Berryhill v. Ga Community Sup. & Solutions

• Decision Date: 28 November 2006
• Docket Number: No. S06G0038.,S06G0038.
• Citation: 638 S.E.2d 278,281 Ga. 439
• Parties: BERRYHILL v. GEORGIA COMMUNITY SUPPORT AND SOLUTIONS, INC.
• Court: Georgia Supreme Court

281 Ga. 439

638 S.E.2d 278

BERRYHILL v. GEORGIA COMMUNITY SUPPORT AND SOLUTIONS, INC.

No. S06G0038.

Supreme Court of Georgia.

November 28, 2006.

Reconsideration Denied December 15, 2006.

Torin D. Togut, Lawrenceville, for Appellant.

Richard E. Witterman Jr. The Witterman Law Firm P.C., Roswell, for Appellee.

Gerald Richard Webber Jr.; Elizabeth Lynn Littrell, Margaret Fletcher Garrett, American Civil Liberties Union, Atlanta Amici Appellant.

CARLEY, Justice.

Georgia Community Support and Solutions, Inc. (GCSS), a non-profit organization which assists disabled adults and their families, placed Shirley Berryhill's mentally handicapped son with providers of personal care. Subsequently, in a web posting and in e-mails to employees of a major newspaper and of the Department of Human Resources, Ms. Berryhill asserted that her son was suffering from poor treatment and care. When she failed to comply with its demand for a retraction and apology, GCSS brought suit for tortious interference with business relationship and libel per se. GCSS submitted the verifications required by Georgia's anti-SLAPP (Strategic Lawsuits Against Public Participation) statute. OCGA § 9-11-11.1(b). The trial court dismissed the action, finding, among other things, that Ms. "Berryhill's statements satisfied the threshold requirement for applicability of the anti-SLAPP statute because they `were made in furtherance of her right to free speech about an issue of public concern....'" Georgia Community Support & Solutions v. Berryhill, 275 Ga.App. 189, 191-192(1), 620 S.E.2d 178 (2005). The Court of Appeals reversed, holding that "[t]he anti-SLAPP statute does not encompass all statements that touch upon matters of public concern. Rather, by its terms, the statute's application is limited to" those statements which come within the definition found in OCGA § 9-11-11.1(c). Georgia Community Support & Solutions v. Berryhill, supra at 192(1), 620 S.E.2d 178. This Court granted certiorari to consider that issue. Because the Court of Appeals properly construed the anti-SLAPP statute, we affirm.

The verification requirement of OCGA § 9-11-11.1(b) applies to any claim asserted against a person or entity arising from an act "which could reasonably be construed as an act in furtherance of the right of free speech or the right to petition government for a redress of grievances ... in connection with an issue of public interest or concern...." Under the definition of subsection (c), such act

includes any written or oral statement, writing, or petition made before or to a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, or any written or oral statement, writing, or petition made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law.

Ms. Berryhill argues that the word "includes" in this statute should be broadly construed as a term of enlargement or illustration. In support of this argument, the only precedent from this Court on which she relies is Housing Auth. of City of Carrollton v. Ayers, 211 Ga. 728, 729(3)(a), 88 S.E.2d 368 (1955), which notes that "a statutory definition of a term as `including' certain things does not necessarily put a meaning thereon limited to the inclusion. [Cit.]" (Emphasis supplied.) See also Arizona Water Co. v. Ariz. Dept. of Water Resources, 160 Ariz. 66, 770 P.2d 370, 373 (Ct.App.1988) (placing the same emphasis in a nearly identical quote). As the Court of Appeals has stated, "[t]he word `includes' is susceptible of meaning, inter alia, either `encompasses' or `is equivalent to' ...." Community Bankers Assn. of Ga. v. First Nat. Bank of Commerce, 193 Ga. App. 569, 571(2), 388 S.E.2d 387 (1989). This principle is consistent with the case law in numerous other jurisdictions. "It is generally held that the meaning of the words `including' or `includes' depends upon the context and that sometimes they are not words of illustration or enlargement. [Cits.]" Housing Auth. of Baltimore City v. Bennett, 359 Md. 356, 754 A.2d 367, 375(III)(A) (2000). "[T]he word `include' is also commonly used in a restrictive, limiting sense. [Cits.]" Auer v. Commonwealth, 46 Va.App. 637, 621 S.E.2d 140, 144(II) (2005).

In Helvering v. Morgan's, 293 U.S. 121, 125, 55 S.Ct. 60, 79 L.Ed. 232 (1934), the Supreme Court of the United States recognized "that the term `includes' may sometimes be taken as synonymous with `means'...." See also Housing Auth. of Baltimore City v. Bennett, supra. The Supreme Court has also pointed out that the word "`may have the sense of addition ... and of "also;" but ... may "merely specify particularly that which belongs to the genus."' Montello Salt Co. v. Utah, 221 U.S. 452, 464-465, 31 S.Ct. 706, 708, 55 L.Ed. 810, 814 (1911)...." Arizona Water Co. v. Ariz. Dept. of Water Resources, supra. Dictionary authority is consistent with this construction of the term "includes."

Bryan A. Garner, A Dictionary of Modern American Usage 363 (1998) (remarking that the word "include," "which traditionally has introduced a nonexhaustive list, is now ... widely ( ) used for consists of"). Used in this limiting sense, the term typically introduces an exhaustive list of all of the components or members that make up the whole. See Garner, supra; Random House Webster's College Dictionary 667-68 (2000) .... Thus, when a statute uses the word "include" in this restrictive, limiting sense to define a term, it sets forth the entire definition, and no other elements or items are includable. Consequently, the fact that the statute does not expressly enumerate a particular item implies that the item "falls outside of the definition." [Cits.] (Emphasis in original.)

Auer v. Commonwealth, supra. See also Housing Auth. of Baltimore City v. Bennett, supra (quoting Black's Law Dictionary (5th ed. 1979)).

The word "includes" "in and of itself is not determinative of how it is intended to be used. [Cit.]" Frame v. Nehls, 452 Mich. 171, 550 N.W.2d 739, 742 (1996). Whether the term may be interpreted as one of limitation depends on the context, "the subject matter, and legislative intent. [Cits.] Thus, for example, where a general term is followed by the word `including,' which is itself followed by specific terms, the intent may be one of limitation. [Cits.]" State Public Defender v. Iowa Dist. Ct. for Black Hawk County, 633 N.W.2d 280, 283(III) (Iowa 2001). In the definition set forth in OCGA § 9-11-11.1(c), the language "act in furtherance of the right of free speech or the right to petition government for a redress of grievances ... in connection with an issue of public interest or concern," the general phrase, is followed by the word "includes," which is itself followed by specific phrases, "any written or oral statement, writing, or petition made before or to ..., or ... in connection with an issue under consideration or review by[,] a legislative, executive, or judicial body, or any other official proceeding...." Therefore, it clearly is reasonable to read the word "includes" as meaning "is equivalent to," and to conclude that the specific phrases in subsection (c) set forth the entire definition.

In context, this construction is by far the most reasonable. Courts should give a sensible and intelligent effect to every part of a statute and not render any language superfluous. R.D. Brown Contractors v. Bd. of Education of Columbia County, 280 Ga. 210, 212-213, 626 S.E.2d 471 (2006); Costin v. State, 269 Ga.App. 632, 633, 605 S.E.2d 73 (2004). A broad construction of the term "includes" would render the specific phrases in OCGA § 9-11-11.1(c) superfluous. The particular acts specified, namely written or oral statements or petitions related to an official proceeding, obviously further the right of free speech or to petition the government in connection with an issue of public interest or concern. Thus, it was wholly unnecessary for the legislature to state that the general phrase encompasses such particular acts. It was, however, totally necessary to specify those acts if the legislature intended thereby to place some reasonable limitation on the scope of the anti-SLAPP statute. Furthermore, the General Assembly could have added, but did not add, catchall language at the end of OCGA § 9-11-11.1(c), as in the comparable California and Louisiana anti-SLAPP statutes. West's Ann. Cal. C.C.P. § 425.16(e); LSA-C.C.P. Art. 971(F)(1). More importantly, if the legislature had intended to use the word "includes" as a broad term of illustration or enlargement, it presumably would have appended the phrase "but is not limited to," just as it supplied the phrase "but not limited to" after the word "including" in subsection (f) of the very same anti-SLAPP statute being construed in this case. See LSA-C.C.P. Art. 971(F)(1) ("includes but is not limited to"). Accordingly, the Court of Appeals was mistaken in Chatham Orthopaedic Surgery Center v. Ga. Alliance of Community Hospitals, 262 Ga.App. 353, 355(1), 585 S.E.2d 700 (2003), when it supplied the phrase "and is thus not limited to" in a parenthetical dictum. Where, as here, "the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended. [Cit.]" 2A Norman J. Singer, Statutes and Statutory Construction § 46:06, p. 194 (6th ed. 2000). Therefore, Chatham Orthopaedic Surgery Center v. Ga. Alliance of Community Hospitals, supra is overruled.

The Court of Appeals properly determined that there was not any evidence of an actual official proceeding either before or after the statements in question. Thereafter, the Court of Appeals considered the alternative possibility that merely seeking to initiate official proceedings by making certain statements was sufficient to bring those statements within the language of OCGA § 9-11-11.1(c). As the Court of Appeals found,...