O'Gara v. St. Germain

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
15-P-1711 Appeals Court
KEVIN E. O'GARA vs. DORENE ST. GERMAIN.
No. 15-P-1711.
Plymouth. September 12, 2016. - May 11, 2017.
Present: Agnes, Neyman, & Henry, JJ.
"Anti-SLAPP" Statute. Practice, Civil, Motion to dismiss.
Civil action commenced in the Superior Court Department on
March 26, 2015.
A special motion to dismiss was heard by Christopher J.
Muse, J.
Sarah J. Long for the defendant.
Gregory N. Jonsson for the plaintiff.
AGNES, J. This case requires us to apply the "anti-SLAPP"
statute, G. L. c. 231, § 59H, to a civil lawsuit filed against
the protected party under a domestic violence restraining order.
The defendant, Dorene St. Germain, the protected party, reported
to the police her concern that her former husband, the
plaintiff, Kevin E. O'Gara, violated the no-contact provision of
2
the order by mailing documents to her. The police investigated
the complaint and arrested O'Gara. Even though the criminal
charges against O'Gara were dismissed, we conclude that St.
Germain's conduct in reporting her concern to the police was
petitioning activity under the anti-SLAPP statute and, in the
circumstances of this case, the retaliatory civil suit filed
against her was based entirely on her petitioning activity and
therefore should have been dismissed.
St. Germain obtained a permanent restraining order that
barred O'Gara from contacting her, except to notify her of
"court proceedings . . . by mail, or by sheriff, or other
authorized officer when required by statute or rule."1
St. Germain obtained the initial protective order in 1997,
several years after her divorce from O'Gara. Thereafter, O'Gara
sought unsuccessfully on several occasions to have the
protective order modified or vacated.
On April 1, 2014, St. Germain reported to the police that
O'Gara contacted her by mail in violation of the permanent
order. The New Bedford police department assigned Officer
Randal Barker to investigate the matter. Later that day, as a
1
This language appears in section A(2) of the printed form
used to memorialize G. L. c. 209A orders. Under G. L. c. 209A,
§ 9, responsibility for the design of the standard form of the
protective order is assigned to "the administrative justices of
the superior court, probate and family court, district and the
Boston municipal court departments."
3
result of his investigation, O'Gara was arrested and charged
with a criminal violation of the abuse prevention order. That
charge was later dismissed on the ground that there was
insufficient evidence to prove that O'Gara violated the order.2
O'Gara, in turn, filed this civil lawsuit against St. Germain
alleging that she caused Officer Barker to arrest him without
probable cause.3 St. Germain responded by filing a special
motion to dismiss under G. L. c. 231, § 59H, asserting that the
lawsuit was based entirely on her protected petitioning
activity. A judge of the Superior Court denied the motion.
Background. The essential facts are not in dispute.4 On
June 11, 1997, the New Bedford division of the Probate and
2
The record before us does not contain the papers in that
criminal case, but St. Germain does not dispute O'Gara's
characterization of the reason for the dismissal of the criminal
charges and we assume it is accurate.
3
O'Gara's civil suit against St. Germain alleges (1) breach
of contract, based on a marital separation agreement that
survived the judgment of divorce in which the parties promised
not to harass or molest each other, (2) abuse of process, (3)
malicious prosecution, (4) intentional interference with
business relations, and (5) intentional infliction of emotional
distress all allegedly resulting from his unlawful arrest.
4
The judge had before him St. Germain's affidavit, Officer
Barker's written narrative, O'Gara's verified civil complaint
and memoranda of law, and other papers filed by counsel. The
judge did not rule on whether St. Germain met her initial,
threshold burden under G. L. c. 231, § 59H. The proper
resolution of a § 59H motion does not necessarily require
judicial fact finding. Instead, as we explain in the text
infra, if the moving party meets her threshold burden of
demonstrating that the lawsuit against her is based solely on
4
Family Court issued a G. L. c. 209A abuse prevention order on
behalf of St. Germain, directing O'Gara not to contact her
except for "[n]otification of court proceedings -- by mail, or
by sheriff or other authorized officer when required by statute
or rule."5 The c. 209A order contained the warning required by
statute; namely, "VIOLATION OF THIS ORDER IS A CRIMINAL OFFENSE
punishable by imprisonment or fine or both." See G. L. c. 209A,
§ 7.
Subsequent to St. Germain's order becoming permanent,
O'Gara filed a number of unsuccessful motions to vacate the
order. In each instance, the papers sent by O'Gara to St.
Germain bore a stamp indicating that they had been filed first
with the registrar's office of the Probate and Family Court. On
March 28 and 29, 2014, St. Germain received letters at her
parents' home in New Bedford, an address covered by the
permanent restraining order. One of the envelopes contained a
her petitioning activity, as in this case, the party opposed to
the motion must demonstrate that a reasonable person could not
conclude that the moving party's conduct had a basis "in fact or
law." At this second stage of the analysis by the judge,
factual disputes are not necessarily resolved. Instead, on the
basis of the evidence before the court, the judge must determine
if there is any reasonable factual support or arguable basis in
law for the moving party's petitioning activity. If the answer
is yes, the motion must be allowed. Keegan v. Pellerin, 76
Mass. App. Ct. 186, 190 (2010).
5
In February, 2001, the Probate and Family Court made the
order a permanent order upon its finding that "anything less
than permanent is unwarranted by the facts."
5
handwritten motion on a preprinted Probate and Family Court
form, dated February 23, 2014, and signed by O'Gara, who at the
time was self-represented, again asking the Probate and Family
Court to vacate the permanent abuse prevention order and to turn
over statements and hospital records filed by St. Germain in
support of her request for a permanent restraining order. The
motion form also included handwriting indicating that it was
scheduled to be heard by the court sitting in Taunton on April
7, 2014. There was a second page in the envelope, which was a
handwritten certificate of service signed by O'Gara, also on a
preprinted Probate and Family Court form, dated March 28, 2014.
Neither the motion nor the certificate bear a court stamp or
court seal, or any indication that they had actually been filed
in the Probate and Family Court. A copy of this pleading is
part of the record on appeal.6
St. Germain did not simply assume that the papers mailed to
her by O'Gara were not genuine documents in a court proceeding.
Instead, on the following business day, St. Germain called the
Probate and Family Court and spoke to an unidentified person.
In her affidavit filed in support of her motion to dismiss, St.
Germain stated that she was informed "by the clerk that there
was no record whatsoever of the unstamped documents I had
6
There was also a second envelope that contained a second
motion to vacate a G. L. c. 258E harassment order that had been
obtained by the parties' daughter against O'Gara.
6
received." St. Germain next contacted the New Bedford police
department and reported that O'Gara mailed "unstamped" documents
to her and that she was "concerned" that he had "violated his
restraining order." Officer Randal Barker was assigned to the
case and met with St. Germain at her parents' home. Officer
Barker inspected and obtained copies of the documents mailed to
St. Germain by O'Gara. Officer Barker conducted his own
investigation. In his written police narrative, he stated that
he contacted the Probate and Family Court and learned that "the
motions in question were not logged in the courts and do not
exist."7 Officer Barker then made arrangements with another
local police department to arrest the defendant for violating
the permanent restraining order. O'Gara was arrested without
7
In his police report, Officer Barker stated that St.
Germain told him that she was informed by the Probate and Family
Court "that the motions did not exist and were falsified."
O'Gara attaches significance to the differences between St.
Germain's account of what she was told by someone at the Probate
and Family Court, which is set forth in her affidavit, and the
account of what she was told that is set forth in Officer
Barker's police report. The parties do not dispute that St.
Germain and Officer Barker were told by someone at the Probate
and Family Court, prior to O'Gara's arrest, that the motions he
mailed to St. Germain had not been filed in court. For the
reasons we discuss in the text infra, whether St. Germain was
informed that the papers mailed to her by O'Gara were falsified
or not, is not material to the outcome of this case.
7
incident during the daytime at his place of business and brought
to the New Bedford police department for booking.8
From the outset, O'Gara told the police that "he sent those
letters to the victim by the authority of the court." O'Gara
was charged in the District Court with violating a c. 209A
order. The charges were later dismissed by a judge who
determined that the evidence to support them was insufficient.
Following the dismissal of the criminal charges, O'Gara filed
this lawsuit against St. Germain, seeking damages. In turn,
relying on § 59H, St. Germain filed a special motion to dismiss,
asserting that O'Gara's claims were based solely on her
legitimate petitioning activity, namely, her communications with
the police reporting her belief that O'Gara violated the
permanent abuse prevention order.
At the hearing on St. Germain's special motion to dismiss,
additional facts emerged. It appears that prior to mailing the
documents to St. Germain, O'Gara telephoned a court service that
provides lawyers and parties with available dates for the
hearing of motions so that proper notice can be given to the
8
"With the enactment of G. L. c. 209A, § 6(7), the
Legislature expanded the authority of the police to make
warrantless arrests for certain misdemeanors in the context of
domestic abuse." Commonwealth v. Jacobsen, 419 Mass. 269, 272
(1995). Violation of a permanent G. L. c. 209A no contact order
is a misdemeanor in this Commonwealth punishable by a fine or a
sentence served in the house of correction (or both). See G. L.
c. 209A, § 7 par. 5. See also Richardson v. Boston, 53 Mass.
App. Ct. 201, 203 & n.7 (2001).
8
other side, and learned that April 7, 2014, was an available
date. Furthermore, it appears that O'Gara mailed the papers in
question to the Probate and Family Court contemporaneously with
mailing them to St. Germain, but the papers were misplaced by
court personnel and not docketed by the registrar's office until
after St. Germain and Officer Barker telephoned the court to
verify that they existed and subsequent to O'Gara's arrest.
Discussion. 1. The legal framework governing the special
motion to dismiss. General Laws c. 231, § 59H, provides a
remedy for persons who find themselves targeted by a lawsuit
based on their petitioning activity. See Duracraft Corp. v.
Holmes Prods., Corp., 427 Mass. 156, 161 (1998) (Duracraft);
Cardno Chemrisk, LLC v. Foytlin, 476 Mass. 479, 483-484 (2017)
(Chemrisk).9 The remedy provided by § 59H was designed to be
inexpensive and quick, in the sense that the motion was designed
to be heard before discovery is completed. See id. at 484. A
§ 59H special motion to dismiss must be filed within sixty days
of service of the complaint. G. L. c. 231, § 59H fourth par.
Upon a party's filing a § 59 special motion, the court "shall
9
In the preamble to 1994 House Doc. No. 1520, the
Legislature left no doubt of its purpose, stating, in relevant
part, that the "full participation by persons and organizations
and robust discussion of issues before legislative, judicial and
administrative bodies and in other public fora are essential to
the democratic process [and] that there has been a disturbing
increase in lawsuits brought primarily to chill the valid
exercise of the constitutional rights of freedom of speech and
petition for the redress of grievances." Duracraft, supra.
9
advance any such motion so that it may be heard and determined
as expeditiously as possible." Section 59H first par. The
result is that § 59H motions are to be decided at the very early
stages of a case and on the basis of a documentary record
comprised of the pleadings and any affidavits, "stating the
facts upon which the liability or defense is based." Ibid.
a. Definition of petitioning. As the Supreme Judicial
Court recently explained, § 59H's definition of petitioning is
"very broad," Chemrisk, supra at 484, shielding those who
exercise their constitutional right to seek redress from the
government for wrongs done to them or grievances that they
suffered as citizens from retaliatory civil lawsuits. See
Kobrin v. Gastfriend, 443 Mass. 327, 332-333 (2005) (Kobrin).10
The shield established by § 59H has been described as "similar
in purpose to the protections afforded public officials by the
10
Petitioning under G. L. c. 231, § 59H sixth par., means:
"[1] any written or oral statement made before or submitted
to a legislative, executive or judicial body, or other
governmental proceeding; [2] any written or oral statement
made in connection with an issue under consideration or
review by a legislative, executive or judicial body, or any
other governmental proceeding; [3] any statement reasonably
likely to encourage consideration or review of an issue by
a legislative, executive, or judicial body or any other
governmental proceeding; [4] any statement reasonably
likely to enlist public participation in an effort to
effect such consideration; or [5] any other statement
falling within constitutional protection of the right to
petition government."
10
doctrine of governmental immunity." Fabre v. Walton, 436 Mass.
517, 523 (2002) (Fabre).
The right of petition extends to all branches and
departments of the government, at any level, Federal or State.
See California Motor Transport Co. v. Trucking Unlimited, 404
U.S. 508, 510 (1972). Furthermore, § 59H covers petitioning
activity regardless of whether it concerns a public or purely
private matter. See McLarnon v. Jokisch, 431 Mass. 343, 347
(2000) (McLarnon).
b. Legal standard. In Chemrisk, supra at 484-485, the
court reviewed the two-stage framework and shifting burdens that
come into play in ruling on a § 59H motion. See Duracraft supra
at 167-168; Benoit v. Frederickson, 454 Mass. 148, 153 (2009)
(Benoit).
i. Movant's burden. First, the moving party, St. Germain,
has the burden to demonstrate that the claims against her are
"based on [her] petitioning activit[y] alone and have no
substantial basis other than or in addition to the petitioning
activit[y]." McLarnon supra at 348, quoting from Duracraft,
supra. The statute is designed to protect expression "in which
a party seeks some redress from the government." Kobrin, supra
at 333. If the moving party fails to do so, the motion must be
denied. Ibid.
11
ii. Opposing party's burden. If, however, the movant, St.
Germain, meets her threshold burden, the burden shifts to the
opposing party, O'Gara, to show, by a preponderance of the
evidence,11 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." Section 59H 1st par.
If the opponent fails to make the requisite showing, the court
"shall" allow the § 59H motion. Ibid.
2. Judge's ruling. In denying the § 59H motion, the judge
did not follow the two-stage framework set forth in § 59H and
determine whether St. Germain met her threshold burden to
demonstrate that O'Gara's lawsuit was based exclusively on her
petitioning activity. Instead, the judge reasoned that "[a]t
this stage of discovery, and based on the sparse statements of
facts, the court must conclude that the arrest, jailing and
ultimately wrongful prosecution of [O'Gara] was based on a
credible claim of injury caused by [St. Germain], and therefore
not based entirely upon [St. Germain's] protected petitioning
activity." We review the judge's ruling for an error of law or
11
The preponderance of the evidence standard has been
defined as the quantum of evidence that makes a certain
proposition "appear more likely or probable in the sense that
actual belief in its truth, derived from the evidence, exists in
the mind or minds of the tribunal notwithstanding any doubts
that may still linger there." Sargent v. Massachusetts Acc.
Co., 307 Mass. 246, 250 (1940).
12
an abuse of discretion. See Marabello v. Boston Bark Corp., 463
Mass. 394, 397 (2012).
3. Application of the legal framework to the facts. In
ruling on a § 59H motion, the judge's role is not to decide
whether the opponent's pleading -- i.e., the complaint, cross
claim or counterclaim -- plausibly suggests an entitlement to
relief so as to withstand a motion to dismiss under
Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974).12 Rather, the
judge's focus must be solely on "the conduct complained of, and,
if the only conduct complained of is petitioning activity, then
there can be no other 'substantial basis' for the claim."
Office One, Inc. v. Lopez, 437 Mass. 113, 122 (2002) (Lopez),
quoting from Fabre, 436 Mass. at 524.
a. Stage one. The first question that must be addressed
is whether St. Germain engaged exclusively in petitioning
activity. In this case, neither party requested further
discovery on the anti-SLAPP motion. See Keegan v. Pellerin, 76
Mass. App. Ct.186, 190 (2010) (Keegan). While we agree with the
judge that St. Germain's § 59H motion was filed at a very early
stage in the case and the factual record is limited, we do not
agree that further discovery was necessary before a ruling could
be made on the motion. The anti-SLAPP statute was designed to
12
See Iannacchino v. Ford Motor Co., 451 Mass. 623, 635
(2008).
13
provide a prompt and inexpensive remedy in all cases in which it
is properly invoked. Duracraft, 427 at 161.
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. See Keegan, supra
(alerting police of suspected crime is conduct that is "firmly
protected" by § 59H).13 See also Wenger v. Aceto, 451 Mass. 1,
5-6 (2008) (Wenger) (filing criminal complaint is protected
petitioning activity); Benoit, 454 Mass. at 153 (report of rape
to police is petitioning activity); McLarnon, 431 Mass. at 347
(request made of court to issue c. 209A protection order is
exercise of petition right); Fabre, 436 Mass. at 523 (same).14
The question is not whether St. Germain was motivated by
hostility toward O'Gara. An inquiry into the moving party's
state of mind or motive is not a part of § 59H's threshold
13
Here, as in Keegan, supra, O'Gara does not allege that
St. Germain spoke about the matter to anyone other than police.
Contrast Burley v. Comets Community Youth Center, Inc., 75 Mass.
App. Ct. 818, 821–824 (2009).
14
This is the predominant view throughout the United
States. See, e.g., Gable v. Lewis, 201 F.3d 769, 771 (6th Cir.
2000) (submission of complaint and criticisms to police
department is protected petitioning activity under First
Amendment); United States v. Hylton, 558 F.Supp. 872, 874 (S.D.
Tex 1982) (same); Estate of Morris v. Dapolito, 297 F.Supp.2d
680, 692 (S.D. N.Y. 2004) (verified criminal complaint is
petitioning under First Amendment); Curry v. State, 811 So. 2d
736, 743 (Fla. Dist. Ct. App. 2000) (same); Arim v. General
Motors Corp., 200 Mich. App. 178, 191 (Mich. App. 1994)
(assistance and cooperation with law enforcement operation was
protected petitioning under First Amendment).
14
inquiry. See Lopez, supra at 122 ("motive behind the
petitioning activity is irrelevant at this initial stage");
Hanover v. New England Regional Council of Carpenters, 467 Mass.
587, 590 n.6 (2014) (Hanover); Polay v. McMahon, 468 Mass. 379,
386 (2014).15 It suffices to say that "[w]e care not whether a
[party] seeking dismissal under the anti-SLAPP statute is
'sincere' in his or her statements; rather, our only concern, as
required by the statute, is that the [moving party] be truly
'petitioning' the government in the constitutional sense."
Kobrin, 443 Mass. at 338 n.14.16 Furthermore, an examination of
O'Gara's civil lawsuit reveals that, despite the fact that he
alleged multiple causes of action and harm to him personally and
15
This is consistent with United States Supreme Court
precedent. In Eastern R.R. Presidents Conference v. Noerr Motor
Freight, Inc., 365 U.S. 127, 139 (1961), the Court observed that
"[t]he right of the people to inform their representatives in
government of their desires with respect to the passage or
enforcement of laws cannot properly be made to depend upon their
intent in doing so."
16
A person does not have a right, however, to make a false
report to a police officer. General Laws c. 269, § 13A, makes
it a crime to "intentionally and knowingly make[ ] or cause[ ]
to be made a false report of a crime to police officers." In
order to be prosecuted under § 13A, "the defendant has to have
made a substantially inaccurate accounting of a crime, not just
have reported some untrue detail related to it." Commonwealth
v. Fortuna, 80 Mass. App. Ct. 45, 52 (2011). To convict a
person under § 13A, the Commonwealth must prove that the person
knew the report she was making was false. Commonwealth v.
Salyer, 84 Mass. App. Ct. 346, 353 (2013). We express no
opinion on the analysis that would apply to a special motion to
dismiss under § 59H in response to a civil lawsuit alleging that
the defendant made a knowingly false report to the police.
15
professionally, his allegations all stem from St. Germain's
petitioning activity.
b. Stage two. Because St. Germain met her initial
threshold burden, the judge should have moved on to stage two of
the § 59H framework and determined whether O'Gara met his burden
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. North Am.
Expositions Co. Ltd. Partnership v. Corcoran, 452 Mass. 852,
865–866 (2009).
O'Gara does not deny that St. Germain and Officer Barker
made telephone inquiries to the Probate and Family Court and
were told by someone that there was no record of O'Gara's motion
on file. In an effort to meet his responsive burden of proof at
the second stage of the inquiry required by § 59H, O'Gara
maintains that St. Germain's report to the police was false,
because no one at the Probate and Family Court told her that the
papers mailed by O'Gara were falsified, and because the
permanent abuse prevention order did not expressly require that
notifications of court proceedings mailed to St. Germain must
contain the court stamp indicating that they first had been
filed with the registrar's office.
The core of O'Gara's argument in opposition to St.
Germain's § 59H motion was that as a result of her "falsely and
16
maliciously" reporting to the police that O'Gara violated the
abuse prevention order, he was arrested without probable cause.
He alleged that this caused damage to him personally and to his
business interests because he was arrested at work. He also
alleged that St. Germain was motivated by a desire to cause him
injury. Such an inference could be drawn (in his view) from the
content of St. Germain's statements, which he alleged were
"calculated to inflict criminal liability." In short, O'Gara
maintains that this was an instance of "sham" petitioning,
insofar as St. Germain informed the police of a violation of
c. 209A when allegedly "she knew from the express provisions of
the [o]rder itself that there was no violation."17
This argument fails to meet its mark for several reasons.
In terms of whether St. Germain had a reasonable basis in law
for her petitioning activity, the question is not whether the
permanent restraining order required O'Gara to have his motions
stamped as received by the registrar's office of the Probate and
Family Court before putting them in the mail to St. Germain. It
17
O'Gara complains that St. Germain wrongfully (a)
suggested to Officer Barker that "the absence of a [c]ourt stamp
on the [two motions mailed to her] was a violation of the
[p]ermanent [o]rder when there was no such legal requirement,"
(b) "misrepresent[ed] to the officer that [O'Gara's] motion was
'falsified'" even though that was not the case; and (c)
bolstered her police statement by falsely representing that "a
nonpetitioning third party's anti[h]arassment [o]rder had been
violated" by him.
17
did not.18 However, as long as a reasonable person could
conclude there was a legal basis for the petitioning activity,
the party opposing the motion to dismiss has failed to meet his
legal burden to demonstrate that the petitioning activity lacked
any basis in law. See Wenger, 451 Mass. at 7. See also Baker
v. Parsons, 453 Mass. 543, 555 n. 20 (2001). Here, St. Germaine
was wholly within her rights to protect herself by questioning
18
The chain of events we describe exposes a risk for those
who are bound by a restraining order that includes a no contact
provision, and who attempt to serve the protected party with
process in the case by mailing. As we noted earlier in the
text, unless a judge orders otherwise, G. L. c. 209A permits a
party who is not permitted to contact the protected party to
serve the protected party with a motion in the case by mail.
There is no express requirement in such a case that the party
making service first file his pleading with the court and then,
and only then, mail a stamped or endorsed copy of the pleading
to the protected party. What is currently required, as printed
on the standard form used for G. L. c. 209A orders, is that the
mailing to the protected party must be a notice of a court
proceeding. This certainly suggests that the party making
service of a pleading must first contact the court which issued
the protective order before mailing anything to the protected
party. However, as the facts in this case illustrate, obtaining
a date from the court for a hearing on a motion and then mailing
the motion papers to the protected party and mailing or
delivering them to the court may not ensure that the protected
party and the police will be aware that a court proceeding is
pending and that the mailing is not in violation of the no
contact provision of the protective order. Since this issue
could arise in any department that issues protective orders, the
Chief Justice of the Trial Court may wish to consider whether a
procedure should be established to ensure that a protected party
and the police can differentiate between a mailing that is a
genuine notice of a court proceeding and one that is not.
It should be noted that, after the events that are the
subject of this appeal, the court ordered O'Gara to obtain court
approval before serving any motions or pleadings on St. Germain.
18
whether the papers O'Gara sent, which did not contain a court
stamp,19 were authentic notices of "court proceedings" as that
phrase appears in the text of the permanent restraining order.
Thus, whether St. Germain was informed by court personnel that
the documents mailed to her had been falsified, is beside the
point.
Even if we assume, as O'Gara alleges in his complaint, that
St. Germain was not told that the papers O'Gara mailed to her
were falsified, the independent investigation conducted by
Officer Barker, who did contact the Probate and Family Court,
makes clear that there was a factual basis for St. Germain's
belief that O'Gara violated the permanent restraining order by
mailing her documents other than those that are a notification
of court proceedings. Officer Barker also was informed that the
papers mailed to St. Germain "were not logged in the courts and
do not exist." As O'Gara's counsel rightly conceded at
argument, what the police learned from the Probate and Family
Court "more or less" confirmed what St. Germain supposedly told
the police. The fact that the parties and the police later
discovered that O'Gara's motion had been misplaced and had not
19
St. Germain's allegation that the lack of a court-stamp
was a break from O'Gara's past practice only heightens her
question but it is not a requirement.
19
been docketed at the time Officer Barker called the Probate and
Family Court, again, is beside the point.20
Conclusion. The evidence in the record before us indicates
that St. Germain had a legitimate basis for her concern that the
protective order had been violated, and a right to ask the
police for assistance. The police response, in turn, was
21
prompt, and deliberate. Because O'Gara's lawsuit was based
entirely on St. Germain's petitioning activity, her [s]pecial
[m]otion to dismiss under G. L. c. 231, § 59H, should have been
allowed. Therefore, the order denying the [s]pecial [m]otion to
dismiss is reversed , and the case is remanded for the entry of
a new order dismissing O'Gara's complaint, which shall include
an award of reasonable attorney's fees and costs pursuant to
20
For these reasons, even though the judge did not
undertake the two-stage analysis required by § 59H, we believe
this case is like Chemrisk, in that "only one conclusion is
possible on this record." Chemrisk, 476 Mass. at 489 n.15.
21
The parties in this case both refer to G. L. c. 209A,
§ 6(7), which provides, in part, that a police officer "shall
. . . arrest any person a law officer witnesses or has probable
cause to believe has violated a temporary or permanent vacate,
restraining, or no-contact order." It is sufficient for us to
note that probable cause has been defined as "a relatively low
threshold 'requiring only sufficiently trustworthy information
to instill in a reasonable person the requisite belief of
criminality.'" Young v. Boston University, 64 Mass. App. Ct.
586, 589 (2005), quoting from Richardson v. Boston, 53 Mass.
App. Ct. 201, 206 (2001). See Commonwealth v. Santaliz, 413
Mass. 238, 241 (1992).
20
G. L. c. 231, § 59H.22 In her brief on appeal, St. Germain
requests an award of appellate attorney's fees and costs. She
is entitled to such an award pursuant to § 59H. See McLarnon,
431 Mass. at 343, 350; Benoit, 454 Mass. at 154. Within
fourteen days of issuance of the rescript in this matter, St.
Germain may file with the clerk of the Appeals Court, for the
consideration of the panel who decided this appeal, appropriate
written documentation supporting her request for an award of
appellate attorney's fees and costs, as discussed in Fabre, 441
Mass. at 10–11. O'Gara, in turn, may file a written opposition
to that request within fourteen days thereafter.
So ordered.
22
See MacDonald v. Paton, 57 Mass. App. Ct. 290, 296 (2003)
("[O]nce a court grants a special motion to dismiss," under
G. L. c. 231, § 59H, "the moving party is awarded costs and
reasonable attorney's fees").