The Maine and Massachusetts SJCs have both recently issued multiple SLAPP suit decisions, so let’s compare, contrast and ponder. This is a very long blog entry, so I’ll summarize what’s coming:
- Both SJCs have long wrestled with this area of the law;
- One reason why is because the SLAPP statutes are being applied in ways that the legislatures probably did not originally portend;
- The Maine SJC’s most recent approach raises procedural and constitutional questions; and
- The Massachusetts SJC’s approach could provide a constructive path forward.
SLAPP stands for “Strategic Lawsuit Against Public Participation.” In the 1990’s, the belief grew that more powerful developers were chilling the speech of less wealthy citizens by filing lawsuits against the latter when they opposed their projects. See Morse Bros., Inc. v. Webster, 2001 ME 70, ¶ 10 (“The 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.”) The resulting statutes expedite dismissal of such speech-chilling claims, with the language of the Massachusetts statute, MGL c. 231, § 59H, nearly identical to the Maine version, 14 MRS § 556.
Fellow PA-ite Don Pinto has blogged about the recent Massachusetts decisions, so I’ll be brief on those. http://www.massdirtlaw.com/2017/05/23/breaking-mass-sjc-overhauls-slapp-statute-practice/ In the most pertinent, Blanchard v. Steward Carney Hospital, Inc., the president of a hospital fired all the registered nurses and mental health counsellors who worked in an adolescent psychiatric unit, then issued statements to, among others, the Boston Globe, “arguably to the effect that the nurses had been fired based in part on their culpability for the incidents that took place in the unit,” which statements allegedly were incorrect. The fired nurses sued for defamation. This situation, with an employer using the SLAPP statute to insulate its allegedly defamatory statements to the press, made when firing employees, may not have been what the Massachusetts legislators had in mind. As the SJC said, “the classic indicia of a ‘SLAPP’ suit … appear to be absent.”
Recognizing that something needed to be done to get back to that legislative intent, the SJC noted that the statutory language provides for early dismissal if the claimant cannot show that the movant’s petitioning activities lacked a reasonable basis in fact or law. As noted below, this analysis can get complicated. In any event, it’s a formidable burden, potentially leading to rejection of meritorious claims never intended by the legislature to be covered by the SLAPP defense. To recalibrate, the SJC held that there is another way a claimant can avoid dismissal – by showing that it did not bring its claim primarily to chill the defendant’s legitimate petition activities, but rather to seek damages for the personal harm to it from the defendants’ alleged acts. The statutory language requires the claims to be “based on” the movant’s petitioning activities. Citing this “based on” language, the Court ruled that allowing the claimant to defeat the dismissal motion based on such proof properly returns the analysis to the statute’s objective.
The Maine SJC has wrestled with this issue in a different way – by adjusting the burden the claimant must meet at the early motion to dismiss stage.
As noted above, the relevant statutory language provides that dismissal is granted unless the claimant shows that the movant’s exercise of its right of petition is “devoid of any reasonable factual support or any arguable basis in law.” In Gaudette v. Davis, 2017 ME 86, Justice Gorman, writing for the majority, summarized the history of the SJC’s treatment of the claimant’s burden.
Initially, the SJC applied a summary judgment type standard. If facts conflicted – the claimant provided evidence that said Black, while the movant provided evidence that said White, the claim was dismissed. Then, in 2012, the SJC was confronted with a SLAPP suit that, as in Desjardin, seemed to flip the David v. Goliath legislative intent. Nader v. The Maine Democratic Party, 2012 ME 57. The Court changed its view regarding the claimant’s burden, ruling that dismissal would be denied if the claimant could produce prima facie evidence showing that the petitioning activity lacked a reasonable basis. Finally, finding both approaches unsatisfactory – the initial approach was too burdensome, while the Nader approach was too weak – in Gaudette, the Court has changed its mind again, and has said that it is now taking a middle road. If the claimant produces prima facie evidence, then there is a brief period of limited discovery and an evidentiary hearing. The claimant must in that hearing establish by a preponderance of the evidence that the petitioning activity was devoid of a reasonable basis in fact or law. The trial court’s ruling will be reviewed on appeal for clear error.
Justice Jabar dissented in Gaudette, concluding that this latest approach places too much of a burden on claimants by “screening what would otherwise be meritorious cases.” (¶ 26.) He further opined that the process of creating an evidentiary hearing and potentially dismissing a meritorious claim raises constitutional issues, citing, among other decisions, a First Circuit decision, Godin v. Schencks, 629 F.3d 79, 81-82 (1st Cir. 2010), in which the Court of Appeals expressed a Seventh Amendment concern to the extent the judge resolves a disputed material issue of fact.
Finally, in Desjardins v. Reynolds, 2017 ME 99, after some federal-state court to and fro-ing, Justice Gorman again wrote for the majority, with a dissent from Justice Jabar. The holding affirms dismissal of a defamation suit on the basis that the claimant failed to show an “actual injury,” which the statutory language requires. In so ruling, the majority said that the Legislature has chosen to protect petitioning activity by broadly defining a party’s exercise of its right of petition and “creating a procedure for the prompt dismissal of lawsuits that challenge any actions that fall within that broad definition of petitioning activity. 14 M.R.S. § 556.” (¶ 18.)
In his dissent, Justice Jabar acknowledged that the decision on “actual injury” was consistent with the existing law, but opined that this jurisprudence should be re-visited to it align with the common law on defamation. More to the point of this blog entry, he objected to the Court’s language recited immediately above, saying that the SLAPP statute does not create a procedure to promptly dismiss suits that challenge “any actions” that fall within petitioning activity. The statute, he said, is only intended to dismiss meritless claims. This position is a continuation of his objection in Gaudette that the review process being adopted there will lead to the dismissal of claims with merit. The SLAPP statute, he argued in both dissents, was enacted to quickly weed out meritless claims, not to prevent those with merit from going forward.
Why, with Justice Jabar objecting to the language cited from ¶ 18 above, didn’t the majority adjust its language – unless the majority really means to say that some meritorious claims are dismissed under the statute? The answer to this question will have to wait for further development. Also, whether the Gaudette process is followed in federal court may need to be resolved. (Previously, the First Circuit found the state process intrinsic to the substance of the state claim; as the First Circuit’s sending the Desjardin claim back to state court shows, however, the federal court would rather avoid the whole question.)
Perhaps the Massachusetts SJC’s reasoning in Blanchard can provide a useful path forward in Maine, too. In Desjardin, the majority stated that the SLAPP statute “provides a procedure for the expedited dismissal of lawsuits that are brought not to redress a legitimate wrong suffered by the plaintiff, but instead solely for the purpose of dissuading a defendant from exercising his First Amendment right to petition the government or punishing him for doing so.” (¶ 6.) This language is wholly consistent with the Massachusetts SJC’s reasoning that a claimant ought to be able to defeat early dismissal by showing that its claim is not being brought to chill the movant’s right to petition, but rather to compensate for harm caused to the claimant by the movant’s conduct. While this approach does not directly respond to Justice Jabar’s constitutional concerns, it does focus the analysis on the original statutory intent, and recognizes that both sides of the litigation equation are exercising a right to petition.