Land dispute implicates 'second element of second path of second stage' of anti-SLAPP analysis, and we're all supposed to pretend the world's better for it

The Supreme Judicial Court studies its anti-SLAPP framework.
Argonne National Laboratory CC BY-NC-SA 2.0 via Flickr

Anti-SLAPP analysis in Massachusetts has become a Rube Goldberg machine disguising little more than an "I know it when I see it" test—

—so I contend, and I offer a Massachusetts Appeals Court case decided Tuesday as evidence.

I've written many times about anti-SLAPP, including my contention that the device can be used meritoriously, but is as often deployed to contrary ends, a sword for Goliath to strike down David; the legion dysfunctions of tort law that anti-SLAPP amplifies; and the possible better solution to be found in process torts and similar related mechanisms of accountability in law practice and procedure.

As Massachusetts courts have struggled to differentiate meritorious actions from SLAPPs under the Commonwealth's characteristically convoluted statute, I ultimately gave up trying to keep up with the ever more complicated thicket of rules and procedures leaching out from appellate decisions. So The Savory Tort should not be your first stop if you're trying to get a granular grip on the current landscape here.

Yet I can't help but write about this most recent appellate opinion. To my reading, the court poorly disguised its doubts about burgeoning and burdensome anti-SLAPP process, and whether time, money, and justice can all be saved at the same time.

The underlying dispute was a land matter. The plaintiff, seeking quiet title and adverse possession, was partially successful in a somewhat protracted litigation. Later, if before the expiry of a three-year limitations period, the respondent from the land action filed the present case, alleging abuse of process and intentional infliction of emotional distress by way of the earlier case. The land plaintiff from the earlier case, now the process and IIED defendant, raised the Massachusetts anti-SLAPP statute in defense.

First, I take the occurrence here of abuse of process as evidence in support of my position that anti-SLAPP is often really about process wrongs. Though here the anti-SLAPP movant is the one accused of abuse of process, it is typical in process tort cases for accusations of misconduct to fly simultaneously in both directions. Regardless of whether a jurisdiction recognizes abuse of process as a cause of action per se, courts have the power to manage process objections with a range of existing tools. I wrote about abuse of process appearing as a defensive mechanism, essentially a better tailored anti-SLAPP device, in South Africa. And my 1L torts class just yesterday read Lee Tat Development, a well reasoned 2018 opinion, included in my casebook, in which the Singapore Court of Appeals both rejected the abuse of process as a tort action and thoroughly discussed alternatives.

The Massachusetts Appeals court devoted a dense 10 pages to the blow by blow between the parties in the instant case. I won't retell it here. What's compelling is what the court had to say about its job in reviewing the Superior Court's anti-SLAPP ruling. Quoting the Supreme Judicial Court (SJC) in the Exxon case, which I reported recently, the Appeals Court's opening line oozes disrelish:

"This case involves yet another example of the 'ever-increasing complexity of the anti-SLAPP case law,' and the 'difficult and time consuming' resolution of special motions to dismiss pursuant to the 'anti-SLAPP' statute."

The partial quotes read like the court is feigning innocent pleading to the Supremes, "These are your words. We're just repeating them."

In analyzing the instant case according to the painstaking legal framework that the SJC has eked out of case experience, the Appeals Court located the present dispute in "the second element of the second path of the second stage."

What is the second element of the second path of the second stage, you ask?

Well, it's that the "judge must 'assess the "totality of the circumstances pertinent to the nonmoving party's asserted primary purpose in bringing its claim," and ... determine whether the nonmoving party's claim constitutes a SLAPP suit.'"

Isn't that the whole game?

I humbly propose that the good ship Commonsense has already sailed when we start talking about a second element of a second path of a second stage.

The Appeals Court divulged a tone somewhere between surprise and pride when it concluded "that the [Superior Court] judge followed the augmented framework sequentially, assiduously, and judiciously." Adjectives "comprehensive" and "thoughtful" followed.

Then, around page 27, the court hints at deeper problems.

The [landowners'] arguments demonstrate some of the difficulties associated with the application of the augmented framework. On one hand, the present action presents as a typical SLAPP case in that a supposedly wealthy developer sued abutters of supposedly modest means for petitioning in court to challenge a development project.... On the other hand, the [landowners] averred that far from being wealthy and powerful developers, they were a real estate broker and part-time bookkeeper attempting to develop a single-family residential property, while the [anti-SLAPP movants] were not the "individual citizens of modest means" contemplated by the anti-SLAPP law. The parties contested each other's motivations and representations. There is an inherent difficulty and, in some cases, prematurity in requiring a judge to make credibility determinations and discern a party's primary motivation predicated on affidavits, pleadings, and proffers, and not on a more complete evidentiary record scrutinized through cross-examination.

Some pages later, the court returned more directly but cautiously to the question of anti-SLAPP efficacy:

In this regard, as we have noted, the [landowners] insist that the present action cries out for a jury trial as the only appropriate way to resolve critical credibility disputes and determine the parties' true motivations. This argument has some force in that there are obvious difficulties in ... requiring judges to be fairly assured that the challenged claim is not a SLAPP suit, absent full discovery and testimony tested through cross-examination. Yet, the special motion to dismiss remedy exists, in large part, to avoid costly litigation and trial.... In any event, it is for the Supreme Judicial Court or the Legislature to address and resolve these concerns should they so choose.

At the tail end of a 34-page appellate opinion on meta-litigation over a small land matter and a lot of bad blood, one might wonder how much "costly litigation" was avoided.

The problem is with anti-SLAPP itself. The court is being asked to adjudge the motives of a litigant in the absence of evidence for the very purpose of avoiding the cost of collecting evidence.

We don't have a SLAPP problem. We have a transaction costs problem. Slapping a bandage on it with anti-SLAPP only invites perverse results. And the harder one tries to get right a call about evidence without the evidence, the more costly and perverse the results will be.

The case is Nyberg v. Wheltle, No. 21-P-791 (Mass. App. Ct. Sept. 13, 2022) (temporary court posting). Judge Eric Neyman wrote the opinion for a unanimous panel.

UPDATE, Sept. 16: Notwithstanding the ill wisdom of anti-SLAPP, the fad flourishes. Europe and the UK continue their headlong advances toward legislation, and a new bill in the U.S. Congress seeks to bring anti-SLAPP to U.S. federal courts. Enjoy, judges! I don't expect that the extinction of the defamation cause of action will do much to remedy our problems with misinformation and vitriolic divisiveness, but that seems to be the experiment we're determined to carry out.