SJC-09251
KENNARD C. KOBRIN vs. DAVID R. GASTFRIEND.
Bristol. October 5, 2004. - January 20, 2005.
Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin,
Sosman, & Cordy, JJ.
"Anti-SLAPP" Statute. Constitutional Law, Right to petition
government. Board of Registration in Medicine. Statute, Construction.
Witness, Expert.
Civil action commenced in the Superior Court Department
on March 15, 2002.
A special motion to dismiss was heard by Robert J. Kane,
J.
The Supreme Judicial Court on its own initiative transferred
the case from the Appeals Court.
George C. Deptula for the plaintiff.
William J. Dailey, Jr., for the defendant.
Thomas F. Reilly, Attorney General, Peter Clark & David
R. Marks, Assistant Attorneys General, & John H. Walsh,
for the Commonwealth, amicus curiae, submitted a brief.
COWIN, J. This case has its origin in disciplinary actions
brought against a psychiatrist (the plaintiff here) by the Board
of Registration in Medicine (board). The defendant, also a psychiatrist,
was hired by the board to assist in its investigation of the complaints.
After he was exonerated by the board on all charges, the plaintiff
sued the defendant for statements made in the form of an affidavit.
The defendant's special motion to dismiss pursuant to G. L. c. 231, § 59H
(the "anti-SLAPP" statute), was allowed by a Superior Court judge.
The plaintiff appealed from the dismissal of the suit to the Appeals
Court, and we transferred the case to this court on our own motion.
The question before us is whether G. L. c. 231, § 59H,
immunizes the defendant physician from liability for statements
made in his affidavit. We hold that, in the circumstances
of this case, the defendant's activities fall beyond the
scope of the anti-SLAPP statute's protections. Accordingly,
we vacate the dismissal of the complaint and remand the
case for further proceedings.
Background. The plaintiff, Kennard C. Kobrin, is a licensed
psychiatrist who owned and operated a psychiatry practice
in Fall River and was also a contracted mental health and
substance abuse service provider with the Massachusetts
Medicaid Assistance Program. The defendant, David R. Gastfriend,
is a licensed psychiatrist with a subspecialty certification
in addiction psychiatry and has served as a director of
addiction services at Massachusetts General Hospital since
1991, where he treats patients for substance abuse and
conducts research.[1]
In 1993, the State police began investigating the plaintiff's
prescription practices after several of his patients died
in circumstances involving the overuse of various drugs.
The State police retained the defendant to assist with
the criminal investigation. Meanwhile, in 1994 and 1996,
three complaints were filed against the plaintiff with
the board concerning his alleged improper prescription
of benzodiazepines to his patients.[2] Pursuant to G. L. c. 112, § 5,
the board is granted authority to "investigate all complaints
relating to the proper practice of medicine by any person
holding a certificate of registration" to practice medicine
within the Commonwealth. The defendant was retained by
the board under contract and was paid to assist in its
investigation of these complaints and to render an expert
opinion concerning the plaintiff's medical practices. See
G. L. c. 112, § 5 ("the board shall
hire such attorneys and investigators as are necessary").
On request of the counsel assigned to the disciplinary
case (complaint counsel), the defendant reviewed and evaluated
numerous medical records and reports relating to the plaintiff's
prescription practices and executed an affidavit. The defendant's
seven-page affidavit set forth his professional opinion
that the plaintiff deviated from the proper standard of
care, was "engaged pervasively in illegitimate prescribing
and . . . widespread misconduct," and concluded
that the plaintiff's "continued practice of medicine .
. . represents a serious and immediate threat to his patients
and to the public health, safety and welfare."
Relying in part on the defendant's opinions and findings
as set forth in his affidavit, complaint counsel filed
with the board a motion for summary suspension of the plaintiff's
license pursuant to 243 Code Mass. Regs. § 1.03(11)(a)
(1993). A statement of allegations was filed against the
plaintiff, see 243 Code Mass. Regs. § 1.01 (1993);
the board summarily suspended his registration to practice
medicine and referred the matter to the division of administrative
law appeals (DALA). At the DALA hearing, the defendant,
who was subpoenaed by the plaintiff's attorney, testified
concerning the contents of his affidavit.[3] The administrative magistrate concluded
that the plaintiff did not illegally prescribe benzodiazepines
or otherwise render substandard care to his patients, and
the board dismissed the charges against the plaintiff.[4]
The plaintiff filed suit in the Superior Court asserting
claims against the defendant for "expert witness malpractice/negligence," defamation,
malicious prosecution, and interference with contractual
relations. All counts are based on the defendant's preparation
and submission of the affidavit to the board, "knowing
the information contained therein [was] false, misleading
and fraudulent and was maliciously included therein with
the intention to injure" the plaintiff.[5] In response to the complaint, the defendant
filed a special motion to dismiss pursuant to G. L.
c. 231, § 59H, commonly referred to as the "anti-SLAPP" statute.[6] The judge allowed the motion and subsequently
awarded the defendant attorney's fees.
In his appeal, the plaintiff asserts that the anti-SLAPP
statute is not applicable to the defendant because the
latter was not petitioning the government, but rather was
providing paid assistance to the government in its case.
The defendant maintains that dismissal of the suit against
him pursuant to the anti-SLAPP statute was appropriate
because he was engaged in "petitioning activities" before
the board within the meaning of G. L. c. 231, § 59H.[7] We conclude that the defendant's activities
are governed neither by the letter nor the purpose of the
anti-SLAPP statute. Because the defendant was not seeking
from the government any form of redress for a grievance
of his own or otherwise petitioning on his own behalf,
he was not exercising his "right of petition under the
constitution" within the meaning of the statute. G. L.
c. 231, § 59H. We would alter considerably
the Legislature's intent were we to interpret the statute
so as to expand its scope to protect the statements of
a disinterested paid witness.
Discussion. We review the Superior Court judge's decision
to grant the defendant's special motion to dismiss to determine
whether there was an abuse of discretion or other error
of law. See Baker v. Parsons, 434 Mass. 543, 550 (2001);
McLarnon v. Jokisch, 431 Mass. 343, 348 (2000).
1. Applicability of the anti-SLAPP statute. The anti-SLAPP
statute, G. L. c. 231, § 59H, inserted
by St. 1994, c. 283, § 1, was enacted by
the Legislature to provide a quick remedy for those citizens
targeted by frivolous lawsuits based on their government
petitioning activities. See preamble to 1994 House Doc.
No. 1520. See also Duracraft Corp. v. Holmes Prods.
Corp., 427 Mass. 156, 161-162 (1998). The statute employs
a number of mechanisms to protect the rights of those providing
information to the government, including a special motion
to dismiss and expedited hearing on the motion, a stay
of discovery proceedings pending the motion's disposition,
and the award of attorney's fees and costs to successful
moving parties. See G. L. c. 231, § 59H.
It applies to matters of both public and private concern,
McLarnon v. Jokisch, supra at 347; Duracraft Corp. v. Holmes
Prods. Corp., supra at 164; and encompasses petitions brought
before governmental agencies. See G. L. c. 231, § 59H;
Office One, Inc. v. Lopez, 437 Mass. 113, 122-123 (2002)
(applying anti-SLAPP statute to one defendant's communications
with Federal Deposit Insurance Corporation).
In determining whether the defendant's statements to the
board fall within the scope of the anti-SLAPP statute,
we apply the general rule of statutory construction that
a statute is to be interpreted "according to the intent
of the Legislature ascertained from all its words construed
by the ordinary and approved usage of the language, considered
in connection with the cause of its enactment, the mischief
or imperfection to be remedied and the main object to be
accomplished, to the end that the purpose of its framers
may be effectuated." Triplett v. Oxford, 439 Mass. 720,
723 (2003), quoting Board of Educ. v. Assessor of Worcester,
368 Mass. 511, 513 (1975).
Accordingly, we turn first to the language of the anti-SLAPP
statute to determine the legislative intent. The statute,
in pertinent part, provides:
"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. The statute
then defines "a party's exercise of its right of petition" as:
"[A]ny 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 a legislative, executive, or judicial body or any other governmental
proceeding; any statement reasonably likely to enlist public participation
in an effort to effect such consideration; or any other statement
falling within constitutional protection of the right to petition
government."
Id. We 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.[8]
"None of the words of a statute is to be regarded as
superfluous, but each is to be given its ordinary meaning without
overemphasizing its effect upon the other terms appearing in the
statute . . . ." Commonwealth v. Woods Hole, Martha's Vineyard & Nantucket
S.S. Auth., 352 Mass. 617, 618 (1967), quoting Bolster v. Commissioner
of Corps. & Taxation, 319 Mass. 81, 84-85 (1946). The statute
explicitly extends protection to a party based on "said party's exercise
of its right of petition" (emphasis added). G. L. c. 231, § 59H.
Moreover, the right of petition protected in the anti-SLAPP statute
is that right enumerated in the First Amendment to the United States
Constitution ("Congress shall make no law . . . abridging . . . the
right of the people . . . to petition the Government for a
redress of grievances" [emphasis added]) and in art. 19 of the Massachusetts
Declaration of Rights ("The people have a right . . . to request
of the legislative body . . . by the way of . . . petitions . . .
redress of the wrongs done them, and of the grievances they suffer" [emphasis
added]). See G. L. c. 231, § 59H (protecting
against lawsuits "based on said party's exercise of its right of
petition under the constitution of the United States or of the commonwealth" [emphasis
added]). The right of petition contemplated by the Legislature is
thus one in which a party seeks some redress from the government.
See Webster's Third New Int'l Dictionary 1690 (1993) (defining "petition" as "a
formal written request addressed to an official person or organized
body" and as "a formal written request addressed to a magistrate
or court praying for . . . relief" [emphasis added]).
Here, the defendant was not exercising his right to petition
or to seek any redress from the board (a government body),
but rather was acting solely on behalf of the board as
an expert investigator and witness. The Superior Court
judge thus erred in concluding that the defendant's activities "f[e]ll
within the letter and spirit of the petitioning activities
enumerated in G. L. c. 231, § 59H."
The dissent suggests that our interpretation today departs
from the literal construction of the statute and states
that a broad construction of the statute more accurately
reflects the statutory language. See post at - (Sosman,
J., dissenting). The dissent maintains that we need not
speculate about the meaning of the language nor depart
from it unless the language would produce an absurd result.
See post at (Sosman, J., dissenting). Because the language
obviously produces no absurd result here, the dissent continues,
all we need consider is the statute's plain language. As
the dissent interprets that statutory language, every statement
ever made to a government body is protected. Unfortunately,
this analysis ignores the history that led to adoption
of the statute; misconstrues the statutory language; and,
in doing so, fails to effectuate the legislative intent.
While the dissent makes much of the fact that the Legislature's
choice of words was deliberate, see post at (Sosman, J.,
dissenting), it overlooks the important fact that the Legislature
explicitly used the phrase "right of petition under the
constitution" in the statute, thus expressly implicating
the term's constitutional meaning. See G. L. c. 231, § 59H.
The constitutional "right of petition" is a term of art
that the Legislature did not adopt casually or accidentally.
The Legislature's decision to refer to the right of petition
secured in the Federal and State Constitutions must be
accorded significance in order to effectuate the legislative
intent.[9] See id.
Relying on a broad definition of a "party's exercise of
its right of petition," the defendant similarly argues
that the judge's determination was correct because he submitted
a "written . . . statement" to a government "body" in connection
with an issue that was "under consideration," see G. L.
c. 321, § 59H, and that nothing in the statute
requires a party to commence or initiate a proceeding himself
or herself. Like the flawed analysis in the dissent, this
argument fails to account for the statute's use of the
term "right of petition under the constitution" and the
additional language indicating that it is the petitioner's
own interests and statements directed thereto that are
the subject of protection.
The defendant attempts to bolster his argument by pointing
to cases that acknowledge the breadth of the statute's
wording. See Duracraft Corp. v. Holmes Prods. Corp., 427
Mass. 156, 162 (1998) ("the Legislature intended to enact
very broad protection for petitioning activities"); Milford
Power Ltd. Partnership v. New England Power Co., 918 F.
Supp. 471, 489 (D. Mass. 1996) ("the Court recognizes that
the statute's definition of the 'right to petition' is
very broad"). The Milford case is of little help to the
defendant, as the court in Milford declined to rule on
the scope of the statute and denied the motion to dismiss
without prejudice. See id. at 489. Likewise, the Duracraft
case does not help the defendant because there we did not
construe the meaning of "right to petition" and we declined
to give an expansive reading to the statute. See Duracraft
Corp. v. Holmes Prods. Corp., supra at 167-168. We reasoned
that an 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. See
id. at 166 ("By protecting one party's exercise of its
right of petition, unless it can be shown to be sham petitioning,
the statute impinges on the adverse party's exercise of
its right to petition . . .").
The legislative history of the anti-SLAPP statute further
supports our holding. "Statutes are to be interpreted not
based solely on simple, strict meaning of words, but in
connection with their development and history, and with
the history of the times and prior legislation." Quincy
City Hosp. v. Rate Setting Comm'n, 406 Mass. 431, 443 (1990)
(adopting narrower interpretation of statute based, in
large part, on legislative intent as gleaned from legislative
history). See Bynes v. School Comm. of Boston, 411 Mass.
264, 267-269 (1991) (determining legislative intent through
examination of legislative history in conjunction with
plain language of statute). The Legislature passed the
anti-SLAPP statute partly in response to a lawsuit initiated
by a developer against citizens of Rehoboth who signed
a petition challenging proposed development out of a concern
about endangering wetlands. Duracraft Corp. v. Holmes Prods.
Corp., supra at 161. In enacting the statute, the Legislature
expressed concern over a "disturbing increase in lawsuits
brought primarily to chill the valid exercise of the constitutional
rights of freedom of speech and petition for the redress
of grievances" (emphasis added). Preamble to 1994 House
Doc. No. 1520. See Duracraft Corp. v. Holmes Prods. Corp.,
supra; Stuborn Ltd. Partnership v. Bernstein, 245 F. Supp.
2d 312, 314 ( D. Mass. 2003) (noting that anti-SLAPP statute
was designed to protect right to petition for redress of
grievances). The Legislature intended the statute to encourage "full
participation by persons and organizations and robust discussion
of issues before legislative, judicial, and administrative
bodies." Preamble to 1994 House Doc. No. 1520. Duracraft
Corp. v. Holmes Prods. Corp., supra. Based on this legislative
history, this court concluded that "[t]he typical mischief
that the legislation intended to remedy was lawsuits directed
at individual citizens of modest means for speaking publicly
against development projects." Office One, Inc. v. Lopez,
437 Mass. 113, 121-122 (2002), quoting Duracraft Corp.
v. Holmes Prods. Corp., supra.
Although the statute was aimed primarily at protecting
citizen protest in the area of land development, we recognize
that the application of the anti-SLAPP statute has not
been limited to this arena. See Baker v. Parsons, 434 Mass.
543, 549 (2001) ("our review of the legislative history
. . . led us to conclude that the Legislature intended
to go beyond the 'typical' case"). At the same time, we
have recognized that the scope of the statute has its limits.
See Duracraft Corp. v. Holmes Prods. Corp., supra at 162-163
("We are dubious that the Legislature intended to create
an absolute privilege. We also see no evidence that the
statute was intended to reach suits such as this one between
two corporate competitors involved in other ongoing litigation
. . .").[10]
The legislative history reveals that the anti-SLAPP statute
had its genesis as a legislative attempt to protect private
citizens when exercising their constitutional right to
speak out against development projects or other matters
of concern to them and their communities and to seek governmental
relief. "SLAPP suits [are] 'generally meritless suits brought
by large private interests to deter common citizens from
exercising their political or legal rights or to punish
them for doing so.'" Duracraft Corp. v. Holmes Prods. Corp.,
supra at 161, quoting Wilcox v. Superior Court, 27 Cal.
App. 4th 809, 816-817 (1994).[11] Nothing in the legislative history
suggests any intention to protect a government-retained
investigator acting on behalf of an administrative agency.
The board contracted with the defendant to engage in investigative
activities in aid of the board's case against the plaintiff,[12] and he was compensated for his services.
He had no other connection to, or interest in, the allegations
against the plaintiff.
The dissent, in its broad interpretation of the statute,
totally disregards this legislative history. This statutory
context, when combined with the Legislature's use of the
phrase "petition under the constitution" as discussed above,
produces an entirely different construction than that proposed
by the dissent. Our opinion today does not distort the
language of the statute, but rather gives it its intended
meaning by taking account of these two important considerations.
As is our obligation, we have given meaning to all of the
statute's words in the context of the legislative history
in order to effectuate the intent of the Legislature. See
Triplett v. Oxford, 439 Mass. 720, 723 (2003); Quincy City
Hosp. v. Rate Setting Comm'n, 406 Mass. 431, 443 (1990).[13]
The defendant argues that his enlistment by government
officials to engage in petitioning activities does not
disqualify him from protection under the anti-SLAPP statute.
Our holding in this case does not suggest that all parties
solicited by the government to participate in petitioning
activities will necessarily be disqualified from the anti-SLAPP
law's protections. While there is no statutory requirement
that petitioning parties directly commence or initiate
proceedings, in protecting those petitioning activities
guaranteed under the State and Federal Constitutions, see
G. L. c. 231, § 59H, the statute requires
that the protected party have more than a mere contractual
connection to the proceedings that are the basis of the
petitioning activity. The defendant asserts no such connection
to the proceedings in the case at hand.[14]
The defendant's case is distinguishable from the facts
in Baker v. Parsons, 434 Mass. 543 (2001), where we affirmed
the dismissal of a SLAPP suit against two defendants whose
comments on a proposed development had been solicited by
the government. In that case, the plaintiff landowner sought
permits from State and Federal regulatory agencies to construct
a pier on land he owned on an island that was also the
nesting habitat for several species of aquatic birds. Id.
at 545, 549. In the course of their review, the permitting
agencies sought comment on the impact of the proposed development
on the island habitat from other environmental agencies.
Id. at 545. One of those agencies, in turn, solicited comment
from Parsons, a senior scientist for an environmental group
(Manomet Bird Observatory), who had studied bird populations
on the island for fifteen years. Id. at 544-545. Her comments
were based on observations she had personally made while
a researcher on the island, to the effect that the plaintiff's
development on the island had already "diminished and perhaps
decimated a once robust and viable heronry." Id. at 546.
She concluded her comments by calling on the responsible
Federal and State regulatory agencies to halt the continued
degradation of the site. Id. The second defendant, the
Manomet Bird Observatory, was an environmental organization
that had once owned the plaintiff's land, id. at 544-545;
had used it for research, id. at 545; and, along with Parsons,
even before the permit application was filed, had been
seeking to have the area classified as an "area of critical
environmental concern." Id. Thus, prior to the solicitation
of their comments by the government, these defendants had
an independent interest in the controversy and in the preservation
of the land that was at the center of the dispute. They
were never hired by the government, nor did they serve
on behalf of the government to further its interests rather
than seek redress for their grievances. These factors supported
our determination that the suit against Parsons and the
Manomet Bird Observatory was a "'typical' SLAPP suit," targeting
the defendants for "petition[ing] the government." Id.
at 549 n.12.[15] Although their petitioning activity
was solicited by State and Federal government officials,
id. at 549, the defendants in Baker v. Parsons, supra,
were nonetheless also engaged in constitutional petitioning
activity in their own right and seeking some redress from
the government based on their grievances.[16]
Because we hold that this case is beyond the anti-SLAPP
statute's reach, we need not resolve the parties' dispute
as to whether the defendant's affidavit contained the requisite
factual basis to support dismissal pursuant to the anti-SLAPP
statute. See G. L. c. 231, § 59H; Baker
v. Parsons, supra at 551-552, 553-554.
2. Applicability of qualified immunity pursuant to G. L.
c. 112, § 5. General Laws c. 112, § 5,
which grants the board authority to investigate and prosecute
disciplinary complaints against licensed physicians, also
provides qualified immunity for those who participate in
board investigations of physician misconduct. The immunity
provision reads:
"No person filing a complaint or reporting or providing
information pursuant to this section or assisting the board at its
request in any manner in discharging its duties and functions shall
be liable in any cause of action arising out of the receiving of
such information or assistance, provided the person making the complaint
or reporting or providing such information or assistance does so
in good faith and without malice."
Id. The defendant claimed qualified immunity pursuant
to G. L. c. 112, § 5, in his special motion to
dismiss. The judge, having dismissed the case based on the anti-SLAPP
statute, did not reach the issue. We address it briefly.
The parties, relying on various canons of statutory interpretation,
ask this court to decide whether the anti-SLAPP statute or G. L.
c. 112, § 5, is "controlling." This question is based
on a fundamental misunderstanding of the two statutes. Neither statute "controls" because
there is no relationship between the two. The anti-SLAPP statute
and G. L. c. 112, § 5, address different situations
and thus represent two separate and independent defenses potentially
available in proceedings of this nature. As discussed above, the
anti-SLAPP statute applies to parties exercising their "right of
petition under the constitution." Nothing in G. L. c. 112, § 5,
either enlarges or restricts this protection.
Where, as in the present case, the defendant files a special
motion to dismiss pursuant to the anti-SLAPP statute and
also asserts qualified immunity as an alternative basis
for dismissal, the judge first should decide, as he did
here, whether to grant the special motion to dismiss. See,
e.g., Duracraft Corp. v. Holmes Prods. Corp., 427 Mass.
156, 168 (1998) (affirming denial of special motion to
dismiss and remanding for further proceedings on other
potential bases of immunity). This sequence is dictated
by the anti-SLAPP statute, which automatically stays discovery
(subject to certain exceptions) and directs the judge to
consider the merits of the special motion to dismiss on
an expedited basis. See G. L. c. 231, § 59H
("court shall advance any such special motion so that it
may be heard and determined as expeditiously as possible" and "[a]ll
discovery proceedings shall be stayed upon the filing of
the special motion . . . provided, however, that the court,
on motion and after a hearing and for good cause shown,
may order that specified discovery be conducted"). If the
anti-SLAPP statute applies, the case will be dismissed
without any consideration of qualified immunity. It is
only when the special motion is denied that the judge shall
consider the issue of qualified immunity as an independent
basis for dismissal. For a judge to proceed otherwise would
frustrate the procedural design of the special motion and
the intent of the Legislature. See preamble to 1994 House
Doc. No. 1520 (statute designed by Legislature to ensure
SLAPP suits will be "resolved quickly with minimum cost").
See also Fabre v. Walton, 436 Mass. 517, 521-522 (2002),
S.C., 441 Mass. 9 (2004) ("protections afforded by the
anti-SLAPP statute . . . are in large measure lost if the
petitioner is forced to litigate a case to its conclusion
before obtaining a definitive judgment through the appellate
process").
Because the anti-SLAPP motion was improperly allowed here,
we consider the application of G. L. c. 112, § 5,
to this case. The plain language of the statute applies
to the defendant's statements to the board and neither
party directly contends otherwise. The relevant inquiry
on remand is, therefore, whether the defendant's conclusions
were made "in good faith and without malice." G. L. c. 112, § 5.[17]
For the foregoing reasons, we vacate the dismissal of the
plaintiff's complaint and remand the case to the Superior
Court for further proceedings consistent with this opinion.
So ordered.
SOSMAN, J. (dissenting, with whom Marshall, C.J., joins).
If the Legislature had not provided its own definition of "a party's
exercise of its right of petition," G. L. c. 231, § 59H, the
various limitations on that term imposed by today's decision might
represent a plausible interpretation of the statute. We are not,
however, called on to craft our own definition, or to interpret the
statute based on our own understanding of what a party's "exercise
of its right of petition" ought to entail, because the Legislature
has defined the term for us. The statute provides that "a party's
exercise of its right of petition" means, inter alia, "any written
or oral statement made before or submitted to a legislative, executive,
or judicial body, or any other governmental proceeding." Id. Here,
the claims against Dr. Gastfriend are expressly based on Gastfriend's
having submitted a "written . . . statement," in the form of an affidavit,
to an "executive . . . body," the Board of Registration in Medicine
(board), see G. L. c. 13, § 10, in connection with a "proceeding," a
disciplinary proceeding against Dr. Kobrin. The conduct for which
Dr. Gastfriend has been sued thus comes within the literal meaning
of the term "a party's exercise of its right of petition," as that
term is defined in the statute.
The court today sidesteps this straightforward application
of the statutory definition by emphasizing the words "its
right" in the term "a party's exercise of its right of
petition," and claims that the protections of § 59H
must be limited in order not to render those words "superfluous." Ante
at - . However, the statute provides us with the Legislature's
definition of the entire term "a party's exercise of its
right of petition." We should look to that definition,
not our own assessment of what the words "its right" might
connote, if we did not have a definition from the Legislature.
The definition itself unambiguously applies to the present
case, and no component of the definition is rendered "superfluous" by
that application. Apparently discomfited by the broad scope
of the definition (for fear that it would protect "every
statement ever made to a government body," ante at ), the
court ignores the definition and reads its own limitation
into the words being defined. The court then seeks to justify
that limitation by suggesting, without citation to any
authority, that one's constitutional right of petition
is limited to petitioning on one's "own" behalf in pursuit
of one's "own interests," and that the additional phrase "under
the constitution" therefore connotes the Legislature's
desire to limit the protections of § 59H in the same
fashion. Ante at , , .
"[I]n interpreting a statute a court should always turn first to
one, cardinal canon before all others. We have stated time and again
that courts must presume that a legislature says in a statute what
it means and means in a statute what it says there. . . . When the
words of a statute are unambiguous, then, this first canon is also
the last: 'judicial inquiry is complete.'" (Citations omitted.) Connecticut
Nat'l Bank v. Germain, 503 U.S. 249, 253-254 (1992), quoting
Rubin v. United States, 449 U.S. 424, 430 (1981). "Courts are not
free to read unwarranted meanings into an unambiguous statute even
to support a supposedly desirable policy not effectuated by the act
as written." 2A N.J. Singer, Sutherland Statutory Construction § 46:1,
at 129 (6th ed. 2000).
There are, of course, occasions when we depart from the
literal wording of a statute, despite the unambiguous nature
of that literal wording. However, such departures from
the Legislature's straightforward wording are rare, reserved
for those instances where application of the literal meaning
would result in "absurd or unreasonable" consequences,
Champigny v. Commonwealth, 422 Mass. 249, 251 (1996), quoting
Attorney Gen. v. School Comm. of Essex, 387 Mass. 326,
336 (1982), or would "defeat [the] purpose" of the legislation,
Champigny v. Commonwealth, supra, quoting Lehan v. North
Main St. Garage, 212 Mass. 547, 550 (1942). We should be
especially leery of narrowing the literal meaning of this
particular definition, as the breadth of the definition
was repeatedly criticized by the Governor at the time the
statute was being enacted, and the Legislature deliberately
chose to reject that criticism and to maintain the definition
in its extremely broad form.[18]
Today's opinion acknowledges that history, but concludes
that it stands for nothing more than the fact that "the
Legislature rejected the Governor's position." Ante at
n.11. What this history signifies is that the Legislature's
attention was drawn to the fact that the statute's definitions
were very broad indeed, and that they went well beyond
the prototypical SLAPP suit. The Legislature's decision
to keep the statute's broad definitions in the face of
the Governor's repeated objections indicates at a minimum
that the breadth of those definitions was not the product
of inartful draftsmanship or legislative inadvertence.
Given the attention that was paid to the definitions at
the time of enactment, we should be even more inclined
to interpret the definitions consistent with their literal
wording -- their breadth is not some drafting error that
we need to correct to make the statute comport with the
Legislature's ostensible intent.
Today's opinion makes no claim that according the protections
of G. L. c. 231, § 59H, to this particular defendant
would result in "absurd or unreasonable" consequences,
or that doing so would "defeat the purpose" of § 59H.
Champigny v. Commonwealth, supra. Rather, the court takes
it upon itself to narrow the protections of § 59H
to a smaller class of persons that the court finds to be
more deserving than expert witnesses who are paid by the
government, rather than accept the literal statutory mandate
that such protections are to be accorded to all persons
-- paid or unpaid, expert or lay, private or officially
retained -- submitting "written or oral statement[s]" to
governmental bodies in connection with pending proceedings.
Before tampering with the Legislature's definition of "a
party's exercise of its right of petition," we should consider
whether it would be "absurd or unreasonable" to protect
all such persons.
There is nothing "absurd or unreasonable" about protecting
all witnesses from lawsuits based on the statements they
give during the course of agency proceedings. To the contrary,
absolute immunity from suit has long been accorded to witnesses
in judicial proceedings, even if their testimony is knowingly
false. See Correllas v. Viveiros, 410 Mass. 314, 319-320
(1991); Aborn v. Lipson, 357 Mass. 71, 72-73 (1970); Mezullo
v. Maletz, 331 Mass. 233, 236-237 (1954); Sheppard v. Bryant,
191 Mass. 591, 592 (1906); Hoar v. Wood, 3 Met. 193, 197
(1841). The privilege is grounded in the view that "it
is more important that witnesses be free from fear of civil
liability for what they say than that a person who has
been defamed by their testimony have a remedy." Aborn v.
Lipson, supra at 72. Massachusetts law recognizing such
absolute immunity accords with well-established law across
the country. See Briscoe v. LaHue, 460 U.S. 325, 330-334
(1983), and cases cited; Blevins v. Ford, 572 F.2d 1336,
1338 (9th Cir. 1978); Brawer v. Horowitz, 535 F.2d 830,
836-837 (3d Cir. 1976); Sacks v. Stecker, 60 F.2d 73, 75
(2d Cir. 1932) (absolute immunity for witnesses "is the
practically universal rule in this country"). This immunity
is accorded not merely for statements made as part of a
witness's testimony at trial, but for statements made "in
the context of a proposed judicial proceeding." Correllas
v. Viveiros, supra at 321. See Dolan v. Von Zweck, 19 Mass.
App. Ct. 1032, 1033 (1985), quoting Sullivan v. Birmingham,
11 Mass. App. Ct. 359, 361 (1981) ("absolute privilege
applies to defamatory statements made 'in the institution
or conduct of litigation or in conferences and other communications
preliminary to litigation'"); Frazier v. Bailey, 957 F.2d
920, 932 (1st Cir. 1992); Leavitt v. Bickerton, 855 F.
Supp. 455, 458 (D. Mass. 1994); Restatement (Second) of
Torts § 588 (1977) ("A witness is absolutely
privileged to publish defamatory matter concerning another
in communications preliminary to a proposed judicial proceeding
or as a part of a judicial proceeding in which he is testifying,
if it has some relation to the proceeding"). This absolute
privilege applies not only to oral testimony in court,
but also to statements or testimony given in written form.
See Mezullo v. Maletz, supra (absolute privilege protected
physician who signed certificate in commitment proceeding
certifying that plaintiff was insane); King v. Hildebrandt,
331 F.2d 476, 478 (2d Cir. 1964) (immunity accorded psychiatrist
who signed affidavit that launched commitment proceeding,
noting "well-established rule that statements in pleadings
and affidavits made in the course of judicial proceedings
are absolutely privileged so long as they are relevant
to the issues involved in the proceeding"); Williams v.
Williams, 169 F. Supp. 860, 862 (D.D.C. 1958) (statement
in affidavit); Todd v. Cox, 20 Ariz. App. 347, 348 (1973)
(affidavit); Overman v. Klein, 103 Idaho 795, 800 (1982)
(immunity applicable to witness who filed affidavit in
child custody proceeding, noting that witness immunity
extended "as to virtually any statement in documents which
have been filed in a judicial proceeding"); Resciniti v.
Padilla, 72 A.D.2d 557, 558 (N.Y. 1979) (affidavit); Jarman
v. Offutt, 239 N.C. 468, 472 (1954) (affidavit); Vieira
v. Meredith, 84 R.I. 299, 301 (1956) (statement in pleadings).
Finally, of particular relevance to the distinction that
today's decision reads into § 59H, common-law immunity
from suit extends to witnesses who are employed by or working
for the government -- it is not limited to private persons
giving evidence in such proceedings. See Briscoe v. LaHue,
supra at 335-336 & n. 15 (common law provided absolute
immunity for all witnesses, "governmental or otherwise," and "drew
no distinction between public officials and private citizens";
42 U.S.C. § 1983 did not override witness immunity
for police officers who allegedly testified falsely); Overman
v. Klein, supra (witness immunity extended to social worker
employed by government agency). See also LaLonde v. Eissner,
405 Mass. 207, 211-212 (1989) (absolute immunity for court-appointed
experts). Indeed, "to the extent that traditional reasons
for witness immunity are less applicable to governmental
witnesses, other considerations of public policy support
absolute immunity more emphatically for such persons than
for ordinary witnesses." Briscoe v. LaHue, supra at 342-343.
From this vast body of precedent supporting absolute immunity
for statements made by any kind of witness in connection
with judicial proceedings, the anti-SLAPP statute takes
the modest step of extending a more limited degree of immunity
to all persons submitting statements in connection with
other types of governmental proceedings. There is nothing
remarkable, let alone "absurd or unreasonable," about protecting
all persons who provide government agencies with information
in the course of agency adjudications, including those
who have been sought out and paid by the government. What
is being protected is not merely the "rights" of the person
submitting such information, but the interests of the government
agency in acquiring information germane to the proceedings
before it. See Preamble to 1994 House Doc. No. 1520 (purposes
of anti-SLAPP legislation include encouragement of "robust
discussion of issues before legislative, judicial, and
administrative bodies"). As with immunity from suit for
a witness's participation in judicial proceedings, immunity
for witnesses in agency proceedings removes what might
otherwise be a powerful disincentive against participation,
a disincentive that would operate to rob the agency itself
of the benefit of those witnesses' information, views,
and expertise.[19] The agencies themselves are best served
by having witnesses and participants of all types protected
from lawsuits stemming from their testimony and participation.
Indeed, that such agencies are the functional equivalent
of courts, requiring comparable protection for those involved,
has long been recognized. See Butz v. Economou, 438 U.S.
478, 512-517 (1978) (absolute immunity accorded to administrative
law judges and to agency attorneys presenting case, as
they are equivalent of court judges and prosecutors); Bettencourt
v. Board of Registration in Med., 904 F.2d 772, 782-785
(1st Cir. 1990) (absolute immunity for board and staff
members in connection with disciplinary proceedings against
physician).
Whereas the common law made witnesses in judicial proceedings
absolutely immune from suit, the anti-SLAPP statute, protecting
persons making statements in connection with government
proceedings, extends a form of protection that is slightly
less than absolute immunity. Under G. L. c. 231, § 59H,
the suit against the person who made the statement will
be dismissed unless it can be shown that the person's statement "was
devoid of any reasonable factual support or any arguable
basis in law," the burden being on the plaintiff to demonstrate
that the participant's statement lacked such support or
basis. The statute also establishes a procedural mechanism
to enforce this immunity in a pragmatic way at the outset,
before the defendant has been subjected to the expense
and anxiety of protracted litigation. See Fabre v. Walton,
436 Mass. 517, 520-522 (2002), S.C., 441 Mass. 9 (2004)
(allowing interlocutory appeal from denial of motion to
dismiss under § 59H). Extending such protection to
persons who submit information to government agencies,
whether they do so on their own personal initiative or
as witnesses retained by the government, is an extremely
modest extension of the law of witness immunity.[20] It is hardly "absurd or unreasonable" to
include all such persons within the scope of this protection,
and I therefore see no reason to depart from the literal
language of § 59H and carve out an exception merely
becauase the witness's participation was not in pursuit
of "a grievance of his own" or "on his own behalf." Ante
at - .
Beyond the troubling ramifications today's decision has
for government agencies seeking to obtain opinions from
private experts, the case introduces a new and somewhat
amorphous argument with which to defeat special motions
to dismiss under § 59H, namely, the argument
that the defendant who made the statement to a government
agency did not have his or her "own interests" at stake,
was not acting on his or her "own behalf," or lacked the
requisite "interest in" the subject of the proceedings.
Ante at , , . Even where the suit in question is unabashedly
based on a person's "statement" to a government agency
in connection with a pending matter, the motives and relationships
underlying the person's decision to give such a statement
must apparently be examined to make sure they are sufficiently
pure to come within the ambit of the narrower version of § 59H
outlined in today's decision.
While the precise contours of this evaluation of what caused
the person to submit a statement to the government agency
are unclear, it is apparent that affiliation with the government,
or the receipt of filthy lucre, or perhaps a combination
of the two, may suffice to taint the person making the
statement, such that the person is no longer acting in
his or her "status as citizen[]" or exercising a "constitutional" right
and should therefore be deprived of the quasi immunity
and procedural protections of § 59H. Ante at , . The
court today posits that there may be persons who are "solicited
by the government" to participate in proceedings, but who
nevertheless could be protected by § 59H, as long
as that solicitation did not result in "performing services
for the government" or "a mere contractual connection to
the proceedings." Ante at , , .[21] The court cites no authority for the
proposition that either receipt of compensation for one's
time or agreement to provide the government with information
or expert advice deprives someone of the "status" of "citizen" or
otherwise curtails someone's "constitutional" rights. Yet,
according to today's opinion, such persons are not deserving
of protection and must therefore somehow be excluded from
the unambiguous definition of § 59H. Recognizing the
ambiguity inherent in its own (as opposed to the Legislature's)
definition, the court acknowledges that "some difficult
factual situations will have to be assessed on a case-by-case
basis." Ante at n.8. The court then muses whether § 59H
would be available to "a government 'whistleblower,'" apparently
torn between the fact that a whistleblower may have "personal
knowledge and concern" about the matter being reported
and the fact that such a whistleblower, working for the
government, might just be pursuing the government's interest.
Ante at n.17.
Today's decision casts a pall of uncertainty over the status
of many persons who make statements to the government.
What if an expert is hired by a petitioner -- will the
petitioner's "own interests" in the matter allow us to
extend the protections of § 59H to the petitioner's
disinterested expert, ante at , or does the fact that the
individual expert has no "grievance of his own," ante at
- , deprive the expert of those protections? What about
lobbyists or lawyers? They are customarily making statements
to government officials on behalf of their clients, not
on their own behalf, and are compensated for doing so.
Is their connection to the proceeding also a "mere contractual
connection" that deprives them of protection? Ante at .
What about persons who testify before agencies after being
subpoenaed (by either the agency or by any of the parties)
-- such persons submit "statement[s]" in connection with
the agency proceeding, but if they did not want to make
statements of their own volition, are they pursuing their "own" grievances,
or exercising their "right of petition under the constitution"?
Ante at - .
In my view, such questions are irrelevant, as the straightforward
definition provided by the Legislature does not require
us to consider who the person making the statement works
for, whether the statement was a product of the declarant's "own
interests," ante at , or what other constellation of factors
may have influenced the person to submit a statement to
the agency. The definition of "a party's exercise of its
right of petition" contains no reference to the motives
or affiliations of the person making the "statement . .
. to a legislative, executive, or judicial body," and special
motions to dismiss under § 59H should not be bogged
down by such considerations.
The elusive nature of the additional element that the court
has inserted into § 59H is best illustrated by the
difficulty the court has in conjuring some distinction
between the present case and Baker v. Parsons, 434 Mass.
543 (2001). There, as here, a government agency solicited
the views of an outside expert in order to assist the agency,
and that expert was then sued for the statements she had
made in rendering her opinion.[22] There, as here, the plaintiff argued
that the anti-SLAPP statute was not applicable. Rather
than engage in any analysis of the expert's "independent
interest in the controversy" that predated the government's
solicitation of her input, ante at , the court in Baker
reasoned that "the plain language of the statute . . .
squarely encompasses the facts of this case." Baker v.
Parsons, supra at 549. The case came within that "plain
language" because: "Parsons, a biologist, responded to
inquiries from State and Federal environmental officials,
in connection with government agency reviews of Baker's
application to develop property by constructing a pier
on an island that has historically been a home for many
aquatic birds. As a result of her responses, Baker eventually
sued Parsons and the nonprofit organization for which she
works, thus, according to the defendants, 'chilling' any
further participation by the defendants in assisting State
and Federal agencies gathering information on the merits
of Baker's application." Id. That same "plain language" analysis
can be applied to the present case using the exact same
reasoning: Gastfriend, a physician, responded to inquiries
from the board, in connection with the board's review of
Kobrin's fitness to practice medicine. As a result of his
responses, Kobrin eventually sued Gastfriend, thus, according
to the defendant, "chilling" any further participation
by him in assisting the government in any proceeding against
Kobrin.[23]
In attempting to craft some distinction between Gastfriend's
status in the present case and Parsons's status in Baker
v. Parsons, supra, the court claims that Gastfriend was "serv[ing]
on behalf of the government to further its interests" whereas
Parsons was "seek[ing] redress for [her] grievances." Ante
at - . That Parsons was pursuing
her "own" grievance was demonstrated by the fact that she
had "personally" conducted research on the island site
at issue, and thereby had an "interest" in the preservation
of the island that was formed "prior to the solicitation
of [her] comments by the government." Ante at - . Gastfriend,
by comparison, only articulated his views after he was "hired
by the government." Ante at .
This proffered distinction between Parsons and Gastfriend
assumes that an expert who starts out as a neutral, disinterested
expert solicited (and paid) by an agency cannot thereafter
become a genuine petitioner who, having become familiar
with the facts and circumstances, develops his "own" desire
to see the government take a particular action. To the
extent that it was Parsons's sincere view about the undesirability
of the proposed pier construction that made her a viable
candidate for protection under § 59H, how can we tell
that, by the time he submitted his affidavit, Gastfriend
was not equally sincere in his view that Kobrin should
not be allowed to practice medicine? May not an initially
neutral physician, who starts out with no knowledge of
the physician being disciplined, review the information
made available to him and then become indignant at what
he views as dangerously substandard medical practice, and
thus intensely desirous that the offending physician's
license be revoked? While Gastfriend did not have such
views at the time the board first contacted him, because
he at that time knew nothing of Kobrin or the deaths of
his patients (that ignorance, in the court's view, being
a feature that makes him distinguishable from Parsons,
ante at ), who is to say that he had not developed an "interest" in
the outcome of the matter by the time he submitted his
affidavit? Having learned about Kobrin's practice, may
not Gastfriend have developed his "own" concern for the
image of his profession, or his "own" compassion for patients
who were, in his opinion, at risk of dying from Kobrin's
improper practices, and thus have his "own" interest in
seeing Kobrin's license suspended? If he had developed
the requisite desire that the government take action against
Kobrin, why would his agreement to review the records and
render an opinion diminish his "constitutional" right as
a "citizen" to express his views to the governmental body
that had the power to suspend Kobrin's license? The court
today cynically assumes that Gastfriend, having begun as
a "hired gun," would forever be a "hired gun" and would
not actually care about the outcome of the disciplinary
proceedings against Kobrin, whereas Parsons, because she
had already studied the island habitat in question, subconsciously
cared about the outcome of the pier permit proceedings
before she even knew about them. There is nothing in this
record to suggest that, at the time he submitted his affidavit,
Gastfriend actually had no preference as to what the board
did with Kobrin's license. Indeed, it is insulting to suggest
that, for money, Gastfriend was simply saying whatever "the
board" or "the government" wanted him to say, and thus
merely acting "on behalf of the board" or "the government." Ante
at , . If, as today's decision states, § 59H will
not apply if the person making the statement to the governmental
body lacks some "interest" in the matter, there is no basis
on which to conclude that Gastfriend ultimately lacked
such an "interest" in the matter before the board.
I see nothing to be gained, and much to be lost, in requiring
such parsing of motives as part of a special motion to
dismiss under § 59H. In my view, nothing in § 59H
suggests that its protections hinge on the manner in which
the person making the statement came to know or care about
the agency proceedings in question. Only by reading such
irrelevant considerations into the statute, and then assuming
that Gastfriend cannot satisfy those irrelevant considerations,
does the court deny him the protections of § 59H.
Gastfriend, and the many other expert witnesses who assist
a wide array of government agencies, are entitled to those
protections under the unambiguous wording of the statute's
definition, and it is in the best interests of both the
witnesses and the agencies that such witnesses be accorded
those protections in the prompt manner that § 59H
envisions. I see no indication that the Legislature intended
to deny such witnesses those protections, and therefore
respectfully dissent.
FOOTNOTES:
[1] There is a dispute as to the defendant's precise position
at Massachusetts General Hospital, but it is of no import to our
analysis.
[2] According to the record, benzodiazepines are narcotics used
to treat anxiety and are sometimes abused by those with drug addictions.
[3] The plaintiff called the defendant as a witness in order
to demonstrate that his affidavit was "replete with error."
[4] The DALA magistrate found the defendant's opinions to be "unfounded." We
render no opinion as to the contents of the affidavit.
[5] The defendant asserts that he was sued during the pendency
of the plaintiff's criminal trial and that the suit would chill the
defendant's likely participation in that trial. The record
reveals that the defendant was not sued based on his involvement
in the pending criminal case, but only as a result of his "act of
preparing and submitting to the [b]oard . . . [his] affidavit."
[6] The acronym "SLAPP" stands for Strategic Lawsuit Against
Public Participation. See Duracraft Corp. v. Holmes Prods. Corp.,
427 Mass. 156, 160 n.7 (1998).
[7] We recognize the amicus brief filed by the Attorney General
on behalf of the Commonwealth supporting the defendant's position.
[8] No definition of the phrase will encompass every case that
falls within the statute's reach, and some difficult factual situations
will have to be assessed on a case-by-case basis. What we seek to
do is to limit the statute's protection, in accordance with the legislative
intent, to the type of petitioning activity the Constitution envisions
in which parties petition their government as citizens, not as vendors
of services. See discussion infra.
[9] The dissent argues that "the statute provides us with the
Legislature's definition of the entire term 'a party's exercise of
its right of petition.'" Post at (Sosman, J., dissenting). The dissent
glosses over the fact that the statutory definition of "said party's
exercise of its right of petition" remains modified by the phrase "under
the constitution." See G. L. c. 231, § 59H (entire
phrase is "said party's exercise of its right of petition under the
constitution" [emphasis added]). The legislative intent to limit
the scope of the "right of petition" in the statute is further evidenced
by the last phrase of the definition (which the dissent also overlooks): "or
any other statement falling within constitutional protection of the
right to petition government" (emphasis added). Id.
[10] The anti-SLAPP statute was enacted as 1994 House Doc. No.
1520 and sent to Governor Weld for his signature. See 1994 House
J. 1118; 1994 Senate J. 1294. Governor Weld returned the bill to
the House of Representatives for amendment in order to narrow the
definition of "right of petition." See 1994 House Doc. No. 5570.
The Legislature rejected the Governor's recommendations, and passed
the bill unamended. See 1994 House J. 1247; 1994 Senate J. 1418.
Governor Weld then vetoed the legislation, arguing that the bill,
as written, protected too broad a range of activities. See 1994 House
Doc. No. 5604 ("The bill's proponents are concerned with retaliatory
lawsuits brought by developers . . . . [However,] [e]ffectively,
the bill covers any statement on a policy issue"). The Legislature
passed the anti-SLAPP statute over the Governor's veto. 1994 House
J. 1306. 1994 Senate J. 1491-1492.
Both the defendant and the dissent, post at - & n.1
(Sosman, J., dissenting), cite Governor Weld's veto message and this
legislative action as support for a broad interpretation of the anti-SLAPP
statute. All that is revealed by this legislative history,
however, is that the Governor believed that the anti-SLAPP statute
should apply to a narrower range of communications than the Legislature
did. That disagreement does not assist us in identifying where the
line should be drawn. The Legislature's rejection of the Governor's
position, to the extent it has meaning at all, does not illuminate
the case presently before us. No more can be drawn from the legislative
override of the Governor's veto than that the Legislature rejected
the Governor's position.
[11] See also Weld Vetoes a Bill Targeting Developers Who File
Libel Suits, Boston Globe, Dec. 24, 1994, at 15 (need for anti-SLAPP
legislation, as explained by bill's sponsor, is "to stop the practice
of developers filing lawsuits against environmentalists and members
of neighborhood groups who testify at public hearings against proposed
developments"); Brewer Blasts SLAPP Suits; Barre Legislator Backs
Cohen Bill, Worcester Telegram and Gazette, Dec. 29, 1993, at B4
(paraphrasing State Representative's description of SLAPP suits as
those "used with increasing frequency to discourage citizens from
participating in government and punishing those who do").
[12] Although the plaintiff claims that the defendant "caused
the complaint to be initiated," the record does not support this
assertion.
[13] The dissent has also made clear its approval of a much broader
protection than that which the Legislature crafted in the anti-SLAPP
statute. See post at , (Sosman, J., dissenting) ("agencies themselves
are best served by having witnesses and participants of all types
protected from lawsuits stemming from their testimony and participation" and "it
is in the best interests of both the witnesses and the agencies that
such witnesses be accorded those protections"). However, such policy
rationales cannot justify disregard of the Legislature's intent.
We do not decide what the Legislature should have done, but rather
we must implement what it has chosen to do. See Commonwealth v. Leno,
415 Mass. 835, 841 (1993) ("Whether a statute is wise or effective
is not within the province of courts").
[14] The dissent expresses concern that this distinction introduces
a "new" and "amorphous" argument into the anti-SLAPP analysis, which
requires courts to "pars[e] motives" regarding how and why parties
came to make allegedly protected statements. See post at , (Sosman,
J., dissenting). The dissent misconstrues today's holding. 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.
[15] The dissent, post at (Sosman J., dissenting), asserts that
in Baker v. Parsons, 434 Mass. 543 (2001), the court relied on the
plain language of the statute in finding the anti-SLAPP statute applicable.
See id. at 549. While we relied, in part, on the language of the
statute, we also looked to the legislative history of the anti-SLAPP
statute in construing that language, a consideration that the dissent
completely discounts. See id.
("In addition to its legislative history, the plain language
of the statute . . . squarely encompasses the facts of this case .
. ."). There is thus nothing inconsistent between our analysis in
Baker v. Parsons, supra, and our analysis today.
[16] Similarly, the defendant's activities are distinguishable
from those of a government "whistleblower," who petitions a government
body regarding activities or actions based on personal knowledge
and concern. We do not address whether a whistleblower would be protected
under the anti-SLAPP statute.
[17] The defendant asserts in addition that he has absolute immunity
under the common law and that the complaint should have been dismissed
for that reason. The dissent focuses extensively on the application
of absolute common-law immunity for witnesses, apparently hoping
to transfer such immunity to the anti-SLAPP context, where it does
not apply. See post at - (Sosman, J., dissenting). That the common
law may provide a witness with absolute immunity says nothing at
all about whether the Legislature intended to grant a lesser form
of immunity to the defendant under the anti-SLAPP statute. Our examination
of the legislative history revealed nothing that would suggest the
Legislature looked to common-law witness immunity in crafting the
anti-SLAPP statute.
[18] Specifically, when the first enactment of the bill was sent
to the Governor, he vetoed it, explaining that the bill as drafted "applies
to a broad group of potential claims, sweeping in cases that are
far beyond the types of lawsuits which the bill's proponents wish
to control," and noting the stringent consequences for any claim "falling
within its broad definition." Letter from Governor William F. Weld
to House of Representatives and Senate (Jan. 13, 1994). When the
Legislature passed another bill using the same "broad definition" (see
1994 House J. 1118;
1994 Senate J. 1294), the Governor again articulated
his concern about the ostensible overbreadth of the bill and recommended
an amendment to narrow its scope. 1994 House Doc. 5570. When the
bill passed again without amendment (see 1994 House J. 1247; 1994
Senate J. 1418), the Governor again expressed the view that it was
too broad and, for that reason, vetoed it. See 1994 House Doc. No.
5604. The Legislature proceeded to override the Governor's veto.
1994 House J. 1306; 1994 Senate J. 1491-1492.
[19] The amicus brief of the Attorney General points out that
the Board of Registration in Medicine (board), like many other government
agencies, regularly needs the assistance of outside experts in order
to perform its functions.
[20] With specific reference to the board, it is also an extremely
modest modification of the earlier statute that gave qualified immunity
to persons filing complaints, reporting or providing information, "or
assisting the board at its request in any manner in discharging its
duties and functions." G. L. c. 112, § 5. That statute
precludes imposition of liability as long as the person complaining,
reporting, or assisting did so "in good faith and without malice." Id.
The anti-SLAPP statute substitutes a more stringent qualification
of the immunity that is granted, i.e., the immunity is lost only
if the person's statement "was devoid of any reasonable factual support
or any arguable basis in law." G. L. c. 231, § 59H. And, to
give teeth to that immunity, the anti-SLAPP statute makes available
a procedural vehicle ensuring that the immunity issue will be addressed
promptly. Given that the Legislature had already extended some degree
of immunity to persons "assisting the board," it cannot be "absurd
or unreasonable" for the Legislature to tighten that immunity somewhat,
create procedures to enforce it, and extend it to all persons who
are "assisting" government agencies by giving "oral or written statement[s]" to
those agencies.
Today's decision correctly holds that, notwithstanding
G. L. c. 112, § 5, persons exercising their "right of petition" before
the board are entitled to the protections of G. L. c. 231, § 59H.
Ante at - . That this defendant would also be covered under G. L.
c. 112, § 5, does not preclude him from claiming the more rigorous
protections of the anti-SLAPP statute if the suit against him is "based
on" his having made a "statement" to the board. G. L. c. 231, § 59H.
[21] This suggests that retained expert witnesses, who are compensated
for their time, will not be protected, unless perhaps they can show
that they had some interest in or connection to the matter prior
to entering that contractual arrangement. Ordinarily, when seeking
an expert's opinion, one purposely seeks out an expert who does not
have some prior involvement or interest in the matter, as that deliberate
detachment is viewed as important to the neutrality and validity
of the resulting expert opinion. Under today's ruling, biased experts
who are compensated by agencies can perhaps claim the protection
of § 59H when they are sued for rendering faulty opinions, because
they can demonstrate that they had their "own" interest in the outcome
of the matter before they were retained. However, neutral experts
-- the only kind of experts worth hiring -- cannot claim that protection.
[22] More specifically, the United States Army Corps of Engineers
had itself solicited comment from other government agencies, including
a unit within the Massachusetts division of fisheries and wildlife
(division), with respect to a pending application to construct a
pier on an island. The division, in preparation for its own response
to the Federal agency, in turn sought input from Parsons, a scientist
who had conducted research on the island where the proposed pier
would be located. Parsons provided her written opinion, opining that
the value of the island as a nesting habitat for aquatic birds made
it an inappropriate site for the pier. That opinion allegedly caused
others (not Parsons herself) to petition the Executive Office of
Environmental Affairs for an environmental impact review of the proposed
pier. Baker, the applicant seeking permission to construct the pier,
then sued Parsons for the damages allegedly incurred as a result
of the delay in issuance of the permit for the pier. Baker v. Parsons,
434 Mass. 543, 545-546 & n.6 (2001).
[23] Inexplicably, today's decision treats as irrelevant the fact
that Gastfriend was a potential witness in a pending criminal case
against Kobrin at the time Kobrin filed this lawsuit. Ante at n.5.
Gastfriend would not view the pendency of this lawsuit as irrelevant
to his consideration of whether he would be willing to assist the
prosecutor, nor would it be viewed as irrelevant by the prosecutor,
who would have to consider whether the lawsuit would make Gastfriend
appear biased. Of course, whether the lawsuit was intended to "chill" Gastfriend's
participation in either the disciplinary proceedings or the criminal
prosecution, the effect of today's decision will unquestionably "chill" any
neutral expert's willingness to provide an opinion to any State or
Federal agency.
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