Robinson v. V. D.

************************************************

The “officially released” date that appears near the

beginning of an opinion is the date the opinion will be

published in the Connecticut Law Journal or the date it

is released as a slip opinion. The operative date for the

beginning of all time periods for the filing of postopin-

ion motions and petitions for certification is the “offi-

cially released” date appearing in the opinion.

All opinions are subject to modification and technical

correction prior to official publication in the Connecti-

cut Law Journal and subsequently in the Connecticut

Reports or Connecticut Appellate Reports. In the event

of discrepancies between the advance release version of

an opinion and the version appearing in the Connecti-

cut Law Journal and subsequently in the Connecticut

Reports or Connecticut Appellate Reports, the latest

version is to be considered authoritative.

The syllabus and procedural history accompanying

an opinion that appear in the Connecticut Law Jour-

nal and subsequently in the Connecticut Reports or

Connecticut Appellate Reports are copyrighted by the

Secretary of the State, State of Connecticut, and may

not be reproduced or distributed without the express

written permission of the Commission on Official Legal

Publications, Judicial Branch, State of Connecticut.

************************************************

Page 0 CONNECTICUT LAW JOURNAL 0, 0

2 ,0 0 Conn. App. 1

Robinson v. V. D.

MICHAEL ROBINSON ET AL. v. V. D.*

(AC 46477)

Cradle, Suarez and Westbrook, Js.

Syllabus

The defendant appealed from the trial court’s denial of his special motion

to dismiss filed pursuant to the anti-SLAPP statute (§ 52-196a). He claimed

that the court, inter alia, erred in determining that his alleged conduct, in

connection with an application for a civil protection order and with respect

to certain union grievance proceedings, did not relate to an exercise of a

protected right in connection with a matter of public concern and, thus,

fell outside the scope of § 52-196a. Held:

The trial court erred in failing to dismiss all counts of the plaintiffs’ underly-

ing complaint, with the exception of the statutory and common-law vexatious

litigation counts, as they were barred by absolute immunity under the litiga-

tion privilege.

The trial court erred in concluding that the defendant failed to meet his

initial burden of proving that the allegations in the complaint regarding his

conduct during the course of the union grievance proceedings implicated

the exercise of his constitutional right to petition the government in connec-

tion with a matter of public concern, the allegations of the complaint having

sufficiently implicated potential and significant issues regarding the hiring

practices within a governmental entity.

The plaintiffs could not demonstrate probable cause that they would have

prevailed on their claims of statutory or common-law vexatious litigation

to the extent that those counts were based on the union grievance proceed-

ings and, therefore, the special motion to dismiss should have been granted

as to those counts.

The trial court properly denied the special motion to dismiss with respect

to the defendant’s efforts to obtain a civil protection order, the defendant’s

conduct having arisen out of a wholly private dispute between the parties

that did not have any appreciable connection to a matter of public concern,

thus falling outside the ambit of § 52-196a and its intended protections.

* In accordance with federal law; see 18 U.S.C. § 2265 (d) (3) (2018), as

amended by the Violence Against Women Act Reauthorization Act of 2022,

Pub. L. No. 117-103, § 106, 136 Stat. 49, 851; we decline to identify any person

protected or sought to be protected under a protection order, protective

order, or a restraining order that was issued or applied for, or others through

whom that person’s identity may be ascertained.

0, 0 CONNECTICUT LAW JOURNAL Page 1

0 Conn. App. 1 ,0 3

Robinson v. V. D.

Contrary to the plaintiffs’ alternative ground for affirming the trial court’s

decision, § 52-196a did not, on its face or as applied, violate the plaintiffs’

constitutional right to a jury trial under either the federal or state constitu-

tions, as § 52-196a does not require trial courts to resolve disputed issues

of fact or to dismiss claims that otherwise would have survived summary

judgment or a motion for a directed verdict.

The plaintiffs failed to establish beyond a reasonable doubt that either prong

of the separation of powers doctrine set forth in the state constitution was

implicated by § 52-196a.

Argued March 4—officially released November 26, 2024

Procedural History

Action for, inter alia, defamation, and for other relief,

brought to the Superior Court in the judicial district of

New London, where the court, Knox, J., denied the

defendant’s special motion to dismiss, and the defen-

dant appealed to this court. Reversed in part; further

proceedings.

Jon L. Schoenhorn, with whom, on the brief, was

Sebastian Ullman, certified legal intern, for the appel-

lant (defendant).

Michael P. Carey, for the appellees (plaintiffs).

Daniel E. Livingston and Mary E. Kelly filed a brief

for the Connecticut AFL-CIO as amicus curiae.

Opinion

WESTBROOK, J. The defendant, V. D., appeals from

the judgment of the trial court denying his special

motion to dismiss the underlying civil action pursuant

to General Statutes § 52-196a,1 our state’s anti-SLAPP

1

General Statutes § 52-196a provides in relevant part: ‘‘(b) In any civil

action in which a party files a complaint . . . against an opposing party

that is based on the opposing party’s exercise of its right of free speech, right

to petition the government, or right of association under the Constitution

of the United States or the Constitution of the state in connection with a

matter of public concern, such opposing party may file a special motion to

dismiss the complaint . . . .

***

‘‘[e] (3) The court shall grant a special motion to dismiss if the moving

party makes an initial showing, by a preponderance of the evidence, that

the opposing party’s complaint . . . is based on the moving party’s exercise

Page 2 CONNECTICUT LAW JOURNAL 0, 0

4 ,0 0 Conn. App. 1

Robinson v. V. D.

statute. The civil action filed by the plaintiffs, Michael

2

Robinson and Mary Robinson, seeks compensatory

damages and injunctive relief for defamation, invasion

of privacy by false light, statutory and common-law

vexatious litigation, and intentional and negligent inflic-

tion of emotional distress. The defendant claims that

(1) the court improperly denied his special motion to

dismiss the action on the ground that his alleged con-

duct did not relate to an exercise of a protected right

in connection with a matter of public concern and, thus,

fell outside the scope of § 52-196a,3 and, (2) even if he

is not entitled to a dismissal of the action pursuant to

§ 52-196a, the trial court lacks subject matter jurisdic-

tion over this action because the defendant is entitled

to absolute immunity under the litigation privilege for

his alleged conduct, all of which occurred in the course

of judicial or quasi-judicial proceedings. In addition to

of its right of free speech, right to petition the government, or right of

association under the Constitution of the United States or the Constitution

of the state in connection with a matter of public concern, unless the party

that brought the complaint . . . sets forth with particularity the circum-

stances giving rise to the complaint . . . and demonstrates to the court

that there is probable cause, considering all valid defenses, that the party

will prevail on the merits of the complaint . . . .

***

‘‘(h) The provisions of this section shall not . . . (3) affect, limit or pre-

clude the right of a party filing a special motion to dismiss to any defense,

remedy, immunity or privilege otherwise authorized by law . . . .’’

2

‘‘SLAPP is an acronym for strategic lawsuit against public participation,

the distinctive elements of [which] are (1) a civil complaint (2) filed against

a nongovernment individual (3) because of their communications to govern-

ment bodies (4) that involves a substantive issue of some public concern.

. . . The purpose of a SLAPP suit is to punish and intimidate citizens who

petition state agencies and have the ultimate effect of chilling any such

action.’’ (Internal quotation marks omitted.) Lafferty v. Jones, 336 Conn.

332, 337 n.4, 246 A.3d 429 (2020), cert. denied, U.S. , 141 S. Ct. 2467,

209 L. Ed. 2d 529 (2021).

3

The Connecticut AFL-CIO filed an amicus curiae brief in support of the

defendant’s contention that the court improperly denied his special motion

to dismiss. It argues that protecting public employees against retaliatory

lawsuits for exercising their right to engage in mandatory union grievance

procedures is precisely the type of ill that § 52-196a was designed to prevent.

0, 0 CONNECTICUT LAW JOURNAL Page 3

0 Conn. App. 1 ,0 5

Robinson v. V. D.

disputing the defendant’s claims, the plaintiffs raise as

an alternative ground for affirming the denial of the

special motion to dismiss that § 52-196a violates both

the state and federal constitutions.4 We conclude that

the question of whether the plaintiffs’ action is barred

by absolute immunity under the litigation privilege

implicates the trial court’s subject matter jurisdiction

and, thus, must be considered prior to addressing the

merits of the special motion to dismiss. We agree with

the defendant that, with the exception of those counts

sounding in vexatious litigation, the complaint is barred

by absolute immunity. With respect to the remaining

vexatious litigation counts, we affirm in part and reverse

in part the court’s decision to deny the special motion

to dismiss, we reject the plaintiffs’ alternative ground

for affirmance, and we remand the matter for further

proceedings in accordance with this opinion.

The following relevant facts and procedural history,

which are undisputed for purposes of this appeal, were

set forth by our Supreme Court in its earlier opinion

in this matter.5 See Robinson v. V. D., 346 Conn. 1002,

4

The plaintiffs argue that § 52-196a is unconstitutional for multiple rea-

sons. First, both facially and as applied, it deprives them of their state and

federal constitutional rights to a jury trial and to petition for grievances.

See Conn. Const., art. I, §§ 6, 10, and 19; U.S. Const., amend. I. Second, they

argue that the statute violates the separation of legislative and judicial

powers as set forth in article second and article fifth, § 1, of the constitution

of Connecticut.

5

Our Supreme Court previously transferred this appeal to itself, pursuant

to Practice Book § 65-1, in order to adjudicate the plaintiffs’ pending motion

to dismiss the appeal for lack of a final judgment. See Robinson v. V. D.,

346 Conn. 1002, 1003 n.3, 293 A.3d 345 (2023). Our Supreme Court denied

the motion to dismiss, concluding that a trial court’s denial of a § 52-196a

special motion to dismiss that raises a colorable claim under our anti-SLAPP

statute is an immediately appealable final judgment under the second prong

of the test annunciated in State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566

(1983). See Robinson v. V. D., supra, 1004. After concluding on the basis

of its review of the record that the defendant had presented a colorable

claim, it transferred the appeal back to this court for further proceedings

on the merits of the appeal. Id., 1011.

Page 4 CONNECTICUT LAW JOURNAL 0, 0

6 ,0 0 Conn. App. 1

Robinson v. V. D.

1004–1007, 293 A.3d 345 (2023). ‘‘The parties are civilian

employees of the United States Coast Guard (Coast

Guard). Michael Robinson works as a locksmith at the

United States Coast Guard Academy in New London

(academy) and previously served as an assistant coach

for the academy’s skeet shooting team. Mary Robinson

works as a human resources specialist at the Coast

Guard headquarters. The defendant is employed as a

carpenter/mason at the academy and, in 2019, was tem-

porarily promoted to the new position of construction

control inspector.

‘‘In late 2019 or early 2020, after applying for the full-

time, permanent construction control inspector posi-

tion, the defendant was informed that he had not been

selected for the position. The defendant then resumed

his job as a carpenter/mason. Thereafter, the defendant

filed a formal, written grievance through his union rep-

resentative [in which he] alleged that the plaintiffs were

involved in a quid pro quo arrangement with the candi-

date selected for the position and the official who had

selected the candidate. The defendant also alleged that

he was denied the position, in part, because of his

known affiliation with the union . . . . A hearing took

place, at which, the plaintiffs contend, the defendant

made certain statements consistent with the allegations

in the written grievance. Administrative officials with

the Coast Guard subsequently investigated both of the

plaintiffs and cleared them of any wrongdoing.

‘‘Thereafter, in June, 2020, the parties attended a com-

petitive shooting event at a gun club in Burrillville,

Rhode Island. After the event was over, Michael Rob-

inson and the defendant had a verbal altercation in

the parking lot, during which they exchanged certain

insults. Thereafter, the defendant served an application

for a [civil protection] order on Michael Robinson. A

hearing took place in the Superior Court, which dis-

missed the application.

0, 0 CONNECTICUT LAW JOURNAL Page 5

0 Conn. App. 1 ,0 7

Robinson v. V. D.

‘‘In December, 2020, the plaintiffs filed the present

action against the defendant, alleging in their complaint

that the defendant made false accusations against them

on numerous occasions, namely, in the union grievance,

during the proceedings which resulted from it, in the

application for the [civil protection] order, and during

the hearing that took place in the Superior Court on

the [civil protection] order application. . . .

‘‘In January, 2021, the defendant filed a special motion

to dismiss, pursuant to § 52-196a, arguing that the plain-

tiffs’ allegations in this action arose from the exercise

of his rights of free speech, to petition the government,

and to associate as a member of a labor union under

the Connecticut constitution and the first amendment

to the United States constitution. The defendant also

alleged, among other defenses, that the plaintiffs’ action

violated public policy and that his statements were

immune from the defamation claims, as they arose dur-

ing judicial or quasi-judicial proceedings.

‘‘The plaintiffs opposed the motion, and, following a

hearing, the trial court denied the special motion to

dismiss. The court found that the defendant’s conduct

as alleged in the complaint was not protected under

§ 52-196a because it addressed private concerns, rather

than a matter of public concern, as defined in subsec-

tion (a) (1) of the statute. The court further concluded

that the defendant’s conduct during the work-related

grievance process was personal in nature because it

related to his employer’s denial of the defendant’s pro-

motion and did not address the general practices of

the employer. As such, the court determined that the

defendant’s conduct during that process was not related

to a matter of public concern under the government,

zoning and other regulatory matters category of the

definition [of a matter of public concern found in § 52-

196a (a) (1) (C)]. . . . In addition, the trial court found

that the defendant’s actions did not relate to a matter

Page 6 CONNECTICUT LAW JOURNAL 0, 0

8 ,0 0 Conn. App. 1

Robinson v. V. D.

of public concern under the public official or public

figure category [of § 52-196a (a) (1) (D)] because the

defendant had failed to establish that the plaintiffs’ posi-

tions gave them substantial control or responsibility

over governmental affairs or that there was a significant

public interest in either position that went beyond the

general interest in all public sector employees. Accord-

ingly, the court concluded that the defendant had failed

to meet his burden of showing, by a preponderance of

evidence, that the complaint was based on the exercise

of his right of free speech, to petition the government, or

of association.’’ (Footnotes omitted; internal quotation

marks omitted.) Id., 1004–1007.

The defendant appealed from the trial court’s deci-

sion to this court, following which the plaintiffs filed a

motion to dismiss the appeal for lack of a final judgment.

The defendant then moved to stay proceedings until

our Supreme Court issued a decision in Pryor v. Brig-

nole, 346 Conn. 534, 292 A.3d 701 (2023), in which the

parties also had raised the issue of whether an appeal

from the denial of a § 52-196a special motion to dismiss

is an appealable final judgment. Id., 536–37. This court

granted the defendant’s motion for a stay on September

29, 2021, and deferred ruling on the plaintiffs’ motion

to dismiss. In July, 2022, pursuant to Practice Book

§ 65-1, our Supreme Court transferred this appeal to

itself and ordered the parties to file appellate briefs

addressing only the threshold jurisdictional issue.

On May 2, 2023, our Supreme Court released its deci-

sion in Smith v. Supple, 346 Conn. 928, 293 A.3d 851

(2023), in which it held that the denial of a special

motion to dismiss that raises a colorable claim to the

anti-SLAPP protections of § 52-196a is an immediately

appealable final judgment. Id., 964. That same day, the

court also released its decisions in Pryor v. Brignole,

supra, 346 Conn. 534, and in the present appeal.

0, 0 CONNECTICUT LAW JOURNAL Page 7

0 Conn. App. 1 ,0 9

Robinson v. V. D.

With respect to the present matter, our Supreme

Court concluded that the defendant ‘‘has asserted a

colorable claim that at least some of the statements

forming the basis of the plaintiffs’ complaint were based

on the defendant’s exercise of his right to petition the

government, as contemplated by the anti-SLAPP stat-

ute. Right to petition the government is defined in rele-

vant part as communication in connection with an issue

under consideration or review by a legislative, execu-

tive, administrative, judicial or other governmental

body. . . . General Statutes § 52-196 (a) (3) (A). A

party seeking protection under the statute must show,

by a preponderance of the evidence, that the exercise

of that right is in connection with a matter of public

concern, as defined in § 52-196a (a) (1). . . . Courts

have found that mixed questions of private and public

concerns may be protected under the first amendment

and that the fact that a statement evolves from a per-

sonal dispute does not preclude some aspect of it from

touching [on] matters of public concern. . . .

‘‘The defendant presented evidence before the trial

court that his actions related to a matter of public con-

cern because they (1) arose from a collective bargaining

agreement between the Coast Guard and the American

Federation of Government Employees, Council 120, to

which the defendant belongs, and (2) related to impro-

prieties in the hiring process at the academy that went

beyond his own personal position, specifically, that

Coast Guard hiring officials disfavor persons with a

union affiliation when hiring.’’ (Citation omitted; inter-

nal quotation marks omitted.) Robinson v. V. D., supra,

346 Conn. 1008–1009.

Our Supreme Court concluded on the basis of its

review of the record and the plain meaning of right to

petition the government that ‘‘the defendant has at least

Page 8 CONNECTICUT LAW JOURNAL 0, 0

10 ,0 0 Conn. App. 1

Robinson v. V. D.

a superficially well founded claim that some of his state-

ments, particularly those relating to the grievance pro-

cess, qualify as communications relating to an issue

under consideration by a governmental body, namely,

the Coast Guard. . . . In addition, the defendant has

asserted a colorable claim that his statements during the

grievance process relate to a matter of public concern.

Although these statements evolved from a personal dis-

pute between the parties, the statements could conceiv-

ably be of concern to the general public because the

allegations related to hiring practices within a govern-

mental entity. In particular, the defendant’s speech

touches on the possible existence of anti-union senti-

ment within the academy and quid pro quo arrange-

ments between management officials as it relates to

hiring. Therefore, the defendant has at least a superfi-

cially well founded claim that his conduct concerns not

only him, but others at the academy and the general

community at large.’’ (Citations omitted; internal quota-

tion marks omitted.) Id., 1009–10.

Having determined that the appeal was taken from

an appealable final judgment, our Supreme Court trans-

ferred the appeal back to this court pursuant to Practice

Book § 65-1 ‘‘for further proceedings according to law.’’6

Id., 1011. Additional facts will be set forth as necessary.

I

The defendant claims that the underlying action is

barred by absolute immunity under the litigation privi-

lege because all the relevant conduct alleged in the

underlying complaint occurred during the course of

judicial or quasi-judicial proceedings. Although the

defendant raised the issue of absolute immunity in his

6

In accordance with the Supreme Court’s decision and remand order, the

Office of the Appellate Clerk issued a letter to the parties informing them

that the appeal had been assigned a new docket number and setting a

schedule for filing briefs on the merits of the appeal.

0, 0 CONNECTICUT LAW JOURNAL Page 9

0 Conn. App. 1 ,0 11

Robinson v. V. D.

special motion to dismiss, the trial court declined to

address it.7 Ordinarily, ‘‘[o]nly in [the] most exceptional

circumstances can and will [an appellate] court con-

sider a claim, constitutional or otherwise, that has not

been raised and decided in the trial court. . . . A claim

that a court lacks subject matter jurisdiction, however,

may be raised at any time during the proceedings,

including for the first time on appeal.’’ (Citations omit-

ted; emphasis added; footnote omitted; internal quota-

tion marks omitted.) Mangiafico v. Farmington, 331

Conn. 404, 429–30, 204 A.3d 1138 (2019). Because the

defendant’s absolute immunity claim implicates the trial

7

The court reasoned that, despite the defendant having expressly stated

in the opening paragraph of his special motion to dismiss that the motion

was brought ‘‘[p]ursuant to Practice Book §§ 10-6 and 10-30, and [General

Statutes] § 52-196a,’’ he had failed expressly to request that the court treat

his motion as ‘‘a hybrid motion, combining a special motion to dismiss

with a standard motion to dismiss.’’ The court further indicated that other

Superior Court decisions had expressed a general disfavor for hybrid

motions, albeit in other contexts, because our rules of practice do not

expressly authorize them. The court concluded: ‘‘Given the expedited time

requirements pertaining to a statutory special motion to dismiss, the limited

inquiry of a special motion to dismiss, and the defendant’s failure to cogently

argue that his motion incorporated a Practice Book § 10-30 motion to dis-

miss, the court will not recognize this special motion to dismiss as a hybrid

motion nor entertain it as one.’’ Although a court certainly has ‘‘broad

discretion to manage its docket and resolve cases as it sees fit’’; M. B. v.

S. A., 194 Conn. App. 727, 735, 222 A.3d 551 (2019); which arguably would

include the discretion to reject a so-called hybrid motion, it is axiomatic

that questions pertaining to the subject matter jurisdiction of the court ‘‘may

be raised at any time and by any party . . . and that [o]nce . . . raised,

[the challenge] must be disposed of no matter in what form it is presented.’’

(Citations omitted; emphasis added; internal quotation marks omitted.)

Oxford House at Yale v. Gilligan, 125 Conn. App. 464, 473, 10 A.3d 52 (2010).

Moreover, § 52-196a (h) expressly provides that a party’s use of the statute

‘‘shall not . . . (3) affect, limit or preclude the right of a party filing a special

motion to dismiss to any defense, remedy, immunity or privilege otherwise

authorized by law . . . .’’ (Emphasis added.) Nevertheless, the defendant

has not raised the trial court’s failure to address his absolute immunity

claim as a claim of error on appeal. Instead, he raises the issue as a matter

for this court to decide in the first instance, and, thus, we do not reach

whether the trial court abused its discretion by failing to consider the issue

when raised.

Page 10 CONNECTICUT LAW JOURNAL 0, 0

12 ,0 0 Conn. App. 1

Robinson v. V. D.

court’s subject matter jurisdiction, it presents a thresh-

old issue that we must address before turning to the

merits of the special motion to dismiss.8 See Bruno v.

Travelers Cos., 172 Conn. App. 717, 719, 161 A.3d 630

(2017) (‘‘litigation privilege provides an absolute immu-

nity from suit and, thus, implicates the trial court’s

subject matter jurisdiction’’);9 see also American Tax

Funding, LLC v. Design Land Developers of Newtown,

Inc., 200 Conn. App. 837, 844, 240 A.3d 678 (2020) (‘‘sub-

ject matter jurisdiction . . . is a threshold matter that

must be resolved first’’).

We begin by setting forth the appropriate legal stan-

dard and relevant principles of law. ‘‘When a . . . court

decides a jurisdictional question raised by a pretrial

motion to dismiss, it . . . [ordinarily] must take the

facts to be those alleged in the complaint, including

those facts necessarily implied from the allegations,

construing them in a manner most favorable to the

8

‘‘A special motion to dismiss filed pursuant to § 52-196a . . . is not a

traditional motion to dismiss based on a jurisdictional ground. It is, instead,

a truncated evidentiary procedure enacted by our legislature in order to

achieve a legitimate policy objective, namely, to provide for a prompt rem-

edy. . . . It is, in this respect, similar to a motion for summary judgment.’’

(Citation omitted.) Elder v. Kauffman, 204 Conn. App. 818, 824, 254 A.3d

1001 (2021). In other words, a special motion to dismiss pursuant to § 52-

196a does not itself implicate a trial court’s subject matter jurisdiction.

9

Courts have deemed that certain claims of immunity, such as sovereign

immunity, implicate a court’s subject matter jurisdiction and, thus, properly

are raised by way of a motion to dismiss. See Carrubba v. Moskowitz, 81

Conn. App. 382, 398, 840 A.2d 557 (2004), aff’d, 274 Conn. 533, 877 A.2d 773

(2005). Other immunities and privileges, however, such as qualified quasi-

judicial immunity and governmental immunity, have been held not to impli-

cate a court’s subject matter jurisdiction and, thus, more appropriately are

raised as a special defense and subsequently tested via a motion to strike

or a motion for summary judgment. Id., 398–99. Our Supreme Court has

stated that absolute immunity serves a similar purpose as ‘‘the sovereign

immunity enjoyed by the state.’’ Chadha v. Charlotte Hungerford Hospital,

272 Conn. 776, 787, 865 A.2d 1163 (2005). Accordingly, absolute immunity

under the litigation privilege, like sovereign immunity, implicates subject

matter jurisdiction.

0, 0 CONNECTICUT LAW JOURNAL Page 11

0 Conn. App. 1 ,0 13

Robinson v. V. D.

pleader. . . . When deciding whether the [litigation]

10

privilege applies, every presumption in favor of the

court’s jurisdiction should be indulged.’’ (Citations

omitted; footnote added; internal quotations marks

omitted.) Deutsche Bank AG v. Vik, 349 Conn. 120,

136–37, 314 A.3d 583 (2024).

Courts often have used the terms absolute immunity

and litigation privilege interchangeably. See Tyler v.

Tatoian, 164 Conn. App. 82, 83 n.1, 137 A.3d 801, cert.

denied, 321 Conn. 908, 135 A.3d 710 (2016). ‘‘The litiga-

tion privilege 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. . . . The privilege . . . applies to every

step of the proceeding until [its] final disposition . . .

including to statements made in pleadings or other doc-

uments prepared in connection with [the] proceeding.

. . . The privilege originated in response to the need

to bar persons accused of crimes from suing their accus-

ers for defamation. . . . [It] then developed to encom-

pass and bar defamation claims against all participants

in judicial proceedings, including judges, attorneys, par-

ties, and witnesses. . . . Subsequently, the privilege

was expanded to bar a variety of retaliatory civil claims

arising from communications or communicative acts

10

As explained in more detail by our Supreme Court in Conboy v. State,

292 Conn. 642, 650, 974 A.2d 669 (2009), ‘‘[t]rial courts addressing motions to

dismiss for lack of subject matter jurisdiction . . . may encounter different

situations, depending on the status of the record in the case.’’ The court in

Conboy agreed with analogous federal jurisprudence that ‘‘[l]ack of subject

matter jurisdiction may be found in any one of three instances: (1) the

complaint alone; (2) the complaint supplemented by undisputed facts evi-

denced in the record; or (3) the complaint supplemented by undisputed

facts plus the court’s resolution of disputed facts.’’ Id., 651. In the present

case, neither party has asserted that the absolute immunity issue requires

resolution of any disputed jurisdictional facts. Accordingly, we can resolve

the question of subject matter jurisdiction on the basis of the allegations in

the complaint and those facts that are undisputed as evidenced in the record.

Page 12 CONNECTICUT LAW JOURNAL 0, 0

14 ,0 0 Conn. App. 1

Robinson v. V. D.

occurring in the course of a judicial or quasi-judicial

proceeding, including, but not limited to, claims for

tortious interference, intentional infliction of emotional

distress, fraud, and violations of [the Connecticut Unfair

Trade Practices Act (CUTPA), General Statutes § 42-

110a et seq.]. . . .

‘‘The policy underlying the [litigation] 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. . . . Participants in a judicial

process must be able to testify or otherwise take part

without being hampered by fear of defamation [or other

retaliatory litigation]. . . . [In] determining whether a

statement is made in the course of a judicial proceeding

. . . the court must decide as a matter of law whether

the [alleged statement is] sufficiently relevant to the

issues involved in . . . [the] proceeding, so as to qual-

ify for the privilege. . . . The test for relevancy is gen-

erous, and judicial proceeding has been defined liber-

ally to encompass much more than civil litigation or

criminal trials.’’ (Citations omitted; internal quotation

marks omitted.) Deutsche Bank AG v. Vik, supra, 349

Conn. 137–38.

In deciding whether a person is entitled to absolute

immunity under the litigation privilege, ‘‘[courts] must

first determine whether the proceedings [in question]

were [judicial or quasi-judicial] in nature. The judicial

proceeding to which [absolute] 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 extends also to the proceedings of many

administrative officers, such as boards and commis-

sions, so far as they have powers of discretion in

applying the law to the facts which are regarded as

judicial or quasi-judicial, in character.’’ (Emphasis

0, 0 CONNECTICUT LAW JOURNAL Page 13

0 Conn. App. 1 ,0 15

Robinson v. V. D.

added; internal quotation marks omitted.) Kruger v.

Grauer, 173 Conn. App. 539, 547–48, 164 A.3d 764, cert.

denied, 327 Conn. 901, 169 A.3d 795 (2017).

In addition to the application of law to fact require-

ment, our Supreme Court has identified additional fac-

tors for courts to consider in determining whether a

proceeding is quasi-judicial in nature. These factors

include whether the body conducting the proceeding

has 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) exam-

ine witnesses and hear the litigation of the issues on a

hearing; and (6) enforce decisions or impose penalties.

. . . These factors are not exclusive; nor must all fac-

tors militate in favor of a determination that a proceed-

ing is quasi-judicial in nature for a court to conclude

that the proceeding is, in fact, quasi-judicial. . . .

[T]hese factors are [i]n addition to, not in lieu of, the

application of the law to fact requirement.’’ (Citations

omitted; internal quotation marks omitted.) Priore v.

Haig, 344 Conn. 636, 648, 280 A.3d 402 (2022). It is also

important for courts ‘‘to consider whether there is a

sound public policy reason for permitting the complete

freedom of expression that a grant of absolute immunity

provides.’’ (Internal quotation marks omitted.) Id., 652.

Our Supreme Court recently summarized that a pro-

ceeding will only be considered quasi-judicial if ‘‘the

proceeding at issue is specifically authorized by law,

applies law to fact in an adjudicatory manner, contains

adequate procedural safeguards, and is supported by a

public policy encouraging absolute immunity for pro-

ceeding participants.’’ Khan v. Yale University, 347

Conn. 1, 10, 295 A.3d 855 (2023). Accordingly, ‘‘whether

a particular proceeding is quasi-judicial in nature, for

the purposes of triggering absolute immunity, will

Page 14 CONNECTICUT LAW JOURNAL 0, 0

16 ,0 0 Conn. App. 1

Robinson v. V. D.

depend on the particular facts and circumstances of

each case.’’ Priore v. Haig, supra, 344 Conn. 645.

In the present case, the alleged conduct of the defen-

dant occurred in connection with two separate and

distinct proceedings: (1) the filing and pursuit of a union

grievance and (2) the filing and pursuit of an application

for a civil protection order. With respect to the griev-

ance proceedings, the plaintiffs allege in the underlying

complaint that the defendant made a number of false

accusations against them, both in the written grievance

complaint and in oral statements made during the griev-

ance hearing. Specifically, the complaint provides that

the defendant asserted that the plaintiffs had used their

positions within the Coast Guard to influence the hiring

process, including by engaging in an improper quid pro

quo with Coast Guard officials and the person who

eventually was hired for the permanent promotion

sought by the defendant.11 With respect to the civil pro-

tection order proceedings, which arose out of the par-

ties’ altercation at the gun show, the complaint alleges

11

Paragraphs nine and ten of the complaint contain the following recitation

of the defendant’s alleged offensive conduct during the course of the griev-

ance proceedings: the defendant ‘‘falsely alleged that [the plaintiffs], through

their alleged conduct in the hiring process for the construction control

inspector position, had violated merit system principles (‘MSP’) because

there had been a ‘quid pro quo’ arrangement between the selecting official

and the successful applicant (‘JW’) in which Mary Robinson, using her

position as [a human resources] specialist, in some way participated. . . .

‘‘[T]he defendant also falsely alleged that: a. Michael Robinson was part

of the alleged conspiracy; b. JW is the best childhood friend of one of the

Robinsons’ sons; c. The hiring official was pressured into selecting JW acting

against his better judgment; d. Mary Robinson had the means to and may

have inappropriately influenced the referral lists used to select a candidate,

and covered her tracks with various deceptions; e. Michael Robinson said

that he would lie to protect Mary Robinson because she could get in a lot

of trouble; f. Veterans’ preference laws were violated; g. JW was unfairly

advanced through the quid pro quo arrangement and his personal relation-

ship with [human resources] officials, while [the defendant] was unfairly

treated because of his known affiliation with the union; h. Management

favors persons who do not affiliate with the union; i. Mary Robinson threat-

ened to investigate anyone who organized or helped the union to organize;

j. An insinuation that wrongdoing led to a change in Mary Robinson’s scope

0, 0 CONNECTICUT LAW JOURNAL Page 15

0 Conn. App. 1 ,0 17

Robinson v. V. D.

that the defendant made several false allegations and

statements regarding the plaintiffs, both in his applica-

tion for a civil protection order and during the subse-

quent hearing on the application before the Superior

Court.12 Having considered all relevant factors, we are

of work circa 2010 when it was determined that Michael Robinson’s position

as [National Association of Government Employees] union steward, which

he had just obtained at that time, raised an appearance of potential conflicts

of interest, and an assertion that both Robinsons were accused of unfair

labor practices based on this situation; k. Mary Robinson had exerted inap-

propriate control over hiring at the academy for years; l. Mary Robinson

received the ‘report of hire’ of JW although she should not have had access

to it; m. Michael Robinson, acting on his own behalf and on behalf of Mary

Robinson, relentlessly harassed and threatened [the defendant] about the

grievance; n. Mary Robinson cut another employee ‘out of the loop’ on the

JW hiring process; o. Mary Robinson ‘helped’ JW with his resume for the

job posting but did not help anyone else; p. Michael Robinson encouraged

[the defendant] not to post for the open position because Mary Robinson

could get him a supervisory job; q. Michael Robinson made ‘continual transits

to and from [Mary Robinson’s] office with reports about [the defendant];

and r. Michael Robinson threatened and harassed [the defendant] about

filing the grievance.’’

12

Paragraphs twenty-five through twenty-seven of the complaint contain

the following recitation of the defendant’s alleged conduct as it relates to

the civil protection order: In the civil protection order application, the

defendant ‘‘falsely claimed that he was unsafe at work because Michael

Robinson had followed and threatened him at work . . . [and] that he was

in imminent danger. . . . [The defendant] falsely accused Michael Robinson

of having ‘laid in wait [for him at the gun show] in attempt to threaten and

harass [him]. . .’; of stalking him at work several times and threatening him

about the [union grievance]; kicking at and attempting to take the trailer

hitch from his vehicle; backing into his vehicle; continuing ‘to come at’ him

as he was walking to his vehicle and that another club member had to

physically restrain him; and threatened his job.’’ At the contested hearing

on the civil protection order application, the defendant testified that ‘‘a. He

had told his supervisor at the academy that Michael Robinson had stalked

and harassed him at work; b. Michael Robinson tried to remove his trailer

hitch from and was kicking his vehicle after the [gun show]; c. Michael

Robinson carries a concealed weapon, implying that he was carrying a

weapon during the [gun show] incident . . . and that he would present a

danger if he were carrying one . . . d. Michael Robinson kicked open the

door of his own vehicle and ‘came at’ [the defendant]; e. (Implied that) his

[fourteen] year old son was in danger on account of Michael Robinson’s

behavior after the [gun show], and that he and his family generally were

unsafe when Michael Robinson was around; f. (Via a recording) said loudly

Page 16 CONNECTICUT LAW JOURNAL 0, 0

18 ,0 0 Conn. App. 1

Robinson v. V. D.

persuaded that both the union grievance proceedings

and the proceeding on the civil protection order applica-

tion qualify as either a judicial or quasi-judicial proceed-

ing, and, accordingly, any pertinent statements made

within the context of those proceedings should be

afforded absolute immunity under the litigation privi-

lege.

First, we conclude that the union grievance proceed-

ings are quasi-judicial in nature for purposes of applying

absolute immunity. In Preston v. O’Rourke, 74 Conn.

App. 301, 314 n.6, 811 A.2d 753 (2002), this court recog-

nized and resolved a split in authority over ‘‘whether

communications made in the course of grievance or

arbitration proceedings provided for by collective bar-

gaining agreements should be accorded absolute . . .

immunity.’’ The court concluded that the ‘‘better result

is the protection of absolute immunity.’’ Id. That deter-

mination is consistent with our Supreme Court’s subse-

quent decision in Craig v. Stafford Construction, Inc.,

271 Conn. 78, 80–81, 93, 856 A.2d 372 (2004), in which

it held that an investigation conducted by the internal

affairs division of the city of Hartford’s police depart-

ment constituted a quasi-judicial proceeding for the

purpose of affording absolute immunity to the citizen

whose claim of racial bias had given rise to the investiga-

tion. Although the court in Craig recognized ‘‘the debili-

tating affect that a false allegation of racial discrimina-

tion can have on a police officer’’; id., 95; it nonetheless

enough to be heard by several people that Michael Robinson is ‘crazy,’ has

‘mental health issues,’ should go see his doctor, and should ‘go get the help

you need, bud’; g. Michael Robinson threatened him with force; h. Michael

Robinson had damaged [the defendant’s] vehicle, but then admitted there

was no damage to either vehicle . . . i. The plaintiffs threatened his job,

threatened his livelihood, and ‘knowing that, you know, [Mary Robinson]

is in [human resources], and that he has this information, and I’m done

when I get back to the Coast Guard. I don’t feel safe’; and j. (implied that)

one or both of the plaintiffs committed perjury during the hearing, asking

Mary Robinson whether she thought it was ‘appropriate to not tell the truth

in court?’ ’’

0, 0 CONNECTICUT LAW JOURNAL Page 17

0 Conn. App. 1 ,0 19

Robinson v. V. D.

concluded ‘‘that the policy of encouraging citizen com-

plaints against those people who wield extraordinary

power within the community outweighs the need to

protect the reputation of the police officer against

whom the complaint is made.’’ Id., 96.

Here, as was the case in Craig, the Coast Guard

officials who heard the union grievance may not have

possessed all of the aforementioned enumerated pow-

ers that we look to in determining whether proceedings

are quasi-judicial. See Priore v. Haig, supra, 344 Conn.

648. Such deficit is not dispositive, however, of whether

the proceeding was quasi-judicial in nature. Rather, we

look to the overall facts and circumstances in making

our determination.

The defendant was a federal employee and a member

of a collective bargaining unit, and he initiated a formal

grievance process as set forth in the relevant collective

bargaining agreement. The matter was then adjudicated

by Coast Guard administrative officials, who ascer-

tained and evaluated the relevant facts and exercised

judgment and discretion in applying all relevant rules,

regulations and procedures applicable to the union

grievance process. See, e.g., 5 U.S.C. § 7121 (setting

forth minimum requirements for grievance procedures

in collective bargaining agreements governed by federal

labor relations statutes). The officials’ resolution of the

grievance had the potential to impact not only the

employment status and other rights of the defendant as

the complainant but potentially those of the plaintiffs,

other Coast Guard personnel engaged in the hiring pro-

cess, and the recipient of the job sought by the defen-

dant. Accordingly, we perceive nothing of import in the

present case that warrants treating the union grievance

proceedings differently than the proceedings at issue

in Craig or Preston. Moreover, as a matter of sound

policy, extending absolute immunity to the union griev-

ance proceedings helps to alleviate any possible chilling

Page 18 CONNECTICUT LAW JOURNAL 0, 0

20 ,0 0 Conn. App. 1

Robinson v. V. D.

effect on employees who may have good faith criticisms

regarding the hiring practices of powerful government

agencies like the Coast Guard. In short, we are per-

suaded that the union grievance proceedings at issue

were quasi-judicial in nature.

Very little additional discussion is warranted as to

whether the proceeding pertaining to the application

for a civil protection order was a judicial proceeding

for purposes of absolute immunity. The filing of the

application initiated an action in the Superior Court that

resulted in a hearing at which a judge heard testimony,

ascertained the relevant facts, and exercised judgment

and discretion in applying the relevant law. The decision

on the application potentially affected the personal

rights of the parties. Applications for civil protection

orders will often involve the disclosure of highly per-

sonal and potentially unfavorable information that is

highly pertinent to the order being sought. Sound public

policy favors granting absolute immunity in this context

so that parties seeking the court’s protection will not

be chilled from bringing these matters to the attention

of the court for fear of subsequent civil litigation.

Having reviewed the allegations set forth in the com-

plaint; see footnotes 11 and 12 of this opinion; we con-

clude that the written statements and/or factual asser-

tions that the defendant allegedly made regarding the

plaintiffs in his grievance application and in the applica-

tion seeking a civil protection order, as well as any

oral statements or testimony made during the hearings

before the Superior Court or the Coast Guard adminis-

trative officials, qualify as statements made during the

course of a judicial or quasi-judicial proceeding. Specifi-

cally, the subject matter of the alleged statements and

assertions—irrespective of their veracity or any ill

intent on the part of the defendant—all directly related

either to the defendant’s purported rationale for bring-

ing his union grievance or for seeking a civil protection

0, 0 CONNECTICUT LAW JOURNAL Page 19

0 Conn. App. 1 ,0 21

Robinson v. V. D.

order. In other words, all statements were pertinent to

the subject matter of the grievance or protection order

proceedings such that they qualify for absolute immu-

nity under the litigation privilege.

As previously noted, absolute immunity pursuant to

the litigation privilege bars not only actions for defama-

tion but a variety of legal theories or causes of actions

that similarly may be construed as retaliatory on the

basis of written and oral statements made during the

course of a judicial or quasi-judicial proceeding. See

Deutsche Bank AG v. Vik, supra, 349 Conn. 137–38.

Thus, absolute immunity bars not only the plaintiffs’

defamation count but also those counts of the plaintiffs’

complaint sounding in invasion of privacy by false light

and intentional and negligent infliction of emotional

distress. See Dorfman v. Smith, 342 Conn. 582, 612–13,

271 A.3d 53 (2022) (litigation privilege bars negligent

infliction of emotional distress claim); Simms v. Sea-

man, 308 Conn. 523, 569, 69 A.3d 880 (2013) (claim of

intentional infliction of emotional distress is subject to

litigation privilege); Tucker v. Bitonti, 34 Conn. Supp.

643, 647, 382 A.2d 841 (App. Sess. 1977) (absolute immu-

nity bars claim of invasion of privacy if challenged con-

duct occurred in course of judicial proceedings).

We nevertheless agree with the plaintiffs that, in

accordance with our Supreme Court’s holding in Rioux

v. Barry, 283 Conn. 338, 927 A.2d 304 (2007), absolute

immunity cannot be invoked to bar those counts seek-

ing to recover on theories of statutory and common-

law vexatious litigation. Id., 343. The court in Rioux

explained that absolute immunity does not attach to

statements that provide the grounds for the tort of vexa-

tious litigation, reasoning as follows: ‘‘[T]he fact that

the tort of vexatious litigation itself employs a test that

balances the need to encourage complaints against the

need to protect the injured party’s interests counsels

strongly against a categorical or absolute immunity

Page 20 CONNECTICUT LAW JOURNAL 0, 0

22 ,0 0 Conn. App. 1

Robinson v. V. D.

from a claim of vexatious litigation.’’ Id., 347. The court

noted that the stringent requirements that a plaintiff

must establish, including that the prior proceeding was

initiated by the defendant against the plaintiff and had

terminated in the plaintiff’s favor, ‘‘provide adequate

room for both appropriate incentives to report wrong-

doing and protection of the injured party’s interest in

being free from unwarranted litigation. Thus, because

the tort of vexatious litigation strikes the proper bal-

ance, it is unnecessary to apply an additional layer of

protection to would-be litigants in the form of absolute

immunity.’’ Id.

For the reasons provided, we conclude that, with the

exception of the statutory and common-law vexatious

litigation counts, all counts of the plaintiffs’ underlying

complaint are barred by absolute immunity under the

litigation privilege and, therefore, must be dismissed.

Because, however, the vexatious litigation counts are

not subject to dismissal on that same ground, we still

must consider whether the court improperly failed to

dismiss those counts pursuant to the defendant’s spe-

cial motion to dismiss.

II

In addition to invoking absolute immunity, the defen-

dant claims that the trial court improperly denied his

special motion to dismiss filed pursuant to § 52-196a

on the ground that the conduct alleged in the complaint

failed to relate to a matter of public concern and, thus,

fell outside of the protections afforded by § 52-196a.

For the reasons that follow, we agree that the trial court

should have granted the special motion to dismiss in

part because, with respect to the alleged statements

made in connection with the grievance proceeding, the

defendant’s conduct related to the exercise of a pro-

tected right in connection with a matter of public con-

cern, and the plaintiffs cannot, as a matter of law, estab-

lish probable cause that they can prevail on their

0, 0 CONNECTICUT LAW JOURNAL Page 21

0 Conn. App. 1 ,0 23

Robinson v. V. D.

vexatious litigation counts with respect to the grievance

proceeding.

‘‘A special motion to dismiss filed pursuant to § 52-

196a . . . is not a traditional motion to dismiss based

on a jurisdictional ground. It is, instead, a truncated

evidentiary procedure enacted by our legislature in

order to achieve a legitimate policy objective, namely,

to provide for a prompt remedy.’’ Elder v. Kauffman,

204 Conn. App. 818, 824, 254 A.3d 1001 (2021). Section

52-196a (e) (3), as previously noted, provides as follows:

‘‘The court shall grant a special motion to dismiss if

the moving party makes an initial showing, by a prepon-

derance of the evidence, that the opposing party’s com-

plaint . . . is based on the moving party’s exercise of

its right of free speech, right to petition the government,

or right of association13 under the Constitution of the

United States or the Constitution of the state in connec-

tion with a matter of public concern, unless the party

that brought the complaint . . . sets forth with particu-

larity the circumstances giving rise to the complaint

. . . and demonstrates to the court that there is proba-

ble cause, considering all valid defenses, that the party

will prevail on the merits of the complaint . . . .’’

(Emphasis added; footnote added.) Accordingly, by its

plain language, the statute requires courts to engage in

13

General Statutes § 52-196a (a) provides in relevant part the following

definitions: ‘‘(2) ‘Right of free speech’ means communicating, or conduct

furthering communication, in a public forum on a matter of public concern;

(3) ‘Right to petition the government’ means (A) communication in connec-

tion with an issue under consideration or review by a legislative, executive,

administrative, judicial or other governmental body, (B) communication

that is reasonably likely to encourage consideration or review of a matter

of public concern by a legislative, executive, administrative, judicial or other

governmental body, or (C) communication that is reasonably likely to enlist

public participation in an effort to effect consideration of an issue by a

legislative, executive, administrative, judicial or other governmental body;

(4) ‘Right of association’ means communication among individuals who

join together to collectively express, promote, pursue or defend common

interests . . . .’’

Page 22 CONNECTICUT LAW JOURNAL 0, 0

24 ,0 0 Conn. App. 1

Robinson v. V. D.

a two step process when resolving an anti-SLAPP

motion to dismiss. First, the court must determine if

the defendant has demonstrated that the complaint is

based on the defendant’s exercise of one of the enumer-

ated rights and in connection with a matter of public

concern. Our review of whether a defendant satisfies

this initial burden by alleging conduct that falls within

the ambit of the anti-SLAPP statute involves a question

of statutory construction over which our review is ple-

nary. See Chapnick v. DiLauro, 212 Conn. App. 263,

269, 275 A.3d 746 (2022). Second, if the court determines

that a defendant has met this initial burden, it must

turn to whether the plaintiffs can demonstrate probable

cause that they will prevail on the merits of the com-

plaint, taking into consideration all valid defenses.

Section 52-196a (a) (1) defines a ‘‘[m]atter of public

concern’’ as ‘‘an issue related to (A) health or safety,

(B) environmental, economic or community well-being,

(C) the government, zoning and other regulatory mat-

ters, (D) a public official or public figure, or (E) an

audiovisual work.’’14 Although appellate courts in this

state have not had an opportunity to meaningfully ana-

lyze the statutory definition regarding what constitutes

a matter of public concern, both state and federal courts

have addressed what constitutes a matter of public

concern in the context of considering whether speech

or conduct is protected under the first amendment. As

14

With regard to whether the defendant’s alleged conduct during the union

grievance proceedings involved a matter of public concern, the trial court

properly considered whether the matter satisfied the ‘‘government, zoning,

and other regulatory matters’’ category; see General Statutes § 52-196a (a)

(1) (C); or the ‘‘public official or public figure’’ category. See General Statutes

§ 52-196a (a) (1) (D). With regard to the alleged conduct during the protection

order proceedings, the court first noted that the defendant had not clearly

articulated a basis for dismissal but nonetheless considered whether that

conduct potentially involved a matter of public concern under the ‘‘health

or safety’’ category. See General Statutes § 52-196a (a) (1) (A).

0, 0 CONNECTICUT LAW JOURNAL Page 23

0 Conn. App. 1 ,0 25

Robinson v. V. D.

the United States Court of Appeals for the Second Cir-

cuit recently stated: ‘‘[S]peech on matters of public con-

cern is at the heart of [f]irst [a]mendment protection.

. . . Whether speech addresses a matter of public con-

cern is to be determined by the content, form, and

context of [the relevant] statement, as revealed by the

whole record. . . . Speech that relates to any matter

of political, social, or other concern to the community

. . . which may include conduct implicat[ing] public

safety and welfare . . . for example, generally falls

within the heart of the [f]irst [a]mendment’s protec-

tion.’’ (Citations omitted; emphasis omitted; internal

quotation marks omitted.) Rupp v. Buffalo, 91 F.4th

623, 635 (2d Cir. 2024).

Moreover, courts in California and Nevada, which

have similar anti-SLAPP statutes, have utilized the fol-

lowing principles for distinguishing between a public

and private interest: ‘‘First, public interest does not

equate with mere curiosity. . . . Second, a matter of

public interest should be something of concern to a

substantial number of people. . . . Thus, a matter of

concern to the speaker and a relatively small, specific

audience is not a matter of public interest. . . . Third,

there should be some degree of closeness between the

challenged statements and the asserted public interest

. . . the assertion of a broad and amorphous public

interest is not sufficient . . . . Fourth, the focus of the

speaker’s conduct should be the public interest rather

than a mere effort to gather ammunition for another

round of [private] controversy. . . . Finally, those

charged with defamation cannot, by their own conduct,

create their own defense by making the claimant a

public figure. . . . A person cannot turn otherwise pri-

vate information into a matter of public interest simply

by communicating it to a large number of people.’’ (Cita-

tions omitted; internal quotation marks omitted.) Wein-

berg v. Feisel, 110 Cal. App. 4d 1122, 1132, 2 Cal. Rptr.

Page 24 CONNECTICUT LAW JOURNAL 0, 0

26 ,0 0 Conn. App. 1

Robinson v. V. D.

3d 385 (2003); see also Smith v. Zilverberg, 137 Nev.

65, 68, 481 P.3d 1222 (2021); 61A Am. Jur. 2d 448, Plead-

ing § 380 (2021). We agree that these factors are useful

in evaluating whether a defendant’s actions implicate

a matter of public concern for purposes of our anti-

SLAPP statute.

Turning first to the alleged conduct related to the

defendant’s efforts to obtain a civil protection order,

we agree with the trial court’s analysis that this conduct

arises out of a wholly private dispute between the par-

ties that does not have any appreciable connection to

a matter of public concern. Accordingly, such conduct

falls outside the ambit of § 52-196a and its intended

protections. As the trial court aptly explained in its

memorandum of decision, a number of Superior Court

decisions have held that a party’s statements pertaining

to criminal activities potentially may implicate a matter

of public concern under the ‘‘health or safety’’ prong

of the statutory definition. See General Statutes § 52-

296a (a) (1) (A). In those cases, however, the criminal

activity in question had a connection not just to the

health and safety of the parties involved but potentially

to the health and/or safety of the public or community

at large. This context is missing in the present case.

Although the defendant’s application for a civil protec-

tive order concerned some activity that, if charged and

proven, potentially was criminal in nature, we are not

convinced that the health and safety of the public itself

is implicated so as to raise a matter of public concern

under § 52-196a. Rather, the allegations and statements

made by the defendant involved conduct that was

wholly personal in nature, arising out of a verbal argu-

ment between the parties. The defendant has failed

to convince us on appeal that the court improperly

determined that the conduct alleged in the complaint

regarding the civil protection order did not involve a

health or safety issue connected to a matter of public

0, 0 CONNECTICUT LAW JOURNAL Page 25

0 Conn. App. 1 ,0 27

Robinson v. V. D.

concern and thus was not entitled to the protections

of § 52-196a. Accordingly, the court properly denied in

part the special motion to dismiss.

Contrastingly, we conclude that the court errone-

ously concluded that the defendant failed to meet his

initial burden of proving that the allegations in the com-

plaint regarding his conduct during the course of the

union grievance proceedings implicated the exercise of

his constitutional right to petition the government in

connection with a matter of public concern. As set

forth subsequently in this opinion, we agree with the

defendant that the court’s reasoning for denying the

special motion to dismiss, at least with respect to this

aspect of the complaint, cannot be sustained. In addi-

tion, pursuant to the second part of the § 52-196a analy-

sis, we conclude as a matter of law that the plaintiffs

cannot demonstrate probable cause that they would

prevail on their vexatious litigation counts with respect

to the grievance proceedings because the grievance

action was not an action brought against the plaintiffs.

Accordingly, the court should have granted in part the

special motion to dismiss.

There is no dispute that the Coast Guard, as a federal

agency, is a governmental body. Accordingly, the state-

ments forming the basis of the plaintiffs’ complaint with

respect to the grievance proceedings unquestionably

were communications made in the context of the defen-

dant exercising his right to petition the government, as

contemplated by the anti-SLAPP statute, as they were

made ‘‘in connection with an issue under consideration

or review by a legislative, executive, administrative,

judicial or other governmental body . . . .’’ (Emphasis

added.) General Statutes § 52-196a (a) (3) (A). The

record before the court also established that his alleged

statements pertaining to the grievance related to a mat-

ter of public concern because they involve a dispute

Page 26 CONNECTICUT LAW JOURNAL 0, 0

28 ,0 0 Conn. App. 1

Robinson v. V. D.

that was governed by a valid collective bargaining agree-

ment between the Coast Guard and the defendant’s

union and raised potential improprieties in the hiring

process at the academy that necessarily implicated

more than just the defendant’s own employment and

personal grievances. In particular, the defendant’s

speech touched on the possible existence of anti-union

sentiment within the academy and quid pro quo arrange-

ments between management officials and others related

to hiring. Although the defendant’s statements also con-

cerned the personal dispute between the parties, the

allegations sufficiently implicate potential and signifi-

cant issues regarding the hiring practices within a gov-

ernmental entity, which are issues that would be of

concern to the general public. Accordingly, we disagree

with the court’s reasoning that the defendant’s special

motion to dismiss failed due to his failure to establish

that his alleged conduct with respect to the grievance

proceedings did not relate to an exercise of a protected

right in connection with a matter of public concern.

This does not end the query, however. Even if the

court failed to properly recognize that the defendant,

at least in part, met his initial burden under § 52-196a,

the plaintiffs may yet prevail in defeating the special

motion to dismiss if they can demonstrate probable

cause that they can prevail on the merits of their vexa-

tious litigation counts regarding the grievance proceed-

ings. A determination of whether allegations of a com-

plaint, assuming they are true, demonstrate the

existence of probable cause raises a question of law.

Therefore, it is unnecessary to remand the matter to

the trial court. Instead, on the basis of our plenary

review of the record, we conclude that the plaintiffs

cannot demonstrate probable cause that they will pre-

vail on their claim of statutory or common-law vexa-

tious litigation to the extent those counts are based on

the grievance proceedings.

0, 0 CONNECTICUT LAW JOURNAL Page 27

0 Conn. App. 1 ,0 29

Robinson v. V. D.

A vexatious litigation action brought either pursuant

to the common law or pursuant to General Statutes

§ 52-568 requires the prior commencement of a civil

action and termination of that civil action in the plain-

tiffs’ favor. The Supreme Court has held that proceed-

ings initiated ‘‘before an administrative board that has

power to take action adversely affecting the legally

protected interests of [another]’’ can satisfy the prior

action requirement. (Internal quotation marks omitted.)

DeLaurentis v. New Haven, 220 Conn. 225, 248, 597

A.2d 807 (1991). The plaintiffs, however, cannot rely

on the defendant’s initiation of the grievance proceed-

ings as satisfying the prior action requirement for the

purposes of their statutory and common-law vexatious

litigation counts because the union grievance was not

an action brought against the plaintiffs, such as in a

civil or administrative action. Rather, a union grievance

is directed at the employer, claiming a breach of the

collective bargaining agreement. Because the plaintiffs

cannot, as a matter of law, demonstrate probable cause

that they would prevail on their vexatious litigation

counts with respect to the allegation pertaining to the

grievance proceedings, the special motion to dismiss

should be granted in part.

III

Finally, because we conclude that a portion of the

plaintiffs’ vexatious litigation counts are subject to dis-

missal pursuant to § 52-196a, we also must consider the

plaintiffs’ alternative ground for affirming the court’s

denial of the special motion to dismiss; namely, that

§ 52-196a is unconstitutional, both facially and as

applied. The plaintiffs first argue that the statute

requires the court to make factual findings that ought to

be left to a jury, and, thus, the statute is unconstitutional

because it deprives them of their state and federal con-

stitutional rights to a jury trial and to petition for griev-

ances. See Conn. Const., art. I, §§ 6, 10, and 19; U.S.

Page 28 CONNECTICUT LAW JOURNAL 0, 0

30 ,0 0 Conn. App. 1

Robinson v. V. D.

Const., amend. I. Second, they argue that the statute

violates the separation of legislative and judicial powers

as set forth in article second and article fifth, § 1, of

the constitution of Connecticut. We conclude that both

arguments lack merit.

‘‘The constitutionality of a statute presents a question

of law . . . over which our review is plenary. . . .

While the courts may declare a statute to be unconstitu-

tional, our power to do this should be exercised with

caution, and in no doubtful case.’’ (Citations omitted;

internal quotation marks omitted.) State v. Bonilla, 131

Conn. App. 388, 392, 28 A.3d 1005 (2011). Our Supreme

Court has stated that, ‘‘[i]n our assessment of whether

[a] statute passes constitutional muster, we proceed

from the well recognized jurisprudential principle that

[t]he party attacking a validly enacted statute . . .

bears the heavy burden of proving its unconstitutional-

ity beyond a reasonable doubt and we indulge in every

presumption in favor of the statute’s constitutionality.’’

(Internal quotation marks omitted.) State v. Jason B.,

248 Conn. 543, 556, 729 A.2d 760, cert. denied, 528 U.S.

967, 120 S. Ct. 406, 145 L. Ed. 2d 316 (1999). ‘‘Where a

statute is challenged as being unconstitutional on its

face, the burden is especially heavy.’’ State v. Ryan, 48

Conn. App. 148, 154, 709 A.2d 21, cert. denied 244 Conn.

930, 711 A.2d 729, cert. denied, 525 U.S. 876, 119 S. Ct.

179, 142 L. Ed. 2d 146 (1998). With these principles in

mind, we address the plaintiffs’ arguments in turn.

A

The plaintiffs first argue that § 52-196a is unconstitu-

tional, both facially and as applied, because it requires

the court to make factual findings and, thus, deprives

them of their federal and state constitutional rights to

a jury trial and to petition for grievances. We conclude

that the plaintiffs have failed to meet their burden of

0, 0 CONNECTICUT LAW JOURNAL Page 29

0 Conn. App. 1 ,0 31

Robinson v. V. D.

demonstrating the unconstitutionality of the statute

beyond a reasonable doubt.15

Article first, § 19, of the constitution of Connecticut,

as amended by article four of the amendments, provides

that ‘‘[t]he right of trial by jury shall remain inviolate.’’

‘‘This particular provision of our constitution has been

consistently construed by Connecticut courts to mean

that if there was a right to a trial by jury at the time of

the adoption of the provision, then that right remains

intact. . . . It is generally held that the right to a jury

trial exists not only in cases in which it existed at

common law and at the time of the adoption of [the]

constitutional provisions preserving it, but also exists

in cases substantially [similar] thereto.’’ (Internal quota-

tion marks omitted.) Evans v. General Motors Corp.,

277 Conn. 496, 509, 893 A.2d 371 (2006). ‘‘Litigants in

a civil case have a constitutional right to have a question

of fact decided by a jury. . . . Nevertheless, such a

right may be subjected to reasonable conditions and

regulations.’’ (Citation omitted; internal quotation

marks omitted.) Beizer v. Goepfert, 28 Conn. App. 693,

703, 613 A.2d 1336, cert. denied, 224 Conn. 901, 615

A.2d 1044 (1992), cert. denied, 507 U.S. 973, 113 S. Ct.

1416, 122 L. Ed. 2d 786 (1993); see also, e.g., General

Statutes § 52-215 (excluding certain types of cases from

15

No appellate court in this state has engaged in a detailed analysis regard-

ing the constitutionality of § 52-196a. But see Elder v. 21st Century Media

Newspaper, LLC, 204 Conn. App. 414, 428, 254 A.3d 344 (2021) (rejecting

claim that summary adjudications violate right to trial by jury), and Elder

v. Kauffman, supra, 204 Conn. App. 833 (2021) (adopting reasoning in Elder

v. 21st Century Media Newspaper, LLC, supra, 204 Conn. App. 414, to

summarily reject claim that § 52-196a was unconstitutional as applied

because its application infringed on constitutional rights to redress and to

trial by jury). At least one Superior Court, however, has upheld the statute

against similar constitutional challenges as those raised in the present

appeal. See Gifford v. Taunton Press, Inc., Superior Court, judicial district

of Danbury, Docket No. CV-XX-XXXXXXX-S (July 11, 2019). Although the court’s

analysis is not binding on this court, it is well reasoned and persuasive and,

to the extent applicable, we adopt the reasoning in this opinion.

Page 30 CONNECTICUT LAW JOURNAL 0, 0

32 ,0 0 Conn. App. 1

Robinson v. V. D.

right to jury trial and requiring parties to claim right to

jury within specified time period); Associated Invest-

ment Co. Ltd. Partnership v. Williams Associates IV,

230 Conn. 148, 155, 645 A.2d 505 (1994) (excluding

actions under CUTPA from right to jury trial).

Section 52-196a does not offend the right to a trial

by jury because it does not require trial courts to resolve

disputed issues of fact or to dismiss claims that other-

wise would survive summary judgment or a motion for

directed verdict. The plaintiff has not directed us to

any particular language in the anti-SLAPP statute that

requires a court to resolve disputed issues of fact.

Rather, the court is tasked first with considering, on

the basis of the facts as alleged in the complaint,

whether the defendant can show by a preponderance

of the evidence that the opposing party’s action is based

on the defendant’s exercise of a protected right. Only

if the defendant meets this burden, does the burden

then shift to the plaintiff, who must demonstrate only

that probable cause exists that the plaintiff will prevail

on the merits of the cause of action asserted. Probable

cause does not require fact-finding by the court. Rather,

‘‘[t]he legal idea of probable cause is a bona fide belief

in the existence of the facts essential under the law for

the action and such as would warrant a man of ordinary

caution, prudence and judgment, under the circum-

stances, in entertaining it.’’ (Internal quotation marks

omitted.) TES Franchising, LLC v. Feldman, 286 Conn.

132, 137, 943 A.2d 406 (2008).

Thus, as explained by the Superior Court, a court

considering a special motion to dismiss ‘‘does not need

to make factual findings, but merely needs to determine,

given all of the evidence provided by the parties, if there

is any likelihood a reasonable juror could find in favor

of the plaintiff. . . . If the answer is no, the court must

dismiss the case and would, thus, only be dismissing a

case that would be subject to dismissal on a motion

0, 0 CONNECTICUT LAW JOURNAL Page 31

0 Conn. App. 1 ,0 33

Robinson v. V. D.

for directed verdict or to set aside the jury verdict in

favor of the plaintiff.’’ (Citation omitted.) Gifford v.

Taunton Press, Inc., Superior Court, judicial district of

Danbury, Docket No. CV-XX-XXXXXXX-S (July 11, 2019).

Accordingly, we conclude that the anti-SLAPP statute

does not, on its face or as applied, violate the plaintiffs’

constitutional right to a jury trial under either the fed-

eral or state constitutions.

B

The plaintiffs also argue that § 52-196a violates the

separation of legislative and judicial powers as set forth

in article second and article fifth, § 1, of the constitution

of Connecticut. According to the plaintiffs, § 52-196a

is constitutionally invalid because ‘‘it is essentially a

Practice Book rule, and usurps the power . . . [of] the

Judicial Branch to adopt rules of practice and govern

court procedure and to govern the conduct of litigation

in the state courts.’’ This argument lacks merit and

requires little discussion.

Article second of the constitution of Connecticut,

as amended by article eighteen of the amendments,

provides in relevant part: ‘‘The powers of government

shall be divided into three distinct departments, and

each of them confided to a separate magistracy, to wit,

those which are legislative, to one; those which are

executive, to another; and those which are judicial, to

another. . . .’’ Conn. Const., amend XVIII.

‘‘[T]he primary purpose of [the separation of powers]

doctrine is to prevent commingling of different powers

of government in the same hands. . . . The constitu-

tion achieves this purpose by prescribing limitations

and duties for each branch that are essential to each

branch’s independence and performance of assigned

powers. . . . Nevertheless, [t]he rule of separation of

governmental powers cannot always be rigidly applied.

. . . Our state government is not divided in any such

Page 32 CONNECTICUT LAW JOURNAL 0, 0

34 ,0 0 Conn. App. 1

Robinson v. V. D.

way that all acts of the nature of the functions of one

department can never be exercised by another depart-

ment; such a division is impracticable, and if carried

out would result in the paralysis of government. . . .

‘‘In challenges to a statute’s constitutionality on the

ground that it impermissibly infringes on the judicial

authority in violation of separation of powers princi-

ples, [a] statute will be held unconstitutional on [separa-

tion of powers] grounds [only] if: (1) it governs subject

matter that not only falls within the judicial power, but

also lies exclusively within judicial control; or (2) it

significantly interferes with the orderly functioning of

the Superior Court’s judicial role.’’ (Citations omitted;

internal quotation marks omitted.) State v. McCleese,

333 Conn. 378, 415, 215 A.3d 1154 (2019).

Contrary to the assertions of the plaintiffs, they have

failed to establish beyond a reasonable doubt that either

prong of the aforementioned test is implicated by § 52-

196a. Although the plaintiffs would have us view § 52-

196a as usurping the role of the Superior Court to set

rules of practice governing court procedures and the

manner in which litigation is conducted by state courts,

this argument is a bridge too far. Rather than merely

mandating court procedures, the anti-SLAPP statute

creates a substantive statutory right to be free from

litigation, the purpose of which is to punish or intimi-

date citizens who exercise their rights to free speech

and/or to petition the government. The creation of such

rights is certainly within the powers and province of

the legislative branch. ‘‘[W]here public policy, as per-

ceived by the legislature, requires a simple and prompt

proceeding in order to implement parties’ rights, the

legislature is not prohibited by the constitution from

creating a statutory proceeding which provides for that

simplicity and promptness, and which, in order to insure

simplicity and promptness, enacts as part and parcel

of the statutory proceeding certain minimal procedural

0, 0 CONNECTICUT LAW JOURNAL Page 33

0 Conn. App. 1 ,0 35

Robinson v. V. D.

incidents. In such a case, the legislature is acting within

its historic and traditional function of defining rights

and prescribing remedies.’’ Fishman v. Middlesex

Mutual Assurance Co., 4 Conn. App. 339, 356, 494 A.2d

606, cert. denied, 197 Conn. 806, 499 A.2d 57, and cert.

denied, 197 Conn. 807, 499 A.2d 57 (1985). Section 52-

196a clearly falls within this category of statute and,

despite including procedural directives, does not offend

principles of separation of power.

The plaintiffs have not claimed that § 52-196a con-

flicts with any existing rules of practice or procedure

promulgated by the Superior Court. Moreover, although

the promulgation and adoption of rules of practice

clearly fall within the power of the Judicial Branch; see

General Statutes § 51-14; it is not a power that lies

exclusively within judicial control. At times, the legisla-

ture may promulgate statutes that contain procedures

to be employed by the courts of this state. We simply

are unconvinced that § 52-196a significantly interferes

with the orderly functioning of the Superior Court’s

judicial role. As we have indicated, the statute is really

no more than a form of summary judgment. See Elder

v. Kauffman, supra, 204 Conn. App. 824. In short, we

reject the plaintiffs’ alternative ground for affirming the

court’s decision to deny the special motion to dismiss,

as that ruling pertains to the vexatious litigation counts

to the extent those counts are premised on the defen-

dant’s statements and/or actions in pursuing a civil pro-

tection order.

To summarize, we conclude that all counts of the

complaint, with the exception of the counts sounding

in common-law and statutory vexatious litigation, are

barred by absolute immunity under the litigation privi-

lege. With respect to the vexatious litigation counts, we

affirm in part and reverse in part the court’s decision

to deny the special motion to dismiss as to those counts,

concluding that the court should have granted the

Page 34 CONNECTICUT LAW JOURNAL 0, 0

36 ,0 0 Conn. App. 1

Robinson v. V. D.

motion to the extent that those counts rely on state-

ments made in connection with the union grievance

proceedings, but properly denied the motion with

respect to any and all statements made in connection

with the proceedings to obtain a civil protection order.

The judgment is reversed in part as to the denial of

the motion to dismiss and the case is remanded with

direction to dismiss all counts of the plaintiffs’ com-

plaint except those portions of the statutory and com-

mon-law vexatious litigation counts related to the pro-

tection order proceedings; the judgment is affirmed in

all other respects.

In this opinion the other judges concurred.