Commonwealth v. Lucas

• Decision Date: 06 August 2015
• Docket Number: SJC–11830.
• Citation: 34 N.E.3d 1242,472 Mass. 387
• Parties: COMMONWEALTH v. Melissa LUCAS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

472 Mass. 387

34 N.E.3d 1242

COMMONWEALTH

v.Melissa LUCAS.

SJC–11830.

Supreme Judicial Court of Massachusetts, Suffolk.

Submitted May 7, 2015.

Decided Aug. 6, 2015.

Peter Charles Horstmann, for the defendant.

Amy Spector, Assistant Attorney General, for the Commonwealth.

The following submitted briefs, for amici curiae:

Andrew Sellars & Christopher Bavitz, for New England First Amendment Coalition & others.

H. Reed Witherby, Boston, Matthew R. Segal, & Sarah R. Wunsch, Boston, for American Civil Liberties Union of Massachusetts.

Ben Robbins & Martin J. Newhouse, Boston, for New England Legal Foundation.

Russell C. Reeves, Kathryn M. Harrison, & Austin C. Reeves, pro se.

Ilya Shapiro & Gabriel Latner, of the District of Columbia, & David Duncan, for Cato Institute.

Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.

Opinion

CORDY, J.

This case concerns the constitutionality of G.L.c. 56, § 42 (§ 42 ), which criminalizes certain false statements about political candidates or questions submitted to voters.¹ Melissa Lucas was charged with violating the statute after her political action committee published brochures criticizing a candidate for public office. For the reasons set forth below, we conclude that § 42, on its face, is inconsistent with the fundamental right of free speech guaranteed by art. 16 of the Massachusetts Declaration of Rights. Accordingly, the statute is invalid and the criminal complaint charging Lucas with violating it must be dismissed.²

1. Background. In October, 2014, Jobs First Independent Expenditure Political Action Committee (PAC) published and distributed brochures urging voters to vote against Brian Mannal, the incumbent candidate for State Representative for the Second Barnstable District. In the brochures, the PAC made several statements about Mannal, including:

“Brian Mannal chose convicted felons over the safety of our families. Is this the kind of person we want representing us?”;

“Helping Himself: Lawyer Brian Mannal has earned nearly $140,000 of our tax dollars to represent criminals. Now he wants to use our tax dollars to pay defense lawyers like himself to help convicted sex offenders”; and

“Brian Mannal is putting criminals and his own interest above our families.”

On October 21, 2014, approximately two weeks prior to the general election, Mannal responded by filing an application for a criminal complaint in the Barnstable Division of the District Court Department against Lucas, the PAC's chairwoman and treasurer. In the application, Mannal alleged that Lucas published knowingly false statements designed to defeat Mannal's candidacy in violation of § 42. Mannal held a press conference announcing the filing and published a media advisory further detailing the reasons for the criminal complaint against Lucas and suggesting that the brochures “could put her behind bars.”

On October 27, 2014, Lucas filed a motion to dismiss the application on the ground that § 42 is an unconstitutional restraint on free speech. A probable cause hearing was scheduled for November 20, 2014—approximately two weeks after the general election. Mannal won reelection by a margin of 205 votes. After the election, Lucas and the PAC filed an emergency motion for a preliminary injunction in the United States District Court for the District of Massachusetts seeking to have the probable cause hearing stayed and § 42 declared unconstitutional. At the preliminary injunction hearing, the PAC presented evidence that it had refrained from airing a radio advertisement as a result of Mannal's application and that it would continue to refrain from certain political advocacy until the constitutionality and scope of § 42 were clarified.³ A judge in the Federal court denied relief pursuant to the doctrine of abstention. See Younger v. Harris, 401 U.S. 37, 41, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) (“national policy forbid[s] federal courts to stay or enjoin pending state court proceedings except under special circumstances”). The United States Court of Appeals for the First Circuit affirmed.

After a transfer of venue in the State criminal proceedings, a probable cause hearing was held in the Falmouth Division of the

District Court Department on December 18, 2014—more than one month after the election. Following the hearing, a clerk-magistrate issued a criminal complaint formally charging Lucas with two counts of violating § 42. Lucas has not yet been arraigned and there has not been a ruling on her motion to dismiss. In February, 2015, Lucas filed a petition in the county court pursuant to G.L.c.211, § 3, seeking relief from the criminal complaint on the ground that § 42 is unconstitutional. The single justice stayed the underlying criminal proceedings and reserved and reported the matter to the full court.

2. Discussion. a. Threshold questions. The Commonwealth argues that we should decline to address the constitutionality of § 42 in this case.⁴ The Commonwealth's first argument is that the extraordinary relief afforded by G.L.c.211, § 3, is unavailable because Lucas has an alternative remedy in the form of a motion to dismiss the criminal complaint. See, e.g., Maza v. Commonwealth, 423 Mass. 1006, 1006, 667 N.E.2d 1146 (1996) (“request for relief under G.L.c.211, § 3, is properly denied where the petitioning party has or had adequate and effective avenues other than G.L.c.211, § 3, by which to seek and obtain the requested relief”). This argument is unpersuasive because, “where, as here, a single justice of this court reserves and reports an interlocutory matter to this court, we grant the litigant full appellate review.” Burke v. Commonwealth, 373 Mass. 157, 159, 365 N.E.2d 811 (1977).

Alternatively, the Commonwealth argues that we should dismiss the complaint against Lucas on statutory, rather than constitutional, grounds because the statements at issue were opinions outside the scope of § 42. See Cole v. Westinghouse Broadcasting Co., 386 Mass. 303, 312, 435 N.E.2d 1021, cert. denied, 459 U.S. 1037, 103 S.Ct. 449, 74 L.Ed.2d 603 (1982) (opinions could not be proved false and therefore were not actionable as libel); Aldrich v. Boyle, 328 Mass. 30, 32, 101 N.E.2d 495 (1951) (political advertisement was “customary type of hortatory appeal commonly made to voters at election time” and not actionable). The Commonwealth recites the familiar rule that we decline to consider the constitutionality of a statute that does not criminalize a defendant's conduct. See, e.g., Commonwealth v. Robertson, 467 Mass. 371, 381, 5 N.E.3d 522 (2014). Yet, in some contexts, resolving a case on narrower grounds may serve to perpetuate the chilling of

speech protected by the First Amendment to the United States Constitution and art. 16, as amended by art. 77 of the Amendments. See generally Commonwealth v. Bohmer, 374 Mass. 368, 373, 372 N.E.2d 1381 (1978). As the United States Supreme Court has observed, this concern may be particularly acute in the context of an election:

“It is well known that the public begins to concentrate on elections only in the weeks immediately before they are held. There are short timeframes in which speech can have influence. The need or relevance of the speech will often first be apparent at this stage in the campaign. The decision to speak is made in the heat of political campaigns, when speakers react to messages conveyed by others. A speaker's ability to engage in political speech that could have a chance of persuading voters is stifled if the speaker must first commence a protracted lawsuit. By the time the lawsuit concludes, the election will be over and the litigants in most cases will have neither the incentive nor, perhaps, the resources to carry on, even if they could establish that the case is not moot because the issue is ‘capable of repetition, yet evading review.’ ”

Citizens United v. Federal Election Comm'n, 558 U.S. 310, 334, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010), quoting Federal Election Comm'n v. Wisconsin Right To Life, Inc., 551 U.S. 449, 462, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007).

These observations have substantial force here. Assuming, arguendo, that § 42 proscribes only statements of fact as opposed to opinion and the statements at issue constituted opinion, a political candidate was nonetheless able to use those statements as the basis for an application for a criminal complaint (and ultimately for its issuance). The candidate then used the application as a political tool not only to discredit the statements but also to persuade the PAC to refrain from airing a political advertisement shortly before the election. Although Lucas filed a motion to dismiss the application, Mannal already had won the election by a narrow margin by the time of the probable cause hearing. Thus, even if the application had been dismissed, the damage was already done. See 281 Care Comm. v. Arneson, 766 F.3d 774, 790 & n. 12 (8th Cir.2014), cert. denied, ––– U.S. ––––, 135 S.Ct. 1550, 191 L.Ed.2d 637 (2015) (“State has constructed a process that allows its enforcement mechanisms to be used to extract a cost from those seeking to speak out on elections, right at the most crucial time for that particular type

of speech. And if the allegations turn out to be unfounded, there is no possibility of timely remedy” [citation omitted] ).

Importantly, this precise scenario is capable of repetition yet constantly evading review on the Commonwealth's theory that § 42 does not apply to the particular facts of a given case. This is so because anyone may initiate a complaint under § 42 and, in so doing, create lingering uncertainties of a criminal investigation and chill political speech by virtue of the process itself. See United States v. Alvarez, ––– U.S. ––––, 132 S.Ct. 2537, 2553, 183 L.Ed.2d 574 (2012) (Breyer, J., concurring) (“threat of criminal prosecution for making a false statement can inhibit the speaker from making true statements, thereby ‘chilling’ a kind of speech that lies at the First Amendment's...