Appellate Court Rejects Constitutional Challenge to Connecticut’s Anti-SLAPP Statute, Extends Quasi-Judicial Defamation Immunity to Federal Employee Grievance

The Appellate Court’s recent decision in Robinson v. V.D. has a little something for any practitioner who deals with questions of constitutional law or civil procedure. Among other things, the decision held that statements made in a federal employee’s union grievance were absolutely immune from defamation liability, concluded that this immunity defense is nonwaivable, and upheld the legislature’s prerogative to craft an expedited judicial process to dispose of meritless lawsuits filed in response to protected expression. Like several law school classes rolled into one, the opinion has lessons for novice attorneys and seasoned practitioners alike.

Coast Guard Employees Trade Insults—and Claims

The parties in Robinson all were civilian Coast Guard employees. The defendant was a carpenter who had been promoted temporarily to an inspector position. After unsuccessfully applying for the full‑time position, the defendant filed a formal workplace grievance alleging that the job denial stemmed partly from an illicit quid pro quo agreement involving the plaintiffs and partly from disdain for the defendant’s union affiliation.

The Coast Guard cleared the plaintiffs of wrongdoing. Sometime later, the parties exchanged (judicially unspecified) insults at a competitive shooting event, and the defendant sought a civil protective order against one of the plaintiffs, but the Superior Court dismissed that application.

Swapping sides, the now-plaintiffs sued the former complainant for a flurry of torts, including defamation, vexatious litigation, and intentional and negligent infliction of emotional distress. The Superior Court denied the defendant’s special motion to dismiss under this State’s anti‑SLAPP statute, see Conn. Gen. Stat. § 52‑196a. The defendant sought immediate review, the Connecticut Supreme Court held the denial to be immediately appealable (one hurdle cleared!), and the Appellate Court proceeded to decide the appeal.

Connecticut’s Anti-SLAPP Statute: Protecting Public-Oriented Speech from Private Intimidation

As of 2018, a Connecticut statute has expedited the dismissal of what are commonly known as strategic lawsuits against public participation, or SLAPP suits. This provision extends First-Amendment-like protections to public-oriented expression, even in cases without direct governmental speech restrictions.

The anti-SLAPP statute authorizes special motions to dismiss by a party facing a civil complaint, counterclaim, or cross-claim based on that party’s exercise, in connection with a matter of public concern, of the constitutionally protected right of free speech, association, or to petition the government. For these purposes, the statute defines a “matter of public concern” to encompass issues relating to health or safety; environmental, economic, or community well-being; zoning or other regulatory matters; a public official or public figure; or an audiovisual work.

A party has thirty days from the complaint’s return date, or the claim’s imposition, to file the special motion to dismiss. Doing so automatically stays discovery, though the court may order limited discovery to aid in resolving the motion, which the court must promptly hear and decide.

The statute prescribes a two-step burden-shifting procedure. Initially, the movant must establish, by a preponderance of the evidence, that the complaint or claim at issue is based on that party’s exercise of protected activity in connection with a matter of public concern. If that showing is made, the court has to grant the motion unless the opposing party establishes probable cause, considering all valid defenses, to conclude that the complaint or claim will prevail on the merits. These determinations may be made on pleadings and affidavits.

A prevailing anti-SLAPP movant is entitled to reasonable costs and attorney’s fees, as is a party who resists an anti-SLAPP motion that the court finds to have been frivolous and brought solely for delay. The statute does not apply in state or local enforcement actions, or against claims for bodily injury or wrongful death, among other express exclusions.

The Appellate Court Extends Quasi-Judicial Immunity to Statements Made in the Union Grievance Process

Before delving into the anti-SLAPP law, the Appellate Court in Robinson held that absolute judicial or quasi-judicial immunity barred nearly all the plaintiffs’ claims.

Connecticut’s courts have written much about this immunity recently (including in Khan v. Yale University, discussed here). In particular, quasi‑judicial immunity protects speakers from tort liability for statements made in proceedings that meaningfully resemble litigation, such that a desire to discourage falsehoods yields to enabling full and frank disclosure to inform a decision.

The Robinson panel determined that the nature of the Coast Guard’s union grievance process warranted this sort of immunity. As the panel emphasized, in this administrative process, an adjudicator ascertained facts and applied legal principles, to render a decision of institutional import under a formal process set forth in the relevant collective‑bargaining agreement.

Time will tell whether this holding is transferable to other public or private grievance processes, the specifics of which will be crucial to determining whether the proceeding qualifies as quasi-judicial. Likewise, time will tell if this aspect of Robinson generates an uptick in scandalous false statements in grievances pursued by Coast Guard employees. (By contrast, the panel held that traditional judicial immunity covered statements made in the parties’ underlying protective-order proceeding in court.)

Also noteworthy, the panel held that absolute immunity divests a court of subject-matter jurisdiction. That conclusion has two important consequences: it means that a party can raise the immunity defense at any stage of the case (since lack of subject-matter jurisdiction cannot be waived), and it means that the court generally has to decide the immunity question first (since a court cannot entertain a case without subject-matter jurisdiction).

Usually, substantive defenses to individual claims are not viewed as jurisdictional. The panel’s ruling underscores the centrality of absolute immunity, but this jurisdictional proposition also could be subject to reevaluation in the future. In all, litigants would do well to raise any applicable defense of judicial or quasi-judicial immunity early on—even if only to maximize the intended benefit of immunity from suit. 

The Anti-SLAPP Statute Narrows the Complaint’s Remainder

The Robinson panel then held that the defendant’s anti-SLAPP motion partially disposed of the complaint’s remaining claims, for vexatious litigation. On public‑policy grounds, Connecticut courts do not extend absolute judicial or quasi-judicial immunity to vexatious-litigation claims, which would effectively eviscerate this tort resting on positions advanced in prior litigation or analogous disputes.

The panel determined that the parties’ protective-order action in Superior Court had involved a wholly private interpersonal dispute, thus falling outside the anti-SLAPP statute’s scope. A claim based on that action survived the special motion.

But the panel concluded differently about the union grievance. At the outset, it deemed the grievance to be a petition to the government that regarded a matter of public concern, thus implicating the anti‑SLAPP statute. As the court reasoned, the grievance “was governed by a valid collective bargaining agreement between the Coast Guard and the defendant’s union,” asserted “potential improprieties in the hiring process at the academy,” and “touched on the possible existence of anti-union sentiment.”

Robinson helpfully surveys criteria that inform whether expression is of public concern for anti-SLAPP purposes. They include, but are not limited to, the statement’s “content, form, and context,” and whether it “relates to any matter of political, social, or other concern to the community,” versus being of “concern to the speaker and a relatively small, specific audience.” Asserting a “broad and amorphous” public interest will not suffice. These criteria derived in part from federal decisions addressing “whether speech or conduct is protected under the first amendment”—further highlighting the influence of governmental free-speech law on this private-litigation context.

Shifting the burden, the panel nevertheless concluded that the plaintiff, as a matter of law, could not establish that the defendant’s prior union grievance had been a vexatious form of litigation against the plaintiffs, who were technically not parties to the grievance process. The anti‑SLAPP statute therefore precluded a claim based on the grievance.

The Appellate Court Upholds the Anti-SLAPP Statute as a Valid Exercise of Legislative Authority

Because the anti‑SLAPP motion in Robinson prevailed in part, the Appellate Court needed to consider the plaintiffs’ alternative argument for denying the special motion to dismiss: that the anti-SLAPP statute was unconstitutional. After all, without a valid statute, there could not be a special motion. The constitutional arguments did not succeed.

First, the panel rejected the plaintiffs’ argument that the anti-SLAPP statute violated the constitutional right to a jury in civil cases. More specifically, the panel held that this statute “does not require trial courts to resolve disputed issues of fact or to dismiss claims that otherwise would survive summary judgment.”

The panel noted that the probable-cause standard at step two of the burden-shifting framework “does not require fact-finding by the court.” The panel further suggested that the standard functioned as a mere burden of production, asking whether any reasonable juror could find for the claimant.

Indeed, preserving the factfinder’s role, the anti-SLAPP statute makes explicit that any “findings or determinations” reached on the special motion to dismiss “shall not be admitted into evidence at any later stage of the proceeding.” The panel did not cite or rely on this language, however.

Second, the Appellate Court rebuffed the plaintiffs’ contention that the anti‑SLAPP statute violated the Constitution’s separation of powers. To the panel, this point merited “little discussion.”

To start, the panel recognized that courts cannot realistically enforce strict separation among the branches’ respective powers, lest government become paralyzed. Against that backdrop, the panel concluded that the anti‑SLAPP statute neither regulated a subject exclusively within judicial control nor significantly interfered with the Superior Court’s functioning.

The panel labeled any claim of usurpation of judicial authority “a bridge too far.” It reaffirmed the legislature’s traditional power to create simple and prompt statutory procedures to implement parties’ substantive rights. In this regard, the panel quoted extensively from an earlier decision upholding the expedited statutory procedure to compel arbitration. According to the panel, Connecticut’s legislature similarly was empowered to create “a substantive statutory right to be free from litigation” aiming “to punish or intimidate citizens who exercise their rights to free speech.”

Central to this holding was the idea that regulating court actions “is not a power that lies exclusively within judicial control.” Indeed, the Connecticut General Statutes establish various claims, elements, and limitations periods; make certain types of evidence inadmissible; circumscribe appellate courts’ jurisdiction; delineate procedures to govern trials, discovery, and subpoenas; create rules for capping or apportioning damages; and even authorize a prejudgment remedy to freeze assets during litigation (also turning on a judicial probable-cause finding of the claim’s merit).

Taken to the extreme, the constitutional arguments advanced in Robinson would have imperiled many of these accepted procedures. A party raising such a challenge should explain how the contested measure invades the sphere of a coordinate branch, or an individual right, rather than relying on generalities. For example, a sharper distinction conceivably could be drawn between the anti-SLAPP statute’s unique burden-shifting procedure, with its attendant probable-cause determination, and the summary-judgment framework broadly applying in all civil cases.

In sum, Robinson represents the latest chapter in the courts’ continuing effort to balance a speaker’s protections with others’ right of redress. Lawyers and litigants should remain mindful of the defenses deployed in this case, as well as how to establish them effectively.