Johnson v. Dunlap

• Court: Superior Court of Maine
• Decided: December 23, 2009
• Docket: KENap-09-56
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT KENNEBEC, SS. CIVIL ACTION DOCKET NO. AP-09;:56 ! j>l-IM -1'\€tJ- 1(;./(X~/dO I CHARLES L. JOHNSON III,

Petitioner

v. DECISION

MATTHEW DUNLAP, SECRETARY OF STATE,

Respondent

and

CHARLES WEBSTER

Intervenor

Before the court is the petition for review of final agency action of Charles

L. Johnson, III pursuant to M.R. Civ. P. SOC, 5 M.R.S.A. §11001 and 21-A M.R.S.A.

§905(2).

This dispute arises from the submission and review of petitions intended

to trigger a People's Veto referendum of "An Act to Implement Tax Relief and

Tax Reform," P.L. 2009, ch. 382 (effective 1/1/10) (hereinafter the "Tax Reform

Act") signed into law by Governor John Baldacci on 7/12/09.

Following the signing of the Tax Reform Act by Governor Baldacci,

Intervenor Charles Webster began circulating petitions to trigger a People's Veto

referendum pursuant to the Maine Constitution and the laws of the State of

Maine. Me. Const. Art. IV, pt. 3, § 17; 21-A M.R.S.A. § 905. Within 90 days of the

legislature's adjournment, Webster was required to submit at least 55,087

signatures, constituting ten percent of the total number who voted in the last gubernatorial election. Me. Const. Art. IV, pt. 3, § 17(1). On 9/11 / 09, Webster

submitted completed petitions containing approximately 71,035 signatures. The

Secretary stayed the effective date of the Tax Reform Act pending a

determination of the validity of the petitions.

When the People's Veto petition was filed with the Secretary of State, the

Secretary had 30 days to determine the validity of the petitions. 21-A M.R.S.A. §

905(1). Accordingly, the deadline to issue a decision was 10/13/09. The

Secretary failed to issue a decision by that date. On 11/2/09, Webster filed a

petition for review of agency action including an independent claim for

declaratory relief in the companion case, Webster v. Dunlap, AP-09-55.

On 11/9/09, the Secretary issued a Determination of the Validity of the

Petition for People's Veto of Legislation, invalidating 14,928 signatures for

various reasons, but finding Webster had submitted 56,107 valid signatures. On

11/17/09, Petitioner l Charles Johnson filed his Petition for Review of Final

Agency Action alleging the Secretary failed to invalidate at least 1,021 signatures

that were in some way deficient.

Petitioner assigns five areas of error by the Secretary of State. Petitioner's

specific arguments include that (1) petitions containing 4480 signatures are

invalid because the oaths of circulator's were administered by Stavros Mendros,

a notary public who petitioner alleges is a "self interested notary" due to

payments received by his company for organization of signature gathering

services; (2) petitions containing 3837 signatures are invalid because Cynthia

Petitioner is a registered voter in Town of Hallowell. 21-A M.R.S.A. § 905(2) permits any voter to appeal a decision by the Secretary validating a petition.

2 Mendros2 f/k/ a Cynthia Bodeen signed the attestation that she administered the

circulators' oaths on the petitions as "Cynthia Bodeen" when her legal name was

in fact "Cynthia Mendros;" (3) 315 signatures are invalid because the signatories

do not appear on the Central Voter Registry (CVR), which petitioner contends is

the authoritative database to determine whether a person is a registered voter; (4)

signatures are invalid because the Secretary relied on the certifications of town

registrar's that the signatories were registered voters and did not conduct his

own independent investigation; and (5) 1042 signatures are invalid due to factual

issues presented on the face of the petitions, including incorrect dates, illegible

signatures, duplicate signatures, and clerical errors. In total, accounting for

signatures that fall into more than one category, petitioner has challenged that

9674 signatures are invalid.

On 12/21/09, this court entered a decision in the Webster case, holding

that the Secretary had lost his authority to act by failing to complete his review

within the thirty-day period proscribed in 5 M.R.S.A. § 905. The holding in

Webster necessarily means that any error the Secretary's substantive review in

this case is moot. However, in the event that the Webster decision is not

sustainable on appeal and due to constrained deadlines for judicial review in this

case, the court addresses the merits of petitioner's claims.

In conducting a judicial review of the evidence presented by the record

and additional evidence, the court is guided by two important principles

established in Maine law. The power in the agency "to reject names and names

falsely certified may tend to prevent fraud and to protect the referendum from

Cynthia Mendros and Stavros Mendros are married. Accordingly, petitioner argues that if the court invalidates petitions due to Stavros Mendros' financial interests, petitions containing an attestation by Cynthia Mendros should be similarly invalidated.

3 disrepute." Opinion of the Justices, 116 Me. 557, 103 A. 761, 772 (1917). On the

other hand, in the context of the direct initiative, the Maine Constitution "cannot

be said merely to permit the direct initiative of legislation upon certain

conditions. Rather, it reserves to the people the right to legislate by direct

initiative if the constitutional conditions are satisfied."McGee v. Secretary of State,

2006 ME 50, <[ 25; 896 A.2d 933, 941. Certainly the Constitution creates the right in

the people to veto legislation under certain conditions. Accordingly, this court is

constrained to require a constitutional, statutory, regulatory or common law

basis to overturn a decision of the respondent in accordance with the

Administrative Procedures Act.

Subsequent to the filing of his petition, discovery procedures revealed that

two individual notary publics taking the oaths of circulators on petitions

containing 8,550 signatures had a financial interest in the outcome of the petition

campaign by contract with the sponsor of the referendum. This allegation was

not presented to the Secretary of State and is not a part of his validation process.

The issue, therefore, is whether, as a matter of law, those documents containing

the acknowledgement of those notaries must be disallowed and the signatures

thereon not validated to meet the veto referendum requirement. Petitioner relies

on public policy and a publication of the Secretary called the Notary Public

Handbook and Resource Guide. The document states that a notary public must

not act in any official capacity if there is any interest that may affect impartiality.

The statement relies upon the general "conflict of interest" principle and refers to

a "beneficial interest" rule. This provision of the Handbook does not rely on any

4 statute or regulation nor does it provide the basis for invalidating elector's

signatures under the circumstances. 3

Petitioner further challenges the notary's authority to take the oath of the

circulator on a petition wherein the notary has signed as a registered voter. To

this deficiency, the Secretary responds that the Constitution spells out very

clearly the role of the notary in the referendum petition process, to administer an

oath to a circulator who swears that the signatures on the petition are original,

made in the presence of the circulator and that to the circulator's best knowledge

and belief, each signature is that of the person whose name it purports to be. Me.

Const. Art. IV, pt. 3, § 20.

Whatever concerns may be appropriate regarding the public interest in

the enforcement of a rule of "conflict of interest" or "beneficial interest" the

court has not been presented with any substantive law to cause it to invalidate

the signatures on petitions acknowledged under such circumstances.

Likewise, the petitioner has challenged the signatures on petitions on

which the notary public has taken the oath of a circulator by signing her previous

name and not her married name existing at the time of the acknowledgement. It

is clear from the record that a notary public involved in a substantial number of

petitions applied for, was granted and is registered with the Secretary under her

name at the time of the application. However, without notification to the

Secretary, she married and assumed the surname of her husband prior to this

petition campaign. By administrative rule, a notary public must notify the

3 The court is advised by the Assistant Attorney General at oral argument that a Maine statute prohibiting the payment of circulators on the basis of number of signatures was struck down by the Federal District Court on Constitutional grounds. See On Our Terms '97 Pac v. Secretary ofMe., 101 F. Supp.2d 19 (D. Me. 1999).

5 Secretary of a change of address, email address, name or other contact

information within 10 days of the change. 29-250 CMR Ch. 700. This, also,

appears in the Handbook. However, there is no indication that such a filing is a

condition that must be met in order for the notary to perform her duties with

authority as long as she does not use the name of another and the name used is

consistent with that registered with the Secretary. See Maine Taxpayer's Action

Network v. Sec'y of State, 2002 ME 64, 795 A.2d 75. Further, there does not appear

to be any authority for the proposition that use of the registered name rather

than the new married name invalidates the function performed on the

referendum petitions.

Petitioner's third argument is that the signatures of persons who do not

appear on the Central Voter Registry are invalid. See 21-A M.R.S.A. § 902

(providing that verification of people's veto must be conducted in the same

manner as nonparty nomination petitions); 21-A M.R.S.A. § 354(7)(C)(providing

that, for nomination petitions, the registrar "shall certify which names on a

petition appear in the central voter registration system as registered voters in

that municipality and may not certify any names that do not satisfy subsection

34 "). An examination of the language of the statute reveals the deficiency with

petitioner's argument. Section 354 requires that the registrar shall certify names

that are found on the CVR. The statute does not provide that the registrar is

required to invalidate names due to their absence on the CVR. To the extent that

an argument could be made that the negative implication of Section 354 is that

the CVR is the exclusive authority to consult in determining whether a name

could be certified, the sentence of Section 354 providing that the registrar may 4 Subsection 3 requires that the voter must personally sign the petition.

6 not certify names under certain conditions reveals that the Legislature did not

intend such an implication.

Petitioner's fourth argument is that the Secretary is under an independent

duty to review signatures under section 90S, notwithstanding valid certificates

from the municipal registrars that the names on the petitions are of persons

qualified to vote in the municipality. Presumably, this review would require the

Secretary to consult the CVR, as the CVR is the voter list within the Secretary's

custody. This argument presents two problems, one resulting from the text of

section 905 and another from the constitution. Section 905 requires the Secretary

to review the "petitions," not the individual signatures. Accordingly, it would

be difficult to read section 905 as imposing a mandatory duty to inspect each

individual signature rather than relying on the certificate by the municipal

registrar that the names are those of persons qualified to vote. s With regard to

the Constitutional issue, Section 20 of Article IV, part third of the Maine

Constitution defines "electors" as the persons of the State qualified to vote for

Governor. The certification of the registrar that the names "appear on the voting

list of the city, town, or plantation of the official as qualified to vote for

Governor" constitutes prima facie evidence that the signatories to the petitions

are registered voters. Me. Const. Art. IV, pt. 3, § 20; Opinion of the Justices, 116

Me. 557, 571, 103 A. 761, 768 (1917). Additionally, 21 M.R.S.A. § 121 provides

that the registrar has the "exclusive power" to determine whether a person is a

registered voter, and being listed on the CVR is not considered a prerequisite to

This does not imply that the Secretary lacks the power to review individual signatures for duplicates, forgery, and other issues. Rather, it means that relying on the certificates of municipal registrars, who have the "exclusive power" under 21-A M.R.S.A. § 121 to determine whether a person is a registered voter is not error.

7 voting for Governor under Title 21-A. See also Palesky v. See'y of State, 1998 ME

103, fJI 13, 711 A.2d 129, 133 (acknowledging the registrar's exclusive authority to

maintain the municipal voting list). Accordingly, if the Secretary had the

authority to invalidate a person's signature because his or her name is not listed

on the CVR, that authority would infringe upon the right any person "qualified

to vote for Governor," who is absent from the CVR for one reason or another, to

sign a people's veto petition. Me. Const. Art. IV, pt. 3, § 20.

The remaining challenges by petitioner relate to particular factual

allegations regarding specific signatures. The Secretary has explained the

activities undertaken by him and his staff to address the alleged deficiencies but

the explanations take the form of arguments in the briefing material and the

statute providing for judicial review is specific regarding the correction of the

record and the taking of additional evidence. The respondent has not requested

the taking of evidence on these issues. Under the circumstance, the court would

normall y remand the matters to the Secretary to prepare findings for the court's

review. However, inasmuch as the present situation is more than 100 days from

the filing with the Secretary and the Constitution anticipates the final review by

the appellate court within that period, the court does not seem to have such a

luxury. Relying on the record, as corrected, the court considers the petitioner's

challenges.

The parties agree that there are an additional 62 signatures that may be

considered duplicates notwithstanding the agency review and the court will

disallow same.

The petitioner asserts that an additional three signatures are illegible and

must be disallowed. He premises the claim on his argument that the Secretary

8 has the statutory authority to make the final determination of each signature, a

premise to which this court disagrees as held above. The court is satisfied that

the Secretary has the authority to rely on the local registrar who has examined

the writing and the printed name and has certified the voter. As stated in the

procedure required by the Secretary in his People's Veto Petition Certification

Instructions, ("Instructions") found in the record, " ... if you believe the voter

has signed the petition, you may accept it. We want to give the benefit of the

doubt to the voter who signed the petition."

The petitioner challenges over 500 signatures he claims were written after

various petitions were notarized. Based on date issues, he asserts that the

signatures were either dated after the notary took the circulator's oath, the

signature was not dated or the signature was dated outside of the circulation

period. He challenges the acceptability of the Secretary in making an assumption

that undated signatures, or signatures with unlikely dates are not in compliance

with the Constitution. To some degree, he, again, relies on his position that the

Secretary has an independent duty not to rely on the notarized oath of the

circulator. The Instructions provide that the signatures must be determined to

have been entered during the circulation dates between June 30, 2009 and

September 8, 2009. It requires a signature to be discounted only if the reviewer

"cannot determine what the date of signing was." This allows the consideration

of factors such as obvious mistakes in a date and other dates appearing on the

petition. The respondent accepts the challenge as to 66 signatures but denies a

factual basis for the others. The court is satisfied that the agency exercised

acceptable judgment in this circumstance.

9 Me. Const. Art. IV, pt. 3, § 20 requires that petitions "must be submitted to

the appropriate officials of cities, towns or plantations, or state election officials

as authorized by law, for determination of whether the petitioners are qualified

voters by the hour of 5:00 p.m. on the fifth day before the petition must be filed

in the office of the Secretary of State, ..." Presumably this important provision is

to assure the registrars receive the petitions before the close of business and have

sufficient time to certify the signatures. Mr. Johnson alleges that 117 signatures

were on petitions submitted to the town clerks after the Constitutional deadline.

The Secretary agrees as to 54 signatures. However, he argues that in spite of

being encouraged to do so, not all town clerks have and use date stamps. In his

brief, the Secretary asserts that he is in possession of evidence to establish receipt

by the officials in due time. The record is not clear as to the complaint and the

court makes no findings except to accept the allegation.

Three signatures are challenged because the date of notarization is

indicated as September 27, 2009. The response is that the other signatures are

dated in the vicinity of August 2~ and on September 27, 2009, the petition was

already in the possession of the Secretary. This is an obvious error and

recognized as such by the Secretary within his discretion.

The petitioner challenges 1,597 signatures because the signature of the

notary is illegible. This happens to be the notary whose name change has

occasioned the challenge previously discussed. As is recognized by the court in

the case of the registrars familiar with a number of characteristics of the

registered voter, the Secretary has sufficient documentation and familiarity with

this notary public's signature to remove doubt as to authenticity. Examples of

such documentation exist in the record.

10 With the exception of the findings of this court in Webster v. Dunlap, AP

09-55 (Ken. Cty. Sup. Ct., Dec. 21, 2009), as to the date of the Secretary's

determination, the court is satisfied that the agency decision of the Secretary of

State in this matter is founded upon constitutional and statutory provisions, not

in excess of such authorities, followed lawful procedure, was not affected by bias

or error of law, is supported by substantial evidence, (with the minor exceptions

as noted) and is not arbitrary or capricious or characterized by abuse of

discretion.

Accordingly, the entry will be:

The Determination of the Validity of a Petition for People's Veto of Legislation Entitled: "An Act To Implement Tax Relief and Tax Reform" dated November 9, 2009 by the Office of the Secretary of State is AFFIRMED.

December 23,2009

JUSTICE, SUPERIOR COURT

11 Date Filed 11 /17 /09 Kennebec Docket No. A_P_-_09_-_5_6 _ County

Action P_e_t_i_t_i_o_n"""'F"o;-r_R_e_v_i_e_w _ 80C Daniel Billings, Esq. (Intervenor) 44 Elm Street PO Box 708 Waterville, Maine 04901-0708

Charles L. Johnson, III Secretary of State vs. Plaintiff's Attorney Defendant's Attorney

John M.R. Paterson, Esq. Phyllis Gardiner, AAG PO Box 9729 6 State House Station Portland, ME 04104-5029 Augusta, ME 04333-0006

Date of Entry

11/18/09 Petition For Review of Final Agency Action, filed 11/17/09. Motion To Take Additional Evidence, filed 11/17/09, w/ Statement Of Additional Facts Requested To Be Presented To The Court. s/Paterson, Esq. 11/20/09 Letter entering appearance, filed. s/Gardiner, AAG Hearing scheduled for 11/23/09 at 9:00 a.m. Called attys. of record. Motion of Charles Webster to Interven, filed. s/Billings, Esq. Proposed Order, filed. Charles Webster's Motion to Consolidate, filed. s/Billings, Esq. Proposed Order, filed. 11/30/09 SCHEDULING ORDER, Marden, J. (11/25/091 Copies to attys. of record. Certification of Record, filed. Affidavit of Julie L.Flynn, Deputy Secretary of State, filed. s/Flynn 12/7 /09 Motion for Modification of Record Under M.R.CIV.P. 80C(f)(or in the Alternative Motion to Take Additional Evidence Under M.R.CIV.P 80C(e)), filed. s/Paterson, Esq. Joint Stipulation, filed. s/Paterson, Esq. 12/9/09 Inclusion in the Agency Record, filed. s/Gardiner, AAG

12/14/09 Petitioner's Motion for Extension of Time to File Compliation of Supportin Documents from the Record, filed. s/Paterson, Esq. Petitioner's Brief, filed. s/Paterson, Esq. (attachments in the vault) 12/16/09 Motion for Leave to File Amended Brief and Take and Present Additional Evidence, filed. s/Paterson, Esq. Motion for Oral Argument, filed. s/Paterson, Esq. Proposed Order, filed. 12/16/09 Respondent's memorandum in Response to Petitioner's Motion to Modify Record, filed. s/Gardiner, AAG Date of Entry Docket No.

Notice of soltmg tor~1~~-lJ-tL~~~ o.~ sent 10 attorneys o·~ l"3cord. 12/17/09 Supplement to Petitioner's First Amended Brief in Support of Petition for Review, filed. s/Paterson, Esq. Supplemental binder with attachments, filed. s/Paterson, Esq. 12/18/09 Respondent's Motion for Enlargement of Time to File 80C Brief, filed. s/Gardiner, AAG Response to Motion £or Modification of the Record. ORDER, Marden, J. GRANTED Copies to attys. of record. 12/21/09 Intervenor's 80C Brief, filed. Billings, Esq.

Respondent's Brief, filed. s/Gardiner, AAG

12/21/09 Intervenor's Memorandum of Law in Opposition to Petitioner's Motion for Leave to File Amended Brief & Take and Present Additional Evidence s/Billings, Esq. Joint Stipulation, filed. s/Paterson, Esq. 12/21/09 Respondent's Motion to Correct Agency Record, filed. s/Gardiner, AAG Corrected Index to Agency Record.

12/22/09 Petitioner's Motion to Strike Portions of Respondent's Brief, filed. s/Paterson, Esq. Proposed Order, filed. Petitioner's Rule 80C Reply Brief, filed. s/Paterson, Esq. (attachments A,B,C) Hearing held with the Hon. Justice Donald Marden, presiding. John Paterson, ESQ. for the Petitioner, Phyllis Gardiner, AAG for the Respondent, and Daniel Billings,Esq. Intervenor. Oral arguments made to the court. Mtn. to Take Additional Evidence is withdrawn Mtn. to Amend Brief/Mtn. to Take Additional Evidence is Granted. Stipulation of Parties to Change Name is Granted. Petitioner calls S. Mendros as a witness. Court to take matter under advisement. Court to issue order.

12/23/09 DECISION: Accordingly, the entry will be: the determination of the petition for People's Veto of Legislation Entitled: "An Act To Implement Tax Relief and Tax Reform" dated November 9, 2009 by the Office of the Secretary of State is AFFIRMED. Order dated 12/23/09. /s/ Justice Marden. Copy of order to Atty Paterson, AAG Gardiner and Atty Billings. 12/28/09 Transcript, filed. s/Tammy Drouin, CR

Copy of Decision mailed to repositories