39. The role of the trial court in deciding a motion to strike is to examine the complaint, in the light most favorable to the pleader, to determine if the pleader has stated a legally sufficient cause of action. ATC Partnership v. Windham, 251 Conn. 597, 603, 741 A.2d 305, 309, cert. denied, 530 U.S. 1214, 120 S.Ct. 2217, 147 L.Ed.2d 249 (1999); Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859, 862 (1997); Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 232-33, 680 A.2d 127, 137, cert. denied, 520 U.S. 1103, 117 S.Ct. 1106, 137 L.Ed.2d 308 (1990). Thus, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Citations omitted) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630, 633 (2000).
In the typical case, a motion to strike challenges the alleged failure of the complaint to state facts which, if proved at trial, would establish each essential element of the plaintiff's intended claim or cause of action. Because matters of defense which, if proved at trial, would defeat the plaintiff's claim or cause of action without negating any of its essential elements must be specially pleaded by the defendant; Practice Book § 10-50; the plaintiff's failure to deny such a defense anticipatorily affords no valid legal basis for striking his complaint or any count thereof to which the defense may be asserted.
When, however, a plaintiff so pleads a claim or cause of action as necessarily to imply that even if the defendant engaged in the conduct of which he is accused, he clearly did so under circumstances affording him a complete defense to the claim or cause of action, a different situation arises. Then, because the facts alleged in the complaint, if proved as pleaded, would necessarily absolve the defendant from liability for his otherwise actionable conduct, a motion to strike may properly be granted for failure to state a claim upon which relief can be granted. See, e.g., Doe v. Board of Education, 76 Conn. App. 296, 300, 819 A.2d 289 (2003) (stating that "where it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendant is not required to plead [absolute] governmental immunity as a special defense and may attack the legal sufficiency of the complaint through a motion to strike.")
II
In Connecticut, "witnesses in a court of law have [long had] an absolute privilege when testifying [in] relation to the subject matter of the litigation." Connecticut Law of Torts, § 156(c), p. 420 (citing Blakeslee Sons v. Carroll, 64 Conn. 223, 232, 29 A. 473 (1894)). In Blakeslee, our Supreme Court explained that this "rule of law is . . . founded on public policy, which requires that . . . a witness giving evidence in a court of justice, shall do so with his mind uninfluenced by the fear of an accusation for defamation or a prosecution for libel." Id. The Blakeslee Court explained that the rule is necessary to protect honest witnesses from the certain cost and distress of later having to defend themselves against groundless defamation actions based upon their testimony, as well as to eliminate the genuine risk of adverse judgments in such actions despite their honesty. The latter risk would exist if witnesses' statements were not privileged, the Court suggested, because the essential issues in a defamation action — whether the witness's statements were in fact untrue and, if so, whether they were dictated by malice — are incapable of ready and certain determination, and thus juries cannot invariably be counted on to decide them correctly. Id., at 233 (quoting Lord Penzance, in Dawkins v. Lord Rokeby, 7 L.R.H.L., 744, for the proposition that such issues present "`open questions, upon which opinions may differ, and which can only be resolved by the exercise of human judgment.' ") "`With such possibilities hanging over his head,'" observed the Court, "`a witness cannot be expected to speak with that free and open mind which the administration of justice demands.'" Id.
"The effect of an absolute privilege," observed our Supreme Court in Petyan v. Ellis, supra, 200 Conn. at 246,
is that damages cannot be recovered for a defamatory statement even if it is published falsely and maliciously. Hassett v. Carroll, 85 Conn. 23, 35, 81 A. 1013 (1911); Magnan v. Anaconda Industries, Inc., 37 Conn. Sup. 38, 43, 429 A.2d 492 (1980), rev'd on other grounds, 193 Conn. 558, 479 A.2d 781 (1984). "The policy underlying the 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." Circus Circus Hotels, Inc. v. Witherspoon, supra, 61; Butz v. Economou, 438 U.S. 478, 512-13, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978).
Our courts impose three essential limitations upon the circumstances in which a witness enjoys absolute immunity from liability for statements he makes in a judicial proceeding. First, the proceeding in which he makes his statements must in fact be a "judicial proceeding." Second, the statements in question be made "in the course of" that judicial proceeding. Third, such statements most somehow relate to the subject matter of that proceeding. From the outset, however, it has always been clear that these requirements, so stated, are misleadingly narrow in significant respects. First, the range of proceedings to which the rule applies is far broader than formal trials or hearings in courts of law. Instead, it includes both traditional judicial proceedings and "quasi-judicial proceedings" as well. Second, the witness's statements "in the course of" such a proceeding need not be made in the course of formal testimony before the ultimate fact finder or decision maker, nor need they even be made under oath. Third, the witness's statements need not be relevant or material to the proceeding in question under the rules of evidence, as long as they are somehow pertinent to the subject matter of the proceeding.
As for the types of proceedings that constitute "judicial proceedings" within the meaning of this rule, our Supreme Court, in Petyan v. Ellis, supra, 200 Conn. at 246, observed that:
"The `judicial proceeding' to which the 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 includes for example, lunacy, bankruptcy, or naturalization proceedings, and an election contest. 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." Prosser Keeton, Torts (5th Ed.) 114, pp. 818-19 . . . [L]ike the privilege which is generally applied to pertinent statements made in formal judicial proceedings, an absolute privilege also attaches to relevant statements made during administrative proceedings which are `quasi-judicial' in nature." Mock v. Chicago, Rock Island Pacific R.R. Co., 454 F.2d 131, 133 (8th Cir. 1972); Thomas v. Petrulis, 125 Ill. App.3d 415, 419, 465 N.E.2d 1059 (1984); Richardson v. Dunbar, 95 Ill. App.3d 254, 256, 419 N.E.2d 1205 (1981); Circus Circus Hotels, Inc. v. Witherspoon, supra, 61.
Further describing a "quasi-judicial proceeding" in the recent case of Craig v. Stafford Construction, Inc., 78 Conn. App. 549, 553-55, 827 A.2d 793 (2003), our Appellate Court gave the following additional guidance:
[I]n determining whether a proceeding is quasi-judicial . . . our review is not limited to the label of the proceeding, but includes a review of the proceeding itself. The principal factors to be considered are whether the body 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 . . . Further, quasi-judicial is defined as the action, discretion, etc., of public administrative officers or bodies, who are required to investigate facts, or ascertain the existence of facts, hold hearings, weigh evidence, and draw conclusions from them, as a basis for their official action, and to exercise discretion of a judicial nature. (Internal quotation marks omitted.) Preston v. O'Rourke, supra, 74 Conn. App. 309-10; see also Kelley v. Bonney, supra, 221 Conn. 567.
Our inquiry into whether a proceeding is quasi-judicial is not limited to an operational analysis of the proceeding to determine whether it falls within the exact contours of prior cases. A proceeding may be characterized as quasi-judicial in nature even if it does not manifest all of the relevant factors that our case law has identified. Preston v. O'Rourke, supra, 74 Conn. App. 312. Furthermore, [the Court] must also inquire "whether there is a sound public policy reason for permitting the complete freedom of expression that a grant of absolute immunity provides." Kelley v. Bonney, supra, 221 Conn. 567.
As for the point in the proceeding when the witness must make his statements if he is to enjoy absolute immunity from defamation liability in connection with their utterance, the Petyan Court stated that:
The common law absolute privilege itself is not confined to the testimony of a witness but extends to any statement made in the course of a judicial proceeding, whether or not given under oath, so long as it is pertinent to the controversy . . . Thus it applies to statements made in pleadings or other documents prepared in connection with a court proceeding." (Citation omitted.) Id., 251-52.
Furthermore, because the bringing of proper claims and the framing of proper pleadings usually requires advance preparation, including the gathering of relevant evidence from knowledgeable witnesses, the absolute immunity of parties and witnesses has been held to extend to preliminary conversations between them which are directed to preparing the case even before it is brought. Thus our Supreme Court, in DeLaurentis v. New Haven, 220 Conn. 225, 264, 597 A.2d 807 (1991), stated that
Witnesses and parties to judicial proceedings must be permitted to speak freely, without subjecting their statements and intentions to later scrutiny by an indignant jury, if the judicial process is to function . . . While no civil remedies can guard against lies, the oath and the fear of being charged with perjury are adequate to warrant an absolute privilege for a witness' statements. (Citation omitted.)
One year later, moreover, in Kelley v. Bonney, supra, 221 Conn. at 574, the Supreme Court confirmed as follows that the absolute privilege extends to preparatory meetings between witnesses and parties before the institution of judicial or quasi-judicial proceedings as well as to the ultimate giving of testimony in such proceedings.
[T]here must be an open channel of communication between the persons interested and the forum, unchilled by the thought of subsequent judicial action against such participants; provided always, of course, that such preliminary meetings, conduct and activities are directed toward the achievement of the objects of the litigation or other proceedings. (Internal quotation marks omitted.)
The rule thus adopted is consistent with that stated in § 588 of the Restatement (Second) of Torts, which provides that:
A witness is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding or as part of a judicial proceeding in which he is testifying, if it has some relation to the proceeding.
The only limitation upon the scope of the immunity afforded by this rule to witnesses who communicate with others about judicial or quasi-judicial proceedings that have not yet been instituted is that stated in comment (e) to § 588, which provides as follows:
As to communications preliminary to a proposed judicial proceeding, the rule stated in this section applies only when the communication has some relation to a proceeding that is actually contemplated in good faith and under serious consideration by the witness or possible party to the proceeding. The bare possibility that the proceeding might be instituted is not to be used as a cloak to provide immunity for defamation when the possibility is not seriously considered.
Because our appellate courts have frequently cited and relied upon parallel provisions of the Restatement in discussing the availability of absolute privilege as a defense to defamation in related contexts; see, e.g. McManus v. Sweeney, 78 Conn. App. 327, 332, 827 A.2d 708 (2003) (relying upon § 586 in discussing the absolute immunity of attorneys for defamatory statements made in judicial proceedings); it is highly probable that they will rely upon § 588 and its commentary when deciding similar claims by witnesses who made their challenged communications to other witnesses or parties before the institution of judicial proceedings.
III
To prevail on his Motion to Strike Complaint in light of the foregoing authorities, the defendant must persuade this Court that his alleged statements to the Hartford police officer and the disguised newspaper reporter who interviewed him, if proved as pleaded in the plaintiff's Complaint, were necessarily made in such circumstances as to make him absolutely immune from defamation liability for their utterance. Such a showing would require the defendant to establish that under any set of facts provable under the Complaint, such statements were made in the course of a quasi-judicial proceeding to which they were logically pertinent.
The defendant's claim on this score is straightforward. First, he contends that his alleged statements, as described in the Complaint, were plainly pertinent to and made in the course of his interview by the unnamed Hartford police officer and his reporter companion concerning the plaintiff's on-duty activities inside his store. Second, he argues that that interview was clearly conducted as part of an internal affairs investigation by the Hartford Police Department, which was recently held to constitute a quasi-judicial proceeding in Craig v. Stafford Construction, Inc., supra, 78 Conn. App. 549.
The plaintiff, though acknowledging that an internal affairs investigation by the Hartford Police Department is a quasi-judicial proceeding, opposes the defendant's Motion on three grounds: First, he claims that his Complaint does not necessarily allege that the defendant made his statements in the context of an internal affairs investigation. Second, he insists that even if the Complaint does so allege, nothing in it clearly commits him to proving that the defendant's alleged statements were pertinent to that investigation. Third and finally, he contends that even if the defendant's statements, as described in the Complaint, were pertinent to an internal affairs investigation, further discovery is necessary to determine why a non-officer was present at the interview in question. For the following reasons, this Court agrees with the plaintiff that the defendant's Motion must be denied because the plaintiff's Complaint, when read in the light most favorable to him, does not necessarily allege that the interview in which the defendant made his challenged statements was part of an internal affairs investigation by the Hartford Police Department.
The defendant, not illogically, bases his argument as to the alleged purpose of the interview in which he made his challenged statements on the express wording of the Complaint. First he takes note of the plaintiff's allegation that on the day of the interview, the officer who questioned him went to the DB Dairy Mart with a reporter "who did not reveal to the defendant that he was a newspaper employee, but, instead acted as though he was part of the police investigation." Complaint, ¶ 10. (Emphasis added.) This allegation, he suggests, makes it clear that the officer who interviewed him was in fact conducting a "police investigation" at the time. Secondly, he notes that, according to the Complaint, his alleged statements during the interview resulted in the plaintiff being "accused of theft and other acts of professional misconduct by the Hartford Police Department . . . " Id. ¶ 14. Because, he argues, the investigation focused on "the type of petty graft that understandably le[ads] to discipline;" Defendant's Memorandum of Law III (9/29/03), p. 2, and it actually led the imposition of discipline for professional misconduct in this case, "there is little dispute that the nature of the investigation alleged was one for internal affairs." Id.
The plaintiff counters the defendant's claim in two basic ways which this Court finds persuasive. First he rightly notes that nothing on the face of the Complaint describes the interview of the defendant as part of an internal affairs investigation. In fact, he argues that the interview in which the defendant made his challenged statements appears to be what prompted the institution of disciplinary proceedings against him rather than a step in an ongoing investigation of alleged misconduct, for the Complaint does not allege that the plaintiff was under investigation by anyone for anything before the defendant made his challenged statements. The mere fact that those statements led ultimately, by some unspecified procedural process, to the imposition of professional discipline against the plaintiff does not mean that the interview in which he made them was either part of an ongoing internal affairs investigation, or even a preliminary step in preparing to initiate such an investigation. Unless the defendant made his alleged statements for the purpose of initiating an internal affairs investigation of the plaintiff or of contributing to a pending or impending investigation of him, his challenged statements were not privileged because, lacking such a purpose, he was not exercising any right to complain or give evidence of police misconduct that could have been chilled by the absence of immunity.
The plaintiff's second major argument against construing the Complaint to allege that the defendant made his alleged statements in the course of an internal affairs investigation is that the circumstances in which the investigation is alleged to have been conducted were highly suspicious, and quite at variance with those in which an internal affairs investigation is typically conducted. To share developing information about a police investigation with a reporter so that he or she might publish it before the investigation is concluded would be foolhardy at best possibly compromising the investigation before it is concluded and/or damaging reputations based on mere suspicion and innuendo. The recruitment of a reporter to accompany a police officer on any sensitive investigative interview, moreover, would be even more unusual, especially if the subject of the investigation were a brother officer suspected or accused of on the-job misconduct. Letting the reporter attend and take part in the interview as if he too were a police investigator more than strongly suggests that the investigation was not a step in a formal or official police investigation, but rather a step in an unauthorized personal effort by the officer to promote his own agenda by feeding a provocative story about an adversary to the press. Here, where the officer's resentment of the plaintiff due to the plaintiff's recent promotion to lieutenant is clearly alleged, that theory is both plausible and provable under the allegations of the Complaint.
Against this background, the Court cannot conclude that, under the allegations of the Complaint, the defendant necessarily made his challenged statements in the course of an internal affairs investigation by the Hartford Police Department. Such an investigation, as described in Craig v. Stafford Construction, Inc., is an elaborate, multi-step administrative process, none of whose essential features is in any way described in the Complaint. Hence, though such a theory may be provable under the allegations of the Complaint, other theories also provable thereunder are inconsistent with that hypothesis. Therefore, since the defendant's alleged statements, if proved as pleaded by the plaintiff, were not necessarily made in the course of a quasi-judicial proceeding, the defendant's Motion to Strike Complaint on the ground of absolute immunity must be DENIED.
That process is described as follows in the Craig decision.
The internal affairs process commences when a citizen complaint is submitted, preferably in written form and notarized. The complaint is then forwarded to the internal affairs division for a determination of whether it requires an investigation or may be resolved by the officer's immediate supervisor.
If an investigation is warranted, the internal affairs investigator may conduct interviews, obtain sworn statements and record witnesses. Additionally, the investigator may require the accused officer to submit a report about the incident.
After the investigator completes his or her report, the report is then subjected to command review with a recommendation about the proper course of action. The report is first reviewed by the division commander (lieutenant or above) and then by the bureau commander (captain or above). The report is then transferred to the office of the department advocate, who represents the chief of police. The advocate reviews the report and consults with the chief of police.
The chief of police determines whether the accused officer should be disciplined or whether a hearing is warranted. The options available to the chief of police include: (1) counseling; (2) oral or written reprimand; (3) expedited hearing that may result in suspension of not less than one day but not more than five days; or (4) a formal hearing that may result in a penalty of not less than six days suspension and potentially termination of employment.
If the chief of police determines that a formal hearing is necessary, the accused officer receives a formal notice. The hearing is presided over by a hearing officer, a member of the police department. During the course of the proceedings, the accused officer may be represented by counsel, subpoenas may be issued to witnesses and witnesses who testify at the hearing must do so under oath and are subject to cross-examination by the accused officer or his attorney. The hearing officer takes notes of the proceedings, which are subsequently typed and serve as the record. Finally, the hearing officer makes factual findings and issues a recommended decision.
The hearing officer's decision is then transferred to the chief of police, who may accept, reject or modify the decision. Once the chief of police renders a decision, the accused may appeal from the decision first to the Hartford city government (city hall) and then to the state labor board.
Craig v. Stafford Construction, Inc., supra, 78 Conn. App. at 555-56. (Footnote omitted.)
IT IS SO ORDERED this 25th day of November 2003.
MICHAEL R. SHELDON, JUDGE.