Dunn v. Bellows

• Court: Superior Court of Maine
• Decided: March 7, 2023
• Docket: KENap-23-07
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT KENNEBEC, ss. CIVIL ACTION Docket No. AP-23-07

NL9 WILLIAM H. DUNN, JR.,

Ne Le9 Petitioner,

ee Le v.

Ne Ne SHENNA BELLOWS, in her official

Ne capacity as Secretary of State for the DECISION AND ORDER

Ne State of Maine,

Se ee9 Respondent, ee= ee=

and, Se9 ee=

NO BLANK CHECKS BALLOT Nee

QUESTION COMMITTEE, ee Nee Nome

Intervenor. Nee Nem

Introduction

Petitioner William H. Dunn, Jr. (

56 signatures exists.' Among the errors alleged, Petitioner contends that the Secretary failed to comply with the statutory requirements governing circulator affidavits, as set forth in 21-A M.R.S. § 903-A(4). For relief, Petitioner asks the court to remand the matter to the Secretary for invalidation of the challenged signatures or to directly reverse the Secretary9s decision.

By statute, the court is required to decide this appeal

Background

By way of some brief background,= William Ritch-Smith filed an Application for Citizen9s Initiative with the Secretary on September 7, 2021. On December 7, 2021, the

Secretary approved the form of the petition, and supporters of the initiative thereafter began collecting signatures. As part of that process, the individuals who solicited signatures for the petition4i.e., the circulators 4prepared

On December 27, 2022, the campaign submitted to the Secretary 28,238 petitions containing 93,837 signatures. The Secretary then proceeded to review the petitions over a period of 30 days. On January 26, 2023, the Secretary issued her Determination of the Validity of the Petition for Initiated Legislation. In her written Determination, the Secretary

' Petitioner originally challenged 1,184 signatures. This number changed after Petitioner acknowledged various signatures that were erroneously included in the challenged signature tally and identified additional signatures that were subject to challenge. 2 Given the truncated timeframe for issuing a decision, the court dispenses with a lengthy factual and procedural background. invalidated 25,030 signatures, 28 of which were deemed

The court9s discussion must begin with recognizing the various constitutional rights and principles implicated in this case. The Maine Constitution grants Maine people the right to legislate by direct initiative. Me. Const. art IV, pt. 3, § 18. The Law Court has stressed the importance of such a right, declaring

The Law Court has also recognized that <[t]he circulation of direct initiative petitions is 8core political speech,9 and any state regulation of the initiative process must be 8narrowly tailored9 to carry out a compelling state purpose.= Me. Taxpayers Action Network v. Sec'y of State, 2002 ME 64, 4 8, 795 A.2d 75. Laws governing the initiative process should therefore be construed in a way that avoids imposing an impermissible burden on protected speech. See id.; see also State v. Cropley, 544 A.2d 302, 304 (Me. 1988). Moreover, under the Maine Constitution, <[t]he Secretary of State is the constitutional officer entrusted with administering4and having expertise in4the laws pertaining to the direct initiative process.= Reed v. Sec'y of State, 2020 ME 57, ¥ 18, 232 A.3d 202. The Secretary has been granted plenary power to investigate and determine the validity of petitions. Me. Taxpayers Action Network, 2002 ME 64, § 12 n.8, 795 A.2d 75.

When assessing the Secretary9s determination of initiative petitions, the Court's review must be deferential and limited, keeping in mind the Secretary9s

80C, except as modified by this section.= 21-A M.R.S. § 905(2). In Palesky v. Sec9y of State, the Law Court held that <[t]he provisions of section 905 that could be deemed 8modifications9 of Rule 80C relate to the expedited timing of the appeal.= 1998 ME 103, 4 5, 711 A.2d 129. The Palesky court further concluded that 21-A M.R.S. § 905 does not require

Under Rule 80C, the court is not permitted to overturn an agency9s decision

or error of law; or is unsupported by the evidence in the record.= Kroger v. Dep9t of Envtl. Prot., 2005 ME 50, 7, 870 A.2d 566; 5 M.R.S. § 11007(4). The party seeking to vacate a state agency decision has the burden of persuasion on appeal. Anderson v. Me. Pub. Emp. Ret. Sys., 2009 ME 134, 43, 985 A.2d 501.

When reviewing agency decisions, the court must examine <<8the entire record to determine whether, on the basis of all the testimony and exhibits before it, the agency could fairly and reasonably find the facts as it did.9= Friends of Lincoln Lake v. Bd. of Envtl. Prot., 2010 ME 18, 4 13, 989 A. 2d 1128. The court may not substitute its judgment for that of the agency on questions of fact. 5 M.R.S. § 11007(3). The issue is not whether the court would have reached the same result the agency did, but whether the <8record contains competent and substantial evidence that supports the result reached9= by the agency. Seider v. Bd. of Examiners of Psychologists, 2000 ME 206, § 8, 762 A.2d 551.

To the extent this case requires statutory interpretation, the court

Discussion On appeal, Petitioner points to various alleged deficiencies in the circulator affidavits and signatures submitted in support of the direct initiative petition at issue. Among his challenges, Petitioner argues that the Secretary validated certain circulator affidavits (along with the signatures associated with them) in violation of the of 21-A M.LR.S. § 903-A(4). According to Petitioner, Section 903-A(4) creates a mandate that

At oral argument, Petitioner conceded that if the court disagrees with his contentions regarding the mandatory and unambiguous nature of Section 903-A(4), Petitioner will not have the signatures he needs to meaningfully influence the final signature tally and to obtain a reversal of the Secretary9s determination of validity. The court9s own calculations confirm the same. As the issue is essentially outcome-determinative, the court first examines Petitioner9s contention that the Secretary erroneously accepted circulator affidavits that did not comply with Section 903-A(4)9s requirements4specifically, the statutory requirement that the circulator affidavit include

To support his argument in this regard, Petitioner points the court to the affidavits of circulators Tyler Dorn (291 signatures), Elliot Oullette (1 signature), Isaac Pierce (71 signatures), Joseph Winn (135 signatures), and Drew Collins (64 signatures). See Pet.9s Br. at 6. While these affidavits include a notarization date, the date next to the circulators9 signature was either incomplete or omitted, as exemplified by the circulator affidavits reproduced below: tg RP State of Maine 9 a Circulator AMdavit and Certificate of Registration a For Cirlten's Initlotive and People's Veto Petiilons

A now Cotktes __ currently reside at the following address: Printed Name of Circulator

Sh Street lle, fuses pve Gornen /Meeey OU6I9 Number and Name City, State and Zip Code

and being duly swom, hereby affirm the following: Uhave read and und d the ink ion provided by the of State's Office to the applicant, ; Pursuant to Title-21-A §903-A, sub-§3, including the laws and rutes governing the circulation of petitions; the laws govern d under Title 21-A §904 if | violate ing of the circulation lund d that I canbe p petitions, including the requirement that I execute this Circulator's Affidavit truthfully;

Lunderstand that this A(Tidavit must be filed with the Secretary of State at the time the signed petitions Prankle R. Keele, Notary Public we Bled. State of Malas RESIDENCY (check gne box): My Commission Rapires 12/2023

Bl 1 was a resident of the State of Maine at all times when | cicculated the petition.

ident of the State of Maine irculated the petition, but t i during part or all of the time | circulated many invesiaalarreRt Notap/ pub! a ao oes to submit myself to the jurisdiction of the State of nod for S coatnne tate oft Mal 8 prosecutioi n of alleg: ed violations of Title 21-A of the Maine 27023 VOTER REGISTRATION (check one box): at ell times when I circulated the petition. (1 1 was registered to vote In the State of Maine City/Town of Reg part or all of the time I circulated the petition. I was not registered to vote in the State of Maine during

Signature of Circulator: oi _ Ale Date: ING STATE of: _4MAWe th. county of _ SUN BER AM dae: R= 1b ef ed circulator and made oath that the fesogalng wtety P ersnully appeared befor a en pereona knowledge. State of Mala yr by him/herate true ; My CemuitistonBapipes 1192023 c: Signature of Notary Publi Bitinted Name: FRAWK, )E R KeE ~

fLgF Commission number (if'not Maine}: J 9949 Pe on expires: IM ~ x Se State of Maine AN Ae : Circulator AMfdavit and Certificate of Registration P Tt For Citizen's Initlative and People's Veta Petitions

IL Tseng Petre . ly reside at the ig adidress: Printed Name of Circulator ie) Tow, Shoes. Ceetis AR ators Street Number and Name City, State and Zip Code

and being duly swom, hereby affinn the following: Vhave read and und d the infc lon provided by the Secretary of State's Office to the applicant, Pursuant fo Title-21-A §903-A, sub-§3, including the laws and rules g ing the lation of p lund d that Lean be ¢ under Title 21-A §904 if I violate the faws governing the circulation of petitions, including the that l execute this Circulator's Affidavit truthfully; T understand that this Affidavit must be filed with the Secretary of State at the time the signed petitions are filed.

RESIDENCY (check one box): / Q I was a resident of the State of Maine at all times when J circulated the petition.

>-4 [twas nota resident of the State of Meine during part or all of the time | circu! lated the petition, but J o to the jurisdiction of the State of Maine for any investigation and/or Teo iAor on Meged vvole of alleged i of Title 21-A of the Maine Revised Statutes.

VOTER REGISTRATION (cheek gone box): when [ circulated the petition. Oo 5 was registered to vote in the State of Maine at all times - ade. Baden City/Town of Reg the petition. of Maine during part or all of the time Leirculated oO 1 was not registered to vote in the State pate: 2/2] . ee ae OLE, 4~4 Signature of Circulator:

sTATEof: (Mat, nue 1eferfpae UNT Loum berlaad ° oath t hat the foregoing statenients made co vor the above-named circulator and made Personally appear ed before me his/her own personal knowledge. . SERN. COUSING = im/her ere true and correct to by kiminer ="- LA 44 | Here rublic, State of Haloe oe = My Coruiubsalon Expires Ape, 14 2028 Signature of Nol tary Public: Cousm> Grones name: Christopker #. Commlesion number (if not Maine): My Commission expires: Ota) zone

According to Petitioner, the circulator affidavits should have been rejected by the Secretary for failure to comply with the unambiguous mandates of 21-A M.R.S. § 903- A(4). Resolution of this issue requires the court to interpret the language of Section 903- A(4). That provision states in relevant part:

4. Circulator affidavit. A person who circulates a petition shall execute an affidavit that must include:

A. The circulator9s printed name, the physical address at which the circulator resides and the date the circulator signed the affidavit.

21-A MLR.S. § 903-A(4).

In the court9s view, the requirements of Section 903-A(4) are not as explicit as Petitioner suggests. As counsel for the Secretary notes, the statute does not mandate a particular form for the affidavit, only what must be included. Indeed, the court finds ambiguity in the term

As previously discussed, the court is bound to defer to the Secretary9s reasonable interpretation of an ambiguous statute governing the citizen initiative process. Reed, 2020 ME 57, { 18, 232 A.3d 202. The record reveals that the Secretary treated the notarization date4i.e., the date the notary witnessed the signature4as

The Secretary9s interpretation was consistent with the language of Section 903- A(4). See Reed, 2020 ME 57, ¥ 19, 232 A.3d 202 (finding Secretary9s statutory interpretation reasonable

3 Petitioner suggests that the terms

Thus, notwithstanding the missing and incomplete signature dates, the court concludes that the Secretary adhered to Section 903-A(4)(A) when she accepted the challenged circulator affidavits. As the court finds no error in the Secretary9s validation of the signatures associated with these circulator affidavits, Petitioner lacks the signatures he needs to obtain a reversal of the Secretary9s Determination or to otherwise justify a remand to the Secretary.

Conclusion

The entry is: The Secretary of State9s Determination of the Validity of the Petition for Initiated Legislation is AFFIRMED.

* Petitioner also suggests that the Secretary inconsistently and arbitrarily applied the requirements of Section 903-A(4). To support this contention, Petitioner notes that the Secretary rejected certain circulator affidavits on which the circulator failed to affix a signature. A circulator9s failure to sign the affidavit is a serious and fundamental error that casts doubt on the reliability of the entire affidavit. Such an omission cannot be likened to the minor date discrepancies alleged here, particularly where the full date appeared in the notary block. As such, it was reasonable for the Secretary to accept the affidavits with the alleged

Date: March 7, 2023 Vote SN

Michaela Murphy Justice, Maine Superior Court