Do I have a defamation claim against someone that claims he was only expressing his opinion?

26 May 2015

Answer:  It depends.  Statements that are determined to strictly be the expression of an opinion after all underlying facts are presented are not actionable.  However, someone simply couching a defamatory statement as an opinion does not make it an opinion and is actionable.  It takes a legal analysis and legal opinions on the matter may differ.

An example of a case where the United States Court of Appeals for the First Circuit found a person was only expressing an opinion is Piccone v. Bartels.  No. 14-1989 (1st Cir. decided May 7, 2015).  In Piccone v. Bartels, the plaintiffs (Piccone and Quaglia) were seeking entry into a home to install a carbon dioxide detector so that the home would qualify to be a suitable place for children Piccone was seeking to take custody of.  Those children’s parents were Piccone’s family members, who were wanted by the police and had fled the area.

When Piccone and Quaglia arrived at the house to install the CO detector, police were there, including one of the defendants, Officer Bartels.  Initially, Bartels refused to let Piccone and Quaglia into the home, as he was looking for their family member who was wanted by the police.  After a tense exchange, Bartels confirmed Piccone and Quaglia’s story that they were there to install a CO detector and then let them enter the house.  Long story short, Bartels was tiffed at the way Piccone and Quaglia treated him and handled themselves.

Bartels then did something that may not have been wise, he contacted Piccone and Quaglia’s employer, but this was a special employer, the United States Department of Homeland Security (“DHS”).  He relayed his frustration with Piccone and Quaglia to an agent with DHS’s Office of Inspector General in a 45 minute recorded telephone call where he described Piccone and Quaglia’s conduct as unprofessional.   There was also some indication that Bartels believed that Piccone and Quaglia might know where Piccone’s fugitive family members were. But he also pointed out that there was no official inquiry on that subject so Piccone and Quaglia had not misled authorities.

After analysis, the appeals court affirmed the trial court’s order dismissing Piccone and Quaglia’s claims.  It ruled that Bartel was only expressing an opinion, and the important fact here is that the Court observed that Bartel provided all pertinent facts upon which he based his opinion.  It observed: 

defamation cannot arise where the speaker communicates the non-defamatory facts that undergird his opinion . . . thus, the speaker can immunize his statement from defamatory liability by fully disclosing the non-defamatory facts on which his opinion is based.”  

The court went on to observe and differentiate when a statement is reasonably understood “to declare or imply provable assertions of fact” which would be actionable.  The court stated this question can be made by a court as a matter of law and that “this task requires an examination of the totality of the circumstances in which the specific challenged statements were made, including the general tenor and context of the conversation and any cautionary terms used by the person publishing the statement.” 

If you are trying to apply this case to one you are thinking of, keep in mind that the court had a transcript and tape recording of all of the allegedly defamatory statements in this case, so it was clear what and how the statements were made.  In another case, there may not be such a recording.  So, the facts may not be so clear and a court may not be so sure that the non-defamatory facts upon which the opinion were based were fully disclosed in a case without such a record.

Bartels won this case, legally at least.  But he had to go through the ordeal of a significant legal suit against him and may not really feel like a winner after such a battle.  One practical pointer that the author has observed here and in life is to know that any negative statements or complaints made to a person’s employer get a person very angry.   Proverbs 30: 10 KJV.  (Accuse not a servant unto his master, lest he curse thee, and thou be found guilty.).

If you are seeking to determine whether particular statements were defamatory on not or are involved in a situation where slander or libel is potentially at hand, feel free to contact us.

I have a legal controversy or disagreement that I want resolved but there is no pending court case, how do I resolve it?

12 May 2015

Answer: File for a declaratory action under chapter 231A section 1 of the Massachusetts General Laws.

Many people face the situation of having a legal conflict or disagreement and want it resolved, but if there is no pending civil action, they are left with uncertainty.  They are unaware of how to resolve it, now, and before possible damages are felt.  Well, Massachusetts law provides an avenue for you to obtain an answer that is legally binding.  Mass. Gen. Laws c. 231 § 1 states in pertinent part:

The supreme judicial court, the superior court, the land court and the probate courts, within their respective jurisdictions, may on appropriate proceedings make binding declarations of right, duty, status and other legal relations sought thereby, either before or after a breach or violation thereof has occurred in any case in which an actual controversy has arisen and is specifically set forth in the pleadings and whether any consequential judgment or relief is or could be claimed at law or in equity or not; and such proceeding shall not be open to objection on the ground that a merely declaratory judgment or decree is sought thereby and such declaration, when made, shall have the force and effect of a final judgment or decree and be reviewable as such  . . . 

This is not to be used by curiosity seekers.  As the statute states, there has to be an actual legal controversy and that actual legal controversy must be plead in the complaint.  There is no need to ask for damages, and many times there has been no damages yet.  A declaratory action simply declares the “right, duty, status and other legal relations” and there is no need to seek damages or other relief in addition, which is usually required in the law.

For example, if you have a contract with someone and a disagreement arises about what the obligations of the parties are, even if there has been no breach of the contract yet, you can get a declaratory judgment from a court that is binding and settles the legal question. 

This is especially helpful when the event that would cause the breach has not occurred yet and you want to avoid the other person breaching (and you are dealing with a person that you believe would perform if they believed they were obligated to).  You can get the court to rule that you are correct about what their or your obligations are before those obligations are performed.  You see, normally, under contract law, a claim for breach of contract does not arise until the breach occurs and you would have to wait to go to court until that time.  But the declaratory action statute allows you to obtain a legal ruling before a breach occurs.

If you are facing a legal controversy are want it resolved soon to avoid uncertainty or for other reasons, consider seeking a declaratory action.  Feel free to contact this office to see if a declaratory action is the right fit for your situation.

A clerk refuses to accept my documents for filing in Massachusetts, what should I do?

4 April 2015

Initially, you must diagnose what the problem is.  Is this a case of some legitimate impropriety with the filing and the clerk’s office has the right or obligation to reject it or is it a clerk’s office overstepping its authority?  To investigate this, you will need to be able to articulate exactly why the clerk is refusing the documents/papers.  You will need to pay close attention to why the clerk is rejecting the documents.  Preferably write down the exact reasons and take down citations or request the clerk’s office put the reasons in some informal writing, which it will not likely do.  Once you have the exact reasons, you can research its validity or seek legal advice. 

The general rule is that, absent a law, order, or rule, the clerk’s office must accept and file documents filed with it.  Perlin & Connors, Handbook of Civil Procedure in the Massachusetts District Court, § 7.11, 4th ed.  Is there a law, order, or rule that supports the clerk’s office’s refusal?  Is the clerk’s office citing a law or rule to you?  If so, it may be proper for it to reject the filing.   

For example, if you are filing a suit with the clerk’s office, one requirement is that a completed statement of damages form must accompany it.  Mass. Gen. Laws c.218, § 19A(a).  Another is, absent indigence, that the filing fee is paid. Mass. Gen. Laws c.262, § 2.  If you are trying to file a complaint without these items, the clerk’s office is not supposed to accept the filing.  The point is, there are some valid reasons and incidences where a clerk’s office should reject a filing.

However, there are also incidences where a clerk’s office is overstepping its boundaries and must accept the documents/papers for filing.  In the author’s opinion and observation, the issue usually is that the clerk’s office is inappropriately evaluating the filing itself and interjecting its own legal opinion into the mix.  See e.g. Gorod v. Tabachnick, 428 Mass. 1001 (1998); Davis v. Tavachnick, 425 Mass. 1010 (1997); Morales v. Commonwealth, 424 Mass. 1010 (1997).  And sometimes, the clerk is simply not performing his duties and meeting its professional responsibilities.  See generally, In the Matter of Clerk-Magistrate Robert E. Powers, 465 Mass. 63 (2013) (finding sufficient cause existed for the removal of the clerk magistrate of Barnstable District Court).

If this happens, the first course of action is to file a motion with the clerk’s office to ask the court to order the clerk’s office to accept the document/paper for filing.  Costello v. Board of Appeals of Lexington, 450 Mass. 1004 (2007); Davis v. Tavachnick, 425 Mass. 1010 (1997); Morales v. Commonwealth, 424 Mass. 1010 (1997).  If you need to take this route, you must be astute and show emotional intelligence.  This is because you are working through and filing the motion with the very office that you are opposing.  Also, you can assume that the clerk’s office will be presenting its case to the judge without your presence and has a great deal of credibility with the judge.  Finally, keep in mind, the judge is human and may be reluctant to order people he relies and works with daily to take an action they do not want to do.  This whole effort will be a delicate one of which you may want to seek counsel to navigate.

Keep in mind, that although there may not be a practical way of implementing this, a judge may permit and accept papers to be filed with the court (judge) as opposed to the clerk’s office.  Mass. R. Civ. P. 5(e).  So if there is some way, like in the court room and on the record, and not one that will land you in jail or otherwise be inappropriate, to approach the judge directly and seek to have the papers filed with the court, it is possible if the judge agrees. 

In the event that the clerk’s office does not accept the motion to ask the court to order the clerk’s office to accept the documents/papers, because it acts as the gatekeeper and is the office you must file documents with, then the next avenue is a writ of mandamas.  Burnham v. Clerk of the First District Court of Essex, 352 Mass. 466, 467 (1967).  This is an action to compel a governmental official to perform his duty.  For this, it is highly advised to hire legal counsel because this is a separate legal action in and of itself. 

   

Overall, if you do find yourself in a situation where a clerk is refusing your filings, it is a tough position to be in.  In the event that you are involved in a dispute with a clerk’s office or have other concerns with how you are being treated in the court system, feel free to give this office a call.