MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2017	ME	86	
Docket:	   Yor-15-564	
Argued:	   June	10,	2016	
Decided:	  May	9,	2017	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	and	HUMPHREY,	JJ.	
Majority:	 SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	and	HUMPHREY,	JJ.	
Dissent:	  JABAR,	J.	
	
	
                                NORMAN	GAUDETTE	
                                         	
                                        v.	
                                         	
                                  TERRY	M.	DAVIS	
	
	
GORMAN,	J.	

      [¶1]		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	trial	court.	
2	

                                         I.		BACKGROUND	

	        [¶2]	 	 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),1	 and	 the	 Intelligence	 and	 Investigative	 Record	

Information	 Act,	 16	 M.R.S.	 §§	801-809	 (2014);2	 and	 (VI)	seeking	 punitive	

damages.		

         [¶3]	 	 Davis	 answered	 the	 complaint	 and,	 soon	 after,	 filed	 a	 special	

motion	to	dismiss	the	lawsuit—with	an	accompanying	affidavit	and	exhibits—

     1		Title	16	M.R.S.	§	707	has	since	been	amended,	but	that	amendment	does	not	affect	this	appeal.		

P.L.	2015,	ch.	354,	§	2	(effective	Oct.	15,	2015)	(codified	at	16	M.R.S.	§	707	(2016)).	

     2		Title	16	M.R.S.	§	806	has	since	been	amended,	but	that	amendment	does	not	affect	this	appeal.		

P.L.	2015,	ch.	411,	§§	1-2	(effective	July	29,	2016)	(codified	at	16	M.R.S.	§	806	(2016)).	
                                                                                                              3	

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	appeals.3			

                                            II.		DISCUSSION	

        [¶4]	 	 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	defendant’s	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	defendant’s	First	Amendment	right	to	petition:	

        	      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	

   3	 	 We	 have	 recognized	 the	 right	 to	 immediately	 appeal	 from	 the	 denial	 of	 a	 special	 motion	 to	

dismiss	 on	 anti-SLAPP	 grounds,	 notwithstanding	 the	 lack	 of	 a	 final	 judgment	 on	 the	 underlying	
complaint.		Schelling	v.	Lindell,	2008	ME	59,	¶	8,	942	A.2d	1226.			
4	

     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	General’s	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	 court’s	 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	attorney’s	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	
                                                                                       5	

      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	 Maietta	 Constr.,	 Inc.	 v.	 Wainwright,	 2004	 ME	 53,	 ¶	 6,	

847	A.2d	1169.			

      [¶5]		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.		

      [¶6]		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	
6	

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.		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	 defendant’s	 actions	 that	 might	 constitute	 an	 exercise	 of	 his	

First	Amendment	right	to	petition—here,	Davis’s	statements	about	Gaudette’s	

alleged	 involvement	 in	 illegal	 and	 immoral	 acts—and	 the	 plaintiff’s,	

Gaudette’s,	 right	 of	 access	 to	 the	 courts	 to	 seek	 redress	 for	 those	 same	

actions.4	 	 See	 Nader	 I,	 2012	 ME	 57,	 ¶¶	20-25,	 41	 A.3d	 551;	 Morse	 Bros.,	

2001	ME	70,	¶	15	n.2,	772	A.2d	842.	

	        [¶7]	 	 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;	


     4		Depending	on	the	activity	at	issue,	other	constitutional	rights	may	also	be	implicated,	such	as	

the	right	of	access	to	the	ballot.		See	Nader	v.	Me.	Democratic	Party	(Nader	I),	2012	ME	57,	¶¶	26-27	
&	n.11,	41	A.3d	551.	
                                                                                                           7	

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.		

        [¶8]	 	 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	

defendant’s)	 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.”5		Morse	Bros.,	2001	ME	70,	¶	19,	772	A.2d	842;	


   5		As	we	have	noted,	the	anti-SLAPP	statute	was	primarily	intended	to	address	citizen	objections	

in	 land	 matters:	 “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.”	 Morse	 Bros.,	 Inc.	 v.	 Webster,	 2001	 ME	 70,	 ¶	 10,	 772	A.2d	 842	 (alteration	 omitted)	
(quotation	 marks	 omitted);	 see	 Town	 of	 Madawaska	 v.	 Cayer,	 2014	 ME	 121,	 ¶	 13,	 103	 A.3d	 547	
(noting	 that	 the	 “classic	 anti-SLAPP	 case[]”	 is	 one	 in	 which	 “citizens	 who	 publicly	 oppose	
development	projects	are	sued	by	companies	or	other	citizens”);	Maietta	Constr.,	Inc.	v.	Wainwright,	
2004	ME	53,	¶	7,	847	A.2d	1169.		
		
      Because	 of	 the	 broad	 language	 chosen	 by	 the	 Legislature	 to	 define	 petitioning	 activity,	
however,	we	have	been	presented	with	a	series	of	anti-SLAPP	matters	in	which	the	plaintiff	is	suing	
the	 defendant	 for	 some	 form	 of	 defamation,	 and	 in	 which	 the	 plaintiff	 primarily	 claims	 to	 have	
suffered	 emotional	 distress,	 loss	 of	 sleep,	 embarrassment	 and	 humiliation,	 and	 the	 like.		
E.g.,	Camden	Nat’l	Bank	v.	Weintraub,	2016	ME	101,	¶	3,	143	A.3d	788;	Nader	I,	2012	ME	57,	¶¶	5-9,	
8	

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.			

       [¶9]		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	842.			

       [¶10]		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,	

772	A.2d	842.			




41	A.3d	551;	Schelling,	2008	ME	59,	¶	5,	942	A.2d	1226;	Maietta	Constr.,	2004	ME	53,	¶¶	4,	9-10,	
847	A.2d	1169.	
                                                                                          9	

	      [¶11]		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	 grant	 the	 special	 motion	 to	 dismiss	 the	 action.	 	 Id.	 ¶	 18.	 	 Three	 years	

later,	we	applied	the	same	standard	in	Maietta	Construction,	2004	ME	53,	¶	8,	

847	A.2d	1169.	

       [¶12]		In	Nader	I,	we	changed	course	and	articulated	a	review	standard	

by	which	the	nonmoving	party	was	required	to	demonstrate	only	“prima	facie	

evidence	to	support	its	burden	of	showing	that	the	moving	party’s	petitioning	

activity	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	[nonmoving]	

party.”		2012	ME	57,	¶	33,	41	A.3d	551	(quotation	marks	omitted).		A	prima	

facie	standard	is	a	low	one,	and	requires	only	“some	evidence”	on	the	required	
10	

elements	of	proof	and	does	not	depend	on	the	reliability	or	credibility	of	that	

evidence.	 	 Id.	 ¶¶	 34-35	 (quotation	 marks	 omitted);	 cf.	 Nader	 II,	 2013	 ME	 51,	

¶	19,	 66	 A.3d	 571	 (cautioning	 that	 “averments	 made	 on	 information	 and	

belief”	 do	 not	 satisfy	 a	 prima	 facie	 burden,	 and	 the	 attesting	 party	 must	

instead	 provide	 some	 admissible	 evidence	 (quotation	 marks	 omitted)).		

Further,	 the	 plaintiff	 needed	 only	 to	 meet	 this	 burden	 as	 to	 any	 one	 of	 the	

petitioning	 activities	 at	 issue,	 and	 was	 not	 obligated	 to	 establish	 prima	 facie	

evidence	 that	 all	 of	 the	 defendant’s	 petitioning	 activities	 were	 devoid	 of	 a	

factual	 or	 reasonable	 basis	 and	 caused	 actual	 injury.6	 	 Nader	 I,	 2012	 ME	 57,	

¶	36,	41	A.3d	551;	see	Nader	II,	2013	ME	51,	¶	14,	66	A.3d	571	(applying	the	

standard	 as	 enunciated	 in	 Nader	 I);	 see	 also	 Weintraub,	 2016	 ME	 101,	

¶¶	10-11,	 143	 A.3d	 788	 (same);	 Cayer,	 2014	 ME	 121,	 ¶	 9,	 103	 A.3d	 547	

(same).		

        [¶13]	 	 The	 shift	 from	 the	 Morse	 Brothers	 standard	 to	 the	 Nader	 I	

standard	 represented	 an	 adjustment	 in	 the	 balancing	 of	 the	 protections	

afforded	 within	 anti-SLAPP	 procedure.	 	 Pursuant	 to	 the	 practice	 established	

by	 Morse	 Brothers,	 2001	ME	 70,	 ¶	18,	 772	 A.2d	 842,	 when	 conflicting	 facts	
   6		In	Morse	Brothers,	we	stated	that	on	appeal,	we	review	the	denial	of	a	special	motion	to	dismiss	

on	anti-SLAPP	grounds	for	an	abuse	of	discretion	or	error	of	law.		2001	ME	70,	¶	18,	772	A.2d	842.		
Twelve	 years	 later,	 we	 held	 instead	 that	 our	 review	 is	 de	 novo,	 founded	 as	 it	 is	 on	 the	 statutory	
interpretation	of	section	556,	and	that	the	abuse	of	discretion	standard	did	not	apply.		Nader	v.	Me.	
Democratic	Party	(Nader	II),	2013	ME	51,	¶	12	n.9,	66	A.3d	571.	
                                                                                           11	

were	alleged,	the	court	was	required	to	grant	the	special	motion	to	dismiss	the	

action.		As	a	result,	the	Morse	Brothers	process	provided	greater	protection	to	

the	 right	 to	 petition	 than	 to	 the	 right	 to	 access	 the	 courts.	 	 According	 to	 the	

standard	 we	 adopted	 in	 Nader	 I,	 2012	ME	 57,	 ¶¶	 30,	 35,	 41	 A.3d	 551,	

however,	when	conflicting	facts	were	alleged,	the	court	was	required	to	deny	

the	special	motion	to	dismiss	and	allow	the	matter	to	proceed	to	trial.		Thus,	

the	 Nader	 I	 standard	 afforded	 greater	 protection	 to	 the	 right	 to	 access	 the	

courts	than	to	the	right	to	petition.	

       [¶14]	 	 We	 now	 conclude	 that	 neither	 system,	 by	 itself,	 provides	

sufficient	 protection	 for	 the	 due	 process	 rights	 of	 both	 the	 plaintiff	 and	 the	

defendant:	 the	 Morse	 Brothers	 standard	 provides	 virtually	 no	 protection	 for	

the	 right	 to	 seek	 redress	 for	 harms	 through	 suit,	 and	 the	 Nader	 I	 standard	

results	 in	 a	 pronounced	 dilution	 of	 the	 Legislature’s	 apparent	 objective	 in	

enacting	 the	 anti-SLAPP	 statute—the	 prompt	 dismissal	 of	 lawsuits	 that	

threaten	a	defendant’s	right	to	petition.			

       [¶15]		We	therefore	return,	as	we	must	in	any	statutory	interpretation	

matter,	to	the	plain	language	of	section	556,	see	Weintraub,	2016	ME	101,	¶	9,	

143	A.3d	788,	and	in	particular,	to	its	mandate	that	“[t]he	court	shall	grant	the	

special	motion	[to	dismiss],	unless	the	party	against	whom	the	special	motion	is	
12	

made	shows”	the	necessary	criteria,	i.e.,	“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	

[nonmoving]	 party,”	 14	 M.R.S.	 §	556	 (emphases	 added).	 	 As	 written,	 section	

556	 places	 the	 burden	 on	 the	 nonmoving	 party	 to	 “show[]”	 that	 the	

petitioning	activity	was	baseless.		It	also	sets	out	as	the	default	that	the	matter	

“shall”	 be	 dismissed	 if	 the	 moving	 party	 has	 established	 that	 it	 is	 petitioning	

activity	at	issue.		14	M.R.S.	§	556.		By	this	plain	language,	the	Legislature	has	

demonstrated	 its	 intention	 to	 grant	 strong	 protection	 to	 petitioning	 activity,	

and	 indeed,	 perhaps	 stronger	 protection	 to	 petitioning	 activity	 than	 the	

competing	right	to	seek	relief	from	the	court.		We	cannot,	however,	provide	no	

protection	for	the	right	to	seek	redress	in	court.		

       [¶16]	 	 We	 therefore	 clarify	 that	 the	 following	 procedure	 is	 to	 apply	 in	

matters	 in	 which	 the	 anti-SLAPP	 statute	 is	 raised.	 	 First,	 as	 always,	 the	

defendant	 must	 file	 a	 special	 motion	 to	 dismiss	 and	 establish,	 based	 on	 the	

pleadings	 and	 affidavits,	 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.		That	it	is	petitioning	activity	at	

issue,	and	that	the	anti-SLAPP	statute	therefore	applies,	is	purely	a	question	of	
                                                                                             13	

law	for	the	court’s	decision.		Nader	II,	2013	ME	51,	¶	12	n.9,	66	A.3d	571.		If	

the	 moving	 party	 filing	 the	 special	 motion	 to	 dismiss	 does	 not	 establish	 that	

the	claims	are	based	on	his	or	her	petitioning	activity	as	a	matter	of	law,	the	

court	must	deny	the	special	motion	to	dismiss	without	any	need	to	review	any	

opposition	by	the	plaintiff.		Nader	I,	2012	ME	57,	¶	15,	41	A.3d	551.	

	      [¶17]	 	 If	 the	 court	 agrees	 that	 the	 defendant	 has	 met	 this	 burden	 as	 a	

matter	 of	 law,	 the	 court	 must	 then	 consider	 the	 plaintiff’s	 opposition	 to	 the	

special	motion	to	dismiss.		Id.	¶	16.		As	set	out	in	Nader	I,	and	in	accordance	

with	section	556,	it	is	the	plaintiff’s	burden	to	establish,	through	the	pleadings	

and	 affidavits,	 prima	 facie	 evidence	 that	 the	 defendant’s	 petitioning	 activity	

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

and	 that	 the	 defendant’s	 petitioning	 activity	 “caused	 actual	 injury”	 to	 the	

plaintiff.	 	 Id.	 ¶¶	 16,	 29-38	 (quotation	 marks	 omitted).	 	 If	 the	 plaintiff	 fails	 to	

meet	 any	 portion	 of	 this	 prima	 facie	 burden—either	 by	 the	 absence	 of	 the	

minimum	amount	of	evidence	on	either	element	or	based	on	some	other	legal	

insufficiency,	see,	e.g.,	Nader	II,	2013	ME	51,	¶¶	19-25,	66	A.3d	571;	Schelling,	

2008	ME	59,	¶¶	17-27,	942	A.2d	1226—the	special	motion	to	dismiss	must	be	

granted,	 either	 partially	 or	 wholly,	 with	 no	 additional	 procedure.	 	 14	 M.R.S.	

§	556;	see	Nader	I,	2012	ME	57,	¶	37,	41	A.3d	55.			
14	

        [¶18]		We	now	hold,	however,	contrary	to	what	we	indicated	in	Nader	I,	

2012	ME	 57,	 ¶	 30,	 41	 A.3d	 55,	 that	 if	 the	 plaintiff	 meets	 this	 prima	 facie	

burden	 for	 any	 or	 all	 of	 the	 defendant’s	 petitioning	 activities,	 the	 special	

motion	 to	 dismiss	 is	 not	 then	 automatically	 denied.	 	 Rather,	 we	 establish	 an	

additional	procedural	component	whereby,	on	motion	by	either	party,	(1)	the	

court	permits	the	parties	to	undertake	a	brief	period	of	limited	discovery,	the	

terms	of	which	are	determined	by	the	court	after	a	case	management	hearing,	

and	(2)	at	the	conclusion	of	that	limited	discovery	period,	the	court	conducts	

an	evidentiary	hearing.7		At	the	evidentiary	hearing,	it	is	the	plaintiff’s	burden	

to	 establish,	 by	 a	 preponderance	 of	 the	 evidence,	 each	 of	 the	 elements	 for	

opposing	the	dismissal	on	anti-SLAPP	grounds	for	which	he	successfully	made	

out	his	prima	facie	case—that	the	defendant’s	petitioning	activity	was	devoid	

of	 factual	 support	 or	 an	 arguable	 legal	 basis	 and	 that	 the	 petitioning	 activity	

caused	the	plaintiff	actual	injury.8		See	14	M.R.S.	§	556;	Nader	I,	2012	ME	57,	

¶	33,	41	A.3d	551.		If	neither	party	requests	discovery	and/or	the	evidentiary	

   7	 	 This	 procedure	 comports	 with	 and	 satisfies	 the	 discovery	 provisions	 in	 the	 third	 and	 fifth	

paragraphs	of	14	M.R.S.	§	556	(2016),	including	the	requirement	of	“good	cause.”	
   8		 On	 appeal,	 we	 will	 therefore	 review	 any	 findings	 of	 fact	 as	 we	 do	 for	 any	 factual	
determination—for	 clear	 error	 or,	 if	 the	 plaintiff	 was	 unsuccessful	 in	 meeting	 his	 burden	 by	 a	
preponderance	of	the	evidence,	to	determine	whether	the	trial	court	was	compelled	to	find	in	the	
plaintiff’s	favor.		See	St.	Louis	v.	Wilkinson	Law	Offices,	P.C.,	2012	ME	116,	¶	17,	55	A.3d	443.		We	also	
continue	 to	 embrace	 the	 standard	 of	 review	 on	 appeal	 as	 clarified	 in	 Nader	 II,	 and	 we	 therefore	
review	 the	 trial	 court’s	 ultimate	 decision	 on	 a	 special	 motion	 to	 dismiss	 on	 anti-SLAPP	 grounds	
de	novo	as	a	matter	of	law.		2013	ME	51,	¶	12	&	n.9,	66	A.3d	571.		
                                                                                          15	

hearing,	 however,	 the	 court	 shall	 decide	 whether	 the	 plaintiff	 has	 met	 this	

burden	 by	 a	 preponderance	 of	 the	 evidence	 based	 only	 on	 the	 parties’	

submissions	in	seeking	and	opposing	the	special	motion	to	dismiss.	

       [¶19]	 	 To	 protect	 the	 defendant	 from	 the	 type	 of	 generalized	 and	

burdensome	discovery	that	the	anti-SLAPP	statute	was	meant	to	obviate,	the	

trial	court	must	strictly	limit	the	scope	of	both	discovery	and	the	hearing	itself	

in	two	ways.		First,	the	issues	the	parties	may	be	allowed	to	conduct	discovery	

on	 or	 litigate	 are	 strictly	 limited	 to	 the	 elements	 of	 the	 plaintiff’s	 burden	 in	

opposing	 the	 anti-SLAPP	 motion—whether	 the	 defendant’s	 petitioning	

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

law”	and	whether	the	activity	“caused	actual	injury”	to	the	plaintiff.		14	M.R.S.	

§	556;	see	Nader	I,	2012	ME	57,	¶	33,	41	A.3d	551.		We	emphasize	that	these	

elements	are	distinguishable	from	the	elements	of	the	plaintiff’s	burden	on	his	

underlying	causes	of	action;	discovery	and	evidence	that	pertain	to	the	causes	

of	action	themselves	are	not	relevant	at	this	stage	of	the	proceeding,	and	only	

become	 relevant	 if	 the	 plaintiff	 survives	 the	 evidentiary	 hearing	 on	 the	

anti-SLAPP	motion.			

       [¶20]	 	 Second,	 neither	 discovery	 nor	 the	 hearing	 may	 address	 any	

petitioning	 activity	 for	 which	 the	 plaintiff’s	 prima	 facie	 burden	 was	 not	 met.		
16	

As	 we	 held	 in	 Nader	 I,	 to	 survive	 the	 special	 motion	 to	 dismiss,	 the	 plaintiff	

must	meet	his	prima	facie	burden	as	to	any	one	of	the	petitioning	activities	at	

issue,	 and	 is	 not	 required	 to	 establish	 that	 all	 of	 the	 defendant’s	 petitioning	

activities	 were	 devoid	 of	 a	 factual	 or	 legal	 basis	 and	 caused	 actual	 injury.		

2012	ME	57,	¶	36,	41	A.3d	551.		However,	the	plaintiff	shall	not	be	permitted	

to	 investigate	 or	 litigate	 facts	 surrounding	 those	 petitioning	 activities	 for	

which	he	was	unable	to	establish	prima	facie	evidence	because	those	activities	

may	 form	 no	 further	 basis	 for	 the	 plaintiff’s	 opposition	 to	 the	 anti-SLAPP	

motion	or	the	remaining	litigation	on	the	plaintiff’s	underlying	complaint.		

       [¶21]	 	 We	 reiterate	 that	 this	 evidentiary	 hearing	 is	 not,	 in	 any	 way,	

intended	to	be	a	decision	on	the	merits	of	those	causes	of	action	for	which	the	

plaintiff	 has	 met	 his	 prima	 facie	 burden,	 and	 that	 the	 only	 decision	 to	 be	

reached	 by	 the	 trial	 court	 is	 whether	 the	 plaintiff	 establishes,	 by	 a	

preponderance	of	the	evidence,	the	two	elements	required	by	section	556.		If	

the	court	finds	that	the	plaintiff	has	not	met	that	burden	by	a	preponderance	

of	 the	 evidence	 for	 any	 of	 the	 plaintiff’s	 actions,	 the	 court	 must	 grant	 the	

special	 motion	 to	 dismiss	 as	 to	 those	 actions.	 	 See	 14	 M.R.S.	 §	 556.	 	 On	 the	

other	 hand,	 the	 plaintiff	 will	 be	 permitted	 to	 proceed	 with	 the	 merits	 of	 his	
                                                                                            17	

complaint	 as	 to	 those	 acts	 for	 which	 the	 court	 finds	 the	 plaintiff	 has	 met	 his	

burden	by	a	preponderance	of	the	evidence.		

       [¶22]		Although	section	556	does	not	require	this	additional	procedure,	

neither	 does	 it	 prohibit	 it.	 	 This	 procedure	 best	 preserves	 all	 of	 the	

constitutional	rights	at	issue	and	affords	both	parties	additional	due	process,	

while	 also	 serving	 the	 legislative	 intent	 we	 glean	 from	 the	 plain	 language	 of	

section	 556—to	 provide	 additional	 protection	 to	 the	 right	 to	 petition.	 	 It	

maintains	the	burden	of	proof	with	the	plaintiff	according	to	the	elements	set	

out	 in	 section	 556.	 	 It	 forces	 the	 plaintiff	 to	 meet	 his	 burden	 for	 each	 of	 the	

defendant’s	 discrete	 petitioning	 acts.	 	 It	 winnows	 the	 acts	 for	 which	 the	

plaintiff	 may	 maintain	 the	 lawsuit	 to	 those	 that	 the	 plaintiff	 can	 “show[],”	

pursuant	 to	 section	 556,	 were	 both	 devoid	 of	 a	 legal	 or	 factual	 basis	 and	

caused	 the	 plaintiff	 actual	 injury.	 	 It	 is	 similar	 to	 the	 procedure	 for	 other	

dispositive	motions,	with	which	we	were	concerned	in	 Nader	I,	2012	ME	57,	

¶	33,	 41	 A.3d	 551.	 	 It	 allows	 the	 trial	 court	 to	 grant	 an	 early	 and	 swift	

dismissal	 as	 a	 matter	 of	 law	 in	 those	 instances	 in	 which	 the	 plaintiff	 cannot	

meet	this	burden	on	even	a	prima	facie	basis	without	ever	having	to	undergo	

anti-SLAPP	discovery	or	an	evidentiary	hearing.		It	thereby	preserves	for	the	

court’s	decision,	as	a	matter	of	proof	by	a	preponderance	of	the	evidence,	any	
18	

legitimate	 factual	 dispute	 about	 anti-SLAPP	 protection,	 a	 decision	 best	

undertaken	in	the	first	instance	by	the	trial	court.		In	short,	the	considerations	

we	 expressed	 in	 both	 Morse	 Brothers	 and	 Nader	 I	 remain	 viable,	 and,	 rather	

than	 making	 another	 abrupt	 change,	 we	 address	 these	 considerations	 by	

extending	the	procedure	we	adopted	in	Nader	I.9	

	       [¶23]	 	 We	 turn	 now	 to	 the	 case	 before	 us.	 	 With	 his	 special	 motion	 to	

dismiss,	 Davis	 argued	 and	 attested	 that	 his	 actions	 that	 formed	 the	 basis	 of	

Gaudette’s	 complaint—Davis’s	 statements	 regarding	 the	 sexual	 abuse	

investigation—constituted	 petitioning	 activity	 in	 that	 they	 were	 intended	 to	

“inform	 an	 ongoing	 public	 discussion	 and	 investigation	 into	 allegations	 of	

sexual	 abuse	 of	 minors	 by	 members	 of	 the	 Biddeford	 Police	 Department	


    9
     Our	shifting	interpretations	of	the	anti-SLAPP	statute	reflect	our	continuing	struggle	with	the	
sweeping	 breadth	 of	 the	 statute,	 particularly	 when	 compared	 to	 the	 anti-SLAPP	 statutes	 of	 other	
states.	 	 See,	 e.g.,	 Cayer,	 2014	ME	 121,	 ¶	 14,	 103	 A.3d	 547	 (“Unlike	 statutes	 in	 some	 other	 states,	
Maine’s	 anti-SLAPP	 statute	 does	 not	 expressly	 exempt	 government	 enforcement	 actions	 from	 its	
application.		Further,	there	is	limited	legislative	history	to	shed	light	on	the	question	of	its	scope.”	
(footnote	omitted));	Schelling,	2008	ME	59,	¶	12,	942	A.2d	1226	(“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.”).		Indeed,	according	to	the	language	chosen	by	the	Legislature,	section	556	
provides	 protection	 not	 only	 for	 direct	 communication,	 petitions,	 or	 requests	 by	 citizens	 to	 their	
government,	but	also	for		
          	
          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.		The	statute’s	silence	as	to	the	particular	means	by	which	anti-SLAPP	motions	are	
meant	to	be	decided	has	created	further	difficulty.	
                                                                                       19	

between	 the	 1980s	 and	 the	 early	 2000s,	 as	 well	 as	 the	 handling	 of	 such	

allegations	 by	 the	 Maine	 Attorney	 General’s	 Office.”	 	 The	 court	 determined	

that	 “Davis’s	 statements	 clearly	 fit	 within	 the	 broad	 definition	 of	 petitioning	

activity”	and	that	the	anti-SLAPP	statute	therefore	applied	as	a	matter	of	law.		

We	do	not	disturb	this	legal	conclusion.		See	Nader	II,	2013	ME	51,	¶	12	&	n.9,	

66	A.3d	571.	

      [¶24]	 	 The	 burden	 then	 shifted	 to	 Gaudette.	 	 See	 Weintraub,	 2016	 ME	

101,	 ¶	 8,	 143	 A.3d	 788;	 Morse	 Bros.,	 2001	 ME	 70,	 ¶	 20,	 772	 A.2d	 842.	 	 The	

court	 first	 determined	 that	 an	 affidavit	 submitted	 by	 Gaudette,	 in	 which	 the	

Assistant	Attorney	General	who	had	prosecuted	Gaudette	attested	that	certain	

of	Davis’s	statements	were	“totally	false,”	provided	sufficient	evidence	to	meet	

Gaudette’s	burden	of	producing	prima	facie	evidence	that	Davis’s	statements	

were	 devoid	 of	 factual	 or	 legal	 support.	 	 As	 to	 actual	 injury,	 the	 court	

concluded	that	Gaudette	had	established—and	Davis	has	not	challenged—that	

Gaudette	 provided	 sufficient	 prima	 facie	 evidence	 that	 Davis’s	 statements	

caused	 Gaudette	 actual	 injury	 in	 the	 form	 of	 lost	 income	 and	 physical	 and	

mental	injury.		

      [¶25]		This	analysis	of	Gaudette’s	opposition	started	and	ended	(at	the	

time,	properly)	with	the	prima	facie	standard	that	we	set	out	in	Nader	I.		We	
20	

must	 therefore	 remand	 the	 matter	 to	 the	 Superior	 Court	 for	 it	 to	 reconsider	

Gaudette’s	 opposition	 according	 to	 the	 procedure	 and	 standards	 we	 now	 set	

forth,	 including	 by	 allowing	 Gaudette	 to	 submit	 any	 additional	 materials	

necessary	to	comply	with	this	new	procedure.10		Given	this	decision,	we	also	

deny	Gaudette’s	motion	seeking	treble	costs	and	expenses,	including	attorney	

fees,	pursuant	to	M.R.	App.	P.	13(f).	

        The	entry	is:	

                   Judgment	 vacated.	 	 Remanded	 for	 further	
                   proceedings	consistent	with	this	opinion.		
                   	
                   	     	    	     	     	      	
                                 	
JABAR,	J.,	dissenting.		
	
	    [¶26]		I	respectfully	dissent	because	the	new	procedures	that	the	Court	

establishes	 defeat	 the	 purpose	 of	 the	 legislation,	 create	 unconstitutional	

impediments	to	potentially	meritorious	causes	of	action,	and	place	an	undue	

burden	upon	litigants	in	derogation	of	established	common	law	by	screening	

what	would	otherwise	be	meritorious	cases.	



   10	 	 We	 also	 take	 this	 opportunity	 to	 call	 to	 the	 attention	 of	 the	 court	 and	 the	 parties	 that	 a	

statement	is	defamatory	only	if	it	is	“of	or	concerning”	a	plaintiff	(among	other	elements).		Hudson	v.	
Guy	 Gannett	 Broad.	 Co.,	 521	 A.2d	 714,	 716	 (Me.	 1987)	 (quotation	 marks	 omitted);	 see	Robinson	 v.	
Guy	 Gannett	 Publ’g	 Co.,	 297	 F.	 Supp.	 722,	 725-26	 (D.	 Me.	 1969).	 	 Thus,	 any	 statements	 made	 by	
Davis	 criticizing	 either	 the	 Assistant	 Attorney	 General	 or	 the	 grand	 jury	 process	 could	 not	
constitute	defamation	of	Gaudette	by	Davis.	
                                                                                       21	

	     [¶27]		Almost	five	years	ago,	we	held	that	when	a	party	makes	a	special	

motion	 to	 dismiss	 pursuant	 to	 14	 M.R.S.	 §	 556	 (2016),	 the	 nonmoving	 party	

must	make	a	prima	facie	showing	that	any	of	the	petitioning	activities	by	the	

moving	parties	were	devoid	of	reasonable	factual	support	or	arguable	basis	in	

law,	 and	 that	 the	 nonmoving	 party	 suffered	 an	 actual	 injury.	 	 Nader	 v.	 Me.	

Democratic	 Party	 (Nader	 I),	 2012	 ME	 57,	 ¶	 38,	 41	A.3d	 551.	 	 The	 Court	 now	

abandons	our	case	law,	creating	an	additional	mandatory	evidentiary	hearing	

that	 places	 the	 burden	 of	 proof	 upon	 the	 plaintiff	 to	 establish,	 by	 a	

preponderance	 of	 the	 evidence,	 that	 the	 defendant’s	 petitioning	 acts	 were	

devoid	 of	 any	 factual	 support	 or	 arguable	 basis	 in	 law	 and	 caused	 actual	

injury.	 	 Court’s	 Opinion	 ¶	 17.	 	 This	 required	 showing	 necessarily	 implicates	

the	merits	of	the	case.			

A.	   Legislative	Intent	

	     [¶28]		I	agree	with	the	Court	insofar	as	it	recognizes	that	application	of	

the	 anti-SLAPP	 statute	 creates	 tension	 between	 the	 coexisting	 constitutional	

rights	 to	 petition	 and	 to	 access	 the	 courts.	 	 Court’s	 Opinion	 ¶	 6.	 	 However,	

I	disagree	with	the	Court’s	assumption	that	the	Legislature’s	intent	to	balance	

these	rights	is	apparent	from	the	face	of	the	statute.		Rather	than	attempting	

to	grant	“stronger	protection	to	petitioning	activity	than	the	competing	right	
22	

to	seek	relief	from	the	court,”	as	the	Court	suggests,	Court’s	Opinion	¶¶	15-16,	

the	Legislature’s	intent	is	only	to	protect	petitioning	activity	against	meritless	

cases.	 	 Contrary	 to	 the	 Court’s	 conclusion,	 the	 face	 of	 the	 statute	 does	 not	

require	us	to	balance	the	right	to	petition	with	the	right	of	access	to	the	courts.	

	     [¶29]		The	plain	language	of	the	statute	states	that	a	“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”	meets	the	two	

statutory	criteria:	that	the	moving	party’s	exercise	of	the	right	to	petition	“was	

devoid	 of	 any	 reasonable	 factual	 support	 or	 any	 arguable	 basis	 in	 law[,]	 and	

that	the	moving	party’s	acts	caused	actual	injury.”		14	M.R.S.	§	556.		Before	the	

court	 reaches	 its	 decision,	 “upon	 the	 filing	 of	 the	 special	 motion,”	 “discovery	

proceedings	 are	 stayed,”	 essentially	 placing	 the	 litigation	 on	 pause	 while	 the	

court	determines	whether	the	case	may	move	forward.		Id.		The	intent	of	the	

Legislature	was	to	avoid	unnecessary	litigation	due	to	meritless	cases	brought	

for	reasons	other	than	the	interests	of	justice	or	restoration	for	injury.	

      [¶30]		The	statute	does	not	weigh	the	right	of	petition	against	the	right	

of	access	to	the	courts.		The	nonmoving	party’s	right	of	access	to	the	courts	is	

not	mentioned	in	the	statute,	and	is	only	implied	to	the	extent	that	he	or	she	

must	make	the	showing	required	by	the	statute	or	face	dismissal.		The	statute	
                                                                                              23	

draws	no	comparison	between	these	rights.		The	only	tension	between	them	is	

created	 by	 application	 of	 the	 statute,	 rather	 than	 its	 plain	 language.	 	 The	

statute	 is	 an	 expedited	 procedural	 mechanism	 to	 weed	 out	 meritless	 cases	

when	 the	 defendant	 is	 engaged	 in	 activities	 protected	 by	 the	 First	

Amendment.	 	 A	 litigant	 has	 a	 constitutional	 right	 to	 access	 the	 courts	 even	

when	suing	a	defendant	on	the	basis	of	the	defendant’s	petitioning	activity,	as	

long	as	it	is	a	meritorious	case.			

	      [¶31]	 	 Instead	 of	 adding	 our	 own	 speculations,	 we	 should	 now	 affirm	

our	previous	understanding	of	the	legislative	intent	of	the	anti-SLAPP	statute.		

We	 have	 previously	 noted	 that	 “[b]ecause	 winning	 is	 not	 a	 SLAPP	 plaintiff’s	

primary	 motivation,	 defendants’	 traditional	 safeguards	 against	 meritless	

actions	 .	 .	 .	 are	 inadequate.”	 	 Morse	 Bros.,	 Inc.	 v.	 Webster,	 2001	 ME	 70,	 ¶	 10,	

772	A.2d	842	(quotation	marks	omitted).		The	special	motion,	therefore,	“is	a	

statutory	 creature	 designed	 to	 protect	 certain	 defendants	 from	 meritless	

litigation.”	 	 Id.	 ¶	 15.	 	 “[C]ontinued	 litigation,”	 not	 access	 to	 the	 courts,	 is	 the	

“harm	that	the	statute	seeks	to	prevent.”		Id.		“The	special	motion	to	dismiss	

created	 by	 the	 anti-SLAPP	 statute	 is	 intended	 .	 .	 .	 to	 dispose	 of	 baseless	

lawsuits	 that	 are	 brought	 not	 to	 vindicate	 the	 plaintiff’s	 rights	 but	 to	 punish	

the	 defendant	 for	 exercising	 her	 constitutional	 right	 to	 petition	 the	
24	

government	 .	 .	 .	 .”	 	 Nader	 I,	 2012	 ME	 57,	 ¶	 42,	 41	 A.3d	 551	 (Silver,	 J.,	

concurring);	 see	 also	 Maietta	 Constr.,	 Inc.	 v.	 Wainwright,	 2004	 ME	 53,	 ¶	 6,	

847	A.2d	1169.	

	      [¶32]		Other	courts	agree.		In	interpreting	a	Massachusetts	anti-SLAPP	

statute,	 which	 this	 Court	 has	 noted	 is	 “nearly	 identical	 to	 14	 M.R.S.	 §	 556,”	

Nader	 I,	 2012	 ME	 57,	 ¶	 22,	 41	 A.3d	 551	 (Alexander,	 J.,	 majority),	 the	

Massachusetts	Supreme	Judicial	Court	recognized	that	the	“apparent	purpose	

of	 the	 anti-SLAPP	 statute	 [is]	 to	 dispose	 expeditiously	 of	 meritless	 lawsuits	

that	 may	 chill	 petitioning	 activity.”	 	 Duracraft	 Corp.	 v.	 Holmes	 Prods.	 Corp.,	

691	N.E.2d	935,	943	(Mass.	1998).		There,	the	Massachusetts	Supreme	Judicial	

Court	 noted	 that	 the	 statute	 in	 fact	 impinged	 on	 the	 adverse	 party’s	 right	 to	

petition.		See	id.	

	      [¶33]	 	 Rather	 than	 deducing	 the	 legislative	 intent	 of	 the	 statute	 and	

using	it	as	the	basis	of	our	analysis,	the	Court	has	misconstrued	the	purpose	of	

the	 statute,	 taken	 on	 the	 job	 of	 the	 Legislature	 and	 invented	 a	 burdensome	

new	procedure.		It	requires	the	trial	court	to	hold	an	evidentiary	hearing	and	

to	weigh	evidence,	fact-finding	neither	required	by	the	statute	nor	in	line	with	

the	Legislature’s	intent.		Additionally,	the	trial	court	must	on	its	own	authority	

decide	 whether	 the	 plaintiff	 has	 met	 the	 burden	 by	 a	 preponderance	 of	 the	
                                                                                             25	

evidence.	 	 Court’s	 Opinion	 ¶	 18.	 	 This	 defeats	 the	 purpose	 of	 the	 statute:	 to	

provide	 for	 expedited	 consideration	 of	 a	 plaintiff’s	 allegations	 and	 minimize	

litigation	 costs	 associated	 with	 meritless	 suits.	 	 See	 Bradbury	 v.	 City	 of	

Eastport,	2013	ME	72,	¶	18,	72	A.3d	512.		We	should	defer	to	the	Legislature	

to	make	such	significant	changes	to	the	statute.	

B.	    Constitutional	Violations	

	      [¶34]		The	Court’s	creation	of	an	evidentiary	hearing	presents	conflicts	

with	 the	 Maine	 Constitution.	 	 Article	 I,	 section	 19	 of	 the	 Maine	 Constitution	

provides	that	“[e]very	person,	for	an	injury	inflicted	on	the	person	or	on	the	

person’s	reputation,	property	or	immunities,	shall	have	remedy	by	due	course	

of	 law;	 and	 right	 and	 justice	 shall	 be	 administered	 freely	 and	 without	 sale,	

completely	 and	 without	 denial,	 promptly	 and	 without	 delay.”	 	 Similarly,	

article	I,	 section	20	 “guarantees	 to	 parties	 in	 all	 civil	 suits	 the	 right	 to	 a	 jury	

trial,	except	where	by	the	common	law	and	Massachusetts	statutory	law	that	

existed	 prior	 to	 the	 adoption	 of	 the	 Maine	 Constitution	 in	 1820	 such	 cases	

were	decided	without	a	jury.”		City	of	Portland	v.	DePaolo,	531	A.2d	669,	670	

(Me.	1987).	 	 Because	 the	 Court	 now	 requires	 fact-finding	 by	 an	 evidentiary	

hearing	 that	 addresses	 the	 merits	 of	 a	 case	 without	 providing	 litigants	 with	
26	

access	 to	 a	 jury,	 the	 new	 anti-SLAPP	 procedure	 violates	 the	 Maine	

Constitution.	

	        [¶35]	 	 The	 First	 Circuit,	 in	 addressing	 Maine’s	 anti-SLAPP	 statute,	

upheld	its	application	in	the	face	of	a	due	process	challenge.		Godin	v.	Schencks,	

629	F.3d	79,	81-82	(1st	Cir.	2010).		The	court	noted	that	article	I,	section	20	of	

the	 Maine	 Constitution	 is	 an	 analogue	 to	 the	 Seventh	 Amendment	 of	 the	

United	 States	 Constitution,11	 and	 that	 because	 the	 anti-SLAPP	 statute	 “is	 a	

relatively	young	statute,	not	much	construed	by	the	state	courts,	.	.	.	there	is	no	

reason	 to	 think	 the	 state	 courts	 would	 construe	 [the	 statute]	 so	 as	 to	 be	

incompatible	 with	 the	 Seventh	 Amendment.”	 	 Id.	 at	 90	 n.18.	 	 However,	 the	

court	 did	 express	 concern	 that	 “to	 the	 extent	 it	 might	 be	 read	 to	 allow	 .	 .	 .	 a	

judge	 to	 resolve	 a	 disputed	 material	 issue	 of	 fact,	 [the	 statute]	 would	 then	

preclude	a	party	from	exercising	its	Seventh	Amendment	rights	to	trial	by	jury	

on	disputed	issues	of	material	fact.”		Id.			

	        [¶36]		The	United	States	District	Court	for	the	District	of	Massachusetts,	

remarking	 upon	 our	 holding	 in	 Nader	 I,	 stated	 that	 the	 “Supreme	 Judicial	


    11	 	 The	 United	 States	 Constitution	 guarantees	 citizens	 the	 right	 to	 a	 trial	 by	 jury.	 	 U.S.	 Const.	

amend.	 VII.	 	 This	 right	 extends	 to	 any	 action	 analogous	 to	 those	 for	 which	 individuals	 could	 seek	
relief	in	the	courts	at	common	law	in	1791.		See	Curtis	v.	Loether,	415	U.S.	189,	195-96	(1974);	see	
also	 Nat’l	 Labor	 Relations	 Bd.	 v.	 Jones	 &	 Laughlin	 Steel	 Corp.,	 301	 U.S.	 1,	 48	 (1937).	 	 The	 Seventh	
Amendment	 of	 the	 United	 States	 Constitution	 does	 not	 apply	 to	 the	 states.	 	 See,	 e.g.,	 Vallavanti	 v.	
Armour	&	Co.,	162	N.E.	689,	690	(Mass.	1928).	
                                                                                        27	

Court	of	Maine	got	it	right.”		Hi-Tech	Pharms.,	Inc.	v.	Cohen,	No.	16-10660-WGY,	

2016	 U.S.	 Dist.	 LEXIS	 130038,	 at	 *11	 (D.	 Mass.	 Sept.	 22,	 2016).	 	 The	 court	

reasoned	that	requiring	“more	than	a	prima	facie	showing	that	.	.	.	petitioning	

activities	 ha[ve]	 no	 reasonable	 basis	 in	 fact	 or	 law	 .	 .	 .	 would	 necessarily	

impinge	 on	 the	 parties’	 Seventh	 Amendment	 right	 to	 a	 jury	 trial,”	 because	 it	

“would	 require	 [the	 court]	 to	 make	 factual	 findings	 and	 credibility	

determinations	that	the	Constitution	reserves	to	a	properly	constituted	jury	of	

the	people.”		Id.	at	*11-12.		The	court	there	emphasized	that	if	it	were	required	

to	make	findings	by	a	preponderance	of	the	evidence,	it	would	have	to	“decide	

which	of	the	affidavits	submitted	by	the	parties	in	connection	with	the	special	

motion	to	dismiss	it	believed.”		Id.	at	*12.		“Such	findings	are	reserved	to	the	

fact-finder	and,	absent	the	parties’	waiver	of	their	right	to	a	trial	by	jury,	are	

not	 properly	 within	 the	 [c]ourt’s	 domain.”	 	 Id.	 	 Finally,	 the	 court	 noted	 that	

“[i]mposing	 a	 low	 bar	 on	 plaintiffs	 .	 .	 .	 also	 comports	 with	 the	 purpose	 of	

[anti-SLAPP]	 legislation,	 which	 is	 only	 to	 prevent	 meritless	 suits	 from	

imposing	significant	litigation	costs	and	chilling	protected	speech.”		Id.	at	*13	

(emphasis	and	quotation	marks	omitted).		

	      [¶37]	 	 Similarly,	 the	 Washington	 Supreme	 Court	 has	 held	 that	 an	

anti-SLAPP	statute	requiring	a	trial	judge	to	make	a	factual	determination	by	
28	

clear	and	convincing	evidence	of	the	probability	of	the	plaintiff	prevailing	on	

his	 or	 her	 claim	 is	 unconstitutional.	 	 Davis	 v.	 Cox,	 351	 P.3d	 862,	 873-74	

(Wash.	2015).		Because	such	a	statute	“creates	a	truncated	adjudication	of	the	

merits	 of	 a	 plaintiff’s	 claim,	 including	 nonfrivolous	 factual	 issues,	 without	 a	

trial,”	it	violates	the	right	to	trial	by	jury.12		Id.	at	874.			

	       [¶38]	 	 For	 the	 same	 reasons	 why	 the	 First	 Circuit	 expressed	 concern	

with	 our	 anti-SLAPP	 statute,	 the	 District	 of	 Massachusetts	 upheld	 a	

preliminary	prima	facie	showing	under	the	Massachusetts	anti-SLAPP	statute,	

and	 the	 Washington	 Supreme	 Court	 held	 the	 Washington	 anti-SLAPP	 statute	

to	 be	 unconstitutional,	 the	 new	 procedure	 the	 Court	 has	 created	 for	 our	

anti-SLAPP	 law	 is	 unconstitutional.	 	 Imposing	 an	 additional	 burden	 of	 proof	

upon	the	plaintiff,	to	prove	facts	by	a	preponderance	of	the	evidence,	requires	

that	the	trial	court	evaluate	evidentiary	issues	that	are	more	than	likely	to	be	

in	 dispute.	 	 The	 trial	 court	 will	 be	 forced	 to	 weigh	 evidence	 that,	 in	 the	

best-case	scenario,	has	been	developed	through	limited	discovery,	and	in	the	

worst-case	 scenario	 has	 been	 appropriated	 from	 the	 parties’	 filings	

surrounding	the	motion	to	dismiss.		The	former	instance	replaces	a	jury	with	a	

    12		The	court	noted	that	frivolous	litigation	and	sham	litigation	are	not	constitutionally	protected.		

Davis	v.	Cox,	351	P.3d	862,	873	(Wash.	2015)	(citing	Bill	Johnson’s	Rests.	v.	Nat’l	Labor	Relations	Bd.,	
461	 U.S.	 731,	 743	 (1983);	 BE&K	 Constr.	 Co.	 v.	 Nat’l	 Labor	 Relations	 Bd.,	 536	 U.S.	 516,	 524-26	
(2002)).	
                                                                                     29	

judge	 relying	 upon	 a	 scanty	 factual	 record,	 and	 the	 latter	 replaces	 the	 jury	

with	a	judge	relying	upon	possibly	as	little	as	the	motions	themselves.			

      [¶39]		For	the	above	reasons,	the	Court’s	invented	procedure	abrogates	

litigants’	rights	of	access	to	justice	and	the	right	to	a	jury	trial	on	what	could	

be	meritorious	factual	disputes.	

C.	   Nader	I	

	     [¶40]		Since	2012,	we	have	applied	a	burden	of	proof	that	complies	with	

the	 plain	 meaning	 of	 the	 anti-SLAPP	 statute,	 the	 legislative	 intent	 of	 the	

statute,	 and	 our	 Constitution.	 	 In	 Nader	 I,	 we	 recognized	 that	 the	 “converse	

summary-judgment-like	standard”	developed	in	Morse	Brothers,	2001	ME	70,	

772	A.2d	 842,	 and	 applied	 in	 Maietta	 Construction,	 2004	 ME	 53,	 847	 A.2d	

1169,	“burden[ed]	the	constitutional	rights	at	issue”	when	assessing	a	section	

556	 special	 motion	 to	 dismiss.	 	 2012	 ME	 57,	 ¶¶	32-33,	 41	 A.3d	 551.	 	 We	

therefore	 held	 that	 section	 556	 “requires	 only	 that	 the	 nonmoving	 party	

provide	 prima	 facie	 evidence	 to	 support	 its	 burden	 of	 showing	 that	 the	

moving	 party’s	 petitioning	 activity	 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.’”		Id.	¶	33	(quoting	14	M.R.S.	§	556).		We	

stated	that	“a	nonmoving	party’s	action	or	claim	should	be	allowed	to	proceed	
30	

unless	the	nonmoving	party	.	.	.	by	pleading	or	affidavits,	fails	to	make	a	prima	

facie	 showing	 that	 any,	 rather	 than	 all,	 of	 the	 petitioning	 activities	 .	 .	 .	 were	

devoid	of	any	reasonable	factual	support	or	arguable	basis	in	law.”		Id.	¶	36.			

	       [¶41]		The	prima	facie	showing	that	we	established	in	Nader	I	avoided	

the	constitutional	impediments	that	the	Court’s	newly-established	procedure	

creates.	 	 We	 recognized	 in	 Nader	 I	 that	 the	 statute	 was	 not	 intended	 as	 a	

substantive	 abrogation	 of	 common	 law	 causes	 of	 action,	 rather,	 it	 was	 a	

procedural	 mechanism	 to	 be	 treated	 like	 other	 dispositive	 motions.	 	 See	 id.	

¶	30.	 	 The	 Legislature	 retains	 the	 power	 to	 determine	 which	 types	 of	 claims	

are	available	in	court	by	limiting	or	even	abolishing	common	law	tort	claims	

and	causes	of	action.13		See	Peters	v.	Saft,	597	A.2d	50,	52-54	(Me.	1991);	Curtis	

v.	Lehigh	Footwear,	Inc.,	516	A.2d	558,	560	(Me.	1986).		But	any	subrogation	

by	the	Legislature	of	a	common	law	cause	of	action	needs	to	be	clearly	stated	

on	the	face	of	the	statute.		See	State	Farm	Mut.	Auto.	Ins.	Co.	v.	Koshy,	2010	ME	

44,	¶	34,	995	A.2d	651	(“We	will	not	interpret	an	ambiguous	statute	to	be	in	

derogation	 of	 the	 common	 law	 unless	 the	 Legislature	 clearly	 expressed	 the	

intent	 to	 diverge	 from	 the	 common	 law	 by	 the	 clear	 and	 unambiguous	


    13		The	Legislature	has	acted	to	abolish	causes	of	action	in	other	contexts,	such	as	alienation	of	

affection	 claims,	 14	 M.R.S.	 §	 301	 (2016),	 and	 claims	 relating	 to	 recreational	 use	 of	 land,	 14	 M.R.S.	
§	159-A	(2016).	
                                                                                                                31	

language	of	the	statute	or	by	necessary	implication.”)		The	Legislature	did	not	

do	 so	 here.	 	 Maine’s	 anti-SLAPP	 statute	 is	 a	 procedural	 mechanism	 not	

intended	to	substantively	affect	any	existing	common	law	cause	of	action.		See	

Bradbury	 v.	 City	 of	 Eastport,	 2013	 ME	 72,	 ¶	 9,	 72	 A.3d	 512	 (“The	 purpose	 of	

the	 anti-SLAPP	 statute	 and	 the	 special	 motion	 to	 dismiss	 is	 to	 provide	 a	

procedural	mechanism	to	dispose	of	baseless	lawsuits	that	are	brought	not	to	

vindicate	 the	 plaintiff’s	 rights	 but	 to	 punish	 the	 defendant	 .	.	.	.”	 (quotation	

marks	omitted)).	

        [¶42]	 	 The	 holding	 in	 Nader	 I	 was	 “consistent	 with	 usual	

motion-to-dismiss	             practice,”	       specifically	        because—unlike	              the	      new	

procedure—it	 permitted	 the	 trial	 court	 “to	 infer	 that	 the	 allegations	 in	 a	

plaintiff’s	 complaint	 and	 factual	 statements	 in	 any	 affidavits	 responding	 to	 a	

special	motion	to	dismiss	are	true.”		Nader	I,	2012	ME	57,	¶	33,	41	A.3d	551.		

That	was,	and	continues	to	be,	the	correct	approach.		Justice	Silver,	writing	in	

concurrence	 in	 that	 case,	 noted	 that	 “the	 Court	 must	 continue	 to	 view	 this	

statute	as	a	procedural	mechanism	consistent	with	other	dispositive	motions	

rather	 than	 as	 a	 substantive	 burden	 on	 a	 plaintiff’s	 ability	 to	 bring	 a	 valid	

cause	of	action.”14		Id.	¶	40	(Silver,	J.,	concurring).		In	creating	an	extra	step	not	


   14	 	 “[N]ot	 only	 has	 this	 statute	 been	 used	 by	 different	 parties	 than	 those	 intended,	 but	 it	 has	

served	an	entirely	different	purpose	than	the	one	intended.		The	‘Goliath’	who	abuses	other	forms	
32	

called	for	by	the	statute,	there	is	an	increased	danger	of	the	statute	preventing	

otherwise	 meritorious	 cases	 from	 reaching	 a	 jury.	 	 Under	 the	 Court’s	 new	

procedure,	legitimate,	meritorious	claims	brought	in	good	faith	may	be	barred	

regardless	of	whether	a	plaintiff	would	be	able	to	meet	his	or	her	burden	on	a	

motion	to	dismiss	or	a	motion	for	summary	judgment	that	would	be	brought	

during	the	regular	course	of	a	lawsuit.	

        [¶43]	 	 As	 applied	 in	 this	 case,	 the	 application	 of	 the	 Court’s	 new	

requirement	 of	 an	 evidentiary	 hearing	 substantially	 affects	 a	 traditional	

common	law	cause	of	action:	defamation.		The	facts	in	this	case	would	survive	

a	 motion	 for	 summary	 judgment	 by	 the	 defendant,	 where	 Gaudette	 would	

benefit	from	all	favorable	inferences	and	all	disputed	issues	of	fact	would	be	

left	to	the	determination	of	the	jury.		See	M.R.	Civ.	P.	56.		However,	under	this	

new	 fact-finding	 procedure,	 a	 judge	 could	 dismiss	 the	 action	 upon	 a	 factual	

determination	 made	 by	 a	 preponderance	 of	 the	 evidence,	 despite	 Gaudette	

disputing	those	facts.		

        [¶44]	 	 Requiring	 plaintiffs	 to	 prove	 the	 statutory	 elements	 by	 a	

preponderance	 of	 the	 evidence	 in	 an	 evidentiary	 hearing	 imposes	 a	

of	petitioning	to	harass	‘David’	has	now	adopted	the	special	motion	to	dismiss	as	another	obstacle	
to	 throw	 in	 David's	 path	 when	 he	 legitimately	 seeks	 to	 petition	 the	 court	 for	 redress.”	 	 Nader	 v.	
Me.	Democratic	Party	 (Nader	 I),	2012	ME	57,	¶	45,	41	A.3d	551	(Silver,	J.,	concurring)	(explaining	
that	 the	 anti-SLAPP	 statute	 has	 “rarely,	 if	 ever,”	 been	 used	 to	 combat	 the	 types	 of	 meritless	
litigation	it	was	intended	to	combat).	
                                                                                        33	

substantive	burden	that	goes	beyond	what	the	Court	contemplated	in	Nader	I.		

This	 new	 procedure	 burdens	 the	 right	 of	 access	 to	 the	 courts	 guaranteed	 by	

the	 Maine	 Constitution,	 and	 violates	 a	 litigant’s	 constitutional	 right	 to	 a	 jury	

trial.		See	Me.	Const.	art.	I,	§§	19-20.	

         [¶45]	 	 For	 these	 reasons	 I	 disagree	 with	 the	 Court’s	 holding	 and	 the	

imposition	of	a	new	procedural	step	for	trial	courts	to	undertake	when	faced	

with	a	special	motion	to	dismiss	pursuant	to	Maine’s	anti-SLAPP	statute.		The	

significant	changes	made	to	Maine’s	anti-SLAPP	statute	by	the	Court’s	decision	

should	be	left	to	the	Maine	Legislature.	

         [¶46]		I	respectfully	dissent.	

	        	        	         	   	   	

George	 T.	 Dilworth,	 Esq.	 (orally),	 and	 Amy	 K.	 Olfene,	 Esq.,	 Drummond	
Woodsum,	Portland,	for	appellant	Terry	M.	Davis	
	
Gene	R.	Libby,	Esq.,	Tyler	J.	Smith,	Esq.	(orally),	and	Tara	A.	Rich,	Esq.,	Libby	
O’Brien	Kingsley	&	Champion	LLC,	Kennebunk,	for	appellee	Norman	Gaudette	
	
	
York	County	Superior	Court	docket	number	CV-2015-97	
FOR	CLERK	REFERENCE	ONLY	
	
