Opinion
16-P-626
05-04-2017
Roland VAN LIEW v. Jon KURLAND& another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Roland Van Liew, appeals from the judgment after a judge allowed the defendants' special motion to dismiss. The plaintiff argues that the judge erred in finding that the defendants' conduct constituted petitioning activity, as protected under G. L. c. 231, § 59H. We reverse
The plaintiff also appeals from the order denying his motion for reconsideration.
Background. "We draw the background facts of the case from the pleadings and affidavits pertinent to the special motion to dismiss, as well as from the judge's decision and order." North Am. Expositions Co. Ltd. Partnership v. Corcoran, 70 Mass. App. Ct. 411, 412 (2007), S.C., 452 Mass. 852 (2009).
In 2011, the plaintiff initiated an effort to recall four recently elected members of the Chelmsford board of selectman (board). Defendant Kurland was one of the selectmen that was targeted by the plaintiff's recall campaign.
Pursuant to the Chelmsford town charter, a mandatory recall vote may be triggered by an initial filing of twenty-five signatures from each of the nine precincts in Chelmsford. This litigation concerns the plaintiff's efforts to gather signatures in support of his recall campaign, and the defendants' actions in opposition to the plaintiff's petition.
Once this requirement is met, a special election would decide whether to recall the selectman.
The plaintiff's amended complaint alleges that on April 20, 2011, Kurland sent an electronic mail message (e-mail) to thirty people, advising them of the plaintiff's efforts to gather signatures at local stores in Chelmsford. Kurland encouraged the e-mail recipients to take steps to "discourage [the canvassers] from continuing [their] effort to get signatures." He further instructed, "If you see them at [the] stores or in parking lots, please discuss this with the store manager." Kurland added, "It is my understanding that DeMoulas [Market Basket] and Hannaford [Supermarket] frown on this type of activity by their stores."
The plaintiff hired a professional signature-gathering company, Powder House Political Consultants, to assist in the plaintiff's efforts to gather signatures for the recall campaign.
On April 23, 2011, a complaint was made to the manager of a local grocery store, and as a result, the canvassers were "ejected from [the] premises and surrounding area." On the following day, Kurland allegedly sent four additional e-mails: encouraging email recipients not to return the recall petition and explaining that "it will be more difficult for [the canvassers] to get out in numbers if the[y] have less petitions to distribute"; asking an e-mail recipient, "[D]id you complain to the manager?"; and referencing, in two e-mails, to signatories who were "deceived into signing the petitions ... [and being able to] reverse their signature[s]." On April 26, 2011, the defendant sent the following e-mail:
"It appears as though the local supermarkets are willing to allow the canvassers to sign recall petitions. Could you please take the time to call the three store managers to express deep disapproval of allowing outsiders to destroy our town. If they tell you that these people have the right to be there, that is rubbish. This is private property and the owner can remove them if he or she sees fit. If they persist in asserting the canvassers right to be there ask[ ] them if it is also the right of people in town to stand nearby with posters to boycott their stores. It is the same free speech argument. You can also threaten not to shop at the store again and express the opinion that many of your friends agree with you. Perhaps if they get enough calls, they will remove these people from the premises." (Emphasis supplied.)
The plaintiff's complaint also alleges that five canvassers at a local grocery store were "physically intimidated and accosted by a group of individuals." These men allegedly "ripped a clipboard from one man's hand, threatened [the canvassers] with physical harm if they continued, and further threatened the life of [the plaintiff]."
The plaintiff alleges in his amended complaint that Kurland "impaired and infringed upon [the plaintiff's] constitutional right to solicit signatures in support of ballot access as guaranteed by [art.] 9 of the Constitution of the Commonwealth of Massachusetts" and in violation of the Massachusetts Civil Rights Act, G. L. c. 12, §§ 11H, 11I.
He also alleges that Dzuris "sent an email to Kurland and others suggesting a ‘letter writing campaign’ to the owner of one of the shopping centers," and that she kept others apprised, through e-mail, where the petitioners were canvassing.
Kurland is the only defendant named in the count for defamation. The plaintiff alleges that he was defamed by Kurland by "making and publishing ... derogatory [and] pejorative ... public statements ... [which held the plaintiff] up to scorn, ridicule, hatred, and contempt." In support of his allegation that Kurland had "embarked on ... a sustained and increasingly strident campaign of baseless accusations against [him]," the plaintiff's amended complaint includes over seventy, individually numbered paragraphs describing Kurland's defamatory statements either made by Kurland or attributed to him in various public forums, such as: local newspapers, online newsletters, Facebook entries, and public access television shows.
The defendants brought a special motion to dismiss the plaintiff's amended complaint, pursuant to the Massachusetts anti-SLAPP statute, under G. L. c. 231, § 59H. In the defendants' motion, they alleged that the plaintiff's civil rights allegations and defamation claims were based on petitioning activity as protected by the anti-SLAPP statute. The judge granted the defendants' special motion to dismiss.
Discussion. A party may file a special motion to dismiss, under the anti-SLAPP statute, if "the civil claims, counterclaims, or cross claims against said party are based on said party's exercise of its right of petition under the constitution of the United States or of the commonwealth." G. L. c. 231, § 59H. "In order to prevail on such a motion, the moving party ‘who "asserts" protection for its petitioning activities [must] make a threshold showing through the pleadings and affidavits that the claims against it are "based on" the petitioning activities alone and have no substantial basis other than or in addition to the petitioning activities.’ " Ayasli v. Armstrong, 56 Mass. App. Ct. 740, 748 (2002), quoting from Duracraft Corp. v. Holmes Prod. Corp., 427 Mass. 156, 167-168 (1998). "[W]e review the judge's decision to grant the special motion to dismiss for abuse of discretion or error of law." Blanchard v. Steward Carney Hosp., Inc., 89 Mass. App. Ct. 97, 103 (2016).
"SLAPP is an acronym for ‘strategic litigation against public participation.’ " Cadle Co. v. Schlichtmann, 448 Mass. 242, 242 n.2 (2007).
1. Civil rights claims. The plaintiff argues that the judge erred in granting the defendants' special motion to dismiss because the defendants' e-mails were not based on petitioning activities alone. We agree.
The plaintiff concedes, and we agree, that the defendants' actions were related to the plaintiff's signature-gathering activities. See North Am. Expositions Co. Ltd. Partnership v. Corcoran, 452 Mass. 852, 862 (2009) (Corcoran ) ("Statements made outside any formal governmental proceedings have often been considered petitioning activity"). However, their conduct "[did] not concern solely the defendants' pursuit of legal rights." Armstrong, supra, quoting from Bell v. Mazza, 394 Mass. 176, 183 (1985).
Here, the defendants sent e-mails encouraging others to reach out to store managers and discuss "deep disapproval" of the plaintiff's signature-gathering activity. Indeed, Kurland instructed the e-mail recipients to "threaten not to shop at the store again" and "express the opinion that many of [their] friends agree with [them]" so that "the[ ] [store managers] will remove [the canvassers] from the premises." Also, Dzuris proposed a "letter writing campaign" to various e-mail recipients, including Kurland, and kept others apprised, through e-mail, of where the petitioners were canvassing. See Corcoran, supra ("In order to determine if statements are petitioning, we consider them in the overall context in which they are made"). While these statements may have encompassed "the character of ‘petitioning activity,’ " other aspects of the defendants' actions, namely influencing others to interfere with the plaintiff's right to gather signatures, lacked characteristics of petition. Garabedian v. Westland, 59 Mass. App. Ct. 427, 432 (2003).
Under Massachusetts law, "any person seeking signatures in connection with access to the ballot, and distributing material associated therewith, has a right under art. 9 of the Declaration of Rights to do so, in a reasonable and unobtrusive manner...." Batchelder v. Allied Stores Intl., Inc., 388 Mass. 83, 84 (1983). ,
Article 9 of the Massachusetts Declaration of Rights provides:
"All elections ought to be free; and all the inhabitants of this commonwealth, having such qualifications as they shall establish by their frame of government, have an equal right to elect officers, and to be elected, for public employments."
In Glovsky v. Roche Bros. Supermarkets Inc., 469 Mass. 752, 762 (2014), the Supreme Judicial Court held that the art. 9 right to gather signatures extends to privately owned supermarkets that are not a part of strip malls or shopping centers. Here, the plaintiff alleges that the defendant interfered with his right to gather signatures in the parking lots and common areas in front of Demoulas Market Basket, in the East Gate Plaza, Hannaford Supermarket, in the Drum Hill Shopping Center, and Stop & Shop Supermarket Company, a freestanding grocery store.
Here, "[i]t was more than the [defendants'] petitioning activities that prompted the [plaintiff's] suit." Ayasli, supra at 748-749. For instance, Kurland's acts of encouraging others to telephone local supermarket owners and press the store managers to remove the plaintiff's canvassers provided "an independent basis for the [plaintiff's] complaint"—that the defendant was interfering with the plaintiff's art. 9 right to gather signatures. Ayasli, supra at 748. See Batchelder, supra. Therefore, the defendants have not made a threshold showing that the plaintiff's claims against them "are ‘based on’ the petitioning activities alone and have no substantial basis other than or in addition to the petitioning activities." Ayasli, supra, quoting from Duracraft Corp., 427 Mass. at 167-168.
2. Defamation claims. The plaintiff argues that the judge erred in granting the Kurland's special motion to dismiss on the plaintiff's defamation claims. We agree.
"At this early stage of the proceedings, ‘[t]he focus solely is on the conduct complained of, and, if the only conduct complained of is petitioning activity, then there can be no other "substantial basis" for the claim.’ " Cadle Co. v. Schlichtmann, 448 Mass. 242, 249 (2007), quoting from Office One v. Lopez, 437 Mass. 113, 122 (2002).
Here, the plaintiff alleges that there were defamatory statements made by Kurland, or attributed to him, in various public forums, such as local newspapers, online newsletters, Facebook entries, and public access television shows. In support of his amended complaint, the plaintiff submitted more than seventy statements made by the defendant.
We disagree with the judge's finding that "[t]he statements at issue here were all made to influence the Chelmsford electorate regarding the recall petition." "In order to determine if statements are petitioning, we consider them in the over-all context in which they were made." Blanchard, 89 Mass. App. Ct. at 102, quoting from Corcoran, 452 Mass. at 862. Not only were several of the alleged statements made prior to the commencement of the plaintiff's recall petition, but also, a numerous catalogue of these statements were made years after the recall election had ended. Moreover, none of these alleged defamatory statements seems to concern the recall election on its face. Compare Wynne v. Creigle, 63 Mass. App. Ct. 246, 254 (2005) (statements were "mirror images of those [the defendant] made during and ‘in connection with’ the departmental investigation of the plaintiff"), and Cadle Co., 448 Mass. at 251 (statements were not made as "a response to statements that [the plaintiff] had made to the press or repetitions of statements initially made in a governmental proceeding").
The recall election was held on August 2, 2011.
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Thus, Kurland has not met his initial burden in demonstrating that "the only conduct complained of is ... petitioning activity." Fabre v. Walton, 436 Mass. 517, 524 (2002). See Cadle Co., supra at 249 (the anti-SLAPP statute does not prohibit "the rights of opposing parties[ ] to petition the courts for redress of wrongs unlawfully inflicted by another").
3. Conclusion. Because we conclude that the defendants have not met their initial burden to establish that the conduct complained of by the plaintiff is based solely on petitioning activity, we do not address the second prong of the Duracraft test. See id. at 254 & n.11. The defendants' special motion to dismiss should not have been allowed. The judgment dismissing the plaintiff's complaint is reversed.
So ordered.
Judgment reversed.