Asserting that disciplinary action was taken against him in retaliation for whistleblowing, the plaintiff State trooper David B. Fisher brought a complaint alleging, as against the present defendant State police Sergeant Bruce Lint, counts of intentional interference with advantageous relations, civil conspiracy, defamation (slander), and violations of State (G. L. c. 12, §§ 11H and 11I) and Federal (42 U.S.C. § 1983 [2000]) civil rights laws.
We hold that Lint’s investigation and report on Fisher’s conduct, Lint’s statements to internal affairs, and Lint’s testimony at an administrative disciplinary hearing do not constitute petitioning activity within the meaning of G. L. c. 231, § 59H. However, because Lint’s statements, which serve as the basis of Fisher’s complaint, occurred at a time when quasi judicial disciplinary proceedings could reasonably have been contemplated, Lint is entitled to the protection of an absolute privilege. Based on the latter determination, we reverse the denial of Lint’s motion to dismiss.
Background. Fisher was assigned to the State police barracks in Grafton from the spring of 1986 through September, 1998. In 1997, Fisher brought a number of complaints concerning improper behavior at the barracks, alleging that prisoners brought there were allowed to commit serious violations of the General Laws as well as Department of Correction rules and regulations.
On August 11, 1998, Fisher assisted a motorist on Route 495 and summoned a tow truck. Subsequently, a complaint was registered against him arising out of this motorist assistance incident. Lint was ordered to investigate. On August 20, 1998, Lint submitted a report in which he concluded that Fisher had engaged in misconduct in violation of certain State police rules. As a result of Lint’s report, an internal affairs investigation was conducted. Fisher alleges that Lint made false statements to the internal affairs investigators.
On September 1, 1998, evidently in relation to his earlier
In 2001, the State police convened a disciplinary hearing against Fisher based on Lint’s report and Lint’s statements to internal affairs investigators. The disciplinary board cleared Fisher of four of the five charges, but found that he had engaged in unprofessional behavior unbecoming a State police officer. The board suspended Fisher for sixty days without pay. Subsequently, Fisher commenced the present action against Lint and others.
1. The anti-SLAPP statute. The Legislature has provided a means through which persons who have been made the subject of civil litigation in retaliation for the exercise of their right to petition the government may be spared the expense and the burden of defense of the action.
“In any case in which a party asserts that 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, said party may bring a special motion to dismiss.”
G. L. c. 231, § 59H, inserted by St. 1994, c. 283, § 1.
The statute defines the exercise of the right of petition as
“any written or oral statement made before or submitted to a legislative, executive, or judicial body, or any other governmental proceeding; any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other governmental proceeding; any statement reasonably likely to encourage consideration or review of an issue by*363 a legislative, executive, or judicial body or any other governmental proceeding; ... or any other statement falling within constitutional protection of the right to petition government.”
Ibid. The anti-SLAPP statute was enacted to protect citizens from lawsuits designed to chill their right to petition the government for redress of grievances. See Duracraft Corp. v. Holmes Prod. Corp.,
Lint, as the party filing the special motion to dismiss, had the initial burden of demonstrating that the activity at issue was “petitioning activity” within the purview of the anti-SLAPP statute and that Fisher’s claims were “ ‘based on’ [Lint’s] petitioning activities alone and have no substantial basis other than or in addition to [his] petitioning activities.” Duracraft, supra at 167-168. Fabre, supra at 522. If Lint had made this threshold showing, then the burden would have shifted to Fisher to show both that Lint’s exercise of his right to petition was devoid of “any reasonable factual support or any arguable basis in law” and that the exercise of the right “caused actual injury to” Fisher. Donovan v. Gardner,
Lint claims that his petitioning activity consisted of the following: his investigation of Fisher’s conduct during the towing incident, which he reduced to a report; Lint’s statements to internal affairs investigators regarding Fisher’s misconduct and
In Kobrin, supra at 332-335, the Supreme Judicial Court restricted the scope of activities covered by § 59H. Specifically, the court
“read the phrase ‘based on said party’s exercise of its right of petition under the constitution’ as restricting the statute’s coverage to those defendants who petition the government on their own behalf. In other words, the statute is designed to protect overtures to the government by parties petitioning in their status as citizens. It is not intended to apply to those performing services for the government as contractors.”
Id. at 332. In Kobrin, this meant that a doctor who was a paid expert witness at an administrative hearing was not entitled to the protection of the anti-SLAPP statute because he “was not seeking from the government any form of redress for a grievance of his own or otherwise petitioning on his own behalf.” Id. at 330. In fact, he “was acting solely on behalf of the board as an expert investigator and witness.” Id. at 333.
As in Kobrin, Lint’s conduct was not an attempt to redress a wrong he suffered, nor was he petitioning on his own behalf.
2. Absolute privilege. Lint also claims that his motion to dismiss should have been granted because his statements that form the basis of Fisher’s claims against him are protected by an absolute privilege. When reviewing a denied motion to dismiss, we take the well-pleaded allegations in the complaint as true and must make all reasonable inferences in favor of the plaintiff. General Motors Acceptance Corp. v. Abington Cas. Ins. Co.,
Whether an absolute privilege applies is determined on a case-by-case basis, after a fact-specific analysis, with a proper
Statements made in the course of a judicial proceeding that pertain to that proceeding are absolutely privileged and cannot be used to support a civil liability even if the statements were uttered with malice or in bad faith. Seelig v. Harvard Coop. Soc.,
With reference to these principles, the motion judge determined that because testimony at the trial board disciplinary proceedings was not entitled to the same protection as testimony “before a court of law,” an absolute privilege did not apply. To buttress his conclusion, the judge added that the absence of the threat of perjury for witnesses testifying before the trial board further distinguished it from a contemplated judicial proceeding. We disagree.
To determine whether a proceeding is sufficiently judicial or quasi judicial in nature to apply an absolute privilege, we must examine the operation and mechanics of the proceeding itself. Here, the State police trial board is governed by G. L. c. 22C,
“Any uniformed member of the state police who has served for one year or more and against whom charges have been preferred shall be tried by a board to be appointed by the colonel or, at the request of the officer, may be tried by a board consisting of the colonel. Any person aggrieved by the finding of such trial board may within sixty days after being notified thereof, bring a petition in the district court within the judicial district of which he resides, or in the municipal court of the city of Boston addressed to the justice of the court asking that the action of the department trial board be reviewed by the court, and after such notice to the colonel as the court deems necessary, it shall review such finding and determine whether or not upon all the evidence such finding and punishment was justified.”
As described below, Massachusetts State Police Rules and Regulations (1999) (rules) further delineate trial board procedures as well as provide certain rights and obligations to those affected by the proceedings. The availability of an absolute privilege to Lint depends on whether the procedural safeguards during the trial board proceedings adequately minimize the risk that defamation or other tortious conduct will occur. See Butz. v. Economou,
Under the State police rules and regulations, a trial board hearing is “a formal administrative proceeding,” § 6.7.1, which, as the Supreme Judicial Court has noted, “appears analogous to a military court martial board.” Burns v. Commonwealth,
The board, by a majority vote and in writing, is required to summarize the evidence and make findings of fact. Rules § 6.7.7. Adjudications of “Guilty” or “Not Guilty” must be made as to each charge, and guilt must be determined by substantial evidence. Ibid. Where an adjudication of guilt as to one or more of the charges is made, the board shall recommend an appropriate discipline to the deputy superintendent. §§ 6.7.7 & 6.9.4.
Upon receipt of the trial record, the deputy superintendent must review all summaries, findings, reports, and recommendations and make a written recommendation to the superintendent. Rules §§ 6.8.1 & 6.8.2. All recommendations of discipline must be approved by the superintendent in writing. § 6.9.5. If
In short, the State police trial board possesses the authority and provides the procedural protections that differentiates a quasi judicial board from one that merely performs an administrative function. The safeguards built into the hearing process serve to reduce the need for tort actions to control injurious statements or testimony. See Butz v. Economou,
Drawing the reasonable inferences in Fisher’s favor, we are left with the allegation that Lint’s statements in his report and to internal affairs resulted in the disciplinary proceedings and the harm to Fisher. Because the absolute privilege would protect not only Lint’s testimony at the quasi judicial trial board but also his statements that were made preliminary to the proceeding, Lint was entitled to the immunity the privilege provides.
Because we apply the privilege broadly, it serves as a bar to all of Fisher’s causes of action against Lint as they arise out of the same privileged conduct in connection with the quasi judicial trial board proceedings. See Robert L. Sullivan, D.D.S., P.C. v. Birmingham,
The order denying the special motion to dismiss is affirmed. The order denying the motion to dismiss based on an absolute privilege is reversed, a new order is to enter allowing the motion, and judgment is to enter for the defendant dismissing the action.
So ordered.
Notes
The other original defendants are not part of this appeal.
The denial of a special motion to dismiss under G. L. c. 231, § 59H, is immediately appealable under the doctrine of present execution, Fabre v. Walton,
Given the result we reach, we decline to address Lint’s additional arguments that his motion to dismiss should have been treated as one for summary judgment and that he was entitled to an absolute privilege provided to attorneys in the course of litigation.
Beyond characterizing the statements as “false,” the complaint does not
Although Lint includes his statements made to internal affairs in defense of Fisher’s allegations against him, we note that Fisher’s complaint, i.e., the claimed SLAPP suit, is not “based on” those statements. See Duracraft, supra at 167. Thus, even if they constituted petitioning activity, they would fall outside the protection of G. L. c. 231, § 59H.
Lint’s reliance on Baker v. Parsons,
The decisions of other jurisdictions relative to the availability of an absolute privilege to witnesses in quasi judicial police disciplinary proceedings are in accord. See Craig v. Stafford Constr., Inc.,
No member of the trial board may participate in a hearing involving a
The superintendent holds the rank of colonel, and the deputy superintendent holds the rank of lieutenant colonel. Rules §§ 3.1 & 3.2.
The motion judge erred by concluding that the threat of perjury is not present at a trial board hearing. Indeed, all witness testimony must be presented under oath or affirmation. Rules § 6.7.6. Under G. L. c. 268, § 1, one who wilfully swears or affirms falsely regarding a material issue in an adjudicatory proceeding, or one who wilfully swears or affirms falsely in a matter relative to which an oath or affirmation is required, is guilty of perjury. See Commonwealth v. Daniels,
Although the trial board is not bound by the strict rules of evidence, rule § 6.7.6, evidence of the accused’s employment history may only be used after an adjudication of the charges for the purpose of recommending discipline. § 6.7.7.
Effective May 13, 2002, G. L. c. 22C, § 13, was amended by St. 2002, c. 43, to provide that any person aggrieved by the finding of a trial board may appeal pursuant to G. L. c. 31, §§ 41 to 45, rather than by means of a petition filed in the District Court.
In opposition to the motion to dismiss, Fisher made no claim that Lint’s statements were not related to the proceeding. See Correllas,