Lead Opinion
Mаjority: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, and HUMPHREY, JJ.
Dissent: JABAR, 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.
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, Gau-dette 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, Gau-dette 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),
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,
When a moving party asserts that the civil claims, counterclaims or cross claims against the moving party are based on the moving party’s exercise of the moving party’s right of petition under the Constitution of the United States or the Constitution of Maine, the moving party may bring a special motion to dismiss. The special motion may be advanced on the docket and receive priority over other cases when the court determines that the interests of justice so require. The court shall grant the special motion, unless the party against whom the special motion is made shows that the moving party’s exercise of its right of petition was devoid of any reasonable factual support or any arguable basis in law and that the moving party’s acts caused actual injury to the responding party. In making its determination, the court shall consider the pleading and supporting and opposing affidavits stating the facts upon which the liability or defense is based.
The Attorney General on the Attorney General’s behalf or on behalf of any government agency or subdivision to which the moving party’s acts were directed may intervene to defend or otherwise support the moving party on the special motion.
All discovery proceedings are stayed upon the filing of the special motion under this section, except that the court, on motion and after a hearing and for good cause shown, may order that specified discovery be conducted. The stay of discovery remains in effect until notice of entry of the order ruling on the special motion.
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 thе moving party to any remedy otherwise authorized by law.
*1195 As used in this section, “a party’s exercise of its right of petition” means any written or oral statement made before or submitted to a legislative, executive or judicial body, or any other governmental proceeding; any written or oral statement made in connection with an issue under consideration or review by a legislative, executive or judicial body, or any other governmental proceeding; any statement reasonably likely to encourage consideration or review of an issue by a legislative, executive or judicial body, or any other governmental proceeding; any statement reasonably likely to enlist public participation in an effort to effect such consideration; or any other statement falling within constitutional protectiоn of the right to petition government.
14 M.R.S. § 556; see Maietta Constr., Inc. v. Wainwright,
[¶ 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,
[¶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,
[¶ 8] We have consistently specified a shifting assignment of burdens. Weintraub,
[¶ 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 non-moving party (gеnerally, 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.,
[¶ 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.,
[¶ 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.”
[¶ 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.”
[¶ 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,
[¶ 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 pеtition.
[¶ 15] We therefore return, as we must in any statutory interpretation matter, to the plain language of section 556, see Weintraub,
[¶ 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.,
[¶ 17] If the court agrees that the defendant has met this burden as a matter of law, the court must then consider the plaintiffs opposition to the special motion to dismiss. Id. ¶ 16. As set out in Nader I, and in accordance with section 556, it is the plaintiffs 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,
[¶ 18] We now hold, however, contrary to what we indicated in Nader I,
[¶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 plaintiffs burden in оpposing 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,
[¶20] Second, neither discovery nor the hearing may address any petitioning activity for which the plaintiffs prima facie burden was not met. As we held in Nader /, to survive the special motion to dismiss, the plaintiff must meet his prima facie burden as to any one of the petitioning activities аt 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.
[¶ 21] We reiterate that this evi-dentiary 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 plaintiffs 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 complaint as to those acts for which the
[¶ 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,
[¶ 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 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 thаt “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,
[¶25] This analysis of Gaudettе’s opposition started and ended (at the time, properly) with the prima facie standard that we set out in Nader I. We 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.
The entry is:
Judgment vacated. Remanded for further proceedings consistent with this opinion.
Notes
. 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)).
. 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 (effectivе July 29, 2016) (codified at 16 M.R.S. § 806 (2016)).
. We 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,
. 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),
. As 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,
Because of the broad language chosen by the Legislаture 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,
. 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.
. 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.”
. 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.,
. Our shifting interpretations of tire 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,
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.
. We also take this opportunity to call to the attention of the court and the parties that a statement is defamatoiy only if it is “of or concerning” a plaintiff (among other elements). Hudson v. Guy Gannett Broad. Co.,
Dissenting Opinion
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 cаses.
[¶ 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),
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
[¶ 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” meеts 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 ease may move forward. Id. The intent of the Legislature was to avoid unnecessary litigation due to mer-itless 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 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 ease.
[¶ 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 plaintiffs primary motivation, defendants’ traditional safeguards against meritless actions ... are inаdequate.” Morse Bros., Inc. v. Webster,
[¶ 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,
B. Constitutional Violations
[¶ 34] The Court’s creation of an eviden-tiary 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,
[¶ 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,
[¶ 36] The United Stаtes District Court for the District of Massachusetts, remarking upon our holding in Nader I, stated that the “Supreme Judicial Court of Maine got it right.” Hi-Tech Pharms., Inc. v. Cohen,
[¶ 37] Similarly, the Washington Supreme Court has held that an anti-SLAPP statute requiring a trial judge to make a factual determination by clear and convincing evidence of the probability of the plaintiff prevailing on his or her claim is unconstitutional. Davis v. Cox,
[¶ 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 Mаssachusetts 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 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,
[¶ 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.
[¶ 42] The holding in Nader I was “consistent with usual motion-to-dismiss prаctice,” specifically because—unlike the new procedure—it permitted the trial court “to infer that the allegations in a plaintiffs complaint and factual statements in any affidavits responding to a special motion to dismiss are true.” Nader I,
[¶ 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 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.
. 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,
. The court noted that frivolous litigation and sham litigation are not constitutionally protected. Davis v. Cox,
. 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).
. "[N]ot only has this statute been used by different parties than those intended, but it has served an entirely different purpose than the one intended. The 'Goliath' who abuses other forms 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),