2010 Ct. Sup. 18990
No. CV08 501 93 36 SConnecticut Superior Court Judicial District of Fairfield at Bridgeport
September 24, 2010
MEMORANDUM OF DECISION
GILARDI, J.T.R.
This will serve to rule on the defendant’s motion for summary judgment. The complaint is based on the publication of an allegedly libelous letter written by the defendant to the editor of a town newspaper. In the present motion for summary judgment, the following facts are not in dispute. The plaintiff, Frederick Acker, is the executive director of the S.P.C.A. of Connecticut, Inc., a nonprofit corporation engaged in the sheltering and adoption of homeless cats and dogs. Its principal place of operation is 359 Spring Hill Road in Monroe. Acker has been engaged in animal adoption there since 1999, when he applied for and obtained a valid commercial kennel license for the premises under the name “Animal Adoption Network, Inc.” According to a position statement issued by the Monroe planning and zoning commission on June 8, 2000, the operation of the kennel was, as of that date, not an illegal expansion from the prior use of the property.
Several years later, on April 14, 2004, the commission conducted a site visit of the premises, apparently in response to complaints from neighbors. At a meeting held on May 13, 2004, the commission adopted several findings, concluding that (1) the structures and animal runs on the premises were nonconforming and were not permitted to be expanded or modified; (2) the maximum number of dogs that may be kept there was twenty-nine; (3) no expansion of activity shall be permitted; (4) no commercial vehicles of any type shall be parked or stored; and (5) any trailers stored on the premises were not to be used or occupied by an animal. On February 11, 2005, a zoning enforcement officer served on Acker a cease and desist order providing notice that he was in violation of each of those findings.[1] Acker appealed the order to the Monroe zoning board of appeals, and after the zoning board upheld the order, he appealed to the Superior Court. In a decision rendered on February 11, 2008, the court sustained the decision of the board, finding that there was substantial evidence that the nature, CT Page 18991 character and use of 359 Spring Hill Road had changed since Acker began operating on the premises. See Animal Adoption Network Inc. v. Zoning Board of Appeals, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 054009151 (February 11, 2008, Owens, J.T.R.) [45 Conn. L. Rptr. 24].
The court’s decision was covered in a Connecticut Post
article published on February 13, 2008. The article discussed the events leading up to the decision and reported that Acker vowed to appeal to the Appellate Court. On June 17, 2008, the Connecticut Post published a second article reporting that the Appellate Court declined to hear Acker’s appeal.
The defendant, Barbara Jenkins, does not know and has never met Acker. Like Acker, however, she is involved in the sheltering of animals, and is currently a volunteer “adoption advisor” for the Trumbull Animal Group, which assists in the placement of homeless cats and dogs. After reading the two Post articles, Jenkins wrote and submitted a letter to the editor of the Monroe Courier. On July 17, 2008, the Courier published the letter, which reads: “To the Editor: I was pleased to see that the Appellate Court refused to hear Fred Aker’s [sic] case. I was happier still to read that he’ll comply. Had he done that years ago, he would have saved the town and his neighbors a lot of grief, and himself a lot of legal fees. He knew the restrictions when he moved there so I could never understand why, if he wanted to sell dogs on a grander scale, he just didn’t move to a larger facility where he would be allowed to do so legally. Barbara Jenkins, Trumbull.”[2]
On October 14, 2008, Acker filed a complaint against Jenkins alleging libel. Specifically, Acker alleges that “the publication by [Jenkins] of statements which imply that [he] was operating in violation of any restriction or was operating illegally were false and malicious.”[3] Acker claims that Jenkins’s letter damaged his personal and professional reputation, and as a result he has “lost the good will and trade of many persons with whom he otherwise would have had profitable business.” In his prayer for relief, Acker seeks, among other claims, money damages, punitive damages and a court order enjoining Jenkins from making other “false and malicious statements.”
On May 6, 2009, Jenkins filed an amended answer interposing six special defenses, which assert that Acker’s claim is barred because the allegedly libelous statement: (1) is true or substantially CT Page 18992 true; (2) is not defamatory as a matter of law; (3) is privileged as “fair comment”; (4) is a protected opinion under the first amendment to the United States Constitution; (5) is a protected opinion under the constitution of Connecticut, article first, §§ 4, 5; (6) was not made with “actual malice.” On March 29, 2010, Jenkins filed a motion for summary judgment on the ground that Acker’s claim is barred by five of the six special defenses.[4] In support of her motion, Jenkins submitted a sworn affidavit, supporting documents and a memorandum of law. On May 19, 2010, Acker filed an objection to the motion for summary judgment, and submitted a sworn affidavit, supporting documents and a memorandum of law.
“In any action, except administrative appeals . . . any party may move for a summary judgment at any time . . .” Practice Book § 17-44. “The judgment sought 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. “The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.” (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008). “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.) Sherman v. Ronco, 294 Conn. 548, 553-54, 985 A.2d 1042 (2010). “Summary judgment in favor of the defendant is properly granted if the defendant in its motion raises at least one legally sufficient defense that would bar the plaintiff’s claim and involves no triable issue of fact.” (Internal quotation marks omitted.) Serrano v. Burns, 248 Conn. 419, 424, 727 A.2d 1276 (1999).
An initial articulation of the elements of defamation and libel is necessary. “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 CT Page 18993 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.) Gambardella v. Apple Health Care, Inc., 291 Conn. 620, 627-28, 969 A.2d 736 (2009). “Defamation is comprised of the torts of libel and slander . . . Slander is oral defamation . . . Libel . . . is written defamation.” (Internal quotation marks omitted.) Mercer v. Cosley, 110 Conn.App. 283, 297, 955 A.2d 550 (2008). “Before a party will be held liable for libel, there must be an unprivileged publication of a false and defamatory statement.” Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 316, 477 A.2d 1005 (1984).
Jenkins’s first special defense asserts that Acker’s libel claim is barred because the allegedly libelous statement is true or substantially true. According to Jenkins, Acker’s numerous violations, as detailed in the February 11, 2005 cease and desist order, affirm the truthfulness of her statement. Acker argues, however, that the statement contains several errors, in view of the fact that (1) he never sold dogs on the premises, (2) the June 8, 2000 position statement confirmed the legality of his operation and (3) Jenkins cannot truthfully state what he knew when he moved to 359 Spring Hill Road.
“In a civil action for libel, where the protected interest is personal reputation, the rule in Connecticut is that the truth of an allegedly libelous statement of fact provides an absolute defense . . . Contrary to the common law rule that required the defendant to establish the literal truth of the precise statement made, the modern rule is that only substantial truth need be shown to constitute the justification . . . If he succeeds in proving that the main charge, or gist, of the libel is true, he need not justify statements or comments which do not add to the sting of the charge or introduce any matter by itself actionable . . . The issue is whether the libel, as published, would have a different effect on the reader than the pleaded truth would have produced.” (Citations omitted; internal quotation marks omitted.)Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 112-13, 448 A.2d 1317 (1982).
The implied meaning of the final sentence of Jenkins’s letter is clear: Acker was selling dogs in knowing violation of the restrictions in place when he first moved to the premises. Jenkins’s assertion that her statement conveys the substantial truth is CT Page 18994 untenable. Jenkins does not dispute that Acker runs a nonprofit animal adoption operation and has never sold any dogs on the premises. Moreover, although the cease and desist order reveals that Acker violated the commission’s May 13, 2004 findings, his operation was apparently not in violation prior to that date, when the commission formed the findings. Indeed, the commission’s June 8, 2000 position statement confirmed that Acker’s use of the premises was legal. It cannot be said, therefore, that Acker violated the restrictions in place in 1999, when he began operating the kennel. Lastly, Jenkins has not demonstrated that Acker knowingly committed any zoning infractions. A reader who accepts the truth of Jenkins’s statement would form the erroneous and, in the very least, unsubstantiated belief that Acker was engaged in something other than that which he held himself out to do, that he violated rules unchanged and in place since he moved to the premises and that he knew about these violations. These additional allegations certainly “add to the sting” of the primary charge that Acker violated the commission’s 2004 findings. Thus, Jenkins’s statement is not true, or even substantially true, and therefore this defense cannot prevail.
Jenkins’s third special defense asserts that her statement is protected by the common-law privilege of “fair comment.” Jenkins argues that the privilege applies in this instance because her statement was an expression of opinion concerning a matter of public interest. Acker contests, on the other hand, that this defense does not entitle Jenkins to summary judgment because there exists a genuine issue of material fact as to whether she forfeited this privilege.
“The privilege of `fair comment,’ which was one of the most important privileges realized at common law, was a qualified privilege to express an opinion or otherwise comment on matters of public interest . . . Traditionally, fair comment concerned persons, institutions or groups who voluntarily injected themselves into the public scene or affected the community’s welfare, such as public officials, political candidates, community leaders from the private sector or private enterprises which affected public welfare . . .” (Citation omitted; internal quotation marks omitted.)Goodrich v. Waterbury Republican-American, Inc., supra, 188 Conn. 114-15. “When considering whether a qualified privilege protects a defendant in a defamation case, the court must resolve two inquiries . . . The first is whether the privilege applies, which is a question of law . . . The second is whether the applicable privilege nevertheless has been defeated through its CT Page 18995 abuse, which is a question of fact.” (Citations omitted.)Gambardella v. Apple Health Care, Inc., supra, 291 Conn. 628. “[F]or more than 100 years, this court has concluded that a qualified privilege is lost upon a showing of either actual malice, i.e., publication of a false statement with actual knowledge of its falsity or reckless disregard for its truth, or malice in fact, i.e., publication of a false statement with bad faith or improper motive.” Id., 630.
Jenkins is not entitled to summary judgment if she cannot demonstrate the absence of a genuine issue of material fact as to the lack of any abuse that would disqualify her from exercising the privilege of fair comment. Reviewing the evidence in the light most favorable to Acker, Jenkins has not satisfied her burden to show that she did not publish her letter with “actual malice.” The only evidence produced by Jenkins concerning her mental state is the following cursory statement in her affidavit: “I did not intend to defame Mr. Acker when I sent the letter. I was only offering my opinion.” The former sentence states that Jenkins did not intend to commit the tort of defamation. The latter is a characterization of her expression. Neither addresses the issue of whether Jenkins knew the falsity of her statement or acted in reckless disregard for its truth. Morever, both sentences are the type of conclusory statement the basis of which is insufficient for the rendition of summary judgment. See Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996); Gambardella v. Kaoud, 38 Conn.App. 355, 360, 660 A.2d 877 (1995).
Although Jenkins’s affidavit testimony more adequately addresses whether she possessed “malice in fact,” that is, whether she possessed improper motives in submitting her letter to th Courier, she is not entitled to summary judgment on the basis of conclusory statements in her affidavit. Moreover, even if Jenkins did meet her burden in demonstrating the absence of a triable issue, Acker has rebutted it by pointing out that her involvement with a similar animal adoption organization, in conjunction with the fact that Jenkins published an unsubstantiated statement concerning Acker’s mental state without ever having known him, could lead a jury to conclude that she acted in bad faith. As such, Jenkins is not entitled to summary judgment on the basis of this special defense.
In her fourth special defense, Jenkins asserts that because her statement is an expression of opinion, it is “unqualifiedly protected” by the first amendment of the United States Constitution. CT Page 18996 For this expansive proposition, Jenkins relies on a conclusion formed by our Supreme Court that “the mere comment or opinion on public matters, even though defamatory, enjoys the unqualified protection of the First Amendment.” (Internal quotation marks omitted.) Goodrich v. Waterbury Republican-American, Inc., supra, 188 Conn. 117.
Goodrich involved an issue of whether certain comments published in a newspaper concerning a private citizen were privileged under fair comment principles. In resolving the issue, the court observed that the privilege had gained “constitutional status” and reviewed a series of important United States Supreme Court decisions addressing the tension between defamation actions and the constitutional privileges afforded to speech. Se Goodrich v. Waterbury Republican-American, Inc., supra, 188 Conn. 115-20. In these opinions, the United States Supreme Court interpreted the first amendment as providing significant protection for statements concerning public officials and figures but not for statements concerning private individuals. See New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (“[t]he constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with `actual malice'”) Curtis Publishing Co. v. Butts, 388 U.S. 130, 155, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) (extendin New York Times rule to “public figures”); Gertz v. Robert Welch, Inc., 418 U.S. 323, 345-46, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) (“we conclude that the States should retain substantial latitude in their efforts to enforce a legal remedy for defamatory falsehood injurious to the reputation of a private individual”).[5] Our Supreme Court concluded, however, that the states retained “substantial latitude” only when misstatements of fact were involved. Goodrich v. Waterbury Republican-American, Inc., supra, 117. Where “pure” opinions were in play, the court concluded that they are “guaranteed virtually complete constitutional protection.” Id., 118. The court so held on the basis of its interpretation of the following dictum in Gertz: “Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.” Id., 117, citin Gertz v. Robert Welch, Inc., supra, 339-40.
CT Page 18997 The United States Supreme Court has disapproved of this interpretation. In a later opinion, it clarified, “we do not think this passage from Gertz was intended to create a wholesale defamation exemption for anything that might be labeled `opinion.'”[6] Milkovich v. Lorain Journal Co., 497 U.S. 1, 18, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990). In reversing a decision of the Ohio Supreme Court because it erroneously recognized a “constitutionally required opinion exception” to the application of its state defamation laws, the court held: “We are not persuaded that, in addition to these protections [see, e.g., New York Times Co., Curtis Publishing Co. and Gertz], an additional separate constitutional privilege for `opinion’ is required to ensure the freedom of expression guaranteed by the First Amendment.”Id., 21. The court determined that “the breathing space which [f]reedoms of expression require in order to survive . . . is adequately secured by existing constitutional doctrine without the creation of an artificial dichotomy between opinion and fact.” (Citation omitted; internal quotation marks omitted.)Id., 19.
Jenkins attempts to persuade this court that her statement is fully protected by the first amendment because it is, as she argues, an opinion. According to the United States Supreme Court, the first amendment affords no such privilege. Therefore, her fourth special defense does not entitle her to summary judgment.
Under her fifth special defense, Jenkins argues that, as an opinion, her statement is fully protected under the Constitution of Connecticut, article first, §§ 4[7] and 5.[8] Acker counters that Jenkins supplies no binding authority and that she provides a factually distinguishable trial court opinion in support of her proposition.
“[N]either the Connecticut Supreme Court nor the Appellate Court has authoritatively determined whether Connecticut’s free speech protections are broader than those of the federal First Amendment.” M. Margulies, “Connecticut’s Free Speech Clauses: A Framework and An Agenda,” 65 Conn.B.J. 437, 437 (1991). “[W]hile [textual] differences may facilitate independent interpretation, they do not require it.” Id., 439. Although these passages seriously undermine Jenkins’s position, she nevertheless cites to the article for the author’s normative argument that Connecticu should interpret speech clauses in the state constitution independently of the federal constitution.[9] Id., 451. Her reliance, however, is misplaced. Whether Connecticut courts should CT Page 18998 independently interpret the state constitution with respect to speech issues sheds no light on whether all opinions are in fact protected under the state constitution. Jenkins, on her part, offers no relevant insight, either.
Jenkins also directs the court’s attention to the conclusion of a trial court that “[b]ecause of the profound commitment to freedom of the press as demonstrated in §§ 4 and 5 of article first of the constitution of the state of Connecticut and the history of this state, at the very least, statements in editorials (clearly labeled as such) about public officials concerning matters of public concern . . . are entitled to an absolute, unconditional privilege.” Dow v. New Haven Independent, Inc., 41 Conn.Sup. 31, 44, 549 A.2d 683 (1987). Acker correctly points out, however, that unlike the plaintiff in Dow, he is not a public official; moreover, Jenkins’s remarks were published as a letter to the editor, not as a press editorial. The facts in the present case do not fit under Dow‘s constitutional vindication of the right of the press to publish opinions on public officials. Even if Dow were applicable, its holding is now in doubt. Our Supreme Court has observed that “the freedom of expression guarantees contained in article first, §§ 4 and 5 of the Connecticut Constitution are at least as broad as the similar federal guarantee” (emphasis added); Grievance Committee v. Trantolo, 192 Conn. 15, 23 n. 5, 470 A.2d 228 (1984); but it has elaborated no further. As previously discussed, at the tim Dow was decided, it was believed in this state that the first amendment unqualifiedly protected opinions on public matters. See Goodrich v. Waterbury Republican-American, Inc. supra, 188 Conn. 117. Because the United States Supreme Court in Milkovich later held otherwise, it is unclear whether the speech clauses in the Connecticut constitution possess the vitality attributed to it by the court in Dow.
“In construing the contours of our state constitution, we must exercise our authority with great restraint in pursuit of reaching reasoned and principled results . . . We must be convinced, therefore, on the basis of a complete review of the evidence, that the recognition of a constitutional right or duty is warranted.” (Internal quotation marks omitted Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 354, 990 A.2d 206 (2010). In light of the mandate from our Supreme Court to interpret the state constitution with caution, temperance and care, Jenkins has not persuaded this court that our state constitution protects her allegedly libelous CT Page 18999 statement simply because it is an opinion. Therefore, she is not entitled to summary judgment on the basis of this defense.
Jenkins’s sixth and final special defense asserts the constitutional protection of the rule articulated in New York Times Co. and Curtis Publishing Co. Specifically, Jenkins argues that because Acker is a public figure, he must demonstrate that the allegedly libelous remarks were made with actual malice in order for his claim to prevail. Without supplying any reasons, Jenkins argues that Acker will be unable to make such a showing.
In a motion for summary judgment, it is the moving party’s burden to demonstrate the absence of a genuine issue as to all the material facts. Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. 11. As already concluded, Jenkins has failed to demonstrate the absence of a triable issue as to whether she knew the falsity of her statement or acted in reckless disregard for its truth. As a consequence, her sixth special defense must also fail.
Because none of the special defenses raised in the motion for summary judgment bars the libel claim, the motion is denied.
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