Opinion
No. CV03-0347962 S
November 26, 2004
MEMORANDUM OF DECISION
The defendants have moved for summary judgment asserting that the plaintiff's claims are barred by the doctrine of absolute immunity and qualified immunity as codified in § 52-557n(b)(7) of the General Statutes, and on the ground of their denial that they never engaged in a civil conspiracy.
Towne Brook Development, LLC, instituted this proceeding against Sharon Fox, Stanley Parker, Barbara Obeda, Raymond Murphy, William Schappert and David Cole. All of whom but Cole were members of the zoning commission of the town of Brookfield. Cole was the chairman of the Brookfield volunteer fire company water source committee. The complaint also alleges that the plaintiff filed an application for an affordable housing project with the zoning commission and, at the close of the public hearing on the application, after the plaintiff's representative and counsel had left, that the defendants engaged in improper ex parte discussions about ways in which they could try to justify a denial of the application based on health and safety grounds.
The complaint further recites that the application was denied and thereafter, the plaintiff submitted a modified application. The modified application was approved subject to certain conditions. The plaintiff claims that the conditions that were imposed had a substantial adverse impact on the viability of its proposed housing project and made it economically unfeasible. It further contends that the defendants imposed the conditions in bad faith intentionally, and maliciously interfered with its business expectancy and prospects for economic advantage, and were in reckless disregard of its rights which intentionally and wantonly violated said rights. It also claims that the defendants intentionally conspired to unlawfully interfere with and prevent its development of an affordable housing project.
On January 29, 2004, the defendants filed a motion for summary judgment reciting that the plaintiff's claims are barred by the doctrine of absolute and governmental immunity. It further claims that, at the very least, there is a genuine issue of material fact as to whether the defendants engaged in civil conspiracy.
Although it is not a ground stated on the face of the motion, the defendants also argue, in their supporting memorandum, that the plaintiff's civil conspiracy claim fails as a matter of law.
Section 17-49 of the Practice Book "provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citations omitted; internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791-92 (2004). "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 (1999).
In support of their motion, the defendants argue that they are entitled to absolute immunity because they were acting in an administrative capacity and performing a quasi-judicial function when they reviewed the plaintiff's application. The defendants further assert that public policy favors granting absolute immunity in this case. In response, the plaintiff contends, in relevant part, that because the defendants' conduct occurred outside the judicial arena, they are not entitled to absolute immunity, and that there are insufficient safeguards to warrant granting the defendants absolute immunity.
"There is a long-standing common law rule that communications uttered or published in the course of judicial proceedings are absolutely privileged so long as they are in some way pertinent to the subject of the controversy." (Internal quotation marks omitted.) Peytan v. Ellis, 200 Conn. 243, 245-46 (1986). "[A]n absolute privilege also attaches to relevant statements made during administrative proceedings which are quasi-judicial in nature." "The judicial proceeding to which [absolute] immunity attaches has not [exactly] been defined . . . It includes any hearing before a tribunal which performs a judicial function, ex parte or otherwise, and whether the hearing is public or not. It includes, for example, lunacy, bankruptcy, or naturalization proceedings, and an election contest. It extends also to the proceedings of many administrative officers, such as boards and commissions, 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." (Internal quotation marks omitted.) "Other jurisdictions have also outlined a number of factors that assist in determining whether a proceeding is [quasi-judicial] in nature. Among them are whether the body 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) examine witnesses and hear the litigation of the issues on a hearing; and (6) enforce decisions or impose penalties." Kelley v. Bonney, 221 Conn. 549, 566 (1992).
As the defendants have acknowledged, Connecticut courts have not expressly addressed whether a zoning commission's proceeding in reviewing an application for an affordable housing complex is quasi-judicial in nature. "The category of persons to whom absolute judicial immunity extends is limited . . . [I]t is important to note that even judges do not enjoy absolute immunity for administrative as opposed to judicial actions." (Citations omitted; internal quotation marks omitted.) Carrubba v. Moskowitz, 81 Conn.App. 382, 395 (2004), cert. granted, 268 Conn. 916 (2004).
Carrubba is helpful in that it involved a father and his minor son who sought to recover damages from a court-appointed attorney who represented the minor son in a marital dissolution involving the father and his former wife. The Appellate Court held that the court-appointed attorney was entitled to qualified quasi-judicial immunity with respect to actions taken within the scope of her representation of the minor son since there were no allegations in the record to support a conclusion that she had acted with malice, wantonness or an intent to injure. "The plaintiffs' petition for certification for appeal from the Appellate court . . . [was] granted, limited to the following issues: 1. Did the Appellate Court properly conclude that the defendant was entitled to qualified immunity? 2. Did the Appellate Court properly conclude that the plaintiff lacked standing to bring this legal malpractice action against the defendant?"
"[I]t is [also] important to consider whether there is a sound public policy reason for permitting the complete freedom of expression that a grant of absolute immunity provides." Kelley v. Bonney, supra, 567. "[T]he existence of safeguards against the abuse of official power is a necessary prerequisite to absolute immunity . . . [T]he organized bar's development and enforcement of professional standards for prosecutors [for example] lessens the danger that absolute immunity will become a shield for prosecutorial misconduct . . . Judges adhere to similar professional standards." (Citations omitted; internal quotation marks omitted.) DeLaurentis v. New Haven, 220 Conn. 225, 245-47 (1991). In addition, the United States Supreme Court has held that "federal administrative law requires that agency adjudication contain many of the same safeguards as are available in the judicial process." Butz v. Economou, 438 U.S. 478, 513, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). "Among these is the requirement that hearings be conducted before a trier of fact insulated from political influence." (Internal quotation marks omitted.) DeLaurentis v. New Haven, supra. It continues, however, that "although the process may resemble a judicial proceeding, it contains insufficient safeguards against abuse to warrant absolute immunity from suit for the [defendants] . . ." For example, although an application may be entertained by the zoning commission at a public hearing, the decision-making process occurs after the close of the public hearing at a session wherein only the commissioners comment and vote upon the application. Therefore, the defendants are not entitled to absolute immunity.
The Supreme Court, however, has held that "municipal officers are entitled to qualified immunity for their performance of discretionary duties." DeLaurentis v. New Haven, supra, 247 n. 9. A zoning commission's review of an application for an affordable housing project is a discretionary duty. See Avalonbay Communities, Inc. v. Milford, 270 Conn. 409, 433 n. 26 (2004).
"To assure such immunity [the officers] official and discretionary acts must be performed in good faith, in the exercise of an honest judgment, and not in abuse of . . . discretion, or maliciously or wantonly . . . [W]here the alleged acts involve malice, wantonness or intent to injure . . . the immunity doctrine cannot be successfully invoked." (Citations omitted; internal quotation marks omitted.) Lapadula v. Middletown, Superior Court, judicial district of Middlesex at Middletown, Docket No. 67942 (August 16, 1994, Gaffney, J.). "[T]he qualified immunity defense . . . provides ample protection to all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986).
Thus, the defendants may be entitled to qualified immunity unless their alleged acts involved malice, wantonness or intent to injure. "Whether [the defendants acted] with malice and in bad faith is a question of fact to be decided by the trier of fact." Mulshine v. Knight, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. CV 93 05332510 (May 21, 1996, Wagner, J.) (16 Conn. L. Rptr 597).
In this case, the court denied the defendant's motion for summary judgment, holding that whether the defendant's defamatory statement was made with malice and in bad faith is a question of fact to be decided by the trier of fact.
In support of their motion, the defendants also argue that the plaintiff's claims are barred by the immunity codified in § 52-557n(b)(7)of the General Statutes. That section provides in relevant part: "a political subdivision of the state or any employee, officer or agent acting within the scope of his employment or official duties shall not be liable for damages to person or property resulting from . . . (7) the issuance, denial, suspension or revocation of, or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authorization, when such authority is a discretionary function of law, unless such issuance, denial, suspension or revocation or such failure or refusal constitutes a reckless disregard for health and safety . . ."
To reiterate, although the defendants argue that the plaintiff's claims are barred by the immunity codified in § 52-557n(b)(7), it would appear that the appropriate subsection applicable to this case is § 52-557n(c) which provides in part that "[a]ny person who serves as a member of any board, commission, committee or agency of a municipality and who is not compensated for such membership on a salary or prorated equivalent basis, shall not be personally liable for damage or injury . . . resulting from any act, error or omission made in the exercise of such person's policy or decision-making responsibilities on such board, commission, committee or agency if such person was acting in good faith, and within the scope of such person's official functions and duties . . . The provisions of this subsection shall not apply if such damage or injury was caused by the reckless, wilful or wanton misconduct of such person." The following analysis, however, applies to both subsections.
Section 52-557n clarifies to some extent situations where immunity in the performance of discretionary duties does not protect municipal employees "where the alleged acts involve malice, wantonness or intent to injure, rather than negligence." (Internal quotation marks omitted.) Bonamico v. Middletown, 47 Conn.App. 758, 761 (1998). As previously noted, "[w]hether [the defendants'] statement[s] were made with malice and in bad faith is a question of fact to be decided by the trier of fact." Mulshine v. Knight, supra.
In this case, "the minor plaintiff was in school when she was injured by a bean pellet that was thrown at her by a student while she was walking down a school corridor . . . [The appellate] court originally held that the complaint failed to allege sufficient facts to bring the case within the identifiable person-imminent harm exception to governmental immunity because the plaintiff could have been injured at any time in the future or not at all . . . The Supreme Court remanded the case to [the appellate] court for reconsideration in light of Purzycki v. Fairfield, [ 240 Conn. 926, (1997)] . . . On remand, [the appellate] court vacated its previous decision, reasoning that Purzycki controlled and required a result contrary to that previously reached." (Citations omitted.) Colon v. New Haven, 60 Conn.App. 178, 186-87 (2000).
In addition, "[a]n immunity protects an officer only to the extent that he is acting in the general scope of his official authority. When he goes entirely beyond it and does an act that is not permitted at all by that duty, he is not acting in his capacity as a public officer or employee and he has no more immunity than a private citizen." (Internal quotation marks omitted.) Gerstenzang v. Glenville News and Florist, Inc., 71 Conn.App. 531, 534-35 (2002).
The defendants' motion necessarily fails because even though the defendants argue that the plaintiff's claims are barred by the immunity codified in § 52-557n(b)(7), there are genuine issues of material fact as to whether the defendants acted with malice, wantonness or an intent to injure, and within the scope of their official duties.
The defendants also argue that they cannot be liable for the plaintiff's civil conspiracy claim because there is no evidence that two or more people conspired to act criminally or unlawfully to cause the plaintiff harm. The plaintiff contends that the defendants "intentionally combined and conspired together to unlawfully interfere with and prevent [its] development of [an] affordable housing project." In support of its argument, the plaintiff provides the transcript of the conversation that took place between the defendants. Schappert, for example, stated to Cole that half the things that Cole was talking about was the ammunition that they needed. In addition, Cole remarked that it was really going to come back hard on them when they disapproved the application for their safety reasons.
One must remember that Schappert was a commissioner while Cole was not.
"The [elements] of a civil action for conspiracy are: (1) a combination between two or more persons, (2) to do a criminal or an unlawful act or a lawful act by criminal or unlawful means, (3) an act done by one or more of the conspirators pursuant to the scheme and in furtherance of the object, (4) which act results in damage to the plaintiff." (Internal quotation marks omitted.) Harp v. King, 266 Conn. 747, 779 (2003).
Based on the evidence, there exists a genuine issue of material fact as to whether the defendants conspired to do an unlawful act. The defendants' motion for summary judgment is, accordingly, denied. The defendants again are not entitled to absolute or limited immunity and as a result also of material questions of fact.
Moraghan, J.