To bring readers up to date regarding the legal consequences of the lawsuit brought last fall by Sandisfield residents Ralph Morrison and Rico Sanchez against the Select Board and others, The Times asked Attorney Steven Nonkes to explain where the lawsuit stood at Berkshire County Superior Court and the meaning of the Anti-SLAPP statute, which one of the defendant's claimed in defense.

Attorney Nonkes, of the firm Harris Beach Murtha, is the legal representative for defendant Carl Nett.

Those who have been following the news surrounding the Sandisfield Fire Department, Inc. (SFDI) and its relationship with the Town of Sandisfield may be aware of the lawsuit that Town residents Ralph Morrison and Ricardo Sanchez filed last August against Fire Chief Mike Grillo, the three Sandisfield Selectmen, and resident Dr. Carl Nett. While both Morrison and Sanchez are members of SFDI, they filed the suit on their own behalf.

The lawsuit centers on a recording of a conversation between Morrison and Sanchez. The complaint alleges that Chief Grillo violated the Massachusetts wiretapping statute by playing that recording at a Select Board meeting last July, and that the Selectmen violated the law by allowing Chief Grillo to play it. The complaint also alleges that they violated Morrison and Sanchez's right to privacy and their civil rights. Against Dr. Nett, it claims that he violated the wiretapping statute and their right to privacy by posting a "transcript" of that recording to the Connect Sandisfield Facebook group.

Dr. Nett filed a "special motion to dismiss" the complaint against him under the Massachusetts Anti-SLAPP statute.

SLAPP refers to a Strategic Lawsuit Against Public Participation, a lawsuit designed to prevent or punish someone for exercising their First Amendment freedom of speech. Because defending a lawsuit can be expensive and time-consuming, merely the threat of litigation can be enough to intimidate someone into silence.

Anti-SLAPP statutes are designed to combat the use of litigation to silence opponents. The Massachusetts Anti-SLAPP statute is unusual because, rather than free speech generally, it explicitly protects "petitioning" activities. Protected petitioning is defined in the statute to include statements to government bodies, "any statement reasonably likely to encourage consideration or review of an issue" by a government body, and "any statement reasonably likely to enlist public participation in an effort to effect such consideration" by the government.

Dr. Nett's special motion to dismiss pointed out his history of advocacy in Sandisfield, the recent public debate about SFDI's role, Dr. Nett's advocacy in that debate, and that the specific document that he had posted to Connect Sandisfield was an "Official Public Release" from the Sandisfield Fire Department. Both Dr. Nett and the Town defendants also moved to dismiss the lawsuit on other grounds.

On February 5, the Superior Court issued a decision that dismissed all claims against Dr. Nett. Superior Court Justice David Hodge determined that, in light of Dr. Nett's history of civic engagement, "It is no great stretch for the court to conclude that Nett's post was 'reasonably likely' to encourage the Board to review and (re)consider the degree of influence SFDI - Morrison's company - had on the Department, and/or 'reasonably likely to enlist public participation in an effort to effect such consideration.'"

As for the Town defendants, the Court did not dismiss the wiretapping and civil rights claims at this point. The Court found that Morrison and Sanchez's allegations were enough to make an illegal "interception" of their conversation by use of an "intercepting device" to be a possible interpretation from the facts they alleged.

But the Court also pointed out that it was not a "necessary inference," and that it was obligated to give the plaintiffs the benefit of the doubt because of the early stage of the case. The Court specifically contemplated further motions "if and when there is sufficient evidence to prove how the recording was made." The Court indicated that the claims could be subject to a later motion for summary judgment, which would allow the Court to consider undisputed facts and testimony about the origin of the recording, and could result in dismissal without need for a full trial.

Dr. Nett's victory highlights the importance of Anti-SLAPP protections. Because he was engaged in protected petitioning, the claims against him were dismissed early on. While the Town defendants may well achieve a similar result, they will have to first go through the "discovery" process, exchanging written information with the plaintiffs and depositions of witnesses; that process takes time and money. In this case, the Anti-SLAPP statute worked as intended and shielded an active citizen from those burdens.

Those who would like to see the decision can find it on the Massachusetts Courts website, www.masscourts. org, under the public records for the Superior Court, Berkshire County, and searching for one litigant's name.

Opinions in Out on a Limb articles are those of the authors and do not represent The Sandisfield Times.

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