Baker v. Parsons

• Decision Date: 02 April 2001
• Docket Number: SJC-08439
• Parties: (Mass. 2001) JOHN W. BAKER vs. KATHERINE C. PARSONS & another. <A HREF="#fr1-1" name="fn1-1">1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

750 N.E.2d 953 (Mass. 2001)

JOHN W. BAKER vs. KATHERINE C. PARSONS & another.¹

SJC-08439

Massachusetts Supreme Court

April 2, 2001.

July 12, 2001.

County: Middlesex.

Present: Marshall, C.J., Greaney, Spina, Cowin, Sosman, & Cordy, JJ.

Summary: "Anti-SLAPP" Statute. Constitutional Law, Right to petition government. Statute, Construction. Practice, Civil, Summary judgment.

Civil action commenced in the Superior Court Department on June 3, 1993.

The case was heard by Barbara J. Rouse, J., on a special motion to dismiss.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Robert H. D'Auria for the plaintiff.

Jacqueline L. Allen for the defendants.

The following submitted briefs for amici curiae:

Thomas F. Reilly, Attorney General & Dorothy Anderson, Assistant Attorney General, for the Commonwealth.

Patricia A. DeJuneas & Sarah R. Wunsch for the American Civil Liberties Union of Massachusetts.

CORDY, J.

The plaintiff, a property owner in Plymouth, appeals from the decision of a Superior Court judge granting the defendants' special motion to dismiss his lawsuit, pursuant to G. L. c. 231, § 59H, commonly known as the anti-SLAPP statute.² He argues that his complaint is not subject to a special motion to dismiss because it was not based solely on the defendants' petitioning activities, and, in the alternative, that he met his burden under the statute to show that the defendants' activities were devoid of any reasonable factual support or any arguable basis in law. The parties disagree on the standard to be used to determine whether this burden has been met. We transferred the case to this court on our own motion. We conclude that to defeat a special motion to dismiss made pursuant to G. L. c. 231, § 59H, the nonmoving party (the plaintiff here) must show by a preponderance of the evidence that the moving party's petitioning activities were devoid of any reasonable factual support or any arguable basis in law. Because this standard was not met in the present case, we affirm the decision allowing the defendants' special motion to dismiss.

1. Background. Between 1979 and 1991, John W. Baker (Baker) purchased various parcels of land on the northern end of Clark's Island in Plymouth. In 1987, he placed a portion of his acreage in a forestry trust on which he has since operated a tree farm. The defendants, Manomet Bird Observatory³ and Dr. Katherine C. Parsons, now a senior staff scientist for Manomet, studied bird populations on the island from 1975 to 1989. Manomet had once owned land on the island that was ultimately purchased by Baker. Baker allowed Parsons and Manomet to continue using his property for research purposes until he learned that they were seeking to have the island classified as an "area of critical environmental concern," which Baker believed would severely restrict his use of his land. He alleges that his decision to deny access to his property to the defendants "resulted in a smear campaign" by them against him.

In 1991, Baker applied for a license from the Massachusetts Department of Environmental Protection, and for a Federal permit from the United States Army Corps of Engineers (Army corps), to construct a pier on the northern end of his property.⁴ In response to his application, the Army corps solicited comment from various agencies including the natural heritage and endangered species program (natural heritage program), a division of the Massachusetts division of fisheries and wildlife, which has as one of its purposes the review of Army corps permit applications. In reviewing the application, Jay Copeland, an environmental reviewer for the natural heritage program, solicited comments from Parsons.⁵

The parties disagree about the type of information Parsons was asked to provide. According to Baker, Parsons was asked only to furnish information about the "habitat value" of the north end of Clark's Island; she was not asked to comment on his tree farming operations or on the effect that the proposed pier might have on the habitat. Parsons counters that she was asked to provide information about the island habitat generally so that the natural heritage program would have some context in which to evaluate the pier permit application.

On October 23, 1991, Parsons wrote a letter to Copeland that included the following statements:

"In sum, the Clark's Island site provided unique and rare nesting habitat to several species of colonial birds until 1986 when the site changed hands and no longer benefited from protective ownership. The present owner's activities in the heronry clearly have diminished and perhaps decimated a once robust and viable heronry.

"The significance of the site and its value to the state's avifauna cannot be overestimated. Located within a sheltered harbor within easy commute of extensive marshes to the north and south, Clark's Island provides a predator-free habitat not easily replaced.

"Habitat loss is the primary cause of loss in biodiversity at virtually any scale examined. It is my fervent hope that the state and federal agencies charged with protecting the region's natural resources will act to halt the continued degradation of this important site and restore Clark's Island to the prominence it held only recently in providing nesting habitat to aquatic birds. Thank you for this opportunity to comment." (Emphasis added.)

Baker characterizes this letter as containing "defamatory allegations . . . known by Parsons to be false and devoid of any reasonable factual support," and alleges that these statements caused ten citizens to petition the Executive Office of Environmental Affairs to require an environmental impact review of the proposed pier construction.⁶

Last, Baker asserts that Parsons, when contacted in 1991 by Christopher Dowd, an officer with the United States Fish and Wildlife Service, falsely accused Baker of destroying heron nests on Memorial Day in 1989,⁷ by cutting his grass with a "brush hog," so that Baker would be criminally prosecuted for violating the Migratory Bird Treaty Act (MBTA), see 16 U.S.C. §§ 703-712 (2000), and so that his pier permit application would be denied. Parsons responds that State officials, believing that Federal laws might have been violated, initially reported the matter to Dowd, thus prompting his contact with Parsons.

2. Procedural history. In June, 1993, Baker brought various claims against the defendants, including a claim for tortious interference with his pier permit application.⁸ The defendants unsuccessfully sought summary judgment, asserting that the protection provided by the First Amendment to the United States Constitution to their petitioning activities immunized them from civil liability for injuries alleged by the plaintiff.

While the case was pending, the anti-SLAPP suit statute was enacted by the Legislature and made applicable to pending cases.⁹ The defendants then filed a special motion to dismiss, asserting that Baker could not establish that Parsons's actions in providing information to governmental agencies in connection with Baker's pier permit application "were without any basis in fact or law," or that Baker had suffered any actual damages resulting from the defendants' petitioning activity. A judge in the Superior Court allowed the motion, concluding that Parsons's statements constituted petitioning activity under the statute, and that Baker "failed to show that Parsons's alleged petitioning activity was devoid of any reasonable factual support or any arguable basis in law." In addition, the judge concluded that Baker failed to show that the defendants' actions caused him real injury. After the defendants' counterclaims were voluntarily dismissed, final judgment entered, dismissing Baker's complaint. Baker took an appeal from the allowance of the special motion to dismiss. We transferred the case here on our own initiative.¹⁰

3. The amenability of this action to the statute. Because the special motion to dismiss was granted in January, 1996, the judge did not have the benefit of our recent decisions addressing various challenges to the anti-SLAPP statute. G. L. c. 231, § 59H. Baker argues that a review of these decisions, McLarnon v. Jokisch, 431 Mass. 343 (2000) (McLarnon), and Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 160 (1998) (Duracraft), makes it clear that the Superior Court erred in allowing the defendants' special motion to dismiss, because his claims against the defendants contain none of the indicia of a "typical" SLAPP suit. We do not agree.

In essence Baker maintains that because he is not a "developer," but just "an individual operating an environmentally friendly tree farm," while the defendant Manomet is a "wealthy and politically well-connected environmental organization," his lawsuit is not one to which the anti-SLAPP suit procedures of G. L. c. 231, § 59H, apply. Even if we were to accept these characterizations of the parties as true, this would not, without more, foreclose a special motion to dismiss pursuant to the statute. In Duracraft we noted that the "typical mischief that the legislation intended to remedy was lawsuits directed at individual citizens of modest means for speaking publicly against development projects." Id. at 161. But our review of the legislative history of the statute also led us to conclude that the Legislature intended to go beyond the "typical" case by enacting "very broad protection for petitioning activities." Id. at 162.

In addition to its legislative history, the plain language of the statute, which is not limited in the manner suggested by Baker, squarely encompasses the facts of this case. 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...