Edwards v. Commonwealth , 477 Mass. 254 ( 2017 )

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SJC-12175
SAUNDRA R. EDWARDS vs. COMMONWEALTH & another.1
Essex. February 6, 2017. - June 8, 2017.
Present: Gants, C.J., Lenk, Hines, Gaziano, & Lowy, JJ.
Governor. Privileged Communication. Evidence, Privileged
communication. Libel and Slander.
Civil action commenced in the Superior Court Department on
December 31, 2014.
Motions to dismiss were heard by Richard E. Welch, III, J.
The Supreme Judicial Court granted an application for
direct appellate review.
Michael J. Pineault for Deval Patrick.
William H. Sheehan, III (Thomas J. Flannagan also present)
for the plaintiff.
GAZIANO, J. On September 16, 2014, then Governor Deval
Patrick removed Saundra R. Edwards from her position as chair of
the Sex Offender Registry Board (SORB). A few days later, in
response to media inquiries about Edwards's abrupt departure,
1
Deval Patrick.
2
Patrick explained that, among other reasons, he had decided to
replace Edwards because she inappropriately had attempted to
pressure a SORB hearing officer to change the outcome of one of
his decisions on an offender's classification level. In
subsequent comments to the media, after Edwards had filed an
action for defamation and wrongful termination in the Superior
Court, Patrick repeated his explanation that he had decided to
remove Edwards from office because she had interfered with the
independence of a SORB hearing officer. Edwards filed an
amended complaint, asserting a wrongful termination claim
against the Commonwealth, and two defamation claims against
Patrick, individually, one for each of the two statements.
Patrick moved pursuant to Mass. R. Civ. P. 12 (b) (6), 365
Mass. 754 (1974), to dismiss Edwards’s amended complaint on two
grounds. He argued that the court should conclude, consistent
with Federal law and with a number of other jurisdictions, that
he, as governor, had an absolute privilege for statements made
in the course of his official duties. In the alternative,
Patrick argued that he had a qualified privilege, because the
statements were made while acting within the scope of his
official duties concerning Edwards's status as a public
official, and that the allegations in the amended complaint were
not sufficient to overcome that privilege. Because, Patrick
maintained, the amended complaint contained only bare conclusory
3
assertions of actual malice without allegations of facts
sufficient to support those assertions beyond the level of mere
speculation, the complaint did not meet the pleading
requirements for a defamation claim under Iannacchino v. Ford
Motor Co., 451 Mass. 623, 636 (2008). A Superior Court judge
denied Patrick's motion to dismiss the defamation claims, and
denied the Commonwealth's motion to dismiss the wrongful
termination claim. Patrick appealed from the denial of his
motion, and both defendants sought a stay in the Superior Court
pending the resolution of that appeal. We allowed Patrick's
motion for direct appellate review.
Considering first whether the amended complaint alleges
facts sufficient to overcome a qualified or conditional
privilege, we conclude that it does not assert facts sufficient
to demonstrate that Patrick's statements to the media were made
with actual malice, and thus the complaint against him properly
should have been dismissed. Given this conclusion, we need not
reach Patrick's argument as to the existence of an absolute
privilege against defamation claims for a governor, or other
high-ranking State official, for statements made in the course
of his or her official duties.
1. Background. We recite the facts asserted in the
amended complaint, taking them as true for purposes of
evaluating the motion to dismiss. SORB is an administrative
4
agency within the Executive Office of Public Safety and Security
(EOPSS). SORB is responsible for enforcing the provisions of
the sex offender registry law, G. L. c. 6, §§ 178C-178Q, and
also promulgates rules, regulations, and guidelines to implement
those provisions. See G. L. c. 6, § 178K (1). The chair of
SORB is "appointed by and serve[s] at the pleasure of the
governor." Id.
Edwards had been a member of the Massachusetts bar for
almost twenty-five years when Patrick appointed her as chair of
SORB on November 5, 2007. Edwards served in that role until
September 16, 2014. Prior to her appointment, Edwards had
served as an assistant district attorney in Plymouth County for
thirteen years. She specialized in prosecuting sex offenses,
child abuse, and domestic violence.
a. Sigh-Paglia matter. According to the amended
complaint, in September, 1993, Patrick's brother-in-law, Bernard
Sigh, pleaded guilty to a charge of spousal rape in California;
in his plea he admitted that he "accomplished an act of sexual
intercourse with [his] wife against her will by means of force."
He was sentenced to a term of incarceration followed by five
years of probation. Sigh moved to Massachusetts in 1995, but
5
did not register as a sex offender2 when the Legislature enacted
the sex offender registry law in 1996.3
In December, 2006, almost a year before Edward's
appointment as chair, SORB notified Sigh of his duty to register
as a level 1 (lowest risk) sex offender. Sigh sought a hearing
to challenge the determination that he had been convicted of a
"like offense" to the offense of rape as defined in
Massachusetts law. SORB scheduled a hearing on his petition and
assigned the matter to one of its board members. While that
hearing was pending, SORB referred to the office of the Attorney
General the question whether a conviction of spousal rape under
California law was a "like offense" to rape under Massachusetts
law, thus requiring a Massachusetts resident to register with
SORB.
SORB hearing officer Attilio Paglia replaced the previously
assigned board member, and scheduled a hearing on Sigh's
2
A sex offender is defined as a person who has been
convicted of any violation of enumerated Massachusetts sex
offenses, as well as like violations in other jurisdictions.
See G. L. c. 6, § 178C. See generally Doe, Sex Offender
Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass.
612, 615 (2010).
3
The sex offender registry law, G. L. c. 6, §§ 178C-178Q,
requires that anyone who has been convicted as a sex offender
must register with SORB and with the local police department
where the individual lives, unless, in limited circumstances, an
individual has been deemed exempt. See G. L. c. 6, § 178E.
6
petition.4 SORB officials authorized Paglia to decide
preliminary motions in the case, but instructed him to continue
the hearing pending the Attorney General's review of the legal
question concerning the status in Massachusetts of Sigh's
offense.
Notwithstanding these instructions, Paglia began the
hearing on August 1, 2007. After being informed of the hearing,
Paglia's supervisor ordered him not to issue a decision in the
matter pending a determination by the Attorney General. Paglia
continued to hear evidence on August 10 and 31 and issued an
oral decision finding that the California crime of spousal rape
is not a like offense to the Massachusetts crime of rape.
Accordingly, he relieved Sigh of the obligation to register as a
sex offender. Paglia did not issue a written decision, as is
required by SORB regulations.
b. Edwards's involvement in the Sigh-Paglia matter.
Edwards took office on November 5, 2007, several months after
the Sigh hearing and the oral decision. She was advised by
SORB's counsel and other SORB officials of the disagreement
between SORB administrators and Paglia. She also learned that,
4
Edwards's amended complaint alleges that Paglia, for an
unknown reason, "took the extraordinary step" of removing the
case from the previously assigned board member and assigning the
case to himself.
7
as a result of his actions with respect to the Sigh matter,
Paglia had been disciplined for insubordination.
On May 9, 2008, Edwards met with Paglia to discuss the Sigh
matter. She informed Paglia (who is not an attorney) of the
legal elements of rape as defined under Massachusetts law, and
also told him that the California crime of spousal rape is a
like offense to the Massachusetts crime of rape because "rape is
rape." After consulting with EOPSS and SORB's general counsel,
Edwards directed that a written decision issue in the Sigh case.
SORB also enacted an emergency regulation to permit it to
correct errors of law by hearing officers. To prevent further
classification errors, Edwards also instituted a training
program on the elements of Massachusetts sex offenses and on
conducting classification hearings.
Paglia resigned from his position at SORB and commenced a
"whistleblower" action, G. L. 149, § 185, in the Superior Court
against SORB, Edwards in her official capacity, and other SORB
officials, claiming retaliation for his decision in the Sigh
matter.5 Paglia claimed that the SORB defendants, including
Edwards, engaged in repeated and unsuccessful efforts to change
5
Because Edwards referenced Paglia's complaint in her
amended complaint, and Patrick attached the Paglia complaint to
his motion to dismiss, the Paglia complaint is included in the
record and may be considered by this court. See Coghlin Elec.
Contrs., Inc. v. Gilbane Bldg. Co., 472 Mass. 549, 552 n.5
(2015); Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43, 45
n.4 (2004).
8
the result of the Sigh hearing, and created a hostile work
environment, characterized by harassing electronic mail messages
and telephone calls, and poor performance reviews. Paglia also
claimed that he had complained to Edwards about "unlawful
conduct that occurred prior to and during her tenure as Chair,"
and that Edwards retaliated by accusing him (through the deputy
counsel of EOPSS) of insubordination and performance
deficiencies. Paglia further asserted that Edwards had
attempted to influence the independence of hearing officer
decisions by instituting a regulation permitting SORB to revise
or overturn decisions, known internally as the "Paglia
Regulation," and hiring a hearing decision editor to "subject
the finality of hearing examiner decisions to doubt and
ambiguity."
Edwards's termination. According to the amended complaint,
on September 15, 2014, Edwards was ordered to attend a meeting
the next day at the governor's office, with the general counsel
and chief of staff of EOPSS, and Patrick's director of boards
and commissions, Kendra Foley. Edwards was not given an
explanation for the meeting.
Edwards met with Foley on September 16, 2014. She was
joined by Patrick's legal counsel and a representative of human
resources from EOPSS. Patrick was not present at this meeting.
Foley told Edwards, "As you know, you serve at the Governor's
9
pleasure. He has decided to replace you as the Chairperson of
the Sex Offender Registry Board." Edwards asked Foley if there
was "a problem," or if she had done something wrong. Foley
replied that Edwards had not done anything wrong, but repeated
that her employment was being terminated. To avoid the stigma
of being terminated, Edwards asked if she could tender a letter
of resignation. Edwards was allowed to resign effective that
day.
d. Patrick's statements to the media. The amended
complaint further states that Patrick made two statements to the
media concerning Edwards's removal as SORB chair. On
September 22, 2014, he said during a press conference:
"The final straw was the settlement of a lawsuit,
which happened about not quite a year ago now, that
involved some inappropriate, at least, maybe, unlawful,
pressuring by the Chair and the Executive Director of a
hearing officer to change the outcome of a case. The
hearing officer did not ultimately do that. It turns out
that the case is the case that arose out of my brother-in-
law's experience way back at the beginning of the first
campaign when the Republican Party, sorry to say, aided by
the [Boston} Herald, nearly destroyed their lives."6
On January 2, 2015, Patrick made additional comments to the
media concerning his reasons for removing Edwards:
"You know, people do things like this when they've
been, sometimes when they've been called out, and, you
6
Patrick also stated that he had lost confidence in
Edwards' ability to lead the SORB for other reasons: " several
cases where the [Supreme Judicial Court] has reversed them"; "
critici[sm] for not updating their regulations"; and " a number
of reports about the work environment not being positive."
10
know, it's part of the business. The fact is that she
influenced inappropriately, or attempted to influence
inappropriately, a hearing officer, and that's a matter of
record. That hearing did involve my brother-in-law, that
is true. We've never made a secret of that, but it's still
inappropriate, and that's the reason why I asked for her
resignation.
"We can't have officials inappropriately interfering
with the independence of hearing officers. It undermines
the whole process whether it involves someone I know or
not."
d. Edwards's complaint. On December 31, 2014, Edwards
filed a complaint in the Superior Court against the
Commonwealth, claiming wrongful termination for her removal as
SORB chair, and against Patrick individually, alleging that his
September 22, 2014 statements to the media "accusing her of
wrongdoing" were defamatory. Thereafter, on March 2, 2015,
Edwards filed an amended complaint, adding a second claim of
defamation based on Patrick's January 2, 2015, response to media
inquiries following the filing of Edwards's initial complaint.
Patrick moved to dismiss the defamation claims on grounds
of absolute and qualified or conditional privilege. A Superior
Court judge denied the motion,7 noting that the matter of an
absolute privilege had not been recognized by this court, and
determining that Edwards had overcome the qualified privilege by
7
The judge also denied the Commonwealth's motion to dismiss
the wrongful termination claim. The Commonwealth has not
appealed from that decision, and the matter has been stayed as
to both defendants pending resolution of this interlocutory
appeal.
11
pleading sufficient facts to establish actual malice. We
allowed Patrick's application for direct appellate review.8
Discussion. We review the denial of a motion to dismiss de
novo, accepting the facts alleged in the complaint as true and
drawing all reasonable inferences in the plaintiff's favor.
Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011).
In assuming the facts as alleged, however, "[w]e do not regard
as 'true' legal conclusions cast in the form of factual
allegations." Leavitt v. Brockton Hosp., Inc., 454 Mass. 37, 39
n.6 (2009). To survive a motion to dismiss, the facts alleged
must "'plausibly suggest[] (not merely be consistent with)' an
entitlement to relief." Iannacchino, 451 Mass. at 636, quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (Twombly).
See Schatz v. Republican State Leadership Comm., 669 F.3d 50, 56
(1st Cir. 2012) (court applies Twombly pleading standard in
defamation action by isolating and ignoring "actual malice
buzzwords").
a. Absolute privilege. Patrick argues first that he is
immune from Edwards's defamation claims because his statements
to the media were made in the discharge of his official duties
as governor and thus are, or should be, protected by an absolute
8
The denial of Patrick's motion to dismiss, which raised
claims of absolute and qualified privilege, was immediately
appealable under the doctrine of present execution. Visnick v.
Caulfield, 73 Mass. App. Ct. 809, 811 n.4 (2009).
12
privilege. "An absolute privilege provides a defendant with a
complete defense to a defamation suit even if the defamatory
statement is uttered maliciously or in bad faith." Mulgrew v.
Taunton, 410 Mass. 631, 634 (1991). In Massachusetts, the
existence of an absolute privilege has been recognized in
"comparatively few cases," Vigoda v Barton, 348 Mass. 478, 484
(1965), and has been "limited to cases in which public policy or
the administration of justice requires complete immunity."
Ezekiel v. Jones Motor Co., 374 Mass. 382, 385 (1978). See
Sriberg v. Raymond, 370 Mass. 105, 108-109 (1976) (statements by
party, counsel or witness made in relation to judicial
proceeding); Sheppard v. Bryant, 191 Mass. 591, 592-593 (1906)
(statements by witness testifying before legislative committee
which were pertinent to questions and subject of examination).
Patrick argues that, as the majority of States to have
considered the question have done, we should adopt the Federal
standard, which affords certain high-ranking Federal officials
absolute immunity from defamation claims based on statements
made within the scope of their official duties. See Spalding v.
Vilas, 161 U.S. 483, 498 (1896); 1 Sack on Defamation, Libel,
Slander, and Related Problems § 8.2.5 (4th. ed. 2010) (Sack).
The United States Supreme Court has expressed two
significant policy reasons for the adoption of an absolute
privilege. See Barr v. Matteo, 360 U.S. 564, 569-576 (1959).
13
First, Federal officials should be able to discharge their
duties uninhibited by the fear and distraction of lawsuits. Id.
at 571-573. Second, an absolute privilege furthers free speech
by allowing Federal officials to speak with complete candor
concerning matters of public importance. Id. at 577 (Black, J.,
concurring). The Court has recognized that application of an
absolute privilege may result in an injustice to defamed
citizens left without a remedy, but has deemed this a necessary
sacrifice for the "greater good" given the specific positions at
issue. Id. at 576.
As Patrick points out, consistent with the holding in Barr,
the Restatement (Second) of Torts § 591 (2002) provides for an
absolute privilege for defamation claims brought against high-
ranking Federal and State executive officers, including
governors or State "superior executive officers." According to
the Restatement, "[a]n absolute privilege to publish defamatory
matter concerning another in communications made in the
performance of his official duties exists for (a) any executive
or administrative officer of the United States; or (b) a
governor or other superior executive officers of the state."
Id.
A majority of States have been persuaded by this reasoning,
and have adopted an absolute privilege which shields the
governor, or cabinet-level State officials, from defamation
14
claims for statements made in the course of their official
duties. See Sack, supra at § 8.2.5. See, e.g., Blair v.
Walker, 64 Ill. 2d 1, 6-11 (1976) (adopting absolute immunity to
shield Illinois governor from defamation claim); Jones v. State,
426 S.W.3d 50, 55-56 (Tenn. 2013) (cabinet-level State officials
such as commissioner of Department of Correction immune from
defamation claims arising from their official duties); Salazar
v. Morales, 900 S.W.2d 929, 932 (Tex. App. 1995) (Texas Attorney
General had absolute privilege to publish defamatory statements
in communications associated with official duties).
Nonetheless, other jurisdictions have recognized strong,
countervailing considerations against extending an absolute
privilege to a State governor and cabinet-level State officials.
See e.g., Clark v. McGee, 49 N.Y.2d 613, 618 (1980) ("Public
office does not carry with it a license to defame at will, for
even the highest officers still exist to serve the public, not
to denigrate its members"). Chief Justice Earl Warren,
dissenting in Barr, observed that the public should have a right
to criticize government officials without being "subjected to
unfair -- and absolutely privileged -- retorts." Barr, 360 U.S.
at 584. Consistent with this view, a substantial minority of
State courts that have considered the issue have concluded that
a qualified or conditional privilege is sufficient to protect
high-ranking public officials from liability where their
15
statements are made in good faith and without malice. See,
e.g., Aspen Exploration Corp. v. Sheffield, 739 P.2d 150, 161
(Alaska 1987) (application of absolute privilege to defamation
suit against governor "would do little more than protect
unprivileged defamatory statements leaving injured plaintiff
without a remedy"); Goddard v. Fields, 214 Ariz. 175, 178-180
(2007) (court declined to grant Attorney General absolute
immunity to defend comments made in press release).
As the motion judge noted in his decision, this court has
not decided whether an absolute privilege shields the governor,
or other high-ranking State officials, from liability for all
defamation claims arising out of statements made in the
performance of their official duties. See Barrows v. Wareham
Fire Dist., 82 Mass. App. Ct. 623, 630 n.10 (2012). We
considered the issue in considerable depth in two cases,
Mulgrew, 410 Mass. at 634-635, and Vigoda, 348 Mass. at 483-484.
In Mulgrew, supra at 634, a police chief argued that he had an
absolute privilege to defend public comments he made regarding a
police officer's fitness for duty. In Vigoda, supra at 481,
483, a social worker brought a defamation claim against the
superintendent of Boston State Hospital, in connection with
written evaluations, and the superintendent claimed that his
official statements should be protected by an absolute
privilege. In both cases, we declined to apply an absolute
16
privilege because a qualified privilege in those circumstances
was sufficient to shield the public official from liability.
See Mulgrew, supra at 635; Vigoda, supra at 484.
Given the conflicting policy considerations discussed
above, it is more prudent to examine whether Edwards pleaded
sufficient facts to state a cognizable claim for defamation. We
conclude that she did not.
b. Adequacy of the complaint. Edwards was required to
allege sufficient facts to establish that: (1) Patrick made a
statement concerning her to a third party; (2) the statement was
defamatory such that it could damage her reputation in the
community; (3) Patrick was at fault for making the statement;
and (4) the statement caused her to suffer economic loss or was
actionable without economic loss. Ravnikar v. Bogojavlensky,
438 Mass. 627, 629-630 (2003). In addition, as a public figure,
Edwards is required to allege that Patrick made a false and
defamatory statement with knowledge that it was false or
reckless disregard of its falsity.9 See New York Times Co. v.
Sullivan, 376 U.S. 254, 279-280 (1964); id. at 270 (First
9
Patrick's status as governor also provides an independent
basis for the imposition of the actual malice standard. Edwards
brought her defamation claim against Patrick for statements made
while Patrick was acting within the scope his official duties.
He was protected, at a minimum, by a qualified privilege when
speaking to the media about Edwards's removal. See Mulgrew v.
Taunton, 410 Mass. 631, 635 (1991); Vigoda v. Barton, 348 Mass.
478, 484 (1965).
17
Amendment to United States Constitution protects debate on
public issues even where debate includes "vehement, caustic, and
sometimes unpleasantly sharp attacks on government and public
officials"). See also Murphy v. Boston Herald, Inc., 449 Mass.
42, 48 & n.8 (2007) (discussing application of actual malice
requirement to defamation action brought by judge); Rotkiewicz
v. Sadowsky, 431 Mass. 748, 755 (2000) ("As New York Times Co.
v. Sullivan[, supra,] and subsequent cases have made clear, a
plaintiff who is a public official may not recover damages for
defamation related to his or her public office unless the
plaintiff proves by clear and convincing evidence that the
defendant made the false statement with actual malice").
The actual malice standard requires the public figure to
prove that the statement was made either with knowledge that it
was false, or with reckless disregard as to whether it was
false. See Rotkiewicz, 431 Mass. at 755. Thus, to survive a
motion to dismiss, Edwards must allege sufficient facts to
establish that Patrick knew the statements were false, or acted
with reckless disregard for their truth or falsity. See Vigoda,
348 Mass. at 485 ("Where the official believes the matter to be
true . . . and has not acted with actual malice . . . or with
reckless indifference to the rights of the individual citizen,
his conditional privilege is not abused" [citations omitted]).
Reckless disregard requires more than negligence; a plaintiff
18
must prove that the individual making the alleged defamatory
statement "entertained serious doubts as to the truth" of the
statement. Murphy, 449 Mass. at 48, quoting St. Amant v.
Thompson, 390 U.S. 727, 731 (1968). The actual malice test is
subjective. "That information was available which would cause a
reasonably prudent man to entertain serious doubts is not
sufficient. In order to negate the privilege, the jury must
find such doubts were in fact entertained by the defendant."
Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 867-868
(1975). See Gertz v. Robert Welch Inc., 418 U.S. 323, 334 n.6
(1974).
Because it is rare to garner direct evidence of an
individual's state of mind, a plaintiff may rely on
circumstantial evidence to prove that a defendant had actual
knowledge that the statements were false, or had serious doubts
about their accuracy. Levesque v. Doocey, 560 F.3d 82, 90 (1st
Cir. 2009). See Bose Corp. v. Consumers Union of U.S., Inc.,
692 F.2d 189, 196 (1st Cir. 1982), aff'd, 466 U.S. 485 (1984)
(subjective determination whether defendant in fact entertained
serious doubts about truth of statement may be established by
inference "as it would be very rare for a defendant to admit
such doubts"). See also Murphy, 449 Mass. at 57-58
(determination of defendant's subjective state of mind may be
made based on circumstantial evidence).
19
Edwards advances three distinct theories to support her
claim that the amended complaint alleged sufficient facts to
establish actual malice. First, she points to a Patrick
administration official's assurance that she had done nothing
wrong as indicating the falsity of Patrick's subsequent
statements accusing her of wrongdoing. Second, she notes that
the Paglia lawsuit, which Patrick referenced in his comments,
did not accuse Edwards of pressuring Paglia to change his
decision. Third, Edwards contends that Patrick's spite and ill
will toward her establish actual malice. We address each
argument in turn.10
The amended complaint asserts that Edwards and Foley,
Patrick's director of boards and commissions, met on
September 16, 2014. During that meeting, Foley informed
Edwards: "As you know, you serve at the Governor's pleasure.
He has decided to replace you as Chairperson of the Sex Offender
Registry Board." Responding to Edwards's inquiry about the
reasons for her removal, the complaint alleges that Foley
10
Edwards also claims that inconsistencies between
Patrick's September 22, 2014, statement and his January 2, 2015,
statement demonstrate that he lied about her removal. This
argument is without merit. Patrick's January 2, 2015, remarks
focused on the primary allegation that Edwards improperly sought
to influence the independence of a hearing officer. His failure
to mention the purported systemic difficulties at SORB, as he
had in his statement in September, as a further reason to remove
Edwards from her position as chair did not constitute evidence
that he believed that Edwards's job performance had been
satisfactory.
20
assured Edwards that she had not done anything wrong. Yet,
after Edwards's meeting with Foley, Patrick twice informed the
media that Edwards was removed from her position for interfering
with the independence of a hearing officer.
Edwards concedes that Foley's statements are not directly
attributable to Patrick. She contends, however, that Foley's
assurance that Edwards had done nothing wrong is evidence of
what Patrick actually believed. Edwards urges us to draw the
following inferences: (1) Patrick spoke with Foley before the
September 16 meeting; (2) Patrick informed Foley that he had the
authority to replace Edwards in the exercise of his discretion;
(3) Patrick told Foley that Edwards had done nothing wrong; and
(4) Patrick accused Edwards of interfering with the independence
of a SORB hearing officer although he knew she had done nothing
wrong. All of these inferences strung together, Edwards argues,
are sufficient to prove that Patrick's subsequent statements
that he removed Edwards for interfering with a hearing officer
were knowingly false or were made in reckless disregard of their
falsity.
This attempt to ground the allegation of actual malice on a
statement purportedly made by Foley at the termination meeting
does not satisfy the pleading standard set forth in Iannacchino,
451 Mass. at 636. The theory that Foley's statement somehow
reflected Patrick's personal view of Edwards's job performance
21
would require a fact finder to jump from one inference to
another absent any of the necessary factual support. Edwards's
assertions regarding Patrick's likely state of mind, based on
Foley's alleged statement to Edwards, are too speculative to
support a claim of actual malice. See Shay v. Walters, 702 F.3d
76, 83 (1st Cir. 2012) ("inquiring court need not give weight to
bare conclusions, unembellished by pertinent facts"); Biro v.
Condé Nast, 963 F. Supp. 2d 255, 278 (S.D.N.Y. 2013), aff'd, 807
F.3d 541 (2d Cir. 2015) ("Not only is '[p]roving actual malice a
heavy burden, . . . but in the era of [Ashcroft v. Iqbal, 556
U.S. 662 (2009),] and Twombly, pleading actual malice is a more
onerous task as well" [quotations and citation omitted]). See
also Sanford, Libel and Privacy § 13.3 at 13-62 (2d ed. Supp.
2017) (noting difficulty in pleading actual malice in light of
heightened pleading standards); 2 Sack on Defamation, Libel,
Slander, and Related Problems, § 16:2.2 (noting courts'
"insistence that litigation in which 'actual malice' must be
established by the plaintiff provides no exception to the Iqbal
and Twombly pleading requirements").
In her second argument, Edwards contends that the
allegations in the amended complaint are sufficient to establish
actual malice because it is reasonable to infer that Patrick
read the complaint in the Paglia action, and knew that the
asserted pressure brought to bear on Paglia occurred before
22
Edwards was appointed to be SORB chair. This inference,
however, is not supported by Edwards's own allegations in the
amended complaint concerning the Paglia lawsuit, nor by the
plain language in the Paglia complaint that was submitted as an
exhibit to the Superior Court. In her amended complaint,
Edwards acknowledges that Paglia did bring a complaint against
her for retaliation, and that he filed that claim after Edwards
discussed the Sigh classification decision with him, and stated
that she disagreed with his decision because "rape is rape."
Moreover, the Paglia lawsuit described in some detail Edwards's
alleged role in the Sigh matter. Paglia's complaint clearly
alleged that Edwards pressured him to withdraw his
classification decision and to classify Sigh as a sex offender
under Massachusetts law, and retaliated against him for his
failure to do so. The complaint also alleged that Edwards
"verbally berated" Paglia, "at one point making him so nervous
and panicked that [he] had to go to the hospital." Accordingly,
no view of the allegations in the Paglia lawsuit would support a
claim that Patrick was on notice, after reading the complaint,
that Edwards did nothing wrong.
Edward's third theory concerning the sufficiency of her
complaint is that Patrick's ill will and spite over her role in
his brother-in-law's case support a claim of actual malice. In
this view, Patrick's statements were motivated by hostility
23
toward Edwards for having "nearly destroyed the lives of his
sister and brother-in-law." Thus, Patrick's statements to the
media accusing Edwards of wrongdoing were strictly personal,
meant to harm Edwards's reputation, and served no public
purpose.
Evidence of ill will or spite is insufficient, standing
alone, to establish actual malice. In Rotkiewicz, 431 Mass. at
755, quoting Stone, 367 Mass. at 867, we held:
"In the context of defamation, the term 'actual
malice' does not mean the defendant's dislike of, hatred
of, or ill will toward, the plaintiff. Rather, actual
malice means that the 'defamatory falsehood was published
with knowledge that it was false or reckless disregard of
whether it was false.'"
Regardless of Patrick's alleged spiteful, negative feelings
toward Edwards, which we take, as we must, as true for purposes
of considering the sufficiency of the complaint, Edwards was
required to allege specific facts to prove that Patrick made his
statements to the media with knowledge of their falsity or with
reckless disregard of their truth or falsity. That Patrick
might have harbored ill will toward Edwards for "nearly
destroy[ing]" the lives of some members of his family does not
substitute for proof of actual malice. See Beckley Newspapers
Corp. v. Hanks, 389 U.S. 81, 82 (1967) ("personal spite, ill
will or a desire to injure plaintiff" is not equivalent of
actual malice).
24
Order denying motion to
dismiss reversed.