Franchini v. Investor's Bus. Daily, Inc.

• Decision Date: 10 February 2022
• Docket Number: Docket: Fed-20-306
• Citation: 268 A.3d 863,2022 ME 12
• Parties: Thomas FRANCHINI v. INVESTOR'S BUSINESS DAILY, INC., et al.
• Court: Maine Supreme Court

268 A.3d 863

2022 ME 12

Thomas FRANCHINI

v.INVESTOR'S BUSINESS DAILY, INC., et al.

Docket: Fed-20-306

Supreme Judicial Court of Maine.

Argued: September 8, 2021

Decided: February 10, 2022

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

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.

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 Me. Rev. Stat. tit. 14, § 556 (Maine's anti-SLAPP law)?" Because there is clear controlling precedent, we decline to consider the question.

I. BACKGROUND

A. Facts

[¶2] The facts, as recited here, are taken from the First Circuit order. Franchini v. Inv.’s Bus. Daily, Inc. , 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 and negligent infliction of emotional distress against IBD, and requested a jury trial. IBD and the other defendants, except for Pipes, moved to dismiss for failure to state a claim.³

[¶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 Me. Rev. Stat. tit. 14, § 556 (Maine's anti-SLAPP law)?" The First Circuit also "welcome[d] any further comments the Law Court may have on relevant Maine Law."

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 4 M.R.S. § 57 (2021), our consideration of certified questions of law is discretionary. See M.R. App. P. 25 ; Scamman v. Shaw's Supermarkets, Inc. , 2017 ME 41, ¶¶ 7-8, 157 A.3d 223 ; Doherty v. Merck & Co. , 2017 ME 19, ¶ 8, 154 A.3d 1202 ; Fortin v. Titcomb , 2013 ME 14, ¶ 3, 60 A.3d 765. We have said that we

may consider the merits of a certified question when three criteria are met: (1) there is no dispute as to the material facts at issue; (2) there is no clear controlling precedent; and (3) our answer, in at least one alternative, would be determinative of the case.

Scamman , 2017 ME 41, ¶ 7, 157 A.3d 223 (quotation marks omitted).

[¶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 M.R.S. § 556 (2021), allows for a party to bring a special motion to dismiss only if the claim against it is based on petitioning activity. We have adopted a burden-shifting framework to determine if a special motion to dismiss should be granted. Thurlow v. Nelson , 2021 ME 58, ¶¶ 12, 19, 263 A.3d 494. The legal issue in this case involves the first step of our anti-SLAPP analysis. Under this first step, we have stated, "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.’ "⁶ Gaudette v. Davis (Gaudette I) , 2017 ME 86, ¶ 16, 160 A.3d 1190 (quoting Morse Brothers, Inc. v. Webster , 2001 ME 70, ¶ 19, 772 A.2d 842 ). When applied to newspapers, we have explained that "[u]nless a newspaper is petitioning on its own behalf , the newspaper is not exercising its own right of petition." Gaudette II , 2017 ME 87, ¶ 15, 160 A.3d 539 (emphasis added).

[¶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 editorializing might constitute petitioning activity," id. ¶ 18 n.3, we also made it clear that the protection of the anti-SLAPP statute applies to newspaper publishers or other parties only when they are petitioning on their own behalf:

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...