Smith v. Supple ( 2023 )

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SMITH v. SUPPLE—DISSENT
D’AURIA, J., with whom ECKER and ALEXANDER,
Js., join, dissenting. Many states have passed what have
come to be known as anti-SLAPP1 statutes. Connecti-
cut’s legislature passed a version of this kind of statute
in 2017. See General Statutes § 52-196a. A hallmark of
these statutes is the availability of early court interven-
tion to protect those who claim that a lawsuit has been
filed against them in retaliation for their exercise of
protected constitutional rights.2 On an expedited basis
and on a quickly assembled record, a trial judge serves
as a gatekeeper, promptly weeding out and dismissing
lawsuits that plainly have been filed for this illegitimate
purpose.
When the legislature passed the legislation that
became § 52-196a, it was not writing on a blank slate.
Many state legislatures had already passed these kinds
of statutes, and the legislative history of § 52-196a notes
that we borrowed generously from these models. Some
of these other states’ statutes, including those the legis-
lature most conspicuously borrowed from, explicitly
provided for an interlocutory appeal from the denial of
an early motion, in Connecticut called a ‘‘special motion
to dismiss.’’ Some do not provide explicitly for an
appeal. Still other legislatures amended their states’
statutes to provide for an interlocutory appeal after a
court had ruled that no such appeal was authorized.
Connecticut’s statute does not explicitly provide for
an interlocutory appeal. The majority today, however,
finds authority for such an appeal in what should be a
narrow avenue, doing so based on the second prong of
the test adopted in State v. Curcio, 191 Conn. 27, 463
A.2d 566 (1983), which allows for an immediate appeal
‘‘[when] the order or action so concludes the rights of
the parties that further proceedings cannot affect
them.’’ Id., 31. Even under the second prong of Curcio,
though, we are obliged pursuant to General Statutes
§ 1-2z to take our cues from what the legislature has
said about the ‘‘nature of the statutory right’’ at issue,
as the majority phrases it. In my view, based on the
statutory language and the available evidence of legisla-
tive intent, the majority’s analysis does not abide by
§ 1-2z. Rather, I conclude that the defendants, Aaron
Supple, Karen Montejo, Hendrick Xiong-Calmes and
Giana Moreno, who were students at Trinity College in
Hartford, have failed to establish that a right already
secured to them will be irretrievably lost absent an
immediate appeal.
We traditionally have ‘‘strictly construe[d]’’ the right
to appeal; E. Prescott, Connecticut Appellate Practice &
Procedure (5th Ed. 2016) § 2-1:1.2, p. 44; including the
right to appellate review of interlocutory rulings. In my
view, the legislature expects us to do exactly that. The
legislature knows we will look for explicit statutory
language authorizing an interlocutory appeal and for
‘‘distinctive and unmistakable’’ language in defining a
statutory right that might meet the strictures of the
second prong of Curcio. Trinity Christian School v.
Commission on Human Rights & Opportunities, 329
Conn. 684, 696, 189 A.3d 79 (2018). I do not believe that
the defendants have established that, under § 1-2z and
our case law, the legislature authorized us to hear
appeals from these gatekeeper rulings. And I do not
believe that, having opened the door to these appeals,
they will be as easy to rule on and dispose of as the
majority might expect. For all of the reasons that follow,
I respectfully dissent.
I
I will assume familiarity with the details of the inci-
dents that gave rise to this action, as aptly described
in the majority opinion, and focus first on the trial court
proceedings. Review of those proceedings provides an
appropriate appreciation of the beneficial measures
enacted in Connecticut’s anti-SLAPP statute, § 52-196a,
by which the legislature balanced the rights of plaintiffs
who claim damages to pursue legal action in our courts;
see Conn. Const., art. I, § 10;3 and the rights of defen-
dants who claim that the action is nothing more than
retaliation for exercising their protected constitu-
tional rights.
The plaintiffs, Gregory B. Smith, Nicholas Engstrom
and The Churchill Institute, Inc., brought this action
against the defendants on April 5, 2021, alleging libel per
se, libel per quod, and negligent infliction of emotional
distress. The defendants filed a ‘‘special motion to dis-
miss,’’ arguing that, in the language of § 52-196a, the
plaintiffs’ claims were based on the defendants’ exer-
cise of their rights of free speech or association in
connection with a matter of public concern under the
first amendment to the United States constitution. As
required by § 52-196a (c), the defendants filed their
motion within thirty days of the return date.
The defendants’ special motion to dismiss gave rise
to an expedited trial court procedure. Specifically, pur-
suant to § 52-196a (d), the filing of the motion prompted
a stay of discovery, which applies unless the court finds
‘‘specified and limited discovery relevant to the special
motion to dismiss’’ necessary.4 On July 21, 2021, after
a condensed briefing period, the trial court conducted
an expedited hearing on the motion.5 The court issued
a decision denying the motion on November 16, 2021,
within the time our rules of practice afford for rulings
on short calendar matters. See Practice Book § 11-19
(a) (court ‘‘shall issue a decision on such matter not
later than 120 days from the date of such submission’’);
see also General Statutes § 52-196a (e) (4) (directing
court to rule on special motion ‘‘as soon as practica-
ble’’).
The trial court held that the defendants had failed to
meet their burden under § 52-196a (e) (3) of demonstra-
ting that the plaintiffs’ complaint is based on the defen-
dants’ right to free speech because their communica-
tions at Trinity College were not made in a ‘‘public
forum,’’ as required under § 52-196a (a) (2).6 The trial
court further held that a private college, like Trinity
College, was not a state actor for purposes of triggering
first amendment protections under the federal constitu-
tion.
The defendants filed an appeal, which the Appellate
Court promptly stayed, awaiting a decision in Pryor v.
Brignole, 336 Conn. 933, 248 A.3d 3 (2021), in which
we had certified the issue of whether a denial of a
special motion to dismiss is immediately appealable.
We transferred the defendants’ appeal to this court for
consideration along with Pryor and Robinson v. V. D.,
Docket No. SC 20731, an appeal that the Appellate Court
had also stayed and that we had also transferred
because it implicated the same threshold jurisdic-
tional issue.
II
It is well established that, ordinarily, the denial of
a motion to dismiss—even on jurisdictional grounds,
which was not the basis of the defendants’ special
motion—is an interlocutory ruling, not a final judgment
for purposes of appeal. See, e.g., In re Teagan K.-O.,
335 Conn. 745, 754, 242 A.3d 59 (2020). Nor is the denial
of a motion for summary judgment or a motion to strike
ordinarily an appealable final judgment. See, e.g., Light-
house Landings, Inc. v. Connecticut Light & Power
Co., 300 Conn. 325, 328 n.3, 15 A.3d 601 (2011) (motion
for summary judgment); White v. White, 42 Conn. App.
747, 749, 680 A.2d 1368 (1996) (motion to strike).
The constitutional nature of the defense the defen-
dants have posed in the present case compels no differ-
ent result. This is because it is also well established
that the right to free speech protected by the first
amendment confers an immunity from liability, which
may be raised as a defense; see, e.g., Gleason v. Smolin-
ski, 319 Conn. 394, 406–407, 125 A.3d 920 (2015); see
also Snyder v. Phelps, 562 U.S. 443, 451–52, 131 S. Ct.
1207, 179 L. Ed. 2d 172 (2011); and, if unsuccessful,
may be appealed upon the entry of an adverse final
judgment. See, e.g., Segni v. Commercial Office of
Spain, 816 F.2d 344, 345 (7th Cir. 1987) (‘‘[i]t’s quite a
leap . . . to say that anytime a motion to dismiss on
[f]irst [a]mendment grounds is denied, the defendant
can appeal the denial, on the theory that the failure to
dismiss the suit at the earliest opportunity is itself an
infringement of the defendant’s [f]irst [a]mendment
rights’’).
Therefore, the defendants do not dispute, and the
majority concedes, that, prior to January 1, 2018, the
effective date of No. 17-71, § 1, of the 2017 Public Acts
(P.A. 17-71), codified at § 52-196a, the defendants’ con-
stitutional rights to free speech provided them not with
immunity from suit but only with immunity from liabil-
ity for claims premised on the exercise of those rights.
It follows that, before the passage of § 52-196a and
today’s majority decision, a defendant’s unsuccessful
motion (to dismiss, to strike, or for summary judgment)
based on a first amendment defense would not have
been immediately appealable.
III
In 2017, the legislature passed P.A. 17-71, § 1, which
became effective on January 1, 2018, and permits those
against whom lawsuits have been filed to pursue a spe-
cial motion to dismiss early in the litigation, raising as
a defense that the underlying action arose out of the
exercise of their constitutional rights to free speech,
to free association, or to petition the government. As
described previously, the statute permits any defendant
filing a motion posing such a defense to require plain-
tiffs in short order to demonstrate that their case has
merit, factually and legally. In particular, the statute
directs the trial court to grant the special motion to
dismiss if the defendants make ‘‘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’’ his constitutional
rights ‘‘in connection with a matter of public concern
. . . .’’ General Statutes § 52-196a (e) (3). The plaintiffs
can defeat the special motion to dismiss if they ‘‘[set]
forth with particularity the circumstances giving rise
to the complaint . . . and [demonstrate] to the court
that there is probable cause, considering all [of the
defendants’] valid [constitutional] defenses, that the
[plaintiffs] will prevail on the merits of the complaint
. . . .’’ General Statutes § 52-196a (e) (3).
Whether and how to manage and accelerate proceed-
ings at the trial court level is one policy determination
that the legislature clearly and unambiguously provided
for in § 52-196a, directing in significant detail how a
special motion to dismiss should be filed and resolved.
In the present case, for example, following these direc-
tives closely, the trial court ruled on the motion in just
over seven months from the filing of the complaint.7
Whether to permit one party to halt the trial court
proceedings and to launch the parties on an appellate
track in the event the motion is denied is an altogether
different policy determination, however, about which
the legislature said almost nothing. An interlocutory
appeal takes an action that the plaintiffs have a constitu-
tional right to file and pursue and deposits it in an
entirely different court system not known for its dis-
patch. If permitted, this appeal comes after the plaintiffs
have made a preliminary showing, in short order and
‘‘with particularity,’’ that there is probable cause that
they will prevail on their complaint, despite the defen-
dants’ constitutional challenges. General Statutes § 52-
196a (e) (3). Moreover, appellate review of these rul-
ings—often requiring findings of fact by which to mea-
sure the plaintiffs’ claims and the defendants’ argu-
ments of intrusion on protected rights—will have to
be undertaken on a record constructed hastily, and
intentionally so. This is not a recipe for the solemn
and meticulous scrutiny often required to adjudicate
weighty constitutional issues, and I would not presume
that the legislature intended our appellate courts to
take up these cases on an interlocutory basis without
more specific legislative direction.
Nevertheless, the defendants claim, and the majority
today agrees, that § 52-196a not only changed the proce-
dure by which defendants may speedily contest the
merits of a lawsuit at the trial level but also permits
defendants to take an appeal when that procedure is
unsuccessful. I disagree.
IV
In Connecticut, ‘‘an appeal is purely a statutory privi-
lege accorded only if the conditions fixed by statute
and the rules of court for taking and prosecuting the
appeal are met.’’ (Internal quotation marks omitted.)
State v. Coleman, 202 Conn. 86, 88–89, 519 A.2d 1201(1987). That is, we do not determine as a policy matter
whether to afford litigants an appeal from a particular
ruling, let alone an interlocutory ruling: only the legisla-
ture does so. There are two ways that the legislature
may signal to our courts its policy choice to permit
interlocutory appeals. Both ways require a close exami-
nation of the statutory language, pursuant to § 1-2z,
which I do not agree that the majority has undertaken.
A
The first is the clear and unambiguous way, namely,
the legislature could have made explicit in § 52-196a
that the denial of a special motion to dismiss is immedi-
ately appealable. Anti-SLAPP statutes in numerous
other states contain precisely this kind of specific lan-
guage permitting interlocutory appeals from the denial
of similar motions. Among the states with specific lan-
guage authorizing an interlocutory appeal are those
whose legislation served as a model for Connecticut’s
anti-SLAPP statute, according to the very legislative
history the majority cites. See Conn. Joint Standing
Committee Hearings, Judiciary, Pt. 8, 2017 Sess., p. 4602,
testimony of Klarn DePalma, vice president and general
manager, WFSB-TV (noting that language of Connecti-
cut’s anti-SLAPP statute is most similar to statutes from
California, Oregon, Texas and Washington); see also
Cal. Civ. Proc. Code § 425.16 (i) (Deering Supp. 2021);
Or. Rev. Stat. § 31.150 et seq. (2017); Tex. Civ. Prac. &
Rem. Code Ann. § 27.008 (West 2020); Wn. Rev. Code
Ann. § 4.105.080 (West 2021). Also, among the states
with explicit statutory appeal language are those that
made the right to an interlocutory appeal explicit only
after a court had ruled that it would not infer such a
right. See Wynn v. Bloom, 852 Fed. Appx. 262, 262 n.1
(9th Cir. 2021) (Nevada); Schwern v. Plunkett, 845 F.3d
1241, 1244 (9th Cir. 2017) (Oregon). Although the
absence of explicit language authorizing an immediate
appeal from the denial of a special motion to dismiss
is not determinative of whether such a right exists;
see, e.g., Hartford Accident & Indemnity Co. v. Ace
American Reinsurance Co., 279 Conn. 220, 238, 901
A.2d 1164 (2006); Connecticut’s legislature has demon-
strated in several contexts that, when it intends to per-
mit an interlocutory ruling to be immediately appeal-
able, it knows how to authorize it expressly.8 Two of
these enabling statutes in particular warrant closer
examination in comparison to § 52-196a.
The first is the prejudgment remedy statute, General
Statutes § 52-278l (a),9 which the majority itself cites
because it is mentioned in the legislative history of § 52-
196a. As the majority points out, then Representative
William Tong described the nature of the special motion
to dismiss proceeding under § 52-196a as a ‘‘substantial
hearing’’ or ‘‘[mini-trial] at the outset,’’ akin to a prejudg-
ment remedy hearing. 60 H.R. Proc., Pt. 16, 2017 Sess.,
p. 6945. It is true that both statutes provide for a trial
court’s early examination of whether the statutory
requirements have been satisfied. The difference, of
course, is that § 52-278l expressly authorizes an appeal
from an order ‘‘granting or denying a prejudgment rem-
edy’’ and includes among its provisions a shortened
appeal period (seven days) and authority for the trial
court to order a stay in the event of an appeal if the
party taking the appeal posts a bond, thus protecting
the adverse party from any damages that may result
from the stay. Had Representative Tong been asked to
comment further on the analogy between a ruling on
a prejudgment remedy and the denial of a special
motion to dismiss, he would have had to observe that
our anti-SLAPP statute contains no appeal provision,
unlike § 52-278l and numerous anti-SLAPP statutes in
other states.10
Also worth examining is General Statutes § 31-118,
concerning labor injunctions. That statute not only
explicitly authorizes an appeal when a court ‘‘issues or
denies’’ a temporary injunction arising out of a labor
dispute but also provides its own distinct appeal period
(two weeks) and directs the parties and the reviewing
court on the appellate procedure to undertake. General
Statutes § 31-118. In particular, the statute requires that
‘‘the record shall be . . . made available to counsel
within two weeks’’; ‘‘[t]he appellant shall file his brief
within two weeks . . . and the appellee within one
week thereafter’’; no extensions of time are allowed
except for ‘‘illness or other acts of God’’; the appeal
must be heard no ‘‘later than two weeks from the date
the appeal is perfected’’; and the appeal ‘‘shall take
precedence over all matters except older matters of the
same character.’’ General Statutes § 31-118. Section 52-
196a contains none of these details.
Both § 31-118 and § 52-278l, with their explicit appeal
provisions, provide particularly apt comparisons to our
anti-SLAPP statute because they involve similar prelimi-
nary determinations at the trial level. See General Stat-
utes § 31-115 (temporary injunctive relief requires ‘‘find-
ing of facts by the court’’ that (a) unlawful acts have
been threatened and are forthcoming; (b) substantial
and irreparable injury; (c) harm to complainant; (d) no
adequate remedy at law; and (e) inadequate protection
of complainant’s property); General Statutes § 52-278d
(a) (1) (‘‘there is probable cause that a judgment in the
amount of the prejudgment remedy sought . . . will
be rendered in the matter in favor of the plaintiff’’).
Whereas the legislature has decided as a policy matter
that rulings on temporary labor injunctions and prejudg-
ment remedies are worthy of interlocutory appellate
review by the nonprevailing party, as the majority con-
cedes, the legislature has made no such explicit policy
decision regarding our anti-SLAPP statute.
The only portion of the statute that arguably hints at
a right to appeal the denial of a special motion to dismiss
is subsection (d) of § 52-196a, which provides in rele-
vant part: ‘‘The court shall stay all discovery upon the
filing of a special motion to dismiss. The stay of discov-
ery shall remain in effect until the court grants or denies
the special motion to dismiss and any interlocutory
appeal thereof. . . .’’ This language is a far cry from
authorizing an interlocutory appeal, however, and the
majority does not contend otherwise. Staying discovery
until the trial court rules on a special motion to dismiss
and an appellate court rules on a possible interlocutory
appeal does little to imply that the legislature intended
statutorily to grant defendants the right to an immediate
appeal. At most, this language shows that the legislature
was aware that, in unique circumstances, such as when
a party files a public interest appeal pursuant to General
Statutes § 52-265a, a denial of a special motion to dis-
miss may be immediately appealable.11 See Lafferty v.
Jones, 336 Conn. 332, 336–38 and n.3, 246 A.3d 429(2020) (granting petition to file expedited public interest
appeal, pursuant to § 52-265a, from trial court’s sanction
revoking defendants’ opportunity to pursue special
motion to dismiss under § 52-196a), cert. denied,
U.S. , 141 S. Ct. 2467, 209 L. Ed. 2d 529 (2021). The
present appeal could have been a viable candidate for
certification under that statute. But acknowledging in
a statute that appellate courts could have the authority
to hear interlocutory appeals through another jurisdic-
tional avenue is not the same as providing a right to
appeal in the statute itself.
B
The majority is correct that we have said that the
absence of specific language conferring the right to
appeal ‘‘is not determinative of whether such a right
exists. . . . Rather, we presume that the legislature is
aware of our [long-standing] final judgment jurispru-
dence.’’ (Citation omitted.) Hartford Accident &
Indemnity Co. v. Ace American Reinsurance Co.,
supra, 279 Conn. 238. This leads to the second way in
which the legislature can signal to appellate courts its
policy choice to permit interlocutory appeals. Specifi-
cally, the legislature can include language in the statute
that satisfies the test articulated in Curcio. See id. That
is, we presume that the legislature has taken note of
the ‘‘circumstances in which an interlocutory ruling is
deemed [by this court] to have the attributes of a final
judgment’’ under our appeal statutes ‘‘so as to permit
an immediate appeal.’’ Saunders v. KDFBS, LLC, 335
Conn. 586, 591, 239 A.3d 1162 (2020); see Hartford Acci-
dent & Indemnity Co. v. Ace American Reinsurance
Co., supra, 238.
Specifically, we have held that an ‘‘otherwise interloc-
utory order is appealable in two circumstances: (1)
[when] the order or action terminates a separate and
distinct proceeding, [and] (2) [when] the order or action
so concludes the rights of the parties that further pro-
ceedings cannot affect them.’’ State v. Curcio, supra,191 Conn. 31. No one contends that the first prong of
Curcio is implicated in the present case or by § 52-196a.
Rather, the only question is whether the denial of a
special motion to dismiss satisfies the second prong of
the Curcio test, which ‘‘focuses on the nature of the
right involved. It requires the parties seeking to appeal
to establish that the trial court’s order threatens the
preservation of a right already secured to them and that
that right will be irretrievably lost and the [parties]
irreparably harmed unless they may immediately
appeal.’’ (Internal quotation marks omitted.) Hartford
Accident & Indemnity Co. v. Ace American Reinsur-
ance Co., supra, 279 Conn. 226.
1
In undertaking a second-prong Curcio analysis, the
‘‘ ‘essential predicate’ ’’ is to identify properly the nature
of the right implicated. Id., 231. ‘‘The right of the party
must be of a statutory or constitutional nature.’’12 E.
Prescott, supra, § 3-1:2.3, p. 92. With the lack of interloc-
utory review not implicating any constitutional right,
the majority describes the statutory right at stake in
the present case several ways. For example, quoting
our decision in Convalescent Center of Bloomfield, Inc.
v. Dept. of Income Maintenance, 208 Conn. 187, 195,
544 A.2d 604 (1988), the majority suggests that, as in
that case, § 52-196a protects ‘‘the right not to have to
go to trial on the merits’’ or the right ‘‘to avoid litigation
on the merits that can be costly and burdensome
. . . .’’13 (Emphasis omitted; internal quotation marks
omitted.) It also refers to a ‘‘right to avoid litigation,’’ a
‘‘right to avoid the costly and onerous litigation process
altogether,’’ a ‘‘right to avoid costly and burdensome
litigation on the merits,’’ and a right that ‘‘shields [the
defendants] from litigation akin to the right against
double jeopardy or the other types of immunity from
suit in the civil context . . . .’’ (Emphasis omitted;
internal quotation marks omitted.) None of these
phrases appears in the statute’s text.
The majority does not explain why it eschews charac-
terizing the nature of the right implicated by § 52-196a
as ‘‘immunity from suit . . . .’’ Instead, the majority
forgoes the required § 1-2z analysis and characterizes
this right as merely being akin to immunity from suit,
despite the fact that this kind of analysis applies only
to common-law defenses. See footnote 13 of this opin-
ion. If asked to define the phrase ‘‘immunity from suit’’
for a legal dictionary, however, a lexicographer would
be hard-pressed to craft a better definition than any of
the phrases the majority uses to describe the right it
claims the statute protects and that I compiled in the
preceding paragraph. In fact, our case law defines
immunity from suit precisely using these very phrases.
For example, we have often said that ‘‘the essence of
the protection of immunity from suit is an entitlement
not to stand trial or face the other burdens of litigation.’’
(Internal quotation marks omitted.) Blakely v. Danbury
Hospital, 323 Conn. 741, 746, 150 A.3d 1109 (2016). We
have also described state sovereign immunity, which
is an immunity from suit, as a ‘‘doctrine [that] protects
against suit as well as liability—in effect, against having
to litigate at all.’’ Shay v. Rossi, 253 Conn. 134, 166, 749
A.2d 1147 (2000), overruled in part on other grounds
by Miller v. Egan, 265 Conn. 301, 828 A.2d 549 (2003).
Using the proper legal parlance is important because,
when we seek to define statutory rights with such signif-
icant consequences, we should speak precisely so that
we may expect the legislature also to speak precisely
when granting these rights. Words matter. And, as with
all statutory interpretation exercises this court under-
takes, it is elementary that § 1-2z governs our exercise
of divining the precise nature of the statutory right at
issue, as we have recognized very recently.
For example, in Sena v. American Medical Response
of Connecticut, Inc., 333 Conn. 30, 213 A.3d 1110 (2019),
we looked ‘‘to [General Statutes] § 28-13 to determine
the nature of the immunity afforded to political subdivi-
sions’’ when they are sued for actions taken by their
police and fire departments in response to declared
state emergencies. Id., 45. We described this issue as ‘‘a
question of statutory construction’’; id.; and, therefore,
pursuant to § 1-2z, we first examined the plain language
of § 28-13, which we determined to be ambiguous. See
id., 47–48. Only then did § 1-2z permit us to consider the
relevant legislative history, which led us to ultimately
conclude that § 28-13 provided immunity from suit. See
id., 48–52. Based on this conclusion, we held that the
denial of a motion for summary judgment premised on
the immunity conferred by § 28-13 was immediately
appealable under the second prong of Curcio. See id.,
52; see also Trinity Christian School v. Commission
on Human Rights & Opportunities, supra, 329 Conn.
694 (under § 1-2z, we must first look to statute’s lan-
guage to determine whether legislature provided any
indication that it intended to grant immunity from suit);
Harger v. Odlum, 153 Conn. App. 764, 769–73, 107 A.3d
430 (2014) (determining pursuant to § 1-2z that General
Statutes § 52-190a does not grant immunity from suit,
and thus pretrial denials of this statutory right are not
immediately appealable under second prong Curcio).
Unlike in Sena, the majority in the present case, in
its search for the nature of the right conferred on defen-
dants by § 52-196a, only briefly examines any of the
statute’s plain language and, when it does, does not
consider the language of subsection (b), in which the
so-called ‘‘right’’ is described. Neither does the majority
consider whether any language is ambiguous, which
could arguably justify the majority’s reference to partic-
ular legislators’ statements about the statute’s purpose
that nevertheless do not refer to immunity from suit
or a right to appeal. Instead, the majority resorts to
characterizing the nature of the right found in § 52-196a,
ultimately concluding that the right conferred by the
statute may be vindicated only if the defendant has a
right to an interlocutory appeal. Since 2003 and the
passage of § 1-2z, however, to guard against possibly
inaccurate portrayals of legislative intent, the legisla-
ture has directed us to examine a statute’s text first,
along with ‘‘its relationship to other statutes.’’ General
Statutes § 1-2z. We do not consider extratextual evi-
dence, such as legislative history, unless the text is
ambiguous or unless it yields absurd or unworkable
results. See General Statutes § 1-2z.
Because I believe that the majority’s description of
the right is merely another way of describing an immu-
nity from suit, I first undertake what I consider to be a
proper § 1-2z analysis of § 52-196a to determine whether
the legislature, not having explicitly created a right to
an interlocutory appeal in the statute; see part IV A of
this opinion; nonetheless manifested an intent to confer
on defendants a right to immunity from suit, the denial
of which, under our case law, creates a right to an
immediate interlocutory appeal. I conclude that the leg-
islature did not do so.14 Nor do I agree with the majority
that the legislative history it recounts supports a conclu-
sion that the legislature intended to provide immunity
from suit by granting defendants a right not to litigate
akin to immunity from suit.
2
A corollary to the ‘‘presum[ption] that the legislature
is aware of our [long-standing] final judgment jurispru-
dence’’; Hartford Accident & Indemnity Co. v. Ace
American Reinsurance Co., supra, 279 Conn. 238; is
that the legislature is also aware of how to signal under
Curcio that the denial of a right is immediately appeal-
able. As I discussed previously, and as guided by § 1-
2z, this is particularly true when determining whether
a statute grants immunity from suit. Specifically, we
have stated that, ‘‘when the legislature intends to confer
immunity from liability or from suit, it does so in dis-
tinctive and unmistakable terms . . . .’’ (Emphasis
added; footnotes omitted.) Trinity Christian School v.
Commission on Human Rights & Opportunities,
supra, 329 Conn. 696. For example, we previously have
noted specific examples of statutory language confer-
ring immunity from suit, including the phrases, ‘‘no
action may be brought’’ and ‘‘shall not be liable . . . .’’
(Footnotes omitted; internal quotation marks omitted.)
Id.; see General Statutes § 52-557e (‘‘[n]o action may
be brought to recover damages against any licensed
physician for any decision or action taken by him as a
member of a hospital utilization review committee’’);
General Statutes § 52-557o (‘‘[n]o action for trespass
shall lie’’); see also Sena v. American Medical Response
of Connecticut, Inc., supra, 333 Conn. 47–52 (holding
that denial of motion for summary judgment premised
on § 28-13 was immediately appealable under second
prong of Curcio because statute provided immunity
from suit based on language that attorney general must
‘‘ ‘appear for and defend’ ’’ political subdivisions, as well
as legislative history emphasizing state’s taking on cost
and burdens of litigation). Applying these principles to
the text of § 52-196a, I cannot locate in my review of
the statute’s plain language any ‘‘distinctive and unmis-
takable terms’’ even suggesting an immunity from suit
or an immunity of any kind. Trinity Christian School
v. Commission on Human Rights & Opportunities,
supra, 696.
My review begins with subsection (b) of § 52-196a,
which actually confers the right to file the special
motion. In relevant part, § 52-196a (b) provides: ‘‘In any
civil action in which a party files a complaint . . .
against an opposing party that is based on the opposing
party’s exercise of its right of free speech, right to peti-
tion 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,
such opposing party may file a special motion to dis-
miss the complaint . . . .’’ (Emphasis added.) The sub-
sections that follow subsection (b) detail the procedure
a defendant must follow to go about exercising this
right. For example, subsection (c) sets the deadline for
when a defendant must file a special motion to dismiss
at thirty days from the return date, absent good cause
found by the trial court. Subsection (d) provides for a
stay of discovery during the pendency of the motion,
which, for the same reasons explained in part IV A of
this opinion as to why this language does not support
a statutory right to appeal, also does not provide any
kind of immunity. Subsection (e) governs when and
how the trial court must conduct a hearing on the
motion. Specifically, the trial court is required to con-
duct ‘‘an expedited hearing’’ and must ‘‘rule on a special
motion to dismiss as soon as practicable.’’ General Stat-
utes § 52-196a (e) (1) and (4). Finally, subsection (f)
not only does not show any legislative intent to create
an immunity from suit but supports my analysis that
this statute provides only a procedural benefit to defen-
dants. Subsection (f), the fee shifting provision, pro-
vides defendants with a significant financial benefit in
the event that a special motion to dismiss is improperly
denied. In particular, if unsuccessful at trial, a defendant
may raise a first amendment defense on appeal, and,
if successful, this court may hold that the special motion
to dismiss was improperly denied, may vacate the judg-
ment, and then may remand the case to the trial court
with direction to dismiss the plaintiff’s action and to
determine the appropriate award of costs and attorney’s
fees under subsection (f). See Gurliacci v. Mayer, 218
Conn. 531, 576, 590 A.2d 914 (1991) (requiring trial court
to determine attorney’s fees on remand); Medical
Device Solutions, LLC v. Aferzon, 207 Conn. App. 707,
782, 264 A.3d 130 (remanding case to ‘‘[trial] court with
instructions to determine, if possible, what portion of
the fees and costs it awarded under [Connecticut Unfair
Trade Practices Act (CUTPA), General Statutes § 42-
110a et seq.] were reasonably incurred to litigate that
portion of the CUTPA claim that was not barred by the
statute of limitations’’), cert. denied, 340 Conn. 911, 264
A.3d 94 (2021). Additionally, if successful at trial, the
defendant may then file a motion for attorney’s fees with
the trial court. See Practice Book § 11-21 (‘‘[m]otions
for attorney’s fees shall be filed with the trial court
within thirty days following the date on which the final
judgment of the trial court was rendered’’).
Section 52-196a does not contain the kind of ‘‘unmis-
takable terms’’ that have led us to conclude that a stat-
ute creates a right to ‘‘immunity from suit,’’ whether
described as such by our case law in this usual way,
or described synonymously as a ‘‘right to avoid litiga-
tion,’’ or a ‘‘right not to have to go to trial on the merits,’’
or a right ‘‘akin’’ to immunity from suit. Rather, the
plain language of § 52-196a clearly and unambiguously
creates only a new procedure for defendants to raise
as early as possible in the litigation their preexisting
right to immunity from liability when the underlying
defense is premised on their exercise of a first amend-
ment constitutional right or state constitutional ana-
logue. The legislature plainly wanted to confer on defen-
dants the procedural right to raise this defense in the
trial court before being burdened by the costs and
inconvenience of discovery. But, as this court has pre-
viously recognized, ‘‘[t]here is a crucial distinction to
be drawn between a right not to be tried and a right
whose remedy requires the dismissal of charges. . . .
The former necessarily falls into the category of rights
that can be enjoyed only if vindicated prior to trial. The
latter does not.’’15 (Internal quotation marks omitted.)
Hartford Accident & Indemnity Co. v. Ace American
Reinsurance Co., supra, 279 Conn. 232. In striking a
balance between the rights of plaintiffs and defendants,
the legislature’s decision not to include distinctive and
unmistakable language providing a right to immunity
from suit should lead us to conclude that the legislature
did not view the right to an immediate appeal as within
that bundle of rights critical to the policy it was imple-
menting—i.e., a right that ‘‘can be enjoyed only if vindi-
cated prior to trial.’’ (Internal quotation marks omitted.)
Id.; see Englert v. MacDonell, 551 F.3d 1099, 1105 (9th
Cir. 2009) (collateral order doctrine was not satisfied
by Oregon’s anti-SLAPP statute ‘‘because it was not
intended to provide a right not to be tried, as distin-
guished from a right to have the legal sufficiency of the
evidence underlying the complaint reviewed by a nisi
prius [i.e., trial] judge before a defendant is required to
undergo the burden and expense of a trial’’).
In the context of Curcio’s second prong, ‘‘[w]e have
[also] said that the claimed right cannot be ‘a contingent
right created by statute and subject to the discretion
of the trial court’; State v. Garcia, 233 Conn. 44, 66, 658
A.2d 947 (1995) [overruled in part on other grounds sub
silentio by Sell v. United States, 539 U.S. 166, 123 S. Ct.
2174, 156 L. Ed. 2d 197 (2003)]; rather, the right must
exist independently of the order from which the appeal
is taken.’’ Hartford Accident & Indemnity Co. v. Ace
American Reinsurance Co., supra, 279 Conn. 231. In
the present case, the rights created by § 52-196a (e) (3)
are contingent on ‘‘an initial showing, by a preponder-
ance of the evidence,’’ by the defendant, and a ‘‘probable
cause’’ showing by the plaintiff. The legislature’s use
of the phrases ‘‘initial showing’’ and ‘‘probable cause,’’
by their nature, strongly suggests that the legislature
contemplated the trial court’s exercising some degree
of discretion. See TES Franchising, LLC v. Feldman,
286 Conn. 132, 137, 943 A.2d 406 (2008) (in ruling on
application for prejudgment remedy, ‘‘[i]n its determina-
tion of probable cause, the trial court is vested with
broad discretion’’ (internal quotation marks omitted)).
Moreover, this relatively low probable cause burden
necessary for the plaintiff to defeat the special motion
to dismiss demonstrates that the legislature recognized
that many special motions to dismiss may be denied,
and yet it decided not to expressly create a right to
immunity from suit, undermining any argument that an
immediate appeal is necessary to vindicate the statutory
right at issue.
I draw from the statutory language that the legislature
intended for the trial court, if called on by a defendant,
to act as a gatekeeper, early in the litigation and in an
expedited fashion, to consider and rule on the viability
of the alleged constitutional violations before a defen-
dant is burdened by the costs and inconvenience of
discovery. In the words of the United States Court of
Appeals for the Ninth Circuit construing a similarly
worded statute, the Oregon legislature provided the
defendant with the right to have the ‘‘legal sufficiency
of the evidence underlying the complaint reviewed by
a nisi prius [i.e., trial] judge . . . .’’ Englert v. MacDo-
nell, supra, 551 F.3d 1105.16 This is eminently sensible
because, when the trial court is tasked with acting as
a gatekeeper, which is most often a trial court function;
see, e.g., State v. Schiappa, 248 Conn. 132, 163 n.39,
728 A.2d 466, cert. denied, 528 U.S. 862, 120 S. Ct. 152,
145 L. Ed. 2d 129 (1999); all that is required is a prelimi-
nary showing that the party may prevail on the facts
and law, which may lead to an incomplete or inadequate
record for appellate review of constitutional questions.
See part V of this opinion.
Thus, I disagree with the majority that the plain lan-
guage of § 52-196a creates a right—‘‘akin’’ or other-
wise—to immunity from suit. Rather, under our well
established rules of statutory construction, the statute’s
plain language clearly and unambiguously creates a new
and valuable procedure for a defendant to raise, as early
as possible in the litigation, his or her preexisting right
to immunity from liability when the underlying defense
is premised on his or her exercise of a first amendment
right or state constitutional analogue.
3
Even if I were to agree that the language of § 52-196a
is ambiguous with respect to the nature of the statutory
right created (which not even the majority contends),
I disagree that the legislative history supports a conclu-
sion that the legislature intended to create a right akin
to immunity from suit.
First, I make an observation about reliance on legisla-
tive history in this context generally. Given the primacy
of legislative text under § 1-2z and the traditional
approach of strictly construing statutory appellate
rights; see E. Prescott, supra, § 2-1:1.2, p. 44; it is at least
arguable that we should not be looking to extraneous
sources, like legislative history, for something that the
legislature can say explicitly and relies on us not to
infer. Cf. Envirotest Systems Corp. v. Commissioner
of Motor Vehicles, 293 Conn. 382, 390, 978 A.2d 49 (2009)
(‘‘the existence of uncertainty in a statute with regard
to [a sovereign immunity] waiver is not an ambiguity
but, rather, an answer’’).
Putting that aside, in my view, the majority reads far
more into statements made by particular legislators
than can reasonably be inferred. Of course, not a single
legislator mentioned the idea of an interlocutory appeal.
I do not believe that the legislature would have us
review the statements of individual legislators just to
get a sense of the policy the legislature was trying to
effect and then extrapolate from there whether going
one step further (in this case, an interlocutory appeal)
would, in our view, be consistent with that policy and
therefore conclude that the legislature must have so
intended.
The majority essentially reads the legislative history,
sub silentio, to confer on defendants a right to an error-
free gatekeeper. As an example, the majority writes
that ‘‘[t]he extensive legislative history of the statute
indicates that the legislature was particularly concerned
about defendants laboring under the burden of having
to defend against SLAPP suits, which are by definition
frivolous and oppressive, as a consequence of having
exercised their first amendment rights.’’ The majority’s
characterization of the statutory purpose is inarguable:
to deter and weed out abusive and frivolous claims
‘‘designed to chill free speech and the expression of
constitutional rights . . . .’’ (Emphasis omitted; inter-
nal quotation marks omitted.) But the majority holds
that the legislative history makes clear that this weeding
out function extends beyond the trial court, the usual
gatekeeper. In its view, the weeding out process is not
complete until an appellate court has reviewed a trial
judge’s very preliminary determinations of the defen-
dant’s ‘‘initial showing’’ and the plaintiff’s showing of
‘‘probable cause’’ that he will prevail on the merits. See
part V of this opinion. The majority has to read this
into the legislative history because not once does a
legislator mention extending the gatekeeping function
beyond the trial court, to an appellate court’s interlocu-
tory review, if a defendant, after availing himself of the
significant benefits of the trial court’s speedy determi-
nation, is unsuccessful in convincing the trial court of
the merits of its special motion to dismiss. In my view,
the available legislative history is far too thin a reed on
which to upset the usual rule that all preserved issues
are reviewable when an aggrieved party appeals at the
end of the case, and not until then.
I read the scant legislative history to lean the other
way: against permitting an interlocutory appeal. Specifi-
cally, Representative Tong explicitly clarified that ‘‘it’s
a bill to protect people against liabilities . . . .’’
(Emphasis added.) 60 H.R. Proc., supra, p. 6879.
Nowhere in the legislative history is there any reference
to or suggestion of the statute’s providing immunity
from suit. Rather, as Representative Tong explicitly
stated, the statute’s intended purpose is to ‘‘[provide]
for a special motion to dismiss so that early in the
process somebody who’s speaking and [has] exercised
[his] constitutional rights can try to dismiss a frivolous
or abusive claim that has no merit and [short-circuit]
a litigation where it might otherwise cost a great deal
of money to continue to prosecute.’’ (Emphasis added.)
Id.; see id., p. 6884, remarks of Representative Tong.
Like the language contained in the statute, Representa-
tive Tong’s statement indicates only that the legislature
intended to create a process to weed out frivolous and
abusive lawsuits early in the litigation so as to prevent
the needless expense and burdens of litigation. In other
words, the legislature wanted to ensure that defendants
did not have to incur the cost of litigation until a gate-
keeper—the trial court—determined that there is ‘‘prob-
able cause’’ that the lawsuit has merit. Id., pp. 6905,
6909, remarks of Representative Tong. The lack of an
immediate appeal from a denial of a motion to dismiss
does not undermine the legislature’s goal of ensuring
that this gatekeeping function occurs ‘‘as quickly as
possible to avoid . . . undue litigation and abuse of
the process . . . .’’ Id., p. 6921, remarks of Representa-
tive Tong.
Importantly, the legislative history shows that § 52-
196a was the result of balancing the two interests at
stake here: (1) the defendant’s right to free speech, and
(2) the plaintiff’s right to have a claim heard. See id., pp.
6881–82, remarks of Representative Rosa C. Rebimbas
(‘‘this legislation does provide for an expedited hearing
and the purpose in that, again, is as the good [c]hairman
had indicated it is a gentle balance between free speech
by being able to resolve any issues once it’s brought
before the court’s attention’’); id., p. 6909, remarks of
Representative Tong (‘‘the claimant who has generally
a right to have his or her claims heard’’). By providing
a procedural remedy, not a right to immunity from suit,
the legislature strikes this balance. See Conn. Joint
Standing Committee Hearings, Judiciary, Pt. 9, 2017
Sess., pp., 4779–80, testimony of Eric Parker, on air
anchor and chief investigative reporter, WFSB-TV (‘‘It
sets up a clear test. If the complaint shows a bare
minimum of validity, it moves forward. If it does not,
the defendant can end the litigation quickly and without
the months of delays and expenses that come with it.
It doesn’t mean valid lawsuits won’t get prosecuted.
Those claims do exist and they should be allowed to
move forward. The plaintiffs deserve every ounce of
the rights the courts give them.’’). Thus, I do not read
the legislative history to do any more than the text of
the statute explicitly says, i.e., speak to the creation of
a procedure that permits a defendant to obtain prompt
review of an alleged SLAPP lawsuit.
4
The majority cites to a handful of cases from other
jurisdictions that it claims apply ‘‘a Curcio-esque analy-
sis’’ and support its conclusion that an interlocutory
appeal lies from the ‘‘denial of a special motion to dis-
miss . . . .’’17 The majority tells us that this case law
is ‘‘particularly instructive’’ because of Senator John A.
Kissel’s description of Connecticut’s anti-SLAPP statute
as ‘‘a compilation of some of the best [anti-SLAPP] laws
out there from throughout the United States.’’ 60 S.
Proc., Pt. 6, 2017 Sess., p. 2236; see also 60 H.R. Proc.,
supra, p. 6884, remarks of Representative Tong
(‘‘twenty-nine other states have adopted . . . legisla-
tion very similar to the construct we have here’’). The
majority would apparently have us infer from such a
general legislative statement that permitting an interloc-
utory appeal from a trial judge’s considered denial of
a special motion to dismiss would place Connecticut’s
anti-SLAPP statute among ‘‘the best laws out there
. . . .’’ This is the majority’s own value judgment.
Whether I agree with that judgment is not important.
There are states that provide for interlocutory appeals
and some that do not.
What is important is that, having compiled examples
of ‘‘the best laws out there,’’ the legislature chose not
to include what at least as many jurisdictions as the
majority cites specifically did include: a statute explic-
itly permitting an interlocutory appeal.18 See Cal. Civ.
Proc. Code § 904.1 (a) (13) (Deering Supp. 2021); Ga.
Code Ann. § 9-11-11.1 (e) (Supp. 2019); Nev. Rev. Stat.
§ 41.670 (4) (2019); N.M. Stat. § 38-2-9.1 (C) (Cum. Supp.
2015); Okla. Stat. Ann. tit. 12, § 1437 (West Cum. Supp.
2021); 27 Pa. Stat. and Cons. Stat. Ann. § 8303 (West
2009); Tenn. Code Ann. § 20-17-106 (West Supp. 2019);
Tex. Civ. Prac. & Rem. Code Ann. § 27.008 (West 2020);
Wn. Rev. Code Ann. § 4.105.080 (West 2021); see also
Ill. Sup. Ct. R. 306 (a) (9) (West 2020). In fact, although
the legislative history of § 52-196a recites that our anti-
SLAPP statute is most similar in language to the statutes
from California, Oregon, Texas and Washington; see
Conn. Joint Standing Committee, Judiciary, Pt. 8, 2017
Sess., p. 4602; in 2017, when the legislature enacted
§ 52-196a, the anti-SLAPP statutes in California, Texas,
and Washington included language explicitly authoriz-
ing an immediate appeal from a denial of a motion
under those statutes. See 2014 Cal. Stat. c. 71, § 17; see
also Tex. Civ. Prac. & Rem. Code Ann. § 27.008 (West
2015); Wn. Rev. Code Ann. § 4.24.525 (5) (d) (West
2017).
The legislature’s reliance on Oregon’s anti-SLAPP
statute is also important to note because the Oregon
legislature had amended its statute in 2009—before
Connecticut’s legislature enacted § 52-196a—to add lan-
guage permitting an immediate appeal. 2009 Or. Laws
c. 449, §§ 1 and 3 (effective January 1, 2010); see House
Committee on Judiciary, Staff Measure Summary on
Senate Bill No. 543 (amending Oregon law to authorize
‘‘an immediate appeal [from] the denial of an anti-
SLAPP . . . motion’’). The original version of Oregon’s
statute was explicitly premised on California’s anti-
SLAPP statute, except that it did not include language
providing for an immediate right to appeal from the
denial of a special motion to strike, as California’s did.
See Englert v. MacDonell, supra, 551 F.3d 1105–1107;
see also Or. Rev. Stat. §§ 30.142 and 30.144 (2001). The
statutory language also did not include a right not to
go to trial and thus did not provide immunity from suit.
See Englert v. MacDonell, supra, 1105–1107. Because
of this, courts had held that the denial of a motion
under Oregon’s anti-SLAPP statute was not immediately
appealable. See, e.g., id. In response, the Oregon legisla-
ture then amended the statute to specifically provide
the right to appeal. See Schwern v. Plunkett, supra, 845
F.3d 1244. My conclusion that Connecticut’s legislature
did not intend to provide either an immediate right to
appeal or immunity from suit is supported by its deci-
sion not to include specific language authorizing an
interlocutory appeal, as other state legislatures had,
or a right to immunity from suit, despite presumably
knowing that the absence of such language, as in the
original version of Oregon’s anti-SLAPP statute, would
likely lead a court to conclude that there is no right to
an immediate appeal.
Cases that have held that the denial of a motion under
an anti-SLAPP statute is immediately appealable, not-
withstanding the lack of explicit language granting the
right to appeal, are distinguishable from the present
case in one of three ways: (1) the anti-SLAPP statute
at issue contained language significantly different from
that found in § 52-196a;19 (2) the legislative history of
the particular anti-SLAPP statute demonstrated compel-
lingly that the legislature in fact intended to create
immunity from suit, which the history of § 52-196a does
not demonstrate;20 or, most often, (3) the particular
court’s statutory construction analysis was not gov-
erned by principles consistent with § 1-2z or our case
law regarding statutory immunity from suit.21
More consistent with the analysis the legislature has
directed Connecticut courts to undertake under § 1-
2z are cases from other courts that have reached the
opposite conclusion from that of the majority based
solely on scrutiny of the particular state statute at issue
under established state law principles more consistent
with § 1-2z. For example, as explained, courts have
interpreted Oregon’s original version of its anti-SLAPP
statute, which has language similar to our statute, as
not creating either a right to an immediate appeal or
immunity from suit and, thus, holding that the denial
of a motion under its statute was not appealable. See
Englert v. MacDonell, supra, 551 F.3d 1105–1107 (inter-
preting what is now Or. Rev. Stat. §§ 31.150 and 31.152
and holding that defendants could not immediately
appeal from trial court’s order denying special motion to
strike under collateral order doctrine). Similarly, courts
have held that denials of motions filed under Nevada’s
original version of its anti-SLAPP statute, which, like
Oregon’s original version, did not include an explicit
right to appeal or immunity from suit, were not immedi-
ately appealable because ‘‘the values underlying th[is]
particular anti-SLAPP statute can be satisfied through
the normal appellate process.’’22 Metabolic Research,
Inc. v. Ferrell, 693 F.3d 795, 800 (9th Cir. 2012); see id.,801–802 (citing Nevada case law in determining that
denial of special motion to dismiss under Nevada’s anti-
SLAPP statute was not immediately appealable under
collateral order doctrine because statute did not
expressly provide for immediate right to appeal or
establish immunity from suit).
Thus, it is only fair to say about the case law from
other jurisdictions that courts in those states review the
particular language of their anti-SLAPP suit legislation
under their own rules of construction. This court must
do the same.
V
The majority responds to the plaintiffs’ floodgates
argument (i.e., that permitting interlocutory appeals
from denials of special motions to dismiss will result
in ‘‘endless appeals’’) by saying that the influx of appeals
will not likely be significant. The majority is probably
right. That is not my floodgates concern though. Rather,
my concern stems from what I view as an unwarranted
weakening of our final judgment jurisprudence.
Only very recently, and with some justification, mem-
bers of this court have lamented the ‘‘murky state of our
final judgment jurisprudence’’ under Curcio’s second
prong and the expansion of the supposedly ‘‘ ‘narrow’ ’’
exception to our final judgment rule under that prong.
U.S. Bank National Assn. v. Crawford, 333 Conn. 731,
760, 219 A.3d 744 (2019) (McDonald, J., dissenting).
With today’s decision, I fear the murkiness has become
more pronounced and the narrow exception widened
further. These are the floodgates that concern me.
This uncertainty, I believe, is avoidable if we follow
the traditional approach of construing strictly the right
to appeal derived from statute. In employing § 1-2z prin-
ciples and following our statutory construction jurispru-
dence in this context, we should look for and locate
explicit language in statutes before concluding that a
statute confers a right to appeal. We also should look
for ‘‘distinctive and unmistakable’’ statutory language
before concluding that a statute confers a right (any
right, however characterized) that, under Curcio’s sec-
ond prong, can be vindicated only by resort to an inter-
locutory appeal. Trinity Christian School v. Commis-
sion on Human Rights & Opportunities, supra, 329
Conn. 696. When it comes to appeal rights derived from
Connecticut statutes, the legislature and this court have
a well-developed language by which we speak to one
another clearly. In the present case, the majority con-
cedes that there is no explicit language establishing the
right to appeal. Nor does the majority rely on any spe-
cific statutory language as providing immunity from
suit. In my view, absent any mention whatsoever in the
legislative history of an appeal from a denial of a special
motion to dismiss or immunity from suit, the majority is
left to postulate that the legislature intended to protect
defendants from alleged SLAPP suits so much that, even
after a considered decision by a gatekeeping trial judge,
the legislature must have intended this protection to
extend to what is supposed to be a rare interlocutory
appeal process. My floodgates concern is that, with
respect to future second prong Curcio claims based on
a statutory right, this court has now indicated that it
will consider legislative history—specifically, whether
there is any evidence regarding how strongly propo-
nents of particular legislation felt about the rights they
were conferring—to determine whether a party has the
right to an immediate appeal. I would instead look for
something much more explicit, and for the most obvi-
ous of reasons: because that is what I believe the legisla-
ture has directed us to do when scrutinizing statutes,
and particularly statutes relied on as giving rise to the
right to an interlocutory appeal.
The majority seeks to cabin its holding today by
insisting that the ‘‘colorable claim’’ standard will limit
appeals from denials of special motions to dismiss
under § 52-196a. In the first instance, of course, after
today’s decision, any denial of a motion to dismiss is
appealable, not just erroneous ones. A plaintiff will have
to challenge the appeal as not raising a colorable claim
of error for an appellate court even to consider dismiss-
ing the appeal. It is worthwhile examining what will
be reviewed in these interlocutory appeals and how
challenges to their colorability will necessarily be han-
dled under the majority’s announced standard.
Recall that many (or perhaps most) rulings denying
special motions to dismiss will be made on the basis
of probable cause determinations about the strength of
the plaintiff’s ‘‘initial showing,’’ considering the defen-
dant’s valid defenses. General Statutes § 52-196a (e) (3).
Those rulings are made based on a factual record the
statute requires to be assembled quickly and at the most
preliminary stage of the proceedings. General Statutes
§ 52-196a (g) (‘‘[t]he findings or determinations made
pursuant to subsections (e) and (f) of this section shall
not be admitted into evidence at any later stage of
the proceeding’’). Therefore, many appeals from denied
motions—like the present case—will be heard based
on the record the parties could muster to that point.23
Because they are preliminary rulings based on probable
cause, other than in the clearest of cases—factually and
legally—these rulings will likely be reviewed only for
clear error. See, e.g., TES Franchising, LLC v. Feld-
man, supra, 286 Conn. 137 (‘‘[i]n its determination of
probable cause, the trial court is vested with broad
discretion which is not to be overruled in the absence
of clear error’’ (internal quotation marks omitted)); id.,138 n.6 (‘‘we conclude that the clear error standard in
this context is a heightened standard of deference that
exceeds the level of deference afforded under the abuse
of discretion standard’’); Augeri v. C. F. Wooding Co.,
173 Conn. 426, 429, 378 A.2d 538 (1977) (‘‘[A]t the hear-
ing on an application for a prejudgment remedy . . .
[t]he hearing . . . is not intended to be a full-scale trial
on the merits. . . . In reaching its determination of
probable success on the merits [the court] is essentially
weighing probabilities, and in this it must have a broad
discretion.’’). Nonetheless, defendants are advised by
today’s ruling that they have a right to avoid trial that
they can vindicate only by appealing. A plaintiff might
challenge a defendant’s appeal as ‘‘not colorable.’’ But,
as the majority today admits, a ‘‘colorable claim is one
that is superficially well founded but that may ultimately
be deemed invalid . . . .’’ (Internal quotation marks
omitted.) ‘‘[T]he defendant need not convince the trial
court that he necessarily will prevail; he must demon-
strate simply that he might prevail.’’ (Emphasis in origi-
nal; internal quotation marks omitted.) This is quite a
low bar. The Appellate Court, the workhorse court of
our appellate system, will therefore be charged in most
cases with determining whether there is superficially
a well-founded basis on which the defendant might
prevail in his appeal.24 If the defendant overcomes this
minor obstacle, the Appellate Court will move on to
review the trial court’s denial of the defendant’s motion
based on the standards of an ‘‘initial showing’’ and
‘‘probable cause . . . .’’ General Statutes § 52-196a (e)
(3). Because these determinations are so fact specific
and, in many instances, perhaps discretionary, it is
remarkably optimistic to predict that the ‘‘line between
colorable and noncolorable claims’’ will ‘‘become more
discernable’’ as ‘‘our jurisprudence develops.’’
I know it is not lost on the majority that permitting
these interlocutory appeals comes at a cost, and not
only to the appellate system. If the legislature intended
for these rulings to be appealed, it is within its control
to authorize an immediate appeal. But in this context,
plaintiffs’ cases are interrupted by the special motion to
dismiss procedure and ultimately delayed by an appeal
from the denial in the first instance. A potentially
yearslong process follows if the appeal overcomes the
colorable claim standard. Plaintiffs have little recourse
for their cases being stalled.25
Time will tell whether most appeals will survive,
although today’s evidence is that most will: the court
today dismisses none of the three appeals before us.
See Pryor v. Brignole, 346 Conn. , A.3d
(2023) (D’Auria, J., dissenting). Time will tell also
whether permitting interlocutory appeals will yield
many reversals, that is, clear error in a trial court’s
gatekeeping, probable cause determination.
Implicit in the majority opinion is that all of this is
worth it—and more important, it believes, the legisla-
ture considers it worth it—if even one defendant had
a meritorious special motion to dismiss that should
have been granted and he should not have been exposed
to trial. No statutory scheme is error free, of course.
But ‘‘[w]e do not presume error . . . .’’ (Internal quota-
tion marks omitted.) State v. Milner, 325 Conn. 1, 13,
155 A.3d 730 (2017). I am not suggesting that the major-
ity does presume error. I am suggesting that, without
further explicit instruction from the legislature, I am
unwilling to conclude that the legislature intended for
us to expend appellate resources in a search for error
in the preliminary, discretionary gatekeeping determi-
nations of trial judges.
Accordingly, because I do not interpret § 52-196a as
granting a right to an immediate appeal or to immunity
from suit, the denial of the defendants’ special motion
to dismiss pursuant to § 52-196a was not immediately
appealable. Therefore, the Appellate Court should dis-
miss the defendants’ appeal.
Accordingly, I respectfully dissent.
1
SLAPP stands for ‘‘strategic lawsuit against public participation . . . .’’
(Internal quotation marks omitted.) Lafferty v. Jones, 336 Conn. 332, 337
n.4, 246 A.3d 429 (2020), cert. denied, U.S. , 141 S. Ct. 2467, 209 L.
Ed. 2d 529 (2021).
2
A paradigmatic example of a SLAPP case is a ‘‘[lawsuit] directed at
individual citizens of modest means for speaking publicly against [wealthy]
development projects.’’ (Internal quotation marks omitted.) Demoulas Super
Markets, Inc. v. Ryan, 70 Mass. App. 259, 262, 873 N.E.2d 1168 (2007); see
also, e.g., Sipple v. Foundation for National Progress, 71 Cal. App. 4th 226,
238, 83 Cal. Rptr. 2d 677 (1999), review denied, California Supreme Court,
Docket No. S078979 (July 28, 1999).
3
The constitution of Connecticut, article first, § 10, known as the ‘‘open
courts provision’’ of the state constitution, provides in relevant part: ‘‘All
courts shall be open, and every person, for an injury done to him in his person,
property or reputation, shall have remedy by due course of law . . . .’’
4
It is not clear whether the parties undertook any discovery, but no order
of the court permitting discovery appears in the record.
5
Section 52-196a (e) (1) requires the court to hold a hearing no later than
sixty days after the date of the filing of the special motion to dismiss, unless,
among other things, the court, ‘‘for good cause shown, is unable to schedule
the hearing during the sixty-day period.’’
July 19, 2021, would have been the sixtieth day after the defendants filed
their special motion. At a time when the courts were still hampered by
COVID-19 restrictions and hearing most matters remotely, the trial court in
this matter recognized that the legislature directed that the court make these
motions a priority and heard the parties with admirable dispatch on the
sixty-second day after the defendants filed their motion. As contemplated
by § 52-196a (e) (2), both parties attached affidavits to their submissions.
It does not appear that the trial court took any evidence, but the defendants
asked the court to take judicial notice of the Trinity College student hand-
book.
6
Section 52-196a (a) (2) defines ‘‘ ‘[r]ight of free speech’ ’’ as ‘‘communicat-
ing, or conduct furthering communication, in a public forum on a matter
of public concern . . . .’’ (Emphasis added.)
7
In the companion cases also released today—Pryor v. Brignole, 346
Conn. , A.3d (2023), and Robinson v. V. D., 346 Conn. ,
A.3d (2023)—the trial court in those cases also took up and ruled on
the motions promptly: in Pryor, within about ten and one-half months from
the filing of the complaint, and, in Robinson, within four and one-half months
from the filing of the complaint.
8
See General Statutes § 9-325 (providing for review of questions of law
by Supreme Court in election cases); General Statutes § 31-118 (aggrieved
party ‘‘may appeal’’ from grant or denial of temporary injunction in cases
involving labor disputes); General Statutes § 42-110h (order granting or
denying class certification in action under Connecticut Unfair Trade Prac-
tices Act, General Statutes § 42-110a et seq., ‘‘shall be immediately appealable
by either party’’); General Statutes § 51-164x (a) (review by Appellate Court
of orders closing courtroom); General Statutes § 52-235 (a) (allowing for
reservation of questions of law to Supreme Court or Appellate Court); Gen-
eral Statutes § 52-265a (a) (aggrieved party ‘‘may appeal’’ to Supreme Court
from order or decision that involves matter of substantial public interest);
General Statutes § 52-278l (a) (order granting or denying prejudgment rem-
edy ‘‘shall be deemed a final judgment for purposes of appeal’’); General
Statutes § 52-405 (‘‘[w]hen, in any action demanding an accounting, a judg-
ment is rendered ordering such accounting, appeal may be had from such
judgment to the Appellate Court, as if it were a final judgment’’); General
Statutes § 54-56e (f) (‘‘[a]n order of the court denying a motion to dismiss
the charges against a defendant who has completed such defendant’s period
of probation or supervision or terminating the participation of a defendant
in such program shall be a final judgment for purposes of appeal’’).
9
General Statutes § 52-278l (a) provides: ‘‘An order (1) granting or denying
a prejudgment remedy following a hearing under section 52-278d or (2)
granting or denying a motion to dissolve or modify a prejudgment remedy
under section 52-278e or (3) granting or denying a motion to preserve an
existing prejudgment remedy under section 52-278g shall be deemed a final
judgment for purposes of appeal.’’
10
Although we are not obliged to defer even to a formal opinion of the
attorney general; see, e.g., Crandle v. Connecticut State Employees Retire-
ment Commission, 342 Conn. 67, 82, 269 A.3d 72 (2022) (‘‘‘[a]lthough an
opinion of the attorney general is not binding on a court, it is entitled to
careful consideration and is generally regarded as highly persuasive’ ’’); this
obvious difference between § 52-278l and § 52-196a likely explains why now
Attorney General Tong argues, as an amicus in Pryor v. Brignole, 346 Conn.
, A.3d (2023), one of two companion cases also released today;
see footnote 7 of this opinion; that § 52-196a does not create an independent
interlocutory right to appeal or any right that satisfies the second prong of
Curcio. See Pryor v. Brignole, Conn. Supreme Court Briefs & Appendices,
October Term, 2022, Brief of Amicus Curiae State of Connecticut, pp. 4–7.
11
I do not rule out the possibility that, in rare circumstances involving a
first amendment claim, the denial of a special motion to dismiss under § 52-
196a may be immediately appealable pursuant to Curcio. See Dayner v.
Archdiocese of Hartford, 301 Conn. 759, 769–72, 23 A.3d 1192 (2011) (pretrial
denial of ministerial exception defense under first amendment was immedi-
ately appealable, not because of any right granted under any statute but
because defense itself provided right to immunity from suit), overruled in
part by Hosanna-Tabor Evangelical Lutheran Church & School v. Equal
Employment Opportunity Commission, 565 U.S. 171, 132 S. Ct. 694, 181
L. Ed. 2d 650 (2012). I simply am not convinced that the legislature intended
for all denials of special motions to dismiss under § 52-196a to be immediately
appealable.
12
Common-law rights that already are secured and would be lost without
the right to an immediate appeal may also come within Curcio’s second
prong. See, e.g., Chadha v. Charlotte Hungerford Hospital, 272 Conn. 776,
785–87, 865 A.2d 1163 (2005) (explaining why purpose of absolute immunity
under common law, protecting against threat of suit, compels conclusion
that denial of motion for summary judgment on ground of such immunity
gives rise to immediately appealable final judgment due to irreparable harm).
No common-law right is at issue in the present case.
13
Convalescent Center of Bloomfield, Inc. v. Dept. of Income Maintenance,
supra, 208 Conn. 196–202, involved the common-law defenses of collateral
estoppel and res judicata. The majority’s analogy to this court’s case law
holding that the pretrial denial of those common-law defenses, as well as
immunity for statements made in judicial and quasi-judicial proceedings,
are immediately appealable is, in my view, not fitting. See Blakely v. Danbury
Hospital, 323 Conn. 741, 746–47, 150 A.3d 1109 (2016); Convalescent Center
of Bloomfield, Inc. v. Dept. of Income Maintenance, supra, 194–95. The
pretrial denials of these common-law defenses were based on common-law
rights, which required this court to determine whether these rights were
akin to immunity from suit by providing a right to avoid litigation, whereas
the present case involves a statutory defense, which we must examine under
the dictates of § 1-2z. See, e.g., Sena v. American Medical Response of
Connecticut, Inc., 333 Conn. 30, 40, 45, 213 A.3d 1110 (2019). Additionally,
it is unclear if this court’s holdings in those cases involving res judicata
and/or collateral estoppel were correct in light of analogous federal case
law. See Strazza Building & Construction, Inc. v. Harris, 346 Conn. 205,
210–11 n.2, 288 A.3d 1017 (2023).
14
Of course, I recognize that the second prong of Curcio may be satisfied
in a case that involves a right other than immunity from suit. See, e.g., In
re Teagan K.-O., supra, 335 Conn. 755–59 (allowing immediate appeal from
interlocutory order in family matters due to importance of right of family
to remain together without interference of state). But neither the defendants
nor the majority asserts any other kind of right, and thus my analysis will
be limited to immunity from suit, which, in my view, is synonymous with
the nature of the right the majority describes.
15
More specifically, we have explained that, if a statute confers only
immunity from liability, ‘‘a right whose remedy requires [only] the dismissal
of charges,’’ pretrial rulings denying a motion based on that more limited
immunity are not immediately appealable under the second prong of Curcio
because an immunity from liability defense can be vindicated after trial.
(Internal quotation marks omitted.) Hartford Accident & Indemnity Co. v.
Ace American Reinsurance Co., supra, 279 Conn. 232. Denials of a claimed
right of immunity from suit, i.e., the right not to be tried and to be free of
having to litigate, on the other hand, are immediately appealable because
such a right cannot be vindicated after trial. See id.; Shay v. Rossi, supra,253 Conn. 163–64.
16
I recognize that, after the Ninth Circuit decided Englert, Oregon’s legisla-
ture amended its anti-SLAPP statute to expressly permit an interlocutory
appeal. See 2009 Or. Laws c. 449, §§ 1 and 3. That is a legislative prerogative,
consistent with what I believe Connecticut’s legislature expects of our courts
under § 1-2z—to interpret the plain language of legislation consistently,
without conjecture. The fact that other state legislatures have amended their
anti-SLAPP statutes after a court had ruled that the statutory language did
not allow for an immediate appeal should not alter our § 1-2z analysis
but, rather, shows that the legislature is responsible for clearly stating its
intention to authorize an appeal.
17
Although the majority is concerned about ‘‘the protections afforded by
the anti-SLAPP statute [that] would be irrevocably lost by virtue of having
to litigate a putative SLAPP suit to conclusion following a trial court’s
erroneous denial of a special motion to dismiss,’’ the majority’s holding
allows an interlocutory appeal from all denials of special motions to dismiss,
not just erroneous denials. An appellate court can never know if the trial
court committed error until it has heard the appeal. Indeed, because, in my
view, the majority’s ‘‘colorable claim’’ standard ensures that virtually every
defendant’s interlocutory appeal will survive a motion to dismiss; see part
V of this opinion; it is inevitable that many appeals the majority’s opinion
sanctions will go to judgment and that it will be determined on appeal that
the trial court did not commit error.
18
I agree with the majority that the lack of explicit statutory language
providing a right to appeal is not relevant to this court’s analysis under the
second prong of Curcio. I nevertheless rely on the fact that other state
legislatures have explicitly included a right to appeal in their anti-SLAPP
statutes to emphasize the irrelevance of the case law from these jurisdictions,
on which the majority relies.
19
NCDR, LLC v. Mauze & Bagby, PLLC, 745 F.3d 742, 750–52 (5th Cir.
2014), decided under the federal collateral order doctrine, involved Texas’
anti-SLAPP statute, which contains language much more explicit and definite
than § 52-196a: ‘‘An appellate court shall expedite an appeal or other writ,
whether interlocutory or not, from a trial court order on a motion to dismiss
a legal action . . . or from a trial court’s failure to rule on that motion in
the time prescribed . . . .’’ Tex. Civ. Prac. & Rem. Code Ann. § 27.008 (b)
(West 2020).
20
See Gundel v. AV Homes, Inc., 264 So. 3d 304, 310 (Fla. App. 2019)
(legislative history showed that statute created right not to be subject to
litigation).
21
See Morse Bros., Inc. v. Webster, 772 A.2d 842, 848–49 (Me. 2001);
Duracraft Corp. v. Holmes Products Corp., 427 Mass. 156, 159–67, 691 N.E.2d
935 (1998); see also Franchini v. Investor’s Business Daily, Inc., 981 F.3d
1, 7 and n.6 (1st Cir. 2020) (applying Maine case law); Los Lobos Renewable
Power, LLC v. AmeriCulture, Inc., 885 F.3d 659, 666–67 (10th Cir.), cert.
denied, U.S. , 139 S. Ct. 591, 202 L. Ed. 2d 427 (2018); Henry v. Lake
Charles American Press, LLC, 566 F.3d 164, 178, 180–81 (5th Cir. 2009).
22
In 2013, Nevada amended its anti-SLAPP statute to provide for an imme-
diate right to appeal. See 2013 Nev. Stat. c. 176, § 4; see also Wynn v. Bloom,
852 Fed. Appx. 262, 262 n.1 (9th Cir. 2021).
23
See, e.g., Burton v. Mason, Docket No. CV-XX-XXXXXXX-S, 2021 WL
6101177, *5 (Conn. Super. December 10, 2021) (‘‘[b]ased on this record, the
court cannot conclude that it is more likely than not that this matter was
brought ‘based on’ the defendants’ exercise of their rights to free speech,
association or to petition the government’’); Robinson v. DeGray, Docket
No. CV-XX-XXXXXXX-S, 2021 WL 1914162, *5 (Conn. Super. April 14, 2021)
(based on record at time of hearing on special motion to dismiss, defendant
failed to establish that statements made during work-related grievance pro-
ceedings involved matters of public concern); Littlefield v. Aurora, Docket
No. CV-XX-XXXXXXX-S, 2020 WL 5624108, *3 (Conn. Super. August 31, 2020)
(based on record before trial court, defendants failed to show plaintiffs’
complaint was based on defendants’ exercise of first amendment rights).
24
Most of these motions will be decided by the Appellate Court after the
parties each file a ten page memorandum of law. Most rulings—granting or
denying motions to dismiss—are issued without written opinions.
25
Plaintiffs can seek attorney’s fees under § 52-196a (f) (2). But that subsec-
tion provides that fees are to be awarded only if the court ‘‘finds that
such special motion to dismiss is frivolous and solely intended to cause
unnecessary delay . . . .’’ General Statutes § 52-196a (f) (2). By its terms,
the statute appears to permit fees only for frivolous motions. Even if, presum-
ably, this subsection would extend to frivolous appeals of motions that have
been correctly denied, this is not a prevailing party standard. The standard
for frivolousness does not guarantee a plaintiff compensation for fees and
certainly not for the costs of delay. Cf. General Statutes § 52-196a (f) (1)
(awarding ‘‘the moving party costs and reasonable attorney’s fees’’ if trial
court grants special motion to dismiss, without caveat).