Kobrin v. Gastfriend

821 N.E.2d 60, 443 Mass. 327, 2005 Mass. LEXIS 12

• Court: Massachusetts Supreme Judicial Court
• Decided: January 20, 2005
• Status: Published

Opinions

Cowin, J.

This case has its origin in disciplinary actions brought against a psychiatrist (the plaintiff here) by the Board of Registration in Medicine (board). The defendant, also a psychiatrist, was hired by the board to assist in its investigation of the complaints. After he was exonerated by the board on all charges, the plaintiff sued the defendant for statements made in the form of an affidavit. The defendant’s special motion to dismiss pursuant to G. L. c. 231, § 59H (the “anti-SLAPP” statute), was allowed by a Superior Court judge. The plaintiff appealed from the dismissal of the suit to the Appeals Court, and we transferred the case to this court on our own motion.

The question before us is whether G. L. c. 231, § 59H, immunizes the defendant physician from liability for statements made in his affidavit. We hold that, in the circumstances of this case, the defendant’s activities fall beyond the scope of the anti-SLAPP statute’s protections. Accordingly, we vacate the dismissal of the complaint and remand the case for further proceedings.

Background. The plaintiff, Kennard C. Kobrin, is a licensed psychiatrist who owned and operated a psychiatry practice in Fall River and was also a contracted mental health and substance abuse service provider with the Massachusetts Medicaid Assistance Program. The defendant, David R. Gastfriend, is a licensed psychiatrist with a subspecialty certification in addiction psychiatry and has served as a director of addiction services at Massachusetts General Hospital since 1991, where he treats patients for substance abuse and conducts research.¹

In 1993, the State police began investigating the plaintiff’s prescription practices after several of his patients died in circumstances involving the overuse of various drugs. The State police retained the defendant to assist with the criminal investigation. Meanwhile, in 1994 and 1996, three complaints were filed against the plaintiff with the board concerning his alleged improper prescription of benzodiazepines to his patients.² Pursuant to G. L. c. 112, § 5, the board is granted authority to “investigate all complaints relating to the proper practice of medicine by any person holding a certificate of registration” to practice medicine within the Commonwealth. The defendant was retained by the board under contract and was paid to assist in its investigation of these complaints and to render an expert opinion concerning the plaintiff’s medical practices. See G. L. c. 112, § 5 (“the board shall hire such attorneys and investigators as are necessary”).

On request of the counsel assigned to the disciplinary case (complaint counsel), the defendant reviewed and evaluated numerous medical records and reports relating to the plaintiffs prescription practices and executed an affidavit. The defendant’s seven-page affidavit set forth his professional opinion that the plaintiff deviated from the proper standard of care and was “engaged pervasively in illegitimate prescribing and . . . widespread misconduct,” and concluded that the plaintiff’s “continued practice of medicine . . . represents a serious and immediate threat to his patients and to the public health, safety and welfare.”

Relying in part on the defendant’s opinions and findings as set forth in his affidavit, complaint counsel filed with the board a motion for summary suspension of the plaintiff’s license pursuant to 243 Code Mass. Regs. § 1.03(11)(a) (1993). A statement of allegations was filed against the plaintiff, see 243 Code Mass. Regs. § 1.01 (1993); the board summarily suspended his registration to practice medicine and referred the matter to the division of administrative law appeals (DALA). At the DALA hearing, the defendant, who was subpoenaed by the plaintiff’s attorney, testified concerning the contents of his affidavit.³ The administrative magistrate concluded that the plaintiff did not illegally prescribe benzodiazepines or otherwise render substandard care to his patients, and the board dismissed the charges against the plaintiff.⁴

The plaintiff filed suit in the Superior Court asserting claims against the defendant for “expert witness malpractice/negligence,” defamation, malicious prosecution, and interference with contractual relations. All counts are based on the defendant’s preparation and submission of the affidavit to the board, “knowing the information contained therein [was] false, misleading and fraudulent and was maliciously included therein with the intention to injure” the plaintiff.⁵ In response to the complaint, the defendant filed a special motion to dismiss pursuant to G. L. c. 231, § 59H, commonly referred to as the “anti-SLAPP” statute.⁶ The judge allowed the motion and subsequently awarded the defendant attorney’s fees.

In his appeal, the plaintiff asserts that the anti-SLAPP statute is not applicable to the defendant because the latter was not petitioning the government, but rather was providing paid assistance to the government in its case. The defendant maintains that dismissal of the suit against him pursuant to the anti-SLAPP statute was appropriate because he was engaged in “petitioning activities” before the board within the meaning of G. L. c. 231, § 59H.⁷ We conclude that the defendant’s activities are governed neither by the letter nor by the purpose of the anti-SLAPP statute. Because the defendant was not seeking from the government any form of redress for a grievance of his own or otherwise petitioning on his own behalf, he was not exercising his “right of petition under the constitution” within the meaning of the statute. G. L. c. 231, § 59H. We would alter considerably the Legislature’s intent were we to interpret the statute so as to expand its scope to protect the statements of a disinterested paid witness.

Discussion. We review the Superior Court judge’s decision to grant the defendant’s special motion to dismiss to determine whether there was an abuse of discretion or other error of law. See Baker v. Parsons, 434 Mass. 543, 550 (2001); McLarnon v. Jokisch, 431 Mass. 343, 348 (2000).

1. Applicability of the anti-SLAPP statute. The anti-SLAPP statute, G. L. c. 231, § 59H, inserted by St. 1994, c. 283, § 1, was enacted by the Legislature to provide a quick remedy for those citizens targeted by frivolous lawsuits based on their government petitioning activities. See preamble to 1994 House Doc. No. 1520. See also Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 161-162 (1998). The statute employs a number of mechanisms to protect the rights of those providing information to the government, including a special motion to dismiss and expedited hearing on the motion, a stay of discovery proceedings pending the motion’s disposition, and the award of attorney’s fees and costs to successful moving parties. See G. L. c. 231, § 59H. It applies to matters of both public and private concern, McLarnon v. Jokisch, supra at 347; Duracraft Corp. v. Holmes Prods. Corp., supra at 164; and encompasses petitions brought before governmental agencies. See G. L. c. 231, § 59H; Office One, Inc. v. Lopez, 437 Mass. 113, 122-123 (2002) (applying anti-SLAPP statute to one defendant’s communications with Federal Deposit Insurance Corporation).

In determining whether the defendant’s statements to the board fall within the scope of the anti-SLAPP statute, we apply the general rule of statutory construction that a statute is to be interpreted “according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated.” Triplett v. Oxford, 439 Mass. 720, 723 (2003), quoting Board of Educ. v. Assessor of Worcester, 368 Mass. 511, 513 (1975).

Accordingly, we turn first to the language of the anti-SLAPP statute to determine the legislative intent. The statute, in pertinent part, provides:

“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 commonwealth, said party may bring a special motion to dismiss.”

G. L. c. 231, § 59H. The statute then defines a “party’s exercise of its right of petition” as:

“[A]ny 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 encourage consideration or review of an issue 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.”

Id. We read the phrase “based on said party’s exercise of its right of petition under the constitution” as restricting the statute’s coverage to those defendants who petition the government on their own behalf. In other words, the statute is designed to protect overtures to the government by parties petitioning in their status as citizens. It is not intended to apply to those performing services for the government as contractors.⁸

“None of the words of a statute is to be regarded as superfluous, but each is to be given its ordinary meaning without overemphasizing its effect upon the other terms appearing in the statute . . . .” Commonwealth v. Woods Hole, Martha’s Vineyard & Nantucket S.S. Auth., 352 Mass. 617, 618 (1967), quoting Bolster v. Commissioner of Corps. & Taxation, 319 Mass. 81, 84-85 (1946). The statute explicitly extends protection to a party based on “said party’s exercise of its right of petition” (emphasis added). G. L. c. 231, § 59H. Moreover, the right of petition protected in the anti-SLAPP statute is that right enumerated in the First Amendment to the United States Constitution (“Congress shall make no law . . . abridging . . . the right of the people ... to petition the Government for a redress of grievances” [emphasis added]) and in art. 19 of the Massachusetts Declaration of Rights (“The people have a right ... to request of the legislative body . . . by the way of . . . petitions . . . redress of the wrongs done them, and of the grievances they suffer” [emphasis added]). See G. L. c. 231, § 59H (protecting against lawsuits “based on said party’s exercise of its right of petition under the constitution of the United States or of the commonwealth” [emphasis added]). The right of petition contemplated by the Legislature is thus one in which a party seeks some redress from the government. See Webster’s Third New Int’l Dictionary 1690 (1993) (defining “petition” as “a formal written request addressed to an official person or organized body” and as “a formal written request addressed to a magistrate or court praying for . . . relief ’ [emphasis added]).

Here, the defendant was not exercising his right to petition or to seek any redress from the board (a government body), but rather was acting solely on behalf of the board as an expert investigator and witness. The Superior Court judge thus erred in concluding that the defendant’s activities “f[e]ll within the letter and spirit of the petitioning activities enumerated in G. L. c. 231, § 59H.”

The dissent suggests that our interpretation today departs from the literal construction of the statute and states that a broad construction of the statute more accurately reflects the statutory language. See post at 343-345. The dissent maintains that we need not speculate about the meaning of the language nor depart from it unless the language would produce an absurd result. See post at 345-346. Because the language obviously produces no absurd result here, the dissent continues, all we need consider is the statute’s plain language. As the dissent interprets that statutory language, every statement ever made to a government body is protected. Unfortunately, this analysis ignores the history that led to adoption of the statute, misconstrues the statutory language, and in doing so, fails to effectuate the legislative intent.

While the dissent makes much of the fact that the Legislature’s choice of words was deliberate, see post at 344, it overlooks the important fact that the Legislature explicitly used the phrase “right of petition under the constitution” in the statute, thus expressly implicating the term’s constitutional meaning. See G. L. c. 231, § 59H. The constitutional “right of petition” is a term of art that the Legislature did not adopt casually or accidentally. The Legislature’s decision to refer to the right of petition secured in the Federal and State Constitutions must be accorded significance in order to effectuate the legislative intent.⁹ See id.

Relying on a broad definition of a “party’s exercise of its right of petition,” the defendant similarly argues that the judge’s determination was correct because he submitted a “written . . . statement” to a government “body” in connection with an issue that was “under consideration,” see G. L. c. 321, § 59H, and that nothing in the statute requires a party to commence or initiate a proceeding himself or herself. Like the flawed analysis in the dissent, this argument fails to account for the statute’s use of the term “right of petition under the constitution” and the additional language indicating that it is the petitioner’s own interests and statements directed thereto that are the subject of protection.

The defendant attempts to bolster his argument by pointing to cases that acknowledge the breadth of the statute’s wording. See Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 162 (1998) (“the Legislature intended to enact very broad protection for petitioning activities”); Milford Power Ltd. Partnership v. New England Power Co., 918 F. Supp. 471, 489 (D. Mass. 1996) (“the Court recognizes that the statute’s definition of the ‘right to petition’ is very broad”). The Milford case is of little help to the defendant, as the court in Milford declined to rule on the scope of the statute and denied the motion to dismiss without prejudice. See id. at 489. Likewise, the Duracraft case does not help the defendant because there we did not construe the meaning of “right to petition,” and we declined to give an expansive reading to the statute. See Duracraft Corp. v. Holmes Prods. Corp., supra at 167-168. We reasoned that an over-broad construction of the anti-SLAPP statute would compromise the nonmoving party’s right to petition — the same right the statute was enacted to protect. See id. at 166 (“By protecting one party’s exercise of its right of petition, unless it can be shown to be sham petitioning, the statute impinges on the adverse party’s exercise of its right to petition . . .”).

The legislative history of the anti-SLAPP statute further supports our holding. “Statutes are to be interpreted not based solely on simple, strict meaning of words, but in connection with their development and history, and with the history of the times and prior legislation.” Quincy City Hosp. v. Rate Setting Comm’n, 406 Mass. 431, 443 (1990) (adopting narrower interpretation of statute based, in large part, on legislative intent as gleaned from legislative history). See Bynes v. School Comm. of Boston, 411 Mass. 264, 267-269 (1991) (determining legislative intent through examination of legislative history in conjunction with plain language of statute). The Legislature passed the anti-SLAPP statute partly in response to a lawsuit initiated by a developer against citizens of Rehoboth who signed a petition challenging proposed development out of a concern about endangering wetlands. Duracraft Corp. v. Holmes Prods. Corp., supra at 161. In enacting the statute, the Legislature expressed concern over a “disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances” (emphasis added). Preamble to 1994 House Doc. No. 1520. See Duracraft Corp. v. Holmes Prods. Corp., supra; Stubom Ltd. Partnership v. Bernstein, 245 F. Supp. 2d 312, 314 (D. Mass. 2003) (noting that anti-SLAPP statute was designed to protect right to petition for redress of grievances). The Legislature intended the statute to encourage “full participation by persons and organizations and robust discussion of issues before legislative, judicial, and administrative bodies.” Preamble to 1994 House Doc. No. 1520. Duracraft Corp. v. Holmes Prods. Corp., supra. Based on this legislative history, this court concluded that “[t]he typical mischief that the legislation intended to remedy was lawsuits directed at individual citizens of modest means for speaking publicly against development projects.” Office One, Inc. v. Lopez, 437 Mass. 113, 121-122 (2002), quoting Duracraft Corp. v. Holmes Prods. Corp., supra.

Although the statute was aimed primarily at protecting citizen protest in the area of land development, we recognize that the application of the anti-SLAPP statute has not been limited to this arena. See Baker v. Parsons, 434 Mass. 543, 549 (2001) (“our review of the legislative history ... led us to conclude that the Legislature intended to go beyond the ‘typical’ case”). At the same time, we have recognized that the scope of the statute has its limits. See Duracraft Corp. v. Holmes Prods. Corp., supra at 162-163 (“We are dubious that the Legislature intended to create an absolute privilege. We also see no evidence that the statute was intended to reach suits such as this one between two corporate competitors involved in other ongoing litigation . . ,”).¹⁰

The legislative history reveals that the anti-SLAPP statute had its genesis as a legislative attempt to protect private citizens when exercising their constitutional right to speak out against development projects or other matters of concern to them and their communities and to seek governmental relief. “SLAPP suits [are] ‘generally meritless suits brought by large private interests to deter common citizens from exercising their political or legal rights or to punish them for doing so.’ ” Duracraft Corp. v. Holmes Prods. Corp., supra at 161, quoting Wilcox v. Superior Court, 27 Cal. App. 4th 809, 816-817 (1994).¹¹ Nothing in the legislative history suggests any intention to protect a government-retained investigator acting on behalf of an administrative agency. The board contracted with the defendant to engage in investigative activities in aid of the board’s case against the plaintiff,¹² and he was compensated for his services. He had no other connection to, or interest in, the allegations against the plaintiff.

The dissent, in its broad interpretation of the statute, totally disregards this legislative history. This statutory context, when combined with the Legislature’s use of the phrase “petition under the constitution” as discussed above, produces an entirely different construction than that proposed by the dissent. Our opinion today does not distort the language of the statute, but rather gives it its intended meaning by taking account of these two important considerations. As is our obligation, we have given meaning to all of the statute’s words in the context of the legislative history in order to effectuate the intent of the Legislature. See Triplett v. Oxford, 439 Mass. 720, 723 (2003); Quincy City Hosp. v. Rate Setting Comm’n, 406 Mass. 431, 443 (1990).¹³

The defendant argues that his enlistment by government officials to engage in petitioning activities does not disqualify him from protection under the anti-SLAPP statute. Our holding in this case does not suggest that all parties solicited by the government to participate in petitioning activities will necessarily be disqualified from the anti-SLAPP law’s protections. While there is no statutory requirement that petitioning parties directly commence or initiate proceedings, in protecting those petitioning activities guaranteed under the State and Federal Constitutions, see G. L. c. 231, § 59H, the statute requires that the protected party have more than a mere contractual connection to the proceedings that are the basis of the petitioning activity. The defendant asserts no such connection to the proceedings in the case at hand.¹⁴

The defendant’s case is distinguishable from the facts in Baker v. Parsons, 434 Mass. 543 (2001), where we affirmed the dismissal of a SLAPP suit against two defendants whose comments on a proposed development had been solicited by the government. In that case, the plaintiff landowner sought permits from State and Federal regulatory agencies to construct a pier on land he owned on an island that was also the nesting habitat for several species of aquatic birds. Id. at 545, 549. In the course of their review, the permitting agencies sought comment on the impact of the proposed development on the island habitat from other environmental agencies. Id. at 545. One of those agencies, in turn, solicited comment from Parsons, a senior scientist for an environmental group (Manomet Bird Observatory), who had studied bird populations on the island for fifteen years. Id. at 544-545. Her comments were based on observations she had personally made while a researcher on the island, to the effect that the plaintiff’s development on the island had already “diminished and perhaps decimated a once robust and viable heronry.” Id. at 546. She concluded her comments by calling on the responsible Federal and State regulatory agencies to halt the continued degradation of the site. Id. The second defendant, the Manomet Bird Observatory, was an environmental organization that had once owned the plaintiff’s land, id. at 544-545; had used it for research, id. at 545; and, along with Parsons, even before the permit application was filed, had been seeking to have the area classified as an “area of critical environmental concern.” Id. Thus, prior to the solicitation of their comments by the government, these defendants had an independent interest in the controversy and in the preservation of the land that was at the center of the dispute. They were never hired by the government, nor did they serve on behalf of the government to further its interests rather than seek redress for their grievances. These factors supported our determination that the suit against Parsons and the Manomet Bird Observatory was a “ ‘typical’ SLAPP suit,” targeting the defendants for “petitioning] the government.” Id. at 549 n.12.¹⁵ Although their petitioning activity was solicited by State and Federal government officials, id. at 549, the defendants in Baker v. Parsons, supra, were nonetheless also engaged in constitutional petitioning activity in their own right and seeking some redress from the government based on their grievances.¹⁶

Because we hold that this case is beyond the anti-SLAPP statute’s reach, we need not resolve the parties’ dispute whether the defendant’s affidavit contained the requisite factual basis to support dismissal pursuant to the anti-SLAPP statute. See G. L. c. 231, § 59H; Baker v. Parsons, supra at 551-552, 553-554.

2. Applicability of qualified immunity pursuant to G. L. c. 112, § 5. General Laws c. 112, § 5, which grants the board authority to investigate and prosecute disciplinary complaints against licensed physicians, also provides qualified immunity for those who participate in board investigations of physician misconduct. The immunity provision reads:

“No person filing a complaint or reporting or providing information pursuant to this section or assisting the board at its request in any manner in discharging its duties and functions shall be liable in any cause of action arising out of the receiving of such information or assistance, provided the person making the complaint or reporting or providing such information or assistance does so in good faith and without malice.”

Id. The defendant claimed qualified immunity pursuant to G. L. c. 112, § 5, in his special motion to dismiss. The judge, having dismissed the case based on the anti-SLAPP statute, did not reach the issue. We address it briefly.

The parties, relying on various canons of statutory interpretation, ask this court to decide whether the anti-SLAPP statute or G. L. c. 112, § 5, is “controlling.” This question is based on a fundamental misunderstanding of the two statutes. Neither statute “controls” because there is no relationship between the two. The anti-SLAPP statute and G. L. c. 112, § 5, address different situations and thus represent two separate and independent defenses potentially available in proceedings of this nature. As discussed above, the anti-SLAPP statute applies to parties exercising their “right of petition under the constitution.” Nothing in G. L. c. 112, § 5, either enlarges or restricts this protection.

Where, as in the present case, the defendant files a special motion to dismiss pursuant to the anti-SLAPP statute and also asserts qualified immunity as an alternative basis for dismissal, the judge first should decide, as he did here, whether to grant the special motion to dismiss. See, e.g., Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 168 (1998) (affirming denial of special motion to dismiss and remanding for further proceedings on other potential bases of immunity). This sequence is dictated by the anti-SLAPP statute, which automatically stays discovery (subject to certain exceptions) and directs the judge to consider the merits of the special motion to dismiss on an expedited basis. See G. L. c. 231, § 59H (“court shall advance any such special motion so that it may be heard and determined as expeditiously as possible” and “[a]ll discovery proceedings shall be stayed upon the filing of the special motion . . . provided, however, that the court, on motion and after a hearing and for good cause shown, may order that specified discovery be conducted”). If the anti-SLAPP statute applies, the case will be dismissed without any consideration of qualified immunity. It is only when the special motion is denied that the judge shall consider the issue of qualified immunity as an independent basis for dismissal. For a judge to proceed otherwise would frustrate the procedural design of the special motion and the intent of the Legislature. See preamble to 1994 House Doc. No. 1520 (statute designed by Legislature to ensure SLAPP suits will be “resolved quickly with minimum cost”). See also Fabre v. Walton, 436 Mass. 517, 521-522 (2002), S.C., 441 Mass. 9 (2004) (“protections afforded by the anti-SLAPP statute ... are in large measure lost if the petitioner is forced to litigate a case to its conclusion before obtaining a definitive judgment through the appellate process”).

Because the anti-SLAPP motion was improperly allowed here, we consider the application of G. L. c. 112, § 5, to this case. The plain language of the statute applies to the defendant’s statements to the board and neither party directly contends otherwise. The relevant inquiry on remand is, therefore, whether the defendant’s conclusions were made “in good faith and without malice.” G. L. c. 112, § 5.¹⁷

For the foregoing reasons, we vacate the dismissal of the plaintiff’s complaint and remand the case to the Superior Court for further proceedings consistent with this opinion.

So ordered.

1 There is a dispute as to the defendant’s precise position at Massachusetts General Hospital, but it is of no import to our analysis.

2 According to the record, benzodiazepines are narcotics used to treat anxiety and are sometimes abused by those with drug addictions.

3 The plaintiff called the defendant as a witness in order to demonstrate that his affidavit was “replete with error.”

4 The DALA magistrate found the defendant’s opinions to be “unfounded.” We render no opinion as to the contents of the affidavit.

5 The defendant asserts that he was sued during the pendency of the plaintiff’s criminal trial and that the suit would chill the defendant’s likely participation in that trial. The record reveals that the defendant was not sued based on his involvement in the pending criminal case, but only as a result of his “act of preparing and submitting to the [b]oard . . . [his] affidavit.”

6 The acronym “SLAPP” stands for Strategic Lawsuit Against Public Participation. See Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 160 n.7 (1998).

7 We recognize the amicus brief filed by the Attorney General on behalf of the Commonwealth supporting the defendant’s position.

8 No definition of the phrase will encompass every case that falls within the statute’s reach, and some difficult factual situations will have to be assessed on a case-by-case basis. What we seek to do is to limit the statute’s protection, in accordance with the legislative intent, to the type of petitioning activity the Constitution envisions in which parties petition their government as citizens, not as vendors of services. See discussion infra.

9 The dissent argues that “the statute provides us with the Legislature’s definition of the entire term ‘a party’s exercise of its right of petition.’ ” Post at 343. The dissent glosses over the fact that the statutory definition of “said party’s exercise of its right of petition” remains modified by the phrase “under the constitution.” See G. L. c. 231, § 59H (entire phrase is “said party’s exercise of its right of petition under the constitution” [emphasis added]). The legislative intent to limit the scope of the “right of petition” in the statute is further evidenced by the last phrase of the definition (which the dissent also overlooks): “or any other statement falling within constitutional protection of the right to petition government” (emphasis added). Id.

10 The anti-SLAPP statute was enacted as 1994 House Doc. No. 1520 and sent to Governor Weld for his signature. See 1994 House J. 1118; 1994 Senate J. 1294. Governor Weld returned the bill to the House of Representatives for amendment in order to narrow the definition of “right of petition.’’ See 1994 House Doc. No. 5570. The Legislature rejected the Governor’s recommendations, and passed the bill unamended. See 1994 House J. 1247; 1994 Senate J. 1418. Governor Weld then vetoed the legislation, arguing that the bill, as written, protected too broad a range of activities. See 1994 House Doc. No. 5604 (“The bill’s proponents are concerned with retaliatory lawsuits brought by developers .... [However,] [e]ffectively, the bill covers any statement on a policy issue”). The Legislature passed the anti-SLAPP statute over the Governor’s veto. 1994 House J. 1306. 1994 Senate J. 1491-1492.

Both the defendant and the dissent, post at 344-345 & n.1, cite Governor Weld’s veto message and this legislative action as support for a broad interpretation of the anti-SLAPP statute. All that is revealed by this legislative history, however, is that the Governor believed that the anti-SLAPP statute should apply to a narrower range of communications than the Legislature did. That disagreement does not assist us in identifying where the line should be drawn. The Legislature’s rejection of the Governor’s position, to the extent it has meaning at all, does not illuminate the case presently before us. No more can be drawn from the legislative override of the Governor’s veto than that the Legislature rejected the Governor’s position.

11 See Weld Vetoes a Bill Targeting Developers Who File Libel Suits, Boston Globe, Dec. 24, 1994, at 15 (need for anti-SLAPP legislation, as explained by bill’s sponsor, is “to stop the practice of developers filing lawsuits against environmentalists and members of neighborhood groups who testify at public hearings against proposed developments”); Brewer Blasts SLAPP Suits; Barre Legislator Backs Cohen Bill, Worcester Telegram and Gazette, Dec. 29, 1993, at B4 (paraphrasing State Representative’s description of SLAPP suits as those “used with increasing frequency to discourage citizens from participating in government and punishing those who do”).

12 Although the plaintiff claims that the defendant “caused the complaint to be initiated,” the record does not support this assertion.

13 The dissent has also made clear its approval of a much broader protection than that which the Legislature crafted in the anti-SLAPP statute. See post at 347-348, 354 (“agencies themselves are best served by having witnesses and participants of all types protected from lawsuits stemming from their testimony and participation,” and “it is in the best interests of both the witnesses and the agencies that such witnesses be accorded those protections”). However, such policy rationales cannot justify disregard of the Legislature’s intent. We do not decide what the Legislature should have done, but rather we must implement what it has chosen to do. See Commonwealth v. Lena, 415 Mass. 835, 841 (1993) (“Whether a statute is wise or effective is not within the province of courts”).

14 The dissent expresses concern that this distinction introduces a “new” and “amorphous” argument into the anti-SLAPP analysis, which requires courts to “pars[e] motives” regarding how and why parties came to make allegedly protected statements. See post at 349, 354. The dissent misconstrues today’s holding. We care not whether a defendant seeking dismissal under the anti-SLAPP statute is “sincere” in his or her statements; rather, our only concern, as required by the statute, is that the person be truly “petitioning” the government in the constitutional sense.

15 The dissent, post at 352, asserts that in Baker v. Parsons, 434 Mass. 543 (2001), the court relied on the plain language of the statute in finding the anti-SLAPP statute applicable. See id. at 549. While we relied, in part, on the language of the statute, we also looked to the legislative history of the anti-SLAPP statute in construing that language, a consideration that the dissent completely discounts. See id. (“In addition to its legislative history, the plain language of the statute . . . squarely encompasses the facts of this case . . .”). There is thus nothing inconsistent between our analysis in Baker v. Parsons, supra, and our analysis today.

16 Similarly, the defendant’s activities are distinguishable from those of a government “whistleblower,” who petitions a government body regarding activities or actions based on personal knowledge and concern. We do not address whether a whistleblower would be protected under the anti-SLAPP statute.

17 The defendant asserts in addition that he has absolute immunity under the common law and that the complaint should have been dismissed for that reason. The dissent focuses extensively on the application of absolute common-law immunity for witnesses, apparently hoping to transfer such immunity to the anti-SLAPP context, where it does not apply. See post at 345-347. That the common law may provide a witness with absolute immunity says nothing at all about whether the Legislature intended to grant a lesser form of immunity to the defendant under the anti-SLAPP statute. Our examination of the legislative history revealed nothing that would suggest the Legislature looked to common-law witness immunity in crafting the anti-SLAPP statute.