Gaudette v. Davis

• Decision Date: 09 May 2017
• Docket Number: Docket: Yor–15–564
• Citation: 160 A.3d 1190
• Parties: Norman GAUDETTE v. Terry M. DAVIS
• Court: Maine Supreme Court

160 A.3d 1190

Norman GAUDETTE

v.Terry M. DAVIS

Docket: Yor–15–564

Supreme Judicial Court of Maine.

Argued: June 10, 2016

Decided: May 9, 2017

Corrected: August 24, 2017

George T. Dilworth, Esq. (orally), and Amy K. Olfene, Esq., Drummond Woodsum, Portland, for appellant Terry M. Davis

Gene R. Libby, Esq., Tyler J. Smith, Esq. (orally), and Tara A. Rich, Esq., Libby O'Brien Kingsley & Champion LLC, Kennebunk, for appellee Norman Gaudette

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HUMPHREY, JJ.

Majority: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, and HUMPHREY, JJ.

Dissent: JABAR, J.

GORMAN, 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, Gaudette 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, Gaudette 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),¹ and the Intelligence and Investigative Record Information Act, 16 M.R.S. §§ 801 –809 (2014) ;² and (VI) seeking punitive damages.

[¶ 3] Davis answered the complaint and, soon after, filed a special motion to dismiss the lawsuit—with an accompanying affidavit and exhibits—on grounds that the complaint was barred by the anti-SLAPP statute, 14 M.R.S. § 556. Gaudette submitted his own affidavits and exhibits in opposition to the special motion to dismiss. After a nontestimonial hearing, by judgment dated October 26, 2015, the court denied Davis's special motion to dismiss. Davis timely appeals.³

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 , 2001 ME 70, ¶ 10, 772 A.2d 842 (quotation marks omitted). Maine's anti-SLAPP statute, 14 M.R.S. § 556, purports to provide a means for the swift dismissal of such lawsuits early in the litigation as a safeguard on the defendant's First Amendment right to petition:

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 the moving party to any remedy otherwise authorized by law.

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.

14 M.R.S. § 556 ; see Maietta Constr., Inc. v. Wainwright , 2004 ME 53, ¶ 6, 847 A.2d 1169.

[¶ 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 , 1999 ME 119, ¶ 8, 734 A.2d 1120 (stating that "[t]he First Amendment to the United States Constitution [is] applicable to the states through the Due Process Clause of the Fourteen Amendment"). Within the right to petition is also found the right to access courts to seek redress for claimed injuries. U.S. Const. amend. I ; Me. Const. art. I, § 19 ; McDonald v. Smith , 472 U.S. 479, 482–83, 105 S.Ct. 2787, 86 L.Ed.2d 384 (1985) ; Nader v. Me. Democratic Party (Nader I ), 2012 ME 57, ¶¶ 20–25, 41 A.3d 551. Any application of the anti-SLAPP statute to actual petitioning activity creates tension between at least these two coexistent constitutional rights. Therefore, when considering a motion to dismiss pursuant to section 556, a court must attempt to recognize and protect both the defendant's actions that might constitute an exercise of his First Amendment right to petition—here, Davis's statements about Gaudette's alleged involvement in illegal and immoral acts—and the plaintiff's, Gaudette's, right of access to the courts to seek redress for those same actions.⁴ See Nader I , 2012 ME 57, ¶¶ 20–25, 41 A.3d 551 ; Morse Bros. , 2001 ME 70, ¶ 15 n.2, 772 A.2d 842.

[¶ 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 , 2001 ME 70, 772 A.2d 842 ; Maietta Construction , 2004 ME 53, 847 A.2d 1169 ; Schelling v. Lindell , 2008 ME 59, 942 A.2d 1226 ; Nader I , 2012 ME 57, 41 A.3d 551 ; Nader v. Maine Democratic Party (Nader II ), 2013 ME 51, 66 A.3d 571 ; Bradbury v. City of Eastport , 2013 ME 72, 72 A.3d 512 ; Town of Madawaska v. Cayer , 2014 ME 121, 103 A.3d 547 ; and Camden National Bank v. Weintraub , 2016 ME 101, 143 A.3d 788. Although the basic procedure dictated by section 556 has remained constant throughout these prior decisions, we have made changing pronouncements on certain aspects of anti-SLAPP practice on which the statute is silent.

[¶ 8] We have consistently specified a shifting assignment of burdens. Weintraub , 2016 ME 101, ¶ 8, 143 A.3d 788 ; Morse Bros. , 2001 ME 70, ¶¶ 19–20, 772 A.2d 842. It is first the moving party's (generally, the defendant's) burden to establish, as a matter of law, that "the claims against [him] are based on [his] exercise of the right to petition pursuant to the federal or state constitutions."⁵ Morse Bros. , 2001 ME 70, ¶ 19, 772 A.2d 842 ; see Nader II , 2013 ME 51, ¶ 12 n.9, 66 A.3d 571. If the moving party does not meet that burden, the anti-SLAPP statute does not apply and the special motion to dismiss must be denied without any further inquiry into the nonmoving party's anti-SLAPP filings. Nader I , 2012 ME 57, ¶ 15, 41 A.3d 551.

[¶ 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 nonmoving party (generally, the plaintiff in the underlying suit) to establish that although petitioning activity is at issue, that petitioning activity (1) ...