Schelling v. Lindell

• Decision Date: 20 March 2008
• Docket Number: Docket: Han-07-133.
• Citation: 2008 ME 59,942 A.2d 1226
• Parties: Joyce SCHELLING v. R. Kenneth LINDELL Jr.
• Court: Maine Supreme Court

942 A.2d 1226

2008 ME 59

Joyce SCHELLING v. R. Kenneth LINDELL Jr.

Docket: Han-07-133.

Supreme Judicial Court of Maine.

Argued: October 25, 2007.

Decided: March 20, 2008.

John M.R. Patterson, Esq., John G. Osborn, Esq. (orally), Bernstein Shur, Portland, for R. Kenneth Lindell, Jr.

George C. Schelling, Esq., Joseph M. Bethony, Esq. (orally), Gross, Minsky & Mogul, P.A., Bangor, for Joyce Schelling.

Panel: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, LEVY, and GORMAN, JJ.

SAUFLEY, C.J.

[¶ 1] This case invites us to address Maine's anti-SLAPP¹ statute, 14 M.R.S. § 556 (2007), in the context of political, and possibly defamatory, speech contained in a Legislator's letter to the editor. In doing so, we conclude that the suit against the defendant cannot proceed.

[¶ 2] R. Kenneth Lindell appeals from an order denying his special motion to dismiss filed pursuant to 14 M.R.S. § 556, Maine's anti-SLAPP statute, entered in the Superior Court (Hancock County, Mead, J.). Lindell argues that, although the court correctly determined that the statute was applicable to the case, it incorrectly failed to dismiss the defamation suit brought against him because it incorrectly determined that the assertions made in a letter Lindell submitted to the Belfast Republican Journal were without any rational basis in fact or arguable basis in law, and that the plaintiff, Joyce Schelling, had demonstrated actual injury as a result of Linden's conduct. Schelling cross-appeals from that portion of the court's order holding that the anti-SLAPP statute was applicable to this case. We conclude that the anti-SLAPP statute does apply to the facts before us, and, because Schelling failed to produce prima facie evidence of actual injury, we determine that the court erred in denying Lindell's special motion to dismiss. Accordingly, we vacate the judgment and direct the Superior Court to grant Lindell's special motion to dismiss.

I. BACKGROUND

[¶ 3] This case began as a political debate in the pages of the Belfast Republican Journal. In April 2006, Joyce Schelling wrote a letter to the editor of that publication expressing support for a recently enacted law, L.D. 1769, "An Act to Strengthen Maine's Purchasing Code of Conduct." In that letter, Schelling criticized R. Kenneth Lindell, then a member of the Maine House of Representatives, for opposing the bill. Lindell responded to that letter by submitting one of his own for publication, also to the Belfast Republican Journal, which expressed the reasoning behind his vote and suggested that Schelling had supported the bill, at least in part, because: (1) she had a relationship to a company known as Recycled Office Products; (2) that company would benefit in some way from the passage of the bill; and (3) Schelling had used her "political clout" as a "prominent member of ... the Natural Resources Council of Maine" (NRCM) to obtain benefits for her business. The full text of Lindell's letter, as printed, reads as follows:

I want to thank Joyce Schelling for making an issue of my vote against LD 1769, An Act to Strengthen the State Purchasing Code of Conduct Laws. Like many bills that come before the Legislature, LD 1769 was designed to line the pockets of special interest groups who seek to financially gain at the expense of Maine's overburdened taxpayers.

The bill as presented had nothing to do with sweatshops, although that was its ostensible purpose. It was about granting government procurement contracts to politically connected businesses like Recycled Office Products, controlled by Ms. Schelling.

I applaud entrepreneurs like Ms. Schelling for the risk they take in starting a business from the ground up. I have done the very same thing myself. I also applaud her for promoting local and environmentally sound products.

Where I draw the line is when she seeks to use her political clout as a prominent member of the most powerful environmental lobbying group in Maine — the Natural Resources Council of Maine — to garner special status for her own business by imposing mandates on our government procurement programs.

R. Kenneth Lindell

[¶ 4] Lindell asserts that before writing the letter, he performed some background research on Schelling. According to his research, Schelling had described herself in written legislative testimony as "a distributor of 100% post-consumer, processed chlorine free paper" and as a "member of Maine Businesses for Social Responsibility." Lindell also found a Recycled Office Products newsletter, a government purchasing project website, and an NRCM website all identifying Schelling as the contact person for Recycled Office Products. Lindell's research also showed that Recycled Office Products provides NRCM with office supplies, and that NRCM recommends that others also use Recycled Office Products for their paper needs. Additionally, Lindell found a photograph of Schelling with NRCM's Board President and Executive Director.

[¶ 5] Following the publication of Lindell's letter, Schelling filed suit for defamation. Schelling claims that she suffered loss of sleep, loss of concentration, embarrassment, and anxiety as a result of Lindell's statements. Lindell filed a special motion to dismiss the litigation pursuant to Maine's anti-SLAPP statute. The Superior Court applied the anti-SLAPP statute to the facts of the dispute but denied Lindell's special motion to dismiss concluding that Schelling had shown that Lindell's statements were without any reasonable factual support and that Schelling had suffered actual injury as a result of Lindell's statements. The present appeal and cross-appeal followed.

II. DISCUSSION

A. Application of 14 M.R.S. § 556

[¶ 6] Title 14 M.R.S. § 556, known as Maine's anti-SLAPP statute (Strategic Lawsuit Against Public Participation), is designed to guard against meritless lawsuits brought with the intention of chilling or deterring the free exercise of the defendant's First Amendment right to petition the government by threatening would-be activists with litigation costs. Morse Bros., Inc. v. Webster, 2001 ME 70, ¶ 10, 772 A.2d 842, 846. The anti-SLAPP statute provides defendants who are the targets of such suits with a "special motion to dismiss," a statutory motion designed to minimize the litigation costs associated with the defense of such meritless suits. Id. ¶ 15, 772 A.2d at 848.

[¶ 7] To prevail on a special motion to dismiss, 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. 14 M.R.S. § 556. Once the defendant demonstrates that this is the basis for the suit, and therefore that the statute applies, the burden falls on the plaintiff to demonstrate that the defendant's activity (1) was without "reasonable factual support," (2) was without an "arguable basis in law," and (3) resulted in "actual injury" to the plaintiff. Id.

[¶ 8] We allow interlocutory appeals from denials of special motions to dismiss brought pursuant to the anti-SLAPP statute because a failure to grant review of these decisions at this stage would impose additional litigation costs on defendants, the very harm the statute seeks to avoid, and would result in a loss of defendants' substantial rights. Morse Bros., 2001 ME 70, ¶ 15, 772 A.2d at 848.

[¶ 9] Therefore, the questions before us are: (A) whether the anti-SLAPP statute applies to Lindell's conduct, and (B) if so, whether Schelling successfully made the showing required by the statute to defeat Lindell's motion to dismiss.

A. Application of the Anti-SLAPP Statute

[¶ 10] On the applicability of the anti-SLAPP statute to Lindell's actions, Schelling urges us to conclude that because L.D. 1769, the underlying topic of Lindell's letter, had already been passed by the Legislature, Lindell's comments could not have been intended to influence an ongoing public debate, and therefore were not an exercise of his right to petition the government. Schelling also argues that application of the statute to the facts of this case would not serve the purpose of the statute, which is to protect the exercise of First Amendment rights from nonmeritorious lawsuits designed to discourage their exercise.

[¶ 11] Maine's anti-SLAPP statute very broadly defines the exercise of the "right to petition." The statute includes within the definition of petitioning activity:

• Any statement to a legislative, executive or judicial body;

• Any statement made in connection with an issue under consideration or review by a governmental entity;

• Any statement likely to encourage consideration or review of an issue by a governmental entity;

• Any statement likely to enlist public participation in encouraging a government body to consider a particular issue; and

• Any other statement falling within constitutional protection of the right to petition the government.

14 M.R.S. § 556.²

[¶ 12] As is clear from the language of section 556, the Legislature intended to define in very broad terms those statements that are covered by the statute. Recently, we recognized that broad construction when we construed the meaning of petitioning activity liberally to hold that it was broad enough to encompass a citizen's published communications to newspapers aimed at influencing the outcome of a contractual dispute between the City of South Portland and a contractor. Maietta Constr., Inc. v. Wainwright, 2004 ME 53, ¶ 7, 847 A.2d 1169, 1173.

[¶ 13] Lindell's letter to the editor, arguably intended to effect reconsideration of purchasing requirements by the Legislature, and to enlist public support to that end, is closely analogous to the statements made to the newspaper in Maietta. Construed broadly, a statute that protects "any statement reasonably likely to encourage consideration or review of an issue by a legislative, executive or judicial body, or any other governmental proceeding; [or] any statement reasonably...