corr-espondence soliciting donations was broad enough to include other referendum measures and
issues.
The Court finds that the word "specitlcally" in 21-A M.R.S. § 1056-B(2-A)(B) is not
ambiguous or vague on its face or as applied to NOM. "The mere fact that the Legislatt1re has
not spoken 'in precise and pellucid language, failure to meet this Olympian standard' docs not
render [the statl.Jte) void for vagueness." i\lfalne Assoc. of Health Plans v. State, 2006 WL
2959744, at *2 (Me. Super. Aug. 4, 2006) (citing i\lfaine Milk Producers, 483 A.2d 121J, 1221
(Me. 1984)). Notwithstanding this conclusion, the Court finds that even if the stahlte were
ambiguous, the Commission's interpretation is reasonable. 8 Arsenau/1 v. Sec'y ofSWte, 2006 .NlE
t ll, ~ 11, 905 A.2d 285, 288 (noting "when a statute is ambiguous [the court) defer[s} to tile
7 As mentioned nbovc, NOM chnllenges the Commission's finding ns to the Mny 15, 2009, emnil ns NOM did not speciftcnlly reference the Mninc cnmpnigu. However, the Court finds thnt the Commission's detenninntion wns rensonnble nnd bnsed on substnntinl evidence in the record. 8 Been usc the Comt fmds thnt the Commission's interpretation of the stntute wns rensonable, the Petitioner's argument thnt the Commission exceeded ils stotutory nutllority by regulntiug conduct not contcmploted by the plnin lnugunge of Lhe stntute is without merit.
8 interpretation of the agency charged with its administration, it' the ·agency's interpretation is
reasonable"). 9
2. !lias The Maine Administrative Procedure Act requires that the C01iunission's proceedings be
conducted impartially. Fox Island.'> Wind Neighbors v. Me. Dep 't ofEnvt'l Prot., 2014 Me.
Super. LEXIS 30 (Me. Super. Ct., Mar. 10, 2014). In Maine, there is a presumption that the
Commission acted in good faith. !d. at 31; see also Friends of Maine's i'vfountains v. Bd. qf
Ei1vtl. Prot., 2013 !"viE 25, ~ 23, 61 A.3d 689. However, NOM contends that specific decisions
by the Commission demonstrate bins against NOM sufficient to rebut this presumption and
reverse the Commission's detennination. (Br. of Pet. 7.) For the reasons set forth below, the
Court disagrees.
i. T11e Commission's Decision to Investigate
Pursuant to 21-A M.R.S. § 1003(2), a person may apply to the Commission to investigate
whether an organization hns violated campaign finance law. Under tltis provision, the
Commission "shall review the application and shall mnke the investigation if the reasons stated
for the request show sufficient grounds for believing that a violation may have occurred." /d.
NOM contends that the Commission had insufficient facts to spark an investigation against
NOM. For example, NOM argues that the Commission's decision to investigate was based
· solely on a "bare-bones" statement from one of NOM's political enemies. (Br. of Pet. 8.) The
original complnint contained no evidence that NOM had done anything other than make
contributions to a PAC.
9 Bccnuse the Court reoches the merits of NOM's arguments the Court does uot oddrcss the Commissiou' s orgumeuts coucerning l'esjudic(l[(l or collotorol estoppel.
9 The Commission contends that in August of 2009, Fred Knrger, an individwll from
Califomia, contacted the Commission urging it to investigate whether NOM, SI'vfivf, and other
similar organizations were concealing the sources of funds contributed to S:N1iV1 for the
campaign. (Br. of Resp. 5); (R. 2046). On October I, 2009, the Commission met to discuss the
nllegations. At the time the Commjssion met, StvLv! had reported receiving $250,000 from
NOM. (R. 2064.) Based in part on Mr. Karger's statements, as well ns statements from other
individuals, a majority of the Commissioners (3-2) concluded that the investigation was
warranted. Commissioner McKee noted that in the past, when the Commission has had to
determine whether there were sufficient grounds for an investigation, most Commission
members approach the question using a probable cause standard. In other words, the
Commissioners ask themselves whether the information thnt has been provided by both sides left
them with more questions than nnswers. Very large amounts of mooey were being put into the
cmnpaign in Maine nnd the questions regarding NOM's activities needed further investigation.
(R. 2053.)
The Petitioner contends that statements made by ce1tain Commissioners demonstrate n
showing of prejudgment as the Commissioners simply wanted to make a cnse for regulating
NOM's conduct, rather than proceeding impnrtially. For example, one Commissioner noted that
NOM's actions were common practice in Maine. It was also noted that Maine statutes may
prove insufficient to cover the activity. Yet the Commission still voted to investigate NOM.
Notwithstanding comments made by the Commissioners during deliberations, the Court
finds that the Petitioner has failed to provide evidence sufficient to overcome a pres\lmption thnt
10 the fact-finders, as state administrators, acted· in good fnitb so as to demonstrate that the
Commission was bit~s in its determination to investigate NOM. 10
ii. Selective Prosecution ·
Selective prosecution occurs when an agency prosecutes one group and not another. To
prevail on a claim for selective enforcement or prosecution, NOM must prove that (1) it was
selectively treated when compared with similarly situated entities; and (2) tbat such selective
treatment was based on impermissible considerations such as race, religion, intent to inhibit or
punish the exercise of coostitutiounl rights, or on malicious or bad faith intent to injure that
person. E. Prm:v !ron & ivfetal Co., Inc. v. City of Portkmd, 2008 !viE 10, ~ 30, 941 A.2d 457
(citing Yerardi's Moody St. Rest. & Lounge, lnc. 11. Bd. oj'Selectmen, 932 F.2d 89, 92 (1st Cir.
1991 )). "Proving such discriminatory intent is 'an onerous burden."' Id. (citing B & B Coastal
Enters. Inc. v. Demers, 276 F.Supp.2d 155, 171 (D. Me. 2003)). Differential treatment alone is
not enough to prove discriminatory intent. Yerardi's i\4oody St. Rest. & Lounge, Inc., 932 F.2d ut
92. "[U)nrcnsonnble inferences based on conject11re or speculation" need not be accepted. !d.
(quotation marks omitted).
NOM contends that the Commission committed selective prosecution by investigating
NOM and groups Sllpporting Question l, but refusing to investigate groups opposing the
referendum even when the Commission was presented witb similar evidence regarding those
10 NOM contends thnt the Commission's prejudice ngninst NOM occurred even outside of the invcstigntiou. For example, inn 2012 Commission meeting, the Commission brought up "past violntions" by NOM when discussing the reduction of o lote-fcc penalty involving o PAC fonnnlly nffilinled with NOM. NOM contends that this dinlogue wns lUiwnrranted os the investigntiou hod just begun. (Br. of Pet. 9.) NOM argues lhnl this is evidence thnt demoustrotc nt least some of the commissioners hnd prejudged NOM ond thot" the ultimate detenuinntion of the merits would move in predestined grooves." Fox Islands, 2014 Me. Super. LEXIS nt 32-33. However, os the Commission points out, ot the time the remorks obout "pnst violations" were mod~, both the District Court ond lhe First Circuit hod found that NOM hnd received contributions governed by § I056·B. The Court finds tho! the Commission did not prejudge NOiVlnnct that rnisi.ng the issue of post actions wns rensouuble under lhe circlwtstnnccs.
11 groups thnt sparked the investigation against NOM. (Br. of Pet. 9.) NOM contends that the
Commission's determination had a discriminatory ctJcct in that NOM was treated differently
than other groups participating in the smne election. NOM contends that this violated both the
Fifth and Foll!1eenth Amendments. State v. Dhuy, 2003 IvfE 75, ~ 21,825 A.2d 336.
The Court finds that NOM's evidence is insufficient to establish selective prosecution.
Its claim that the Commission did not target groups opposing the referendum is insufficient to
demonstrate that the Commission's motivntion for the investigation. and subsequent final
determination was premised on impermissil>le considerations. NOM failed to offer evidence on
the record that the Commission failed to investigate nny particular group. 11 As mentioned above, .
"[d]ifferential treatment alone i.s not enough to prove discriminatory intent. Yerardi's i\tfoody St.
Rest. & Lounge, Inc., 932 F.2d at 92. The Court does not accept NOM's inferences of selective
prosecution as they nrc based on conjecture and speculation. !d.
iii. The Commission's Application ofLalewFiling Penalties was Reasonable
Finally, NOM contends the fact that the Commission issued the maximum statutory
penalty for late filing and refused to consider au automatic reduction, as is its normal practice,
demonstrates bins and prejudice against NOM. (Br. of Pet. 12.) NOM further nrgues tl1at the
Commission incorrectly calculated the penalty by including the full time of the investigation. ld.
11 On Mny 28, 2014, NOM requested thnt the Commission investignte whether Hmnnn Rights Cnmpnign, Inc. ("HRC") wos required to register nud file ns n BQC. NOM presented evidence of five emnils from 2009 tltnt mention the Maine referendum and four monthly newsletters Utnt solicited donntions or purehnses. Consistent witb the Commissions prior prnctices, the Commission reviewed the eruoils and newsletters to detennine if there wns probnble cnuse to spnrk nn investigation. The Commission detennined thnt two cmnils qunlified under the BQC stntute. However, HRC wns \lll!lble to provide the nmount genernted by snid emails becnuse il hnd switched fundrnising platforms over U1c yeors. The Comm.ission further determined thnt neither the Stnte of Mnine nor the Moine referendum were mentioned in the fundmising sections of the newsletters. As n result, the Cominission found thnt there wns nn insufficient bnsis to invcstignte HRC.
12 The Court finds that the Commission's application of the late filing penalty to NOM was
within its stantto1y authority and was reasonable under the circumstances. For example, the
Commission explains that NOM was lute in filing six sepmate reports and for each report the
dRily pennlty hit the $10,000 statutOJy maximum before the end of 2009. (Br. of Resp. 28.)
NOM also failed to timely apply for a waiver to reduce said penalties. (R. 69.) While the
Commission has reduced penalties for other organizations, NOM's argument that the
Commission was bias or selectively targeted NOM is without merit. The record indicates that
the Commission nct:unlly cut the statutory maximum penalty by hnlf for two of NOM's six
violations. (R. 253-54); (Br. ofResp. 28.)
To succeed 011 a claim for bins, the bias "must be alleged with sufficient )larticulaiity to
have had IHt effect on the fairness of the govemmental proceedings." Baker's Table, Inc. v. City
l?/ Portland, 2000 ivlE 7, ,I 9, 743 A.2d 237. ln Hale v. Petit, the Law Court held that mere
allegations of bias without specification of how a porty was ach.mlly prejudiced were insufficient.
438 A.2d 226, 234 (Me. 1981 ). In order to show bias, the petitioner "must present evidence
sufficient to overcome a presumption that the fact-finders, as state administrators acted in good
faith." Friends ofMaine 's i\dountains v. Bd. ofEnvtl Prol., 2013 'tvffi 25, ~ 23, 6 I A.3d 689.
Here, Petitioner's allegations of bias regarding the Commission's investigation,
prosecution, deterntination, and penalty are not sufficient to overcome the presumption of good
faith on the part of the Commission. Tbcrc is no evidence in the record or presented by the
Petitioner of any specific instance of partiality or prejudgment on the part of the Commission or
the Commissioners. Rather, NOM simply alludes to circumstance where the Commission found
differently when applying the BQC statute to other organizations. In each instance presented by
NOM, the Commis$ion conducted a reasoned review of the case nt , haud nnd made a
13 determination or decision based on the record evidence before them. This evidence presented by
NOM does not demonstrate bias or compel !'I contrary result than that reached by the
Commission.
B. Error of Law
NOM argues that the Commission considered irrelevant and impermissible factors in
malcing their finnl determinations. The Court analyzes each below.
1. The Commission considered the involvemenl o[individuals in both the operation o[ NOAt/ and Slvllvl as relevcmtlo whether NOi\11 swpassed the BQC registmtion thrasho/d
NOM argues that the Conunission gave weight to the fact that Brian Brown served as
both the executive director of NOi\ti as well as one of the decision makers of Si\tllvl. NOM
contends that this is an erroneous reading of Maine law, as the definition of "contribution" does
not contemplate S\Jch factors. (Br. ofPet. 13.) The Commission argues that Brian Brown's dual
role is relevant notwithstanding the fact that nothing in Maine's C!'lmpaign finance law prohibits
an executive from wearing both hats during a campaign. (Br. of Pet. 13.) The Commission
contends Mr. Brown's involvement in both organizations is relevant because he was on both
sides of the subject transactions. Brown could designate donated funds for the pmvose of the
Maine C!Unpaign without having to put anything in writing;
While the statute is silent on this issue, the First Circtlit noted that: '"in evai\U\ting any
such donations, it is also significant that the relnlionsh.ip between NOM and SM1\11 w11s extremely
close during the 2009 campaign ... Such objective information, along with the timing of the
contributions relative to the election, should infonn 'the context of the contribution."' Nat 'I Org.
14 for ivfarriage v. McKee, 669 F.3d at 49. Thus, it was not error of law for the Commission to
consider the relationship of the actors involved in this case. 12
2. 111e Commission concluded that /imds rec:ei)led 011 the same date thai NOi'vl iuade a contribution to a PAC were contributions under Maine law because NOlvi made a qollfribufion in the same amount
NOM contends that the Commission should not have considered the date that funds were
transferred from NOM to SM:Nf as NOM was allowed to give donations to S!vllvl. NOM argues
that such a consideration is outside oftlle scope of Maine's BQC law and to consider such would
cattse confusion as to whether the act of mnking a contribution to a PAC will trigger BQC
registration.
The Commission contends that NOM received unreported contributions from major
donors that would have triggered the BQC reporting requirement. However, because the
conversations with the major donors were made by telephone, and there is no record of the
substance of the calls, the Commission relied on circumstantial evidence that the conversations
referred to the Maine referendum. First, the Commission took notice of"tbank-you" letters from
NOM's ftmdraising personnel to donors, which referred to the conversation with the donor Rnd
made mention of the referendum campaign. Second, the Commission took notice that on
multiple occasions, tbe same day that n major donor submitted funds to NOM, the same amount
was transferred to SMM to support the Maine campaign. Thus, it was not error of law for the
CommissionS to analyze the timing of contributions to SMM.
12 NOM olso orgues thnt it wns error of low for the Commission to consider NOM's overnU contributiou to SMM. The Court finds thnl the overnll nmount of NOM'~ contributions is relevont os it provides importnnt "context" ns contemplated by the federol courts.
15 3. imP-ermissible Subjective Factors
NOM contends that the Commission's analysis did not rely on the actunl words used in
the solicitations or on NOM's own conduct or communication. Instead, the Commission
inquired into whnt the pnrties understood. Therefore, the Commission used an impermissible
subjective standard.
For example, NOM nrgues thnt the Conunission was presented with sworn testimony
from Brian Brown that NOM did not covey to major donors thnt donations would be used in
Maine. Rnther, donors were told they should give to SIVIM if they wanted to support the effort in
Maine. (Br. of Pet l7);(R. 22-27.) Thus, NOM could not predict that donations from Major
donors would be considered for the purpose of inflllcncing a Maine ballot question. In other
words, contrary to the Commission's findings, the fact that n particular donor may have known
subjectively that NOM made contributions to SiVfi\11, the donation cannot be considered a
contribution. LJ
The Commission contends that in reviewing NOM's correspondence with its supporters,
it applied the objective test as applied by the First Circuit. As such the Commission analyzed
what n reasonable contributor would conclude from NOM's communications. The Court finds
that this application is consistent with the federal courts nnd is based on pennissible objective
factors that inform the context of the contribution.
13 For exnmplc, Donor tl 2 received n "tbmlk-you" uote from Brinn Browu llighlightiug NOM's plnnned nctivilies in support of the Mniue referendum. The letter ntso notes "ns you know from your discussions with [NOM fundrnising cousultnnt] Steve Linder, NO!vl hos nlrcndy contributed over $250,000.00 in the effort to protect mnrriogc in Mniuc." (R.. 23.) While the Commissiou was not privy to the substoucc of the nctunl phone cnll soliciting the funds, the Commission gove weight to the fact that the check lor $50,000 wns deposited in NOM's bnuk nccount on the some dny wos trnnsferred to SMM.
16 4. 1he Commission (ound that all donations received in response to NOlvl communications that menttoned a Maine ballot question are "contributions" under 21-A ivl.R.S. § 1056- 8{2-AJ
NOM contends that only a pro-rated portion of donations received in response to NOM's
multi-jurisdi.ctional commlmications should have been included as "contributions." By accepti11g
all donations as contributions, the Commission employed a broad application of the BQC statute
that was not contemplated by the Legislature. Such an expnnsive application of the statute was
not before the federal cou;·ts when they upheld the BQC statute in pri01· as applied challenges. 1"
NOM argues that at the very least, any funds received in respons·e to said
communicntions should have been pro-rated by the Commission so that the amount considered
"contributions'' under Maine law matched the proportion of the commun..icntion discussing a
Maine ballot question. Fail~1re to do so results in the statute being unconstitutionally overbroad.
NOM contends that the plain menning of the stntute regulates only funds received for the
purpose of influencing a specific ballot qucstion. 15
I-~ NOM cites Emily~~ List v. Fed. E/ecllon Comm'n, for this nssertion. 581 F.3d 1, 18 (D.C. Cir. 2009). However, Ute Court finds Emily's List disting1tishnble. In thnt cnse, the Federnl Election Commission Limited the nmotllll non-profits could rnisc nnd spcud in support of o cnmpnign. As n result, certnin non- profits were required to !)ny n lnrgc percentnge of clection-relnted activities out of their "hard-money'' accounts. ld. nt 4. However, unlike Emily's List, the Moine stnhtte is closely drnwn to sen•e n cogu.iznblc interest of cmnpaign finance trnnspnreucy by requiring thnt eutitics register nnd report contribution over $5,000. The Mnine stnhlte i.u no wny limits nuon-profits nbilily to solicit funds or conmmuicntc. with the 1mblic. · s Both the District Court nnd the First Circuit refused to nccept NOM's nrgument thnt the nbsence of nn express statement cnnnnrking funds overcomes the BQC reporting requirements. The District Co11rt found that: "[pjresumnbly the statute's ctmfiers were concerned thnt those who solicit contributions might fiud devious wnys to nvoid co"ernge by keeping the tnugunge of both the solicitnlion oud the donntion clenn of nny suggestion of eormnrk.iug, even though everyone knew whnt wos going on. Nm 'I Org. for i'vlnrrlage v. McKee, 765 F. Sttpp. 2d 38, 51 (D. Me. 20 I I) ajf'd sub 110111. Nat'! Org. for i'vfan1age, l11c. v. lvlcKec, 669 F.3d 3•1 (1st Cir. 2012). The First Circuit noted thnt requiring express eonnnrking "would ollow entities to eosil>' evnde disclosure requirements by guiding the content of donors' messnges, defentlng the State's compelling interest in in forming voters." 669 F.3d 47 u. 13. Tlms, in occordonae with the federnl court decisions, the Court fmds thnt the Commission did not err os n molter of lnw or abuse its discretion in refusing to require express enrmorking of funds before npplying the BQC statute.
17 The Court refuses to entertain this argument. The District concluded that the stat\Jte
"makes no mention of pro rating" and "the Commission hns not by regulation or form. created a
pro rating regime." Nat 'I Org. For Marriage v. McKee, 666 F. Supp. 2d 193, 212 (D. Me. 2009).
Rather, the District Court found that:
The clenr language of the statute requires reporting the entire amount, even though some of that contribution might ultim!ltely be devoted to other states. The language is nei thcr vngue or substantially overbroad. One might argue that including the entire amount given in response to a multi-purpose solicitation is excessive, but that approach might also be defended as a legitimllte tool to corral those who seek to escape the statute by clever wording in their solicitations.
!d. Thus, in accordance with the federal couJis, the Court does not find Petitioner's argument
concerning pro-ration of multi-purpose nnd multi-jurisdictionnl correspondence pcrsunsive.
Aside from arguing that the failure to pro-n1te results in the statute being overbroad ns applied to 16 the petitioner, which was expressly rejected by the District Court nnd by the First Circuit, the
Petitioner has failed to identify any constitutional defect in considering the entire amount of such
contribution as attributable to Maine.
D. The Commission's Detenni11ation is SumJOrted by Substantial Evidence on the Record
The Court finds that the Petitioner has failed to meet its burden of establish.i.ug that no
competent evidence supports the Commission's decision or that the record compels a contrmy
conclusion. Bischoff v. Maine State Ret. Sys., 661 A.2d 167, 170 (Me. 1995). The
16 Judge Lipez noted:
Unsurprisingly, appellants offer no support for the contcution that the State may regulate only explicitly earmarked fuuds. Such a limitation would allow entities to easily evade disclosure requirements by guiding the content of donors' messnges, defeating the Stnte's compelling interest in informing voters. We reject11ny such nrgument out of hand.
Na1 'I Org. jor lvfnrriage. Inc. v. i'vfcKee, 669 F.3d nt 49 (interunl citntious omitted).
18 Commission's determination was based on substantial evidence in the record and was not
clouded by bias or error of law.
V. CONCLUSION
Based on the foregoing, Petitioner's Appeill pursuant to M.R. Civ. P. 80C is DENIED.
This Order may be noted on the docket by reference pursuant to Rule 79(a) of the Maine
Rules ofCivil Procedure.
DATE LJito / ;{" ~~-~- M. iVIICHAELA l'YIURPHY, JUS ~ BUSINESS AND CONSUNillR COURT
Entered on the Docket: ~h3~~ Co pie'> sP.nf viil Mail .. __E!ectroni~~ly__.!-(
19 The National Organization for Marriage v. Maine Commission on Governmental Ethical and Election Practices
BCD-AP-2014-02
The National Organization for Marriage Plaintiff
Counsel: Stephen Whiting, Esq. 75 Pearl Street, Suite 207 Portland, ME 04101
Maine Commission on Governmental Ethical and Election Practices
Defendant
Counsel: Phyllis Gardner, AAG 6 State House Station Augusta, ME 04333