A SLAPP In The Face: In Re Hamm And The Applicability Of Massachusetts’ Anti-SLAPP Statute To Probate Court Proceedings

Issue January/February 2022 February 2022 By Francis R. Mulé
Probate Law Section Review
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Francis R. Mulé

How do we, as a society, balance providing open access to the court system to redress violations of individual rights while at the same time implementing rules and standards to prevent the abuse of that system in order to punish the exercise of such rights and chill their exercise in the future? That question is at the heart of state anti-SLAPP statutes, which seek to curb the use of so-called “strategic litigation against public participation (SLAPP).” As the Massachusetts Supreme Judicial Court (SJC) explained in Blanchard v. Steward Carney Hospital (477 Mass. 141), a SLAPP suit is a lawsuit brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and/or petition for the redress of grievances. The motivation behind a typical SLAPP suit is not necessarily to win on the merits, but rather to cause the defendants to spend (often considerable) time and money defending against the claims, thereby causing them and others like them to think twice about engaging in such activities in the future.

In response to concerns about the use of SLAPP suits to chill otherwise protected speech, states began passing “anti-SLAPP” statutes to provide a special, expedited procedure for defendants to attack alleged SLAPP actions, usually in the form of a special motion to dismiss (known colloquially as an “anti-SLAPP motion”). Massachusetts’ anti-SLAPP statute (G.L. c. 231, § 59H), for instance, stays all discovery proceedings upon the filing of an anti-SLAPP motion and requires the motion to be heard and decided as expeditiously as possible. As is commonly provided in anti-SLAPP statutes, a successful anti-SLAPP motion in Massachusetts requires the court to award costs and attorney’s fees to the moving party.

As you might imagine, the consequences of losing an anti-SLAPP motion mean that the opposing party will often contest it vigorously. One area of frequent contestation is whether the anti-SLAPP statute even applies in the first place, either because the moving party’s activity is outside the scope of the activity covered by the statute or because the underlying action is outside the scope of the statute.

The SJC recently weighed in on an argument over the latter, holding in In re Hamm (487 Mass. 394) that Massachusetts’ anti-SLAPP statute does not apply to an objection to a conservator’s final account. In Hamm, a conservator filed final accounts for all 17 years of their conservatorship, to which the protected person filed an objection. In response, the conservator filed both a motion to dismiss or strike the objection and an anti-SLAPP motion. Both motions were denied on their merits by the Probate and Family Court, appealed by the conservator, and ultimately heard by the SJC after the protected person filed for direct appellate review.

The SJC, rather than denying the anti-SLAPP motion on the merits, determined that the anti-SLAPP statute simply does not apply to an objection to a conservator’s account because such an objection does not constitute a claim, counterclaim or cross claim under the statute. In its decision, the SJC relied on its own precedent, Duracraft v. Holmes Products (427 Mass. 156), where it held that the anti-SLAPP statute only applies to SLAPP suits and not to suits arising in “wholly different circumstances.” Here, the SJC determined that there was a fundamental difference between the types of actions that led the legislature to enact the anti-SLAPP statute and an accounting in a conservatorship on the grounds that a conservatorship involves a fiduciary relationship between the conservator and the protected person and a statutory duty by the conservator to provide an accurate accounting to the protected person.

If the purpose of anti-SLAPP statutes is to balance the need to be able to access the court system with the need to prevent the abuse of that system, In re Hamm sends a signal that the SJC is not going to allow Massachusetts’ anti-SLAPP statute to be used to prevent protected persons from objecting to the actions of those with a duty to act in their best interests. 

Francis R. Mulé is an associate attorney with the Dedham firm of Samuel, Sayward & Baler LLC, which focuses on advising its clients in the areas of estate planning, estate settlement and elder law matters. He is an active member, and the current chair-elect, of the Massachusetts Bar Association’s Young Lawyers Division, a member of the Massachusetts Bar Association’s Probate Law Section Council, and a member of the Massachusetts LGBTQ Bar Association.