Opinion
KNLCV186035362S
01-25-2019
Keegan DAY v. Sheree DODGE
UNPUBLISHED OPINION
OPINION
Knox, J.
The defendants, Sheree Dodge, Jason Hofmann, Charles Copeland, Lebanon Lions Club, and The Nipnuck District of the Connecticut Rivers Council of the Boy Scouts of America, filed a special motion to dismiss pursuant to General Statutes § 52-196a. The plaintiffs filed their objection. Thereafter, the defendants filed a reply. The pleadings filed by the respective parties were accompanied by motions to seal, which required adherence to notice requirements and procedures set forth in Practice Book § 11-20a. Wherefore, the court found good cause for the continuance of the hearing. The court heard argument from all parties.
The defendant Sheree Dodge in her special motion to dismiss and affidavit is identified as Sheree Swenson-Dodge.
The parties did not object to the continuance of the hearing.
The plaintiffs, Keegan Day and Cathy Day, brought this action seeking money damages against the defendants-two individuals and organizations associated with the Cub Scout Pack 58 of Lebanon. The complaint, dated May 9, 2018, alleges that Dodge-a den mother who spent the night in a tent adjacent to the one occupied by Keegan Day and his minor son-accused Keegan of engaging in sexual activities with his son during the night. The plaintiffs allege that Dodge reported what she heard to a second den parent, Jason Hofmann. Dodge and Hofmann then contacted the state police to report the incident and to conduct an investigation. The complaint further alleges that the state police involved the Department of Children and Families, which concluded the matter was unfounded and closed its investigation. The plaintiffs further allege that their "Cub Scout sponsored memberships held by the Lebanon Lions Club" were revoked as a result of the incident reported to the state police. The plaintiffs’ eleven-count complaint alleges defamation, invasion of privacy by false light, violation of the right fair procedure in contravention of General Statutes § 33-1056, intentional infliction of emotional distress, and negligent infliction of emotional distress against the defendants.
DISCUSSION
Section 52-196a(b) provides defendants with an expedited process with special procedures where the action is based on the "opposing 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 ..." The statute, effective January 1, 2018, requires an expedited and limited evidentiary determination by the court on the special motion to dismiss. § 52-196a(e)(1). Discovery is stayed, unless ordered by the court, but, even then, it is limited to the special motion to dismiss. § 52-196a(d). In this case, there was no order for limited discovery related to the special motion to dismiss.
Section 52-196a(e)(2) provides in relevant part: "When ruling on a special motion to dismiss, the court shall consider pleadings and supporting and opposing affidavits of the parties attesting to the facts upon which liability or a defense, as the case may be, is based." In this case, the applicable pleading is the operative complaint. The parties respectively filed affidavits, which the court considered. "The court construes the phrase ‘affidavits by the parties’ to mean affidavits submitted by the parties, as opposed to restricting the affidavits to those for which a party was an affiant." (Emphasis omitted.) Cronin v. Pelletier, Superior Court, Judicial District of Tolland, Docket No. CV-18-6014395-S (July 26, 2018, Sferrazza, S.J.) (66 Conn. L. Rptr. 750).
The plaintiffs filed additional exhibits unsupported by affidavits. There was no objection to the additional exhibits.
Section 52-196a(e)(3) sets forth a two-part analysis that the court must conduct in determining a special motion to dismiss. "The court shall grant a special motion to dismiss if the moving party makes an initial showing, by a preponderance of the evidence, that the opposing party’s complaint, counterclaim or cross claim is based on the moving party’s exercise of its right of free speech, right to petition the government, or right of association under the Constitution of the United States or the Constitution of the state in connection with a matter of public concern, unless the party that brought the complaint, counterclaim or cross claim sets forth with particularity the circumstances giving rise to the complaint, counterclaim or cross claim and demonstrates to the court that there is probable cause, considering all valid defenses, that the party will prevail on the merits of the complaint, counterclaim or cross claim." § 52-196a(e)(3).
The defendants, as the moving party, have the initial burden of showing, by a preponderance of the evidence, that the plaintiffs’ complaint falls within the scope of the statute. In this case, the defendants argue that all of plaintiffs’ claims are based on the defendants’ right to petition government or right to free association.
At the outset, the court addresses one issue raised by the plaintiffs at the hearing. The plaintiffs argue that the statute should not apply to this action because it falls outside the scope of a SLAPP suit. The plaintiffs claim that the statute is limited to a class of parties, such as the media. See Graves v. Chronicle Printing Co., Superior Court, Judicial District of Tolland, Docket No. CV-18-5010056-S (November 7, 2018, Farley, J.) . However, §§ 52-196a(b) and (c) expressly apply to any "party." Id. The defendants, as a "party," are entitled to seek the relief pursuant to the statute provided they meet their burden. See Ciccerone v. Lynch, Superior Court, Judicial District of Danbury, Docket No. CV-18-6026091-S (July 25, 2018, Krumeich, J.); Rivas v. Pepi, Superior Court, Judicial District of Stamford-Norwalk, Docket No. CV-18-6034927-S (August 16, 2018, Jacobs, J.) (66 Conn. L. Rptr. 833). Furthermore, there is no statutory language that limits the term "party." The court will not read into the statute a limitation that the legislature did not enact. See Fiona C. v. Kevin L., 166 Conn.App. 844, 850, 143 A.3d 604 (2016).
SLAPP is an acronym for "Strategic Lawsuits Against Public Participation," and is a form of vexatious litigation "to punish and intimidate citizens who petition state agencies and have the ultimate effect of ‘chilling’ any such action." Field v. Kearns, 43 Conn.App. 265, 276, 682 A.2d 148, cert. denied, 239 Conn. 942, 684 A.2d 711 (1996). As a result, legislatures enact anti-SLAPP statutes, such as § 52-196a, to allow courts to dismiss frivolous and vexatious actions.
A. Counts One Through Seven
In counts one through four against the defendant Dodge, the plaintiffs allege defamation, intentional and negligent infliction of emotional distress, and invasion of privacy. In counts five through seven against the defendant Hofmann, the plaintiffs allege intentional and negligent infliction of emotional distress and invasion of privacy.
The defendants Dodge and Hofmann claim that the allegations in these counts are based on the exercise of their right to petition government as defined in § 52-196a. Section 52-196a(a)(3)(B) defines "[r]ight to petition the government" as a "communication that is reasonably likely to encourage consideration or review of a matter of public concern by a legislative, executive, administrative, judicial or other governmental body ..." The statute also defines a "[m]atter of public concern" to include "an issue related (A) to health or safety" or "(B) ... [to] community well-being ..." § 52-196a(a)(1) (emphasis added).
Section 52-196a(a)(3) provides:" ‘[R]ight to petition the government’ means (A) communication in connection with an issue under consideration or review by a legislative, executive, administrative, judicial or other governmental body, (B) communication that is reasonably likely to encourage consideration or review of a matter of public concern by a legislative, executive, administrative, judicial or other governmental body, or (C) communication that is reasonably likely to enlist public participation in an effort to effect consideration of an issue by a legislative, executive, administrative, judicial or other governmental body."
As set forth previously, the allegations set forth in counts one through seven are "based on" the defendants’ right to contact the police about a matter of public concern, specifically, suspected sexual abuse of a minor child. The underlying allegations assert state troopers conducted an investigation based on the defendant Dodge’s report to police that she had heard Keegan "giving instructions to his son to strip naked, to masturbate him, to go faster, and that she heard Keegan come to completion," in a closely adjacent tent. Complaint, para. 18. The plaintiffs further allege that Dodge "knowingly made false allegations of sexual misconduct against the plaintiff to others at the Camporee event, and have since repeated these defamatory statements to any number of individuals, resulting in a governmental investigation of Keegan for criminal sexual misconduct ..." Complaint, para. 38 (Emphasis added). In contacting and communicating with the state police about this incident, the defendants were petitioning government.
Furthermore, the reason for the petition to the state police was also a matter of significant public concern, namely to prompt an investigation of sexual child abuse. It is for this reason that, as a matter of public policy, the legislature enacted statutes mandating that certain individuals report suspected child abuse to authorities. See General Statutes § 17a-101. The issue of sexual child abuse is unquestionably a matter of public concern because it addresses the health and safety of society’s most vulnerable members: children. See Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 437, 119 A.3d 462 (2015); Henderson v. Woolley, 230 Conn. 472, 482-83, 644 A.2d 1303 (1994).
The matter of suspected child abuse also clearly and readily falls within the category of community well-being. The right to petition government for suspected criminal activity, whether ultimately found to have probable cause or not, is a critical element in the performance of law enforcement and community safety. Other jurisdictions have considered similar statutes and held that "[w]hen a person reports suspected criminal activity to the police, she is engaging in constitutionally-based petitioning activity ..." O’Gara v. St. Germain, 91 Mass.App. 490, 497, 77 N.E.3d 870 (2017); Annamalai v. Capital One Financial Corp., 319 Ga.App. 831, 833, 738 S.E.2d 664 (2013).
In their opposition to the motion to dismiss, the plaintiffs claim that notifying the police of sexual child abuse does not clothe the defendants in blanket immunity, relying on Bhatia v. Debek, 287 Conn. 397, 948 A.2d 1009 (2008). In that case, the Supreme Court considered whether a defendant, in a malicious prosecution action, could rely on both statutory and common-law immunity because she acted in good faith. Id., 412. The court never answered the question, instead holding that, under either immunity, the defendant failed to meet her burden showing she acted in good faith as a defense to the malicious prosecution action. Id., 415-16.
The court does not find Bhatia applicable to the present analysis on the first prong of § 52-196a(e)(3). First, the statute does not require the court to consider the motive of the party petitioning government. Second, the plaintiffs cite no authority that the act of notifying police of suspected criminal activity is not a form of the "right to petition government." Finally, the state police are part of the executive branch of government. See State v. Maietta, 320 Conn. 678, 688, 134 A.3d 572 (2016). Thus, the defendants were, in fact, petitioning government.
The plaintiffs also rely on Blanchard v. Steward Carney Hospital, Inc., 477 Mass. 141, 75 N.E.3d 21 (2017). In that case, former nurses of a hospital under investigation by the state brought a defamation action against the hospital after their termination, alleging the hospital defamed them when the hospital’s president gave a statement to a newspaper and wrote an email to other hospital employees. Id., 144. The hospital sought to dismiss the action pursuant to the Massachusetts anti-SLAPP statute, Mass. Gen. Laws. ch. 231, § 59H (1996). Id., 146. That statute provides in relevant part: "In any case in which a party asserts that the civil claims, counterclaims, or cross claims against said party are based on said party’s exercise of its right of petition under the constitution of the United States or of the commonwealth, said party may bring a special motion to dismiss." Mass. Gen. Laws. ch. 231, § 59H. The court held that the statement to the newspaper was protected by the statute because it had a plausible nexus to the state’s investigation of the hospital, constituting a right of petition. Id., 150. Nevertheless, the court held that the email was not protected because it had no plausible nexus to the state’s investigation, thus, not constituting a petition. Id., 152-53.
Blanchard is of no help to the plaintiffs here. Besides the fact that § 52-196a is broader than the Massachusetts law, the hospital in that case intended for the state to hear its newspaper statement, thus, constituting a petition to the government. Similarly, here, the communication to the police by the defendants was a petition to the government to address grievances, namely, the alleged abuse.
Section 52-196a protects the right of free speech, right to petition the government, and right of association whereas the Massachusetts statute only protects the right to petition the government. Mass. Gen. Laws. ch. 231, § 59H.
The defendants have satisfied their initial burden of showing, by a preponderance of the evidence, that counts one to seven are based on their right to petition government.
If the first prong of § 52-196a(e)(3) is satisfied, the court must next determine whether a plaintiff "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 ..." § 52-196a(e)(3). The court must consider the pleadings and supporting or opposing affidavits submitted by the parties. § 52-196a(e)(2). Probable cause is a "bona fide belief in the existence of 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." (Emphasis omitted; internal quotation marks omitted.) Three S. Development Co. v. Santore, 193 Conn. 174, 175, 474 A.2d 795 (1984).
The defendants claim that the plaintiffs cannot demonstrate probable cause on the merits because Dodge and Hofmann are entitled to immunity under the mandated reporter statute, § 17a-101 et seq. Section 17a-101(a) provides: "The public policy of this state is: To protect children whose health and welfare may be adversely affected through injury and neglect; to strengthen the family and to make the home safe for children by enhancing the parental capacity for good child care; to provide a temporary or permanent nurturing and safe environment for children when necessary; and for these purposes to require the reporting of suspected child abuse or neglect, investigation of such reports by a social agency, and provision of services, where needed, to such child and family." The defendants do not claim to be one of the enumerated mandated reporters under 17a-101(b), but claim a reporting obligation by virtue of their respective positions in the Cub Scouts. As such, the defendants rely on § 17a-101e(b), which provides: "Any person, institution or agency which, in good faith, makes, or in good faith does not make, the report pursuant to sections 17a-101a to 17a-101d, inclusive, and 17a-103 shall be immune from any liability, civil or criminal, which might otherwise be incurred or imposed and shall have the same immunity with respect to any judicial proceeding which results from such report provided such person did not perpetrate or cause such abuse or neglect." The issue is whether or not the pleadings and evidence presented demonstrates that the defendants acted in good faith in reporting to police authorities suspected child abuse.
The General Assembly subsequently amended § 17a-101e(b) to take effect on July 1, 2018. The older version is applicable here because it was the statute in effect at the time of the alleged harm.
The plaintiffs’ complaint fails to set forth with particularity the circumstances upon which the defendants Dodge or Hofmann acted with malice, knowledge of the falsity of the facts or even recklessness in the ultimate report to the police. However, the plaintiffs had an opportunity to proffer evidence by affidavit for the court to consider with regard to the issue of whether or not these defendants acted in good faith.
Counts one through seven incorporate by reference paragraphs 2-35 of the complaint. Additionally, in count one, the plaintiffs allege that Dodge "knowingly made false accusations of sexual misconduct against the plaintiff"; "fabricated allegations of sexual assault"; and Dodge’s "actions were inspired by actual malice." In count two, the plaintiffs allege that the acts of Dodge "were intended to inflict emotional distress and were outrageous and beyond the bounds of conduct tolerated in a civilized society." In count three, the plaintiffs allege that Dodge’s conduct "created an unreasonable risk of causing ... emotional distress." In count four, the plaintiffs allege that "[t]he ‘defendant] had knowledge of, or acted in reckless disregard, as to the falsity of the publicized matter ..." The plaintiffs repeat the same allegations set forth in counts two to four against the defendant Hofmann in counts five through counts eight. The allegations do not set forth any factual bases for malice or bad faith in the defendants’ alleged conduct.
The plaintiffs’ affidavits, however, do not provide the necessary evidentiary support upon which the court can find bad faith by the defendants Dodge or Hofmann. Keegan Day’s affidavit states that he was "present at the Camporee event and he never at that time or any other engaged in any inappropriate behavior with his son, let alone a sexual assault." Although that statement may be relevant to determine whether abuse occurred, it does not support a finding that Dodge or Hofmann acted in bad faith. Thus, the affidavits of Keegan or Cathy Day do not state facts that support any finding that the defendants acted in bad faith.
To the contrary, the affidavits of Dodge and Hofmann show that they communicated with each other and, ultimately, Hofmann contacted the state police because of their obligation as adult volunteers in the Boy Scouts to report suspected child abuse. Hofmann and Dodge explained as part of their training as registered adult volunteers and den leaders, each was required to undergo the Boy Scouts of America Youth Protection training. During the training, they were instructed that, as mandatory reporters of suspected child abuse, they must report any good faith suspicion of abuse to the police.
Dodge’s affidavit shows that she was very disturbed by what she heard and was not able to sleep. Hofmann’s affidavit explains that when Hofmann arrived at the campsite on the morning following the incident, Dodge was clearly upset and told him about the incident. She did not mention Day’s name in describing what she heard, although she knew the child’s name. Hofmann further stated that he believed that Dodge genuinely believed she had overheard the sexual abuse of a child being instructed to masturbate by his father and believed she was required to report it. While Dodge was reporting the incident to Hofmann, the Committee Chair, Tony Benigno, joined them, and identified Day by name.
Hofmann notified the state police to investigate, in part, because he was trained by the Boy Scouts of America that, as a registered adult volunteer, he was a mandated reporter of suspected child abuse. Like Hofmann, Dodge was trained by the Boy Scouts of America that, as a registered adult volunteer, she was a mandated reporter of suspected child abuse. The defendants intended to allow the police to investigate and determine if any crime had been committed. Dodge genuinely believed she heard the incident as she reported it to the police. Both defendants attest to the fact that, prior to the incident, they did not know the plaintiffs and bore no ill will toward them.
The court considered Keegan Day’s affidavit where he attests that Hofmann told him that he did not believe the allegations made by Dodge. This is unsupported by the affidavit of Hofmann. However, this contradiction does not relieve the plaintiffs of some showing that Dodge acted with bad faith.
Nevertheless, the plaintiffs argue that there is evidence of bad faith because Dodge delayed reporting the incident until the morning. This reasoning is not persuasive. Dodge spent a sleepless night disturbed about the incident and remained distraught the next morning when she consulted with another volunteer leader, at which time a report was made to the police. Such a delay, even assuming there was one, is not evidence of bad faith. This is not indicia of a person acting with malice or intent to impute the reputation of another person. The court does not have to determine whether Dodge’s or Hofmann’s good faith belief was supported by an arrest or a probable cause finding of criminal conduct following the police investigation. The only consideration for the court is whether the report to the police was made in good faith, which the court so finds.
Based on the evidence, the court finds that Dodge and Hofmann made a good faith report of suspected child abuse. The plaintiffs cannot sustain their burden of showing that they are likely to succeed on the merits, considering all valid defenses. Counts one through seven must be dismissed pursuant to § 52-196a(e)(3).
B. Counts Eight through Eleven
Hofmann, Copeland, Lebanon Lions Club, and Nipnuck District of Connecticut Rivers Council of the Boy Scouts of America seek an order granting the special motion to dismiss on the grounds that the allegations set forth in counts eight through eleven are based on the right of association in a matter of public concern.
These counts are uniformly based on the plaintiffs’ claim that they were denied their rights to fair procedure in violation of General Statutes § 33-1056(a) when Hofmann (count eight), Copeland (count nine), Lebanon Lions Club (count ten), and Nipnuck District of Connecticut Rivers Council of the Boy Scouts of America (count eleven) revoked their membership in the Cub Scout Pack 58 of the Nipnuck District of Connecticut Rivers Council.
"Section 33-1056(a) applies to nonstock corporations ... and provides that [m]embership shall be governed by such rules of admission, retention, withdrawal and expulsion as the bylaws shall prescribe, provided all such bylaws shall be reasonable, germane to the purposes of the corporation, and equally enforced as to all members." (Emphasis omitted; internal quotation marks omitted.) Williams v. Black Rock Yacht Club, 90 Conn.App. 27, 33, 877 A.2d 849, cert. denied, 276 Conn. 908, 886 A.2d 424 (2005). In order to establish a cause of action under § 33-1056(a), a plaintiff must first show that he or she is a member of a nonstock corporation subject to the statute. Id.; Sterner v. Saugatuck Harbor Yacht Club, 188 Conn. 531, 535, 450 A.2d 531 (1982).
Under General Statutes § 52-196a, the court must first determine whether the defendants have satisfied their initial burden of showing, by a preponderance of the evidence, that counts eight through eleven are based on the right of association. The statute defines "[r]ight of association" as "communication among individuals who join together to collectively express, promote, pursue or defend common interests ..." § 52-196a(a)(4). The defendants rely on Boy Scouts of America v. Dale, 530 U.S. 640, 647-48, 120 S.Ct. 2446, 147 L.E.2d 554 (2000), for the proposition that the "freedom of association ... plainly presupposes a freedom not to associate." (Internal quotation marks omitted.) The Boy Scout Pack 58 is certainly a joining of individuals with a common interest, namely, scouting. Copeland’s affidavit states that registration and participation in the Boy Scouts, and, particularly, Pack 58 of the Nipnuck District of Connecticut Rivers Council, is a privilege that "may be denied, limited, or terminated when determined to be in the best interest of Scouting." Additionally, the court finds that the public concern that caused the initial report to the police prompted the letter notifying the Days that they could not participate in Cub Scout activities. The court finds that the defendants have sustained their burden on the first prong.
If the first prong is satisfied, the court must determine whether a plaintiff "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 ..." § 52-196a(e)(3). The plaintiffs baldly assert in the pleadings that their "Cub Scout sponsored membership" was revoked without notice and an opportunity to be heard. The plaintiffs allege that they were "members of their local Boy Scouts of America group, Cub Scout Pack 58 of the Nipnuck District of Connecticut Rivers Council." However, the court finds that they were not members. The plaintiffs were not listed on the Pack 58 roster in 2017. It is noteworthy that Keegan Day had once been an "Adult Partner" in the Pack, but his registration expired in May 2016 and was not renewed. Cathy Day had never been listed or registered as "Adult Partner" in the Pack. Nor were the plaintiffs members of the Lebanon Lions Club or the Nipnuck District. As such, the plaintiffs cannot establish a fundamental element of their claim under the statute-namely, membership in a nonstock corporation.
The court further finds that neither Pack 58 nor the Nipnuck District is a nonstock corporation subject to § 33-1056(a). The plaintiffs do not allege, nor do they provide any evidence, that they were members of the Lebanon Lions Club.
For all of the foregoing reasons, the court finds that the plaintiffs cannot establish probable cause of success on the merits of their claims on counts eight through eleven.
CONCLUSION
Pursuant to the mandates of General Statutes § 52-196a, the court grants the special motion to dismiss. Under § 52-196a(f)(1), the defendants are entitled to reasonable attorneys fees and costs. The court will address those issues, if necessary, once the court’s decision regarding dismissal becomes final.