STATE REPRESENTATIVE
PHILIP TRAVIS
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
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