Law Court invites amicus briefs on anti-SLAPP suits

Date: 4/30/2021

The Maine Supreme Judicial Court, sitting as the Law Court, invites briefs of amici curiae on one or more issues presented in the appeal of John Thurlow v. Zakia Nelson et al., Law Court docket number Cum-20-63, which involves the application of 14 M.R.S. § 556, Maine’s “anti-SLAPP” statute.

Section 556 was enacted by the Legislature in 1995 to allow for the dismissal of Strategic Lawsuits Against Public Participation (“SLAPPs”). Since section 556’s enactment, the Court has struggled with how to apply the statute in a manner that recognizes and protects the rights of parties to petition their government and balances those rights with the rights of access to the courts for parties who claim to have been harmed by the petitioning activity. This struggle has resulted in “changing pronouncements,” Gaudette v. Davis, 2017 ME 86, ¶ 7, 160 A.3d 1190, and additional procedural components that, although not specifically prohibited, are not found within the language of the statute. Gaudette at ¶ 22.

Thurlow will be argued in July. Before we determine whether to issue any further “changing pronouncements,” we seek input from interested persons and entities and members of the Bar on the following questions, which may be within the scope of the issues raised on this appeal:

  1. Should 14 M.R.S. § 556 be declared unconstitutional because there is no effective way to preserve the non-moving partys right to a jury trial given that a special motion to dismiss may be granted based on pretrial factual determinations made by the court?
  2. Should the Court limit the definition of petitioning activity to petitions or statements submitted to legislative, executive or judicial bodies involved in the determination or adjudication of zoning or other land development disputes, see, e.g. Morse Bros. Inc. v. Webster, 2001 ME 70, ¶ 10, 772 A.2d 842?
  3. Should the Court adopt a process similar to that adopted by the Massachusetts Supreme Judicial Court in Blanchard v. Steward Carney Hospital, 75 N.E. 3d 21 (Mass 2017) to allow the non-moving party to avoid dismissal by establishing that the suit is not a SLAPP suit?
  4. Should the Court abandon its recent attempt to balance the rights to petition and for access to the courts through the three-step process defined in Gaudette and revert to the two-step process announced in Nader v. Maine Democratic Party, 2012 ME 57, 41 A.3d 551?
  5. If the three-step Gaudette framework is retained, what, if any, modifications to any of the steps should be made?

An amicus brief need not address all of the issues enumerated here; an amicus may choose which issues to address.

The Clerk of the Law Court will provide the parties’ briefs and the appendix to any interested amicus upon request.

An amicus brief, which may not exceed twenty-five pages (exclusive of the required tables, signature block, and certificate of service on the parties) may be filed by or on behalf of any individual, entity, or group of individuals and/or entities without separate leave of the Court. Any amicus brief must be filed on or before June 22, 2021. An amicus brief must be filed at the address listed below and must comply with M.R. App. P. 7A. In addition to filing and serving the required number of copies, any amicus must send a copy of the brief electronically, as a single native or text-based .pdf file, to the Clerk of the Law Court at lawcourt.clerk@courts.maine.gov.

Dated: April 30, 2021
Updated May 17, 2021, to enlarge time for amicus briefs.

Matthew Pollack
Clerk of the Law Court
205 Newbury Street Room 139
Portland, Maine 04101
(207) 822-4146
lawcourt.clerk@courts.maine.gov

Supporting documents

PDF version of this notice