I. WHETHER 1) WHERE PETITIONS BY A DIVORCED WIFE, PURSUANT TO M.G.L.c. 209A, FOR HERSELF AND HER SON, AGAINST THE FATHER OF THE SON OF THEIR MARRIAGE ARE BASED ON MISREPRESENTATIONS BY THE FORMER SPOUSE; AND, 2) WHERE THOSE 209A PETITIONS RESULT IN THE TERMINATION OF THE FATHER'S JOINT CUSTODY RIGHTS; AND 3) WHERE THE DIVORCED FATHER FILES AN ACTION AGAINST THE FORMER SPOUSE MAKING A PRIMA FACIE CLAIM FOR, INTER ALIA, MALICIOUS PROSECUTION, VIOLATION OF CIVIL RIGHTS AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS BASED UPON THOSE MISREPRESENTATIONS, THE SUPERIOR COURT MAY PROPERLY DISMISS THE FATHER'S CLAIM PURSUANT TO M.G.L.c. 231, §59H, AS ONE BASED UPON PETITIONING ACTIVITIES ALONE?

Edward S. McLarnon (McLarnon) brought suit in the Superior Court Department, Middlesex County, C.A. No. MICV98-00375A, alleging malicious prosecution, civil rights violations and intentional infliction of emotional distress against his former spouse, Virginia Jokisch (Jokisch) and her current husband, David Douglas (Douglas). McLarnon and Jokisch were married and divorced, and were parents to Ian McLarnon, a minor whose custody was shared. McLarnon's claims are based on petitions by filed by Jokisch with the assistance of Douglas pursuant to M.G.L.c. 209A on her own and on her son's behalf. Jokisch's c. 209A petitions were based on allegations against McLarnon which are shown to be false by prior statements and admissions of Jokisch.

Jokisch and Douglas filed a Special Motion to Dismiss pursuant to M.G.L.c. 231, §59H, which motion, after argument, was allowed, by the Superior Court, Zobel, J.

McLarnon appeals therefrom.

Jokisch and McLarnon were married May 17,1974. ... Their son, Ian McLarnon (Ian), was born March 13, 1981. ... Jokisch and McLarnon were divorced in June 1986. ... The divorce provided for joint legal and physical custody of Ian. ... Jokisch married David Douglas (Douglas) August 18, 1990. ... 

From 1982 through August 1994 Ian lived with his mother and lived with his father every other weekend, on holidays and one-half of each summer. ... On September 1, 1994, after returning from a vacation which included Ian, Jokisch, and on behalf of Ian, filed a petition at Concord District Court ... , 9447 RO 0272, requesting an Abuse Prevention Order against McLarnon, including, among other things, the surrender of custody of Ian. The Affidavit of Jokisch filed with said c. 209A Petition falsely accused McLarnon of previous harm to Ian and of abusive behavior toward her. ... That Court, McGill, J., granted an Ex Parte Temporary Order which, after a hearing on September 9, 1994, he refused to extend, allowing the Order to expire. ... That Court commended the parties to the Probate and Family Court. ... 

On September 9, 1994 a hearing was held at Probate and Family Court regarding another c. 209A request by Jokisch, and on behalf of Ian, for an Abuse Prevention Order. ... Jokisch filed an Affidavit...in that matter, Middlesex Probate and Family Court, No. 84D-3694, accusing McLarnon of previous violence toward her and of breaking her arm and her ribs. ... Douglas also filed his Affidavit..., based entirely upon hearsay and opinion, in that matter in support of Jokisch. The Douglas Affidavit...reiterates the allegations of broken ribs and a broken arm at the hands of McLarnon. On September 9, 1994 the Probate and Family Court, Middlesex County, Nelson-Dilday, J., entered an Order, through September 23, 1994, which, among other things, included surrender of custody of Ian. ... On September 16, 1994, in a hearing regarding motions in said matter the previous order of the Court was extended through November 30, 1994, Highgas, J. ... 

On November 30, 1994 a further hearing in said Probate and Family Court case resulted in a new Abuse Prevention Order, Weinger-Boorstein, J. ... , ordering, among other things, that McLarnon surrender custody of Ian. The Order also included an exception for instances where Ian initiates contact with McLarnon, and when Ian's therapist requests McLarnon's participation in Ian's therapy. 

On November 30, 1995 the Probate and Family Court, McGovern, J., in the same matter, entered another Abuse Prevention Order, essentially identical to that entered by the Court on November 30, 1994, and containing the same exception. ... 

On March 18, 1996, the Probate and Family Court, Cohen, J., in the same matter, entered another Abuse Prevention Order, essentially identical to that entered by the Court on November 30, 1995, and containing the same exception, but amending the address for Ian's school. ... 

On March 18, 1996, the Probate and Family Court, Cohen, J., in the same matter, entered another Abuse Prevention Order, essentially identical to that entered by the Court on November 30, 1995, and containing the same exception, but amending the address for Ian's school. ... 

On or about May 30, 1996 Ian exercised his right under the existing Abuse Prevention Order and initiated contact with McLarnon. ... As a result Jokisch, despite the existing exception to the Abuse Prevention Order made a complaint to the Police Department, Arlington, Massachusetts, alleging violation of the Order. ... Process issued on May 31, 1996 against McLarnon, District Court Department, Cambridge Division, 9652CR001841. ... On June 12, 1996 the Cambridge Division, Sherman, J., referred the matter to a Magistrate's Hearing. ... On July 1, 1996 Magistrate Moscow after a hearing refused to allow the complaint to go forward. ... 

On May 31, 1996, and roughly contemporaneously with the Cambridge Division criminal matter, the Probate and Family Court, McGovern, J., in the continuing matter there, entered another Abuse Prevention Order through June 26, 1996, essentially identical to the previous Order of Judge Cohen. ... Then on June 26, 1996 the Probate and Family Court, Nelson-Dilday, J., modified the May 31, 1996 Order by ordering the deletion of the exception, and continuing said Order until May 30, 1997. ... 

On May 30, 1997 the Probate and Family Court, McGovern, J., ordered extension of the June 26, 1996 Order through June 18, 1997. ... On June 18, 1997, the Probate and Family Court, Highgas, J., ordered further extension through June 18, 1998. ... 

In prior sworn testimony Jokisch gave evidence that during the period in which she was separated from McLarnon she was abused by Gabriel Garcia who broke her arm...and in May 1983 when he pushed her hurting her ribs for which x-rays were required. ... Jokisch called McLarnon during a period of their separation, July 20, 1984, and left a message on his answering machine indicating that she had broken her arm as a result of a fall at her residence. McLarnon's father heard this message. As a result, McLarnon went to the aid of Jokisch and helped her receive treatment at Symmes Hospital. ... 

Jokisch claimed in her May 22, 1986 deposition that she was treated by Dr. Maureen Falmmer (sic) in approximately May 1984 for rib injuries inflicted by McLarnon...and claimed in her Affidavit to the Probate and Family Court that McLarnon fractured her rib. ... The letter of Dr. Maureen Flammer..., dated Sept. 14, 1984, indicates that Jokisch was seen in April 1984 for rib injuries which Jokisch reported as a result of a fall while holding her child. Dr. Flammer reports that at that time the rib was already healed making the date of injury likely to have been May of 1983. ... Dr. Flammer also makes reference to a radiology report of April 11, 1984 indicating that the rib fracture was an old, healed fracture at that time. ... 

Paul Ciccotelli (Ciccotelli), a mutual friend of McLarnon and Jokisch gave Affidavit to the Probate and Family Court...that during her separation from McLarnon Jokisch admitted to abuse at the hands of someone she had dated. In another meeting with Ciccotelli, requested by Jokisch as the result of an alleged beating by McLarnon, Ciccotelli saw no signs of abuse and Jokisch declined to discuss the abuse issue, instead concentrating on a possible relationship with Ciccotelli. ... 

I. THE SUPREME JUDICIAL COURT HAS ADOPTED A STANDARD FOR INTERPRETATION OF G.L.c. 231, §59H, THE MASSACHUSETTS ANTI-SLAPP STATUTE; THE "BASED-ON" TEST.

The United States District Court, District of Massachusetts, in a decision prior to Duracraft, avoided application of the as-written statutory standards of G.L.c. 231, §59H, preferring to rely on Federal procedure by saying, in light of an anti-SLAPP motion, "This Court will examine the allegations of the complaint under the well-worn standards governing Fed.R.Civ.P. 12(b)(6) motions, not the hybrid statutory procedure in section 59H which is more akin to summary judgment." Baker v. Coxe, 940 F.Supp. 409, 417 (D.Mass. 9-20-96, Saris, J.). 

In order to avoid an unconstitutional effect², preserve as much of the legislative intent as possible and apply the statute fairly, the Supreme Judicial Court rejects committing decisions thereunder to judicial discretion. The Court declines a forced interpretation of the statutory language, written as "shall grant," footnote 1, supra, and reading it as "may grant."³ Duracraft, 427 Mass. at 167. Instead, the Court requires that the "special movant who 'asserts' protection for its petitioning activity would have to make a threshold showing through the pleadings and affidavits that the claims against it are 'based-on' the petitioning activity alone and have no substantial basis other than or in addition to the petitioning activities." Id. at 167-168 (emphasis added).

II. THE ACTION AT BAR IS NOT THE TYPE AT WHICH THE ANTI-SLAPP STATUTE IS AIMED.

In reviewing the legislative history of anti-SLAPP the Supreme Judicial Court noted that the Governor in letters explaining successive vetoes of anti-SLAPP bills expressed concern that the bills' broad application "sweep[s] in cases that are far beyond the types of lawsuits which the bill's proponents wish to control." Duracraft, 427 Mass. at 162, quoting 1994 House Doc No. 5604. An earlier version of the legislation was said to erect "a nearly insurmountable barrier to a suit, thereby transforming the law and creating an absolute privilege for the right to petition, for the first time." Id., quoting 1994 House Doc. No. 3033. The legislature, nevertheless, overrode the Governor's veto and enacted the St. 1994, c. 283, §1, implementing G.L.c. 231, §59H, Id., and its broad statutory language.

So it is with the case-at-bar. The parallels between an abuse of process claim (as in Sullivan) and a malicious prosecution claim (as in the case-at-bar) are obvious, especially as they relate to the application of the anti-SLAPP statute. Both claims involve an abuse of the petitioning process.⁶ The broad language of the anti-SLAPP statute must not be allowed to shift the burden of proof, at the motion stage, to the plaintiff-at-bar (the party opposing the anti-SLAPP motion) to make a substantive factual showing, rather than relying on the allegations of the complaint.⁷ Congress must comply with due process when substantially modifying a cause of action. Hammond v. United States, 786 F.2d 8, 12 (1st Cir. Mass. 1986). Certainly, the same must be true for the Legislature of the Commonwealth. 

Application of c.231, §59H, to the McLarnon claim of malicious prosecution, and to the related claims which spring therefrom, would constitute an abolition of any claim for malicious prosecution (or abuse of process), since, by definition, malicious prosecution is a claim based on abuse of the petitioning process. The McLarnon claim, since it states, inter alia, a prima facie case of malicious prosecution, and any claim involving abuse of the petitioning process, should be excepted from the application of anti-SLAPP.

It is important to note that the Duracraft decision makes reference to the amicus brief filed by the Plaintiff in Office One, Inc. v. Lopez, Norfolk Superior Court No. 96-2519. That case involved a plaintiff-purchaser of condominium units bringing action against the condominium trustees and unit owners. The Duracraft court, at n. 8, refers to the fact that the Office One, Inc. court had dismissed that plaintiff's claims pursuant to the anti-SLAPP statute. However, as a result of the Duracraft decision and the application of its "based-on" test, that Office One, Inc. court recently reversed itself in part and allowed plaintiff's motion to vacate the dismissal of certain counts (Declaratory Judgment, Breach of Fiduciary Duty and c.93A) of that action based "upon reconsideration and pursuant to the decision Duracraft v. Holmes Products Corp., 427 Mass. 156 (1998)" (Addendum b).

III. JOKISCH AND DOUGLAS FAILED TO MAKE THE NECESSARY THRESHOLD SHOWING REQUIRED BY THE "BASED-ON" TEST.

To the contrary, the record from Jokisch and Douglas' own evidence given against McLarnon...and their actions against McLarnon...contrasted with the contradictory testimony of Jokisch..., as well as the facts established by McLarnon...and others...show that McLarnon's claims are based on Jokisch and Douglas' false representations made to deprive McLarnon of parental custody and his civil rights therein, in order to inflict emotional harm upon him.

Although the Jokisch/Douglas activity in the Concord District Court, Middlesex Probate and Family Court, and Cambridge District Court may be characterized as petitioning activity, these Appellees have failed to satisfy that there is no "substantial basis other than or in addition to the petitioning activities," Id. (emphasis added), such that c.231, § 59H, should apply. Merely saying that the Plaintiff's claims are based strictly upon petitioning activities does not make it so, especially when an abuse of that petitioning process is the gravamen of the McLarnon claim.

Although the wrongs charged in the case at bar arise out of parenting issues, the case itself is not a domestic controversy. The fact that a number of Family and Probate Court judges have acted on the 209A and visitation issues is merely a reflection of the continuing jurisdiction of that court and the length of time the son of the marriage has continued to be a minor.

The facts giving rise to the McLarnon claims at bar are traditional tort issues for which the Superior Court has subject matter jurisdiction under M.G.L.c. 212, §4, and for which the Superior Court has been the traditional court of resort. The case at bar is not one traditionally brought to the Probate and Family Court, and is not a matter over which the Probate and Family Court retains exclusive jurisdiction. See M.G.L.c. 215, §§3 & 4; c.209, §§30, 32 & 37; c.210, §§1 & 12; Also see, Kindrigan & Inker, Family Law and Practice, § 7.3, M.P.S. (1996). Where the government can achieve a result equally well by according due process as by denying it, the former course must be followed. Raper v. Lucey, 488 F.2d 748 (1st Cir. 1973).

The degree to which these claims involve divorced parents and, peripherally, a child in their custody, is not a matter with which the Superior Court need be concerned. The McLarnon claims state matters on which relief can be granted by the Superior Court. Refusal to allow these claims to go forward in Superior Court, where in personam and subject matter jurisdiction are uncontested, after Jokisch and Douglas have failed to satisfy the "based-on" test of Duracraft denies McLarnon his own petitioning and due process rights. 

For all the forgoing reasons McLarnon states that the allowance of Appellee's Special Motion To Dismiss ... Pursuant to M.G.L.c. 231, § 59H, must be reversed.

¹ G.L.c. 231, §59H, states, in pertinent part: "The court shall grant such special motion [to dismiss based on the party's petitioning activity], 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."...

² The Appeals Court noted that literal application of the statutory test and procedure "would create grave constitutional problems where, as here, the plaintiff's action asserts a legitimate, cognizable claim ... The plaintiff, after all, is simply exercising its right of petition." Duracraft Corp. v. Holmes Prod. Corp., 42 Mass.App.Ct. 572, 581 (1997). See, Duracraft, 427 Mass. at 167, n. 19.

³ The SJC notes that the Appeals Court in its prior review of the case, Duracraft Corp., 42 Mass. App. Ct. at 582, n.20, attempted to "rescue the statute by interpreting the statutory language 'shall grant ... [the] special motion' as 'may' grant it."

⁴ Sullivan v. Murphy, 5 Mass.L.Rptr. 68 (4-22-96), concerns a former mother-in-law claiming rights in real property against her divorced son-in-law, who, when he filed a counterclaim for abuse of process, moved under c.231, § 59H, for dismissal.

⁵ The Sullivan court cites, as does the SJC in Duracraft (see, Section II. Pg.10-11 of this Brief), the Governor's expressed concerns, 1994 House Doc. No. 5570 at 3 and House Doc. No. 5604, regarding the burden shifting of the anti-SLAPP statute, as written.

⁶ The elements of malicious prosecution are: 1) institution of process (not necessarily criminal) against a plaintiff with malice; 2) without probable cause; 3) terminating in plaintiff's favor. Hubbard v. Beatty & Hyde, Inc., 343 Mass. 258, 260-261 (1961). The facts would also support a claim for abuse of process against Jokisch, since the elements are similar, but merely require use or process to accomplish a motive for which it was not intended. Elliot v. Warwick Stores, Inc., 329 Mass. 406 (1953). 

⁷ See, Sullivan, 5 Mass.L.Rptr. at 68, n.2.