Dana Desjardins v. Michael Reynolds

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2017 ME 99 Docket: Cum-15-365
Argued: April 5, 2016
Decided: May 18, 2017
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
Majority: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, HJELM, and HUMPHREY, JJ.
Dissent: JABAR, J.
DANA DESJARDINS
v.
MICHAEL REYNOLDS
GORMAN, J.
[¶1] Dana Desjardins appeals from a judgment of the Superior Court
(Cumberland County, Warren, J.) dismissing his complaint against Michael
Reynolds for defamation and false light invasion of privacy. Desjardins
contends that the court erred by concluding that his complaint was barred by
application of Maine’s anti-SLAPP (“Strategic Lawsuit Against Public
Participation”) statute, 14 M.R.S. § 556 (2016). We affirm the judgment.
I. BACKGROUND
[¶2] In August of 2013, Desjardins, a town official for the Town of
Raymond, instituted a lawsuit in the Superior Court against Michael
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Reynolds,1 a Town selectman, alleging that Reynolds had made various false
statements to the Cumberland County Sheriff’s Office about Desjardins’s
alcohol use for the purpose of humiliating and harassing Desjardins.
Desjardins also alleged that as a result of those reports, Desjardins was
stopped on his way to a Town meeting on January 8, 2013, by a sheriff’s
deputy who was investigating him for possibly operating under the influence.
See 29-A M.R.S. § 2411 (2016). Desjardins asserted causes of action for
defamation, negligent infliction of emotional distress, intentional infliction of
emotional distress, and false light invasion of privacy, and sought damages for
his “humiliation,” “emotional distress,” and “loss of reputation,” as well as
punitive damages and injunctive relief. Desjardins also asserted two claims
based on federal statutes—for Reynolds’s violation of 42 U.S.C.S. § 1983
(LEXIS through Pub. L. No. 115-30), and seeking attorney fees pursuant to
42 U.S.C.S. § 1988 (LEXIS through Pub. L. No. 115-30).
[¶3] Reynolds removed the matter to the United States District Court
for the District of Maine. See 28 U.S.C.S. § 1441 (LEXIS through Pub. L. No.
115-30). The District Court (Torresen, J.) dismissed the federal claims, and
1 Desjardins also named Donald Willard, the Town Manager, as a defendant on all counts. The
claims against Willard were dismissed by the United States District Court for the District of Maine,
see Desjardins v. Willard, No. 2:13-cv-00338-NT, 2014 U.S. Dist. LEXIS 84782, at *62 (D. Me. June 20,
2014), aff’d in part and vacated in part, 777 F.3d 43 (1st Cir. 2015), and are not at issue in this
appeal.
3
Desjardins agreed to the dismissal of his claims for negligent and intentional
infliction of emotional distress. Desjardins v. Willard, No. 2:13-cv-00338-NT,
2014 U.S. Dist. LEXIS 84782, at *2-3, 61-62 (D. Me. June 20, 2014). The court
also granted Reynolds’s special motion to dismiss the State claims pursuant to
section 556. Id. at *52-57, 62.
[¶4] On Desjardins’s appeal, the United States Court of Appeals for the
First Circuit affirmed the dismissal of Desjardins’s federal claims, but vacated
the dismissal of his state law claims on section 556 grounds, concluding that
those “issues are better resolved by the state courts, where this case began.”
Desjardins v. Willard, 777 F.3d 43, 46 (1st Cir. 2015). Thus, when the matter
was returned to the Superior Court’s jurisdiction in February of 2015, only
Desjardins’s claims for defamation and false light invasion of privacy
remained.
[¶5] Before the Superior Court, Reynolds reasserted his special motion
to dismiss on anti-SLAPP grounds, with accompanying affidavits and various
exhibits. Desjardins opposed the motion, submitting affidavits and exhibits of
his own. By judgment dated June 29, 2015, the Superior Court (Warren, J.)
granted Reynolds’s special motion to dismiss both remaining causes of action
on anti-SLAPP grounds. Desjardins appeals.
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II. DISCUSSION
[¶6] In this matter, we are called upon to consider the reaches of
Maine’s anti-SLAPP statute, 14 M.R.S. § 556, which provides as follows:
§ 556. Special motion to dismiss
When a moving party asserts that the civil claims,
counterclaims or cross claims against the moving party are based
on the moving party’s exercise of the moving party’s right of
petition under the Constitution of the United States or the
Constitution of Maine, the moving party may bring a special
motion to dismiss. The special motion may be advanced on the
docket and receive priority over other cases when the court
determines that the interests of justice so require. The court shall
grant the special motion, unless the party against whom the
special motion is made shows that the moving party’s exercise of
its right of petition was devoid of any reasonable factual support
or any arguable basis in law and that the moving party’s acts
caused actual injury to the responding party. In making its
determination, the court shall consider the pleading and
supporting and opposing affidavits stating the facts upon which
the liability or defense is based.
The Attorney General on the Attorney General’s behalf or on
behalf of any government agency or subdivision to which the
moving party’s acts were directed may intervene to defend or
otherwise support the moving party on the special motion.
All discovery proceedings are stayed upon the filing of the
special motion under this section, except that the court, on motion
and after a hearing and for good cause shown, may order that
specified discovery be conducted. The stay of discovery remains
in effect until notice of entry of the order ruling on the special
motion.
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The special motion to dismiss may be filed within 60 days of
the service of the complaint or, in the court’s discretion, at any
later time upon terms the court determines proper.
If the court grants a special motion to dismiss, the court
may award the moving party costs and reasonable attorney’s fees,
including those incurred for the special motion and any related
discovery matters. This section does not affect or preclude the
right of the moving party to any remedy otherwise authorized by
law.
As used in this section, “a party’s exercise of its right of
petition” means any written or oral statement made before or
submitted to a legislative, executive or judicial body, or any other
governmental proceeding; any written or oral statement made in
connection with an issue under consideration or review by a
legislative, executive or judicial body, or any other governmental
proceeding; any statement reasonably likely to encourage
consideration or review of an issue by a legislative, executive or
judicial body, or any other governmental proceeding; any
statement reasonably likely to enlist public participation in an
effort to effect such consideration; or any other statement falling
within constitutional protection of the right to petition
government.
Thus, Maine’s anti-SLAPP statute, like those of other jurisdictions, provides a
procedure for the expedited dismissal of lawsuits that are brought not to
redress a legitimate wrong suffered by the plaintiff, but instead solely for the
purpose of dissuading a defendant from exercising his First Amendment right
to petition the government or punishing him for doing so. See Nader v. Me.
Democratic Party (Nader I), 2012 ME 57, ¶ 14, 41 A.3d 551; Morse Bros., Inc. v.
Webster, 2001 ME 70, ¶ 10, 772 A.2d 842 (“The typical mischief that the
6
anti-SLAPP legislation intended to remedy was lawsuits directed at individual
citizens of modest means for speaking publicly against development projects.”
(alteration omitted) (quotation marks omitted)), abrogated on other grounds
by Nader v. Me. Democratic Party (Nader II), 2013 ME 51, ¶ 12 n.9, 66 A.3d
571. Such cases are filed “solely for delay and distraction, and to punish
activists by imposing litigation costs on them.” Morse Bros., Inc., 2001 ME 70,
¶ 10, 772 A.2d 842 (quotation marks omitted). Moreover, because the SLAPP
plaintiff’s goal is not necessarily to win in the litigation, but, through the cost
of litigation, to punish or deter petitioning activity, “defendants’ traditional
safeguards against meritless actions, (suits for malicious prosecution and
abuse of process, requests for sanctions) are inadequate to counter SLAPPs.”
Id. (quotation marks omitted).
[¶7] To further the goals of the statute, section 556 allows the moving
party to file a special motion to dismiss that may be given priority on the
docket as the interests of justice require. 14 M.R.S. § 556; Morse Bros., Inc.,
2001 ME 70, ¶ 10, 772 A.2d 842. In another case issued this month, Gaudette
v. Davis, 2017 ME 86, ¶¶ 18-22, --- A.3d ---, we established some additional
procedural steps for the trial court to undertake to decide special motions to
dismiss filed on anti-SLAPP grounds. Notwithstanding those new procedural
7
elements for which Gaudette provides, the analysis of a special motion to
dismiss in Gaudette begins with the same requirements as those set out in our
prior anti-SLAPP decisions. Id. ¶¶ 16-17. [¶8] As we have consistently stated, section 556 imposes a
burden-shifting procedure between the moving and nonmoving parties. E.g.,
id. ¶¶ 8-9; Camden Nat’l Bank v. Weintraub, 2016 ME 101, ¶ 8, 143 A.3d 788;
Schelling v. Lindell, 2008 ME 59, ¶ 7, 942 A.2d 1226; Morse Bros., Inc., 2001 ME
70, ¶¶ 19-20, 772 A.2d 842. First, in a motion with accompanying affidavits,
the moving party (usually the defendant2) must demonstrate, as a matter of
law, that the anti-SLAPP statute applies to the conduct that is the subject of
the plaintiff’s complaint by establishing that “the suit was based on some
activity that would qualify as an exercise of the defendant’s First Amendment
right to petition the government.” Schelling, 2008 ME 59, ¶ 7, 942 A.2d 1226;
see Gaudette, 2017 ME 86, ¶ 16, --- A.3d ---. If the defendant fails to meet his
initial burden, the special motion to dismiss must be denied. Gaudette,
2017 ME 86, ¶ 16, --- A.3d ---; Nader I, 2012 ME 57, ¶ 15, 41 A.3d 551; see
Schelling, 2008 ME 59, ¶ 7, 942 A.2d 1226.
2 Because it is so often the case, we will use “defendant” in place of “the moving party” and
“plaintiff” in place of “the nonmoving party.”
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[¶9] If the defendant satisfies this initial burden, the burden then shifts
to the nonmoving party (usually the plaintiff) to offer prima facie evidence
that the defendant’s exercise of his right to petition (1) was “devoid of any
reasonable factual support or any arguable basis in law” and (2) caused
“actual injury” to the plaintiff. 14 M.R.S. § 556; see Gaudette, 2017 ME 86, ¶ 17,
--- A.3d ---; Nader I, 2012 ME 57, ¶ 33, 41 A.3d 551. If the plaintiff fails to meet
this prima facie burden for all of the petitioning activities at issue—“either by
the absence of the minimum amount of evidence on either element or based
on some other legal insufficiency”—the special motion must be granted and
the case dismissed. Gaudette, 2017 ME 86, ¶ 17, --- A.3d ---; see Nader I,
2012 ME 57, ¶ 37, 41 A.3d 551.
[¶10] If the plaintiff meets his prima facie burden of establishing that
any one or more of the petitioning activities at issue lacks factual or legal
support and caused the plaintiff actual injury, the parties may avail
themselves of an additional procedural mechanism according to the new
procedure set out in Gaudette. 2017 ME 86, ¶¶ 18-21, --- A.3d ---. That
mechanism provides for limited discovery and an evidentiary hearing at
which the plaintiff must prove that those petitioning activities for which the
9
prima facie burden was met are devoid of factual or legal support and caused
actual injury, this time by a preponderance of the evidence. Id.
[¶11] Here, there can be no legitimate argument but that Reynolds’s
statements to the sheriff’s office regarding Desjardins’s alleged history of
arriving at Town meetings—and having driven his vehicle to those
meetings—while under the influence of alcohol qualify as petitioning activity.3
See Schelling, 2008 ME 59, ¶ 11, 942 A.2d 1226. In addition, Reynolds has not
challenged the Superior Court’s conclusion that Desjardins met his prima facie
burden of establishing that at least one of Reynolds’s statements to the sheriff
was devoid of any factual or legal support. See id. ¶ 7. Therefore, we limit our
review to the issue of whether Desjardins established, on a prima facie basis,
that Reynolds’s petitioning actions caused Desjardins “actual injury.” See id.
[¶12] The meaning of “actual injury” pursuant to section 556 is a
question of law we review de novo. Id. ¶ 17. To interpret section 556 in a
manner that gives effect to the Legislature’s intent, we look first to the plain
language of the provision. MaineToday Media, Inc. v. State, 2013 ME 100, ¶ 6,
82 A.3d 104. If that language is unambiguous, we interpret it according to its
unambiguous meaning. Id. If the language of the statute is ambiguous, i.e.,
3 To the extent that Desjardins also points to Reynolds’s statements to nongovernmental third
parties, Desjardins did not allege any such statements as the basis of any of his claims in this matter
and any such facts are therefore not before us in this appeal.
10
reasonably susceptible to multiple interpretations, we look beyond the plain
language of the provision to consider other indicia of legislative intent,
including the legislative history underlying its enactment. Id.
[¶13] Unlike other terms in the statute, “actual injury” is not defined in
section 556. Indeed, although we often look to other statutory provisions for
clues as to the meaning of particular phrase, section 556 marks the single
occurrence of the phrase “actual injury” in the current Maine Revised Statutes.
[¶14] We have, however, had multiple occasions to address its meaning
in our prior decisions. In those decisions, we have emphasized that “actual
injury” requires a “reasonably certain monetary valuation of the injury”
suffered by the plaintiff. Schelling, 2008 ME 59, ¶ 17, 942 A.2d 1226; see
Nader I, 2012 ME 57, ¶ 38, 41 A.3d 551 (explaining that “[a]ctual injury could
include . . . quantifiable losses of money or other resources or identifiable
special damages”); Maietta Constr., Inc. v. Wainwright, 2004 ME 53, ¶ 10,
847 A.2d 1169 (requiring “evidence from which damage in a definite amount
may be determined with reasonable certainty” (quotation marks omitted)).
The requirement of reasonable certainty also precludes the establishment of
“actual injury” when the plaintiff asserts only presumed damages (“damages
per se”), as is associated with common law causes of action for libel or
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slander. Schelling, 2008 ME 59, ¶¶ 18-19, 942 A.2d 1226; see Maietta Constr.,
Inc., 2004 ME 53, ¶ 10, 847 A.2d 1169.
[¶15] In his opposition to Reynolds’s motion to dismiss, Desjardins
states that he suffered two forms of harm as a result of Reynolds’s actions.
First, Desjardins attested that he was stopped by the sheriff’s deputy on one
occasion “without cause and [was] not allowed to go about his normal
activities for a time,” was “humiliated and embarrassed at that time,” and
“suffered great emotional distress . . . when he learned that he had been red
flagged [by the sheriff’s office] for something that was totally contrived.” The
second form of harm Desjardins suggests he suffered in his opposition to the
special motion to dismiss is an expenditure of $500 he alleges he paid an
attorney after he was stopped, whom he hired to investigate the source of the
reports to the sheriff’s office.
[¶16] As a matter of law, these asserted harms do not rise to the level of
“actual injury” required by section 556. In the lengthy recitation of the
underlying facts comprising his complaint, Desjardins briefly mentioned that
he retained counsel to investigate the reports. His complaint never purported
to seek damages for that cost, however, or to otherwise suggest that his
retention of counsel constituted any aspect of the damages he was seeking in
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the litigation; rather, as to his defamation and false light invasion of privacy
causes of action remaining before the court, Desjardins alleged only that
Reynolds’s statements constituted defamation per se; that he suffered
“humiliation, loss of reputation and severe emotional distress” and “serious
emotional distress”; and that he was entitled to punitive damages for
Reynolds’s actual or implied malice.
[¶17] Our notice pleading requirements are forgiving; the plaintiff need
only give “fair notice of the cause of action by providing a short and plain
statement of the claim showing that the pleader is entitled to relief.” Burns v.
Architectural Doors & Windows, 2011 ME 61, ¶¶ 16, 21, 19 A.3d 823 (citation
omitted) (quotation marks omitted); see M.R. Civ. P. 8(a)(1). The special
motion to dismiss procedure in anti-SLAPP matters is, in contrast, a more
precise mechanism. See Burns, 2011 ME 61, ¶ 21, 19 A.3d 823 (noting that the
notice pleading requirements do not, in any event, allow a party to “shift his
cause of action at any point in the proceedings”). The purpose of section 556
is to provide for expedited consideration of the nature of a plaintiff’s
allegations—and a minimum amount of evidence supporting the veracity of
those allegations—as early in the litigation as possible, before discovery or
any other motion practice. See 14 M.R.S. § 556 (requiring that “[a]ll discovery
13
proceedings are stayed upon the filing of the special motion under this
section”); Bradbury v. City of Eastport, 2013 ME 72, ¶ 18, 72 A.3d 512. In this
way, a defendant burdened by a SLAPP case can seek early disposal of the
litigation, before the substantial legal fees that are the true impetus behind
SLAPP litigation can accrue.
[¶18] Although this process may appear abrupt, it provides protection
for a citizen’s fundamental right to petition the government, a right that the
Legislature has given priority by enacting the anti-SLAPP statute. See
Bradbury, 2013 ME 72, ¶¶ 9-10, 72 A.3d 512; Morse Bros., Inc., 2001 ME 70,
¶ 10, 772 A.2d 842. The Legislature has chosen to protect petitioning activity
by broadly defining a “party’s exercise of its right of petition” and by creating
a procedure for the prompt dismissal of lawsuits that challenge any actions
that fall within that broad definition of petitioning activity. 14 M.R.S. § 556.
[¶19] In this context, both parties must be limited in their anti-SLAPP
filings to the universe of facts as actually alleged in the plaintiff’s complaint.4
By alleging a new form of harm for the first time solely in response to the
special motion to dismiss, Desjardins has attempted to thwart the purpose of
the anti-SLAPP statute by expanding the scope of the litigation that Reynolds
4 At no time did Desjardins seek to amend his complaint. See M.R. Civ. P. 15.
14
must defend against. Because Desjardins’s pre-litigation investigation
expenditure constitutes no part of his request for damages in his complaint,
we reject that cost as an “actual injury” within the meaning of section 556 at
the special motion to dismiss stage.5 Cf. Nader II, 2013 ME 51, ¶ 20, 66 A.3d
571 (observing that, although the plaintiff referenced relevant evidence in his
complaint, his failure to provide that evidence in his opposition to a special
motion to dismiss pursuant to section 556 precluded the court from
determining that the plaintiff met his prima facie burden).
[¶20] Nor did Desjardins meet his burden of establishing actual injury
through his various assertions of emotional damages, although these do at
least correspond with the allegations in his complaint. In Schelling, we held
that “purely emotional injuries” could only constitute “actual injury” to the
extent that those emotional damages were otherwise compensable pursuant
to existing statutory or common law. 2008 ME 59, ¶ 20, 942 A.2d 1226.
Because the common law provides that “emotional distress alone is not
compensable unless it is ‘so severe that no reasonable person could be
expected to endure it,’” “actual injury” based on emotional distress pursuant
5 Because we conclude that Desjardins’s failure to conform his special motion to dismiss
opposition to the allegations pleaded in his complaint prevents him from meeting his burden, we
need not consider whether such self-generated damages otherwise can satisfy the “actual injury”
component of an anti-SLAPP opposition. 14 M.R.S. § 556 (2016).
15
to section 556 cannot be established by anything less as a matter of law.
Id. ¶ 25 (quoting Curtis v. Porter, 2001 ME 158, ¶ 10, 784 A.2d 18). Thus, “loss
of sleep, mental suffering, . . . embarrassment, . . . [d]istress, irritation, and
emotional upset” are not “legally sufficient” to constitute “actual injury,” nor
are “minor emotional injuries, such as hurt feelings.” Id. ¶¶ 18, 25-26.
[¶21] Consistent with these decisions, Desjardins suffered no “actual
injury” by the inconvenience of being the subject of a routine traffic stop, nor
do his filings contain any evidence that the emotional distress he has suffered
is “so severe that no reasonable person could be expected to endure it.”
Curtis, 2001 ME 158, ¶ 10, 784 A.2d 18 (alteration omitted) (quotation marks
omitted); see, e.g., Lougee Conservancy v. CitiMortgage, Inc., 2012 ME 103,
¶¶ 4-8, 26, 48 A.3d 774 (concluding that the emotional harm suffered by
property owners whose property was inadvertently secured in foreclosure
did not amount to compensable emotional distress damages); Lyman v. Huber,
2010 ME 139, ¶¶ 23-26, 10 A.3d 707 (discussing that emotional distress that
meets this standard is often characterized by “objective symptoms
demonstrating shock, illness, or other bodily harm,” and concluding that the
emotional harm suffered by a woman during a fifteen-year emotionally
abusive marriage was not so severe that a reasonable person could not be
16
expected to endure it). In the absence of any showing of such “actual injury,”
Desjardins failed, as a matter of law, to meet his prima facie burden in
opposing Reynolds’s special motion to dismiss pursuant to section 556, and
the Superior Court correctly dismissed the remaining claims. Moreover,
because we conclude that Desjardins did not meet his prima facie burden as a
matter of law according to the standard first articulated in Nader I and
reiterated in Gaudette, we need not remand the matter for the Superior Court
to apply the additional procedures articulated in Gaudette, which apply only if
a plaintiff has met his prima facie burden. See Gaudette, 2017 ME 86,
¶ 17, --- A.3d ---; Nader I, 2012 ME 57, ¶¶ 16, 29-38, 41 A.3d 551.
The entry is:
Judgment affirmed.
JABAR, J., dissenting.
[¶22] I respectfully dissent for two reasons. First, the Court’s decision
overstates the protection afforded to petitioning activity. The decision
prevents what would otherwise be a meritorious case of defamation from
proceeding in our courts. The Court states that Maine’s anti-SLAPP statute,
14 M.R.S. § 556 (2016), “create[s] a procedure for the prompt dismissal of
17
lawsuits that challenge any actions that fall within that broad definition of
petitioning activity.” Court’s Opinion ¶ 18 (emphasis added). This is not
accurate; the statute was intended to protect petitioning activity from
nonmeritorious lawsuits—not from meritorious lawsuits. A person engaged
in petitioning activity is not immune from a meritorious defamation action.
[¶23] Second, we should broaden the definition of “actual injury” to
include nonmonetary or non-out-of-pocket damages traditionally allowed in
defamation cases.
I. MERITORIOUS CASES
[¶24] Our decisions have historically and consistently stated that the
purpose of Maine’s anti-SLAPP statute is to protect against meritless lawsuits
filed with the purpose of discouraging participation in activities protected by
the First Amendment, such as the right to petition the government. See Morse
Bros., Inc. v. Webster, 2001 ME 70, ¶ 15, 772 A.2d 842 (stating that the special
motion to dismiss “is a statutory creature designed to protect certain
defendants from meritless litigation”). The critical descriptive term—
“meritless”—or some synonym—e.g., “baseless”—appears in nearly every
decision in which we have addressed the statute.6 The fact that anti-SLAPP
6 See Bradbury v. City of Eastport, 2013 ME 72, ¶ 9, 72 A.3d 512 (“The purpose of the anti-SLAPP
statute and the special motion to dismiss is to provide a ‘procedural mechanism to dispose of
18
statutes protect only against meritless or frivolous lawsuits is well established
in scholarly writing.7 As the Court notes in its decision, “because the SLAPP
plaintiff’s goal is not necessarily to win in the litigation, but, through the cost
of litigation, to punish or deter petitioning activity, ‘defendants’ traditional
safeguards against meritless actions, (suits for malicious prosecution and
abuse of process, requests for sanctions) are inadequate to counter SLAPPs.’”
Court’s Opinion ¶ 6 (quoting Morse Bros., Inc., 2001 ME 70, ¶ 10, 772 A.2d
842). As we noted in Maietta Construction, Inc. v. Wainwright, “the anti-SLAPP
baseless lawsuits that are brought not to vindicate the plaintiff’s rights but to punish the defendant
for exercising her constitutional right to petition the government . . . .” (quotation marks omitted));
Nader v. Me. Democratic Party (Nader I), 2012 ME 57, ¶ 22, 41 A.3d 551 (“Despite the apparent
purpose of the anti-SLAPP statute to dispose expeditiously of meritless lawsuits that may chill
petitioning activity, the statutory language fails to track and implement such an objective. By
protecting one party’s exercise of its right of petition, unless it can be shown to be sham petitioning,
the statute impinges on the adverse party’s exercise of its right to petition, even when it is not
engaged in sham petitioning.” (quotation marks omitted)); Schelling v. Lindell, 2008 ME 59, ¶ 6,
942 A.2d 1226 (“Title 14 M.R.S. § 556, known as Maine’s anti-SLAPP statute . . . , is designed to
guard against meritless lawsuits brought with the intention of chilling or deterring the free exercise
of the defendant’s First Amendment right to petition the government by threatening would-be
activists with litigation costs.”); Morse Bros., Inc. v. Webster, 2001 ME 70, ¶ 10, 772 A.2d 842 (stating
that the anti-SLAPP statute is designed to protect against meritless lawsuits filed to dissuade or
punish a party’s exercise of its constitutional rights by imposing on it the delays and costs
associated with litigation).
7 See Steven J. Andre, Anti-SLAPP Confabulation and the Government Speech Doctrine, 44 Golden
Gate U. L. Rev. 117, 119 (2014) (“The hallmark of a SLAPP suit is its lack of merit. Defendants
prevail on the merits in over 77% of SLAPP suits. A SLAPP is brought with goals of obtaining an
economic advantage over a citizen party by increasing the cost of litigation, to weaken that
defendant’s ability to engage in petitioning activity undesirable to the plaintiff, and to deter future
activity.” (footnotes omitted) (quotation marks omitted)); John C. Barker, Common-Law and
Statutory Solutions to the Problem of SLAPPS, 26 Loy. L.A. L. Rev. 395, 399 (1993) (“SLAPPs are by
definition meritless suits.”); Leah McGowan Kelly, Election SLAPPS: Effective at Suppressing Political
Participation and Giving Anti-SLAPP Statutes the Slip, 66 Me. L. Rev. 191, 192 (2013).
19
statute is aimed at preventing litigation that has no chance of succeeding on
the merits.” 2004 ME 53, ¶ 12, 847 A.2d 1169.
[¶25] Maine’s anti-SLAPP statute, like anti-SLAPP statutes from other
states, has a single objective: to force lawsuits that are brought as a result of
petitioning activity to face judicial scrutiny before discovery and litigation
costs are incurred by the responding party. As the Court notes in its decision,
[t]he purpose of section 556 is to provide for expedited
consideration of the nature of a plaintiff’s allegations—and a
minimum amount of evidence supporting the veracity of those
allegations—as early in the litigation as possible, before discovery
or any other motion practice. In this way, a defendant burdened
by a SLAPP case can seek early disposal of the litigation, before
the substantial legal fees that are the true impetus behind SLAPP
litigation can accrue.
Court’s Opinion ¶ 17 (citations omitted).
[¶26] The Court’s announcement today that Maine’s anti-SLAPP statute
bars a claim for defamation that the plaintiff would otherwise be entitled to
pursue creates a pervasive immunity—in derogation of common law rights—
for all activity undertaken within the broad category of petitioning activity. It
marks an extraordinary departure from well-established jurisprudence
construing the operation of section 556.
[¶27] If the Legislature had intended section 556 to establish such a
wide-ranging immunity, the statute would simply provide that a defendant
20
need only demonstrate that the actions cited in the complaint consisted of
valid petitioning activities and that upon such demonstration the lawsuit must
be dismissed. Instead, section 556 requires a showing of valid petitioning
activity as the first step in the process. The second step—a showing that the
defendant’s acts were “devoid of any reasonable factual support or any
arguable basis in law” and “caused actual injury”—is directed to the plaintiff’s
complaint.8 If the Legislature intended to create a presumptive, pervasive
immunity based simply upon petitioning, as the Court posits, no subsequent
steps beyond the first would be required.
II. ACTUAL INJURY
[¶28] In addition to overstating the protection afforded by Maine’s
anti-SLAPP statute to any action, the Court’s definition of “actual injury” is too
narrow. Although our jurisprudence has limited the definition of “actual
injury” to out-of-pocket damages, see Camden Nat’l Bank v. Weintraub,
2016 ME 101, ¶¶ 12-14, 143 A.3d 788 (citing Schelling v. Lindell, 2008 ME 59,
¶ 17, 942 A.2d 1226), it is time to revisit and overrule those cases, because
this narrow definition of “actual injury” prevents what would otherwise be a
8 I agree with the Court that “Reynolds has not challenged the Superior Court’s conclusion that
Desjardins met his prima facie burden of establishing that at least one of Desjardins’s statements to
the sheriff was devoid of any factual or legal support.” Court’s Opinion ¶ 11. My disagreement with
the Court’s decision is limited to the scope of the anti-SLAPP statute and the meaning of “actual
injury” as that term of art is used in it.
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meritorious defamation case from proceeding in our courts. The common law
of defamation allows for the recovery of damages without evidence of
out-of-pocket expenses. In Gertz v. Robert Welch, Inc., the United States
Supreme Court said:
We need not define ‘actual injury,’ as trial courts have wide
experience in framing appropriate jury instructions in tort
actions. Suffice it to say that actual injury is not limited to
out-of-pocket loss. Indeed, the more customary types of actual
harm inflicted by defamatory falsehood include impairment of
reputation and standing in the community, personal humiliation,
and mental anguish and suffering.
418 U.S. 323, 349-50 (1974). We have enunciated similar rules regarding
injuries in defamation cases. See Curtis v. Porter, 2001 ME 158, ¶ 19, 784 A.2d
18 (“We have long allowed recovery for mental anguish and loss of enjoyment
of life in most tort actions.” (quotation marks omitted)); Rippett v. Bemis,
672 A.2d 82, 88 (Me. 1996) (stating that defamation damages “may include
the elements of mental suffering, humiliation, embarrassment, effect on
reputation and loss of social standing so far as they have been proved and may
reasonably be presumed”); Saunders v. VanPelt, 497 A.2d 1121, 1126
(Me. 1985).
[¶29] Requiring a litigant to prove out-of-pocket expenses to establish
“actual injury” in a defamation case is in derogation of our common law. The
22
enactment of a statute in derogation of common law is a profoundly
significant step and we must not presume that the Legislature has done so in
the absence of a very clear statement of its intention to change existing
common law. We reiterated our longstanding adherence to this rule in
Batchelder v. Realty Resources Hospitality, LLC., where we explained that
we have long embraced the well-established rule of statutory
construction that the common law is not to be changed by
doubtful implication, be overturned except by clear and
unambiguous language, and that a statute in derogation of it will
not effect a change thereof beyond that clearly indicated either by
express terms or necessary implication.
2007 ME 17, ¶ 23, 914 A.2d 1116 (quotation marks omitted).
[¶30] Among the authorities cited for our statement in Batchelder was
Maietta Construction, Inc., which confirmed the proposition that “[g]enerally,
Legislatures are deemed to draft legislation against the backdrop of the
common law, and do not displace it without directly addressing the issue.”
2004 ME 53, ¶ 10, 847 A.2d 1169 (emphasis added). We also cited Ziegler v.
American Maize-Products Co., where we noted that a “legislative
pronouncement embodied in [a statute] alters common law only to the extent
that the Legislature has made that purpose clear.” 658 A.2d 219, 223
23
(Me. 1995). By contrast, neither the legislative history9 nor the plain language
of section 556 evidence an intention to deprive Maine citizens of meritorious
common law causes of action simply because the wrongdoer committed the
wrong in the context of petitioning government. We have never so held in any
of our cases construing section 556. For these reasons, we should broaden the
definition of “actual injury” to its traditional definition as existing in our
jurisprudence. Absent the Legislature’s clear intent to change the common
law regarding damages in defamation cases, interpreting “actual injury”
consistently with our previous anti-SLAPP cases denies Maine’s litigants
access to the courts for what would otherwise be meritorious cases. By
interpreting section 556 to require proof of a quantifiable sum of
out-of-pocket damages, the Court has abrogated Maine’s common law
definition of “injury” in defamation cases.
[¶31] Therefore, we must define “actual injury” as we have traditionally
defined actual injury in defamation cases by not limiting the definition to
out-of-pocket expenses. Because Desjardin established a prima facie case of
emotional injury, which would be recoverable in a defamation claim as an
9 We have in the past recognized that the limited legislative history of section 556 constrains
our interpretation of the statute. See Town of Madawaska v. Cayer, 2014 ME 121, ¶ 14, 103 A.3d
547 (noting that unlike other states’ anti-SLAPP statutes, “there is limited legislative history to shed
light on the question of its scope”).
24
“actual injury” without proof of out-of-pocket expenses, I would vacate the
trial court’s grant of Reynolds’s special motion to dismiss and remand the case
to Superior Court. Because I do not agree with the Court’s new evidentiary
procedure, see Gaudette v. Davis, 2017 ME 86, ¶¶ 26, 34, 42-45, --- A.3d ---
(Jabar, J., dissenting), judgment should be entered against Reynolds on his
special motion to dismiss and the case should be remanded to the Superior
Court to proceed in the normal course.
John S. Campbell, Esq. (orally), Campbell & Associates, P.A., Portland, for
appellant Dana Desjardins
Daniel J. Murphy, Esq. (orally), Bernstein Shur, Portland, for appellee Michael
Reynolds
Cumberland County Superior Court docket number CV-2013-369
FOR CLERK REFERENCE ONLY