Roman v. Trustees of Tufts Coll.

• Decision Date: 21 March 2012
• Docket Number: SJC–10822.
• Parties: Margo ROMAN v. TRUSTEES OF TUFTS COLLEGE & others.1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

278 Ed. Law Rep. 1101

461 Mass. 707

964 N.E.2d 331

Margo ROMAN

v.TRUSTEES OF TUFTS COLLEGE & others.1

SJC–10822.

Supreme Judicial Court of Massachusetts, Worcester.

Submitted May 3, 2011.Decided March 21, 2012.

John J. Finn (Michael A. Finn with him), Hopkinton, for the plaintiff.

Scott P. Lewis (Dickens Mathieu, Medford, with him) for the defendants.

David Himelfarb & John Reinstein, Boston, for American Civil Liberties Union of Massachusetts, amicus curiae, submitted a brief.Alan D. Rose & Lisa A. Tenerowicz, Boston, for Babson College & others, amici curiae, submitted a brief.

Present: IRELAND, C.J., SPINA, GANTS, DUFFLY, & LENK, JJ.

DUFFLY, J.

The plaintiff, Margo Roman, appeals from a Superior Court judge's order granting the defendants' motion for summary judgment on her complaint alleging violations of the Massachusetts Civil Rights Act, G.L. c. 12, §§ 11H and 11I(act).^2,3 Roman contends that she had a right, secured by the First Amendment to the United States Constitution and by art. 16 of the Massachusetts Declaration of Rights, to attend a lecture that was open to the public, held on the campus of the defendant Tufts, ⁴ and that Tufts and defendant Susan Brogan violated the act when they excluded Roman from the lecture. We conclude that the circumstances of Roman's exclusion from the lecture did not amount to an interference with any claimed free speech right, and thus that the allowance of summary judgment on this claim was proper. We conclude also that the allowance of summary judgment for the defendants on Roman's claims of intentional infliction of emotional distress and negligence was correct.

Background. We summarize the undisputed facts drawn from the summary judgment record. Roman is a veterinarian with a private practice focused on integrative medicine, a specialty that combines conventional veterinary medicine with alternative treatments such as holistic medicine, homeopathy, and herbal remedies. In 1997, Roman discovered a small lesion on the third eyelid ⁵ of her horse, Champ, that she diagnosed as either a benign sarcoid tumor or a malignant squamous cell carcinoma. She treated the lesion with a variety of alternative therapies. By January, 2004, the lesion had grown, and Champ's entire eye had become painful and infected. Roman contacted defendant Isabel Jurk, a veterinary ophthalmologist at Tufts, seeking surgical removal of the eye.

Roman brought Champ to Tufts on January 30, 2004. Jurk diagnosed Champ's lesion as an invasive squamous cell carcinoma that had metastasized. She conferred with defendant Stephen Rowell, the hospital director at Tufts, who agreed with Jurk's preliminary diagnosis and her medical determination that surgery was not appropriate for Champ at that time. Rowell and Jurk met with Roman to provide their preliminary diagnosis and to seek permission to conduct a biopsy. At this meeting, Rowell and Jurk expressed concern over Champ's condition, and discussed the possibility of palliative euthanasia. They also expressed concern about the quality of Roman's care for Champ and whether Roman's integrative medicine practice and treatments fell below accepted standards of veterinary care. Roman rejected the recommendation of palliative euthanasia and ultimately removed Champ from the hospital.⁶

In the months that followed, Roman refused to pay Tufts for the services rendered to Champ. On December 14, 2004, Rowell sent Roman a letter stating, in relevant part:

“Until and unless this debt is resolved, you will be unable to obtain any medical or other services through the School. This will include any treatment for your own animals, continuing education, or any other service that the School might provide to you personally.”

On May 17, 2005, Tufts, through its office of continuing education, presented a publicly advertised lecture on its campus entitled, “Dangers of Feeding Your Pet a Raw Diet.” ⁷ Roman, who is an advocate of raw food diets for animals, sought to attend the lecture; at the time, she still had not paid her bill for services rendered to Champ. When Roman arrived at the lecture hall, Brogan, Tufts's assistant director of continuing education, recognized her. Brogan had had at least one prior conversation with Rowell in which Rowell informed Brogan that Roman was ineligible for continuing education services at Tufts and could not attend the lecture.⁸ Standing outside the lecture hall, Brogan told Roman, “you can't come in here,” and, “[i]f you come in here, we'll have you arrested.” Roman then approached a Tufts police officer, who stated, “if [Brogan] says that I'm to arrest you, then I will arrest you,” and, “[i]f you don't leave the building now, I'm going to arrest you.” At that point, no other reason was provided to Roman for her exclusion from the lecture. Roman ultimately left the Tufts campus.

Roman filed a complaint in the Superior Court contending that the May 17, 2005, lecture was open to the public, that she had a constitutional right to attend, and that the actions of the defendants in excluding her from the lecture constituted “threats, intimidation or coercion” in violation of G.L. c. 12, § 11H. In addition, the complaint asserted claims for defamation, breach of contract, intentional infliction of emotional distress, and negligence in the defendants' treatment of Champ. A Superior Court judge allowed the defendants' motion for summary judgment on all counts. Roman appealed from the allowance of summary judgment on her claims of civil rights violations, intentional infliction of emotional distress, and negligence. We transferred the case to this court on our own motion.

Discussion. 1. Standard of review. “The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Kennie v. Natural Resource Dep't of Dennis, 451 Mass. 754, 759, 889 N.E.2d 936 (2008), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120, 571 N.E.2d 357 (1991). A nonmoving party's failure to establish an essential element of her claim “renders all other facts immaterial” and mandates summary judgment in favor of the moving party. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711, 575 N.E.2d 734 (1991), citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). See Mass. R. Civ. P. 56(c), as amended, 436 Mass. 1404 (2002). Our review is de novo, Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 123 n. 1, 686 N.E.2d 1303 (1997), and we may affirm the judgment on any ground supported by the record. See Foster v. Group Health Inc., 444 Mass. 668, 672, 830 N.E.2d 1061 (2005).

2. Claims under the act. In order to establish a claim under the act, Roman “must prove that (1) [her] exercise [or] enjoyment of rights secured by the Constitution or the laws of either the United States or the Commonwealth, (2) have been interfered with, or attempted to be interfered with, and (3) that the interference or attempted interference was by threats, intimidation or coercion.” Kennie v. Natural Resource Dep't of Dennis, supra, quoting Buster v. George W. Moore, Inc., 438 Mass. 635, 644, 783 N.E.2d 399 (2003).

Roman maintains that the defendants' actions in excluding her from the lecture on May 17, 2005, interfered with rights secured by the First Amendment (“Congress shall make no law ... abridging the freedom of speech”) and art. 16 (“[t]he right of free speech shall not be abridged”), and that this interference was by “threats, intimidation or coercion” and therefore a violation of the act.⁹ We address first whether Roman's claim meets the threshold requirement that the asserted free speech rights be “secured by” the Constitution of the United States or the Massachusetts Declaration of Rights.

We observe that the nature of the asserted free speech right is itself unclear. In her memorandum of law opposing the defendants' motion for summary judgment, Roman focused on a right to attend the lecture and possibly participate in the question-and-answer period that was to follow. During the hearing on that motion, Roman argued that her claim encompassed a right to attend the lecture and receive speech, separate from the potential opportunity to speak during the question-and-answer session; the judge denied Roman's motion to supplement her memorandum to reflect this argument. In her briefs to this court, Roman limits her asserted right to that of attending the lecture, which she characterizes as an independent right to receive speech. Although the defendants argue that Roman has waived any claim involving a right to receive information, attendance at the lecture is necessary in order to possibly be called on in a question-and-answer session. Thus, we consider Roman's claim as encompassing an asserted right to attend a lecture on Tufts's private property to which the public was invited.

It is well established that the First Amendment protects speech rights only against government infringement. Commonwealth v. Hood, 389 Mass. 581, 584, 452 N.E.2d 188 (1983). Except where a private property owner's activities rise to the level of State action, the First Amendment does not prohibit speech limitations by an owner of private property, even where that property is open to the public, such as a shopping mall that serves the same purposes as a city business district. See, e.g., Hudgens v. National Labor Relations Bd., 424 U.S. 507, 519, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976); Lloyd Corp. v. Tanner, 407 U.S. 551, 567, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972); Marsh v. Alabama, 326 U.S. 501, 508–509, 66 S.Ct. 276, 90 L.Ed. 265 (1946). See also PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 81, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980), quoting Lloyd Corp. v. Tanner, supra at 569, 92 S.Ct. 2219 (1972) (“property does not ‘lose its private character merely...