A Connecticut law that helps protect speech against frivolous lawsuits recently received an 89 percent rating from the Institute for Free Speech (IFS). The rating has increased because of recent court rulings that require courts to address challenges to frivolous lawsuits more quickly.

Connecticut received an A- grade for its anti-SLAPP law. Lawsuits that are filed against individuals over their protected speech are called strategic lawsuits against public participation (SLAPP). They are often filed not with the intention of winning on the merits, but with the intention of harassing individuals for things they have said, and often have the effect of chilling speech.

Many states, including Connecticut, have anti-SLAPP laws. Connecticut’s law creates a special motion to dismiss a lawsuit that’s based on speech, staying discovery and expediting its dismissal if a judge finds it retaliates against someone for speech protected by the First Amendment. If a lawsuit is found to retaliate against protected speech, the complainant must pay costs and attorneys’ fees.

“In any civil action in which a party files a complaint, counterclaim or cross claim 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, counterclaim or cross claim.” the statute reads.

The state’s A- rating is based primarily on the amount of speech covered by the statute and received 90 out of 100 points. The statute received a B+ grade, or 86 out of 100 points, for the statute’s anti-SLAPP protections.

IFS gave Connecticut’s statute the highest points for putting the burden of proof of defeating an anti-SLAPP motion onto the plaintiff, awarding it 12 out of 12 points. The statute also received high scores for awarding costs and attorney fees to the plaintiff, awarding it 36 out of 40 points, and for suspending court proceedings when an anti-SLAPP motion is filed, awarding it 18 out of 20 points.

As originally written, the statute did not have a right to interlocutory appeal. Broadly, this is a mechanism that allows the respondent to request a higher court immediately rule on a particular issue. IFS previously gave Connecticut’s anti-SLAPP statute a B+ rating because this right was missing.

However, while there is no statutory right to interlocutory appeal, a series of recent Connecticut Supreme Court rulings established the right exists within the law. IFS gave Connecticut’s law 20 out of 25 points for creating a right to an immediate appeal.

The law received no points for giving expansive statutory interpretation instructions to courts.

Under Connecticut’s statute, when a special motion to dismiss is filed, the court stays all discovery but can grant a party’s or its own motion to order “specified and limited discovery” relevant to the motion. The court then conducts an expedited hearing no later than 60 days from the date of the special motion to dismiss. In determining how to rule on the special motion to dismiss, the court looks at pleadings and supporting and opposing affidavits “attesting to the facts upon which liability or a defense, as the case may be, is based.”

Courts are directed to grant a motion to dismiss if the party who brings it can show by a preponderance of the evidence that the complaint against them is based on either their protected First Amendment activities or as a matter of public concern. The only exception to such a ruling is if the person filing the SLAPP suit can show “with particularity” the circumstances that give rise to the complaint and show the court there is probable cause they will prevail on the merits.

The lack of specific statutory instructions for courts recently led to a ruling from the state appellate court finding that a trial court had erred in holding an evidentiary hearing on a special motion to dismiss because the statute does not allow for it to do so.

In that case, plaintiff Marcio Rene Aguilar filed a lawsuit against his wife, Carmelite Jean Pierre. Aguilar and Pierre had two children together, and Pierre had two children from a prior relationship. After Pierre suffered a traumatic brain injury and was rendered a quadriplegic, defendant Jean Pierre was appointed as the conservator of her estate. Aguilar also asked Pierre to become legal guardian of J, one of Pierre’s children from a previous relationship, in early 2019. Later, Pierre took physical custody of J to help address his remote learning needs.

J was later returned to Aguilar’s custody. Pierre later reported to J’s pediatrician that she was being sexually and physically abused by Aguilar after J reportedly confessed the abuse to her. The pediatrician reported the claim to the Department of Children and Families (DCF). DCF initially substantiated the abuse claim but later reversed it after an administrative hearing.

Aguilar filed a lawsuit against Pierre, alleging defamation, fraud, vexatious litigation, and intentional infliction of emotional damage based on her report to the pediatrician and DCF’s investigation.

Pierre filed a special motion to dismiss under the state’s anti-SLAPP law, claiming the lawsuit was an attempt to “chill [her] right to petition the government on a matter of public concern.” Aguilar opposed the motion, arguing Pierre had failed to meet her burden under the law and that there was probable cause he would prevail on the merits of his claim.

The trial court then held an evidentiary hearing on Pierre’s special motion to dismiss. It made its ruling granting Pierre’s motion based on a finding of facts from the hearing.

But the appeals court found that the anti-SLAPP law does not authorize the trail court to conduct an evidentiary hearing on a special motion to dismiss or to make its ruling on the motion based on evidence from that hearing.

“If the legislature intended to permit the court, in ruling on a special motion to dismiss, to consider evidence admitted at a hearing, it presumably would have said so, as the legislature in at least three other states have done.” the court wrote in its ruling. They also noted that holding an evidentiary hearing slows down and adds cost to a special motion to dismiss, which is contrary to the intent of the law.

The appellate court remanded the case to the trial court.

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