Opinion
No. CV 07-5013711S
December 24, 2009
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Before the Court is a motion for summary judgment filed by the defendant. The plaintiffs in the original complaint were Peter and Dani Orsini and remained as plaintiffs under the terms of the revised complaint. At a later date the plaintiff Dani Orsini unilaterally withdrew her claim against the defendant Zimmer; this was done two months after the filing of the defendant's motion for summary judgment in September 2008.
The standards to be applied in deciding a motion for summary judgment are well established. If a material issue of fact is presented which would determine whether such a motion should be granted, the Court should not decide that issue because a party has a constitutional right to a trial. If no material issue of fact is present, then the court should decide the motion even if it will result in the dismissal of a complaint so that the parties can be spared the expense and burden of litigation.
The legal claims against Peter Orsini lie in libel per se and malicious invasion of privacy. The facts of this case at least to the Court, are somewhat complicated. Both sides seem to agree that the basis of these claims rests on a letter the defendant wrote to the grandfather of a child who was the subject of an apparently rancorous custody dispute in Probate Court. The child is referred to as Mark Camp III (the child); the grandfather is Mark Camp I (the Court will simply refer to him as the grandfather). The plaintiff Peter Orsini and his wife Dani Orsini are the grandparents of this child; their daughter Robbie Camp, is mother of the child.
A
Before addressing the legal issues raised it is necessary to set forth the factual context in which the previously mentioned letter was written. This will also help the Court address some of the legal issues raised in this case.
Michael Zimmer filed an affidavit in support of his motion for summary judgment. He states he has known the Orsinis since November 2002. He claims he has been a "stepfather figure" to Mark Camp, Jr., the father of the child, and says he has "been very involved in his life." In 2007 the Orsinis filed an action for custody of the child in Meriden Probate Court against the father. The affidavit goes on to say that the time the action was filed, Mark Camp Jr. was living with Zimmer.
In that action the Orsinis are claimed to have made statements which led to a court order preventing Zimmer from having contact with the child. Zimmer claims to have personal knowledge of the Orsinis. Regarding the letter he wrote to Mr. Camp, the grandfather of the child, and father of Mark Camp Jr., Zimmer states the following:
18. In or about March 20, 2007 I sent a letter to Mark Camp Sr. about his son Mark and the custody action the Orsinis brought concerning the minor child.
19. I wrote that letter because Mark Camp, Jr. informed me that his father was contacted by the Orsinis regarding the custody action and I felt he should be aware of the facts as I understood them in the hope that he would provide his support for his son.
20. I understood based on what I read and observed that Peter Orsini pled guilty to charges filed against him in 2003 and had attended a dependency treatment program as well as served probation as ordered by the Court.
21. I believed Peter Orsini had been convicted of the charges against him in 2003.
22. My action in sending the letter to Mark Camp, Sr. was related solely to the custody court action filed by the Orsinis and in response to their contacting Mr. Mark Camp, Sr. first about their son and the custody action.
In paragraph 25 Mr. Zimmer states "the Orsinis continuously attempt to make me part of the custody battle between themselves and Mark Camp Jr." (the child's father).
Peter Orsini also submitted an affidavit. The Court will quote the direct references to the letter and not the consequences it is alleged to have had:
13. In early 2008 Michael Zimmer wrote a letter to Mark Camp I, the father of Mark Camp II.
14. Mark Camp I has never been involved in the Probate Court action.
15. Michael Zimner has absolutely no relation to Marky (the child).
16. In this letter, he wrote various falsehoods about my wife and I and attached documents from the Meriden Police Department which were illegally obtained. The documents from the Meriden Police Department were records that were subject to the erasure statutes and other incidents in which I was the complainant.
Interestingly the defendant has attached to its memorandum in support of the motion to dismiss a response to interrogatories by Mr. Orsini which were made under oath. He was asked if he had been arrested since January 1, 2000. He responded that he was arrested for Breach of Peace, Threatening, and Reckless Endangerment in September 2003 and that the charges were dismissed in January 2004. In the following interrogatory he was asked if he had ever been convicted of a crime and responded "no."
To the foregoing affidavits and interrogatory responses, no counter affidavits or documents were submitted by either side.
B
The Court will first address the motion as is directed at the first count in libel per se. The portion of the letter which it is claimed contain libel states the following:
To show that Mark is working from fact instead of fiction, I have attached a police record for Peter and Dani Orsini that was obtained by Mark for court. Of greatest concern right now is the fact that Peter was charged with domestic violence and risk of injury of a minor back in 2003 which resulted in a conviction as a result of a drug induced violent attack which included a weapons charge. This happened while Mark, Robbie and the baby were living in the house. I understand they are trying to come off as guardian angels but they are far from that. I witnessed the result of the violence which included broken furniture, furniture put through walls and a granite counter top which was broken in half. Mark and Robbie were subjected to a 3 month investigation by DCF at the time because they were living in the home. According to DCF they were cleared, but Peter was convicted of the crime and had to submit to drug tests and go through a treatment program in order to have the charges waived from his record under accelerated rehabilitation. This is not being disclosed as part of the case because he completed accelerated rehabilitation and had it wiped from his record, but the fact is this really happened. At the same time they are trying to point the finger at me, who is not in any way trying to obtain custody or residency of your grandson. Again, this would make great daytime TV, but not a basis for keeping your son from getting back your grandson.
It is well known through the family that Peter continues to take Xanix and with alcohol which is what makes him violent. Right now with two toddlers in the house and limited income the stress is on and chances are he is going to snap. We know Peter continues to take Xanix beyond the drug treatment because he would regularly ask Mark to try to get pills from his mother. Thankfully Becky had another breakdown and they took her off all of her pain meds. This is the same man that is running around calling your son a drug addict.
Prior to these statements the letter said: "Mark and your grandson need the support of the entire family while Mark fights to get his son back." The letter concludes "I hope you will call Mark and work with him to get this situation straightened out. This is not a time for finger pointing and name calling which is exactly what Dani and Peter are trying to use to restrict Mark's access to his son while their daughter slowly goes through the legal system. This is a time for everyone in their lives to work together to help him regain custody of his son. Mark belongs with his father or mother, not Robbie's parents."
Libel per se does not require the proof of actual damages and one class of libel falling under this definition "are . . . libels charging crimes," Moriarty v. Lippe, 162 Conn. 371, 382 (1972); Proto v. Bridgeport Herald Corporation, 136 Conn. 557, 565 (1950). To be actionable because the libel charges a crime, the libel must concern a crime involving moral turpitude, 136 Conn. at page 566, 162 Conn. at page 383. Moriarty defined moral turpitude as involving "an act of inherent baseness, vileness or depravity in the private and social duties which man does to his fellow man or to society in general, contrary to the accepted rule of right and duty between man and law," id. Both Moriarty and Proto are cited with approval in the more recent case of Lega Sialiana, Inc. v. St. Germaine, 77 Conn.App. 846, 853 (2003). The Criminal activity alleged in the letter involving domestic abuse, violence and drug use, all apparently in a child's presence, would seem to qualify for libel per se.
Battista v. UI Co., 10 Conn.App 486, 493 (1987), says the modern view of the moral turpitude requirement is that "the crime be a chargeable offense which is punishable by imprisonment," id. Lega Sicilian did not refer to this modification but the libel here would also pass that test.
Here, of course, the letter not only references criminal activity but further alleges that Orsini was convicted of a crime "as a result of a drug induced violent attack which included a weapons charge" see Miles v. Perry, 11 Conn.App 584, 602 (1987), 50 Am.Jur.2d, "Libel and Slander," § 185, page 465.
In addition to establishing the libel, to prosecute defamation there must also be publication; our state accepts the common-law requirements and generally adopts the Restatement (2d) Torts position on this tort, Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217 (2004). As to publication, all that the Restatement requires in § 577 is communication of the defamation "intentionally or by a negligent act to one other than the person defamed." That is met here because the letter in question was sent, by Mr. Zimmer's own admission, to the grandfather of the child over whom the custody battle was waged, that is, Mark Camp I.
A prima facie case of libel per se has been established.
C ( i)
The argument raised by the defendant Zimmer against Peter Orsini's libel per se claim rests on the defense of so-called absolute privilege. In our state this defense is discussed in the leading case of Kelley v. Bonney, 221 Conn. 549, 565-72 (1992), and Petyan v. Ellis, 200 Conn. 243, 245, 246 (1986). Petyan cited "the 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 someway pertinent to the subject matter of the controversy."
The Court will try to set forth the general law applicable to the assertion of this privilege. When it turns to the specific letter which is the subject of this litigation and of the defense it will amplify its references to case law. Petyan referred to the policy behind the rule by quoting a Nevada case Circus, Circus Hotels, Inc. v. Witherspoon, 657 P.2d 101 (1983) which said: "the policy underlying the privilege is that in certain situations the public interest in hearing people speak freely, out weighs the risk that individuals will occasionally abuse the privilege by making false and malicious statements." In Hopkins v. O'Connor, 282 Conn. 821, 826 (2007) the court cited case law to the effect "that the absolute privilege that is granted to statements made in furtherance of a judicial proceeding extends to every step of the proceeding until final disposition." Hopkins went on to note that under Kelley v. Bonney "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."
The Court in Hopkins went on to say that "the scope of privileged communication extends not merely to those made directly to a tribunal, but also to those preparatory communications that may be directed to the goal of the proceeding," 282 Conn. at page 832; Kelly v. Bonney, 221 Conn. Page 574. Also see Alexandre v. Dowd, 79 Conn.App 434, 438 (2003) where the Court said "it is well settled 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 . . . The privilege applies also to statements made in pleadings or other documents prepared in connection with a court proceeding." In a federal district court case, referring to the previously mentioned policy reasons for the absolute privilege, the court said: "The purpose served by the absolute privilege is to facilitate the flow of communication between persons involved in judicial proceedings, and thus, to aid in the complete and full disclosure of facts necessary to a fair adjudication . . . to accomplish this goal, the privilege protects judges, parties, attorneys, witnesses and other persons connected with litigation from the apprehension of defamation suits, thus permitting them to speak and unite freely without undue restraint." Hoover v. Van Stone, 540 F.Sup. 1118, 1122 (D.Del. 1982).
A predicate to applying the doctrine is, of course, the finding that the proceeding is one to which it is appropriate that the absolute privilege attaches — the issue has been framed in terms of whether the proceeding is judicial or quasi-judicial in nature. In Kelley our Supreme Court listed the factors to be considered in determining whether a proceeding is quasi-judicial, 221 Conn. 567; they are, does the entity acting have the power to "(1) exercise judgment and discretion (2) hear and determine or to ascertain facts and decide (3) make binding orders and judgments (4) affect the personal or property rights of private persons (5) examine witnesses and hear the litigation (6) enforce decisions or impose penalties," see also Morgan v. Bubar, 115 Conn.App. 603, 614 (2009). The Am.Jur.2d article on Libel and Slander notes not all six factors need be established to warrant finding it a quasi-judicial body citing Zych v. Tucker, 844 N.E.2d 1004 (Ill.App. 2000), 50 Am.Jur.2d, § 283, pages 646-47(iii).
To sum up and to paraphrase two non-Connecticut cases the absolute privilege to which immunity attaches if the defamation which has been published (1) was made in a judicial or quasi-judicial proceeding (2) had some connection or logical relation to the proceeding (3) was made to achieve the objects of the litigation (4) was made by litigants or other participants authorized by law, Brody v. Montalbano, 87 Cal.App.3d 725, 733 (1978); Williams v. Keeney, 877 A.2d 277 (N.J.Super, 2005).
Before moving from the general to the specific it should also be noted that "whether a communication is made upon an occasion of privilege is a question of law . . ." Alexander v. Dowd, 79 Conn.App. 434, 439 (2003). The letter in question and who sent it are undisputed and that it was sent during the Probate Court proceedings is also undisputed. All of this underlines the fact that a question of law is involved, cf Grasso v. Matthew, 164 A.D.2d 476, 479 (App.DIV.N.Y.Sup.Ct., 1991).
D ( i)
As indicated, the court will try to apply these general statements of the law to the case at hand. To address the predicate question first, there is no doubt, at least to the court that, a Probate Court proceeding is judicial or quasi-judicial in nature. The documents submitted concerning this motion and opposition to it indicates that court held hearings in this matter and issued orders relative to custody, supervision, and visitation of the child. The court also made findings regarding these matters. It has been held, for example, that Probate Court commitment proceedings are judicial in nature and the doctrine of absolute privilege applies to defamation actions brought concerning alleged defamation occurring relative to the initiation of such proceedings, Hopkins v. O'Connor, 282 Conn. 821, 826 (2007), cf McManus v. Sweeney, 78 Conn.App. 327, 335 (2003).
( ii)
The issue can therefore be examined as to whether the absolute privilege can be applied to this case. Any analysis must begin with reference to the letter in question. It was written by Mr. Zimmer who certainly has an interest in this litigation regarding the custody of the child. He apparently provided funds to the father to contest the Orsini's position in Probate Court. An order was issued against him regarding no contact with the child. But he is not a party to the litigation and is not related to the father of the child. There is no indication that Mr. Zimmer provided testimony in the underlying litigation going to its merits especially prior to the sending of the letter. The letter was written to the grandfather, Mark Camp I, but he is also not a party to the litigation and there is no indication that he was ever called to testify or alluded to in the litigation for any purpose except as a recipient of the letter. Perhaps even more to the point the letter asks that the grandfather support his son, the father. It does not specify as to what the support should entail and just refers at another point to asking the grandfather to help in straightening things out. No specific request is made that the grandfather intervene in any way in the litigation such as being a witness or providing an affidavit or any other documentation. It could simply be a request that the son receive emotional support given the pressure of the litigation. Apparently the letter was introduced into the Probate Court hearings at a later point, but that is an after the fact event having nothing to do with the publication of the letter ab initio to the grandfather whose contents, if defamatory, would bar granting of this motion absent establishment of an absolute privilege. An examination of this letter indicates that the grandfather, to whom it was sent, would not have had any knowledge of the facts and interpretation of those facts discussed in the letter and therefore, himself, could provide no assistance in establishing those facts in court, cf Hoover v. Van Stone, supra 540 F.Sup. at page 1122. This is not a situation where directly affected parties contact authorities about conduct concerning which they have a complaint and defamation is alleged to have occurred regarding allegations made Brody v. Montalbano, 87 Cal.App.3d 725, 732 (1978). Nor is it a situation where people contact each other concerning the feasibility of initiating litigation and it is claimed the communications contain defamatory material, Hageberg v. California Federal Bank, 32 Cal. 4th 350, 361 (2004). The litigation had already commenced when the letter was sent and there is no indication as to how exactly the grandfather was being. asked to assist in the litigation or that it was even contemplated how he could assist in achieving the object of the litigation, Kirschstein v. Haynes, 788 P.2d 941, 951, 952 (Okla., 1990).
Given the foregoing, the court will now turn to a fuller discussion of the law of absolute privilege and its application to the factual situation now before the court. The language in commentary and case law, which expands on the general principles previously discussed, is quite broad in certain respects. For example, in Section 281 of the Libel and Slander article in 50 Am.Jur.2d it says: "The requirement that defamatory statements made in judicial proceedings be pertinent or relevant in order to qualify for absolute privilege is not strictly applied and must be broadly interpreted, and all doubts must be resolved in favor of finding pertinency," page 642. The Restatement (2d) Torts has similar broad language. See § 587, comment (c), page 249. Prosser takes the same view, see § 114, page 818.
But the court in Kelley v. Bonney, supra made clear that the absolute privilege only extends to statements in furtherance of the litigation, 221 Conn. page 566. This qualification has been made in several cases after Kelley v. Bonney, see Chadha v. Charlotte, 272 Conn. 776, 788 (2005); Hopkins v. O'Connor, 282 Conn. 821, 826 (2007); Morgan v. Bubar, 115 Conn.App. 603, 613 (2009).
The question presented then is what does this letter have to do with the furtherance of the litigation in Probate Court. The furtherance of the litigation qualification is necessary if the absolute privilege is to be limited to its purpose — to encourage the free flow of information concerning litigation. Otherwise there would be no limit or judicial control over what could be streams of defamation containing what might be hypothetically relevant material but having no purpose in aiding the litigation at hand, cf Park v. Knoll Associates, 451 N.E.2d 182 (1983). Also see Bradley v. Hartford Accident Indemnity Co., 30 Cal.App.3d 818 (1973), where the court said the absolute privilege "must be confined within narrow limits unless the public policy upon which the privilege rests is found to exist in a new situation." Id., page 824. In that case as here there was no indication that the defamatory material had anything to do with achieving "the objects of the litigation" Id., page 826 — the object of the Probate Court litigation here was to achieve an order from the court regarding custody of the child. Another interesting case is Reserve Solutions, Inc. v. Vernaglia, 438 F.Sup.2d 280 (S.D.N.Y. 2006) where, interpreting New York law, the court refused to dismiss a counterclaim stating a question of fact existed as to whether the allegedly defamatory statements were made in "preparation for litigation."
In any event on the basis of what has been presented the court will deny the motion for summary judgment on the first count of libel per se.
The defendant has submitted the opinion of District Judge Eginton who dismissed a 42 USC § 1983 claim in the case of Orsini v. Ritchie, No. 3:07 cv 1254 (WWE) (Dist. Conn). The defendant was a clerk in Meriden G.A. who was alleged to have released certain arrest records of Orsini. These records were sent to Mark Camp, Jr. The court recognized that the due process clause protects an individual's interest in avoiding disclosure of personal matters, Whalen v. Roe, 429 U.S. 589, 599 (1977). However, the court dismissed the § 1983 claim. It noted Orsini's arrest record had been erased but cited Nilson v. Layton City, 45 F.3d 369, 372 CCA 10 (1995), to the effect that "an expungement or erasure order removes an arrest from an individual's criminal record but the underlying object of expungement remains public." Criminal history is a matter of public record and is not a constitutionally protected privacy interest. But at one point the opinion notes the "incident report" was not divulged and it appears only the fact of arrest and apparently the charges were released. This district court case has no bearing on the nature of the defamation alleged here. Here Zimmer said Orsini was actually convicted of a crime and engaged in activity of a serious criminal nature even describing it — he claims to have witnessed the aftermath. In other words he said, in effect despite any erasure Orsini was convicted of a crime and engaged in criminal activity. This court cannot rely on a District Court § 1983 opinion to overturn state law on defamation or compromise statutorily enacted state policy on the disclosure of details surrounding a crime that has been erased and the conditions for treatment which served as a predicate for the erasure which are used to support an allegation of substance abuse.
E
The motion for summary judgment is also directed at the second count of the revised complaint which is based on a false light invasion of privacy claim.
The court agrees with the defendant that if the libel per se count were to be dismissed on the basis of the absolute privilege so must the false light second count be dismissed, see Restatement (2d) Torts, § 652F. The claim in the second count appears to be derivative. As said in Hoover v. Van Stone, supra if the policy behind absolute privilege in judicial or quasi-judicial proceedings is to mean anything "we must not permit its circumvention by affording an almost equally unrestricted action under a different label," 540 F.Sup. at p. 1124 quoting Ranier's Dairies v. Raritan Valley Farms, 117 A.2d 889, 895 (N.J.Super, 1995).
But the court has not accepted the absolute privilege defense to libel per se so it will not grant the motion for summary judgment based on the assertion of this defense.
But in a supplementary brief the defendant raises another issue. In the revised complaint at count two, paragraph 3 it is alleged that Mr. Zimmer "invaded the personal privacy of the plaintiffs by intentionally and maliciously placing them (both Mr. and Mrs. Orsini) in a false light and giving unwarranted publicity to their personal affairs by stating that the plaintiffs are convicted criminals and further describing the details of their private lives associated with his claim that they are convicted criminals." This allegation concerns the previously discussed letter. Besides being sent to Mark Camp I, the grandfather, Mr. Orsini, in paragraph 18 of his affidavit lists court employees, state employees the judge and two lawyers who became privy to the contents of the letter. The record is said by Mr. Orsini to have been made part of the Probate Court file. A total of nine people received the information contained in the letter.
Our court recognized the false light invasion of privacy common-law tort in Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 125 et seq. (1982), specifically citing § 652E of the Restatement (2d) Torts which defines the common-law tort. That section begins by saying "One who gives publicity to a matter concerning another that places the other before the public in a false light" is liable if the false light would be offensive to a reasonable person and the actor had knowledge of the falsity or was reckless in regard to truth or falsity. Comment (a) states that: "The rule stated here is, however, limited to the situation in which the plaintiff is given publicity. On what constitutes publicity and the publicity of application to a simple disclosure, see § 652 D, comment (a) which is applicable to the rule stated here." Comment (a) of § 652D states in relevant part, the following:
a. Publicity. The form of invasion of the right of privacy covered in this Section depends upon publicity given to the private life of the individual. "Publicity," as it is used in this Section, differs from "publication," as that term is used in § 577 in connection with liability for defamation. "Publication," in that sense, is a word of art, which includes any communication by the defendant to a third person. "Publicity," on the other hand, means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge. The difference is not one of the means of communication, which may be oral, written or by any other means. It is one of a communication that reaches, or is sure to reach, the public.
Thus it is not an invasion of the right of privacy, within the rule stated in this Section, to communicate a fact concerning the plaintiff's private life to a single person or even to a small group of persons. On the other hand, any publication in a newspaper or a magazine, even of small circulation, or in a handbill distributed to a large number of persons, or any broadcast over the radio, or statement made in an address to a large audience, is sufficient to give publicity within the meaning of the term as it is used in this Section. The distinction, in other words, is one between private and public communication.
The allegations here relative to the "publicity" requirement of § 652E do not seem to qualify for a false light claim and the court has no reason to think that our appellate court will not accept this "publicity" requirement of such a cause of action.
For fuller discussion of "publicity" element of this tort, see 62A Am.Jur.2d, "Privacy," Sections 137-41.
Therefore the court grants the motion for summary judgment as to the second count.