Priore v. Haig

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          THOMAS PRIORE v. STEPHANIE HAIG
                     (SC 20511)
             Robinson, C. J., and McDonald, D’Auria, Mullins,
                       Kahn, Ecker and Keller, Js.

                                   Syllabus

Pursuant to the common law of this state, communications made in the
   course of and in furtherance of administrative proceedings that are
   quasi-judicial in nature are absolutely privileged.
Pursuant further to Kelley v. Bonney (

), in determining whether
   an administrative proceeding is quasi-judicial in nature, a court may
   consider whether the body or entity conducting the proceeding has the
   discretion to apply the law to the facts and the authority (1) to exercise
   judgment and discretion, (2) to hear and determine or to ascertain facts
   and decide, (3) to make binding orders and judgments, (4) to affect the
   personal or property rights of private persons, (5) to examine witnesses
   and to hear the litigation of the issues, and (6) to enforce decisions or
   to impose penalties.
The plaintiff sought to recover damages for, inter alia, defamation in connection with statements that the defendant had made about the plaintiff at
   a public hearing before a town planning and zoning commission in
   connection with the plaintiff’s application for a special permit to construct a new house and to install a new sewer line on his property.
   At the hearing, the defendant expressed her concerns regarding the
   plaintiff’s application, stating, inter alia, that the plaintiff had not been
   trustworthy in prior dealings involving his application, that he had ‘‘a
   serious criminal past,’’ and that he had paid more than $40 million in
   fines to the federal agency charged with enforcing federal securities
   laws. The defendant filed a motion to dismiss the plaintiff’s action for
   lack of subject matter jurisdiction, claiming that her statements were
   entitled to absolute immunity. The trial court granted the defendant’s
   motion, concluding that her statements were entitled to absolute immunity because the proceeding before the commission was quasi-judicial in
   nature and the defendant’s statements were pertinent to the proceeding.
   Accordingly, the trial court rendered judgment dismissing the action,
   from which the plaintiff appealed to the Appellate Court. The Appellate
   Court affirmed the trial court’s judgment, reasoning that the first five
   factors set forth in Kelley, as well as certain public policy interests,
   weighed in favor of a determination that the proceeding was quasi-judicial. On the granting of certification, the plaintiff appealed to this
   court. Held that the Appellate Court incorrectly determined that the
   public hearing before the commission was a quasi-judicial proceeding,
   the defendant’s statements therefore were not entitled to absolute immunity, and, accordingly, this court reversed the Appellate Court’s judgment
   and remanded the case for further proceedings: courts charged with
   determining whether a proceeding is quasi-judicial in nature may consider, in addition to the six factors set forth in Kelley, any other factors
   that are relevant to the particular proceeding, including the procedural
   safeguards in place to ensure the reliability of the information presented
   at the proceeding and the authority of the body or entity to regulate
   the proceeding, and those courts must carefully scrutinize whether there
   is a sound public policy justification for affording absolute immunity in
   any given context; in the present case, the commission had discretion,
   pursuant to well settled principles of administrative law and the applicable municipal code, to apply the law to the facts set forth in the plaintiff’s
   special permit application, the relevant statutes and regulations authorized the commission to approve, deny or table decision on the application, thus empowering the commission to make binding orders, and the
   commission’s action on a special permit application generally would
   affect the property rights of the applicant or surrounding property owners, such that the first four factors set forth in Kelley weighed in favor
   of a determination that the proceeding at issue was quasi-judicial in
   nature; nevertheless, this court concluded that the hearing on the plaintiff’s special permit application was not quasi-judicial in nature because
   it lacked procedural safeguards that would have served to ensure the
   reliability of the information presented, as there was no requirement that
   a declarant appearing before the commission make his or her statements
   under oath or otherwise certify that the information conveyed is accurate, there was no practical opportunity to meaningfully challenge the
   veracity of a declarant’s statement, and there was no remedy available
   to the commission during a hearing if a witness were to convey knowingly false information, such as a charge of perjury; moreover, a local
   commission generally has limited authority to reject evidence, hold
   speakers accountable for statements made during the hearing, or otherwise limit what information is presented to ensure the reliability of
   the proceeding, and public policy considerations militated against a
   conclusion that the proceeding at issue was quasi-judicial in nature
   because the public benefit to be derived from affording absolute immunity to statements made during a commission hearing was not sufficiently compelling in view of the possible damage that untruthful
   statements may cause to individual reputations, the lack of procedural
   safeguards in place to ensure reliability, and the protection afforded by
   the statute (§ 52-196a (b)) permitting a court to dismiss a complaint
   based on an opposing party’s exercise of his or her constitutional right
   to free speech in connection with a matter of public concern; furthermore, this court’s conclusion that the defendant’s statements before the
   commission were not entitled to absolute immunity was consistent with
   the decisions of sister state courts that have determined that proceedings
   before a planning and zoning commission are not quasi-judicial in nature.
           (Three justices concurring in part in one opinion)
       Argued January 10—officially released September 7, 2022*

                           Procedural History

  Action to recover damages for defamation, and for
other relief, brought to the Superior Court in the judicial
district of Stamford-Norwalk, where the court, Povodator, J., granted the defendant’s motion to dismiss and
rendered judgment dismissing the action, from which
the plaintiff appealed to the Appellate Court, Alvord,
Prescott and Pellegrino, Js., which affirmed the trial
court’s judgment, and the plaintiff, on the granting of
certification, appealed to this court. Reversed; further
proceedings.
  Eric D. Grayson, for the appellant (plaintiff).
 Richard W. Bowerman, with whom, on the brief, was
Michael G. Caldwell, for the appellee (defendant).
                           Opinion

   McDONALD, J. This certified appeal requires us to
determine whether a public hearing on a special permit
application before a town’s planning and zoning commission is a quasi-judicial proceeding such that public
statements made during the hearing are entitled to absolute immunity. The plaintiff, Thomas Priore, brought
this defamation action against the defendant, Stephanie
Haig, seeking to recover damages for injuries that he
claims to have sustained as a result of the defendant’s
allegedly defamatory statements about the plaintiff
made during a hearing before the Greenwich Planning
and Zoning Commission. The plaintiff appeals from the
judgment of the Appellate Court, which affirmed the
trial court’s judgment, concluding that the defendant’s
statements were entitled to absolute immunity. Priore
v. Haig, 

, 695, 712, 

(2020). On appeal, the plaintiff contends that the Appellate Court incorrectly concluded that the defendant’s
statements were entitled to absolute immunity because
the hearing before the commission was not quasi-judicial and the statements concerning the plaintiff were
not relevant to the subject matter of the commission’s
hearing. We agree with the plaintiff that the public hearing was not quasi-judicial in nature and, accordingly,
reverse the judgment of the Appellate Court.
   The record and the Appellate Court’s opinion set forth
the facts and procedural history; see 

 677–83; which
we summarize in relevant part. In ‘‘2015, the plaintiff,
through a limited liability company, purchased a property located at 15 Deer Park Meadow Road in Greenwich . . . . The property is part of a private
subdivision known as the Deer Park Association
. . . .’’ 

. After purchasing the property, the plaintiff intended to demolish the existing house and build
a new house. In addition to constructing the new house,
the plaintiff agreed to replace an inaccessible sewer
line that ran through the middle of his property and
serviced a number of up-line users. Through an easement that the plaintiff agreed to grant, the new sewer
line would be available to other members of the association for access and repairs.
   As part of the process for obtaining the commission’s
approval to construct the new house and to place the
new sewer line on his property, the plaintiff was
required to submit an application for a special permit.
The plaintiff submitted the application and a final site
plan, and, in January, 2016, the commission held a public hearing on the plaintiff’s application. The hearing
was to be the final hearing concerning the approval
of the plaintiff’s application. The primary issue to be
addressed at the hearing was the location of the new
sewer line. The record is silent as to whether the plaintiff attended the hearing.
   The plaintiff’s engineer, Anthony D’Andrea, attended
the hearing and was the first person to address the
commission concerning the plaintiff’s application. He
discussed various aspects of the plan to install the sewer
line, including the way in which the installation of the
sewer line might affect certain trees still existing on
the property. ‘‘D’Andrea stated that trees had been
‘removed during the demolition of the house’ and that
. . . a planting plan would be submitted ‘that [would]
include at least twenty [new] trees.’ ’’ 

. D’Andrea
also stated that the placement of the sewer line would
protect the trees in the area, and the goal was to maximize the number of trees that could be preserved.
   Thereafter, members of the public were invited to
address the commission. The president of the Deer Park
Association spoke first and informed the commission,
among other things, that ‘‘subsequent speakers . . .
would address the commission about trees that were
important to members of the association. According to
the president, the trees were important because they
‘provide[d] privacy [and were] part of the character’ of
the neighborhood.’’ 

 Michael Finkbeiner, a surveyor
and consulting professional forester retained by a member of the Deer Park Association, next addressed the
commission. He stated that certain trees had already
been cut down on the plaintiff’s property and, ‘‘as a
result of the plaintiff’s representations [in his filings],
the commission may have ‘been deceived into thinking
[that the trees shown in a topographic survey are] existing trees, but they are no more.’ ’’ 

.
    Later in the hearing, the defendant, the plaintiff’s
neighbor to the west, addressed the commission. She
explained that she was worried that the plaintiff’s proposed ‘‘sewer line would impact the health of the trees
that she claimed to ‘co-own’ with the plaintiff. She also
stated that the plaintiff had been ‘very disrespectful of
the neighbors’ ’’ throughout the process. 

 Important
to the present appeal, the defendant went on to state
that the plaintiff ‘‘does have a criminal past. I will not
go into the exact details of it, but it’s a serious criminal
past. He’s paid [more than] $40 million in fines to the
[Securities and Exchange Commission].’’ In response,
a planning and zoning commission member stated,
‘‘[t]hat’s not of relevance to the [commission].’’ The
defendant then concluded her remarks by expressing
her desire for the commission to provide ‘‘real good
oversight’’ of the project ‘‘because [the plaintiff] has
not been trustworthy in the first dealings with us, and
there are many more dealings to go.’’
   D’Andrea again addressed the commission and acknowledged that a drawing of the property submitted by
the plaintiff failed to indicate that certain trees had
already been cut down. He also claimed, however, that
the trees that the plaintiff had removed were present
on the property at the time the application was submit-
ted. In response, a member of the commission noted
that the drawing the plaintiff had submitted was incomplete because it did not accurately depict the trees.
The chairperson of the commission asked D’Andrea to
reconcile the drawing in light of the information that
Finkbeiner had submitted. D’Andrea agreed to do so.
   The commission adjourned the hearing and ‘‘tabl[ed]
the decision on whether to approve the application until
the plaintiff or his representatives provided it with the
clarifications and information that it had requested.’’
Priore v. Haig, supra, 

. Thereafter,
‘‘the commission ultimately approved the plaintiff’s
[special permit] application ‘with very little change or
requirements from the town . . . .’ ’’ Id.
   The plaintiff commenced this action in October, 2016.
In his second revised complaint, sounding in libel per
se, libel per quod, slander per se, slander per quod, and
defamation, the plaintiff alleged that he had suffered
‘‘reputational damage . . . in his standing in the community and in his profession’’ because, during the January, 2016 public hearing, the defendant falsely accused
him of prior criminal misconduct and of being untrustworthy. The defendant filed an answer and special defenses, denying the allegations and asserting, among
other things, that she was immune from suit for defamation because she made those statements in the course
of a quasi-judicial proceeding. The plaintiff moved to
strike that defense.
   The defendant then filed an objection to the plaintiff’s
motion to strike and, in the same document, moved to
dismiss the plaintiff’s action, claiming, among other
things, that the trial court lacked subject matter jurisdiction over the plaintiff’s action because the statements
she made during the commission’s hearing were entitled
to absolute immunity. The plaintiff filed an objection
to the defendant’s motion to dismiss.
   In January, 2018, the trial court granted the defendant’s motion to dismiss. The trial court reasoned that
it did not have jurisdiction over the plaintiff’s claims
because the statements that the defendant made about
the plaintiff at the commission’s hearing were entitled
to absolute immunity. In reaching this conclusion, the
court determined that the commission’s hearing on the
special permit application constituted a quasi-judicial
proceeding. The court also determined that the defendant’s statements were pertinent to the subject matter
of the hearing because they concerned the plaintiff’s
credibility. The court reasoned that the commission had
to weigh the plaintiff’s credibility when reviewing the
representations that the plaintiff and his agents made
to the commission in order to decide whether to
approve his application. The plaintiff subsequently filed
a motion to reargue and for reconsideration, which the
trial court denied.
   Thereafter, the plaintiff appealed to the Appellate
Court, which affirmed the judgment of the trial court.
Priore v. Haig, supra, 

. The Appellate
Court agreed with the trial court’s conclusion that the
defendant’s statements were entitled to absolute immunity because the hearing before the commission was
quasi-judicial and the defendant’s statements were pertinent to the hearing. See id., 690–91, 705, 711. In reaching its conclusion that the hearing was quasi-judicial,
the Appellate Court applied the six factors enumerated
by this court in Kelley v. Bonney, 

,

 (1992); see Priore v. Haig, supra, 696–703;
and determined that the first five factors weighed in
favor of the determination that the hearing was quasi-judicial. Id., 697. The Appellate Court also concluded
that public policy interests further supported this conclusion. Id., 705. In so concluding, however, the court
also stated: ‘‘[W]e take this occasion to express our
concern that this case arguably lies near the outer
boundaries of the public policy justifications that underlie the absolute litigation immunity doctrine.’’ Id., 711.
   The plaintiff subsequently filed a petition for certification to appeal, which we granted, limited to the following issue: ‘‘Did the Appellate Court correctly conclude
that the defendant’s public statements about the plaintiff at the meeting of the [commission] were entitled to
absolute immunity, depriving the trial court of subject
matter jurisdiction over the plaintiff’s defamation action?’’
Priore v. Haig, 

, 955–56, 

(2020).
   On appeal, the plaintiff contends that the defendant’s
statements at the hearing are not entitled to absolute
immunity because the hearing before the commission
was not quasi-judicial. The plaintiff argues that, notwithstanding the Kelley factors, the ‘‘focus of whether a
hearing is truly quasi-judicial should be centered on
whether it . . . resembles a court or tribunal proceeding and has procedural safeguards [that] promote reliability and due process.’’ The plaintiff contends that there
were no procedural safeguards in place at the commission’s hearing, and, as a result, it was not quasi-judicial.
Even if the hearing was quasi-judicial, the plaintiff contends, the defendant’s statements were not entitled to
absolute immunity because the statements were not
relevant to the hearing.1 The defendant disagrees and
contends that the Appellate Court properly applied the
Kelley factors to conclude that the hearing was quasi-judicial and correctly concluded that the defendant’s
statements were pertinent to the hearing.
   Before addressing the merits of the plaintiff’s claim
on appeal, we note the standard that governs our review
in this case. ‘‘A motion to dismiss . . . properly attacks
the jurisdiction of the court, essentially asserting that
the plaintiff cannot as a matter of law and fact state a
cause of action that should be heard by the court. . . .
A motion to dismiss tests, inter alia, whether, on the
face of the record, the court is without jurisdiction.
. . . [O]ur review of the trial court’s ultimate legal conclusion and resulting [decision to] grant . . . the
motion to dismiss will be de novo.’’ (Internal quotation
marks omitted.) Styslinger v. Brewster Park, LLC, 

, 

 (2016). ‘‘In undertaking
this review, we are mindful of the well established
notion that, in determining whether a court has subject
matter jurisdiction, every presumption favoring jurisdiction should be indulged.’’ (Internal quotation marks
omitted.) Cuozzo v. Orange, 

, 614, 

 (2015). The parties do not dispute that absolute
immunity implicates the trial court’s subject matter
jurisdiction. See, e.g., Scholz v. Epstein, 

,
8–9, 

 (2021). In addition, the determination
of whether a public hearing on a special permit application before a town’s planning and zoning commission
constitutes a quasi-judicial proceeding presents a question of law, over which our review is plenary. See, e.g.,
Craig v. Stafford Construction, Inc., 

,

 (2004). ‘‘Within this limitation, however,
whether a particular proceeding is quasi-judicial in
nature, for the purposes of triggering absolute immunity, will depend on the particular facts and circumstances of each case.’’ 

 83–84.
   This court has long held that ‘‘communications uttered
or published in the course of judicial proceedings are
absolutely privileged [as] long as they are in some way
pertinent to the subject of the controversy.’’ (Internal
quotation marks omitted.) Gallo v. Barile, 

, 

 (2007); see, e.g., Charles W.
Blakeslee & Sons v. Carroll, 

, 

 (1894) (recognizing privilege), overruled in part on
other grounds by Petyan v. Ellis, 

, 

 (1986). The effect of such an absolute privilege is that damages cannot be recovered for the publication of a privileged statement, even if the statement
is defamatory. See, e.g., Craig v. Stafford Construction,

.
   ‘‘The policy underlying the privilege is that in certain
situations the public interest in having people speak
freely outweighs the risk that individuals will occasionally abuse the privilege by making false and malicious
statements. . . . The rationale underlying the privilege
is grounded [on] the proper and efficient administration
of justice. . . . Participants in a judicial process must
be able to testify or otherwise take part without being
hampered by fear of [actions seeking damages for statements made by such participants in the course of the
judicial proceeding].’’ (Citations omitted; internal quotation marks omitted.) Hopkins v. O’Connor, 

, 838–39, 

 (2007). ‘‘Put simply, absolute
immunity furthers the public policy of encouraging participation and candor in judicial . . . proceedings. This
objective would be thwarted if those persons whom
the common-law doctrine was intended to protect nevertheless faced the threat of suit.’’ Chadha v. Charlotte
Hungerford Hospital, 

, 

 (2005).
   ‘‘[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. . . . Once it is determined that a proceeding is [quasi-judicial] in nature, the
absolute privilege that is granted to statements made in
furtherance of it extends to every step of the proceeding
until final disposition.’’ (Citations omitted; internal quotation marks omitted.) Kelley v. 

 221
Conn. 565–66. We have repeatedly explained, however,
that ‘‘[t]he . . . proceeding to which [absolute] immunity attaches has not been defined very exactly. It
includes any hearing before a tribunal which performs
a judicial function, ex parte or otherwise, and whether
the hearing is public or not. It includes . . . lunacy,
bankruptcy, or naturalization proceedings, and an election contest. It extends also to the proceedings of many
administrative officers, such as boards and commissions, so far as they have powers of discretion in
applying the law to the facts which are regarded as
judicial or quasi-judicial, in character.’’ (Internal quotation marks omitted.) 

. The uncertainty as to
which proceedings are quasi-judicial in nature persists
to this day. See, e.g., Kenneson v. Eggert, 

, 782, 

 (2020).
   This court has formulated various standards for
determining whether a proceeding is quasi-judicial.
First, in Petyan v. 

, we
described the test for determining whether a proceeding
before a board or commission is quasi-judicial as an
inquiry into whether the board or commission ‘‘ha[s]
powers of discretion in applying the law to the facts
which are regarded as judicial or quasi-judicial, in character.’’ (Internal quotation marks omitted.) 

.
Applying that test, we concluded that information provided by a defendant employer on a ‘‘ ‘fact-finding supplement’ ’’ form of the employment security division of
the state Department of Labor was entitled to absolute
immunity. 

 247–48. We reasoned that, ‘‘[i]n the processing of unemployment compensation claims, the
administrator, the referee and the [E]mployment
[S]ecurity [B]oard of [R]eview decide the facts and then
apply the appropriate law. . . . The employment security division of the . . . department, therefore, acts in
a quasi-judicial capacity when it acts [on] claims for
unemployment compensation.’’ (Citations omitted; footnotes omitted.) 

 248–49.
   In Kelley v. 

, this court
next considered whether a teaching certificate revocation proceeding before the state Board of Education
was quasi-judicial in nature. See 

 566–71. After reiterating the rule from Petyan that a proceeding may be
quasi-judicial when the body or entity conducting the
proceeding has the discretion to apply the law to the
facts, this court went on to identify additional factors
that could ‘‘assist in determining whether a proceeding
is [quasi-judicial] in nature. 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.’’ 

. These ‘‘factors are not
exclusive; nor must all factors militate in favor of a
determination that a proceeding is quasi-judicial in
nature for a court to conclude that the proceeding is, in
fact, quasi-judicial.’’ (Internal quotation marks omitted.)
Carter v. Bowler, 

, 123, 

 (2022). We have made clear that these factors are
‘‘[i]n addition’’ to, not in lieu of, the application of the
law to fact requirement. Craig v. Stafford Construction,

. Indeed, the first two factors
largely mirror Petyan’s law to fact requirement. See
Petyan v. 

. This court, in
Kelley, went on to conclude that the teaching certificate
revocation proceeding was quasi-judicial. Kelley v.

. Specifically, the court pointed to
the ‘‘significant regulatory authority to conduct proceedings of a [quasi-judicial] nature. The detailed procedures, which ensure the reliability of teacher
decertification proceedings, and the compelling public
policy concern for the protection of [school-age] children persuade us that the decertification proceedings
before the state [B]oard of [E]ducation were [quasi-judicial] in nature . . . .’’ 

  The plaintiff contends that, although not specifically
enumerated in the Kelley factors, our case law also
looks to the procedural safeguards that attend to the
proceeding and the authority of the entity to regulate
the proceeding, which promote reliability and due process, as part of the analysis to determine whether a
proceeding is truly quasi-judicial in nature.2 We agree.
  For example, in Craig v. Stafford Construction, 

, this court, in concluding that an
investigation by a police department’s internal affairs
division constituted a quasi-judicial proceeding; see 

; expressly relied on out-of-state case law that considered ‘‘the procedural safeguards provided by the statutory scheme governing disciplinary proceedings [that]
were adequate to minimize the occurrence of defamatory statements.’’ (Internal quotation marks omitted.)

. This court explained that the internal affairs
investigation at issue in Craig provided procedural safeguards, namely, ‘‘[t]he witnesses give sworn statements
to the investigator during the investigation, and the
form on which they sign their statement[s] informs the
witness that he or she can be criminally liable for filing
a false statement.’’ 

. Moreover, ‘‘[a]t the formal
hearing, the [police] officer has a right to be represented
by counsel. . . . In addition, the [police] department
subpoenas witnesses to testify at the formal hearing,
and . . . it is undisputed that the witnesses complied
with the subpoena and testified before the hearing officer. Witnesses who testify at the formal hearing are
sworn and must testify under oath. The [police] officer
also has the right to cross-examine the witnesses. In
addition, at the formal hearing, a city attorney is present
in order to rule on questions of evidence. During the
hearing, the hearing officer takes notes on the testimony
and evidence presented and, thereafter, transcribes his
notes into typed form, which constitutes the record
for the purposes of the hearing. After the hearing is
concluded, the hearing officer makes findings and a
recommendation of decision regarding the appropriate
punishment.’’ 

.
   Similarly, in Kelley, this court looked to the nature
of the procedural safeguards that were incorporated in
the structure of the proceeding and noted that ‘‘a
request for revo[king] . . . [a teaching certificate had
to be] made under oath . . . . Upon receipt of such
request, the state board of education had to conduct a
preliminary inquiry to determine whether probable cause
for revocation of the certificate existed.’’ Kelley v. 

 221 Conn. 568–69. In the event the state Board
of Education held a hearing, ‘‘the holder [of the teaching
certificate] was entitled to be heard, to examine the
records of investigations, to be present throughout the
hearing, to be represented by counsel, to call and cross-examine witnesses and to present oral argument.’’

.
   In Petyan, this court also looked to the procedural
safeguards involved and found it significant that the
state employment security division possessed subpoena
power and that the defendant was required to certify
that the information he forwarded to the state was true
and correct. See Petyan v. 

. Finally, in Hopkins v. O’Connor, supra, 

, we concluded that a commitment proceeding was
judicial in nature ‘‘[b]ecause of the significant procedural protections’’ afforded by the proceeding. Id., 831;
see also id., 831 n.3 (noting that procedural protections
include respondent’s right to be present at hearing, right
to appointed counsel, right to cross-examine witnesses,
and right to appeal from adverse decision).
   We think it eminently reasonable for courts to consider the procedural safeguards attendant to a proceeding because ‘‘[s]tatements made during proceedings
that lack basic [due process] protections generally do
not engender fair or reliable outcomes.’’ Spencer v.
Klementi, 

, 333, 

 (2020). As
a result, proceedings that lack such procedural safeguards do not adequately protect a critical public policy
undergirding the doctrine of absolute immunity—to
encourage robust participation and candor in judicial
and quasi-judicial proceedings while providing some
deterrent against malicious falsehoods. In an analogous
context, we look to, among other things, the ‘‘procedural safeguards [that exist] in the system that would
adequately protect against [improper] conduct by [a
government] official’’ when determining whether the
official should be accorded absolute judicial immunity.
(Internal quotation marks omitted.) Gross v. Rell, 

, 249, 

 (2012). Accordingly, we
agree with the plaintiff that the procedural safeguards
of the proceeding and the authority of the entity to
regulate the proceeding, which promote reliability and
due process safeguards to ensure that accusatory or
unflattering allegations are subject to the requirements
of reliability, are relevant considerations that are part
of a court’s analysis of whether a particular proceeding
is quasi-judicial in nature.3 See, e.g., 50 Am. Jur. 2d
667–68, Libel and Slander § 283 (2017) (‘‘[w]hether the
statements in an administrative proceeding are within
the ambit of absolute privilege is decided on a case-bycase basis and turns on the nature of the public function
of the proceeding and the adequacy of procedural safeguards which will minimize the occurrence of defamatory statements’’ (emphasis added)). Indeed, given that
the Kelley factors do not represent an exhaustive list
of considerations, there may well be additional considerations relevant in other circumstances.
   Finally, in each case in which this court has evaluated
whether a proceeding is quasi-judicial, we have explained
that it is also ‘‘important to consider whether there is a
sound public policy reason for permitting the complete
freedom of expression that a grant of absolute immunity
provides.’’ (Internal quotation marks omitted.) Craig v.
Stafford Construction, 

; see,
e.g., Hopkins v. O’Connor, supra, 

; Kelley
v. 

. In considering the
public policy rationale, we are mindful that ‘‘[a]bsolute
immunity . . . is strong medicine . . . .’’ (Internal
quotation marks omitted.) Gallo v. 

. In most cases, the policy considerations
require balancing the public interest of encouraging
public participation and candor, on the one hand, and
the private interest of protecting individuals from false
and malicious statements, on the other. Cf. 

(‘‘whether and what form of immunity applies in any
given case is a matter of policy that requires a balancing
of interests’’ (internal quotation marks omitted)); Rioux
v. Barry, 

, 

 (2007) (same).
   In sum, a quasi-judicial proceeding is one in which
the entity conducting the proceeding has the power of
discretion in applying the law to the facts within a
framework that contains procedural protections against
defamatory statements. As part of their inquiry into
whether a proceeding is truly quasi-judicial, courts may
consider the relevant factors enumerated by this court
in Kelley to determine whether the entity exercises
powers akin to a judicial entity. See Kelley v. 

. Courts may also consider other
factors that are relevant to a given proceeding, including
the procedural safeguards of the proceeding and the
authority of the entity to regulate the proceeding. Finally,
courts must always carefully scrutinize whether there
is a sound public policy justification for the application
of absolute immunity in any particular context.
   With this in mind, we turn to the facts of this case.
It is well settled that, when acting on a special permit
application, a town’s planning and zoning commission
acts in an administrative capacity. See, e.g., A.P. & W.
Holding Corp. v. Planning & Zoning Board, 

, 184–85, 

 (1974). It is also well settled
that, when acting in this administrative capacity on a
special permit application, a planning and zoning commission has ‘‘discretion to determine whether the proposal meets the standards set forth in the regulations.
If, during the exercise of its discretion, the . . . commission decides that all of the standards enumerated
in the special permit regulations are met, then it can no
longer deny the application. The converse is, however,
equally true. Thus, the . . . commission can exercise
its discretion during the review of the proposed special
[permit], as it applies the regulations to the specific
application before it.’’ (Emphasis in original.) Irwin v.
Planning & Zoning Commission, 

,

 (1998). Indeed, in the present case, the
Greenwich Municipal Code requires the commission to
exercise its discretion in deciding whether to approve
the special permit application. See Greenwich Municipal Code § 6-17 (a) (2016) (‘‘[c]ommission shall determine that the proposed use conforms with the overall
intent of these regulations and the purposes of each
zone’’); id., § 6-17 (d) (commission ‘‘shall consider all
the standards contained in [§] 6-15 (a),’’ and it ‘‘shall
consider’’ twelve enumerated attributes of proposed
use in special permit application); id., § 6-17 (e) (‘‘[c]ommission may require applicants for special permit to
prepare and submit any additional data and studies as
necessary to allow the [c]ommission to arrive at its determinations’’). Accordingly, we conclude that the commission has the discretion to apply the law, in this
case, zoning regulations, to the facts set forth in the
application before it. This conclusion militates in favor
of a determination that the hearing was quasi-judicial.
  Turning to the Kelley factors, we note that the first
two factors are encompassed in our discussion regarding the commission’s powers of discretion to apply the
law to the facts. See Kelley v. 

 (first two Kelley factors are ‘‘whether the body has
the power to . . . (1) exercise judgment and discretion
. . . [and] (2) hear and determine or to ascertain facts
and decide’’). We agree with the Appellate Court’s conclusion that the third and fourth factors—whether the
commission was empowered to ‘‘make binding orders
and judgments’’ and whether the commission had the
power to ‘‘affect the personal or property rights of private persons’’; id.—also weigh in favor of a determination that the hearing was quasi-judicial. Priore v. Haig,
supra, 196 Conn. App. 701–702. The relevant statutes
and regulations authorize the commission to approve,
deny, or table decision on the plaintiff’s application.
Thus, the commission is empowered to make binding
orders. Moreover, we have explained that ‘‘[z]oning regulations . . . are in derogation of [common-law] property rights . . . .’’ Planning & Zoning Commission
v. Gilbert, 

, 

 (1988).
Therefore, whatever action the commission takes on a
special permit application affects the property rights
of the applicant or surrounding property owners. For
example, if the commission denies a special permit
application, it would restrict a property owner’s ability
to use his property in the manner he desires.
   Significantly, however, the hearing before the commission had almost no procedural safeguards in place
to ensure the reliability of the information presented
at the proceeding. Unlike the proceedings in Craig and
Petyan, there is no requirement that a declarant before
the commission make her statements under oath or
otherwise certify that the information is true and correct.4 See Craig v. Stafford Construction, 

; Petyan v. 

; cf.
DeLaurentis v. New Haven, 

, 

 (1991) (‘‘[although] no civil remedies can guard
against lies, the oath and the fear of being charged with
perjury are adequate to warrant an absolute privilege
for a witness’ statements’’). ‘‘The fact that statements
[made during a planning and zoning commission hearing] are not under oath occasionally results in knowingly false statements which may affect the
application.’’ R. Fuller, 9 Connecticut Practice Series:
Land Use Law and Practice (4th Ed. 2015) § 20:11, p. 611.
There is also no practical opportunity to meaningfully
challenge the veracity of a statement made by a member
of the public.5 Cf. id., § 20:3, p. 593 (public hearing
before municipal administrative agency is not required
to follow rules of evidence). Additionally, there is no
remedy available to the commission during a hearing
with respect to a witness who gives knowingly false
information, such as a charge of perjury, as there is to
a judge during a judicial proceeding. See, e.g., Stega v.
New York Downtown Hospital, 

, 671, 

, 

 (2018) (‘‘[F]or absolute
immunity to apply in a quasi-judicial context, the process must make available a mechanism for the party
alleging defamation to challenge the allegedly false and
defamatory statements. . . . [A]ny ‘character assassi-
nation’ that occurs in a judicial proceeding is at least
in principle subject to charges of perjury.’’). The lack
of procedural safeguards weighs heavily against a conclusion that the hearing was quasi-judicial. For these
reasons, we also conclude that the commission did not
have the power to ‘‘examine witnesses and [to] hear
the litigation of the issues,’’ in the traditional sense, as
contemplated by the fifth Kelley factor. Kelley v.

.
    Moreover, with respect to the authority of the entity
to regulate the proceeding, the commission does not
have discretion to reject the admission of evidence or
testimony that is submitted, it cannot strike information
from the record, and it does not have the power to
subpoena witnesses. See, e.g., 9 R. Fuller, supra, § 21:5,
p. 646 (In a proceeding before a land use agency,
‘‘[t]here is no effective mechanism for excluding evidence based [on] the considerations that apply to court
proceedings. Evidence presented will not be excluded
based on claims that it is not relevant, not the best
evidence or that it amounts to hearsay.’’). Rather, sorting through potentially false or misleading public comments is left, informally, to commission members who
may be ‘‘experienced in considering statements made
by opponents, know[ing] their bias and the nature of
their interest in the proceeding . . . .’’ Id., § 20:12, p.
616. Furthermore, administrative agencies, such as planning and zoning commissions, ‘‘may consider evidence
which would normally be incompetent in a judicial proceeding, as long as the evidence is reliable and probative.’’ Id., § 20:11, p. 612. Indeed, there are no rules of
evidence applicable during a hearing on a special permit
application. See, e.g., id., § 20:3, p. 593 (‘‘Public hearings
before a municipal administrative agency are not
required to follow the same procedures required for
trial of a civil action in court. Proceedings are informal
and conducted without following rules of evidence
applying to court proceedings.’’); see also, e.g., id.,
§ 20:11, p. 611 (‘‘[m]unicipal land use hearings in Connecticut do not follow the rules of discovery and evidence used in court proceedings’’). In short, the
commission has limited authority to ensure the reliability of information received during the hearing and has
no authority to hold speakers accountable for statements made during the hearing. This conclusion also
weighs against a determination that the hearing was
quasi-judicial.
   Turning to the public policy considerations, we acknowledge the Appellate Court’s concern that a conclusion
that the hearing was not quasi-judicial may serve as a
disincentive to citizen participation in local governments by chilling free speech. Priore v. Haig, supra,

. ‘‘The rationale for extending the
absolute [immunity] to statements made during quasi-judicial proceedings rests in the public policy that every
citizen should have the unqualified right to appeal to
governmental agencies for redress without the fear of
being called to answer in damages . . . .’’ 50 Am. Jur.
2d, supra, § 283, pp. 666–67. The importance of ensuring
public participation cannot be overstated. This public
policy consideration, however, must be considered along
with the private interest of protecting individuals from
false and malicious statements. Cf. Rioux v. 

 (‘‘the public interest of encouraging complaining witnesses to come forward must be
balanced against the private interest of protecting individuals from false and malicious claims’’). This is particularly important when, as we explained, the proceeding
has minimal procedural safeguards in place to ensure
the reliability of the information presented at the proceeding. After all, ‘‘[t]he absolute [immunity] for communications in the context of quasi-judicial proceedings
is intended to protect the integrity of the process and
[to] ensure that the quasi-judicial decision-making
body gets the information it needs.’’ (Emphasis added.)
50 Am. Jur. 2d, supra, § 283, p. 667. In other words, the
purpose of promoting citizen participation is, in large
part, to ensure that the decision-making entity obtains
accurate information to reach the correct result.
   Moreover, the concern that declining to extend absolute immunity to statements made in these proceedings
would discourage public participation is ameliorated,
in some respects, by our state’s statutory protection
against a ‘‘strategic lawsuit against public participation,’’ also known as a SLAPP lawsuit.6 See General
Statutes § 52-196a. Under this statutory scheme, a party
may file a special motion to dismiss when the opposing
party’s complaint is based on the moving party’s exercise of, among other things, the right of free speech or
the right to petition the government in connection with
a matter of public concern. See General Statutes § 52-
196a (b); see also General Statutes § 52-196a (e) (3)
(describing circumstances under which trial court must
grant party’s special motion to dismiss). Although the
statutory protection against SLAPP lawsuits does not
create a substantive right, the procedural mechanism
that § 52-196a establishes, namely, the special motion
to dismiss, provides a moving party with the opportunity to have the lawsuit dismissed early in the proceeding and stays all discovery, pending the trial court’s
resolution of the special motion to dismiss. See General
Statutes § 52-196a (d). If the court grants the special
motion to dismiss, the moving party is also entitled
to costs and reasonable attorney’s fees. See General
Statutes § 52-196a (f) (1). Thus, speakers at a public
hearing before a planning and zoning commission are
afforded a procedural vehicle to more quickly vindicate
their right to freely participate in planning and zoning
commission public hearings in the event that they are
subjected to unwarranted litigation seeking to silence
their exercise of free speech. Indeed, the legislative
history of § 52-196a indicates that the legislature con-
templated that this statutory scheme would apply in
precisely this type of situation to ensure speech was
not chilled.7 During the debate on the bill, the bill’s
sponsor, Representative William Tong, explained that
one situation in which the statute would apply is when
‘‘somebody speaks out often on a zoning issue about a
development. They’re a private citizen and they oppose
a development for example and the developer has comparatively more resources to try to shut down that opposition and they do so by filing a defamation claim. It’s
sort of [a] textbook definition of what is colloquially
known as a [libel] bully and they’ll go and . . . initiate
litigation to try to spend down the defendant and try
to use the litigation process to pressure [the defendant]
into standing down. That’s the other situation in which
we see this.’’ 60 H.R. Proc., Pt. 16, 2017 Sess., pp. 6900–
6901; see also 60 S. Proc., Pt. 6, 2017 Sess., pp. 2236–37,
remarks of Senator John A. Kissel (explaining reasons
for statute, including instances in which ‘‘certain folks,
developers, if you went to a planning and zoning meeting and spoke against the development, that developer
would slap a lawsuit on you and therefore [would be]
chilling the public debate on developments . . . . So,
what this legislation does is it creates a special mechanism to try to get these [lawsuits] taken out and dismissed as early as possible.’’); id., p. 2237, remarks of
Senator Kissel (‘‘this is a really good mechanism to help
free flow of ideas so that folks aren’t intimidated, [such
as when] . . . someone with a lot of money . . .
wants to develop property’’).
   Given the absence of procedural safeguards to ensure
the reliability of a proceeding before a planning and
zoning commission, the public benefit to be derived
from statements made by the public during a special
permit application hearing before such a commission
is not sufficiently compelling to outweigh the possible
damage that untruthful statements may cause to individual reputations to warrant granting absolute immunity
to such statements. See, e.g., Burns v. Davis, 

, 

 (App. 1999) (board of adjustment
proceeding was not quasi-judicial because ‘‘public policy dictates that [the] need to ensure complete and
truthful testimony must be balanced against extending
protection to administrative hearings in which a volunteer may defame someone under the guise of protecting
the public’’ (internal quotation marks omitted)), review
denied, Arizona Supreme Court, Docket No. CV-99-
0365-PR (February 8, 2000). Thus, in balancing the competing policy interests, we conclude that public policy
considerations militate against a conclusion that the
hearing was quasi-judicial.
  In light of the foregoing, we recognize that the commission has discretion to apply the law to the facts of
the application before it and that certain Kelley factors
weigh in favor of a determination that the hearing was
quasi-judicial. Nevertheless, the lack of procedural safe-
guards, the limited authority of the commission to reject
evidence or otherwise limit what information is brought
before it to ensure the reliability of the proceeding, and
the lack of a public policy rationale for extending the
‘‘strong medicine’’ of absolute immunity in this context
lead us to conclude that a public hearing on a special
permit application before a town’s planning and zoning
commission is not quasi-judicial.8
   Other jurisdictions have similarly concluded that proceedings before a planning and zoning commission are
not quasi-judicial. For example, under circumstances
similar to the present case, the Supreme Court of Nevada
recently concluded that the plaintiff’s neighbor was not
entitled to absolute immunity for statements made during the public comment period of a planning commission meeting. Spencer v. Klementi, supra, 

.
The court reasoned that, ‘‘[d]uring the [public comment]
period of . . . meetings [before a board and a planning
commission], the public is invited to speak about relevant community issues. Although both proceedings provided parties the opportunity to present personal
testimony during this period, neither required an oath
or affirmation. Further, although [the speakers] were
allowed to speak freely during the [public comment]
periods, neither was subject to cross-examination or
impeachment. Because these [public comment] periods
lacked the basic [due process] protections we would
expect to find in a court of law, they were not quasi-judicial in nature.’’ Id., 332. The court went on to explain
that ‘‘[e]xtending the [judicial proceedings] privilege
to such statements thus does not comport with the
privilege’s policy to promote the [truth-finding] process
in a judicial proceeding. . . . Based on our conclusion
that the [public comment] periods . . . lacked basic
[due process] protections, we conclude that public policy considerations do not weigh in favor of applying
the [judicial proceedings] privilege . . . .’’ (Citation
omitted; internal quotation marks omitted.) Id., 333.
   The New Hampshire Supreme Court has also concluded that proceedings before a zoning board are not
quasi-judicial. The court reasoned that ‘‘[z]oning boards
and commissions are created by the legislature as a
part of an administrative organization designed to effect
flexible application of zoning rules, regulations and
restrictions. They are delegated administrative power
with respect to permits, variances and nonconforming
uses in order to provide a forum to individual property
owners and others to voice the pro and con of zoning
law, its application and administration. . . . Still, many
elements of a true judicial proceeding [that] afford safeguards to the participants therein are not made a part
of the required procedure at hearings held before such
boards and commissions. . . .
  ‘‘We find meager support for [the speaker’s] contention that her remarks made before the zoning board
of adjustment were entitled to the protection of an
absolute privilege. . . . Nor do we feel that the public
or private interests sought to be effectuated by public
hearings held prior to the allowance or refusal of a
petition for a variance dictate that such total immunity
should obtain. The occasion determines the existence
and scope of the privilege, if any . . . and the availability of an absolute privilege must be reserved for those
situations [in which] the public interest is so vital and
apparent that it mandates complete freedom of expression without inquiry into a [speaker’s] motives.’’ (Citations omitted.) Supry v. Bolduc, 

, 275–76,

 (1972). We find the rationale of our sister
state courts persuasive.
   Accordingly, having concluded that a hearing on a
special permit application before a town’s planning and
zoning commission is not quasi-judicial in nature, we
also conclude that the Appellate Court incorrectly
determined that the defendant’s statements were entitled to absolute immunity. Thus, the Appellate Court
improperly affirmed the judgment of the trial court dismissing the plaintiff’s action for lack of subject matter jurisdiction.
  The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
reverse the trial court’s judgment and to remand the
case to the trial court for further proceedings according
to law.
  In this opinion MULLINS, KAHN and KELLER, Js.,
concurred.
   * September 7, 2022, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
   1
     The plaintiff also contends that the Appellate Court improperly applied
a ‘‘pertinence’’ standard when it should have applied a ‘‘relevance’’ standard.
Because we conclude that the hearing was not quasi-judicial, we need not
address this contention. See footnote 8 of this opinion.
   2
     The plaintiff also asks us to adopt the standard articulated by the Court
of Appeals of Maryland in Gersh v. Ambrose, 

, 

 (1981).
In Gersh, the court explained that the nature and scope of administrative
proceedings are ‘‘too varied to be circumscribed by specific criteria. Rather,
we have decided that whether absolute witness immunity will be extended
to any administrative proceeding will have to be decided on a case-by-case
basis and will in large part turn on two factors: (1) the nature of the public
function of the proceeding and (2) the adequacy of procedural safeguards
which will minimize the occurrence of defamatory statements.’’ 

. We
decline the plaintiff’s invitation to adopt this test to replace an analysis
based on the other considerations our case law has identified. We think the
better course is to consider procedural safeguards as part of a broader
quasi-judicial analysis, as our case law has consistently done.
   3
     Although not explicitly enumerated in Kelley, we note that a consideration of the procedural safeguards of a proceeding and the authority of the
entity to regulate the proceeding are similar to the fifth Kelley factor—
whether the entity or the body conducting the proceeding has the power
to ‘‘examine witnesses and [to] hear the litigation of the issues on a hearing
. . . .’’ Kelley v. 

.
   4
     Indeed, speakers at a planning and zoning commission public hearing
are not witnesses in the traditional sense. Our case law typically recognizes
that it is ‘‘parties to or witnesses before judicial or quasi-judicial proceedings
[who] are entitled to absolute immunity for the content of statements made
therein.’’ (Emphasis added; internal quotation marks omitted.) Preston v.
O’Rourke, 

, 

 (2002). This is logical because
examination and the threat of prosecution for perjury.’’ Bruce v. Byrne-Stevens & Associates Engineers, Inc., 

, 

(1989); see, e.g., Briscoe v. LaHue, 

, 333–34, 

, 

 (1983) (‘‘the [truth-finding] process is better served if the witness’
testimony is submitted to the crucible of the judicial process so that the
[fact finder] may consider it, after cross-examination, together with the
other evidence in the case to determine where the truth lies’’ (internal
quotation marks omitted)). There are often no such constraints on a speaker
before a planning and zoning commission to ensure the truthfulness of
her statements.
   5
     We recognize that applicants before a planning and zoning commission
may have limited opportunities to assert that a witness’ statements are false.
For example, following a comment made by a member of the public, an
applicant could assert that the speaker was not being truthful. We conclude
that this limited opportunity is not sufficient to appropriately protect either
the private interest in minimizing the occurrence of defamatory statements
or the public interest in ensuring reliable public participation.
   6
     ‘‘SLAPP is an acronym for strategic lawsuit against public participation,
the distinctive elements of [which] are (1) a civil complaint (2) filed against
a nongovernment individual (3) because of their communications to government bodies (4) that involves a substantive issue of some public concern.
. . . The purpose of a SLAPP [lawsuit] is to punish and intimidate citizens
who petition state agencies and have the ultimate effect of chilling any such
action.’’ (Internal quotation marks omitted.) Lafferty v. Jones, 

, 337 n.4, 

 (2020), cert. denied,        U.S.     , 

,

 (2021).
   7
     We note that subsection (h) (6) of § 52-196a contains a list of instances
in which the statute does not apply, including ‘‘to a common law or statutory
claim for bodily injury or wrongful death, except the exclusion provided in
this subdivision shall not apply to claims for (A) emotional distress unrelated
to bodily injury or wrongful death or conjoined with a cause of action other
than for bodily injury or wrongful death, or (B) defamation, libel or slander.’’
(Emphasis added.)
   Representative William Tong explained that ‘‘the purpose of the statute
and the way that it operates is to provide that a plaintiff can dismiss a claim—
let’s just say for defamation—because they’re exercising their constitutional
right to free speech. With that [having been] said, we wanted to make sure
that this couldn’t—that this special motion to dismiss could not otherwise
be contorted to be used to dismiss a valid claim of a plaintiff for bodily
injury, so a plaintiff shows up and files an action for wrongful death, bodily
injury based on environmental pollution for example. You wouldn’t want
the defendant who might otherwise be guilty of that claim to be able to
move to dismiss that claim for bodily injury. With that [having been] said,
what we want to make sure is that if there is a counterclaim against the
original plaintiff for defamation, [libel], or slander that that person could
still use this motion to dismiss [or] . . . the [counterclaim], which is
impairing that person’s right to speak on initial public concern like for
example environmental pollution.’’ 60 H.R. Proc., Pt. 16, 2017 Sess., pp.
6950–51.
   8
     Because we conclude that the hearing was not quasi-judicial, we need
not address the plaintiff’s contention that the defendant’s statements were
not relevant to the hearing.