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SJC-11905

            ROLAND VAN LIEW   vs.   COLLEEN STANSFIELD.



       Middlesex.      January 8, 2016. - March 30, 2016.

 Present:   Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
                            Hines, JJ.


"Anti-SLAPP" Statute. Practice, Civil, Motion to dismiss,
     Appeal, Review of interlocutory action. District Court,
     Appellate Division. Civil Harassment.



     Civil action commenced in the Lowell Division of the
District Court Department on February 22, 2012.

     A special motion to dismiss was heard by Laurence D.
Pierce, J.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


    Michael J. Fencer for the defendant.
    Karen A. Pickett for the plaintiff.


    BOTSFORD, J.    In this case we first consider a procedural

issue concerning the appropriate forum to hear appeals from the

allowance of a special motion to dismiss under G. L. c. 231,
                                                                    2


§ 59H (§ 59H), the so-called "anti-SLAPP"1 statute, by a judge in

the District Court.   This case also requires us to evaluate the

relationship between G. L. c. 258E, the statute governing civil

harassment prevention orders, and allegedly political speech.

On the procedural issue, we conclude that a party seeking to

appeal from a District Court order allowing or denying a special

motion to dismiss may file the appeal directly in the Appeals

Court, rather than in the Appellate Division of the District

Court Department (Appellate Division).   We further conclude that

with one possible exception, the speech at issue here --

primarily concerning a local municipal election and more

generally issues of local public concern -- did not qualify as

either "fighting words" or "true threats," see O'Brien v.

Borowski, 461 Mass. 415, 425 (2012), and therefore, no civil

harassment prevention order should have issued in this case.     In

the circumstances presented, Roland Van Liew established that

Colleen Stansfield's petition for a civil harassment prevention

order was devoid of factual support, that he had sustained

injury, and that Stansfield's special motion to dismiss Van

Liew's complaint for abuse of process and malicious prosecution

should have been denied.



     1
       "Anti-SLAPP" stands for anti-strategic lawsuit against
public participation. See Duracraft Corp. v. Holmes Prods.
Corp., 427 Mass. 156, 160 n.7 (1998).
                                                                     3


     Background.2    Van Liew and Stansfield are both residents of

Chelmsford (town).    Stansfield has been an elected member of the

local planning board since April, 2009.    At the time of the

events at issue here, in 2012, Van Liew did not hold public

office but was an active participant in local civic and

political affairs.    Over the years, Van Liew has disagreed

publicly with many positions taken by Stansfield on the planning

board and in her role supporting local political campaigns.

     In 2012, Van Liew was a candidate for selectman in the

town, and on February 1, 2012, he held a public "meet and greet"

event at the town library in connection with his candidacy.

Stansfield attended the event and challenged various positions

taken by Van Liew during the discussion.    At the close of the

event, Stansfield approached Van Liew and asked whether he was

going to take part in upcoming debates.    According to

Stansfield, Van Liew responded loudly, "[O]f course . . . and I

know what you do. . . .    [Y]ou sent an anonymous letter to my

wife and I'm coming after you," to which Stansfield responded,

"[Y]ou are looking at a restraining order," and left.3


     2
       The following background facts are taken from the
pleadings of this case and the affidavits filed in support of
and in opposition to the special motion to dismiss filed by
Colleen Stansfield pursuant to G. L. c. 231, § 59H (§ 59H).
Where facts are in dispute, it is noted in a footnote.
     3
       As set out in his affidavit, Roland Van Liew contends he
answered Stansfield's question without threatening her and told
                                                                      4


     Later that day, after speaking with local police,

Stansfield sought in the District Court a harassment prevention

order against Van Liew pursuant to G. L. c. 258E, § 3.    She

alleged four incidents of harassment in her complaint:    (1) Van

Liew threatened Stansfield at the meet and greet event, where he

was "in [her] face" and told her he was "coming after" her and

she left shaking in fear; (2) Van Liew sent several mailings in

the past year calling Stansfield corrupt and a liar; (3) during

a recall election in July, 2011, Van Liew again called her a

liar and corrupt; and (4) during their first interaction in a

two-hour telephone call initiated by Stansfield (that took place

at some point prior to 2009) Van Liew screamed at her and called

her "terrible names."    A District Court judge held an initial,

ex parte hearing at which Stansfield testified; the judge issued

a temporary harassment prevention order against Van Liew.4      The

judge scheduled a full hearing on Stansfield's request for a

permanent order to take place two weeks later, on February 15,

2012.    Five days after the temporary order issued, it was

modified at Stansfield's request to prevent Van Liew from

mentioning Stansfield's name in any "email, blog, [T]witter or



her, "I don't want any more anonymous letters sent to my wife,"
to which Stansfield responded, "You need a restraining order."
     4
       The February 1, 2012, temporary order required Van Liew
not to abuse, harass, or contact Stansfield and to stay away
from Stansfield's residence.
                                                                   5


any document through [I]nternet, television show, ad or

otherwise."   On February 15, 2012, the scheduled hearing on

Stansfield's request for an order took place before a different

District Court judge.   It was attended by Stansfield, who

represented herself, and Van Liew, represented by counsel.

Stansfield testified about the verbal exchange at Van Liew's

meet and greet event, and further testified that, in the past,

Van Liew had called Stansfield "corrupt and a liar" with regard

to her work on the planning board, specifically pointing to two

electronic mail (e-mail) messages written by Van Liew, one of

which Stansfield read to the judge.   The e-mail message appears

to mention Stansfield twice by name but goes on at great length

to provide highly critical commentary about certain development

projects that were being proposed for the town pursuant to G. L.

c. 40B and other programs.5   The judge concluded that she could

not find the requisite three acts of harassment for a harassment

prevention order under G. L. c. 258E and that some of the acts

alleged by Stansfield were political speech, not threatening in




     5
       Stansfield told the judge that in the second electronic
mail (e-mail) message, which was sent after the temporary
harassment prevention order had issued and had been modified to
prohibit Van Liew from using Stansfield's name in any e-mail
message, Van Liew did in fact mention her by name and called her
a liar. However, Stansfield did not read into the hearing
record the text of the e-mail message in question and it is not
included in the record before us.
                                                                   6


any way; the judge vacated the temporary harassment prevention

order.

    Van Liew then filed the present action against Stansfield

in the District Court, asserting claims for abuse of process and

malicious prosecution.    The complaint alleges that Stansfield

sought the harassment prevention order against him "for the

purpose of disrupting [Van Liew's] campaign" and that she sought

the order even though she knew she lacked probable cause for its

issuance.    Stansfield answered and also filed a special motion

to dismiss the complaint pursuant to § 59H along with a

supporting affidavit.    Van Liew filed an opposition to

Stansfield's special motion to dismiss and a supporting

affidavit.   A third District Court judge allowed the special

motion after a hearing, and ruled that Van Liew "failed to show

that the application for a harassment prevention order 'was

devoid of any reasonable factual support,'" quoting G. L.

c. 231, § 59H.   Van Liew then appealed the ruling to the

Appellate Division, which concluded after a hearing that Van

Liew had presented sufficient evidence to show that Stansfield

lacked any reasonable factual support for her petitioning

activity; the Appellate Division vacated the order of dismissal

and remanded the case to the District Court for trial.

Stansfield filed an appeal in the Appeals Court from the
                                                                         7


decision and order of the Appellate Division; we transferred her

appeal to this court on our own motion.

     Discussion.    1.   Stansfield's right to appeal.   We first

consider whether Stansfield may proceed with her appeal, given

that the Appellate Division's order vacating the allowance of

the special motion to dismiss and remanding the case for trial

is interlocutory, and generally may not be the subject of an

appeal.    Van Liew argues that this court lacks jurisdiction

because by statute, G. L. c. 231, § 109, only final decisions of

the Appellate Division are appealable to the Appeals Court.         We

disagree.

     This court previously has held that regardless of where --

i.e., in which department of the trial court -- a suit may be

commenced, a trial judge's denial of a special motion to dismiss

brought pursuant to the anti-SLAPP statute, § 59H,6 may be


     6
         Section § 59H provides in relevant part:

          "In any case in which a party asserts that the civil
     claims, counterclaims, or cross claims against said party
     are based on said party's exercise of its right of petition
     under the constitution of the United States or of the
     [C]ommonwealth, said party may bring a special motion to
     dismiss. The court shall advance any such special motion
     so that it may be heard and determined as expeditiously as
     possible. The court shall grant such special motion,
     unless the party against whom such special motion is made
     shows that: (1) the moving party's exercise of its right
     to petition was devoid of any reasonable factual support or
     any arguable basis in law and (2) the moving party's acts
     caused actual injury to the responding party. In making
     its determination, the court shall consider the pleadings
                                                                   8


appealed directly to the Appeals Court.   See Fabre v. Walton,

436 Mass. 517, 521-522 (2002), S.C., 441 Mass. 9 (2004).   The

reasons for our holding, set out in Fabre,7 apply with equal

force to an Appellate Division decision denying a special motion

to dismiss, and therefore to Stansfield's appeal.   But more

generally, and based on the same concerns that we expressed in

Fabre about certainty, uniform treatment of similarly situated

litigants, and consistent development of the law relating to the

anti-SLAPP statute, see id. at 522, we conclude that any party

in a case pending in the District Court who seeks to appeal from

the denial or the allowance of a § 59H special motion to dismiss


     and supporting and opposing affidavits stating the facts
     upon which the liability or defense is based.
     7
       Section 59H protects "individuals who exercise their right
to petition from harassing litigation and the costs and burdens
of defending against retaliatory lawsuits." Fabre v. Walton,
436 Mass. 517, 520 (2002), S.C., 441 Mass. 9 (2004), citing
Duracraft Corp., 427 Mass. at 161-162. As part of these
protections, the defendant in a SLAPP suit may file a "special
motion to dismiss" early in the litigation. G. L. c. 231,
§ 59H. In Fabre, supra at 521, we specifically recognized that
"the denial of a special motion to dismiss interferes with
[anti-SLAPP statute] rights in a way that cannot be remedied on
appeal from the final judgment," and notwithstanding the general
rules of appellate review, immediate appeal of an interlocutory
order denying a special motion to dismiss is necessary to
preserve the protected rights; to force a defendant to endure
litigation before allowing the appeal undermines the purpose of
the special motion to dismiss. We further stated that "for
purposes of certainty, uniformity of treatment of litigants, and
the development of a consistent body of law, an interlocutory
appeal from the denial of a special motion to dismiss should
proceed to the Appeals Court, regardless of the court in which
the SLAPP suit was brought." Id. at 522. See Benoit v.
Frederickson, 454 Mass. 148, 151-152 (2009).
                                                                      9


should file the appeal directly in the Appeals Court rather than

in the Appellate Division of the District Court or the Appellate

Division of the Boston Municipal Court.    See Zullo v. Goguen,

423 Mass. 679, 681 (1996) ("This court has wide discretion in

devising various procedures for the course of appeals in

different classes of cases" [citation omitted]).     In sum,

Stansfield's appeal was filed properly in the Appeals Court, and

like the Appeals Court, this court has jurisdiction to decide

it.

      2.   Stansfield's special motion to dismiss.   We turn to the

merits.    Stansfield, as the party filing a special motion to

dismiss under § 59H, bore the initial burden to demonstrate

through her pleadings and affidavits that Van Liew's claims she

sought to dismiss were based on her "petitioning activities

alone and ha[d] no substantial basis other than or in addition

to the petitioning activities."    Duracraft Corp. v. Holmes

Prods. Corp., 427 Mass. 156, 167-168 (1998).    See G. L. c. 231,

§ 59H.     There is no dispute that Stansfield met that burden; Van

Liew's complaint focused solely on Stansfield's application for

a harassment prevention order, which originally was granted ex

parte as a temporary order.    Van Liew makes no claim here, nor

could he, that Stansfield's application for this order did not

qualify as petitioning activity under the anti-SLAPP statute.

Cf. McLarnon v. Jokisch, 431 Mass. 343, 347 (2000) (anti-SLAPP
                                                                    10


statute covers filings for abuse protection orders, pursuant to

G. L. c. 209A, and supporting affidavits).    As a consequence,

Van Liew was required by the statute to show by a preponderance

of the evidence –- again based on pleadings and affidavits --

that Stansfield's petitioning activities were "devoid of any

reasonable factual support or any arguable basis in law" and

that such petitioning activities "caused actual injury" to him.

G. L. c. 231, § 59H.    See Benoit v. Frederickson, 454 Mass. 148,

152-153 (2009).    See also Baker v. Parsons, 434 Mass. 543, 553-

554 (2001) (nonmoving party's obligation to show moving party's

petitioning activities were devoid of either reasonable factual

support or arguable legal basis is not "an insurmountable

barrier to relief").    Stansfield argues that Van Liew failed to

meet either prong of his burden.    We agree with the Appellate

Division, however, that Van Liew met both prongs, and the

special motion to dismiss should have been denied.

     A party seeking a harassment prevention order under G. L.

c. 258E, § 3,8 must demonstrate "harassment," which the statute


     8
         General Laws c. 258E, § 3, provides in relevant part:

          "(a) A person suffering from harassment may file a
     complaint in the appropriate court requesting protection
     from such harassment. A person may petition the court
     under this chapter for an order that the defendant:

          "(i) refrain from abusing or harassing the plaintiff,
     whether the defendant is an adult or minor;
                                                                      11


defines in relevant part to mean "[three] or more acts of

willful and malicious conduct aimed at a specific person

committed with the intent to cause fear, intimidation, abuse or

damage to property that does in fact cause fear, intimidation,

abuse or damage to property."     G. L. c. 258E, § 1.9   The

definition of "harassment" in c. 258E was crafted by the

Legislature to "exclude constitutionally protected speech,"

O'Brien, 461 Mass. at 425, and to limit the categories of

constitutionally unprotected speech that may qualify as

"harassment" to two:     "fighting words" and "true threats."      Id.

See Seney v. Morhy, 467 Mass. 58, 63 (2014).     To qualify as

"fighting words" the words "must be a direct personal insult

addressed to a person, and they must be inherently likely to

provoke violence."     O'Brien, supra at 423.   As for "true

threats," these include "direct threats of imminent physical

harm," as well as "words or actions that -- taking into account

the context in which they arise -- cause the victim to fear such

[imminent physical] harm now or in the future."      Id. at 425.



         "(ii) refrain from contacting the plaintiff, unless
    authorized by the court, whether the defendant is an adult
    or minor; [and]

         "(iii) remain away from the plaintiff’s household or
    workplace, whether the defendant is an adult or minor
    . . . ."
    9
       The word "malicious" is also defined in G. L. c. 258E,
§ 1, and means "characterized by cruelty, hostility or revenge."
                                                                   12


Moreover, to constitute "harassment" within the definition of

the term in c. 258E, the fighting words or true threats must

have been made with an intention to cause, and must actually

cause, abuse, fear, intimidation, or damage to property.10    G. L.

c. 258E, § 1.   And fear is narrowly defined as fear of physical

harm or fear of physical damage to property; it must be more

than "a fear of economic loss, of unfavorable publicity, or of

defeat at the ballot box."   O'Brien, supra at 427.

     In her request for the harassment prevention order,

Stansfield pointed to the following conduct on Van Liew's part

that, she claims in this appeal, compelled her to seek the

harassment prevention order against him:   during a telephone

call, Van Liew called her uneducated and stupid; in public

mailings, Van Liew stated that Stansfield was corrupt and a

liar, and further referred to her as corrupt and a liar during a

local recall election; and Van Liew threatened her at the meet




     10
       To obtain a harassment prevention order, a plaintiff must
show that the defendant intended to cause "fear, intimidation,
abuse, or damage to property" with respect to each of the three
claimed acts of harassment. O'Brien v. Borowski, 461 Mass. 415,
426 n.8 (2012). In determining whether the acts did in fact
cause "fear, intimidation, abuse, or damage to property,"
however, the fact finder "must look to the cumulative pattern of
harassment, and need not find that each act in fact caused fear,
intimidation, abuse, or damage to property." Id.
                                                                  13


and greet event held in support of his candidacy for the office

of selectman.11

     We will assume that the most recent incident alleged by

Stansfield, occurring at the meet and greet event, qualified as

an act of harassment under G. L. c. 285E, § 1; that is, we will

assume that Van Liew's declaration to Stansfield, "I'm coming

after you," was an "act[] of willful and malicious conduct," and

further that it was aimed at Stansfield, was committed with the

requisite intent, and caused Stansfield fear.   However, the

other three instances complained of by Stansfield -- accusations

made in public mailings, accusations made during the 2011 recall

election, and insults made during a telephone call that took

place before 2009 -- did not qualify as harassing acts within

the scope of G. L. c. 258E.

     The public accusations by Van Liew that Stansfield was

"corrupt and a liar" -- the subject of two of the four incidents

of harassment -- plainly were remarks about Stansfield's

performance as an elected planning board member, i.e., as a

public official.   See Arlington v. Board of Conciliation &

Arbitration, 370 Mass. 769, 777 (1976).   These remarks about a

local public official constituted political speech and were at

     11
       According to the police report regarding the meet and
greet encounter -- submitted to the District Court by Van Liew
in support of his opposition to the special motion to dismiss --
Stansfield stated that she attended the political event to
"rattle Van Liew's cage."
                                                                  14


the core of the speech that the First Amendment to the United

States Constitution protects.   See McIntyre v. Ohio Elections

Comm'n, 514 U.S. 334, 346 (1995) ("Discussion of public issues

and debate on the qualifications of candidates are integral to

the operation of the system of government established by our

Constitution.   The First Amendment affords the broadest

protection to such political expression in order 'to assure

[the] unfettered interchange of ideas for the bringing about of

political and social changes desired by the people'" [citation

omitted]).   Although these types of public accusations may be

"vehement, caustic, and sometimes unpleasantly sharp," New York

Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), this form of

political speech must remain "uninhibited, robust, and wide-

open," id.   Van Liew's challenged accusations were neither

fighting words nor true threats, but at most qualify as

political hyperbole.   See Commonwealth v. Chou, 433 Mass. 229,

236 (2001) ("The term 'true threat' has been adopted to help

distinguish between words that literally threaten but have an

expressive purpose such as political hyperbole, and words that

are intended to place the target of the threat in fear").

    The remaining act of which Stansfield complained occurred

when she telephoned Van Liew to become acquainted with him and

his views about issues of concern in the town, and Van Liew

spoke "very loudly . . . telling [her she] was wrong, uneducated
                                                                    15


or stupid."   The record indicates that at the time of this

telephone call, Stansfield was not yet a planning board member

and therefore not a public official, but the discussion involved

matters of public interest.     Regardless of whether the discourse

was political in nature, however, Van Liew's insults certainly

failed to qualify as fighting words or true threats.        The

insults were not "so personally abusive that they [were] plainly

likely to provoke a violent reaction and cause a breach of the

peace," O'Brien, 461 Mass. at 423, nor did such insults, even if

delivered in a loud voice, rise to the level of a "true threat"

of "imminent physical harm" or words that would cause someone to

fear such harm.   Id. at 425.    As such, these telephone

conversation insults do not qualify as harassing conduct within

the scope of G. L. c. 258E.     Accordingly, because Stansfield

failed to present three or more acts of harassment, she was not

entitled to a harassment prevention order.    See Seney, 467 Mass.

at 63-64 (evidence was insufficient to establish three acts of

harassment under c. 258E where plaintiff failed to show

defendant intended to cause fear or intimidation; e-mail message

addressed to third party using unflattering terms to describe

plaintiff was not directed at plaintiff and was not motivated by

cruelty, hostility, or revenge).     As a result, and as Van Liew

showed below in accordance with his burden to do so,

Stansfield's petitioning activity -– seeking a harassment
                                                                    16


prevention order -- was "devoid of any reasonable factual

support or any arguable basis in law."    G. L. c. 231, § 59H.

See Benoit, 454 Mass. at 154 n.7.

     Stansfield contends that the original issuance of a

temporary harassment prevention order and its subsequent

modification is proof that a reasonable person may conclude

there was sufficient factual support for the petitioning

activity.   The argument fails.   Although a judge granted the

request for a harassment prevention order after a brief ex parte

hearing and the order was modified thereafter to increase its

restrictions on Van Liew,12 that order was only temporary.    Two

weeks later, after a full hearing that presented Van Liew with

his first opportunity to be heard, the temporary order was

vacated.    Contrast Fabre, 436 Mass. at 524 (where judge extended

restraining order for six months after evidentiary hearing and

final judgment entered, "the judgment is conclusive evidence

that the petitioning activity was not devoid of any reasonable

factual support or arguable basis in law").    It was clear from

the text of Stansfield's complaint for a harassment prevention

order that no valid basis for such an order was presented; the

insufficiency of facts pleaded could not be cured by a temporary

order that was entered erroneously.


     12
       The record does not indicate whether the modification of
the temporary order involved any type of hearing before a judge.
                                                                   17


     Finally, Van Liew adequately demonstrated that Stansfield's

petitioning activity caused him "actual injury," the second

prong of the showing he was required to make to defeat

Stansfield's special motion to dismiss.    To defend against the

harassment protection order sought by Stansfield, Van Liew

retained an attorney to represent him at the full hearing before

the District Court judge and submitted supporting evidence of

the attorney's fees and costs he was responsible for paying as a

result.13,14   The costs of defending against improper petitioning

activity, once affirmatively proved, are evidence of reasonable

damages.   Cf. Millennium Equity Holdings, LLC v. Mahlowitz, 456

Mass. 627, 645-647 (2010).    We accordingly conclude that Van

Liew met his burden as the nonmoving party and the Appellate




     13
       Stansfield argues that the attorney's bill for his
services was sent to a corporate nonparty, Hands on Technology
Transfer, Inc., and not to Van Liew, and therefore does not
evidence damages suffered by Van Liew himself. The attorney's
bill, however, was addressed to "Mr. Roland Van Liew" at the
corporate address, and based on this record, we decline to infer
that Van Liew did not bear responsibility to pay for his
attorney's services.
     14
       Van Liew further alleged reputational harm caused by
Stansfield's petitioning activity. Because we conclude that Van
Liew's evidence of legal expenses was sufficient to meet his
burden under § 59H to show damages, we do not consider his
allegations of reputational harm.
                                                                     18


Division correctly denied Stansfield's special motion to

dismiss.15

     Conclusion.     We vacate the order of the District Court and

remand the case to that court for further proceedings consistent

with this opinion.

                                     So ordered.




     15
       Stansfield argues also that the allegations made by Van
Liew in his complaint -- that Stansfield sought the harassment
prevention order out of malice and with intent to disrupt his
campaign -- are unfounded accusations. The argument is not
relevant to our analysis of the issues before us, and we do not
reach it.
