AC No. 34990

IN THE CONNECTICUT APPELLATE COURT_______________

JANICE SMOLINSKI AND PAULA BELL,

Defendants-Appellants,

v.

MADELINE GLEASON,

Plaintiff-Appellee._______________

On Appeal from the Superior Court Judicial District of New HavenCase No. NNH-CV06-5005107S (Coradnio, J.)

_______________

BRIEF OF APPELLANTS/DEFENDANTS_______________

MICHELLE S. CRUZ

LAW OFFICES OF MICHELLE S. CRUZ

10 Columbus Blvd.Hartford, CT 06106Tel.: (860) 415-6529AttyMichelleSCruz@yahoo.com

March 25, 2013

STEVEN J. KELLY (PRO HAC PENDING)ANNE T. MCKENNA (PRO HAC PENDING)SILVERMAN, THOMPSON

SLUTKIN & WHITE, LLC201 North Charles Street, Suite 2600Baltimore, Maryland 21201Tel.: (410) 385-2225Fax: (410) 547-2432skelly@mdattorney.comamckenna@silvermckenna.com

Counsel for Appellants

TABLE OF CONTENTS

STATEMENT OF THE ISSUES............................................................................................ iv

TABLE OF AUTHORITIES....................................................................................................v

I. INTRODUCTION........................................................................................................1

II. STATEMENT OF THE FACTS...................................................................................1

A. THE LOVE TRIANGLE..........................................................................................2

B. THE SMOLINSKI FAMILY’S DESPERATE SEARCH FOR BILLY AND GLEASON’S BIZARRE RESPONSE TO THAT SEARCH...............................................................4

C. BILLY’S MOTHER’S ARREST FOR POSTING FLYERS..............................................6

D. GLEASON’S MANY OTHER CAUSES FOR ANGUISH AND DIMINISHED REPUTATION. .8

III. STATEMENT OF THE PROCEEDINGS...................................................................10

IV. ARGUMENT.............................................................................................................12

A. PLAINTIFF’S CLAIMS ARE BARRED BY THE FIRST AMENDMENT AND THE CONNECTICUT CONSTITUTIONAL EQUIVALENT....................................................12

B. THE TRIAL COURT EXHIBITED BIAS WHICH CONSTITUTES PLAIN ERROR............16

1. JUDICIAL CONDUCT; DUTIES OF JUDGE; STANDARD OF REVIEW..............17

2. THE TRIAL RECORD DEMONSTRATES PLAIN ERROR IN THE TRIAL JUDGE’S BIAS AND LACK OF IMPARTIALITY............................................................19

C. THE TRIAL COURT ERRED BY FINDING “INTENT” SOLELY BASED ON HEARSAY STATEMENTS MADE TO POLICE AND MEDIA.......................................................22

D. THE TRIAL COURT MISAPPLIED THE LAW AND FACTS RELATING TO THE IIED CLAIM..............................................................................................................24

1. THE RECORD IS INSUFFICIENT TO SUPPORT A FINDING ON THE THIRD AND FOURTH ELEMENTS OF IIED..................................................................25

2. THE TRIAL COURT ERRED BY IGNORING DEFENDANTS’ JUSTIFICATION FOR THEIR ALLEGED CONDUCT.....................................................................27

ii

E. THE TRIAL COURT ERRED IN FINDING DEFAMATION ON THIS RECORD................28

1. THE ALLEGED STATEMENTS TO VRABEL AND DEPALLO ARE OPINIONS THAT CANNOT CONSTITUTE DEFAMATION........................................................29

2. THE COURT ERRED BY FINDING DEFAMATION BASED ON A COMMENT TO AN UNIDENTIFIED GYM CUSTOMER.........................................................31

3. THE DEFAMATION CLAIM FAILS BECAUSE PLAINTIFF DID NOT SHOW THE ALLEGED STATEMENTS WERE FALSE ............................................33

F. THE TRIAL COURT ERRED IN AWARDING DAMAGES IN THE ABSENCE OF ANY PROOF OF DAMAGES........................................................................................33.............................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................

V. CONCLUSION..........................................................................................................35

REQUEST FOR ORAL ARGUMENT..................................................................................36

CERTIFICATE OF SERVICE..............................................................................................36

CERTIFICATE OF COMPLIANCE......................................................................................37

iii

STATEMENT OF THE ISSUES

1. Did the trial court err in failing to bar Appellee/Plaintiff Madeleine Gleason’s claims

under the First Amendment to the United States Constitution and its Connecticut

Equivalent?

2. Did the trial judge’s bias and lack of impartiality constitute plain error requiring

reversal?

3. Did the trial court err by relying on hearsay statements to determine Defendants’

intent?

4. Did the trial court err in finding defamation based on the evidence it considered?

5. Did the trial court err in finding Intentional Infliction of Emotional Distress based on

the evidence it considered?

6. Did the trial court err by awarding compensatory and punitive damages in the

absence of any supporting evidence?

iv

TABLE OF AUTHORITIES

Code of Judicial Conduct

Rules 1.2-3.1.......................................................................................................................17

v

I. INTRODUCTION

At issue in this case is whether a criminal suspect is entitled to use Connecticut’s tort

law to silence a murder victim’s family in that family’s search for justice. Since 2004, Billy

Smolinski’s parents and sister have suffered through countless sleepless nights and untold

horror forced only to imagine the horrible fate that befell the young man for whom they

cared so deeply. For over eight years, they have worked to motivate police and public

officials to investigate their son’s death and to aid other similarly situated victims’ families.

Despite their loss and good work they are faced with a monetary judgment for

compensatory and punitive damages for—in essence—replacing missing person’s posters

torn down by a woman who is an identified suspect in the police investigation. The trial

court’s finding of liability in this case is troubling. If allowed to stand, the ruling threatens to

stifle countless families caught in similar struggles for justice. The Smolinksis and so many

like them are merely giving life to the ancient maxim underpinning our system of justice:

fiat justitia ruat caelum—let justice be done though the heavens may fall. For the myriad of

reasons set forth herein, Defendants respectfully request that this Honorable Court affirm

that fundamental right, and reverse and remand this case for further proceedings consistent

with this Court’s ruling.

II. STATEMENT OF THE FACTS

On August 24, 2004, William “Billy” Smolinski disappeared never to be heard from

again. Billy was a 31-year-old tow truck driver who was very close to his parents and

sister. (See Pl.’s Exhibit 9, John Murray, Trying to Find a Missing Child A Mother’s

Anguish, Waterbury Observer July 2006, at 24, App. 1.) Billy lived in the town of Waterbury

and the “investigation” of his disappearance is within the primary jurisdiction of the

1

Waterbury Police Department. Many of the issues underlying this case stem from that

Department’s failure to pursue the case in any meaningful way and the Smolinskis’ struggle

to change that. (See generally App. 1-3.)

A. THE “LOVE TRIANGLE”

Prior to his disappearance, Billy dated Madeleine Gleason. (11/29/2011 Tr. at

85:17-25.) At the time, Gleason was a 51-year-old bus driver who lived and worked in

Woodbridge. (Id.) There is no dispute that Gleason and Billy broke off their relationship in

the days leading up to Billy’s disappearance and that Gleason was one of the last people

ever to see him or talk to him. (See 11/29/2011 Tr. at 122:17-27.)

The reasons for the breakup and how it relates to Billy’s disappearance are very

much in dispute. The Record reveals Gleason either lied in her trial testimony or in

statements to police concerning this critical point. According to Gleason’s statements to

police in the days following Billy’s disappearance, Billy “wanted to break up with her

because he thought she was cheating on him and he left her place early morning (8/24/04)

a little depressed.” (See Def.s’ Trial Exhibit B & C, App. 4.) In an August 5, 2005 interview

with police, Gleason admitted that, while dating Billy, she was having an affair with married

Woodbridge politician, Christian Sorenson. (App. 10.) She indicated she believed Billy had

suspected the same for some time, and she finally told Billy about the affair on their trip to

Florida in the week prior to Billy’s disappearance. (Id.) Upon learning this, she told police

Billy grabbed her cell phone from her and “they had a fight” concerning calls and/or texts

Gleason received from Sorenson. (Id.) Gleason admitted she saw Billy on the morning he

disappeared, when he placed a ladder against her bedroom window to try to get in. (Id.)

2

Gleason told a much different story while on the witness stand nearly seven years

after Billy disappeared; claiming she was not in a relationship with Sorenson when Billy was

murdered. (See 11/29/2011 Tr. at 91:1-5.) She further claimed, in contrast to her

contemporaneous statements to police, she broke up with Billy because, as a 51-year-old,

she was tired of “babysitting” a 31-year-old. (Id.) Although she admitted she had a prior

relationship with Sorenson, she claimed the relationship ended before she was with Billy

and that she had no contact with Sorenson until after Billy disappeared. (Id. at 127:11-13.)

Also in contrast to her prior police statements, she testified the “love triangle” surrounding

Billy’s disappearance, which was widely reported in the media, was a complete “fabrication”

by the Smolinskis. (See id. at 96:25-26.)

In an attempt to illustrate Gleason’s inconsistencies, Defendants subpoenaed

Sorenson as a trial witness. (See 12/5/2011 Tr. at 28:17-18.) In an off-the-record, in-

Chambers ruling, the trial judge prohibited Defendants from asking Sorenson any questions

about his relationship with Gleason. That ruling was prejudicial because, like Gleason,

Sorenson gave wildly inconsistent statements concerning the events leading up to Billy’s

disappearance. In questioning by police, Sorenson initially denied any relationship with

Gleason and any contact with Billy. (App. 5.) Under pressure, he eventually admitted

having an affair with Gleason while he was married and presented police with an audio

tape of a call Billy made on the day of his disappearance stating, “Chris you better watch

your back at all times.” (Id.) Sorenson immediately notified Gleason of Billy’s threat. (Id.)

Because of the trial court’s in-Chambers restrictions, Defendants’ direct examination

of Sorenson was extremely limited. In the few questions Defendants were permitted to ask

him, Sorenson acknowledged Billy contacted him three times in the hours leading up to his

3

disappearance and, on the day he disappeared, Billy left a threatening cell phone message

on Sorenson’s voicemail, which Sorenson eventually turned over to police. (See 12/5/2011

Tr. at 29:27-30:9.) Sorenson also acknowledged his father is in business with Gleason’s

employer, B and B Transportation, Inc. (“B&B”) (an original plaintiff in this lawsuit) owner

Brad Cohen, who was also the driving force behind the three criminal complaints against

the Smolinskis and one of the three fact witnesses providing the sole “support” for Plaintiff’s

claims. (Id. at 28-29.)

The Smolinskis were fully aware of the Gleason-Sorenson connection and all the

facts contained within the various police reports because those reports had been widely

reported in the media. (See, e.g., App. 1-3.) Moreover, the Smolinskis were fully aware

Gleason was identified as a suspect in Billy’s disappearance and that she had never been

cleared as such. (See generally App. 1; see also Def.s’ Trial Exhibit A at 2, App. 15.)

According to police reports, Gleason has been asked to take a polygraph regarding the

incident. (App. 15.) Gleason has refused on advice of counsel. (11/29/2011 Tr. at 118:2-

14.) Further, to this day, Gleason admits she continues to withhold information from police

concerning Billy’s disappearance. (See id.)

B. THE SMOLINSKI FAMILY’S DESPERATE SEARCH FOR BILLY AND GLEASON’S BIZARRE RESPONSE TO THAT SEARCH

Billy Smolinski was last seen on a Tuesday evening. The family immediately notified

the police when they were unable to reach him and were told they needed to wait three

days to file a missing person’s report, which they did. (See 12/5/2011 Tr. at 12:12-15.)

Paula Bell, Billy’s sister, called Gleason on that Wednesday and reported the family had not

seen or heard from and the family was concerned. (Id. at 11:23-25.) Paula also checked in

with Gleason early that Friday to see if she had heard from Billy. (Id.) Paula and her

4

parents filed a missing person’s report with the Waterbury Police late that Friday night, after

which they drove past Billy’s house to see if he had come home. (Id. at 32.) They found

Gleason and her friend Fran Vrabel sitting in Billy’s house. (Id. at 32:25-33:2.) Gleason

drew Mrs. Smolinski’s attention to some unsigned cards on a coffee table she claimed were

“from Billy.” (Id. at 44:11-17.)

The next day, the extended Smolinski family banded together in a community-wide

effort to find Billy. (See 12/5/2011 Tr. at 34:1-2.) The family produced “thousands” of

missing person’s posters, and members of the extended family put the posters up

throughout the state of Connecticut and in several other states. (Id.) The posters feature

pictures of Billy and urge anyone with information concerning Billy’s disappearance to call a

hotline. (See Pl.s’ Trial Exhibits 1-2, App. 20-21.) Gleason is not identified or featured in

any way on any of the posters or materials. (Id.) The family posted the posters on

telephone poles, billboards and in other public spaces. (12/5/2011 Tr. at 44.)

Just a couple weeks after Billy disappeared, and while their campaign was in full

swing, Bill Smolinski (Billy’s dad) noticed flyers he had put up on Route 63, the main road

into New Haven, were taken down. (Id. at 34:20-27.) When the flyers were replaced, they

came down the next day. (Id.) So, he posted a flyer and hid in the woods to investigate the

cause. (Id. at 35.) Bill Smolinski was shocked and horrified to observe Gleason pull her

school bus over, get off the bus, and brazenly tear down the poster and throw it on the

ground. (Id.) Mrs. Smolinski reported this activity to police, who told her she needed to

videotape Gleason taking the posters down for any action to be taken. (Id. at 50:7-9.)

From the very beginning of the investigation, Gleason admited she was tearing down

the missing persons posters. She acknowledged bringing her children with her to tear

5

down posters. (Id. at 131:17-19.) She admitted she and her friend, Fran Vrabel, followed

the mother of the murdered son and tore the posters down as Mrs. Smolinski was putting

the posters up; right in front of Ms. Smolinski. (See id. at 132:1-24.) While Gleason offers

general accusations regarding “the Smolinskis” following her, the only specific incidents on

which any testimony is offered involve Plaintiff and her cohorts following Janice Smolinksi

to where she is posting flyers, getting in Mrs. Smolinski’s face, and ripping down the

posters. (See 11/9/2011 Tr. 51:1-12; Pl.s’ Trial Ex. 4.) Gleason further acknowledged her

friend Melissa Depallo, one of three witnesses who testified on her behalf, vandalized

missing person’s posters featuring Billy by spray-painting them, cutting the faces out of

them and writing things on them. (11/29/2011 Tr. at 105:11-14.)

C. BILLY’S MOTHER IS ARRESTED FOR POSTING FLYERS

Apparently not content with tearing down and vandalizing the posters depicting the

Smolinskis’ (presumably) murdered son and brother, Gleason decided to hire a lawyer and

to pursue criminal charges against the family. Plaintiff’s criminal “case” largely rests on

three criminal complaints made by Gleason, her boss and her best friend, which eventually

resulted in the arrest of Janice Smolinski. Nowhere in the transcript, however, is the critical

fact that the only charges ever resulting from these complaints were dismissed as

baseless. Further, all the documented “incidents” forming the basis for Plaintiff’s

complaints occurred in the town of Woodbridge and were investigated by the Woodbridge

Police Department. Woodbridge is the town where both Billy and Gleason worked, and it is

the town where Sorenson served as selectman.

The first documented “allegation” is on March 14, 2005. According to Detective

Robert B. Crowther of the Woodbridge Police Department, Gleason reported she was being

6

harassed by Mrs. Smolinski and felt that her bus route was being targeted with flyers.

(12/5/2011 Tr. at 3:12-19.) In his March 14, 2005 report,1 Crowther indicates he

investigated the allegations of targeting and found them to be without merit. (See

3/14/2005 Report, App. 22-23.) The report indicates Crowther investigated Gleason’s claim

that the posters are “targeted at her” and rejected it because the posters are “in

Woodbridge, New Haven, Derby, and Ansonia and Waterbury and other towns as well.”

(Id.) The report further notes Crowther did not feel Gleason’s allegations gave rise to any

criminal claim under Connecticut law and that he advised Gleason to contact the Waterbury

Police Department to set up a polygraph and clear herself as a suspect in Billy’s

disappearance. (Id.) At trial, Crowther confirmed that he investigated Gleason’s allegation

and that the “charge of harassment just didn’t stand.” (12/5/2005 Tr. at 3:12-17.) He also

testified he advised Janice Smolinski she was doing nothing wrong by putting up the

posters. (Id. at 4.)

Not content with this response, Gleason returned to the Woodbridge Police

Department on April 4, 2005. This time she had Cohen with her. (12/5/2011 Tr. at 7:2-5.)

Cohen owned former plaintiff B&B and was the business partner of Sorenson, a prominent

politician in Woodbridge who, according to Plaintiff, Woodbridge Police were concerned

with protecting. (See 11/29/2011 Tr. at 100:9-11.) Not surprisingly, Gleason’s reception

was different. Contrary to what the same officers told them on the prior occasion, the

police this time advised Defendants their “actions against Gleason” could be considered

1 The Record is unclear whether this report was admitted into evidence. The exhibit list contains a notation of an undated police report as Plaintiff’s Exhibit 3. It is not clear based on the trial transcript whether that references this report or the April 4, 2005 or both. Crowther reads directly from his report in his trial testimony. (See 12/5/2011 Tr. at 7-9.)

7

harassment and that if they continued in their “activities,” an arrest could be made. (See

4/4/2005 Report2 at 2, App. 24.)

On April 15, 2005, Sullivan received a complaint from Gleason’s friend, Fran Vrabel,

indicating Mrs. Smolinksi put a missing person’s poster on a telephone poll that, although

close to the roadway and far from the school, Vrabel claimed was technically on public

school property. (11/29/2005 Tr. at 49.) Even though Vrabel is not an employee of the

school and presumably does not own it, based solely on Vrabel’s “statement” concerning

the alleged trespass, Sullivan swore out an arrest warrant and arranged to have Janice

Smolinski arrested. (Id.) On the day of Mrs. Smolinski’s trial, prosecutors determined the

case against her was without merit and initiated a nolle prosequi application disposing of

(and erasing) the charges. When Defendants sought to introduce evidence of that

disposition, (see 11/29/2011 Tr. at 51:20-21), the court refused to admit it (id. at 26-27).

D. GLEASON’S MANY OTHER CAUSES FOR ANGUISH AND DIMINISHED REPUTATION

In painting herself as the victim of the Smolinski family’s effort to find Billy, Gleason

glosses over and obscures the many other likely sources of her alleged emotional distress

and damaged reputation.

First and foremost, Gleason repeatedly was identified in police reports and in media

accounts as a suspect in Billy’s disappearance. Indeed, in this action, Gleason sued the

reporter for the Waterbury Observer who was largely responsible for publicly disseminating

the information concerning the “love triangle” and the police suspicions concerning

Gleason. The court dismissed that suit. Much of Gleason’s trial testimony suggests that

being publicly identified as a suspect was the real source of her emotional anguish and

2 As discussed in Note 1 above, it is not clear whether this report is Plaintiff’s Exhibit 4, but it is extensively referenced and discussed throughout the trial transcript.

8

damage to her reputation. (See, e.g., 11/29/2011 Tr. at 12:13-15 (Cohen testifying the

“amount of spotlight, so to speak, that was put on [Gleason] was over the top”); 31:18-27

(Depallo testifying that Gleason had to put on sunglasses to avoid recognition because her

face was “broadcasted all over the news.”); 109-110 (Gleason testifying about impact of the

media reports on her).)

Second, Gleason had many other issues in her life that likely caused grave

emotional distress. Gleason’s daughter committed suicide in May 2004, three months

before Billy disappeared. (11/29/2011 Tr. at 110:1-2.) Her son died of a drug overdose the

year after Billy disappeared, and she lost another child thereafter. (Id.)

The trial court allowed virtually no evidence on these other issues, while giving

Plaintiff broad latitude in presenting evidence concerning her alleged emotional distress.

these issues Specifically, the court permitted testimony of how Defendants’ alleged

activities precluded Gleason from getting custody of her granddaughter. Indeed, when

Defendants’ counsel objected to the introduction of such evidence, the trial court took it

upon itself to make a troubling proclamation on the record: “the fact that it [the effects of

Defendants’ alleged activities]—that it follows her wherever she goes and whatever she

does, just like they followed her wherever she went and whatever she did that’s part of

what’s happened to this woman and it’s part of the trauma they’ve inflicted upon her.” (Id.

at 112:1-7 (emphasis added).) When Defendants attempted to present witness testimony

from the person actually awarded custody of the child concerning the actual reasons why

Gleason did not get custody, the trial court refused to admit such evidence. (12/5/2011 Tr.

at 23:14-19.) The trial court sustained Plaintiff’s counsel’s objection to proffered evidence

9

of Gleason’s history of arrests and domestic violence, finding such evidence “irrelevant.”

(Id.)

III. STATEMENT OF THE PROCEEDINGS

This case was filed on July 19, 2006 by initial plaintiffs Madeline Gleason and B&B

against John Murray, Janice Smolinski and Paula Bell. Gleason and B&B3 filed a Revised

Complaint on November 15, 2007. The Revised Complaint sets forth 18 counts alleging

intentional infliction of emotional distress, invasion of privacy, tortious interference with

business relationships and expectancies, economic injury (to B&B), and trespass. (See

Docket No. 108.) Counts 13-18 of the Revised Complaint relate exclusively to Murray in

his capacity as a reporter for the Waterbury Observer. (Id.) Murray moved to strike those

counts arguing, among other things, the claims are barred First Amendment to the United

States Constitution. (See Docket No. 110.)

By Memorandum of Decision dated July 20, 2009, the court (Wilson, J.) granted

Defendant Murray’s motion, noting because the allegations relate to the alleged tortious

use of speech, the analysis is “governed by first amendment principles.” (Docket No. 111

at 9.) The court further observes the allegedly tortious speech relates entirely to “Gleason’s

relationship with Billy Smolinksi shortly before his disappearance,” and the discussion of

Gleason’s relationship history and of issues relating to her children are all of “legitimate

public concern” and therefore immune from tort liability under the First Amendment. (See

id. at 9-10.) The court dismissed all claims against Murray on August 29, 2011. (See

Docket No. 124.)

3 B&B withdrew all its claims on August 1, 2011. (See Docket No. 127.)

10

Plaintiff Gleason responded to Defendants’ Interrogatories and Requests for

Production of Documents on September 2011. (App. 27-41.) Plaintiff’s discovery responses

were patently deficient as she failed to produce any documents evidencing her allegations

of harassment and defamation and produced no documents or information concerning her

alleged “damages.” (See generally App. 7.)

Based on these deficiencies, Defendants filed a motion in limine seeking to exclude

all matters not contained in Plaintiff’s discovery responses on November 28, 2011. (See

Docket No. 131.) The trial judge apparently issued an informal ruling on the motion and on

related matters in an informal Chambers conference. (See 11/29/2011 Tr. 43:16-44:13.)

Neither the ruling nor any aspect of the apparent rulings on evidentiary matters was placed

on the Record.

A courtside trial was held before the Honorable Thomas Corradino on November 29,

2011 and on December 5, 2011. At the conclusion of Plaintiff’s case, Defendants moved to

dismiss counts seven and eight of the Revised Complaint, relating to tortious interference

with business relations. Defendants submitted a post-trial brief on February 21, 2012, in

which they identified a vast array of factual and legal deficiencies in Plaintiff’s case. (See

Docket No. 135.) The court conducted a hearing on post-trial issues on April 20, 2011,

during which Plaintiff’s counsel indicated he is seeking “nominal damages” because Plaintiff

did not “present proof of actual damages.” (4/20/2011 Tr. at 4:19-24.) In addition,

throughout the argument, the court extensively discussed “admissions” the court contends

were made by Defendants in the application for the arrest warrant of Janice Smolinski and

in comments allegedly made to the Waterbury Observer. (Id. at 10:8-11-27.) The court

strongly suggests that these “admissions” fatally undermine Defendants’ position that they

11

were putting up posters to find Billy and provide the sole support for the court’s ultimate

finding that the Defendants’ true objective was solely to inflict emotional distress on

Plaintiff. (See id.) The court issued its Memorandum of Decision on August 10, 2012,

granting judgment in favor of Plaintiff on her claims for intentional infliction of emotional

distress (“IIED”) and defamation and awarding $39,500 in compensatory damages and

$13,035 in punitive damages. Defendants moved for articulation on October 24, 2012 and

the court issued a Response to Motion for Articulation on November 5, 2012.

IV. ARGUMENT

A. PLAINTIFF’S CLAIMS ARE BARRED BY THE FIRST AMENDMENT AND THE CONNECTICUT CONSTITUTIONAL EQUIVALENT

Whether Defendants’ speech is protected by the first amendment is a question of

law, subject to plenary review, under which the Court must determine whether the trial

court’s failure to dismiss Plaintiff’s claims was legally and logically correct.4 Id. Because

the Record establishes Plaintiff’s claims rests solely on actions protected by the First

Amendment, the trial court’s failure to dismiss Plaintiff’s claims was legally and logically

incorrect.

4 As set forth in Sections II and III above, Defendants’ First Amendment claim was adequately preserved. However, even if Defendants’ First Amendment claim was not adequately preserved, the Court may still consider the claim on appeal under the doctrine adopted in State v. Golding. 213 Conn. 233 (1989). In Golding, the Connecticut Supreme Court held a defendant may prevail on a claim of constitutional error not preserved at trial when: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id. Defendants’ First Amendment claim satisfies all these factors. See Perricone v. Perricone, 292 Conn. 187, 212 n.24 (2009) (holding that the Golding doctrine applies in civil as well as criminal cases).

12

The First Amendment “can serve as a [complete] defense in state tort suits,

including suits for intentional infliction of emotional distress” brought by private non-state

and non-public figures. Snyder v. Phelps, 131 S.Ct. 1207, 1215 (2011). Whether the First

Amendment prohibits holding Defendants liable for their speech activities in this case “turns

largely on whether that speech is of public or private concern, as determined by all the

circumstance of the case.” Id. at 1215. “Speech on matters of public concern . . . is at the

heart of the First Amendment’s protection.” Id. (internal quotations omitted). The

boundaries of public/private concern are not easily defined, and Courts must examine the

“content, form and context of that speech, as revealed by the whole record.” Id. (internal

quotations omitted). No single factor is dispositive; “it is necessary to evaluate all the

circumstances of the speech, including what was said, where it was said, and how it was

said.” Id.

In Snyder, members of the Westboro Baptist Church picketed an Iraq war veteran’s

funeral. Their picket signs reflected the church’s views about homosexuals and how God

punishes the United States for its sinfulness with acts such as the death of its soldiers. See

id. at 1213 (describing signs stating, “Got Hates the USA/Thank God for 9/11,” “Thank God

for IEDs,” “Thank God for Dead Soldiers,” “You’re Going to Hell”). They stood on a plot of

public land located approximately 1,000 feet from the church, and the funeral procession

passed within 200 to 300 feet of the picketers. Id. The deceased soldier’s father filed suit

against the church and its founders, alleging several state tort law claims, including

intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy. Id.

at 1214. A jury found the defendants liable and awarded compensatory and punitive

damages. Id. The court of appeals reversed, holding the church defendants were entitled

13

to judgment as a matter of law because the First Amendment protected the church

defendants’ speech activities. Id. The United States Supreme Court affirmed.

In reaching its decision, the Court examined the content, form, and context of the

speech, and concluded that the picketing activity addressed issues of public interest even

though they inflicted grave distress on the soldier’s grieving family. Id. at 1216-17. The

Court acknowledged the jury found the picketing (and the contents of the messages)

“‘outrageous’” and the defendants caused plaintiff to suffer serious emotional distress. Id.

at 1219. The Court nevertheless held that the First Amendment shielded the church

defendants from tort liability. As the Court explained:

Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain. . . . [But] we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate.

Id. at 1220.

The speech activities that lie at the core of this case also relate to matters of public

concern. The content of the Smolinskis’ posters and other speech activities all focused on

the search for information to assist with the investigation and potential prosecution of a

crime. (See 12/5/2011 at 34:1-2, 44; App. 4.)

That a member of the community was missing and possibly the victim of a crime

surely is “a subject of general interest and of value and concern to the public.” See Snyder,

131 S.Ct. at 1216 (explaining “[s]peech deals with matters of public concern when it can ‘be

fairly considered as relating to any matter of political, social, or other concern to the

community’”); see also Cox Broad. Corp. v. Cohn, 420 U.S. 462, 492 (1975) (finding “[t]he

14

commission of crime [and] prosecutions resulting from it . . . are without question events of

legitimate concern to the public”).

The context of the speech — its connection with Gleason — does not make the

subject of the speech any less of a matter of public interest. See, e.g., Snyder, 131 S. Ct.

at 1217. First, all documented alleged incidents occurred on public grounds. (See App.

15-19, 22-26.) Second, none of the reward posters mention plaintiff by name. (App. 20-

21.) Further, the other disputed speech activities that may have alluded to or referenced

Gleason by name are squarely within First Amendment protections because police

identified plaintiff as a suspect in Billy’s disappearance (see App. 2, 4, 16). See, e.g.,

Shoen v. Shoen, 292 P.3d 1224 (Co. Ct. App. 2012) (concluding defendant’s accusation on

television that plaintiff may be involved in a murder, and his views about the inadequacy of

the investigation by law enforcement were matters of public concern and subject to

constitutional protection in defamation action); see also RESTATEMENT (SECOND) OF TORTS

§ 652D cmt.f (1977) (“Those who commit crime or are accused of it may not only not seek

publicity but may make every possible effort to avoid it, but they are nevertheless persons

of public interest, concerning whom the public is entitled to be informed.”) (emphasis

added).

Here, the trial court erred when it entered a judgment of liability against Billy’s

mother and sister for engaging in protected speech designed to uncover information about

their son/brother and assist with the investigation and prosecution of a crime. That their

speech activities may have caused Gleason distress does not transform the public nature

of their speech. The trial court’s ruling violates a fundamental tenant of the First

Amendment — the “‘profound national commitment to the principle” that the speaker of

15

issues of public concern should not be punished for exercising their rights in a peaceful

manner. Snyder, 131 S.Ct. at 1215, 1220.5 It also frustrates the public policy in favor of

investigating, stopping, and reporting crimes.6 Because the trial court’s error is “‘of such

monumental proportion that [it] threaten[s] to erode our system of justice and work a

serious and manifest injustice on the aggrieved party,’” this Court must reverse the

judgment. Perricone v. Perricone, 292 Conn. 187, 218-219 (2009).

B. THE TRIAL COURT EXHIBITED BIAS WHICH CONSTITUTES PLAIN ERROR

The trial judge’s failure to recuse himself or sua sponte declare a mistrial constitutes

plain error because his conduct throughout the trial raises suspicion on the fairness of the

administration of justice, and evidences the trial judge’s apparent bias and lack of

impartiality. Specifically, the trial judge (1) publically committed himself during trial on the

record to Defendants’ liability and wrongdoing; (2) admitted and relied upon hearsay

evidence proffered by plaintiff; (3) held in-Chambers hearings to “protect the reputation” of

5 Although Connecticut courts have not squarely addressed this issue, the state constitutional protection for free speech should be no less protective of the Smolinskis’ speech. See Conn. Const. art. I, § 4 (guaranteeing “[e]very citizen may freely speak, write and publish his sentiments on all subjects”); see, e.g., State v. Linares, 232 Conn. 345, 385 (Conn 1995) (concluding the state constitution may be more protective of some forms of speech than the federal constitution); Cologne v. Westfarms Associates, 192 Conn. 48, 57 (1984) (observing federal law only “establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights”).6 See, e.g., Lachman v. Sperry-Sun Well Surveying Co., 457 F.2d 850, 853 (10th Cir. 1972) (“It is public policy . . . everywhere to encourage the disclosure of criminal activity”); Porterfield v. Mascari II, Inc., 823 A.2d 590, 603 (Md. 2003) (explaining the state’s “public policy . . . favoring the investigation and reporting of suspected criminal activity”); Crea v. FMC Corp., 16 P.3d 272, 275 (Id. 2000) (“There is a strong public policy favoring investigation and disclosure of criminal activity.”); Lundberg v. Scoggins, 335 N.W.2d 235, 235 (Minn. 1983) (dismissing tort action against crime victim for negligent accusation and misidentification of criminal suspect based on “longstanding public policy reasons encouraging witness/victim participation in criminal investigations and prosecutions”).

16

a local politician and key witness; and (4) refused to permit Defendants’ repeated offers of

evidence as to the defense of truth, motive, and witness credibility.

1. JUDICIAL CONDUCT; DUTIES OF JUDGE; STANDARD OF REVIEW

CANON 2 of Connecticut’s Code of Judicial Conduct requires a trial judge to perform

the duties of judicial office impartially and without bias. 1 Conn. Prac., Super. Ct. Civ.

Rules CANON 2 (2012 ed.). The pertinent Rules in CANON 2 provide:

RULE 2.2. Impartiality and FairnessA judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially.RULE 2.3. Bias, Prejudice, and Harassment(A) A judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice.(B) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice…  RULE 2.4. External Influences on Judicial Conduct or Judgment(B) A judge shall not permit family, social, political, financial, or other interests or relationships to influence the judge’s judicial conduct or judgment.(C) A judge shall not convey or permit others to convey the impression that any person or organization is in a position to influence the judge’s judicial conduct or judgment.

A Connecticut trial judge has “a duty to see that no falsehood or other fraud is perpetrated

in court.” General Statutes § 1-25; Code of Professional Responsibility DR 7-102(B)(1) and

(2).

In Cameron v. Cameron, Connecticut’s Supreme Court succinctly and clearly sums

up the law and standards governing an assertion of bias on appeal:

We would not ordinarily review on appeal a claim that a trial judge should have disqualified himself or declared a mistrial at a certain stage of the proceedings when no such request was made during the trial…We are dealing here, however, with an accusation of prejudice against a judge, “which strikes at the very core of judicial integrity and tends to undermine public confidence in the established judiciary . . .” For this reason, which implicates basic concepts of fair trial, we have decided to invoke our authority in the interests of justice to review “plain error” not properly preserved in the trial court. Practice Book § 3063. 

17

No more elementary statement concerning the judiciary can be made than that the conduct of the trial judge must be characterized by the highest degree of impartiality. …In whatever he does, however, the trial judge should be cautious and circumspect in his language and conduct. A judge “should be scrupulous to refrain from hearing matters which he feels he cannot approach in the utmost spirit of fairness and to avoid the appearance of prejudice as regards either the parties or the issues before him.” A judge, trying the cause without a jury, should be careful to refrain from any statement or attitude which would tend to deny the defendant a fair trial. It is his responsibility to have the trial conducted in a manner which approaches an ‘atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding.

Proof of actual bias is not required for disqualification. The appearance as well as the actuality of impartiality on the part of the trier is an essential ingredient of a fair trial.

187 Conn. 163, 168-169 (1982) (internal citations omitted).

Although Defendants did not raise the bias issue below, this Court has broad

discretion to review the claim on appeal. See Cameron, 187 Conn. at 168 . In reviewing a

claim of judicial bias, Connecticut appellate courts employ a plain error standard of review.

Statewide Grievance Committee v. Burton, 299 Conn. 405, 416 (2011) (citing Knock v.

Knock, 224 Conn. 776, 792-93 (1993)). The standard is an objective one, and “any

conduct that would lead a reasonable person knowing all the circumstances to the

conclusion that the judge’s impartiality might reasonably be questioned is a basis for the

judge’s disqualification.” Id. (citing State v. Shabazz, 246 Conn. 746, 768-69 (1998)). To

prevail, Defendants need not show actual bias, but will meet their burden if they can prove

the conduct in question gave rise to a reasonable appearance of impropriety. See

Wiegand v. Wiegand, 129 Conn App. 526, 534 (2011).

Connecticut courts have found “plain error” in cases “where the existence of the

error is so obvious that it affects the fairness and integrity of and public confidence in the

18

judicial proceedings.”  Doody v. Doody , 99 Conn. App. 512 (2007); Small v. Stop & Shop

Cos.,   42 Conn. App. 660, 663 (1996) ; Baugher v. Baugher,   63 Conn. App. 59, 68 (2001) .

2. THE TRIAL RECORD DEMONSTRATES PLAIN ERROR IN THE TRIAL JUDGE’S BIAS AND LACK OF IMPARTIALITY.

Fundamentally, the trial judge had a duty to stop any fraud being perpetrated in the

courtroom. But the Record reveals Gleason and Sorenson either lied in their trial testimony

or in statements to police, and the trial judge precluded Defendants from offering

impeachment evidence to reveal those inconsistencies. (See Section II(A), supra at 2-3

(setting forth Gleason’s inconsistent testimony.) These rulings permitted mistruths testified

to in the court room, under oath, to stand.

According to Gleason’s testimony, Woodbridge Police were concerned with

protecting Sorenson, as he was a prominent politician in Woodbridge. (See 11/29/2011 Tr.

at 100:9-11.) Moreover, Sorenson was business partners with Cohen, plaintiff’s employer.

(Id.) Given these facts and Gleason’s inconsistencies, Defendants subpoenaed Sorenson

as a trial witness (See 12/5/2011 Tr. at 28:17-18.), because Defendants had a legal right to

attack witness credibility and to establish the role of bias and motive in the testimony given

by Cohen, Gleason and Sorenson.

But incredulously, in an off-the-record, in-Chambers ruling, the trial judge prohibited

Defendants from asking Sorenson any questions about the romantic relationship between

Sorenson and Gleason. This ruling constitutes plain error and runs afoul of Rule 2.4 of the

Code of Judicial Conduct. The ruling was prejudicial because, like Gleason, Sorenson gave

wildly inconsistent statements concerning the events leading up to Billy’s disappearance.

(See Section II(A), supra at 3-4.)

19

While the Court permitted police, Gleason, Cohen, and Vrabel to testify about Janice

Smolinski’s arrest for putting up missing posters, (based solely on Vrabel’s “statement”

concerning an alleged trespass), and allowed introduction of the arrest into evidence, the

Court refused to permit Defendants to introduce into evidence the fact that prosecutors

determined the case against Janice Smolinski was without merit and that prosecutors

initiated a nolle prosequi application disposing of and erasing the charges. It is astounding

that, when Defendants sought to introduce evidence of that disposition, (see 11/29/2011 Tr.

at 51:20-21), the court refused to admit it (id. at 26-27).

Gleason and her witnesses testified that being publicly identified as a suspect was

the real source of her emotional anguish and damage to her reputation. (See, e.g.,

11/29/2011 Tr. at 12:13-15; 31:18-27; 109-110.) But Gleason had many other issues in her

life that likely caused grave emotional distress. The trial court allowed virtually no evidence

on these other issues, while giving Plaintiff broad latitude in presenting evidence

concerning her alleged emotional distress. (See Section II(D), supra at 8-10.)

The court permitted testimony of how Defendants’ alleged activities allegedly

precluded Gleason from getting custody of her granddaughter. But when Defendants

attempted to present witness testimony from the person actually awarded custody of the

child concerning the actual reasons why Gleason did not get custody, the trial court refused

to admit such evidence. (12/5/2011 Tr. at 23:14-19.) The trial court sustained Plaintiff’s

counsel’s objection to proffered evidence of Gleason’s history of arrests and domestic

violence, finding such evidence “irrelevant.” (Id.)

Perhaps most troubling, when Defendants’ counsel objected to the introduction of

irrelevant and unsubstantiated evidence, the trial judge publically committed himself to the

20

conclusion that Defendants inflicted trauma on plaintiff, that the followed wherever she went

and that they caused her damage, stating: “the fact that it [the effects of Defendants’

alleged activities]—that it follows her wherever she goes and whatever she does, just like

they followed her wherever she went and whatever she did that’s part of what’s happened

to this woman and it’s part of the trauma they’ve inflicted upon her.” (Id. at 112:1-7

(emphasis supplied).)

Under Cameron, this statement alone merits the trial judge’s sua sponte declaration

of a mistrial. Moreover, the Record simply fails to support the judge’s conclusion. The

judge’s statements directly contradict the testimony given under oath by both Defendants.

Indeed the court goes out of its way to find that it “credits” Gleason’s testimony and that of

her cohorts over that of the Smolinski family. (See Mem. Dec. at 9.) Once a trial judge

“declares that he believes a party or a witness has been deceitful, however, he cannot

continue to preside in his role of impartial arbiter.” Cameron, 187 Conn. at 170. 

For reasons the court does not make clear in its decision, the Court admits 3

separate categories of inadmissible hearsay: (1) Cohen’s testimony about phone calls from

school board members; (2) double hearsay contained within the police reports; and (3) the

statement from the unidentified man at the gym. While briefed elsewhere, the admission of

and reliance upon these statements in the Court’s decision reflects an overall pattern of

bias and impartiality that it is troubling.

The Record reveals a situation “which inevitably raises in the minds of litigants ... a

suspicion as to the fairness of the court’s administration of justice.” Krattenstein v. G. Fox &

Co. , 155 Conn. 609, 615 (1967). The trial court’s decision here portrays a judicial system

that: protects a local politician who changed his story; permits civil damages despite clear

21

First Amendment rights to speech seeking information about a disappeared family member;

it gives money to a “suspect” in a murder investigation who was ripping down missing

posters while a driving a public school system school bus, all because the a victim’s

mother and sister were putting up missing posters and discussing media stories about a

woman identified as a “suspect” by police.

In Mercer v. Cosley, this Court warned that the plain error doctrine is a “rule of

reversibility” that the court invokes “to rectify a trial court ruling that, although not properly

preserved or never raised at all in the trial court, nonetheless requires reversal of the trial

court’s judgment for reasons of policy.” 110 Conn. App. 283, 291 (2008). A party should

prevail under plain error when the party demonstrates that the failure to grant relief will

result in manifest injustice. Id. In this case, failure to grant relief will indeed result in

manifest injustice.

C. THE TRIAL COURT ERRED BY FINDING “INTENT” SOLELY BASED ON HEARSAY STATEMENTS MADE TO POLICE AND MEDIA

The trial court’s judgment rests entirely on its finding that Defendants engaged in the

“hanging of posters in areas where the plaintiff lived and worked for the sole purpose of

intimidating and harassing the plaintiff.” (Mem. Dec. at 7 (emphasis added).) For which the

court relied on the following “evidence”: Janice Smolinski’s alleged statement to police that

she was “trying to break her” (Id. at 9); Mrs. Smolinski’s alleged statements to the

Waterbury Observer; and Calls to B&B complaining about Gleason (Id. at 7).

The trial court should not have considered or relied upon Mrs. Smolinski’s alleged

comments to police for three reasons.

First, the statements were made in connection with an arrest that was dismissed as

baseless. (See App. 3.) Under Section 54-142 of the Connecticut General Statutes, no

22

testimony should have been permitted concerning any aspect of the investigation leading

up to the arrest. According to CGS 54a Section 142(e), “any law enforcement agency

having information contained in such erased records shall not disclose to anyone.”

Furthermore, “Any person who shall have been the subject of such an erasure shall be

deemed to have never been arrested within the meaning of the general statutes with

respect to the proceedings so erased and may so swear under oath.” Id. As a result, the

court committed reversible error by admitting testimony concerning the arrest. See id.

Second, because Mrs. Smolinksi allegedly made the statements to law enforcement

in good faith in the course of an official investigation, the statements are subject to qualified

privilege under Connecticut law and the trial court’s admission of and reliance on the

statements constitutes plain error. See Gallo v. Barile, 284 Conn. 459, 471-72 (2007).

Finally, the trial court improperly admitted the evidence even though it is plainly

unreliable hearsay. In his April 5, 2005 Report, Sullivan indicates “[t]his officer returned to

where Smolinski and Bell were waiting and in speaking with them . . . Mrs. Smolinski stated

she has been saturating all the areas where she knows Gleason goes because she is

trying to break her.” While the report plainly states Mrs. Smolinski made the statement to

Sullivan, Sullivan denies at trial that she said any such thing to him, instead claiming that

Crowther must have “advised him” Mrs. Smolinski made such a statement. (11/29/2011 Tr.

at 40:18-19 (emphasis added).) Defendants objected to any testimony by Sullivan

regarding what was reported to him based on hearsay, but the Court allowed it. (See id. at

41-45.) For his part, Crowther said he had no independent recollection of any conversation

but testified that he must have relayed the comment to Sullivan if Sullivan said so and,

when pressed on precisely what Mrs. Smolinski said, Crowther read verbatim from the

23

report in which Sullivan claims Mrs. Smolinski made the remark to him. (12/5/2011 Tr. at

8:9-11.) Combined with Mrs. Smolinski’s denial of the statements, these factors render the

alleged statement patently unreliable hearsay that the trial court should have excluded.

See Baughman v. Collins, 56 Conn. App. 34, 38 (1999).

The remaining two categories of “intent” evidence are similarly problematic because

they are hearsay statements with no indicia of reliability. The trial court acknowledges that

the alleged telephone calls to Cohen are hearsay, but indicates it “attaches no weight to the

contents” of such call. (Mem. Dec. at 7.) The court also acknowledges that the alleged

media statements are hearsay and that Mrs. Smolinski was never specifically questioned

by either party regarding the statements. (Id. at 8.) Citing no authority, the court suggests

it is free to weigh this hearsay evidence as proof of Defendants’ motive. Connecticut law

plainly provides that, unless the alleged statement is deemed to fall within a recognized

hearsay exception and determined to be reliable (neither of which is present here), it is

reversible error for courts to rely on such evidence for any reason. Baughman, 56 Conn.

App. at 38.

D. THE TRIAL COURT MISAPPLIED THE LAW AND FACTS RELATING TO THE IIED

CLAIM

Whether the trial court correctly concluded Defendants’ actions satisfied the requisite

elements for a successful intentional infliction of emotional distress claim is a mixed

question of law and fact on which this Court must “determine whether the court’s

conclusions are legally and logically correct and find support in the facts that appear in the

record.”  Winchester v. McCue, 91 Conn. App. 721, 726 (2005) (citing Tuchman v. State,

89 Conn. App. 745, 750 (2005)). 

24

To establish a cause of action for IIED under Connecticut law, Plaintiff must put forth

evidence sufficient to prove: (1) Defendants intended to inflict emotional distress or that

they knew or should have known that emotional distress was the likely result of their

conduct; (2) the conduct was extreme and outrageous; (3) that their conduct was the cause

of the Plaintiff's distress; and (4) that the emotional distress sustained by the Plaintiff was

severe. See Watts v. Chittenden, 301 Conn. 575, 586 (2011). None of these elements

were established in this case.

1. THE RECORD IS INSUFFICIENT TO SUPPORT A FINDING ON THE THIRD AND FOURTH ELEMENTS OF IIED

The trial court committed plain legal error by crediting Gleason’s IIED claim based

solely on lay testimony. In finding Plaintiff met her burden in establishing the third and

fourth elements of IIED, the trial court relied exclusively upon testimony by Gleason and her

two friends, Vrabel and Depallo. (See Mem. Dec. at 15.) The court observed “it is not

necessary to produce expert testimony to establish” the severity of the emotional distress

or the causation. (Id.)

That conclusion is at odds with Connecticut law. Where the facts suggest emotional

distress could have been caused by several potential external factors, the plaintiff must

show why defendant’s specific conduct created an additional risk of distress, above and

beyond the distress that would have otherwise occurred. See Ancona v. Manafort Bros.,

Inc., 56 Conn. App. 701, 713-14, cert. denied, 252 Conn. 953 (2000); Hayes v. Yale-New

Haven Hospital, 48 Conn. Sup. 311, 345 (2001), aff’d, 82 Conn. App. 58 (2004). Further,

where, as here, alternative theories as the possible cause of plaintiff’s emotional distress

are present, plaintiff must rely on expert testimony to establish causation; causation cannot

25

be proved by lay testimony alone. See Dickerson v. Eagle Landing Residential Care, 2010

Conn. Super. LEXIS 1186 at *9 (May 25, 2010) (trial court properly excluded plaintiff’s lay

testimony that a battery exacerbated her emotional distress, holding expert testimony was

required to establish causation).

In addition, there is no evidence that the court gave any consideration to the myriad

of other potential causes of Gleason’s purported emotional distress, including her public

identification as a suspect in Billy’s disappearance and the related media coverage of her

various other problems. All the witnesses on whose testimony the court relied in finding

IIED identified that publicity as a cause of emotional distress for Gleason. (See, e.g.,

11/29/2011 Tr. at 12:13-15; 31:18-27; 109-110.) In addition, the trial court’s opinion fails to

account, in any manner, for the other likely causes of distress, including: (1) the suicide of

Gleason’s daughter the month before Billy’s disappearance; (2) the death by drug overdose

of her son in the year after; (3) the death of yet another child; (4) her breakup with Billy; (5)

the fact that she was publicly identified as dating a married local politician. (See Mem. Dec.

at 14-15.)

Finally, the trial court should have prevented Gleason from presenting evidence on

the severity of her emotional distress or on the causation issue based on her failure to

disclose previous mental health treatment. When asked to provide documentation of any

medical treatment that is in anyway relevant to her claimed emotional distress, Plaintiff

indicated she had “none.” (App. 36 (Interrogatory No. 31.) Defendants filed a motion in

limine to exclude any matters not disclosed in discovery. (See Docket No. 130.) At trial,

Plaintiff admitted she had been in therapy and contended that she could produce records

from the same. (11/29/2011 Tr. at 137:1-27.) Defendants were prejudiced by Plaintiffs’

26

failure to disclose her treatment history because that evidence bears directly on the issue of

causation and the severity of the emotional distress allegedly caused by Defendants’

conduct.

2. THE TRIAL COURT ERRED BY IGNORING DEFENDANTS’ JUSTIFICATION FOR THEIR ALLEGED CONDUCT

Defendants’ alleged conduct cannot constitute IIED as a matter of Connecticut law

for two primary reasons.

First, the court misapplied the law of privilege in the context of IIED. As the trial

court recognizes, RESTATEMENT (SECOND) OF TORTS (1965) § 46(g) states: “[t]he conduct,

although it would otherwise be extreme and outrageous, may be privileged under the

circumstances. The actor is never liable, for example, where he has done no more than to

insist upon his rights in a permissible way, even though he is well aware that such

insistence is certain to cause emotional distress.” The court rejected the notion

Defendants’ conduct could be privileged because Defendants’ real intent was to “underlie

[Gleason’s] supposed knowledge of the criminal disappearance of Bill[y] Smolinski.” (Mem.

Dec. at 13.)

The court’s analysis is fatally flawed in that the court assumes both that Gleason

does not have such information and that the Defendants were not reasonable in believing

she does. As discussed Statement of Facts (Section II(A), supra at 3), the Smolinskis had

good reason to believe Gleason was a suspect. In addition, aside from the self-serving

testimony of Plaintiff and her cohorts, the only credible evidence suggests that all

Defendants ever did was (1) put up posters where Gleason and her friends had torn them

down and/or vandalized them; and (2) on the instruction of police, videotape Gleason and

her cohorts tearing the posters down. To find such efforts by a grieving mother and sister

27

actionable under tort law would be to turn the public policy underlying Connecticut’s law on

IIED on its head.

Second, because Defendants’ “intent” was to get answers regarding Billy’s

disappearance and replace the torn down fliers, rather than to harm Plaintiff, the conduct

cannot be held to be sufficiently “extreme or outrageous” to constitute IIED as a matter of

Connecticut law. See Zushrya St. Lot v. Burlington Coat Factory, 2009 Conn. Super LEXIS

1623 at *11 (2009) (“[I]t is the intent to cause injury that is the gravamen of the tort . . .”);

Mellaly v. Eastman Kodak Co., 42 Conn. Supp. 17, 19-20 (1991) (finding sufficiently

outrageous intent where ex-husband told plaintiff he had AIDS when he actually did not);

Carrol v. Allstate Insurance Co., 262 Conn. 433 (2003) (finding lack of intent where

insurance adjuster accused of burning down his own home and refused to reimburse

plaintiff for the loss of his home); Angiollo v. Buckmiller, 102 Conn. App. 697, 707 (2007)

(signing plaintiff’s name on an application to open a grave was not sufficiently outrageous

conduct); Smulewicz-Zucker v. Zucker, 98 Conn. App. 419, 427 (2006) (husband’s

“bartering child custody for money” was not extreme and outrageous); Petitte v. DSL.net,

Inc., 102 Conn. App. 363, 377 (2007) (not extreme and outrageous conduct when

defendant rescinded plaintiff’s employment offer after plaintiff had resigned from current

job).

E. THE TRIAL COURT ERRED IN FINDING DEFAMATION ON THIS RECORD

Whether the trial court erred in concluding Defendants’ actions satisfied the requisite

elements for a successful defamation claim is a mixed question of law and fact which is

reviewed under the plenary standard to “determine whether the court’s conclusions are

legally and logically correct and find support in the facts that appear in the record.”

28

Winchester v. McCue, 91 Conn. App. 721, 726 (2005) (citing Tuchman v. State, 89 Conn.

App. 745, 750 (2005)).

To prove defamation, Plaintiff was required to produce admissible evidence to prove

by a preponderance of the evidence: (1) Defendants published a defamatory statement; (2)

the defamatory statement identified the Plaintiff to a third person; (3) the defamatory

statement was published to a third person; and (4) the Plaintiff's reputation suffered injury

as a result of the statement. See Cweklinsky v. Mobil Chemic Co., 267 Conn. 210, 217

(2004). Further, Plaintiff must show the defamatory statements were made with “actual

malice.” See Chadha v. Shimelman, 75 Conn. App. 819, 826 (2003). “Actual malice

requires that the statement, when made, be made with actual knowledge that it was false or

with reckless disregard of whether it was false.” Chadha v. Charlotte Hungerford Hosp., 97

Conn. App. 527, 537, (2006). Again, none of these elements were established in this case.

The trial court found defamation based on two categories of statements: (1)

statements allegedly made by Defendants to Vrabel and Depallo, and (2) a statement

made to Gleason by an unidentified man at her gym. Neither category of statements gives

rise to a cognizable defamation claim under Connecticut law.

1. THE ALLEGED STATEMENTS TO VRABEL AND DEPALLO ARE OPINIONS THAT CANNOT CONSTITUTE DEFAMATION

The trial court finds two specific sets of alleged statements to Gleason’s friends

defamatory: “Fran Vrabel testified that Janice Smolinski told her on several occasions that

Gleason ‘did something to her son’ and that ‘she believes that either [Gleason] or someone

in her family murdered her son.’” (Mem. Dec. at 20.) “Ms. DePallo testified Janice Smolinski

approached her and said you do not know what Gleason is capable of; she said she does

29

not believe Gleason killed her son personally but she knows where he is and Mrs.

Smolinski thought ‘she’s involved.’” (Mem. Dec. at 20.)

Fundamentally, these statements are not defamation because they are mere

statements of opinion. To be actionable, the statement in question must convey an

objective fact as opposed to the speaker’s mere views as to the likely facts. Daley v. Aetna

Life & Cas. Co., 249 Conn. 766, 795-96, (1999). A speaker can only make a factual

statement when the person hearing the speaker believes the speaker is making a

declaration on an objectively verifiable fact on which the speaker has personal knowledge.

See id. An opinion, on the other hand, is a personal comment about another's conduct,

qualifications or character that has some basis in fact. Goodrich v. Waterbury Republican-

Am., Inc., 188 Conn. 107, 111, (1982). Even though an opinion appears in a factual

context, it remains an opinion ‘if it is clear from the context that the maker is not intended to

assert another objective fact but only his personal comment on the facts which he has

stated.’” Id. at 111. For example, “a statement must be an expression of fact such as ‘he is

a thief’ . . .” rather opinion statement “‘I think he is a thief.’” Daley, 249 Conn. at 795-96.

All the statements Gleason’s friends allege Mrs. Smolinski made fall squarely within

the latter category—Mrs. Smolinski’s “beliefs” concerning Gleason. The alleged statements

where Mrs. Smolinski says “she believes that either Madeline or someone in her family

murdered her son” and she “believes” Gleason is involved in some way involved are

opinions on their face. Daley, 249 Conn. at 795-96. In addition, the remaining statement,

“you do not know what Gleason is capable of,” is a mere expression of opinion which

cannot give rise to a tort claim in Connecticut. See id. This is especially true because

Gleason’s friends are just as acquainted with the facts of Billy’s disappearance (if not more

30

so) than Mrs. Smolinski and they know that she is not in a position to offer any “objective

fact” concerning the disappearance contrary to widely available public knowledge.

Further, even if the alleged statements were deemed defamatory, the statements

cannot support a claim for damages because Gleason suffered no resulting reputational

harm. Both Vrabel and Depallo continue to be friendly with Plaintiff and fully supported her

at trial. See Cweklinsky, 267 Conn at 217 (reputational damage is an essential element).

2. THE COURT ERRED BY FINDING DEFAMATION BASED ON A COMMENT TO AN UNIDENTIFIED GYM CUSTOMER

The trial court characterizes the only remaining statement it deemed defamatory as

follows: “She drove to her gym, the defendants were following her and Gleason says ‘a

guy came and said those people (referring to the Smolinksis) just followed you in and said

you were a murderer’.” (Mem. Dec. at 22.)

Fundamentally, the trial court failed to recognize that Gleason’s alleged statement is,

once again, directly undermined by her prior statements to police. In an August 5, 2005

report to Waterbury Police wherein Gleason was questioned about (and denied) tearing

down posters, she told police about a time when she “joined a gym and shortly after the

owner came up to her with a flier saying someone gave it to him and that person told him

that [Gleason] knew about it.” (App. at 11 (emphasis added).) Gleason “refused to identify”

anyone to police. (Id.) At trial, Gleason testified “I joined a gym they followed me; the guy

came in and said those people just followed you in and said you were a murderer.”

(11/29/2005 Tr. at 114:25-27.) The trial court’s decision to ignore Gleason’s statement to

police in favor of her trial testimony is troubling say the least.

Moreover, in crediting the statement, the court drew inferences totally unsupported

by the statement itself. It is impossible to determine from the record exactly who Gleason

31

claimed made the allegedly defamatory remark. Gleason was about to list other instances

where “they” made such statements when she was interrupted by counsel for Defendants’

hearsay objection (Id. at 115:1.) In response to the objection, the court indicated “I’ll let it in

but I don’t know if I can attach any weight to it. (Id. at 115:7-8.) Gleason gave no details

indicating precisely who allegedly made the statement to the unidentified man or who

“followed her” into the gym. (Id. at 114:25-27.) In prior testimony, when testifying about

“them” following her, Gleason stated “it would not only be Janet [sic] and Paula, but it would

be their family.” (11/29/2005 Tr. at 102:16-18.) Indeed, in characterizing the statement, the

court assumes (with no support) that Gleason is talking about the “Smolinskis.” The

Smolinskis (whoever that includes) are not defendants in this action. Accordingly, the trial

court erred by holding Defendants liable for a statement that cannot be specifically

attributed to either one of them. See Daley, 249 Conn. at 795-96.

The trial court also erred both in admitting the hearsay evidence and in relying on it

as one of two bases for finding defamation. The statement constitutes double-hearsay

because Gleason is reporting what the man in the gym said the “Smolinskis” said to him.

Section 8-7 of the Connecticut Code of Evidence states, “hearsay within hearsay is

admissible only if each part of the combined statements is independently admissible under

a hearsay exception.” The first level of hearsay, the party following Gleason (implied by

Gleason as the Smolinskis) to the man at the gym, would satisfied by Section 8-3(1)

(statement by a party opponent) if the statement was indeed made by a party. However,

that exception does not apply because it is impossible to tell who allegedly made the

statement. Additionally, there is no hearsay exception applicable to the second level of

hearsay; the man’s reporting the incident to Gleason. There is simply nothing that

32

prevented Gleason from asking the man for his name and listing him as a witness in her

case. The record contains no indication she made any such effort. Consequently, the trial

court should have excluded the evidence under Connecticut’s hearsay rule. See

Baughman, 56 Conn. App. at 38.

3. THE DEFAMATION CLAIM FAILS BECAUSE PLAINTIFF DID NOT SHOW THE ALLEGED STATEMENTS WERE FALSE

Truth is an absolute defense to defamation. See Goodrich v. Waterbury Republican-

Am., Inc., 188 Conn. 107, 112, (1982). Further, Plaintiff has the burden of proving the

alleged defamatory statements were false. See id. As discussed in Section C (supra at

27-28), the Record provides no evidence demonstrating the falsity of the statements.

F. THE TRIAL COURT ERRED IN AWARDING DAMAGES IN THE ABSENCE OF ANY PROOF OF DAMAGES

Whether the trial court erred in awarding damages is subject to a clear abuse of

discretion standard of review.  See Murphy v. Lord Thompson Manor, Inc., 105 Conn. App.

546, 557 (2008) (citing Barber v. Mulrooney, 61 Conn. App. 108, 111 (2000)).  An award for

damages will be upheld as long as it does not “shock the sense of justice.” Id.    

At the post-trial hearing in this matter, Plaintiff’s counsel made the stunning

admission that Plaintiff sought only “nominal damages” because Plaintiff did not “present

proof of actual damages.” (4/20/2011 Tr. at 4:19-24.) The admission was necessary

because Plaintiff failed to produce any evidence of damages in discovery or at trial. When

asked to provide documentation of any medical treatment that is in any way relevant to her

claimed emotional distress, Plaintiff indicated she had “none.” (App. 36 (Interrogatory No.

31); id. at 28 (Interrogatory No. 6).) When asked to present evidence of economic loss,

Plaintiff indicates only (1) attorney’s fees, and (2) “plaintiff’s relationship with her employer

33

has become strained.” (See Id. at 37-38.) In response to document requests seeking

evidence of lost wages, the Plaintiff indicates she is “not claiming an impairment of earning

capacity . . . .” (Id. at 38 (Document Request 2).) Defendants filed a motion to exclude all

evidence other than that contained within those (deficient) responses and Plaintiff should

have been barred from presenting any evidence not disclosed. (See Docket No. 131.)

To establish she is entitled to compensatory damages for the harm she claims she

suffered, Plaintiff was required to present evidence demonstrating (1) she incurred such

losses and (2) the losses proximately resulted from Defendants’ conduct. See Preston v.

Phelps Dodge Copper Products Co., 35 Conn. App. 850, 863 (1994). While Plaintiff is

entitled to seek nominal damages in the absence of such proof, such damages are

generally limited to $1. See Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 504

(1995). Punitive damage awards in Connecticut are designed to punish defendants for

behavior “wanton and malicious injury, evil motive and violence,” which must be

established by a preponderance of the evidence. See id.

The trial court puts forth no justification for awarding actual and punitive damages

absent Plaintiff’s admitted lack of proof for same. In ruling on the IIED claim, the court

simply fixes the amount at $32,000 without discussing how it arrived at that figure. (Mem.

Dec. at 32.) Similarly, for the defamation count, the court baldly fixes damages at $7,500.

(Id. at 34.) While the court cites law in support of the fact that it can award punitive

damages based on the IIED and defamation causes of action asserted, it refers to no

evidence in the Record supporting the award of punitive damages. (See id.) The trial

court’s damages finding is therefore unsupported by the Record and it should be reversed

by this Court.

34

V. CONCLUSION & STATEMENT OF RELIEF REQUESTED

Although the amount of money at issue in this appeal is relatively small, the issues

this appeal places before this Court are significant. Left to stand, the trial court’s verdict

threatens to stifle the efforts of countess families like the Smolinskis to find loved ones and

to motivate action on the part of police and public officials. For these reasons,

Appellants/Defendants Janice Smolinski and Paula Bell respectfully request that this

Honorable Court reverse the trial court’s judgment and remand the case for further

proceedings consistent with the Court’s opinion.

Respectfully submitted,

______________________________Michelle S. Cruz, Esquire #42842510 Columbus Blvd.Hartford, CT 06106(413) 210-8914AttyMichelleSCruz@yahoo.com

STEVEN J. KELLY (PRO HAC PENDING)ANNE T. MCKENNA (PRO HAC PENDING)SILVERMAN THOMPSON SLUTKIN WHITE, LLC201 North Charles Street, Suite 2600Baltimore, Maryland 21201Tel.: (410) 385-2225Fax: (410) 547-2432skelly@mdattorney.comamckenna@silvermckenna.com

Counsel for Appellants

35

REQUEST FOR ORAL ARGUMENT

Given the unique factual presentations discussed herein, Appellants respectfully

request oral argument in this appeal.

CERTIFICATE OF SERVICE PURSUANT TO PB § 62-7

I HEREBY CERTIFY, that on this 25th day of March, 2013 a copy of the forgoing Motion

was sent, first class, postage pre-paid and via electronic mail to:

John Williams, Esquire51 Elms StreetNew Haven, CT 06510(203) 562-9931(203) 776-9494 FAX

Honorable Thomas Coradino235 Church StreetNew Haven, CT 06510(203) 503 – 6800(203) 789-6424 FAX

______________________________Michelle S. Cruz, Esquire #428425

36

CERTIFICATE OF COMPLAINCE WITH PB § 67-2

The undersigned certifies that this Brief complies with all the applicable requirements of PB

Section 67-2.

______________________________Michelle S. Cruz, Esquire #428425

37

38