Thursday, March 27, 2008


A few years ago, big real estate developers realized that a great way to limit public discussion of contemplated developments was to sue people that criticized said developments. Legislatures in various of the fifty states, including Massachusetts, responded by enacting Anti- SLAPP (Strategic Lawsuits Against Public Participation) statutes. The Massachusetts statute protects "petitioning", an activity that courts have interpreted with astonishing inconsistency. And to qualify for the statute's protection, defendants have to establish that their petitioning activity wasn't a sham. Lawsuit plaintiffs who violate the statute have to pay defendants' attorneys' fees, which is a big deal.

Today the Appeals Court and the SJC each decided SLAPP cases.

In Wenger v. Aceto, SJC 10065, the SJC applied the statute to a lawsuit filed by a client against his former attorney. This case is more interesting for its facts than anything else; it's basically a road-map for how not to conduct an attorney-client relationship. The client bounced a $10,000 check to his lawyer. So the lawyer upped the ante and swore out a criminal complaint against his former client in Dedham District Court. The district court looked at the case and politely sent the attorney on his way. And then his client sued him. The SJC held that even though the criminal complaint lacked merit, the attorney still could use the SLAPP statute to dismiss two of the three claims against him.

Moriarty v. Town of Holyoke, 06-P-1554, is more interesting from a legal perspective. There, the issue was whether government employees could qualify for the statute's protection since the statute aims to protect citizens who petition the government. The Appeals Court today said no. The decision's logic is not so easy to follow, and it would not be surprising if this case is distinguished by courts more often than it is followed.

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