Smith v. Supple

• Docket Number: SC 20730
• Decision Date: 02 May 2023
• Citation: 346 Conn. 928,293 A.3d 851
• Parties: Gregory B. SMITH et al. v. Aaron SUPPLE et al.
• Court: Connecticut Supreme Court

346 Conn. 928

293 A.3d 851

Gregory B. SMITH et al.

v.Aaron SUPPLE et al.

SC 20730

Supreme Court of Connecticut.

May 2, 2023

ROBINSON, C. J.

In this appeal, we must consider whether Connecticut's appellate courts have jurisdiction over an interlocutory appeal from a trial court's denial of a special motion to dismiss filed pursuant to our anti-SLAPP¹ statute, General Statutes § 52-196a.² The defendants, Aaron Supple, Karen Montejo, Hendrick Xiong-Calmes, and Gianna Moreno, who were students at Trinity College in Hartford (Trinity), appealed to the Appellate Court from the trial court's denial of their special motion to dismiss the action brought against them by the plaintiffs, Gregory B. Smith, Nicholas Engstrom, and The Churchill Institute, Inc. (Churchill Institute).³ Thereafter, this court transferred the appeal to itself and ordered the parties, sua sponte, to brief the issue of whether the trial court's denial of the special motion to dismiss constitutes a final judgment for the purpose of an appeal. On that limited issue, the defendants argue that the trial court's denial is immediately appealable under the second prong of State v. Curcio , 191 Conn. 27, 31, 463 A.2d 566 (1983). For the reasons that follow, we agree with the defendants and conclude that the denial of a special motion to dismiss based on a colorable claim of a right to avoid litigation under § 52-196a is an appealable final judgment under the second prong of Curcio . Because the defendants’ appeal presents such a colorable claim, we transfer the appeal back to the Appellate Court for further proceedings according to law.

The record reveals the following relevant facts and procedural history, which are undisputed for purposes of the present appeal. Smith is a professor of political science and philosophy at Trinity. Acting in his capacity as a professor at Trinity, Smith circulated a letter to his fellow faculty and colleagues entitled "Reflections on the ‘Campus Climate.’ " The letter criticized Trinity's policies, which Smith believed constituted a "new segregation ...." Smith wrote in relevant part: "We are creating a new form of racism and classism at Trinity—with a new form of original sin being loaded on white, suburban students—and it is no accident that this occurs as the aftermath of transforming the center of the curriculum and hiring into a focus on the mantra of [r]ace, [c]lass and [g]ender as if there were nothing else of interest in the life of the mind." Smith went on to refer to Trinity's " ‘cultural houses’ " as "tribal enclaves," opining that "[h]ouses that integrate students by interest and academic subject matter would be far more promising than tribal enclaves that lead to division and hostility that need not exist. We are creating a climate of armed camps, not one of open, urbane and cosmopolitan civility. What happened to the premise in [ Brown v. Board of Education , 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954) ] that separate is never equal? What happened to Martin Luther [King, Jr.’s] ‘dream’ of getting past the surface to treating each person as an individual and an equal rather than as members of groups?"⁴ Although Smith sent his letter to his fellow faculty members, the defendants and other students received access to it in March, 2019.

In the spring of 2019, several undergraduate students at Trinity, including Engstrom, created the Churchill Club (club) and applied for formal recognition and funding from Trinity's Student Government Association (SGA). Smith served as the faculty advisor to the club. The club was "inspired" in part by the Churchill Institute, which is a nonprofit corporation founded by Smith that "focuses on the study of Western civilization, philosophy, and tradition," and certain reading groups that Smith had organized. In connection with the club's application for formal recognition, the club's student representatives, led by Engstrom, appeared before the SGA on March 3, 2019, to answer questions. Student protestors also attended the hearing to protest against the club's formal recognition. The SGA continued the vote on whether to formally recognize the club and subsequently announced that a pair of " ‘drop-in student town halls’ " would take place on April 10 and 11, 2019.

On April 1, 2019, a Trinity student newspaper published its annual satirical issue. The issue featured an article entitled "SGA Considers Fascist Society Approval," referencing the campus controversy over the club's application for recognition. Around April 10, 2019, the defendants posted flyers around campus, featuring the Churchill Institute's logo, a photograph of Smith, and a quote from a Facebook post authored by Smith: "the new racism is every bit as ugly as the old."⁵ The defendants also posted nearly identical flyers featuring a photograph of Engstrom.

Thereafter, the plaintiffs brought the present action against the defendants, alleging libel per se, libel per quod, and negligent infliction of emotional distress. The defendants filed a special motion to dismiss under the anti-SLAPP statute, § 52-196a, arguing that the plaintiffs’ claims were based on the defendants’ exercise of their right of free speech and their right of association in connection with a matter of public concern under the first amendment to the United States constitution. The plaintiffs objected to the defendants’ special motion to dismiss.

The trial court denied the defendants’ special motion to dismiss on November 16, 2021. The court noted that, in deciding a special motion to dismiss under § 52-196a (e) (3), Connecticut courts must undertake a two-pronged, burden shifting analysis. See footnote 2 of this opinion. The court found that the defendants had failed to meet their burden under § 52-196a (e) (3) with respect to their claim of free speech because their communications at Trinity were not made in a "public forum," as required by § 52-196a (a) (2).⁶ The court further concluded that a private college, like Trinity, was not a state actor for purposes of triggering first amendment protections under the United States constitution.⁷

As to the defendant's right of association claim,⁸ the trial court noted that the "United States Supreme Court has afforded constitutional protection to freedom of association in two distinct senses. First, the [c]ourt has held that the [c]onstitution protects against unjustified government interference with an individual's choice to enter into and maintain certain intimate or private relationships.

Second, the [c]ourt has upheld the freedom of individuals to associate for the purpose of engaging in protected speech or religious activities." (Internal quotation marks omitted.) The trial court determined that the defendants’ conduct, and the lawsuit that ensued, did "not involve any governmental interference with the defendants’ choice to enter into and maintain intimate or private relationships." The court further determined that the defendants’ conduct did not constitute engagement in protected speech under the first amendment because Trinity was not a public forum. Accordingly, the court concluded that the defendants had also failed to meet their initial burden under § 52-196a (e) (3) on the ground that the plaintiffs’ complaint was based on their right of association.⁹

The defendants appealed from the trial court's denial of their special motion to dismiss to the Appellate Court. Shortly after the parties filed their preliminary statement of the issues, the Appellate Court sua sponte stayed the appeal pending this court's decision in Pryor v. Brignole , 346 Conn. 534, 292 A.3d 701 (2023). Thereafter, we transferred this appeal to our docket pursuant to Practice Book § 65-1 and instructed the parties, sua sponte, to brief "only the threshold jurisdictional issue of whether the denial of a special motion to dismiss filed pursuant to ... § 52-196a is an appealable final judgment ...."

Before this court, the defendants argue that an appealable final judgment exists under the general appellate jurisdiction statute, General Statutes § 52-263,¹⁰ as explicated by the second prong of State v. Curcio , supra, 191 Conn. at 31, 463 A.2d 566, because an interlocutory appeal is necessary to protect the statutory right to the dismissal of a SLAPP suit. The defendants first look to the text of § 52-196a (d), which provides in relevant part that any stay of discovery imposed upon the filing of a special motion to dismiss "shall remain in effect until the court grants or denies the special motion to dismiss and any interlocutory appeal thereof ...." (Emphasis added.) Although the defendants concede that this language does not expressly create appellate jurisdiction, they argue that the reference to "interlocutory appeal[s]" suggests that the legislature understood that the right at issue in the statute would satisfy Curcio . In further support of this claim, the defendants also rely on the purpose of the statute as explained in the legislative history, namely, to provide a rapid mechanism by which defendants could avert SLAPP suits—which are by definition frivolous lawsuits intended to punish or deter the otherwise legitimate exercise of first amendment rights. In emphasizing that Connecticut's anti-SLAPP statute provides a right to avoid litigation, the defendants likewise rely on a variety of federal and sister state cases in arguing that the protections afforded by the anti-SLAPP statute 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 plaintiffs contend in response that the denial of a special motion to dismiss is not an appealable final judgment. The plaintiffs argue that, had the legislature intended such denials to be immediately appealable, it would have used specific language in the statute to bestow that right. The plaintiffs also argue that the reference in § 52-196a (d) to an ...