Chandler v. Rutland Herald Publishing, No. 104-3-15 Wmcv (Teachout, J., June 25, 2015)

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                                                      STATE OF VERMONT

SUPERIOR COURT                                                                             CIVIL DIVISION
Washington Unit                                                                            Docket No. 104-3-15 Wmcv

Charles Chandler
      Plaintiff

           v.

Rutland Herald Publishing, et al.
      Defendants


                                                         DECISION
                                                  Defendants’ Motion to Strike

        The Rutland Herald newspaper published—according to it in 2007—an article describing
allegations that Mr. Charles Chandler had falsely accused the Windham County Sheriff of
seeking “protection money” from area businesses. The article also described a criminal charge
against Mr. Chandler for impeding a public officer in violation of 13 V.S.A. § 3001. In this case,
Mr. Chandler maintains that the article is false in all material respects and was written and
published solely as a malicious personal attack on him. He claims libel and intentional infliction
of emotional distress against Rutland Herald Publishing and three of its employees, including the
author of the article. He claims several million dollars in damages. Defendants (collectively, the
Herald) have filed a Motion to Strike the complaint as a violation of 12 V.S.A. § 1041,
Vermont’s anti-SLAPP (Strategic Lawsuit Against Public Participation) statute.1 They seek a
statutory award of attorney fees and costs.

           The disputed article

        The disputed article describes that Mr. Chandler had been charged criminally for making
false, public allegations that the then-Windham County Sheriff and her deputy had sought money
for favors from area businesses and Mr. Chandler himself. It described that a police
investigation had found no evidence of any wrongdoing and further described events related to
the impeding-an-officer charge, including a witness statement that Mr. Chandler paid an
employee to make a false statement.

           The Anti-SLAPP Motion to Strike

         Vermont’s anti-SLAPP statute is intended to provide protection against “lawsuits brought
primarily to chill the valid exercise of the constitutional rights of freedom of speech and freedom
to petition government for the redress of grievances.” 2005, No. 134 (Adj. Sess.), § 1(1). The

1
 The Herald also has filed a Request for Judicial Notice to establish the date of publication, a Request for Judicial
Notice of Mr. Chandler’s litigation history, and a Motion to Dismiss on statute of limitations grounds and based on a
claimed reporting privilege.
statute authorizes a defendant who was sued due to or in anticipation of the exercise of those
rights, “in connection with a public issue,” to file a special motion to strike the lawsuit at the
outset of the case. 12 V.S.A. § 1041(a). If such a motion is filed, the court must grant it unless
the plaintiff proves that:

       (A) the defendant’s exercise of his or her right to freedom of speech and to
       petition was devoid of any reasonable factual support and any arguable basis in
       law; and

       (B) the defendant’s acts caused actual injury to the plaintiff.

Id. § 1041(e)(1). If the plaintiff cannot make such a showing, the court grants the motion and the
defendant is entitled to attorney fees and costs. Id. § 1041(f)(1). If the motion was frivolous, the
plaintiff is entitled to fees and costs. Id.

       The statute broadly protects:

       (1) any written or oral statement made before a legislative, executive, or judicial
       proceeding, or any other official proceeding authorized by law;

       (2) any written or oral statement made in connection with an issue under
       consideration or review by a legislative, executive, or judicial body, or any other
       official proceeding authorized by law;

       (3) any written or oral statement concerning an issue of public interest made in a
       public forum or a place open to the public; or

       (4) any other statement or conduct concerning a public issue or an issue of public
       interest which furthers the exercise of the constitutional right of freedom of
       speech or the constitutional right to petition the government for redress of
       grievances.

12 V.S.A. § 1041(i). The disputed article plainly is a “written . . . statement concerning an issue
of public interest made in a public forum.” Id. § 1041(i)(3). It is a garden-variety newspaper
article describing criminal charges arising out of public confrontations between a member of the
public and public officials.

         The Herald’s motion to strike put the burden on Mr. Chandler to demonstrate that the
article “was devoid of any reasonable factual support and any arguable basis in law.” In
response, Mr. Chandler asserts that the article is frivolous, vexatious, baseless, malicious, and it
has caused him “millions of dollars of damage.” Plaintiff’s Objection 7 (filed April 7, 2015). He
comes forward with no evidence that the article lacks reasonable factual support and incorrectly
argues that the burden of proof is on the Herald.

       The anti-SLAPP statute does not put the burden on the speaker to demonstrate that the
disputed speech has reasonable factual support. However, the Herald affirmatively supported its

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motion to strike with a detailed showing of factual support. This includes: (1) an affidavit of
Daniel Barlow, the author of the article, describing the court documents relied upon in writing
the article; (2) a probable cause affidavit by Detective Cpl. Michael F. Burns detailing Mr.
Chandler’s corruption allegations, the ensuing investigation, and a witness statement to the effect
that Mr. Chandler paid an employee to make a false statement related to the impeding-an-officer
charge; (3) the docket sheet in the impeding-an-officer case; (4) the amended information in the
impeding-an-officer case; and (5) an affidavit of Jeromy Languerand, a law enforcement officer,
detailing support for the impeding-an-officer charge against Mr. Chandler. The article recounts
allegations and court records. It does not purport to reveal the truth of what really happened
during the underlying events. The evidence submitted by the Herald shows that the article, as
written, has ample factual support. It thus was speech protected by 12 V.S.A. § 1041.

       Mr. Chandler violated the letter and spirit of 12 V.S.A. § 1041 by filing this action. The
complaint will be stricken. The Herald is entitled to an award of attorney fees and costs. Id. §
1041(f)(1).



                                             ORDER

      For the foregoing reasons, the Herald’s Motion to Strike is granted. All other pending
motions are denied as moot.

        Any request for attorneys’ fees and costs shall be filed by July 15, 2015 or any such claim
will be deemed waived and will be dismissed with prejudice. Any such request shall be
accompanied by detailed time and billing records.

       Dated at Montpelier, Vermont this ____ day of June 2015.


                                                     _____________________________
                                                     Mary Miles Teachout
                                                     Superior Judge




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