We consider today what redress, if any,should be afforded a public official called to defendhimself publicly against charges of wrongdoing andincompetence subsequently found by a jury to have beenbaseless, but some of which we conclude were groundedin probable cause as a matter of law. As a result ofthis determination, we set aside in part the verdictsof the jury awarding damages to the plaintiff forvexatious suit and for the intentional infliction ofemotional distress and we remand the case to the trialcourt for further proceedings.
The plaintiff, Frank DeLaurentis, former chairman ofthe New Haven parking authority commission, sued thedefendants, the city of New Haven and its then mayor,Biagio DiLieto, after the mayor first instituted andthen abandoned removal proceedings against him. His sixcount complaint raised three claims: an unspecifiedclaim that the trial court interpreted to be a claimunder article first, 10, of the Connecticutconstitution, for the "imposition of a stigma byofficial action" in violation of due process;malicious prosecution; and intentional inflictionof emotional distress. Each claim was framed intwo counts, one against the mayor, and the otheragainst the city.1 The trial court struck the
[220 Conn. 228]
two counts containing the constitutional claim, butthe other counts were tried to a jury, which renderedverdicts in favor of DeLaurentis.
In support of the verdicts, the jury could reasonablyhave found the following facts. DeLaurentis had servedon the New Haven parking authority commission since hewas first appointed in 1974. He was elected as itschairman in 1975. As did all other members of thecommission, DeLaurentis served without pay.
The New Haven parking authority (the authority) is amunicipal entity established by statute. 26 Spec. Acts339, No. 473 (1951). It is not subject to supervisionby the mayor, whose sole power over the authority ishis general power to appoint and discharge thecommissioners, subject to specific charter provisions.Appointments are at the mayor's discretion, but aremade for staggered five year terms. During that fiveyear term, commissioners may be removed only for causeand after a public hearing. New Haven City Charter, art.XXXIV, 220, 221.2 DeLaurentis had been reappointed to
[220 Conn. 229]
the authority in 1982 by the defendant, then mayor,Biagio DiLieto (the mayor).
The authority was responsible for the maintenance andoperation of the city parking garages and publicparking lots. 26 Spec. Acts 339, No. 473, 3, 10 (1951).An entirely separate agency, within the city government,the department of traffic and parking, was in charge oftraffic control, enforcement of parking ordinances, andother similar matters. New Haven City Charter, art. XLI,288, 289. The department of traffic and parking, and theparking authority, have entirely different budgets andsources of income. 26 Spec. Acts 339, No. 473, 4, 9 (1951).
The New Haven city charter and the authority bylawsprescribed that one traffic engineer was to be includedon the parking authority commission in addition to thefive commissioners. That position was occupied by JohnCavallero, who had also served as the authority'sexecutive director for many years, even beforeDeLaurentis' appointment. At the same time Cavalleroalso held the position of director of the department oftraffic and engineering, a salaried position paid fromcity funds. In addition to Cavallero and DeLaurentis,the parking authority members were Joseph Vegliante,Irvin Zeidenberg, Walter Piurek and Robert Schwartz.
[220 Conn. 230]
In early 1983, the mayor received reports that 430parking tickets had been found in an elevator shaft. Inresponse, he called police chief William Farrell, whoassigned detective John Prokop to investigate possibleimproprieties at the parking authority. The mayor knewProkop and subsequently appointed him to the zoningboard of appeals. In March, 1983, Prokop filed hisreport with the chief of police. Farrell forwarded thereport to the mayor, who reviewed it carefully.
The report, in the words of the mayor, "reads morelike the report of [a] management consultant than adetective." While much of the report contains criticismof the authority's record keeping and accountabilityprocedures, it also explicitly states that individualauthority employees who had previously been "caughtstealing" were suspended only briefly but never fired;that some of these employees were related to other publicofficials, such as the head of security; that certainindividual employees had overcharged for tickets andpocketed the difference; that a "sting" operationconducted between November, 1981, and February, 1983,indicated that more than 1000 tickets were missingfrom almost every month's receipts; that in December,1981, 2189 tickets, or 2.34 percent of the totalissued, were missing; and that in some cases employeeswere recorded as having received workers' compensationon the same days that they were actually on the joband being paid for working. The report alluded towritten memoranda and other evidence that formed thebasis for these factual conclusions. The mayor wasshocked by what the investigation had found and askedchief Farrell to send the report to the state'sattorney for New Haven county in June, 1983. Themayor neither demanded that Prokop produce hisevidence nor took any action to remove any of theofficials criticized in the report.
[220 Conn. 231]
The mayor gave a copy of the report to Cavallero, whotold the other commissioners that he would conduct hisown investigation before the report would be releasedto the public. When DeLaurentis, under pressure fromdetective Prokop, asked the mayor what was happeningabout the report, the mayor told him he was waiting tohear from the state's attorney. In fact, neitherCavallero, nor the state's attorney, nor the mayor,ever took any action based upon the Prokop report.
In August, 1983, Cavallero presented a reimbursementrequest for $1196, the cost of his trip to the Instituteof Transportation Engineers association meeting inLondon. DeLaurentis refused the request, on the groundthat the expense was unauthorized and should, ifanything, be charged against the city's, rather thanthe parking authority's, budget. When Cavallero presentedhis request to the other commissioners, DeLaurentiswent to the mayor. The mayor told DeLaurentis to sendCavallero to the city's controller, who would probablyrefuse to honor the reimbursement request. As a resultof DeLaurentis' opposition to this reimbursement, the"war" between Cavallero and DeLaurentis began in earnest.
The dispute between Cavallero and DeLaurentis ripenedinto a battle for control of the parking authority. InDecember, 1983, DeLaurentis proposed a resolutionadopted by the authority, that there would be no chargesto parking authority funds except for parking authoritybusiness. Prior to that date, the authority had noexplicit rules and regulations on the subject. Cavalleromaintained that as executive director, he had thediscretion to determine what constituted parkingauthority business. DeLaurentis insisted that thecommission or the chairman make that determination.According to the bylaws, however, Cavallero was anonvoting member of the commission. Cavallero asked
[220 Conn. 232]
the assistant corporation counsel assigned to theparking authority, Susan Goodshall, to research thevalidity of the bylaw making him a nonvoting member.She reported that state statutes forbade such arestriction. Cavallero, accordingly, decided that thebylaws should be changed so that he would have a voteon the commission. He was supported by commissionersSchwartz and Zeidenberg, but opposed by commissionersDeLaurentis, Piurek and Vegliante.
About the same time, DeLaurentis, acting on a tip fromthe authority's controller, discovered that unauthorizedor improper travel and entertainment expenditures werebeing paid from authority funds. He obtained thirty toforty vouchers for reimbursement from the administrativefund that either lacked the requisite number of signatures,were signed by the same official requesting reimbursement,or were unrelated to parking authority business. Somewere vouchers for substantial sums: $1300 for a trip toCalifornia and $1500 for a trip to Europe. Almost all werereimbursement requests made by Frank Erff, the generalmanager who worked under Cavallero, or by Cavallero. Allwere signed by Cavallero.
In January, 1984, DeLaurentis called the mayor andasked to meet with him to discuss the vouchers. When hearrived, he was referred to Joseph Carbone, the mayor'sadministrative aide. Carbone reviewed the vouchers anddeclared that because they were just for "junkets,"the reimbursements would be appropriate. In February,DeLaurentis returned with more vouchers, and metwith the mayor, Carbone, and Vincent Mauro, the townDemocratic party chairman and a long-time advisor ofthe mayor. The mayor brushed DeLaurentis' concernsaside, saying that because Carbone had alreadylooked at the vouchers, he had no reason to do so.All three demanded that DeLaurentis write a
[220 Conn. 233]
letter to the effect that the matter had been resolved,but DeLaurentis refused.
At about the same time, a political associate of themayor asked DeLaurentis to find a job for the mayor'sbrother, Tom DiLieto, who was unemployed. Tom DiLietowas put to work in the parking authority over theobjections of Cavallero, who described him as a"troublemaker." Almost immediately, Tom DiLietoreported to DeLaurentis that friends of Cavallero wereparking in the garages where Tom was working, withoutpaying for parking stickers. DeLaurentis reported thesecharges to the mayor.
In March, 1984, DeLaurentis was called to a meetingwith the mayor to establish a method of controllingunauthorized expenditures. When he arrived, he foundCavallero, Carbone, Mauro, and the mayor. They pressedhim to retract his accusations of improper expendituresand to accept bylaws drafted by Cavallero that wouldmake Cavallero a voting member of the commission, makehis term longer than the terms of the othercommissioners, and eliminate the chairman's and thecommission's power to control expenditures, leavingthose matters to the executive director, Cavallero.DeLaurentis refused, while agreeing that the bylawsshould be changed to improve revenue control. Four dayslater, DeLaurentis met again with Carbone and Cavallero,who demanded that he agree to the bylaws. Again,DeLaurentis refused. Finally, on April 19, 1984, Carbonerenewed the request.
At the commission meeting on April 26, 1984,Cavallero moved for adoption of the proposed bylaws.DeLaurentis objected to these bylaws and reiteratedthat as he read the charter, Cavallero was not entitledto a vote. When, upon the request of commissionerSchwartz, Goodshall, the assistant corporation counsel,presented her legal opinion that Cavallero was
[220 Conn. 234]
entitled to a vote, Vegliante and DeLaurentis accusedher of collusion with Schwartz and Cavallero anddemanded an outside attorney. The minutes of thismeeting, like all minutes of the meetings ofcommissions, were given to the mayor.
On May 3, 1984, the mayor received a letter fromcommissioners Schwartz and Zeidenberg, to which wereattached three written statements signed by Goodshall,Cavallero and Erff. Each stated that at a meeting onOctober 27, 1983, when candidates for the position ofparking authority controller were being considered,DeLaurentis had rejected two of the three candidatespresented, saying "No blacks, no women; we needsomebody good." The letter from Schwartz and Zeidenbergcontained additional accusations: DeLaurentis hadviolated the freedom of information laws, had made"reckless and irresponsible charges and accusations"against parking authority staff and others withoutproviding substantiation and over the "warnings" ofcommissioner Schwartz, and had rejected counsel'sadvice, called her biased and referred to a meetingwith the mayor as a "kangaroo court."
Carbone called DeLaurentis and gave him the SchwartzZeidenberg letter. He told DeLaurentis that the mayorwanted him to respond before Schwartz went public.DeLaurentis refused, saying only that the letter hadbeen instigated by Cavallero. Two weeks later, on May16, 1984, the mayor personally called DeLaurentis inand asked again for his response. DeLaurentis,indignant, said only: "My attorney answered it."
The mayor then referred the letters to the city'scounsel and asked him to draw up the summons that wassubsequently issued to DeLaurentis, which set forththe charges on which the removal proceeding was based.By May 23, news of the proposed charges had beenleaked to the media. On May 24, the mayor disclosed
[220 Conn. 235]
the charges in a public press release at the ParkPlaza hotel. The announcement was covered by alocal radio station and was heard by workers inthe parking authority offices. Shortly thereafter,DeLaurentis was served with the summons.
The summons, signed by the mayor, contained seven pagesof charges, accusing DeLaurentis of being "incompetent"and "unfaithful to the duties of his office," andsummoning him, by authority of the city charter, toappear before the mayor at a public hearing there to"show cause why he should not be removed" from office.It advised DeLaurentis that an arbitrator would beappointed "with power . . . to make findings of factswith respect to the statement of charges andrecommendations to me as Mayor, as to whether saidfindings justify or not your removal from said office."The mayor retained, however, the final authority toreview and accept or dismiss" both findings andrecommendations.
The summons then set forth four groups of chargesagainst DeLaurentis. The summons charged DeLaurentiswith making racist and sexist statements and applyingdiscriminatory standards in hiring employees of theparking authority; making "reckless and unauthenticatedaccusations and charges" about authority and citypersonnel "without confirming the truth of [his]charges, and when confronted with the falsity of saidaccusations and charges, [having] refused to withdraw[his] allegations"; violating the freedom of informationact, General Statutes 1-18 et seq., by initiatingand/or chairing executive sessions for improperpurposes or by inviting other city employees to thoseexecutive sessions; and having "disrupted the businessof the Authority by defying the Mayor's request that [he]settle disputes and put issues to rest," specifically,by blocking adoption of the revised bylaws.
[220 Conn. 236]
DeLaurentis retained an attorney, John R. Williams,his attorney in this case, to defend him at thehearing. The mayor attended the opening of the hearingand left shortly thereafter. Counsel for the mayorcalled Cavallero as the first witness. When the briefdirect examination of Cavallero had concluded, Williamsbegan his cross-examination, which continued for sixdays. At that point the hearing was postponed toaccommodate the vacation plans of Williams and thearbitrator. The hearing, set to resume in September,was postponed again because of trial commitments byboth counsel.
In the meantime, one of the commission members,Vegliante, resigned. The mayor appointed Clare DiMartinoin his place. That appointment shifted the balance ofpower on the commission in Cavallero's favor. The newbylaws were passed by a 3 — 2 vote, and DeLaurentiswas subsequently replaced as chairman by commissionerZeidenberg in November, 1984. The arbitrator resignedin April, 1985, for undetermined reasons. The mayordecided not to resume the hearings, and whenDeLaurentis' term of office expired in September, 1987,the mayor did not renew the appointment.
In May, 1984, before the removal proceeding, theplaintiff, Frank DeLaurentis, was seventy-four yearsold. He was happily married, a jolly, cheerful man wholeft his troubles at the office and sang at home. As asuccessful businessman for over fifty years, he waswell respected in the community and served on theboards of charitable and civic organizations.
As a result of the public accusations against him andthe hearing that followed, DeLaurentis became a changedman. He felt himself to be dishonored and disgraced.He lost his jolly, cheerful manner. He was unable tosleep. His doctor discovered that he had high bloodpressure and prescribed pills that he continued
[220 Conn. 237]
to use until the day of trial. He also receivedattorney Williams' bill for $10,585 less the $1000retainer already paid.
In October, 1985, DeLaurentis filed suit in federalcourt alleging that the mayor, Schwartz, Cavallero andthe city had violated 42 U.S.C. § 1983 by conspiring topunish DeLaurentis for asserting his first amendmentrights and to deprive him of his position ascommissioner and of his good name. On July 1, 1986,that court dismissed his federal claims for failure tostate a claim upon which relief might be granted, anddeclined to exercise pendent jurisdiction over theunspecified state common law claims raised by the factsin the complaint. The court therefore dismissed thependent claims for lack of federal jurisdiction.
One year after filing his federal complaint,DeLaurentis filed the complaint in this case againstthe city and the mayor, claiming unspecified violationsof the state constitution, malicious prosecution andintentional infliction of emotional distress. The firstclaim, set forth in two counts, was stricken by thetrial court, Hodgson, J. The court refused to strikethe other counts, however. It rejected the defendants'claims of absolute prosecutorial immunity and resjudicata based upon the dismissal of the federalaction, and it suggested, without deciding, that themayor's abandonment of the removal hearings wouldconstitute a "successful termination" of thatproceeding, the condition precedent to a maliciousprosecution claim. The remaining claims proceeded totrial on September 6, 1989.
After the testimony at trial had concluded, the court,Downey, J., included in its charge to the jury two rulingsof law. It instructed the jury that, as a matter of law,initiation of the removal proceeding constituted"litigation" or a "civil action" upon which a malicious
[220 Conn. 238]
prosecution action3 could be based. The court alsocharged that the abandonment of the proceedings satisfiedthe requirement that the underlying suit have been"terminated favorably" to the malicious prosecutionplaintiff. The court gave no charge on either qualifiedimmunity, which the defendants had never raised as adefense, or absolute immunity. The jury returned separateverdicts for the plaintiff as to liability on thevexatious suit and emotional distress claims. In athird verdict on damages, it awarded compensatorydamages of $425,000 and punitive damages of $35,000for both claims combined.
The defendants have appealed and seek a reversal ofthe judgment, claiming that: (1) the dismissal ofDeLaurentis' 1983 suit bars this action, which arisesout of the same events, under principles of res judicataor collateral estoppel; (2) the doctrine of prosecutorialimmunity shields the mayor from liability because hisinstitution of the removal proceeding is analogous tothe filing of an information in a criminal proceeding;(3) judgment on the vexatious suit claim must be renderedfor the defendants because (a) the removal proceeding,on which it is based, is administrative in nature andthus does not constitute a civil action, (b) theproceeding never terminated in favor of the plaintiff,and (c) the evidence established probable cause for
[220 Conn. 239]
instituting the proceeding as a matter of law; and (4)the evidence was insufficient to support the verdicton the claim of intentional infliction of emotionaldistress. The first issue we must consider is thedefendants' assertion that this suit is barred on thegrounds of res judicata or, in the alternative,collateral estoppel.
In Virgo v. Lyons, 209 Conn. 497, 551 A.2d 1243(1988), we held that the close relation between civilrights claims based upon "constitutional" torts andstate common law tort actions requires application ofthe doctrines of res judicata and collateral estoppelin order to prevent relitigation in state courts> ofmatters previously determined in a prior federal civilrights action. Res judicata, of course, bars a partyfrom "reasserting a claim that has already been decidedon the merits," while collateral estoppel precludes aparty from relitigating issues and facts actually andnecessarily determined in an earlier proceeding betweenthe same parties or those in privity with them. Id.,501. The trial court, Hodgson, J., properly concludedthat neither doctrine applies to this case.
The District Court had granted the defendants' motionto dismiss DeLaurentis' federal action pursuant toRule 12(b)(6) of the Federal Rules of Civil Procedure.4Such a motion is similar to our motion to
[220 Conn. 240]
strike; Practice Book 152; and permits the court todismiss the complaint for failure "to state a claimupon which relief can be granted." The court in rulingon a 12(b)(6) motion is required to accept as trueall facts pleaded in the complaint and to construe thecomplaint liberally. Miree v. DeKalb County, 433 U.S. 25,27 n. 2, 97 S.Ct. 2490, 53 L.Ed.2d 557 (1977); see2A J. Moore, Federal Practice (2d Ed.) 12.07 [2.-5].By definition, there can be no collateral estoppel"fact preclusion" based upon a successful 12(b)(6)motion, for no "facts" are either litigated or found.
Secondly, while it is true, as the defendants assert,that "an action for malicious prosecution may supportliability under 42 U.S.C. § 1983"; see Conway v. MountKisco, 750 F.2d 205, 214 (2d Cir. 1984); so that a federalcourt could reject the 1983 claim if it concluded thatthe underlying state law claim had not been pleadedadequately under state law, the federal district courtreached no such conclusion when it rejected DeLaurentis'1983 claims. Instead, it concluded that DeLaurentis hadnot adequately pleaded deprivation of a constitutionallyprotected interest. Thus, it never reached the legalsufficiency of the state law claims, if any, underlyinghis 1983 claims.
The District Court also did not reach the legalsufficiency of the complaint's independent state lawclaims. Having already dismissed the federal claim, thecourt simply declined to exercise pendent jurisdiction over
[220 Conn. 241]
the state law claims that remained. See United MineWorkers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d218 (1966). "When state law claims are pleaded, anddismissed without reaching their substantive merits,if the dismissal is based on a discretionary refusalto decide them, it does not bar a subsequent suit onthe same claims, either in the state court or inanother suit in the federal court." 1B J. Moore,Federal Practice 0.409 [1.-2], p. 311.
The defendants also claim that the doctrine ofprosecutorial immunity is applicable to the mayor'saction in instituting the removal proceeding and thusforeclosed DeLaurentis' suit. We disagree.
Prosecutorial immunity derives from the immunityattached to judicial proceedings. See Burns v. Reed,500 U.S. 478, 111 S.Ct. 1934, 1938, 114 L.Ed.2d 547(1991). "The judge on the bench must be free to administerthe law under the protection of the law, independentlyand freely, without fear of consequences. No suchindependence could exist if he were in daily apprehensionof having an action brought against him, and hisadministration of justice submitted to the opinion ofa jury." W. Prosser & W. Keeton, Torts (5th Ed.) 114,p. 816. Were he not immune, "`no man but a beggar or afool would be a judge'"; id., n. 8, quoting Miller v.Hope, 2 Shaw, Sc. App. Cas. 125 (1824); because inevery suit there is a loser eager to avenge his loss,and in every unsuccessful prosecution there is anaccused eager to exact a penalty for his ordeal. SeeForrester v. White, 484 U.S. 219, 225, 108 S.Ct. 538,98 L.Ed.2d 555 (1988); Mitchell v. Forsyth, 472 U.S. 511,521, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Butzv. Economou, 438 U.S. 478, 515, 98 S.Ct. 2894, 57L.Ed.2d 895 (1978); Bradley v. Fisher, 80 U.S. (13Wall.) 335, 348, 20 L.Ed. 646 (1872); Spring v.
[220 Conn. 242]
Constantino, 168 Conn. 563, 565, 362 A.2d 871 (1975);Phelps v. Sill, 1 Day 315, 329 (1804).
The mantle of judicial immunity covers not onlyjudges, but all adjuncts to the judicial process. Inparticular, prosecutors are immune from tort liabilityfor their conduct as participants in the judicialproceeding. See Burns v. Reed, supra, 1939; Imbler v.Pachtman, 424 U.S. 409, 422-24, 96 S.Ct. 984, 47 L.Ed.2d128 (1976); Spring v. Constantino, supra, 565; cf. 4Restatement (Second), Torts 895D, comment (c) (theimmunity extended to public officials such as aprosecuting attorney may not apply to his impropermotive). Prosecutorial immunity from suits for maliciousprosecution and defamation arose from the similar "concernthat harassment by unfounded litigation would cause adeflection of the prosecutor's energies from his publicduties, and the possibility that he would shade hisdecisions instead of exercising the independence ofjudgment required by his public trust." Imbler v.Pachtman, supra, 423. "`The key to the immunity . . .held to be protective to the prosecuting attorney isthat the acts, alleged to have been wrongful, werecommitted by the officer in the performance of anintegral part of the judicial process. Spring v.Constantino, supra, quoting Robichaud v. Ronan,351 F.2d 533, 536 (9th Cir. 1965).
"Absolute immunity, however, is `strong medicine. . . .'" Forrester v. White, supra, 230, quotingForrester v. White, 792 F.2d 647, 660 (7th Cir. 1986)(Posner, J., dissenting). Executive officers, andmunicipal officers generally, do not share the commonlaw absolute immunity except to the extent that theyare engaged in a "judicial" function. W. Prosser & W.Keeton, supra, 132, p. 1059; 4 Restatement (Second),Torts 895D (2). Otherwise, "official immunity" islimited to "qualified immunity" for performance ofdiscretionary acts, which may be defeated by a showing
[220 Conn. 243]
of malice. See, e.g., Evon v. Andrews, 211 Conn. 501,505, 559 A.2d 1131 (1989); cf. Malley v. Briggs,475 U.S. 335, 340, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)."The presumption is that qualified rather than absoluteimmunity is sufficient to protect government officialsin the exercise of their duties." Burns v. Reed,supra, 1939; see also Malley v. Briggs, supra; Harlowv. Fitzgerald, 457 U.S. 800, 807, 102 S.Ct. 2727, 73L.Ed.2d 396 (1982).
The mayor's role in summoning DeLaurentis torefute charges that would remove him from office issimilar to the role of a prosecutor in summoning anaccused to refute charges that would subject him toimprisonment. The differences between these two rolespersuade us, however, to reject the mayor's claim ofabsolute immunity from tort liability for his actions.
Like a prosecutor, the mayor was the only individualauthorized to institute removal proceedings and,in instituting such proceedings, he had a duty to protectthe public interest by removing from office anincompetent, corrupt or unfaithful public servant. Likea prosecutor, a mayor might be inhibited in performingthis important duty if he feared that his motiveswould be subjected to scrutiny by an impressionable
Unlike a prosecutor, however, a mayor who institutesthe removal proceeding prescribed by the New Havencity charter is also the judge in the case. While themayor appointed an independent arbitrator to makefindings and recommendations, he also, in accordancewith the city charter, reserved to himself the ultimateright to reject both findings and recommendationsand to decide on his own whether to remove DeLaurentis.5While many public agencies may wear the "two
[220 Conn. 244]
hats" of prosecutor and judge — the National LaborRelations Board and local boards of education beingtwo examples — it is unusual to find the same publicofficial wearing both hats.
In Butz v. Economou, supra, the United StatesSupreme Court held that agency officials who performfunctions analogous to those of a prosecutor are entitledto absolute immunity from suit for their decision toinitiate or continue a proceeding. In that case, officials fromthe Department of Agriculture had initiated a proceedingto revoke or suspend the plaintiff's company's commodityfutures registration. The plaintiff brought a civilrights action framed as a vexatious suit claim coupledwith a demand for damages caused by the officials'press release announcing their action. The facts werequite similar to the facts before us.
In reaching its decision, the United States SupremeCourt noted, however, that "federal administrative lawrequires that agency adjudication contain many of thesame safeguards as are available in the judicialprocess." Id., 513. Among these is the requirement that
[220 Conn. 245]
hearings be "conducted before a trier of fact insulatedfrom political influence." Id. Thus, the court concludedthat facts before it met both requirements for a grantof absolute prosecutorial immunity: (1) the need forimmunity for the process as a shield against thecrippling effect of unlimited vexatious suit actions; and (2)the presence of safeguards against prosecutorial abuse.Id., 511-12. By contrast, in Malley v. Briggs, supra,the United States Supreme Court rejected a policeofficer's claim that he should be absolutely immune fromliability for causing the plaintiff to be arrested bygiving a false affidavit to the judge who issued thewarrant. The court analogized the officer to a complainingwitness, rather than a prosecutor, and noted that atcommon law, complaining witnesses have never beenabsolutely immune, but have always been held liablefor malicious prosecution. Id., 340. Finally, the courtnoted that "[t]he absence of a . . . well-developed andpervasive mechanism for controlling police misconductweighs against allowing absolute immunity for theofficer." Id., 343 n. 5.
Comparing Butz to the case here illustrates that theexistence of other safeguards against the abuse ofofficial power is a necessary prerequisite to absoluteprosecutorial immunity. See V. Veeder, "Absolute Immunityin Defamation: Judicial Proceedings," 9 Colum. L. Rev.463, 470-71 (1909). In Butz, those safeguards wereprovided by federal administrative law requirements thatthe ultimate decision be reached by one other thanthe official instituting the proceeding. In a courtproceeding, the process itself is also available as a checkon prosecutorial abuses.6 Burns v. Reed, supra, 1936;
[220 Conn. 246]
see also Practice Book 747, 755, 887 and 986.7Moreover, "[t]he organized bar's development andenforcement of professional standards for prosecutorsalso lessens the danger that absolute immunity will
[220 Conn. 247]
become a shield for prosecutorial misconduct." Malleyv. Briggs, supra, 343 n. 5; see also Mitchell v. Forsyth,supra, 520-23. Judges adhere to similar professionalstandards. Cf. ABA Code of Judicial Conduct. Whilethere are few safeguards against judicial misconduct,judges cannot ordinarily initiate proceedings, makingit less likely that a judge can use the judicial processto harass and intimidate others.8
It can be argued that the political process is anadequate safeguard against a mayor's misconduct. SeeW. Prosser & W. Keeton, supra, 132, p. 1059; cf.Barr v. Mateo, 360 U.S. 564, 575-76, 79 S.Ct. 1335,3 L.Ed.2d 1434, reh. denied, 361 U.S. 855, 80 S.Ct.41, 4 L.Ed.2d 93 (1959). Section 220 of the New Havencity charter requires a public hearing prior to removalof an unclassified municipal official. Presumably, thepublic hearing requirement was intended to keep theprocess in the public eye as a way of preventing thearbitrary and politically motivated removal of officers.We have never, however, viewed exposure to politicalrepercussions as such a strong deterrent against theabuse of power as to entitle municipal officers to anabsolute immunity from civil liability, rather than aqualified immunity. See Stiebitz v. Mahoney, 144 Conn. 443,446-47, 134 A.2d 71 (1957); see also Gordon v.Bridgeport Housing Authority, 208 Conn. 161, 166,544 A.2d 1185 (1988); Shore v. Stonington, 187 Conn. 147,155, 444 A.2d 1379 (1982).9
[220 Conn. 248]
We conclude that, although the removal process mayresemble a judicial proceeding, it contains insufficientsafeguards against abuse to warrant absolute immunityfrom suit for the mayor, who instituted the process.
We now consider the defendant's claim that the trialcourt should have granted judgment in their favor onthe vexatious suit claim, notwithstanding the jury'sverdict in DeLaurentis' favor.
In Vandersluis v. Weil, 176 Conn. 353, 356,407 A.2d 982 (1978), we stated: "A vexatious suit is a type ofmalicious prosecution action, differing principally inthat it is based upon a prior civil action, whereas amalicious prosecution suit ordinarily implies a priorcriminal complaint. To establish either cause of action, it isnecessary to prove want of probable cause, malice anda termination of suit in the plaintiff's favor." Thedefendants first argue, therefore, that because theremoval proceeding in this case was administrative innature, constituting neither a "civil action" nor acriminal prosecution, institution of the proceeding cannotgive rise to liability. We disagree.
Our opinion in Vandersluis explores the meaning of"probable cause"; it does not delineate the scope of the"prior action" requirement for vexatious suit liability.Most courts> now agree with the Restatement (Second)of Torts, 680, which permits liability for vexatious"initiation, continuation or procurement of civilproceedings against another before an administrativeboard that has power to take action adversely affectingthe legally protected interests of the other."10
[220 Conn. 249]
On the facts of this case, we conclude that DeLaurentiswas not barred from bringing a vexatious suit actionagainst the mayor simply because it is based upon aproceeding that did not take place in a courtroom. Theremoval proceedings prescribed by the New Haven citycharter might have resulted in depriving DeLaurentisof his position as a parking authority commissioner.Whether or not his interest in retaining that unpaidposition is of constitutional magnitude, a claim rejectedby the federal district court, it is a "legally protectedinterest" in the sense that the city charter restricts themayor's right to deprive him of it. Compare Sansonev. Clifford, 219 Conn. 217, 230-31, 592 A.2d 931 (1991).
The defendants next contend that the mayor'sdecision not to revive the removal proceeding after itsextended recess did not constitute a "termination . . .
[220 Conn. 250]
in the plaintiff's favor"; Vandersluis v. Weil, supra,356; which, they contend, is required to establishliability for vexatious suit.
Courts> have taken three approaches to the"termination" requirement. The first, and most rigid, requiresthat the action have gone to judgment resulting in averdict of acquittal, in the criminal context, or noliability, in the civil context.11 The second permits avexatious suit action even if the underlying action wasmerely withdrawn so long as the plaintiff candemonstrate that the withdrawal took place undercircumstances creating an inference that the plaintiff wasinnocent, in the criminal context, or not liable, in thecivil context.12 The third approach, while nominallyadhering to the "favorable termination" requirement,in the sense that any outcome other than a finding ofguilt or liability is favorable to the accused party,permits a malicious prosecution or vexatious suit actionwhenever the underlying proceeding was abandonedor withdrawn without consideration, that is, withdrawnwithout either a plea bargain or a settlement favoringthe party originating the action.13
[220 Conn. 251]
Notwithstanding our recitation of the term"favorable termination" (emphasis added) in Vandersluisand a few other cases; see, e.g., Mozzochi v. Beck,204 Conn. 490, 495 n. 1, 529 A.2d 171 (1987); MerrillLynch, Pierce, Fenner & Smith, Inc. v. Cole, 189 Conn. 518,538, 457 A.2d 656 (1983); McHale v. W.B.S. Corporation,187 Conn. 444, 447, 446 A.2d 815 (1982); Frisbiev. Morris, 75 Conn. 637, 639, 55 A. 9 (1903); we havenever required a plaintiff in a vexatious suit action toprove a favorable termination either by pointing to anadjudication on the merits in his favor or by showingaffirmatively that the circumstances of the terminationindicated his innocence or nonliability, so long as theproceeding has terminated without consideration. SeeZenik v. O'Brien, 137 Conn. 592, 595, 79 A.2d 769(1951); See v. Gosselin, 133 Conn. 158, 160,48 A.2d 560 (1946); Thompson v. Beacon Valley Rubber Co.,56 Conn. 493, 499, 16 A. 554 (1888); Wall v. Toomey,52 Conn. 35, 39 (1884); Brown v. Randall, 36 Conn. 56(1869); Colli v. Kamins, 39 Conn. Sup. 75, 77,468 A.2d 295 (1983); 1 Z. Swift, Digest of the Laws of the Stateof Connecticut p. 497. Instead, we have always viewedthe issue of whether the prior outcome was "favorable"to the plaintiff as relevant to the issue of probablecause. Brown v. Randall, supra, 62.
Two concerns underlie the requirement of "successfultermination." The first is the danger of inconsistentjudgments if defendants use a vexatious suit ormalicious prosecution action as a means of making acollateral attack on the judgment against them or asa counterattack to an ongoing proceeding. Clewley v.Brown Thomson, Inc., 120 Conn. 440, 444, 181 A. 531(1935); see also Paramount General Hospital Co. v. Jay,
[220 Conn. 252]
213 Cal.App.3d 360, 261 Cal.Rptr. 723 (1989); Marchv. Cacioppo, 37 Ill. App.2d 235, 246, 185 N.E.2d 397(1962); 52 Am. Jur.2d, Malicious Prosecution 29. Thesecond is the unspoken distaste for rewarding aconvicted felon or otherwise "guilty" party with damagesin the event that the party who instituted theproceeding did not at that time have probable cause to do so.See, e.g., Dukes v. New York, 743 F. Sup. 1037(S.D.N.Y. 1990); Katz v. Morgenthau, 709 F. Sup. 1219,1232 (S.D.N.Y.), aff'd in part and rev'd in part, 892 F.2d 20(2d Cir. 1989); Ruff v. Eckerds Drugs, Inc., 265 S.C. 563, 567,220 S.E.2d 649 (1975). Thus, an underlying convictionis recognized in this state as conclusive proof that therewas probable cause for the charges unless it is proventhat the conviction was obtained through fraud, duressor other unlawful means. See, e.g., Merrill Lynch,Pierce, Fenner & Smith, Inc. v. Cole, supra; McMahonv. Florio, 147 Conn. 704, 707, 166 A.2d 204 (1960).
In the case before us, it is undisputed that the mayorabandoned the termination proceeding without anynegotiation with DeLaurentis and never reopened it.Moreover, DeLaurentis was no longer a parkingcommissioner at the time he filed his revised complaintagainst the city, having served out his term. He wasnever found "guilty" of any of the charges against him.We conclude that neither concern underlying the"successful termination" requirement is implicated bypermitting DeLaurentis to pursue a vexatious suit actionagainst the defendants.
The third requirement for a vexatious suit action isthat the defendant's claims lacked "probable cause."Whether the facts are sufficient to establish the lackof probable cause is a question ultimately to bedetermined by the court, but when the facts themselves aredisputed, the court may submit the issue of probable
[220 Conn. 253]
cause in the first instance to a jury as a mixedquestion of fact and law. Cosgrove Development Co. v.Cafferty, 179 Conn. 670, 671, 427 A.2d 841 (1980); see3 Restatement (Second), Torts 681B.
The defendants claim that the trial court should haveset aside the jury verdict because the letters receivedby the mayor on May 3, 1984, provided him withprobable cause to institute the proceeding as a matter oflaw. DeLaurentis argues that the trial court's refusal todo so was proper because the mayor should have undertakenfurther investigation before instituting the proceedingsand that in any event, he actually knew thatsome of the charges made were not only unfounded,but false.
These opposing contentions raise this question: forwhat must the defendant have lacked probable cause?For filing suit? For asserting a particular cause ofaction? For alleging particular facts? If a civil plaintiffhad probable cause to assert one cause of action butjoined to that claim ten others that he knew to begroundless, the victim called upon to defend himselfagainst the ten groundless claims would not suffer lessbecause one good claim was included among them. Itis common practice, however, for a plaintiff to allegealternative factual theories when he cannot be surewhich version most accurately reflects the events thattranspired. Each time a civil plaintiff responds to arequest to revise, or amends his complaint after realizingone part of his claim is baseless, must he fearliability for vexatious suit?
"[A]s stated by Lord Mansfield in Reed v. Taylor, 128Eng. Rep. 472, 4 Taunt. 516 (CP 1812): `. . . [I]f a manprefers an indictment containing several charges,whereof for some there is, and for others there is notprobable cause,' this will `support a count for preferring
[220 Conn. 254]
that indictment without probable cause.'" Gowinv. Heider, 237 Or. 266, 281, 386 P.2d 1 (1964); see alsoJanetka v. Dabe, 892 F.2d 187 (2d Cir. 1989); Graebev. Falcetta, 726 F. Sup. 36 (E.D.N.Y. 1989); Singletonv. Perry, 45 Cal.2d 489, 497, 289 P.2d 794 (1955);Boogher v. Bryant, 86 Mo. 42 (1885); Cuthrell v. Zayreof Virginia, Inc., 214 Va. 427, 428, 201 S.E.2d 779(1974). We agree with those courts> that have appliedthe same proposition in the civil context. SeeParamount General Hospital Co. v. Jay, supra; March v.Cacioppo, supra, 247; Hales v. Raines, 162 Mo. App. 46,60, 141 S.W. 917 (1911).
In the civil context, what constitutes a separate"charge" for which probable cause is required is notalways obvious.14 Two decisions involving underlyingcriminal prosecutions are, however, enlightening. InJanetka v. Dabe, supra, the plaintiff in a maliciousprosecution and civil rights action had been acquittedof resisting arrest but convicted of disorderly conduct.Reversing the trial court's dismissal of the plaintiff'smalicious prosecution claim, the court noted that he hadbeen "charged with two distinct offenses involvingdistinct allegations. The disorderly conduct chargeinvolved Janetka's actions directed at the unidentifiedhispanic man; the resisting arrest charge involved hisactions directed at the officers' attempts to arrest him.
[220 Conn. 255]
The elements of each charge are different; neithercharge is a lesser included offense of the other." Id.,190. In Singleton v. Perry, supra, the court sustainedthe jury's verdict finding probable cause for a chargein the criminal complaint that the plaintiff had stolenthe complainant's auto, but awarding damages becausethere was no probable cause for the accusation that shehad stolen his rings, luggage and other personal itemsthat she claimed he had given her.
The charges against DeLaurentis were divided intofour groups, each containing factual allegations withrespect to different times, occurrences and actions.Each group of allegations presented essentially oneunified assertion, however: (1) making racist statementsand advocating discriminatory employment practices;(2) violating the Freedom of Information Act (FOIA)by misusing executive sessions; (3) making reckless,unauthenticated and false accusations against othersand refusing to retract them when "confronted with[their] falsity"; and (4) defying the mayor's request toretract the accusations, settle the parking authoritydisputes and accept the proposed bylaws. Each group ofallegations amounts to a separate "charge" to whichDeLaurentis was required to respond.15
In its charge to the jury, the trial court instructedthe jurors that they could not find for the plaintiffunless they found that the mayor lacked probable causefor all of the charges. In reaching the verdict, therefore, the jury presumably found no probable cause for
[220 Conn. 256]
any of the charges. We conclude, as a matter of law,that there was probable cause for the first two charges.We agree, however, that the evidence is adequate tosupport the jury's finding that the mayor lackedprobable cause for the other two. Because those chargesare logically severable, we conclude that the jury wasfree to impose liability against the mayor for thedamages those charges caused DeLaurentis.16
For purposes of a vexatious suit action, "[t]he legalidea of probable cause is a bona fide belief in theexistence of the facts essential under the law for the actionand such as would warrant a man of ordinary caution,prudence and judgment, under the circumstances, inentertaining it." Wall v. Toomey, 52 Conn. 35, 36(1884); accord Ledgebrook Condominium Assn., Inc. v.Lusk Corporation, 172 Conn. 577, 584, 376 A.2d 60(1977). "Probable cause is the knowledge of facts,actual or apparent, strong enough to justify areasonable man in the belief that he has lawful grounds forprosecuting the defendant in the manner complainedof." Shea v. Berry, 93 Conn. 475, 477, 106 A. 761(1919). Thus, in the context of a vexatious suit action,the defendant lacks probable cause if he lacks areasonable, good faith belief in the facts alleged and thevalidity of the claim asserted. See Albertson v. Raboff,46 Cal.2d 375, 382, 295 P.2d 405 (1966); 3Restatement (Second), Torts 662, comment (c), 675,comment (d); cf. Franks v. Delaware, 438 U.S. 154, 98
[220 Conn. 257]
S.Ct. 2674, 57 L.Ed.2d 667 (1978) (proof that anaffiant included a false or reckless statement on awarrant affidavit may void the warrant); compare State v.Hamilton, 214 Conn. 692, 707 n. 6, 573 A.2d 1197,vacated on other grounds, 498 U.S. 933, 111 S.Ct. 334,112 L.Ed.2d 299 (1990) (the test for probable causeis objective; an arresting or investigating officer's goodfaith is insufficient).
On May 3, 1984, the mayor received four writtenstatements accusing DeLaurentis of making racist andsexist remarks concerning hiring practices of the parkingauthority. The Schwartz-Zeidenberg letter contained,in addition to those accusations, most of the allegationsincluded in the other charges against DeLaurentis.After receiving these statements, the mayor's assistantand then the mayor himself asked DeLaurentis torespond, but he refused. Confronted by such accusations,made by presumably reliable public officials andunanswered by DeLaurentis, the mayor unquestionablyhad probable cause to institute the removal proceedingunless the evidence indicates that he was aware thatthe allegations were unfounded.
DeLaurentis urges that the jury could have concludedthat the mayor was required to undertake a furtherinvestigation when he knew that the accusers wereDeLaurentis' opponents on the parking authority;was aware of the power struggle in which they wereinvolved; had seen the minutes of the meeting inquestion, which were silent as to the remarks DeLaurentiswas accused of making; knew that the meeting hadbeen attended by a newspaper reporter as well as bya confidant of the mayor's, neither of whom hadreported to him that DeLaurentis had made theimproper remarks; and must have been aware that themeeting at which DeLaurentis was claimed to have
[220 Conn. 258]
made the remarks had taken place in October, 1983,six months earlier than the letters that he receivedin May, 1984. He points to statements signed bycommissioners Vegliante, Piurek and development directorJohn Sawyer to the effect that they had not heardDeLaurentis make the remarks, which were introducedinto evidence to prove what the mayor would haveheard had he asked others present at the Octobermeeting what DeLaurentis had said.
"If a person who has received information tendingto show the commission of a crime fails to make suchfurther inquiry or investigation as an ordinarilyprudent man would have made in the same circumstancesbefore instituting a proceeding, such failure rendershim liable for proceeding without probable cause. Onemay not rely without further investigation onrepresentations of another where the information received issuch as to put an ordinarily prudent and cautiousperson on inquiry, or, it has been held, where he has nopersonal knowledge of the truth of the representations.So, also, there is authority to the effect that toproceed without inquiry would be to act without probablecause where the information is readily obtainable, orwhere the accused himself points out sources ofinformation that would establish his innocence." 52Am. Jur.2d, Malicious Prosecution 54; see also Zitkovv. Zaleski, 102 Conn. 439, 446, 128 A. 779 (1925); Flamv. Lee, 116 Iowa 289, 298, 90 N.W. 70 (1902); compareBabb v. Minder, 806 F.2d 749 (7th Cir. 1986), and Jonesv. Britt Airways, Inc., 622 F. Sup. 389, 392-93 (N.D.Ill. 1985) (failure to investigate may be evidence ofmalice sufficient to overcome qualified privilege).
The defendants correctly point out that the mayordid make inquiry: he twice confronted DeLaurentiswith the accusations and received no response.17 While
[220 Conn. 259]
it is possible that the mayor never believed theaccusations regarding the racist and sexist remarks weretruthful and retained that belief even after DeLaurentis'failure to respond, there is no evidence from whichsuch a state of mind can be inferred. The mayor's denialat trial of any such belief cannot form the basis for suchan inference. "`Facts cannot be established by notbelieving witnesses who deny them.'" State v.Poplowski, 104 Conn. 493, 495, 133 A. 671 (1926); seealso State v. Mayell, 163 Conn. 419, 426-27,311 A.2d 60 (1972).18 Given that public officials in these timeshave a duty to eliminate discriminatory hiring practices,we conclude that when information concerning themis received from presumably reliable sources, there isprobable cause to institute a removal proceeding suchas the one established by the New Haven city charter.
DeLaurentis was also charged with repeated violationsof the FOIA by either initiating or chairingexecutive sessions of the parking authority during whichprohibited subjects were discussed or at which nonmembers were permitted to be present. The Schwartz-Zeidenbergletter and the minutes of those sessions providesufficient evidence to support these accusations.It is significant that DeLaurentis never denied them.
The issue raised, however, is not whether the mayorhad reasonable grounds to believe that the facts alleged
[220 Conn. 260]
were true, but whether he had cause to believe alsothat the facts alleged would constitute grounds forDeLaurentis' discharge. DeLaurentis appears to claimthat FOIA violations constituted inadequate grounds todischarge him when others, including the mayor himself,participated in the violations without suffering the samepenalty. We agree that it is incongruous to allow oneto charge another with the same wrongful act that healso has committed. Probable cause does not, however,require a blameless accuser. It is the rare prosecutorof traffic violations who has never himself committed suchan offense. Under these circumstances, the FOIAviolations alone may not have been a sufficient basis forremoval of DeLaurentis. It was not improper to includethem with the other charges, however, because therewas probable cause to believe that they had occurred,and they added some weight to the basic claim thatDeLaurentis should be removed for incompetence. Thedecision to remove him might properly have been basedon the cumulative import of all of the charges.
With respect to the charge of making recklessaccusations, however, there was sufficient evidence fromwhich the jury could have concluded that the mayoractually knew the accusations were false.
The summons alleges, in pertinent part: "You havemade reckless and unauthenticated accusations andcharges about Parking Authority employees, otherAuthority members, and officers of the City, withoutconfirming the truth of your charges, and whenconfronted with the falsity of said accusations and charges,have refused to withdraw your allegations." It thenrecites particular charges made by DeLaurentis asbeing "untrue." Noteworthy is the allegation that"[y]ou have stated that `the Temple Street Garagecashiers were stealing' and that the ExecutiveDirector should `fire them all,' which charge is untrue. When
[220 Conn. 261]
reminded that recent investigations of Authoritypractices found no substantial improprieties which had notpreviously been addressed by the Authority, you havefailed to withdraw your charges and, in fact, havecontinued to make vague and unsubstantiated chargesregarding employee dishonesty." Other assertionsmade by DeLaurentis are characterized as "untrue,""false," "unsubstantiated" or contradicted by "anindependent investigation by the New Haven PoliceDepartment which found no substantial improprieties whichhad not previously been addressed by Authoritymanagement. "
The jury could reasonably have found, however, thatprior to issuing this charge, the mayor had seen boththe Prokop report and the vouchers DeLaurentis haduncovered. Both tended to substantiate DeLaurentis'accusations. Indeed, the mayor himself admitted thatthe Prokop report contained findings that suggesteda pattern of stealing by parking authority employees.The mayor's refusal to review the vouchers DeLaurentisoffered as evidence amounts to the sort of "wilfulblindness" that exceeds a simple failure to investigate.The jury could also have concluded that the mayor knewthat his own brother had witnessed misuse of parkinglot stickers by friends of Cavallero. This evidence wassufficient for the jury to conclude that a reasonableperson would not have had probable cause to chargeDeLaurentis with making false and unsubstantiatedaccusations.
Finally, DeLaurentis was accused of defying themayor and blocking adoption of the proposed bylaws.DeLaurentis conceded that he defied the mayor's orderthat he withdraw his accusations, accept the bylaws,and make peace with the other commissioners. As amatter of law, however, his actions in this respect couldnot have been grounds for his discharge because, as
[220 Conn. 262]
the mayor admitted, the parking authority is aseparate entity not subject to the mayor's control.Knowing this, as the mayor admittedly did, the mayor couldnot reasonably have believed that DeLaurentis' defiancewas a lawful basis for discharging him as "incompetent"or being "unfaithful to the duties of his office."
We conclude that there was sufficient evidence fromwhich the jury could find that the charges involvingreckless accusations and defiance of the mayor lackedprobable cause, but insufficient evidence from whichthe jury could find that the charges concerningdiscriminatory remarks and FOIA violations lackedprobable cause. We believe that these charges are logicallyseverable and that DeLaurentis established the city'sand the mayor's liability for the injury suffered by beingsummoned to defend himself against those charges forwhich probable cause was lacking.19
The defendants next challenge the trial court'srefusal to direct a verdict, or to set aside the jury's
[220 Conn. 263]
verdict, on the plaintiff's intentional infliction of emotionaldistress claim. Specifically, the defendants argue thatthe mayor's conduct did not constitute "extreme andoutrageous" conduct as a matter of law. While weagree that the jury's verdict on that claim must be setaside, we do so for a reason that is different from thoseoffered by the defendants. We conclude that statementscontained in the summons and statement of chargesare absolutely privileged at common law and that nocause of action for intentional infliction of emotionaldistress based on those statements can lie.20
The summons and statement of charges with whichDeLaurentis was served are analogous to a summonsand complaint in a civil suit or an information in acriminal case.21 The common law protects allegations in acomplaint with an "absolute privilege."22 See Briscov. LaHue, 460 U.S. 325, 330-31, 334-35, 103 S.Ct.1108, 75 L.Ed.2d 96 (1983); Petyan v. Ellis, 200 Conn. 243,245-47, 250, 510 A.2d 1337 (1986); Blakeslee &Sons v. Carroll, 64 Conn. 223, 232, 29 A. 473 (1894);2 F. Harper, F. James & O. Gray, Torts (2d Ed.) 5.22,pp. 189-90; W. Prosser & W. Keeton, Torts (5th Ed.)114(1), p. 817; V. Veeder, "Absolute Immunity inDefamation: Judicial Proceedings," 9 Colum. L. Rev.463, 477-79 (1909); but see Mauney v. Millar, 142 Ark. 500,502-503, 219 S.W. 1032 (1920); Barnett v. Loud,226 Mass. 447, 115 N.E. 767 (1917) (absolute privilegedoes not extend to statements irrelevant to the
[220 Conn. 264]
subject of the suit). Thus, whether or not a party is liablefor "vexatious suit" in bringing an unfounded andmalicious action, he is not liable for the words used in thepleadings and documents used to prosecute the suit.
The common law privilege for statements is similarto the absolute immunity afforded to participants ina judicial proceeding. Witnesses and parties to judicialproceedings must be permitted to speak freely,without subjecting their statements and intentions to laterscrutiny by an indignant jury, if the judicial process isto function. Petyan v. Ellis, supra, 246. While no civilremedies can guard against lies, the oath and the fearof being charged with perjury are adequate to warrantan absolute privilege for a witness' statements.23Parties or their counsel who behave outrageously aresubject to punishment for contempt of the court. Partiesand their counsel who abuse the process by bringingunfounded actions for personal motives are subject tocivil liability for vexatious suit or abuse of process. SeeMozzochi v. Beck, 204 Conn. 490, 494-95, 529 A.2d 171(1987); see also Albertson v. Raboff, 46 Cal.2d 375, 382,295 P.2d 405 (1956) (distinguishing libel actions andvexatious suit actions based upon allegations in acomplaint). Their statements in pleadings or in court,however, cannot independently be made the basis for anaction in libel; Mozzochi v. Beck, supra, 494-95; or, wenow hold, intentional infliction of emotional distress.
Because the summons and statement of charges inthis case was the functional equivalent of a civil
[220 Conn. 265]
complaint or pleading, we conclude that the particularstatements contained within it are absolutely privileged andcannot, in and of themselves, support an action forintentional infliction of emotional distress any morethan they could have supported an action for libel.24Cf. Hogen v. Valley Hospital, 147 Cal.App.3d 119,195 Cal.Rptr. 5 (1983); Rainier's Dairies v. Raritan ValleyFarms, Inc., 19 N.J. 552, 563, 117 A.2d 889 (1955). Asdiscussed in Part III of this opinion, an appropriatesafeguard is available in the form of a vexatious suitaction for unfounded charges.
DeLaurentis also claims that the mayor's conduct in"publicizing his false accusations" by way of a pressconference and news broadcast was "particularlypainful and humiliating to Mr. DeLaurentis."DeLaurentis has produced no evidence, however, that the mayormade any public statements about him other than hispublic reading of the charges, which was broadcast bya local radio station. There is absolutely nothing in therecord, which includes many newspaper articles offeredby the plaintiff, to indicate that the mayor made anycomments of his own.
In Barr v. Mateo, supra, the United States SupremeCourt immunized from defamation liability an executiveofficer who issued a public statement, not containedin a pleading, discussing the impending discharge ofa subordinate official. By contrast, many courts> have
[220 Conn. 266]
refused to apply the absolute privilege for statementscontained in pleadings when copies of the pleadings arecirculated to parties unconnected with the judicialproceeding, including the media. Asay v. Hallmark Cards,Inc., 594 F.2d 692, 697 (8th Cir. 1979) (Iowa law); Abbottv. United Venture Capital, Inc., 718 F. Sup. 823, 828(D. Nev. 1988) (Nevada law); Williams v. Williams,23 N.Y.2d 592, 599, 246 N.E.2d 333, 298 N.Y.S.2d 473(1969) (New York law). Where the subject of thepleadings is the conduct of a public official, the public is,however, inevitably connected with the proceeding. Thus,without choosing between these two positions, webelieve that the absolute privilege afforded statementsin pleadings protects a mayor from liability for theinfliction of emotional distress caused when he repeatsto the media statements contained in a formal summonsinstituting a proceeding for the removal of a publicofficial after a public hearing.
Our conclusion that neither the statement of thecharges in the summons nor the mayor's recital of themto the media can provide any basis for the claim ofextreme emotional distress leaves as the only possibleground for such a claim the mayor's action ininstituting a vexatious suit by including in the summons twocharges that the jury reasonably found to have beenbaseless. Arguably, the jury might have based ajudgment of intentional infliction of emotional distress onthat vexatious suit if the other requirements for anemotional distress action were met.
"`In order for the plaintiff to prevail in a case forliability under . . . [the intentional infliction ofemotional distress], four elements must be established. Itmust be shown: (1) that the actor intended to inflictemotional distress; or that he knew or should haveknown that emotional distress was a likely result of hisconduct; (2) that the conduct was extreme and outrageous;
[220 Conn. 267]
(3) that the defendant's conduct was the causeof the plaintiff's distress; and (4) that the emotionaldistress sustained by the plaintiff was severe. Hiers v.Cohen, 31 Conn. Sup. 305, 329 A.2d 609 (1973); 1Restatement (Second), Torts 46.'" Petyan v. Ellissupra, 253, quoting Murray v. Bridgeport Hospital,40 Conn. Sup. 56, 62, 480 A.2d 610 (1984).25 Liabilityfor intentional infliction of emotional distress requires"`conduct exceeding all bounds usually tolerated bydecent society, of a nature which is especially calculatedto cause, and does cause, mental distress of a veryserious kind.'" Petyan v. Ellis, supra, 254 n. 5, quotingW. Prosser & W. Keeton, Torts (5th Ed.) 12, p. 60.Thus, "[i]t is the intent to cause injury that is the gravamenof the tort"; Hustler Magazine v. Falwell, 485 U.S. 46,53, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988); whereaslack of probable cause is the gravamen of the tort ofvexatious suit. See Vandersluis v. Weil, supra, 356.
In this case, however, we need not decide whetherthe plaintiff's evidence satisfies all the requirementsfor a recovery for intentional infliction of emotionaldistress. As the only basis for such a claim is thevexatious suit with respect to the two charges for whichprobable cause was lacking, our determination that thedefendants' liability for bringing those charges has beenestablished makes any additional theory supporting theimposition of liability for the same act entirelysuperfluous. The plaintiff cannot recover any greaterdamages if liability can also be based on extreme emotionaldistress.26 Since the only viable basis for that claim is
[220 Conn. 268]
the vexatious suit, the damages resulting therefromwould not be enhanced if we were to conclude thatliability may also be predicated thereon.
Our remand requires only a hearing in damages onthe vexatious suit count during which DeLaurentismust prove the damages attributable to the vexatiouscharges against him. Ordinarily the reversal of a juryverdict requires a new trial of all the issues in the case."Where the error as to one issue . . . is separablefrom the general issues, the new trial may be limitedto the error found, provided that such qualification orlimitation does not work injustice to the other issuesor the case as a whole." Murray v. Krenz, 94 Conn. 503,507, 109 A. 859 (1920). "But where the retrial ofthe single issue may affect the other issues to theprejudice of either party, the court will not exercise itsdiscretion in limiting the new trial but will grant it denovo." (Emphasis in original.) Id., 508. We have appliedthis principle in ordering retrials on both liability anddamages when there was reason to believe that averdict, so low in relation to the injuries sustained in anegligence case that reversal is warranted, may haveresulted from a compromise reached by the jurors onthe issue of liability. Fazio v. Brown, 209 Conn. 450,457, 551 A.2d 1227 (1988); Malmberg v. Lopez,208 Conn. 675, 682-83, 546 A.2d 264 (1988); Johnson v.Franklin, 112 Conn. 228, 232, 152 A. 64 (1930); Murrayv. Krenz, supra. The verdict in the present case for$425,000 of compensatory damages and $35,000 ofpunitive damages does not indicate any disagreementamong the jurors as to liability. Furthermore, havingbeen instructed by the trial court that liability forvexatious suit could not be found unless all of the charges
[220 Conn. 269]
in the summons lacked probable cause, the jurors mustbe presumed to have evaluated each of them independentlyand to have concluded that all of them were baseless.There is no reason, therefore, to suspect that thejury's finding of liability with respect to the twovexatious suit claims that are adequately supported byprobable cause would not have been made if evidenceconcerning the two unsupported charges had not beenpresented. Such evidence may well have affected theaward of damages, upon which we order a retrial, butcannot reasonably be deemed to have affected thedetermination of liability with respect to the twoviable charges.
Some courts> have held that it is the defendant in avexatious suit who must apportion the damages whenhis vexatious charges were joined with meritoriouscharges, because it is the mingling of the two thatmakes apportionment difficult. See, e.g., Singleton v.Perry, supra, 498; Boogher v. Bryant, supra, 50-51.We believe, however, that the plaintiff in a vexatioussuit action, like any other plaintiff, has the burden ofproving damages. Compare Connecticut BuildingWrecking Co. v. Carothers, 218 Conn. 580, 608-609,590 A.2d 447 (1991) (where joint tortfeasors cause harmto the plaintiff, they, not the plaintiff, have the burdenof apportioning the liability for that harm amongthem). The plaintiff need not, however, "divide his damagesbetween the [accusations] with delicate nicety."Boogher v. Bryant, supra, 50.
We need not address at this time the defendants'claim that the court should have granted a remittituras to the compensatory damages awarded, becausethose damages will have to be redetermined.27 The jury
[220 Conn. 270]
will also have a new opportunity to decide whetherto award punitive damages.
We affirm the judgment based on the verdictimposing liability for a vexatious suit to the extentthat it is based upon the inclusion of charges againstDeLaurentis of having made reckless accusations againstothers and having refused to comply with the mayor'sorders. We remand the case for a hearing to ascertainthe damages resulting from the wrongful inclusion ofthose charges as a basis for the removal proceeding.
We reverse the judgment based on the verdictimposing liability for intentional infliction of emotionaldistress because of the failure to confine its basis to theinclusion of the two charges upon which we havesustained the verdict of liability for vexatious suit. Nofurther proceedings on this claim are necessary.
The verdict for damages must be set aside becauseof the failure to limit the award to those damagesresulting from the inclusion of the two charges for whichthere was no probable cause.
The judgment is reversed in part and the case isremanded for further proceedings consistent with thisopinion.
In this opinion the other justices concurred.
1. The counts against the city alleged that "[a]t all timesrelevant to this action, defendant DiLieto acted by and on behalf ofthe defendant City of New Haven" and that DeLaurentis had given thecity clerk timely notice of his claim against the city. The city'sliability for the mayor's acts has not been challenged by the city,either before the trial court or before this court.
2. "[New Haven City Charter, art XXXIV,] Sec 220. GROUNDS,PROCEDURE FOR REMOVAL BY MAYOR. "Whenever the mayor has reasonable grounds for believing thatany officer of the city not in the classified service is corrupt,incompetent or unfaithful to the duties of his office, or thatthe requirements of the public service demand his removal, hemay summon said officer to appear before him at a time andplace specified in said summons then and there in a public hearingto show cause why he should not be removed from office. Saidsummons shall contain a detailed written statement of the chargesagainst the officer, shall be addressed to any sheriff, deputysheriff, or constable authorized to serve legal process in theCity of New Haven, with a direction to make personal service ofthe same upon the summoned officer at least ten days before thetime affixed for said hearing If, after a full hearing, themayor shall find that the officer in question is corrupt, orincompetent, or unfaithful to the duties of his office, or thatthe requirements of the public service demand his removal he mayremove such person from office, and thereupon shall forthwithfile a written order of such removal with the city clerk."Sec. 221. APPEAL FROM REMOVAL BY MAYOR."Any officer removed from his office by the mayor as hereinprovided may appeal from the order removing him to the courtof common pleas for New Haven County, which appeal shall be madereturnable to said court not less than fifteen and not more thanthirty days from the day of the order of removal and shall beserved upon the mayor at least five days before the return daythereof. Said court upon return of said appeal shall forthwith fixa time for a hearing thereon at which it shall determine whetherthe mayor has acted arbitrarily, illegally, or so unreasonably asto have abused his discretion, and award costs. No officer removedby the mayor shall exercise any of the duties or powers of his officeduring the pendency of an appeal from the order removing him.
3. The trial court used the term "malicious prosecution."That term usually refers to the malicious instigation, withoutprobable cause, of a criminal prosecution, whereas the term"vexatious suit" more commonly refers to the malicious institution,without probable cause, of a civil suit. The court's use of the term"malicious prosecution" was inconsequential, however. We have heldrepeatedly that a vexatious suit action brought under General Statutes52-568 is governed by the same principals as apply in a maliciousprosecution action; Schaefer v. O. K. Tool Co., 110 Conn. 528, 534,148 A. 330 (1930); Frisbie v. Morris, 75 Conn. 637, 639, 55 A. 9(1903); compare 3 Restatement (Second), Torts 675, comment (d); aconclusion that applies equally to a vexatious suit action broughtunder the common law rather than the statute, See Vandersluis v.Weil, 176 Conn. 353, 356, 407 A.2d 982 (1978).
4. Rule 12 of the Federal Rules of Civil Procedure providesin pertinent part: "(b) HOW PRESENTED Every defense, in law or factto a claim for relief in any pleading, whether a claim, counterclaimcross-claim, or third-party claim, shall be asserted in the responsivepleading thereto if one is required, except that the followingdefenses may at the option of the pleader be made by motion: (1) lackof jurisdiction over the subject matter, (2) lack of jurisdictionover the person, (3) improper venue, (4) insufficiency of process,(5) insufficiency if service of process, (6) failure to state aclaim upon which relief can be granted, (7) failure to join a partyunder Rule 19. A motion making any of these defenses shall bemade before pleading if a further pleading is permitted. No defense orobjection is waived by being joined with one or more other defensesor objections in a responsive pleading or motion. If a pleading setsforth a claim for relief to which the adverse party is not requiredto serve a responsive pleading, he may assert at the trial anydefense in law or fact to that claim for relief. If, on a motionasserting the defense numbered (6) to dismiss for failure of thepleading to state a claim upon which relief can be granted, mattersoutside the pleading are presented to and not excluded by the court,the motion shall be treated as one for summary judgment and disposedof as provided in Rule 56, and all parties shall be given reasonableopportunity to present all material made pertinent to such a motionby Rule 56."
5. See footnote 2, supra. Section 220 of article XXXIV of the NewHaven City Charter provides in part: "If, after a full hearing, the mayorshall find that the officer in question is corrupt or incompetent, orunfaithful to the duties of his office, or that the requirements of thepublic service demand his removal he may remove such person from office,and thereupon shall forthwith file a written order of such removal withthe city clerk." The summons used to initiate the removal proceeding provided inparagraph 7(b): "That the undersigned as Mayor shall review and accept ordismiss the findings of fact and recommendations de removal or not, assubmitted by said referee or arbitrator; and that if said findings deremoval are adverse to you, shall remove you from office; and if favorableto you, shall dismiss the charges against you and the proceedings herein." The first clause of this paragraph expressly authorizes the mayor to"accept or dismiss the findings of fact and recommendations de removalor not, as submitted by said referee or arbitrator." The second and thirdclauses, which provide for removal, if the "findings" are adverse, and fordismissal of the charges, if the "findings" are favorable, would not becomeoperative unless the mayor first accepted the findings of the arbitrator.It is clear, therefore, that the mayor never relinquished his power ofremoval as set forth in the charter.
6. Thus, judges and prosecutors are not absolutely immune for actionstaken outside the judicial arena. See, e.g., Burns v. Reed, 500 U.S. 478,111 S.Ct. 1934, 1944-45, 114 L.Ed.2d 547 (1991) (prosecutor hasonly qualified immunity from civil rights liability for legal advice givento police); Forrester v. White, 484 U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d555 (1988) (judge not immune from civil rights liability for administrativeact of firing a probation officer).
7. "[Practice Book] Sec. 747. — SANCTIONS FOR FAILURE TO COMPLY "If the prosecuting authority fails to comply with Sec. 740 [`Disclosureby the prosecuting attorney'], the judicial authority may, on motion of thedefendant or on his own motion, grant appropriate relief, which may includeone or more of the following: "(1) Requiring the prosecuting authority to comply; "(2) Granting the defendant additional time or a continuance; "(3) Relieving the defendant from making a disclosure required by Sec.756, prohibiting the prosecuting authority from introducing specifiedevidence, or dismissing the charges; or "(4) Entering such other order as he deems proper." "[Practice Book] Sec. 755. — FAILURE TO COMPLY WITH ORDER "If the prosecuting authority elects not to comply with an order of thejudicial authority to deliver to the defendant any statement of a witnesswho has testified or such portion thereof as the judicial authority, maydirect, the judicial authority shall strike from the record the testimonyof the witness, and the trial shall proceed unless the judicial authority,in his discretion, upon motion of the defendant, determines that theinterests of justice require that a mistrial be declared." "[Practice Book] Sec. 886. — MISTRIAL "Sec. 887. — FOR PREJUDICE TO DEFENDANT "Upon motion of a defendant, the judicial authority may declare amistrial at any time during the trial if there occurs during the trial anerror or legal defect in the proceedings, or any conduct inside or outsidethe courtroom which results in substantial and irreparable prejudice to thedefendant's case. If there are two or more defendants, the mistrial shallnot be declared as to a defendant who does not make or join in the motion." "[Practice Book] Sec. 984. CRIMINAL CONTEMPT * * * "Sec. 986. — WHO MAY BE PUNISHED "The judicial authority may punish by fine or imprisonment of both: "(1) Any person who in the court's presence behaves in a contemptuousor disorderly manner; "(2) Any person who violates the dignity and authority of any court, orany judicial authority, in its presence or so near thereto as to obstructthe administration of justice; "(3) Any officer of the court who misbehaves in the conduct of hisofficial court duties; or "(4) Any person disobeying in the course of a civil or criminalproceeding any order of a judicial authority."
8. The New Haven city charter provides for judicial review of anofficer's discharge. The officer may be reinstated if the termination wasarbitrary and capricious. See footnote 2, supra. Groundless civil suitsmay also be reversed after appellate review, but that does not entitlethose who bring them to enjoy absolute immunity from liability for thedamages caused by a vexatious suit.
9. As these cases indicate, municipal officers are entitled toqualified immunity for their performance of discretionary duties. Gordonv. Bridgeport Housing Authority, 208 Conn. 161, 166, 544 A.2d 1185 (1988).Because the defendants did not claim qualified immunity as a defense anddid not object to the failure of the trial court to include a charge onqualified immunity in its instructions to the jury, we decline to considerthe issue, which the defendants mention in a footnote to their appellatebrief.
10. See, e.g., Melvin v. Pence, 130 F.2d 423, 426-27 (D.C. Cir.1942) (proceeding to revoke private detective's license); Hardy v. Vial,48 Cal.2d 577, 580-81, 311 P.2d 494 (1957) (administrative termination ofprofessor); Dixie Broadcasting Corporation v. Rivers, 209 Ga. 98, 105,70 S.E.2d 734 (1952) (proceedings filed with F.C.C.); Cassidy v. Cain,145 Ind. App. 581, 588, 251 N.E.2d 852 (1969) (proceeding before stateboard of registration to revoke optometrist's license); Rainier's Dairiesv. Raritan Valley Farms, Inc., 19 N.J. 552, 566, 117 A.2d 889 (1955)(order to show cause why license should not be revoked by Office of MilkIndustry); Groat v. Town Board, 73 App. Div.2d 426, 429, 426 N.Y.S.2d 339,appeal dismissed, 50 N.Y.2d 928 (1980) (dismissal of police officer by townboard after trial before hearing officer); Donovan v. Barnes, 274 Or. 701,704-705, 548 P.2d 980 (1976) (student disciplinary proceeding); Kauffmanv. A. H. Robins Co., 223 Tenn. 515, 523, 448 S.W.2d 400 (1969) (complaintwith board of pharmacy); 52 Am. Jur.2d, Malicious Prosecution 19 and casescited therein, compare e.g., Chen v. Fleming, 147 Cal.App.3d 36, 41,194 Cal.Rptr. 913 (1983) (complaint to bar association that did not lead toinitiation of proceedings before body having power to revoke license); Imigv. Ferrar, 70 Cal.App.3d 48, 138 Cal.Rptr. 540 (1977) (departmentalinvestigation of police officer that did not lead to formal proceeding);but see Toft v. Ketchum, 18 N.J. 280, 113 A.2d 671, aff'd on reargument,18 N.J. 611 (1955) (charges of unprofessional conduct filed with barassociation; result later reversed by statute); see 1 F. Harper, F. James& O. Gray, Torts (2d Ed. 1986) 4.10; W. Prosser & W. Keeton, Torts(6th Ed. 1989) 120.
11. See, e.g., Schenck v. Minolta Office Systems, Inc.,802 P.2d 1131 (Colo. App. 1990); Bonney v. King, 201 Ill. 47, 50,66 N.E. 377 (1903); Withall v. Capitol Federal Savings of America,164 Ill. App.3d 851, 855-56, 518 N.E.2d 328 (1987), cert. denied,119 Ill.2d 576, 522 N.E.2d 1259 (1988).
12. See, e.g., Frey v. Stoneman, 150 Ariz. 106, 109, 722 P.2d 274(1986); Jaffe v. Stone, 18 Cal.2d 146, 150, 114 P.2d 335 (1941);Stanley v. Superior Court of Sacramento County, 130 Cal.App.3d 460,463-64, 181 Cal.Rptr. 878 (1982); Union Oil of California v. Watson,468 So.2d 349, 353-54 (Fla. App.), review denied, 479 So.2d 119 (Fla.1985); Carlsen v. Oakwood Hills, 164 Ill. App.3d 396, 400,517 N.E.2d 1107 (1987), appeal denied, 119 Ill.2d 554, 522 N.E.2d 1241(1988); Wynne v. Rosen, 391 Mass. 797, 800-801, 464 N.E.2d 1348 (1984);Mondello v. Mondello, 161 App. Div.2d 690, 691, 555 N.Y.S.2d 826 (1990);3 Restatement (Second), Torts 660, comment (c), and 674(b), comment (j).
13. See, e.g., Lackner v. LaCroix, 25 Cal.3d 747, 750,602 P.2d 393, 159 Cal.Rptr. 693 (1979); Hurgren v. Union Mutual Life Ins.Co., 141 Cal. 585, 587, 75 P. 168 (1904); Crawford v. Theo, 112 Ga. App. 83,85, 143 S.E.2d 750 (1965) (civil context only); Joiner v. BentonCommunity Bank, 82 Ill.2d 40, 45, 411 N.E.2d 229 (1980); Wong v. Taber,422 N.E.2d 1279, 1284 (Ind. App. 1981); Woodyatt v. Bank of Old York Road,408 Pa. 257, 182 A.2d 500 (1962); Robinson v. Robinson, 362 Pa. Super. 568,575, 525 A.2d 367 (1987), appeal dismissed, 518 Pa. 63,540 A.2d 529 (1988).
14. In the criminal context, an individual convicted of amore serious charge than the charge on which he was acquitted maynot be found to have been "discharged," the prerequisite for amalicious prosecution action predicated upon an underlying criminalprosecution. See v. Gosselin, 133 Conn. 158, 161, 48 A.2d 560 (1946);McGann v. Allen, 105 Conn. 177, 134 A. 810 (1926) (dischargerequirement); see Goree v. Gunning, 738 F. Sup. 79, 82-83 (E.D.N Y1990); Katz v. Morgenthau, 709 F. Sup. 1219, 1232 n. 3 (S.D.N.Y.),aff'd in part and rev'd in part, 892 F.2d 20 (2d Cir. 1989); Ruffv. Eckerds Drugs, Inc., 265 S.C. 563, 220 S.E.2d 649 (1975); compareJanetka v. Dabe, 892 F.2d 187, 190 (2d Cir. 1989); Graebe v. Falcetta,726 F. Sup. 36 (E.D.N.Y. 1989); Hickland v. Endee, 574 F. Sup. 770(N.D.N.Y. 1983); Cuthrell v. Zayre of Virginia, Inc., 214 Va. 427,201 S.E.2d 779 (1974).
15. Cf. Fairfield Lumber & Supply Co. v. Herman, 139 Conn. 141,147, 90 A.2d 884 (1952) (defining "cause of action" in the context ofthen Practice Book 7819 (now 133) as "the single group of facts whichgives rise to one or more rights to relief"); see also Practice Book386 (authorizing severance of claims and partial summary judgments);Practice Book 283 (authorizing trial of one or more issues before theothers).
16. There was ample evidence from which the jury couldhave concluded that the mayor acted with "malice" in making eachof the charges. In a vexatious suit action, the defendant is saidto have acted with "malice" if he acted primarily for an improperpurpose; that is, "for a purpose other than that of securing theproper adjudication of the claim on which [the proceedings] arebased"; 3 Restatement (Second), Torts 676; such as the desire to"occasion expense" to the other party. Whipple v. Fuller, 11 Conn. 582,586 (1836). Thus, while malice may be inferred from the lackof probable cause, lack of probable cause may not be inferredfrom malice. Vandersluis v. Weil, 176 Conn. 353, 356,407 A.2d 982 (1978).
17. The defendants also claim that the charges were basedon an "investigation" by the corporation counsel's office. Thecharges themselves state that they are based on minutes of meetingsand oral statements made by unnamed persons. Whether or not theclaimed investigation actually took place, however, the letters,together with DeLaurentis' refusal to refute them, were sufficient toamount to probable cause absent the mayor's knowledge or belief thatthe charges were baseless.
18. Because we reject as a matter of law the jury's conclusionthat the mayor lacked probable cause for this charge, any error inadmitting into evidence the hearsay statements by Piurek, Vegliante andSawyer, which DeLaurentis introduced to show what information contradictingthe charges would have been readily available to the mayor had he undertakenan investigation, is harmless.
19. The defendants have challenged the trial court's refusal toallow them to amend their answer to deny an allegation in the complaintthat the mayor had accused DeLaurentis of being "corrupt." Whether toallow amendment of pleadings is a decision that rests in the sounddiscretion of the trial court which may decline to do so if theamendment would unfairly prejudice the other party. Farrell v. St.Vincent's Hospital, 203 Conn. 554, 561-62, 525 A.2d 954 (1987). Inthis case, the trial court expressly advised the jury that in findingthe facts they were not bound by the defendants' answer "admitting"that the mayor had charged DeLaurentis with being "corrupt," sothat the error, if any, was harmless. The defendants also claim that the trial court improperly refusedto submit their proposed special interrogatories to the jury. Thoseinterrogatories required the jury to specify its conclusions withrespect to each element of a vexatious suit action. The jury hadalready been asked to render separate verdicts on the vexatious suitand emotional distress claims. The trial court's decision was withinits sound discretion. Merrill Lynch, Pierce, Fenner & Smith, Inc. v.Cole, 189 Conn. 518, 527, 457 A.2d 656 (1983). The defendants did notask the jury to make separate findings of probable cause for eachcharge contained in the summons.
20. First amendment concerns may also be implicated whenthe sole basis for a claim of intentional infliction of emotionaldistress is a publication or statement criticizing the conduct ofa public official. See Hustler Magazine v. Falwell, 485 U.S. 46,56, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988).
21. See Part III of this opinion for a full discussion of thisissue.
22. To the extent that this court's opinion in Blakeslee & Sonsv. Carroll, 64 Conn. 223, 233, 29 A. 473 (1894), restricted theabsolute privilege to statements to or before a
23. In Petyan v. Ellis, 200 Conn. 243, 247-48, 510 A.2d 1337(1986), we held that an employer's statement on a "fact-findingsupplement" form provided by the employment security division of thestate labor department was protected by the absolute privilegereserved for witnesses in a judicial proceeding because it was withinthe labor department's power to subpoena the employer. Id., 251. Wenote that an employer who gives a false statement in order to reducehis contributions to the unemployment compensation fund; see id., 258(Santaniello, J., dissenting); may be subjected to criminal penalties.See General Statutes 31-273 (d).
24. If the constitutional standards for a defamation actionbased on publications about a public official or public figure arealso applicable to actions for intentional infliction of emotionaldistress based upon such publications it is by no means clear thatmere allegations in a pleading could ever reasonably be interpretedas stating actual facts about the public figure involved; HustlerMagazine v. Falwell, 485 U.S. 46, 56, 108 S.Ct. 876, 99 L.Ed.2d 41(1988); because the context in which they are made indicatesthat the speaker intends the veracity of the allegations to betested by a judicial or quasi-judicial process, not merely by theuncertain forces at work in the marketplace of ideas. Allegations,by definition, are not statements of fact. See Petyan v. Ellis,200 Conn. 243, 259, 510 A.2d 1337 (1986) (Santaniello, J., dissenting).
25. If the "conduct" underlying the claim of intentionalinfliction of emotional distress is a defamatory publicationconcerning a public figure, the plaintiff must also prove that thedefendant acted with the standard of malice applicable to defamationactions set forth in New York Times Co. v. Sullivan, 376 U.S. 254,84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and its progeny. See HustlerMagazine v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988).
26. Punitive damages are permissible in a vexatious suitaction. Vandersluis v. Weil, 176 Conn. 353, 358, 407 A.2d 982 (1978)."Punitive damages are awarded when the evidence shows a recklessindifference to the rights of others or an intentional and wantonviolation of those rights." Id. Thus, evidence of the mayor's intentthat would have been relevant to his action for intentional inflictionof emotional distress would also be relevant to his claim for punitivedamages in the vexatious suit action.
27. Had DeLaurentis brought this action under GeneralStatutes 52-568 (a), he would have been entitled to an award ofdouble his compensatory damages, or treble damages if the jury foundhe had proved "actual" malice, that is, had proven malice by means ofevidence with respect to the mayor's mental state and not only bythe inference arising from making charges without probable cause.Having chosen not to bring his action under the statute, he isforeclosed from relying on it at this time. Practice Book 109A.