Fustolo v. Hollander

• Citation: 455 Mass. 861,920 N.E.2d 837
• Decision Date: 01 February 2010
• Docket Number: SJC-10485
• Parties: Steven C. FUSTOLO v. Fredda HOLLANDER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

920 N.E.2d 837

455 Mass. 861

Steven C. FUSTOLO v. Fredda HOLLANDER.

SJC-10485

Supreme Judicial Court of Massachusetts, Suffolk.

Argued November 2, 2009.

Decided February 1, 2010.

Harvey S. Shapiro for the defendant.

Bruce W. Edmands, Boston (Sandy S. Shen with him) for the plaintiff.

Paul Holtzman, Sarah R. Wunsch, Boston, & Christopher T. Bavitz, for American Civil Liberties Union of Massachusetts & others, amici curiae, submitted a brief.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

BOTSFORD, J.

The defendant, Fredda Hollander, appeals from the denial of her special motion to dismiss under G.L. c. 231, § 59H (§ 59H), the "anti-SLAPP" statute,¹ claiming that the conduct for which she was sued—writing five newspaper articles that contained allegedly defamatory statements about the plaintiff, Steven Fustolo, and his properties located in the North End section of Boston—constitutes petitioning activity protected by the statute. We agree with the motion judge that the defendant did not exercise her "right of petition" within the meaning of § 59H, and affirm the denial of the special motion.

Background.² Hollander, a longtime resident of the North End, has actively participated in community activities there since the early 1990's. In 1996, she cofounded the North End Waterfront Residents' Association, Inc. (NEWRA), a nonprofit organization that takes positions on local zoning and development issues.³ As a NEWRA member, Hollander submitted several articles and photographs to the Regional Review, a community newspaper, seeking to use local press coverage to communicate NEWRA's activities, meetings, and recommendations to community members and elected officials.⁴ Phillip Orlandella was the publisher of the Regional Review.⁵ In 1997, Orlandella hired Hollander to work for the Regional Review as a paid reporter. Orlandella instructed her to write, and she did write, objective, factual news accounts of neighborhood meetings, including NEWRA meetings. Hollander remained a NEWRA member, but did not disclose this in her articles, or write her articles as expressions of her personal opinion or the opinion of NEWRA. At the same time, in choosing to write about development and licensing issues, Hollander sought to bring issues that she considered important to the attention of residents, politicians, and government officials, to encourage public participation on such issues, and to cause government officials to take note of them.

Fustolo is an accountant and a real estate developer who, in 2006, owned or held beneficial ownership interests in several properties in the North End, including three properties located respectively at 101 Prince Street, 3 Snow Hill Street, and 11 Sheafe Street. In May and June of 2006, Hollander wrote five articles for the Regional Review that mentioned Fustolo and these properties. The first of the articles, entitled, "City condemns 11 Sheafe St. building and orders tenants to vacate immediately," appeared on May 9, 2006. The article addressed renovations undertaken by a limited liability corporation of which Fustolo served as president to convert the building at 11 Sheafe Street into condominium units. According to Hollander, the renovations forced long-time tenants out of the building, three of whom were still living there on May 2 when the city of Boston inspectional services department (ISD) condemned the building and ordered them to vacate. In the second article, published May 23, 2006, and entitled, "City ducks NEWRA's question on 11 Sheafe Street," Hollander reported that NEWRA discussed the Sheafe Street project at its May meeting and that ISD, while invited to speak, did not send a representative. The third article also appeared on May 23, reporting on a meeting held by another community organization, the North End/Waterfront Neighborhood Council (NEWNC), at which NEWNC voted to support a development project of Fustolo's relating to the property at 101 Prince Street. The fourth article at issue, dated on June 20, 2006, was entitled, "ISD applies for criminal complaints against owner," and concerned the 11 Sheafe Street property. In the fifth article, also published on June 20, Hollander reported that at NEWRA's June meeting, members voted to oppose Fustolo's 101 Prince Street project.

In August, 2006, Fustolo filed this action against Hollander in the Superior Court, alleging that in the five articles, Hollander falsely reported certain facts and statements by city officials and others, sought to paint him in an adverse light, and thereby defamed him. Fustolo further alleged that the articles caused "[w]idespread opposition ... in connection with the 101 Prince Street and Snow Hill Street development plans and variance petition" and "[a]s a direct and proximate result, [he] was compelled to withdraw the application for variances prior to a hearing scheduled to take place before the Boston Board of Appeal on July 25, 2006."

Hollander responded with a special motion to dismiss under § 59H, contending that Fustolo's claims had no substantial basis other than petitioning activity protected by the statute. Hollander argued that writing the articles implicated and gave expression to her personal interests as a "member of the community keenly interested in its development and protection." She also contended that her reporting "played an essential role in facilitating the petitioning activity of NEWRA and other members of the community ... who had an interest in the relevant agencies' scrutiny of Fustolo's project applications and enforcement of the laws relevant to those activities."

After hearing, a judge in the Superior Court denied Hollander's special motion to dismiss, concluding that Hollander did not engage in petitioning activities "on her own behalf as a citizen" because she wrote the articles in her capacity as a reporter, and also because she received compensation for doing so. The judge rejected Hollander's claim that she facilitated the petitioning activities of others, determining that Hollander did not represent or speak on behalf of NEWRA or NEWNC in writing the challenged articles. Hollander brought an interlocutory appeal from the denial. See Fabre v. Walton, 436 Mass. 517, 521-522, 781 N.E.2d 780 (2002), S.C., 441 Mass. 9, 802 N.E.2d 1030 (2004). We granted Hollander's application for direct appellate review.

Discussion. The Legislature enacted the anti-SLAPP statute "to provide a quick remedy for those citizens targeted by frivolous lawsuits based on their government petitioning activities."⁶ Kobrin v. Gastfriend, 443 Mass. 327, 331, 821 N.E.2d 60 (2005) (Kobrin), citing preamble to 1994 House Doc. No. 1520. Section 59H allows a party to file a special motion to dismiss if "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." G.L. c. 231, § 59H. To prevail, the special movant must make a threshold showing through pleadings and affidavits that the claims against it "are `based on' the petitioning activities alone and have no substantial basis other than or in addition to the petitioning activities." Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 167-168, 691 N.E.2d 935 (1998). If she satisfies that burden, the opposing party must then show by a preponderance of evidence that the special movant's petitioning activities "lacked any reasonable factual support or any arguable basis in law." Baker v. Parsons, 434 Mass. 543, 553-554, 750 N.E.2d 953 (2001).

We are concerned in this case with the threshold question whether Hollander established that Fustolo's claims were based solely on the exercise of her "right of petition" within the meaning of § 59H.⁷ The statute defines "a party's exercise of its right of petition" to encompass the following:

"[1] any written or oral statement made before or submitted to a legislative, executive, or judicial body, or any other governmental proceeding; [2] 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; [3] any statement reasonably likely to encourage consideration or review of an issue by a legislative, executive, or judicial body or any other governmental proceeding; [4] any statement reasonably likely to enlist public participation in an effort to effect such consideration; [5] or any other statement falling within constitutional protection of the right to petition government" (emphasis added).

Hollander claims that the third and fourth definitions apply. In view of Fustolo's allegation in his complaint that he was injured because Hollander's articles stirred up so much community opposition to his projects that he had to withdrew his application for zoning variances, we assume without deciding that the contents of the articles fit at least within the fourth definition — that is, the articles were "reasonably likely to enlist public participation in an effort to effect ... consideration [by a legislative, executive or judicial body]."⁸ But this does not end the inquiry. Section 59H begins by stating that it applies to "any case in which a party asserts that the civil 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" (emphasis added). As stated in Kobrin, 443 Mass. at 332-333, 821 N.E.2d 60:

"We [have read] the phrase ... as restricting the statute's coverage to defendants who petition the government on their own behalf [emphasis added]. In other words, the statute is designed to protect overtures to the government by parties petitioning in their status as citizens.... The right of petition contemplated by the Legislature is thus one in which a party seeks some redress from the government [emphasis added]. See...