Argued: June 10, 2016
T. Dilworth, Esq. (orally), and Amy K. Olfene, Esq., Drummond
Woodsum, Portland, for appellant Terry M. Davis.
R. Libby, Esq., Tyler J. Smith, Esq. (orally), and Tara A.
Rich, Esq., Libby OBrien Kingsley & Champion LLC,
Kennebunk, for appellee Norman Gaudette.
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and
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
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),  and the
Intelligence and Investigative Record Information Act, 16
M.R.S. §§801-809 (2014); and (VI) seeking punitive
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
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 defendants 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 defendants First Amendment right to
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 Generals 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 courts 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 attorneys
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
14 M.R.S. § 556; see Maietta Constr., Inc. v.
Wainwright, 2004 ME 53, ¶ 6, 847 A.2d 1169.
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.
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 (1985); Nader v. Me.
Democratic Party (Nader I), 2012 ME 57, ¶¶
20-25, 41 A.3d 551');">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
defendants actions that might constitute an exercise of his
First Amendment right to petition-here, Davis's
statements about Gaudettes alleged involvement in illegal and
immoral acts-and the plaintiffs, Gaudettes, right of access
to the courts to seek redress for those same
actions. See Nader I, 2012 ME 57,
¶¶ 20-25, 41 A.3d 551');">41 A.3d 551; Morse Bros., 2001
ME 70, ¶ 15 n.2, 772 A.2d 842.
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');">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.
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 defendants) 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." 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');">41 A.3d 551.
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) "was devoid of any reasonable factual support or any
arguable basis in law" and (2) "caused actual
injury to the [nonmoving] party." 14 M.R.S. § 556;
see Morse Bros., 2001 ME 70, ¶ 20, 772 A.2d
Applying the process we created in earlier opinions, to meet
their respective burdens in the trial court, both parties
relied solely on the pleadings and affidavits submitted in
advancing or opposing the special motion to dismiss.
See 14 M.R.S. §556; Morse Bros., 2001
ME 70, ¶ 17, 772A.2d 842.
The portion of the analysis that we have modified is the
standard by which those pleadings and affidavits are reviewed
by the trial court, and by us. In Morse Brothers, we
held that "[b]ecause the special motion [to dismiss]
requires the consideration of both pleadings and affidavits,
the standard of review should resemble the standard for
reviewing a motion for summary judgment." 2001 ME 70,
¶ 17, 772 A.2d 842. According to that standard, the
trial court was tasked with "view[ing] the evidence in
the light most favorable to the moving party because the
[nonmoving] party bears the burden of proof when the statute
applies"-that is, in the face of conflicting facts, the
court must ...