MAINE SUPREME JUDICIAL COURT                                          Reporter of Decisions
Decision:   2014 ME 121
Docket:     Aro-14-51
Submitted
 On Briefs: September 23, 2014
Decided     November 4, 2014

Panel:         SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, JABAR, and HJELM, JJ.



                                       TOWN OF MADAWASKA

                                                      v.

                                         RICHARD CAYER et al.

ALEXANDER, J.

         [¶1] Richard and Ann Cayer appeal from an order entered by the Superior

Court (Aroostook County, Cuddy, J.) denying as untimely their special motion to

dismiss filed pursuant to Maine’s anti-SLAPP1 statute, 14 M.R.S. § 556 (2013).

The pleading that the Cayers seek to dismiss is an amended land use citation and

complaint, see M.R. Civ. P. 80K(b)(1)(A), filed against the Cayers by the Town of

Madawaska for violations of a shoreland zoning ordinance. The Cayers maintain

that the land use citation was a retaliatory effort by the Town to punish them for

exercise of their right to petition local government, and that the special motion to

dismiss was timely in relation to the Town’s amended complaint.                    In the

alternative, they argue that the court abused its discretion by refusing to allow them

 1
     Strategic Lawsuit Against Public Participation
2

to file the motion to dismiss after the sixty-day statutory time period following

filing of the Town’s pleading. See 14 M.R.S. § 556.

      [¶2]     Since its enactment by P.L. 1995, ch. 413, § 1 (effective

Sept. 29, 1995), Maine’s anti-SLAPP statute has provided a mechanism for the

disposal of baseless claims brought to punish or deter a petitioning party from

exercising its constitutional right to petition the government. See Nader v. Me.

Democratic Party (Nader II), 2013 ME 51, ¶ 12 n.8, 66 A.3d 571. This is not such

a case. Based upon the plain language of the statute and its limited scope of

application, we conclude that the anti-SLAPP statute cannot, in ordinary

circumstances such as those presented here, be invoked to thwart a local

government enforcement action commenced to address the defendants’ alleged

violations of law. Because the trial court reached the correct result in denying the

special motion to dismiss in the context of this land use enforcement action, we

affirm, albeit for a different reason.

                                 I. CASE HISTORY

      [¶3] On June 3, 2010, the Code Enforcement Officer (CEO) for the Town of

Madawaska inspected the Cayers’ property and discovered that two travel trailers

had been added to a lot where one mobile home was already located. As the

Cayers had not submitted an application to the Town to allow the additional

trailers, the CEO issued a notice of violation alerting them to their possible
                                                                                                       3

violation of section 15(A)(5) of the Madawaska Shoreland Zoning Ordinance.2

After a June 29 hearing before the Town Board of Selectmen, during which the

Board members heard testimony from the Cayers and the CEO, the Board found

the Cayers in violation of the ordinance and directed them to remove the one

remaining trailer by July 2010, pay a civil penalty, and enter into the recommended

resolution through a signed consent agreement. The Cayers did not appeal the

Board’s June 2010 decision to the Superior Court pursuant to M.R. Civ. P. 80B.

        [¶4] As of August 2010, the Cayers had not paid the assessed civil penalty

or signed a consent agreement. On August 10, the Town filed a land use citation

and complaint in District Court pursuant to 30-A M.R.S. § 4452 (2013) and M.R.

Civ. P. 80K. The Cayers timely requested removal to the Superior Court for a jury

trial pursuant to M.R. Civ. P. 38.

        [¶5] Two years then passed without significant progress on the case, until

November 14, 2012, when the Town filed a motion to amend its complaint. The

 2
     Section 15(A)(5) of the Madawaska Shoreland Zoning Ordinance provides, in relevant part:

        15. Land Use Standards. All land use activities within the shoreland zone shall conform
        with the following provisions, if applicable.

            A. Minimum Lot Standards

                ....

                (5) If more than one residential dwelling unit, principal governmental,
                institutional, commercial or industrial structure or use, or combination thereof, is
                constructed or established on a single parcel, all dimensional requirements shall
                be met for each additional dwelling unit, principal structure, or use.
4

amended complaint alleged an additional violation of section 15(D)(1) of the

ordinance, but alleged no additional facts.3 On January 24, 2013, the court granted

the Town’s motion pursuant to M.R. Civ. P. 15(a) to amend the pleading.

            [¶6] On March 25, 2013, the Cayers filed a special motion to dismiss the

amended complaint pursuant to the anti-SLAPP statute, 14 M.R.S. § 556, alleging

that the Town’s complaint was a meritless lawsuit brought for the purpose of

punishing or deterring the Cayers’ First Amendment right to petition local

government.            In support of this allegation, the Cayers submitted an affidavit

recounting a twenty-plus-year history of disputes with the Town, its Board of

Selectmen, and its CEO.4

    3
        Section 15(D)(1) of the ordinance provides, in pertinent part:

                ....

                D. Campgrounds. Campgrounds shall conform to the minimum requirements
                imposed under State licensing procedures and the following:

                    (1) Campgrounds shall contain a minimum of five thousand (5,000) square feet
                    of land, not including roads and driveways, for each site. Land supporting
                    wetland vegetation, and land below the normal high-water line of a water body
                    shall not be included in calculating land area per site. … .
    4
     Specifically, Richard Cayer recounted a list of disputes involving neighboring landowners and the
Town dating back to 1993, several of which Cayer litigated before the Superior Court and the Law Court.
In 2005, Cayer filed a Rule 80B appeal of the Town’s grant of a land use permit to neighboring property
owners, and was successful on this appeal as well as a later challenge to a consent agreement between the
Town and neighbors. Most recently, in 2009, Cayer filed an unsuccessful motion for contempt against
the Town pursuant to M.R. Civ. P. 66(d) for an alleged failure to comply with court orders to conduct
further hearings on the contested permit. This case came before the Law Court in December 2009, and
we affirmed the Superior Court’s judgment. See Cayer v. Town of Madawaska, 2009 ME 122, 984 A.2d
207. Cayer also cites a 2007 case in which neighboring landowners appealed the Town’s issuance of two
permits to the Cayers to build a boat landing and new deck, and which ultimately resulted in issuance of
the permits.
                                                                                                         5

        [¶7] Although the Cayers filed the special motion to dismiss 131 days after

the Town filed its motion to amend, they did not request leave from the court to

file the motion beyond the anti-SLAPP statute’s sixty-day time limitation. The

court denied the special motion to dismiss by an order entered January 7, 2014,

concluding that the Cayers’ motion was filed outside the time limitation.5 The

court further concluded that there was no basis in the record to allow filing of the

motion outside the sixty-day time period. The Cayers timely appealed.

                                     II. LEGAL ANALYSIS

        [¶8] The anti-SLAPP statute, 14 M.R.S. § 556, allows a defendant to file a

special motion to dismiss a lawsuit or claim that is brought “with the intention of

chilling or deterring the free exercise of the defendant’s First Amendment right to

petition the government.” Schelling v. Lindell, 2008 ME 59, ¶ 6, 942 A.2d 1226.

Although ordinarily the trial court must issue a final judgment in order for an

appeal to be cognizable, we allow interlocutory appeals from denials of special

motions to dismiss brought pursuant to the anti-SLAPP statute. Nader II, 2013 ME




  5
     Citing Bradbury v. City of Eastport, 2013 ME 72, ¶ 11 n.3, 72 A.3d 512, the court determined that the
statutory limitation period runs from the date of service of the challenged pleading. Because the Town’s
amended complaint included no additional facts, the court further concluded that the amended complaint
“related back” to the original pleading with a date of service of August 13, 2010, pursuant to M.R. Civ. P.
15(c)(2). By this reasoning, the Cayers’ special motion to dismiss was filed over a year and a half outside
of the time limitation.
6

51, ¶ 12, 66 A.3d 571. Review of a trial court’s ruling on a special motion to

dismiss is de novo. Id.

      [¶9]   We have adopted a two-step analysis that courts must follow to

determine whether a special motion to dismiss should be granted. Nader v. Me.

Democratic Party (Nader I), 2012 ME 57, ¶ 15, 41 A.3d 551. The first step

requires the court to determine whether the moving party has demonstrated that the

nonmoving party’s claim is “based on the moving party’s exercise of the . . . right

of petition under the Constitution of the United States or the Constitution of

Maine.” 14 M.R.S. § 556; Nader II, 2013 ME 51, ¶ 13, 66 A.3d 571; Nader I,

2012 ME 57, ¶ 15, 41 A.3d 551. If the moving party makes this initial showing,

the burden then shifts to the nonmoving party, and under the second step the court

must dismiss the nonmoving party’s lawsuit or claim unless the nonmoving party

makes a prima facie showing that at least one of the moving party’s petitioning

activities was “devoid of any reasonable factual support or any arguable basis in

law and . . . caused actual injury to the [nonmoving party].” Nader II, 2013 ME

51, ¶ 14, 66 A.3d 571. We address only the first step.

      [¶10] The statute broadly defines “a party’s exercise of its right of petition”

to include

      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
                                                                                   7

      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 also Schelling, 2008 ME 59, ¶ 11, 942 A.2d 1226.

      [¶11]   The Cayers contend that this language authorizes individuals to

invoke the anti-SLAPP laws to obtain dismissal of State or local actions seeking to

enforce laws with which the individuals disagree or do not wish to comply—

particularly when, as here, the individuals have had prior disagreements with the

State or local government seeking to enforce the law. Nothing in the anti-SLAPP

statute or its history expresses or even implies that it would protect the Cayers

from the Town’s efforts to enforce an ordinance limiting the number of trailers that

they are permitted to maintain on their land.

      [¶12] Although the statute is silent with regard to how a moving party must

show that the opponent’s claim is “based on” this right of petition, we have

implicitly accepted the approach that the moving party must show that the claims

at issue are “based on the petitioning activities alone and have no substantial basis

other than or in addition to the petitioning activities.” Nader I, 2012 ME 57, ¶ 22,

n.9, 41 A.3d 551 (citing Duracraft Corp. v. Holmes Products Corp., 691 N.E.2d
8

935, 943 (Mass. 1998)). This limitation on the applicability of the anti-SLAPP law

has been discussed mainly in the context of the statute’s constitutional

implications, which require balancing of the moving party’s right to petition with

the nonmoving party’s right of access to the courts. See Nader I, 2012 ME 57,

¶ 22, n.9, 41 A.3d 551. The reasoning, however, is also applicable to the present

issue: whether a government enforcement action can be defended or barred by the

filing of an anti-SLAPP motion to dismiss the action.

        [¶13] Recent precedent suggests that an anti-SLAPP motion is appropriate

when the plaintiff’s lawsuit or claim is a retaliatory effort based solely on the

moving party’s petitioning conduct.6 See Bradbury v. City of Eastport, 2013 ME

72, ¶ 16, 72 A.3d 512 (noting that counterclaims for tortious interference with a

contract and slander explicitly stated that they were based on the filing of the

plaintiff’s complaint); Morse Bros., Inc. v. Webster, 2001 ME 70, ¶¶ 7, 19,

772 A.2d 842 (stating that parties did not contest that the claims were based on

moving parties’ exercise of their constitutional rights to challenge permits and

licensing).     The case before us arises from efforts of defendants in a local

enforcement action to thwart such enforcement through the use of the anti-SLAPP

    6
     Accordingly, SLAPP lawsuits have most often taken the form of ordinary tort claims, including
defamation, business torts, conspiracy, constitutional-civil rights violations, and nuisance claims. See
generally George W. Pring, SLAPPs: Strategic Lawsuits Against Public Participation, 7 Pace Evtl. L.
Rev. 3, 9 (1989) (testimony of Rep. Richardson, submitted to Joint Comm. on the Judiciary, L.D. 781 at 7
(117th Legis. 1995)).
                                                                                                          9

special motion to dismiss. Although zoning disputes make up many of the classic

anti-SLAPP cases, the context for such cases has generally occurred when citizens

who publically oppose development projects are sued by companies or other

citizens, rather than by a government entity alleging violation of a land use

ordinance. See, e.g., Morse Bros., 2001 ME 70, ¶ 19, 772 A.2d 842.

        [¶14] Unlike statutes in some other states, Maine’s anti-SLAPP statute does

not expressly exempt government enforcement actions from its application.7

Further, there is limited legislative history to shed light on the question of its

scope.8 However, the plain meaning of the statutory language requiring that the

original claim at issue be “based on” the defendant’s First Amendment right to

  7
     The California and Texas anti-SLAPP statutes expressly exempt government enforcement actions
brought in the name of the state. See Cal. Civ. Code § 425.16(d) (West 2011); Tex. Civ. Prac. & Rem.
Code Ann. § 27.010(a) (West 2013). Exactly which civil actions by cities and towns are exempt appears
to be a developing question of law, but some California state appellate courts have extended this
exemption to include at least “all civil actions brought by state and local agencies to enforce laws aimed
at consumer and/or public protection.” City of Long Beach v. California Citizens for Neighborhood
Empowerment, 3 Cal.Rptr.3d 473, 478 (Cal. Ct. App. 2003). But see City of Los Angeles v. Animal Def.
League, 37 Cal.Rptr.3d 632, 642 (Cal. Ct. App. 2006) (refusing to extend exemption for City’s workplace
violence petition, stating that “only actions brought by a governmental agency to enforce laws aimed
generally at public protection qualify for this exemption to anti-SLAPP scrutiny”).
  8
     The enacting bill’s brief statement of fact does indicate, however, that the Legislature intended for a
special motion to dismiss to apply to those claims or counterclaims filed for retributory or otherwise
frivolous reasons:

        This bill allows a person exercising the first amendment right to bring an action and if a
        counterclaim is filed against that person for apparently dilatory expense incurring
        reasons or other frivolous reasons for seeking redress and accord, then that person has a
        right to a motion to dismiss and have that motion advanced so that the motion can be
        heard as soon as possible and if the motion to dismiss is granted, to have the case
        dismissed as soon as possible.

L.D. 781, Statement of Fact, at 2 (117th Legis. 1995).
10

petition the government makes it evident that the anti-SLAPP statute does not

apply in the circumstances of this case. See Driscoll v. Mains, 2005 ME 52, ¶ 6,

870 A.2d 124 (“When construing a statute, we look to its plain meaning and try to

give effect to the legislative intent.”); see also Marabello v. Boston Bark Corp.,

974 N.E.2d 636, 641-42 (Mass. 2012) (concluding that the dismissal of the claim

was unwarranted under the Massachusetts anti-SLAPP statute because the plaintiff

landlord’s claims were based on zoning violations and the tenant’s failure to

remove mulch from the landlord’s property).

      [¶15]   Other remedies exist for a citizen whose rights to petition the

government are allegedly suppressed due to government ordinances or

enforcement actions, including a federal section 1983 action or a state

constitutional challenge. See Me. Const. art. I, § 4; 42 U.S.C. § 1983 (2012);

Cutting v. City of Portland, No. 2:13-CV-359-025, 2014 WL 580155, *9 (D. Me.

Feb. 12, 2014) (striking down a Portland City ordinance barring panhandling in

median strips of local highways as a content-based restriction on free speech).

      [¶16] Accordingly, because, except possibly in extraordinary circumstances

not presented here, the Town’s enforcement action against the Cayers for a land

use violation is not an appropriate occasion for application of the anti-SLAPP

statute, the Cayers’ special motion to dismiss should have been denied.
                                                                                    11

        [¶17] We need not reach the Cayers’ arguments that the special motion to

dismiss was timely, or, alternatively, that the court abused its discretion in refusing

to allow filing of the motion outside of the sixty-day period. 14 M.R.S. § 556; see

also Bradbury, 2013 ME 72, ¶¶ 11-12, 72 A.3d 512. Because we conclude that

this was not an appropriate circumstance for application of the anti-SLAPP statute,

we affirm the judgment for reasons different from those stated by the trial court.

See Fitch v. Doe, 2005 ME 39, ¶ 21, 869 A.2d 722.

        The entry is:

                           Judgment affirmed.



On the briefs:

        Luke M. Rossignol, Esq., Bemis & Rossignol, LLC, Presque
        Isle, for appellants Richard Cayer and Ann Cayer

        Richard L. Currier, Esq., and Jon P. Plourde, Esq., Currier &
        Trask, P.A., Presque Isle, for appellee Town of Madawaska



Aroostook County (Caribou) Superior Court docket number CV-2012-155
FOR CLERK REFERENCE ONLY
