LYNNE BLANCHARD & OTHERS vs. STEWARD CARNEY HOSPITAL, INC., & OTHERS.
No. 14-P-717.
Suffolk. January 14, 2015. - February 24, 2016.
89 Mass. App. Ct. 97 (2016)
Present: KATZMANN, SULLIVAN, & BLAKE, JJ.
“Anti-SLAPP” Statute. Constitutional Law. Right to petition government. Practice, Civil, Standing, Motion to dismiss.
Discussion of G. L. c. 231, § 59H, the so-called “anti-SLAPP” statute, which protects the right of petition, and of the standard of review applicable to an appeal from a trial court judge’s order on a special motion to dismiss a “SLAPP” lawsuit. [102-104]
In an appeal from a Superior Court judge’s denial of a special motion to dismiss a defamation suit under G. L. c. 231, § 59H, the so-called “anti-SLAPP” statute, there was no merit to the claim that an individual defendant lacked standing, where that individual was engaged in petitioning activity on behalf of the defendant hospital while he was its president. [104]
In an appeal from a Superior Court judge’s denial of a special motion to dismiss a defamation suit under G. L. c. 231, § 59H, the so-called “anti-SLAPP” statute, the statements by the president of a hospital to a newspaper were sufficiently tied to and in advancement of the maintenance of the hospital’s license to operate one of its units to qualify as protected petitioning activity, and further, the statements were responsive to materials that the plaintiffs’ union representatives earlier had provided to the newspaper rather than unsolicited and were essentially mirror images of statements appearing in a report that the hospital had commissioned to assure investigating agencies that it was taking the requisite action to fix a particular problem; the plaintiffs failed to demonstrate that the defendants’ petitioning activity in this regard was devoid of factual or legal support. [104-110] SULLIVAN, J., concurring in the result.
In an appeal from a Superior Court judge’s denial of a special motion to dismiss a defamation suit under G. L. c. 231, § 59H, the so-called “anti-SLAPP” statute, an electronic mail message sent by the president of a hospital to its staff did not qualify as petitioning activity, where there was no allegation or averment that the message was provided to government regulators investigating a particular problem or that the regulators were informed of it. [110-111] SULLIVAN, J., concurring in the result.
1Gail Donahoe, Gail Douglas-Candido, Kathleen Dwyer, Linda Herr, Cheryl Hendrick, Kathleen Lang, Victoria Webster, and Nydia Woods.
2Steward Hospital Holdings, LLC; Steward Health Care System, LLC; and William Walczak.
A special motion to dismiss was heard by Linda E. Giles, J.
Jeffrey A. Dretler (Katharine A. Crawford & Joseph W. Ambash also present) for the defendants.
Dahlia C. Rudavsky (Ellen J. Messing also present) for the plaintiffs.
KATZMANN, J. In this case we consider whether the defendants’ special motion to dismiss the plaintiffs’ defamation claim pursuant to G. L. c. 231, § 59H, widely known as the “anti-SLAPP”3 statute, was properly denied. The central question is whether, during a period of crisis when Steward Carney Hospital (Carney Hospital or hospital) faced the loss of its license to operate an in-patient adolescent psychiatric unit (unit) because of purported patient abuse and neglect, statements quoted in a newspaper made by the president of the hospital, and an electronic mail message (e-mail) the president sent to hospital staff announcing the dismissal of unnamed employees in the unit under review, constituted protected petitioning activity. A judge in the Superior Court denied the motion because she found that the statements upon which the claim was based did not qualify as protected petitioning activity and, therefore, the defendants could not seek protection of the anti-SLAPP statute. We conclude that the statements quoted in the newspaper constitute protected petitioning activity, but that the internal e-mail does not. Accordingly, we affirm in part and reverse in part.
Background. The key facts of this case, as derived from the judge’s decision below, the newspaper articles at issue, affidavits by those involved in the investigation, testimony in a related arbitration proceeding (see note 4, infra), and relevant reports, are as follows. The plaintiffs are all registered nurses (RNs) who had been working in the unit for a number of years. In April, 2011, complaints were made concerning four incidents of alleged patient abuse or neglect within the unit. None of the alleged incidents involved abuse or neglect of a patient by any of the plaintiffs (or any other RN). The incidents were reported to the Department of Mental Health (DMH), the Department of Public Health (DPH), and the Department of Children and Families
In late April, 2011, in response to the incidents, Carney Hospital placed all mental health counsellors, all regularly assigned unit RNs (including the plaintiffs), and two managers on paid administrative leave. The hospital then hired Attorney Scott Harshbarger and his law firm, Proskauer Rose, LLP (Proskauer defendants), to conduct an over-all management review of the unit and make recommendations. Harshbarger interviewed unit staff, including each of the plaintiffs. The plaintiffs identified specific issues that affected patient care and areas for improvement. On May 13, 2011, Harshbarger made an oral report of his conclusions to the hospital’s then president, William Walczak; Harshbarger submitted his written report on May 26, 2011. In the report, which made no specific allegations of abuse or neglect against any of the individual plaintiffs or any member of the nursing staff, Harshbarger recommended that the hospital “rebuild” the unit by replacing all of its personnel. The report cited “serious weaknesses” in the supervisory and managerial structure of the unit, including, inter alia, “lack of a clear reporting structure, lack of accountability, oversight of patient care and quality, patient and staff safety concerns, and a flawed and rarely invoked disciplinary process.” The report cited a “code of silence” as one of the underlying sources and causes of operational and performance dysfunction. “This code results in a failure to report issues or concerns, and to reinforce a general attitude that reporting can trigger retaliation, intimidation, and/or be ignored or unsupported by others.” The report concluded that “it would be prudent to replace the current personnel in order to ensure quality care” for the patients.
The day that Walczak received Harshbarger’s report, he sent a letter to each plaintiff terminating her for her “conduct at work.”4
“As you all know, Carney Hospital has a rich tradition of providing excellent care to our patients. Our performance on national quality and safety standards is exceptional, and in many cases superior to competing hospitals. The reason for this performance is simple — you[,] the employees and caregivers at Carney [Hospital], are dedicated to providing the best possible care to every patient that comes through our doors. It is your dedication that makes Carney Hospital such a special place.
“Recently, I have become aware of alleged incidents where a number of Carney [Hospital] staff have not demonstrated this steadfast commitment to patient care. I have thoroughly investigated these allegations and have determined that these individual employees have not been acting in the best interest of their patients, the hospital, or the community we serve. As a result, I have terminated the employment of each of these individuals.”
The following day, on May 28, 2011, the Boston Globe published an article stating that Walczak said he had hired Harshbarger to investigate an allegation that an employee had allegedly sexually assaulted a teenager on the locked adolescent psychiatry unit, and that Harshbarger had recommended “to start over on the unit.” The article included Walczak’s statement that Harshbarger’s report “described ‘serious concerns about patient safety and quality of care.’” The article reported that Walczak further stated, “We will have top-notch employees replace those who left. My goal is to make it the best unit in the state.” In the article, a spokesman for the Massachusetts Nurses Association, a union representing the plaintiffs, said that the “hospital fired 29 employees, including 13 nurses who are members of the union.”
In June, 2011, DMH issued reports on the incidents, finding wrongdoing by a single mental health counsellor for the first three
bargaining agreement] by discharging the grievants.” According to the complaint, the arbitrator stated that “the concept of collective guilt and responsibility does not suffice to establish just cause to terminate any particular member of the group,” and ordered reinstatement, removal of any allegations or findings of wrongdoing from the grievants’ personnel files, and payment to them of all lost back wages and benefits, with interest. The complaint stated that the Steward defendants have appealed the award and have not reinstated any of the plaintiffs.
On May 24, 2013, the plaintiffs filed their defamation claims against the Proskauer defendants5 and against Carney Hospital, two related entities, and Walczak (collectively, Steward defendants).6 Relevant to the instant appeal, pursuant to the anti-SLAPP statute, the Steward defendants filed a special motion to dismiss count 3 of the complaint (defamation), which alleged that Walczak “made false and defamatory statements about the plaintiffs to the general public in his remarks in the Boston Globe articles of May 28, 2011, and June 22, 2011,” and “made false and defamatory statements about the plaintiffs to Hospital staff in his email of May 27, 2011.” The judge denied this motion,
Discussion. 1. Overview. a. The anti-SLAPP statute. The anti-SLAPP statute, G. L. c. 231, § 59H, “protects the ‘exercise of [the] right of petition under the constitution of the United States or of the [C]ommonwealth,’ by creating a procedural mechanism, in the form of a special motion to dismiss, for the expedient resolution of so-called ‘SLAPP’ suits.” Office One, Inc. v. Lopez, 437 Mass. 113, 121 (2002) (Office One, Inc.). “In the preamble to 1994 House Doc. No. 1520, the Legislature recognized that . . . ‘there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances.’” Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 161 (1998) (Duracraft). Under the “well-established [two-part] burden-shifting test,” Hanover v. New England Regional Council of Carpenters, 467 Mass. 587, 595 (2014), “[t]o invoke the statute’s protection, the special movant[s], [here, the Steward defendants, must] show, as a threshold matter, through pleadings and affidavits, that the claims against [them] are . . . ‘based on’ [their] petitioning activities alone and have no substantial basis other than or in addition to [their] petitioning activities.” Office One, Inc., supra at 122, citing Duracraft, supra at 167-168. Wenger v. Aceto, 451 Mass. 1, 5 (2008) (Wenger). This is the first prong of the test. Under the second prong, if the special movants make such a showing, the burden then shifts to the nonmoving party to demonstrate by a preponderance of the evidence that the moving party’s activities were “devoid of any reasonable factual support or any arguable basis in law” and that the petitioning activities caused actual injury. Benoit v. Frederickson, 454 Mass. 148, 152-153 (2009) (Benoit), quoting from
“In order to determine if statements are petitioning, we consider them in the over-all context in which they were made.” North Am. Expositions Co. Ltd. Partnership v. Corcoran, 452 Mass. 852, 862 (2009) (Corcoran). “[‘P]etitioning’ has been consistently defined to encompass a ‘very broad’ range of activities in the context of the anti-SLAPP statute.” Id. at 861, citing Duracraft, supra at 161-162. “The statute identifies five types of statements that comprise ‘a party’s exercise of its right of petition’:
Cadle Co. v. Schlichtmann, 448 Mass. 242, 248 (2007) (Cadle Co.). The second category is of particular relevance to the instant case.
b. Standard of review. As has been stated, we review the judge’s decision to grant the special motion to dismiss for abuse of discretion or error of law. See Marabello v. Boston Bark Corp., 463 Mass. 394, 397 (2012); Hanover, 467 Mass. at 595. We note that while this formulation appears in various anti-SLAPP decisions, there are other cases where it is absent. See, e.g., Corcoran, 452 Mass. 852; Benoit, 454 Mass. 148; Ehrlich v. Stern, 74 Mass. App. Ct. 531 (2009) (Ehrlich). In any event, with respect to the first prong of the test — whether conduct as alleged on the face of a complaint qualifies as protected petitioning activity — it does not appear that the courts have deferred to the motion judge but rather have made a fresh and independent evaluation. See, e.g., Corcoran, 452 Mass. at 863-864 (discussing Cadle Co., 448 Mass. 242 [2007]); Plante v. Wylie, 63 Mass. App. Ct. 151, 160-161 (2005) (Plante). Where the motion judge’s determination of the second prong of the two-part test does not implicate credibility assessments, it is arguable that appellate review should be similarly de novo. See, e.g., Benoit, 454 Mass. at 154 n.7 (discussing the appropriate standard of review with respect to the analysis of the second prong of the two-part test).7
2. Standing. At the outset we briefly address and reject the plaintiffs’ standing argument. The plaintiffs contend that the anti-SLAPP statute does not apply because Walczak is not personally aggrieved by the agencies’ actions and was not petitioning them on his own behalf. Keegan v. Pellerin, 76 Mass. App. Ct. 186, 191-192 (2010), is dispositive on this issue. Here, Walczak, who engaged in petitioning activity on behalf of the hospital while he was its president, is protected by the anti-SLAPP statute because “when a nongovernmental person or entity is the petitioner, the statute protects one who is engaged to assist in the petitioning activity under circumstances similar to those this record reveals.” Id. at 192, citing Plante, 63 Mass. App. Ct. at 156-157. See Office One, Inc., 437 Mass. at 121-124. See also Corcoran, 452 Mass. 852 (2009) (underlying suit named the defendants’ principal, whose statements were challenged, as an individual defendant).8 Walczak thus has standing.
3. The statements to the Boston Globe. By way of overview, we note our conclusion, discussed infra, that the judge erred in concluding that Walczak’s statements to the Boston Globe “can[not] be considered petitioning activity under Massachusetts law.” We disagree with the stark contrast the judge drew between the Proskauer defendants’ statements in the report and the statements the Steward defendants made in the Boston Globe articles.
a judge in deciding a special motion to dismiss is not which of the parties’ pleadings and affidavits are entitled to be credited or accorded greater weight, but whether the nonmoving party has met its burden (by showing that the underlying petitioning activity by the moving party was devoid of any reasonable factual support or arguable basis in law, and whether the activity caused actual injury to the nonmoving party).”
454 Mass. at 154 n.7.
a. Specifically, the parties disagree as to whether Walczak’s statements in the Boston Globe articles on May 28, 2011, and June 22, 2011, qualify as protected petitioning activity. We conclude, as this court did in Wynne v. Creigle, 63 Mass. App. Ct. 246, 254 (2005) (Creigle), that Walczak’s statements “were sufficiently tied to and in advancement of” the maintenance of the license to operate the unit. In Creigle, there were two independent bases on which the defendant’s statements to the newspaper were found to be protected petitioning activity. One basis was that the
We similarly conclude from the content of the Boston Globe articles, particularly the June 22 article, and from Walczak’s affidavit, which was not challenged by the plaintiffs, that the “defendant’s statements were not unsolicited” but, rather, were responsive. In his affidavit, Walczak states that he “understood that representatives from the nurses’ union were commenting to the media on the terminations and that the media was also seeking commentary from current and former officials from the very regulatory agencies who were in the process of reviewing Carney Hospital’s licensing status. As such, [he] felt that it was important that [he] explain to the media, and hence to the general public and the agencies themselves, why Carney Hospital took the actions that it did, and what [their] plans were for ensuring the safety and care of our patients going forward.” The relevant Boston Globe articles include statements and perspectives from the nurses’ representatives that demonstrate that they were actively informing reporters about the nurses’ side of the story, denying any allegations of wrongdoing. Harshbarger noted in his affidavit that there was public pressure on the agencies to close the unit and withdraw its license. Walczak’s comments, when viewed in this context, qualify as protected petitioning activity because the investigation was ongoing, and it is clear that DMH, which was regularly on site at the hospital, would be paying attention, or at least would have access to these articles. If Walczak did not
“sincere belief that [his] comments to the media would reach the regulators with the message that Carney Hospital had taken the incidents very seriously, implemented immediate remedial action, and developed a plan of action, all of which would contribute to convincing the agencies that patient safety was a priority and that the Unit should remain licensed and open.”
With the agencies continuously monitoring the situation and the unavoidable publicity that developed around it, the media essentially became a venue to express the perspectives of each side; as such, the Boston Globe articles were available to, and likely considered by, the regulatory agencies. The judge erred in concluding that the statements to the Boston Globe were not protected activity on the ground that the Steward defendants, both directly and through Harshbarger, “already were in communication with the agencies regarding their investigation.” This conclusion ignored Harshbarger’s averments regarding those communications. His affidavit stated, “At this point, DMH’s investigation was ongoing and the possibility that the Unit’s license to operate would be revoked and the Unit would be closed was still not only being considered, but highly likely. There was some public pressure on the agencies to close the Unit and withdraw the necessary license.”
Walczak’s statements in the Boston Globe describing the actions the hospital had taken — particularly where there was ongoing public pressure on the agencies to close the unit and to withdraw the hospital’s license to operate the unit — were important affirmations, as they came from the president of the hospital himself in support of the urgent goal of influencing DMH
In context and in totality, Walczak’s statements to the Boston Globe were in furtherance of the overriding strategic mission of bringing to bear upon the regulatory decisionmakers the seriousness of the hospital’s effort to reform the institution. As such, the Steward defendants have satisfied their burden of making a threshold showing that the plaintiffs’ “claims [are] ‘based on’ [the] petitioning activit[y] alone and have no substantial basis other than or in addition to [the] petitioning activit[y].” Office One, Inc., 437 Mass. at 122, citing Duracraft, 427 Mass. at 167-168. Contrast Global NAPS, Inc. v. Verizon New England, Inc., 63 Mass. App. Ct. 600, 605 (2005) (Global NAPS, Inc.). That the statements in the media were not made directly to the regulatory agencies does not remove them from protected petitioning activity, given that the ultimate audience was those agencies. Walczak’s statements to the Boston Globe were protected petitioning activity because they were made “to influence, inform, or at the very least, reach governmental bodies — either directly or indirectly” (emphasis added). Corcoran, 452 Mass. at 862, quoting from Global NAPS, Inc., 63 Mass. App. Ct. at 605.
We also conclude that Walczak’s statements in the Boston Globe articles qualify as protected petitioning activity on the alternative basis that they are “essentially mirror images” of statements in the report. In essence, the plaintiffs argue that in order to qualify as “mirror images,” the statements in the Boston Globe and the report must be identical. The case law, however, indicates that the contested statements do not have to be an exact match but rather must be only “essentially” mirror images of the protected statements. Creigle, 63 Mass. App. Ct. at 254. See Burley, 75 Mass. App. Ct. at 823. We interpret the qualifier “essentially” as requiring only that the statements be close to or
b. Our focus now shifts to the plaintiffs, because even though we conclude that with respect to the statements to the Boston Globe, the plaintiffs’ claim was “based on” the defendants’ protected petitioning activity, the plaintiffs have the opportunity to defeat the special motion to dismiss the defamation count based on those statements by showing, “by a preponderance of the evidence, that . . . the defendants’ petitioning activity [was] devoid of any reasonable factual [or legal] support . . . and that . . . the activity caused the plaintiffs actual harm.” Office One, Inc., 437 Mass. at 123. See Duracraft, 427 Mass. at 165; Wenger, 451 Mass. at 5, citing
The plaintiffs have failed to show that the defendants’ petitioning activity, as constituted by the statements to the Boston Globe, was devoid of factual or legal support.10 “Because the plaintiffs failed to show that the petitioning activity in issue was devoid of any reasonable factual basis or basis in law, it is not necessary to reach the question whether the activity caused the plaintiffs actual injury.” Office One Inc., 437 Mass. at 124. See Creigle, 63 Mass.
4. The e-mail sent to Carney Hospital staff. We turn now to the e-mail that Walczak sent on May 27, 2011, to the Carney Hospital staff. In that e-mail, he noted the hospital’s “rich tradition of providing excellent care to our patients,” that he had “become aware of the alleged incidents where a number of Carney [Hospital] staff have not demonstrated this steadfast commitment to patient care,” “that these individual employees have not been acting in the best interest of their patients, the hospital, or the community we serve,” and that “[a]s a result, [he had] terminated the employment of each of these individuals.” In his affidavit filed in the litigation below, Walczak avers that the e-mail was sent “not only to communicate to the hospital employees what was happening, but to give assurances to the regulatory agencies who were in the process of determining whether Carney Hospital’s license to operate the Unit should be revoked that the deficiencies which has [sic] been reported on the Unit would not continue in that Unit or be tolerated in any other part of Carney Hospital.”11
Regarding whether the e-mail could qualify as petitioning activity, the Superior Court judge ruled: “With respect to the email which Walczak sent to the internal employees of Carney Hospital, this communication cannot be considered petitioning activity protected by
During the hearing on the anti-SLAPP motion to dismiss, the judge appropriately indicated that she could “look at the[ ] affidavits.” There was no allegation or averment in Walczak’s affidavit, or in any of the other affidavits presented to the judge, that the e-mail sent to the Carney Hospital staff was provided to the regulators, or that the regulators were told about it. That the e-mail may have been part of an over-all strategy to address the conditions in the unit in the hope of influencing the regulators is not sufficient to qualify as petitioning activity where there is no evidence in the record that the e-mail was transmitted to the regulators or that they were informed of that communication. In sum, we cannot say that the judge erred in her determination that the Steward defendants had “not shown [that] the statements in the email, communicated only to Carney Hospital employees,” qualified as protected petitioning activity.12 Compare Burley, 75 Mass. App. Ct. at 823 (moving party failed to show that statements to employees were made “in conjunction with its protected petitioning activity”).
Conclusion. The order of the Superior Court is reversed insofar as it denied the Steward defendants’ special motion to dismiss count 3 of the plaintiffs’ complaint (defamation) as to Walczak’s statements to the Boston Globe. In all other respects the order is affirmed.13,14
So ordered.
Standard of review. A threshold question is the proper application of the standard of review. We review the motion judge’s decision for an abuse of discretion. See Kobrin v. Gastfriend, 443 Mass. 327, 330-331 (2005) (Kobrin); Marabello v. Boston Bark Corp., 463 Mass. 394, 397 (2012) (Marabello).2 Whether the appellate courts have functionally conducted (or should conduct) a “fresh and independent evaluation” of anti-SLAPP motions to dismiss, albeit under the umbrella of the abuse of discretion standard, is a different question, one left largely unanswered by existing precedent. See ante at 103. To be sure, an appellate court reviews errors of law de novo, and an error of law is an abuse of discretion. See Kobrin, supra at 330-331; Marabello, supra at 397. With some frequency the existence of petitioning activity has been decided as a matter of law on the basis of the complaint.3 See Fabre v. Walton, 436 Mass. 517, 522-523 (2002); Office One,
In this case, we also have the moving parties’ affidavits. How must those affidavits be treated? The answer lies in the hornbook principle, as applicable in anti-SLAPP suits as in other areas of the law, that the judge may look to the entire record and is not required to credit a defendant’s affidavit. See Cadle Co. v. Schlichtmann, 448 Mass. 242, 250-251 (2007) (Cadle). In the context of an anti-SLAPP motion, this means that the judge is not required to accept at face value either party’s “self-serving characterization” of conduct as petitioning or nonpetitioning activity. See ibid. (holding that the judge was permitted to determine as a factual matter that the defendant had failed to meet his burden to show that the purpose in setting up a litigation Web site was petitioning rather than commercial).4 In my view, this determination on appeal falls under the more deferential standard of review for abuse of discretion, id. at 250, that is, whether the motion judge
Mass. App. Ct. 186, 190 (2010). See also McLarnon v. Jokisch, 431 Mass. 343, 347 (2000) (application for an abuse prevention order). The cases cited ante at 103 arose as a question of law based on a review of the complaint. The sole exception is North Am. Expositions Co. Ltd. Partnership v. Corcoran, 452 Mass. 852, 854 & n.5 (2009), where the court supplemented its review of the allegations of the complaint, but with uncontested evidence only. This case arises in a different posture.
The defamation claim. Turning to the defamation claim, the complaint alleges and Walczak’s affidavit confirms that he sent an e-mail to all Carney Hospital employees. The e-mail contained a stern warning about patient care, hospital standards, and his reasons for the mass termination. There was no allegation or averment in this or any other affidavit that the e-mail was provided to the regulators, or that the regulators were told about it. The judge concluded that the Steward defendants “have not shown how the statements in the email, communicated only to Carney Hospital employees, were intended to influence, inform, or reach, directly or indirectly, governmental agencies. . . . The statements cannot be considered petitioning activity merely because they communicated to the Hospital staff what remedial action the Hospital was taking as a response to a regulatory agency investigation.”
The judge did not abuse her discretion. As a matter of law, the hospital’s decision to terminate the employment of all employees in the adolescent psychiatric unit (unit) was conduct, not speech, and is not entitled to the protection of the anti-SLAPP statute. See Marabello, 463 Mass. at 398-400. The fact that the hospital explained its actions to its employees does not transform conduct into petitioning activity. A “tangential statement[ ]” that “concerns a topic that has attracted governmental attention . . . does not give that statement the character contemplated by the statute.” Global NAPS, Inc. v. Verizon New England, Inc., 63 Mass. App. Ct. 600, 605, 607 (2005). That the e-mail may have been part of an over-all strategy to address the conditions in the unit and thereby avoid the wrath of the regulators is not enough. “[A]n over-broad construction of the anti-SLAPP statute would compromise the nonmoving party’s right to petition — the same right the statute was enacted to protect.” Kobrin, 443 Mass. at 335.5
It is not clear from the judge’s decision whether she did not credit Walczak’s affidavit or whether, even if she accepted it at
First, for the reasons stated above, the judge did not abuse her discretion to the extent that she declined to credit Walczak’s affidavit. See Cadle, 448 Mass. at 250. The judge considered the affidavit6 and found it unpersuasive in light of the complete absence of any evidence that the e-mail was sent to the regulators. In this factual context, the judge did not engage in a clear error in judgment in concluding that the affidavit, crafted after the fact for purposes of supporting the special motion, failed to sustain the defendants’ burden to show that Walczak engaged in petitioning activity. The statements in the affidavit concerning the defendants’ motives and beliefs are not relevant. “We care not whether a defendant seeking dismissal under the anti-SLAPP statute is ‘sincere’ in his or her statements; rather, our only concern, as required by the statute, is that the person be truly ‘petitioning’ the government in the constitutional sense.” Kobrin, 443 Mass. at 338 n.14.
Second, even if the judge were to give weight to Walczak’s statement that he hoped to influence the regulators (which she clearly did not in view of the lack of any indication that the regulators knew of the e-mail’s existence), or to simply accept the statements at face value, Walczak also stated that he “sent this email . . . to communicate to the hospital employees what was happening.”7 On its face, the e-mail served patient care and labor relations purposes separate and independent of any claimed at-
For this reason above all others, the judge also correctly ruled as a matter of law that the motion should be denied. It bears remembering that the “sole purpose” doctrine came about as a judicial gloss — a gloss designed to save the statute from constitutional infirmity.8 In Duracraft, 427 Mass. at 167, the Supreme Judicial Court “adopt[ed] a construction of [the words] ‘based on’ that would exclude motions brought against meritorious claims with a substantial basis other than or in addition to the petitioning activities implicated” (emphasis added). By limiting anti-SLAPP motions to those cases where the only basis for the plaintiffs’ complaint is the defendants’ nonfrivolous petitioning activity, the court resolved the “conundrum [that had] troubled judges and bedeviled the statute’s application” — that is, how to protect the defendants’ right to petition the government, provided the petition is not a sham, while at the same time also protecting an adverse party’s right to petition. Id. at 166-167. See Kobrin, 443 Mass. at 335.
The statements attributed to Walczak in the newspaper articles suffer from precisely the same defects as the e-mail. The judge found the statements to the Boston Globe to be tangential, “particularly when the defendants already were in communication with the agencies.” In addition, the Walczak affidavit states that his comments to the Globe were an appeal to the public, an understandable purpose in light of the potential impact of the allegations on the confidence of patients, donors, insurers, and
would not continue in that Unit or be tolerated in any other part of Carney Hospital” (emphasis added).
It matters not that the statements to the press (like the e-mail) may have been part of an over-all strategic mission to influence regulators. See ante at 105. Nor does it matter, for First Amendment purposes, that a single act — the statements to the Globe — may arguably serve both petitioning and nonpetitioning purposes. If the conduct complained of serves a substantial nonpetitioning purpose (such as persuading patients, future patients, donors, future donors, insurers, and the public at large of the quality of patient care), the complaint must go forward. Otherwise, the scope of the anti-SLAPP statute would expand exponentially to include protected First Amendment petitioning activity. The result would be an interpretation of the statute that renders it constitutionally infirm. See Duracraft, 427 Mass. at 166-167; Kobrin, 443 Mass. at 335.
However, because I agree with the majority that the statements in the press, made in response to the Massachusetts Nurses’ Association’s comments on the terminations, were protected by the mirror image doctrine, I also must agree, based on our existing precedent, that the statements to the Globe acquired the status of protected petitioning activity. See Wynne v. Creigle, 63 Mass. App. Ct. 246 (2005). Contrast Cadle, 448 Mass. at 251 (“Here, nothing in the record would support a finding that the challenged statements made by Schlichtmann were either a response to statements that Cadle had made to the press or repetitions of statements initially made in a governmental proceeding”). Other than the brief reference in Cadle, the mirror image doctrine has not been considered in any depth by the Supreme Judicial Court, and its parameters have not been much explored by this court. Whatever those parameters may be, I concur with the majority that the fact that the hospital was responding to (not initiating) a
Which leads to the final conundrum — the ultimate disposition of the defamation claim. In Wenger, 451 Mass. at 9, the Supreme Judicial Court, without discussion, parsed a complaint, count by count, dismissing some counts under the anti-SLAPP statute and preserving others. This approach has borne some criticism, on the theory that parsing claims undermines the “sole purpose” doctrine and results in expensive and complicated litigation contrary to the purpose of the anti-SLAPP statute. See One Claim at a Time: The Inherent Problems with Piecemeal Application of the anti-SLAPP Statute, Vol. 11-n1 Mass. Bar Assn. Section Rev. (2009). Wenger remains good law, however, and we follow it.11
This case is different in that it involves a single count alleging two separate acts of defamation. One of our cases since Wenger has explicitly stated that “the anti-SLAPP inquiry produces an all or nothing result as to each count the complaint contains. Either the count survives the inquiry or it does not, and the statute does not create a process of parsing counts to segregate components from those that cannot.” Ehrlich, 74 Mass. App. Ct. at 536, and cases cited. Accord Burley, 75 Mass. App. Ct. at 821. The majority holds that the statements to the Globe could have as easily been pleaded as two counts rather than one, and that it would elevate form over substance to permit the count based on the statements to the Globe to go forward, thus distinguishing Ehrlich. Whether Wenger governs in this circumstance as well, or whether Ehrlich is the correct statement of the law turns, as does much of this case, on further clarification of the reach of the “sole purpose” doctrine first articulated in Duracraft.
Accordingly, I concur in the result solely because I agree with those portions of the majority opinion that hold that the e-mail was not petitioning activity and the statements to the Boston Globe were protected by the mirror image doctrine under existing precedent.