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Tuesday, May 30, 2017

Can a person reporting a Restraining Order violation be sued if they're wrong?

Though our work is primarily focused on family mediation, a recent Anti-SLAPP case caught our attention. The Anti-SLAPP statute protects those “petitioning” a government entity from retaliatory civil lawsuits.  The recent case of St. Germain vs. O’Gara references this statute, in the context of a reported allegation of violating a restraining order.

St. Germain, the defendant, reported O’Gara to the police for violating a permanent abuse prevention order. She reported that St. Germain mailed documents to her which violated the protection order, but it turns out were properly filed court documents.  O’Gara was arrested for perceived violation of the order but later released due to lack of evidence against him.

The trial court denied St. Germain’s motion under the Anti-SLAPP statute to dismiss O’Gara’s complaint against her.  However, the Appeals Court found that the trial court failed to apply the two-part test appropriately.  The two part test requires first that the moving party show that the suit against her relates only to the petitioning activity, and if proven then the burden shifts to the opposing party to show "by a preponderance of the evidence, 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.’ "

While the trial court indicated that there wasn’t enough factual evidence to rule on the Motion in favor of St. Germain, the Appeals Court disagreed.  The Appeals Court believed that St. Germain met the first part of the test because her report to the police was “petitioning activity” under the statute:
“When a person reports suspected criminal activity to the police, she is engaging in constitutionally-based petitioning activity for purposes of G. L. c. 231, § 59H.”  
While there were multiple counts to O’Gara’s complaint, they all stemmed from this petitioning activity and therefore the first part of the test was met.  The second part of the test required O’Gara to “establish by a preponderance of the evidence that ‘no reasonable person could conclude’ that St. Germain's report to the police was supported either in fact or in law.”

Here is where St. Germain believes she had a reasonable case to reach out to the police:

  1. She made attempts to check that the filing was proper:  Upon receiving the letters from O’Gara, St. Germain noted that there were no stamps certifying that the hand-written notes were official court documents. Though she was wary of the lack of court seals, she did not assume guilt and checked in with an unidentified individual at the Probate and Family Court who reported that “that there was no record whatsoever of the unstamped documents (that St. Germain) received."  It later turned out they had been likely been filed by mail and misplaced by the court.
  2. She reached out to a Police Officer to investigate who reached the same conclusion:  The officer investigated the inquiry and agreed that O’Gara had violated his order based on the documents he reviewed and his conversation with the Probate and Family Court. St. Germain did not propose the arrest but it was rather the officer that contacted the New Bedford police who took O’Gara into custody.

But O’Gara countered that he did contact the court and that St. Germain’s conversation with the police was malicious.  In the end, even if the Appeals Court agreed that her conduct was malicious (which they don’t seem to), the Court concluded that the intent wouldn’t matter under the Anti-SLAPP statute, so long as any reasonable person could agree that her petitioning activity had a basis in fact or law.

It was therefore determined that St. Germain could have been reasonable in believing the mailed documents were in violation of the restraining order.  While the facts later resulted in O’Gara’s prosecution being dismissed, that doesn’t overcome the burden required to proceed with his claims against St. Germain.  In other words, the Appeals Court believed that this is exactly the type of petitioning activity the Anti-SLAPP statute is intended to protect.

St. Germain was protected by the Anti-SLAPP statute and the case was remanded for an order allowing her Special Motion to Dismiss and to address the issue of attorney’s fees.

Written by Justin Kelsey & Patricia Cordischi

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