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*********************************************** 
SMITH v. SUPPLE—DISSENT

D’AURIA, J., with whom ECKER and ALEXANDER,

Js., join, dissenting. Many states have passed what have

come to be known as anti-SLAPP1

statutes. Connecticut’s legislature passed a version of this kind of statute

in 2017. See General Statutes § 52-196a. A hallmark of

these statutes is the availability of early court intervention to protect those who claim that a lawsuit has been

filed against them in retaliation for their exercise of

protected constitutional rights.2 On an expedited basis

and on a quickly assembled record, a trial judge serves

as a gatekeeper, promptly weeding out and dismissing

lawsuits that plainly have been filed for this illegitimate

purpose.

When the legislature passed the legislation that

became § 52-196a, it was not writing on a blank slate.

Many state legislatures had already passed these kinds

of statutes, and the legislative history of § 52-196a notes

that we borrowed generously from these models. Some

of these other states’ statutes, including those the legislature most conspicuously borrowed from, explicitly

provided for an interlocutory appeal from the denial of

an early motion, in Connecticut called a ‘‘special motion

to dismiss.’’ Some do not provide explicitly for an

appeal. Still other legislatures amended their states’

statutes to provide for an interlocutory appeal after a

court had ruled that no such appeal was authorized.

Connecticut’s statute does not explicitly provide for

an interlocutory appeal. The majority today, however,

finds authority for such an appeal in what should be a

narrow avenue, doing so based on the second prong of

the test adopted in State v. Curcio, 191 Conn. 27, 463

A.2d 566 (1983), which allows for an immediate appeal

‘‘[when] the order or action so concludes the rights of

the parties that further proceedings cannot affect

them.’’ Id., 31. Even under the second prong of Curcio,

though, we are obliged pursuant to General Statutes

§ 1-2z to take our cues from what the legislature has

said about the ‘‘nature of the statutory right’’ at issue,

as the majority phrases it. In my view, based on the

statutory language and the available evidence of legislative intent, the majority’s analysis does not abide by

§ 1-2z. Rather, I conclude that the defendants, Aaron

Supple, Karen Montejo, Hendrick Xiong-Calmes and

Giana Moreno, who were students at Trinity College in

Hartford, have failed to establish that a right already

secured to them will be irretrievably lost absent an

immediate appeal.

We traditionally have ‘‘strictly construe[d]’’ the right

to appeal; E. Prescott, Connecticut Appellate Practice &

Procedure (5th Ed. 2016) § 2-1:1.2, p. 44; including the

right to appellate review of interlocutory rulings. In my

view, the legislature expects us to do exactly that. The
legislature knows we will look for explicit statutory

language authorizing an interlocutory appeal and for

‘‘distinctive and unmistakable’’ language in defining a

statutory right that might meet the strictures of the

second prong of Curcio. Trinity Christian School v.

Commission on Human Rights & Opportunities, 329

Conn. 684, 696, 189 A.3d 79 (2018). I do not believe that

the defendants have established that, under § 1-2z and

our case law, the legislature authorized us to hear

appeals from these gatekeeper rulings. And I do not

believe that, having opened the door to these appeals,

they will be as easy to rule on and dispose of as the

majority might expect. For all of the reasons that follow,

I respectfully dissent.

I

I will assume familiarity with the details of the incidents that gave rise to this action, as aptly described

in the majority opinion, and focus first on the trial court

proceedings. Review of those proceedings provides an

appropriate appreciation of the beneficial measures

enacted in Connecticut’s anti-SLAPP statute, § 52-196a,

by which the legislature balanced the rights of plaintiffs

who claim damages to pursue legal action in our courts;

see Conn. Const., art. I, § 10;3 and the rights of defendants who claim that the action is nothing more than

retaliation for exercising their protected constitutional rights.

The plaintiffs, Gregory B. Smith, Nicholas Engstrom

and The Churchill Institute, Inc., brought this action

against the defendants on April 5, 2021, alleging libel per

se, libel per quod, and negligent infliction of emotional

distress. The defendants filed a ‘‘special motion to dismiss,’’ arguing that, in the language of § 52-196a, the

plaintiffs’ claims were based on the defendants’ exercise of their rights of free speech or association in

connection with a matter of public concern under the

first amendment to the United States constitution. As

required by § 52-196a (c), the defendants filed their

motion within thirty days of the return date.

The defendants’ special motion to dismiss gave rise

to an expedited trial court procedure. Specifically, pursuant to § 52-196a (d), the filing of the motion prompted

a stay of discovery, which applies unless the court finds

‘‘specified and limited discovery relevant to the special

motion to dismiss’’ necessary.4 On July 21, 2021, after

a condensed briefing period, the trial court conducted

an expedited hearing on the motion.5 The court issued

a decision denying the motion on November 16, 2021,

within the time our rules of practice afford for rulings

on short calendar matters. See Practice Book § 11-19

(a) (court ‘‘shall issue a decision on such matter not

later than 120 days from the date of such submission’’);

see also General Statutes § 52-196a (e) (4) (directing

court to rule on special motion ‘‘as soon as practicable’’).
The trial court held that the defendants had failed to

meet their burden under § 52-196a (e) (3) of demonstrating that the plaintiffs’ complaint is based on the defendants’ right to free speech because their communications at Trinity College were not made in a ‘‘public

forum,’’ as required under § 52-196a (a) (2).6 The trial

court further held that a private college, like Trinity

College, was not a state actor for purposes of triggering

first amendment protections under the federal constitution.

The defendants filed an appeal, which the Appellate

Court promptly stayed, awaiting a decision in Pryor v.

Brignole, 336 Conn. 933, 248 A.3d 3 (2021), in which

we had certified the issue of whether a denial of a

special motion to dismiss is immediately appealable.

We transferred the defendants’ appeal to this court for

consideration along with Pryor and Robinson v. V. D.,

Docket No. SC 20731, an appeal that the Appellate Court

had also stayed and that we had also transferred

because it implicated the same threshold jurisdictional issue.

II

It is well established that, ordinarily, the denial of

a motion to dismiss—even on jurisdictional grounds,

which was not the basis of the defendants’ special

motion—is an interlocutory ruling, not a final judgment

for purposes of appeal. See, e.g., In re Teagan K.-O.,

335 Conn. 745, 754, 242 A.3d 59 (2020). Nor is the denial

of a motion for summary judgment or a motion to strike

ordinarily an appealable final judgment. See, e.g., Lighthouse Landings, Inc. v. Connecticut Light & Power

Co., 300 Conn. 325, 328 n.3, 15 A.3d 601 (2011) (motion

for summary judgment); White v. White, 42 Conn. App.

747, 749, 680 A.2d 1368 (1996) (motion to strike).

The constitutional nature of the defense the defendants have posed in the present case compels no different result. This is because it is also well established

that the right to free speech protected by the first

amendment confers an immunity from liability, which

may be raised as a defense; see, e.g., Gleason v. Smolinski, 319 Conn. 394, 406–407, 125 A.3d 920 (2015); see

also Snyder v. Phelps, 562 U.S. 443, 451–52, 131 S. Ct.

1207, 179 L. Ed. 2d 172 (2011); and, if unsuccessful,

may be appealed upon the entry of an adverse final

judgment. See, e.g., Segni v. Commercial Office of

Spain, 816 F.2d 344, 345 (7th Cir. 1987) (‘‘[i]t’s quite a

leap . . . to say that anytime a motion to dismiss on

[f]irst [a]mendment grounds is denied, the defendant

can appeal the denial, on the theory that the failure to

dismiss the suit at the earliest opportunity is itself an

infringement of the defendant’s [f]irst [a]mendment

rights’’).

Therefore, the defendants do not dispute, and the

majority concedes, that, prior to January 1, 2018, the
effective date of No. 17-71, § 1, of the 2017 Public Acts

(P.A. 17-71), codified at § 52-196a, the defendants’ constitutional rights to free speech provided them not with

immunity from suit but only with immunity from liability for claims premised on the exercise of those rights.

It follows that, before the passage of § 52-196a and

today’s majority decision, a defendant’s unsuccessful

motion (to dismiss, to strike, or for summary judgment)

based on a first amendment defense would not have

been immediately appealable.

III

In 2017, the legislature passed P.A. 17-71, § 1, which

became effective on January 1, 2018, and permits those

against whom lawsuits have been filed to pursue a special motion to dismiss early in the litigation, raising as

a defense that the underlying action arose out of the

exercise of their constitutional rights to free speech,

to free association, or to petition the government. As

described previously, the statute permits any defendant

filing a motion posing such a defense to require plaintiffs in short order to demonstrate that their case has

merit, factually and legally. In particular, the statute

directs the trial court to grant the special motion to

dismiss if the defendants make ‘‘an initial showing, by

a preponderance of the evidence, that the opposing

party’s complaint, counterclaim or cross claim is based

on the moving party’s exercise of’’ his constitutional

rights ‘‘in connection with a matter of public concern

. . . .’’ General Statutes § 52-196a (e) (3). The plaintiffs

can defeat the special motion to dismiss if they ‘‘[set]

forth with particularity the circumstances giving rise

to the complaint . . . and [demonstrate] to the court

that there is probable cause, considering all [of the

defendants’] valid [constitutional] defenses, that the

[plaintiffs] will prevail on the merits of the complaint

. . . .’’ General Statutes § 52-196a (e) (3).

Whether and how to manage and accelerate proceedings at the trial court level is one policy determination

that the legislature clearly and unambiguously provided

for in § 52-196a, directing in significant detail how a

special motion to dismiss should be filed and resolved.

In the present case, for example, following these directives closely, the trial court ruled on the motion in just

over seven months from the filing of the complaint.7

Whether to permit one party to halt the trial court

proceedings and to launch the parties on an appellate

track in the event the motion is denied is an altogether

different policy determination, however, about which

the legislature said almost nothing. An interlocutory

appeal takes an action that the plaintiffs have a constitutional right to file and pursue and deposits it in an

entirely different court system not known for its dispatch. If permitted, this appeal comes after the plaintiffs

have made a preliminary showing, in short order and

‘‘with particularity,’’ that there is probable cause that
they will prevail on their complaint, despite the defendants’ constitutional challenges. General Statutes § 52-

196a (e) (3). Moreover, appellate review of these rulings—often requiring findings of fact by which to measure the plaintiffs’ claims and the defendants’ arguments of intrusion on protected rights—will have to

be undertaken on a record constructed hastily, and

intentionally so. This is not a recipe for the solemn

and meticulous scrutiny often required to adjudicate

weighty constitutional issues, and I would not presume

that the legislature intended our appellate courts to

take up these cases on an interlocutory basis without

more specific legislative direction.

Nevertheless, the defendants claim, and the majority

today agrees, that § 52-196a not only changed the procedure by which defendants may speedily contest the

merits of a lawsuit at the trial level but also permits

defendants to take an appeal when that procedure is

unsuccessful. I disagree.

IV

In Connecticut, ‘‘an appeal is purely a statutory privilege accorded only if the conditions fixed by statute

and the rules of court for taking and prosecuting the

appeal are met.’’ (Internal quotation marks omitted.)

State v. Coleman, 202 Conn. 86, 88–89, 519 A.2d 1201

(1987). That is, we do not determine as a policy matter

whether to afford litigants an appeal from a particular

ruling, let alone an interlocutory ruling: only the legislature does so. There are two ways that the legislature

may signal to our courts its policy choice to permit

interlocutory appeals. Both ways require a close examination of the statutory language, pursuant to § 1-2z,

which I do not agree that the majority has undertaken.

A

The first is the clear and unambiguous way, namely,

the legislature could have made explicit in § 52-196a

that the denial of a special motion to dismiss is immediately appealable. Anti-SLAPP statutes in numerous

other states contain precisely this kind of specific language permitting interlocutory appeals from the denial

of similar motions. Among the states with specific language authorizing an interlocutory appeal are those

whose legislation served as a model for Connecticut’s

anti-SLAPP statute, according to the very legislative

history the majority cites. See Conn. Joint Standing

Committee Hearings, Judiciary, Pt. 8, 2017 Sess., p. 4602,

testimony of Klarn DePalma, vice president and general

manager, WFSB-TV (noting that language of Connecticut’s anti-SLAPP statute is most similar to statutes from

California, Oregon, Texas and Washington); see also

Cal. Civ. Proc. Code § 425.16 (i) (Deering Supp. 2021);

Or. Rev. Stat. § 31.150 et seq. (2017); Tex. Civ. Prac. &

Rem. Code Ann. § 27.008 (West 2020); Wn. Rev. Code

Ann. § 4.105.080 (West 2021). Also, among the states
with explicit statutory appeal language are those that

made the right to an interlocutory appeal explicit only

after a court had ruled that it would not infer such a

right. See Wynn v. Bloom, 852 Fed. Appx. 262, 262 n.1

(9th Cir. 2021) (Nevada); Schwern v. Plunkett, 845 F.3d

1241, 1244 (9th Cir. 2017) (Oregon). Although the

absence of explicit language authorizing an immediate

appeal from the denial of a special motion to dismiss

is not determinative of whether such a right exists;

see, e.g., Hartford Accident & Indemnity Co. v. Ace

American Reinsurance Co., 279 Conn. 220, 238, 901

A.2d 1164 (2006); Connecticut’s legislature has demonstrated in several contexts that, when it intends to permit an interlocutory ruling to be immediately appealable, it knows how to authorize it expressly.8 Two of

these enabling statutes in particular warrant closer

examination in comparison to § 52-196a.

The first is the prejudgment remedy statute, General

Statutes § 52-278l (a),9 which the majority itself cites

because it is mentioned in the legislative history of § 52-

196a. As the majority points out, then Representative

William Tong described the nature of the special motion

to dismiss proceeding under § 52-196a as a ‘‘substantial

hearing’’ or ‘‘[mini-trial] at the outset,’’ akin to a prejudgment remedy hearing. 60 H.R. Proc., Pt. 16, 2017 Sess.,

p. 6945. It is true that both statutes provide for a trial

court’s early examination of whether the statutory

requirements have been satisfied. The difference, of

course, is that § 52-278l expressly authorizes an appeal

from an order ‘‘granting or denying a prejudgment remedy’’ and includes among its provisions a shortened

appeal period (seven days) and authority for the trial

court to order a stay in the event of an appeal if the

party taking the appeal posts a bond, thus protecting

the adverse party from any damages that may result

from the stay. Had Representative Tong been asked to

comment further on the analogy between a ruling on

a prejudgment remedy and the denial of a special

motion to dismiss, he would have had to observe that

our anti-SLAPP statute contains no appeal provision,

unlike § 52-278l and numerous anti-SLAPP statutes in

other states.10

Also worth examining is General Statutes § 31-118,

concerning labor injunctions. That statute not only

explicitly authorizes an appeal when a court ‘‘issues or

denies’’ a temporary injunction arising out of a labor

dispute but also provides its own distinct appeal period

(two weeks) and directs the parties and the reviewing

court on the appellate procedure to undertake. General

Statutes § 31-118. In particular, the statute requires that

‘‘the record shall be . . . made available to counsel

within two weeks’’; ‘‘[t]he appellant shall file his brief

within two weeks . . . and the appellee within one

week thereafter’’; no extensions of time are allowed

except for ‘‘illness or other acts of God’’; the appeal

must be heard no ‘‘later than two weeks from the date
the appeal is perfected’’; and the appeal ‘‘shall take

precedence over all matters except older matters of the

same character.’’ General Statutes § 31-118. Section 52-

196a contains none of these details.

Both § 31-118 and § 52-278l, with their explicit appeal

provisions, provide particularly apt comparisons to our

anti-SLAPP statute because they involve similar preliminary determinations at the trial level. See General Statutes § 31-115 (temporary injunctive relief requires ‘‘finding of facts by the court’’ that (a) unlawful acts have

been threatened and are forthcoming; (b) substantial

and irreparable injury; (c) harm to complainant; (d) no

adequate remedy at law; and (e) inadequate protection

of complainant’s property); General Statutes § 52-278d

(a) (1) (‘‘there is probable cause that a judgment in the

amount of the prejudgment remedy sought . . . will

be rendered in the matter in favor of the plaintiff’’).

Whereas the legislature has decided as a policy matter

that rulings on temporary labor injunctions and prejudgment remedies are worthy of interlocutory appellate

review by the nonprevailing party, as the majority concedes, the legislature has made no such explicit policy

decision regarding our anti-SLAPP statute.

The only portion of the statute that arguably hints at

a right to appeal the denial of a special motion to dismiss

is subsection (d) of § 52-196a, which provides in relevant part: ‘‘The court shall stay all discovery upon the

filing of a special motion to dismiss. The stay of discovery shall remain in effect until the court grants or denies

the special motion to dismiss and any interlocutory

appeal thereof. . . .’’ This language is a far cry from

authorizing an interlocutory appeal, however, and the

majority does not contend otherwise. Staying discovery

until the trial court rules on a special motion to dismiss

and an appellate court rules on a possible interlocutory

appeal does little to imply that the legislature intended

statutorily to grant defendants the right to an immediate

appeal. At most, this language shows that the legislature

was aware that, in unique circumstances, such as when

a party files a public interest appeal pursuant to General

Statutes § 52-265a, a denial of a special motion to dismiss may be immediately appealable.11 See Lafferty v.

Jones, 336 Conn. 332, 336–38 and n.3, 246 A.3d 429

(2020) (granting petition to file expedited public interest

appeal, pursuant to § 52-265a, from trial court’s sanction

revoking defendants’ opportunity to pursue special

motion to dismiss under § 52-196a), cert. denied,

U.S. , 141 S. Ct. 2467, 209 L. Ed. 2d 529 (2021). The

present appeal could have been a viable candidate for

certification under that statute. But acknowledging in

a statute that appellate courts could have the authority

to hear interlocutory appeals through another jurisdictional avenue is not the same as providing a right to

appeal in the statute itself.

B
The majority is correct that we have said that the

absence of specific language conferring the right to

appeal ‘‘is not determinative of whether such a right

exists. . . . Rather, we presume that the legislature is

aware of our [long-standing] final judgment jurisprudence.’’ (Citation omitted.) Hartford Accident &

Indemnity Co. v. Ace American Reinsurance Co.,

supra, 279 Conn. 238. This leads to the second way in

which the legislature can signal to appellate courts its

policy choice to permit interlocutory appeals. Specifically, the legislature can include language in the statute

that satisfies the test articulated in Curcio. See id. That

is, we presume that the legislature has taken note of

the ‘‘circumstances in which an interlocutory ruling is

deemed [by this court] to have the attributes of a final

judgment’’ under our appeal statutes ‘‘so as to permit

an immediate appeal.’’ Saunders v. KDFBS, LLC, 335

Conn. 586, 591, 239 A.3d 1162 (2020); see Hartford Accident & Indemnity Co. v. Ace American Reinsurance

Co., supra, 238.

Specifically, we have held that an ‘‘otherwise interlocutory order is appealable in two circumstances: (1)

[when] the order or action terminates a separate and

distinct proceeding, [and] (2) [when] the order or action

so concludes the rights of the parties that further proceedings cannot affect them.’’ State v. Curcio, supra,

191 Conn. 31. No one contends that the first prong of

Curcio is implicated in the present case or by § 52-196a.

Rather, the only question is whether the denial of a

special motion to dismiss satisfies the second prong of

the Curcio test, which ‘‘focuses on the nature of the

right involved. It requires the parties seeking to appeal

to establish that the trial court’s order threatens the

preservation of a right already secured to them and that

that right will be irretrievably lost and the [parties]

irreparably harmed unless they may immediately

appeal.’’ (Internal quotation marks omitted.) Hartford

Accident & Indemnity Co. v. Ace American Reinsurance Co., supra, 279 Conn. 226.

1

In undertaking a second-prong Curcio analysis, the

‘‘ ‘essential predicate’ ’’ is to identify properly the nature

of the right implicated. Id., 231. ‘‘The right of the party

must be of a statutory or constitutional nature.’’12 E.

Prescott, supra, § 3-1:2.3, p. 92. With the lack of interlocutory review not implicating any constitutional right,

the majority describes the statutory right at stake in

the present case several ways. For example, quoting

our decision in Convalescent Center of Bloomfield, Inc.

v. Dept. of Income Maintenance, 208 Conn. 187, 195,

544 A.2d 604 (1988), the majority suggests that, as in

that case, § 52-196a protects ‘‘the right not to have to

go to trial on the merits’’ or the right ‘‘to avoid litigation

on the merits that can be costly and burdensome

. . . .’’13 (Emphasis omitted; internal quotation marks
omitted.) It also refers to a ‘‘right to avoid litigation,’’ a

‘‘right to avoid the costly and onerous litigation process

altogether,’’ a ‘‘right to avoid costly and burdensome

litigation on the merits,’’ and a right that ‘‘shields [the

defendants] from litigation akin to the right against

double jeopardy or the other types of immunity from

suit in the civil context . . . .’’ (Emphasis omitted;

internal quotation marks omitted.) None of these

phrases appears in the statute’s text.

The majority does not explain why it eschews characterizing the nature of the right implicated by § 52-196a

as ‘‘immunity from suit . . . .’’ Instead, the majority

forgoes the required § 1-2z analysis and characterizes

this right as merely being akin to immunity from suit,

despite the fact that this kind of analysis applies only

to common-law defenses. See footnote 13 of this opinion. If asked to define the phrase ‘‘immunity from suit’’

for a legal dictionary, however, a lexicographer would

be hard-pressed to craft a better definition than any of

the phrases the majority uses to describe the right it

claims the statute protects and that I compiled in the

preceding paragraph. In fact, our case law defines

immunity from suit precisely using these very phrases.

For example, we have often said that ‘‘the essence of

the protection of immunity from suit is an entitlement

not to stand trial or face the other burdens of litigation.’’

(Internal quotation marks omitted.) Blakely v. Danbury

Hospital, 323 Conn. 741, 746, 150 A.3d 1109 (2016). We

have also described state sovereign immunity, which

is an immunity from suit, as a ‘‘doctrine [that] protects

against suit as well as liability—in effect, against having

to litigate at all.’’ Shay v. Rossi, 253 Conn. 134, 166, 749

A.2d 1147 (2000), overruled in part on other grounds

by Miller v. Egan, 265 Conn. 301, 828 A.2d 549 (2003).

Using the proper legal parlance is important because,

when we seek to define statutory rights with such significant consequences, we should speak precisely so that

we may expect the legislature also to speak precisely

when granting these rights. Words matter. And, as with

all statutory interpretation exercises this court undertakes, it is elementary that § 1-2z governs our exercise

of divining the precise nature of the statutory right at

issue, as we have recognized very recently.

For example, in Sena v. American Medical Response

of Connecticut, Inc., 333 Conn. 30, 213 A.3d 1110 (2019),

we looked ‘‘to [General Statutes] § 28-13 to determine

the nature of the immunity afforded to political subdivisions’’ when they are sued for actions taken by their

police and fire departments in response to declared

state emergencies. Id., 45. We described this issue as ‘‘a

question of statutory construction’’; id.; and, therefore,

pursuant to § 1-2z, we first examined the plain language

of § 28-13, which we determined to be ambiguous. See

id., 47–48. Only then did § 1-2z permit us to consider the

relevant legislative history, which led us to ultimately
conclude that § 28-13 provided immunity from suit. See

id., 48–52. Based on this conclusion, we held that the

denial of a motion for summary judgment premised on

the immunity conferred by § 28-13 was immediately

appealable under the second prong of Curcio. See id.,

52; see also Trinity Christian School v. Commission

on Human Rights & Opportunities, supra, 329 Conn.

694 (under § 1-2z, we must first look to statute’s language to determine whether legislature provided any

indication that it intended to grant immunity from suit);

Harger v. Odlum, 153 Conn. App. 764, 769–73, 107 A.3d

430 (2014) (determining pursuant to § 1-2z that General

Statutes § 52-190a does not grant immunity from suit,

and thus pretrial denials of this statutory right are not

immediately appealable under second prong Curcio).

Unlike in Sena, the majority in the present case, in

its search for the nature of the right conferred on defendants by § 52-196a, only briefly examines any of the

statute’s plain language and, when it does, does not

consider the language of subsection (b), in which the

so-called ‘‘right’’ is described. Neither does the majority

consider whether any language is ambiguous, which

could arguably justify the majority’s reference to particular legislators’ statements about the statute’s purpose

that nevertheless do not refer to immunity from suit

or a right to appeal. Instead, the majority resorts to

characterizing the nature of the right found in § 52-196a,

ultimately concluding that the right conferred by the

statute may be vindicated only if the defendant has a

right to an interlocutory appeal. Since 2003 and the

passage of § 1-2z, however, to guard against possibly

inaccurate portrayals of legislative intent, the legislature has directed us to examine a statute’s text first,

along with ‘‘its relationship to other statutes.’’ General

Statutes § 1-2z. We do not consider extratextual evidence, such as legislative history, unless the text is

ambiguous or unless it yields absurd or unworkable

results. See General Statutes § 1-2z.

Because I believe that the majority’s description of

the right is merely another way of describing an immunity from suit, I first undertake what I consider to be a

proper § 1-2z analysis of § 52-196a to determine whether

the legislature, not having explicitly created a right to

an interlocutory appeal in the statute; see part IV A of

this opinion; nonetheless manifested an intent to confer

on defendants a right to immunity from suit, the denial

of which, under our case law, creates a right to an

immediate interlocutory appeal. I conclude that the legislature did not do so.14 Nor do I agree with the majority

that the legislative history it recounts supports a conclusion that the legislature intended to provide immunity

from suit by granting defendants a right not to litigate

akin to immunity from suit.

2

A corollary to the ‘‘presum[ption] that the legislature
is aware of our [long-standing] final judgment jurisprudence’’; Hartford Accident & Indemnity Co. v. Ace

American Reinsurance Co., supra, 279 Conn. 238; is

that the legislature is also aware of how to signal under

Curcio that the denial of a right is immediately appealable. As I discussed previously, and as guided by § 1-

2z, this is particularly true when determining whether

a statute grants immunity from suit. Specifically, we

have stated that, ‘‘when the legislature intends to confer

immunity from liability or from suit, it does so in distinctive and unmistakable terms . . . .’’ (Emphasis

added; footnotes omitted.) Trinity Christian School v.

Commission on Human Rights & Opportunities,

supra, 329 Conn. 696. For example, we previously have

noted specific examples of statutory language conferring immunity from suit, including the phrases, ‘‘no

action may be brought’’ and ‘‘shall not be liable . . . .’’

(Footnotes omitted; internal quotation marks omitted.)

Id.; see General Statutes § 52-557e (‘‘[n]o action may

be brought to recover damages against any licensed

physician for any decision or action taken by him as a

member of a hospital utilization review committee’’);

General Statutes § 52-557o (‘‘[n]o action for trespass

shall lie’’); see also Sena v. American Medical Response

of Connecticut, Inc., supra, 333 Conn. 47–52 (holding

that denial of motion for summary judgment premised

on § 28-13 was immediately appealable under second

prong of Curcio because statute provided immunity

from suit based on language that attorney general must

‘‘ ‘appear for and defend’ ’’ political subdivisions, as well

as legislative history emphasizing state’s taking on cost

and burdens of litigation). Applying these principles to

the text of § 52-196a, I cannot locate in my review of

the statute’s plain language any ‘‘distinctive and unmistakable terms’’ even suggesting an immunity from suit

or an immunity of any kind. Trinity Christian School

v. Commission on Human Rights & Opportunities,

supra, 696.

My review begins with subsection (b) of § 52-196a,

which actually confers the right to file the special

motion. In relevant part, § 52-196a (b) provides: ‘‘In any

civil action in which a party files a complaint . . .

against an opposing party that is based on the opposing

party’s exercise of its right of free speech, right to petition the government, or right of association under the

Constitution of the United States or the Constitution of

the state in connection with a matter of public concern,

such opposing party may file a special motion to dismiss the complaint . . . .’’ (Emphasis added.) The subsections that follow subsection (b) detail the procedure

a defendant must follow to go about exercising this

right. For example, subsection (c) sets the deadline for

when a defendant must file a special motion to dismiss

at thirty days from the return date, absent good cause

found by the trial court. Subsection (d) provides for a

stay of discovery during the pendency of the motion,
which, for the same reasons explained in part IV A of

this opinion as to why this language does not support

a statutory right to appeal, also does not provide any

kind of immunity. Subsection (e) governs when and

how the trial court must conduct a hearing on the

motion. Specifically, the trial court is required to conduct ‘‘an expedited hearing’’ and must ‘‘rule on a special

motion to dismiss as soon as practicable.’’ General Statutes § 52-196a (e) (1) and (4). Finally, subsection (f)

not only does not show any legislative intent to create

an immunity from suit but supports my analysis that

this statute provides only a procedural benefit to defendants. Subsection (f), the fee shifting provision, provides defendants with a significant financial benefit in

the event that a special motion to dismiss is improperly

denied. In particular, if unsuccessful at trial, a defendant

may raise a first amendment defense on appeal, and,

if successful, this court may hold that the special motion

to dismiss was improperly denied, may vacate the judgment, and then may remand the case to the trial court

with direction to dismiss the plaintiff’s action and to

determine the appropriate award of costs and attorney’s

fees under subsection (f). See Gurliacci v. Mayer, 218

Conn. 531, 576, 590 A.2d 914 (1991) (requiring trial court

to determine attorney’s fees on remand); Medical

Device Solutions, LLC v. Aferzon, 207 Conn. App. 707,

782, 264 A.3d 130 (remanding case to ‘‘[trial] court with

instructions to determine, if possible, what portion of

the fees and costs it awarded under [Connecticut Unfair

Trade Practices Act (CUTPA), General Statutes § 42-

110a et seq.] were reasonably incurred to litigate that

portion of the CUTPA claim that was not barred by the

statute of limitations’’), cert. denied, 340 Conn. 911, 264

A.3d 94 (2021). Additionally, if successful at trial, the

defendant may then file a motion for attorney’s fees with

the trial court. See Practice Book § 11-21 (‘‘[m]otions

for attorney’s fees shall be filed with the trial court

within thirty days following the date on which the final

judgment of the trial court was rendered’’).

Section 52-196a does not contain the kind of ‘‘unmistakable terms’’ that have led us to conclude that a statute creates a right to ‘‘immunity from suit,’’ whether

described as such by our case law in this usual way,

or described synonymously as a ‘‘right to avoid litigation,’’ or a ‘‘right not to have to go to trial on the merits,’’

or a right ‘‘akin’’ to immunity from suit. Rather, the

plain language of § 52-196a clearly and unambiguously

creates only a new procedure for defendants to raise

as early as possible in the litigation their preexisting

right to immunity from liability when the underlying

defense is premised on their exercise of a first amendment constitutional right or state constitutional analogue. The legislature plainly wanted to confer on defendants the procedural right to raise this defense in the

trial court before being burdened by the costs and

inconvenience of discovery. But, as this court has pre-
viously recognized, ‘‘[t]here is a crucial distinction to

be drawn between a right not to be tried and a right

whose remedy requires the dismissal of charges. . . .

The former necessarily falls into the category of rights

that can be enjoyed only if vindicated prior to trial. The

latter does not.’’15 (Internal quotation marks omitted.)

Hartford Accident & Indemnity Co. v. Ace American

Reinsurance Co., supra, 279 Conn. 232. In striking a

balance between the rights of plaintiffs and defendants,

the legislature’s decision not to include distinctive and

unmistakable language providing a right to immunity

from suit should lead us to conclude that the legislature

did not view the right to an immediate appeal as within

that bundle of rights critical to the policy it was implementing—i.e., a right that ‘‘can be enjoyed only if vindicated prior to trial.’’ (Internal quotation marks omitted.)

Id.; see Englert v. MacDonell, 551 F.3d 1099, 1105 (9th

Cir. 2009) (collateral order doctrine was not satisfied

by Oregon’s anti-SLAPP statute ‘‘because it was not

intended to provide a right not to be tried, as distinguished from a right to have the legal sufficiency of the

evidence underlying the complaint reviewed by a nisi

prius [i.e., trial] judge before a defendant is required to

undergo the burden and expense of a trial’’).

In the context of Curcio’s second prong, ‘‘[w]e have

[also] said that the claimed right cannot be ‘a contingent

right created by statute and subject to the discretion

of the trial court’; State v. Garcia, 233 Conn. 44, 66, 658

A.2d 947 (1995) [overruled in part on other grounds sub

silentio by Sell v. United States, 539 U.S. 166, 123 S. Ct.

2174, 156 L. Ed. 2d 197 (2003)]; rather, the right must

exist independently of the order from which the appeal

is taken.’’ Hartford Accident & Indemnity Co. v. Ace

American Reinsurance Co., supra, 279 Conn. 231. In

the present case, the rights created by § 52-196a (e) (3)

are contingent on ‘‘an initial showing, by a preponderance of the evidence,’’ by the defendant, and a ‘‘probable

cause’’ showing by the plaintiff. The legislature’s use

of the phrases ‘‘initial showing’’ and ‘‘probable cause,’’

by their nature, strongly suggests that the legislature

contemplated the trial court’s exercising some degree

of discretion. See TES Franchising, LLC v. Feldman,

286 Conn. 132, 137, 943 A.2d 406 (2008) (in ruling on

application for prejudgment remedy, ‘‘[i]n its determination of probable cause, the trial court is vested with

broad discretion’’ (internal quotation marks omitted)).

Moreover, this relatively low probable cause burden

necessary for the plaintiff to defeat the special motion

to dismiss demonstrates that the legislature recognized

that many special motions to dismiss may be denied,

and yet it decided not to expressly create a right to

immunity from suit, undermining any argument that an

immediate appeal is necessary to vindicate the statutory

right at issue.

I draw from the statutory language that the legislature

intended for the trial court, if called on by a defendant,
to act as a gatekeeper, early in the litigation and in an

expedited fashion, to consider and rule on the viability

of the alleged constitutional violations before a defendant is burdened by the costs and inconvenience of

discovery. In the words of the United States Court of

Appeals for the Ninth Circuit construing a similarly

worded statute, the Oregon legislature provided the

defendant with the right to have the ‘‘legal sufficiency

of the evidence underlying the complaint reviewed by

a nisi prius [i.e., trial] judge . . . .’’ Englert v. MacDonell, supra, 551 F.3d 1105.16 This is eminently sensible

because, when the trial court is tasked with acting as

a gatekeeper, which is most often a trial court function;

see, e.g., State v. Schiappa, 248 Conn. 132, 163 n.39,

728 A.2d 466, cert. denied, 528 U.S. 862, 120 S. Ct. 152,

145 L. Ed. 2d 129 (1999); all that is required is a preliminary showing that the party may prevail on the facts

and law, which may lead to an incomplete or inadequate

record for appellate review of constitutional questions.

See part V of this opinion.

Thus, I disagree with the majority that the plain language of § 52-196a creates a right—‘‘akin’’ or otherwise—to immunity from suit. Rather, under our well

established rules of statutory construction, the statute’s

plain language clearly and unambiguously creates a new

and valuable procedure for a defendant to raise, as early

as possible in the litigation, his or her preexisting right

to immunity from liability when the underlying defense

is premised on his or her exercise of a first amendment

right or state constitutional analogue.

3

Even if I were to agree that the language of § 52-196a

is ambiguous with respect to the nature of the statutory

right created (which not even the majority contends),

I disagree that the legislative history supports a conclusion that the legislature intended to create a right akin

to immunity from suit.

First, I make an observation about reliance on legislative history in this context generally. Given the primacy

of legislative text under § 1-2z and the traditional

approach of strictly construing statutory appellate

rights; see E. Prescott, supra, § 2-1:1.2, p. 44; it is at least

arguable that we should not be looking to extraneous

sources, like legislative history, for something that the

legislature can say explicitly and relies on us not to

infer. Cf. Envirotest Systems Corp. v. Commissioner

of Motor Vehicles, 293 Conn. 382, 390, 978 A.2d 49 (2009)

(‘‘the existence of uncertainty in a statute with regard

to [a sovereign immunity] waiver is not an ambiguity

but, rather, an answer’’).

Putting that aside, in my view, the majority reads far

more into statements made by particular legislators

than can reasonably be inferred. Of course, not a single

legislator mentioned the idea of an interlocutory appeal.
I do not believe that the legislature would have us

review the statements of individual legislators just to

get a sense of the policy the legislature was trying to

effect and then extrapolate from there whether going

one step further (in this case, an interlocutory appeal)

would, in our view, be consistent with that policy and

therefore conclude that the legislature must have so

intended.

The majority essentially reads the legislative history,

sub silentio, to confer on defendants a right to an errorfree gatekeeper. As an example, the majority writes

that ‘‘[t]he extensive legislative history of the statute

indicates that the legislature was particularly concerned

about defendants laboring under the burden of having

to defend against SLAPP suits, which are by definition

frivolous and oppressive, as a consequence of having

exercised their first amendment rights.’’ The majority’s

characterization of the statutory purpose is inarguable:

to deter and weed out abusive and frivolous claims

‘‘designed to chill free speech and the expression of

constitutional rights . . . .’’ (Emphasis omitted; internal quotation marks omitted.) But the majority holds

that the legislative history makes clear that this weeding

out function extends beyond the trial court, the usual

gatekeeper. In its view, the weeding out process is not

complete until an appellate court has reviewed a trial

judge’s very preliminary determinations of the defendant’s ‘‘initial showing’’ and the plaintiff’s showing of

‘‘probable cause’’ that he will prevail on the merits. See

part V of this opinion. The majority has to read this

into the legislative history because not once does a

legislator mention extending the gatekeeping function

beyond the trial court, to an appellate court’s interlocutory review, if a defendant, after availing himself of the

significant benefits of the trial court’s speedy determination, is unsuccessful in convincing the trial court of

the merits of its special motion to dismiss. In my view,

the available legislative history is far too thin a reed on

which to upset the usual rule that all preserved issues

are reviewable when an aggrieved party appeals at the

end of the case, and not until then.

I read the scant legislative history to lean the other

way: against permitting an interlocutory appeal. Specifically, Representative Tong explicitly clarified that ‘‘it’s

a bill to protect people against liabilities . . . .’’

(Emphasis added.) 60 H.R. Proc., supra, p. 6879.

Nowhere in the legislative history is there any reference

to or suggestion of the statute’s providing immunity

from suit. Rather, as Representative Tong explicitly

stated, the statute’s intended purpose is to ‘‘[provide]

for a special motion to dismiss so that early in the

process somebody who’s speaking and [has] exercised

[his] constitutional rights can try to dismiss a frivolous

or abusive claim that has no merit and [short-circuit]

a litigation where it might otherwise cost a great deal

of money to continue to prosecute.’’ (Emphasis added.)
Id.; see id., p. 6884, remarks of Representative Tong.

Like the language contained in the statute, Representative Tong’s statement indicates only that the legislature

intended to create a process to weed out frivolous and

abusive lawsuits early in the litigation so as to prevent

the needless expense and burdens of litigation. In other

words, the legislature wanted to ensure that defendants

did not have to incur the cost of litigation until a gatekeeper—the trial court—determined that there is ‘‘probable cause’’ that the lawsuit has merit. Id., pp. 6905,

6909, remarks of Representative Tong. The lack of an

immediate appeal from a denial of a motion to dismiss

does not undermine the legislature’s goal of ensuring

that this gatekeeping function occurs ‘‘as quickly as

possible to avoid . . . undue litigation and abuse of

the process . . . .’’ Id., p. 6921, remarks of Representative Tong.

Importantly, the legislative history shows that § 52-

196a was the result of balancing the two interests at

stake here: (1) the defendant’s right to free speech, and

(2) the plaintiff’s right to have a claim heard. See id., pp.

6881–82, remarks of Representative Rosa C. Rebimbas

(‘‘this legislation does provide for an expedited hearing

and the purpose in that, again, is as the good [c]hairman

had indicated it is a gentle balance between free speech

by being able to resolve any issues once it’s brought

before the court’s attention’’); id., p. 6909, remarks of

Representative Tong (‘‘the claimant who has generally

a right to have his or her claims heard’’). By providing

a procedural remedy, not a right to immunity from suit,

the legislature strikes this balance. See Conn. Joint

Standing Committee Hearings, Judiciary, Pt. 9, 2017

Sess., pp., 4779–80, testimony of Eric Parker, on air

anchor and chief investigative reporter, WFSB-TV (‘‘It

sets up a clear test. If the complaint shows a bare

minimum of validity, it moves forward. If it does not,

the defendant can end the litigation quickly and without

the months of delays and expenses that come with it.

It doesn’t mean valid lawsuits won’t get prosecuted.

Those claims do exist and they should be allowed to

move forward. The plaintiffs deserve every ounce of

the rights the courts give them.’’). Thus, I do not read

the legislative history to do any more than the text of

the statute explicitly says, i.e., speak to the creation of

a procedure that permits a defendant to obtain prompt

review of an alleged SLAPP lawsuit.

4

The majority cites to a handful of cases from other

jurisdictions that it claims apply ‘‘a Curcio-esque analysis’’ and support its conclusion that an interlocutory

appeal lies from the ‘‘denial of a special motion to dismiss . . . .’’17 The majority tells us that this case law

is ‘‘particularly instructive’’ because of Senator John A.

Kissel’s description of Connecticut’s anti-SLAPP statute

as ‘‘a compilation of some of the best [anti-SLAPP] laws
out there from throughout the United States.’’ 60 S.

Proc., Pt. 6, 2017 Sess., p. 2236; see also 60 H.R. Proc.,

supra, p. 6884, remarks of Representative Tong

(‘‘twenty-nine other states have adopted . . . legislation very similar to the construct we have here’’). The

majority would apparently have us infer from such a

general legislative statement that permitting an interlocutory appeal from a trial judge’s considered denial of

a special motion to dismiss would place Connecticut’s

anti-SLAPP statute among ‘‘the best laws out there

. . . .’’ This is the majority’s own value judgment.

Whether I agree with that judgment is not important.

There are states that provide for interlocutory appeals

and some that do not.

What is important is that, having compiled examples

of ‘‘the best laws out there,’’ the legislature chose not

to include what at least as many jurisdictions as the

majority cites specifically did include: a statute explicitly permitting an interlocutory appeal.18 See Cal. Civ.

Proc. Code § 904.1 (a) (13) (Deering Supp. 2021); Ga.

Code Ann. § 9-11-11.1 (e) (Supp. 2019); Nev. Rev. Stat.

§ 41.670 (4) (2019); N.M. Stat. § 38-2-9.1 (C) (Cum. Supp.

2015); Okla. Stat. Ann. tit. 12, § 1437 (West Cum. Supp.

2021); 27 Pa. Stat. and Cons. Stat. Ann. § 8303 (West

2009); Tenn. Code Ann. § 20-17-106 (West Supp. 2019);

Tex. Civ. Prac. & Rem. Code Ann. § 27.008 (West 2020);

Wn. Rev. Code Ann. § 4.105.080 (West 2021); see also

Ill. Sup. Ct. R. 306 (a) (9) (West 2020). In fact, although

the legislative history of § 52-196a recites that our antiSLAPP statute is most similar in language to the statutes

from California, Oregon, Texas and Washington; see

Conn. Joint Standing Committee, Judiciary, Pt. 8, 2017

Sess., p. 4602; in 2017, when the legislature enacted

§ 52-196a, the anti-SLAPP statutes in California, Texas,

and Washington included language explicitly authorizing an immediate appeal from a denial of a motion

under those statutes. See 2014 Cal. Stat. c. 71, § 17; see

also Tex. Civ. Prac. & Rem. Code Ann. § 27.008 (West

2015); Wn. Rev. Code Ann. § 4.24.525 (5) (d) (West

2017).

The legislature’s reliance on Oregon’s anti-SLAPP

statute is also important to note because the Oregon

legislature had amended its statute in 2009—before

Connecticut’s legislature enacted § 52-196a—to add language permitting an immediate appeal. 2009 Or. Laws

c. 449, §§ 1 and 3 (effective January 1, 2010); see House

Committee on Judiciary, Staff Measure Summary on

Senate Bill No. 543 (amending Oregon law to authorize

‘‘an immediate appeal [from] the denial of an antiSLAPP . . . motion’’). The original version of Oregon’s

statute was explicitly premised on California’s antiSLAPP statute, except that it did not include language

providing for an immediate right to appeal from the

denial of a special motion to strike, as California’s did.

See Englert v. MacDonell, supra, 551 F.3d 1105–1107;

see also Or. Rev. Stat. §§ 30.142 and 30.144 (2001). The
statutory language also did not include a right not to

go to trial and thus did not provide immunity from suit.

See Englert v. MacDonell, supra, 1105–1107. Because

of this, courts had held that the denial of a motion

under Oregon’s anti-SLAPP statute was not immediately

appealable. See, e.g., id. In response, the Oregon legislature then amended the statute to specifically provide

the right to appeal. See Schwern v. Plunkett, supra, 845

F.3d 1244. My conclusion that Connecticut’s legislature

did not intend to provide either an immediate right to

appeal or immunity from suit is supported by its decision not to include specific language authorizing an

interlocutory appeal, as other state legislatures had,

or a right to immunity from suit, despite presumably

knowing that the absence of such language, as in the

original version of Oregon’s anti-SLAPP statute, would

likely lead a court to conclude that there is no right to

an immediate appeal.

Cases that have held that the denial of a motion under

an anti-SLAPP statute is immediately appealable, notwithstanding the lack of explicit language granting the

right to appeal, are distinguishable from the present

case in one of three ways: (1) the anti-SLAPP statute

at issue contained language significantly different from

that found in § 52-196a;19 (2) the legislative history of

the particular anti-SLAPP statute demonstrated compellingly that the legislature in fact intended to create

immunity from suit, which the history of § 52-196a does

not demonstrate;20 or, most often, (3) the particular

court’s statutory construction analysis was not governed by principles consistent with § 1-2z or our case

law regarding statutory immunity from suit.21

More consistent with the analysis the legislature has

directed Connecticut courts to undertake under § 1-

2z are cases from other courts that have reached the

opposite conclusion from that of the majority based

solely on scrutiny of the particular state statute at issue

under established state law principles more consistent

with § 1-2z. For example, as explained, courts have

interpreted Oregon’s original version of its anti-SLAPP

statute, which has language similar to our statute, as

not creating either a right to an immediate appeal or

immunity from suit and, thus, holding that the denial

of a motion under its statute was not appealable. See

Englert v. MacDonell, supra, 551 F.3d 1105–1107 (interpreting what is now Or. Rev. Stat. §§ 31.150 and 31.152

and holding that defendants could not immediately

appeal from trial court’s order denying special motion to

strike under collateral order doctrine). Similarly, courts

have held that denials of motions filed under Nevada’s

original version of its anti-SLAPP statute, which, like

Oregon’s original version, did not include an explicit

right to appeal or immunity from suit, were not immediately appealable because ‘‘the values underlying th[is]

particular anti-SLAPP statute can be satisfied through

the normal appellate process.’’22 Metabolic Research,
Inc. v. Ferrell, 693 F.3d 795, 800 (9th Cir. 2012); see id.,

801–802 (citing Nevada case law in determining that

denial of special motion to dismiss under Nevada’s antiSLAPP statute was not immediately appealable under

collateral order doctrine because statute did not

expressly provide for immediate right to appeal or

establish immunity from suit).

Thus, it is only fair to say about the case law from

other jurisdictions that courts in those states review the

particular language of their anti-SLAPP suit legislation

under their own rules of construction. This court must

do the same.

V

The majority responds to the plaintiffs’ floodgates

argument (i.e., that permitting interlocutory appeals

from denials of special motions to dismiss will result

in ‘‘endless appeals’’) by saying that the influx of appeals

will not likely be significant. The majority is probably

right. That is not my floodgates concern though. Rather,

my concern stems from what I view as an unwarranted

weakening of our final judgment jurisprudence.

Only very recently, and with some justification, members of this court have lamented the ‘‘murky state of our

final judgment jurisprudence’’ under Curcio’s second

prong and the expansion of the supposedly ‘‘ ‘narrow’ ’’

exception to our final judgment rule under that prong.

U.S. Bank National Assn. v. Crawford, 333 Conn. 731,

760, 219 A.3d 744 (2019) (McDonald, J., dissenting).

With today’s decision, I fear the murkiness has become

more pronounced and the narrow exception widened

further. These are the floodgates that concern me.

This uncertainty, I believe, is avoidable if we follow

the traditional approach of construing strictly the right

to appeal derived from statute. In employing § 1-2z principles and following our statutory construction jurisprudence in this context, we should look for and locate

explicit language in statutes before concluding that a

statute confers a right to appeal. We also should look

for ‘‘distinctive and unmistakable’’ statutory language

before concluding that a statute confers a right (any

right, however characterized) that, under Curcio’s second prong, can be vindicated only by resort to an interlocutory appeal. Trinity Christian School v. Commission on Human Rights & Opportunities, supra, 329

Conn. 696. When it comes to appeal rights derived from

Connecticut statutes, the legislature and this court have

a well-developed language by which we speak to one

another clearly. In the present case, the majority concedes that there is no explicit language establishing the

right to appeal. Nor does the majority rely on any specific statutory language as providing immunity from

suit. In my view, absent any mention whatsoever in the

legislative history of an appeal from a denial of a special

motion to dismiss or immunity from suit, the majority is
left to postulate that the legislature intended to protect

defendants from alleged SLAPP suits so much that, even

after a considered decision by a gatekeeping trial judge,

the legislature must have intended this protection to

extend to what is supposed to be a rare interlocutory

appeal process. My floodgates concern is that, with

respect to future second prong Curcio claims based on

a statutory right, this court has now indicated that it

will consider legislative history—specifically, whether

there is any evidence regarding how strongly proponents of particular legislation felt about the rights they

were conferring—to determine whether a party has the

right to an immediate appeal. I would instead look for

something much more explicit, and for the most obvious of reasons: because that is what I believe the legislature has directed us to do when scrutinizing statutes,

and particularly statutes relied on as giving rise to the

right to an interlocutory appeal.

The majority seeks to cabin its holding today by

insisting that the ‘‘colorable claim’’ standard will limit

appeals from denials of special motions to dismiss

under § 52-196a. In the first instance, of course, after

today’s decision, any denial of a motion to dismiss is

appealable, not just erroneous ones. A plaintiff will have

to challenge the appeal as not raising a colorable claim

of error for an appellate court even to consider dismissing the appeal. It is worthwhile examining what will

be reviewed in these interlocutory appeals and how

challenges to their colorability will necessarily be handled under the majority’s announced standard.

Recall that many (or perhaps most) rulings denying

special motions to dismiss will be made on the basis

of probable cause determinations about the strength of

the plaintiff’s ‘‘initial showing,’’ considering the defendant’s valid defenses. General Statutes § 52-196a (e) (3).

Those rulings are made based on a factual record the

statute requires to be assembled quickly and at the most

preliminary stage of the proceedings. General Statutes

§ 52-196a (g) (‘‘[t]he findings or determinations made

pursuant to subsections (e) and (f) of this section shall

not be admitted into evidence at any later stage of

the proceeding’’). Therefore, many appeals from denied

motions—like the present case—will be heard based

on the record the parties could muster to that point.23

Because they are preliminary rulings based on probable

cause, other than in the clearest of cases—factually and

legally—these rulings will likely be reviewed only for

clear error. See, e.g., TES Franchising, LLC v. Feldman, supra, 286 Conn. 137 (‘‘[i]n its determination of

probable cause, the trial court is vested with broad

discretion which is not to be overruled in the absence

of clear error’’ (internal quotation marks omitted)); id.,

138 n.6 (‘‘we conclude that the clear error standard in

this context is a heightened standard of deference that

exceeds the level of deference afforded under the abuse

of discretion standard’’); Augeri v. C. F. Wooding Co.,
173 Conn. 426, 429, 378 A.2d 538 (1977) (‘‘[A]t the hearing on an application for a prejudgment remedy . . .

[t]he hearing . . . is not intended to be a full-scale trial

on the merits. . . . In reaching its determination of

probable success on the merits [the court] is essentially

weighing probabilities, and in this it must have a broad

discretion.’’). Nonetheless, defendants are advised by

today’s ruling that they have a right to avoid trial that

they can vindicate only by appealing. A plaintiff might

challenge a defendant’s appeal as ‘‘not colorable.’’ But,

as the majority today admits, a ‘‘colorable claim is one

that is superficially well founded but that may ultimately

be deemed invalid . . . .’’ (Internal quotation marks

omitted.) ‘‘[T]he defendant need not convince the trial

court that he necessarily will prevail; he must demonstrate simply that he might prevail.’’ (Emphasis in original; internal quotation marks omitted.) This is quite a

low bar. The Appellate Court, the workhorse court of

our appellate system, will therefore be charged in most

cases with determining whether there is superficially

a well-founded basis on which the defendant might

prevail in his appeal.24 If the defendant overcomes this

minor obstacle, the Appellate Court will move on to

review the trial court’s denial of the defendant’s motion

based on the standards of an ‘‘initial showing’’ and

‘‘probable cause . . . .’’ General Statutes § 52-196a (e)

(3). Because these determinations are so fact specific

and, in many instances, perhaps discretionary, it is

remarkably optimistic to predict that the ‘‘line between

colorable and noncolorable claims’’ will ‘‘become more

discernable’’ as ‘‘our jurisprudence develops.’’

I know it is not lost on the majority that permitting

these interlocutory appeals comes at a cost, and not

only to the appellate system. If the legislature intended

for these rulings to be appealed, it is within its control

to authorize an immediate appeal. But in this context,

plaintiffs’ cases are interrupted by the special motion to

dismiss procedure and ultimately delayed by an appeal

from the denial in the first instance. A potentially

yearslong process follows if the appeal overcomes the

colorable claim standard. Plaintiffs have little recourse

for their cases being stalled.25

Time will tell whether most appeals will survive,

although today’s evidence is that most will: the court

today dismisses none of the three appeals before us.

See Pryor v. Brignole, 346 Conn. , A.3d

(2023) (D’Auria, J., dissenting). Time will tell also

whether permitting interlocutory appeals will yield

many reversals, that is, clear error in a trial court’s

gatekeeping, probable cause determination.

Implicit in the majority opinion is that all of this is

worth it—and more important, it believes, the legislature considers it worth it—if even one defendant had

a meritorious special motion to dismiss that should

have been granted and he should not have been exposed
to trial. No statutory scheme is error free, of course.

But ‘‘[w]e do not presume error . . . .’’ (Internal quotation marks omitted.) State v. Milner, 325 Conn. 1, 13,

155 A.3d 730 (2017). I am not suggesting that the majority does presume error. I am suggesting that, without

further explicit instruction from the legislature, I am

unwilling to conclude that the legislature intended for

us to expend appellate resources in a search for error

in the preliminary, discretionary gatekeeping determinations of trial judges.

Accordingly, because I do not interpret § 52-196a as

granting a right to an immediate appeal or to immunity

from suit, the denial of the defendants’ special motion

to dismiss pursuant to § 52-196a was not immediately

appealable. Therefore, the Appellate Court should dismiss the defendants’ appeal.

Accordingly, I respectfully dissent.

1 SLAPP stands for ‘‘strategic lawsuit against public participation . . . .’’

(Internal quotation marks omitted.) Lafferty v. Jones, 336 Conn. 332, 337

n.4, 246 A.3d 429 (2020), cert. denied, U.S. , 141 S. Ct. 2467, 209 L.

Ed. 2d 529 (2021).

2 A paradigmatic example of a SLAPP case is a ‘‘[lawsuit] directed at

individual citizens of modest means for speaking publicly against [wealthy]

development projects.’’ (Internal quotation marks omitted.) Demoulas Super

Markets, Inc. v. Ryan, 70 Mass. App. 259, 262, 873 N.E.2d 1168 (2007); see

also, e.g., Sipple v. Foundation for National Progress, 71 Cal. App. 4th 226,

238, 83 Cal. Rptr. 2d 677 (1999), review denied, California Supreme Court,

Docket No. S078979 (July 28, 1999).

3 The constitution of Connecticut, article first, § 10, known as the ‘‘open

courts provision’’ of the state constitution, provides in relevant part: ‘‘All

courts shall be open, and every person, for an injury done to him in his person,

property or reputation, shall have remedy by due course of law . . . .’’

4

It is not clear whether the parties undertook any discovery, but no order

of the court permitting discovery appears in the record.

5 Section 52-196a (e) (1) requires the court to hold a hearing no later than

sixty days after the date of the filing of the special motion to dismiss, unless,

among other things, the court, ‘‘for good cause shown, is unable to schedule

the hearing during the sixty-day period.’’

July 19, 2021, would have been the sixtieth day after the defendants filed

their special motion. At a time when the courts were still hampered by

COVID-19 restrictions and hearing most matters remotely, the trial court in

this matter recognized that the legislature directed that the court make these

motions a priority and heard the parties with admirable dispatch on the

sixty-second day after the defendants filed their motion. As contemplated

by § 52-196a (e) (2), both parties attached affidavits to their submissions.

It does not appear that the trial court took any evidence, but the defendants

asked the court to take judicial notice of the Trinity College student handbook.

6 Section 52-196a (a) (2) defines ‘‘ ‘[r]ight of free speech’ ’’ as ‘‘communicating, or conduct furthering communication, in a public forum on a matter

of public concern . . . .’’ (Emphasis added.)

7

In the companion cases also released today—Pryor v. Brignole, 346

Conn. , A.3d (2023), and Robinson v. V. D., 346 Conn. ,

A.3d (2023)—the trial court in those cases also took up and ruled on

the motions promptly: in Pryor, within about ten and one-half months from

the filing of the complaint, and, in Robinson, within four and one-half months

from the filing of the complaint.

8 See General Statutes § 9-325 (providing for review of questions of law

by Supreme Court in election cases); General Statutes § 31-118 (aggrieved

party ‘‘may appeal’’ from grant or denial of temporary injunction in cases

involving labor disputes); General Statutes § 42-110h (order granting or

denying class certification in action under Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., ‘‘shall be immediately appealable

by either party’’); General Statutes § 51-164x (a) (review by Appellate Court

of orders closing courtroom); General Statutes § 52-235 (a) (allowing for
reservation of questions of law to Supreme Court or Appellate Court); General Statutes § 52-265a (a) (aggrieved party ‘‘may appeal’’ to Supreme Court

from order or decision that involves matter of substantial public interest);

General Statutes § 52-278l (a) (order granting or denying prejudgment remedy ‘‘shall be deemed a final judgment for purposes of appeal’’); General

Statutes § 52-405 (‘‘[w]hen, in any action demanding an accounting, a judgment is rendered ordering such accounting, appeal may be had from such

judgment to the Appellate Court, as if it were a final judgment’’); General

Statutes § 54-56e (f) (‘‘[a]n order of the court denying a motion to dismiss

the charges against a defendant who has completed such defendant’s period

of probation or supervision or terminating the participation of a defendant

in such program shall be a final judgment for purposes of appeal’’).

9 General Statutes § 52-278l (a) provides: ‘‘An order (1) granting or denying

a prejudgment remedy following a hearing under section 52-278d or (2)

granting or denying a motion to dissolve or modify a prejudgment remedy

under section 52-278e or (3) granting or denying a motion to preserve an

existing prejudgment remedy under section 52-278g shall be deemed a final

judgment for purposes of appeal.’’

10 Although we are not obliged to defer even to a formal opinion of the

attorney general; see, e.g., Crandle v. Connecticut State Employees Retirement Commission, 342 Conn. 67, 82, 269 A.3d 72 (2022) (‘‘‘[a]lthough an

opinion of the attorney general is not binding on a court, it is entitled to

careful consideration and is generally regarded as highly persuasive’ ’’); this

obvious difference between § 52-278l and § 52-196a likely explains why now

Attorney General Tong argues, as an amicus in Pryor v. Brignole, 346 Conn.

, A.3d (2023), one of two companion cases also released today;

see footnote 7 of this opinion; that § 52-196a does not create an independent

interlocutory right to appeal or any right that satisfies the second prong of

Curcio. See Pryor v. Brignole, Conn. Supreme Court Briefs & Appendices,

October Term, 2022, Brief of Amicus Curiae State of Connecticut, pp. 4–7.

11 I do not rule out the possibility that, in rare circumstances involving a

first amendment claim, the denial of a special motion to dismiss under § 52-

196a may be immediately appealable pursuant to Curcio. See Dayner v.

Archdiocese of Hartford, 301 Conn. 759, 769–72, 23 A.3d 1192 (2011) (pretrial

denial of ministerial exception defense under first amendment was immediately appealable, not because of any right granted under any statute but

because defense itself provided right to immunity from suit), overruled in

part by Hosanna-Tabor Evangelical Lutheran Church & School v. Equal

Employment Opportunity Commission, 565 U.S. 171, 132 S. Ct. 694, 181

L. Ed. 2d 650 (2012). I simply am not convinced that the legislature intended

for all denials of special motions to dismiss under § 52-196a to be immediately

appealable.

12 Common-law rights that already are secured and would be lost without

the right to an immediate appeal may also come within Curcio’s second

prong. See, e.g., Chadha v. Charlotte Hungerford Hospital, 272 Conn. 776,

785–87, 865 A.2d 1163 (2005) (explaining why purpose of absolute immunity

under common law, protecting against threat of suit, compels conclusion

that denial of motion for summary judgment on ground of such immunity

gives rise to immediately appealable final judgment due to irreparable harm).

No common-law right is at issue in the present case.

13 Convalescent Center of Bloomfield, Inc. v. Dept. of Income Maintenance,

supra, 208 Conn. 196–202, involved the common-law defenses of collateral

estoppel and res judicata. The majority’s analogy to this court’s case law

holding that the pretrial denial of those common-law defenses, as well as

immunity for statements made in judicial and quasi-judicial proceedings,

are immediately appealable is, in my view, not fitting. See Blakely v. Danbury

Hospital, 323 Conn. 741, 746–47, 150 A.3d 1109 (2016); Convalescent Center

of Bloomfield, Inc. v. Dept. of Income Maintenance, supra, 194–95. The

pretrial denials of these common-law defenses were based on common-law

rights, which required this court to determine whether these rights were

akin to immunity from suit by providing a right to avoid litigation, whereas

the present case involves a statutory defense, which we must examine under

the dictates of § 1-2z. See, e.g., Sena v. American Medical Response of

Connecticut, Inc., 333 Conn. 30, 40, 45, 213 A.3d 1110 (2019). Additionally,

it is unclear if this court’s holdings in those cases involving res judicata

and/or collateral estoppel were correct in light of analogous federal case

law. See Strazza Building & Construction, Inc. v. Harris, 346 Conn. 205,

210–11 n.2, 288 A.3d 1017 (2023).

14 Of course, I recognize that the second prong of Curcio may be satisfied

in a case that involves a right other than immunity from suit. See, e.g., In
re Teagan K.-O., supra, 335 Conn. 755–59 (allowing immediate appeal from

interlocutory order in family matters due to importance of right of family

to remain together without interference of state). But neither the defendants

nor the majority asserts any other kind of right, and thus my analysis will

be limited to immunity from suit, which, in my view, is synonymous with

the nature of the right the majority describes.

15 More specifically, we have explained that, if a statute confers only

immunity from liability, ‘‘a right whose remedy requires [only] the dismissal

of charges,’’ pretrial rulings denying a motion based on that more limited

immunity are not immediately appealable under the second prong of Curcio

because an immunity from liability defense can be vindicated after trial.

(Internal quotation marks omitted.) Hartford Accident & Indemnity Co. v.

Ace American Reinsurance Co., supra, 279 Conn. 232. Denials of a claimed

right of immunity from suit, i.e., the right not to be tried and to be free of

having to litigate, on the other hand, are immediately appealable because

such a right cannot be vindicated after trial. See id.; Shay v. Rossi, supra,

253 Conn. 163–64.

16 I recognize that, after the Ninth Circuit decided Englert, Oregon’s legislature amended its anti-SLAPP statute to expressly permit an interlocutory

appeal. See 2009 Or. Laws c. 449, §§ 1 and 3. That is a legislative prerogative,

consistent with what I believe Connecticut’s legislature expects of our courts

under § 1-2z—to interpret the plain language of legislation consistently,

without conjecture. The fact that other state legislatures have amended their

anti-SLAPP statutes after a court had ruled that the statutory language did

not allow for an immediate appeal should not alter our § 1-2z analysis

but, rather, shows that the legislature is responsible for clearly stating its

intention to authorize an appeal.

17 Although the majority is concerned about ‘‘the protections afforded by

the anti-SLAPP statute [that] would be irrevocably lost by virtue of having

to litigate a putative SLAPP suit to conclusion following a trial court’s

erroneous denial of a special motion to dismiss,’’ the majority’s holding

allows an interlocutory appeal from all denials of special motions to dismiss,

not just erroneous denials. An appellate court can never know if the trial

court committed error until it has heard the appeal. Indeed, because, in my

view, the majority’s ‘‘colorable claim’’ standard ensures that virtually every

defendant’s interlocutory appeal will survive a motion to dismiss; see part

V of this opinion; it is inevitable that many appeals the majority’s opinion

sanctions will go to judgment and that it will be determined on appeal that

the trial court did not commit error.

18 I agree with the majority that the lack of explicit statutory language

providing a right to appeal is not relevant to this court’s analysis under the

second prong of Curcio. I nevertheless rely on the fact that other state

legislatures have explicitly included a right to appeal in their anti-SLAPP

statutes to emphasize the irrelevance of the case law from these jurisdictions,

on which the majority relies.

19 NCDR, LLC v. Mauze & Bagby, PLLC, 745 F.3d 742, 750–52 (5th Cir.

2014), decided under the federal collateral order doctrine, involved Texas’

anti-SLAPP statute, which contains language much more explicit and definite

than § 52-196a: ‘‘An appellate court shall expedite an appeal or other writ,

whether interlocutory or not, from a trial court order on a motion to dismiss

a legal action . . . or from a trial court’s failure to rule on that motion in

the time prescribed . . . .’’ Tex. Civ. Prac. & Rem. Code Ann. § 27.008 (b)

(West 2020).

20 See Gundel v. AV Homes, Inc., 264 So. 3d 304, 310 (Fla. App. 2019)

(legislative history showed that statute created right not to be subject to

litigation).

21 See Morse Bros., Inc. v. Webster, 772 A.2d 842, 848–49 (Me. 2001);

Duracraft Corp. v. Holmes Products Corp., 427 Mass. 156, 159–67, 691 N.E.2d

935 (1998); see also Franchini v. Investor’s Business Daily, Inc., 981 F.3d

1, 7 and n.6 (1st Cir. 2020) (applying Maine case law); Los Lobos Renewable

Power, LLC v. AmeriCulture, Inc., 885 F.3d 659, 666–67 (10th Cir.), cert.

denied, U.S. , 139 S. Ct. 591, 202 L. Ed. 2d 427 (2018); Henry v. Lake

Charles American Press, LLC, 566 F.3d 164, 178, 180–81 (5th Cir. 2009).

22 In 2013, Nevada amended its anti-SLAPP statute to provide for an immediate right to appeal. See 2013 Nev. Stat. c. 176, § 4; see also Wynn v. Bloom,

852 Fed. Appx. 262, 262 n.1 (9th Cir. 2021).

23 See, e.g., Burton v. Mason, Docket No. CV-21-5028294-S, 2021 WL

6101177, *5 (Conn. Super. December 10, 2021) (‘‘[b]ased on this record, the

court cannot conclude that it is more likely than not that this matter was

brought ‘based on’ the defendants’ exercise of their rights to free speech,
association or to petition the government’’); Robinson v. DeGray, Docket

No. CV-20-6049156-S, 2021 WL 1914162, *5 (Conn. Super. April 14, 2021)

(based on record at time of hearing on special motion to dismiss, defendant

failed to establish that statements made during work-related grievance proceedings involved matters of public concern); Littlefield v. Aurora, Docket

No. CV-20-6045400-S, 2020 WL 5624108, *3 (Conn. Super. August 31, 2020)

(based on record before trial court, defendants failed to show plaintiffs’

complaint was based on defendants’ exercise of first amendment rights).

24 Most of these motions will be decided by the Appellate Court after the

parties each file a ten page memorandum of law. Most rulings—granting or

denying motions to dismiss—are issued without written opinions.

25 Plaintiffs can seek attorney’s fees under § 52-196a (f) (2). But that subsection provides that fees are to be awarded only if the court ‘‘finds that

such special motion to dismiss is frivolous and solely intended to cause

unnecessary delay . . . .’’ General Statutes § 52-196a (f) (2). By its terms,

the statute appears to permit fees only for frivolous motions. Even if, presumably, this subsection would extend to frivolous appeals of motions that have

been correctly denied, this is not a prevailing party standard. The standard

for frivolousness does not guarantee a plaintiff compensation for fees and

certainly not for the costs of delay. Cf. General Statutes § 52-196a (f) (1)

(awarding ‘‘the moving party costs and reasonable attorney’s fees’’ if trial

court grants special motion to dismiss, without caveat).