United States District Court, D. Massachusetts
Jobs First Independent Expenditure Political Action Committee and Melissa Lucas, Plaintiffs,
Martha Coakley, Attorney General for the Commonwealth of Massachusetts and Brian Mannal, Defendants.
MEMORANDUM & ORDER
Nathaniel M. Gorton United States District Judge
Jobs First Independent Expenditure Political Action Committee
(“Jobs First”) and Melissa Lucas
“plaintiffs”) bring this action for 1)
declaratory judgment challenging the constitutionality of a
certain Massachusetts statute and 2) alleged violations of
plaintiffs' First Amendment rights by both defendants.
The First Amendment claims are against State Representative
Brian Mannal (“Mannal”), in his individual and
official capacities and against the Massachusetts Attorney
General in her official capacity.
filed separate motions to dismiss the claims asserted against
them. For the following reasons, 1) the motion of defendant
Mannal to dismiss will be allowed, in part, and denied, in
part, 2) the motion of defendant Mannal for attorney's
fees and costs will be denied and 3) the motion of defendant
Healey to dismiss will be allowed.
Factual and Procedural Background
Mannal is the incumbent representative for the 2nd Barnstable
District in the Massachusetts House of Representatives.
Mannal is also a practicing attorney who receives
appointments to represent clients in Massachusetts trial
up to the November, 2014, election, Jobs First created and
published several brochures and press releases criticizing
Mannal's legislative record. Specifically, Jobs First
circulated multiple brochures criticizing Mannal's
apparent support for legislation concerning sex offenders.
Each brochure includes a small disclaimer that reads
“[p]aid for by Jobs First Independent Expenditure PAC,
Melissa Lucas, Treasurer.” Jobs First and Lucas
maintain, however, that Lucas had nothing to do with the
creation of these published materials.
October 21, 2014, Mannal filed an application for a criminal
complaint with the Barnstable District Court. In the
complaint, Mannal alleged that Jobs First and Lucas violated
M.G.L c. 56, § 42 (“§ 42”). That same
day Mannal issued a press release and gave statements to the
media describing the criminal complaint.
probable cause hearing on Mannal's application for a
criminal complaint was scheduled for November 20, 2014,
before a Clerk Magistrate. On October 27, 2014, plaintiffs
filed a motion to dismiss the application, contending that
the statute was facially unconstitutional. On October 30,
2014, the Barnstable District Court transferred the
application to the Falmouth District Court. At Lucas's
request, the probable cause hearing was postponed until
won re-election to his seat in the Massachusetts House of
Representatives on November 4, 2014, by a narrow margin.
December 5, 2014, plaintiffs filed a complaint in this Court
seeking a declaratory judgment and injunctive relief against
Mannal and then Massachusetts Attorney General Martha
Coakley. On the same day, plaintiffs also filed a
motion for a temporary restraining order or preliminary
injunction against the Clerk Magistrate of the Falmouth
District Court who is not a party to these proceedings.
December, 2014, this Court denied plaintiffs preliminary
injunctive relief. The probable cause hearing in state court
went forward, and a criminal complaint against Lucas was
issued on December 31, 2014, charging her with two violations
of § 42.
February, 2015, Lucas sought review by the Supreme Judicial
Court of Massachusetts (“SJC”) of the
constitutionality of § 42. All proceedings in state and
federal court were then stayed pending the SJC's
decision. In May, 2015, the SJC concluded that § 42 was
facially unconstitutional under the Massachusetts
constitution and dismissed the criminal complaint against
December 31, 2015, plaintiffs filed an amended complaint in
this Court. In the amended complaint, plaintiffs allege four
claims against defendant Mannal for 1) violation of 42 U.S.C.
§ 1983 (Count III), 2) damages under 42 U.S.C. §
1988 (Count IV), 3) violation of M.G.L. c. 231, § 59H
(Count V) and 4) abuse of process (Count VI). Plaintiffs also
assert two claims against defendant Healey for 1) violation
of 42 U.S.C. § 1983 (Count II) and 2) damages under 42
U.S.C. § 1988 (Count IV). Finally, plaintiffs seek a
declaratory judgment that M.G.L. c. 56, § 42 is
unconstitutional (Count I). Now pending before the Court are
the separate motions of the defendants to dismiss and
defendant Mannal's motion for attorney's fees and
Defendant Mannal's Motion to Dismiss and Motion for
Attorney's Fees and Costs
Mannal moves to dismiss plaintiffs' claims against him
pursuant to the Massachusetts “anti-SLAPP”
(Strategic Lawsuit Against Public Participation) statute,
M.G.L. c. 231, § 59H (“§ 59H”).
Defendant also requests attorney's fees and costs should
the Court allow the motion.
59H allows civil defendants to resolve expeditiously lawsuits
“designed to deter or retaliate against individuals who
seek to exercise their right of petition.”
Keegan v. Pellerin, 920 N.E.2d
888, 891 (Mass. App. Ct. 2010).
has provided a two-step process for special motions to
dismiss brought under § 59H. First, the moving party
must make a showing that the claim of the non-moving party is
based on the movant's protected petitioning activities
and has no other substantial basis. Bargantine
v. Mechs. Coop. Bank, Docket No. 13-11132,
2013 WL 6211845, at *2 (D. Mass. Nov. 26, 2013). If the
moving party makes such a showing, the burden shifts to the
non-moving party to establish by a preponderance of the
evidence that the “petitioning activities lacked any
reasonable factual support or any arguable basis in
law.” Id. (quoting Fustolou
v. Hollander, 920 N.E.2d 837, 840 (Mass.
2010)). The Court may consider pleadings and affidavits
without making inferences in favor of the non-moving party.
Id. (citing M.G.L. c. 231, § 59H).