Opinion
No. CV 04-4001952 S
June 5, 2006
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Before the court is the defendant's motion for summary judgment on the ground that the defendant's alleged defamatory statements were made during a judicial proceeding, thereby affording the defendant absolute immunity.
On August 30, 2004, the plaintiff, Eric Hopkins, a former department of correction officer, filed a two-count complaint against the defendant, Michael O'Connor, a police officer, in his individual capacity. In his complaint, the plaintiff alleges the following facts.
In September of 2003, pursuant to General Statutes § 17-503(a), the defendant caused the plaintiff to be transported to Yale New Haven Hospital for a psychiatric evaluation because he reasonably believed that the plaintiff was suicidal. Thereafter, the defendant prepared an incident report in which he falsely stated that one of the plaintiff's friends told the defendant that the plaintiff "was going to kill co-workers." The defendant then published the report containing this statement to one or more third parties. Additionally, the defendant disclosed to the plaintiff's former fellow employees and/or supervisors at the department of correction that the plaintiff had been committed to a psychiatric facility because he was suicidal. These actions, the plaintiff alleges, were defamatory per se and constituted an unreasonable publication of details of his private life.
General Statutes § 17a-503(a) provides: "Any police officer who has reasonable cause to believe that a person has psychiatric disabilities and is dangerous to himself or herself or others or gravely disabled, and in need of immediate care and treatment, may take such person into custody and take or cause such person to be taken to a general hospital for emergency examination under this section. The officer shall execute a written request for emergency examination detailing the circumstances under which the person was taken into custody, and such request shall be left with the facility. The person shall be examined within twenty-four hours and shall not be held for more than seventy-two hours unless committed under section 17a-502."
The defendant filed an answer in which he admits that he transported the plaintiff to the hospital, prepared a report, communicated the report to the department of corrections, and spoke to a department of correction representative. He denies, however, that he acted falsely, maliciously or unreasonably. In addition, he alleges six special defenses, including that his statements are shielded by the doctrine of absolute immunity.
On January 19, 2006, the defendant filed a motion for summary judgment as to both counts of the complaint on the ground of absolute immunity, and filed a memorandum of law in support. On March 15, 2006, the plaintiff filed a memorandum of law in opposition. The matter was heard on the short calendar on March 20, 2006.
"Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 399, 876 A.2d 522 (2005). "The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 46-47, 811 A.2d 194 (2005).
The defendant argues that he is absolutely immune from suit because the statements contained in his report and the statements he made to the plaintiff's former employer were made in furtherance of a judicial proceeding, namely, a commitment or lunacy proceeding. The defendant cites to Craig v. Stafford Construction, Inc., 271 Conn. 78, 85, 856 A.2d 372 (2004), and asserts that "[i]t is axiomatic that pursuant to Connecticut law, any `statement' made in the context of a commitment (lunacy) proceeding is entitled to absolute immunity." The defendant characterizes his actions as the initial steps of a commitment proceeding and argues that the plaintiff's involuntary commitment to Yale New Haven Hospital for a psychiatric evaluation was a "judicial proceeding where the plaintiff was being protected from hurting himself and possibly putting the lives of others at risk." Additionally, the defendant contends that his statements to the plaintiff's employer were "an integral part of his investigation in furtherance of the commitment proceeding." In support of his argument, the defendant submitted the following nine exhibits: an unsigned copy of a letter from the department of correction to the plaintiff; an unauthenticated copy of an incident report from the department of correction; an excerpt from the deposition testimony of one of the plaintiff's coworkers; an excerpt from the deposition testimony of Steven Shaw, the plaintiff's friend; an affidavit sworn to by the defendant; an excerpt from the deposition testimony of a department of correction captain; two uncertified department of correction memoranda; and, a copy of an uncertified document that appears to be part of a department of correction investigation report. In opposition, the plaintiff argues that the defendant is not protected by absolute immunity because his report and statement were not made in furtherance of or in connection with any commitment proceeding.
It should be noted that some of the defendant's evidence may not be properly before the court. See New Haven v. Pantani, 89 Conn.App. 675, 678-79, 874 A.2d 849 (2005) (only admissible evidence may be used to support or oppose a motion for summary judgment).
"A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him . . . To establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiff's reputation suffered injury as a result of the statement." (Internal quotation marks omitted.) Craig v. Stafford Construction, Inc., 271 Conn. 78, 84, 856 A.2d 372 (2004).
"There is a long-standing common law rule that communications uttered or published in the course of judicial proceedings are absolutely privileged so long as they are in some way pertinent to the subject of the controversy." (Internal quotation marks omitted.) Petyan v. Ellis, 200 Conn. 243, 245-46, 510 A.2d 1337 (1986). "The effect of an absolute privilege in a defamation action . . . is that damages cannot be recovered for a defamatory statement even if it is published falsely and maliciously." (Internal quotation marks omitted.) Craig v. Stafford Construction, Inc., supra, 271 Conn. 84. If the privilege applies, it "extends to every step of the judicial proceeding until final disposition." Petyan v. Ellis, supra, 200 Conn. 246. "The judicial proceeding to which [absolute] immunity attaches has not been defined very exactly. It includes any hearing before a tribunal which performs a judicial function, ex parte or otherwise, and whether the hearing is public or not. It includes, for example, lunacy, bankruptcy, or naturalization proceedings, and an election contest. It extends also to the proceedings of many administrative officers, such as boards and commissions, so far as they have powers of discretion in applying the law to the facts which are regarded as judicial or quasi-judicial, in character." (Emphasis added; internal quotation marks omitted.) Craig v. Stafford Construction, Inc., supra, 271 Conn. 84-85.
"In Craig v. Stafford Construction, Inc., [ 271 Conn. 78, 85, 856 A.2d 372 (2004)], the Connecticut Supreme Court affirmed the Appellate Court's conclusion that an investigation of a city police officer conducted by the police department's internal affairs division constituted a quasi-judicial proceeding thereby affording absolute immunity to the citizen complainant whose claim gave rise to the investigation." (Emphasis added.) Rioux v. Barry, Superior Court, judicial district of New Haven, Docket No. CV 05 4007375 (January 3, 2006, Licari, J.) ( 40 Conn. L. Rptr. 537, 539). In Craig, the court set forth seven factors used to determine whether the facts and circumstances of a particular case constitute a quasi-judicial proceeding to which absolute immunity attaches. Craig v. Stafford Construction, Inc., supra, 271 Conn. 84-85. In this case, the defendant only argues his conduct pertained to a judicial proceeding, and he does not raise the issue of quasi-judicial proceedings or brief the seven factors set forth in Craig. Therefore, the court need not consider whether the defendant's conduct pertained to a quasi-judicial proceeding because the issue was not properly presented though an adequate brief. Connecticut Light Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003).
Our Appellate Court has concluded that a "Probate Court proceeding regarding the appointment of a permanent conservator of a person and his estate is a type of `judicial proceeding' to which the privilege would attach." McManus v. Sweeney, 78 Conn.App. 327, 334, 827 A.2d 708 (2003). Thus, it is also likely that the privilege would apply to a Probate Court proceeding to determine whether a person should be committed to a psychiatric facility. In the present case, however, the evidence does not provide any basis enabling this court to conclude that the events giving rise to the plaintiff's claims occurred before, during or after any such proceeding. Essentially, the only facts that are established by the evidence are that the defendant, a police officer, took the plaintiff into custody pursuant to General Statutes § 17a-503(a), because he had reasonable cause to believe that the plaintiff had psychiatric disabilities or was gravely disabled and in need of immediate care. Without more, however, these facts do not establish that the defendant's conduct occurred in the context of a judicial proceeding to which absolute immunity applies. Such a scenario does not fit even the broadest definition of "judicial proceeding" and the defendant's argument overlooks the language of § 17a-503.
In the absence of a clear definition of "judicial proceeding" in our statutes and case law, the court may appropriately look to the common understanding of the term as expressed in a dictionary. See R.T. Vanderbilt Co. v. Continental Casualty Co., 273 Conn. 448, 463, 870 A.2d 1048 (2005) (court looked to dictionaries from previous era for definition of "suit" within the meaning of a comprehensive general liability insurance policy); see also First Union National Bank v. Hi Ho Mall Shopping Ventures, Inc., 273 Conn. 287, 869 A.2d 1193 (2005) (court looked to Black's Law Dictionary for definition of "subordinate" when interpreting statute). Black's Law Dictionary defines "judicial proceeding" as: "[a]ny court proceeding." (Emphasis added.) Black's Law Dictionary (7th Ed. 1999). Furthermore, the term "proceeding" is defined as, "[t]he regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment . . . Any procedural means for seeking redress from a tribunal or agency . . . An act or step that is part of a larger action . . . The business conducted by a court or other official body; a hearing." Id.
In addition, Corpus Juris Secundum explains: "Courts differ as to what constitutes a `judicial proceeding' within the rule of absolute privilege. Generally, the privilege of judicial proceedings is not restricted to trials of civil actions or indictments, but includes every proceeding before a competent court or magistrate in the due course of law or the administration of justice which is to result in any determination or action of such court or officer.
"The rule is broad and comprehensive, including within its scope all proceedings of a judicial nature, whether pending in some court of justice or before a tribunal or officer clothed with judicial or quasi-judicial powers.
"The privilege does not apply, however, to a tribunal which is not judicial or quasi-judicial in its character or nature or to proceedings which, although official and public, are not in substance judicial or quasi-judicial." 53 C.J.S. 315, Libel and Slander, § 71(b) p. 130-31 (1987).
In the present case, the defendant has not submitted evidence showing that the defendant's conduct in taking the plaintiff into custody or any subsequent proceeding that occurred as a result, constituted a hearing before a tribunal performing a judicial function. Furthermore, the defendant has not submitted evidence that his conduct subsequent proceeding, occurred before an administrative officer that had discretion in applying the law to the facts. Accordingly, by failing to show the existence of any judicial proceeding, the defendant has not established that he is entitled to absolute immunity.
Moreover, the title and statutory language of § 17a-503 dispel the defendant's contention that his taking the plaintiff into custody sufficiently establishes the occurrence of a judicial proceeding for purposes of absolute immunity. The title and language of § 17a-503 indicate that this section applies to actions taken prior to a commitment proceeding and, therefore, prior to a judicial proceeding. The title of § 17-503 states in relevant part: "Detention by police officer prior to commitment." (Emphasis added.) Furthermore, the last sentence of § 17-503(a) provides that a person taken into custody by a police officer "shall be examined within twenty-four hours and shall not be held for more than seventy-two hours unless committed under section 17a-502." (Emphasis added.) Section 17a-502, in turn, provides safeguards which attempt to respect "the humanitarian and due process concerns that limit the involuntary hospitalization of the mentally ill." Mlynarczyk v. Smith, Superior Court, complex litigation docket at New Britain, Docket No. X03 CV 00 0503096 (August 7, 2001, Aurigemma, J.). Pursuant to this language, therefore, proof that the defendant took the plaintiff into custody is not, in and of itself, sufficient to establish the existence of a judicial proceeding.
The defendant's argument that immunity applies assumes that, at some point, the issue of the plaintiff's commitment was addressed by a court or tribunal and that the safeguards of § 17a-502 applied. Viewed in the light most favorable to the nonmoving plaintiff, however, the evidence does not support this assumption.
Accordingly, a genuine issue of material fact exists as to whether any judicial proceeding regarding the plaintiff's involuntary commitment ever occurred, and, therefore, the defendant's motion for summary judgment is denied.