Norman Gaudette v. Terry M. Davis Corrected August 24, 2017 (

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2017 ME 86Docket: Yor-15-564
Argued: June 10, 2016
Decided: May 9, 2017
Corrected: August 24, 2017
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HUMPHREY, JJ.
Majority: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, and HUMPHREY, JJ.
Dissent: JABAR, J.
NORMAN GAUDETTE
v.
TERRY M. DAVIS
GORMAN, J.
[¶1] Terry M. Davis appeals from an order of the Superior Court (York
County, O’Neil, J.) denying his special motion to dismiss, pursuant to 14 M.R.S.
§ 556 (2016), a complaint filed against him by Norman Gaudette. Davis
contends that the court erred by allowing the lawsuit to move forward
because 14 M.R.S. § 556, Maine’s anti-SLAPP (“Strategic Lawsuit Against
Public Participation”) statute, requires that the complaint be dismissed.
Because we clarify the process for the handling of these special motions, we
vacate the judgment and remand the matter to the trial court.
2
I. BACKGROUND
[¶2] On June 1, 2015, Gaudette instituted a lawsuit against Davis
alleging that, from 1990 to 1991, when both worked for the Biddeford Police
Department, Gaudette was investigated for alleged sexual abuse, and that
when those allegations recently resurfaced, Davis made various statements
inculpating Gaudette and suggesting a cover-up by an Assistant Attorney
General. By amended complaint, Gaudette asserted six counts against Davis:
(I) defamation as to statements Davis made to a reporter that were published
in a local newspaper; (II) defamation as to a letter written by Davis and read
aloud at a public forum and submitted to State officials; (III) intentional
infliction of emotional distress; (IV) negligent infliction of emotional distress;
(V) violation of the Criminal History Record Information Act, 16 M.R.S.
§§ 701-710 (2014),1 and the Intelligence and Investigative Record
Information Act, 16 M.R.S. §§ 801-809 (2014);2 and (VI) seeking punitive
damages.
[¶3] Davis answered the complaint and, soon after, filed a special
motion to dismiss the lawsuit—with an accompanying affidavit and exhibits—
1 Title 16 M.R.S. § 707 has since been amended, but that amendment does not affect this appeal.
P.L. 2015, ch. 354, § 2 (effective Oct. 15, 2015) (codified at 16 M.R.S. § 707 (2016)).
2 Title 16 M.R.S. § 806 has since been amended, but that amendment does not affect this appeal.
P.L. 2015, ch. 411, §§ 1-2 (effective July 29, 2016) (codified at 16 M.R.S. § 806 (2016)).
3
on grounds that the complaint was barred by the anti-SLAPP statute, 14 M.R.S.
§ 556. Gaudette submitted his own affidavits and exhibits in opposition to the
special motion to dismiss. After a nontestimonial hearing, by judgment dated
October 26, 2015, the court denied Davis’s special motion to dismiss. Davis
timely appeals.3
II. DISCUSSION
[¶4] A so-called “Strategic Lawsuit Against Public Participation”
(SLAPP) refers to litigation instituted not to redress legitimate wrongs, but
instead to “dissuade or punish” the defendant’s First Amendment exercise of
rights through the delay, distraction, and financial burden of defending the
suit. Morse Bros., Inc. v. Webster, 2001 ME 70, ¶ 10, 772 A.2d 842 (quotation
marks omitted). Maine’s anti-SLAPP statute, 14 M.R.S. § 556, purports to
provide a means for the swift dismissal of such lawsuits early in the litigation
as a safeguard on the defendant’s First Amendment right to petition:
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
3We have recognized the right to immediately appeal from the denial of a special motion to
dismiss on anti-SLAPP grounds, notwithstanding the lack of a final judgment on the underlying
complaint. Schelling v. Lindell, 2008 ME 59, ¶ 8, 942 A.2d 1226.
4
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.
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
5
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.
14 M.R.S. § 556; see Maietta Constr., Inc. v. Wainwright, 2004 ME 53, ¶ 6,
847 A.2d 1169.
[¶5] Despite an extensive statement regarding the purpose and effect of
the anti-SLAPP law, section 556 has left some gaps in direction regarding its
application that we and the trial courts have attempted to address on a
case-by-case basis as issues arise. Of particular relevance to this appeal is the
question of how, in the course of the mandated expedited consideration of the
special motion to dismiss, a court should resolve any factual disputes.
[¶6] The First Amendment guarantees the “freedom of speech” and “the
right of the people . . . to petition the Government for a redress of grievances.”
U.S. Const. amend. I; see U.S. Const. amend. XIV; Me. Const. art. I, § 4; Cent. Me.
Power Co. v. Pub. Utils. Comm’n, 1999 ME 119, ¶ 8, 734 A.2d 1120 (stating that
“[t]he First Amendment to the United States Constitution [is] applicable to the
states through the Due Process Clause of the Fourteen Amendment”). Within
the right to petition is also found the right to access courts to seek redress for
6
claimed injuries. U.S. Const. amend. I; Me. Const. art. I, § 19; McDonald v.
Smith, 472 U.S. 479, 482-83 (1985); Nader v. Me. Democratic Party (Nader I),
2012 ME 57, ¶¶ 20-25, 41 A.3d 551. Any application of the anti-SLAPP statute
to actual petitioning activity creates tension between at least these two
coexistent constitutional rights. Therefore, when considering a motion to
dismiss pursuant to section 556, a court must attempt to recognize and
protect both the defendant’s actions that might constitute an exercise of his
First Amendment right to petition—here, Davis’s statements about Gaudette’s
alleged involvement in illegal and immoral acts—and the plaintiff’s,
Gaudette’s, right of access to the courts to seek redress for those same
actions.4 See Nader I, 2012 ME 57, ¶¶ 20-25, 41 A.3d 551; Morse Bros.,
2001 ME 70, ¶ 15 n.2, 772 A.2d 842.
[¶7] In the twenty-two years since its first enactment, see P.L. 1995,
ch. 413, § 1 (effective Sept. 29, 1995), we have had occasion to consider the
anti-SLAPP statute on fewer than ten occasions—in Morse Brothers, 2001 ME
70, 772 A.2d 842; Maietta Construction, 2004 ME 53, 847 A.2d 1169; Schelling
v. Lindell, 2008 ME 59, 942 A.2d 1226; Nader I, 2012 ME 57, 41 A.3d 551;
4 Depending on the activity at issue, other constitutional rights may also be implicated, such as
the right of access to the ballot. See Nader v. Me. Democratic Party (Nader I), 2012 ME 57, ¶¶ 26-27
& n.11, 41 A.3d 551.
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Nader v. Maine Democratic Party (Nader II), 2013 ME 51, 66 A.3d 571;
Bradbury v. City of Eastport, 2013 ME 72, 72 A.3d 512; Town of Madawaska v.
Cayer, 2014 ME 121, 103 A.3d 547; and Camden National Bank v. Weintraub,
2016 ME 101, 143 A.3d 788. Although the basic procedure dictated by section
556 has remained constant throughout these prior decisions, we have made
changing pronouncements on certain aspects of anti-SLAPP practice on which
the statute is silent.
[¶8] We have consistently specified a shifting assignment of burdens.
Weintraub, 2016 ME 101, ¶ 8, 143 A.3d 788; Morse Bros., 2001 ME 70,
¶¶ 19-20, 772 A.2d 842. It is first the moving party’s (generally, the
defendant’s) burden to establish, as a matter of law, that “the claims against
[him] are based on [his] exercise of the right to petition pursuant to the
federal or state constitutions.”5 Morse Bros., 2001 ME 70, ¶ 19, 772 A.2d 842;
5As we have noted, the anti-SLAPP statute was primarily intended to address citizen objections
in land matters: “The typical mischief that the anti-SLAPP legislation intended to remedy was
lawsuits directed at individual citizens of modest means for speaking publicly against development
projects.” Morse Bros., Inc. v. Webster, 2001 ME 70, ¶ 10, 772 A.2d 842 (alteration omitted)
(quotation marks omitted); see Town of Madawaska v. Cayer, 2014 ME 121, ¶ 13, 103 A.3d 547(noting that the “classic anti-SLAPP case[]” is one in which “citizens who publicly oppose
development projects are sued by companies or other citizens”); Maietta Constr., Inc. v. Wainwright,
2004 ME 53, ¶ 7, 847 A.2d 1169.
Because of the broad language chosen by the Legislature to define petitioning activity,
however, we have been presented with a series of anti-SLAPP matters in which the plaintiff is suing
the defendant for some form of defamation, and in which the plaintiff primarily claims to have
suffered emotional distress, loss of sleep, embarrassment and humiliation, and the like.
E.g., Camden Nat’l Bank v. Weintraub, 2016 ME 101, ¶ 3, 143 A.3d 788; Nader I, 2012 ME 57, ¶¶ 5-9,
8
see Nader II, 2013 ME 51, ¶ 12 n.9, 66 A.3d 571. If the moving party does not
meet that burden, the anti-SLAPP statute does not apply and the special
motion to dismiss must be denied without any further inquiry into the
nonmoving party’s anti-SLAPP filings. Nader I, 2012 ME 57, ¶ 15, 41 A.3d 551.
[¶9] If the moving party establishes that the activity that is the subject
of the litigation constitutes petitioning activity, and thereby that the
anti-SLAPP statute applies, the burden then shifts to the nonmoving party
(generally, the plaintiff in the underlying suit) to establish that although
petitioning activity is at issue, that petitioning activity (1) “was devoid of any
reasonable factual support or any arguable basis in law” and (2) “caused
actual injury to the [nonmoving] party.” 14 M.R.S. § 556; see Morse Bros.,
2001 ME 70, ¶ 20, 772 A.2d 842.
[¶10] Applying the process we created in earlier opinions, to meet their
respective burdens in the trial court, both parties relied solely on the
pleadings and affidavits submitted in advancing or opposing the special
motion to dismiss. See 14 M.R.S. § 556; Morse Bros., 2001 ME 70, ¶ 17,
772 A.2d 842.
41 A.3d 551; Schelling, 2008 ME 59, ¶ 5, 942 A.2d 1226; Maietta Constr., 2004 ME 53, ¶¶ 4, 9-10,
847 A.2d 1169.
9
[¶11] The portion of the analysis that we have modified is the standard
by which those pleadings and affidavits are reviewed by the trial court, and by
us. In Morse Brothers, we held that “[b]ecause the special motion [to dismiss]
requires the consideration of both pleadings and affidavits, the standard of
review should resemble the standard for reviewing a motion for summary
judgment.” 2001 ME 70, ¶ 17, 772 A.2d 842. According to that standard, the
trial court was tasked with “view[ing] the evidence in the light most favorable
to the moving party because the [nonmoving] party bears the burden of proof
when the statute applies”—that is, in the face of conflicting facts, the court
must grant the special motion to dismiss the action. Id. ¶ 18. Three years
later, we applied the same standard in Maietta Construction, 2004 ME 53, ¶ 8,
847 A.2d 1169.
[¶12] In Nader I, we changed course and articulated a review standard
by which the nonmoving party was required to demonstrate only “prima facie
evidence to support its burden of showing that the moving party’s petitioning
activity 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 [nonmoving]
party.” 2012 ME 57, ¶ 33, 41 A.3d 551 (quotation marks omitted). A prima
facie standard is a low one, and requires only “some evidence” on the required
10
elements of proof and does not depend on the reliability or credibility of that
evidence. Id. ¶¶ 34-35 (quotation marks omitted); cf. Nader II, 2013 ME 51,
¶ 19, 66 A.3d 571 (cautioning that “averments made on information and
belief” do not satisfy a prima facie burden, and the attesting party must
instead provide some admissible evidence (quotation marks omitted)).
Further, the plaintiff needed only to meet this burden as to any one of the
petitioning activities at issue, and was not obligated to establish prima facie
evidence that all of the defendant’s petitioning activities were devoid of a
factual or reasonable basis and caused actual injury.6 Nader I, 2012 ME 57,
¶ 36, 41 A.3d 551; see Nader II, 2013 ME 51, ¶ 14, 66 A.3d 571 (applying the
standard as enunciated in Nader I); see also Weintraub, 2016 ME 101,
¶¶ 10-11, 143 A.3d 788 (same); Cayer, 2014 ME 121, ¶ 9, 103 A.3d 547(same).
[¶13] The shift from the Morse Brothers standard to the Nader I
standard represented an adjustment in the balancing of the protections
afforded within anti-SLAPP procedure. Pursuant to the practice established
by Morse Brothers, 2001 ME 70, ¶ 18, 772 A.2d 842, when conflicting facts
6 In Morse Brothers, we stated that on appeal, we review the denial of a special motion to dismiss
on anti-SLAPP grounds for an abuse of discretion or error of law. 2001 ME 70, ¶ 18, 772 A.2d 842.
Twelve years later, we held instead that our review is de novo, founded as it is on the statutory
interpretation of section 556, and that the abuse of discretion standard did not apply. Nader v. Me.
Democratic Party (Nader II), 2013 ME 51, ¶ 12 n.9, 66 A.3d 571.
11
were alleged, the court was required to grant the special motion to dismiss the
action. As a result, the Morse Brothers process provided greater protection to
the right to petition than to the right to access the courts. According to the
standard we adopted in Nader I, 2012 ME 57, ¶¶ 30, 35, 41 A.3d 551,
however, when conflicting facts were alleged, the court was required to deny
the special motion to dismiss and allow the matter to proceed to trial. Thus,
the Nader I standard afforded greater protection to the right to access the
courts than to the right to petition.
[¶14] We now conclude that neither system, by itself, provides
sufficient protection for the due process rights of both the plaintiff and the
defendant: the Morse Brothers standard provides virtually no protection for
the right to seek redress for harms through suit, and the Nader I standard
results in a pronounced dilution of the Legislature’s apparent objective in
enacting the anti-SLAPP statute—the prompt dismissal of lawsuits that
threaten a defendant’s right to petition.
[¶15] We therefore return, as we must in any statutory interpretation
matter, to the plain language of section 556, see Weintraub, 2016 ME 101, ¶ 9,
143 A.3d 788, and in particular, to its mandate that “[t]he court shall grant the
special motion [to dismiss], unless the party against whom the special motion is
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made shows” the necessary criteria, i.e., “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
[nonmoving] party,” 14 M.R.S. § 556 (emphases added). As written, section
556 places the burden on the nonmoving party to “show[]” that the
petitioning activity was baseless. It also sets out as the default that the matter
“shall” be dismissed if the moving party has established that it is petitioning
activity at issue. 14 M.R.S. § 556. By this plain language, the Legislature has
demonstrated its intention to grant strong protection to petitioning activity,
and indeed, perhaps stronger protection to petitioning activity than the
competing right to seek relief from the court. We cannot, however, provide no
protection for the right to seek redress in court.
[¶16] We therefore clarify that the following procedure is to apply in
matters in which the anti-SLAPP statute is raised. First, as always, the
defendant must file a special motion to dismiss and establish, based on the
pleadings and affidavits, that “the claims against [him] are based on [his]
exercise of the right to petition pursuant to the federal or state constitutions.”
Morse Bros., 2001 ME 70, ¶ 19, 772 A.2d 842. That it is petitioning activity at
issue, and that the anti-SLAPP statute therefore applies, is purely a question of
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law for the court’s decision. Nader II, 2013 ME 51, ¶ 12 n.9, 66 A.3d 571. If
the moving party filing the special motion to dismiss does not establish that
the claims are based on his or her petitioning activity as a matter of law, the
court must deny the special motion to dismiss without any need to review any
opposition by the plaintiff. Nader I, 2012 ME 57, ¶ 15, 41 A.3d 551.
[¶17] If the court agrees that the defendant has met this burden as a
matter of law, the court must then consider the plaintiff’s opposition to the
special motion to dismiss. Id. ¶ 16. As set out in Nader I, and in accordance
with section 556, it is the plaintiff’s burden to establish, through the pleadings
and affidavits, prima facie evidence that the defendant’s petitioning activity
was “devoid of any reasonable factual support or any arguable basis in law”
and that the defendant’s petitioning activity “caused actual injury” to the
plaintiff. Id. ¶¶ 16, 29-38 (quotation marks omitted). If the plaintiff fails to
meet any portion of this prima facie burden—either by the absence of the
minimum amount of evidence on either element or based on some other legal
insufficiency, see, e.g., Nader II, 2013 ME 51, ¶¶ 19-25, 66 A.3d 571; Schelling,
2008 ME 59, ¶¶ 17-27, 942 A.2d 1226—the special motion to dismiss must be
granted, either partially or wholly, with no additional procedure. 14 M.R.S.
§ 556; see Nader I, 2012 ME 57, ¶ 37, 41 A.3d 55.
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[¶18] We now hold, however, contrary to what we indicated in Nader I,
2012 ME 57, ¶ 30, 41 A.3d 551, that if the plaintiff meets this prima facie
burden for any or all of the defendant’s petitioning activities, the special
motion to dismiss is not then automatically denied. Rather, we establish an
additional procedural component whereby, on motion by either party, (1) the
court permits the parties to undertake a brief period of limited discovery, the
terms of which are determined by the court after a case management hearing,
and (2) at the conclusion of that limited discovery period, the court conducts
an evidentiary hearing.7 At the evidentiary hearing, it is the plaintiff’s burden
to establish, by a preponderance of the evidence, each of the elements for
opposing the dismissal on anti-SLAPP grounds for which he successfully made
out his prima facie case—that the defendant’s petitioning activity was devoid
of factual support or an arguable legal basis and that the petitioning activity
caused the plaintiff actual injury.8 See 14 M.R.S. § 556; Nader I, 2012 ME 57,
¶ 33, 41 A.3d 551. If neither party requests discovery and/or the evidentiary
7 This procedure comports with and satisfies the discovery provisions in the third and fifth
paragraphs of 14 M.R.S. § 556 (2016), including the requirement of “good cause.”
8 On appeal, we will therefore review any findings of fact as we do for any factual
determination—for clear error or, if the plaintiff was unsuccessful in meeting his burden by a
preponderance of the evidence, to determine whether the trial court was compelled to find in the
plaintiff’s favor. See St. Louis v. Wilkinson Law Offices, P.C., 2012 ME 116, ¶ 17, 55 A.3d 443. We also
continue to embrace the standard of review on appeal as clarified in Nader II, and we therefore
review the trial court’s ultimate decision on a special motion to dismiss on anti-SLAPP grounds
de novo as a matter of law. 2013 ME 51, ¶ 12 & n.9, 66 A.3d 571.
15
hearing, however, the court shall decide whether the plaintiff has met this
burden by a preponderance of the evidence based only on the parties’
submissions in seeking and opposing the special motion to dismiss.
[¶19] To protect the defendant from the type of generalized and
burdensome discovery that the anti-SLAPP statute was meant to obviate, the
trial court must strictly limit the scope of both discovery and the hearing itself
in two ways. First, the issues the parties may be allowed to conduct discovery
on or litigate are strictly limited to the elements of the plaintiff’s burden in
opposing the anti-SLAPP motion—whether the defendant’s petitioning
activity was “devoid of any reasonable factual support or any arguable basis in
law” and whether the activity “caused actual injury” to the plaintiff. 14 M.R.S.
§ 556; see Nader I, 2012 ME 57, ¶ 33, 41 A.3d 551. We emphasize that these
elements are distinguishable from the elements of the plaintiff’s burden on his
underlying causes of action; discovery and evidence that pertain to the causes
of action themselves are not relevant at this stage of the proceeding, and only
become relevant if the plaintiff survives the evidentiary hearing on the
anti-SLAPP motion.
[¶20] Second, neither discovery nor the hearing may address any
petitioning activity for which the plaintiff’s prima facie burden was not met.
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As we held in Nader I, to survive the special motion to dismiss, the plaintiff
must meet his prima facie burden as to any one of the petitioning activities at
issue, and is not required to establish that all of the defendant’s petitioning
activities were devoid of a factual or legal basis and caused actual injury.
2012 ME 57, ¶ 36, 41 A.3d 551. However, the plaintiff shall not be permitted
to investigate or litigate facts surrounding those petitioning activities for
which he was unable to establish prima facie evidence because those activities
may form no further basis for the plaintiff’s opposition to the anti-SLAPP
motion or the remaining litigation on the plaintiff’s underlying complaint.
[¶21] We reiterate that this evidentiary hearing is not, in any way,
intended to be a decision on the merits of those causes of action for which the
plaintiff has met his prima facie burden, and that the only decision to be
reached by the trial court is whether the plaintiff establishes, by a
preponderance of the evidence, the two elements required by section 556. If
the court finds that the plaintiff has not met that burden by a preponderance
of the evidence for any of the plaintiff’s actions, the court must grant the
special motion to dismiss as to those actions. See 14 M.R.S. § 556. On the
other hand, the plaintiff will be permitted to proceed with the merits of his
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complaint as to those acts for which the court finds the plaintiff has met his
burden by a preponderance of the evidence.
[¶22] Although section 556 does not require this additional procedure,
neither does it prohibit it. This procedure best preserves all of the
constitutional rights at issue and affords both parties additional due process,
while also serving the legislative intent we glean from the plain language of
section 556—to provide additional protection to the right to petition. It
maintains the burden of proof with the plaintiff according to the elements set
out in section 556. It forces the plaintiff to meet his burden for each of the
defendant’s discrete petitioning acts. It winnows the acts for which the
plaintiff may maintain the lawsuit to those that the plaintiff can “show[],”
pursuant to section 556, were both devoid of a legal or factual basis and
caused the plaintiff actual injury. It is similar to the procedure for other
dispositive motions, with which we were concerned in Nader I, 2012 ME 57,
¶ 33, 41 A.3d 551. It allows the trial court to grant an early and swift
dismissal as a matter of law in those instances in which the plaintiff cannot
meet this burden on even a prima facie basis without ever having to undergo
anti-SLAPP discovery or an evidentiary hearing. It thereby preserves for the
court’s decision, as a matter of proof by a preponderance of the evidence, any
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legitimate factual dispute about anti-SLAPP protection, a decision best
undertaken in the first instance by the trial court. In short, the considerations
we expressed in both Morse Brothers and Nader I remain viable, and, rather
than making another abrupt change, we address these considerations by
extending the procedure we adopted in Nader I.9
[¶23] We turn now to the case before us. With his special motion to
dismiss, Davis argued and attested that his actions that formed the basis of
Gaudette’s complaint—Davis’s statements regarding the sexual abuse
investigation—constituted petitioning activity in that they were intended to
“inform an ongoing public discussion and investigation into allegations of
sexual abuse of minors by members of the Biddeford Police Department
9
Our shifting interpretations of the anti-SLAPP statute reflect our continuing struggle with the
sweeping breadth of the statute, particularly when compared to the anti-SLAPP statutes of other
states. See, e.g., Cayer, 2014 ME 121, ¶ 14, 103 A.3d 547 (“Unlike statutes in some other states,
Maine’s anti-SLAPP statute does not expressly exempt government enforcement actions from its
application. Further, there is limited legislative history to shed light on the question of its scope.”
(footnote omitted)); Schelling, 2008 ME 59, ¶ 12, 942 A.2d 1226 (“As is clear from the language of
section 556, the Legislature intended to define in very broad terms those statements that are
covered by the statute.”). Indeed, according to the language chosen by the Legislature, section 556
provides protection not only for direct communication, petitions, or requests by citizens to their
government, but also for
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.
14 M.R.S. § 556. The statute’s silence as to the particular means by which anti-SLAPP motions are
meant to be decided has created further difficulty.
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between the 1980s and the early 2000s, as well as the handling of such
allegations by the Maine Attorney General’s Office.” The court determined
that “Davis’s statements clearly fit within the broad definition of petitioning
activity” and that the anti-SLAPP statute therefore applied as a matter of law.
We do not disturb this legal conclusion. See Nader II, 2013 ME 51, ¶ 12 & n.9,
66 A.3d 571.
[¶24] The burden then shifted to Gaudette. See Weintraub, 2016 ME
101, ¶ 8, 143 A.3d 788; Morse Bros., 2001 ME 70, ¶ 20, 772 A.2d 842. The
court first determined that an affidavit submitted by Gaudette, in which the
Assistant Attorney General who had prosecuted Gaudette attested that certain
of Davis’s statements were “totally false,” provided sufficient evidence to meet
Gaudette’s burden of producing prima facie evidence that Davis’s statements
were devoid of factual or legal support. As to actual injury, the court
concluded that Gaudette had established—and Davis has not challenged—that
Gaudette provided sufficient prima facie evidence that Davis’s statements
caused Gaudette actual injury in the form of lost income and physical and
mental injury.
[¶25] This analysis of Gaudette’s opposition started and ended (at the
time, properly) with the prima facie standard that we set out in Nader I. We
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must therefore remand the matter to the Superior Court for it to reconsider
Gaudette’s opposition according to the procedure and standards we now set
forth, including by allowing Gaudette to submit any additional materials
necessary to comply with this new procedure.10 Given this decision, we also
deny Gaudette’s motion seeking treble costs and expenses, including attorney
fees, pursuant to M.R. App. P. 13(f).
The entry is:
Judgment vacated. Remanded for further
proceedings consistent with this opinion.
JABAR, J., dissenting.
[¶26] I respectfully dissent because the new procedures that the Court
establishes defeat the purpose of the legislation, create unconstitutional
impediments to potentially meritorious causes of action, and place an undue
burden upon litigants in derogation of established common law by screening
what would otherwise be meritorious cases.
10 We also take this opportunity to call to the attention of the court and the parties that a
statement is defamatory only if it is “of or concerning” a plaintiff (among other elements). Hudson v.
Guy Gannett Broad. Co., 521 A.2d 714, 716 (Me. 1987) (quotation marks omitted); see Robinson v.
Guy Gannett Publ’g Co., 297 F. Supp. 722, 725-26 (D. Me. 1969). Thus, any statements made by
Davis criticizing either the Assistant Attorney General or the grand jury process could not
constitute defamation of Gaudette by Davis.
21
[¶27] Almost five years ago, we held that when a party makes a special
motion to dismiss pursuant to 14 M.R.S. § 556 (2016), the nonmoving party
must make a prima facie showing that any of the petitioning activities by the
moving parties were devoid of reasonable factual support or arguable basis in
law, and that the nonmoving party suffered an actual injury. Nader v. Me.
Democratic Party (Nader I), 2012 ME 57, ¶ 38, 41 A.3d 551. The Court now
abandons our case law, creating an additional mandatory evidentiary hearing
that places the burden of proof upon the plaintiff to establish, by a
preponderance of the evidence, that the defendant’s petitioning acts were
devoid of any factual support or arguable basis in law and caused actual
injury. Court’s Opinion ¶ 17. This required showing necessarily implicates
the merits of the case.
A. Legislative Intent
[¶28] I agree with the Court insofar as it recognizes that application of
the anti-SLAPP statute creates tension between the coexisting constitutional
rights to petition and to access the courts. Court’s Opinion ¶ 6. However,
I disagree with the Court’s assumption that the Legislature’s intent to balance
these rights is apparent from the face of the statute. Rather than attempting
to grant “stronger protection to petitioning activity than the competing right
22
to seek relief from the court,” as the Court suggests, Court’s Opinion ¶¶ 15-16,
the Legislature’s intent is only to protect petitioning activity against meritless
cases. Contrary to the Court’s conclusion, the face of the statute does not
require us to balance the right to petition with the right of access to the courts.
[¶29] The plain language of the statute states that a “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” meets the two
statutory criteria: that the moving party’s exercise of the right to petition “was
devoid of any reasonable factual support or any arguable basis in law[,] and
that the moving party’s acts caused actual injury.” 14 M.R.S. § 556. Before the
court reaches its decision, “upon the filing of the special motion,” “discovery
proceedings are stayed,” essentially placing the litigation on pause while the
court determines whether the case may move forward. Id. The intent of the
Legislature was to avoid unnecessary litigation due to meritless cases brought
for reasons other than the interests of justice or restoration for injury.
[¶30] The statute does not weigh the right of petition against the right
of access to the courts. The nonmoving party’s right of access to the courts is
not mentioned in the statute, and is only implied to the extent that he or she
must make the showing required by the statute or face dismissal. The statute
23
draws no comparison between these rights. The only tension between them is
created by application of the statute, rather than its plain language. The
statute is an expedited procedural mechanism to weed out meritless cases
when the defendant is engaged in activities protected by the First
Amendment. A litigant has a constitutional right to access the courts even
when suing a defendant on the basis of the defendant’s petitioning activity, as
long as it is a meritorious case.
[¶31] Instead of adding our own speculations, we should now affirm
our previous understanding of the legislative intent of the anti-SLAPP statute.
We have previously noted that “[b]ecause winning is not a SLAPP plaintiff’s
primary motivation, defendants’ traditional safeguards against meritless
actions . . . are inadequate.” Morse Bros., Inc. v. Webster, 2001 ME 70, ¶ 10,
772 A.2d 842 (quotation marks omitted). The special motion, therefore, “is a
statutory creature designed to protect certain defendants from meritless
litigation.” Id. ¶ 15. “[C]ontinued litigation,” not access to the courts, is the
“harm that the statute seeks to prevent.” Id. “The special motion to dismiss
created by the anti-SLAPP statute is intended . . . to dispose of 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
24
government . . . .” Nader I, 2012 ME 57, ¶ 42, 41 A.3d 551 (Silver, J.,
concurring); see also Maietta Constr., Inc. v. Wainwright, 2004 ME 53, ¶ 6,
847 A.2d 1169.
[¶32] Other courts agree. In interpreting a Massachusetts anti-SLAPP
statute, which this Court has noted is “nearly identical to 14 M.R.S. § 556,”
Nader I, 2012 ME 57, ¶ 22, 41 A.3d 551 (Alexander, J., majority), the
Massachusetts Supreme Judicial Court recognized that the “apparent purpose
of the anti-SLAPP statute [is] to dispose expeditiously of meritless lawsuits
that may chill petitioning activity.” Duracraft Corp. v. Holmes Prods. Corp.,
691 N.E.2d 935, 943 (Mass. 1998). There, the Massachusetts Supreme Judicial
Court noted that the statute in fact impinged on the adverse party’s right to
petition. See id.[¶33] Rather than deducing the legislative intent of the statute and
using it as the basis of our analysis, the Court has misconstrued the purpose of
the statute, taken on the job of the Legislature and invented a burdensome
new procedure. It requires the trial court to hold an evidentiary hearing and
to weigh evidence, fact-finding neither required by the statute nor in line with
the Legislature’s intent. Additionally, the trial court must on its own authority
decide whether the plaintiff has met the burden by a preponderance of the
25
evidence. Court’s Opinion ¶ 18. This defeats the purpose of the statute: to
provide for expedited consideration of a plaintiff’s allegations and minimize
litigation costs associated with meritless suits. See Bradbury v. City of
Eastport, 2013 ME 72, ¶ 18, 72 A.3d 512. We should defer to the Legislature
to make such significant changes to the statute.
B. Constitutional Violations
[¶34] The Court’s creation of an evidentiary hearing presents conflicts
with the Maine Constitution. Article I, section 19 of the Maine Constitution
provides that “[e]very person, for an injury inflicted on the person or on the
person’s reputation, property or immunities, shall have remedy by due course
of law; and right and justice shall be administered freely and without sale,
completely and without denial, promptly and without delay.” Similarly,
article I, section 20 “guarantees to parties in all civil suits the right to a jury
trial, except where by the common law and Massachusetts statutory law that
existed prior to the adoption of the Maine Constitution in 1820 such cases
were decided without a jury.” City of Portland v. DePaolo, 531 A.2d 669, 670
(Me. 1987). Because the Court now requires fact-finding by an evidentiary
hearing that addresses the merits of a case without providing litigants with
26
access to a jury, the new anti-SLAPP procedure violates the Maine
Constitution.
[¶35] The First Circuit, in addressing Maine’s anti-SLAPP statute,
upheld its application in the face of a due process challenge. Godin v. Schencks,
629 F.3d 79, 81-82 (1st Cir. 2010). The court noted that article I, section 20 of
the Maine Constitution is an analogue to the Seventh Amendment of the
United States Constitution,11 and that because the anti-SLAPP statute “is a
relatively young statute, not much construed by the state courts, . . . there is no
reason to think the state courts would construe [the statute] so as to be
incompatible with the Seventh Amendment.” Id. at 90 n.18. However, the
court did express concern that “to the extent it might be read to allow . . . a
judge to resolve a disputed material issue of fact, [the statute] would then
preclude a party from exercising its Seventh Amendment rights to trial by jury
on disputed issues of material fact.” Id.[¶36] The United States District Court for the District of Massachusetts,
remarking upon our holding in Nader I, stated that the “Supreme Judicial
11 The United States Constitution guarantees citizens the right to a trial by jury. U.S. Const.
amend. VII. This right extends to any action analogous to those for which individuals could seek
relief in the courts at common law in 1791. See Curtis v. Loether, 415 U.S. 189, 195-96 (1974); see
also Nat’l Labor Relations Bd. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 48 (1937). The Seventh
Amendment of the United States Constitution does not apply to the states. See, e.g., Vallavanti v.
Armour & Co., 162 N.E. 689, 690 (Mass. 1928).
27
Court of Maine got it right.” Hi-Tech Pharms., Inc. v. Cohen, No. 16-10660-WGY,
2016 U.S. Dist. LEXIS 130038, at *11 (D. Mass. Sept. 22, 2016). The court
reasoned that requiring “more than a prima facie showing that . . . petitioning
activities ha[ve] no reasonable basis in fact or law . . . would necessarily
impinge on the parties’ Seventh Amendment right to a jury trial,” because it
“would require [the court] to make factual findings and credibility
determinations that the Constitution reserves to a properly constituted jury of
the people.” Id. at *11-12. The court there emphasized that if it were required
to make findings by a preponderance of the evidence, it would have to “decide
which of the affidavits submitted by the parties in connection with the special
motion to dismiss it believed.” Id. at *12. “Such findings are reserved to the
fact-finder and, absent the parties’ waiver of their right to a trial by jury, are
not properly within the [c]ourt’s domain.” Id. Finally, the court noted that
“[i]mposing a low bar on plaintiffs . . . also comports with the purpose of
[anti-SLAPP] legislation, which is only to prevent meritless suits from
imposing significant litigation costs and chilling protected speech.” Id. at *13
(emphasis and quotation marks omitted).
[¶37] Similarly, the Washington Supreme Court has held that an
anti-SLAPP statute requiring a trial judge to make a factual determination by
28
clear and convincing evidence of the probability of the plaintiff prevailing on
his or her claim is unconstitutional. Davis v. Cox, 351 P.3d 862, 873-74
(Wash. 2015). Because such a statute “creates a truncated adjudication of the
merits of a plaintiff’s claim, including nonfrivolous factual issues, without a
trial,” it violates the right to trial by jury.12 Id. at 874.
[¶38] For the same reasons why the First Circuit expressed concern
with our anti-SLAPP statute, the District of Massachusetts upheld a
preliminary prima facie showing under the Massachusetts anti-SLAPP statute,
and the Washington Supreme Court held the Washington anti-SLAPP statute
to be unconstitutional, the new procedure the Court has created for our
anti-SLAPP law is unconstitutional. Imposing an additional burden of proof
upon the plaintiff, to prove facts by a preponderance of the evidence, requires
that the trial court evaluate evidentiary issues that are more than likely to be
in dispute. The trial court will be forced to weigh evidence that, in the
best-case scenario, has been developed through limited discovery, and in the
worst-case scenario has been appropriated from the parties’ filings
surrounding the motion to dismiss. The former instance replaces a jury with a
12 The court noted that frivolous litigation and sham litigation are not constitutionally protected.
Davis v. Cox, 351 P.3d 862, 873 (Wash. 2015) (citing Bill Johnson’s Rests. v. Nat’l Labor Relations Bd.,
461 U.S. 731, 743 (1983); BE&K Constr. Co. v. Nat’l Labor Relations Bd., 536 U.S. 516, 524-26
(2002)).
29
judge relying upon a scanty factual record, and the latter replaces the jury
with a judge relying upon possibly as little as the motions themselves.
[¶39] For the above reasons, the Court’s invented procedure abrogates
litigants’ rights of access to justice and the right to a jury trial on what could
be meritorious factual disputes.
C. Nader I
[¶40] Since 2012, we have applied a burden of proof that complies with
the plain meaning of the anti-SLAPP statute, the legislative intent of the
statute, and our Constitution. In Nader I, we recognized that the “converse
summary-judgment-like standard” developed in Morse Brothers, 2001 ME 70,
772 A.2d 842, and applied in Maietta Construction, 2004 ME 53, 847 A.2d
1169, “burden[ed] the constitutional rights at issue” when assessing a section
556 special motion to dismiss. 2012 ME 57, ¶¶ 32-33, 41 A.3d 551. We
therefore held that section 556 “requires only that the nonmoving party
provide prima facie evidence to support its burden of showing that the
moving party’s petitioning activity 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.’” Id. ¶ 33 (quoting 14 M.R.S. § 556). We
stated that “a nonmoving party’s action or claim should be allowed to proceed
30
unless the nonmoving party . . . by pleading or affidavits, fails to make a prima
facie showing that any, rather than all, of the petitioning activities . . . were
devoid of any reasonable factual support or arguable basis in law.” Id. ¶ 36.
[¶41] The prima facie showing that we established in Nader I avoided
the constitutional impediments that the Court’s newly-established procedure
creates. We recognized in Nader I that the statute was not intended as a
substantive abrogation of common law causes of action, rather, it was a
procedural mechanism to be treated like other dispositive motions. See id.
¶ 30. The Legislature retains the power to determine which types of claims
are available in court by limiting or even abolishing common law tort claims
and causes of action.13 See Peters v. Saft, 597 A.2d 50, 52-54 (Me. 1991); Curtis
v. Lehigh Footwear, Inc., 516 A.2d 558, 560 (Me. 1986). But any subrogation
by the Legislature of a common law cause of action needs to be clearly stated
on the face of the statute. See State Farm Mut. Auto. Ins. Co. v. Koshy, 2010 ME
44, ¶ 34, 995 A.2d 651 (“We will not interpret an ambiguous statute to be in
derogation of the common law unless the Legislature clearly expressed the
intent to diverge from the common law by the clear and unambiguous
13 The Legislature has acted to abolish causes of action in other contexts, such as alienation of
affection claims, 14 M.R.S. § 301 (2016), and claims relating to recreational use of land, 14 M.R.S.
§ 159-A (2016).
31
language of the statute or by necessary implication.”) The Legislature did not
do so here. Maine’s anti-SLAPP statute is a procedural mechanism not
intended to substantively affect any existing common law cause of action. 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 baseless lawsuits that are brought not to
vindicate the plaintiff’s rights but to punish the defendant . . . .” (quotation
marks omitted)).
[¶42] The holding in Nader I was “consistent with usual
motion-to-dismiss practice,” specifically because—unlike the new
procedure—it permitted the trial court “to infer that the allegations in a
plaintiff’s complaint and factual statements in any affidavits responding to a
special motion to dismiss are true.” Nader I, 2012 ME 57, ¶ 33, 41 A.3d 551.
That was, and continues to be, the correct approach. Justice Silver, writing in
concurrence in that case, noted that “the Court must continue to view this
statute as a procedural mechanism consistent with other dispositive motions
rather than as a substantive burden on a plaintiff’s ability to bring a valid
cause of action.”14 Id. ¶ 40 (Silver, J., concurring). In creating an extra step not
“[N]ot only has this statute been used by different parties than those intended, but it has
14
served an entirely different purpose than the one intended. The ‘Goliath’ who abuses other forms
32
called for by the statute, there is an increased danger of the statute preventing
otherwise meritorious cases from reaching a jury. Under the Court’s new
procedure, legitimate, meritorious claims brought in good faith may be barred
regardless of whether a plaintiff would be able to meet his or her burden on a
motion to dismiss or a motion for summary judgment that would be brought
during the regular course of a lawsuit.
[¶43] As applied in this case, the application of the Court’s new
requirement of an evidentiary hearing substantially affects a traditional
common law cause of action: defamation. The facts in this case would survive
a motion for summary judgment by the defendant, where Gaudette would
benefit from all favorable inferences and all disputed issues of fact would be
left to the determination of the jury. See M.R. Civ. P. 56. However, under this
new fact-finding procedure, a judge could dismiss the action upon a factual
determination made by a preponderance of the evidence, despite Gaudette
disputing those facts.
[¶44] Requiring plaintiffs to prove the statutory elements by a
preponderance of the evidence in an evidentiary hearing imposes a
of petitioning to harass ‘David’ has now adopted the special motion to dismiss as another obstacle
to throw in David's path when he legitimately seeks to petition the court for redress.” Nader v.
Me. Democratic Party (Nader I), 2012 ME 57, ¶ 45, 41 A.3d 551 (Silver, J., concurring) (explaining
that the anti-SLAPP statute has “rarely, if ever,” been used to combat the types of meritless
litigation it was intended to combat).
33
substantive burden that goes beyond what the Court contemplated in Nader I.
This new procedure burdens the right of access to the courts guaranteed by
the Maine Constitution, and violates a litigant’s constitutional right to a jury
trial. See Me. Const. art. I, §§ 19-20.
[¶45] For these reasons I disagree with the Court’s holding and the
imposition of a new procedural step for trial courts to undertake when faced
with a special motion to dismiss pursuant to Maine’s anti-SLAPP statute. The
significant changes made to Maine’s anti-SLAPP statute by the Court’s decision
should be left to the Maine Legislature.
[¶46] I respectfully dissent.
George T. Dilworth, Esq. (orally), and Amy K. Olfene, Esq., Drummond
Woodsum, Portland, for appellant Terry M. Davis
Gene R. Libby, Esq., Tyler J. Smith, Esq. (orally), and Tara A. Rich, Esq., Libby
O’Brien Kingsley & Champion LLC, Kennebunk, for appellee Norman Gaudette
York County Superior Court docket number CV-2015-97
FOR CLERK REFERENCE ONLY