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Cornelius v. The Chronicle, Inc.

Supreme Court of Vermont

January 25, 2019

Garrett M. Cornelius
v.
The Chronicle, Inc.

          On Appeal from Superior Court, Orleans Unit, Civil Division Robert R. Bent, J.

          Garrett M. Cornelius, Pro Se, Newport, Plaintiff-Appellee (2017-377), Plaintiff-Appellant (2018-005).

          Matthew B. Byrne of Gravel & Shea PC, Burlington, for Defendant-Appellant (2017-377), Defendant-Appellee (2018-005).

          PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

          REIBER, C.J.

         ¶ 1. These consolidated cases raise issues concerning Vermont's anti- SLAPP (strategic lawsuit against public participation) statute, 12 V.S.A. § 1041. Plaintiff Garrett Cornelius filed suit alleging invasion of privacy by newspaper, the Chronicle, after newspaper published two articles containing information about plaintiff. In a series of orders, the trial court granted newspaper's motions to strike the claims under the anti-SLAPP statute and awarded newspaper a small fraction of the attorney's fees it sought. Plaintiff appeals the court's orders striking his claims and newspaper appeals the amount of attorney's fees. We conclude that the claims were properly stricken under the anti-SLAPP statute and that the court erred in limiting the attorney's fees award. Therefore, we affirm in part and reverse and remand in part.

         ¶ 2. Plaintiff's claims stem from two articles written by newspaper. In July 2016, newspaper published one article under two titles. The article was entitled "Cornelius brothers threaten parole officer" on the newspaper website and entitled "Cornelius brothers deemed a possible threat" in the print version of the paper. The article explained that the State Police Vermont Intelligence Center (VIC) had cautioned local law enforcement about "a possible threat from the Cornelius brothers, because of what they say is a history of erratic and violent behavior." It quoted the safety bulletin as follows:" 'Both brothers have lengthy criminal involvements and are currently involved in active and ongoing investigations involving unlawful trespass, violation of court orders, and violation of several restraining orders, '" and" 'Although no direct threats to law enforcement have been made, their behavior has become increasingly violent, erratic and unpredictable.'" The article was lengthy and reported about past behavior of plaintiff's brother, including criminal charges. It also described the brothers' involvement in the killing of Isaac Hunt, which the state's attorney determined was justified. In November 2016, the Chronicle published the second article at issue, which was entitled "Garret Cornelius accused of aiding brother," and described plaintiff's arraignment on criminal charges for aiding in the escape of his brother. The article was based on the police affidavit supporting the information and the reporter's own observations at the arraignment. This article described plaintiff as "loud and combative" during the proceeding and stated that plaintiff "offered verbal expletives to just about any officer of the court tasked with handling his case."

         ¶ 3. Plaintiff filed suit against the newspaper alleging that the newspaper articles placed plaintiff in a false light.[1] As to the July 2016 article, plaintiff alleged, among other things, that the article was incorrect because plaintiff did not have any criminal history, a history of erratic and violent behavior, or lengthy criminal involvements, and was not the subject of ongoing investigations or exhibiting escalating or increasingly unpredictable behavior. Plaintiff also alleged that the article falsely represented that he was argumentative with police during previous interactions and that he possessed a .22 pistol. As to the November 2016 article, plaintiff alleged that he was not "loud and combative" and did not offer "verbal expletives to just about any officer of the court tasked with handling his case." Plaintiff asserted that he was respectful and courteous, and the false representations of his behavior were harmful to him.

         ¶ 4. Newspaper moved to dismiss the suit and to strike the complaint under the anti- SLAPP statute.[2] Newspaper claimed that both articles were related to the newspaper's exercise of free speech and involved topics of public concern, and that there was reasonable factual support for the assertions made in the articles. As to the June 2016 article, newspaper delineated the source for each fact in the article and attached supporting affidavits and exhibits. As to the November 2016 article, newspaper explained that the bulk of the information in the article was derived directly from the affidavit accompanying the charges filed against plaintiff and from the personal observations of a newspaper reporter in the room for the arraignment and again attached an affidavit and exhibits.

         ¶ 5. As to counts I and II, pertaining to the June 2016 article, the court granted the motion to strike.[3] The court concluded that the article contained matter connected to a public issue because the article concerned matters related to public safety and criminal investigations. The court noted that information in the article came from the VIC Bulletin, court records, and public Facebook posts made by plaintiff and his brother. The court further explained that the information about the killing of Isaac Hunt was a matter of public concern and plaintiff voluntarily put himself in the public eye by providing interviews to the media on the topic. The court concluded that plaintiff failed to show that he was actually injured by the articles or that the statements in it were "devoid of any reasonable factual support and any arguable basis in law." 12 V.S.A. § 1041(e)(1)(A).

         ¶ 6. As to count III, pertaining to the November 2016 article, the court initially granted newspaper's motion to dismiss for failure to state a claim, V.R.C.P. 12(b)(6), and denied the motion to strike as moot. The court concluded that plaintiff had failed to plead a prima facie case because the opinion statements in the article could not be proven false, an element of a false-light claim. Following newspaper's motion to reconsider, the court granted newspaper's motion to strike count III.

         ¶ 7. Newspaper sought attorney's fees in conjunction with its motions to strike. 12 V.S.A. § 1041(f)(1) ("If the court grants the special motion to strike, the court shall award costs and reasonable attorney's fees to the defendant."). Newspaper attached an affidavit and the bills related to the litigation, seeking $34, 185.33 in fees and expenses. The court initially granted newspaper's motion for attorney's fees. Following plaintiff's motion to reconsider, the court denied attorney's fees, reasoning that newspaper, a corporation with litigation insurance, was not the ordinary citizen the fee-shifting provision was meant to cover. The court subsequently revised this order, granting newspaper limited fees. The court reasoned that because newspaper had litigation insurance, it did not incur costs in excess of the deductible and therefore granted $5000, the amount of the deductible.

         I. Application of the Anti-SLAPP Statute

         ¶ 8. We first address plaintiff's argument that his suit did not fit within the bounds of the anti-SLAPP statute. The anti-SLAPP statute attempts "to define the proper intersection between two constitutional rights-a defendant's right to free speech and petition and a plaintiff's right to petition and free access to the courts." Felis v. Downs Rachlin Martin PLLC, 2015 VT 129, ¶ 41, 200 Vt. 465, 133 A.3d 836. The statute contains a two-step process. A defendant may move to strike a complaint in "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). If the defendant satisfies the threshold requirement, the court must grant the motion "unless the plaintiff shows that: (A) the defendant's exercise of his or her right to freedom of speech and to petition was devoid of any reasonable factual support and any arguable basis in law; and (B) the defendant's acts caused actual injury to the plaintiff." Id. § 1041(e)(1). The question of whether § 1041 applies is a question of law that we review de novo. See Garretson v. Post, 68 Cal.Rptr.3d 230, ...


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