3 Mash.Rep. 479, 2002 WL 34244445 (Mash. Pequot Tribal Ct.), 5 Mash. 170
Mashantucket Pequot Tribal Court.
Richard PERRON and Jack Drumm, Plaintiffs
MASHANTUCKET PEQUOT TRIBE, et al., Defendants.
July 11, 2002.
Attorneys and Law Firms
Edwin T. Scallon and Marc Press, for Plaintiff Perron.
Ivan M. Katz, for Plaintiff Drumm.
David S. Williams, for Defendant.
A. Findings of fact
In 1995, Plaintiff Richard A. Perron, a detective with the Connecticut State Police, was working in the casino unit out of Meriden, Connecticut. Plaintiff John C. Drumm was a sergeant with the state police, also in the casino unit, working out of Foxwoods Resort Casino. Both men were assigned to the Bureau of Criminal Investigation within the state police. As a sergeant in the casino unit, Drumm was one of Perron’s supervisors but not his direct supervisor. In the course of Connecticut State Police investigations of various financial crimes at the casino, Mashantucket Pequot Gaming Enterprise security personnel alerted Det. Perron, Sgt. Drumm and other state police officers about a possible double-billing scheme at Foxwoods. Det. Perron was assigned as the primary investigating officer. Sgt. Drumm had no supervisory responsibilities regarding the investigation. The source of information about the alleged scheme was a woman identified at trial as the confidential informant, or Geraldine, a Gaming Enterprise employee in the accounts payable office.
The security department of the Gaming Enterprise also knew about the double-billing scheme. Security supervisor Michael Wilson testified that he believed his department’s newly formed investigative unit would carry out an investigation of the double-billing scheme in conjunction with the state police. Mr. Wilson’s supervisor, Richard E. Sebastian, director of security at the Gaming Enterprise, denied formation of such investigative unit, but he did admit his department’s involvement in the investigation. He told the Court that, because he and Wilson believed senior management might be involved in the scheme, he tried to keep the investigation confidential. To that end, Sebastian intentionally failed to inform his direct supervisor, George Henningsen, about the investigation into the alleged double-billing scheme.
Det. Perron shared Mr. Sebastian’s suspicion that members of Foxwoods management were possible suspects in the double-billing scheme. Sgt. Drumm also had doubts about Foxwoods management, especially about Joseph Carlini, then director of the Mashantucket Pequot Gaming Commission, who he said routinely failed to cooperate with state police investigations.
In the meantime, Sgt. Drumm attended at least one meeting in early November 1995 between members of the state police and members of the Mashantucket Pequot Tribal Council at the home of security director Sebastian. Along with Drumm and Connecticut State Police Lieutenant Bradley Beecher, Sebastian and four Tribal Council members attended the meeting. Testimony established that then-Vice Chairman Kenneth Reels, Pedro Johnson, Michael Thomas and at least one other Tribal Council member attended the meeting. Sgt. Drumm, Mr. Sebastian and Mr. Johnson all testified that some mention of a double-billing scheme was made at the meeting, but other details of the meeting remain unclear.
On Sunday, November 12, 1995, the double-billing investigation switched into high gear when Det. Perron received a phone call at home from Mr. Wilson, who told the Plaintiff he had information about where to find documents that could corroborate the confidential informant’s claims. Det. Perron called the on-duty supervisor, Sgt. O’Hara, for authorization to work overtime on the case, and then he agreed to accompany Wilson on the mission to uncover evidence of the double-billing scheme. Det. Perron accompanied Wilson to a tribal building on Route 184 in North Stonington, Connecticut. During their ride over to the Route 184 Building, Wilson told Perron that Sebastian had authorized entry into the office where they believed the records were kept and that he had also authorized the use of a locksmith if necessary. A security guard was on duty that day, and the outside door to the building was open, but, as anticipated, Wilson needed to call a locksmith to gain entry into the office where he hoped to find the documents.
At trial, Wilson and Sebastian testified that to justify entry into the office without raising suspicion and without compromising the secrecy of the investigation, Wilson, with Sebastian’s permission, told the locksmith he needed to get into the office to investigate a foul odor. It is uncontroverted that Perron had nothing to do with initiating or perpetuating the foul-odor story. Once inside the office, Wilson attempted to cover the window with cardboard to shield his actions from the security guard, but Perron told him such precaution was unnecessary. It is uncontroverted that Det. Perron touched nothing in the office and that Wilson alone searched the office for the relevant documents, finding none.
After coming up empty-handed, Wilson called Sebastian, who gave him permission to enter the Klewin trailers, located on the Tribe’s Reservation, to search for the documents. At the trailer, Wilson and Perron met security personnel, who used the access code to deactivate the security system. Wilson then “defeated” the lock of the office where he believed the documents were located, and he searched the room without finding the records he sought. It is uncontroverted that Det. Perron touched nothing in the office.
For his part, it is uncontroverted that on November 12, 1995, the date of the office entries, Sgt. Drumm was not on the Reservation. It is also uncontroverted that Sgt. Drumm had absolutely no advance knowledge of the entries into the Route 184 Building and the Klewin trailer. Sgt. Drumm did not learn how the entries were carried out until weeks after the fact, on December 7, 1995, when Sebastian told him what had happened.
It was also on December 7, 1995, that upper management first learned of the entries into the Route 184 Building and the Klewin trailer. (Def.’s Ex. 12.) After a preliminary investigation into the matter, then-Senior Vice President of Operations George Henningsen and Robert T. Winter, general counsel, sent a memorandum dated December 11, 1995, to Mickey Brown summarizing the results of their investigation into the “unauthorized searches.” Mr. Brown, then CEO of the Gaming Enterprise, in turn sent a memorandum to Mr. Hayward, with the Henningsen memorandum attached.
On December 11, 1995, then Chairman of the Mashantucket Pequot Tribe Richard A. Hayward sent a letter to Connecticut Governor John G. Rowland, seeking his immediate help in investigating whether “a member of the State Police” was “involved in two illegal break-ins involving Mashantucket Pequot Tribal property.” (Pl. Perron’s Ex. 6.) The text of the letter to Governor Rowland mentioned neither Plaintiff by name, but the enclosed Henningsen–Winter memorandum, referenced above, placed Det. Perron at the scene of the “break-ins” and mentioned Sgt. Drumm twice without implicating him in any wrongdoing. On December 13, 1995, Governor Rowland wrote to Commissioner of Public Safety Kenneth H. Kirschner and instructed him to “take every step possible to determine whether the alleged wrongdoing occurred and, if so, to prosecute the individuals(s) involved to the fullest extent of the law.” (Pl. Perron’s Ex. 1.) In response to the Governor’s directive, Commissioner Kirschner assigned the criminal investigation to the Eastern District Major Crime Squad. (See Def.’s Ex. 10 at 1.) The resulting investigation concluded that no criminal laws were violated. (Id.)
The alleged break-ins and their aftermath sparked months of heated media coverage, which began on December 15, 1995, when an article appeared in the New London Day with the headline “Break-ins at casino to be investigated: Rowland orders probe into charge against police officers.” The article began: “Gov. John G. Rowland has ordered an investigation into charges that a state police officer was involved with break-ins at offices on property belonging to the Mashantucket Pequot tribe.” The article continues: “According to casino and police officials, the officer Detective Richard Perron, a member of the Connecticut State Police unit at the tribe’s Foxwoods Resort Casino, allegedly broke into the tribe’s finance offices and a trailer belonging to C.R. Klewin Inc. .... Another police officer, who was not identified, allegedly knew about the break-ins, casino sources said. Two of the sources called it a ‘Watergate-like’ operation.” (Def.’s Ex. 4.) Later, the article reads: “A police source familiar with the investigation said casino officials hope to discredit state police because of their ongoing investigation into bribery and corruption by casino officials. The source suggested the allegations against the officer are a ‘smokescreen.’ ” Det. Perron’s name does not appear again in the article, and Sgt. Drumm’s name does not appear at all.
In response to the above article, on December 15, 1995, Defendants issued a press release with the headline, “Statement of G. Michael Brown, President & CEO of Foxwoods Resort Casino.” (Pl. Drumm’s Ex. 1.) The Plaintiffs’ names do not appear in the press release. The next day, the Hartford Courant and the New London Day ran news articles containing several of the statements from the press release.
The media coverage continued in a series of articles, editorials and advertisements that ran in area newspapers from December 16, 1995, through March 30, 1996. Several of Defendants’ statements published in the media and to Governor Rowland inspired Plaintiffs to sue Defendants for libel. Plaintiffs did not complain, however, about the New London Day’s January 13, 1996, front-page article with the headline “Lawyer claims Mashantuckets blocking investigation: State police assigned to casino hire counsel.” (Def.’s Ex. 5.) The article begins: “Noted civil rights lawyer John Williams has been retained by two state police officers assigned to Foxwoods Resort Casino, and he claims a police investigation into possible organized crime there has been blocked by conspiring casino executives.” Halfway through the first page of the article, Plaintiff Perron’s name appears. The pertinent portions of the article read:
The attorney said he expects his client, state police detective Richard Perron, to be cleared of any wrongdoing in a pending state police investigation triggered by a tribal complaint about police breaking into casino offices in November.
Tribal officials claimed Perron and casino security officials broke into finance offices and a construction trailer in November as part of a state police corruption probe....
Williams said Perron was allowed into the offices by the casino’s security director and that state police are given access to casino records under the terms of the tribe’s gaming compact with the state.
(Id. at ¶¶ 7–9.)
The article continues on an inside page, where Sgt. Drumm’s name appears. The presence of Sgt. Drumm’s name in the article marks the first time he was identified in the press in connection with the alleged break-ins at Foxwoods. The article reads: “Williams’ other client is Sgt. Jack Drumm, a supervising investigator with the state police casino unit at Foxwoods. Drumm has not been implicated in the alleged break-in but has been blocked in his investigation work at the casino, his attorney said.” Toward the end of the article, the Day quotes Williams as saying, “I think it is absolutely clear that Detective Perron’s job is to make sure that organized crime does not get its nose under the tent at Ledyard, and there are some people employed by the tribe who have a vested interest in seeing that he does not do that job.”
The Internal Affairs Division of the state police thoroughly investigated the matter, and it fully exonerated Perron of any wrongdoing. Drumm was neither investigated nor charged with any wrongdoing. In March of 1996, however, Lt. Colonel William T. McGuire, second in command of the state police at the time, transferred the Plaintiffs out of the casino unit against their wishes. McGuire testified that the transfer was not disciplinary in nature, but rather that it served the needs of the department.
Det. Perron was upset by the publicity surrounding the alleged break-ins and his subsequent transfer out of the casino unit. He reported at trial that the false media reports caused him considerable pain and suffering. He testified that when he read the articles in the newspapers he got depressed. “I was sick over it.... I contemplated suicide....” (Tr. at 306.) He testified that he was “consumed” by the publicity and that “there were ups and downs and emotional moments.” (Tr. at 307.) Perron also reported that he had trouble sleeping and that his relationships with family members suffered as a result of the publicity and the investigation. Perron also testified that his emotional distress prevented him from taking an examination necessary to advance to the rank of sergeant, and that his failure to take the exam deprived him of the opportunity to earn more income.
Plaintiff Drumm observed Perron during the course of the investigation into the detective’s actions, and he testified that Det. Perron was “a mess” at the time. (Tr. at 2177.) “He was very emotional over it.... I was—it was bothering me but I was watching Richie really, really affect him, affect his work.... [H]e had some concerns at home that he expressed. I even at one point went and I met with his family ... because of the concern.” (Id.) Sgt. Drumm testified that Perron’s physical appearance also changed. “The guy had dark circles, drawn. This was consuming him.” (Tr. at 2178.) Sgt. Drumm testified that he had been concerned about Det. Perron’s health at the time and had asked Perron’s commanding officer “to kind of keep an eye on him.” (Tr. at 2179.) Plaintiff Perron did not seek medical treatment for the emotional stress he described, and he submitted no bills for medical services.
In contrast to the overt signs of distress exhibited by Det. Perron, Sgt. Drumm’s emotional distress was more subtle. Sgt. Drumm testified that the publicity and the investigations affected him, raised his blood pressure and kept him from sleeping. (See Tr. at 2087–2090.) Besides his own testimony, Sgt. Drumm presented no further evidence of emotional distress, and he admitted that he did not consult with a psychiatrist, psychologist or any other mental-health professional for treatment or counseling. (See Tr. at 2087.)
Det. Perron also testified that many of the statements in the press about the alleged break-ins were false. (See Tr. at 307–313.) He testified that as a result of what he regarded as false publicity, his own character “changed for the worse.” (Tr. at 313.) He reported that before the negative publicity, he was easy-going, and that the publicity and the investigation “hardened” him.
Det. Perron also reported at trial that his reputation at work suffered as a result of the false reports in the press. He testified, “[T]he people that I work with I’m known as the guy that broke into the trailers.” He said that on some occasions when he went to execute a search warrant, other troopers would ask him “to open the door because of the articles.” It is undisputed that Plaintiff Perron was neither suspended nor demoted as a result of the articles or his actions that prompted them. He presented no evidence other than his testimony that his reputation within the police force suffered as a result of the articles or the investigation into his conduct. In fact, his former commanding officer, Lt. Colonel McGuire, testified that he had a favorable impression of Perron’s abilities as a detective.
Drumm also claims that his reputation suffered injury as a result of the allegedly defamatory statements published by the Defendants. He presented no evidence other than his own testimony, however, to support his claim. The Court notes that Lt. Colonel McGuire had high regard for Drumm, so much so that he let him choose his own assignment when the department transferred him out of the casino unit. The Court also notes that, despite the controversy surrounding the break-ins, Sgt. Drumm has since been promoted to the rank of Master Sergeant within the state police.
B. Procedural background
This case commenced on July 31, 1997, when Plaintiffs filed a six-count complaint against the Defendants in the Tribal Court. The complaint alleged damages for five causes of action: malicious prosecution, libel and defamation, libel per quod, negative interference with contractual obligations, and emotional distress. The Plaintiffs sued the Tribe, the Tribal Council and the Mashantucket Pequot Gaming Enterprise for damages. After years of discovery and motions, the case came on for 13 days of testimony between August 22, 2001, and October 18, 2001. The Court heard testimony from eleven witnesses, including the plaintiffs, and received more than 50 exhibits into evidence. The parties gave closing arguments on January 3, 2002, and submitted a series of post-trial briefs. Shortly after final arguments, Plaintiff Drumm initiated a hopeful, but brief, attempt at settlement, but such efforts proved fruitless. The Clerk of Courts formally noticed the parties that the Court understood settlement was impossible and that it would therefore proceed to decide the case on the volumes of evidence before it.
To that end, the Court considers all of the substantive issues raised by the parties in this matter. The cost to the litigants, in time and money, is such that the Court makes its findings and conclusions on all substantive issues so that should any part of its decision be overturned on appeal, the parties will not have to re-litigate those issues at the trial-court level. This seems prudent because the Court has fully heard all of the claims and their elements so that should the Court be overturned on one of the elements or on a special defense, the parties will know the Court’s decision on the other elements or special defense.
After much consideration of the facts and complete analysis of the relevant laws, the Court, for reasons fully stated below, finds that the Plaintiffs have failed to prove their case by a preponderance of the evidence, failed to prove actual malice in their libel claims, and failed to prove any actual damages beyond mere speculation. Accordingly, the Court finds for Defendants on all counts.
II. Discussion and analysis
A. Count 1: Malicious prosecution
Count 1 charges:
Mashantucket Pequot Tribal Council, the Mashantucket Pequot Tribe and the Mashantucket Pequot Gaming Enterprise made a complaint of both criminal and civil conduct to employer of Plaintiffs, Detective Sergeant Jack Drumm and Detective Richard A. Perron. That Richard Hayward, Chairman of the ... Tribal Council, on behalf of the ... Tribe and the ... Gaming Enterprise, initiated or procured the institution of criminal [proceedings] against ... Richard Perron. That said criminal investigation and/or proceedings have terminated in favor of ... Perron.... [The] Tribal Council ... Tribe and ... Gaming Enterprise acted without probable cause. That the Defendants, jointly and severally, acted with malice primarily for the purpose other than that of bringing an offender to justice.
(Compl. ¶¶ 42–46.) For the reasons set forth below, the Court finds that Plaintiffs failed to prove that Defendants’ actions constituted malicious prosecution, and the Court enters judgment for the Defendants on Count 1.1
1. Defendant Gaming Enterprise
Title IV of the Mashantucket Pequot Tribal Laws governs all tort claims against the Gaming Enterprise. See IV M.P.T.L. ch. 1, § 8. In November of 1995, when this claim accrued, the Tribe was operating under the Sovereign Immunity Waiver, which allowed tort claims against the Gaming Enterprise to be brought in Tribal Court. The waiver, however, was “limited to claims based upon negligence.”2 Legislative History Revisions to Title IV B.1.a. In October of 2000, the Tribe amended Title IV to allow for intentional torts to be brought against the Gaming Enterprise, but “the amendments wholly replaced the earlier ordinance, and they do not apply to claims, such as the [Plaintiffs’], that accrued before their adoption.” Chiodo v. Mashantucket Pequot Gaming Enterprise, 5 Mash. 89, 92, 3 Mash.Rep. 407, 410 n. 1 (2001) (citations omitted). Malicious prosecution is an intentional tort, and at the time the action accrued, the Tribe had not waived its sovereign immunity for suit against the Gaming Enterprise for intentional torts. “Intentional tort claims do not fall within the ambit of the limited waiver of sovereign immunity provided by Title IV.” Schock v. Mashantucket Pequot Gaming Enterprise, 3 Mash. 258, 261, 3 Mash.Rep. 129, 136 (1999)(citing Usenia v. Mashantucket Pequot Gaming Enterprise, 3 Mash. 103, 105, 2 Mash.Rep. 370, 373–75 (1998)). Without an express waiver of sovereign immunity from the Tribe, the Gaming Enterprise cannot be sued. See Schock at 260, 3 Mash.Rep. at 134–35 (1999). “[A]bsent a waiver of tribal sovereign immunity applicable to the plaintiff’s claim this Court lacks subject matter jurisdiction.” Lewis v. Mashantucket Pequot Gaming Commission, 2 Mash. 242, 245, 2 Mash.Rep. 207, 213 (1997)(citing Nigrelli v. Mashantucket Pequot Gaming Enterprise, 1 Mash. 123, 125, 1 Mash.Rep. 183, 186 (1996)). Consequently, Count 1 against the Gaming Enterprise fails for
lack of subject matter jurisdiction, and judgment hereby enters for the Gaming Enterprise on Count 1.
2. Defendants Tribe and Tribal Council
The Tribe and the Tribal Council have waived sovereign immunity from suit under Title XII, and the Court has a specific grant of subject matter jurisdiction over civil actions. See XII M.P.T.L. ch. 1, §§ 1(a),(b); § 2(a).
This claim of malicious prosecution is an issue of first impression in the Court, so the Court will look to other courts for guidance. See Busch v. Brown, 1 Mash. 59, 60–61, 1 Mash.Rep. 79, 82 (1995)(noting that in a case first impression, the Court “looks to federal and state law for guidance”); see also DeLorge v. Mashantucket Pequot Gaming Enterprise, 3 Mash. 1, 4, 2 Mash.Rep. 78, 85–86 (1997). In McHale v. W.B.S. Corp, the Connecticut Supreme Court found that “[a]n action for malicious prosecution against a private person requires a plaintiff to prove that: (1) the defendant initiated or procured the institution of criminal proceedings against the plaintiff; (2) the criminal proceedings have terminated in favor of the plaintiff; (3) the defendant acted without probable cause; and (4) the defendant acted with malice, primarily for a purpose other than that of bringing an offender to justice.” McHale v. W.B.S. Corp., 187 Conn. 444, 447, 446 A.2d 815 (1982)(citing Zenik v. O’Brien, 137 Conn. 592, 595, 79 A.2d 769 (1951); Brodrib v. Doberstein, 107 Conn. 294, 296–98, 140 A. 483 (1928); McGann v. Allen, 105 Conn. 177, 185, 134 A. 810 (1926); 3 Restatement (Second) of Torts § 653 (1977); W. Prosser, Torts (4th Ed.1971) § 119). No action lies “against a person who ‘fully and fairly states all the material facts within his knowledge to the prosecuting attorney and in good faith abides by his decision as to whether they constitute probable cause for believing that a crime has been committed....’ ” McHale at 449, 446 A.2d 815 (quoting Brodrib, supra, at 298, 140 A. 483). The Court also notes that “a private person has not initiated a criminal proceeding if he has undertaken no more than to provide potentially incriminating information to a public officer.” McHale at 448, 446 A.2d 815. Further, “if the defendant has made a full and truthful disclosure and has left the decision to prosecute entirely in the hands of the public officer, he cannot be held liable for malicious prosecution.” Id. In the analysis of a claim for malicious prosecution, “[p]robable cause is the knowledge of sufficient facts to justify a reasonable person in the belief that there are reasonable grounds for prosecuting an action.” Smith v. Globe Ford, Inc., 39 Conn.Supp. 27, 33, 467 A.2d 1262 (1983)(citing Vandersluis v. Weil, 176 Conn. 353, 356, 407 A.2d 982 (1978)). “The existence of probable cause is an absolute protection against an action for malicious prosecution, and what facts constitute probable cause is a question of law.” Smith at 33, 467 A.2d 1262 (citing Brodrib, supra, at 296, 140 A. 483).
In the case at bar, Plaintiff Perron established that Mr. Hayward’s December 11, 1995, letter to Governor Rowland prompted the Governor to investigate the matter. The Governor wrote to Commissioner of Public Safety Kenneth H. Kirschner on December 13, 1995, and instructed him to “take every step possible to determine whether the alleged wrongdoing occurred and, if so, to prosecute the individuals(s) involved to the fullest extent of the law.” (Pl. Perron’s Ex. 1.) In response to the Governor’s directive, Commissioner Kirschner assigned the criminal investigation to the Eastern District Major Crime Squad. (See Def.’s Ex. 10 at 1.) The Major Crime Squad conducted a thorough investigation, and the evidence indicated that no criminal laws were violated. (See id.) In a report to Kirschner, Kevin T. Kane, State’s Attorney for the Judicial District of New London, concluded: “Given the express authorization and approval of the Director of Security it cannot be proven that the ... State Police detective knew that [he was] not licensed or privileged to enter these buildings and, therefore, criminal proceedings against ... the detective are not warranted.” (Id. at 4; emphasis added.) Kane’s report was dated February 26, 1996. It is undisputed that on or about March 1, 1996, the state police completed its internal affairs investigation, which exonerated Det. Perron. No criminal proceedings or internal investigation was ever undertaken against Sgt. Drumm.
Perron argues that the Defendants procured the Eastern District Major Crime Squad’s investigation of him and that the investigation constituted the “institution of criminal proceedings” against him. In contrast, the Defendants argue that there can be no prosecution without an arrest, and no one disputes the fact that Perron was never arrested as a result of the investigation. The Plaintiff has proffered no case law, and the Court is aware of none, that allows a claim for malicious prosecution without the Plaintiff’s arrest and subsequent prosecution.
The argument begs the question, What is a prosecution? Black’s Law Dictionary (6th ed.) defines “prosecution” as “a criminal action; a proceeding instituted and carried on by due course of law, before a competent tribunal, for the purpose of determining the guilt or innocence of a person charged with crime.” (Emphasis added.) Here, Perron was never charged with a crime because Kane concluded no criminal proceedings were warranted; hence, the Court concludes as a matter of law that there was no prosecution. The Plaintiff has therefore failed to prove that the defendant procured or initiated proceedings against him.
Even if the Court were to find that the major crime squad investigation or the internal affairs investigation qualified as criminal proceedings, the Plaintiff would still have to prove that the Defendants pressured the authorities, in this case the Governor, to prosecute. The Plaintiffs must show that the Defendants did “more than to provide potentially incriminating information to a public officer,” McHale at 448, 446 A.2d 815, and that the Defendants did not leave “the decision to prosecute entirely in the hands of the public officer.” Plaintiff failed to offer even one concrete piece of evidence that the Defendants did anything more than write the letter in their alleged scheme to prosecute the Plaintiff. In fact, Perron’s own evidence, offered via stipulation,3 admits that then Chairman Hayward’s sole purpose in writing the letter was “to request the support of the Governor’s office and the Connecticut State Police in investigating the potential of criminal conduct involved....” (Pl. Perron’s Ex. 34 at 2.) In light of the foregoing, the Court finds that the Defendants did no more than provide the proper state authorities with potentially incriminating information of criminal activity and that they left the decision whether to prosecute entirely in the hands of the state. Accordingly, the Court finds that Plaintiff Richard Perron failed to prove the first element of a claim for malicious prosecution because Defendants did not procure proceedings against him.
Under the McHale analysis adopted by the Court, Plaintiff must satisfy all four elements to prove a claim for malicious prosecution, and since Plaintiff has failed to prove the first element his entire claim must fail. In the interest of completeness, however, the Court will analyze the claim under the three remaining elements.
The second element of a claim for malicious prosecution requires that criminal proceedings terminate in the Plaintiff’s favor. While it is true that Perron was never charged with a crime and the internal affairs investigation found no wrongdoing, such results are insufficient to satisfy the second element. Since, as the Court has concluded, there were no criminal proceedings, the Court cannot find that such nonexistent proceedings concluded in Plaintiff’s favor. To decide otherwise would turn logic on its head, and the Court declines to do so.
The third element of a claim for malicious prosecution is that the Defendants must have acted without probable cause. The question the Court must ask is, Did the Defendants act reasonably when they wrote the letter requesting the Governor’s help in investigating the break-ins? Plaintiff asks the Court to consider what the Defendants knew and when they knew it. After thorough investigations into the alleged break-ins, it is clear in hindsight that Plaintiff Perron was not involved in any burglary and that he in no way instigated the unorthodox entries into the Tribe’s financial offices. When the letter was written, however, the facts were not so clear. The letter itself expresses uncertainty about the details of the break-ins. For example, the letter uses such qualified language as “if these activities in fact took place,” and “police officers ... engaged in what appears to us to be criminal activity.” The Court concludes that given the conflicting and confusing information they had at the time, the Defendants were acting reasonably when they wrote the letter enlisting the Governor’s help in investigating the break-ins.
The Fourth element of a malicious prosecution claim is that the Defendant acted with malice, primarily for a purpose other than bringing an offender to justice. Since it has found that the Defendants had probable cause when they wrote the letter to the Governor, the Court necessarily finds that the Defendants did not act with malice and that the Plaintiff failed to prove the fourth element of his claim. Even if the presence of probable cause did not automatically disprove the element of malice, Plaintiff offered no credible evidence that the Defendants acted with malice. Although Plaintiff attempted to offer a complicated—and baffling—theory of retribution and ill-will against the Plaintiff for his successful earlier investigations that allegedly embarrassed the Tribe, the Plaintiff offered no credible evidence4 THAT HAYWARD OR ANY of the other defendants harbored aNy malice toward Perron or that they wrote the letter for any purpose other than to “bring an offender to justice.” Had the letter demanded Perron’s arrest or even mentioned the Plaintiff by name, perhaps the Court would have more to go on, but without more the Court finds no malice. Accordingly, the Plaintiff has failed to prove the fourth element of his claim for malicious prosecution. The Court finds that no criminal proceedings were instituted against the Plaintiff, that the Defendants acted with probable cause when they wrote the letter, and that they did not act with malice. Consequently, the Plaintiff has failed to satisfy the elements for a claim of malicious prosecution, and judgment hereby enters for the Tribe and Tribal Council on Count 1.
B. Count 2: Libel/defamation (Perron)
Count 2 charges:
Defendants made or caused to be made statements that were defamatory and untrue about ... Richard Perron. The defamatory statement identifies ... Perron to a reasonable reader. The defamatory statements were published to a third party, namely the Governor of the State of Connecticut, the news media and Plaintiff’s employer, the Connecticut State Police.... Perron’s reputation suffered ... injury as a result of the conduct of the Defendants.
(Compl.¶¶ 48–51.) Plaintiff Perron argues that the December 11, 1995 letter to the Governor from Hayward and statements to the media printed on December 16, 1995, defamed him. He also argues that the Defendants’ publication of identical ads in the Courant and the Day on February 22, 1996 defamed him. Despite the fact that he is a state police officer, Perron argues that he is a private citizen for purposes of analysis of the libel count. Defendants counter that as a state police officer Perron is a public official and as such he must prove actual malice by Defendants to recover for libel. Defendants also argue that Perron has not proved Defendants’ speech was unprivileged and unprotected. For the reasons set forth fully below, the Court finds that Plaintiff Perron failed to prove that Defendants libeled5 him, and the Court enters judgment for the Defendants.
1. Defendant Gaming Enterprise
Libel/defamation is an intentional tort. As such, for the reasons set forth in section II.A.1. above, the Court has no subject matter jurisdiction over such a claim against the Gaming Enterprise. Accordingly, Count 2 against the Gaming Enterprise fails for lack of subject matter jurisdiction, and judgment hereby enters for the Gaming Enterprise on Count 2.
2. Defendants Tribe and Tribal Council
In Fletcher, the Court said a communication is defamatory if it “tends so to harm the reputation of another as to lower him in the estimation of the community or deter third persons from associating or dealing with him.” Fletcher v. Mashantucket Pequot Tribe, 3 Mash. 265, 271, 2 Mash.Rep. 443, 457 (1998)(quoting Dow v. New Haven Indep. Inc., 41 Conn.Supp. 31, 549 A.2d 683 (1987)). The necessary elements of a defamation action are that the defendant, without privilege, published false statements and that the statements harmed the plaintiff. See Fletcher at 271, 2 Mash.Rep. at 457 (quoting Thomas v. St. Francis Hosp. and Med. Ctr., 990 F.Supp. 81, 92 (D.Conn.1998) (citation omitted)). “Publication” means making the statement known to a third party. See Fletcher at 271, 2 Mash.Rep. at 457 (citation omitted).
In analyzing a claim for libel, the Court must first decide whether Plaintiff is a public official, a public figure, or a private individual. The determination is necessary so the Court can decide the level of proof required. The question is one of first impression at Mashantucket, so the Court looks to the courts of other jurisdictions for guidance. See XII M.P.T.L. ch. 1, § 1(a); see also DeLorge v. Mashantucket Pequot Gaming Enterprise, 3 Mash. 1, 2 Mash.Rep. 78 (1997). Should the Plaintiff be a public official or a public figure, the Court will analyze his libel claim under the standard enunciated by the U.S. Supreme Court in the seminal New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), decision. In New York Times, the Court held that a public official cannot recover “damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times at 279–280, 84 S.Ct. 710. The Court hereby adopts the New York Times holding requiring that public officials prove actual malice to recover for libel. The Court also holds that public figures “may recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with” actual malice. Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).
In the instant case, Plaintiffs charge that Perron was a private individual and that as such he should be held to a standard of proof less stringent than the “actual malice” standard enunciated in New York Times. Defendants argue that Perron, as a state police officer, is a public official and that the Court should therefore apply the actual malice standard.
In federal courts and in the state of Connecticut, it is well-settled that police officers are public officials. See Coughlin v. Westinghouse Broadcasting and Cable, Inc., 780 F.2d 340 (1985)(upholding the district court’s determination that the plaintiff, a rookie police officer, was a public official); see also Moriarty v. Lippe, 162 Conn. 371, 378, 294 A.2d 326 (1972)(noting that a patrolman appears to have “substantial responsibility” over the conduct of government affairs “sufficient to be a public official”); Time v. Pape, 401 U.S. 279, 91 S.Ct. 633, 28 L.Ed.2d 45 (1971); St. Amant v. Thompson, 390 U.S. 727, 730, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968); Kelley v. Bonney, 221 Conn. 549, 581–82, 606 A.2d 693 (1992). The Court adopts the findings of its sister jurisdictions that a police officer is a public official for purposes of analyzing a libel claim, and it finds that because Plaintiff Perron is a state police officer he is a public official. Consequently, the Court holds that in order for Perron to prevail on his claim for libel, he must prove by clear and convincing evidence that Defendants published false statements with actual malice.
a. The letter to Governor Rowland
Plaintiff argues that Hayward’s letter6 defamed him because it contained false statements and was published to the Governor, and Defendants counter that the letter contained no false statements.7 Defendants argue, however, that the letter requesting an investigation into potential police misconduct was absolutely privileged as a “report of a suspected crime,” (Defs.’ Trial Br. at 24), and is thus not subject to an action for libel.
The Court in Fletcher concluded that “[a]n essential element of a defamation claim is that the defendant was not privileged to publish the false statement.” Fletcher at 272, 2 Mash.Rep. at 458. In Petyan v. Ellis, 200 Conn. 243, 510 A.2d 1337 (1986), the Connecticut Supreme Court considered whether statements made in judicial and quasi-judicial proceedings were privileged. See Fletcher at 272, 2 Mash.Rep. at 458. “There has long been established that there is an absolute privilege for statements made in judicial proceedings.” Id. (quoting Petyan at 245–46, 510 A.2d 1337 (citations omitted)). In Petyan, the court held, “[L]ike the privilege which is generally applied to pertinent statements made in formal judicial proceedings, an absolute privilege also attaches to relevant statements made during administrative proceedings which are ‘quasi-judicial’ in nature.” Id. (quoting Petyan at 246, 510 A.2d 1337 (citations omitted)). The effect of an absolute privilege “is that damages cannot be recovered for a defamatory statement even if it is published falsely and maliciously.” Id.
To decide the question of privilege, the Court must ask whether the internal affairs investigation of Plaintiff Perron was a quasi-judicial proceeding. The question has not been addressed in this Court or in the Connecticut appellate courts, but Connecticut superior courts have held that investigatory or disciplinary hearings before the Commissioner of Public Safety regarding state police officers constitute quasi-judicial proceedings. In a Connecticut case with facts similar to Perron’s, the plaintiff, a resident state trooper, sought recovery for libel based on a letter of complaint directed to the Commissioner of Public Safety. The department investigated the allegations, and the Commissioner transferred the trooper because he believed it was in the best interests of the trooper and the town to which he had been assigned. See Bieluch v. Smith, 1993 WL 190841, No. CV 91 56050 (Conn.Super. Ct. J.D. Litchfield May 26, 1993). Applying factors outlined by the Connecticut Supreme Court in Kelley v. Bonney,8 the court in Bieluch found that the department’s investigatory powers constituted quasi-judicial proceedings. The court explained:
There [are] sound public policy reasons for granting absolute immunity to individuals who express to the Commissioner of Public Safety their concerns regarding the performance of a state trooper. A police officer appears to the public to have substantial responsibility for or control over the conduct of government affairs. Our society vests its law enforcement officers with formidable power, the abuse of which is often extremely detrimental to the public interest. Citizen complaints of such abuses and the administrative procedure which has been developed to investigate these complaints serve a public function of vital importance by providing a mechanism through which complaints may be reported to the proper authorities.
Bieluch at *5. Finding the superior court’s analysis to be sensible and sound, this Court hereby adopts its reasoning and finds that the internal affairs investigation into Plaintiff Perron was indeed a quasi-judicial proceeding and that the letter to the Governor, a citizen’s complaint of potential police abuses, was absolutely privileged. Consequently, the Court holds that the Defendants, who wrote the letter, are not liable to the Plaintiff for any false statements the letter may contain.
Even if the Court were to find that the statements in the letter were not privileged, the Plaintiff failed to prove by clear and convincing evidence that anything in the letter was false and that any statement in the letter was made with actual malice. The letter did not accuse the Plaintiff by name, nor did it accuse any state police officer outright of wrongdoing. Instead, the letter sought Governor Rowland’s immediate help in investigating whether “a member of the State Police” was “involved in two illegal break-ins involving Mashantucket Pequot Tribal property.” The Court sees nothing false or sinister in Defendants’ seeking the Governor’s aid in uncovering the truth about a matter of such public importance as a possible abuse of police power. Even if the Court were to find that the letter contained false statements, the Plaintiff submitted no credible evidence that the Defendants either knew that such statements were false or that they recklessly disregarded whether the statements were false or not. Accordingly, the Court finds that Plaintiff Perron failed to prove by clear and convincing evidence that Defendants made false statements with actual malice.
b. The December 16, 1995, newspaper articles
Perron also claims that two newspaper articles contained false statements that defamed him. One of the articles appeared in the Hartford Courant, the other in the New London Day. The Hartford Courant reported that “Brown sharply criticized the few state police officers he believes are responsible and calls the office entries ‘inexcuseable [sic] and potentially illegal.’ ” Perron claims the language “inexcusable and potentially illegal” is libelous. Perron further objects to the language “Brown said that Peron [sic] had to have known in advance that his entry into the offices was improper. ‘Any suggestion that the detective involved in these entries believed them to be proper or somehow authorized is ludicrous,’ he said.” (Pl. Perron’s Ex. 2.)
Some of the allegedly defamatory language attributed to Brown in the Hartford Courant appears verbatim in the Day article, but the article also contains other language, not appearing in the Courant, that Perron calls defamatory. In the Day’s front-page article, the offensive language begins: “State police have lost sight of the rights of the Mashantucket Pequot Tribe and the legal limits or proper police conduct in ... irresponsible, and presumably unsupervised, investigative excesses,” Brown said. (Pl. Perron’s Ex. 3.) The article continues further to include allegedly defamatory statements attributed to Bruce MacDonald. The article reads: “Tribal spokesman Bruce MacDonald said the break-ins at Foxwoods were reminiscent of Watergate and the so-called ‘plumbers’ operation to detect administration leaks in the Nixon era.” “ ‘We’ve got a plumber-type group here, a renegade group,’ MacDonald said. ‘These people don’t have the right to invade people’s homes or businesses on a whim.’ ” (Id.) On the article’s second page, Perron found more defamatory language attributed to MacDonald and Brown. The article reads: “MacDonald said there can be no defense when police break the law. ‘This is an apparent attempt to justify what we feel was a clearly illegal action,’ he said. ‘These people took the law into their own hands, in our view. The tribe feels very strongly that they were wronged.’ ” (Id.; emphasis added.) Finally, Perron points to the following quotation, attributed to Brown, as defamatory. “But Brown noted that ‘the fact that no evidence of wrongdoing was found in these “searches” cannot excuse the methods employed.’ ”9
In Fletcher, the Court found that “expressions of opinion are constitutionally protected....” Fletcher at 273, 2 Mash.Rep. at 460 (quoting Murray v. Schlosser, 41 Conn.Supp. 362, 574 A.2d 1339 (1990); Lizotte v. Welker, 45 Conn.Supp. 217, 223, 709 A.2d 50, aff’d, 244 Conn. 156, 709 A.2d 1 (1998)). As a matter of law, the Court must determine whether Defendants’ statements are protected as opinion or subject to a claim for libel as factual assertions. See Fletcher at 273, 2 Mash.Rep. at 460 (citing Mr. Chow of New York v. Ste. Jour Azur S.A., 759 F.2d 219, 224 (2nd Cir.1985)). Although language used may be “vehement, caustic and unpleasant ... that does not make it libelous under the law.” Dow v. New Haven Independent, Inc., 41 Conn.Supp. 31, 34, 549 A.2d 683 (1987). “A public official must expect, in a society that guarantees free speech, that at times he or she will be the subject of rhetorical hyperbole. Nevertheless, that alone cannot be the basis for an action for libel.” Dow v. New Haven, supra, at 34, 549 A.2d 683. See Fletcher at 273, 2 Mash.Rep. at 460 (“even the most careless reader must have perceived that the word [“blackmail”] was no more than rhetorical hyperbole, a vigorous epithet used by those who considered [plaintiff’s] negotiating position extremely unreasonable”) (quoting Greenbelt Cooperative Publishing Assn. v. Bresler, 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970); Letter Carriers v. Austin, 418 U.S. 264, 284–286, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974)(use of word “traitor” in definition of union “scab” was not basis for defamation under federal labor law because it was used in “loose, figurative sense” and was “ merely rhetorical hyperbole, a lusty and imaginative expression of contempt ...”). The Court in Fletcher adopted guidelines set out in Ollman v. Evans, 750 F.2d 970 (D.C.Cir.1984) for determining whether a statement is protected opinion or unprotected fact:
[W]e must examine both the context in which the statements are made and the circumstances surrounding the statements. We must also look at the language itself to determine if it is used in a precise, literal manner or in a loose, figurative or hyperbolic sense.... [W]e must examine the statements to determine if they are objectively capable of being proven true or false. Finally, if the above analysis indicates that the statement is opinion, we must determine if it implies the allegation of undisclosed defamatory facts as the basis for the opinion.
Fletcher at 273, 2 Mash.Rep. at 460 (citations omitted).
The Court finds as a matter of law that the language in the articles is not subject to being judged for its truth or lack thereof and that it falls in the fair comment or opinion category. The Court further finds that the opinions expressed do not imply any allegation of undisclosed defamatory facts as their basis. The use of language such as “ludicrous” and “plumbers-style operation” suggests an over-the-top response characteristic of what the common law of libel has called “rhetorical hyperbole.” If calling the dealings of a real-estate developer “blackmail” qualifies as rhetorical hyperbole in Greenbelt, and the use of the word “traitor” in Letter Carriers also escapes liability for defamation, then the much tamer “ludicrous” language and “Watergate” innuendo found in the December 16, 1995, articles must also enjoy protection as “vigorous epithets” employed in the course of public debate. As such, the language is protected as opinion and is not actionable as libel. The remaining objectionable statements in the articles use terminology that signals their status as opinion. In the quotations of MacDonald, the phrases “we feel,” “in our view” and “the Tribe feels very strongly” are classic signals to the reader that the statements are expressions of opinion rather than assertions of fact. The Court therefore finds that the language in the articles is protected as opinion and fair comment, and that, as such, the statements are not subject to claims for libel. Even if the language were not protected, Plaintiff has failed to prove that Defendants made the statements10 with actual malice. As a public official, Plaintiff must expect that some of his actions will invite scrutiny, lively debate and vigorous comment. Since he failed to prove actual malice, he cannot recover libel for any of the statements in the December 16, 1995, articles.
c. The February 22, 1996, advertisements
Plaintiff Perron also claims that an advertisement paid for by the Defendants libeled him. Virtually identical full-page advertisements, with the headline “There’s A Right Way And A Wrong Way,” ran on February 22, 1996, in the Norwich Bulletin and the Hartford Courant. The names of all seven Tribal Council members appear at the bottom of the ads, and the Courant ad carries the phrase “Paid for by the Mashantucket Pequot Tribal Council.” A line atop the ad in each newspaper clearly identifies the article as an advertisement.
In DeLorge v. Mashantucket Pequot Gaming Enterprise, 2 Mash. 170, 2 Mash.Rep. 119 (1997), the Court held that the “truth of the communication provides a complete defense to defamation actions.” DeLorge at 172, 2 Mash.Rep. at 122 (citing Strada v. Connecticut Newspapers Inc., 193 Conn. 313, 316, 477 A.2d 1005 (1984); Goodrich v. Waterbury Republican–American Inc., 188 Conn. 107, 112, 448 A.2d 1317 (1982)).
To determine whether any of the statements in the ad defamed the Plaintiff, the Court adopts the guidelines set forth in Fletcher and examines the context and surrounding circumstances of the statements. The ad begins:
Recent criticism in the New London Day by the attorney for a state police detective, under investigation for surreptiously [sic] entering tribal offices, is both unfair and grossly misleading. The sensationalist statements in The Day do a disservice to the Mashantucket Pequot Tribal Nation and its 11,600 employees, including the approximately 1,000 people in management positions.
(Pl. Perron’s Exs. 4, 5.) The authors of the ad assert that, contrary to the reports in the Day, the Tribe cooperates fully with federal and state law enforcement agencies. The ad says, “It is one thing for a lawyer whose client is under investigation to defend that client vigorously, but it is quite another matter for that very same lawyer to lash out and question the integrity of those who called for the investigation in the first place.” In conclusion, the ad reads, “Before the New London Day makes any judgments about Foxwoods or the Tribe, it should look at the record, and not the claims of a lawyer trying to defend his clients by throwing mud on innocent people.” The overall tone of the ad is critical of the Day for reporting alleged corruption among Foxwoods management without first analyzing the record. While the ad does use strong language condemning “the attorney for a state police detective,” it names neither the attorney, nor any specific member of the state police, and the Plaintiffs’ names appear nowhere in the ad. (See Pl. Perron’s Exs. 4, 5.)
The context of the ad leads the Court to conclude that the ad’s primary purpose was to criticize the Day, as the ad states, and not to vilify Detective Perron, whose name appears nowhere in the ad. The Plaintiff, however, claims that a sentence in the third paragraph of the ad defames him. The allegedly libelous language reads: “Despite what this man’s lawyer says, there is nothing in our gaming compact with the state that allows state troopers to break into tribal offices.” (Id. at ¶ 3.) Perron argues that the statement is false and therefore libelous because he “did not break into tribal offices.” In order to decide whether the sentence libeled Perron, the Court must consider it within the full context of paragraph No. 3. The full paragraph reads:
There is such a thing as protocol, a right way to do things and a wrong way. Despite what this man’s lawyer says, there is nothing in our gaming compact with the state that allows state troopers to break into tribal offices. There is nothing in the compact which allows any tribal employee to break into tribal offices. There is a clearly defined process under the compact in which the Mashantucket Pequot Gaming Commission has the authority to investigate any criminal wrongdoing in the gaming enterprise. The state police officer and certain members of the Tribe’s employees acted improperly.
(Id.; emphasis added.) The Court finds that the statements in paragraph No. 3 mix assertion of fact with expression of opinion. Despite Perron’s sincere belief that the compact allowed his entry, which was in fact authorized by the security department, the statement that the gaming compact does not allow “state troopers to break into tribal offices” is undeniably true, and as a true statement, it is protected against any claim for libel.
Perron objects to the Defendant’s characterization of the entries as “break [ing] into tribal offices.” When one considers the full context of paragraph No. 3, however, the reasonable reader understands that the ad does not accuse the Plaintiff of breaking and entering, but rather it expresses the opinion that a “state police officer ... acted improperly.”
The Plaintiff vehemently disagrees that he broke into tribal offices and by extension that he acted improperly. In is undisputed that the investigations into his actions resulted in no charges against him. That does not mean, however, that the ad was false. In deciding whether the statement was actually false or a protected expression of opinion, the Court considers the fact that Lt. Colonel McGuire, Perron’s commanding officer, questioned Perron’s judgment11 in the matter. The Court finds instructive the opinion of McGuire, who was second in command of the state police at the time of the break-ins and the ensuing transfer of the officers. If McGuire and other state police officers can disagree on whether Perron “ acted improperly” in some capacity, then the assertion is incapable of being proved either true or false. Consequently, the Court finds the statements in paragraph No. 3 to be opinions protected by law from libel claims.
Even if the Court were to conclude that the statements were assertions of fact and therefore subject to a libel claim, as a public figure the Plaintiff must prove that the statements were made with “actual malice.” Plaintiff offered no such proof. Accordingly, the Court finds that the ad did not defame him, and it hereby finds for Defendants on Count 2.
C. Count 3: Defamation of Character/Libel per quod (Perron)
Count 3 charges:
Defendants Mashantucket Pequot Tribal Council and Mashantucket Pequot Tribe published or caused to be published an advertisement stating that a Connecticut Police Officer had illegally burglarized offices on ... Tribal ... grounds.... Although Plaintiff was not named individually, it was common knowledge [from] extrinsic facts known to the public, the ... media and to [Plaintiff’s] employer that said defamatory statement identified the Plaintiff to a reasonable reader who was aware of the complaint made to the Connecticut State Police which was a matter of public record. The defamatory statement is published to a third party, ... Plaintiff’s reputation suffered injury as a result of the publication....
1. Defendant Gaming Enterprise
Plaintiff Perron’s Count 3 fails to assert claims against the Defendant Gaming Enterprise. Even if Perron had asserted a claim for libel per quod against the Gaming Enterprise, libel is an intentional tort. As such, for the reasons set forth in section II.A.1. above, the Court has no subject matter jurisdiction over such a claim against the Gaming Enterprise. Accordingly, Count 3 against the Gaming Enterprise fails for lack of subject matter jurisdiction, and judgment hereby enters for the Gaming Enterprise on Count 3.
2. Defendants Tribe and Tribal Council
The distinction between libel per se and libel per quod is a matter of first impression for the Court, so it looks to other courts for guidance. See Busch, supra, at 60–61, 1 Mash.Rep. at 82; see also DeLorge, supra, at 4, 2 Mash.Rep. at 85–86. In Battista v. United Illuminating Co., 10 Conn.App. 486, 523 A.2d 1356 (1987), the Connecticut appellate court explained the difference.
A libel per quod is not libelous on the face of the communication, but becomes libelous in light of extrinsic facts known by the recipient of the communication. When a plaintiff brings an action in libel per quod, he must plead and prove actual damages in order to recover.
Libel per se, on the other hand, is a libel the defamatory meaning of which is apparent on the face of the statement and is actionable without proof of actual damages.
Battista at 491–92, 523 A.2d 1356 (internal citations omitted).
The distinction between the two categories of libel notwithstanding, the Court has already decided the matter of defamation in Count 2, above. In Count 3, Perron re-alleges the same facts offered in Count 2, which the Court found did not support a claim for libel because no single statement in the letter, the newspaper articles or the ads defamed him. He offers no “extrinsic facts” “known by the recipient” that would make the same statements, already found not be to libelous, suddenly defamatory. What’s more, as a public official, Perron must prove that the statements were false and that they were made with actual malice, and the Court has already found that he failed to do so. It follows then that his action for libel per quod also fails to support a claim for libel, whether it be libel per quod, libel per se, or any other variation on a claim for defamation. Plaintiff offers no authority that allows a court to find defamation in a claim for libel per quod when it has already found no defamation in a claim for libel per se based on the identical facts. The Court rejects such an incongruous and illogical result, and it hereby finds for Defendants on Count 3.
D. Count 4: Defamation of Character/Libel per quod (Drumm)
Count 4 charges:
Detective Sergeant Jack Drumm was the direct supervisor ... of ... Perron.... As a result of a false, derogatory and differmative12 statement printed in the newspaper, the defamatory statement made by the Defendant [sic], Mashantucket Pequot Tribal Council and Mashantucket Pequot Tribe, identified ... Drumm to the reasonable reader.... [The] defamatory statement was published to a third party, namely the general public within ... Connecticut or those individuals who read and/or observed the advertisement placed in said newspaper by the Defendant.... As result ... Drumm’s reputation suffered injury.
1. Defendant Gaming Enterprise
Plaintiff Drumm’s Count 4 fails to assert claims against the Defendant Gaming Enterprise. Even if Drumm had asserted a claim for libel per quod against the Gaming Enterprise, libel is an intentional tort. As such, for the reasons set forth in section II.A.1. above, the Court has no subject matter jurisdiction over such a claim against the Gaming Enterprise. Accordingly, Count 4 against the Gaming Enterprise fails for lack of subject matter jurisdiction, and judgment hereby enters for the Gaming Enterprise on Count 4.
2. Defendants Tribe and Tribal Council
Plaintiff Drumm asserts a claim of defamation of character sounding in libel per quod, rather than libel per se, because “at no time, in any of the advertisements or press statements placed or made by the defendants was the name of ‘Jack Drumm’ mentioned.” (See Pl. Drumm’s Post–Trial Br. at 45.) Defendants argue that none of their statements in the letter, the ads or the press release libeled Plaintiff Drumm. Drumm argues that because a portion of the general public “known as the Connecticut State Police [was] quite well aware that [Perron and Drumm] had been transferred” out of the casino unit, the Court may infer that “the continued, purposeful plural references in virtually every document ... from the Defendants ... referred to Sgt. Drumm as well as to Det. Perron.” (Id. at 46.) Drumm also argues that the casino community understood the plural references in Defendants’ statements to refer to Sgt. Drumm.
Defendant argues that Plaintiff Drumm, who admits his status as a public official, has not proved that Defendants made their statements with actual malice. Drumm, however, maintains that the statements in Defendants’ advertisements and press releases were false and that the evidence adduced at trial proved “the statements were made by people who knew them to be untrue or who ... acted with reckless disregard of their truth or falsity.” (Id. at 49.)
a. The letter to Governor Rowland
In Count 2, above, the Court found that the December 11, 1995, letter to the Governor was absolutely privileged, and the Court held that Defendants were not liable to Plaintiff Perron for any false statements in the letter. To the extent that Drumm may claim the letter libeled him, the Court finds, for reasons explained in II.B.2.a. above, that the statements in the letter are absolutely privileged against any action for defamation, and it holds that the Defendants, who wrote the letter, are not liable to Plaintiff Drumm for any false statements the letter may contain.
b. The advertisements
At trial, Plaintiff Drumm submitted a photocopy of an advertisement that reportedly appeared in the Norwich Bulletin on February 15–18, 1996. The same ad reportedly also ran in the Hartford Courant and the New London Day. (See Pl. Drumm’s Ex. 5.) The ad, signed by all seven members of the Tribal Council, carries the headline “Statement of the Mashantucket Pequot Tribal Council,” and a line atop the page clearly identifies the article as an advertisement. The text of the ad expresses the Tribal Council’s confidence in Foxwoods management and its dismay at what it characterizes as the Day’s printing of “half-truths” based on “unnamed sources.” Plaintiff Drumm’s name does not appear in the ad. Although the ad does refer to interactions with the state police, it neither attacks the officers’ character nor identifies them.
Drumm argues that the last paragraph in the ad contains “knowing falsehoods.” (See Pl. Drumm’s Post–Trial Br. at 52.) Drumm claims the statement that “two state police officers requested a meeting with several Council members” is false, and that “two state police officers” is a “clear reference to Lt. Beecher and Sgt. Drumm.” (Id.) Drumm charges that the statement that “[t]he state police assigned to the casino have expressed displeasure with casino management and the Mashantucket Pequot Gaming Commission because their request for increased funding has not yet been agreed to” is false. He testified at trial that the budget may have been discussed at the meeting but that it was not an important issue. Any displeasure on the part of the state police, he argues, was the result of “compromised investigations, disappearing documents, and the belief that the Gaming Commission and Casino management were working hand in glove with one another rather than maintaining a regulator-regulatee relationship.” (Id. at 53.) Drumm also charges that the statement that the meeting “certainly was not worth missing dinner for” illustrates the Defendants’ recklessness because “dinner was in fact served” at the meeting. According to Drumm, the crucial falsehood in the ad is the statement that “this meeting was not requested or encouraged by Council members but was instigated by the state police officers for their own purposes. It is misleading indeed to suggest that the Councilors met with the state police to discuss the [Councilors’] concerns about Foxwoods.” Drumm charges that the allegedly false statements in the ad cast a false and unfavorable light upon the “two state police officers” involved in the meeting.
Since the ad does not name Drumm, the Court must consider whether the statements in the ad identify Drumm to the reasonable reader in Connecticut, either to the state police, the casino community or to the general newspaper reader. If the answer is yes, then Drumm’s identity could qualify as the “extrinsic fact known by the recipient of the communication” that makes the statement libelous to Drumm. Even if the Court were to accept Drumm’s argument that the ad, although it does not name him, identifies him to the reasonable reader in Connecticut, it finds nothing in the ad that defames the Plaintiff.
After hearing testimony from several witnesses at trial, the Court believes that Drumm is correct when he says that dinner was served at the meeting. The dinner took the form of cold cuts and other finger foods, however, so it may indeed have been the humble opinion of those Councilors quoted that the meeting did not supply what they considered to be a satisfying meal. Even if the Court were to find that the statement was false, to be actionable the statement must be defamatory. In other words, it must harm the reputation of the Plaintiff to qualify as libel. The Court cannot imagine a scenario in which Drumm’s excellent reputation as a fine police officer could be harmed by Defendants’ claim that no dinner was served at a meeting between state police and members of the Tribal Council. The fact is irrelevant to the case, and the alleged falsehood cannot possibly have injured Plaintiff’s reputation.
The Court reaches the same conclusion for the rest of the allegedly defamatory statements in the ad. The questions of who initiated the meeting and of what displeased the state police officers, whether it was a need for increased funding or the perceived lack of cooperation from the Gaming Commission, are irrelevant. Even if the Defendants’ statements were false, they must be defamatory to be actionable. As noted above, a communication is defamatory if it “tends so to harm the reputation of another as to lower him in the estimation of the community or deter third persons from associating or dealing with him.” Fletcher at 271, 2 Mash.Rep. at 457. Drumm presented no evidence to this Court that the statements harmed his reputation in any way or that they deterred anyone from associating with him. Consequently, the Court finds that the ad did not defame Plaintiff Drumm.
Drumm also claims that a second ad, with the headline “There’s A Right Way And A Wrong Way,” contains false statements that defame him. The ads ran on February 22, 1996, in the Norwich Bulletin and the Hartford Courant. The names of all seven Tribal Council members appear at the bottom of the ads, and the Courant ad carries the phrase “Paid for by the Mashantucket Pequot Tribal Council.” A line atop the ad in each newspaper clearly identifies the item as an advertisement. Plaintiff Perron also claimed that the ads defamed him, but for reasons stated at II.B.2.c. above, the Court found for the Defendants.
While Perron claimed only that the ad’s third paragraph defamed him, Drumm charges that several statements in the ad are false and defamatory. As it did above in analyzing Plaintiff Perron’s libel claims, the Court examines the context and surrounding circumstances of the statements to determine whether they defamed Plaintiff Drumm. Drumm takes offense at the statement that “there is nothing in our gaming compact with the state that allows state troopers to break into tribal offices” and also bristles at the language “sneaking around in the dark.” Plaintiff Perron also asked the Court to find the “break into tribal offices” language to be libelous. In considering the full context of the statement, however, the Court found the statement that the gaming compact does not allow “state troopers to break into tribal offices” was undeniably true, and as a true statement, it was protected against any claim for libel. The Court also found in Count 2 that the phrase “state troopers to break into tribal offices” arguably referred to Plaintiff Perron. Plaintiff Drumm asks the Court to consider that certain extrinsic facts made it known to the general public that the use of the plural “state troopers” also implicated him in the statement. Even if it were to find so, the Court has already decided that the statement was not libelous as to Perron, and it must hold the same as to Plaintiff Drumm.
]In considering Drumm’s complaint regarding the phrase “sneaking around in the dark,” the Court must consider the full text of the statement. The ad states, “The sad thing about this whole matter is that if the state police officer now being investigated by his own department wanted information, all he had to do was ask instead of sneaking around in the dark.” (Pl. Perron’s Ex. 4 ¶ 2.) The statement’s use of the phrase “the sad thing” signals the reasonable reader that the statement is an opinion. The phrase “all he had to do was ask” also represents the opinion of the named Tribal Councilors, albeit an opinion with which Drumm strongly disagrees. Considering that the controversial entry into Tribal offices actually occurred during the day and with the apparent approval of Foxwoods’ security department, the Court must determine whether the phrase “instead of sneaking around in the dark” is a defamatory falsehood or whether it is protected as opinion. In examining the context and the surrounding circumstances, the Court concludes that the “sneaking around in the dark” statement would not be understood by the reasonable reader to be an assertion of fact. Rather, the Court finds that the over-the-top nature of the comment illustrates the Defendants’ extreme frustration with the negative publicity it received surrounding an action by state police that, at least at first glance, appeared to be an improper violation of the rights of the Tribe. The negative publicity, especially as it appeared in the New London Day, so upset the Defendants that they apparently felt the need to defend themselves in a public forum, which took the form of two full-page newspaper ads. In so doing, the Defendants exercised their rights to comment on matters of public concern, and it should come as no surprise to Plaintiff Drumm that the words they employed in their own defense took on the kind of “loose, figurative or hyperbolic sense” that characterizes protected opinion and commentary. Accordingly, the Court finds that the phrase “instead of sneaking around in the dark” is protected as opinion in the form of rhetorical hyperbole.
Drumm also objects to two more statements in the ad. The ad asserts: “During the four years we have been in operation, no request for documents or interviews has ever been denied to the Connecticut State Police....” Drumm also objects to the statement: “We gave the Connecticut State Police the case and they made the arrest.” To illuminate the meaning of the latter statement, the Court considers the full paragraph in which it appears. It reads:
It has been conveniently overlooked that the arrest of a Foxwoods supervisor last year was the direct result of an investigation done by the Mashantucket Pequot Gaming Commission, acting on a complaint from Foxwoods’ management. The case involved a New York company and a relatively small amount of money, but that is not what is important. Our people discovered wrongdoing and took quick and decisive steps to stop it. We gave the Connecticut State Police the case and they made the arrest.
(Pl. Perron’s Ex. 4 ¶ 7.) Despite Drumm’s complaint that the statements “put the focus on the state police” and that “the facts as testified to were otherwise,” (Pl. Drumm’s Post–Trial Br. at 52), the Court sees nothing in the statements that is even remotely defamatory. Even if the Court were to find that extrinsic facts identified Drumm as “the Connecticut State Police,” a proposition it finds highly unlikely, nothing in the statements vilifies the state police in any way. Drumm has failed to prove that the statements harmed his reputation or that they prevented anyone from associating with him. Accordingly, the Court finds that the ad does not defame Plaintiff Drumm.
c. The December 15, 1995, press release
Drumm claims that G. Michael Brown makes “wild and unsupported allegations against ‘one or more members of the Connecticut State police’ ” in his December 15, 1995, press release. The allegedly wild and unsupported accusations appear in the second paragraph of the release, and the Court includes the entire text here in order to analyze the statements in context. The paragraph reads:
[T]he lies attributed to an unnamed “police source” in The Day article of 12/15/95 only serve to underscore the concern of Foxwoods Management that one or more members of the Connecticut State Police have lost sight of the rights of the Mashantucket Pequot Tribe and the legal limits of proper police conduct in his/their irresponsible, and presumably unsupervised, investigative excesses.
(Pl. Drumm’s Ex. 1 ¶ 2.) Drumm also claims that Brown libeled him when he referred to “conduct that is both inexcuseable [sic] and potentially illegal” and when he made “thinly veiled references to Watergate.” (See Pl. Drumm’s Post–Trial Br. at 50.) Drumm claims that in making the statements, Brown “recklessly sought to smear an entire department and in the course of so doing he put the highest decorated officer of the Connecticut State Police under a cloud of suspicion and forever linked him in the mind of the police, *508 the ‘casino community’ and the general public with an act Mr. Brown himself [likened to] the Watergate burglary.” (Id.)
The Court does not analyze potentially libelous statements in a vacuum, and despite the Plaintiff’s best efforts, it declines the invitation to examine the statements out of context. The paragraph that contains the “inexcusable and potentially illegal” statement also contains language that puts quite a different spin on the Defendants’ alleged attempt to “smear an entire department” and to place Sgt. Drumm “under a cloud of suspicion.” The full paragraph reads:
While I am confident that Connecticut State Police supervisory personnel were not aware of the irresponsible conduct by the detective involved in these unauthorized entries, I remain troubled not only by what has occurred, but by the ongoing effort by “police sources” to somehow justify conduct that is both inexcusable and potentially illegal.(Pl. Drumm’s Ex. 1 at 2; emphasis added.) In stark contrast to Plaintiff’s suggestion that the statement somehow implicates him in wrongdoing, Brown’s statement actually absolves Drumm of any wrongdoing. When Brown states, “I am confident that Connecticut State Police supervisory personnel were not aware of the irresponsible conduct by the detective involved in these unauthorized entries,” the reasonable reader, as Drumm has repeatedly argued, understands “Connecticut State Police supervisory personnel” to refer to the Plaintiff. If that is true, then the portion of Brown’s statement that criticizes “inexcusable and potentially illegal” conduct specifically excludes Drumm. What’s more, despite its careful and complete reading of the text, the Court sees nothing in the press release that can possibly serve as the “thinly veiled references to Watergate” that have so vexed the Plaintiff.
Even if the Court were to find that Brown’s statement accused Drumm of “inexcusable and potentially illegal” conduct, the paragraph in question contains language that identifies the statement as opinion and fair comment. Language such as “I am confident,” “I remain troubled,” “ongoing effort ... to somehow justify” and “potentially illegal” signals the reader that the statement expresses the author’s opinion and not unqualified assertions of fact. As opinion, the statements in question are protected against defamation claims.
Even if the Court were to find that the statements in the press release were false assertions of fact, as an admitted public official, Drumm must prove that Defendants made the statements with actual malice. The Court notes that this case presents a multitude of intricate theories and a large cast of characters. It is undisputed that on December 11, 1995, Defendants enlisted Governor Rowland’s assistance in uncovering what actually happened. When Defendants issued the press release only four days later, they did not have the benefit of the full investigations yet to be conducted by the major crime squad and the internal affairs division of the state police. While Drumm presented evidence that Defendants knew all of the details of the break-ins before they issued the press release, the Court remains unconvinced. The Court finds that Drumm failed to prove by clear and convincing evidence that Defendants knew the statements they made in the press release were false or that they recklessly disregarded whether they were false. Consequently, the Court holds that the press release did not libel the Plaintiff, and judgment hereby enters for Defendants on Count 4.
E. Count 5: Negligent Interference with Contractual Relations
Count 5 charges:
[B]y and through [Defendants’] conduct, [Plaintiffs were] transferred from their duty assignment at the Casino Unit ... to other duties within the Bureau of Criminal Identification [sic] in and for the Connecticut State Police. Said transfer was a direct and proximal result of the defamatory and libelous conduct of the ... Tribe, ... Tribal Council and the ... Gaming Enterprise.... As a result of said transfers, both Plaintiffs ... were prohibited from obtaining additional security and detailed overtime which was customary to members of the Casino Unit.... [A]s a result of the Defendants’ conduct Plaintiffs have suffered an economic loss not only to their ability to obtain additional detailed employment but also their overall pension has been affected and impacted by the loss of this economic gain.
(Compl.¶¶ 63–68.) The Plaintiffs allege that as a result of the Defendants’ “defamatory and libelous conduct” they were transferred from their duty assignments at the casino unit. The Plaintiffs claim losses of “additional security” and “overtime.”
There is a split of authority in the United States over whether a cause of action exists for negligent interference with contractual relations. The majority of jurisdictions hold that such a cause of action does not exist, citing the Restatement (Second) of Torts § 766C (1977). Connecticut is one of a minority of jurisdictions that do recognize such a cause of action. Under the facts of this case, this Court need not decide which rule of law to follow because, even if it were to apply the minority rule, the Plaintiffs have not offered any facts to satisfy the elements of such a cause of action.
The alleged contract in question, as the Court understands it, would have been between the Plaintiffs and the Connecticut State Police for continued employment with a right to assignment at the casino unit. No evidence was offered that Plaintiffs had a contractual right to assignment at the casino unit. In fact, all of the evidence was to the contrary. The Plaintiffs were employed by the Connecticut State Police and were assigned to the Bureau of Criminal Investigation. One of the “assignments” within the Bureau of Criminal Investigation was the casino unit. After the alleged break-ins, both Plaintiffs remained in the Bureau of Criminal Investigation, but they were given assignments outside the casino unit; Plaintiff Perron worked in the “gang unit,” and Plaintiff Drumm worked in the “auto theft” unit.
Routinely, members of the state police are assigned to different units, and police officers are routinely given different assignments within the unit. Under the collective bargaining agreement with the union, management reserves the right to make transfers based upon the “needs of the department.” Lt. Colonel McGuire testified that both Plaintiffs were given different assignments in the Bureau of Criminal Investigation based upon the “needs of the department.” The Plaintiffs were unable to prove that any contractual right was interfered with as a result of the Defendants’ actions. Accordingly, judgment hereby enters for the Defendants on Count 5.
F. Count 6: Negligent infliction of emotional distress
Count 6 charges:
[A]s a result of the conduct of the Defendants, the Mashantucket Pequot Tribe, Mashantucket Pequot Tribal Council and the Mashantucket Pequot Gaming Enterprise, [the] Plaintiffs have suffered severe emotional distress.... Det. Perron was unable to concentrate on a promotional examination to Det. Sergeant as a result of the ongoing investigation promulgated by the Defendants. Wherefore, Plaintiffs demand judgment against the Defendants for negligent infliction of emotional distress up to and including fifty (50%) percent of the compensatory damages this Court awards, plus interest, costs and reasonable attorney’s fees....
Plaintiff Perron argues that it was “reasonably forceeable [sic] that the unrelenting attack by the Defendants in the media would cause” emotional distress. (See Pl. Perron’s Supp. Trial Br. at 26.) Plaintiff Drumm argues that the distress he suffered was “wholly foreseeable by those who falsely accused him of involvement in these events,” (Pl. Drumm’s Post–Trial Br. at 60), and that “there is abundant evidence on which the Court may so find.” (Id.) The Defendants counter that the Plaintiffs have failed to sustain their burden of proof.
In Klatte v. Brown, 2 Mash. 16, 18, 1 Mash.Rep. 387, 392 (1996), the Court found that in an action alleging negligent infliction of emotional distress, the plaintiff has the burden of pleading and proving that “the defendant knew or should have known that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm.” (Emphasis added; citations omitted.) See also Busch v. Mashantucket Pequot Gaming Enterprise, 2 Mash. 260, 2 Mash.Rep. 231 (1997)(“plaintiff must prove by a preponderance of the evidence that the defendant [knew] or should have known that its conduct involved an unreasonable risk of causing emotional distress ...”)(emphasis added; citations omitted).
The Court also bears in mind that the Plaintiffs must prove by a fair preponderance of the evidence each element of their case that raises an issue of fact. See Fletcher v. Mashantucket Pequot Tribal Nation, 5 Mash. 143, 148, 3 Mash.Rep. 456, 461 (2002)(citing Imperatore v. Mashantucket Pequot Gaming Enterprise, 3 Mash. 251, 252, 3 Mash.Rep. 121, 122–24 (1999)). “The Court’s decision must be based on facts in evidence and reasonable and logical inferences drawn from the facts in evidence; it cannot be based on speculation or conjecture.” Fletcher at 148, 3 Mash.Rep. at 461 (citing Ruffo v. Mashantucket Pequot Gaming Enterprise, 1 Mash. 26, 29, 1 Mash.Rep. 33, 39 (1994), aff’d, 1 MPR 3, 1 Mash.App. 3 (1994)).
Here, although Plaintiffs’ complaint alleged negligent infliction of emotional distress,13 Plaintiffs did not plead and offered virtually no proof at trial that any of the defendants knew or should have known that their actions—in enlisting the Governor’s help in investigating the break-ins and in responding to reports and criticisms in the press—involved an unreasonable risk of causing emotional distress that might result in illness or bodily harm. Without evidence of knowledge or foreseeability, Plaintiffs’ assertions that they suffered emotional distress fail to satisfy the elements of the claim. Since the Court’s decision must be based on facts in evidence and reasonable inferences drawn from those facts, it must decline Drumm’s invitation to find foreseeability when no evidence of foreseeability was ever presented to the Court. To do otherwise would be to base its decision on speculation or conjecture, and the Court declines to do so.
The Plaintiffs have not properly alleged or proved facts for a cause of action separate and distinct from their malicious prosecution claim (Count 1), and their defamation claims (Counts 2–4). Judgment must therefore enter for the Defendants on the emotional distress claim.
Even if the Plaintiffs had properly alleged facts separate and distinct from their defamation and malicious prosecution claims, they have failed to prove, as noted above, that the Defendants knew or should have known that their actions involved an unreasonable risk of causing emotional distress and have also failed to prove any damages as a result.
While the evidence of Perron’s damages from emotional distress is anecdotal at best, the proof in Sgt. Drumm’s case is even more scant. Like Perron, Drumm has sought no counseling or medical help in dealing with the emotional strain of the events surrounding the break-ins. What’s more, Drumm told the Court that, though the events “affected him,” they did not bother him nearly as much as they bothered Perron.
Without proof of damages from either Plaintiff and without any evidence that the Defendants knew or should have known their actions involved an unreasonable risk of causing emotional distress that might result in illness or bodily harm, the Court must decide this count for the Defendants. Accordingly, the Court finds that Plaintiffs have failed to prove their claim for negligent infliction of emotional distress by a preponderance of the evidence, and the Court denies the Plaintiffs recovery for any emotional distress they may have suffered.
For the foregoing reasons, the Court finds that Plaintiffs have failed to prove that Defendants maliciously prosecuted them, that Defendants libeled them, that Defendants interfered with their contractual relations, and that Defendants’ actions negligently caused them emotional distress. Accordingly, the Court finds for Defendants on all counts.
3 Mash.Rep. 479, 2002 WL 34244445, 5 Mash. 170
At trial, the Court asked counsel for Plaintiff Drumm whether his client had a claim for malicious prosecution. (See Tr. at 200.) Attorney Katz answered, “[A]s I read the compliant that I am dealing with in this claim, I do not have a malicious prosecution claim.” He further explained that there was “no investigation of Master Sgt. Drumm either by the criminal investigation division or by the Internal Affairs division.” “As a result,” Katz said, “I am hard-pressed to understand how I can claim that ... proceedings of any sort were instituted against him as a formal criminal or administrative matter.” (Tr. at 204.) At closing argument, however, Katz informed the Court that he intended, nonetheless, to pursue a claim of malicious prosecution. Considering that Drumm failed to prove at trial that any proceedings of any kind were commenced against him as a result of the Defendants’ actions, the Court finds Drumm’s claim of malicious prosecution, which was neither expressly charged on his behalf in the complaint nor argued in Court, to be without merit. To the extent that the original complaint charged malicious prosecution of Plaintiff Drumm, the Court finds for the Defendants.
The Sovereign Immunity Ordinance, TCR011092–01, waived the sovereign immunity of the Gaming Enterprise in three instances: 1) injuries proximately caused by the negligent acts or omissions of the Gaming Enterprise; 2) injuries proximately caused by the condition of any property of the Gaming Enterprise provided the claimant establishes that the property was in a dangerous condition; 3) injuries caused by the negligent acts or omissions of Tribal Security Officers arising out of the performance of their duties during the course and within the scope of their employment. See TCR011092–01 ch.1, § 4(c).
The stipulation “by and between counsel for purposes of trial,” entered as Plaintiff Perron’s full exhibit No. 34, provided that “in writing the letter to the Governor of the State of Connecticut (Pl.’s Ex. 6), it was the intention of Richard Hayward, as Chairman and as representative of the Mashantucket Pequot Tribe, to request the support of the Governor’s office and the Connecticut State Police in investigating the potential of criminal conduct involved in such entries.” (Pl. Perron’s Ex. 34 at 2.)
To illustrate the dearth of credible evidence on this point, the Court offers the following excerpt from Plaintiff’s post-trial papers.
The Court understands Plaintiff’s claim as one for “libel” and “defamation” despite his persistence in referring to his claim as one for “liable” and “deformation,” (see Pl. Perron’s Proposed Findings of Fact and Law at 10–11; see also Pl. Perron’s Supp. Trial Br. at 12, 20).
The entire text of the letter to Connecticut Governor John G. Rowland from Richard A. Hayward, dated December 11, 1995, is as follows:
For a more complete analysis of the letter, see Count 1, above.
“[A] number of factors ... assist in determining whether a proceeding is quasijudicial.... 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 at 567, 606 A.2d 693 (citing Thomas v. Petrulis, 125 Ill.App.3d 415, 419–20, 80 Ill.Dec. 713, 465 N.E.2d 1059 (1984)).
All of the statements attributed to G. Michael Brown in the December 16, 1995, articles appear to have originated in a December 15, 1995, press release titled “Statement of G. Michael Brown, President & CEO of Foxwoods Resort Casino.” The statements in the articles are identical to the language of the press release. (See Pl. Drumm’s Ex. 1.) Plaintiff Perron does not claim that the press release, the apparent source of Brown’s statements in the two articles, defamed him.
In the case of Mr. MacDonald, the Court has no evidence that he actually made the statements attributed to him in the New London Day article. Since it finds that the statements were protected as opinion and were not made with actual malice, the lack of evidence as to their authenticity does not concern the Court here.
On October 17, 2001, McGuire testified at trial that:
The Court notes that it cannot venture to decide whether the statement in the ad is “differmative” because, supported by the guidance of reputable dictionaries and aided by its own powers of deductive reasoning, it strongly believes that “differmative” is not an actual and proper word in the English language.
See the Court’s earlier decision in this matter, allowing that the original complaint properly alleged the elements of a claim for negligent infliction of emotional distress, but denying Plaintiff Drumm’s motion to modify his complaint to include a claim for intentional infliction of emotional distress. See Perron v. Mashantucket Pequot Tribe, 5 Mash. 28, 29–30, 3 Mash.Rep. 352, 354 (2001).