Nader v. Maine Democratic Party

SILVER, J.,

with whom JABAR, J., joins,

concurring.

[¶ 40] I concur in the result reached by the majority in this case, and with the Court’s decision to reallocate and lower the burdens applicable in anti-SLAPP cases in order to restore balance to the competing constitutional rights implicated by this statute. I write separately because Maine’s anti-SLAPP statute raises serious concerns regarding the right to equal protection under the law, to petition the gov *564 ernment for redress of grievances, and to open courts. I also write to express my belief that in order to avoid the potentially fatal constitutional implications of the statute as written, 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 plaintiffs ability to bring a valid cause of action.

[¶41] We have long interpreted the “open courts” provision of the Maine Constitution to guarantee a right of access to the courts “to all persons alike without discrimination,” limited only by the Legislature’s “reasonable procedural requirements for exercising the right to an adjudication.” Godbout v. WLB Holding, Inc., 2010 ME 46, ¶¶ 6-7 , 997 A.2d 92 (emphasis added). We have held that statutes of limitation, e.g., id. ¶¶ 7-8, and medical malpractice screening panels, Irish v. Gimbel, 1997 ME 50, ¶ 18 , 691 A.2d 664 , are the type of reasonable, constitutionally-permissible procedural limitations on a plaintiffs ability to bring a cause of action. Procedural mechanisms are designed to weed out meritless claims or lawsuits and prevent stale claims from being brought.

[¶42] The special motion to dismiss created by the anti-SLAPP statute is intended to do the same thing: to dispose of baseless lawsuits that are brought not to vindicate the plaintiffs rights but to punish the defendant for exercising her constitutional right to petition the government, and to do so at an early stage before the defendant incurs great expense. See Maietta Constr., Inc. v. Wainwright, 2004 ME 53, ¶ 6 , 847 A.2d 1169 . California was one of the first states to enact modern anti-SLAPP legislation, and it did so in response to a growing trend of deep-pocketed developers effectively silencing public opposition to development projects with the threat or pursuit of resource-draining but ultimately baseless litigation. See generally Dixon v. Superior Court, 30 Cal.App.4th 733, 741 , 36 Cal.Rptr.2d 687 (Cal.Ct.App.1994).

[¶ 43] Maine adopted the Maine Health Security Act (MHSA), 24 M.R.S. §§ 2501-2987 (2011), for a similar reason. A “national crisis” in the availability and cost of medical malpractice insurance was occurring, which had caused an increase in medical malpractice insurance rates in Maine. Saunders v. Tisher, 2006 ME 94, ¶ 15 , 902 A.2d 830 (quoting Butler v. Killoran, 1998 ME 147, ¶¶ 9-10 , 714 A.2d 129 ). The Legislature appointed a commission to develop “a more equitable system of relief for malpractice claims,” and the screening panels were created as part of this system. Id. They are designed as a procedural mechanism that screens out and deters meritless malpractice claims and encourages pretrial settlement. See 24 M.R.S. § 2851; Irish, 1997 ME 50, ¶ 13 , 691 A.2d 664 . As a deterrent to baseless litigation, the statute also requires admission of panel findings at trial when the panel unanimously determines that a plaintiff or defendant possesses a meritless claim or defense. 24 M.R.S. § 2857; Irish, 1997 ME 50, ¶ 13 , 691 A.2d 664 . Although medical malpractice plaintiffs have challenged this statute as a violation of the equal protection clause, we have upheld this statute as a procedure that is rationally related to a legitimate state interest. See Irish, 1997 ME 50, ¶ 19 , 691 A.2d 664 .

[¶44] Although the anti-SLAPP statute seeks to serve the same purpose as the MHSA, it differs significantly in two very important ways. First, the Legislature did not identify the existence of any crisis in Maine to justify imposing an additional burden on a certain class of plaintiffs. Our Legislature was silent as to its reasons for adopting Maine’s anti-SLAPP statute, in contrast to its clear articulation *565 of the need for the MHSA and its reasons for adopting that statute. Cf. Saunders, 2006 ME 94, ¶ 15 , 902 A.2d 830 (noting that the legislative history of the MHSA is “well documented” and describing the specific need for it in Maine).

[¶ 45] The lack of a need for this statute in Maine is evidenced by the fact that it has rarely, if ever, been invoked by a citizen group or individual private citizens who seek to avail themselves of the protections of the statute against a resource-draining lawsuit. Instead, the statute has consistently been used between parties such as business partners, see DeSimone v. MacQuinn-Tweedie, 2003 WL 21018852 , 2003 Me.Super. LEXIS 56 (Mar. 24, 2003); employers and employees, see Clemetson v. Sweetser, Inc., 2011 Me.Super. LEXIS 217 (Nov. 4, 2011); and divorcing spouses, see, e.g., Pylypenko v. Copp, 2011 WL 1338088 , 2011 Me.Super. LEXIS 13 (Feb. 23, 2011). The only time the statute has been invoked in Maine by the type of parties for whom it was intended, the Superior Court dismissed the claims of a group of citizens who challenged statements made by various gas company representatives before governmental entities, which the citizens alleged were known by the company to be false. See Millett v. Atlantic Richfield Co., 1999 Me.Super. LEXIS 240, *8-*9 (Aug. 30, 1999) (noting that “[t]he plain language of the statute does not limit its application to certain classes of defendants” and that defendants’ motive “in exercising their right to petition is irrelevant to whether their exercise is protected”). Therefore, not 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 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. See CaLCode Civ. Proc. § 425.17 (2003) (shielding public interest plaintiffs from the special motion due to “disturbing abuse” of the anti-SLAPP statute).

[¶ 46] The second way the anti-SLAPP statute differs from the MHSA is that the statute’s plain language “substantively alters the type of harm actionable — that is, plaintiff must show the defendant’s conduct resulted in actual injury to the plaintiff.” Godin v. Schencks, 629 F.3d 79, 89 (1st Cir.2010) (quotation marks omitted). Unlike our interpretation of the MHSA, our interpretation of the “actual injury” prong has amplified the substantive nature of this requirement. In Schelling v. Lindell, 2008 ME 59 , 942 A.2d 1226 , for example, the Court required the plaintiff to prove that she had suffered compensable emotional injury in order to survive the anti-SLAPP special motion to dismiss. Id. ¶¶ 16-20. Had the plaintiffs cause of action for defamation been based on something other than the defendant’s petitioning activity, damages would have been presumed and the plaintiff would not have been required to prove actual injury in order to survive a dispositive motion. The Court was compelled to dismiss the complaint, despite the claim being otherwise valid, brought in good faith, and capable of succeeding, because the plaintiff could not demonstrate “actual injury” as required by the anti-SLAPP statute. Id. ¶ 27; see also Maietta Constr., 2004 ME 53, ¶¶ 9-10 , 847 A.2d 1169 (rejecting plaintiffs assertion that damages per se constitute actual damages).

[¶ 47] Clearly, the statute is capable of functioning as more than a procedural barrier to test the validity or likelihood of success of a potentially meritless cause of action. Because of the way the statute has been misused with respect to its intended purpose, treating it as a substantive abro-

*566 gation of common law claims has become very problematic; it serves to bar legitimate, valid claims that are brought by plaintiffs in good faith, regardless of whether a plaintiff would be able to meet her burden on a motion to dismiss or for summary judgment. While the Legislature may have the authority to do so, there is no indication that it intended to do so. See State Farm Mut. Auto. Ins. Co. v. Koshy, 2010 ME 44, ¶ 34 , 995 A.2d 651 (stating that an ambiguous statute will only be read in derogation of the common law if the legislative history demonstrates the Legislature’s intent to do so). There is no need, then, for the statute to be interpreted in this way. Given that the statute is meant to protect the party who is validly exercising his right to petition, it is inconsistent with the Legislature’s intent to interpret this statute in a way that enables it to be used against the very parties it was designed to protect. See Rich v. Dep’t of Marine Res., 2010 ME 41, ¶ 7 , 994 A.2d 815 (“Our primary purpose in interpreting a statute is to give effect to the intent of the Legislature.” (quotation marks omitted)).

[¶ 48] More importantly, abrogating common law causes of action only for certain plaintiffs — plaintiffs who seek to challenge certain activities — presents a serious constitutional issue. Interpreting the statute to subject certain plaintiffs to an evi-dentiary burden that is higher than that borne by other similarly-situated plaintiffs invites violations of plaintiffs’ rights to equal protection of the law pursuant to article 1, section 6-A of the Maine Constitution. A plaintiff with a cause of action for defamation, for example, is deprived of her right to petition the court for redress only when the action that caused her injury was a form of petitioning, even sham petitioning. This amounts to a distinction among and differing treatment of identical plaintiffs with identical harms and causes of action. When one plaintiff is able to pursue her cause of action and the other is not, equal protection of the law is implicated.

[¶ 49] Our reasoning in defense of the MHSA does not apply here. We have upheld that statute on the basis that a plaintiff does not have a fundamental right to bring a particular cause of action. See Irish, 1997 ME 50, ¶ 19 , 691 A.2d 664 ; Choroszy v. Tso, 647 A.2d 803, 808 (Me.1994); Me. Med. Ctr. v. Cote, 577 A.2d 1173, 1177 (Me.1990). Accordingly, enacting a procedure to which only medical malpractice plaintiffs are subjected does not violate equal protection because doing so is rationally related to a legitimate state interest. Irish, 1997 ME 50, ¶ 19 , 691 A.2d 664 . The anti-SLAPP statute, in contrast, does implicate fundamental rights, Majority Opinion ¶¶ 21, 24 (noting that the right to petition and the right of access to the courts are fundamental rights), and curtailing those rights is not justified by the compelling need that supported enactment of the MHSA. The anti-SLAPP statute also distinguishes between plaintiffs with identical causes of action, which was not a concern pursuant to the MHSA. Hence, the anti-SLAPP statute is more problematic and less defensible than the MHSA in terms of equal protection.

[¶ 50] In addition, interpreting the statute to create an additional, substantive burden that authorizes the dismissal of legitimate causes of action brought in good faith may deprive plaintiffs of their fundamental rights of access to the courts and to petition the government for redress guaranteed by the United States Constitution. See Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156 , 691 N.E.2d 935, 943 (1998) (“By protecting one party’s exercise of its right to petition, unless it can be shown to be sham petitioning, the statute impinges on the adverse party’s exercise of *567 its right to petition, even when it is not engaged in sham petitioning.”). The imposition of a substantive, rather than a procedural, burden also appears to violate the open courts provision of the Maine Constitution. See Me. Const. art. I, § 19; cf. Godbout, 2010 ME 46, ¶¶ 6-7 , 997 A.2d 92 .

[¶ 51] The Court is forced to walk a precarious line when the Legislature attempts to protect the fundamental constitutional rights of some parties by limiting the same rights of other parties. I share the view of the Massachusetts Appeals Court that “literal application of the statutory test and procedure ... create[s] grave constitutional problems where, as here, the plaintiffs action asserts a legitimate, cognizable claim.” Duracraft, 691 N.E.2d at 943 n. 19 (quotation marks omitted). However well-intentioned, the approach of the statute is confounding and ill-suited to its purpose. 15 The analytic acrobatics necessary here to reconcile the Constitution with the language of the statute and with our previous interpretations of it indicates that, as written, this statute presents serious constitutional questions.

[¶ 52] I commend the Court’s painstaking effort to strike the appropriate balance in this case and I believe that it has achieved the right result. I find it necessary to emphasize, however, that the only way to avoid the constitutional implications of this statute is to continue to treat the special motion to dismiss as a procedural, dispositive motion, as the Court has done in this case.

. Twenty-nine states currently have anti-SLAPP legislation, but just three other states — Massachusetts, Arizona, and Vermont — have statutes similar to Maine's. Anti-SLAPP statutes in nine states — Arkansas, California, Delaware, Florida, Georgia, Hawaii, Louisiana, New York, and Oregon — directly address the merit of the plaintiff's claim. See Public Participation Project, State Anti-SLAPP Laws, http://www.anti-slapp.org/ your-states-free-speech-protection (last visited April 9, 2012).