The opinion
STATE OF MAINE SUPERIOR COURT
YORK, SS. CIVIL ACTION
DOCKET NO. CV-15-97
NORMAN GAUDETTE,
Plaintiff,
v. ORDER
TERRY DAVIS,
Defendant.
L Background
A. Procedural Posture
Plaintiff Norman Gaudette filed this action against Defendant Terry Davis
bringing various claims arising out of alleged defamatory statements. Before the court is
the deftmdant's special motion to dismiss Gaudette's claims under Maine's anti-Strategic
Lawsuits Against Public Participation ("SLAPP") statute.
B. Facts
The following facts are drawn from the complaint and affidavits filed by the
parties in conjunction with the special motion to dismiss procedure.
Norman Gaudette and Terry Davis are both former officers at the Biddeford
Police Department. Gaudette supervised Davis. In the early 1990s, allegations surfaced
that Gaudette had sexually abused young boys, prompting an internal investigation by the
Biddeford P.D. Davis personally interviewed Larry Ouellette, one of the alleged victims
who accused Gaudette. The Attorney General's Office conducted a separate
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investigation. The investigations did not ultimately result in criminal charges or
employment consequences for Gaudette. Evidence collected during the investigations
was presented to a grand jury, but the grand jury returned a no bill. The allegations and
investigations have recently been the subject of significant public, political, and media
attention.
When Davis learned about recent renewed public and media attention to the
allegations and investigation, Davis reached out to Matthew Lauzon, an alleged victim of
sexual abuse at the hands of other former Biddeford P.D. officers. Davis provided Lauzon
with a letter ("the Letter") to read aloud at a public hearing held on the matter by State
Senator David Dutremble.
Around the time of the Dutremble hearing, the media contacted Davis seeking
further comment. Davis agreed to be interviewed by Ben Miek:lejohn, a reporter for the
Biddeford-Saco-OOB Courier ("the Article"). The Article, titled "Blowing the Whistle: A
former BPD detective says the AG's office purposely [sic] threw a case against former
police captain," appeared in the paper on May 14, 2015. Mieklejohn authored the Article
and quoted Davis extensively. The alleged defamatory statements concern assertions by
Davis that Eric Wright of the Attorney General's Office "threw" the Gaudette
investigation and intentionally failed to rigorously pursue the allegations. The specific
statements highlighted by Gaudette include the following:
'"Obviously it was all thrown under the rug. It was obviously worked out
with Gene Libby and the attorney general."
"[T]hen all of a sudden appears Gene Libby walking with Gaudette and
his wife ... and they walked right into the jury room and closed the door."
"It was one big staged play."
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"Davis said numerous detectives became involved in an investigation that
yielded nearly a dozen people who were potential victims of Gaudette."
"We came up with numerous names. We interviewed people and ended up
spitting names ... Collectively, we came up with about a dozen names."
"After culling through nearly a dozen alleged victims, Davis said he
believes a total of eight to [ten) names were generated as witnesses could
testify about alleged abuse by Gaudette."
"That Assistant Attorney General Eric Wright 'continuously apologized
for what he had just done [in the grand jury proceedings]' and that 'Eric
Wright said he admits that he purposely [sic) threw the case under the bus
to the grand jury ... [h]e continuously apologized."'
"That Attorney General Wright had alluded that 'he didn't want to, but he
got it from higher up.'"
(Pl.'s Compl. ~ 13.)
The statements made by Davis in the Letter echo the above, and further detail
Gaudette's alleged conduct and grand jury proceedings with Eric Wright:
"Both investigations identified numerous boys and young men who have
alleged sexual abuse at the hands of Captain Gaudette. It also alleged that
Captain Gaudette had furnished alcohol and drugs to more than one of the
alleged victims."
''AAG Wright had made numerous comments to investigators that he
wasn't crazy about having to go to Biddeford and deal with the Gaudette
case. He felt the City of Biddeford had enough evidence against Gaudette
to hold an administrative hearing to terminate him for conduct
unbecoming and other reasons."
'''Almost immediately after being sworn in [to the grand jury proceeding]
AAG Wright began a verbal assault and humiliation of Detective Davis.
He not only didn't ask any of the questions ... instead he brought up the
fact that Detective Davis's father had committed suicide years earlier from
accusations that he had allegedly touched a girl inappropriately and was
£:tcing charges."
"Detective Davis was excused [from the witness stand] shortly after AAG
Vvright's unethical, unprofessional bashing and blindsiding of Detective
Davis."
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"As they [Detective Davis and Detective Gagne] were talking outsid~ the
jury room, Captain Gaudette, his wife, and his attome~, Gene .L1bby,
arrived and went into the jury room apparently to testlfy on his own
behalf."
"That Assistant Attorney General Wright 'admitted to the detectives that
he did knowingly and purposefully threw the case under the rug, which
was the grand jury case of Captain Gaudette, which started with Larry
Ouellette's allegations of Detective Davis.'"
(Pl.'s Compl. ~ 23.) According to Gaudette, the Letter also falsely states that (1) none of
the alleged victims were called to testify at the grand jury proceeding, (2) AAG Wright
appeared at the Biddeford Police Station following the grand jury and was told to leave
by Davis, and (3) AAG Wright requested a meeting with the detectives at the Happy
Dragon Restaurant, where he admitted to purposefully having "thrown" the case,
apologized, and "may have stated that it came from 'higher ups."' (Id. ~ 24.)
D. Discussion
Defendant has filed a special motion to dismiss under Maine's anti-Strategic
Lawsuits Against Public Participation ("SLAPP") statute. The statute provides:
'When a moving party asserts that the civil claims, counterclaims or cross
elaims 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.
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14 M.R.S. § 556. "The anti-SLAPP statute is designed to allow a defendant to file a
special motion to dismiss a lawsuit that a plaintiff brings with the intention of chilling or
deterring the free exercise of the defendant's First Amendment right to petition the
govemment by threatening would-be activists with litigation costs." Nader v. Me.
Democratic Party, 2012 ME 57,~ 14,41 A.3d 551 (internal citation omitted).
Reviewing a special motion to dismiss under the anti-SLAPP statute follows a
two-step analysis. The court must first determine whether the statute applies. The party
moving to dismiss "carries the initial burden to show that the suit was based on some
activity that would qualify as an exercise of the defendant's First Amendment right to
petition the government." Nader, 2012 ME 57,~ 15, 41 A.3d 551. Ifthe movant carries
this burden, the court proceeds to the second step. At this step, the burden shifts to the
non-moving party "to establish, through pleadings and affidavits, that the moving party's
exercise of its right of petition (1) was 'devoid of any reasonable factual support or any
arguable basis in law,' and (2) 'caused actual injury' to the nonmoving party." /d. ~ 16
(citations omitted).
A. The First Step: Whether Statute Applies
Davis contends that all the speech complained of by Gaudette is petitioning
activity within the meaning of the statute, which defines "a party's exercise of its right of
petition"' as follows:
[A]ny 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
n::asonably likely to enlist public participation in an effort to effect such
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consideration; or any other statement falling within constitutional
protection of the right to petition government.
14 M.R.S. § 556. The Law Court has noted the "very broad terms" chosen by the
Legislature evidencing intent to cover an array of activities; the Court has accordingly
constmed the statute "liberally" in determining whether statements constitute petitioning
activity. Schelling v. Lindell, 2008 ME 59, ~ 12, 942 A.2d 1226.
Davis explains that he allowed Lauzon to read the Letter at the Dutremble hearing
in part "because I wanted the public and government officials to know that what had
happened with those allegations was not right and that the Biddeford Police Department
and Attorney General's Office had not handled the investigation correctly ... I also
believe that the city and state officials should know what happened so they make sure it
doesn't happen again." (Davis Aff. ~ 11.) Davis also gave Lauzon permission to share the
Letter with Governor LePage. (Id. ~ 12.) When Davis was contacted by the Saco-
Biddeford-GOB Courier, he agreed to the Meiklejohn interview for largely the same
reasons and additionally because individuals implicated in the prior investigation remain
employc~d at the Biddeford P.D. (Id. ~ 15.)
Davis's statements clearly fit within the broad definition of petitioning activity.
The Letter was read at a forum held by a State Senator in an effort to encourage
consideration or review of any potential mishandling of sexual abuse allegations by
public employees and officials. The statements contained in the Article were similarly
made as part of an effort to criticize the handling of the investigation by the Biddeford
P.D., and thus encourage review or consideration of current leadership at the Department.
Davis's statements thus fit easily within "any statement reasonably likely to encourage
consideration or review of an issue by a legislative, executive or judicial body, or any
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other governmental proceeding; any statement reasonably likely to enlist public
participation in an effort to effect such consideration." 14 M.R.S. § 556.
Gaudette contends the statute should not apply in this case, notwithstanding its
otherwise broad applicability. He argues that even if the statements qualified generally as
petitioning activity, Davis was not petitioning on his own behalf, and not all of the claims
brought in the amended complaint are based on those petitioning activities.
In Warren v. Preti, Flaherty, Beliveau & Pachios, LLC, the Superior Court
(Horton, J.) held that in light of the similarities between the Maine and Massachusetts
constitutions, the Law Court would likely follow Massachusetts case law limiting the
application of anti-SLAPP to statements made in furtherance of the moving party's right
to petition. No. CV-11-28, 2012 Me. Super. LEXIS 89, *63 (Mar. 12, 2012). Justice
Horton concluded the anti-SLAPP statute did not apply in Warren largely because the
moving party failed to identify or articulate a specific issue that the movant was
affirmatively attempting to influence or enlist public participation to urge government to
consider. Warren, 2012 Me. Super. LEXIS 89, at *64-66.
Warren is distinguishable on the facts 1 because Davis has identified a specific
issue and carried his burden on step one. Gaudette would seemingly require Davis to
have been the direct subject of sexual abuse in order for the statements to be in
furtherance of his own rights or have made all the statements to be made by him directly
to be considered protected petitioning activity. Neither the plain language of the statute
nor Maine case law interpreting it compels such a narrow construction, particularly not in
the pres€::nt case. See Maietta Constr., Inc. v. Wainwright, 2004 ME 53, ~ 7, 847 A.2d
1
The court therefore need not reach whether the Law Court would follow prevailing
Massachusetts case law adopted by Justice Horton.
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1169 (stating attorney's statements to the media on behalf of their client "clearly
amount[ ed] to petitioning activity").
Davis made the statements in an effort to bring attention to the investigation that
he believed was. inadequate, to revive consideration of the issue of sexual abuse by
former officers at Biddeford P.D., and to enlist public support to evaluate the leadership
at the Department implicated in the investigation. Davis was directly involved in the
investigation and made the statements with the understanding and intent that the
statements he made in the Letter and the Article would be presented in the public sphere
through the media and to government officials at the Dutremble hearing. The court thus
concludes that Davis has met his burden to establish he engaged in "some activity that
would qualify as an exercise of the defendant's First Amendment right to petition the
government," and will proceed to the second step of the analysis. Nader, 2012 ME 57,~
15, 41 A.3d 551.
B. Whether Petitioning Activity Was Devoid of Factual Support
At the second step, the burden shifts to the non-moving party, Gaudette, "to
establish, through pleadings and affidavits, that the moving party's exercise of its right of
petition (1) was 'devoid of any reasonable factual support or any arguable basis in law,'
and (2) 'caused actual injury' to the nonmoving party." Nader, 2012 ME 57, ~ 16, 41
A.3d 551 (citations omitted). There seems to be no dispute as to whether Gaudette has
carried his burden on the second prong for the purposes of this motion. 2 This second step
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Gaudette has detailed actual injuries he alleges he suffered as a result of Davis's statements,
including lost income and physical and mental injuries caused by loss of appetite, sleeplessness,
and stress. (Gaudette Aff. ,, 22-26.) Davis does not contest Gaudette's showing of actual injury,
but focusc~s arguments on the first prong: whether the statements lacked any reasonable factual
basis. The court concludes Gaudette's uncontested prima facie showing of actual injury recited in
the affidavit is sufficient to meet the second prong.
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therefo turns upon whether Gaudette puts forth prima facie evidence that any single one
of Dav s's petitioning statements lacked reasonable factual support. See Nader v. Me.
Democ tic Party, 2013 ME 51,~ 26, 66 A.3d 571 (requiring nonmovant show "at least
one of e moving party's petitioning activities was 'devoid of any reasonable factual
supp01t
udette carries this burden. The complaint, read together with the affidavits
submitt d by Gaudette and former Assistant Attorney General Eric Wright pinpoint
several tatements Davis made in the Letter and that appeared in the Article that Gaudette
and Wri ht identify as false. Specifically, the Wright affidavit avers the claim that AG
investig tion and grand jury proceeding was deliberately thrown and Wright openly
acknowl dged this fact at the time is "totally false." (Wright Aff ~ 14.) Gaudette has thus
some evidence of a sufficient quality to allow a fact-finder to infer that some of
etitioning activity lacked a reasonable factual basis. The court makes no
determin tion as to the truth or weight of the competing narration of events by the parties,
ot at this stage. See Nader, 2012 ME 57,~~ 35, 52, 41 A.3d 551 ("Even when
conflicting evidence from a defendant, a plaintiff able to meet this 'low
could avoid dismissal of his or her claim.") Because Gaudette satisfies his
prima fa ie evidentiary burden on the second step, the defendant's special motion to
B sed on the foregoing, the court concludes that the plaintiff has presented prima
facie evid nee that at least some of the petitioning statements made by the defendant
lacked a r asonable factual basis. The special motion to dismiss is therefore denied.
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The cle k shall make the following entry on the docket:
The De endant's special motion to dismiss is hereby DENIED.
sao
DATE: October~ 2015
John O'Neil, Jr.
Justice, Superior Court
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CV-2015- 23
ATTORN YS FOR PLAINTIFF:
GENELI BY
TARARI H
LIBBY 0 BRIEN KINGSLEY & CHAMPION
62 PORT AND RD. SUITE 17
KENNEB K ME 04043
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