Connecticut Appeals Court Finds Statements Made at Zoning Board Hearing were Privileged, Immune from Defamation Claims

This post was authored by Amy Lavine, Esq.

A Connecticut court held in January that statements made during a zoning board hearing were entitled to quasi-judicial immunity and could not be challenged in a defamation lawsuit. Priore v. Haig, 2018 WL 794363 (1/23/18).

The plaintiff, Thomas Priore, alleged that he was defamed at a public hearing of the Greenwich Planning & Zoning Commission when the defendant, Stephanie Haig, stated that she was concerned about whether or not there would be “real oversight” over his proposal because “he has not been trustworthy so far.” Haig explained in her motion to dismiss that her remarks related to the fact that Priore had removed several trees from his property without obtaining the necessary approvals, and then had submitted a site plan which misrepresented that the trees were still there.

The court first addressed Haig’s contention that it lacked subject matter jurisdiction due to the immunity generally accorded to statements made in the context of litigation. Absolute judicial immunity, the court noted, has been recognized in connection with quasi-judicial proceedings, provided that (1) the statements were made in an appropriate proceeding/context and (2) the statements are entitled to a privilege in that context. Before addressing the merits of defendant’s privilege/immunity claim, the court noted that the term “immunity” is also used in defamation cases to refer to a more limited, non-jurisdictional immunity accorded to statements concerning matters of public concern. Priore relied extensively on caselaw that concerned this type of immunity, and while the court noted that it was somewhat “illuminating,” it was distinguishable because it did not involve statements made before an administrative tribunal in the context of a decision-making process.

Returning to the issue of judicial immunity, the first question to be answered was whether the proceedings before the planning and zoning commission were sufficiently quasi-judicial for the privilege to attach. To make this determination, the court relied primarily on the factors identified in Kelley v. Bonney, which included “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.” In addition, Kelley recognized that “it is 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.”

The court found that the first four factors applied to the proceedings before the commission, as: (1) the commission had at least some level of discretion; (2) it was tasked with making decisions on permit applications based on information in the record; (3) its decisions were binding; and (4) they affected the property rights of the parties before it. The fifth factor was neutral, the court found, as Haig was not being “examined” when she made the contested remarks, but was rather offering comments to the commission, and the sixth factor, the court found, was inapplicable. With respect to the public policy reasons for extending the privilege/immunity to the commission’s proceedings, the court remarked that:
“To the extent that most members of most municipal agencies/commission/boards are likely to be non-professionals with respect to the agency’s work, the public policy behind the immunity/privilege would seem to require encouragement of input from as many sources of information as possible—arguably more so than in a formal litigation context where the very level of formality pervading the proceedings is likely to encourage some level of self-restraint in articulation of facts and opinions.”
Accordingly, the court found that the public input aspect of the commission’s factfinding function was sufficiently quasi-judicial for the privilege/immunity to apply.

The next question was whether Haig’s statements were of the character to be protected by the privilege/immunity. In this respect, the court agreed with Priore that that there had to be a sufficient nexus between the statements and the purpose of the proceedings for the statements to be covered by the privilege/immunity, but the correct standard was not relevance, as Priore contended, but rather whether the statements were “pertinent.” The particular statements at issue had been made in an attempt to discredit Priore and undermine the reliability of his representations before the commission. As a result, the court found, “even if technically not relevant to the issues before the Commission, the statements were pertinent.” Accordingly, the court found that the privilege/immunity applied and protected Haig against all claims based on the substance of her statements.

Priore v. Haig, 2018 WL 794363 (CT Super. 1/23/18)