Moriarty v. Mayor of Holyoke
Moriarty v. Mayor of Holyoke
Opinion of the Court
A former employee of the city of Holyoke (city or Holyoke), Thomas Moriarty, filed suit against the mayor of Holyoke, Michael Sullivan (named both individually and as mayor); Nicholle Proulx, an assistant city solicitor (also named individually and as an agent of the city); and the city itself (collectively, the city defendants), alleging various tort, contract, and civil rights claims.
Background. “We draw the background facts of the case from the pleadings and affidavits pertinent to the special motion to dismiss, as well as from the judge’s decision and order. Unless otherwise noted, the facts recited are not in dispute.” North Am. Expositions Co. Ltd. Partnership v. Corcoran, 70 Mass. App. Ct. 411, 412, further appellate review granted, 450 Mass. 1104 (2007).
Plaintiff Moriarty served as the clerk of the license commission of the city from 1998 through 2001. He and defendant Sullivan interacted in political opposition, and often with acrimony. For example, during Sullivan’s successful mayoral campaign in 1999, Moriarty openly endorsed the incumbent mayor and organized against Sullivan’s candidacy. After Sullivan took office in January of 2000, Moriarty was elected president of the Holyoke union of clerks and other municipal workers. Moriarty publicly criticized Sullivan’s proposed contract for Holyoke public school teachers; Moriarty alleges that Sullivan shortly thereafter unilaterally reduced Moriarty’s salary by a line item budget cut, the only line item alteration in that year’s budget. Sullivan formulated a municipal worker consolidation plan, which Moriarty vocally opposed due to its impact on the clerks’ union. Moriarty also assisted city employees in organizing against the plan.
The city defendants allege, and Moriarty disputes, that on
Between December 15, 2001, and March 15, 2003, the city defendants made numerous statements to the local press regarding the city’s investigation. For example, Sullivan described the inquiry as one delving into “procedural irregularities” at the license commission during Moriarty’s tenure as clerk and stated that, as a result, Moriarty had been suspended and the locks had been changed at the commission offices. Sullivan also approached the Holyoke city council and asked for a $14,500 appropriation to fund an independent audit of the license commission’s financial information and record-keeping.
Based in part on these statements to the press and the city council, Moriarty filed the complaint in this case on October 18, 2004. He alleged twenty-three counts against the city defendants, including defamation, libel, slander, abuse of process, malicious prosecution, gross negligence, intentional infliction of emotional distress, negligent infliction of emotional distress, and violations of G. L. c. 12, § 11H.
Discussion. We review the denial of the subject G. L. c. 231, § 59H,
The party moving for dismissal based on § 59H has the “initial burden of demonstrating that the activity at issue was ‘petitioning activity’ within the purview of the anti-SLAPP statute and that [the plaintiffs] claims were ‘ “based on” [the] petitioning
In Baker v. Parsons, 434 Mass. at 544-547, a property owner brought suit against two defendants, one of whom had made statements to government agencies regarding the impact of certain construction proposed by the landowner on the nesting habitat of aquatic birds. The defendants’ statements were held to be petitioning activity within the meaning of the statute and the suit to have been properly dismissed. Id. at 549-555. Four years later, the Supreme Judicial Court noted in the Kobrin case that the defendants in Baker “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 [own] grievances” (emphasis supplied). Kobrin, 443 Mass. at 339. The defendant in Kobrin, in contrast, was denied the protection of the anti-SLAPP statute for statements he made while appearing before an administrative body as a hired government witness, testifying as he did to further the government’s interests. Id. at 328-330. In Fisher, 69 Mass. App. Ct. at 360-365, we considered the defendant State police sergeant’s special motion to dismiss. We concluded that his statements to internal affairs — the basis for the plaintiff’s suit — did not constitute petitioning activity. Id. at 365.
In the case before us, we discern no material difference for
The city defendants make much of the first sentence of a footnote in Kobrin, 443 Mass. at 332 n.8, quoted in the margin.
We are not persuaded by this argument, not least because the city defendants — who do little more than baldly assert that their situation is factually distinct and thus “difficult” in the language of the Kobrin footnote — do not explain why the Kobrin definition should not apply here. They ignore the second sentence of the Kobrin footnote, which underscores Kobrin’s
As did the judge in her well-reasoned decision, we reject the contention that the anti-SLAPP statute protects the purported governmental “self-petitioning” at issue here. The scope of the concept “right of petition” as a gateway requirement of § 59H is coextensive with the concept as employed in the United States and Massachusetts Constitutions. G. L. c. 231, § 59H. See Kobrin, 443 Mass. at 333; Fisher, 69 Mass. App. Ct. at 364. Because the constitutional right is understood as the right of citizens to seek redress from the government for grievances, see Kobrin, supra at 332 n.8, the government cannot “petition” itself within the meaning of G. L. c. 231, § 59H.
Order denying special motion to dismiss affirmed.
Moriarty also filed several claims against Melanson, Heath & Company. Those claims are not at issue in this appeal. See note 6, infra.
The acronym “SLAPP” stands for “strategic lawsuit against public participation.” See Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 160 n.7 (1998); Cadle Co. v. Schlichtmann, 448 Mass. 242, 242 n.2 (2007).
The city defendants filed a motion to strike certain of Moriarty’s factual allegations pursuant to Mass.R.A.P. 15(a), 365 Mass. 859 (1974), and Mass. R.A.P. 16(e), as amended, 378 Mass. 940 (1979). We discern no violation of rule 16(e) by Moriarty. Compare Lynn v. Thompson, 435 Mass. 54, 56 n.4 (2001), cert. denied, 534 U.S. 1131 (2002). Moreover, the facts that the city defendants suggest should be struck are immaterial to our resolution of the issue before us.
Moriarty cited in his complaint eighteen articles published during the relevant time period in local newspapers. These articles allegedly contain false and defamatory factual statements of and concerning Moriarty that the city defendants published or caused to be published.
As noted in note 2, supra, Moriarty also brought several counts against Melanson, Heath & Company, a firm hired by the city to conduct an audit. Because this appeal is only from the denial of the special motion to dismiss, to which Melanson, Heath & Company was not a party, we are here concerned only with the claims brought against the city defendants.
G. L. c. 231, § 59H, inserted by St. 1994, c. 283, § 1, provides in pertinent part: “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.”
The statute defines a “party’s exercise of its 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 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.” G. L. c. 231, § 59H.
In Fisher, while agreeing that the special motion to dismiss under G. L. c. 231, § 59H, had been correctly denied, we ultimately held that an absolute privilege applied to the defendant’s statements, and, accordingly, we reversed the order denying the motion to dismiss brought under Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974), and entered judgment for the defendant. Id. at 366-370. We have no cause to consider whether the city defendants here would enjoy the protection of any similar privileges or immunities.
Although the complaint names Sullivan and Proulx in their individual as well as their official capacities, the acts alleged all appear to have been performed in their roles as city officials.
“No definition of the phrase [‘based on said party’s exercise of its right of petition under the constitution’] 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 limit the statute’s protection, in accordance with legislative intent, to the type of petitioning activity the Constitution envisions in which parties petition their government as citizens, not as vendors of services.” Kobrin, 443 Mass. at 332 n.8.
Although a defendant’s motivation is not scrutinized during the threshold § 59H inquiry as to whether the subject statements were petitioning activity, the defendants state in their brief that they intended to achieve a specific governmental goal by their statements, i.e., the proper operation of the license commission. If anything, this underscores that the city defendants were not seeking redress for their own grievances or petitioning on their own behalf as citizens, but were instead acting as governmental employees or officials in furtherance of governmental interests and objectives. Compare Kobrin, 443 Mass. at 329-330 (defendant, denied anti-SLAPP protection, acted as paid witness retained by government to further governmental interest), with Baker v. Parsons, 434 Mass. at 549 (defendants, granted protection of anti-SLAPP statute, had independent, preexisting interest as nonprofit organization and individual citizen in matter about which they spoke).
Reference
- Full Case Name
- Thomas Moriarty v. Mayor of Holyoke & others
- Cited By
- 7 cases
- Status
- Published