THOMAS FRANCHINI v. INVESTOR‘S BUSINESS DAILY, INC., et al.
Fed-20-306
MAINE SUPREME JUDICIAL COURT
February 10, 2022
2022 ME 12
Decision: 2022 ME 12
Argued: September 8, 2021
Panel: STANFILL, C.J., and MEAD, JABAR, HUMPHREY, HORTON, and CONNORS, JJ., and HJELM, A.R.J.
Majority: STANFILL, C.J., and MEAD, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.
Dissent: HJELM, A.R.J.
Reporter of Decisions
JABAR, J.
[¶1] In this case, we address the First Circuit Court of Appeals’ order certifying a question of law to us: “Should [Investor Business Daily‘s] special motion to dismiss be granted under
A. Facts
[¶2] The facts, as recited here, are taken from the First Circuit order. Franchini v. Inv.‘s Bus. Daily, 981 F.3d 1 (1st Cir. 2020.) In the 1990s, Investor‘s Business Daily (IBD) launched a National Issues feature with the set goal of “not merely criticizing policies and programs, but also, where possible, putting forward reasonable solutions or policy responses” on “political, regulatory, economic and health care issues” to influence public policy reform at the federal government. This feature started as an editorial page where IBD invited “a well-regarded core of writers, thinkers and policy makers to take part in [the] ‘IBD Brain Trust‘” and later “expand[ed] to include op-eds submitted from outside contributors.”
[¶3] Sally Pipes has written “regularly for IBD on health care since the late 1990s,” and is the president and chief executive officer of the Pacific Research Institute, “whose mission is to advance free market-policy solutions to current governmental public policy issues.” Pipes is not an employee of IBD.1 On December 22, 2017, IBD published an op-ed entitled “Sally C. Pipes: VA Negligence Is Killing Veterans“; the byline named Pipes as the op-ed‘s author. The op-ed is a general critique of the Department of Veterans Affairs.2
[¶4] The only direct reference to Thomas Franchini was midway through the op-ed:
Consider the case of Thomas Franchini, a podiatrist at a Maine VA hospital. Franchini botched 88 procedures. He severed a patient‘s tendon during one surgery and failed to successfully fuse one woman‘s ankle in another. The latter‘s leg had to be amputated as a result. Franchini wasn‘t fired for any of these errors. Instead, the VA allowed him to resign and return to private practice.
The op-ed ended, “The VA is in shambles. Absent reform that allows vets to seek care in the private sector, our veterans will continue to be subjected to subpar care.” Pipes stated that she intended this op-ed to be a “call to action ...to enlist public participation in the health care policy issues under consideration by national and local governmental bodies.”
[¶5] The op-ed also included an embedded banner reading, “No Hidden Agenda: Get News From a Pro-Free Market, Pro-Growth Perspective.” The end of the op-ed included a biography of Pipes and a hyperlink that stated, “Click here for more Commentary and Opinion from Investor‘s Business Daily.”
B. Procedure
[¶6] On February 5, 2018, Franchini filed a complaint in the United States District Court for the District of Maine against multiple defendants, including Pipes and IBD. Franchini brought multiple counts against the parties, including defamation
[¶7] IBD separately filed a special motion to dismiss arguing that either Maine‘s or California‘s anti-SLAPP statute applied.4 It included declarations of Pipes and Chris Gessel, the chief content officer of IBD.5 Pipes‘s declaration included two exhibits: the op-ed as published and the op-ed with footnotes to sources of the facts.
[¶8] On March 28, 2019, the district court (Singal, J.) denied the special motion to dismiss pursuant to the Maine anti-SLAPP statute and declined to determine whether the California anti-SLAPP statute applied.
[¶9] IBD timely appealed the denial of the special motion to dismiss. On November 13, 2020, the First Circuit issued a written order certifying an underlying question of law to us. In the order, the First Circuit stated that the district court did not address IBD‘s argument that it was engaged in petitioning activity on its own behalf, which is an issue that “the Gaudette footnote expressly reserved.” See Gaudette v. Mainely Media, LLC (Gaudette II), 2017 ME 87, ¶ 18 n.3, 160 A.3d 539.
[¶10] The First Circuit certified one question to us: “Should IBD‘s special motion to dismiss be granted under
II. DISCUSSION
[¶11] Before answering the question certified to us by the First Circuit, we must first decide whether to consider the certified question.
[¶12] Although authorized by
[¶13] Although the certified question is framed in terms of whether a pending motion should be granted rather than in terms of a question of law (and we could decline to answer on that ground), we infer that the question of law presented is the one that the First Circuit described as being left open in the district court decision—whether a publication must show that it was petitioning on its own behalf to invoke the protection of Maine‘s anti-SLAPP statute. The statute,
[¶14] In certifying this question of law for our review, the First Circuit stated that “the district court did not address [IBD‘s argument that it was petitioning on its own behalf] and the Gaudette [II] footnote expressly reserved [this argument].”7
[¶15] We have already decided that a party making a special motion to dismiss pursuant to the anti-SLAPP statute must show that the claim against it arises out of its exercise of its own right of petition. In Gaudette II, we affirmed the trial court‘s dismissal of the special motion to dismiss because the anti-SLAPP statute did not apply to the publication of the articles at issue because “the newspaper was documenting current events, which included documenting others’ exercise of their right to petition. [The newspaper] itself may have had views on the alleged abuse and how government should respond to the alleged abuse, but those views were not communicated in the articles.” Id. ¶¶ 15, 18.
[¶16] Although we reserved commentary in Gaudette II “on when news reporting or
Maine‘s anti-SLAPP statute is not applicable to newspaper articles unless [1] those articles constitute the newspaper petitioning on its own behalf or [2] the party seeking to invoke the anti-SLAPP statute is a party that used the newspaper to broadcast the party‘s own petitioning activities.
Id. ¶ 17.
[17] The determination of whether and on whose behalf a publication or other party has engaged in petitioning activity is a case-specific, fact-driven inquiry. Gaudette I, 2017 ME 86, ¶ 16, 160 A.3d 1190; Nader v. Me. Democratic Party, 2013 ME 51, ¶ 12 n.9, 66 A.3d 571.
[¶18] After reviewing the facts, the district court specifically referenced Gaudette II in concluding that IBD was not engaged in petitioning activities “on its own behalf.” The dissent recognizes that “the [district court] and [the First Circuit] may be seen to view the parties’ submissions filed in connection with the special motion to dismiss in ways that are not entirely consistent.” Dissenting Opinion ¶ 29 n.12. We agree with the dissent that it is not our role to second-guess either court‘s construction. The point is that there are clear principles that a court can follow, laid out in Gaudette II, to conclude whether, depending on the interpretation of the facts, a publication is engaging in petitioning activity on its own behalf. Whether the facts in this case constitute petitioning activity will not answer how the next case will be decided.
[¶19] The dissent states that “if we were to conclude that IBD‘s publication of the Pipes column constituted petitioning activity by IBD, then IBD would be entitled to a favorable disposition of its motion, meaning that the claim itself would be dismissed in federal court.” Dissenting Opinion ¶ 42.
[¶20] We should not make this determination. The conclusion as to the fact-driven analysis surrounding petitioning activity must be left to the fact-finder. Its conclusion will depend upon inferences that it draws from the stated facts. It is up to the First Circuit, acting in an appellate capacity, to determine whether the inferences drawn by the district court that lead to its legal conclusion regarding petitioning activity are supported by the evidence. It is not our function to make that determination in response to a certified question presented to us.
III. CONCLUSION
[¶21] Because there is clear precedent that applies to the dispute, we decline to answer the certified question of law submitted to us by the First Circuit.
The entry is:
Certified question of law returned to the First Circuit Court of Appeals without answer for the reasons stated in this opinion.
HJELM, A.R.J., dissenting.
[¶22] I respectfully dissent. Pursuant to well-established principles governing our treatment of certified questions, we should reach and address the merits of the state-law issue on which our colleagues on the Court of Appeals for the First Circuit seek our authoritative guidance. As the First Circuit has framed the issue, each of the predicate conditions establishing our authority to accept the case is satisfied here: there is no dispute of fact material to the legal issue presented; one of the answers we can provide will be determinative of the federal claim between the parties before
[¶23] I will first discuss the salient principles underlying the certification process generally and then address the specific jurisdictional element on which the Court erroneously rejects the First Circuit‘s tender of the case for our consideration.
A. Certification
[¶24] The availability of the process by which a federal court may refer—or certify—an unsettled question of state law to that state‘s highest court is born of principles of federalism, comity, and efficiency. The notion of a federal court‘s certification of state-law questions, even when those questions arise in nonconstitutional diversity cases, has been articulated since at least the 1940s. See Meredith v. Winter Haven, 320 U.S. 228, 236 (1943). In 1965, the Maine Legislature codified the Supreme Judicial Court‘s jurisdiction to adjudicate questions certified by a federal court by amending the statute that defines, in part, the scope of our authority generally. P.L. 1965, ch. 158. Title
When it appears to the Supreme Court of the United States, or to any court of appeals or district court of the United States, that there is involved in any proceeding before it one or more questions of law of this State, which may be determinative of the cause, and there are no clear controlling precedents in the decisions of the Supreme Judicial Court, such federal court may certify any such questions of law of this State to the Supreme Judicial Court for instructions concerning such questions of state law, which certificate the Supreme Judicial Court sitting as the Law Court may, by written opinion, answer.
Then, in order to implement that statutory authority, we promulgated a series of procedural rules—former Maine Rule of Civil Procedure 76B (West 2000) and its successor, Maine Rule of Appellate Procedure 25, which is currently in effect—that prescribe the state court procedure when a federal court certifies a question of law to us.
[¶25] The jurisdictional predicate establishing our authority to answer federally certified questions includes the three elements prescribed explicitly in section 57: the issue is one of law; our answer will be determinative of the federal action;8 and there is an absence of “clear controlling precedents” already on the books. To these statutory requirements, we have added a fourth condition—that there be no dispute of material fact affecting the certified question.9 See, e.g., Bankr. Est. of Everest v. Bank of Am., N.A., 2015 ME 19, ¶¶ 13, 15, 111 A.3d 655; Dinan v. Alpha Networks, Inc., 2013 ME 22, ¶ 11, 60 A.3d 792. Given this set of circumstances that must
[¶26] Beyond our discussions of the specific jurisdictional elements attendant to a certified question, we have commended the salutary principles and objectives underlying certification because it advances “a most fundamental principle of ‘our federalism‘—that a state‘s highest court is the ultimate authority in interpreting that state‘s laws. White v. Edgar, 320 A.2d 668, 675 (Me. 1974). As we have written, our willingness to address issues certified by the federal courts works to the “mutual benefit” of the two judicial systems and furthers our “harmonious relationships.” Id. at 674. Accordingly,
in the situation in which a decision of a question of State law is necessary to a decision of the federal merits of a cause pending in the federal [c]ourt, it is, and will continue, a strong policy of this Court, as conducive to a sound federalism and the promotion of harmonious relations between federal and State [c]ourts, to implement the certification process afforded by
4 M.R.S.[] § 57 in the fullest scope consistent with this Court‘s proper functioning.
Id. at 675-76 (emphases added); see also Bankr. Est. of Everest, 2015 ME 19, ¶ 14, 111 A.3d 655; Dinan, 2013 ME 22, ¶ 22, 60 A.3d 792 (stating that “it is our policy to promote comity between the federal and state courts” by answering proper certified questions); 3A Harvey & Merritt, Maine Civil Practice § A25:1 at 244 (3d, 2021-2022 ed. 2021) (characterizing our opinions as expressing a “warm sympathy” toward accepting certified questions).10 As is maintained in
the leading treatise on Maine‘s civil practice, “For the sake of good federal-state relations, it may be expected that the federal courts will reserve certification for the unusual, hard case of general importance, and at the same time the Law Court will answer all questions certified to it except only ones plainly not in proper posture for its consideration.” 3A Harvey & Merritt, Maine Civil Practice § A25:1 at 248-49 (alteration, footnotes, and quotation marks omitted).
[¶27] Against this backdrop that demonstrates the generous view we take toward acceptance of certified questions, I turn to the question at issue here.
B. Factual Background, Gaudette II, and the Certified Question
[¶28] The certification process binds us to the facts as determined by the certifying court, here, the First Circuit.11 See Johnson v. Allstate Ins. Co., 687 A.2d 642, 643 (Me. 1997) (describing the facts “as certified to this Court“); Hiram Ricker & Sons v. Students Int‘l Meditation Soc‘y, 342 A.2d 262, 263 (Me. 1975)
(describing the facts “set out in the certificate“);
[¶29] The First Circuit has presented the following facts to us. Defendant Investor‘s Business Daily (IBD) is a subscription news service that pursues a mission both to criticize existing public policies and to propose solutions and policy responses. Franchini v. Inv.‘s Bus. Daily, Inc., 981 F.3d 1, 3 (1st Cir. 2020). Prominent among the topics addressed by IBD is health care. Id. On that issue, Sally Pipes is one of IBD‘s regular contributors. Id. In December of 2017, IBD published one of her submissions, which is central to this action. Id. The column criticized the medical care being provided to veterans by the Department of Veterans Affairs—an agency that Pipes described as being “infamous for administering low-quality care.” Id. at 5. The column singled out plaintiff Thomas Franchini as having “botched” nearly ninety podiatric procedures at a VA hospital in Maine. Id. Pipes wrote the piece, which advocates for specific reforms, “to enlist public participation in order to influence national health care policy.” Id. at 4, 6, 9-10. IBD chose to publish the column because Pipes‘s views were “aligned with its own“—an alignment apparent in the piece itself—and as “part of an editorial effort to ‘favorably affect public policy.‘”12 Id. at 6, 10 (alteration omitted).
[¶30] After IBD published the article, Franchini filed a defamation action in federal court against IBD and others. Id. at 6. In response, IBD moved for the court to dismiss the action pursuant to Maine‘s anti-SLAPP statute,
on its reading of our decision in Gaudette v. Mainely Media, LLC (Gaudette II), 2017 ME 87, 160 A.3d 539. Franchini v. Bangor Publ‘g Co., 383 F. Supp. 3d 50, 64-65 (D. Me. 2019).
[¶31] The issue in Gaudette II was the applicability of section 556 to a defamation claim asserted against a newspaper based on its publication of a series of articles about allegations of criminal conduct committed by Gaudette and grand jury proceedings that did not produce criminal charges against him. Id. ¶¶ 1, 3-7, 160 A.3d 539. In response to the complaint for defamation, the newspaper‘s owner, Mainely Media, filed a special motion to dismiss based on section 556. Id. ¶¶ 7-8. The question generated by Mainely Media‘s motion was whether the published articles constituted the “exercise of the moving party‘s right of petition” within the meaning of the anti-SLAPP
the pleading and supporting and opposing affidavits stating the facts upon which the liability or defense is based.
. . . .
As used in this section, “a party‘s exercise of its right of petition” means any written or oral statement made before or submitted to a legislative, executive or judicial body, or any other governmental proceeding; any written or oral statement made in connection with an issue under consideration or review by a legislative, executive or judicial body, or any other governmental proceeding; any statement reasonably likely to encourage consideration or review of an issue by a legislative, executive or judicial body, or any other governmental proceeding; any statement reasonably likely to enlist public participation in an effort to effect such consideration; or any other statement falling within constitutional protection of the right to petition government.
statute. Id. ¶ 17 (quotation marks omitted). The trial court denied the motion. Id. ¶ 8.
[¶32] On the resulting appeal, we held that publication of the articles in question did not amount to the exercise of the newspaper‘s right to petition because “the newspaper was documenting current events, which included documenting others’ exercise of their right to petition,” and because the articles did not convey any views the newspaper may have had on the reported matters. Id. ¶ 15. We also stated that “[u]nless a newspaper is petitioning on its own behalf, the newspaper is not exercising its own right of petition.” Id. But in a footnote that later played a prominent part in the First Circuit‘s decision to certify the issue in this case to us, we expressed a limitation on the scope of our holding that Mainely Media had not exercised its right to petition when it published the “news report.” In the footnote, we stated, “Because the news reports at issue in this appeal do not constitute petitioning activity, we need not speculate on when news reporting or editorializing might constitute petitioning activity.” Id. ¶ 18 n.3.
[¶33] In Franchini‘s federal action, given the district court‘s reading of the record that the Pipes column contained mere news reporting, but see supra n.12, the court determined that IBD had not engaged in petitioning activity when it published the column written by Pipes, just as we had concluded in Gaudette II that the nonadvocacy reporting of current events was not petitioning activity, see 2017 ME 87, ¶ 15, 160 A.3d 539. Franchini, 383 F. Supp. 3d at 64-65. On that basis, the court
[¶34] After the district court issued its order, IBD filed an interlocutory appeal to the First Circuit. Franchini, 981 F.3d at 6. In the resulting opinion, the First Circuit made clear its own reading of the record, which was that IBD chose to publish Pipes‘s column—which she herself described as a “call to action“—to advance its own “editorial effort” to affect public policy. Id. at 3, 6; see supra n.12. The First Circuit also construed the record to establish that “IBD selected a columnist [Pipes] with a particular viewpoint that aligned with its own. Both the columnist‘s and IBD‘s views are discernible from the Op-Ed.” Id. at 10.
[¶35] The court then summarized the parties’ competing assertions about whether our holding in Gaudette II was determinative of the applicability of section 556 to Franchini‘s defamation claim. That synopsis recited IBD‘s contentions that the statute applied directly to protect its own publishing activity and also that IBD should benefit vicariously from the protections
created by section 556 because the statute would have resulted in the dismissal of a claim against Pipes if she were a party to the action.14 Id. In the end, however, the court focused on Gaudette II‘s footnote 3, observing that we had reserved the issue that would be dispositive of IBD‘s special motion to dismiss and concluding that the determination of that issue “is appropriately resolved by the Maine Law Court.” Id. Accordingly, retaining jurisdiction, the First Circuit certified the following question to us: “Should IBD‘s special motion to dismiss be granted under [
C. Propriety of Certification
[¶36] Despite the absence of advocacy from the parties about whether it would be proper for us to accept the certified question, the Court today declines to answer it, primarily on one ground—that governing legal principles already exist in “clear precedent that applies to the dispute.”15 Court‘s Opinion ¶ 21.
I agree that if this were true and such precedent existed, we would be without statutory authority to accept the question. See
[¶37] The nature of the First Circuit‘s inquiry must first be determined in order to consider whether precedent exists in Maine law. The First Circuit has framed the certified question in terms that would call for us to determine simply whether IBD‘s special motion should be granted. This is an ultimate adjudicatory determination, however, which remains with the federal judiciary alone because the action remains pending in federal court. Nonetheless, the court‘s opinion provides us with a
[¶38] The issue embodied in the First Circuit‘s question to us is evident: whether a subscription news service that is in the business of both criticizing and promoting various policy positions is engaged in petitioning activity within the meaning of Maine‘s anti-SLAPP statute when that entity publishes an editorial piece written by a third party about a public policy matter; the news service specifically selects that piece for publication because the column expresses a viewpoint that mirrors its own partisan views on the issue; and the publisher‘s partisan position is evident from the article.
[¶39] The essential question certified to us, when viewed this way, meets the four jurisdictional elements.
[¶40] First, as I discuss above, see supra ¶¶ 28-29 & n.12, the question is unencumbered by any dispute of material fact.
[¶41] Second, it presents a question of law. The issue focuses directly and entirely on the first step of the analytical framework attendant to an anti-SLAPP special motion to dismiss—specifically, whether at the time of the allegedly actionable conduct, given the circumstances described by the First Circuit, IBD was engaging in petitioning activity, which is the gateway inquiry that determines whether the anti-SLAPP statute applies at all.17 Franchini, 981 F.3d at 10 n.8; see, e.g., Desjardins v. Reynolds, 2017 ME 99, ¶ 8, 162 A.3d 228. We have stated several times that this first step in the anti-SLAPP inquiry is “purely a question of law for the court‘s decision.” Gaudette v. Davis (Gaudette I), 2017 ME 86, ¶ 16, 160 A.3d 1190, abrogated in part by Thurlow v. Nelson, 2021 ME 58, ¶ 19, 263 A.3d 494; see also Desjardins, 2017 ME 99, ¶ 8, 162 A.3d 228. Consequently, the question of whether IBD‘s publication of the Pipes article constituted petitioning activity is a question of law, thereby satisfying that jurisdictional requirement created in section 57.
[¶42] Third, one possible answer to this question is dispositive of Franchini‘s defamation claim against IBD because, given the First Circuit‘s determination that the remaining aspects of an anti-SLAPP special motion to dismiss were satisfied here, see supra n.17, if we were to conclude that IBD‘s publication of the Pipes column constituted petitioning activity by IBD, then IBD would be entitled to a favorable disposition of its motion, meaning that the claim itself would be dismissed in federal court, which retains jurisdiction. See Bankr. Est. of Everest, 2015 ME 19, ¶ 13, 111 A.3d 655.
[¶43] This leads to the fourth and final elemental issue—the one where I part ways with the Court—which is whether there exists “clear controlling precedent[]” that already provides an answer to the certified question.
[¶44] Gaudette II answers a very different question than the one presented here and therefore does not provide precedent for this action. The holding in Gaudette II establishes only that when a newspaper publishes a factual account of current events, the publisher is not engaged in petitioning activity for purposes of the anti-SLAPP statute. Gaudette II, 2017 ME 87, ¶¶ 15, 17, 160 A.3d 539. The federal case at issue here presents just the opposite situation—it centers on the publication of the publisher‘s own partisan views, where the publisher decided to publish the advocacy piece because the publisher agreed with the viewpoint expressed in the column and that alignment is apparent from the published piece. Gaudette II therefore does not have precedential bearing on the legal issue presented here.
[¶45] In extending Gaudette II‘s purported reach, the Court relies on statements we made in that opinion that a publisher is not petitioning “[u]nless a newspaper is petitioning on its own behalf” and that “Maine‘s anti-SLAPP statute is not applicable to newspaper articles unless those articles constitute the newspaper petitioning on its own behalf or the party seeking to invoke the anti-SLAPP statute is a party that used the newspaper to broadcast the party‘s own petitioning activities.” Id.; see Court‘s Opinion ¶¶ 16, 18. For two reasons, those statements are not precedentially responsive to the First Circuit‘s inquiry.
[¶46] First, the statements in Gaudette II quoted above are dicta and therefore do not rise to the level of “clear controlling precedent[],”
[¶47] In Gaudette II we were not deciding the issue presented here, which is whether publication of advocacy content amounts to petitioning activity. The statements we made in Gaudette II that the Court now says dispose of that issue were therefore extrinsic and far from essential to the issue actually presented there, which was whether straight news reporting—rather than advocacy or editorializing, as is the situation here—constitutes the exercise of petitioning rights. Our statements in Gaudette II about the legal effect of facts that were not before us in that case are dicta and thus not precedential.
[¶48] Second, in the footnote that the First Circuit emphasized, we stated explicitly, “Because the news reports at issue in this appeal do not constitute petitioning activity, we need not speculate on when news reporting or editorializing might constitute petitioning activity.” Gaudette II, 2017 ME 87, ¶ 18 n.3, 160 A.3d 539. Footnote 3 therefore serves to properly limit Gaudette II‘s holding to the factual circumstances of that case and explicitly leaves unresolved, for another day and some future case, the question presented here—whether editorializing, which is what IBD was doing, or even some forms of news reporting can be petitioning activity pursuant to Maine‘s anti-SLAPP statute. Thus, whatever force may be assigned to the dicta in the text—and, for the reasons I offer above, any force it may have certainly falls short of being binding authority—is undercut by the reservation in the footnote. At the very least, the tension between the textual dicta and the footnote leaves the effect of the former enigmatic and materially uncertain.
[¶49] For these reasons, the language in Gaudette II invoked by the Court falls short of generating “clear controlling precedent[],” see
[¶50] Paradoxically, by stating that, in Gaudette II, we already definitively articulated the legal principles that bear on the certified question, Court‘s Opinion ¶¶ 16, 18, the Court may be seen to be now prescribing, substantively, the law that the federal courts can apply to the undisputed facts in this case. We have not, in fact, answered the question presented here. Any substantive pronouncement of law that can be extracted from the Court‘s Opinion arises entirely from the Court‘s erroneous view about the scope of our holding in Gaudette II and not from a merits analysis of the applicable law itself. It may be that, following an actual examination of the legal merits germane to the issue the First Circuit has presented to us, we would conclude as a matter of law that IBD had not engaged in petitioning activity, just as was the case with Mainely Media. But that remains to be seen because, to date, we have not embarked on that
[¶51] I point out finally and more generally that our jurisprudential efforts to properly interpret and determine the proper use of section 556 and the process governing it have been valiant, but the results have been nothing short of fluid. This is best demonstrated by multiple significant changes in our case law, over a relatively short period, relating to the procedure that we have struggled to create when a court is called upon to adjudicate a section 556 anti-SLAPP special motion to dismiss—attempts to construe the statute in a way that would be true to the Legislature‘s intent while also protecting the significant constitutional interests held by the litigants. In Nader v. Maine Democratic Party, 2012 ME 57, ¶ 36, 41 A.3d 551, we changed the then-existing procedural framework applicable to such motions, which had been in effect for more than a decade, since our decision in Morse Brothers v. Webster, 2001 ME 70, ¶¶ 19-20, 772 A.2d 842. Then, in Gaudette I, 2017 ME 86, ¶ 18, 160 A.3d 1190, we changed the framework we had created in Nader. And most recently, in Thurlow v. Nelson, 2021 ME 58, ¶ 19, 263 A.3d 494, we changed—yet again—the process for adjudicating these motions by eliminating the modifications we had made in Gaudette I. If anything, the problems inherent in section 556, and our continuing efforts to fashion a constitutionally sound and workable process to implement the statute, make it difficult to conclude with assurance that there is “clear controlling precedent[]” for much of anything related to that statute.
D. Conclusion
[¶52] As a general principle, when a federal court seeks our guidance, we do—and should—view certification of questions generously to promote the important objectives of that process. More particular to this case, the jurisdictional predicate for the certified question is fully present, and the reasons to address it are persuasive. The First Circuit determined that the question presented here raises “an important issue of law” that “implicates important societal interests in both First Amendment protections for media outlets, and the substantive statutory rights created under Maine law.” Franchini, 981 F.3d at 7. As a matter of federalism and comity, we should take seriously both this assessment and the First Circuit‘s choice to certify the question so that we may provide material guidance on an open legal issue arising from Maine‘s own law. We should not leave the federal court to hypothesize how we might resolve this unsettled and important question of Maine law.
[¶53] For these reasons, we should accept and answer the question certified to us by the First Circuit. I respectfully dissent from the Court‘s decision to the contrary.
Russell B. Pierce, Jr., Esq. (orally), Norman, Hanson & DeTroy, LLC, for appellant Investor‘s Business Daily, Inc.
Jens-Peter W. Bergen, Esq., Kennebunk, and Raymond W. Belair, Esq. (orally), Belair & Associates, P.C., New York, New York, for appellee Thomas Franchini
United States Court of Appeals for the First Circuit docket number 19-1389
FOR CLERK REFERENCE ONLY
Notes
any written or oral statement made before or submitted to a legislative, executive or judicial body, or any other governmental proceeding; any written or oral statement made in connection with an issue under consideration or review by a legislative, executive or judicial body, or any other governmental proceeding; any statement reasonably likely to encourage consideration or review of an issue by a legislative, executive or judicial body, or any other governmental proceeding; any statement reasonably likely to enlist public participation in an effort to effect such consideration; or any other statement falling within constitutional protection of the right to petition government.
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