In 1994, the Massachusetts Legislature enacted a so-called “anti-SLAPP” statute, G.L. c. 231, § 59H, to provide a procedural remedy for early dismissal of suits which seek to use litigation to intimidate opponents into foregoing the valid exercise of their constitutional rights of free from of speech and petition for redress of grievances. In other words, the Statute provides an opportunity to file a special motion to dismiss, with an award of costs and fees if successful, against a claim which is based on one’s petitioning activities, such as (but not limited to), statements to a legislative, executive, or judicial body, or in a governmental proceeding. The special motion to dismiss procedure is intended to quickly dispose of, and discourage, litigation based on such protected statements.
The anti-SLAPP statute has been invoked in many situations since then, with the SJC recently, and critically, interpreting the statute and the applicable tests thereunder in Blanchard v. Steward Carney Hosp., 477 Mass. 141 (2017). However, sometimes the anti-SLAPP statute is invoked in unusual situations. A recent unpublished Appeals Court decision considers such a situation.
The Decision, Roscioli v. Sanderson, No. 17-P-499 (App. Ct. May 15, 2018), relates to an interlocutory appeal from an anti-SLAPP motion to dismiss denied by the Land Court. The trial court litigation is ongoing and complicated by the sheer number of parties involved – at one time there were more than 185 defendants, including the Town of Sturbridge. The underlying issue concerns the parties’ rights, or lack thereof, in a way which runs next to the Plaintiffs’ property. Before filing their Complaint, the Plaintiffs complained to the Town about members of the public trespassing on the way, which Plaintiffs alleged was their exclusive right of way. The Town requested statements from members of the public with respect to their historic use of the way, and over 180 affidavits were submitted in response, some of which alleged use of the way back to the mid-1900’s. After receipt of the affidavits the Town determined that it would not enforce its trespassing laws regarding the way.
That being the wrong decision from the Plaintiffs’ point of view, they filed suit in the Land Court seeking to try title to the way and naming, surprise surprise, all those who filed affidavits with the Town as defendants, including John and Ellen Welch, whose affidavit claimed use of the way back to 1983. The Welches filed a special motion to dismiss, arguing that the claims against them were based upon their protected petitioning activity, namely, the affidavit that they filed with the Town. The Land Court judge denied their motion to dismiss, stating:
“While the defendants' submissions to the Town allowed the plaintiffs to identify the persons who claim rights in their properties, the case is not about those submissions but, instead, about the existence and scope of the rights so claimed. As such, it is a proper 'cloud on title' case, properly brought before this court, G. L. c. 240, § 6, and is not precluded by the Anti-SLAPP statute.”
The Welches appealed. They argued that the Plaintiffs’ litigation was is based exclusively on petitioning activity because the only people who were sued were those who submitted affidavits to the Town concerning the historic use of the way. The Appeals Court, like the Land Court, was not persuaded. After setting forth the legal framework within which the Welches’ motion should be considered — were the plaintiffs’ claims based solely on the Welches’ petitioning activity? If they were, were the claims not primarily brought to chill the Welches’ legitimate petitioning activities considering the totality of the circumstances — the Appeals Court concluded “the underlying case, on its face, involves the adjudication of rights to a way; the dispute began not with petitioning activity by the defendants, but when the plaintiffs complained about trespassers . . . It is evident from the pleadings and the facts alleged by the Welches that the plaintiffs have little interest in the Welches' communications with the town but rather wish to settle the question of their title in the way. Accordingly, whether we view this as a failure to demonstrate that the suit was brought ‘solely’ based on the Welch's petitioning activities, or a failure to show that the claims were not primarily brought to chill the Welches' legitimate petitioning activities, the judge correctly denied relief” under the anti-SLAPP statute.
Other defendants apparently took notice of the Welches’ anti-SLAPP motion and filed similar motions to dismiss, all of which were denied by the Land Court judge.
This is not the first instance of an anti-SLAPP special motion to dismiss in a Land Court matter, see Kirk v. Li, 25 LCR 725 (Mass. Land Ct. 2017), and its invocation here, as in that matter, seems to be a stretch of the plain language of the statute. While there may be instances where the use of an anti-SLAPP special motion to dismiss is appropriate in a Land Court action, it remains to be seen what those circumstances are.