Lead Opinion
[¶ 1] In this appeal we consider whether the Maine anti-SLAPP (Strategic Lawsuit Against Public Participation) statute, 14 M.R.S. § 556 (2011),
[¶ 2] Ralph Nader, Christopher Droz-nick, Nancy Oden, and Rosemary Whittaker (collectively, Nader) appeal from a judgment of the Superior Court (Washington County, Cuddy, J.) granting the opposing parties’ special motions to dismiss Nader’s complaint pursuant to the Maine anti-SLAPP statute, 14 M.R.S. § 556. The opposing parties are (1) the Maine Democratic Party, the Democratic National Committee, Kerry-Edwards 2004, Inc., Dorothy Melanson, and Terry McAuliffe (collectively, MDP); and (2) Toby Moffett and The Ballot Project, Inc. (collectively, Moffett).
[¶ 3] Nader argues that the court erred in interpreting and applying the anti-SLAPP statute when it granted MDP’s and Moffett’s special motions to dismiss; that the anti-SLAPP statute, as applied by the court, improperly abrogates common law tort law; and that the anti-SLAPP statute is unconstitutional as applied by the court. Moffett, as cross-appellant, appeals from the court’s separately entered order on his motion for attorney fees, arguing that the court abused its discretion when it awarded him only one dollar in costs and attorney fees following the grant of his special motion to dismiss. Concluding that a legal standard different from that applied by the trial court applies in this anti-SLAPP matter, we vacate the judgment granting MDP’s and Moffett’s special motions to dismiss and granting Moffett’s motion for attorney fees.
I. CASE HISTORY
[¶ 4] Ralph Nader was an independent candidate for President in the 2004 presidential election. His presidential electors in Maine included Christopher Droznick, Nancy Oden, and Rosemary Whittaker. Nader and his Maine presidential electors are collectively referenced as “Nader” in this opinion.
[¶ 5] In November 2009, Nader filed a six-count complaint against MDP and Mof-fett based on actions that were alleged to have occurred prior to the 2004 presidential election. The complaint contains counts alleging (I) civil conspiracy; (II)
[¶ 6] The Nader complaint alleged that MDP and Moffett took direct action, and conspired with others, to prevent Ralph Nader from appearing on the ballot as a candidate in the 2004 presidential election and deprive voters of the opportunity to vote for him. Nader alleged that MDP and Moffett attempted to accomplish these ends primarily by filing, and conspiring with others to file, twenty-nine “objectively baseless” complaints with courts and administrative bodies in seventeen states, including Maine, and with the Federal Election Commission (FEC) in the District of Columbia, all within a twelve-week period.
[¶ 7] The Nader complaint alleged that MDP’s and Moffett’s complaints were found to be baseless by a majority of the tribunals that considered the complaints, although it acknowledged that MDP and Moffett were successful in certain jurisdictions, at least at some stage of the proceedings. Nader’s complaint, as well as subsequently submitted affidavits, contain numerous paragraphs alleging specific instances when MDP and Moffett acted and took coordinated actions with alleged co-conspirators for the sole purpose of harassing, distracting, and draining the resources from his campaign.
[¶ 8] With respect to the State of Maine, Nader alleged that MDP and Mof-fett filed two baseless complaints with the Secretary of State “raising technical objections to the form of [Nader’s] nomination papers”; that the Secretary of State found the complaints lacked merit and dismissed them; and that MDP and Moffett exhausted all appeals to the Superior Court and to this Court, in which they were unsuccessful. See Melanson v. Sec’y of State,
[¶9] Finally, the Nader complaint alleged that Nader was damaged by MDP’s and Moffett’s actions by, among other things, being drained of time, money and other resources, being prevented from gaining ballot access in several states, and sustaining injury to Nader’s financial resources and reputation.
[¶ 10] MDP and Moffett each filed motions to dismiss the Nader complaint pursuant to M.R. Civ. P. 12(b). MDP included with its motion to dismiss, and Moffett separately filed, a special motion to dismiss Nader’s complaint pursuant to the anti-SLAPP statute, 14 M.R.S. § 556. Nader opposed the motions.
[¶ 11] The court held a hearing in November 2010 on the special motions to dismiss and entered a judgment granting MDP’s and Moffett’s special motions to dismiss. The court concluded that MDP and Moffett satisfied their initial burdens under the anti-SLAPP statute of showing that “their activity of challenging nomina
[¶ 12] Moffett filed a motion for costs and attorney fees pursuant to the anti-SLAPP statute, which Nader opposed.
II. LEGAL ANALYSIS
A. Anti-SLAPP Statute; Historical Interpretation and Application
[¶ 13] Title 14 M.R.S. § 556, known as Maine’s anti-SLAPP statute, states in relevant part:
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 court shall advance the special motion so that it may be heard and determined with as little delay as possible. 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.[5 ]
[¶ 15] Pursuant to the language of section 556 and our case law, which the trial court attempted to follow, the application of the anti-SLAPP statute is a two-step process. At the first step, the court determines whether the anti-SLAPP statute applies. At this step, the moving party (i.e., the defendant) “carries the initial burden to show 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,
[¶ 16] If the moving party demonstrates that the suit is based on some activity that would qualify as an exercise of the defendant’s First Amendment right to petition the government, and therefore that the statute applies, the burden shifts to the nonmoving party to establish, through pleadings and affidavits, that the moving party’s exercise of its right of petition (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; Schelling,
[¶ 17] The analysis a court may use to determine whether the nonmoving party has met its burden to establish that the moving party’s action was devoid of any reasonable factual support or any arguable basis in law and caused actual injury is not specified in the anti-SLAPP statute. In our precedents addressing the nonmoving party’s efforts to meet its statutory burden, we have reviewed “the evidence in the light most favorable to the moving party because the responding party bears the burden of proof when the statute applies.” Id.; Morse Bros.,
B. Statutory Construction with Constitutional Issues Implicated
[¶ 18] We have interpreted the anti-SLAPP statute only a few times since its
[¶ 19] When constitutional rights are implicated in the application of a statute, another rule of statutory construction holds that we must construe a statute to preserve its constitutionality, or to avoid an unconstitutional application of the statute, if at all possible. See Rideout v. Riendeau,
[¶ 20] This appeal requires us to interpret and apply the anti-SLAPP statute against a backdrop of several constitutional rights that are implicated by Nader’s claims.
1. The Right to Petition
[¶ 21] The right to petition the government, including the right to file complaints in courts, is a fundamental right protected by the First Amendment. See U.S. Const. amend. I; Borough of Duryea v. Guarnieri, 564 U.S. -,
[¶ 22] When interpreting the Massachusetts anti-SLAPP statute, which contains provisions nearly identical to 14 M.R.S. § 556, see Morse Bros.,
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.
Duracraft Corp. v. Holmes Prods. Corp.,
2. The Right of Access to the Courts
[¶ 23] The right of access to the courts is a right protected in the Maine Constitution and recognized under the United States Constitution. The Maine Constitution provides a right of redress through the courts for injuries, stating, “Every person, for an injury inflicted on the person or 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.” Me. Const, art. I, § 19. This “open courts” provision “means the courts must be accessible to all persons alike without discrimination, at times and places designated for their sitting, and afford a speedy remedy for every wrong recognized by law as remediable in a court.” Maine Med. Ctr. v. Cote,
[¶ 24] The substantive right of access to the courts is also “ ‘one of the fundamental rights protected by the [United States] Constitution.’” Webb v. Haas,
[¶ 25] The right of access to the courts has also been recognized as a substantive right applicable to plaintiffs in civil actions under the Due Process Clause of the Fourteenth Amendment.
3. Right of Access to the Ballot
[¶ 26] “Restrictions on access to the ballot burden two distinct and fundamental rights, the right of individuals to associate for the advancement of political beliefs [under the First Amendment], and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.” Illinois State Bd. of Elections v. Socialist Workers Party,
[¶ 27] Nader’s complaint alleges that the restriction on his access to the ballot was the result of improper action by private parties rather than by state action, although those private parties did avail themselves of state action and court access in order to, allegedly, challenge and obstruct Nader’s access to ballots. Regardless, Nader’s right of access to the ballot is implicated in, and forms an essential basis for, his complaint.
[¶ 28] There is no dispute that at the first step of the anti-SLAPP statute analysis, the moving parties, MDP and Moffett, demonstrated that Nader’s claims against them are based on MDP’s and Moffett’s exercise of the right of petition. 14 M.R.S. § 556; Schelling,
[¶ 29] We focus our analysis, therefore, on the second step of the antiSLAPP analysis: whether Nader met his burden to establish that MDP’s and Moffett’s exercise of their right of petition “was devoid of any reasonable factual support or any arguable basis in law” and “caused actual injury” to Nader. 14 M.R.S. § 556. As we have interpreted section 556, if both the moving party (generally a defendant) and the nonmoving party (generally a plaintiff) present conflicting facts, the nonmoving party will always lose because the court must view the evidence in the light most favorable to the moving party. See Maietta Constr.,
[¶ 30] Applying this “converse summary-judgment-like standard” makes the special motion to dismiss unlike the other primary procedural mechanisms for early disposition of claims. In both motions to dismiss pursuant to M.R. Civ. P. 12(b)(6) and motions for summary judgment pursuant to M.R. Civ. P. 56, the trial court views the pleadings and evidence in the light most favorable to the nonmoving party, just as we do in reviewing such matters. See Dyer v. Dep’t of Transp.,
[¶ 31] This standard, which requires the court to view evidence in the light most favorable to the moving party, is a creature of case law. It does not appear in the language of the statute. Section 556 requires, at step two, only that the plaintiff 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.” Section 556 further provides: “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.”
[¶ 32] The converse summary-judgment-like standard first appeared in Morse Brothers, Inc. v. Webster, in the context of appellate review.
[¶ 33] A plain reading of section 556 does not dictate the converse summary-judgment-like standard, and it is this standard, not section 556, that burdens the constitutional rights at issue. To avoid an unconstitutional application of the law, as our rules of statutory interpretation require us to do, section 556 must be construed, consistent with usual motion-to-dismiss practice, to permit courts to infer that the allegations in a plaintiffs complaint and factual statements in any affidavits responding to a special motion to dismiss are true.
[¶ 34] We recently described the prima facie evidence standard as
the preliminary burden of production of evidence; it requires proof only of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party’s favor. Prima facie evidence requires only some evidence on every element of proof necessary to obtain the desired remedy. Thus, prima facie proof is a low standard that does not depend on the reliability or credibility of the evidence, all of which may be considered at some later time in the process.
Cookson v. State,
[¶ 35] A plaintiff may meet its burden of proof responding to a special motion to dismiss if, through “the pleading and supporting and opposing affidavits,” 14 M.R.S. § 556, the plaintiff presents “some evidence” that the defendant’s petitioning activity was devoid of factual or legal support and caused actual injury. Even when faced with conflicting evidence from a defendant, a plaintiff able to meet this “low standard” could avoid dismissal of his or her claim.
[¶ 37] If Nader fails to make a prima facie case that any of MDP’s and Moffett’s petitioning activities in any other state or states were devoid of any reasonable factual support or arguable basis in law, the claims regarding actions in those states where no prima facie case is demonstrated would be dismissed.
[¶ 38] We therefore remand this matter for the trial court to reapply the statute at the second step of the antiSLAPP analysis, including making a determination as to whether Nader can present sufficient evidence to make a prima facie showing that any of MDP’s and Moffett’s petitioning activities, including actions in Maine, were devoid of any reasonable factual support or any arguable legal basis and resulted in actual injury to him. Actual injury could include, as alleged in Nader’s complaint, quantifiable losses of money or other resources or identifiable special damages. An abuse of process claim would also require a prima facie showing of two elements: (1) “the use of process in a manner improper in the regular conduct of the proceeding,” and (2) “the existence of an ulterior motive.” Advanced Constr. Corp. v. Pilecki,
[¶ 39] Because we vacate the court’s judgment granting MDP’s and Moffett’s special motions to dismiss and remand for further proceedings, we also vacate the court’s judgment awarding Moffett attorney fees and costs.
The entry is:
Judgment granting MDP’s and Moffett’s special motions to dismiss is vacated. Judgment granting Moffett’s motion for attorney fees and costs is vacated. Remanded for further proceedings consistent with this opinion.
Notes
. Title 14 M.R.S. § 556 (2011) has been amended by P.L.2011, ch. 559, § A-13 (to be effective ninety days after adjournment of the Legislature in 2012, see Me. Const, art. IV, pt. 3, § 16), to provide that “[t]he 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.”
. An additional plaintiff, J. Noble Snowdeal, is named on the complaint, but he withdrew his claims before the court entered judgment in this case.
. Nader also alleges that MDP, Moffett, and their co-conspirators intervened in proceedings to remove Nader from the ballot in Oregon.
. Nader filed a notice of appeal on December 7, 2010, after Moffett filed a motion for attorney fees, but before the court ruled on Mof-fett’s motion.
. The anti-SLAPP statute further provides:
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 fallingwithin constitutional protection of the right to petition government.
14 M.R.S. § 556.
. We were not required in Schelling, our most recent anti-SLAPP opinion, to interpret the statute’s language under consideration in this opinion. Schelling v. Lindell,
. The First Amendment states, in relevant part: "Congress shall make no law ... abridging ... the right of the people ... to petition the Government for a redress of grievances.”
The Maine Constitution, article I, § 15, provides: "The people have a right at all times in an orderly and peaceable manner to assemble to consult upon the common good, to give instructions to their representatives, and to request, of either department of the government by petition or remonstrance, redress of their wrongs and grievances.”
. Notably, although Nader's complaint alleges claims for injury to the plaintiffs, the underlying issues — access to the political process for minor-party candidates, preventing major parties from excluding minor-party candidates from entering the political discourse— are arguably of interest to the community as a whole. See Borough of Duryea v. Guarnieri, 564 U.S. -,
. The Duracraft opinion addressed this potential constitutional infirmity in the Massachusetts statute by interpreting the phrase "based on” in its statute as requiring that the moving party show at the first step of the anti-SLAPP analysis that the plaintiff’s claims against him are " 'based on’ the petitioning activities alone and have no substantial basis other than or in addition to the petitioning activities.” Duracraft Corp. v. Holmes Prods. Corp.,
. The United States Supreme Court has recognized that the basis of the right of access to courts is not fully settled, noting that its decisions have grounded that right in the Article IV Privileges and Immunities Clause, the First Amendment Petition Clause, the Fifth Amendment Due Process Clause, and the Fourteenth Amendment Equal Protection and Due Process Clauses. Christopher v. Harbury,
. Though recognizing that "the right to vote is fundamental” and that "[a] restriction on candidacy implicates a fundamental right ... ‘if the challenged restriction unfairly or unnecessarily burdens the availability of political opportunity,’ ” the United States Supreme Court has declined to apply a strict scrutiny test universally, but has instead adopted a balancing approach that requires a court to identify and evaluate the interests put forth as justification for the burden imposed on a political party’s access to the ballot. Crawford v. Marion Cnty. Election Bd.,
. Nader argues that the First Amendment to the Constitution protects as "petitioning activity” only petitioning activity that is not knowingly baseless or false, and that it was MDP's and Moffett’s burden at the first step of the anti-SLAPP analysis to establish not only that Nader’s claims are based on their petitioning activity, i.e., their complaints, but that their complaints were protected under the First Amendment despite being knowingly false, baseless, and filed with the intent to cause injury, to sabotage, and to harass Nader.
We conclude that Nader’s construction of the language "based on the moving party's exercise of the moving party’s right of petition under the [United States or Maine] Constitution[s]” is at odds with section 556 and our case law. Rather, even if MDP's and Mof-fett’s complaints are shown to have been baseless, the United States Supreme Court has suggested, in dicta, that it has "never held that the entire class of objectively baseless litigation may be enjoined or declared unlawful even though such suits may advance no First Amendment interests of their own.” BE & K Constr. Co. v. N.L.R.B.,
. Pursuant to M.R. Civ. P. 11(a), a signature on a complaint "constitutes a representation by the signer that the signer has read the pleading ...; that to the best of the signer’s knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay.”
. Because this action was dismissed at a very early stage, there has not yet been opportunity to examine the facts and the law regarding jurisdiction of the courts of the State of Maine to address issues regarding petitioning activity that occurred before courts and administrative agencies in other jurisdictions. We express no opinion on that issue.
Concurrence Opinion
concurring.
[¶ 40] I concur in the result reached by the majority in this case, and with the Court’s decision to reallocate and lower the burdens applicable in anti-SLAPP cases in order to restore balance to the competing constitutional rights implicated by this statute. I write separately because Maine’s anti-SLAPP statute raises serious concerns regarding the right to equal protection under the law, to petition the gov
[¶41] We have long interpreted the “open courts” provision of the Maine Constitution to guarantee a right of access to the courts “to all persons alike without discrimination,” limited only by the Legislature’s “reasonable procedural requirements for exercising the right to an adjudication.” Godbout v. WLB Holding, Inc.,
[¶42] The special motion to dismiss created by the anti-SLAPP statute is intended to do the same thing: to dispose of baseless lawsuits that are brought not to vindicate the plaintiffs rights but to punish the defendant for exercising her constitutional right to petition the government, and to do so at an early stage before the defendant incurs great expense. See Maietta Constr., Inc. v. Wainwright,
[¶ 43] Maine adopted the Maine Health Security Act (MHSA), 24 M.R.S. §§ 2501-2987 (2011), for a similar reason. A “national crisis” in the availability and cost of medical malpractice insurance was occurring, which had caused an increase in medical malpractice insurance rates in Maine. Saunders v. Tisher,
[¶44] Although the anti-SLAPP statute seeks to serve the same purpose as the MHSA, it differs significantly in two very important ways. First, the Legislature did not identify the existence of any crisis in Maine to justify imposing an additional burden on a certain class of plaintiffs. Our Legislature was silent as to its reasons for adopting Maine’s anti-SLAPP statute, in contrast to its clear articulation
[¶ 45] The lack of a need for this statute in Maine is evidenced by the fact that it has rarely, if ever, been invoked by a citizen group or individual private citizens who seek to avail themselves of the protections of the statute against a resource-draining lawsuit. Instead, the statute has consistently been used between parties such as business partners, see DeSimone v. MacQuinn-Tweedie,
[¶ 46] The second way the anti-SLAPP statute differs from the MHSA is that the statute’s plain language “substantively alters the type of harm actionable — that is, plaintiff must show the defendant’s conduct resulted in actual injury to the plaintiff.” Godin v. Schencks,
[¶ 47] Clearly, the statute is capable of functioning as more than a procedural barrier to test the validity or likelihood of success of a potentially meritless cause of action. Because of the way the statute has been misused with respect to its intended purpose, treating it as a substantive abro-
[¶ 48] More importantly, abrogating common law causes of action only for certain plaintiffs — plaintiffs who seek to challenge certain activities — presents a serious constitutional issue. Interpreting the statute to subject certain plaintiffs to an evi-dentiary burden that is higher than that borne by other similarly-situated plaintiffs invites violations of plaintiffs’ rights to equal protection of the law pursuant to article 1, section 6-A of the Maine Constitution. A plaintiff with a cause of action for defamation, for example, is deprived of her right to petition the court for redress only when the action that caused her injury was a form of petitioning, even sham petitioning. This amounts to a distinction among and differing treatment of identical plaintiffs with identical harms and causes of action. When one plaintiff is able to pursue her cause of action and the other is not, equal protection of the law is implicated.
[¶ 49] Our reasoning in defense of the MHSA does not apply here. We have upheld that statute on the basis that a plaintiff does not have a fundamental right to bring a particular cause of action. See Irish,
[¶ 50] In addition, interpreting the statute to create an additional, substantive burden that authorizes the dismissal of legitimate causes of action brought in good faith may deprive plaintiffs of their fundamental rights of access to the courts and to petition the government for redress guaranteed by the United States Constitution. See Duracraft Corp. v. Holmes Prods. Corp.,
[¶ 51] The Court is forced to walk a precarious line when the Legislature attempts to protect the fundamental constitutional rights of some parties by limiting the same rights of other parties. I share the view of the Massachusetts Appeals Court that “literal application of the statutory test and procedure ... create[s] grave constitutional problems where, as here, the plaintiffs action asserts a legitimate, cognizable claim.” Duracraft,
[¶ 52] I commend the Court’s painstaking effort to strike the appropriate balance in this case and I believe that it has achieved the right result. I find it necessary to emphasize, however, that the only way to avoid the constitutional implications of this statute is to continue to treat the special motion to dismiss as a procedural, dispositive motion, as the Court has done in this case.
. Twenty-nine states currently have anti-SLAPP legislation, but just three other states — Massachusetts, Arizona, and Vermont — have statutes similar to Maine's. Anti-SLAPP statutes in nine states — Arkansas, California, Delaware, Florida, Georgia, Hawaii, Louisiana, New York, and Oregon — directly address the merit of the plaintiff's claim. See Public Participation Project, State Anti-SLAPP Laws, http://www.anti-slapp.org/ your-states-free-speech-protection (last visited April 9, 2012).