*1
complaint, Mary brought
her
dismissed
Peter is to seek relief to Diane enforce Asen, LLC, Portland, Mittel for defendant. judgment by establishing divorce note compelling terms of the and either SAUFLEY, C.J., Panel: it or sign causing Eric to it to be enforced RUDMAN, DANA, ALEXANDER, against him. CALKINS, LEVY, JJ. entry is: DANA, J. Judgment affirmed. Mary Taylor Jo appeals from a judgment (Portland, of the District Court J.)
Horton, dismissing a prom- her suit on
issory note have been supplied Eric in Taylor
A. accordance with terms of
the couple’s judgment. Mary divorce con-
tends that the court
in concluding
erred
that her
remedy
exclusive
a motion for
ment trustee the court When 80(k) states, pertinent "Any part: Mary 1. Rule contends that also the court erred approving vacating order attachment proceedings for modification or enforcement denying process, trustee and in her motion judgment [a action] divorce shall be modify judgment. agree Because we post-judgment M.R. motion relief.” Mary’s Court on the District the merits of 80(k)(l). Civ. P. ancillary complaint, we do not address her motions. *3 Kreisler,
David Lilley Daniel G. Law Office,Portland, appellants. for the Lewiston, Douglass,
Paul S. ap- for the pellee. SAUFLEY, C.J.,
Panel: and CLIFFORD, RUDMAN, DANA, ALEXANDER, CALKINS, LEVY, JJ.
RUDMAN, J. Construction, Inc.,
[¶ 1] Maietta Louis Sr., Maietta, Maietta Robert L. Michael L. Maietta, Jr., Louis B. Maietta Vincent A. Maietta, Maietta, Thomas S. James D. Maietta, Maietta, Robert D. and Neil L. (Maietta) appeal Maietta judgment from a (Cumber- Superior entered Court J.) County, land Crowley, in favor of Theo- dore Wainwright dismissing all five counts defamation, complaint alleging intentional distress, infliction of emotional light, false interference with an advanta- geous relationship, requesting punitive damages. argues Superi- Maietta that the (1) finding Court erred in Anti- (2003), 14 M.R.S.A. 556 (2) claims; applies to its there is a basis in (3) statements; Wainwright’s fact for injured Maietta was not fact Wain- wright’s statements. cross- appeals, arguing that the court exceeded refusing bounds of its discretion in award him disagree fees. We with both Maietta and affirm the judgment.
I. BACKGROUND This a grievance case stems from land, concerning parcel which Wain- filed City of Port- and Lourie motions to dismiss conveyed to the South wright 556,2 to section M.R.S.A. pursuant January land affidavits accompanied supporting and turf farm potato owned 400-acre In their motions as- and exhibits. in South Portland. partially located any they made to serted that statements ‘Wainwright property sold 150 acres City press solely part officials or were ... City subject to the condition compel to enforce effort that soil or loam could not be removed deed, as well as placed restrictions property.” from the awarded contract terms into a develop property a contract and Maietta. City. recreational for the The con- complex *4 Superior found that Maietta The Court prohibiting tract contained terms Lourie Wainwright and had satisfied their removing any topsoil from or loam from asserting that the suit was burden of property. the Wainwright exercising his consti based on Upon visiting property, the Wain- right petition. Consequently, tutional of became that Maietta was wright convinced to the shifted Maietta to show burden loam, removing in violation Maietta’s activity lacked petitioning the Defendants’ con- City, contract with the as well as the law,” any in “any arguable basis or lacked Wainwright brought dition of sale. his support.” Bros. “reasonable factual Morse Council, City concerns to and eventual- the ¶ Webster, 70, 20, ME 772 A.2d 2001 ly hope retained an 556). § The (quoting 849 14 M.R.S.A. Su encouraging take against the action held that had been perior Maietta Court alleged from removal loam showing Wainwright’s unsuccessful the re- Unhappy City’s the site. arguable an in fact petitioning lacked basis concerns, Wainwright to his ex- sponse at Superior or law. The Court awarded allowing tended his his campaign, torney determining reporters. This re- contact local news “the were to intimi attempting Plaintiffs newspaper in a and sulted series of articles repre date or an attorney silence who was dispute. reports television about the senting potentially legitimate a client with Maietta filed suit both [¶4] involving con property concerns sold with attorney, Lour- and his David to the Portland.” ditions South ie, alleging by they Superior been defamed held that Conversely, the Court accusing merit claims Wainwright’s public campaign there was some to Maietta’s Wainwright, the and therefore stealing loam.1 delay and determined with as little 1. that it removed loam from heard Maietta concedes however, property, grant spe- it asserts that it did so possible. The court shall only prevent playing motion, from children party whom cial unless mounds of it at construction site. special is made shows that motion right peti- moving party’s exercise of its provides, part: 2. The statute any factual tion was devoid moving party civil When asserts that the arguable support any in law or basis claims, counterclaims cross claims moving party’s caused actual that the acts moving party are based on the making injury responding party. moving moving par- parly’s exercise determination, the court shall consider ty’s right petition under Constitution opposing pleading supporting of the United States or Constitution stating upon which the affidavits facts Maine, moving party may bring spe- liability or defense is based. cial motion to dismiss. court shall (2003). 14 M.R.S.A. 556 may so advance motion that it court refused to award fees to judge’s regard- We “review the decision ing such a motion to dismiss to determine whether there was abuse
II. DISCUSSION
of discretion or error of law. When
[ ]
motion,
reviewing the
should
Court
Section 556
designed
view the
light
evidence
most fa-
combat “litigation without merit filed to
moving party
vorable to the
because the
punish
dissuade or
the exercise of First
responding party bears the
burden
rights
Amendment
of defendants.” Morse
proof
applies.”
¶
when the statute
Bros.,
70, 10,
2001 ME
[¶ 8] Morse we articulated constitute actual damages. Maietta misin- the standard of review: terprets injury requirement. the actual
1174 sug distinguished incorrect in court between
[¶ Maietta is 10] gesting per equivalent upon premise se are damages Lourie based “Recovery for slander damages. against Wainwright has more actual lawsuit per requires showing attorney, se harm no merit than the suit his beyond publication Rippett itself.” v. policy conforms to the therefore better (Me.1996). Bemis, 82, contends, 672 86 A.2d “When behind the statute. recovery may only actual dam dissent, the distinction does the must age sustained record [however] does and his in a damage contain evidence from which and is policy, not further the statute’s may definite amount be determined disagree. supported by the record. We Dairy certainty.” Farm Leas outset that note at the We A.2d 1140 ing Hartley, Co. v. 895 use of the merit trial court’s (Me.1978) Hunt, (quoting McDougal v. 146 cases, of whether respective as measure (1950)). 10, 14, 76 Me. A.2d 860 Such logical appropriate, are attorney fees a determination “must not be left to mere is aimed statute the anti-SLAPP because conjecture.” guess or Id. at 1141. Gener no chance litigation at that has preventing ally, Legislatures leg are deemed draft Bros., Morse succeeding on merits. backdrop islation the com 70, ¶10, at 846 law, displace mon and do not it without (“SLAPP litigation generally, is litigation, directly addressing Meyer the issue. See punish without merit filed dissuade Holley, U.S. S.Ct. rights of of First Amendment exercise (2003). Therefore, 154 L.Ed.2d omitted). defendants.”) (citation Legislature imposed requirements *6 the trial supports record The understanding [¶ 13] section 556 that would merit to the findings respect affirmative with require plaintiffs produce court’s The merit of an injury. against evidence suit a of success. simply its likelihood case is Attorney C. Fees requires The determination merit and as weigh trial the evidence court to granted trial court attor [¶ 11] The trial court probative sess value. The its ney fees to not to Wainwright. Lourie but of its discretion did not exceed bounds attorney Wainwright cross-appeals case its determination that the Superior fees.3 ‘We review Court’s stronger the case Wainwright than an determination of fees for gravamen Maiet- against Lourie.4 The Lee v. Prince abuse discretion.” Scotia Ltd., 18, Maietta, has 78, ta’s is that Inc. complaint ME Cruises 2003 828 (citations omitted). (and falsely) 215 trial been accused steal publicly The Maietta, wright’s public Inc. provides: 3. The statute declaration that valuable loam involved in theft of special grants If the court miss, a motion to dis- probative a defa- may moving par- award the have some value in the court would attorney's ty costs and against Wainwright, fees. would be suit but mation added). § (emphasis M.R.S.A. 556 suit virtually in a defamation irrelevant not, This is as the dissent Lourie. Wainwright 4. The dissent that *7 claim and therefore the incongruous of a statute that federal suit him closely more a interpretation resembles with Maine this Court’s classic suit. statutes.5 However, may very ap- dence Lourie attorney well be fees. has this discretion plied against Wainwright. substantially by been restricted federal courts, necessitating judicially created 1988, analogizing §
5. In section 556 to "special exception,” circumstance which cases, cites two dissent Maine and states that "prevailing party a ordi- holds that should "[Hollowing authority, federal have we con- spe- narily attorney’s an recover fee unless § meaning prevail- strued ... 1988 a as cial circumstances would render such ing party ordinarily attorney recovers fees Eckerhart, unjust.” Hensley v. 461 award special 'unless circumstances would render ” 429, 424, 1933, U.S. 103 S.Ct. 76 L.Ed.2d unjust.’ implemented such an award We added) (internal (1983) (emphasis quota- standard, "special circumstances” howev- omitted). Accordingly, although judi- tions er, we because were constrained follow by explicitly is not cial discretion restricted interpreting case law while federal federal Hence, by we federal are constrained imposed statute. we cir- spite interpretation jurisprudence on this cumstances test in of our substantial federal statutory language, point. not because of it: Wells, Bangs purports § v. Town give The text of discre- awarding judge tion trial court 834 A.2d omitted); Generally, see also Vance v. rely quotation on case law and courts (Me.1979) on ambiguous, when a statute is or silent 409 A.2d Speakman, however, case, the stat- an issue. background (“Against firmly are not award- attorney ute is fees denying common law rule established clear— course, may a matter ed as but' attorneys’ and fail- award of fees Maine’s at the of the trial court. granted discretion regard the model of ure in this to follow Legislature is with the differ- The familiar laws, antidiscrimination this court federal “may” and alterna- ence between term legislature to infer unwilling no such as “shall” or “will.” There is tives ”). an award .... meant such Legislature reason to believe that not di cases are [¶ 20] These “special clumsily implied would have so statutes rectly point, they interpret denying attor- circumstances” standard attorney fees. no that make mention fees, ney have artic- past when emblematic, however, of the state They are expressly. e.g. it 30-A ulated See Maine, and our of the common law in (1996) (“If 4452(3)(D) mu- M.R.S.A. from attorney infer fees disinclination to mu- nicipality prevailing party, is the not will statutory language. as we Just at- nicipality must be awarded of an attorney infer fees the absence costs, fees, torney expert and witness fees we grant, will express statutory neither circum- unless the court finds fees in the presumption attorney infer a stances make the award of these fees The statutory grant. of a permissive face added). unjust”) The ex- (emphasis costs 666 is in section grant of plainly into concept, istence of this written therefore presumptive, permissive, Leg- statutory language, demonstrates bounds the trial court did not exceed the ability presumption islature’s to create a attorney fees by awarding its discretion of this attorney fees the assistance without Lourie or to award declining Court. fees to' laws are 19] The dissent notes [¶ entry The is: case law. backdrop
drafted interpretation federal court’s Judgment affirmed. however, accurately re- does not general posture attempts CALKINS, our towards Dissenting: DANA, flect Maine statutes. LEVY, to infer fees from JJ.
We have held: CALKINS, J., DANA whom have It is well settled that courts Maine LEVY, JJ., join, dissenting. authority to fees in the no award such *8 from the respectfully I dissent statutory authoriza- express absence of Wainwright’s cross-ap- on Court’s decision Be- agreement by parties. tion or the attorney the fees to peal to affirm denial of attorneys’ cause of the nature of unique Wainwright. fees, statutory to recover attor- right only in the
neys’ fees will found Superior I the would vacate legislative language. kind of clearest it attorney because denial fees Court’s attor- Accordingly, a of action for cause attorney denying discretion in abused its legis- from neys’ implied fees cannot be (1) weighing the fees to in lative intent and must be articulated claims merits Maietta’s relative unmistakable terms. concluding, Wainwright and Lourie and record, there 35, in support without Dist. No. Goodwin Sch. Admin. ¶ (citation 263, 13, merit to Wain- was more the claim ME 721 A.2d n wright; (2) distinguishing awarding of and reasonable between Wain- costs wright on and Lourie the basis of Lourie’s attorney’s requires analy- fees additional role; (3) attorney/agent im- imposing omitted.] One of the sis. [Footnote on permissible burdens which the case resem- ways in Plaintiffs’ imposed were not on Lourie. Alternative- “typical” suit is that the bles a SLAPP ly, I would stat- construe anti-SLAPP6 Lourie in Plaintiffs sued Defendant his ute as granting discretion to the trial court attorney/agent as the of Defen- capacity deny to attorney only fees when Wainwright. respect, In it dant an circumstances exist would make appear attempt- the Plaintiffs were unjust, award no such circumstances attorney ing to intimidate or silence exist here. representing po- who was a client with tentially legitimate involving for My vacating prem-
[¶ reasons concerns 23] are ised on policy property considerations he sold with conditions to the statute, Therefore, anti-SLAPP M.R.S.A. South Portland. (2003), Bros., in which we described awarding Morse costs and reasonable attor- Webster, Inc. v. 772 A.2d ney’s appro- fees to Defendant Lourie is enacting anti- Maine priate. Legislature SLAPP intended hand, other On the Defendant Wain- filing pur- deter the lawsuits whose wright has not demonstrated that is pose peti- to intimidate defendants from Plaintiffs never to win their intended tioning government griev- to redress case, actually attempting or were making designed ances or from statements him out on punish speaking public for public to elicit support the defendants’ matter, him or were to incur forcing controversy position under consider- Arguably legal excessive fees. there governmental body. ation before the A merit to the Plaintiffs’ claims some intimidation, effective even Defendant concern- though succeeding it has no chance of allegations improper ing, say, billing. merits, pay because defendants have though Even the anti-SLAPP statute lawyers SLAPP, thereby defend the case, applies present the court in diverting their from petitioning resources will not the exercise its discretion government. The mere of a threat attorney’s costs and award SLAPP, even it when will be dismissed underlying policy ratio- when pursuant intimidating section statute nale for anti-SLAPP has expenses. because If SLAPP met. costs and been Therefore such plaintiffs defeating are successful fees are not awarded Defendant request SLAPP defendants’ fees, they purpose will have defeated the By denying fees to Wain- statute. anti-SLAPP trial
wright, the court abused discretion I. THE COURT ABUSED DIS- ITS First, ways. to the ex- in three different CRETION IN DENYING ATTOR- weighed tent that it the merits Maietta’s
NEY TO FEES WAINWRIGHT and con- claims the two defendants *9 Wainwright against cluded that the claim granting [¶ The trial court’s basis for 24] stronger, sup- the is not was conclusion denying fees to Lourie and them Second, the the trial ported by record. Wainwright forth its succinctly is set by making court its discretion a decision as follows: abused strategic against public participation. 6. "SLAPP” stands for lawsuit Maietta, by does provided distinction between Lourie and Wain- three affidavits wright on the of role as that Maietta’s support basis Lourie’s the not a determination attorney/agent and Wainwright, Wainwright that had against defamation claim pur- by distinction is not the warranted claim against merit than the Lourie. more Third, poses of the anti-SLAPP statute. the state- The affidavits demonstrate that by trial the court abused its discretion they fail to privileged, ments were and imposing on Wain- impermissible burdens Wainwright demonstrate that made the recovery wright the by is One affidavit publicly. statements that it did impose on Lourie. and it authenticates City’s attorney, the Lourie. received from and attaches letters A. Merits detailing city manager Another is the In spite of the fact that Maietta’s the history City’s acquisition allegations and against Wainwright Lourie the contract land and Wainwright Farms identical, are almost this and the Court the recreational with Maietta to construct trial court that conclude the merits of land. The third complex on the against Wainwright Maietta’s claims are vice-president. affidavit of Maietta’s stronger than the merits Maietta’s lists manager’s affidavit city The claims Lourie and that the differ- from Lourie to and letters attaches justifies of attorney ence an award fees for City and from officials City letters Lourie but The trial not for addition, various documents Lourie. allegation court focused on Maietta’s contract to build related to Maietta Wainwright accused of im- had Maietta manag- attached to the recreation are field concen- proper billing, while Court chronology affidavit, lengthy a er’s as is allegation trates Maietta’s that Wain- chronology includes Wain- events. The (and wright falsely) “publicly accused to a mem- July wright’s first statement stealing, a criminal [Maietta] serious ber of the Council injure allegation irreparably could which allega- “using City’s loam on the sides professional reputation.” Both form defama- tions the basis Maietta’s Farms.” access road to tion claims and Lour- a manager’s chronology also describes ie.7 city meeting on August office, Wainwright, manager’s To the defa- fully explore 27] whether
[¶ manager, city vice-president, Maietta’s mation against Wainwright claim more director, dur- parks and the and recreation than merit the defamation claim felt that he ing which “stated Lourie, it necessary to provide more cove- the deeded evi- had violated extensive record. The recitation loam dentiary record, removing of nant of the consisting primarily restriction light complaint 7. contained four claims 1193. The false claim is similar defamation, (1) giving publicity to a Wainwright: requires actor Lourie and (2) distress, light; places another in a false intentional infliction of emotional matter light, light highly would be offensive false and interference with an advanta when false (3) knowing geous person; a defa to a the actor relationship. The elements of to, of, (1) defamatory disregard acting or mation are: a false and in reckless claim another; (2) falsity light concerning unprivi false in which the other statement (3) (4) publication placed; publicity leged party; fault would means third public large negligence part at amounting to at least on the communication (4) enough substantially publisher; people that it is certain harm or ¶ 17, knowledge. actionability regardless public to become Id. harm. Cole 104, ¶ Chandler, at A.2d *10 inferring from the fields” and that Maietta more than Maietta’s claim merit billing taken loam. allegation improper Lourie. The Lourie, albeit on behalf was made The Maietta affi- vice-president’s Furthermore, it was an accu- describes the on the davit construction re- City City to sation made officials about complex creational Maietta denies that con- business.9 For defamation claim City for The ever billed loam. affida- billing cerning improper the accusation of vit avers that Maietta some loam removed against Wainwright to merit have more property temporary storage Lourie, than the record would have keep children from on it. The playing show two some differentiation between the affidavit also August recounts the meet- concerning billing the improper defendants ing “Wainwright where accused Maietta accusation. Other than the fact that Lour- of stealing Construction from the loam attorney/agent Wainwright, ie was the Wainwright Farms property” and at which there is no difference. vice-president denied the accusation. regard to the [¶ 32] With accusation There is nothing in the affidavits loam, stealing upon by relied in this Court or attachments that August indicates the concluding that Maietta’s claim defamation meeting public was a meeting. There is against Wainwright had more merit than nothing in the record suggests that that Maietta’s claim the Court Wainwright personally the media went to states: there is that ‘While direct evidence public members of the to make his Wainwright publicly accused Maietta accusations Maietta. His accusa- loam, it is not stealing clear that Lourie City tions were made to or council officials an made such assertion.” The record members. that Wainwright’s demonstrates accusa- above, As 31] stated trial [¶ court City tions were made officials and coun- gave “allegations billing” of improper members, cil not to public. members of the for its basis conclusion that Maietta’s public The matter became with the news- defamation claim against Wainwright had paper September accounts Lourie’s more merit than the claim against Lourie. Again, virtually letter. there is no distinc- However, only improper accusation of Wainwright tion between and Lourie con- appears billing September theft, cerning except the accusation of letter from Lourie mayor to the and coun- acting Lourie was behalf of Wain- members, cil City which is to the attached wright. attorney’s letter, affidavit. In this Lourie sup- record simply does not asserts loam from use of “[argu- port the trial court’s conclusion of “appears Farms have been payment by Maietta, ably a double ... some merit to claims [Maietta’s] payment against Wainwright no ... ... al- concerning where should made have been legations improper billing.” at all.”8 This sentence in Lourie’s letter is Nor does support for support a conclusion that Maietta’s the record this Court’s assertion claim defamation has of the defamation claim the merits accounts, complaint allegation quoted press 8. The includes that' was but 9. The letter was does not indicate whether it record Lourie "on a cam- embarked Wainwright or Lourie or someone else publicly paign accusing stealing [Maietta] brought press. the letter attention of the loam, falsely charging South However, trial court found that it Portland for loam used in construction me- discussed the events with the Lourie who Complex $100,000.” Recreation excess of dia. *11 of the purpose the against Wainwright stronger are than the tinction does not serve a against protect merits Lourie. which is to anti-SLAPP the petitioning government citizen who is Actually, neither defamation claim [¶ 34] Sometimes, here, from intimidation. as Wainwright’s has merit. Both Lourie and lawyer obtain a citizens the assistance of privileged accusations are because a petitioning the activities. for When to about complaining were officials brought against is the citizen SLAPP implementation the of a contract. See the may need to obtain (1977) lawyer, the both (Second) Restatement ToRts attorney to defend (“An services another publication a occasion makes condi- retaining The cost of tionally if in- the SLAPP. privileged the circumstances (a) motion to a bring duce correct or reasonable the belief and, there is a information affects suffi- substantial the can be dismiss ciently important interest publisher, itself, gives of the It petition. right in chill the (b) the recipient’s knowledge to know that comfort the citizen little defamatory matter will be of service in the peti- the citizen lawyer, helping who was interest.”) protection lawful quoted attorney fees. get government, will tion ¶¶ 22-25, in Rice v. Alley, attor- a Such distinction (holding mem- 936-37 that a club may citizen/principal ney/agent and the ber’s membership accusation or of attorneys policy protecting foster a stealing conditionally another was likely citi- help making more attorneys privileged). The anti-SLAPP statute itself efforts, little in but it does petitioning zens is the privilege basis for a conditional when the citizen policy protecting to foster the the communication is one the statu- within encouraging a citi- from or of intimidation tory “right definition of petition.” public participation. zen’s That M.R.S.A. definition includes If for the distinction the basis [¶ 37] likely public partic- statements to “enlist the citi- attorney/agent and between the ipation.” ques- Because the statements is attorney/agent zen/principal that the is privileged, tion were the defamation claims then principal, only acting on behalf against Wainwright and Lourie were apply all situations the distinction will equally without merit. lawyer hires a citizen/principal where the summary, conclu- Court’s govern- petitioning to assist sion that the merits of Maietta’s defama- here, where, allegations ment and against Wainwright tion claim were rela- citizen and the SLAPP both the tively stronger than the merits of its claim his the same. This distinc- are by not Lourie is borne out always place principal/citizen tion will record, and the trial court’s conclusion attorney/agent en- more at risk than argu- claim be- principal/citizen gaged assist ably supported more merit for the principal responsible cause the is, therefore, the record and an abuse of agent. authorized actions of discretion. no simply There is basis Attorney/Agent B. anti- language, spirit, purpose or a giving court the dis- SLAPP statute Distinguishing between Lourie grant deny attorney or fees cretion on the that one is basis on the of the SLAPP defen- based status is not a attorney/agent the other attorney/agent citizen/prin- as an denying and con- dant ground sufficient has cipal. danger The dis- Such distinction stitutes an abuse of discretion. *12 turning attorney provision fee It highly doubtful that Wainwright could anti-SLAPP statute into an attorney pro- make such a showing engaging without tection statute and thwarting its purpose discovery, purpose which defeats the protecting the citizen from intimidation. special motion to dismiss.10 The court abused its by imposing discretion these C. Increased Burdens additional on Wainwright. burdens [¶ 39] addition to the rationale in the reasons, For these I conclude that opinion Court’s for granting attorney fees the trial court abused its discretion de- to Lourie while denying them to Wain- nying attorney fees to Wainwright, and I wright, the trial court stated that Wain- would vacate and remand for a determina- wright failed to demonstrate that Maietta tion of the amount of fees. never intended to win the action him. The trial court also said that Wain- II. THE STATUTE SHOULD BE CON- wright failed to demonstrate that Maietta’s STRUED TO GRANT ATTORNEY lawsuit attempt was an to punish him for FEES EXCEPT IN SPECIAL CIR- speaking out or require him to incur CUMSTANCES excessive fees. The court abused As an ground alternative for va- its discretion in imposing these burdens on cating judgment, I would interpret Wainwright, particularly because the bur- give anti-SLAPP statute to the trial courts dens are customarily imposed and less discretion than opinion the Court’s were not imposed on Lourie. determining does in when fees are to be [¶ 40] SLAPP defendants should not analogize awarded. I to the federal civil have to demonstrate the plaintiffs’ rights attorney statute, fee 42 U.S.C. Furthermore, intentions. such a showing § 1988. would be difficult to make at stage [¶ 43] The anti-SLAPP statute is a civil special motion to policy dismiss. The rights statute it protects because behind the anti-SLAPP statute is to swift- rights of citizens to petition govern- them ly identify a SLAPP case and dismiss it so grievances ment for express and to their petitioning defendants’ activity grievances public to the in order to obtain can continue. L.D. Statement of Fact public support. It pre- differs from the (117th 1995) Legis. (stating that the anti- statute, rights dominant federal civil SLAPP statute is meant to allow “the mo- § U.S.C. in that it is more of a shield tion [to be] heard as soon possible as and if sword, than a applies against private and it the motion to granted, dismiss is to have actors, § whereas 1983 enforces civil the case dismissed as soon possible”). as rights against persons acting under color impose To a greater proof burden of of state law. Attorney fees are awarded to SLAPP defendants for an award of attor- prevailing parties in rights federal civil ney fees than is necessary to succeed on pursuant § actions to 42 special U.S.C. contrary motion is policy 1988(b) provides Section behind the statute. a court “in Requiring Wainwright discretion, may” demonstrate that award fees. attempt- ing punish him Following authority, or force him to incur federal have we con- excessive legal places discretion, fees imper- phrase may” further strued the “in its missible burden on § a SLAPP meaning defendant. prevailing that a 10. The requires anti-SLAPP statute discovery upon showing good that all ic cause. discovery stayed once the (2003). motion to 14 M.R.S.A. 556 specif- dismiss is filed unless the court orders
party ordinarily Because anti-SLAPP recovers providing like is concerned ren- “unless circumstances would enforcing rights, civil it attorney fees unjust.” Bangs der such an award Legislature likely that intended that Wells, 129, 17, 834 Town *13 provision interpreted the attorney fee be 955, Hensley 960 v. Ecker (quoting I § manner as 1988. would same hart, 1933, 461 103 S.Ct. 76 U.S. interpret similarly the anti-SLAPP statute (1983)). Furthermore, L.Ed.2d 40 the (cid:127) discretionary language in as the same special demonstrating burden of the cir § of attor- imposition the require 1988 and party opposing cumstances is on the ob- successfully ney who party fees to a Morscott, fee award. See Inc. v. unless the tains of the a dismissal SLAPP Cleveland, 271, (6th 936 F.2d 273 Cir. court circumstances.” “special finds 1991); Sonoma, Herrington County v. cannot statute [¶ The anti-SLAPP 46] (9th 739, Cir.1989); F.2d 883 744 J & J purpose Legislature’s fulfill the completely Anderson, Inc., Erie, Town 767 F.2d at a if it to dismiss SLAPP only works (10th Cir.1985). 1469, 1474 stage.12 Unless relatively early I recognize Legislature 44] that the [¶ routinely SLAPP it will be filer knows could have chosen to use the word “shall” required attorney fees pay “may” regard instead of to take the defendant, worthwhile it will be a re- Such my gamble filing fees in the SLAPP. anti-SLAPP statute.11 policy of the sult undermine the would opinion, by word using “may,” anti-SLAPP statute. Legislature to compel decided not cases, gave award of fees in all but courts above, Superior forth [¶ As set 47] ability to when cir- withhold fees deny- reasons Court articulated several cumstances warrant. The Legislature However, just ing fees to knew that exercising discretion a justify distin- none conclusions of its stated court would relevant case apply law guishing between circum- analogize special similar statutes. none of them constitute (Bender, § 11. Most states with an anti-SLAPP statute 4.24.510 Code Ann. Wash. Rev. sess.). through spec. 3d by using LEXIS 2003 mandate word States, Maine, "may” language. "shall'' addition to that use similar Cal. Civ. Proc. 10, 8138(a)(1) 425.16(c) § (Deering, through § include: Del. Code Ann. tit. LEXIS Code (LEXIS sess.); through sess.); 2004 2003-04 3d extra ch. Ga. Code Ann. fla. stat. (LEXIS sess.); 9-11-11.1(b) through § 2003 768.295(5) (Bender, through LEXIS 2003 25-21, (Bender, § LEXIS 241 sess.); 634F-2(8)(B) (Mi § Neb. 34 Rev. Stat Haw. Rev. Stat. sess.); § 70- Rights through Civ. 2003 N.Y. chie, sess.); through LEXIS 2003 Ind. Code a(1)(a) (Bender, through Mar. LEXIS (Burns, through § 34-7-7-7 LEXIS 2003 Ann. 78-58-105(1)(a) 2004); § Utah Code Ann. sess.); 971(B) Proc. Ann. art. La. Code Civ. (Bender, sess.). through spec. 2d LEXIS (LEXIS sess.); through 2003 231 Mass. Gen. (Bender, through § 59H LEXIS Mar. demonstrates, Laws 12. As this lawsuit anti- 2004); 554.04(1) (LEXIS § practice, Minn. Ann. does not work Stat. through legislation); particularly expeditiously. Over-four months Nev. Rev. Stat. Ann. (Bender, 41.670(1) through § LEXIS elapsed filing mo- 38-2-9.1(B) § legislation); N.M. Stat. argument tion and an on the to dismiss mo- Ann. (Michie, 2003); July through demonstrates, LEXIS delay par- tion. at least Ore. 30.144(3) (LEXIS § through 2001 tially, even the best intentions Rev. Stat. sess.); 9-33-2(d) (LEXIS Legislature R.I. expedite process cannot Gen. Laws sess.); through put appropri- practical 4-21- effect without the into Tenn. Code Ann. (LEXIS 1003(c) sess.); through 2003 ate resources. stances. For the same give reasons I above an award of fees to my viewpoint that the court abused its unjust. would be discretion in denying fees to I Wainwright,
determine that Superior Court’s con-
clusions do not support a finding Furthermore,
circumstances. I find noth-
ing in the record that demonstrates that notes suggests, a difference. a distinction without positions.’’ Lourie are in “almost identical allegations The lies not but distinction however, joined single complaint, While in a Also, agency princi- due to the evidence. separate there were two suits before the ples, may probative evidence that have some Very equal the evidence has court. little of proba- no value will have probative value both respect while evi- tive value with Rather, attorney. applicable of it is his most instance, against one the other. For Wain- however, noted, that ing, allegation a serious criminal which It should be [¶ 15] merit irreparably injure varying assigned the cases professional could its relevance, from the trial court is of little reputation. colleagues. dissenting of our standpoint that While there is direct evidence that we should They interpret believe Wainwright publicly Maietta of accused statute to command the award of loam, it stealing is not clear that Lourie cases, circum- fees in all “unless affi- made such assertion. In a sworn un- stances render such an would award davit, meeting Maietta refers to a Au- just.” gust during “Mr. which Wain- begins unre- The dissent with an wright accused Maietta Construction premise: “Legislature markable loam stealing provided neither ba- [but] in exercising knew that its discretion sis for his accusations evi- nor information apply court would relevant case law and chronology such a claim.” dencing The similar analogize to statutes.” From Jordan, by Jeffrey events K. submitted starting dissent undisputable point, the city Portland manager, South makes refer- an in- concludes that we should borrow ence to instances in which di- of a terpretation federal (not rectly through alleged attorney) his requiring U.S.C. was stealing loam. The rec- circum- fees be awarded unless calling investiga- ord reveals Lourie for an stances exist. tion, criticizing dragging respect heels inquiry, to an and even plain language section questioning whether Maietta had removed help needs from our law for little case loam in contravention of the terms of the Further, interpretation. to the extent grant. land While accu- these are serious interpreted, pro- the statute must be sations, they are likely support less a posed nexus Maine’s anti-SLAPP not, therefore, defamation claim. It was legislation (designed protect actors) an abuse of discretion court for the trial rights against a citizen’s civil state conclude there is tenuous, less merit imposes an interpretation