Gaudette v. Davis

• Court: Superior Court of Maine
• Decided: October 26, 2015
• Docket: YORcv-15-97
• Status: Unpublished

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

1 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."

2 "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."

3 "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.

4 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

5 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

6 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.

7 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

2 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.

8 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.

9 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

10 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

z