COUNSEL:
Anthony F. Muri, Barbara S. Cohen, Providence, for Plaintiff.
Amelia E. Edwards, Providence, Michael L. Rubin, Asst. Attorney General, for Defendant.

LEDERBERG, Justice.

In this case we construe for the first time the provisions of G.L.1956 chapter 33 of title 9, as enacted by P.L.1993, chs. 354, 448, an act entitled "Limits on Strategic Litigation Against Public Participation" (the anti-SLAPP statute or the act). The plaintiffs, Hometown Properties, Inc., Homevest, Inc., Charles H. Gifford, III, Michael L. Baker, and Edward B. Mancini (collectively referred to as "Hometown" or "plaintiffs") brought suit against Nancy Hsu Fleming (Fleming or defendant), claiming that Fleming's communications with various state and federal governmental officials constituted both tortious interference with contractual relations and defamation. Invoking the provisions of the act, Fleming moved to dismiss Hometown's action as "strategic litigation against public participation" or a SLAPP suit and argued that the suit attempted to abridge her rights to free speech and to petition government for the redress of grievances. Fleming sought this Court's review of the Superior Court's denial of her motion to dismiss Hometown's suit. For the reasons stated below, we grant certiorari, quash the decision of the motion justice, and remand this case to the Superior Court with directions to enter summary judgment for the defendant.

The plaintiffs are the owners of a landfill in North Kingstown, Rhode Island. On or about November 21, 1991, and February 17, 1992, a number of North Kingstown residents, Fleming among them, participated in meetings with Louise Durfee (Durfee), then director of the Rhode Island Department of Environmental Management (DEM). The meetings focused on two issues: alleged ground-water contamination caused by landfills, specifically plaintiffs' landfill, and DEM's proposed rules and regulations concerning landfills. Following these meetings, Fleming wrote a letter to Durfee and posted copies to various state and federal officials. The letter, dated April 12, 1992, stated, inter alia: "We take this opportunity to express our appreciation for your continued consideration of our efforts to close and clean up the Hometown/Homevest landfill. " * * * "In letters to you and in meetings with you, we have developed the following understandings: " * * * "5. There are clear statements by the EPA and other experts that the Landfill contains hazardous waste, that the Landfill continues to contaminate offsite groundwater exceeding Maximum Contamination Levels, that the Landfill should be closed and cleaned-up, and that onsite monitoring wells were never purposely placed to detect concentrations of leachate. "6. The Landfill is on track to being declared a Superfund site. "7. The Town expert has documented a three-year history of groundwater contamination, levels of contamination that would have never been detected were the Town to have relied on the onsite wells for the protection of its Citizen's drinking water. " * * * "9. The Owners of the Landfill have consistently refused to contribute to the Town's effort to monitor the groundwater, and has [sic ], as a matter of fact, vigorously resisted monitoring activities by your own office." The letter went on to comment on the proposed new "Rules and Regulations For Groundwater Quality." In response, Hometown, through its counsel, informed Fleming by letter that if she did not "(a) provide to us the specific facts and documents on which your statements were based or (b) confirm to us in writing that you will promptly furnish to Louise Durfee, and the other officials to whom your April 12 letter was copied, the retraction which is enclosed," then Hometown would "have no alternative but to pursue the formal legal remedies available."

Fleming did not retract her statements, and on December 2, 1992, Hometown filed a complaint in the Superior Court, alleging defamation and tortious interference with contractual relations and seeking compensatory and punitive damages. Fleming filed a motion to dismiss Hometown's action pursuant to Rule 12(b)(6) of the Superior Court Rules of Civil Procedure and claimed an absolute constitutional privilege against tort liability arising from her statements in the April 12, 1992 letter to Durfee. The Attorney General filed a motion seeking leave to appear as amicus curiae in Fleming's behalf. On April 19, 1993, a justice of the Superior Court denied Fleming's motion to dismiss and granted the motion of the Attorney General only to the extent of permitting him to file a brief in support of Fleming.

Subsequent to the Superior Court's denial of Fleming's first motion to dismiss, the General Assembly, on July 24, 1993, enacted the anti-SLAPP statute, P.L.1993, ch. 448, s 1. The act applied retroactively to all actions that had "not been fully adjudicated on, or subsequent to, the effective date" of the act, and allowed a party to such an action to file a "special motion to dismiss a claim" within sixty days of the effective date of the act. Public Laws 1993, ch. 448, s 2.

On September 17, 1993, relying on the anti-SLAPP statute, Fleming filed a second motion to dismiss and a motion to stay discovery. Hometown objected to Fleming's motions, arguing that the anti-SLAPP statute was unconstitutional and, in the alternative, that Fleming had failed to demonstrate that the anti-SLAPP statute would protect her from liability. Fleming's second motion to dismiss was not decided, but was passed on by the motion justice. On February 24, 1994, the Attorney General filed a notice of intervention pursuant to Rule 24(d) of the Superior Court Rules of Civil Procedure and G.L.1956 ss 9-30-11 and 9-33-3.

Fleming filed a third motion to dismiss on May 25, 1994. Accompanying her memorandum in support of the motion, Fleming submitted various scientific reports and government documents attached to her affidavit that avowed that the disputed statements were made in response to a request for public comment on the proposed DEM landfill rules and regulations. She further averred that her statements were supported by and derived from the documents attached to her affidavit.

After oral argument on the third motion, the motion justice, on August 4, 1994, denied Fleming's motion. In her decision, the motion justice declined to address the constitutionality of the act. Instead, she presumed that the anti-SLAPP statute was constitutional but determined that she could not rule as a matter of law that Fleming was entitled to immunity under its provisions. The motion justice stated that she was "not satisfied that defendant has demonstrated that she falls within the class of defendants defined" in the anti-SLAPP statute. In addition, the motion justice rejected Fleming's argument that she was entitled to protection under the so-called "Noerr- Pennington " doctrine developed by the United States Supreme Court. Because Hometown's complaint included "allegations of the tort of libel," the motion justice determined that Noerr-Pennington was inapplicable, and she relied, instead, on the Supreme Court's rulings in McDonald v. Smith, 472 U.S. 479, 105 S.Ct. 2787, 86 L.Ed.2d 384 (1985) (holding that the petition clause does not provide absolute immunity to defendants charged with libel), and White v. Nicholls, 44 U.S. (3 How.) 301, 11 L.Ed. 591 (1845) (defining malice as "falsehood and the absence of probable cause").

Fleming petitioned this Court for issuance of a writ of certiorari on October 17, 1994, and the petition was granted on May 11, 1995. Fleming contended on review that the motion justice erred by failing to apply the Noerr- Pennington doctrine in interpreting the anti-SLAPP statute and by failing to treat Fleming's special motion to dismiss as a motion for summary judgment. Hometown, on the other hand, argued that the motion justice committed no errors of law in her interpretation of the relevant authority and further argued that the act is unconstitutional.

As a preliminary matter, we reject Hometown's allegations that the anti-SLAPP statute is unconstitutional. Hometown recited seven separate challenges to the statute on the following state and federal constitutional grounds: equal protection, right to a trial by jury, due process, retroactive application, separation of powers, denial of access to state courts, and bill of attainder. In addressing these challenges, we find it sufficient to recognize that "if a serious doubt of constitutionality is raised, it is a cardinal principle that [a] Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided." Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598, 619 (1932). In keeping with this long-recognized principle of constitutional scrutiny, we shall, in construing statutory language, adopt that interpretation that allows us to avoid a finding of unconstitutionality. Advisory Opinion to the Governor (DEPCO), 593 A.2d 943, 946 (R.I.1991). We are of the opinion that such a construction not only is possible but is also warranted in this instance.

The United States Supreme Court developed the Noerr-Pennington doctrine in the context of antitrust litigation in order to protect the legitimate exercise of the constitutional right to petition the government after retributive civil claims were brought by parties harmed by petitioning activity. Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49, 56, 113 S.Ct. 1920, 1926, 123 L.Ed.2d 611, 621 (1993) (citing Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961)).

This Court has adopted the Noerr-Pennington premise and has applied its protection to common-law tort claims. In Cove Road Development v. Western Cranston Industrial Park Associates, 674 A.2d 1234, 1236 (R.I.1996), Cove Road, a developer, brought suit against the defendant landowners (Western Cranston), alleging that Western Cranston had engaged in malicious prosecution and abuse of process by instituting and pursuing an appeal of zoning amendments sought by Cove Road and granted by the city of Cranston. We held that Cove Road's claims "must be examined under the rubric of Noerr-Pennington immunity inasmuch as the provisions of the United States and Rhode Island constitutions take precedence over common-law tort doctrines, U.S. Const. Art. VI; R.I. Const. art. 15, sec. 1, as do the statutory requirements of s 9-33-2 [the anti-SLAPP statute]." 674 A.2d at 1239. (Emphasis added.) This Court concluded that Western Cranston's opposition to Cove Road's efforts to obtain zoning relief could not serve as the basis for Cove Road's tort claims. Id.; see also Pound Hill Corp., Inc. v. Perl, 668 A.2d 1260, 1263 (R.I.1996) ( "[a]lthough the [Noerr-Pennington ] doctrine arose in a context of application of the antitrust statutes, it is based upon the First Amendment right to petition the government for redress of grievances").

We have also adopted the Supreme Court's position that petitioning activity that amounts to "a mere sham" is not immune under Noerr-Pennington. Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 144, 81 S.Ct. 523, 533, 5 L.Ed.2d 464, 475 (1961). Consequently, sham petitioning activities that "are not genuinely aimed at procuring favorable government action" but constitute inappropriate uses of governmental process, are not protected under the doctrine. Pound Hill, 668 A.2d at 1263. We assess whether the petitioning activity constitutes a sham under Noerr-Pennington by determining whether the activity is "objectively baseless in the sense that no reasonable [petitioning activist] could realistically expect success on the merits." Cove Road, 674 A.2d at 1238 (quoting Professional Real Estate Investors, Inc., 508 U.S. at 60, 113 S.Ct. at 1928, 123 L.Ed.2d at 624). If and only if we find the petitioning activity to be objectively baseless, shall we then examine the subjective motivation behind the activity. Id.