STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION Docket No. AP-2021-18 ) ) CLEAN ENERGY FOR ME, LLC, ) ) Petitioner, ) ) V. ) RULE SOC DECISION ) MAINE COMMISSION ON ) GOVERNMENTAL ETHICS AND ) ELECTION PRACTICES, ) ) Respondent. ) )
Petitioner Clean Energy for ME, LLC, a/k/a Stop the Corridor ("STC") seeks
judicial review, pursuant to M.R. Civ. P. SOC, of the July 2, 2021 decision of Respondent
Maine Commission on Governmental Ethics and Election Practices ("the Commission")
not to modify the scope of a subpoena issued by the Commission on March 16, 2021. For
the following reasons, the Court denies STC' s appeal.
I. Background
In 2018, STC was formed as a Maine limited liability company for the purpose of
opposing the New England Clean Energy Connect ("NECEC") transmission line project.
(R. 13, 33-35.) On January 17, 2020, the Commission received a request that the
Commission investigate STC for allegedly failing to register as a political action
committee ("PAC") when it became involved in the campaign to place a referendum
question opposing the NECEC project on the November 2020 ballot ("the Ballot
Question"). (R. 31, 137.) The Commission considered the request to investigate at its
Page 1 of 6 March 10, 2020 meeting and voted to authorize an investigation into whether STC should
have registered as a PAC.' (R. 154-64.)
Based on preliminary information obtained from STC during the investigation,
Commission staff recommended also investigating whether STC should have registered
as a ballot question committee ("BQC"). (R. 174.) After hearing at the Commission's May
2020 meeting, the Commission voted to expand the scope of the investigation. (R. 174
81.)
On February 1, 2021, STC produced documents in response to a subpoena issued
by the Commission. (R. 139.) From the documents, the Commission learned of certain
business transactions between STC and two entities ("the Nonparty Entities") that
involved transfers of money while efforts related to the Ballot Question were underway.
(R. 143-44.) On March 16, 2021, the Commission issued a second subpoena ("the
Subpoena"). 2 (R. 2-4.) The Subpoena contained Requests Nos. 5 and 6, which sought all
documents relating to the Nonparty Entities or entities funded by or through the
Nonparty Entities. (R. 3.) On April 16, 2021, STC filed objections to the Subpoena with the
Commission. (R. 9-11.)
The Commission considered STC's objections as a request to modify at its June 11,
2021 meeting and June 18, 2021 meeting. (R. 12, 99.) The Commission voted to modify
Request No. 4 and not to modify Requests Nos. 5 and 6. (R. 104.) The Commission issued
its written determination on the request to modify on July 2, 2021 ("the Determination").
(R. 132-152.) This SOC appeal followed, in which STC appeals the Determination on the
1 21-A M.R.S. § 1003(1) (2019) authorizes the Commission to conduct investigations of electoral campaign activity and the registration and financial activities of political entities, including PACs. The Commission is authorized to subpoena witnesses and records for investigatory purposes. Id. 2 Only the second subpoena is at issue in this appeal.
Page 2 of 6 grounds that Requests Nos. 5 and 6 violate the Fourth Amendment to the United States
Constitution and Article 1, section 5 of the Maine Constitution.
II. SOC Standard
Review of final actions of state agencies by the Superior Court is governed by the
Maine Administrative Procedures Act, 5 M.R.S. §§ 11001-11008, and M.R. Civ. P. SOC. The
court is authorized to reverse an agency's decision if the decision is in violation of
constitutional or statutory provisions, in excess of statutory authority, made upon
unlawful procedure, affected by bias or error of law, unsupported by substantial
evidence in the record, or arbitrary or capricious or characterized by abuse of discretion.
5 M.R.S. § 11007(4)(C); see Goodrich v. Me. Pub. Emps. Ret. Sys., 2012 ME 95, 'l[ 6, 48 A.3d
212. The court shall not substitute its judgment for that of the agency on questions of fact.
5 M.R.S. § 11007(3).
III. Discussion
On appeal, STC challenges the decision of the Commission not to modify Requests
Nos. 5 and 6 on constitutional grounds. Specifically, STC argues that Requests Nos. 5 and
6 violate the Fourth Amendment to the United States Constitution and Article 1, section
5 of the Maine Constitution because the requests are overbroad and not relevant to the
purpose of the Commission's investigation. 3 The United States Supreme Court has held
that "when an administrative agency subpoenas corporate books or records, the Fourth
Amendment requires that the subpoena be sufficiently limited in scope, relevant in
purpose, and specific in directive so that compliance will not be unreasonably
burdensome." See v. Seattle, 387 U.S. 541, 544 (1967); see Donovan v. Lone Steer, 464 U.S.
408, 415 (1984); Cent. Me. Power v. Me Pub. Utils. Comm'n, 395 A.2d 414, 426 (Me. 1978)
3Article 1, section 5 of the Maine Constitution has been interpreted coextensively with the Fourth Amendment to the United States Constitution. State v. Gulick, 2000 ME 170, 'II 9 n.3, 759 A.2d 1085.
Page 3 of 6 (subpoena issued by administrative agency is enforceable if "(l) the inquiry is one the
demanding agency is authorized by law to make, (2) the information sought is relevant
to the authorized inquiry, and (3) the disclosure sought is reasonable, i.e., the demand is
not disproportionately burdensome or unreasonably broad").
A. Sufficiently Limited in Scope
STC argues that the requests are not "sufficiently limited in scope." STC claims
that Requests Nos. 5 and 6 exceed the scope of the Commission's investigatory authority
because the requested documents are unrelated to STC's activities in connection with the
Ballot Question. The scope of the investigation, which is to determine whether STC was
required to register as a PAC or STC, is squarely within the Commission's statutory
authority to investigate violations of Maine's campaign finance laws. See 21-A M.R.S. §
1003(1). As discussed below, the documents are clearly relevant to the Commission's
investigation. The record contains no evidence supporting STC's contention that the
documents are unrelated to activities within the scope of the Commission's investigatory
authority. Accordingly, the Court finds that Requests Nos. 5 and 6 are sufficiently limited
in scope.
B. Relevant in Purpose
STC argues that the documents sought in Requests Nos. 5 and 6 are not relevant
to the Commission's investigation. The underlying investigation seeks to determine
whether STC qualified as a PAC or BQC, and therefore whether STC violated Maine
campaign finance laws by failing to register as such. APAC is defined as including:
(1) Any separate or segregated fund established by any corporation, membership organization, cooperative or labor or other organization whose purpose is to initiate or influence a campaign;
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STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION Docket No. AP-2021-18 ) ) CLEAN ENERGY FOR ME, LLC, ) ) Petitioner, ) ) V. ) RULE SOC DECISION ) MAINE COMMISSION ON ) GOVERNMENTAL ETHICS AND ) ELECTION PRACTICES, ) ) Respondent. ) )
Petitioner Clean Energy for ME, LLC, a/k/a Stop the Corridor ("STC") seeks
judicial review, pursuant to M.R. Civ. P. SOC, of the July 2, 2021 decision of Respondent
Maine Commission on Governmental Ethics and Election Practices ("the Commission")
not to modify the scope of a subpoena issued by the Commission on March 16, 2021. For
the following reasons, the Court denies STC' s appeal.
I. Background
In 2018, STC was formed as a Maine limited liability company for the purpose of
opposing the New England Clean Energy Connect ("NECEC") transmission line project.
(R. 13, 33-35.) On January 17, 2020, the Commission received a request that the
Commission investigate STC for allegedly failing to register as a political action
committee ("PAC") when it became involved in the campaign to place a referendum
question opposing the NECEC project on the November 2020 ballot ("the Ballot
Question"). (R. 31, 137.) The Commission considered the request to investigate at its
Page 1 of 6 March 10, 2020 meeting and voted to authorize an investigation into whether STC should
have registered as a PAC.' (R. 154-64.)
Based on preliminary information obtained from STC during the investigation,
Commission staff recommended also investigating whether STC should have registered
as a ballot question committee ("BQC"). (R. 174.) After hearing at the Commission's May
2020 meeting, the Commission voted to expand the scope of the investigation. (R. 174
81.)
On February 1, 2021, STC produced documents in response to a subpoena issued
by the Commission. (R. 139.) From the documents, the Commission learned of certain
business transactions between STC and two entities ("the Nonparty Entities") that
involved transfers of money while efforts related to the Ballot Question were underway.
(R. 143-44.) On March 16, 2021, the Commission issued a second subpoena ("the
Subpoena"). 2 (R. 2-4.) The Subpoena contained Requests Nos. 5 and 6, which sought all
documents relating to the Nonparty Entities or entities funded by or through the
Nonparty Entities. (R. 3.) On April 16, 2021, STC filed objections to the Subpoena with the
Commission. (R. 9-11.)
The Commission considered STC's objections as a request to modify at its June 11,
2021 meeting and June 18, 2021 meeting. (R. 12, 99.) The Commission voted to modify
Request No. 4 and not to modify Requests Nos. 5 and 6. (R. 104.) The Commission issued
its written determination on the request to modify on July 2, 2021 ("the Determination").
(R. 132-152.) This SOC appeal followed, in which STC appeals the Determination on the
1 21-A M.R.S. § 1003(1) (2019) authorizes the Commission to conduct investigations of electoral campaign activity and the registration and financial activities of political entities, including PACs. The Commission is authorized to subpoena witnesses and records for investigatory purposes. Id. 2 Only the second subpoena is at issue in this appeal.
Page 2 of 6 grounds that Requests Nos. 5 and 6 violate the Fourth Amendment to the United States
Constitution and Article 1, section 5 of the Maine Constitution.
II. SOC Standard
Review of final actions of state agencies by the Superior Court is governed by the
Maine Administrative Procedures Act, 5 M.R.S. §§ 11001-11008, and M.R. Civ. P. SOC. The
court is authorized to reverse an agency's decision if the decision is in violation of
constitutional or statutory provisions, in excess of statutory authority, made upon
unlawful procedure, affected by bias or error of law, unsupported by substantial
evidence in the record, or arbitrary or capricious or characterized by abuse of discretion.
5 M.R.S. § 11007(4)(C); see Goodrich v. Me. Pub. Emps. Ret. Sys., 2012 ME 95, 'l[ 6, 48 A.3d
212. The court shall not substitute its judgment for that of the agency on questions of fact.
5 M.R.S. § 11007(3).
III. Discussion
On appeal, STC challenges the decision of the Commission not to modify Requests
Nos. 5 and 6 on constitutional grounds. Specifically, STC argues that Requests Nos. 5 and
6 violate the Fourth Amendment to the United States Constitution and Article 1, section
5 of the Maine Constitution because the requests are overbroad and not relevant to the
purpose of the Commission's investigation. 3 The United States Supreme Court has held
that "when an administrative agency subpoenas corporate books or records, the Fourth
Amendment requires that the subpoena be sufficiently limited in scope, relevant in
purpose, and specific in directive so that compliance will not be unreasonably
burdensome." See v. Seattle, 387 U.S. 541, 544 (1967); see Donovan v. Lone Steer, 464 U.S.
408, 415 (1984); Cent. Me. Power v. Me Pub. Utils. Comm'n, 395 A.2d 414, 426 (Me. 1978)
3Article 1, section 5 of the Maine Constitution has been interpreted coextensively with the Fourth Amendment to the United States Constitution. State v. Gulick, 2000 ME 170, 'II 9 n.3, 759 A.2d 1085.
Page 3 of 6 (subpoena issued by administrative agency is enforceable if "(l) the inquiry is one the
demanding agency is authorized by law to make, (2) the information sought is relevant
to the authorized inquiry, and (3) the disclosure sought is reasonable, i.e., the demand is
not disproportionately burdensome or unreasonably broad").
A. Sufficiently Limited in Scope
STC argues that the requests are not "sufficiently limited in scope." STC claims
that Requests Nos. 5 and 6 exceed the scope of the Commission's investigatory authority
because the requested documents are unrelated to STC's activities in connection with the
Ballot Question. The scope of the investigation, which is to determine whether STC was
required to register as a PAC or STC, is squarely within the Commission's statutory
authority to investigate violations of Maine's campaign finance laws. See 21-A M.R.S. §
1003(1). As discussed below, the documents are clearly relevant to the Commission's
investigation. The record contains no evidence supporting STC's contention that the
documents are unrelated to activities within the scope of the Commission's investigatory
authority. Accordingly, the Court finds that Requests Nos. 5 and 6 are sufficiently limited
in scope.
B. Relevant in Purpose
STC argues that the documents sought in Requests Nos. 5 and 6 are not relevant
to the Commission's investigation. The underlying investigation seeks to determine
whether STC qualified as a PAC or BQC, and therefore whether STC violated Maine
campaign finance laws by failing to register as such. APAC is defined as including:
(1) Any separate or segregated fund established by any corporation, membership organization, cooperative or labor or other organization whose purpose is to initiate or influence a campaign;
(4) Any person, including any corporation or association, other than an individual, that has as its major purpose initiating or influencing a
Page 4of 6 campaign and that receives contributions or makes expendihires aggregating more than $1,500 in a calendar year for that purpose; and
(5) Any person, other than an individual, that does not have as its major purpose influencing candidate elections but that receives contributions or makes expenditures aggregating more than $5,000 in a calendar year for the purpose of influencing the nomination or election of any candidate to political office.
21-A M.R.S. § 1052(5)(A) (2019). However, the definition of PAC excludes:
[O]rganization[s] whose only payments of money in the prior 2 years for the purpose of influencing a campaign in this State are contributions to candidates, party committees, political action committees or ballot question committees registered with the commission or a municipality and that has not raised and accepted any contributions during the calendar year for the purpose of influencing a campaign in this State.
§ 1052(5)(B). This exclusion is commonly referred to as the "donor exception."
A BQC is defined as an entity, other than a PAC, "who receives contributions or
makes expenditures, other than by contribution to a political action committee,
aggregating in excess of $5,000 for the purpose of initiating or influencing a campaign."
21-A M.R.S. § 1056-B (2019). 4
Thus, the nature and amount of an entity's expenditures, in part, determine
whether the entity is required to register as a PAC or BQC. Accordingly, information
about the aggregate of STC's expenditures, the purpose of the expenditures, the entities
to which expenditures were directed, and the purposes of the entities to which
expenditures were directed, is highly relevant to the investigation. While STC argues that
records relating to the Nonparty Entities are irrelevant because its payments to the
Nonparty Entities were made for purposes unrelated to the Ballot Question, the record
lacks any evidence supporting its contention. Review of the requested records is
necessary to shed light on this relevant question.
4 The Court notes that§ 1056-B was repealed effective October 18, 2021. The Commission's investigation centers on STC's activities during the time that§ 1056-B was in effect.
Page 5 of 6 C. Specific in Directive
STC argues that Requests Nos. 5 and 6 are not specific in directive because the
requests seek all documents related to the Nonparty Entities. However, STC does not
assert and the record does not support that producing the requested documents would
be unreasonably burdensome. 5 Moreover, the requests are clearly distinguishable from a
demand for unfettered access to all the books and records of an organization. See requires
only that an agency designate "the needed documents in a formal subpoena," which the
Commission has satisfied.
IV. Conclusion
For the foregoing reasons, the Commission's decision not to modify or vacate
Requests Nos. 5 and 6 of the Subpoena did not constitute a violation of the Fourth
Amendment to the United States Constitution or Article 1, section 5 of the Maine
Constitution. Accordingly, the Court denies STC's SOC appeal.
The entry is:
Petitioner Clean Energy for ME, LLC, a /k/ a Stop the Corridor's Rule SOC appeal is DENIED.
The Clerk is directed to incorporate this Decision into the docket by reference
pursuant to Maine Rule of Civil Procedure 79(a). I
Dated: I Ma <;;lay Kennedy, Justice J I ..~·ii)~ M..• I / Superior Cour/ 1
/
5 "Some burden on subpoenaed parties is to be expected, ... is necessary in furtherance of the agency's
legitimate inquiry and the public interest." United States v. Tivian Lab'ys, Inc., 589 F.2d 49, 55 (1st Cir. 1978) (quoting ITC v. Texaco, Inc., 555 F.2d 862, 882 (D.C. Cir. 1977)).
Page 6 of 6