Richard Preston v. Paul J. O'Rourke

The plaintiff, a former prosecutor,
initiated this action against the defendant, asserting
claims of intentional infliction of emotional distress,
negligent infliction of emotional distress, libel and slander.
The plaintiff's allegations were based on statements
made by the defendant in preparation for and during
an arbitration hearing wherein the plaintiff challenged
the decision of the division of criminal justice
(employer) to terminate his employment.

The defendant had complained to Paul Slyman, an
agent of the plaintiff's employer, both orally and in
writing, that the plaintiff had behaved in a manner that
placed her in fear for her physical well-being and caused
her emotional upset. As a result of receiving the defendant's
complaint and the complaint of another woman,
the employer conducted an investigation and terminated
the plaintiff from his employment.

Pursuant to the terms of the collective bargaining
agreement governing the plaintiff's employment, the
Connecticut Prosecutors, Local 1437, Council 4, AFSCME
(union), filed a grievance on the plaintiff's behalf
for review of his termination by an arbitrator. During
arbitration, the defendant testified regarding the plaintiff's
behavior toward her. On July 10, 1997, after several
hearings, the arbitrator issued his findings and concluded
that the employer had just cause to discharge the
plaintiff and, therefore, denied the plaintiff's grievance.
The plaintiff filed an application in the trial court to
vacate the arbitration award. The court denied the application
and affirmed the arbitrator's opinion and award.
Preston v. State Division of Criminal Justice, Superior
Court, judicial district of Hartford, Docket No. 572637
(February 25, 1999) (Hon. Mary R. Hennessey, judge
trial referee). The plaintiff filed an appeal with this court
and we affirmed the judgment of the trial court. Preston
v. State Division of Criminal Justice, 60 Conn. App.
853, 761 A.2d 778 (2000), cert. denied, 255 Conn. 936,
767 A.2d 1212 (2001).

On September 10, 1999, the plaintiff commenced this
action. With regard to statements made by the defendant
in 1994, the plaintiff's revised complaint included six counts sounding in tort, including one count of intentional
infliction of emotional distress, one count of negligent
infliction of emotional distress, two counts of
libel and two counts of slander. With regard to statements
made by the defendant in 1997, the plaintiff's
revised complaint included one count of libel and one
count of slander. In both 1997 libel and slander counts,
the plaintiff alleged that the defendant untruthfully,
falsely and maliciously stated in executed written affidavits
and before and during the arbitration hearing in
1997 that the plaintiff had been physically abusive during
their relationship, made threats to the defendant
that he would kill various individuals and followed or
lay in wait for the defendant. The plaintiff claimed that
as a result of the defendant's statements, he suffered
loss of reputation, employment and goodwill of both
social and professional acquaintances.

The defendant filed a motion for summary judgment
based on her special defenses, claiming that all of her
statements about the plaintiff were made in preparation
for and as part of a quasi-judicial proceeding and thus
were protected utterances and statements entitled to
absolute privilege. The defendant further claimed that
the plaintiff's 1994 counts were barred by the statute
of limitations. See footnote 1. The plaintiff objected,
arguing that the arbitration was not a quasi-judicial
proceeding, and, therefore, the defendant's statements
should not be afforded immunity. The plaintiff further
argued that the defendant's statements to Slyman in
1997, although Slyman allegedly was acting as an agent
of the employer, were not part of the arbitration and,
therefore, were not entitled to the protection of immunity
even if the defendant's actual testimony at the
arbitration hearing was afforded such protection. The
court granted the defendant's summary judgment
motion, concluding that the counts regarding the 1994
statements were barred by the applicable statute of
limitations and that the two remaining counts regarding
the 1997 statements were protected as statements made
in preparation for and as part of a quasi-judicial proceeding.
This appeal followed.

* * *

The plaintiff first claims that the court improperly
failed to review his claim that the arbitrator lacked
subject matter jurisdiction.2 Specifically, he argues that
the agreement to submit to arbitration was in opposition
to General Statutes § 51-278b (b),3 which limits the
authority to terminate prosecutors to the criminal justice
commission, and thus the arbitrator did not legally
possess any of the powers referenced in Field v. Kearns,
supra, 43 Conn. App. 272. He argues that the agreement
was contrary to law, a nullity and unenforceable in
accordance with our Supreme Court's decision in Nagy
v. Employees' Review Board, 249 Conn. 693, 706–707,
735 A.2d 297 (1999).

We note at the outset that it was the plaintiff who,
through his union, initiated the arbitration proceedings,
which took place in 1997. The plaintiff claims that he
raised the issue of the arbitrator's subject matter jurisdiction
at some point during those proceedings, but the
plaintiff has not provided this court with any record to
support this claim. There is no evidence in the record
that the plaintiff objected to the arbitrator's jurisdiction
in the arbitration itself, or before the Superior Court
or this court on appeal from the arbitrator's decision.
See Preston v. State Division of Criminal Justice,
supra, 60 Conn. App. 853; Preston v. State Division of
Criminal Justice, supra, Superior Court, Docket No.
572637. Only now, after having commenced a separate
tort action against the defendant, does the plaintiff
claim that the arbitrator lacked authority over the subject
matter of the arbitration. ‘‘The authority of the
arbitrator is a subject matter jurisdiction issue, and as
such it may be challenged at any time prior to a final
court judgment.'' Bennett v. Meader, 208 Conn. 352, 364,
545 A.2d 553 (1988).

We conclude that the time has passed for the plaintiff
to object to the arbitrator's jurisdiction. The plaintiff
voluntarily submitted his dispute to arbitration by
action of the union without objecting to the arbitrability
of the dispute. Although, in their agreement, the parties
preserved the plaintiff's right to raise arbitrability to
the trial court, the plaintiff failed to raise the arbitrability
issue argued here before the arbitrator, the trial court or this court in the previous action. Compare
Caldor, Inc. v. Thornton, 191 Conn. 336, 341 n.3, 464
A.2d 785 (1983) (arbitrability waived where not raised
by parties at trial or on appeal), aff'd, 472 U.S. 703, 105
S. Ct. 2914, 86 L. Ed. 2d 557 (1985). The plaintiff here
could have sought a declaratory judgment, as did the
plaintiff in Massameno v. Statewide Grievance Committee,
234 Conn. 539, 543–44, 663 A.2d 317 (1995), in
which the plaintiff claimed that because he was subject
to discipline by the criminal justice commission, he was
exempt from the regular grievance procedures applicable
to attorney's generally. In the alternative, the plaintiff
here might have sought a temporary or permanent
injunction restraining or prohibiting the union from initiating
or proceeding with any arbitration action as
requested by the plaintiff in Board of Police Commissioners
v. White, 171 Conn. 553, 554–55, 370 A.2d 1070
(1976). Although the plaintiff claimed that he objected
to the arbitration, he has failed to show this court where
in this record his objection could be found. We conclude,
therefore, that the plaintiff failed to preserve for
judicial review the issue of jurisdiction and that the
court's failure to review it was not improper.

A determination as to the arbitrator's subject matter
jurisdiction or lack thereof, moreover, would not
remove the defendant's statements from the protection
of the absolute privilege for statements made by witnesses
in the course of quasi-judicial proceedings.
‘‘There are frequent dicta to the effect that the tribunal
must have jurisdiction, or power to act in the situation
presented; but this would compel everyone concerned
to decide the question of jurisdiction at his peril, and
it seems clear that the correct rule is that a mere color
of jurisdiction, in fact assumed, is sufficient.'' W. Prosser
& W. Keeton, Torts (5th Ed. 1984) § 114, p. 819. It
has never been the rule in Connecticut that a determination
of whether a witness' statements are protected
by absolute privilege must wait until the plaintiff has
exhausted every opportunity to attack the jurisdiction
of the tribunal. Such a rule would defeat the very purpose
of the privilege of encouraging testimony free from
fear of reprisals. Therefore, the trial court was not
required to determine the jurisdiction of the arbitrator
in the plaintiff's previous matter.

II

The plaintiff next claims that the court improperly
concluded that arbitration was a quasi-judicial proceeding
for purposes of absolute immunity. Specifically, the
plaintiff argues that the collective bargaining agreement
does not require that a record of the proceeding be
kept or that witnesses be under oath so that they are
subjected to the potential penalty of perjury. He argues,
therefore, that the arbitrator had no powers to enforce
or impose penalties of contempt or otherwise to
threaten the use of criminal sanction on untruthful witnesses and for lack of those powers failed the sixth
prong of Field v. Kearns, supra, 43 Conn. App. 272.

The issue is whether the arbitrator's lack of power
to enforce or impose penalties of contempt or otherwise
to threaten the use of criminal sanction on untruthful
witnesses prevents the arbitration from being a quasijudicial
proceeding and thereby deprives witnesses testifying
therein of the protection of absolute immunity
for those statements.

‘‘The scope of our appellate review depends upon
the proper characterization of the rulings made by the
trial court. . . . When . . . the trial court draws conclusions
of law, our review is plenary and we must
decide whether its conclusions are legally and logically
correct and find support in the facts that appear in the
record.'' (Internal quotation mark omitted.) Serrano v.
Burns, 70 Conn. App. 21, 25, 796 A.2d 1258, cert. denied,
261 Conn. 932, 806 A.2d 1066 (2002). Because the court
in the present case rendered judgment for the defendant
as a matter of law, our review is plenary.

In Field, we explained that ‘‘[i]n determining whether
a proceeding is quasi-judicial . . . our review is not
limited to the label of the proceeding, but includes a
review of the proceeding itself. The principal factors
to be considered 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. . . .
Further, quasi-judicial is defined as the action, discretion,
etc., of public administrative officers or bodies,
who are required to investigate facts, or ascertain the
existence of facts, hold hearings, weigh evidence, and
draw conclusions from them, as a basis for their official
action, and to exercise discretion of a judicial nature.''
(Citations omitted; internal quotation marks omitted.)
Field v. Kearns, supra, 43 Conn. App. 271–72.

‘‘Arbitration is the voluntary submission, by the interested
parties, of an existing or future dispute to a disinterested
person or persons for final determination. . . .
General Statutes § 52-408 provides a statutory right for
parties to agree in writing to arbitration.'' (Citations
omitted; internal quotation marks omitted.) Jacob v.
Seaboard, Inc., 28 Conn. App. 270, 273, 610 A.2d 189,
cert. denied, 223 Conn. 923, 614 A.2d 822 (1992). Oftentimes,
‘‘[a]rbitration is a quasi judicial proceeding. See
Florasynth, Inc. v. Pickholz, 750 F.2d 171, 173–74 (2d
Cir. 1984); Caldor, Inc. v. Thornton, [supra, 191 Conn
344–45]; Local 530, AFSCME, Council 15 v. New Haven,
9 Conn. App. 260, 269, 518 A.2d 941 (1986). It is a
contractual remedy intended to avoid the formalities
of ordinary litigation. . . . Such a quasi judicial proceeding
is adversarial in nature, and implies that the parties will present witnesses and evidence, if they
want, after notice of a hearing date, and argue their
positions to an impartial decision maker. . . .

‘‘Our statutes make provisions for subpoena and
deposition powers, formal notice to the parties, arbitrator's
oaths, and the time necessary to render awards.
See General Statutes §§ 52-411 through 52-416.'' (Citations
omitted.) Jacob v. Seaboard, Inc., supra, 28 Conn.
App. 275–76.

‘‘In Connecticut, parties to or witnesses before judicial
or quasi-judicial proceedings are entitled to absolute
immunity for the content of statements made
therein.'' Field v. Kearns, supra, 43 Conn. App. 271.
‘‘The effect of an absolute privilege is that damages
cannot be recovered for a defamatory statement even if
it is published falsely and maliciously. . . . The policy
underlying the 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.

...

‘‘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 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.''
(Citations omitted; internal quotation marks omitted.)
Petyan v. Ellis, 200 Conn. 243, 246, 510 A.2d 1337 (1986).
‘‘There is, of course, no really effective civil remedy
against perjurers; that lack is simply part of the price
that is paid for witnesses who are free from intimidation
by the possibility of civil liability for what they say.
. . . The common law absolute privilege itself is not
confined to the testimony of a witness but extends to
any statement made in the course of a judicial proceeding,
whether or not given under oath, so long as it is
pertinent to the controversy. . . . Thus it applies to
statements made in pleadings or other documents prepared
in connection with a court proceeding.'' (Citations
omitted; internal quotation marks omitted.) Id.,
251–52. We conclude that here the court properly concluded
that the arbitration was a quasi-judicial proceeding. The
arbitrator was an impartial decision maker who performed
a judicial function by holding hearings where
the parties argued their cases and presented witnesses
and evidence. The parties agreed that the arbitrator had
the power of discretion in applying the law to the facts
and in rendering a final award. By statute, the arbitrator
had the power to subpoena witnesses and to provide
formal notice to the parties and was given the time necessary to render awards. General Statutes §§ 52-
411 to 52-416. Although not required to do so by the
collective bargaining agreement, the witnesses testified
under oath.4 Furthermore, by statute, either party could
appeal to the trial court to request an order confirming
the arbitrator's award or to vacate, modify or correct
the award. General Statutes §§ 52-418 and 52-419. On
the basis of the foregoing, we conclude that the arbitrator
possessed the authority to conduct proceedings of
a quasi-judicial nature.

Notwithstanding the plaintiff's argument to the contrary,
we need not specifically find that the sixth prong
of Field v. Kearns, supra, 43 Conn. App. 272 - whether
decision-making body has the power to enforce decisions
or impose penalties - was fulfilled in this case.
The Field decision merely lists the principal factors to
be considered, but it does not state that all of the factors
have to be satisfied to find that a proceeding is quasijudicial.
See id., 271–72; see also Thomas v. Petrulis,
125 Ill. App. 3d 415, 420, 465 N.E.2d 1059 (Ill. App. 1984)
(‘‘quasi-judicial body need not possess all six powers'').

All of the defendant's statements underlying the plaintiff's
1997 libel and slander claims allegedly were made
before and during the arbitration hearing.5 All of these
statements were made either to the employer or to the
arbitrator and were made in preparation for or during
the arbitration hearing. Moreover, the statements were
obviously pertinent to the purpose of the hearing
regarding the termination of the plaintiff's employment,
which was supported in part by his behavior toward
the defendant. The dictates of public policy require
that a witness involved in an arbitration proceeding
regarding the fitness of a prosecutor be able to state
candidly her reasons for complaining about the prosecutor
as long as the statement bears a reasonable relation
to the purpose of the proceeding. See, e.g., Petyan
v. Ellis, supra, 200 Conn. 250–51. Moreover, permitting
absolute immunity in such a situation furthers the policy
underlying the privilege ‘‘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.''
(Internal quotation marks omitted.) Id., 246.

The plaintiff argues that we should draw a distinction
in this case between purely private labor arbitration
and the actions of public administrative officers or bodies;
see Field v. Kearns, supra, 43 Conn. App. 272; when
reaching the conclusion that the arbitration in this case
was a quasi-judicial proceeding entitled to absolute
immunity. We are not persuaded for several reasons.

First, our legislature has enacted a number of statutes;
see, e.g., General Statutes §§ 52-417 et seq. and
52-549z; that allow arbitration awards to be converted
into judgments of the court. These statutes evince the
legislature's approval of the arbitration process, in general, as an efficient form of alternate dispute resolution,
which avoids the cost to the parties and the public of
a formal trial. See Nunno v. Wixner, 257 Conn. 671,
682–83, 778 A.2d 145 (2001). If witnesses in arbitration
proceedings were not afforded the protection of absolute
immunity, as in more formal judicial proceedings,
arbitration no longer would be seen as a desirable alternative
form of dispute resolution.

the plaintiff's union submitted the plaintiff's grievance
to binding arbitration pursuant to the terms of a collective
bargaining agreement.6 The plaintiff's argument
fails to acknowledge the significance of the State
Employee Relations Act; General Statutes §§ 5-270 to
5-280; in the present situation. The act authorizes the
use of employee organizations for the purpose of negotiations
between the state and its employees, and the
creation of collective bargaining agreements for state
employees.7 See General Statutes §§ 5-271, 5-276 and 5-
276a. The act also contemplates the use of arbitration
for resolving contract disputes between the state and
employee organizations. General Statutes § 5-276. Collective
bargaining agreements, such as the one in this
case, are to be reduced to writing and submitted to the
General Assembly for approval. General Statutes § 5-
278 (b). Where, as here, an agency enters into an
agreement on behalf of the state and our legislature
has not expressed disapproval of the terms of the
agreement, we do not agree with the plaintiff that the
matter involves a matter of purely private labor arbitration.
See General Statutes § 5-278 (b) (agreement
deemed approved if not rejected by General Assembly
within thirty days after submission).

III

The plaintiff claims that even if the defendant's testimony
during the hearing was entitled to absolute immunity,
the court improperly concluded that the
statements and actions of the defendant made before
arbitration were entitled to absolute immunity. We do
not agree. Our resolution of the plaintiff's second claim
resolves this claim because we concluded that the court
properly found that the defendant's statements made
before the arbitration hearings were made in preparation
for the hearing and therefore were entitled to absolute
immunity as part of a quasi-judicial proceeding.

IV

The plaintiff's final claim is that the court improperly
denied his motion to seal portions of the file. He argues
that the court improperly permitted the defendant to
attach to her motion for summary judgment an assistant
state's attorney's affidavit containing information that
was erased by operation of law, which thus constituted a prohibited disclosure. We do not agree.

The following additional facts are relevant to this
claim. The affidavit of the assistant state's attorney referenced
exhibits A and B, which were the agreement
and arbitration award, respectively. Thereafter, the
plaintiff filed a motion to seal portions of the file pursuant
to Practice Book § 11-20 (b),8 claiming that the
attached award should be sealed because it contained
information that had been previously erased pursuant
to General Statutes § 54-142a9 and prohibited from disclosure.
Specifically, the plaintiff claimed that the arbitrator's
reference to the criminal charges that arose as
a result of the defendant's complaints was improper.
With regard to the criminal charges, the plaintiff had
accepted accelerated rehabilitation. The court denied
the plaintiff's motion. In an articulation of its decision
on the motion to seal portions of the file, the court first
found that an affidavit executed by the assistant state's
attorney contained no reference to any information previously
erased in accordance with § 54-142a. The court
further stated that ‘‘[t]he document to which the plaintiff
is presumably referring is the arbitration opinion and
award, not written by [the assistant state's attorney], but
included in the submissions to the court in conjunction
with the motion for summary judgment. The plaintiff
appealed this award to the Superior Court, the award
was affirmed, [Preston v. State Division of Criminal
Justice, supra, Superior Court, Docket No. 572637] and
he then appealed to the Appellate Court, which also
affirmed the award, [Preston v. State Division of Criminal
Justice, supra, 60 Conn. App. 853]. The court notes
that this award has not been sealed in any other proceedings
before the Superior or Appellate Court.
Accordingly, there is no reason to seal the award in
this action.''

We review a court's denial of a motion to seal on the
basis of whether it is an abuse of discretion. ‘‘Practice
Book § 11-20 (b) permits a trial court to order that files,
affidavits, documents or other materials on file with
the court be sealed or their disclosure limited if the
court concludes that such order is necessary to preserve
an interest which is determined to override the public's
interest in attending such proceeding or in viewing such
materials. Any such order shall be no broader than
necessary to protect such overriding interest.'' (Internal
quotation marks omitted.) Doe v. Hartford Roman
Catholic Diocesan Corp., 51 Conn. App. 287, 290–91,
721 A.2d 154 (1998).

General Statutes § 54-56e permits a court to grant
accelerated pretrial rehabilitation and to require that an
accused perform probation conditions. If the accused
performs the probation conditions as required by the
court, then the charges may be dismissed and shall
be erased pursuant to § 54-142a. Section 54-142a (a)
provides in part that ‘‘[w]henever in any criminal case,
on or after October 1, 1969, the accused, by a final
judgment, is found not guilty of the charge or the charge
is dismissed, all police and court records and records
of any state's attorney pertaining to such charge shall
be erased upon the expiration of the time to file a writ
of error or take an appeal . . . .'' Section 54-142a (e)
provides in part that ‘‘any law enforcement agency having
information contained in such erased records shall
not disclose to anyone . . . information pertaining to
any charge erased under any provision of this section
. . . .''

We conclude that the court did not abuse its discretion
when it denied the plaintiff's motion to seal. The
court's factual findings, which were not challenged on
appeal, are essentially that the arbitrator's award that
the plaintiff sought to seal was not a representation
made by the assistant state's attorney, rather it was the
ruling of the arbitrator, which was one of the documents
submitted with the summary judgment motion. Furthermore,
the court noted that the defendant failed to ask
that portions of the file be sealed in prior proceedings.
We therefore conclude that the court did not abuse its
discretion in declining to seal the arbitration award
because it was already in the public domain.