Edwards v. Commonwealth, SJC-12175

• Decision Date: 08 June 2017
• Docket Number: SJC-12175
• Citation: 477 Mass. 254,76 N.E.3d 248
• Parties: Saundra R. EDWARDS v. COMMONWEALTH& another.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

477 Mass. 254

76 N.E.3d 248

Saundra R. EDWARDS

v.COMMONWEALTH& another.¹

SJC-12175

Supreme Judicial Court of Massachusetts, Essex..

Argued February 6, 2017

Decided June 8, 2017

Michael J. Pineault , Boston, for Deval Patrick.

William H. Sheehan, III ( Thomas J. Flannagan also present), Peabody, for the plaintiff.

Present: Gants, C.J., Lenk, Hines, Gaziano, & Lowy, JJ.

GAZIANO, J.

On September 16, 2014, then Governor Deval Patrick removed Saundra R. Edwards from her position as chair of the Sex Offender Registry Board (SORB). A few days later, in response to media inquiries about Edwards's abrupt departure, Patrick explained that, among other reasons, he had decided to replace Edwards because she inappropriately had attempted to pressure a SORB hearing officer to change the outcome of one of his decisions on an offender's classification level. In subsequent comments to the media, after Edwards had filed an action for defamation and wrongful termination in the Superior Court, Patrick repeated his explanation that he had decided to remove Edwards from office because she had interfered with the independence of a SORB hearing officer. Edwards filed an amended complaint, asserting a wrongful termination claim against the Commonwealth, and two defamation claims against Patrick, individually, one for each of the two statements.

Patrick moved pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), to dismiss Edwards's amended complaint on two grounds. He argued that the court should conclude, consistent with Federal law and with a number of other jurisdictions, that he, as governor, had an absolute privilege for statements made in the course of his official duties. In the alternative, Patrick argued that he had a qualified privilege, because the statements were made while acting within the scope of his official duties concerning Edwards's status as a public official, and that the allegations in the amended complaint were not sufficient to overcome that privilege. Because, Patrick maintained, the amended complaint contained only bare conclusory assertions of actual malice without allegations of facts sufficient to support those assertions beyond the level of mere speculation, the complaint did not meet the pleading requirements for a defamation claim under Iannacchino v. Ford Motor Co ., 451 Mass. 623, 636, 888 N.E.2d 879 (2008). A Superior Court judge denied Patrick's motion to dismiss the defamation claims, and denied the Commonwealth's motion to dismiss the wrongful termination claim. Patrick appealed from the denial of his motion, and both defendants sought a stay in the Superior Court pending the resolution of that appeal. We allowed Patrick's motion for direct appellate review.

Considering first whether the amended complaint alleges facts sufficient to overcome a qualified or conditional privilege, we conclude that it does not assert facts sufficient to demonstrate that Patrick's statements to the media were made with actual malice, and thus the complaint against him properly should have been dismissed. Given this conclusion, we need not reach Patrick's argument as to the existence of an absolute privilege against defamation claims for a governor, or other high-ranking State official, for statements made in the course of his or her official duties.

1. Background . We recite the facts asserted in the amended complaint, taking them as true for purposes of evaluating the motion to dismiss. SORB is an administrative agency within the Executive Office of Public Safety and Security (EOPSS). SORB is responsible for enforcing the provisions of the sex offender registry law, G.L.c. 6, §§ 178C -178Q, and also promulgates rules, regulations, and guidelines to implement those provisions. See G.L.c. 6, § 178K (1). The chair of SORB is "appointed by and serve[s] at the pleasure of the governor." Id .

Edwards had been a member of the Massachusetts bar for almost twenty-five years when Patrick appointed her as chair of SORB on November 5, 2007. Edwards served in that role until September 16, 2014. Prior to her appointment, Edwards had served as an assistant district attorney in Plymouth County for thirteen years. She specialized in prosecuting sex offenses, child abuse, and domestic violence.

a. Sigh-Paglia matter . According to the amended complaint, in September, 1993, Patrick's brother-in-law, Bernard Sigh, pleaded guilty to a charge of spousal rape in California; in his plea he admitted that he "accomplished an act of sexual intercourse with [his] wife against her will by means of force." He was sentenced to a term of incarceration followed by five years of probation. Sigh moved to Massachusetts in 1995, but did not register as a sex offender² when the Legislature enacted the sex offender registry law in 1996.³

In December, 2006, almost a year before Edward's appointment as chair, SORB notified Sigh of his duty to register as a level 1 (lowest risk) sex offender. Sigh sought a hearing to challenge the determination that he had been convicted of a "like offense" to the offense of rape as defined in Massachusetts law. SORB scheduled a hearing on his petition and assigned the matter to one of its board members. While that hearing was pending, SORB referred to the office of the Attorney General the question whether a conviction of spousal rape under California law was a "like offense" to rape under Massachusetts law, thus requiring a Massachusetts resident to register with SORB.

SORB hearing officer Attilio Paglia replaced the previously assigned board member, and scheduled a hearing on Sigh's petition. ⁴

SORB officials authorized Paglia to decide preliminary motions in the case, but instructed him to continue the hearing pending the Attorney General's review of the legal question concerning the status in Massachusetts of Sigh's offense.

Notwithstanding these instructions, Paglia began the hearing on August 1, 2007. After being informed of the hearing, Paglia's supervisor ordered him not to issue a decision in the matter pending a determination by the Attorney General. Paglia continued to hear evidence on August 10 and 31 and issued an oral decision finding that the California crime of spousal rape is not a like offense to the Massachusetts crime of rape. Accordingly, he relieved Sigh of the obligation to register as a sex offender. Paglia did not issue a written decision, as is required by SORB regulations.

b. Edwards's involvement in the Sigh-Paglia matter . Edwards took office on November 5, 2007, several months after the Sigh hearing and the oral decision. She was advised by SORB's counsel and other SORB officials of the disagreement between SORB administrators and Paglia. She also learned that, as a result of his actions with respect to the Sigh matter, Paglia had been disciplined for insubordination.

On May 9, 2008, Edwards met with Paglia to discuss the Sigh matter. She informed Paglia (who is not an attorney) of the legal elements of rape as defined under Massachusetts law, and also told him that the California crime of spousal rape is a like offense to the Massachusetts crime of rape because "rape is rape." After consulting with EOPSS and SORB's general counsel, Edwards directed that a written decision issue in the Sigh case. SORB also enacted an emergency regulation to permit it to correct errors of law by hearing officers. To prevent further classification errors, Edwards also instituted a training program on the elements of Massachusetts sex offenses and on conducting classification hearings.

Paglia resigned from his position at SORB and commenced a "whistleblower" action, G.L. 149, § 185, in the Superior Court against SORB, Edwards in her official capacity, and other SORB officials, claiming retaliation for his decision in the Sigh matter.⁵

Paglia claimed that the SORB defendants, including Edwards, engaged in repeated and unsuccessful efforts to change the result of the Sigh hearing, and created a hostile work environment, characterized by harassing electronic mail messages and telephone calls, and poor performance reviews. Paglia also claimed that he had complained to Edwards about "unlawful conduct that occurred prior to and during her tenure as Chair," and that Edwards retaliated by accusing him (through the deputy counsel of EOPSS) of insubordination and performance deficiencies. Paglia further asserted that Edwards had attempted to influence the independence of hearing officer decisions by instituting a regulation permitting SORB to revise or overturn decisions, known internally as the "Paglia Regulation," and hiring a hearing decision editor to "subject the finality of hearing examiner decisions to doubt and ambiguity."

Edwards's termination . According to the amended complaint, on September 15, 2014, Edwards was ordered to attend a meeting the next day at the governor's office, with the general counsel and chief of staff of EOPSS, and Patrick's director of boards and commissions, Kendra Foley. Edwards was not given an explanation for the meeting.

Edwards met with Foley on September 16, 2014. She was joined by Patrick's legal counsel and a representative of human resources from EOPSS. Patrick was not present at this meeting. Foley told Edwards, "As you know, you serve at the Governor's pleasure. He has decided to replace you as the Chairperson of the Sex Offender Registry Board." Edwards asked Foley if there was "a problem," or if she had done something wrong. Foley replied that Edwards had not done anything wrong, but repeated that her employment was being terminated. To avoid the stigma of being terminated, Edwards asked if she could tender a letter of resignation. Edwards was allowed to resign effective that day.

d. Patrick's statements to the media . The amended complaint further states that Patrick made two statements to the media concerning Edwards's removal as SORB chair. On September 22, 2014, he said during a press conference:

"The final straw was the settlement of a lawsuit, which happened about not quite a

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