Opinion
HHDCV166070983S
07-12-2018
Eric COLEMAN v. Cynthia JENNINGS et al.
UNPUBLISHED OPINION
OPINION
PECK, JTR
In a two-count amended complaint, the plaintiff, Eric D. Coleman (Coleman), alleges two counts of vexatious suit against the defendants, Cynthia Jennings (Jennings) (count one), and John Q. Gale (Gale) (count two). Before the court are defendants’ motions for summary judgment. For purposes of the pending motions for summary judgment only, the following facts are not in dispute. Coleman, an attorney and former state senator for the second senatorial district in the Connecticut General Assembly, sent a mailer to his constituents, in connection with [the August 12, 2014 state primary election. Jennings and Gale, both attorneys and council members in the City of Hartford, either reviewed and/or received on July 15, 2014, a mailer sent by Coleman wherein he expressed his position, which disagreed with the use of city money to build a proposed sports stadium in Hartford. On July 17, 2014, the defendants executed an affidavit of complaint, and attached a copy of that mailer, both of which were filed in the State Elections Enforcement Commission (SEEC) (SEEC complaint). In their SEEC complaint, the defendants alleged that Senator Coleman used public funds for that campaign mailer to bring about his re-election in the August 12, 2014 primary in violation of Connecticut election laws.
In the August 12, 2014 primary election, Coleman sought the nomination for the Democratic Party to run as its candidate in the November 4, 2014 general election. Although Coleman was the incumbent state senator for the second senatorial district in the Connecticut General Assembly, he was not the endorsed by the Democratic Party for re-election.
The plaintiff contends that Jennings "admitted that no mailer was sent to her. She admitted that she lives with her brother, Maurice Jennings, at the address in Hartford and that he would have received the mailer. Ms. Jennings however did not produce the mailer that her brother received. Instead she filed her affidavit of complaint with the SEEC using the mailer that Gale received in his household."
The defendants contend after they filed their SEEC complaint, they received a second mailer from Coleman, which "contained multiple messages including [a] statement by Coleman implying again opposition to the proposed stadium." In the SEEC’s "Findings and Conclusions," upon which the parties rely, the SEEC notes that "Gale also sent additional information to the Commission, stating that he received a subsequent mailer from [Coleman] on or about July 18, 2014."
Following a full investigation, the SEEC dismissed the defendants’ complaint on November 18, 2014, finding that "the mailers at issue here did not offend the normal scope of constituent mailers so as to merit additional scrutiny," and the commission found "that the mailers were sent no later than July 14, 2014, before the expiration of the permissible statutory period for [those] mailings in both [General Statutes] § § 2-15a and 9-610(d)(1)." On August 10, 2016, the plaintiff commenced the present action against the defendants.
On May 17, 2017, in response to a ruling by the court (Scholl, J.), on a motion to strike, the plaintiff filed the operative amended complaint, alleging the defendants engaged in vexatious litigation without probable cause when they commenced and prosecuted their SEEC complaint against him. The plaintiff further allege that the defendants may have filed that complaint "with a malicious intent unjustly to vex and trouble Senator Coleman." The SEEC terminated that action in the plaintiff’s favor on November 18, 2014 when it dismissed the SEEC complaint. The plaintiff claims emotional and reputational damages as well as damages for pain and suffering. He seeks economic and non-economic damages, double and treble damages, punitive damages, and attorneys fees.
On July 19, 2017 and July 31, 2017, the defendants filed their answers and special defenses to the amended complaint, where in relevant part, they admit that they signed the SEEC complaint, but deny the complaint was false, without probable cause, and filed with a "malicious intent unjustly to vex and trouble Senator Coleman." The defendants deny the plaintiff’s claims for damages.
The defendants each allege two special defenses against the plaintiff. The first special defense alleges that they are entitled to absolute immunity from suit as members of the public filing a complaint with the SEEC. The second special defense is that their speech, the SEEC complaint, was protected speech under the Noerr-Pennington doctrine. On July 25, 2017 and August 7, 2017, the plaintiff denied those special defenses. Jennings also brought two counterclaims against the plaintiff, and the plaintiff filed four special defenses in response, which Jennings denied. The counterclaims and special defenses are not presently before the court.
On December 22, 2017, Gale moved for summary judgment on count two of the amended complaint. On January 3, 2018, Jennings moved for summary judgment against the plaintiff presumably on count one, which is directed against her. On January 17, 2018 and February 16, 2018, the plaintiff filed memoranda of law in opposition to the motions. The court heard the Motions at short calendar on March 19, 2018.
I
COLLATERAL ESTOPPEL
As a threshold matter, the court addresses whether, as the plaintiff contends, the doctrine of collateral estoppel bars this court from considering the defendants’ arguments in support of their motion for summary judgment. The plaintiff argues that the court cannot re-litigate whether his mailer violated General Statutes § 2-15a and § 9-610(d)(1) because the SEEC dismissed the SEEC complaint against him on November 18, 2014. As a result, the SEEC concluded that his mailer did not violate § 2-15a and § 9-610(d)(1), so any attempt by the defendants to reexamine issues of whether that mailer violated those Connecticut election laws is barred and improper under the doctrine of collateral estoppel. The plaintiff further argues that it was the SEEC dismissal of the complaint, following a board investigation, that has a collateral estoppel effect on this court’s determination of whether the defendants had probable cause to file their SEEC complaint. The defendants do not directly address that argument, but focus their attention on whether they had probable cause to believe that the aforementioned statutes were violated at the time they filed their SEEC complaint.
"Collateral estoppel, or issue preclusion ... prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim ... For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment." (Citation omitted; internal quotation marks omitted.) Lighthouse Landings, Inc. v. Connecticut Light & Power Co., 300 Conn. 325, 343-44, 15 A.3d 601 (2011). "An issue is actually litigated if it is properly raised in the pleadings or otherwise submitted for determination, and in fact determined ... An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered ... If an issue has been determined, but the judgment is not dependent [on] the determination of the issue, the parties may relitigate the issue in a subsequent action." (Citation omitted; internal quotation marks omitted.) Id., 344.
Our Supreme Court in Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 103, 912 A.2d 1019 (2007) acknowledged that "probable cause may be present even where a suit lacks merit. Favorable termination of the suit often establishes lack of merit, yet the plaintiff in [vexatious litigation] must separately show lack of probable cause." (Citation omitted; emphasis in original; internal quotation marks omitted.) In the context of an attorney filing a lawsuit, our Appellate Court in Embalmers’ Supply Co. v. Giannitti, 103 Conn.App. 20, 34-5, 929 A.2d 729 (2007) observed that "[i]n assessing probable cause, [our Supreme Court] phrased the critical question as whether on the basis of the facts known by the law firm, a reasonable attorney familiar with Connecticut law would believe he or she had probable cause to bring the lawsuit ... As implied by its phrasing, the standard is an objective one that is necessarily dependent on what the attorney knew when he or she initiated the lawsuit." (Citations omitted; internal quotation marks omitted.)
Based on the foregoing, the court agrees with the defendants that the proper inquiry is whether the defendants had probable cause to initiate their SEEC complaint at the time they filed it. Because the plaintiff focuses his collateral estoppel argument on a different time for an assessment of probable cause, namely, the time when the board dismissed the defendants’ complaint following a board investigation, the court declines to conclude as a matter of law that the dismissal of the complaint by the board necessarily means that the court is estopped from examining whether the defendants had probable cause at the time they filed their SEEC complaint. For this reason, the court declines the plaintiff’s request to reject the defendants’ motion for summary judgment on the ground of collateral estoppel.
II
LAW OF THE CASE DOCTRINE & ABSOLUTE IMMUNITY
The court also reviews, as a preliminary matter, whether the law of the case doctrine applies to the defendants’ claims of absolute immunity. The plaintiff contends that the court has already decided that immunity did not bar the plaintiff’s vexatious litigation action against the defendants when the court denied the defendants’ motion to strike the complaint on the ground of absolute immunity. The plaintiff asks this court to apply the law of the case doctrine to that previously decided issue. The defendants respond that Judge Scholl’s decision is not binding on the court under that doctrine.
"The law of the case [doctrine] ... expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power ... New pleadings intended to raise again a question of law which has been already presented on the record and determined adversely to the pleader are not to be favored ... Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance ... A judge should hesitate to change his [or her] rulings in a case and should be even more reluctant to overrule those of another judge ... Judge shopping is not to be encouraged and a decent respect for the views of [colleagues] on the bench is commendable in a judge. Nevertheless, if the case comes before [the judge] regularly and [the judge] becomes convinced that the view of the law previously applied by [a] coordinate predecessor was clearly erroneous and would work a manifest injustice if followed, [the judge] may apply [his or her] own judgment." (Citation omitted; internal quotation marks omitted.) Breen v. Phelps, 186 Conn. 86, 99-100, 439 A.2d 1066 (1982).
In Rioux v. Barry, 283 Conn. 338, 343, 927 A.2d 304 (2007), our Supreme Court held "in the context of a quasi-judicial proceeding, absolute immunity does not attach to statements that provide the ground for the tort of vexatious litigation ..." Our Supreme Court also added if it provided "absolute immunity for the communications underlying the tort of vexatious litigation, [the court] would effectively eliminate the tort." Id., 348. "Unlike the communications underlying the tort of defamation, virtually any initiation or procurement of a previous lawsuit would necessarily be part of any judicial proceeding. Thus, the tort of vexatious litigation would virtually always be subject to absolute immunity. Indeed, the Restatement (Second) of Torts implicitly recognizes this by providing that statements made in the course of a judicial or quasi-judicial proceedings are absolutely immune in the context of a defamation suit but not in the context of a suit for vexatious litigation. See 3 Restatement (Second), Torts § 587, p. 249, comment (a) (1977)." Id.
"[The] stringent requirements [to establish a vexatious litigation claim] provide adequate room for both appropriate incentives to report wrongdoing and protection of the injured party’s interest in being free from unwarranted litigation." Id., 347. "[T]he requisite elements of the tort of vexatious litigation effectively strike the balance between the public interest of encouraging complaining witnesses to come forward and protecting the private individual from false and malicious claims." Id., 348-49. Our Supreme Court found that "[i]t is unnecessary and undesirable to extend the additional protection afforded by the doctrine of absolute immunity to defendants in vexatious litigation claims." Id., 349.
Gale does not offer a reason under Breen v. Phelps, supra, 186 Conn. 99-100, to deviate from the law of the case doctrine. For example, he does not argue that the earlier decision of Judge Scholl was clearly erroneous, or that any manifest injustice would result from that decision. Gale does not argue that Judge Scholl’s decision was wrongly decided because of a misapplication of the facts to the law. Instead, Gale contends that some summary judgment motions have deviated from the law of the case doctrine, and public policy grounds suggest that this court should disregard our Supreme Court precedent and afford the defendants’ absolute immunity against the plaintiff’s vexatious litigation claims.
The decision of Rioux v. Barry, supra, 283 Conn. 343, is binding on this court, which provides that absolute immunity "does not attach to statements that provide the ground for the tort of vexatious litigation"; and, therefore, the application of Rioux by Judge Scholl to Gale’s absolute immunity argument in his motion to strike was not clearly erroneous. There is no "manifest injustice" by the court following the law articulated by our Supreme Court. Accordingly, the law of the case doctrine applies and the defendants are not entitled to absolute immunity as a bar to the plaintiff’s vexatious litigation claims against them.
III
PROBABLE CAUSE
The defendants argue that there is no genuine issue of material fact they had probable cause at the time they filed their SEEC complaint to believe that Coleman’s first mailer violated election laws because the mailer was promotional rather than informational in violation of General Statutes § 2-15a and the mailer had been circulated later than three months before the primary election in violation of General Statutes § 9-610(d). The plaintiff counters the defendants lacked probable cause to file the SEEC complaint because no reasonable person would believe that his mailer violated § 2-15a and § 9-601(d)(1), and neither defendant had "a reasonable, good faith belief in the facts alleged" in the SEEC complaint.
The defendants also contend that their SEEC complaint cannot be the basis of the plaintiff’s vexatious litigation action against them because their SEEC complaint merely requested that the SEEC conduct an investigation into their complaint. This argument is not viable. "Most courts now agree with the Restatement (Second) of Torts, § 680, which permits liability for vexatious ‘initiation, continuation or procurement of civil proceedings against another before an administrative board that has the power to take action adversely affecting the legally protected interests of the other ...’ " (Citation omitted; footnote omitted; internal quotation marks omitted.) DeLaurentis v. New Haven, 220 Conn. 225, 248, 597 A.2d 807 (1991). Accordingly, the plaintiff may base his vexatious litigation claims on the defendants’ SEEC complaint against him.
"The test for deciding whether a litigant acted with probable cause also is well settled. For purposes of a vexatious suit action, [t]he legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a [person] of ordinary caution, prudence and judgment, under the circumstances, in entertaining it ... Probable cause is the knowledge of facts, actual or apparent, strong enough to justify a reasonable [person] in the belief that [he or she] has lawful grounds for prosecuting the defendant in the manner complained of ... Thus, in the context of a vexatious suit action, the defendant lacks probable cause if [he or she] lacks a reasonable, good faith belief in the facts alleged and the validity of the claim asserted ... Accordingly, the probable cause standard applied to a vexatious litigation action against a litigant is a purely objective one." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, supra, 281 Conn. 94-95.
"The lower threshold of probable cause allows attorneys and litigants to present issues that are arguably correct, even if it is extremely unlikely that they will win ... Were [the court] to conclude ... that a claim is unreasonable wherever the law would clearly hold for the other side, [the court] could stifle the willingness of a lawyer to challenge established precedent in an effort to change the law. The vitality of our common-law system is dependent upon the freedom of attorneys to pursue novel, although potentially unsuccessful, legal theories." (Citations omitted; internal quotation marks omitted.) Id., 103-04.
A
General Statutes § 2-15a
General Statutes § 2-15a provides: "(a) Each member of the General Assembly shall be entitled to send an annual mailing to each household in such member’s district for informational purposes. The mailing shall be conducted under the supervision of the Joint Committee on Legislative Management and in accordance with the rules adopted by the committee. (b) In even-numbered years, no such mailing may be sent after July fifteenth. A member shall be deemed in compliance with this subsection if the member delivers the mailing to the offices of the Joint Committee on Legislative Management no later than said July fifteenth."
1
Informational v. Promotional Mailer
The issue is whether the defendants had probable cause when they filed their SEEC complaint to believe that Coleman’s mailer was not "informational" in violation of § 2-15a. The defendants do not offer a specific definition of "informational purposes" in their motion for summary judgment, but express their opinion as to what does not constitute "informational purposes." They argue that "[s]trong opinions and criticism are not consistent with the concept of ‘informational purposes.’ Informational purposes may reasonably be viewed as not including opinion, editorial, persuasive, argumentative or propaganda type material." The defendants contend they had probable cause to believe that Coleman’s first mailer, which expressed his opinion on the use of municipal money for the Hartford stadium, was not informational in violation of § 2-15a because that mailer expressed his campaign position on a contested election issue between himself and Wooden rather than simply expressing facts and data to his constituents.
The plaintiff does not respond at all to the defendants’ argument that his first mailer was not, by common definition, for "informational purposes," but instead focuses his argument on the fact that he should be considered to be deemed in compliance with § 2-15a because the Joint Committee on Legislative Management oversaw that mailer. The plaintiff also focuses the issue of probable cause on his contention that the defendants lacked probable cause to file the SEEC complaint because one or more defendants did not read the applicable statutes before filing their complaint, or contacting the Joint Committee on Legislative Management to determine whether, in fact, Coleman’s mailer complied with § 2-15a before the defendants had concluded that it violated § 2-15a. According to the plaintiff, the defendants used their SEEC complaint as a "campaign statement" for Wooden, which the defendants released to the media for the sole purpose of helping Wooden, Coleman’s primary campaign challenger, in the primary senate race for the second senatorial district.
General Statutes § 2-15a does not define the term "informational," and "informational" is not defined elsewhere in the statutes. Accordingly, the court will consider the plain meaning of the term informational, as provided by Merriam-Webster’s dictionary. See General Statutes § 1-2z.
General Statutes § 1-2z provides: "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered."
The word "informational" modifies the word "purposes" in § 2-15a. "Information" is defined by Merriam-Webster dictionary as "(1): the communication or reception of knowledge or intelligence; (2) a (1): knowledge obtained from investigation, study, or instruction (2): intelligence, news; (3) facts, data ..."
Merriam-Webster’s dictionary, available at http://www.merriam-webster.com last visited on June 5, 2018).
To determine whether the language of the mailer was "informational," the court first takes judicial notice that during the 2014 democratic primary between Eric Coleman and Shawn Wooden for the second senatorial district in the Connecticut General Assembly, these candidates had different positions on whether municipal funding should be expended on the Hartford stadium. Coleman opposed the use of municipal funds for the Hartford stadium, whereas Wooden supported the use of municipal funds for that stadium. To the extent that either the plaintiff or the defendant asks the court to consider any newspaper articles on that issue, the court declines to consider to do so for the reason that such newspaper articles are hearsay and do not fall within a recognized exception to the hearsay rule.
As an alternative ground to the court’s judicial notice of the widely known positions of Coleman against and Wooden for the use of city money for the Hartford Stadium, the court acknowledges that in Coleman’s September 27, 2017 deposition, a portion of which Gale offers in support of his motion for summary judgment, Coleman admits that he and his primary [senate] opponent [i.e. Wooden] had different views "on the stadium issue" and that "[his] concern about the stadium was different than [his] opponent ... [and] it was not shared by [his] opponent ..." (Gale’s Exhibit 4 to his memorandum of law in support of his motion for summary judgment). Although this selection of Coleman’s deposition testimony is not certified, it was not opposed by Coleman. Therefore, Coleman’s hearsay statement is admissible under the party opponent hearsay exception since it is being offered by Gale against Coleman in these summary judgment proceedings.
The defendants contend there is no genuine issue of material fact that they had probable cause to believe that Coleman’s mailer, which expressed his position on the use of municipal money to build a stadium in Hartford, was promotional of his primary senate campaign rather than informational in violation of § 2-15a(a) because of the widely known difference in primary senate campaign positions between Coleman and Wooden on that issue in the 2014 democratic senate primary race. In relevant part, the mailer includes the following language: "Instead of blindly embracing a $60 million giveaway to out-of-town businessmen to build a sports stadium, I’ve fought to help local small businesses grow jobs in our neighborhoods with the Small Business Express program ... Unfortunately, in order for the city to pay for this $60 million stadium deal, Hartford’s more pressing needs will not be addressed: fixing crumbling schools; putting more teachers in classroom; investing in our youth; investing in local economic development projects ... The proposed stadium instead leaves the city with $60 million in debt and interest payments that taxpayers will be paying for generations to come."
What the defendants subjectively believed with respect to Coleman’s mailer and any other purposes for filing the SEEC complaint, including "campaign statements," is irrelevant for purposes of determining whether there was objective probable cause for believing that Coleman’s mailer violated § 2-15a. See Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, supra, 281 Conn. 97-8 (affirming Appellate Court’s statement that test for probable cause is objective and that "an attorney’s subjective belief in the tenability of a claim and the extent of an attorney’s investigation and research have no place in determining the existence of probable cause in a vexatious litigation action ..." but concluding that Appellate Court applied an incorrectly articulated test because test is not whether a reasonable attorney should bring the action but that of a person of ordinary caution, prudence and judgment under the circumstances.)
The court declines to address the merits of the plaintiff’s arguments that one or both of the defendants committed perjury and/or violated the Rule of Professional Conduct because those arguments focus on whether one or both of the defendants had a subjective good faith belief in the viability of their SEEC complaint against the plaintiff. Our Appellate authority is clear that an assessment of probable cause is not based upon the attorneys’ subjective beliefs in the viability of the claim but upon an objective assessment of whether there is probable cause to that SEEC complaint under a reasonable person standard. Further, although the plaintiff suggests that the court should refer Gale to "the State’s Attorney and to the Statewide Grievance Committee," the court respectfully declines to do so and leaves it to the plaintiff himself or his attorney to make any such referrals. See Rules of Professional Conduct 8.3.
In light of the commonly known, different campaign positions of Coleman and Wooden on the use of municipal money to build the Hartford stadium during their 2014 primary senate race, this court concludes that "a [person] of ordinary caution, prudence and judgment, under the circumstances" could believe that the plaintiff’s mailer, which expressed Coleman’s disagreement with the use of municipal money for the Hartford stadium, violated § 2-15a because it did not communicate knowledge/and or facts to his constituents but rather expressed his primary senate campaign position that $60 million in municipal funds should not be used on a Hartford stadium but rather should be expended on education, the youth, and economic development programs. See id.
The burden, therefore, shifts to the plaintiff to demonstrate there is a genuine issue of material fact on whether a "[person] of ordinary caution, prudent and judgment, under the circumstances" could find probable cause for believing that Coleman’s mailer violated § 2-15a because it was not "informational." See id. The plaintiff submits no evidence on this issue. His personal affidavit does not address § 2-15a at all. Instead, the plaintiff offers a legal argument in his memorandum that § 2-15a provides that "the mailing shall be conducted under the supervision of the Joint Committee on Legislative Management," and "[t]here is nothing on the face of the mailing indicating that the Joint Committee on Legislative Management did not supervise the mailing. There is nothing on the face of the mailing indicating that the mailing was not in accordance with the rules adopted by the Joint Committee on Legislative Management." Neither Gale nor Jennings contacted the Committee to inquire about Coleman’s mailer they knew the Committee had supervised or to inquire about the mailing under § § 2-15a and 9-610(d)(1). For example, if Gale had actually read § 2-15a, he would know "that the Joint Committee on Legislative Management supervised the mailing he received" and "that Senator Coleman was ‘deemed in compliance’ [with § 2-15a(b)] since Gale received the mailing on July 15, 2014, that the mailing was delivered to the Joint Committee on Legislative Management before July 15, 2014."
The plaintiff’s arguments are conclusory and do not constitute evidence sufficient to raise a genuine issue of material fact on the issue of probable cause. The plaintiff does not attest in his affidavit to the dates that he submitted his first mailer to the Joint Committee on Legislative Management and the dates that the committee reviewed and approved that mailer. The court will not presume any facts not in evidence.
The plaintiff also has not identified any authority which requires the defendants to contact the Joint Committee on Legislative Management to inquire about a legislative mailer before those defendants file a complaint with the SEEC for alleged violations of Connecticut election laws. Section 2-15a does not impose any such duty on the defendants under the plain meaning of that statute. The plaintiff has not identified any analogous cases which identify any comparable duty to contact a legislative committee before initiating complaint with a state agency for alleged violations of Connecticut election laws. Accordingly, the plaintiff’s arguments do not amount to evidence sufficient to raise a genuine issue of material fact as to whether a person "of ordinary caution, prudence and judgment" could not believe that Coleman’s mailers were not "informational" given his widely known senate primary campaign statements, which disagreed with the use of municipal money for the Hartford stadium, and the express language of his first mailer that he disagreed with the use of $60 million for the Hartford stadium. See id. On the other hand, the defendants have demonstrated the absence of a genuine issue of material fact that a reasonable person could believe that Coleman’s first mailer violated § 2-15a at the time of their SEEC complaint. Accordingly, because there is no genuine issue of material fact that a reasonable person could find Coleman’s mailer to be promotional of his widely known senate primary campaign position concerning the proposed Hartford stadium rather than a mailer simply expressing facts and knowledge, or information, to his constituents, the defendants are entitled to summary judgment on the ground that they had probable cause to file their SEEC complaint at the time it was filed.
B
General Statutes § 9-610(d)(1)
General Statutes § 9-610(d)(1) provides: "No incumbent holding office shall, during the three months preceding an election in which he is a candidate for reelection or election to another office, use public funds to mail or print flyers or other promotional materials intended to bring about his election or reelection."
The defendants argue they are also entitled to summary judgment on the ground of probable cause because the person of ordinary caution, prudence and judgment could believe that Coleman’s mailer violated § 9-610(d)(1) because they received the first mailer "about one month before the August 12, 2014 primary election," which had been paid for using public funds. The defendants attest to receiving that mailer on July 15, 2014 in their SEEC complaint. The plaintiff counters with an argument that the defendants should have "contacted the Joint Committee on legislative management," before filing their SEEC complaint, which would have advised the defendants that "a ‘primary’ is not the same as an election." Although the plaintiff’s analysis is not clear, the underlying implication of his argument is that the defendants would not have filed their SEEC complaint alleging violation of § 9-610(d)(1) if they had contacted the Joint Committee on Legislative Management ahead of filing their SEEC complaint.
The defendants’ attestations in their SEEC complaint that they received Coleman’s first mailer on July 15, 2014 demonstrate the absence of a genuine issue of material fact that a person of ordinary caution, prudence and judgment, under the circumstances, would have probable cause to believe that Coleman’s first mailer that he or she received on July 15, 2014, violated § 9-610(d)(1) because such receipt on July 15, 2014 was 28 days before the primary election on August 12, 2014, and less than 90 days before that primary.
The burden, therefore, shifts to the plaintiff to present evidence raising a genuine issue of material fact that a person of ordinary caution, prudence and judgment, under the circumstances, could not reasonably believe that a mailer received 28 days before the election violated § 9-610(d)(1), which prohibited promotional mailings within 90 days of an election. The plaintiff submits no evidence that such a person would believe that a primary is not, by definition, an election under the statute. The plaintiff offers no authority or analogous cases that a person would first contact the Joint Committee on Legislative Management to determine whether the mailer violated § 9-610(d)(1) before filing a complaint with the SEEC alleging violation of election laws. For the reason that the plaintiff has offered no evidence to raise a genuine issue of material fact on the issue, the defendants’ SEEC attestation establishes the absence of a genuine issue of material fact that a person of ordinary caution, prudence and judgment, under the circumstances, could believe that Coleman’s mailer received 28 days before the primary race for state senate violated § 9-610(d)(1); and therefore, the defendants are entitled to the entry of summary judgment on their probable cause argument under § 9-610(d)(1).
IV
NOERR-PENNINGTON IMMUNITY
The defendants next argue there is no genuine issue of material fact they are immune from suit because their filing of the SEEC complaint against Coleman is protected activity under the Noerr-Pennington doctrine because they are individuals who petitioned the government, the SEEC, for redress. The plaintiff counters that a genuine issue of material fact exists as to whether the defendants are entitled to immunity under the sham exception to the Noerr-Pennington doctrine.
Our Appellate Court had an opportunity to review the application of the Noerr-Pennington doctrine to a plaintiff’s vexatious litigation claim based on the defendant’s underlying administrative action in Diamond 67, LLC v. Oatis, 167 Conn.App. 659, 686-89, 144 A.3d 1055, cert. denied, 323 Conn. 927, 150 A.3d 229 (2016). "In short, the Noerr-Pennington doctrine shields from the Sherman [Antitrust] Act [15 U.S.C. § 1 et seq.] a concerted effort to influence public officials regardless of intent or purpose ... The United States Supreme Court has reasoned that it would be destructive of rights of association and of petition to hold that groups with common interests may not, without violating the antitrust laws, use the channels and procedures of state and federal agencies and courts to advocate their causes and points of view respecting resolution of their business and economic interests vis-à-vis their competitors ..." Id., 686.
"The Noerr-Pennington doctrine has evolved from its antitrust origins to apply to a myriad of situations in which it shields individuals from liability for petitioning a governmental entity for redress. [A]lthough the Noerr-Pennington defense is most often asserted against antitrust claims, it is equally applicable to many types of claims which [seek] to assign liability on the basis of the defendant’s exercise of its first amendment rights ... For example, Noerr-Pennington has been recognized as a defense to actions brought under the National Labor Relations Act, 29 U.S.C. § 151 et seq. ... state law claims of tortious interference with business relations ... federal securities laws ... and wrongful discharge claims ..." Id., 686-87.
"Although the Noerr-Pennington doctrine provides broad coverage to petitioning individuals or groups, its protection is not limitless. In Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., [365 U.S. 125, 144, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961)], the United States Supreme Court, albeit in dictum, established a sham exception to the general rule, stating: There may be situations in which a publicity campaign, ostensibly directed toward influencing governmental action, is a mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor and the application of the Sherman Act would be justified ... In short, petitioning activity is not protected if such activity is a mere sham or pretense to interfere with no reasonable expectation of obtaining a favorable ruling ... In Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49, 60-62, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993), the court outlined a two-part test to define sham litigation. First, the lawsuit must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits. Id., 60. Second, the court should focus on whether the baseless lawsuit conceals an attempt to interfere with the business relationships of a competitor ... through the use [of] the governmental process- as an anticompetitive weapon ... (Citations omitted; internal quotation marks omitted.) Zeiler v. Consolini, 59 Conn.App. 545, 550-52, 758 A.2d 376 (2000). ‘Essentially, then, a sham involves a defendant whose activities are not genuinely aimed at procuring favorable governmental action in any form.’ Id., 552 ..." Diamond 67, LLC v. Oatis, supra, 167 Conn.App. 687-88.
"Activities found to be sham involve actions rife with abusive intent and absent any indicia of success. Factors present in sham litigation include, but are not limited to, the presence of repetitive litigation (although one action may constitute a sham under certain conditions), deliberate fraud, supplying false information, and whether lower courts have stated or implied that the action is frivolous or objectively baseless and whether they have dismissed it out of hand." (Citation omitted; internal quotation marks omitted.) Diamond 67, LLC v. Oatis, supra, 167 Conn.App. 688.
The court concludes that a genuine issue of material fact exists as to whether the sham exception to the Noerr-Pennington doctrine applies in this case based on the evidence submitted by the plaintiff. The plaintiff submits evidence on whether the SEEC complaint was an attempt to interfere with the business relationships Wooden’s primary senate competitor, Coleman, for the 2014 primary for the second senatorial district in the Connecticut General Assembly.
For example, the plaintiff contends that "SEEC rules require investigation of the complaint to be confidential until SEEC votes to authorize an investigation of the complaint," and that the "SEEC did not vote to authorize the investigation of the complaint until August 20, 2014, after the primary." The plaintiff, however, submits copies of the defendants’ e-mail messages, which allegedly released the SEEC complaint by the defendants to various media outlets after the complaint was filed. Therefore, a genuine issue of material fact exists as to whether the SEEC lawsuit, which was publicly released to the media by the defendants before the SEEC voted to authorize an investigation of the complaint, occurred for the purpose to "interfere with the business relationships of a competitor," Wooden’s primary senate competitor, the plaintiff. This issue is further supported by Coleman’s personal affidavit that he believes that the SEEC complaint and public release of the complaint to the media were a mere sham to generate negative media publicity against Senator Coleman to influence the primary contest and to help Wooden. For these reasons, the court concludes that a genuine issue exists as to whether the sham exception to the Noerr-Pennington doctrine applies in this case. Therefore, the court declines to enter summary judgment for the defendants on the ground of Noerr-Pennington doctrine immunity.
CONCLUSION
Accordingly, for all the foregoing reasons, the court hereby denies the defendants’ motions for summary judgment on the ground of either absolute immunity or immunity based on the Noerr-Pennington doctrine, and hereby grants the defendants’ motions for summary judgment on the ground there is no genuine issue of material fact that the defendants had probable cause to believe that Coleman’s mailer violated General Statutes § 2-15a and § 9-610(d)(1).
The defendants reference no specific language in that second mailer, but the court notes the following language beneath a picture of Senator Coleman at a barbershop, "Barbershop Talk About a Baseball Stadium[.] At Main Street Barbers- half a block from the site of the proposed Rock Cats stadium- the topic of conversation was on Hartford taxpayers footing the bill for a private sports team’s profit. I feel the city should focus on other opportunities for full-time jobs and build on the work we’ve done at the Capitol to support small businesses." Because the defendants focus their arguments on summary judgment on Coleman’s first mailer and present no pertinent argument or analysis concerning the second mailer relating it to a violation of any Connecticut election laws, the court considers any issue relating to the second mailer to be abandoned for purposes of the defendants’ motions for summary judgment.