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Ernst v. Kauffman

United States District Court, D. Vermont

April 20, 2016

BARBARA ERNST and BARBARA SUPENO, Plaintiffs,
v.
BARBARA

DECISION ON MOTION FOR RECONSIDERATION (Doc. 103)

Geoffrey W. Crawford, Judge.

Plaintiffs Barbara Ernst and Barbara Supeno move for reconsideration of the portion of the court's September 30, 2014 Opinion and Order (Doc. 72) granting a "special motion to strike" under 12 V.S.A. § 1041. Plaintiffs argue that the Vermont Supreme Court's decision in Felis v. Downs Rachlin Martin, PLLC, 2015 VT 129, constitutes an intervening change in controlling law. (Doc. 103.) Defendant Carol Kauffman opposes Plaintiffs' Motion (Doc. 104), as do Defendants John Carrigan and Linda Carrigan (the Carrigans) (Doc. 107). Plaintiffs have filed a consolidated Reply. (Doc. 108.)

Factual Background

The court presents here only a brief statement of facts drawn from Plaintiffs' Amended Complaint (Doc. 34), and other evidence as contemplated by 12 V.S.A. § 1041(e)(2). A more complete factual background is set forth in the court's September 30, 2014 Opinion and Order (Doc. 72).

From 2009 to 2011, Plaintiffs regularly attended Selectboard and planning board meetings and commented on proposed changes to townwide zoning regulations-a matter of public concern in the Town of Addison. (Docs. 48-9; 48-10; 38-3.) Plaintiffs also attended several school board meetings, at which one of the topics of discussion was whether the Town's schools should be unified with those of other towns, and also attended a local forum on this topic. (Docs. 38-6; 48-16 at 4.) These were matters that could affect the entire town, and Plaintiffs voluntarily participated in the public discussion of both issues.

On April 11, 2011, an anonymous nine-page letter was sent to numerous residents of the Town of Addison, including all members of the Selectboard, school board, planning board, and development and review board, as well as local newspapers. (Doc. 34, ¶ 38.) The letter was entitled "The TRUTH About the BARBARAS." (Doc. 34-1 at 3.) The letter contained information drawn from court and police records involving Plaintiffs that supposedly demonstrated that Plaintiffs were "masters at falsifying information, using harassment as a crutch whenever confronted in their demonical schemes, lying openly, distorting facts, [and] using the court system for extortion .. . ." (Id. at 4.)

The letter went on to state that Plaintiffs were "felons who are running scams, " that Plaintiff Supeno was a drug addict who lied about her mother's illness to avoid court dates, and that Plaintiffs do not pay their creditors or their taxes. (Id. at 4-5, 8.) It encouraged the reader to share the letter with neighbors, businesspeople, and elected officials. (Id. at 4.) As the court previously concluded, the letter contained "a mixture of true statements, false statements, and editorial characterization." (Doc. 72 at 11.) The letter did not advocate for a particular outcome on the issues of zoning regulations or school unification; and in fact did not mention those issues at all.

Neither Plaintiff was a candidate for public office at the time that the anonymous letter was disseminated. In February 2011, Ms. Supeno had nominated herself as a candidate for a seat on the Addison Planning Commission. (Doc. 48-15.) The Selectboard had, however, appointed a different person, Kim Provencher, to fill the position in April 5, 2011 (before the anonymous letter was sent). (Doc. 48-9 at 49.)

According to Plaintiffs, Carol Kauffman wrote the April 11, 2011 anonymous letter with information provided by her husband Jeff Kauffman (the Selectboard chair) and by Linda Carrigan. (Doc. 34, ¶¶ 39-40.) Plaintiffs assert that, over their objection, Carol Kauffman read aloud selections from the letter at Selectboard meetings in June, July, and August 2011. (Id. 42.) There is no evidence before the court regarding what portions of the letter Carol Kauffman read. The minutes from the August 2011 Selectboard meeting recount that Carol Kauffman "summarize[d] at great length events, correspondence, e-mails, etc., regarding the school unification vote, school board meetings, selectboard meetings, legal opinions, confidential matters, and conflict of interest." (Doc. 48-9 at 55.)

In a July 5, 2011 letter addressed to the Selectboard, Plaintiffs asserted that the April 5, 2011 appointment of Kim Provencher to the Planning Commission was improper. Plaintiffs requested that an "official vote be taken of the Planning Commission" regarding the Planning Commission seat, but with two of the members disqualified from voting due to their "mis-actions" and "major Conflicts of Interest." (Doc. 38-4 at 8.) Also in the July 5, 2011 letter, Plaintiffs asserted that the information that Carol Kauffman presented at the June 2011 Selectboard meeting "included issues regarding Addison Central School govemance[, ] which is strictly under the jurisdiction of the Addison Central School Board Directors not the Addison Selectboard." (Id. at 2.)

In November 2011, John Carrigan presented to the Selectboard a 20-page document containing information about some of the lawsuits discussed in the April 11, 2011 anonymous letter, as well as other disputes involving Plaintiffs. (Doc. 34, ¶ 43; see also Doc. 34-2.) The minutes from the Selectboard's November 2011 meeting reflect that "John Carrigan gave the board a history of lawsuits, suits, liens, small claims court, civil court filed by or against Barbara Supeno & Barbara Ernst." (Doc. 48-9 at 66.)

Procedural History

On September 30, 2014, this court granted in part Defendants' motions to strike under Vermont's anti-SLAPP statute, 12 V.S.A. § 1041. (Doc. 72.) Section 1041 defines a strategic lawsuit against public participation (SLAPP suit) as "an action arising from the defendant's exercise, in connection with a public issue, of the right to freedom of speech or to petition the government for redress of grievances under the U.S. or Vermont Constitution." 12 V.S.A. § 1041(a). The statute authorizes defendants to file a "special motion to strike" to halt SLAPP suits that are brought against them. Id. § 1041(b). Section 1041 states that a defendant's exercise of her speech and petition rights includes "any written or oral statement made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law." Id. § 1041(i)(l).

In its September 30, 2014 decision, the court granted the special motion to strike "with respect to claims arising from any statements made at Selectboard hearings by defendant Carol Kauffman." (Doc. 72 at 12.) The court also granted the Carrigans' special motion to strike with regard to the 20-page document presented to the Selectboard by Defendant John Carrigan in November 2011. (Id. at 13.) The court concluded that Carol Kauffman's statements at the Selectboard hearings and John Carrigan's presentation of the 20-page document to the Selectboard were protected by § 1041(i)(l) because they were made before an official proceeding. Noting that the Vermont Supreme Court had not interpreted § 1041, the court relied on the text of the statute and on decisions from California, which has a similar anti-SLAPP statute. (Doc. 72 at 4-5.) The court reasoned that subsection (i)(1) "contains no requirement that the statement concern 'an issue of public interest, '" and that "[i]nstead, any statement made in the course of a selectboard meeting qualifies as the exercise of free speech giving rise to the right to file a special motion to strike." (Doc. 72 at 10.)

On October 16, 2014, the court denied motions to reconsider and to amend the September 30, 2014 decision. (Doc. 81.) The Carrigans sought interlocutory appeal, and Plaintiffs cross-appealed. On February 22, 2016, the Second Circuit dismissed the interlocutory appeals for lack of appellate jurisdiction. Ernst v. Carrigan, Nos. 4-3925-CV(L), 14-4025(XAP), 14-4171(CON), 2016 WL 690986 (2d Cir. Feb. 22, 2016), reh'g denied Mar. 17, 2016. Plaintiffs filed their Motion to Reconsider on March 13, 2016. (Doc. 103.) On October 16, 2015-while the ...


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