Mainers for Fair Bear Hunting v. Maine Dept. of Inland Fisheries & Wildlife

• Court: Superior Court of Maine
• Decided: March 31, 2015
• Docket: CUMcv-14-414
• Status: Unpublished

Opinion

twl STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION DOCKET NO. CV-14-414

MAINERS FOR FAIR BEAR HUNTING and KATIE HANSBERRY, Plaintiffs

v. ORDER ON DIFW'S MOTION TO DISMISS

MAINE DEPARTMENT OF INLAND FISHERIES AND WILDLIFE, Defendant

and MAR 3 l 2015

MAINE WILDLIFE CONSERVATION COUNCIL, Intervener

Before the court is defendant Department of Inland Fisheries & Wildlife ("DIFW")'s

motion to dismiss count II of the complaint. Following the election on November 4, 2014 in

which Question 1 was defeated, defendant argues that plaintiffs lack standing and that count II is

moot. Maine Wildlife Conservation Council ("MWCC"), which opposed Question 1, joins in the

motion. For the following reasons, the motion is granted.

Background

Plaintiff Mainers for Fair Bear Hunting ("MFBH") 1s a Maine Ballot Question

Committee and was a proponent of Question 1, which read: "Do you want to ban the use of bait,

dogs or traps in bear hunting except to protect property, public safety, or for research?" Plaintiff

Katie Hansberry served as MFBH's campaign director. Voters rejected the measure. Leading up to the election, plaintiffs filed their two-count complaint on September 30,

2014. Count I alleged certain FoAA violations and has been largely resolved. The parties agreed

to bifurcate counts I and II to allow the court to enter a final judgment on plaintiffs' primary

claim. (3/16115 Stipulation.) Count II alleges the illegal expenditure of public funds over

DIFW's advocacy against Question 1, which, most notably, included MWCC's TV commercials

showing DIFW staff in uniform discussing their opposition to the ballot measure. Plaintiffs filed

a motion for a temporary restraining order, which the court denied on October 22, 2014.

Plaintiffs sought expedited review in the Law Court, but the Law Court declined to expedite the

case on October 30, 2014. Plaintiffs then withdrew their appeal. On March 6, 2015, defendant

moved to dismiss count II of plaintiffs' complaint.

Discussion

Defendant challenges plaintiffs' standing and argues that count II is moot. "Standing and

mootness are closely related concepts describing conditions of justiciability." Madore v. Me.

Land Use Regulation Comm 'n, 1998 ME 178, ~ 8, 715 A.2d 157. "Standing to sue means that

the party, at the commencement of the litigation, has sufficient personal stake in the controversy

to obtain judicial resolution of that controversy." Halfway House, Inc. v. City of Portland, 670

A.2d 13 77, 13 79 (Me. 1996). "When a party initially holds the requisite personal interest, but is

later divested of that interest" the doctrine of mootness applies. Madore, 1998 ME 178, ~ 8, 715

A.2d 157. As the major organizing proponent of Question 1, the court is satisfied that plaintiff

MFBH and its campaign director had a sufficient stake in the controversy at the outset of

litigation to present a justiciable case. See McCaffrey v. Gartley, 377 A.2d 1367, 1370 (Me.

1973). The court will therefore focus on whether count II is moot.

2 Mootness

In deciding whether a case is moot, the court must determine "whether there remain

sufficient practical effects flowing from the resolution of the litigation to justify the application

of limited judicial resources." Halfway House, Inc. v. City of Portland, 670 A.2d 1377, 1380 (Me.

1996). The issue is often phrased in terms of whether a decision from the court could provide the

litigants with any effective relief. Me. Civil Liberties Union v. City ofS. Portland, 1999 ME 121,

~ 8, 734 A.2d 191. "The mootness doctrine preserves the 'flexibility of the law by not creating

unnecessary precedent."' Gordan v. Cummings, 2000 ME 68, ~ 10, 756 A.2d 942 (quoting

Graffam v. Wray, 437 A.2d 627, 631 (Me. 1981)).

Plaintiffs' allegations in count II of the complaint are all focused on campaign activity

leading up to the Question 1 vote. (Compl. ~~ 98, 102-103.) Plaintiffs request for relief under

count II states:

[T]he plaintiffs respectfully request this Court to (a) permanently enjoin IF&W from further use of agency resources, including staff time, to oppose Question 1; (b) order IF&W to immediately remove political content from its website, YouTube channel, and other outlets; (c) order that the current television advertisement produced using IF &W resources be immediately removed from the air; (d) order repayment of funds illegally expended to the Treasurer of the State of Maine; (e) award Plaintiffs their· attorneys' fees and other costs for the maintenance of this action; and (f) grant such other and further relief as this Court may deem just and appropriate.

Now that the election is over, the agency is no longer using any resources to oppose Question 1

and the television ads are no longer airing. The court does not have the authority to invalidate the

election results. Me. Sch. Admin. Dist. No. 37 v. Pineo, 2010 ME 11, ~ 8, 988 A.2d 987.

1 Therefore, the court cannot grant plaintiffs any effective relief. See Campaign for Sensible

1 Plaintiffs do not have standing to seek repayment of any funds to the Treasurer of the State of Maine. See Ouellette v. Mills, 22 F. Supp. 3d 36, 41 (D. Me. 2014) (explaining that standing generally requires "a plaintiff to show that his claim is premised on his own legal rights").

3 Transp. v. Me. Tpk. Auth., 658 A.2d 213, 215 (1995) ("Because the granting of an injunction

preventing expenditure of toll revenues to influence the 1991 referendum's outcome would

afford no effective relief to CST, its appeal is rendered moot."). Plaintiffs' claim is moot.

Plaintiffs urge the court to find that one of the exceptions to the mootness doctrine

applies in this case.

Exceptions to Mootness Doctrine

When a case is moot, the court may nevertheless consider the merits if one of the

following three exceptions to the mootness doctrine applies: "(1) sufficient collateral

consequences will result from the determination of the questions presented so as to justify relief;

(2) the appeal contains questions of great public concern that, in the interest of providing future

guidance to the bar [the court] may address; (3) the issues are capable of repetition but evade

review because of their fleeting or determinate nature." Halfway House, Inc., 670 A.2d at 1380.

The court will address these exceptions individually.

1) Collateral Consequences Exception

Before considering the merits under the collateral consequences exception, plaintiffs

must show "that a decision on the merits ... will have more than conjectural and insubstantial

consequences in the future." Sordyl v. Sordyl, 1997 ME 87, ,; 6, 692 A.2d 1386 (internal

quotation marks omitted). For example, the consequences of a criminal conviction or an

involuntary commitment, which might include loss of certain privileges or enhanced penalties

for future convictions or commitments, are sufficient to allow the court to hear a case. In re

Walter R., 2004 ME 77, ,;,; 10-11, 850 A.2d 346. Plaintiffs' complaint was based on DIFW's

advocacy around Question 1, which has ended. Plaintiffs have failed to show how a decision on

4 the merits will have anything other than speculative consequences in the future. The collateral

consequences exception does not apply.

2) Public Interest Exception

In applying the second exception, the court must consider "whether the question is public

or private, how much court officials need an authoritative determination for future rulings, and

how likely the question is to recur in the future." Me. Sch. Admin. Dist. No. 37, 2010 ME 11, ~

10,988 A.2d 987 (quoting Youngv. Young, 2002 ME 167, ~ 9, 810 A.2d 418). There is certainly

a public interest in ensuring the integrity of elections. As discussed in the court's previous order,

however, cases concerning the expenditure of public funds can be very fact-specific. (10/22/14

Order.) The court must determine the scope of an agency's authority to expend funds and look at

the alleged campaign activity to determine whether it constitutes impermissible advocacy. See

Campaignfor Sensible Transp. v. Me. Tpk. Auth., 1991 Me. Super. LEXIS 228, at *10-17 (Oct. 8,

1991). The court's ruling in this case would therefore have limited applicability in situations

involving other state agencies with different authority, a different ballot question, and different

plaintiffs. See Young, 2002 ME 167, ~ 10, 810 A.2d 418 (declining to apply the public interest

exception where an authoritative determination could be df great benefit but "the facts [did] not

allow [the court] to analyze all relevant facets of the ... statute"); see also In re Steven L., 2014

ME 1, ~ 8, 86 A. 3d 5 ("[O]ur consideration of the issues raised on appeal would not generate

meaningful authority for future decision-making, and we cannot conclude that the narrow issues

in this case are likely to repeat themselves in the future."). It would be prudent to consider the

issues raised by plaintiffs' complaint in the context of an ongoing controversy and a live ballot

question.

5 3) Issue Evading Review Exception

The final exception to the mootness doctrine applies if this type of issue is repeatedly

presented to courts but is of such short duration that it escapes review. In re Walter R.. 2004 ME

77, ~ 9, 850 A.2d 346. Plaintiffs argue that this controversy is bound to repeat itself in the next

election because plaintiffs intend to submit a similar ballot initiative for the 2016 election. This

assumes, however, that the identical question will be presented and defendant will engage in the

same advocacy efforts to oppose the measure. The cases on which plaintiffs rely concerned

straightforward questions of law. See, e.g., Libertarian Party of Me. v. Dunlap, 659 F. Supp. 2d

215, 21 7, (D. Me. 2009) (considering whether the state could impose a deadline for the

submission of signatures for a non-party candidate to get on the ballot). In addition, unlike other

election cases in which this exception applied, see, e.g., Fredette v. Secretary of State, 1997 ME

105, ~~ 2, 4, 693 A.2d 1146 (concluding that challenge to rule for primary election recounts

would likely evade review presumably because general election occurs within several months of

primary), this is not a case in which the issue is likely to evade review in the future.

Plaintiffs knew as early as September 2013, over a year before the election, that DIFW

was going to publicly oppose Question 1. (Compl. ~ 28.) Plaintiffs waited over a year to file their

complaint challenging DIFW's campaign activity. If the plaintiffs sponsor a similar ballot

question for the 2016 election, they will be able to get a timely decision on the issue well before

the election.

Conclusion

Plaintiffs' claim is premised on campaign activity related to Question 1 on the November

2014 ballot. The case became moot after the election. Based on the facts of this case, none of the

exceptions to the mootness doctrine apply. Although plaintiffs' complaint raises a potentially

6 important legal question, the court should consider that question in the context of a live

controversy.

The entry is:

Count II of plaintiffs' complaint is dismissed as moot.

Per the parties' stipulation, this order constitutes a final judgment for the purposes of appeal.

y Ju ice, Superior Court

Plaintiffs-Rachel Wertheimer Esq Defendant DIF&W-Scott Boak AAG/Mark Randlett AAG Intervenor-Paul McDonald Esq/Daniel Murphy Esq

7 I EIll TE R(I) OCT 2 3 2014 tJ.P j

STATE OF MAINE SUPERIOR COURT CUJ\1BERLAND, ss CIVIL ACTION DOCKET NO. CV-14-414 CUJm -0-A\V- tv-~~14- MAINERS FOR FAIR BEAR HENTING and KATIE HANSBERRY, Plaintiffs

V. ORDER ON MOTION FOR TEMPORARY RESTRAINING ORDER MAI:-JE DEPARTMENT OF INLAND FISHERIES AND WILDLIFE, Defendant

and OCT 22 2014 lv1AINE WILDLIFE CONSERVATION COCNCIL, a:1r:r~~;,un=ro·· v_...,.,~ \': r.._.:_ Intervener

Before the court is the plaintiffs Mainers for Fair Bear Hunting and Katie

Hansberry (collectively, "MFBH")'s motion for a temporary restraining order.

MFBH argues that defendant Deparbnent of Inland Fisheries and Wildlif~

("DIFW" or the "Department") is engaged in illegal campaign activity against

Question 1-a ballot initiative that would ban bear baiting, hounding, and - trapping-on the November 2014 ballot.

In November, Maine voters will have an opportunity to vote·on Question

1, which reads: "Do you want to ban the use of bait, dogs or traps in bear

hunting except to protect property, public safety, or for research?" Plaintiff

Mainers for Fair Bear Hunting is a Maine Ballot Question Committee md proponent of Question 1. Plaintiff Katie Hansberry is a Maine resident l'·rho

serves as Campaign Director for Plaintiff Mainers for Fair Bear Hunting.

The Department is a Maine state agency charged with, among other things,

preserving, protecting, and enhancing the inland fisheries and 1vildlife resources

of the State; encouraging the wise use of these resources; and effectively

managing these resources. 12 M.R.S. § 10051. The Commissioner of DIFW and

DIFW have the responsibility, pursuant to 12 M.R.S. §§ 10053(1) and 10103(2), to

manage aU wildlife resources in Maine. When necessary to accomplish their

statutory duties, the Commissioner and DIFW have the statutory duty, pursuant

to 12 M.R.S. §10105(1), to authorize the taking of wildlife, including bears, subject

to conditions and restrictions established by. the Commissioner and DIFW.

Pursuant to 12 M.R.S. § 10056, they are also charged with increasing the public's

knowledge and understanding of wildlife resources and the management of

those resources, and with the promotion of such resources. The Commissioner

and DIFW have the authority, pursuant to 12 M.R.S. § 10108(2), to implement

program.s to promote the hunting of Maine wildlife, including the hunting of

bears. Such programs "may include coordination of activities between the public

and private sectors and utilization of promotional missions, exhibits, brochures,

technical assistance and expertise as necessary to develop and promote" hunting

activities in Maine, including the hunting of bears.

According to Andrea Erskine•, Deputy Commissioner of DIFW, DIFW,

and its Commissioner, based on their experience and expertise, consider bear

baiting, hounding, and trapping to be legitimate forms of bear hunting in Maine.

1 See affidavit of Andrea Erskine, dated October 14, 2014, and filed with :he court on October 17, 2014.

2 Erskine Aff.

9, 11. The CommissLoner and DIFW consLder these methods to be not only the

most effective forms of management of Maine's bear population, but also to be

necessary and essential. Erskine Aff. q 9. They believe the elimination of these

forms of bear hunting in Maine would severely handicap their ability to

effectively manage Maine's bear population. Id. DIFW takes the position that if

bear baiting, hounding and trapping were not permitted in Maine, the Maine

bear population would grow and expand until bear numbers became limited by

the amount of food their habitat could produce. Id. If this were to occur, more

bears would die of starvation and disease and would be killed in order to

prevent conflicts with people, and public safety and property damage concerns

as the result of bear activity would increase dramatically. ld.

The Commissioner and DIFW, since at least 1989, have consistent! y

interpreted their statutory directives and authority as requiring them to publicly

encourage and promote bear baiting, hounding and trapping as legitimate forms

of bear hunting and as effective and necessary forms of bear management in

Maine. Erskine A££.

interpreted their statutory directives and authorities as obligating them to

engage in affirmative public outreach efforts on bears, bear hunting (including

bear baiting, trapping, and hounding), and bear management in Maine, as well

as on DIFW's views and positions on those issues. Id.

Historically, DIFW has taken a variety of actions to fulfill their statutory

directives and to inform the public on DIFW's views on bears, bear hunting

(including bear baiting, hounding and trapping) and bear management. DIFW's

Bear Fact Sheet, about vvhich the plaintiffs complain, has been publicly available

3 since at least 2004. Erskine Aff. <][ 11, Ex. A, B, C. More recently, DIFW's actions,

also about which the Plaintiffs complai.it, include the Commissioner holding a

press conference and issuing a statement in response to the announcement that

the ballot question had been approved; DlFW employees appearing in and

expressing DIFW' s views during television advertisements that were filmed,

produced and paid for by Maine Wildlife Conservation Council ("MWCC"); and

DIFW employees attending as guests banquets held by Maine Bowhunters

Association and .tv1\VCC. Erskine Aff. 9[ 16. At this point, DIFW has no plans to

expend additional agency funds or resources to create YouTube videos

supporting bear baiting, hounding or trapping prior to the November 2014 ballot

question. Erskine Aff. <][ 14. Nor does DIFW plan to make any changes or

updates to its informational Bear Fact Sheet, or to create any other DIFW visual

media projects involving bears, bear baiting, hounding or trapping, or bear

management prior to the November 2014 ballot question. !d. DIFW does,

however, intend to continue to disseminate information to the pubhc by

releasing additional YouTube videos that 1vere completed before the filing of the

lawsuit, and to otherwise continue to encourage and promote through its

existing website resources, social media, verbally, and in written form bear

baiting, hounding and trapping as legitimate forms of bear hunting and as

effective and necessary bear management practices in Maine, and to oppose

ballot initiative Question 1. jd.

DIFW opposes Question 1 because if it passes, it will .lose the only .

effective tools available to control the Staters bear population. DIFW argues that

it is protected by the government free speech doctrine. lv1FBH contend that this

doctrine does not apply because they do not raise constitutional claims, rather

4 they contend that DIFW is e~gaged in an unauthorized and ultra vires use of

public funds for campaign activity, the full nature and extent of which remains

unknmvn to the plaintiffs because of DIFW's slow response to plaintiffs' FOAA

requests. Plaintiffs contend that once the election is over, there is no possible

relief to remedy the alleged violations by DIFW. MFBH seek in this motion to

stop DIFW from "unlawfully and irreparably influencing the outcome of the

election via impermissible political activity." (Pl.'s Mt. 18.) 1v1FBH argues that

the Department cannot use its resources, including staff time, to advocate only

one side of a controversial question and undoubted! y influence the outcome of

the election. Plaintiffs' motion asks this court to order DIFW "to cease further

use of [DIFW] resources on campaign activity; to immediately remove partisan

political content from [DIFvV's] website, YouTube channel, Facebook page and

other media outlets; to immediately terminate the dissemination of television

advertisements produced using DIFW staff time and resources." (Pl.'s Mt. 20.)

The intervener Maine Wildlife Conservation Council ("MWCC") is a

Ballot Question Committee formed to influence the statewide referendum on

Question 1. MWCC owns the TV advertisements and opposes the plaintiffs'

motion as an impermissible prior restraint on its free speech rights. There is no

dispute, for the most part, that DIFW and the Ballot Question Committees, such

as MWCC, are working with DIFW to influence the outcome of the referendum; ·

therefore, the court will not repeat here the specific claims of the plaintiffs•

concerning the ways that DIFW's campaign activity exceeds the authorized "fair

2 The plaintiffs set forth the specific violations in their motion at pages 3-8.

5 comment" and "dissemination of information". Rather, the court will address

whether DIFW can be restrained as plaintiffs request.' ,- __

Even if the plaintiffs were to prevail on their Hltrn vires argument, they

have failed to demonstrate that the government free speech doctrine is

inapplicable, they \·vill suffer irreparable harm, and the public interest will not be

adversely affected by granting the TRO. The alleged harm is that DIFW's

activity will influence the outcome of the election, notwithstanding the effort of

the plaintiffs to reach out to the voters to inform them of the value and benefits

of enacting the referendum. Influencing the outcome of the election is precisely

what DIHV hopes to do. DIFW believes, based on its experience and expertise,

that it is obligated to publicly encourage and promote bear baiting, hounding

and trapping as legitimate forms of bear hunting and as effective and necessary

fonns of bear management in Maine.

Temporary Restraining Order

On a motion for a temporary restraining order (TRO), the moving party

has the burden to demonstrate that

(1) it will suffer irreparable injury if the injunction is not granted; (2) such injury outweighs any harm "\lvhich granting the injunctive relief would inflict on the other party; (3) it has a likelihood of success on the merits {at most, a probability; at least, a substantial possibility); and (4) the public interest will not be adversely affected by granting the injunction.

Batzgor Historic Track, Inc. v. Dep't. of Agric., 2003 .\1E 140, !Jf 9, 837 A.2d 129.

"Failure to demonstrate that any one of these criteria are met requires that

3 The court need not address the lack of standing claim ra:sed by the Department and the intervener because of the outcome of this decision.

6 injunctive relief be denied." Id. at 9I 10 (citation omitted). Plaintiffs bear the

burden of demonstrating these factors ''.reigh in favor of an injunction. Esso

Standard Oil Co. v. Monroig-Zayas, 445 F.3d 13, 18 (1st Cir. 2006) (citation omitted).

Likelihood of Success on the Merits

1. Legal Standard

The only Maine case that has addressed the issues of whether state

officials can advocate for or against a ballot measure and whether the officials

may use public funds to support their advocacy is Campaign for Sensible

Transportnfion v. Maine T11rnpike Authority, 1991 Me. Super. LEXIS 228 (Oct. 8,

1991). In that case, Justice Alexander found that no other Maine cases -addressed

the issues but noted that "precedent in other states suggests that absent specific

legislative authorization, public agencies may not spend public funds to take

sides in elections and attempt to influence results." Id. at *6.

Plaintiffs in that case alleged that the Turnpike Authority improperly used

public funds "to oppose an upcoming referendum on Turnpike lvidening and

transportation planning." Id. at *1. Plaintiffs alleged that the Turnpike Authority

had published ne\vsletters and hosted luncheons that were designed to influence

the election. The court relied on Citizens to Protect Public Funds v. Board of

Edumtion of Parsippany-Troy Hills, 98, A.2d 673 (N.J. 1953) and Stanson v. Matt, 551

P.2d 1 (Cal. 1976).

In 2004, the Maine Attorney General at the time, G. Steven Rowe issued an

opinion about his understanding of the law regarding "whether state and local

government officials can advocate for or against a citizen initiated ballot measure,

and whether those officials can use public funds to further those efforts." Op. Me.

Att'y Gen. 04-05. The opinion characterized Campaign for Sensible Transportation

7 as dearly stating the guiding principles of the law "in a manner that is consistent

with the case law from other jurisdictions." ld. at *3. The opinion concludes,

Governmental bodies and ofhcials may not expend public funds solely or primarily for purposes of partisan advocacy \·vithout express authorization, and even where authorized, these activities are subject to constitutional limits. They may disseminate infom1ation on matters such as citizen initiatives and may express 'their views as public officials. We have found no case concluding that public resources such as personnel time cannot be used in support of these allowable activities. Hovvever, the line between appropriate dissemination of relevant information and activities that constitute improper advocacy by government agencies and officials is not easy to define in the abstract. Such determinations are fact-dependent and may be complex, particularly in situations such as this where the subject matter of the issue before the voters has a direct and substantial impact upon the duties and responsibilities of those government agencies and officials.

Id. at *3 (footnote omitted). Contrary to DIFW and 111\'VCC's arguments, Citizens

to Protect Public Funds and Stmzson, upon which Campaign for Sensible

Transportatimz is founded, are still good law where the invalidation of the

expenditures was based on legislative enactment (or an absence thereof) and not

on the First Amendment. See, e.g., Kidwell v. City of Union, 462 F. 3d 620, 629 (6th

Cir. 2006) (Martin, J. dissenting); Santa Barbara County Coal. Against Auto.

Subsidies v. Santa Barbara County Assn. oJGov'ts, 84 Cal. Rptr. 3d 714, 722 (Cal. Ct.

App. 2009) ("Although a government agency cannot spend public funds in a

partisan campaign for the passage or defeat of a ballot measure, \·Ve conclude that,

in this case, the activity . . . was not electoral advocacy because it was in

furtherance of its express statutory duties and occurred before Measure A was

qualified for placement on the ballot.") However, this is not the only analysis to

consider. In the proper case, the government speech doctrine may apply, as

DIFW and MWCC argue here.

8 2. Ultra Vires

Before considering the impact of the government speech doctrine to this

case, the court considers whether DIFW's activities are ultra vires, as alleged by

plaintiffs, who contend that there is no specific legislative authorization for

DIFW's campaign activities. Even though Campaign for Sensible Transportation

con~luded that" absent specific legislative authorization, public agencies may not

spend public funds to take sides in elections and attempt to influence results",

1991 Me. Super. LEXIS 228, at *6, this court concludes that DIFW's activities are

authorized by the constellation of statutes directing DIFW's responsibilities.

Here DIFW's statutory authorizations and directives are sufficiently broad to

encompass its activities with respect to the management of bears and Question 1.

DIFW is charged with "the administration and enforcement of the inland

fisheries and wildlife laws and ... the responsibility for the management of all

inland fish and v,rildWe in the State." 12 M.R.S. § 10103(2). DIFW is directed "to

preserve, protect and enhance the ... wildlife resources of the State; ... to ensure

coordinated planning for the future use and preservation of these resources; and

to provide for effective management of these resources." 12 M.R.S. § 10051.

Plaintiffs concede that this includes "the authority to administer hunting and

trapping programs consistent \-vith wildlife management goals set by subdivision

of the Department, conduct studies of "~Nildlife populations, and promote and

educate the public about Maine's resources." Pl.'s Compl. p. 4. These grants of

authority are not comparable to the far more limiting list of enumerated

functions of the agency in Campaign for Sensible Transportation.

Furthermore, the Department is mandated to "encourage the wise use of

[wildlife] resources." 32 M.R.S. § 10051. Thus, DIFW is statutorily required "to

9 attempt to persuade" the public to make wise of these resources, or to make wise

use "more appealing or more likely to happen." Merriam-Webster Online

Dictionary, "encourage," http: I I merriam-webster.com/ dictionary I encourage,

last visited 1012212014. The Departinent is also charged under 12 M.R.S. § 1036

with "increas[ing) the public's knowledge and understancling of inland ...

wildlife resources and the management of these resources." This statutory

language expressly directs DIFW to advocate for its positions regarding wildlife

management, including bear management. Additionally, in "implement[ing] a

program designed to promote ... wildlife resources and attract hunters ... to the

State," the Commissioner is granted discretionary authority to "coordinat[e] ...

activities beh·veen the public and private sectors and utilize[e) ... promotional

missions, exhibits, brochures, techrllcal assistance and expertise as necessary to

develop and promote hunting ... activities within the State." 12 M.R.S. § 10108.

Thus, this Court finds that there is express legislative authorization for the

activities DIFW has engaged in this campaign against Question 1.

3. Government Speech Doctrine

The next question is whether the government speech doctrine applies to

the facts in this case. The government speech doctrine provides that government

speech "is not restricted by the Free Speech Clause." Adams v. Me. Mw1. Ass'n,

2013 WL 9246553, at *16 (D. Me. 2013) (quoting Pleasant Grove City v. Summum,

555 U.S. 460, 469 (2009)). In other words, "the Government's own speech is

exempt from First Amendment scrutiny." Johanns v. Livestock lvlktg. Ass'n, 544 U.S.

550, 553 (2005). "Whether the protections of the government speech doctrine are

available ... depends on the content of the challenged speech and the legal

theory argued by the challenger." Adams, 2013 WL 9246553, at *19. In Adams, the

10 District Court follmved the Fourth and Sixth Circuits "in declining to craft a

bright line politic!=J.l or campaign speech exception to the government speech

doctrine." Id. at *22. The District Court observed that MMA's advocacy

activities related to initiatives that it perceived would have serious consequences

for municipal governments. Id. The District Court in Adams resolved all of the

federal claims, including a count alleging "the government taking sides" and

"direct governmental interference with an initiative", as sounding under the Free

Speech Clause of the First Amendment and heLd that "the government speech

doctrine applies to MMA's advocacy activities." ld. at *23.

MFBH's claim in Count II of their Complaint also sounds under the Free

Speech Clause even though plaintiffs take great care to say they are not

mounting a constitutional chaJlenge. Although at first blush, an ordinary citizen

may question the appearance of uniformed Game Wardens in advertisements

paid for by a private group and advocating for a particular point of view, the

government speech doctrine protects expenditures on speech-related activities

when the "speech is germane to a Legitimate government interest", Adams, 2013

WL 9246553, at *19 (citing Kidwell v. City of Union, 462 F. 3d 620, 626 (6th Cir.

2006)), and whether the government entity is subject to democratic accountability

and political safeguards. Id. at *21 (quoting Bd. of Regents of Univ. of Wis. System v.

Sout!tworth, 529 U.S. 217, 235 (2000)).

The doctrine of government speech arises most often in the context of

compLaints that government speech expressing or promoting particular

viewpoints violates the free speech rights of citizens \·vith opposing views.

Plaintiffs' argument is best summed up by DIFW as, "by voicing a viewpoint in

opposition to Plaintiffs' own, DIFW has interfered with Plaintiffs' ability to

11 deliver its message." Def.'s Opp. at n.2. Although Plaintiffs take great care to

state that their claim is not a constihttional claim, this court concludes that there

is a free speech argument. Plaintiffs' claim in their Complaint that DIFW has

impaired their "constitutional right to advance Question 1," and also that DIFW's

actions have "harmed Plaintiffs' campaign." Pl.'s Compl. at p. 22. Thus,

Plaintiffs' claim in Count II clearly sounds in free speech and the government

speech doctrine applies. The law has consistently held over the last twenty years,

that when governments "engage[] in their own expressive conduct, then the Free

Speech Clause has no application." Pleasant Grove Cihj, 555 U.S. at 467.

Pursuant to the government speech doctrine, a governmental entity "is

entitled to say what it wishes," Rosenberger v. Rector & Visitors of Univ. of Va., 515

U.S. 819, 833 (1995), and to choose "viewpoints when the government itself is

speaking." Griswold v. Driscoll, 616 F. 3d 53, 58-59 (1st Cir. 2010) (citing Pleasant

Gro·ve City, 555 U.S. at 467.) Moreover, after choosing its message, as the

Supreme Court provided:

Compelled support of government - even those programs of government one does not approve - is of course perfectly constitutional, as every taxpayer must attest. And some governmental programs involve, or entirely consist of, advocating a position. The government, as a general rule, may support valid programs and policies by taxes or other exactions binding on protesting parties. Within this broader principle it seems inevitable that funds raised by the government will be spent for speech and other expression to advocate and defend its own policies.

Johanns, 544 U.S. at 559 (internal quotation marks omitted.) Thus, the government

speech doctrine allows governmental entities to expend funds on position-based

speech.

Government accountability protects those who disagree with government

actions or speech, and belies the need for additional first amendment protections.

12 The governmental speakers, after all, are "ultimately accountable to the

electorate through the political process, which is the mechanism to test

disagreements." Newton v. Page, 700 F. 3d 595 (1st Cir. 2012) (citing Bd. of Regents

of llniv. of Wis. Sys., 529 U.S. at 235; Sutcliffe v. Epping Sch. Dist., 584 F. 3d 314, 331

n.9 (1st Cir. 2009)). The Supreme Court has observed that "[\'·.:]hen the

government speaks, for instance to promote its own policies or to advance a

particular idea, it is, in the end, accountable to the electorate and the political

process for its advocacy. If the citizenry objects, ne,..,r]y elected officials later

could espouse some different or contrary position." Bd. of Regents ofUniv. of\Nis.

Sys., 529 u.S. at 235. Here, DIFW is a government agency, ultimately accountable

to the electorate, and the speech at issue is germane to DIFW's statutory

directives. Hence, the government speech doctrine applies and blocks Plaintiffs'

claim to the extent it is premised upon first amendment rights. Thus, Plaintiffs

are unlikely to prevail on the merits of their claim in Count II.

Irreparable Injury, Balancing of Harms and Public Interest

Plaintiffs have failed to articulate an irreparable injury. Plaintiffs allege

that the injury is the continued use of agency funds to oppose Question 1 and to

affect the outcome of the referendum vote.· First, DIFW has stopped and does not

intend to expend any additional funds on the campaign. Second, the TV

advertisements are the property of MWCC and the plaintiffs have advanced no

basis for enjoining MWCC. Third, the speech the plaintiffs seek to enjoin is part

of the marketplace of ideas that best supports democracy. This decision should

4 The speculative opinions propounded by Robert G. Meadows do not qualify as admissible expert or lay opinion on the existence of an irreparable harm. Under M.R. Civ. P. 65, a request for injunctive relief must be supported by evidence addressed to specific facts sufficient to demonstrate the existence of irreparable injury. Plaintiffs have failed to do this.

13 not be read as an errdorsement of DIFW's campaign activities as a matter of

policy; but, rather a subscription to the point of view articulated by the District

Court in Adams that "more speech is better than less, and the Plaintiffs remain

free to make their ovm voices louder and more persuasive in the marketplace of

ideas." ld. at "'25. If Plaintiffs do not like DIFW's speech, its remedy is to vote out

of office or limit the conduct of those officials by lav.r by petitioning the Maine

Legislature to pass a law limiting DIFW's ability to fund and participate in

campaign activities either on its own or in conjunction with other groups such as

Bailot Question Committees.

Restricting speech on contested public issues is directly contrary to the

public interest, which favors a robust and dynamic public discourse. See Bllckley

1). Valeo, 424 U.S. 1, 48-49 (1976) (noting that the First Amendment "was designed

to secure the widest possible dissemination of information from diverse and

antagonistic sources, and to assl.tre unfettered interchange of ideas for the

bringing about of political and social changes . . . .") (internal citations and

quotation marks omitted). It is the voters, not the Plaintiffs or the courts, to

assess the relative merits of conflicting speech. See First Nat'l Bank of Boston v.

Bellotti, 435 U.S. 765, 790-91 (1978) ("[T]he fact that advocacy may persuade the

electorate is hardly a reason to suppress it ... the people in our democracy are

entrusted vvith the responsibility for judging and evaluating the relative merits of

conflicting arguments.") The public interest would be adversely affected if

Plaintiffs' request for a TRO were granted when DFIW's speech is on topics

14 squarely within "its competence as governor." Kidwell, 462 F. 3d at 626.' "If the

citizenry objects, newly elected officials later could espouse some different or

contrary position." Ed. of Regents of Univ. of Wis. Sys., 529 U.S. at 235. fn the

meantime, DIFW's advocacy activities are based on their experience and

expertise and relate to initiatives ll-tat it perceives would have serious

consequences for their effective management of Maine's bear population.

Motion fora Temporary Restraining ()rder is DENIED.

Date: October 22, 2014

5 Given the decision in this case, the court does not address whether the relief requested by Plaintiff would constitute prior restraint on either DIFW or MWCC. The court a!so does not need to address any other arguments raised by any of the parties.

15 CLERK OF COURTS Cumberland County - 205 Newbury Street, Ground Floor Portland, ME 04101

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