A recent ruling from the New Haven Superior Court found that a law which protects the public from frivolous lawsuits primarily intended to chill speech protected by the First Amendment can not be used by public officials.
The court found that public officials can not bring a special motion to dismiss a lawsuit under a Connecticut statute that seeks to stop strategic lawsuits against public participation, or SLAPPs. The ruling looked to dicta in a previous decision from the Connecticut Supreme Court, which stated that one of the distinctive elements of a SLAPP suit is that it is filed against a nongovernment individual based on their communication with government agencies about issues of public concern.
Connecticut’s anti-SLAPP statute, which went into effect in 2018, allows defendants to file a special motion to dismiss certain lawsuits, which stays discovery and expedites the end of a suit if it is found to have been filed to chill protected speech. “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 states.
The recent ruling from the New Haven Superior Court rejected a special motion to dismiss claims of conspiracy,defamation, and emotional distress against several former officials in the Pomperaug District Department of Health (PDDH) on the grounds that the state’s anti-SLAPP statute does not “extend to governmental defendants.”
The court did dismiss a special motion to dismiss from three additional defendants not being sued in their official capacity.
In November 2023, Neil Lustig filed a lawsuit claiming a “conspiratorial series of events” that were “fueled by antisemitism and false complaints of misconduct” forced him to retire from the PDDH, where he had served as director of health for 33 years.
Lustig’s lawsuit claims that Sean Falzarano, a nurse with PDDH, made false misconduct allegations against him, which were brought to Anne Neumann, the former chair of the PDDH board of directors, to oust him on grounds of his religious and ethnic background. Lustig eventually reached a settlement agreement with PDDH, which included a payment plan. Lustig’s complaint alleges PDDH and its successor, the Housatonic Valley Health District (HVHD), failed to stick to the installment plan.
He also alleges that both PDDH and HVHD, Linda Morrissey, a former health director of PDDH; Valerie Cinkovic, the owner of VMC Consulting, which was hired to investigate Lustig; Kevin Anderson, who was employed by VMC Consulting; Neumann; Falzarano, and law enforcement conspired to investigate him for fabricated financial crimes during his tenure as director of health and publicized false claims to news media, eventually leading to an arrest warrant being issued and Lustig’s assets being frozen.
In March 2024, the defendants filed a special motion to dismiss the lawsuit, stating Lustig’s suit “weaves together a tapestry” based on speech protected by the First Amendment that was covered by Connecticut’s anti-SLAPP statute.
“[Lustig] has made claims involving Defendants’ communications about matters of public concern involving a public health district that relies on public funds, and [Lustig’s] actions as the public official leading that district.” the special motion to dismiss argued.
The Superior Court noted that, while neither the Supreme Court nor Connecticut appellate courts have directly ruled on whether the anti-SLAPP statute applies to government actors, both have addressed it in dicta. While the Supreme Court found that a defendant being a nongovernment actor is a distinctive element of a SLAPP action, the appellate court has suggested in some cases that governmental actors can use the anti-SLAPP statute.
“[B]etween dicta in Supreme Court opinions and dicta in Appellate Court opinions, this court gives greater weight to the former.” the appellate court wrote.
The court found that the government does not have rights that could be violated or need to be protected.
“The question, then, is whether governmental entities have, and therefore may exercise, constitutional rights. But governments—whether federal, state, or municipal—do not have constitutional rights; they have constitutional powers; e.g., the power to levy taxes, the power to regulate commerce, the power to enact criminal laws, etc.” the court wrote. “Thus, the First Amendment does not protect the government’s “right” to speak; rather, it guarantees nongovernmental persons the right to freedom of speech without government interference or sanction.”
“It makes little, if any, sense to speak of the government, even a municipal government, as having the constitutional right to “petition” itself or to “associate” with itself. Yet the defendants make those very arguments in this case.” the decision concluded.
However, the court did grant the special motion to dismiss Lustig’s lawsuit against three of the defendants—VMC Consulting, Cinkovic, and Anderson—who were nongovernmental actors.
Under the anti-SLAPP statute, individuals who bring a special motion to dismiss bear the burden of proving that a lawsuit falls within the scope of the law. The court found that while there was evidence in the record to show VMC Consulting, Cinkovic, or Anderson may have made false statements, there was no evidence to establish probable cause they had acted maliciously or to meet the standard of evidence required for actual malice.
The governmental actors named as defendants in Lustig’s lawsuit have appealed the ruling to the appellate court.
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