SAUNDRA R. EDWARDS vs. COMMONWEALTH & another.
Supreme Judicial Court of Massachusetts
June 8, 2017
477 Mass. 254
Essex. February 6, 2017. — June 8, 2017.
Present: GANTS, C.J., LENK, HINES, GAZIANO, & LOWY, JJ.
Discussion of the conflicting policy considerations regarding the recognition of an absolute privilege shielding certain high-ranking State officials from defamation claims for statements made within the scope of their official duties. [260-262]
In a civil action alleging defamation arising from statements to the media that the former governor made in connection with his removal of the plaintiff from her position as chair of the Sex Offender Registry Board, the judge erred in denying the former governor‘s motion to dismiss the complaint, where the plaintiff failed to allege that the former governor made the statements in question with actual malice, i.e., with knowledge that they were false or with reckless disregard of their falsity. [262-267]
CIVIL ACTION commenced in the Superior Court Department on December 31, 2014.
Motions to dismiss were heard by Richard E. Welch, III, J.
The Supreme Judicial Court granted an application for direct appellate review.
Michael J. Pineault for Deval Patrick.
William H. Sheehan, III (Thomas J. Flannagan also present) for the plaintiff.
GAZIANO, J. On September 16, 2014, then Governor Deval Patrick removed Saundra R. Edwards from her position as chair of the Sex Offender Registry Board (SORB). A few days later, in response to media inquiries about Edwards‘s abrupt departure, Patrick explained that, among other reasons, he had decided to replace Edwards because she inappropriаtely had attempted to pressure a SORB hearing officer to change the outcome of one of his decisions on an offender‘s classification level. In subsequent comments to the media, after Edwards had filed an action for defamation and wrongful termination in the Superior Court, Pat
Patrick moved pursuant to
Considering first whether the amended complaint alleges facts sufficient to overcome a qualified or conditional privilege, we conclude that it does not assert facts sufficient to demonstrate that Patrick‘s statements to the media were made with actual malice, and thus the complaint against him properly should have been dismissed. Given this conclusion, we need not reach Patrick‘s argument as to the existence of an absolute privilege against defamation claims for a governor, or other high-ranking State official, for statements made in the course of his or her official duties.
1. Background. We recite the facts asserted in the amended complaint, taking them as true for purposes of evaluating the motion to dismiss. SORB is an administrative agency within the Executive Office of Public Safety and Security (EOPSS). SORB
Edwards had been a member of the Massaсhusetts bar for almost twenty-five years when Patrick appointed her as chair of SORB on November 5, 2007. Edwards served in that role until September 16, 2014. Prior to her appointment, Edwards had served as an assistant district attorney in Plymouth County for thirteen years. She specialized in prosecuting sex offenses, child abuse, and domestic violence.
a. Sigh-Paglia matter. According to the amended complaint, in September, 1993, Patrick‘s brother-in-law, Bernard Sigh, pleaded guilty to a charge of spousal rape in California; in his plea he admitted that he “accomplished an act of sexual intercourse with [his] wife against her will by means of force.” He was sentenced to a term of incarceration followed by five years of probation. Sigh moved to Massachusetts in 1995, but did not register as a sex offender when the Legislature enacted the sex offender registry law in 1996.3
In December, 2006, almost a year before Edwards‘s appointment as chair, SORB notified Sigh of his duty to register as a level 1 (lowest risk) sex offender. Sigh sought a hearing to challenge the determination that he had been convicted of a “like offense” to the offense of rape as defined in Massachusetts law. SORB scheduled a hearing on his petition and assigned the matter to one of its board members. While that hearing was pending, SORB referred to the office of the Attorney General the question whether a conviction of spousal rape under California law was a “like offense” to rape under Massachusetts law, thus requiring a Massachusetts resident to register with SORB.
SORB hearing officer Attilio Paglia replaced the previously assigned board member, and scheduled a hearing on Sigh‘s peti
Notwithstanding these instructions, Paglia began the hearing on August 1, 2007. After being informed of the hearing, Paglia‘s supervisor ordered him not to issue a decision in the matter pending a determination by the Attorney General. Paglia continued to hear evidence on August 10 and 31 and issued an oral decision finding that the California crime of spousal rape is not a like offense to the Massachusetts crime of rape. Accordingly, he relieved Sigh of the obligation to register as a sex offender. Paglia did not issue a written decision, as is required by SORB regulations.
b. Edwards‘s involvement in the Sigh-Paglia matter. Edwards took office on November 5, 2007, several months after the Sigh hearing and the oral decision. She was advised by SORB‘s counsel and other SORB officials of the disagreement between SORB administrators and Paglia. She also learned that, as a result of his actions with respect to the Sigh matter, Paglia had been disciplined for insubordination.
On May 9, 2008, Edwards met with Paglia to discuss the Sigh matter. She informed Paglia (who is not an attorney) of the legal elements of rape as defined under Massachusetts law, and told him that the California crime of spousal rape is a like offense to the Massachusetts crime of rape because “rape is rape.” After consulting with EOPSS and SORB‘s general counsel, Edwards directed that a written decision issue in the Sigh case. SORB also enacted an emergency regulation to permit it to correct errors of law by hearing officers. To prevent further classification errors, Edwards also instituted a training program on the elements of Massachusetts sex offenses and on conducting classification hearings.
Paglia resigned from his position at SORB and commenced a “whistleblower” action,
Notes
Paglia claimed that the SORB defendants, including Edwards, engaged in repeated and unsuccessful efforts to change the result of the Sigh hearing, and created a hostile work environment, characterized by harassing electronic mail messages and telephone calls, and poor performance reviews. Paglia also claimed that he had complained to Edwards about “unlawful conduct that occurred prior to and during her tenure as Chair,” and that Edwards retaliated by accusing him (through the deputy counsel of EOPSS) of insubordination and performance deficiencies. Paglia further asserted that Edwards had attempted to influence the independеnce of hearing officer decisions by instituting a regulation permitting SORB to revise or overturn decisions, known internally as the “Paglia Regulation,” and hiring a hearing decision editor to “subject the finality of hearing examiner decisions to doubt and ambiguity.”
c. Edwards‘s termination. According to the amended complaint, on September 15, 2014, Edwards was ordered to attend a meeting the next day at the governor‘s office, with the general counsel and chief of staff of EOPSS, and Patrick‘s director of boards and commissions, Kendra Foley. Edwards was not given an explanation for the meeting.
Edwards met with Foley on September 16, 2014. She was joined by Patrick‘s legal сounsel and a representative of human resources from EOPSS. Patrick was not present at this meeting. Foley told Edwards, “As you know, you serve at the Governor‘s pleasure. He has decided to replace you as the Chairperson of the Sex Offender Registry Board.” Edwards asked Foley if there was “a problem,” or if she had done something wrong. Foley replied that Edwards had not done anything wrong, but repeated that her employment was being terminated. To avoid the stigma of being terminated, Edwards asked if she could tender a letter of resignation. Edwards was allowed to resign effective that day.
d. Patrick‘s statements to the media. The amended cоmplaint further states that Patrick made two statements to the media concerning Edwards‘s removal as SORB chair. On September 22, 2014, he said during a press conference:
“The final straw was the settlement of a lawsuit, which happened about not quite a year ago now, that involved some
inappropriate, at least, maybe, unlawful, pressuring by the Chair and the Executive Director of a hearing officer to change the outcome of a case. The hearing officer did not ultimately do that. It turns out that the case is the case that arose out of my brother-in-law‘s experience way back at the bеginning of the first campaign when the Republican Party, sorry to say, aided by the [Boston] Herald, nearly destroyed their lives.”6
On January 2, 2015, Patrick made additional comments to the media concerning his reasons for removing Edwards:
“You know, people do things like this when they‘ve been, sometimes when they‘ve been called out, and, you know, it‘s part of the business. The fact is that she influenced inappropriately, or attempted to influence inappropriately, a hearing officer, and that‘s a matter of record. That hearing did involve my brother-in-law, that is true. We‘ve never made a secret of that, but it‘s still inapproрriate, and that‘s the reason why I asked for her resignation.
“We can‘t have officials inappropriately interfering with the independence of hearing officers. It undermines the whole process whether it involves someone I know or not.”
e. Edwards‘s complaint. On December 31, 2014, Edwards filed a complaint in the Superior Court against the Commonwealth, claiming wrongful termination for her removal as SORB chair, and against Patrick individually, alleging that his September 22, 2014 statements to the media “accusing her of wrongdoing” were defamatory. Thereafter, on March 2, 2015, Edwards filed an amended complaint, adding a second claim of defamation based on Patrick‘s January 2, 2015, response to media inquiries following the filing of Edwards‘s initial complaint.
Patrick moved to dismiss the defamation claims on grounds of absolute and qualified or conditional privilege. A Superior Court judge denied the motion,7 noting that the matter of an absolute privilege had not been recognized by this court, and determining
2. Discussion. We review the denial of a motion to dismiss de novo, accepting the facts alleged in the complaint as true and drawing all reasonable inferences in the plaintiff‘s favor. Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). In assuming the facts as alleged, however, “[w]e do not regard as ‘true’ legal conclusions cast in the form of factual allegations.” Leavitt v. Brockton Hosp., Inc., 454 Mass. 37, 39 n.6 (2009). To survive a motion to dismiss, the facts alleged must “plausibly suggest[ ] (not merely be consistent with) an entitlement to relief.” Iannacchino, 451 Mass. at 636, quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). See Schatz v. Republican State Leadership Comm., 669 F.3d 50, 56 (1st Cir. 2012) (court applies Twombly pleading standard in defamation action by isolating and ignoring “actual malice buzzwords“).
a. Absolute privilege. Patrick argues first that he is immune from Edwards‘s defamation claims because his statements to the media were made in the discharge of his official duties as governor and thus are, or should be, protected by an absolute privilege. “An аbsolute privilege provides a defendant with a complete defense to a defamation suit even if the defamatory statement is uttered maliciously or in bad faith.” Mulgrew v. Taunton, 410 Mass. 631, 634 (1991). In Massachusetts, the existence of an absolute privilege has been recognized in “comparatively few cases,” Vigoda v. Barton, 348 Mass. 478, 484 (1965), and has been “limited to cases in which public policy or the administration of justice requires complete immunity.” Ezekiel v. Jones Motor Co., 374 Mass. 382, 385 (1978). See Sriberg v. Raymond, 370 Mass. 105, 108-109 (1976) (statements by party, counsel or witness made in relation to judicial proceeding); Sheppard v. Bryant, 191 Mass. 591, 592-593 (1906) (statements by witness testifying before legislative committee which were pertinent to questions and subject of examination).
Patrick argues that, as the majority of States to have considered the question have done, we should adopt the Federal standard,
The United States Supreme Court has expressed two significant policy reasons for the adoption of an absolute privilege. See Barr v. Matteo, 360 U.S. 564, 569-576 (1959). First, Federal officials should be able to discharge their duties uninhibited by the fear and distraction of lawsuits. Id. at 571-573. Second, an absolute privilege furthers free speech by allowing Federal officials to speak with complete candor concerning matters of public importance. Id. at 577 (Black, J., concurring). The Court has recognized that application of an absolute privilege may result in an injustice to defamed citizens left without a remedy, but has deemed this a necessary sacrifice for the “greater good” given the specific positions at issue. Id. at 576.
As Patrick points out, consistent with the holding in Barr, the Restatement (Second) of Torts § 591 (2002) provides for an absolute privilege for defamation claims brought against high-ranking Federal and Stаte executive officers, including governors or State “superior executive officers.” According to the Restatement, “[a]n absolute privilege to publish defamatory matter concerning another in communications made in the performance of his official duties exists for (a) any executive or administrative officer of the United States; or (b) a governor or other superior executive officers of the state.” Id.
A majority of States have been persuaded by this reasoning, and have adopted an absolute privilege which shields the governor, or cabinet-level State officiаls, from defamation claims for statements made in the course of their official duties. See Sack, supra at § 8.2.5. See, e.g., Blair v. Walker, 64 Ill. 2d 1, 6-11 (1976) (adopting absolute immunity to shield Illinois governor from defamation claim); Jones v. State, 426 S.W.3d 50, 55-56 (Tenn. 2013) (cabinet-level State officials such as commissioner of Department of Correction immune from defamation claims arising from their official duties); Salazar v. Morales, 900 S.W.2d 929, 932 (Tex. App. 1995) (Texas Attorney General had absolute privilege to publish defamatory statements in communications associated with official duties).
Nonetheless, other jurisdictions have recognized strong, countervailing considerations against extending an absolute privilege
As the motion judge noted in his decision, this court has not decided whether an absolute privilege shields the governor, or other high-ranking State officials, from liability for all defamation claims arising out of statements made in the performance of their official duties. Seе Barrows v. Wareham Fire Dist., 82 Mass. App. Ct. 623, 630 n.10 (2012). We considered the issue in considerable depth in two cases, Mulgrew, 410 Mass. at 634-635, and Vigoda, 348 Mass. at 483-484. In Mulgrew, supra at 634, a police chief argued that he had an absolute privilege to defend public comments he made regarding a police officer‘s fitness for duty. In Vigoda, supra at 481, 483, a social worker brought a defamation claim against the superintendent of Boston State Hospital, in connection with written evaluations, and the superintendent claimed that his official statements should be protected by an absolute privilege. In both cases, we declined to apply an absolute privilege because a qualified privilege in those circumstances was sufficient to shield the public official from liability. See Mulgrew, supra at 635; Vigoda, supra at 484.
Given the conflicting policy considerations discussed above, it is more prudent to examine whether Edwards pleaded sufficient facts to state a cognizable claim for defamation. We conclude that she did not.
b. Adequacy of the complaint. Edwards was required to allege sufficient facts to establish that (1) Patrick made a statement
The actual malice standard requires the public figure to prove that the statement was made either with knowledge that it was false, or with reckless disregard as to whether it was false. See Rotkiewicz, 431 Mass. at 755. Thus, to survive a motion to dismiss, Edwards must allege sufficient facts to establish that Patrick knew the statements were false, or acted with reckless disregard for their truth or falsity. See Vigoda, 348 Mass. at 485 (“Where the official believes the matter to be true... and has not acted with actual malice ... or with reckless indifference to the rights of the individual citizen, his conditional privilege is not abused” [citations omitted]). Reckless disregard requires more than negligence; a plaintiff must prove that the individual making the alleged defamatory statement “entertained serious doubts as to the truth” of the statement. Murphy, 449 Mass. at 48, quoting
Because it is rare to garner direct evidence of an individual‘s state of mind, a plaintiff may rely on circumstantial evidence to prove that a defendant had actual knowledge that the statements were false, or had serious doubts about their accuracy. Levesque v. Doocey, 560 F.3d 82, 90 (1st Cir. 2009). See Bose Corp. v. Consumers Union of U.S., Inc., 692 F.2d 189, 196 (1st Cir. 1982), aff‘d, 466 U.S. 485 (1984) (subjective determination whether defendant in fact entertained serious doubts about truth of statement may be established by inference “as it would be very rare for a defendant to admit such doubts“). See also Murphy, 449 Mass. at 57-58 (determination of defendant‘s subjective state of mind may be made based on circumstantial еvidence).
Edwards advances three distinct theories to support her claim that the amended complaint alleged sufficient facts to establish actual malice. First, she points to a Patrick administration official‘s assurance that she had done nothing wrong as indicating the falsity of Patrick‘s subsequent statements accusing her of wrongdoing. Second, she notes that the Paglia lawsuit, which Patrick referenced in his comments, did not accuse Edwards of pressuring Paglia to change his decision. Third, Edwards contends that Patrick‘s spite and ill will toward her establish actual malice. We address each argument in turn.10
The amended complaint asserts that Edwards and Foley, Patrick‘s director of boards and commissions, met on September 16, 2014. During that meeting, Foley informed Edwards: “As you know, you serve at the Governor‘s pleasure. He has decided to replace you as Chairperson of the Sex Offender Registry Board.”
Edwards concedеs that Foley‘s statements are not directly attributable to Patrick. She contends, however, that Foley‘s assurance that Edwards had done nothing wrong is evidence of what Patrick actually believed. Edwards urges us to draw the following inferences: (1) Patrick spoke with Foley before the September 16 meeting; (2) Patrick informed Foley that he had the authority to replace Edwards in the exercise of his discretion; (3) Patrick told Foley that Edwards had done nothing wrong; and (4) Patrick accused Edwards of interfering with the independence of a SORB hearing officer although he knew she had done nothing wrong. All of these inferences strung togеther, Edwards argues, are sufficient to prove that Patrick‘s subsequent statements that he removed Edwards for interfering with a hearing officer were knowingly false or were made in reckless disregard of their falsity.
This attempt to ground the allegation of actual malice on a statement purportedly made by Foley at the termination meeting does not satisfy the pleading standard set forth in Iannacchino, 451 Mass. at 636. The theory that Foley‘s statement somehow reflected Patrick‘s personal view of Edwards‘s job performance would require a fact finder to jump from one inference to another absent any of the necessary factual support. Edwards‘s assertions regarding Patrick‘s likely state of mind, based on Foley‘s alleged statement to Edwards, are too speculative to support a claim of actual malice. See Shay v. Walters, 702 F.3d 76, 83 (1st Cir. 2012) (“inquiring court need not give weight to bare conclusions, unembellished by pertinent facts“); Biro v. Condé Nast, 963 F. Supp. 2d 255, 278 (S.D.N.Y. 2013), aff‘d, 807 F.3d 541 (2d Cir. 2015) (“Not only is ‘[p]roving actual malice a heavy burden, ... but in the era of [Ashcroft v. Iqbal, 556 U.S. 662 (2009),] and Twombly, pleading actual malice is a more onerous task as well” [quotations and citation omitted]). See also Sanford, Libel and Privacy § 13.3, at 13-62 (2d ed. Supp. 2017) (noting difficulty in pleading actual malice in light of heightened pleading standards); 2 Sack on Defamation, Libеl, Slander, and Related Problems § 16:2.2 (noting courts’ “insistence that litigation in which ‘actual malice’
In her second argument, Edwards contends that the allegations in the amended complaint are sufficient to establish actual malice because it is reasonable to infer that Patrick read the complaint in the Paglia action, and knew that the asserted pressure brought to bear on Paglia occurred before Edwards was appointed to be SORB chair. This inference, however, is not supported by Edwards‘s own allegations in the amended сomplaint concerning the Paglia lawsuit, nor by the plain language in the Paglia complaint that was submitted as an exhibit to the Superior Court. In her amended complaint, Edwards acknowledges that Paglia did bring a complaint against her for retaliation, and that he filed that claim after Edwards discussed the Sigh classification decision with him, and stated that she disagreed with his decision because “rape is rape.” Moreover, the Paglia lawsuit described in some detail Edwards‘s alleged role in the Sigh matter. Paglia‘s complaint clearly alleged that Edwards pressured him to withdraw his classification decision and to clаssify Sigh as a sex offender under Massachusetts law, and retaliated against him for his failure to do so. The complaint also alleged that Edwards “verbally berated” Paglia, “at one point making him so nervous and panicked that [he] had to go to the hospital.” Accordingly, no view of the allegations in the Paglia lawsuit would support a claim that Patrick was on notice, after reading the complaint, that Edwards did nothing wrong.
Edwards‘s third theory concerning the sufficiency of her complaint is that Patrick‘s ill will and spite over her role in his brother-in-law‘s case support a claim of actual malice. In this view, Patrick‘s statemеnts were motivated by hostility toward Edwards for having “nearly destroyed the lives of his sister and brother-in-law.” Thus, Patrick‘s statements to the media accusing Edwards of wrongdoing were strictly personal, meant to harm Edwards‘s reputation, and served no public purpose.
Evidence of ill will or spite is insufficient, standing alone, to establish actual malice. In Rotkiewicz, 431 Mass. at 755, quoting Stone, 367 Mass. at 867, we held:
“In the context of defamation, the term ‘actual malice’ does not mean the defendant‘s dislike of, hatred of, or ill will toward, the plaintiff. Rather, actual malice means that the ‘defamatory falsehood was published with knowledge that it was false or reckless disregard of whethеr it was false.’ ”
Order denying motion to dismiss reversed.