Robinson v. V. D. ( 2023 )

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MICHAEL ROBINSON ET AL. v. V. D.*
(SC 20731)
Robinson, C. J., and McDonald, D’Auria, Mullins, Ecker,
Alexander and Prescott, Js.
The plaintiffs’ motion to dismiss the defendant’s
appeal from the trial court’s denial of his special motion
to dismiss, filed pursuant to General Statutes §
52-196a, having been presented to this court, it is hereby
ordered that the plaintiffs’ motion is denied, and the
case is transferred to the Appellate Court for further
proceed-ings according to law.
May 2, 2023
ROBINSON, C. J., with whom McDonald, Mullins and
Prescott, Js., join. The defendant, V. D., appealed from
the order of the trial court denying his special motion
to dismiss, pursuant to the anti-SLAPP1 statute, General
Statutes § 52-196a,2 the action brought by the plaintiffs,
Michael Robinson and Mary Robinson. The plaintiffs
now move to dismiss this appeal for lack of subject
matter jurisdiction and, specifically, for lack of an
appealable final judgment.3 In response to the plaintiffs’
motion, the defendant contends that the legislature’s
inclusion of ‘‘interlocutory appeal’’ language in subsec-
tion (d) of § 52-196a, the statute’s legislative history, and
public policy all favor an implicit right to an immediate
appeal, and the defendant further asserts that the denial
of a special motion to dismiss is an appealable final
judgment under the standard set forth in State v. Curcio,
191 Conn. 27, 31, 463 A.2d 566 (1983). For the reasons
set forth in the companion case that we also decide
today, Smith v. Supple, 346 Conn. , A.3d
(2023), we conclude that a trial court’s denial of a color-
able special motion to dismiss under § 52-196a is an
immediately appealable final judgment under the sec-
ond prong of Curcio. We further conclude that the
record demonstrates that the defendant has presented
a colorable claim that he is entitled to a right to avoid
litigation under our anti-SLAPP statute. Accordingly,
we deny the plaintiffs’ pending motion to dismiss this
appeal for lack of a final judgment and transfer the
Thetorecord
case reveals the
the Appellate following
Court relevant
for further facts and
proceedings
according to law.
procedural history, which are undisputed for purposes
of the present appeal. The parties are civilian employees
of the United States Coast Guard (Coast Guard).
Michael Robinson works as a locksmith at the United
States Coast Guard Academy in New London (academy)
and previously served as an assistant coach for the
academy’s skeet shooting team. Mary Robinson works
as a human resources specialist at the Coast Guard
headquarters. The defendant is employed as a carpen-
ter/mason at the academy and, in 2019, was temporarily
promoted to the new position of construction control
inspector.
In late 2019 or early 2020, after applying for the full-
time, permanent construction control inspector posi-
tion, the defendant was informed that he had not been
selected for the position. The defendant then resumed
his job as a carpenter/mason. Thereafter, the defendant
filed a formal, written grievance through his union rep-
resentative and alleged that the plaintiffs were involved
in ‘‘a ‘quid pro quo’ arrangement’’ with the candidate
selected for the position and the official who had
selected the candidate. The defendant also alleged that
he was denied the position, in part, ‘‘because of his
known affiliation with the union . . . .’’4 A hearing took
place, at which, the plaintiffs contend, the defendant
made certain statements consistent with the allegations
in the written grievance. Administrative officials with
the Coast Guard subsequently investigated both of the
plaintiffs and cleared them of any wrongdoing.
Thereafter, in June, 2020, the parties attended a com-
petitive shooting event at a gun club in Burrillville,
Rhode Island. After the event was over, Michael Rob-
inson and the defendant had a verbal altercation in
the parking lot, during which they exchanged certain
insults. Thereafter, the defendant served an application
for a protective order on Michael Robinson. A hearing
took place in the Superior Court, which dismissed the
application.
In December, 2020, the plaintiffs filed the present
action against the defendant, alleging in their complaint
that the defendant made false accusations against them
on numerous occasions, namely, in the union grievance,
during the proceedings which resulted from it, in the
application for the protective order, and during the
hearing that took place in the Superior Court on the
protective order application. The plaintiffs alleged defa-
mation, invasion of privacy by false light, common-law
vexatious litigation, vexatious litigation under General
Statutes § 52-568, and intentional and negligent inflic-
tion of emotional distress.
In January, 2021, the defendant filed a special motion
to dismiss, pursuant to § 52-196a, arguing that the plain-
tiffs’ allegations in this action arose from the exercise
of his rights of free speech, to petition the government,
and to associate as a member of a labor union under
the Connecticut constitution and the first amendment
to the United States constitution. The defendant also
alleged, among other defenses, that the plaintiffs’ action
violated public policy and that his statements were
immune from the defamation claims, as they arose dur-
ing judicial or quasi-judicial proceedings.
The plaintiffs opposed the motion, and, following a
hearing, the trial court denied the special motion to
dismiss. The court found that the defendant’s conduct
as alleged in the complaint was not protected under
§ 52-196a because it addressed private concerns, rather
than a ‘‘matter of public concern,’’ as defined in subsec-
tion (a) (1) of the statute.5 The court further concluded
that the defendant’s conduct during the work related
grievance process was personal in nature because it
related to his employer’s denial of the defendant’s pro-
motion and did not address the general practices of
the employer. As such, the court determined that the
defendant’s conduct during that process was not related
to a matter of public concern under ‘‘the government,
zoning and other regulatory matters’’ category of the
definition. General Statutes § 52-196a (a) (1) (C). In
addition, the trial court found that the defendant’s
actions did not relate to a matter of public concern
under the ‘‘public official or public figure’’ category;
General Statutes § 52-196a (a) (1) (D); because the
defendant had failed to establish that the plaintiffs’ posi-
tions gave them ‘‘substantial control or responsibility
over governmental affairs or that there was a significant
public interest in either position that went beyond the
general interest in all public sector employees.’’6
Accordingly, the court concluded that the defendant
had failed to meet his burden of showing, by a prepon-
derance of evidence, that the complaint was based on
the exercise of his right of free speech, to petition the
government, or of association.
The defendant appealed from the trial court’s deci-
sion to the Appellate Court in April, 2021, where the
plaintiffs filed a motion to dismiss the appeal for lack
of a final judgment. Thereafter, the defendant filed a
motion to stay the proceedings until this court decided
Pryor v. Brignole, 346 Conn. , A.3d (2023).
The Appellate Court granted the motion for a stay on
September 29, 2021, without ruling on the plaintiffs’
motion to dismiss. In July, 2022, this court transferred
this appeal to itself pursuant to Practice Book § 65-1
and ordered the parties to address in their appellate
briefs ‘‘only the threshold jurisdictional issue of
whether the denial of a special motion to dismiss filed
pursuant to . . . § 52-196a is an appealable final judg-
ment . . . .’’7
The primary issue raised by the plaintiffs’ motion to
dismiss this appeal—namely, whether a trial court’s
denial of a special motion to dismiss under the anti-
SLAPP statute can constitute an appealable final judg-
ment—is controlled by Smith v. Supple, supra, 346
Conn. . In that case, we examined relevant statutory
text, legislative history, and analogous laws from our
sister states and concluded that our ‘‘anti-SLAPP statute
affords a defendant a substantive right to avoid litiga-
tion on the merits . . . .’’ Id., ; see id., . We then
continued to conclude that, in cases in which a defen-
dant can assert a colorable claim that a trial court’s
denial of a special motion to dismiss under that statute
has placed that particular right at risk, an immediate
appeal may be taken pursuant to the second prong of
State v. Curcio, supra, 191 Conn. 31. See Smith v. Sup-
ple, supra, ; see also Sena v. American Medical
Response of Connecticut, Inc., 333 Conn. 30, 41, 213
A.3d 1110 (2019) (‘‘[a defendant] must make at least
a colorable claim that some recognized statutory or
constitutional right is at risk’’ (emphasis added; internal
quotation marks omitted)).
Application of that standard to the present case
requires us to consider whether the defendant has
asserted a colorable claim to the protections afforded
by the anti-SLAPP statute. In particular, we must deter-
mine whether the defendant has asserted a colorable
claim that his actions, as alleged in the plaintiffs’ com-
plaint, are based on his right of free speech, to petition
the government, or of association.
We conclude that the defendant has asserted a color-
able claim that at least some of the statements forming
the basis of the plaintiffs’ complaint were based on
the defendant’s exercise of his right to petition the
government, as contemplated by the anti-SLAPP stat-
ute. ‘‘Right to petition the government’’ is defined in
relevant part as ‘‘communication in connection with an
issue under consideration or review by a legislative,
executive, administrative, judicial or other governmen-
tal body . . . .’’ General Statutes § 52-196a (a) (3) (A).
A party seeking protection under the statute must show,
by a preponderance of the evidence, that the exercise
of that right is in connection with a ‘‘matter of public
concern,’’ as defined in § 52-196a (a) (1). See footnote
5 of this opinion. Courts have found that ‘‘mixed ques-
tions of private and public concerns’’ may be protected
under the first amendment and that ‘‘the fact that a
statement evolves from a personal dispute does not
preclude some aspect of it from touching [on] matters
of public concern.’’ Morgan v. Milford, 914 F. Supp. 21,
23 (D. Conn. 1996).
The defendant presented evidence before the trial
court that his actions related to a matter of public con-
cern because they (1) arose from a collective bargaining
agreement between the Coast Guard and the American
Federation of Government Employees, Council 120, to
which the defendant belongs, and (2) related to impro-
prieties in the hiring process at the academy that went
beyond his own personal position, specifically, that
Coast Guard hiring officials disfavor persons with a
union affiliation when hiring.
On the basis of our review of the record and the
plain meaning of the definition of ‘‘right to petition the
government,’’ we conclude that the defendant has at
least a superficially well founded claim that some of his
statements, particularly those relating to the grievance
process, qualify as communications relating to an issue
under consideration by a governmental body, namely,
the Coast Guard. See Stellmaker v. DePetrillo, 710 F.
Supp. 891, 893 (D. Conn. 1989) (public school teacher’s
grievance was protected under first amendment from
retaliation by public officials because ‘‘[the] grievance
was filed pursuant to a procedure established through
collective bargaining’’ and thereby invoked his ‘‘right
to . . . petition a government[al] body, the [b]oard of
[e]ducation’’); see also Noble v. Hennessey, Superior
Court, judicial district of New London, Docket No. KNL-
CV-XX-XXXXXXX-S (January 12, 2021) (allegedly defama-
tory grievance filed with quasi-judicial body, Statewide
Grievance Committee, fell under purview of petitioning
government for purposes of anti-SLAPP statute).
In addition, the defendant has asserted a colorable
claim that his statements during the grievance process
relate to a ‘‘matter of public concern.’’ Although these
statements evolved from a personal dispute between
the parties, the statements could conceivably be of con-
cern to the general public because the allegations
related to hiring practices within a governmental entity.
In particular, the defendant’s speech touches on the
possible existence of anti-union sentiment within the
academy and quid pro quo arrangements between man-
agement officials as it relates to hiring. Therefore, the
defendant has at least a superficially well founded claim
that his conduct concerns not only him, but others at
the academy and the general community at large.8
Accordingly, we conclude that the defendant has
asserted a colorable claim to a right to avoid litigation
under our anti-SLAPP statute. On the basis of the record
before us, we conclude that the trial court’s denial of
the defendant’s special motion to dismiss filed pursuant
to § 52-196a constitutes an appealable final judgment
under Curcio.
The plaintiffs’ motion to dismiss this appeal for lack
of a final judgment is denied, and, pursuant to Practice
Book § 65-1, the case is transferred to the Appellate
Court for further proceedings according to law.
In this opinion McDONALD, MULLINS and PRES-
COTT, Js., concurred.
* In accordance with federal law; see 18 U.S.C. § 2265 (d) (3) (2018), as
amended by the Violence Against Women Act Reauthorization Act of 2022,
Pub. L. No. 117-103, § 106, 136 Stat. 49, 851; we decline to identify any person
protected or sought to be protected under a protection order, protective
order, or a restraining order that was issued or applied for, or others through
whom that person’s identity may be ascertained.
1
‘‘SLAPP is an acronym 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
General Statutes § 52-196a provides in relevant part: ‘‘(b) In any civil
action in which a party files a complaint, counterclaim or cross claim against
an opposing party that is based on the opposing party’s exercise of its right
of free speech, right to petition the government, or right of association under
the Constitution of the United States or the Constitution of the state in
connection with a matter of public concern, such opposing party may file
a special motion to dismiss the complaint, counterclaim or cross claim.
***
‘‘(d) The court shall stay all discovery upon the filing
of a special motion to dismiss. The stay of discovery
shall remain in effect until the court grants or denies
the special motion to dismiss and any interlocutory
appeal thereof. Notwithstanding the entry of an order
to stay discovery, the court, upon motion of a party
and a showing of good cause, or upon its own motion,
may order specified and limited discovery relevant to
the special motion to dismiss.
***
‘‘[e] (3) The court shall grant a special motion to
dismiss if the moving party makes an initial showing,
by a preponderance of the evidence, that the opposing
party’s complaint, counterclaim or cross claim is based
on the moving party’s exercise of its right of free speech,
right to petition the government, or right of association
under the Constitution of the United States or the Con-
stitution of the state in connection with a matter of
public concern, unless the party that brought the com-
plaint, counterclaim or cross claim sets forth with par-
ticularity the circumstances giving rise to the complaint,
counterclaim or cross claim and demonstrates to the
court that there is probable cause, considering all valid
defenses, that the party will prevail on the merits of
the complaint, counterclaim or cross claim. . . .’’
3
The defendant appealed from the decision of the
trial court to the Appellate Court, and we subsequently
transferred the appeal and the pending motion to dis-
miss to this court pursuant to General Statutes § 51-
199 (c) and Practice Book § 65-1.
4
In their complaint in this action, the plaintiffs specif-
ically contended that the defendant falsely alleged in
the grievance that he was ‘‘unfairly treated because of
his known affiliation with the union’’ and that ‘‘[m]an-
agement favors persons who do not affiliate with the
union . . . .’’
5
‘‘Matter of public concern’’ is defined as ‘‘an issue
related to (A) health or safety, (B) environmental, eco-
nomic or community well-being, (C) the government,
zoning and other regulatory matters, (D) a public offi-
cial or public figure, or (E) an audiovisual work . . . .’’
General Statutes § 52-196a (a) (1).
6
As to the defendant’s statements in the application
for a protective order and his conduct during the pro-
ceedings that resulted therefrom, the trial court con-
cluded that the application and the proceedings were
inherently personal in nature.
7
We subsequently granted the application of the
American Civil Liberties Union Foundation of Connecti-
cut (ACLU) to file an amicus curiae brief in support of
the defendant’s contention that a denial of a special
motion to dismiss under the anti-SLAPP statute is an
appealable final judgment.
8
Because we conclude that the defendant has
asserted a colorable claim under the right to petition
the government for his statements during the grievance
proceedings, we need not decide whether the state-
ments alleged in the plaintiffs’ complaint also fall within
the statutory definitions of ‘‘right of free speech’’ and
‘‘right of association.’’ See General Statutes § 52-196a
(a) (2) and (4). Ultimately, we leave it to the appellate
court reviewing the merits of the defendant’s appeal to
determine whether the trial court, in fact, incorrectly
concluded that the defendant had not met his initial
burden under § 52-196a (e) (3).