Genovese v. Gazette Publications, Inc.

7 Mass. L. Rptr. 353
CourtMassachusetts Superior Court
DecidedMay 20, 1997
DocketNo. 96940
StatusPublished

This text of 7 Mass. L. Rptr. 353 (Genovese v. Gazette Publications, Inc.) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Genovese v. Gazette Publications, Inc., 7 Mass. L. Rptr. 353 (Mass. Ct. App. 1997).

Opinion

Houston, J.

Plaintiff, Alan A. Genovese (Genovese), brought this action to recover damages arising out of allegedly libelous statements made by defendants, Gazette Publications, Inc. (Gazette Publications), Bernard Doherty (Doherty), John McDonough (McDonough), and Cynthia Pape (Pape). This matter is before the court on defendants’ special motion to dismiss under G.L.c. 231, §59H and defendants’ mo[354]*354tion to dismiss under Mass.R.Civ.P. 12(b)(6). For reasons set forth below, the defendants’ special motion to dismiss is allowed as to counts three and five and defendants’ motion to dismiss is allowed as to counts one, two and four.

BACKGROUND

The facts stated in the complaint, which are taken as true for purposes of considering the defendant’s motion to dismiss, are as follows. On December 15, 1995, Doherty, chairperson of the Asticou Rd. - Martinwood Rd. - South St. Neighborhood Association (AMSNA) and Pape, crime watch coordinator of AMSNA, sent a letter to an official at the Boston Housing Authority (BHA letter) concerning two rental properties located at 8 and 14 Asticou Road (Asticou Houses). In the letter, Doherty and Pape requested that the BHA reconsider extending Section 8 benefits to residents of the two-family houses because both residences were allegedly being operated as rooming houses. As well, they suspected that there was drug trafficking and a kitchen bar operating out of the houses. Doherty and Pape also wrote about a variety of alleged “disturbing” incidents involving residents or visitors to the Asticou Houses including the firing of a sawed-off shotgun in the street, loud parties and music, fights in the street involving knives, and small children playing unsupervised on the street late at night. The letter named the plaintiff as the owner of the Asticou Houses.

On March 29, 1996, the Jamaica Plain Gazette newspaper (Gazette), published by Gazette Publications, printed an article about a shooting incident at the Forest Hills MBTA station allegedly involving two residents of the Asticou Houses. The headline stated: “Shooting Caps History ofTrouble." The article, which identified Genovese as landlord of the Asticou Houses, also discussed the neighbors’ efforts to get BHA officials to end the Section 8 subsidies of the tenants of the Asticou Houses based on their “links to alleged criminal activity.” The article read, in relevant part:

The buildings’ owner, Alan Genovese, has repeatedly told Doherty he is kicking the tenants out, Doherty said, but there is no record of eviction proceedings in Boston Housing Court. Genovese, who used to live nearby, has not returned phone calls from the Gazette, Doherty, or State Rep. John McDonough, who has come to the neighborhood’s aid.
“We’ve got a landlord down there who’s a real pain,” McDonough said.
“Mr. Genovese doesn’t give a damn. We’ve worked hard to establish a good safe community and we’re losing it. Doherty said, ”We in the community hold the BHA and the landlord responsible for the activities of the tenants."
... Neighbors also suspect the houses were illegally converted to rooming houses because of construction activity and the large number of adults hanging around.

DISCUSSION

I. Special Motion to Dismiss

General Laws c. 231, §59H, known as the antiSLAPP statute, provides for a special motion to dismiss ”[i]n any case in which a party asserts that the civil claims, counterclaims or cross claims against said parly are based upon said party’s exercise of its right of petition under the constitution of the United States or of the commonwealth .. .”2 A party’s exercise of his right to petition means:

any written or oral statement made before or submitted to a legislative, executive, or judicial body, or any other governmental proceeding; 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 governmental proceeding; any statement reasonably likely to enlist public participation in an effort to effect such consideration; or any other statement falling within constitutional protection of the right to petition government.

G.L.c. 231, §59H.

The court must grant the special motion unless the party against whom the special motion is made shows: “(1) that 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) that the moving party’s acts caused actual injury to the responding party.” Id. In making its determination, the court considers the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based. Id. According to the bill’s sponsor, “proponents of the act argued that a citizen’s right of petition was being compromised by suits filed merely to intimidate or punish for participation in government.” Vittands v. Sudduth, 41 Mass.App.Ct. 515, 517 (1996). “The term ‘SLAPP’ originally referred to the filing of a civil complaint against a private party because of its communication with a governmental entity about a substantive issue of public or societal concern. SLAPP suits are, therefore, by definition, meritless lawsuits filed against individual citizens to intimidate them into silence.” Milford Power Ltd. Partner, v. New England Power, 918 F.Sup. 471, 488 (D. Mass. 1996) (citations omitted).

A. The Letter

Counts three and five of the complaint arise out of allegedly libelous statements made by Doherty and Pape in the BHA letter. Plaintiff maintains that BHA by definition, “a public body politic and corporate,” G.L.c. 121B, §1A, is not a governmental entity for purposes of the anti-SLAPP statute. While the BHA has some characteristics of a private corporation, the Supreme Judicial Court has found that it is “basically a governmental entity." Spence v. Boston Edison Co., [355]*355390 Mass. 604, 608 (1983). The fact that Doherty and Pape petitioned the BHA in its capacity as the administrator of a federal housing program is consistent with this finding.3

Further, plaintiff argues that Doherty and Pape were not exercising their right to petition because at the time the BHA letter was written, no applicable “governmental proceeding” was underway. The statute does not define the word “proceeding.” Where a statute does not define its words, the court will give them “their usual and accepted meanings, as long as these meanings are consistent with the statutory purpose.” Commonwealth v. Correia, 17 Mass.App.Ct. 233, 235 (1983) (citation omitted). A proceeding is defined as a “(r)egular and orderly progress in form of law, including all possible steps in an action from its commencement to the execution of judgment.” Black’s Law Dictionary 1204 (6th ed. 1990). The letter was submitted to the BHA by private citizens in order to initiate action by the authority to review the award of Section 8 subsidies. Accordingly, I find that the BHA letter was a written statement submitted to a “governmental proceeding" within the meaning of G.L.c. 231, §59H.

The court must grant the special motion to dismiss unless the plaintiff shows that the defendants’ right to petition was devoid of any reasonable factual support or any arguable basis in law and that the defendants’ acts caused actual injury. G.L.c.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Conley v. Gibson
355 U.S. 41 (Supreme Court, 1957)
Whitinsville Plaza, Inc. v. Kotseas
390 N.E.2d 243 (Massachusetts Supreme Judicial Court, 1979)
Charbonnier v. Amico
324 N.E.2d 895 (Massachusetts Supreme Judicial Court, 1975)
Spence v. Boston Edison Co.
459 N.E.2d 80 (Massachusetts Supreme Judicial Court, 1983)
Commonwealth v. Correia
457 N.E.2d 648 (Massachusetts Appeals Court, 1983)
Lyons v. Globe Newspaper Co.
612 N.E.2d 1158 (Massachusetts Supreme Judicial Court, 1993)
Eyal v. Helen Broadcasting Corp.
583 N.E.2d 228 (Massachusetts Supreme Judicial Court, 1991)
Nader v. Citron
360 N.E.2d 870 (Massachusetts Supreme Judicial Court, 1977)
Vittands v. Sudduth
671 N.E.2d 527 (Massachusetts Appeals Court, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
7 Mass. L. Rptr. 353, Counsel Stack Legal Research, https://law.counselstack.com/opinion/genovese-v-gazette-publications-inc-masssuperct-1997.