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Anti-SLAPP Abuse In Massachusetts

State House District Office
Room 167 28 County Street
State House Rehoboth, MA 02769
Boston, MA 02133

Wednesday, February 22, 2006

Dear Representative Travis:

I originally was going to write a lengthy, in depth, exposition on anti-SLAPP development in Massachusetts, but realized as time was passing that I was not going to be able to set aside the six hours or so to write such a letter. At the behest of Zed McLarnon, I write a short letter, to summarize my thoughts. You may not know that through flagrant judicial activism in interpreting the real intent of the anti-SLAPP statute by the Massachusetts Supreme Judicial Court, victims of false allegations of abuse have been completely deprived of any civil remedy in court unless they completely move out of state and sue in federal court.

In fact those that courageously seek justice may be severely punished by way of the payment of opposing counsel's attorney fees. As a practicing family law attorney, as fathers' rights activist, as someone who is concerned about the wrongful breaking of the father/child bond through false accusations, and as some one who has litigated anti-SLAPP issues in the appellate courts, I urgently ask you to consider inserting a public interest requirement into the Massachusetts anti-SLAPP statute, to protect fathers and those that may be the victims of false allegations of abuse. In the end, without this civil remedy, it will be the children that have been unjustly torn from their natural bonds with their fathers that will be the real victims.

Let me begin with some facts bereft of opinion. I understand that you are one of the chief architects of Mass. Gen. L. Ch 231 §59H, the "anti-SLAPP" statute. Massachusetts is one of about 14 states that have adopted this type of legislation. ." Duracraft Corp. v.
Holmes Products Corp., 427 Mass. 156, 161, 691 N.E. 2d 935, 940 (1998). As stated in footnote 12 of the Duracraft opinion:

n12 One way that other States have narrowed the scope of their anti- SLAPP statutes is to require that petitioning activities seeking the special procedural protections of such statutes be connected with matters of public concern. The Appeals Court in this case documented this element in the anti-SLAPP statutes of California, Delaware, Minnesota, Nevada, New York, Rhode Island, and Washington. See Duracraft Corp. v. Holmes Prods. Corp., 42 Mass. App. Ct. 572, 577 n.10, 678 N.E.2d 1196 (1997). See also Ga. Code Ann. § 9-11-11.1(b) (Supp. 1997); Neb. Rev. Stat. 25-21, 242 (1995); Okla. Stat. tit. 12, § 1443.1 (1991); Tenn. Code Ann. § 4-21-1001(a) (Supp. 1997). Other than G. L. c. 231, § 59H, we are aware of no anti-SLAPP statute that fails to include "public concern" as an element of the petitioning activity.

There is no doubt in my mind that the judiciary grafted an intent to do away with "public interest" exception that was not there by those, like yourself, who actually drafted the statute. It would have been a remarkable event for the Massachusetts legislature to draft a statute that departed from every other similar ordinance in the nation, without an explicit statement stating that intended purpose.

How did the courts interpret mere silence as a manifestation of a desire to take the momentous step and depart from the interpretation of every other similar statute in the country? The Duracraft court dubiously reasoned that since the Governor thought the language was too sweeping and could potentially apply to cases wherein there was no public interest, that somehow, in someway, the legislature understood their statute to have the same meanings as the Governor's and therefore intended to draft a statute that applied to cases even where there was not a modicum of a public interest.

It is known statutory construction that one does not depart with the common law or the historic and universal interpretation of similar statutes in other states without a clear statement in the statute by the legislature itself. Silence is not to be construed as license for great bounds in the law. For instance, when Massachusetts drafted a civil rights statute, they made clear, to depart from the federal civil rights statute, to include language that it included any conduct whether done or not done under color of law. (Under federal law, it must come under color of law.)

There have been several consequences of this judicial activism:

1. The tort of abuse of process, which is not in any way grounded on the truth of the petitioning activity, has effectively been removed as a tort in Massachusetts's courts. (Please be advised, the federal courts have ruled the anti-SLAPP procedural (not
substantive) and therefore not applicable in federal courts. (I was council in Franco v. Mudford, 2002 Mass. App. Div. 63, 2002 WL 539065 (2002), and before the Massachusetts court of Appeals).

2. Private, financially strapped individuals are afraid to sue large corporations, such as newspapers, when their names have been tarnished. This is an obvious oddity since the very purpose of anti- SLAPP statutes was to protect the little guy from the big guy.

3. Fathers have virtually no remedy for false allegations of abuse. The tort of abuse of process, malicious prosecution, libel
and slander are effectively nullities in Massachusetts's courts, unless it can be proved beyond the pale of any doubt the party was
obviously lying. As a practical matter, district attorneys, while empowered to do so, almost never pursue those that make false
accusations because to do so is deemed politically incorrect and as victimizing women.

4. As a father's rights advocate with first-hand experience as a family law attorney can state unequivocally that Zed's case (McLarnon
v. Jokish, 431 Mass. 343; 727 N.E.2d 813 (2000) (using anti-SLAPP to strike down a malicious prosecution/civil rights claim), is being
used to deny fathers' civil redress. McLarnon paved the way for Fabre v. Walton, 436 Mass. 517; 781 N.E.2d 780 (2002) (using anti-
SLAPP to strike down abuse of process claims), and finally to the Franco case where I argued oral arguments at the Appellate Division, and wrote the brief and argued at the Massachusetts Appeals Court Level.

5. The Massachusetts Supreme Judicial Court has been engaging in a pattern of judicial activism, not applying clearly defined
doctrine, and basically being law makers unto themselves. I have additional examples in my own election law case that could further illustrate this point.

6. My experience in the Franco case proves that the anti-SLAPP law (with the McLarnon case as precedent) immunizes from civil
redress a mother who used perjury to gain custody of the kids and was using false domestic violence allegations for gain. In fact, in the
Franco case, the judge explicitly ruled from the bench at the trial level that "it was about the custody case." This was not even
reported in the Franco case. Despite Franco having won his case the very first time both parties were present and there was no ex parte hearing, despite the probate court judge blasting the mother for using restraining orders to obtain a procedural advantages, the District Court rejected Mr. Franco's lawsuit.

The remarkable theory is that if any court ever, in an ex parte hearing, granted a restraining order, there must be a "reasonable
basis" to the petitioning activity, and the anti-SLAPP special motion to dismiss should be granted. Under this exceptionally unenlightened line of thinking, David Letterman could not sue for damages based upon malicious prosecution, abuse of process, or libel, based upon allegations that he was sending signals through the television to a woman in a far distant state. Why? A temporary order had issued, thus proving there was some reasonable basis in the petitioning activity.

7. Not only do victims of false allegations in private matters having no general public concern will be the subject of a deprivation
of their day in court, they may have to pay enormous attorney fees.

8. Judicial activism like this is very dangerous—it allows women to make false allegations of abuse, thereby wrongfully destroying the
father/child relationship, without civil redress.

REMEDY: How would I remedy the situation? Simple. I would add the following language to conform the Massachusetts statute: "No special motion to dismiss shall be brought in a case that does not affect the public interest." If you are worried that the courts might deem type x cases not in the public interest, specifically state "cases involving type x shall be per se public interest cases." For
instances, it is safe to make a per se rule that any case concerning pollution or zoning shall always constitute a public interest.

Another touch up would be to change the language, "based upon petitioning activity," to "based solely upon the petitioning
activity." This would clearly exempt abuse of process claims from the statutes—as that was not the legislative intent.

Because children and fathers need your protection, I urge you to act.

Most Respectfully,

Rinaldo Del Gallo, III Esq.
79 Nancy Avenue
Pittsfield, MA 01201
PHONE: 413-443-3150
FAX: 413-499-0187
E-MAIL: R_Del_Gallo@hotmail.com, RDelGalloIII@aol.com