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Ernst v. Carrigan

United States Court of Appeals, Second Circuit

February 22, 2016

BARBARA ERNST, BARBARA SUPENO, Plaintiffs-Appellees-Counter-Defendants-Cross-Appellants-
v.
JOHN CARRIGAN, LINDA CARRIGAN, Defendants-Appellants-Cross-Appellees, JEFF KAUFFMAN, BARBARA KAUFFMAN, Defendants-Appellants-Counter-Claimants-Cross-Appellees, TOWN OF ADDISON, Defendant.

Argued: November 9, 2015

Feuding over local governance matters in Addison, Vermont led two couples to write, distribute, and vocalize allegedly defamatory statements about a third couple. A suit for defamation (among other claims) was countered by special motions to strike under Vermont's anti-SLAPP statute, which the district court granted in part and denied in part. The threshold issue is whether we have appellate jurisdiction over the district court's order passing on the merits of the defendants' special motions to strike under Vermont's anti-SLAPP statute. We conclude that interlocutory appeals of such orders do not fall within the collateral order doctrine, and accordingly determine that we lack jurisdiction over this appeal.

DAVID BOND, Law Office of David Bond, PLLC, Burlington, VT, for Plaintiffs- Appellees-Counter-Defendants-Cross- Appellants.

JOHN A. SERAFINO, Ryan, Smith & Carbine, Ltd., Rutland, VT, for Defendants-Appellants-Cross-Appellees.

MICHAEL J. TIERNEY (William Ellis, McNeil, Leddy & Sheahan & Sheahan, PC, Burlington, VT; Andrew C. Box, Ellis, Boxer & Blake, PLLC, Springfield, VT, on the brief), Wadleigh, Starr & Peters, PLLC, Manchester, NH, for Defendants- Appellants-Counter-Claimants-Cross- Appellees.

Before: JACOBS, LEVAL, and LYNCH, Circuit Judges.

DENNIS JACOBS, CIRCUIT JUDGE.

Feuding over local governance matters in Addison, Vermont led two couples – John and Linda Carrigan (the "Carrigans") and Jeff and Carol Kauffman (the "Kauffmans") – to make allegedly defamatory statements about a third couple, Barbara Ernst and Barbara Supeno. Ms. Ernst and Ms. Supeno sued for defamation (among other claims) and the Carrigans and Kauffmans responded by filing special motions to strike under Vermont's anti-SLAPP statute. The suit, originally filed in state court, was removed by the defendants to the United States District Court for the District of Vermont (Crawford, J.) because the plaintiffs included a federal claim under 42 U.S.C. § 1983. The district court granted the motions in part and denied in part. The threshold issue is whether we have appellate jurisdiction over the district court's order passing on the merits of the defendants' special motions to strike under Vermont's anti-SLAPP statute. We conclude that interlocutory appeals of such orders do not fall within the collateral order doctrine, and accordingly dismiss for lack of appellate jurisdiction.

Things got out of hand in April 2011, when (it is alleged) the defendants wrote and circulated a defamatory letter to numerous Addison residents, and made defamatory statements (and presented a defamatory document) to the town's Selectboard (a local governing body). Pursuant to Vermont's anti-SLAPP statute, defendants filed special motions to strike plaintiffs' claims. SLAPP is an acronym for a "strategic lawsuit against public participation, " which is a suit that is brought primarily to chill the valid exercise of a defendant's right to free speech, and Vermont's anti-SLAPP statute is designed to provide for early dismissal of such lawsuits.

The district court concluded that the circulation of the April 2011 letter was not covered by Vermont's anti-SLAPP statute because it did not concern an issue of public interest, but that the statements and document presented at the Selectboard meeting were covered because they were made at a legislative proceeding. Ernst v. Kauffman, 50 F.Supp.3d 553, 563-65 (D. Vt. 2014). The district court further determined that Ms. Ernst and Ms. Supeno did not sustain their burden of showing that the document and statements were "devoid of any reasonable factual support" or "any arguable basis in law, " 12 V.S.A. § 1041(e)(1)(A).

The parties cross-appealed. Because we conclude that interlocutory appeals from such orders do not fall within the collateral order doctrine, we dismiss for lack of appellate jurisdiction.

BACKGROUND

Ms. Ernst and Ms. Supeno have been embroiled in multiple zoning disputes with their neighbors. They allege that several of their neighbors, including the Carrigans, are hostile to them because they are a same-sex couple; that this hostility has been encouraged by several town officials, including Jeff Kauffman, who is the chairman of the Addison Selectboard and was the town's zoning and planning administrator; and that Mr. Kauffman and Addison have for that reason discriminated against them in zoning decisions.

On April 11, 2011, an anonymous nine-page letter was sent to numerous Addison residents, including all members of the Selectboard, school board, planning board, and development review board, as well as local newspapers. Entitled "The TRUTH About the BARBARAS, " the letter contained information drawn from police reports and court records that supposedly demonstrated that Ms. Ernst and Ms. Supeno 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." Ernst, 50 ...


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