The anti-SLAPP cases kept coming from the
Massachusetts appeals courts in May.
I
posted
previously on anti-SLAPP in the Massachusetts Supreme Judicial Court in
February.
This posting describes three
recent holdings, the middle of which substantially revised—and tightened—the
anti-SLAPP qualification analysis.
The
next two paragraphs recap some background on anti-SLAPP; skip right down to the
cases if you like.
The Massachusetts
anti-SLAPP statute is
Mass.
Gen. L. ch. 231, § 59H.
For a quick recap, “anti-SLAPP” refers to state statutes
designed to forestall tort claims in “strategic lawsuits against public
participation” (SLAPPs). The
prototypical SLAPP might be a land developer’s suit against environmental
protestors for interference with the developer’s prospective economic
relations. The protestors are motivated
by First Amendment right to speak and petition and are not acting
wrongfully. So, the logic goes, they
should not be tied up in pricey and complex litigation having to assert the
First Amendment as an affirmative defense.
Rather, they are entitled to a speedy dismissal. In various forms and fashion across the
states, anti-SLAPP statutes allow expedited process before the trial courts to
dispense summarily with cases that ultimately would or should come out in
defendants’ favor.
Furthermore for quick recap, I despise anti-SLAPP
statutes. They are yet another crutch
for defense lawyers—complementing a broad array of defense privileges in common
law and constitutional law—to cloak the perpetrators of defamation, privacy
invasion, interference, and other torts in the false light (if you will) of
constitutional holy writ. Through unduly
expedited process, anti-SLAPP deprives plaintiffs out of the gate of a fair chance
to discover the damning evidence of defendants’ wrongful conduct—evidence often
required by the aforementioned broad array of defenses, thus compounding the
already ratcheted-up hurdles a plaintiff with meritorious cause must clear.
At ABA meetings, I have heard the defense lawyers of
transnational mass media conglomerates speak of anti-SLAPP bills in the same
tender timbre one employs to share photos of a newborn. They are especially fond of anti-SLAPP laws
that award attorneys’ fees to the prevailing defendant; imagine that Goliath
bill arriving in David’s mailbox. Such cooing
should be evidence enough that the playing field has been unleveled. And I was a defense lawyer, so I know of whom
I speak.
That said, I would be foolish to assert that anti-SLAPP
motions don’t often reach just results.
An unlevel playing field does not mean that the winning team is not the
better. I contend instead that
anti-SLAPP gives a trial judge too much power to ballpark “right” and “wrong”
in the absence of the fair evidentiary confrontation that our adversarial
system requires. These cases illustrate how
the Massachusetts appellate courts are struggling to implement the state
anti-SLAPP law fairly.
(1) The Case of the Ex-Spouse Who Won’t
Let It Go
After what must have been an ugly divorce in the 1990s, Ms.
St. Germain was left with a permanent protective order of no contact against
her former husband, Mr. O’Gara. In 2014,
after receiving contact via post, St. Germain complained to police that O’Gara
had violated the protective order.
Police arrested, charged, and then dismissed charges against O’Gara, who
in turn sued St. Germain on various civil theories—breach of contract, abuse of
process, malicious prosecution, tortious interference, and intentional
infliction of emotional distress—for the police report that had precipitated
his arrest.
Holding O’Gara’s civil suit “based entirely on [St.
Germain’s] petitioning activity,” the court dismissed the civil suit upon St.
Germain’s anti-SLAPP special motion, reversing the superior court. The court reiterated that petitioning
activity under the Massachusetts statute is to be construed broadly, “‘similar
in purpose to the protections afforded public officials by the doctrine of
governmental immunity’” (quoting precedent).
“Furthermore, § 59H covers petitioning activity regardless of
whether it concerns a public or purely private matter.”
The statute first burdened defendant St. Germain, as special
movant, with proving by preponderance that O’Gara’s lawsuit was based solely on
her police report as petitioning activity, without other substantial
basis. Second, under the burden-shifting
procedure of the statute, O’Gara would be compelled to prove by preponderance
that St. Germain’s petition “‘(1) … was devoid of any reasonable factual
support or any arguable basis in law and (2) … caused actual injury.’”
The trial judge had erred by skipping the first step of the
inquiry and justifying discovery upon a “credible claim of injury caused by
[St. Germain].” Rather, first, St.
Germain was correct in asserting that O’Gara’s suit concerned her police report
solely as petitioning. O’Gara had
asserted that St. Germain was motivated by hostility, besides petitioning. But the court concluded that whether or not
she bore such motive was immaterial to the purely petitioning nature of the
report. Second, St. Germain was
reasonable in believing her police report legally founded, despite the later
dismissal of charges. I.e., the police report was not a sham.
The case is
O’Gara v.
St. Germain, No. 15-P-1711 (Mass. App. Ct. May 11, 2017) (
Justia).
Four incidents of alleged abuse or neglect of patients in a
unit of the Steward Carney Hospital in Boston resulted in a mass dismissal of
unit staff, including nurses. Discussing
the employment shake-up publicly in email to hospital staff and in statements
to The Boston Globe, with a state
investigation still underway, hospital administrators were vague on particulars. The state later blamed three incidents on only
one mental health counselor, and the fourth incident on staff, the latter
conclusion the subject of ongoing legal contest. Plaintiff nurses sued the hospital for
defamation, and the hospital responded with an anti-SLAPP special motion.
The Supreme Judicial Court, per Justice Barbara Lenk on May
23, reached a mixed result and remanded, furthermore finding occasion to
tighten the requirements for an anti-SLAPP motion to succeed.
Again illustrating the broad construction of petitioning
activity, on the first step of the anti-SLAPP test, the hospital successfully
asserted that the nurses’ lawsuit concerned statements to the press solely as protected
petitioning, because the statements were “‘made to influence, inform, or at the
very least, reach governmental bodies—either directly or indirectly’” (quoting
precedent). “The key requirement of this
definition of petitioning is the establishment of a plausible nexus between the
statement and the governmental proceeding.”
The Court held that statements to the Globe passed muster as indirectly aimed at state investigators However, email to hospital staff, intended
only for internal circulation, did not pass the test.
Here the Court steered off the road. Initially the Court was flummoxed: what to do
with a split outcome between allegedly defamatory statements? Recall that the defendant must show that plaintiff’s
suit concerned “solely” defendant’s petitioning activity. What happens when some statements are petitioning and some are not? Perhaps the anti-SLAPP motion must fail,
because the defendants’ activity was not, then, purely petitioning. Or perhaps the petitioning activity alone,
here the Globe statements, advance to
the second step of the test, burden shifting for the plaintiff to prove
sham. If plaintiff cannot prove sham
petitioning, defamation might be dismissed in part. The design of the complaint cannot be
dispositive, for plaintiffs could evade anti-SLAPP by parsing counts.
That issue, however, proved to be only the crest of a hill concealing
the drop off of a cliff. For then the
Court plunged into angst over the very enterprise of the anti-SLAPP
analysis. If a defendant cannot prove
that the lawsuit is about solely petitioning activity, can the lawsuit not be a
SLAPP? Inversely, if a defendant proves
that the lawsuit is about solely petitioning activity, and the petitioning was
not a sham, does it follow necessarily that the lawsuit should be dismissed as a
SLAPP?
Suppose, the Court proffered (quoting Illinois precedent),
that defendant “‘spread malicious lies about an individual while in the course
of genuinely petitioning the government for a favorable result.’” The defendant passes muster under step one
(if the statements are not parsed). And the
plaintiff cannot show sham under step two.
Case dismissed. Yet “[i]f a
plaintiff's complaint genuinely seeks redress for damages from defamation or
other intentional torts and, thus, does not constitute a SLAPP, it is
irrelevant whether the defendant[’s] actions were genuinely aimed at procuring
favorable government action, result, or outcome.”
Thus the Court exposed a basic constitutional dilemma in
anti-SLAPP: The plaintiff has a right to
petition, too; plaintiff’s lawsuit is a constitutionally protected petition
to the judiciary. I would add, ignorance of this fact is why
anti-SLAPP statutes, if not properly reined in by the courts, unfairly
overcorrect in defendants’ favor. One
can argue that this operation of anti-SLAPP is a prophylactic protection for
the petitioning rights of the defendant, thereby demanding that we tolerate
dismissal of some meritorious causes of action—like the problematic “actual
malice” rule of public-figure defamation.
But that argument fails to explain why the defendant’s petition right is
superior to the plaintiff’s.
To solve this problem and mitigate its constitutional
dilemma, the Supreme Judicial Court added a second
way for the plaintiff to prove its way out of anti-SLAPP dismissal in step
two of the test. Recall that plaintiff
bore the burden of prove sham petitioning by the defendant (and actual
injury). Well now the plaintiff may
prove sham petitioning or plaintiff’s
“suit was not ‘brought primarily to chill’ the [defendant]’s legitimate
exercise of its right to petition.”
Thus, recalling the “malicious lies” example above, suppose furthermore
that the plaintiff cared not one way or the other about the matter of
defendant’s petition to the government.
Plaintiff rather was concerned with the malicious lies, however the
matter was decided. “A necessary but not
sufficient factor in this analysis will be whether the [plaintiff]’s claim at
issue is ‘colorable or … worthy of being presented to and considered by the
court,’ … i.e., whether it ‘offers some
reasonable possibility’ of a decision in the party’s favor.”
On remand, then, the nurses would be able to avoid
anti-SLAPP dismissal on the Globe
statements, as well as the email, by showing the Globe statements a sham petition—unlikely—or by showing “that their defamation claim, viewed as a whole, is
nonetheless not a ‘SLAPP’ suit.” If they
cannot meet their burden either way, then the hospital will be entitled to
dismissal as to the Globe statements,
the case over the email persisting.
The change is a dramatic one. So modifying the plaintiff’s burden on step
two of the test forces the trial court to confront head on the undisguised,
central question of the anti-SLAPP inquiry.
Notwithstanding precedents that eschew focus on a plaintiff’s motives,
the analysis inevitably steers the court back to ask whether the plaintiff is
aggrieved by the hurtfulness of what the defendant did, or by the defendant’s
aim to influence government. For my
money, one might as well ask that question at the start and be done with it.
The case is
Blanchard
v. Steward Carney Hospital, No. SJC-12141 (Mass. May 23, 2017) (
Justia).
Justice Lenk issued a second opinion on anti-SLAPP for the
Supreme Judicial Court the same day, May 23.
The case better fits the prototype anti-SLAPP mold in being a dispute
over property development. The Court
remanded for application of its new Blanchard
standard (case (2), immediately above).
In 2011, the plaintiff purchased a five-story brick
building, 477 Harrison Avenue, Boston, to redevelop it for residential
use.
Defendant JACE Boston owned
neighboring 1234 Washington Street, which shared a wall with the Harrison
property.
Defendant intended at some
point to redevelop its property, too, and a competition ensued.
The parties disputed redevelopment plans in
years of administrative process and litigation.
Finally in 2014, plaintiff sued defendant in superior court for abuse of
process and for violation of
Mass.
Gen. L. ch. 93A, § 11, a broad state prohibition on unfair
competition.
Upon defendant’s anti-SLAPP motion, the trial court
determined that the defendant could not meet its step-one burden to show that the
lawsuit was about solely petitioning activity, without other substantial
basis. The Court rather found that the
abuse of process claim passed muster under step one, concerning solely
defendant’s petitioning. On step two,
the plaintiff could not show that defendant’s petitioning, with respect to the
abuse of process claim, was entirely a sham, that is devoid of factual and
legal basis. Nevertheless, under the
newly announced Blanchard standard,
the plaintiff on remand must be afforded the opportunity to resist dismissal by
proving that its lawsuit is not a SLAPP—that is, “the motion judge may conclude
with fair assurance,” “‘that [plaintiff’s] primary motivating goal in bringing
its claim, viewed in its entirety, was “not to interfere with and burden
defendants” … petition rights, but to seek damages for the personal harm to
[the plaintiff] from [the] defendant[’s] alleged … [legally transgressive]
acts.’”
Faced with “the novel issue as to whether all or only some
of a [defendant’s] petitioning activities must be shown to be illegitimate in
order to defeat a special motion to dismiss,” the Court decided that the
plaintiff must “show that the entirety of its abuse of process claim is not a
‘SLAPP’ suit” to resist dismissal in full.
Otherwise, dismissal (and fees) are granted only for the “portion of the
abuse of process claim arising out of the defendant[’s] protected petitioning
activities.”
The case is
477
Harrison Avenue v. JACE Boston, LLC, No. SJC-12150 (Mass. May 23, 2017) (
Justia).
[UPDATE, Nov. 11, 2019: The SJC today issued another installment in 477 Harrison
saga. Remanding, the Court determined that abutters' counterclaims were retaliatory, not substantive, so should not be sustained against the developer. I'll say again, anti-SLAPP was not designed to protect developers in land feuds, much less to generate multiple interlocutory dispositions, and this case speaks directly to the pathology of anti-SLAPP.]
