Because both sides have rights to petition, framework to defeat anti-SLAPP motions expanded

By Joy Waltemath

By Joy P. Waltemath, J.D.

Construing the state anti-SLAPP statute and recognizing that in litigation under that statute, both parties enjoy the right to petition—including the right to seek redress in the courts—the Massachusetts Supreme Judicial Court “augmented the framework” for considering anti-SLAPP special motions to now allow nonmoving parties to establish that their claim was not “brought primarily to chill” the special movant’s legitimate exercise of its right to petition. In other words, the nonmovant can attempt to show its claim is not a SLAPP suit and without merit. In so holding, the high court also concluded that in a special motion to dismiss defamation claims by fired psychiatric unit nurses based on the hospital president’s statements in an internal hospital-wide email and to the press, the statements to the press were protected petitioning activity, but his email to the hospital was not. The case had to be remanded to give the nurses the opportunity to show that their defamation claim, even though based in part on protected petitioning activity, when viewed as a whole was nonetheless not a “SLAPP” suit (Blanchard v. Steward Carney Hospital, Inc., May 23, 2017, Lenk, B.).

Alleged defamation. The allegedly defamatory statements in question were made by the hospital president following four reported incidents of abuse at the adolescent psychiatric unit, which the hospital immediately reported to the state Department of Mental Health (DMH). DMH investigated and considered revoking the hospital’s license to operate the unit, which served mentally and physically challenged teenagers in “acute states,” who were admitted from other facilities as a “last resort.” The hospital hired senior counsel at Proskauer Rose to investigate, who eventually recommended that “it would be prudent to replace the current personnel” in light of what he termed “a code of silence” among the staff.

The hospital fired all the unit’s nurses, after which the president sent an email to all hospital employees stating that the terminated employees had “not demonstrated this steadfast commitment to patient care,” and “not been acting in the best interest of their patients, the hospital, or the community.” Two days later, an article in the Boston Globe quoted the hospital president alluding to the investigation’s conclusion that necessitated he “start over on the unit.” In a follow-up article a month later, the hospital president indicated that counsel’s investigative report said “it wasn’t a safe situation” and “underscored his decision to fire the entire staff of the unit.”

Hospital’s motion to dismiss under anti-SLAPP statute. When the nurses sued for defamation, both the hospital defendants and the Proskauer defendants moved to dismiss under the anti-SLAPP statute, Mass. G. L. c. 231, § 59H.10. Only the hospital’s motion to dismiss is involved in this appeal.

SLAPP and anti-SLAPP. SLAPP suits are “lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” Because their objective is to use litigation to intimidate opponents’ exercise of rights of petitioning and speech, the anti-SLAPP statute allows “for early dismissal via a special motion to dismiss claims that are based solely on a party’s exercise of its right to petition.” This requires the party seeking to dismiss to show that the claims against it are “based on” the petitioning activities alone and have no substantial basis otherwise. Here, under existing law, if the hospital could show that the nurses’ claim was based solely on the hospital’s “petitioning activities,” the burden would shift to the nurses to establish “by a preponderance of the evidence that the [hospital] lacked any reasonable factual support or any arguable basis in law for its petitioning activity,” and that the hospital’s sham petitioning activity caused the plaintiff nurses “actual injury.”

Were statements “petitioning activity?” Proceeding under the traditional statutory approach, the supreme court first addressed whether the hospital president’s communications to the Boston Globe and to the hospital employees were each made “in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other governmental proceeding”—DMH’s investigation of the incidents and its decision regarding the hospital’s license to operate the unit. If so, they would be petitioning activity under the anti-SLAPP statute.

Statements to press. The court found it reasonable to infer that statements made to the Boston Globe were intended to demonstrate to DMH the hospital’s public commitment to address the underlying problems at the unit, since DMH was considering whether to revoke the hospital’s license to operate the unit at the time. By making clear that the hospital was following the investigator’s recommendations, the public statements were neither “tangential” nor “unrelated to governmental involvement,” but rather went to the heart of the government agency’s decision whether to terminate the hospital’s license to operate the unit. The fact that the hospital was also trying to protect its public reputation did not refute this, said the court, because ulterior motives would not change the petitioning nature of the press statements.

Internal email message. Not so with the internal email message, however. Neither the content of the email message, nor any evidence offered by the hospital, suggested any audience for the message other than hospital employees, especially where there did not appear to be any mechanism by which the statement could come to DMH’s attention. Thus, the email did not qualify as petitioning activity.

“Based on.” The state supreme court had not before considered whether the anti-SLAPP moving party (the hospital here) could meet its threshold burden by showing that only part of the nonmoving party’s (the nurses here) claim was based on petitioning activity. That was enough, said the court, because to hold otherwise would allow nonmoving parties to undercut the anti-SLAPP statute by combining into a single count claims that are based on both petitioning and nonpetitioning activities (because anti-SLAPP motions typically involve the assessment of individual claims). And that meant the case had to be remanded for the nurses to be allowed to try to defeat the motion.

Not a “SLAPP.” Current case law would require the nurses to show that the hospital’s petitioning activity (on which only a part of the nurses’ defamation claim was based) was a “sham”—without a reasonable basis in fact or law. Here, however, it was clear to the court that the nurses’ claim might not have been brought primarily to chill the hospital’s legitimate right to petition, and this exposed a problem with the anti-SLAPP statute: “[B]oth parties enjoy the right to petition, including the right to seek redress in the courts.” Only meritless SLAPP suits should be subject to expedited dismissal, stressed the court, yet as construed, the statute still raised constitutional concerns. Accordingly, the high court broadened the construction of the statutory term “based on.” So, while the nurses could still defeat the hospital’s special motion to dismiss by demonstrating that the hospital’s petitioning activity was a sham, the nurses could also defeat the motion by establishing that their defamation claim was not “brought primarily to chill” the hospital’s legitimate exercise of its right to petition. Thus, on remand, the nurses could attempt to make such a showing, concluded the court.

Source:: Because both sides have rights to petition, framework to defeat anti-SLAPP motions expanded