Adams v. Maine Municipal Assn

Opinion

fNTfRfD J~N 1 ~ ?015

STATE OF MAINE BUSINESS AND CONSUMER COURT CUMBERLAND, ss Location: Portland DocketNo.: BCD-CV-14-18 /t VlM~~-tJ-15-1~

)

MARY ADAMS, el al., )

)

Plaintiffs, )

)

v. )

) ORDER ON PARTillS' CROSS-

MAINE MUNTNCIPAL ASSOCIATION, ) MOTIONS FOR SUMMARY ) JUDGMENT Defendants. )

)

)

I. INTRODUCTION

Before the com! arc cross-motions fo1· Slllllln!lt')' judgment on Counts V and VI of the Plaintiffs' First Amended Complninl ("Amended Complaintu). Plaintiffs. Mary Adams, Jolm H. Wibby, Jr., Pembroke Schaffel' (''Individual Plaintiffs") and Cyt• Phmtntion (collectively ''Plaintiffs") allege that there arc no genuine issues of material fact and Plaintiffs are entitled to judgment ns a matter of law. Count V alleges the Defendl\nt's contl'ibution to and pat·ticipation in Political Action Committees ("PACsu) constitutes the illegal expenditure of public money fo1· partisan political pmposes in the absence of statu lot')' autho1·ity. (Pis.' Compl. ~ 24.) Count VI is nssct1cd by MMA municipal member, Cyr Plantation, and alleges that the Defendant's partisan and political activities are ultra vires and violate clear restrictions in its corporate charter. As to bolh Counts, Plaintiffs seek relief in the form of n permanent injunction.

I. STIPULATED li'ACTS

The parties have stipulated to the facts. Below is n brlef summary oft he action before the CO \II' I.

a, MMA as rm Entity in tile Slate of Maine

Defendant, Maine Municipal Association ("MMA") is ll non-profit, non-partisan organization formed in 1936 as nn unincorporated association to advance the collective interests of lvh1ine's local govenunenls. (Joint Stip., ~~ I, 4.) MMA was incorporated in 1952 pursuant to what wns then Chapter 50 of the Maine Revised Statutes, entitled "Corporations Witho\lt Capitnl Stock." (Joint Slip.,~ 2.) While MMA is organized as a ~<private corpomtion without stock," as an instrumentality, MMA uses local govemment tax exemptions and govemment accounting standards, participates in the Maine Public Employees Retirement System, and is subject to some aspects of the Maine Freedom of Access Act, I M.R.S §§ 401-521.

MMA is a voluntary membership organization, with varying membership levels for: (I)

municipalities and other local governments; (2) counties nnd quasi-municipal corporations; (3) municipal associations and pmfessional organizations; and (4) individuals, students, professionals, and businesses. !d. Whlle MMA membership is voluntary, from2002-2009, nearly I 00% of Maine nmnicipalilies were members. (Joint Stip., ~17 .) MMA provides educational, informationftl, and professional services to municipal members including training, mammls, online resomces, publications, legal resources etc. (Joint Stip., ~ 2.) MMA derives ils revenue from dues, sales of pllblicalions, exhibitors at mumal conventions, contrnct services, and other fee-based services and programs. (Joint Slip.,~ 6.)

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The MMA hns adopted a local governmet1t tax exemption pursuant to 26 U.S.C Section 115, and all of its income, regardless of somcc, is excluded from gross income. Thus, the 1VlMA pays no taxes. (Joint Stip., ~ 8.) The MMA maintains a Hgenernl fund" into which most revenue is deposited with transfers to "designated f1.mds" being made nt the discretion of the Exec\Jtive Committee. (Joint Stip., ~ 6.)

b. Mt'Y!A liS au Advocalc.for Maine's Mulllclpalitles

MMA is nn ndvocate in suppot1 of or against proposed legislation that affects Maine Mlmicipnlilies. (Joint Stip., " 14.) The Ml'vfA maintnins n ?0-mcmber Legislative Policy Committee (the "LPCn) from each of Maine's state senate districts to pt·ovide legislative analysis and to determine the MMA 's position on legislation of all types. 1 (Joint Stip., ~ 4.) The LPC analyzes proposed legislation nnd ballot measmcs affecting nmnicipal govermnents. 2 ld. MMA fmther maintains n Legislative Initiative Fund C'LIF"), which is funded nt the Executive Committee's discretion by allocations from MMA 's geneml fund.

c. Tlte Plaintiffs

The Plaintiffs to tllis action me residents of and property tax payers in the towns of Oariand, Gray, and Bnmswick, Maine. All of which ut·e MMA municipal members. (Joint Stip., ~ 7.) In addition to membersh..ip d\Jes, each town also purchases insurance products from MMA. ld. lndividmtl plaintiffs promoted the below-mentioned Citizens Initiatives. Howcvet', in part because of MMA 's opposition, voters ultimately rejected the Initiatives. The in<lividtml

1 The LPC analyzes proposed legislation and bnllot measures affecting municipal govcmments and recommends whether the MMA should support or oppose the legislation. 1 MMA 's advocacy efforts are guided by the municipal officials who are elected to the LPC. The LPC was created to inform MMA 's understanding of the position of Moine's municipalities with respect to proposed lcgislntionnnd ballot measures.

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Plaintiffs' tax monies are alleged to have gone to MMA both tlu·ough the dues paid by the towns, and through premiums paid on the insunmce procmed by the towns. !d. Each Plaintiff is a registered votet· who voted in each of the disputed Initiatives discussed below. Fmther, all three individual Plaintiffs were signatories to the "Maine Taxpayer Bill of Rights" Initiative which was presented on a statewide bnllot in 2006. MMA opposed this Initiative.

Plaintiff Cyt· Plantation is a Moine plantation and nn MMA membe1·. Begilming in 2005, Cyr Plnntation complained to MMA about its lobbying activities that affected the Plantation.

d. Tfte lnltiatil•es

Between 2003 and 2009, MMA advocated against five (5) Citizen Initiatives mising under Article IV, Part Third, Section 18 of the Moine Constitution. (Pis.' Stip. Fact, ~ 16.) MMA coordinnted with other interest groups in organizing or mnnaging the PACs and the campaign to support or oppose. MMA nlso provided slnffsnpporl, including pers01mel in leadership roles. These Initiatives included: (1) the School Finance and Tax Reform Act of2003 ("55% School Funding Initiative); (2) An Act to Impose Limits on Real and Personal Property Taxes in2004 ("Palesky Initiative"); (3) An Act to Create a Maine Taxpayer Bill of Rights in 2006 (''TABOR I"); (4) An Act to PI'Ovidc Tax Relief in 2009 ("TABOR II"); and (5) An Act to Decrease the Automobile Excise Tax and Promote Enet·gy Efficiency in 2009 (the "Excise Tax Initiative"). (Def. 's Stip. Fact,~ 30.) Each of the Initiatives was t·elated to municipal issues including taxing nnd spending. In the case of each ofthe above-mentioned Initiatives, the Committee determined that the MMA should tflke a position. (Dcf. 's Stip. Fact,~~ 32, 38, 48, 58, 60.)

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11. STANDARD OF REVIEW

In a motion for stmllnary judgment, the Comt views the evidence in the light most favorable to the nonmoving party to decide whethet· the parties' stntements of material facts and the t•eferenced record material reveal a genuine issue of material fact. Rogers v. Jackson, 2002 ME 140, ~ 5, 804 A.2d 379 (citations omitted). The CO\Jr! gives the pnrty opposing smumary judgment the benefit of ~my inferences that might reasonably be drawn from the facts presented. Curtis v. Porter, 2001 ME 158, ~ 9, 784 A.2d 18. Ifthe record reveals no genuine issue of malerial filet then summary judgment is pl'Opct'. /d. at~ 6, 784 A.2d at 21.

A contested fact is "material" if it could potentially aftecl the outcome of the suit tmder !he governing law. lnkel v. Livingston, 2005 ME 42, ~ 4, 869 A.2d 745. A fact is ''genuine, if there is sufficient evidence supporting the claimed fact to require a fact-finder to choose between competing versions of facts at trial. ld. Por the purposes of smnmary judgment, fnchtal disputes and nmbiguities must be a·esolved against the movnnt. Nevel'theless, when the facts offered by n pmly in opposition to SllllUlHll)' judgment would not, if offered at trial, be Sllfficient to withstand a motion for judgment as a maHer of law, surnmnry j\tdgment should be granted. See Rodrigue v. Ro(/rigue, 1997 ME 99, ~ 8, 694 A.2d 924; see also Stan/on v. Unlv. of Maine Sys., 2001 ME 96, ,) 6, 773 A.2d 1045 ("To survive a ... motion for sumnHli'Y judgment, a plaintiff must produce evidence that, if produced al trial, WOltld be sufficient to resist a motion for a judgment as a matter of law.''). A defendant moving for summary judgment has the bmden to assert those elements of the cause of action for which Ihe defendant contends there is no getmi.ne issue Eo be tried.

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III. DISCUSSION

A. Coma V: MMA "s Expemllture of Public Funds

/, MMA Is a Publlc/Govemmeut Actor.

Plaintiffs contend that MMA's cont1·ibulions to cllld pnrticipation in PACs constitutes an i Ilegal expenditure of public money for pi\J'tisan political purposes in the absence of statutory authority. Defendant contends that this argument is unpersuasive fol' two reasons. First, MMA is not required to obtain statutory mllhority to spend its funds; n11d second, even if MMA was required to procure such authority, MMA is in fact statutorily authol'ized to engage in such advocacy. 3 The Supel'ior Court has held that "in the absence of clem· and explicit legislative authorization, a public agency may not expend public funds to promote a pnrtisan position in an election cnmpaign. Campa;gn.for Sensible Transp. v. Me. Tumplke Au/h., 1.991 Me. Super. LEX IS 228 (Oct. 8, 1991 ). The Lnw Court has established a fom·wpart test, "to determine if a particular entity or· citizen, individually or collectively, as a result of activities relating to govenuncnt, becomes 'an agency or public official for purposes of the law."' The four factors are:

(I) Whethet· the en lily is performing n govemmental function;

(2) Whethet· the funding ofthc entity is govemmental;

(3) The extent of govenunental involvement or control; and (4) Whethe1· the entity was created by private or legislative action.

Moore v. Abbot/, 2008 ME I00, ~ 11, 952 A.2d 980. While this test wns exclusively used by the Law Court to determined whether or not nn entity or individual C]\mlifies as "an agency m· public

J "When agency expenditllre or other action is challenged HS Jacking nppropl'inte legislative authorization, agencies will frequently argue that the expenditure is implicitly nuthorized because it is a necessary incident to carrying ont the llgcncy's statutorily authorized functions." Compa/gnfor Sensible Transp. v. Me. Turnpike Autll., 1991 Me. Super. LEX IS 228 (Oct. 8, 1991 ).

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official" for pmposes of the Freedom of Access Act, this test is useful in this case to detem1ine MMA's stat\ls.'1 The Plaintiffs attempt to establish the "public chamctet·" of MMA by indicating its "stat\Hory status as an instrumentality of municipal government, the public clmmctet· of its nmding, its government accounting conventions and tax exemption, its governance by nnmicipnl officers, nnd its ~latus undet· FOAA." (Pis.' Mol. 3.) Fm1her, the State of Maine recognizes the MlviA as an instrumentality of it municipal and quasi-municipal corporations. 30-A M.R.S. § 5722(9).~ In this case, MMA, in addition to advocacy, provides educational and infOl'mational set·vices as well as professional services to its mcmbet·s. Genemlly, "[a] person or entity, acting wilhout stanltory authority ot· state S\lpport, who provides nonbinding advice to n state agency or state ofticial, even on a matter that mny be of some significance, does not, by providing tbat nonbinding advice, become au agent of govemment performing a govenunental function." A4oore, 2008 ME 100, ~ 15,952 A.2d 980,984.

However, MMA derives its revenue from membership dues. These membership dues nre comprised of municipal funds nnd other administmtive fees. (Joint Stlp., ,122.) Tlms, MMA is indirectly funded tllrough Stnte funds. Fm1her, MMA employees are eligible to participate in the

4 Plaintiffs' indicate that MMA is subject to "some portions'' of the freedom of Access Act (FOAA) and has had a formal FOAA policy since 2006. (Joint Slip.,~ 10.) 1 · Advisol'y ot·gnniznllons.

Obtain the services of municipal advisory organizations. The Legislature recognizes the Moine Municipal Association ns 11 nonprofit advisory organization and dcchU'es it to be nn inslrumentnlily or its member mtmicipal and quasi-municipal corpomtions with its assets upon its dissolution to be deli vercd to the Treasurer of Stnte to be held in custody for the tn\tnicipalities of the State. A municipnl advisory ot·gnnizntion moy receive federnl grants or contributions for its activities with respect to the solution of local problems....

30-A M.R.S. § 5722(9): 5

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Maine Public Employees Retirement System. In the previous action in the District Court, Chief Judge Woodcock expressly found:

MMA's speech was effectively controlled by !he govemment .... MMA is an nssociation of numicipnlitics in Maine .... Although MMA allows private citizens to join as "patrons," its intemnl govemnncc structure gives nnmicipal officials exclusive control over organizational decisions. MMA's Executive Committee, which controls and manages the Association and holds and manages all MMA property, is comprised exch1sively of municipal members. Similarly, its Legislative Policy Committee, which determines its positions on legislation and citizen Initiatives, is comprised exclusively of municipal members.

Judge Woodcock went on to explain thnt in this c11sc, there was no private involvement, and that MMA's decisions were within the exclusive and complete control of municipal officials. Adams v. Me. Mtm. Ass 'n, 2013 WL 9246553 (D. Me. 2013). Because the Court agrees with the District Court's finding that the MMA is a govermnental entity m· actor, the court does not need to address whethet· that finding constitutes the law of the case. 6

1/, Jlt.!NfA Has Likely Acted wit/tin tile Legislature's Intent B)l Providing Advocacy Ser11ices to Mmrlclpnlltles /utile Strtfe ofMnlue.

Notwithstanding the MMA 's status as a government actor, the Plaintiffs have raised a question as to whether the MMA is statutorily authorized to expend political f1111ds and whether MMA 's expenditures were lawful. The MMA accmately contends that there is no source of Mninc law indicating that n grnnt of statutory authority is req\lired bcfot·e a govemmental entity may expend ftmds. Rather, the case lnw tlmt the Plaintiffs rely on deals with obvious govenunent<~l entities that hnve an overt statutory grant and the question presented in those cases was whether the entity exceeded its grant. For example, in Sensible Transportation, there was a question as to whether the Maine Turnpike Authority's advocacy efforts were authorized by its

11 The "lnw of the cnse" rests on Ihe policy Hilmi in the interest of nnnlity ond inlracourt comily n Superior Court Jusllce should not, in subsequent proceedings hll'nlving the same case, oi'Crrulc or reconsider the decision of another Jusllcc." Gmnt v. Cily of Snco, ~36 A.2c.l403, 405 (;l'h:. 1981) (qaollng Bfnnce 1'. Aile)•. Me., 404 A.2d 587 ( 1979).

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enabling statute. Unlike the Maine Turnpike Aut'horlty, MMA has no arguable statutory limitations.

The Defendant contends that while n particulm· enabling statue does not govem the MlvlA, the Maine lobbyist disclosme statute recognizes that municipalities and quasi-municipal entities are "people" who may lobby. 7 Furthet·, "Maine law expressly contemplates that municipalities and quasi-municipal entities may lobby or employ lobbyists to advocate theia· interests, which activity lmdoubtedly entails an expenditure of mun.icipal ftmds for such purpose." (Def's Mot. 14.) The MMA reasons that because MMA is nn.11 instrumentality"

pursuant to 30-A M.R.S § 5722(9), municipalities are statutorily authorized to contribute money to MMA, which "in turn is stallltol'ily mtthorized to expend funds to advocate and lobby." (Def. 's Mol. 15.) MMA also provides commentary from a 1977 opinion of then Attorney General .Joseph E. Brennan who noted: "[30-A M.R.S § 5722(9)] does expressly authorize 1municipal I contributions to municipal advisoty organizations, naming therein the Maine Municipal Association. Contributions to such organizations could ... be used for legitimate organization t•elated pmposes, i.nchtding advocacy." (Dcf.'s Mot. 15.) Tlms, the Court concludes that the MMA is a quasi-governmental entity with authority to advocate on behalf of Maine municipalities.

7 The MMA cites 3 M.R.S.A § 312-A( I 2) which states:

Person means an individual, corporation, proprietorship, joint stock company, business tt·ust, syndicote, ossociation, professionnlossociolion, labor union, firm, partnership, club o1· other orgnnization, whether profit or nonprofit m· nny 1111111icipnlity or quasi-municipality or group of person acting in concert, but does not inclmle this State or any other ngency of this State.

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iii. The Governmeut Speeclt Doc/J'ine Applies.

While MMA is not per se n government agency, it has a number of indicia of govcnunent and "more closely resembles govemment than n private pmty ."Adams v. Me. lvfun Ass '11, 2013 WL 9246553, at *16 (D. Me. 20 13). Because the comt finds MMA to be a govenuneutal or quasi-governmental entity, the govemment speech doctrine applies.

"The doctrine of government speech arises most often in the context of complaints tbnt govemment speech expressing or promoting pmiicular viewpoints violates the free speech rights of citizens with opposing views." Mainersfor Fair Bear Hunting v. Me. Dep't of Inland Fisheries& Wildl({e, 2014 Me. Super. LEXfS 117, at *I 1 (Me. Super. Cl. Oct. 22, 2014). In this cnse, the ultimate injury nssociatcd with the Plaintiffs state lnw clai111s is that by MMA expending public funds in opposition to certain initiatives, the plaintiffs' ability to deliver their message is hindered. This, by its very nature, is a constitutional claim sounding in free speech.

ld. al 12. 8 The govemment speech doctrine provides that govemment speech is 11 110t restl'ictcd by the Free Speech Clause.'' Adams v. 1,/e. Mun. Ass 'n, 20 I3 WL 9246552, at *16 (D. Me. 20 13) (qlloting Pleasant Grove City v. Summum, 555 U.S. 460, 469 (2009)). "In othet· words, 'the Govemment 's own speech is exempt from First Amendment scrutiny." Mainers for Fair Bear Hn111i11g, 2014 Me. Super. Lex is 117, nt *10 (citing Johanns v. Livestock Mktg. Ass 'n, 544 U.S. 550, 553 (2005). "Whether the protections of the govenuncnt speech doctrine are available ... depends on the content of the challenged speech rmd the legal theory nrg\JCd by the challenger." Adams, 2013 WL 9246553, at *19.

8 This similm reasoning was used in i\4ainersfor Fair Bear Hunting. In thnt case Justice Wheeler determined that notwithstanding the fact that the plaintiffs stated their claims were not constitutional, the substance of the arguments sounded in free speech.

II has long been held that when governments "engage(] in their owu expressive conduct, .

the Free Speech Clause has no application." Nkliners for Fair Bear Hunting, 2014 Me. Super.

LEXIS 117, at* 12 (citing Pleasant Grove City, 555 U.S. at 467). A governmental entity "is entitled to say what it wishes." Rosenbergerv. Rector& VlsitorsofUniv. ofVa., 515 U.S. 819, 833 (2995). Further, the government may choose "viewpoints when the government itself is speaking. Griswold v. Driscoll, 6 l 6 F.3d 53, 58-59 (1 sr Cir. 2012) (citing Pleasant Grove City, 555 U.S. at 467). Moreover:

Compelled support of govcnunent- even those pi'Ogmms of government one does not approve- is of course perfectly constih.ltionnl, ns every taxpayer nmst attest. And some govemmental programs involve, Ot' entirely consist of, advocating a position. The govenunent, as a gcncralmle, may support valid programs and policies by taxes m· other exactions binding on protesting pnrties. Within this broader principle it seems inevitable that funds raised by the govemment will be spent for speech and other expression to ndvocnte and defend its own policies.

Johanns, 544 U.S. at 559 (internal quotation marks omitted). "Th\lS, the govcmmental speech doctrine nllows govemmental entities to expend funds on position-based speech," Mainers for Fair Bear Hunling, 20 14 Me. Supet·. LEXIS I 17, at * 12.

Government accountability protects those who disagree with govemment action, speech, and expenditures. 9 In this case, MMA is ultimately accountable to the electorate as citizells hnve the opporn.m..ity to:

[R]un their own slate or candidates, who-if elected-wo\tld then be empowered to change municipal policy. Altematively, they may petition theit· m\lnicipalities to taken different stnnce-whethct· by asserting themselves with.in MMA's intemal goveruance stntctures or by withdrawing from MMA. (Fmther] they may petition the Maine Legislal\1re to pass a law or to propose a constitutional amendment limiting MMA's ability to fund and pnrticipate in PACs.

9 "When the government spcnks, for instnnce to promote its own policies or to advance a part! culm· idea, it is, in the end, nccountnble to the elcctomte ond !he political process for ils advocacy. lfthe citizenry objects, newly elected officials Iaiel' could espouse some different or contrary position." /Jd of Regellls of Univ. o(Wis, .~)'.~ .. 529 U.S. 217,235 (2000).

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Adams v. A4e. Mun. Ass'n, 2013 WL 9246553 (D. Me. Feb. I4, 20 13). Further, individual Plaimiffs co\tld petition their respective municipalities to withdraw its MMA membership and thereby cense any contribution of funds to MMA 's activities. Thus, the court grants Defendant MMA 's Motion for Sununary Judgment ftS to Count V.

B. Count VI: Ultra Vires

Plaintiff, Cyr Plantation, seeks a determination that MMA 's partisan and political activities exceed the purposes expressed in the MMA 's 1953 Certificate of Orgnnization and nre therefore ultra vires. As a t·estllt of these acts, Cyt· Plantation seeks permnnent injunctive t·eJicf to compel MMA to conform to its corporate ch1u·ter.

In Maine, it is well-settled law that "[t]he pmpose of a non-profit corporation is the object tor which the cot·pomtion is formed; the aim, intention or plan which it is mennt to effectuate. It is that which the incorporators set before them to accomplish; it is the mison d'etre." Good Will Home Ass '11 v. Erwin, 266 A.2d 218, 221 (Me. 1970). Fmther,

[!]he corporate purposes ... serve to inform the public as to the natm·c of organization for the benefit of those with wbom it deals. The statement also serves to inform its members ns to the scope and mnge of its proper activities and to assure them it will not involve them in remote and uncontcmplated lines of activity.

!d. (citations omilled). ln this case, the MMA's Certificate of Organization indicates thnt it is a "non-partisan" cntily. 10 MMA asserts that the organjzation may advocate for legislation, but does not do so nlong part)' lines. (Def.'s Opp. Mot. 25.) The Miv1A provides Webster's Third New Intemntional Diclionm")' definition of the word as: "(i) not affiliated with or cot\Ullilted to

10 The Certificate of' Organization states:

The purposes of said corporation are to serve as an nssocinlion for the promotion of good municipnl government; to ben non-political and non-pnrtisnn organization dedicated to !he purpose of promoting good municipal government by the exchange of ideas and information through fhe united effort and cooperation of its members.

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the support of a particular political party; (ii) viewing matters without regord to the political party affiliations of members; and (iii) composed, uppointed or elected without regnrd to the political pmty afflliations ofmembers." 11 MMA is not affiliated with any political party. (Joint Stip. ~ 66.) F\ll'ther, members of the Executive Conunittee arc elected without regard to political affiliation. However, Plaintiff Hsserts th!lt an individual Cflndidate cannot be separated from val'iO\lS campaigns and Initiatives that Mlv1A may take a stance on. Notwithstanding the "Menning" behind each individual word in the MMA 's Certificnte of Orgml.izntion, the MMA is correct in noting that the ultra vires doctrine is antiquated as applied to present-day corporate law. In fact, the statute governing the doctrine in the State of Mnine states: "No act of a corpomtion ... shall be invalid by reason of the fact that the corporation was withm1t such capacity to do such net. ... " 13-B M. R.S § 203( 1). However, it is 1·ecognizcd in the statute that such n claim mny be bwught against the corporation to enjoin the conthmntion of unauthorized acts. !d. The Plaintiffs understand that "a finding of ullm vires imposes no retroactive penftlty on the MMA and only requires thnt the MMA adhere to its charter prospectively." (Pis.' Mot 24.)

llecause the purpose set forth in the Certificate of Organization is sufficiently broad enough to encompnss lhe purposes ns interpreted by the Defendant, and becmtse n claim for ullra vi1·e.1 docs not grnnt the Pll\intiff relief, the Defendants Motion tbr S\tmmnry Judgment is granted as to Plaintiffs' ultrCI vires claim.

11 MMA contends that it docs not take part in political cnmpnigns for candidates for politicAl office nnd it docs not take positions or endorse any cnndidnlcs for political office and does not advocate against cnndidntcs. (Dcf.'s Opp. Mot. 26-7.)

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C. Pfallltl[[ls Not EllfitMlto 111/rmclive Relief 011 Counts V mul VI

Before granting on injunction, Maine courts must fmd the following criteria:

( 1) that plalnti ff will suffer irrepnrable injury if the injunction is not granted;

(2) that such injury outweighs any harm which granting the injunctive relief would int1ict on the defenchmt;

(3)[thnt the plaintiff succeed on the merits]; and (4) that the public interest will not be adversely affected by granting the injunction,

Ingraham v. Unlv. o,{l\lf(line at Orono, 441 A.2d 691, 693 (Me. 1982) (citing Women's C!nty. Health Ctr. ''· Cohen, 477 F.Supp. 542, 544 (D.Me.1979),· UV indus. Inc. v. Posner, 466 F.Supp. 1251, 1255 (D.Me.1979)); see also Fltzptllrlck v. Town of Falmouth, 2005 ME 97, ~ 18, 879 A.2d 21 (Me. 2005) (clnri fying the third prong of the test). The court does not consider these elements in isolation, b\ll weighs all the criteria together in detennin.ing whether iltiunctivc t·elief is proper in the specific circttmstances ofthe cnse. See Windlwm Land Truslv. Jeffords, 2009 ME 29, ~~ 41,967 A.2d 690 (citing Walsh. 608 A.2d 776, 778). Fot· example, if the evidence of success on the merits is strong, the showing ofirreparnble harm may be subject to less stringent requirements. Dep 't ofEnvtl. Prot. v. Emerson, 563 A.2d 762, 768 (Me. 1989). However, the fail me to demonstrate any one of the elements requires the injunctive relief be denied. Bangor Historic 1i'ttck, inc. v. Dep't ofAgrlc., 2003 ME 140, 837 A.2d 129 (citing Town of Charleston v. Sell. Admin. Dis!. No. 68, 2002 ME 95, ~~~16-7, 798 A.2d 1102).

i. Irreparable Ju}IIIJ'

Plaintiffs contend that they have been irreparably harmed. As tmmicipaltaxpayers, Plaintiffs have experienced MMA 's interference with vm·ious taxpayer Initiatives, and fear that the behavior wit! continue into the future. Fmthcr, Plaintiffs argue that each has suffered a particularized harm as contributors and pnrlicipnnts in the campaigns opposed or supported by

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MMA. (Pis.' Mot. 29.) lneparable injury is defmed, as "injury for which there is no adequate remedy nt law." Bangor Historic Track, 2003 ME 140, V10, 837 A.2d 129. Plaintiffs rely on vague generalities suggesting that they were inj\tred. In this case, it is the Plaintiffs who have the burden of establishing such injlU)'. However, when the record does not support a fittding of irreparable injmy, inj\tnctive relief must be denied. ld. (citing Town of Charleston, 2002 ME 95, ~)7, 798 A.2d 1102).

Defendant argues thnt the grievance set forth by the Plaintiffs is moot in that uthey are seeking reliefbased on hypothetical fut\tre rights, not present fixed rights." 13 (Def.'s Opp. Mot. 31 .) The Law Court has long held:

A long-standing requirement for review by this Comt is that the cnse present us with a justiciable controversy. A justicinble controversy is a clnim of present and fixed rights, as· opposed to hypothetical or fttture l'ights, asserted by one party against anothet· who has nn interest in contesting the claim. Accot·dingly, rights must be declared upon the existing state of facts nnd not upon a stnte of facts that may or may not nl'ise in the futme.

Sensible Tram1J., 658 A.2d at 215 (citing Connors v. lntcrnaflonal Harl'ester Credit Cmp., 447 A.2d 822, 824 (Me.1982)). In Maine, the test for mootness is whether ccsufflcient practical effects [flow] from the resolution of [the) litigation to justify the application of limited judicial resources." kl. (citing Stale v. Gleason, 404 A.2d 573,578 (Me.l979)). However, various exceptions to the mootncss doctrine apply in this state.

First, the court will dewmine whether sufficient collateral consequences will result from determination of the questions presented so as to justify relief. Second, while technically moot in the immediate context, questions of great public interest may nevertheless be addressed for the future guidance of the bar and of the public. Third, issues which may be

11 The Pin inti ffs 111lege that Ihe MMA used their own tax dollars against them and fenr that it will do so again in the future. (Pis.' Mot. 29.) l.l The Defendant nrgucs thnt the Citizen lnitintivcs have concluded nnd neither pnrty knows whlll Initintives will arise in the 1\tturc. Citing Sensible Tramportafion the Defendant orgues "[!]he Plnintiffs are seeking ... relief based entirely upon n state of facts that mny or may not al'ise in the future. (Dcf. 's Opp. Mot. 31.) (citing Sensible Tramp. 658 A2d 213, 215.)

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repeatedly presented to the trial com!, yet escape review at the appellate level because of their fleeting or determinnte nahtre, may appropriately be decided. 14

State v. Gleason, 404 A.2d 573, 578 (Me. 1979). The third exception applies in tlus case. While the lniliatives have concluded, there will be Initiatives ill the futme. "The important ingredient ris] govet·mncntnl nctioll directly affecting, and continuing to affect, the bchaviol' of citizens in our society." let. Citizen Initiatives, albeit on different topics, are capable of repetition, and because of the time of litigation, any action conceming such hutiative will likely evade review in the futme.

il. !Jalrmcillg of Harms In bahmcing the benefits and the harms, Plaintiffs contend that MMA will face no harm, as all it needs to do is conform to its corporate charter and the law "regarding initiative activities." The Defendant contends that the harms it will face as nt·esult of an injunction well exceed the potential relief granted to the Plaintiffs. It is the Defendant's contention that the Plaintiffs seek to prohibit its speech and prevent it from advocating Emd performing its legislative function. (Def. 's Opp. Mot. 35.)

Ill. Success 011 tire Merits The Plaintiffs have not convinced tllis court that they have met the bul'den of establisWng

success on the merits. Plaintiffs allege "\lnlawful expenditures without statutory authorization." However, the Plnintiffs fnil to identity the statute requiring outhm·ization, as \\•ell as a cause of

14 The Plaintiffs note "[t]his exception hns been applied in election disputes that remain in court after the disputed election. See Rosario v. Rockefeller, 410 U.S. 752, 756 n. 5 ( 1973); Dwm v. Blumstein, 405 U.S. 330, 333 n. 2 ( 1972); Moore v. Ogilvie, 394 U.S. 814, 816 ( 1969). Plaintiff also cites Sensible Transportation for the notion thnt "questions thnt have become moot should be avoided unless !hey occur in a context where there is n reasonable likelihood that the smne issues will imminently and repeatedly recur in future similar· contexts with serious impacts upon important generalized public interest." (Pis.' Rep. Mot. 7.) (citing Fredelie v. Secretmy ofStale, 693 A.2d 1146, 1147 {Me, 1997); Sensible Tmnsponalion, 658 A.2d at 215).

17

action under Maine law. The Plaintiff, Cyr Plantation, also nlleges that the Defendant acted ultra vires, a cause of action, which the Plaintiffs concede will not invalidate a corporate net. Based on the record presented, it is unlikely that the Plaintiff.c; can meet their b\ll'den on either claim.

lv. Public Interest

Plaintiffs argue that the public interest will not be adversely affected by granting an injunction as the "integrity of the electoml process" is in the best interest of the p\tblic. (Pls.' Mot 30.) The Defendant asserts that public interest is against the silencing of some speakers in order to enhance the speech of others. By preventing MMA from spending in its accustomed manner, MMA argues that this is a prohibition on its fl·eedom of speech in contradiction with the First Amendment. (Dcf.'s Opp. Mot 35.) Fmther, the Defendant m·gues that voters are able to make their own decisipns, notwithstanding the actions of the Defendant in advocating fot· or against cert11in legislntion.

While three out of the four elements mentioned above plausibly exist, an injunction should not be granted in tlus case as the Plaintiffs have failed to demonstrnte on the summm·y judgment record that they will succeed on the merits. As such, Plaintiffs Motion fol' Summary Judgment is Denied as to the requested injunctive relief.

IV. CONCLUSION

Based on the forgoing, the entry shall be: Plaintiff.'!' Motion for Summary Judgment is DEN JED as to Both Counts V and VI. Further, because the plaintiffs have failed to show that they will succeed on the merits, they have failed to meet the necessary elements fot· injunctive relief', and thus Plaimi ffs' request for injunctive relief is DENIED. The court GRANTS tbc Defendant's Motion for Summary J11dgment in its entirety as to both Counts V nnd VI.

18

Pursuant to M.R. Civ. P. 79, the clerk is hereby directed to incorporate this order into the docket by reference.

{ ?- ll { ) I '"'\

Dnted M. ichRcln Murph~ rsflce Business & Consume!' Docl<et

JJ.!J.I'-1

.

Entered on the Doc ket·- . -

Copies sent via Maii __Eiectromcally£

Mary Adams, et al. v. Maine Municipal Association BCD-CV-14-18

Mary Adams, et al.

Plaintiffs

Counsel: David Crocker, Esq.

158 Pleasant Ave

Portland, ME 04103-3204

Maine Municipal Association Defendant

Counsel: Paul McDonald, Esq.

100 Middle St

PO Box 9729

Portland, ME 04104-5029