Opinion
FSTCV166030037S
01-23-2018
Thomas PRIORE v. Stephanie HAIG
UNPUBLISHED OPINION
OPINION
POVODATOR, J.
Background
At a public hearing before the Greenwich Planning & Zoning Commission, the defendant made certain statements concerning the plaintiff which the plaintiff claims were defamatory. The statements did not relate, in a direct sense, to the issues before the Commission, but instead reflected the defendant’s perspective on legal difficulties in which the plaintiff had been involved.
The plaintiff has commenced this action seeking damages for those statements, accusing the plaintiff of, inter alia, acts of criminal conduct, and the defendant has filed special defenses to those claims. In turn, the plaintiff has moved to strike some special defenses, claiming them to be legally insufficient. In response to the motion to strike the defenses, the defendant has filed an objection which also asserts a lack of subject matter jurisdiction, predicated on the claimed immunity available to the defendant based on the context in which her statements were made- what is generally referred to as an absolute litigation privilege or immunity. The parties submitted briefs with respect to their respective positions, and the court entertained argument.
In separate counts, the plaintiff has asserted libel per se, libel per quod, slander per se, slander per quod, and defamation.
The defenses asserted include truth (substantial truth); two variations on immunity predicated on statements made to a quasi-judicial body; her statements were opinion not facts; and other defenses not relevant to the motions before the court.
The plaintiff correctly notes that it would have been preferable for the defendant to have filed separately her objection to the motion to strike and her motion to dismiss. However, given precedent stating that jurisdictional issues must be addressed and resolved however raised (Honan v. Dimyan, 85 Conn.App. 66, 69 (2004); Sousa v. Sousa, 157 Conn.App. 587, 599-600 (2015)), the arguably improper mechanism for presenting the issues cannot control the scope of the court’s review of the defendant’s claims.
As a preliminary matter, notwithstanding the fact that the motion to strike was filed first (with respect to the motions and objections currently before the court), the court must address the subject matter jurisdictional challenges raised by the defendant first. It is well-established that once a claimed lack of subject matter jurisdiction is raised, and regardless of the manner in which it was raised, the court generally must resolve the issue before proceeding with the case in any other respect; see, cases cited in footnote 3. Absolute litigation privilege has been determined to implicate subject matter jurisdiction, Perugini v. Giuliano, 148 Conn.App. 861, 873, 89 A.3d 358 (2014). While the court is obligated to construe the allegations of the complaint in a manner favorable to sustaining jurisdiction, the court is not precluded from going outside the allegations of the complaint in order to assess jurisdictional issues (if the information is otherwise properly before the court). Therefore, the court must address the claims of immunity/privilege identified by the defendant, to the extent that certain immunity claims implicate the court’s jurisdiction.
There are limited exceptions, such as when a claimed defect might be curable such as by substitution of a proper party. No possible exception to the jurisdiction-first rule has been identified in this case.
Discussion
In recent years, there have been a number of appellate-level decisions recognizing the breadth of the immunity afforded to parties speaking in connection with judicial proceedings, implicating the absolute judicial immunity or privilege. (The concept is sometimes framed as a privilege and sometimes as an immunity.) That immunity also has been recognized in connection with non-judicial tribunals, engaged in judicial-type proceedings- often referred to as quasi-judicial proceedings.
In Simms v. Seaman, 308 Conn. 523, 69 A.3d 880 (2013), the court reviewed, in detail, the historical origins and development of the immunity/privilege. Of some relevance to the dispute at hand, the recited history spans centuries; the prevalence of administrative tribunals and proceedings is a product of the last century. In other words, in connection with the concept under review, the application to administrative-type tribunals is of relatively recent origin.
As presented to the court, the claims of immunity implicate at least two significant issues. First, was the proceeding in question a type of proceeding that comes within the scope of the judicial immunity to the extent that that immunity is applicable to administrative proceedings? That requires, in part, a determination of whether the proceeding was, in some sense, quasi-judicial in nature, or whether the proceeding lacked sufficient decision-making function as to preclude applicability of the immunity. Somewhat related is the claim that has been made that even in the context of such an immunity/privilege, the statements made must have some bearing on the proceeding properly before the tribunal.
Perhaps unfortunately, the term " immunity" (or the alternate terminology, " privilege") is used in connection with defamation matters in more than one context, not all of them jurisdictional in nature. In addition to the jurisdictional-quality immunity discussed above, there also is a non-jurisdictional immunity relating to statements made concerning matters of public interest/concern. This latter type of immunity is not jurisdictional, and is subject to its own conditions and limitations. The court must note this distinction because in his objection to the motion to dismiss (and reply relating to the motion to strike), the plaintiff cites to, and quotes extensively from, a recent appellate decision, Cohen v. Meyers, 175 Conn.App. 519 (2017).
Cohen is illuminating in some relevant respects, but readily distinguishable in others. Thus, to the extent that the plaintiff relies on the decision and its discussion of privilege, it misses the mark. There is limited specificity in the reported decision as to the nature of the privilege, so to ensure accuracy, the court has reviewed the underlying trial court decision. Before discussing it in detail, it is also important to note that the trial court decision was a decision on the merits, after a trial; therefore, it sheds limited light on purely legal issues such as implicated in a motion to strike or motion to dismiss.
There are some references, including references in the excerpts quoted by the plaintiff at pp. 8-9, to a " qualified" immunity, discussed below; the privilege claimed in this case is not a " qualified" privilege.
With respect to the claim of privilege in Cohen, it is clear that there was not a claim of privilege analogous to the one before this court. There was no claim of a presentation to a tribunal in the context of a decision-making process:
" A defendant may shield himself from liability for defamation by asserting the defense that the communication is protected by a qualified privilege." Gambardella v. Apple Health Care, Inc., 291 Conn. 620, 628, 969 A.2d 736 (2009). The necessary elements to be proven in order to establish a conditional privilege are: a) an interest to be upheld, b) a statement limited in its scope to this purpose, c) good faith, d) a proper occasion, and e) a publication in a proper manner to proper parties only. Miles v. Perry, 11 Conn.App. 584, 595, 529 A.2d 199 (1987). In the Miles case the Appellate Court recognized a conditional or qualified privilege applicable to false expression encompassing a matter of public concern. Id., at 594. The privilege applies to false statements made as fair comment on matters of public interest. Id., at 595.
However, " a qualified privilege is lost upon a showing of either actual malice, i.e., publication of a false statement with actual knowledge of its falsity or reckless disregard for its truth, or malice in fact, i.e., publication of a false statement with bad faith or improper motive." (Emphasis in original.) Gambardella, supra, at 630. Cohen v. Meyers, No. X04HHDCV115038794S, 2015 WL 8487861, at *22-23 (Conn.Super.Ct. Nov. 12, 2015), aff’d, 175 Conn.App. 519, 167 A.3d 1157 (2017).
Thus, the privilege in Cohen was a qualified privilege relating to the ability of people to speak on issues of public concern; much (most?) of the publication of allegedly defamatory statements was on the defendant’s website and in the form of unsolicited letters to public officials. There is no analogous conduct here- all of the statements at issue were made at a public hearing of a municipal land-use agency, where the plaintiff was the applicant.
Returning to the proper scope of the issues before the court, the plaintiff correctly identifies two aspects of the claim of absolute litigation immunity/privilege that must be established/satisfied, in order for the defendant to be able to take advantage of that privilege/immunity. First, the focus is on the proceeding in which the allegedly protected statements were made, and if the statements were made in an appropriate proceeding/context, whether the statements are entitled to a privilege in that context.
The plaintiff largely relies upon the characterization of the permit approval process in which the statements were made, as administrative in nature. The court does not believe that that characterization, even as recognized in appellate level decisions, is determinative- it is a matter of context. The characterization of an overall proceeding as administrative simply draws a distinction from legislative-type proceedings (e.g., a zoning commission enacting or amending a zoning regulation), and judicial/quasi-judicial-type proceedings (e.g., a zoning board of appeals considering an appeal). Such a distinction often is helpful if not determinative of the nature and level of appellate review, but it appears to be clear, from the court’s review of decisions, that mere labels do not determine applicability of the privilege/immunity, but rather it is the nature and quality of the actual proceeding that is the proper area of focus.
Somewhat simplistically, virtually all decisions of municipal (and state) agencies could be characterized as administrative decisions, based on the essentially tautological observations that the decisions are being rendered by administrative agencies. Conversely, when an agency decision is characterized in an appellate-type decision as being administrative, that rarely is suggesting that the action/decision is effectively ministerial, in the sense that if all boxes on a form are checked, there is but one outcome. Often, such characterization is shorthand used for determining the scope of review or for determining the aspect of the process that is under consideration.
The point of this discussion is to focus on what is perceived to be a critical threshold inquiry: Is the availability or applicability of the immunity/privilege dictated by a characterization of the overall procedure or is it dictated by the existence of a process (sub-process) in which there is evidentiary-type input as a component, with the input to be considered by a decision-maker, however limited that decision-making process may be? The purpose for the privilege/immunity is avoidance of discouraging candor in connection with presentation of testimonial-type information or other input that a tribunal might find useful or essential to a factfinding procedure, and the plaintiff has not cited any cases standing for inapplicability of the privilege in the context of a factfinding function, even if subordinate to a larger encompassing administrative function.
Conversely, an implicit consequence of the plaintiff’s analysis is that, before someone speaks to an administrative body in the course of a public hearing at which input and comments are invited, the speaker has an implicit obligation to determine the proper characterization of the proceeding (administrative, quasi-judicial) so as to determine whether there is latitude afforded by the existence of a privilege/immunity- at peril of an after-the-fact determination that he/she is not so protected such that " caveat orator" would be the applicable doctrine.
Kelley v. Bonney, 221 Conn. 549, 606 A.2d 693 (1992) appears to be the proper starting point, and it is informative if not determinative on a number of levels. First, the decision makes it clear that the privilege is not limited to statements made during ongoing adversarial-type proceedings, but can be applied to statements made to an administrative body in an effort to initiate a proceeding. The principal focus of that decision was on statements made to the state Board of Education concerning alleged misconduct of a teacher, and those statements were deemed covered by the privilege/immunity. At the trial court level (but not reviewed on the merits by the Supreme Court due to inadequate briefing), the privilege also had been deemed applicable to those same statements as submitted to the Attorney General (with no clearly identified proceeding being sought).
Kelley, in turn, relied in part on Petyan v. Ellis, 200 Conn. 243, 510 A.2d 1337 (1986). In Petyan, an employer had submitted information, on a form, in connection with a former employee’s application for unemployment benefits, which the former employee considered to be defamatory. The court held that such a submission was subject to the privilege, because it was intended for use in the initial determination of eligibility for unemployment benefits, as well as any subsequent review proceedings that might ensue.
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. (Internal quotation marks and citations, omitted.) 200 Conn. 246.
In Kelley, the court identified factors that may be relevant to a determination of the applicability of the privilege/immunity:
Other jurisdictions have also outlined a number of factors that assist in determining whether a proceeding is quasi-judicial in nature. Among them 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, it is important to consider whether there is a sound public policy reason for permitting the complete freedom of expression that a grant of absolute immunity provides. (Internal quotation marks and citations, omitted.) 221 Conn. 567.
In his objection to the motion to dismiss, the plaintiff relies on a negative formulation of the function of the Commission in this case; citing an appellate decision, the plaintiff states that " [t]he commission has no independent discretion beyond determining whether an application as presented, satisfies standards set forth in the regulations." The proper focus, however, is not on what the commission cannot do, but rather what it can do, and what it is supposed to do in this particular context. Stated in the affirmative, then, the formulation is or should be: " The commission has independent discretion to determine whether an application as presented satisfies standards set forth in the regulations." See, also, Irwin v. Planning and Zoning Commission of Town of Litchfield, 244 Conn. 619, 711 A.2d 675 (1998), where the basis for the decision (reversing an Appellate Court decision) was the existence of discretion in the special permit application process. While the issues that the Commission needed to resolve may have been far less complicated in this case, the premise still remains the same. Indeed, the plaintiff does not dispute that there were decisions that needed to be made, including at least one decision that appears not to have been a yes-or-no decision but rather required consideration of " where." This appears to come within the scope of " 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" (Petyan, supra).
Quality Sand & Gravel, Inc. v. Planning & Zoning Commission, 55 Conn.App. 533, 537 (1999).
Of the six factors identified in the excerpt from Kelley as quoted above, the first four would appear to be applicable here, supporting the applicability of immunity. The Commission was charged with making a decision that implicated at least some level of discretion, and needed to make that decision based on the information provided to it, including information presented at the public hearing. The decision would be " binding" in nature, and was intended to affect property rights of private individuals, both the applicant and abutting property owners. The fifth element is somewhat equivocal, since the defendant in making her statements was not being " examined" but was offering information that she believed needed to be considered by the tribunal. The sixth factor would appear to be inapplicable (enforcement of decisions and imposition of penalties).
In Simms, the court went through an extensive recitation of the history and rationale for the privilege/immunity, focusing on the societal value of presentation of evidence and claims to an appropriate tribunal, whether in the midst of the proceeding or in initiating a proceeding, without the chilling effect of the potential for subsequent litigation claiming defamation. As already observed, most of that history predates the modern era in which much if not most of the average citizen’s interaction with the government is through administrative agencies. To the extent that most members of most municipal agencies/commission/boards are likely to be non-professionals with respect to the agency’s work, the public policy behind the immunity/privilege would seem to require encouragement of input from as many sources of information as possible- arguably more so than in a formal litigation context where the very level of formality pervading the proceedings is likely to encourage some level of self-restraint in articulation of facts and opinions.
Thus, the court is satisfied that for purposes of the requirement that there be a quasi-judicial proceeding, the public input for the Commission’s factfinding functions relating to the plaintiff’s application(s) before the Commission had a sufficient quasi-judicial quality to allow application of the absolute litigation privilege/immunity to be applicable, subject to the second requirement discussed below.
The plaintiff also argues that the statements made by the defendant, assuming they were made in the context of a quasi-judicial proceeding, were not protected because they were not relevant to the proceeding. The plaintiff further argues that there was effectively a conclusive determination in that regard when, in response to the defendant’s comments, a member of the board stated that the comments were not relevant. The plaintiff further claims that that board member statement effectively was conclusive in a collateral estoppel sense.
The plaintiff is correct that there needs to be a sufficient nexus between the statements and the proceeding for the statements to be entitled to be characterized as privileged. The proper standard is whether the statement in question is " pertinent" and not whether it is " relevant." See, e.g., Simms, 308 Conn. 537 (" There is a long-standing common-law rule that communications uttered or published in the course of judicial proceedings are absolutely privileged so long as they are in some way pertinent to the subject of the controversy ..." (Internal quotation marks and citation, omitted.)).
Dlugokecki v. Vieira, 98 Conn.App. 252, 258-59, 907 A.2d 1269 (2006) is directly on point and appears to be determinative of this issue.
The allegedly defamatory statements, made during the course of the public hearing on the defendant’s application, were addressed to the commission members and gave the basis, as perceived by the defendant, for the plaintiff’s interest in the defendant’s application. Upon review of the complaint, it reasonably can be inferred that the defendant was attempting to discredit the information provided by the plaintiff, relative to the defendant’s property, by exposing the plaintiff’s bias or improper motive for making negative comments. Whether or not legally relevant, the statements certainly were related to the matter before the commission, i.e., the pending application and cease and desist order on the defendant’s property. In assessing the credibility of speakers at a public hearing, or the reliability of information provided in support of or in opposition to a pending application, statements as to the motivation of an abutting property owner could be pertinent to the subject of the controversy. (Internal quotation marks and citation, omitted.)
The claims of grossly-exaggerated/distorted and defamatory statements relating to the plaintiff’s legal entanglements were analogous, attempting to discredit the plaintiff in the eyes of the administrative body which was being called upon, in part, to accept the accuracy and reliability of the plaintiff’s representations. Therefore, even if technically not relevant to the issues before the Commission, the statements were pertinent.
There can be no question that credibility was the focus/intent of the comments. Paragraph 24 of the plaintiff’s operative complaint states that " Defendant Stephanie Haig then stated and published the following, " I’m very concerned going forward that there is real oversight from Greenwich on how this man (Plaintiff) deals with his property. He has not been trustworthy so far .’ (Emphasis supplied.)" Clearly, the plaintiff himself recognizes that at least some of the defendant’s comments explicitly were directed to the issue of whether the Commission should trust the plaintiff with respect to the representations he was making.
Conversely, in her motion to dismiss, the defendant recites the following:
Evidence was presented demonstrating that the Priores had several mature trees on their property cut down without seeking the approval of the Commission or the Deer Park Association. The residents’ concern in this regard was compounded by the fact that the site plan proposed by the Priores disingenuously represented that the trees were still standing. Residents were also concerned about the site plan’s proposal to relocate a sewer line, which would require cutting down or endangering yet more trees.
The transcript of the proceeding before the Commission is attached to the motion, and plaintiff does not appear to claim that the paragraph quoted immediately above from the motion does not accurately represent evidence presented and issues being raised at that hearing.
The defendant, then, has established applicability of the absolute litigation privilege/immunity to the statements she made that form the basis for the plaintiff’s claims against her. In the context of applicability of the privilege, all claims relying on the substance of what was said are within the scope of the immunity, and not just those explicitly invoking variations on defamation. Stone v. Pattis, 144 Conn.App. 79, 99, 72 A.3d 1138, 1152 (2013). Only claims that challenge the context in which statements were made, e.g., vexatious suit or abuse of process, can survive; see, also, Villages, LLC v. Longhi, 166 Conn.App. 685, 698, 142 A.3d 1162, 1171 (2016), discussing distinction between absolute litigation immunity for content of statement made to public officials in appropriate circumstances and the statutory immunity available to those public officials for discretionary conduct under General Statutes § 52-557n. Therefore, all of the claims actually asserted by the plaintiff are precluded by the litigation privilege/immunity.
Collateral estoppel is not and cannot be applicable. The statement was not determinative of any outcome, was not actually litigated in any meaningful sense, and the defendant was not a party such that she had no opportunity (as of right) to present evidence that might have supported her claims. (She effectively was a witness in the proceeding.) Further still, the statement of a member of the Commission does not necessarily reflect a decision of the Commission. Finally, since relevance is not the benchmark for applicability of the privilege, even if conclusive as to relevance to that proceeding, a determination that the statements lacked relevance would not be conclusive as to a different issue that is relevant to this proceeding, i.e., pertinence.
Having concluded that absolute immunity applies, the court need not (cannot) reach the merits of the plaintiff’s motion to strike the special defenses. Having concluded that the court lacks jurisdiction over the claims asserted by the plaintiff, the court cannot address or decide anything further; State v. Jason B., 176 Conn.App. 236, 237 n.1, 170 A.3d 139, 140 (2017).
Conclusion
The litigation privilege represents the outcome of a balancing of the competing interests- the right to seek recourse with respect to defamatory statements versus the public interest in encouraging participation in judicial and quasi-judicial proceedings without fear of having to defend litigation should the statements made prove to be less than accurate. The proliferation of administrative agencies and administrative proceedings shifts much of the focus onto such agency determinations and whether they should be similarly protected- with the answer seemingly being " yes."
Even without claims of defamation, both judicially and legislatively (in many states) there has been a recognition of problems created by so-called SLAPP lawsuits; see, e.g., Zeller v. Consolini, 59 Conn.App. 545, 562 n.7, 758 A.2d 376, 386 (2000).
Based on her pleadings and the manner in which she formulated her proposed defenses, it seems that (at least implicitly) the defendant recognizes that her statements may have gone beyond literal truth- the detailed recitation of facts in her first special defense does not recite any determination of criminality nor the payment by the plaintiff, personally, of the millions of dollars she claimed he had paid (when addressing the Commission). The plaintiff presumably had an opportunity to set the record straight at that hearing- but it appears that he was represented by a designated representative, who spoke on his behalf, with no apparent indication that he personally was present.
Emphasizing the non-ministerial nature of the proceeding before the Commission, the transcript reflects that the Commission concluded the hearing by stating that the matter was being left open subject to further discussions between the plaintiff and the Association representing the interests of other owners in the development. It was an ongoing process, requiring input from affected parties (with an implicit goal of obtaining an agreement of the parties to as many issues as possible). Those open matters appear to include issues relating to tree-removal, location of a proposed sewer line, and the manner in which that sewer line would be funded (who would pay). The comments of the defendant were not directly relevant to these issues, but the extent to which representations made by (or on behalf of) the plaintiff could be accepted at face value was pertinent to the proceedings.
One of the claimed existing discrepancies between reality and representation was that trees shown on drawings submitted to the Commission as then-existing (although perhaps proposed for removal) had been removed as of the date of the hearing.
For all of these reasons, then, the motion to dismiss is granted.
The court notes a lack of consistency in the treatment of absolute immunity/privilege and the consequences of a determination that it applies. In Petyan, the mechanism was a directed verdict; in Dlugokecki, the Appellate Court affirmed the granting of a motion to strike; in McManus v. Sweeney, 78 Conn.App. 327, 827 A.2d 708 (2003), the court affirmed the granting of summary judgment. As the most recent appellate authorities seem to endorse a jurisdictional quality to the privilege/immunity; see, Perugini, see, also, Law Offices of Frank N. Peluso, P.C. v. Rendahl, 170 Conn.App. 364, 154 A.3d 584 (2017), affirming dismissal and in footnote 1, rejecting a claim that the issue should have been addressed via summary judgment; the court concludes that dismissal is the proper form of disposition.