Fisher v. Lint

• Decision Date: 19 June 2007
• Docket Number: No. 06-P-1208.,06-P-1208.
• Citation: Fisher v. Lint, 868 N.E.2d 161, 69 Mass. App. Ct. 360 (Mass. App. 2007)
• Parties: David B. FISHER v. Bruce LINT.<SMALL><SUP>1</SUP></SMALL>
• Court: Appeals Court of Massachusetts

868 N.E.2d 161

69 Mass. App. Ct. 360

David B. FISHER v. Bruce LINT.¹

No. 06-P-1208.

Appeals Court of Massachusetts, Worcester.

Argued March 20, 2007.

Decided June 19, 2007.

Thomas P. Campbell, Boston, for the defendant.

Present: DUFFLY, DREBEN, & MEADE, JJ.

MEADE, J.

Asserting that disciplinary action was taken against him in retaliation for whistleblowing, the plaintiff State trooper David B. Fisher brought a complaint alleging, as against the present defendant State police Sergeant Bruce Lint, counts of intentional interference with advantageous relations, civil conspiracy, defamation (slander), and violations of State (G.L. c. 12, §§ 11H and 11I) and Federal (42 U.S.C. § 1983 [2000] ) civil rights laws.² Lint filed a special motion to dismiss under the "anti-SLAPP" statute, G.L. c. 231, § 59H, and also moved to dismiss on the basis of an absolute privilege. A Superior Court judge denied Lint's motion on both grounds, and Lint appeals.³

We hold that Lint's investigation and report on Fisher's conduct, Lint's statements to internal affairs, and Lint's testimony at an administrative disciplinary hearing do not constitute petitioning activity within the meaning of G.L. c. 231, § 59H. However, because Lint's statements, which serve as the basis of Fisher's complaint, occurred at a time when quasi judicial disciplinary proceedings could reasonably have been contemplated, Lint is entitled to the protection of an absolute privilege. Based on the latter determination, we reverse the denial of Lint's motion to dismiss.⁴

Background. Fisher was assigned to the State police barracks in Grafton from the spring of 1986 through September, 1998. In 1997, Fisher brought a number of complaints concerning improper behavior at the barracks, alleging that prisoners brought there were allowed to commit serious violations of the General Laws as well as Department of Correction rules and regulations.

On August 11, 1998, Fisher assisted a motorist on Route 495 and summoned a tow truck. Subsequently, a complaint was registered against him arising out of this motorist assistance incident. Lint was ordered to investigate. On August 20, 1998, Lint submitted a report in which he concluded that Fisher had engaged in misconduct in violation of certain State police rules. As a result of Lint's report, an internal affairs investigation was conducted. Fisher alleges that Lint made false statements to the internal affairs investigators.⁵

On September 1, 1998, evidently related to his earlier assertions of misconduct at the Grafton barracks, Fisher specifically complained that Lint, while supervising work-release prisoners, was involved with the prisoners in an improper and possibly illegal capacity. Fisher alleged that he was harassed thereafter and, on September 8, 1998, he was transferred to the Leominster Barracks. On September 10, 1998, Fisher learned that he had been placed on midnight shifts and allegedly was told that he would continue on such shifts regardless of his seniority. After consulting a police union attorney, Fisher had his original shifts restored.

In 2001, the State police convened a disciplinary hearing against Fisher based on Lint's report and Lint's statements to internal affairs investigators. The disciplinary board cleared Fisher of four of the five charges, but found that he had engaged in unprofessional behavior unbecoming a State police officer. The board suspended Fisher for sixty days without pay. Subsequently, Fisher commenced the present action against Lint and others.

1. The anti-SLAPP statute. The Legislature has provided a means through which persons who have been made the subject of civil litigation in retaliation for the exercise of their right to petition the government may be spared the expense and the burden of defense of the action.

"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."

G.L. c. 231, § 59H, inserted by St.1994, c. 283, § 1.

The statute defines the exercise of the 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; . . . or any other statement falling within constitutional protection of the right to petition government."

Ibid. The anti-SLAPP statute was enacted to protect citizens from lawsuits designed to chill their right to petition the government for redress of grievances. See Duracraft Corp. v. Holmes Prod. Corp., 427 Mass. 156, 161, 691 N.E.2d 935 (1998) (Duracraft); Fabre v. Walton, 436 Mass. 517, 520, 781 N.E.2d 780 (2002). The purpose of filing a SLAPP suit is not to prevail in the matter, but rather to use litigation to chill, intimidate, or punish citizens who have exercised their constitutional right to petition the government to redress a grievance. Duracraft, supra at 161-162, 691 N.E.2d 935; Fabre, supra at 520 n. 6, 781 N.E.2d 780; Wynne v. Creigle, 63 Mass.App.Ct. 246, 252, 825 N.E.2d 559 (2005).

Lint, as the party filing the special motion to dismiss, had the initial burden of demonstrating that the activity at issue was "petitioning activity" within the purview of the anti-SLAPP statute and that Fisher's claims were "`based on' [Lint's] petitioning activities alone and have no substantial basis other than or in addition to [his] petitioning activities." Duracraft, supra at 167-168, 691 N.E.2d 935. Fabre, supra at 522, 781 N.E.2d 780. If Lint had made this threshold showing, then the burden would have shifted to Fisher to show both that Lint's exercise of his right to petition was devoid of "any reasonable factual support or any arguable basis in law" and that the exercise of the right "caused actual injury to" Fisher. Donovan v Gardner, 50 Mass.App.Ct. 595, 599, 740 N.E.2d 639 (2000), quoting from G.L. c. 231, § 59H. Here, the motion judge determined that Lint failed to meet his initial burden that the activity in question was "petitioning activity." We review the judge's decision denying a special motion to dismiss for abuse of discretion or other error of law. Cadle Co. v. Schlichtmann, 448 Mass. 242, 250, 859 N.E.2d 858 (2007). Kalter v. Wood, 67 Mass.App.Ct. 584, 586, 855 N.E.2d 421 (2006). There was neither.

Lint claims that his petitioning activity consisted of the following: his investigation of Fisher's conduct during the towing incident, which he reduced to a report; Lint's statements to internal affairs investigators regarding Fisher's misconduct and in response to Fisher's allegation of Lint's misconduct⁶; and Lint's testimony at Fisher's disciplinary hearing. Whether Lint may seek the protection of G.L. c. 231, § 59H, depends on whether his conduct amounted to the exercise of his right to petition the government as that concept is understood in the context of our State and Federal constitutions. Kobrin v. Gastfriend, 443 Mass. 327, 333, 821 N.E.2d 60 (2005). See First Amendment to the United States Constitution ("Congress shall make no law . . . abridging . . . the right of the people . . . to petition the Government for a redress of grievances"); art. 19 of the Massachusetts Declaration of Rights ("The people have a right . . . to request of the legislative body . . . by the way of . . . petitions . . . redress of the wrongs done them, and of the grievances they suffer"). As we explain, we hold that it does not.

In Kobrin, supra at 332-335, 821 N.E.2d 60, the Supreme Judicial Court restricted the scope of activities covered by § 59H. Specifically, the court

"read the phrase `based on said party's exercise of its right of petition under the constitution' as restricting the statute's coverage to those defendants who petition the government on their own behalf. In other words, the statute is designed to protect overtures to the government by parties petitioning in their status as citizens. It is not intended to apply to those performing services for the government as contractors."

Id. at 332, 821 N.E.2d 60. In Kobrin, this meant that a doctor who was a paid expert witness at an administrative hearing was not entitled to the protection of the anti-SLAPP statute because he "was not seeking from the government any form of redress for a grievance of his own or otherwise petitioning on his own behalf." Id. at 330, 821 N.E.2d 60. In fact, he "was acting solely on behalf of the board as an expert investigator and witness." Id. at 333, 821 N.E.2d 60.

As in Kobrin, Lint's conduct was neither an attempt to redress a wrong he suffered, nor was he petitioning on his own behalf. Rather, his superior officer ordered him to investigate Fisher's conduct during the towing incident. Thereafter, Lint made statements to internal affairs about the investigation and provided testimony regarding Fisher at his disciplinary hearing. In none of these instances was Lint "petitioning" as a citizen to redress a wrong that was done to him personally. Rather, he was carrying out his responsibilities as a State police officer. We can discern no reason to believe that the unavailability of immunity in these circumstances will have any chilling effect on actual petitioning activity in the future. See Duracraft, 427 Mass. at 161, 691 N.E.2d 935; Fabre v. Walton, 436 Mass. at 520, 781 N.E.2d 780. Moreover, Lint is not assisted by his claim that his conduct was motivated in part by a personal interest because at this initial stage "the motive behind the petitioning activity is irrelevant."...