McManus v. Sweeney

• Decision Date: 29 July 2003
• Docket Number: (AC 22867)
• Citation: 827 A.2d 708,78 Conn. App. 327
• Court: Connecticut Court of Appeals
• Parties: KATHERINE MCMANUS v. JOSEPH H. SWEENEY

78 Conn. App. 327

827 A.2d 708

KATHERINE MCMANUS v. JOSEPH H. SWEENEY

(AC 22867)

Appellate Court of Connecticut.

Argued March 24, 2003.

Officially released July 29, 2003.

Lavery, C. J., and Bishop and West, Js. Katrena K. Engstrom, with whom, on the brief, was John R. Williams, for the appellant (plaintiff).

Michael T. Ryan, for the appellee (defendant).

Opinion

LAVERY, C. J.

The plaintiff, Katherine McManus, appeals from the summary judgment rendered by the trial court in favor of the defendant, Joseph H. Sweeney. On appeal, the plaintiff claims that the court improperly determined that the defendant was absolutely privileged to publish defamatory statements contained in a letter he wrote to Hugh Barber, an assistant attorney general for the state of Connecticut. We affirm the judgment of the trial court. The pleadings, affidavits and other documentary information presented to the court reveal the following facts. The plaintiff initiated this action against the defendant, an attorney, asserting claims of defamation and negligent infliction of emotional distress. The plaintiff, at all times relevant to the action, was employed as a social worker by the department of social services (department). The first count of the plaintiff's complaint sounded in defamation and alleged that on or about March 12, 1999, the defendant wrote a letter to Barber, an assistant attorney general, "in which [the defendant] falsely and maliciously accused [her] of taking actions injurious to a ward of the Probate Court, of overstepping her role as an employee [of the department], [of] violating the policies and procedures, of the department... and of violating the rights of a ward of the Probate Court." The second count of the plaintiff's complaint contained similar allegations and asserted a claim for negligent infliction of emotional distress. The defendant answered the complaint, admitting only that he wrote a letter to Barber on or about March 12, 1999, and asserted four special defenses. The contents of the letter are not in dispute.

On November 6, 2001, the defendant filed a motion for summary judgment as to both counts of the plaintiff's complaint, claiming that he was absolutely privileged to publish the allegedly defamatory statements contained in the letter to Barber. Specifically, the defendant claimed that his statements were absolutely privileged both because they were published in the course of and in relation to a judicial proceeding, and because they were published in the contemplation of an administrative, or quasi-judicial, proceeding. On February 26, 2002, the court granted the defendant's motion for summary judgment because it determined that the letter was published in connection with a pending Probate Court proceeding and that it was published in furtherance of (preliminary to) an administrative or quasi-judicial proceeding.¹ This appeal followed. Additional facts will be set forth as necessary.

"The standard of review of a trial court's decision to grant a motion for summary judgment is well established. 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. Practice Book § 17-49. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... Our review of the trial court's decision to grant [a] motion for summary judgment is plenary." (Citation omitted; internal quotation marks omitted.) Barry v. Quality Steel Products, Inc., 263 Conn. 424, 450, 820 A.2d 258 (2003).

On appeal, the plaintiff claims that the court improperly determined that the defendant was absolutely privileged to publish the statements contained in his letter to Barber. Specifically, the plaintiff claims that the defendant was not absolutely privileged to publish the contents of the letter because (1) the defendant's letter cannot be construed as having been written "in the course of' a judicial proceeding, and (2) "viewing the defendant's letter as an attempt to initiate an administrative proceeding is insufficient to bring the letter within the immunity that would attach to a participant in such a proceeding for statements made therein." We conclude that the court properly determined that the defendant was entitled to an absolute privilege from liability for defamation because the letter was published during the course of a judicial proceeding.² We therefore affirm the judgment of the trial court.³

The plaintiff claims that the court improperly determined that the defendant was absolutely privileged to publish his letter because the letter could not properly be construed as having been written "in the course of" a judicial proceeding.⁴ We disagree.

"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." Kelley v. Bonney, 221 Conn. 549, 565, 606 A.2d 693 (1992). "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). Thus, "we ... [afford] to attorneys, as officers of the court, absolute immunity from liability for allegedly defamatory communications in the course of judicial proceedings." Mozzochi v. Beck, 204 Conn. 490, 494-95, 529 A.2d 171 (1987); Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 64 Conn. App. 192, 199, 779 A.2d 822 (2001), rev'd in part on other grounds, 260 Conn. 766, 802 A.2d 44 (2002); see also Blakeslee & Sons v. Carroll, 64 Conn. 223, 232 (1894), overruled in part on other grounds, Petyan v. Ellis, supra, 243; see DeLaurentis v. New Haven, 220 Conn. 225, 263 n.22, 597 A.2d 807 (1991); 3 Restatement (Second), Torts § 586, p. 247 (1977).

"The `judicial proceeding' to which the 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.... This privilege extends to every step of the proceeding until final disposition.... [L]ike the privilege which is generally applied to pertinent statements made in formal judicial proceedings, an absolute privilege also attaches to relevant statements made during administrative proceedings which are quasi-judicial in nature." (Citations omitted; internal quotation marks omitted.) Petyan v. Ellis, supra, 200 Conn. 246. "The policy underlying the privilege is that in certain situations the public interest in having people speak freely outweighs the risk that individuals will occasionally abuse the privilege by making false and malicious statements." (Internal quotation marks omitted.) Id.

The following additional facts are necessary for our resolution of the plaintiff's appeal. At the time the defendant wrote the allegedly defamatory letter at issue, he was the court-appointed attorney for Christopher McManus, the plaintiff's father, in a pending Probate Court proceeding regarding the appointment of a permanent conservator for Christopher McManus' person and estate. The letter sets forth, inter alia, the events and circumstances that led to the defendant's belief that the plaintiff may have improperly used her position with the department to engage in some impropriety with regard to the Probate Court proceeding.⁵ The defendant's purpose in writing the letter was to request that an investigation be made into the plaintiff's conduct as it related to the Probate Court proceeding concerning Christopher McManus. Specifically, the letter requested that the attorney general's office investigate whether the plaintiff improperly had used her position with the department to violate Christopher McManus' civil rights and whether the plaintiff had engaged in some impropriety with regard to having Dorcas White, a social worker with the department, removed from Christopher McManus' case.

In the present case, it is undisputed that there was a pending Probate Court proceeding concerning the appointment of a permanent conservator for Christopher McManus, the defendant's client. 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. This case, therefore, requires us to consider whether the subject letter was published in the course of that judicial proceeding. Whether a communication is published in the course of a judicial proceeding, so as to obtain the benefit of the absolute privilege, is a question of law for the court to decide, and our review is, therefore, plenary. See Bleich v. Ortiz, 196 Conn. 498, 501, 493 A.2d 236 (1985); Ely v. Mason, 97 Conn. 38, 43, 115 A. 479 (1921); 3 Restatement (Second), supra, § 619, p. 316.⁶

Section 586 of the Restatement (Second) of Torts provides: "An attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding." "The privilege ... is confined to statements made by an attorney while performing his function as such. Therefore it is available only when the defamatory matter has some reference to the subject matter of the proposed or pending litigation, although it need not be strictly relevant to any issue involved in it...." 3 Restatement (Second), supra, § 586, comment (c)....