by Richard J. Yurko
In Blanchard v. Steward Carney Hospital, 477 Mass. 141 (2017), a surprise decision rendered in May, the Supreme Judicial Court altered significantly its “well-established” test—reflected in over two decades of precedent—for how trial courts are to evaluate special motions to dismiss under the Massachusetts anti-SLAPP statute. Whether this decision, which creates a new way to defeat the anti-SLAPP special motion to dismiss, effectively guts the statute or is just a bump on the road to a better understanding of it, will be determined by years of decisions in cases that have yet to arise. However, no less of an authority than the Court of Appeals for the First Circuit has already observed that Blanchard “dramatically shifted” the law under the anti-SLAPP statute.[i]
The anti-SLAPP statute, G.L. c. 231, § 59H, was enacted in 1994 over the veto of Governor William Weld to protect citizens from “strategic litigation against public participation,” i.e. “SLAPP” lawsuits. The immediate impetus for the statute was a long and expensive case against a group of Rehoboth residents who opposed a local real estate development. The legislature concluded that persons who were exercising their rights of petitioning and speech were being punished for doing so by litigation in which their petitioning was the basis for claims against them. Effectively, what the statute does is create a statutory qualified immunity from suit for non-sham petitioning activities and an expedited procedure for dismissing claims arising from such petitioning, typically before the expense of discovery. The broad statutory definitions evidence a broad prophylactic purpose.
The new statutory immunity was heir to a long line of federal cases protecting the First Amendment right to petition.[ii] What is different in the anti-SLAPP statute, and in similar statutes in other states, is the expedited dismissal procedure (supplanting the normal rules for dispositive motions) and the fact that it was a positive enactment by the legislature rather than a rule developed by judges over time. Perhaps for these two reasons, the statute has not always been a favorite of the courts. See, e.g., Adams v. Whitman, 62 Mass. App. Ct. 850 (2005)(extensive dicta worrying that the anti-SLAPP statute needlessly eliminates litigation-based tort claims). For twenty years, however, the Supreme Judicial Court sought to apply the statute as written—regardless of some of the justices’ apparent doubts concerning its scope—and often corrected trial courts and appellate panels that strayed too far from the words of the statute. E.g., Duracraft Corp. v. Holmes Products Corp., 427 Mass. 156, 163 (1998) (noting that legislature “ignored [the] potential uses [of the statute] in litigation far different from the typical SLAPP suit”); Town of Hanover v. New England Regional Council of Carpenters, 467 Mass. 587, 594 (2014) (reversing trial court’s denial of special motion to dismiss and concluding that granting the motion was in accord with the reasons underlying the anti-SLAPP statute’s enactment). No longer.
The Original Duracraft Test
Two decades ago in Duracraft, the Supreme Judicial Court announced what it would later call the “well-established” two-part test for deciding a special motion to dismiss under the statute. E.g., Benoit v. Frederickson, 454 Mass. 148, 152 (2009); Wenger v. Aceto, 451 Mass. 1, 5 (2008). First, the moving party who asserts that she is being sued based upon her petitioning activities (typically the defendant) must demonstrate that the claims against her have no substantial basis other than her petitioning activities. If she succeeds in doing so, then the burden shifts to the nonmoving party (typically the plaintiff) to show, in the words of the statute, that the defendant’s petitioning “was devoid of any reasonable factual support or any arguable basis in law and [that] the moving party’s acts caused actual injury to the responding party.” G.L. c. 231, § 59H. Essentially, this second step in the analysis places a high, but not insurmountable, burden on the plaintiff to show early on that the petitioning was an unsupportable sham. Because the burden in the second step of the analysis was indeed steep, many plaintiffs focused their defense to a special motion to dismiss on the first step in the analysis, i.e. whether the defendant had shown that the plaintiff’s claims were based solely on defendant’s petitioning.
There are several key points about the Duracraft framework. First, the test is objective, just as the test in the statute is objective—whether the claim is based on petitioning and whether the petitioning has, or does not have, “reasonable factual support.”[iii] 427 Mass. at 165. Second, the focus is not on the ultimate question of the validity of the plaintiff’s claim but rather on the non-sham nature of defendant’s petitioning, as befits an immunity. Id. Third, the decision on whether immunity exists is generally to be made at the start of the case, otherwise the benefits of qualified immunity are lost. Id. at 161; see also Pearson v. Callahan, 555 U.S. 223, 231-32 (2009) (stressing importance of resolving immunity questions at earliest possible stage in litigation).
The Subjective Blanchard Addition
In Blanchard, the Court left the prior Duracraft framework intact but added an alternative way to defeat a special motion to dismiss. Rather than scale the high peak of showing the petitioning was a sham under the second part of the Duracraft test, plaintiffs can now convince a trial court judge that their “primary” motivation for each claim “was not to chill the special movant’s legitimate petitioning activities.” To make this alternative showing, “the nonmoving party must establish, such that the motion judge may conclude with fair assurance, that its 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 it from the defendants’ alleged legally transgressive acts.” Blanchard, 477 Mass. at 160 (internal quotations and citations omitted).
This “motivation” standard finds no antecedent in the language of the statute itself which, as noted, focuses strictly on the merits of the petitioning activity. One might wonder what plaintiff will not now file an affidavit calmly assuring the trial court that burdening the defendant’s petitioning was the farthest thing from its mind? Would not the Rehoboth developer, beset by neighborhood opposition, have done just that? By grafting a subjective branch onto an otherwise objective test, the Court has opened a Pandora’s Box of unanswered questions like:
(a) How does one prove or disprove, without discovery, the plaintiff’s “primary motivating goal”?
(b) If one of the chief goals of the anti-SLAPP statute was the earliest possible termination of potential SLAPP suits before the time and expense of discovery, how can such discovery be avoided if the question now turns on the plaintiff’s “primary” motivation?
(c) How is a trial court, or for that matter a reviewing court, supposed to weigh an affidavit from a plaintiff swearing it does not seek to burden the defendant’s petitioning, against objective—but inconclusive—evidence to the contrary?
None of the parties in Blanchard argued for this shift. The Court did not request briefs from the parties or amici on a possible new test. Yet the Court altered two decades of its own jurisprudence on the subject. So, one has to wonder why the Court was moved to announce a new test.[iv]
The Court proffered one stated rationale for the new test. It suggested that the Duracraft “framework,” which simply implemented the objective language of the statute, was much broader than the “fundamental statutory concern” of just eliminating SLAPP suits. 477 Mass. at 155. According to the Court, without the benefit of a citation to the statute, the statutory language sweeps more broadly than the legislative intent because “[i]t is only … the actual ‘SLAPP’ suit,” i.e. the “meritless claim targeting legitimate petitioning activity,” that “the Legislature intended to stop early in its tracks.” Id. at 157.
This justification contradicts extensive Massachusetts precedent by purporting to create a clash between the intent of a statute and its words. As this very Court confirmed just three weeks later, Massachusetts courts are supposed to look for the statute’s intent in the words of the statute. “Where the language of the statute is clear and unambiguous, it is conclusive as to legislative intent.” AIDS Support Group of Cape Cod, Inc. v. Town of Barnstable, 477 Mass. 296, 300 (June 14, 2017)(collecting cases). The words of the anti-SLAPP statute broadly defined petitioning activities, defined a qualified immunity for those activities, and crafted an objective test and an expedited procedure for enforcing that immunity. That the immunity was prophylactic and certainly broader on its face than the one SLAPP suit that prompted the statute is evident from the face of the statute. No linguistic gymnastics can derive a narrow “intent” standard from such broad language, especially where the statute was enacted over the veto of a governor who argued for a much more narrow law. See, e.g., David Kluft, The Scalpel or the Bludgeon? Twenty Years of Anti-SLAPP in Massachusetts, 58 B.B.J. 5 (2014). Had the Court followed its own precedent, which it reaffirmed three weeks later in the Barnstable case, it would not have set up a false clash between the words of the statute and its true “intent.”
The Court may have acted for two other reasons, implied but not fully stated in the decision. First, perhaps the Court might have thought the new test was necessary to keep the statute constitutional. Blanchard, 477 Mass. at 157-158. Second, the Court might have thought that a new test was necessary to save the plaintiff nurses’ claims, which didn’t seem to the Court to be SLAPP claims at all. Id. at 154. Neither of these intimated reasons is correct or, for that matter, particularly satisfying.
In Duracraft, the Court twenty years ago came up with the two-part test to resolve the supposed constitutional tension between preferring the defendant’s prior petitioning to the plaintiff’s new petitioning (where the latter seeks to hold the defendant liable for its petitioning). Duracraft, 427 Mass. at 167-68. Other than its flawed legislative “intent” argument, the Blanchard Court does not satisfactorily explain why the Duracraft balancing was now insufficient. Moreover, the Court never grappled with a fundamental flaw in the “constitutional balancing” argument to begin with. In enacting the anti-SLAPP statue, the legislature actually changed the substantive law of the Commonwealth,[v] as it is entitled to do. By creating what is, effectively, a qualified immunity from suit for non-sham petitioning, the legislature altered the substantive tort law of the Commonwealth. Upon such enactment, over a governor’s veto, the legislature effectively made claims based solely on meritorious petitioning activity no longer valid. There is no right, constitutional or otherwise, for a plaintiff to petition for redress under old, supplanted law. There is no tension between two types of valid petitioning, but rather only a tension between former law and new law—an easy “tension” to resolve.
Moreover, the Court could have held for the plaintiffs in Blanchard simply by applying Duracraft. In Duracraft, the defendant’s special motion to dismiss was deemed properly denied because the plaintiff’s claims were not based solely on the defendant’s petitioning. Duracraft, 427 Mass. at 168. There existed a written contract (a nondisclosure and confidentiality agreement) between plaintiff and defendant. Id. That contract was an additional, non-petitioning factor in the claims that arose from the defendant’s petitioning (his testimony at a deposition).
In Blanchard, the nurses sued their former employer, Steward Carney Hospital, for defamation allegedly arising from the employer’s comments to newspapers and in emails to all employees about the hospital’s termination of them. Although the claim may have been for defamation, it unquestionably arose from the employer-employee relationship and against an alleged termination “for cause” required by the nurses’ union contract with the employer. See 477 Mass. at 145 n.7 (noting the collective bargaining agreement and an arbitrator’s finding in favor of the nurses). In short, what made the statements defamatory was the necessary suggestion that there had been cause for the nurses’ termination (or, in the words of Blanchard, the nurses’ “culpability,” 477 Mass. at 142), even though none of the nurses had been accused of any individual wrongdoing. The nurses’ defamation claim was not subject to the anti-SLAPP statute under a straightforward application of Duracraft because it rested, in part, on the employer-employee relationship and the union contract between the plaintiffs and defendant–just as the contract in Duracraft provided a substantial basis to the claim in addition to the petitioning. Thus, no new test was required for the Court to preserve the nurses’ defamation claim.
There is, of course, always the possibility that in subsequent decisions, the Supreme Judicial Court will return to an objective standard derived from the actual words of the anti-SLAPP statute. Often, decisions that seem like a wrong turn are, on further judicial reflection, treated as sui generis until a decade or two later when they are overruled. E.g., Lawrence v. Texas, 539 U.S. 558 (2003) (overruling Bowers v. Hardwick, 478 U.S. 168 (1986)).
But it is perhaps much more likely that, with a new judicially-created subjective defense to an anti-SLAPP special motion to dismiss, trial and appellate courts will spend a decade or more trying to reconcile the objective words of the statute with this new subjective judicial exception to a legislatively-crafted immunity. Given the judicial equivocation under the statute even before this latest decision, my prediction is that courts and judges will scatter in how loose or how narrow to construe this new judicially-created exception to legislatively-created immunity. We are all in for a bumpy ride.
[i] Steinmetz v. Coyle & Caron, Inc., 2017 U.S. App. LEXIS 11916 at *5 (1st Cir. June 29, 2017). In Steinmetz, the First Circuit has certified another important anti-SLAPP question to the Supreme Judicial Court: is a paid consultant who is aiding a group in its petitioning covered by the statute? The SJC’s occasional dicta on this question is internally inconsistent, and conflicts with its and the Massachusetts Appeals Court’s holdings in cases like Town of Hanover, infra.
[ii] See, e.g., BE&K Construction Co. v. NLRB, 536 U.S. 516, 524-25 (2002); Stern v. United States Gypsum, Inc., 547 F.2d 1329, 1342 (7th Cir. 1977), cert. denied, 434 U.S. 975 (1977); In re Primus, 436 U.S. 412, 426 (1978); United Trans. Union v. Michigan Bar, 401 U.S. 576, 585 (1971); United Mine Workers of America v. Ill. State Bar Ass’n, 389 U.S. 217, 222 (1967).
[iii] Indeed, the Supreme Judicial Court repeatedly eschewed any inquiry into defendant’s subjective motive for petitioning in the first part of the test. E.g., Benoit at 153; Office One at 122; Fabre v. Walton, 436 Mass. 517, 523-24 (2002).
[iv] The Blanchard case did have one significantly redeeming aspect. It made short work, confined largely to a footnote, to the argument that somehow the anti-SLAPP statute’s special motion to dismiss was a violation of state or federal guaranties of the right to a jury trial in certain civil cases. Blanchard, 477 Mass. at 158 n.24.
[v] In Steinmetz, the Court of Appeals for the First Circuit recognized that the Massachusetts anti-SLAPP statute (like the Maine anti-SLAPP statute, which was the subject of an earlier decision) was substantive law, not procedural law, and therefore ought to be applied in federal court under Erie RR v. Tompkins, 304 U.S. 64 (1938), in diversity cases. Steinmetz, 2017 U.S. App. LEXIS 11916 at *2, 6 (citing Steinmetz v. Coyle & Caron, Inc., 2016 U.S. Dist. LEXIS 99631 at *6-8 (D. Mass. July 29, 2016).
Richard Yurko is the founding shareholder of Yurko, Salvesen & Remz, P.C. and has frequently authored briefs on behalf of amicus curiae parties on the anti-SLAPP statute.