Carey v. Secretary of State

Maine Superior

Carey v. Secretary of State

DecidedMay 10, 2022

DocketOXFcv-22-09

StatusUnpublished

This text of Carey v. Secretary of State (Carey v. Secretary of State) is published on Counsel Stack Legal Research, covering Superior Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Carey v. Secretary of State, (Me. Super. Ct. 2022).

Pincite

Opinion

STATE OF MAINE SUPERIOR COURT OXFORD,ss. CIVIL ACTION DOCKET NO. CV 2022-09

SETH THOMAS CAREY

V. ORDER

SECRETARY OF STATE et. al.

Plaintiff have filed a multi count Complaint against the Secretary of State, the Board of

Bar Overseers and the Maine Republican Party and Jason Savage. Before the court are the

Defendants' Motions to Dismiss and the Plaintiffs request for a default. The Defendants'

motions are granted.

"A motion to dismiss pursuant to M.R. Civ. P. 12(b)(6) tests the legal sufficiency of the

[counterclaim]." Seacoast Hangar Condo. If Ass'n v. Martel, 2001 ME 112, ,r 16,775 A.2d 1166

(quoting New Orleans Tanker Corp, v. Dep't ofTransp., 1999 ME 67, ,r 3, 728 A.2d 673). When

the court reviews a motion to dismiss, "the [counterclaim] is examined 'in the light most

favorable to the [counterclaim] plaintiff to determine whether it sets forth elements of a cause of

action or alleges facts that would entitle the [counterclaim] plaintiff to relief pursuant to some

legal theory."' Lalonde v. Cent. Me. Med. Ctr., 2017 ME 22, ,r 11, 155 A.3d 426. Allegations in

the counterclaim are deemed true for the purposes of deciding a motion to dismiss. Id. "A

dismissal should only occur when it appears beyond doubt that a [counterclaim] plaintiff is

entitled to no relief under any set of facts that he might prove in support of his claim." Moody v.

State Liquor & Lottery Comm'n, 2004 ME 20, ,r 7, 843 A.2d 43 (quoting McAfee v. Cole, 637

A.2d 463, 465 (Me. 1994)) (internal quotations omitted).

1 A. The claim against the Board of Bar Overseers.

The Complaint asks this court to restore Carey's license to practice law. His license was

suspended in accordance with the Maine Bar Rules. BBQ v. Carey, BAR 18-04, 16-15 (Dec 20,

2018), pp. 17,18, (Warren, J.) affirmed BBQ v. Carey, 2019 :ME 136 (hereinafter "Bar Order).

Maine Bar Rule clearly spells out the method by which an attorney may seek reinstatement.

After a hearing, the Grievance Commission issues a report to the clerk of the Law Court. Me.

Bar R. 29(g). The Law Court then has authority to decide whether to reinstate the attorney. Id.

29(h). This court has no authority to reinstate Carey's license to practice law. Therefore, this

court cannot grant relief and the claim fails to state a claim upon which relief may be granted.

This claim is dismissed.

B. The claim against the Secretary of State.

The claim against the Secretary of State arises out of the Secretary's decision not to

include Carey on the ballot for the June 2022 Republican primary for the Androscoggin County

District Attorney. By statute, an attorney suspended from the practice of law is not qualified to

be a district attorney. 30-A 1V1RSA § 251(2). Maine election law required that Carey be able to

certify both that he was a member of the party in whose primary he sought to run and that he was

qualified to serve as a District Attorney. 21-A 1V1RSA § 335(8), 336. By statute, he is not

qualified to serve as District Attorney. He failed to certify he was a member of the Republican

party. The Secretary's decision was correct as a matter of law.

Carey argues that Section 251 (2) is unconstitutional as an ex post facto law. The

constitutional provisions directed at ex post facto apply to statutes that are criminal, not civil.

Specifically,

a statute violates the prohibition against ex post facto laws if it: ( 1) punishes as criminal an act that was not criminal when done, (2) makes more burdensome the punishment for

2 a crime after it has been committed, or (3) deprives the defendant of a defense that was available according to law at the time the act was committed.

State v. Proctor, 2020 ME 107, P14.

A statute regulating the qualifications of the District Attorney is facially civil.

Furthermore, applying the factors that the Law Court adopted in State v. Letalian, the statute is

not so punitive as to render it penal in nature. 2009 ME 130, P 31, citing Kennedy v. Mendoza-

Martinez, 372 US 144, 168-69 (1963).

The statute is constitutional and the Secretary's interpretation was correct as a matter of

law. For these reasons, the claims seeking remedies against the Secretary are dismissed.

C. The claim against Jason Savage and the Republican Party.

The Complaint alleges conduct by the Jason Savage and the Party that, if true, constituted

an effort to oppose Carey in the 2018 Republican primary. Carey also alleges that the Party

supported the 2019 changes to the statute tightening the District Attorney qualifications to bar

suspended attorneys from qualifying. The Complaint cites no cause of action, however, under

which the Party could be liable for any of this conduct.

The Complaint seeks no remedy against Jason Savage. It asks the Party to "restore his

rights," but provides no description of what rights Carey is entitled to and for which he seeks

relief. Because the Complaint neither sets forth the elements of any cause of action against the

Party nor identifies any legal theory that warrants any source of relief, the claims against Jason

Savage and the Party are dismissed.

D. Default Requests.

The default requests were on the grounds that the Defendants "had not filed an Answer

within 20 days." All of the Defendants were served on March 1 and filed timely Motions to

Dismiss with the court. The Defendants pled, appeared and defended. Therefore, the court

3 cannot default the Defendants on the basis requested. M.R.Civ.P. 55(a)(clerk's entry of default

when defendant has "failed to plead or otherwise defend.") The requests for default are denied.

E. Spickler Order

By court order, Plaintiff Seth Carey must send any Complaint that he files on his own behalf

for screening by the court to determine whether the Complaint is frivolous or vexatious. BBO v.

Carey, BAR 18-04, 16-15 (Dec 20, 2018), pp. 17,18, affirmed BBO v. Carey, 2019 :t\,IB 136. The

need for screening is to make sure this Plaintiff has some oversight. The Order also bars Plaintiff

from working as a paralegal for his father, Attorney Thomas Carey. Id. p. 15. The reason is that

a father cannot practically monitor his son. Id. p. 15, n. 8.

In court orders in an earlier case, Order, Seth Carey v. Town ofRumford, Ox. Cty Sup. Ct.

Docket AP 20-01 (June 8, 2020), and an earlier order in this case, the court raised the concern

that cases, like this case, in which Thomas Carey files on behalf of Seth Carey are prepared and

pursued by Seth Carey, circumventing the Order. Seth Carey admitted preparing the documents

in this case. In re Petition for Reinstatement ofSeth Carey, Report of Findings and

Recommendations, Grievance Commission Panel E. BAR 22-001, p. 12 (April 22, 2022).

The Complaint filed in this case confirmed the need to extend the oversight, in the event

the Bar Order does not already require it, to cases filed by Thomas E Carey on behalf of Seth

Carey. Therefore, applying the court's authority as described in Spickler v. Key Bank ofS

Maine, 631 A.2d 204, 207 (Me. 1994), any Complaint filed by Thomas S. Carey on behalf of

Seth Carey must be submitted to the clerk for screening by the court prior to service.

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