Opinion
No. CV-05-4007375 S
January 3, 2006
MEMORANDUM OF DECISION ON DEFENDANT'S MOTIONS TO DISMISS (#s 103 and 107)
On February 14, 2005, the plaintiff, Wayne Rioux, filed a six-count complaint alleging the following facts against the defendants, Timothy F. Barry, Karoline Keith, John Sipper, John Bement, Mark Wallack, Mark Laurentano, Kathy Laurentano, Edward Capowich, Marisol Laboy, Edward Lynch, Robert Duffy, Thomas Snyder and Timothy Loomis, all members of the Connecticut State Police. At the time in question, the plaintiff was assigned as the commanding officer of Troop B of the Connecticut State Police, based in North Canaan, Connecticut. Defendant Edward Lynch, a lieutenant colonel with the Connecticut State Police, had assigned the plaintiff to the position of commanding officer of Troop B. Defendant Timothy Barry was a colonel with, and commanding officer of, the Connecticut State Police.
At the time of his appointment, Lynch informed him that Troop B was low in compliance and instructed him to "clean up Troop B and its personnel." After instituting various evaluation and disciplinary measures, certain members of Troop B resented the "tighter discipline" and planned to "get rid" of the plaintiff. False and misleading statements regarding the plaintiff were made and published to the Connecticut State Police "high command" in order to initiate an internal affairs investigation into the plaintiff's behavior; an investigation was initiated on July 25, 2002. As a result of the investigation, the plaintiff was suspended from his position without pay for thirty days. In a subsequent appeal to the Appeal Board, the board found that the allegations against him were not supported by credible evidence and that the charges against him were dismissed and his suspension was rescinded.
Counts one and three allege malicious prosecution and intentional interference with contractual or beneficial relations, respectively, against Keith. Counts two and four allege conspiracy to commit malicious prosecution and conspiracy to interfere with contractual or beneficial relations, respectively, against Keith, Sipper, Bement, Wallack, Loomis, Capowich, Mark Laurentano, Kathy Laurentano, and LaBoy. Count five alleges a violation of the fourteenth amendment to the United States constitution against Barry; count six alleges intentional interference with contractual or beneficial relations against Duffy, Snyder and Lynch.
On March 31, 2005, Keith, Sipper, Bement, Mark Laurentano, Kathy Laurentano, Capowich, Loomis, LaBoy, Lynch, Duffy, Snyder and Barry filed a motion to dismiss counts one through four on the ground of absolute immunity from suit. (#103) That group of defendants have submitted a memorandum of law in support of the motion. On May 2, 2005, the defendant Mark Wallack moved to dismiss the action against him on the ground of absolute immunity from suit and filed a memorandum of law in support of the motion. (#107) Wallack correctly argues that only counts two and four are asserted against him, and it is those counts he seeks to dismiss. On May 16, 2005, the plaintiff filed a memorandum of law in opposition to the motion.
Counts one through four do not assert claims against Lynch, Duffy, Snyder or Barry, and thus those defendants will not be considered parties to the motion to dismiss now before this court. Further, counts one and two assert claims only against Keith; therefore, the motion to dismiss shall be deemed a motion to dismiss counts one and two by Keith only and a motion to dismiss counts two and four by Keith and the remaining defendants.
Because all of the defendants including Wallack assert identical arguments as to absolute immunity from suit, both motions to dismiss and the supporting arguments will be addressed together and the parties will be referred to as the "defendants."
"A motion to dismiss properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005); see also Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2003); Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 773, 826 A.2d 138 (2003).
"The grounds which may be asserted in [a motion to dismiss] are: (1) lack of jurisdiction over the subject matter . . . Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 10-31. "Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003).
"When a court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . [A] court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005); see also Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 432-33, 829 A.2d 801 (2003); Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 774, 826 A.2d 138 (2003).
The defendants move to dismiss counts one, two, three and four on the ground of absolute immunity from suit. In support of the motion, the defendants argue that immunity invokes a court's subject matter jurisdiction. The defendants assert that immunity attaches upon a person's involvement in a quasi-judicial proceeding, and that a police internal affairs investigation is a quasi-judicial proceeding.
The plaintiff counters that the issues raised by the defendants are not jurisdictional and therefore cannot be addressed in a motion to dismiss. Further, the plaintiff asserts that the defendant's substantive arguments should not be reached by the court and should, nevertheless, be rejected because Connecticut case law authorizes the plaintiff's malicious prosecution claims and the acts underlying the malicious prosecution claims satisfy the wrongful conduct element of the claims in intentional interference.
"Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it . . . Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action." (Citation omitted; internal quotation marks omitted.) Amodio v. Amodio, 247 Conn. 724, 727-28, 724 A.2d 1084 (1999). The plaintiff's argument that the issues raised by the defendants are not jurisdictional and therefore not properly raised on a motion to dismiss is one that has not been definitively addressed by our appellate courts. The Appellate Court in Olympus Healthcare Group, Inc. v. Muller, 88 Conn.App. 296, 301, 870 A.2d 1091 (2005), noted that "[a]lthough our law sometimes affords some potential defendants the privilege of immunity from liability, we know of no case that holds that the existence of such privilege deprives a court of subject matter jurisdiction." Further, the Supreme Court in Carrubba v. Moskowitz, 274 Conn. 533, 537, 877 A.2d 773 (2005), although finding that court-appointed attorneys were entitled to absolute, quasi-judicial immunity, noted that "[i]t is unnecessary for us . . . in resolving the present case, to consider whether a motion to dismiss was the proper procedural vehicle by which to raise absolute immunity because that question is not presented in this appeal."
By way of example, the Muller court explained in its third footnote that "for reasons of public policy, the law provides immunity from liability for governmental agents and for participants in judicial and quasi-judicial proceedings. See, e.g., Kelley v. Bonney, 221 Conn. 549, 565-66, 606 A.2d. 693 (1992); Peytan v. Ellis, 200 Conn. 243, 245-46, 510 A.2d 1337 (1986); McHale v. W.B.S. Corp., 187 Conn. 444, 450, 446 A.2d 815 (1982)."
Some trial court judges have considered absolute immunity to involve the court's subject matter jurisdiction and addressed the issue on a motion to dismiss. See, e.g., Plasden v. Pendleton, judicial district of Hartford, Docket No. CV 04 4004034 (June 7, 2005); Consumer Credit Coalition of Connecticut, Inc. v. Lodi, judicial district of Middlesex, Docket No. CV 03 0100918 (August 27, 2003) ( 35 Conn. L. Rptr. 300). Other trial court judges have considered the doctrine in the context of a motion to strike. See, e.g., Dlugokecki v. Vieira, judicial district of Waterbury, Docket No. CV 04 0184600 (July 7, 2005); Albert v. Shaikh, judicial district of Hartford, Docket No. CV 03 0825352 (November 25, 2003).
In the present case, this court will address the defendants' motions to dismiss on the ground of absolute immunity and finds support for doing so in the Supreme Court's decision in Chadha v. Charlotte Hungerford Hospital, 272 Conn. 776, 865 A.2d 1163 (2005). In Chadha, the court discussed the immunity provided participants in judicial or quasi-judicial proceedings and recognized that absolute immunity applied: "[A]bsolute immunity furthers the public policy of encouraging participation and candor in judicial and quasi-judicial proceedings. This objective would be thwarted if those persons whom the common-law doctrine was intended to protect nevertheless faced the threat of suit. In this regard, the purpose of the absolute immunity afforded participants in judicial and quasi-judicial proceedings is the same as the purpose of the sovereign immunity enjoyed by the state." (Emphasis added.) Id., 787. Because the Supreme Court has found that the doctrines of sovereign immunity and absolute immunity share the same purpose of protection "against suit as well as liability — in effect, against having to litigate at all"; id., 786; and because "[t]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss;" Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 876 A.2d 1148 (2005); this court will consider the defendants' motions to dismiss on the ground of absolute immunity.
"The judicial proceeding to which [absolute] immunity attaches has not been defined very exactly. It includes any hearing before a tribunal which performs a judicial function, ex parte or otherwise, and whether the hearing is public or not . . . It extends also to the proceedings of many administrative officers, such as boards and commissions, so far as they have powers of discretion in applying the law to the facts which are regarded as judicial or quasi-judicial, in character." (Internal quotation marks omitted.) Craig v. Stafford Construction, Inc., 271 Conn. 78, 84-85, 856 A.2d 372 (2002). In Craig v. Stafford Construction, Inc., supra, the Connecticut Supreme Court affirmed the Appellate Court's conclusion that an investigation of a city police officer conducted by the police department's internal affairs division constituted a quasi-judicial proceeding thereby affording absolute immunity to the citizen complainant whose claim gave rise to the investigation. Id. The Supreme Court in Craig further stated: "[W]hether a particular proceeding is quasi-judicial in nature, for the purpose of triggering absolute immunity, will depend on the particular facts and circumstances of each case." Id., 83-84.
In the present case, the plaintiff alleges that the defendants' false and misleading statements were made in expectation of an internal affairs investigation of the plaintiff's behavior while he was commanding officer of the Connecticut State Police, Troop B. Notwithstanding the similarity of these allegations to the facts and circumstances of Craig, the plaintiff argues that this case is controlled by McHale v. W.B.S. Corp., 187 Conn. 444, 446 A.2d 815 (1982), not Craig v. Stafford Construction, Inc., supra. The plaintiff argues in his memorandum of law in opposition to the defendants' motions that " Craig gave the complaining witness in a police internal affairs investigation immunity from liability for defamation. It did not involve a claim of malicious prosecution." Because the plaintiff does not plead any causes of action sounding in defamation, he argues that Craig is not controlling.
This court is not persuaded by the plaintiff's argument. The court in McHale addressed the narrow issue of "the extent to which falsity of the information provided to [a] public officer [entrusted with the responsibility for initiating criminal prosecutions] diminishes the private person's immunity." McHale v. W.B.S. Corp., supra, 187 Conn. 449. In both Craig and the present case, however, the immunity under consideration is that afforded to witnesses who provide information and testimony leading up to and during internal affairs investigations, proceedings that court in Craig found to be quasijudicial in scope and affording absolute immunity, as has already been noted. Moreover, this court has previously addressed an important distinction between the facts of the present case and those of McHale, a distinction that the plaintiff overlooks: "As a matter of law the giving of a statement to an investigating police officer is not a statement qualifying for absolute privilege as one given as an essential step in a quasi-judicial proceeding. Simply put, a police department is not a quasi judicial body." (Emphasis added.) Phillips v. Pepsico, Inc., Superior Court, judicial district of New Haven, Docket No. CV 94 035861-3 (November 10, 1997, Licari, J.) ( 20 Conn. L. Rptr. 662). Contrary to the plaintiff's arguments, McHale does not apply factually or legally to the present case because it does not deal with statements made in a quasijudicial proceeding.
In concluding that the investigation conducted by the police department's internal affairs division constituted a quasi-judicial proceeding that afforded absolute immunity to any statements made within the context of that investigation from any subsequent defamation claims, the court in Craig recognized and adopted the following policy argument: "[The policy of affording absolute immunity] reflects the unspoken reality that, if there were no absolute immunity, good faith criticism of governmental misconduct might be deterred by concerns about unwarranted litigation." Craig v. Stafford Construction, Inc., supra, 271 Conn. 95. The court adopted that policy argument notwithstanding its recognition of "the debilitating affect that a false allegation of racial discrimination can have on a police officer" because the court concluded "that the policy of encouraging citizen complaints against those who wield extraordinary power within the community outweighs the need to protect the reputation of the police officer against whom the complaint is made." Id., 95-96. Those same policy arguments apply to the facts of the present case.
The plaintiff cannot avoid Craig by arguing that unlike Craig, his causes of action do not sound in defamation, for to do so would not only allow the plaintiff to circumvent but also to eviscerate the policy enunciated in Craig. The comments of the United States District Court in Medphone Corp. v. Denigris, United States District Court, Docket No. Civ. 92-3785(HLS), 1993 WL 131479999 (D.N.J. July 28, 1993), quoting the New Jersey Supreme Court in Dairies v. Raritian Valley Farms, Inc., 19 N.J. 552 (1955), are relevant and instructive on this point. In Medphone, the district court acknowledged that under New Jersey law, words uttered in the course of a judicial or quasi-judicial proceeding and which have some relation thereto are absolutely privileged and that New Jersey courts have favored a broad interpretation of the phrase "in the course of a judicial proceeding" and ruled that the privilege is not limited to in-court statements. Id. The district court noted that the absolute immunity afforded a party's conduct in a defamation claim could not be "maneuvered around" by recasting the claim as one for tortious interference with contract. "Since both claims are grounded [on the same conduct] both claims must fail." Medphone Corp. v. Denigris, supra.
Furthermore, our Supreme Court in Kelley v. Bonney, 221 Conn. 549, 606 A.2d 693 (1992), similarly spoke to this issue. In deciding that the trial court properly directed a verdict in favor of a defendant because the allegedly defamatory statements made by that defendant were absolutely privileged and could not provide the basis for liability in a defamation action, the Supreme Court also noted that "[b]ecause the plaintiff's intentional infliction of emotional distress cause of action was founded upon the same conduct as his defamation claim, absolute privilege also bars recovery on that claim." Kelley v. Bonney, supra, 221 Conn. 571, n. 15.
In the present case, the defendants' conduct upon which the plaintiff bases his claims of malicious prosecution, intentional interference with contractual and beneficial relations and conspiracy is conduct that if claimed to be defamatory would be afforded absolute immunity under the holding of Craig. Moreover, given the similarities of the facts and circumstance in the present case to those in Craig, the internal affairs investigation of the plaintiff constituted a quasi-judicial proceeding, and the statements made by the defendants in anticipation of and during such investigation are therefore afforded an absolute privilege. Accordingly, the defendants' motions to dismiss (#s 103 and 107) are granted.