Thurlow v. Nelson
| Decision Date | 23 November 2021 |
| Docket Number | Cum-20-63 |
| Citation | 2021 ME 58 |
| Parties | JOHN P. THURLOW v. ZAKIA C. NELSON et al. |
| Court | Maine Supreme Court |
2021 ME 58
JOHN P. THURLOW
v.
ZAKIA C. NELSON et al.
No. Cum-20-63
Supreme Court of Maine
November 23, 2021
Argued: September 7, 2021
Revised: February 8, 2022
John P. Thurlow, pro se, and Tyler Lauzon, Esq. (orally), Lauzon Law, LLC, Saco, for appellant John Thurlow
Eric J. Uhl, Esq. (orally), Richardson, Whitman, Large & Badger, Portland, for appellees Zakia C. Nelson and Ross Nelson
Lawrence C. Winger, Esq., Portland, for amicus curiae Lawrence C Winger
Sigmund D. Schutz, Esq., and Alexandra A. Harriman, Esq., Preti Flaherty Beliveau & Pachios LLP, Portland, for amici curiae Reporters Committee for Freedom of the Press and fourteen media organizations
Thomas L. Douglas, Esq., Douglas, McDaniel & Campo LLC, PA, Westbrook, for amicus curiae Maine Trial Lawyers Association
Aaron Frey, Attorney General, and Sarah E. Coleman, Asst. Atty. Gen, Office of the Attorney General, Augusta, for amicus curiae Attorney General of the State of Maine
Michelle R. King, Esq, and Jacqueline R Moss, Esq, Irwin & Morris, Portland, for amici curiae Pine Tree Legal Assistance, Inc., Maine Coalition to End Domestic Violence, Maine Coalition Against Sexual Assault, Michelle R. King, and Jacqueline R. Moss
Zachary L. Heiden, Esq., and Emma E. Bond, Esq, American Civil Liberties Union of Maine Foundation, Portland, and Jeffrey A. Thaler, Esq., Portland for amici curiae American Civil Liberties Union of Maine Foundation and Jeffrey A. Thaler
Panel: MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ., and HJELM, A.R.J.
Majority: MEAD, GORMAN, JABAR, HUMPHREY, and CONNORS, JJ., and HJELM, A.R.J.
Dissent: HORTON, J.
JABAR, J.
[¶1] John P. Thurlow appeals from an order entered in the Superior Court (Cumberland County, Stewart, J.) in favor of Zakia C. Nelson and Ross Nelson granting the Nelsons' special motion, pursuant to Maine's anti-SLAPP (Strategic Lawsuit Against Public Participation) statute, to dismiss Thurlow's defamation complaint.[1] See 14 M.R.S § 556 (2021). For the reasons set out
below, we vacate the order and remand for the Superior Court to enter an order denying the special motion to dismiss.
I. BACKGROUND
[¶2] The following account is drawn from the complaint, the special motion to dismiss, and the accompanying affidavits. See Nader v. Me. Democratic Party [Nader II), 2013 ME 51, ¶ 2, 66 A.3d 571. On September 24, 2019, Thurlow filed a complaint in the District Court (Portland) alleging a claim of defamation relating to a letter that the Nelsons sent to school officials. The Nelsons removed the action to the Superior Court pursuant to M.R. Civ. P. 76C and filed a special motion to dismiss with supporting affidavits pursuant to 14 M.R.S. § 556, Maine's anti-SLAPP statute. Thurlow filed an objection to the Nelsons' special motion to dismiss, accompanied by his own affidavit, and requested a hearing on the Nelsons' motion.
[¶3] Thurlow's defamation claim centered on a letter that the Nelsons had sent to the Scarborough board of education, the superintendent of the school district, the principal of the school, and a representative of the Maine Department of Education. In the letter, the Nelsons accused Thurlow of numerous acts of misconduct surrounding the problems their son had with being bullied at school. Among other things, the Nelsons asserted that Thurlow
(1) had made retaliatory and threatening remarks toward them to discourage their advocacy, in violation of their First Amendment rights
(2) had illegally denied them access to their son's education records and destroyed school records;
(3) had hurt, bullied, and intimidated their son, and the Nelsons questioned whether Thurlow had done this to other children;
(4) had intentionally disregarded state and school board policy as it pertained to bullying;
(5) had neglected student well-being and covered up school wrongdoing; and
(6) was unfit to hold his position or any position at any school.
[¶4] In the affidavit Thurlow filed in opposition to the Nelsons' motion to dismiss, he addressed the specific allegations contained in the Nelsons' letter and detailed the steps he took to address the problems their son was having at school. Thurlow specifically denied any misconduct, including bullying, intimidating, or hurting the Nelsons' son. He denied discouraging the Nelsons' advocacy or destroying school records. He referenced his background and experience to refute the Nelsons' allegations that he was unfit to hold his position. He also stated that the school had initially placed him on paid leave pending an investigation of the Nelsons' allegations but that he had been exonerated of any wrongdoing and had been permitted to return to work after an investigation undertaken by a third party.
[¶5] Following a review of the complaint, motion, opposition, and affidavits, the trial court granted the Nelsons' special motion to dismiss and
dismissed Thurlow's complaint. Applying our case law governing anti-SLAPP motions, the court first determined that the Nelsons met their burden of establishing that they had engaged in petitioning activities when they sent the letter complaining of Thurlow's conduct. The court then determined that Thurlow did not meet his burden of presenting prima facie evidence that the Nelsons' petition activity was "totally false" and therefore "totally devoid" of any reasonable factual support. Based on these determinations, the court denied Thurlow's request for a hearing on the anti-SLAPP motion.
[¶6] Thurlow timely appealed the court's decision. See 14 M.R.S. § 1851 (2021); M.R. App. P. 2B(c)(1).
II. DISCUSSION
[¶7] Thurlow contends on appeal that the trial court erred in granting the special motion to dismiss and thereby violated his constitutional rights to access the court to seek redress and to a jury trial. Thurlow also contends that the trial court erred by failing to give him all favorable inferences when considering the special motion to dismiss.
A. Anti-SLAPP Statutes
[¶8] SLAPP is an acronym for Strategic Lawsuits Against Public Participation. SLAPP lawsuits are lawsuits that are filed with the goal "to stop
citizens from exercising their political rights or to punish them for having done so." George W. Pring, SLAPPs: Strategic Lawsuits Against Public Participation, 7 Pace Env't L. Rev. 3, 5-6 (1989). "SLAPP plaintiffs do not intend to win their suits; rather they are filed solely for delay and distraction, and to punish activists by imposing litigation costs on them for exercising their constitutional right to speak and petition the government for redress of grievances." Morse Brothers, Inc. v. Webster, 2001 ME 70, ¶ 10, 772 A.2d 842 (quotation marks omitted); see Austin Vining & Sarah Matthews, Overview to Anti-SLAPP laws, Reporters Committee For Freedom of the Press, https://www.rcfp.org/ introduction-anti-slapp-guide. To prevent this infringement on the right to petition, many states have passed "anti-SLAPP" statutes. In our first discussion of Maine's anti-SLAPP statute, we noted that "[t]he 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 Brothers, 2001 ME 70, ¶ 10, 772 A.2d 842 (alteration omitted) (quoting Duracraft Corp. v. Holmes Prods. Corp., 691 N.E.2d 935, 940 (Mass. 1998)). Since then, however, we have also remarked on the exceedingly broad language
found in the statute and our concern over its reach. Gaudette v. Davis (Gaudette I), 2017 ME 86, ¶ 22 n.9, 160 A.3d 1190.
[¶9] We have also identified and struggled with the "tension between at least two coexistent constitutional rights"-the right to access the courts and the right to petition.[2] Id. ¶ 6. The concern is that "[b]y protecting one party's exercise of its right of petition, unless it can be shown to be sham petitioning, the statute impinges on the adverse party's exercise of its right to petition, even when it is not engaged in sham petitioning. This conundrum is what has troubled judges and bedeviled the statute's application." Duracraft, 691 N.E.2d at 943 (footnote omitted). But as we analyze a plaintiff/nonmoving party's lawsuit, we must keep in mind that "SLAPPs are by definition meritless suits." Id. at 941 (citing John C. Barker, Common-Law and Statutory Solutions to the Problem of SLAPPS, 26 Loy. L.A. L. Rev. 395, 399 (1993)).
[¶10] In addition to recognizing the tension between the right to access the court and the right to petition the government, many courts interpreting
anti-SLAPP statutes have addressed the impact these statutes have on a litigant's right to a jury trial. See, e.g., Davis v. Cox, 351 P.3d 862, 875 (Wash. 2015) ("The constitutional conundrum that [Washington State's anti-SLAPP statute] creates is that it seeks to protect one group of [citizens'] constitutional rights of expression and petition-by cutting off another group's constitutional rights of petition and jury trial."); Opinion of the Justices, 641 A.2d 1012, 1015 (N.H. 1994) ("A solution [to SLAPP suits] cannot strengthen the constitutional rights of one group of citizens by infringing upon the rights of another group."). Although we addressed the conflict between the right to access the court and the right to petition in Gaudette I and acknowledged that "other constitutional rights may also be implicated," we have never directly addressed the impact of our anti-SLAPP statute on a litigant's right to a jury trial under article I, section 20 of the Maine Constitution. 2017 ME 86, ¶ 6 n.4, 160 A.3d 1190. We address the issue today.
B. Maine's Anti-SLAPP Statute
[¶11] Maine's anti-SLAPP statute was enacted by the Maine Legislature in 1995.[3] P.L. 1995, ch. 413 § 1. Since then, we have had numerous
opportunities to address the tension between the conflicting constitutional interests. See...
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