Wayne R. Jortner et al. v. Secretary of State

2023 ME 25, 293 A.3d 405

• Court: Supreme Judicial Court of Maine
• Decided: April 10, 2023
• Docket: Cum-23-83
• Status: Published

Opinion

MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2023 ME 25 Docket: Cum-23-83 Argued: March 30, 2023 Decided: April 10, 2023

Panel: STANFILL, C.J., and MEAD, HORTON, LAWRENCE, and DOUGLAS, JJ. Majority: MEAD, HORTON, LAWRENCE, and DOUGLAS, JJ. Dissent: STANFILL, C.J.

WAYNE R. JORTNER et al.

v.

SECRETARY OF STATE

HORTON, J.

[¶1] The Secretary of State appeals from a judgment entered by the

Superior Court (Cumberland County, MG Kennedy, J.) in favor of

Wayne R. Jortner, Richard Bennett, John Clark, and Nicole Grohoski

(collectively, Jortner) on Jortner’s petition to the Superior Court for review of

the Secretary of State’s decision determining the wording of a ballot question

for citizen-initiated legislation. Contending that the Superior Court erred in

vacating her decision, the Secretary of State maintains that her wording of the

question meets the statutory requirements that it be “understandable to a

reasonable voter reading the question for the first time” and that it “will not

mislead a reasonable voter who understands the proposed legislation into 2

voting contrary to that voter’s wishes.” 21-A M.R.S. § 905(2) (2023). Reviewing

the Secretary of State’s decision independently, we reach the same conclusion

as the Superior Court: the decision must be vacated and the matter remanded

to the Secretary of State for reformulation of the question.

I. BACKGROUND

[¶2] Jortner and others applied to the Secretary of State for authorization

to circulate a petition for a citizens’ initiative proposing legislation entitled “An

Act To Create the Pine Tree Power Company, a Nonprofit, Customer-owned

Utility.” See 21-A M.R.S. § 901 (2023). The petition, including its proposed

legislation, was approved for circulation, and in November 2022, the Secretary

of State certified that the initiators of the legislation had obtained sufficient

valid signatures. See Pine Tree Power Petition, available at

https://perma.cc/864H-CFHB; 21-A M.R.S. §§ 901, 902, 903-A, 905(1) (2023);

Me. Const. art. IV, pt. 3, § 18, cls. 1, 2.

[¶3] On December 21, 2022, the Secretary of State released a proposed

ballot question for public comment. See 21-A M.R.S. §§ 901(4), 905-A, 906

(2023). On January 30, 2023, after the public comment period had closed, the

Secretary of State decided on the final wording for the ballot question: 3

Do you want to create a new quasi-governmental power company governed by an elected board to acquire and operate existing for-profit electricity transmission and distribution facilities in Maine?

Although some commenters had urged that the proposed Pine Tree Power

Company (the Company) should be described as “consumer-owned” rather

than “quasi-governmental,” the Secretary of State decided to use the term

“quasi-governmental” for the following reasons:

• The Act would create the Company as a “body corporate and politic,” a term used in the Maine Revised Statutes to describe other quasi-governmental entities.

• The Company would be classified as a “general government” entity for purposes of board member compensation under 5 M.R.S. § 12004-G (2023).

• The Company would be permitted to borrow under statutes applicable to quasi-municipal entities.

• A majority of the board of directors would be elected in elections governed by Title 21-A of the Maine Revised Statutes.

• Candidates for election to the board would be eligible to seek Maine Clean Election Act funds.

• The Company would be subject to the Maine Freedom of Access Act.

• The Company would be authorized under the Maine Administrative Procedure Act to adopt regulations having legal force.

• Although the Act would classify the Company as “consumer-owned,” the term is misleading because it could, in the Secretary of State’s words, inaccurately “suggest to voters that that consumers would be acquiring shares or some other formal ownership stake in the new entity.” 4

[¶4] On February 9, 2023, Jortner filed in the Superior Court a timely

petition for judicial review of the Secretary of State’s decision. See 21-A M.R.S.

§§ 901(7), 905(2); M.R. Civ. P. 80C. Jortner argued that the term

“quasi-governmental power company” is incomprehensible and misleading

because there is no statutory definition of the term, and that the term would

confuse and mislead reasonable voters, whereas voters would understand the

term “consumer-owned transmission and distribution utility.” He argued that

voters might improperly believe that the Company would be privately

managed, that it would be a taxpayer-funded organ of government, or that it

would be run by the government. In contrast, he argued, the term

“consumer-owned” appears in other statutes, was used in the petitions

themselves and in other related documents, and is the most accurate descriptor

of the Company. The relief sought in his petition included a request that the

court “[m]odify the [Secretary of State’s] Decision by substituting the term

‘consumer-owned transmission and distribution utility’ for

‘quasi-governmental power company’ in the Ballot Question.”

[¶5] The court considered these arguments and those of the Secretary of

State and issued a decision on March 9, 2023, vacating the Secretary of State’s

decision. The court reasoned that the term “quasi-governmental” is not 5

understandable to a reasonable voter, especially because it is not a term

defined in Maine’s statutes, and that the term is misleading because it suggests

that the Company would be funded by taxpayers rather than consumers,

whereas the core feature of the proposed legislation is consumer funding and

ownership. The court declined Jortner’s request that it modify the question to

use the term “consumer-owned” and instead remanded the matter to the

Secretary of State to revise the wording of the question. See Me. Const. art. IV,

pt. 3, § 20 (allocating the task of drafting the ballot question to the Secretary of

State).

[¶6] The Secretary of State timely appealed. See 21-A M.R.S. § 905(3);

M.R. App. P. 1A. We issued an expedited briefing schedule, established the

order of proceedings for oral argument, and accepted briefs from the parties

and amici curiae Maine Affordable Energy Ballot Question Committee, Maine

Energy Progress Political Action Committee, and The Sierra Club. In their

briefs, both the Secretary of State and Jortner focus on the term

“quasi-governmental.” Jortner does not maintain on appeal his argument that

the ballot question should incorporate the term “consumer-owned” instead of

the term “quasi-governmental,” and we deem that argument withdrawn. 6

II. DISCUSSION

[¶7] Our discussion will begin with a summary of our standard of review

and existing statutory language and interpretations, and will then proceed to

an analysis of the issue presented here.

A. Standard of Review and Pertinent Law

[¶8] Because, by statute, our “standard of review must be the same as for

the Superior Court,” 21-A M.R.S. § 905(3), we engage in a direct review of the

ballot question as drafted by the Secretary of State, without reference to the

Superior Court’s judgment, to “determine whether the description of the

subject matter is understandable to a reasonable voter reading the question for

the first time and will not mislead a reasonable voter who understands the

proposed legislation into voting contrary to that voter’s wishes,” id. § 905(2);

see Olson v. Sec’y of State, 1997 ME 30, ¶ 4, 689 A.2d 605. This standard of

review subsumes our review of whether the Secretary of State met her

constitutional obligation to “prepare the ballots in such form as to present the

question or questions concisely and intelligibly,” Me. Const. art. IV, pt. 3, § 20,

and her statutory obligation to “write the question in a clear, concise and direct

manner that describes the subject matter of the . . . direct initiative as simply as 7

is possible,” 21-A M.R.S. § 906(6)(B).1 See Olson, 1997 ME 30, ¶ 6, 689 A.2d 605;

cf. Allen v. Quinn, 459 A.2d 1098, 1100 (Me. 1983) (indicating that when

interpreting the citizen-initiative provisions of the Maine Constitution, “we

seek the meaning which the words would convey to an intelligent, careful

voter” (quotation marks omitted)); Payne v. Sec’y of State, 2020 ME 110, ¶ 18,

237 A.3d 870 (same). The burden of persuasion is on the party challenging the

Secretary of State’s action. See Olson, 1997 ME 30, ¶ 7, 689 A.2d 605; see also

21-A M.R.S. § 905(2) (providing for an appeal to be brought in accordance with

M.R. Civ. P. 80C); Maquoit Bay, LLC v. Dep’t of Marine Res., 2022 ME 19, ¶ 5,

271 A.3d 1183 (“The party challenging the agency decision bears the burden of

persuasion on appeal.”).

[¶9] We have considered on two occasions whether ballot questions met

the standard set forth in section 905(2). See Olson, 1997 ME 30, ¶¶ 7-11,

689 A.2d 605; Wagner v. Sec’y of State, 663 A.2d 564, 568 (Me. 1995). In

Wagner, the drafted question was as follows:

Do you favor the changes in Maine law limiting protected classifications, in future state and local laws to race, color, sex, physical or mental disability, religion, age, ancestry, national origin,

1 Title 21-A M.R.S. § 906(6)(B) was amended after we decided Olson v. Secretary of State, 1997 ME 30, 689 A.2d 605. See P.L. 2019, ch. 414, § 1 (effective June 20, 2019) (codified at 21-A M.R.S. § 906(6)(B) (2023)). We consider the standard of review laid out for us in 21-A M.R.S. § 905(2) (2023) to continue to subsume our review of the Secretary of State’s statutory obligations described in section 906(6)(B) as that statute has been amended. See Olson, 1997 ME 30, ¶ 6, 689 A.2d 605. 8

familial status, and marital status, and repealing existing laws which expand these classifications as proposed by citizen petition?

Wagner, 663 A.2d at 566 n.3 (quotation marks omitted). We concluded that

even if the question incorrectly implied that the proposed legislation would

bind future lawmakers, the question would not mislead voters into voting

contrary to their intent. Id. at 568.

[¶10] More recently, we considered a ballot question that the Secretary

of State drafted to read as follows:

Should spraying pesticides from the air or putting pesticides in Maine’s waters be a Class A crime?

Olson, 1997 ME 30, ¶ 3, 689 A.2d 605 (quotation marks omitted). We concluded

that the use of the term “putting” was not misleading to a voter who understood

the proposed legislation because, although the parties challenging the question

suggested that the term carried an element of intent, the term’s meaning was

close to that conveyed in the proposed act, which criminalized “caus[ing], by

any means, the introduction of” pesticides in Maine waters. Id. ¶¶ 7-9. We

noted in support of our conclusion that the drafted question contained no

express statement about an intent requirement and that a reasonable voter

who understood the initiative would not be misled. Id. ¶ 9. 9

[¶11] We further concluded that the use of the term “Class A crime” was

understandable to a reasonable voter because, viewed with existing statutes, it

adequately informed the voter of the choice presented. Id. ¶¶ 10-11. We

assumed that “voters [would have] discharged their civic duty to educate

themselves about the initiative,” including about the statutory definition of a

Class A crime. Id. ¶ 11.

[¶12] The ballot question drafting process, as we stated, “is designed to

ensure that voters, who may be reading the question for the first time in the

voting booth, will understand the subject matter and the choice presented.” Id.

(emphasis added). Nonetheless, “[v]oters are not to rely on the ballot question

alone in order to understand the proposal.” Id. In essence, the ballot question

must ask a clear question about whether the voter wishes to approve proposed

legislation of which the voter is presumed to be already aware. See id. We

explicitly rejected “the notion that section 905 requires that the description be

understandable to a voter who is reading both the question and the legislation

for the first time.” Id. (emphasis added).

[¶13] These opinions inform us that the question need not provide

complete, comprehensive information about the legislation or its effect. See id.

¶ 7 (“Merely demonstrating that the question creates a misleading impression 10

about the legislation is not enough.”); Wagner, 663 A.2d at 568 (“Although the

question may inaccurately suggest the legislation will limit the actions of future

state legislatures, it is not misleading within the meaning of section 905(2).”

(footnote omitted)). The statute is concerned with whether “a reasonable voter

who understands the proposed legislation” but is reading the question for the

first time would not be able to understand the question or would be misled

“into voting contrary to that voter’s wishes,” 21-A M.R.S. § 905(2) (emphasis

added)—not whether a voter who does not understand the proposed

legislation would be able to fully understand it based on the question alone.

[¶14] The question must also represent the proposed legislation

“concisely and intelligibly,” Me. Const. art. IV, pt. 3, § 20, “in a clear, concise and

direct manner that describes the subject matter of the . . . direct initiative as

simply as is possible,” 21-A M.R.S. § 906(6)(B). Thus, we consider whether the

ballot question is clear and understandable and whether the ballot question

will mislead a reasonable, informed voter into voting contrary to the voter’s

intent. Id. § 905(2); Olson, 1997 ME 30, ¶¶ 4-11, 689 A.2d 605; Wagner,

663 A.2d at 568.

B. Review of the Drafted Ballot Question

[¶15] The Secretary of State’s ballot question used the term at issue in 11

this appeal—“quasi-governmental”—to describe the Company. Jortner

contends that the term “quasi-governmental” is both “incomprehensible” and

“misleading” and therefore fails both the “understandable” and the “not

mislead[ing]” requirements of section 905(2). The Secretary of State asserts

that the term “quasi-governmental” meets both requirements and suggests that

Jortner’s preferred term, “consumer-owned,” might “misguide” voters into

believing that the Company would give consumers “some sort of formal

ownership stake” in the Company.

[¶16] Because responsibility for formulating the question rests with the

Secretary of State, our review focuses on whether the Secretary of State’s term

“quasi-governmental power company” (1) is “understandable to a reasonable

voter reading the question for the first time” and (2) “will not mislead a

reasonable voter who understands the proposed legislation into voting

contrary to that voter’s wishes.” 21-A M.R.S. § 905(2). Jortner bears the burden

to show that the Secretary of State’s inclusion of the term causes the question

to violate one or both of the two section 905(2) criteria. See Olson, 1997 ME 30,

¶ 7, 689 A.2d 605; see also 21-A M.R.S. § 905(2); Maquoit Bay, LLC, 2022 ME 19,

¶ 5, 271 A.3d 1183. 12

1. The New Company as Classified and Described in the Proposed Legislation

[¶17] “The electric power industry is generally made up of three types

of electric utilities: investor-owned utilities, publicly owned utilities (including

federal, state and municipal governmental entities) and electric cooperatives.”

16 Business Organizations with Tax Planning § 240E.01 (Matthew Bender Lexis

2023). According to the Maine Public Utilities Commission’s summary of

residential electric rates, Maine’s electric utilities consist of all three types—

although they are currently classified in statute as either “consumer-owned” or

“investor-owned.” See Me. Pub. Utils. Comm’n, Residential Electric Rates,

available at https://perma.cc/6QYF-XGQ9; 35-A M.R.S. §§ 3104(1)(A),

3201(6), 3501(1) (2023).

[¶18] The proposed legislation would classify the Company as a

“consumer-owned transmission and distribution utility” for purposes of the

Maine statutes governing public utilities. See Pine Tree Power Petition, §§ 9, 12

(proposed 35-A M.R.S. §§ 3501(1)(F), 4003(1), (12)(A)). An existing statute

defines “consumer-owned transmission and distribution utility” to mean “any

transmission and distribution utility that is wholly owned by its consumers, 13

including its consumers served in the State.”2 35-A M.R.S. § 3501(1). The

current statutory “consumer-owned transmission and distribution utility”

category explicitly includes five identified types of entities: a “rural

electrification cooperative,” an “electrification cooperative organized on a

cooperative plan under the laws of the State,” a “municipal or quasi-municipal

transmission and distribution utility located in the State,” “[t]he portion of any

municipal or quasi-municipal entity located in the State providing transmission

and distribution services,” and a “transmission and distribution utility wholly

owned by a municipality located in the State.”3 35-A M.R.S. § 3501(1)(A)-(E).

[¶19] That the statutory “consumer-owned” category already includes

five different types of electric utilities raises an immediate question as to how

the ballot question should describe the Company. The proposed legislation

does not answer the question because it would simply include the Company by

2 Notably, an “investor-owned transmission and distribution utility” is defined in the negative, for purposes of the statute governing scheduled meter readings, as “a transmission and distribution utility other than a consumer-owned transmission and distribution utility as defined in [35-A M.R.S. § 3201 (2023)].” 35-A M.R.S. § 3104(1)(A) (2023). Section 3201(6) provides the same definition of a “consumer-owned transmission and distribution utility” as 35-A M.R.S. § 3501(1) (2023).

3 The Maine statute is not alone in classifying publicly owned utilities with member-owned cooperatives under the “consumer-owned” rubric. See, e.g., Haberman v. Wash. Pub. Power Supply Sys., 744 P.2d 1032, 1072 (Wash. 1987) (“[T]he rural electric cooperatives, like the respondent [public utility districts] and municipal utilities, are nonprofit, consumer-owned utilities serving those who reside within their service areas . . . .”). Other authorities distinguish between publicly owned and consumer-owned utilities. See Town of Concord v. Bos. Edison Co., 915 F.2d 17, 19-20 (1st Cir. 1990) (“Investor-owned utilities of the type we have described supply approximately 75% of the nation’s electricity. The remainder is supplied by government- and consumer-owned systems.”). 14

name as a sixth type of utility within the statutory “consumer-owned” category

without stating what type it is or how it resembles or differs from the five utility

types already included in the statute. See Pine Tree Power Petition, § 9

(proposed 35-A M.R.S. § 3501(1)(F)).

[¶20] The Company would not be a cooperative because the proposed

legislation does not contain any provision conferring any ownership or

property interest or right on the Company’s customers that would be

comparable to the property rights of members of a cooperative.4 Indeed, the

proposed legislation defines a “customer-owner” only as “a person to whom the

company provides electricity.” Id. § 12 (proposed 35-A M.R.S. § 4001(5)).

Consistent with the Company’s designation in the title of the proposed Act as a

“nonprofit” utility, the proposed legislation provides that “[t]he rates and all

other charges of the company must be sufficient to pay in full the cost of service,

including the cost of debt and property taxation,” id. § 12 (proposed 35-A M.R.S.

4 For example, by statute, the users of a rural electric cooperative’s transmission and distribution

services are “members” of the cooperative, 35-A M.R.S. § 3734 (2023), and are granted specific statutory rights to receive portions of the cooperative’s revenue and value, 35-A M.R.S. §§ 3705, 3755(5) (2023). A rural electrification cooperative must, in specified circumstances, distribute revenues in the form of prorated “patronage refunds” to its members (who must be users of the cooperative’s transmission and distribution services), id. §§ 3705, 3734, and must similarly distribute funds to members proportionally and through a prescribed method if it dissolves and winds up its business, id. § 3755(5). There are no comparable provisions in the proposed legislation here. 15

§ 4004), with no provision for refunds, rebates, dividends, or similar

distributions to customers.

[¶21] Many aspects of the Company would be governmental in nature.

Initially, the fact that the Company would be a creature of statute is itself a

governmental attribute. The following additional features lend support to the

characterization of the Company as being at least partly or in a sense

governmental:

• Several of the purposes of the Company further statewide policy objectives. Those purposes include to “provide an open, supportive and competitive platform to develop and deploy renewable generation, storage, efficiency and beneficial electrification technologies”; to “assist the State in rapidly meeting or exceeding the climate action plan goals established in Title 38, chapter 3-A”; to “improve the State’s Internet connectivity through more affordable access to utility poles and other infrastructure in unserved or underserved areas of the State, as defined in section 9202, subsection 5”; to “advance economic, environmental and social justice and to benefit [C]ompany workers and all communities in the State”; and to “support, secure and sustain economic growth and benefits for the State.” Id. § 12 (proposed 35-A M.R.S. § 4002(1)(C)-(F), (H)).

• Some members of the board of the Company would be elected by popular vote—not by customers only. Id. (proposed 35-A M.R.S. § 4002(2)(A)).

• Candidates for those elected board positions would be “eligible for funding through the Maine Clean Election Act, in amounts and under terms commensurate with those for candidates for the State Senate.” Id. (proposed 35-A M.R.S. § 4002(2)(C)).

• “The nomination of candidates for elected members of the board [would be] governed by Title 21-A, chapter 5, subchapter 2, and the 16

determination of the election [would be] governed by Title 21-A, section 723-A.” Id. (proposed 35-A M.R.S. § 4002(2)(E)).

• The Secretary of State would be authorized to “adopt rules governing the election of members of the board” in consultation with the Public Utilities Commission. Id. (proposed 35-A M.R.S. § 4002(2)(E)).

• A vacancy of an elected board member would be filled by a special election “held within 180 days of notification of the vacancy and declared in the manner prescribed by Title 21-A, section 366.” Id. (proposed 35-A M.R.S. § 4002(3)).

• The board would have the obligation to make reports to the joint standing committee of the Legislature having jurisdiction over energy and utilities matters, with annual reports being required to address state climate action plan goals, job creation, and gross state product. Id. (proposed 35-A M.R.S. §§ 4002(7), 4011).

• The Company would be authorized to “adopt rules pursuant to Title 5, chapter 375, subchapter 2-A for establishing and administering the [C]ompany and carrying out its duties,” and those rules would be “major substantive rules as defined in Title 5, chapter 375, subchapter 2-A.” See id. (proposed 35-A M.R.S. § 4003(10)).

• Assistance and counsel could be provided to the Company’s board “by the Office of the Treasurer of State, the Office of the Attorney General, the Maine Municipal Bond Bank, the Finance Authority of Maine, the [Public Utilities C]ommission, the Office of the Public Advocate and any other state entity.” Id. (proposed 35-A M.R.S. § 4003(13)).

• The Act would refer to the Company as “a quasi-municipal corporation” for purposes of municipal debt liability, and the Company would pay municipal property taxes, but “[a]ll bonds, notes and other evidences of indebtedness issued by the [C]ompany [would be] . . . exempt from state income tax.” Id. (proposed 35-A M.R.S. § 4008(1), (2)).

• The Act would provide that “[t]he [C]ompany serves a public purpose.” Id. (proposed 35-A M.R.S. § 4006). 17

• The proceedings and records of the company would, with some exceptions, be “subject to the freedom of access laws, Title 1, chapter 13.” Id. (proposed 35-A M.R.S. § 4010).

• The Company would have to produce a “5-year plan” that would “[e]stablish lower rates for low-income residential customers,” create “rapid charging infrastructure for electric vehicles” across the state, “[r]educe make-ready and pole attachment costs for open-access fiber-optic cable in unserved and underserved areas of the State,” and rapidly invest “in the distribution network to upgrade reliability and to improve capacity for interconnections of new renewable generation and storage facilities.” Id. (proposed 35-A M.R.S. § 4012).

[¶22] In addition, the proposed legislation provides that “[d]ebt or

liability of the [C]ompany is not a general obligation or moral obligation of the

State or any agency or instrumentality of the State other than the [C]ompany,”

which suggests that the Company would be an “agency or instrumentality of the

State.” Id. (proposed 35-A M.R.S. § 4005) (emphasis added). The board of the

Company would also be included among the “[g]eneral government” boards

that are authorized, for their specific purposes, to “hold hearings, adopt rules

and establish policies and procedures,” and to “enter into contracts, establish

just charges, conduct investigations, acquire property or enforce state laws.”

5 M.R.S. § 12004-G; see Pine Tree Power Petition, § 1 (proposed 5 M.R.S.

§ 12004-G(36)). Although the Company’s employees would be private

employees of a nongovernmental “operator” responsible for the employees’

benefits, the “operator” would be selected through “competitive public 18

solicitation.” Pine Tree Power Petition, § 12 (proposed 35-A M.R.S. § 4003(3),

(5)).

[¶23] Due to the Company’s substantial governmental attributes and the

absence of any provision in its enabling legislation defining or conferring

ownership rights in either investors or members, the Company conforms most

closely to the publicly owned model of a utility.5 Because the term

“consumer-owned,” as used in the Maine utilities statutes, includes some

entities that are directly and literally owned by consumers and some that are

not, the Secretary of State determined that the term “consumer-owned” would

not be clear and understandable in context and might mislead voters who are

familiar with the proposed legislation.

2. “Quasi-Governmental”

[¶24] Instead of the term “consumer-owned,” the Secretary of State used

the term “quasi-governmental” to describe the Company because she regarded

it as being similar to other “quasi-governmental” entities that have been

established pursuant to Maine statutes. This rationale assumes, however, that

the informed voter is familiar not only with the proposed legislation but with

5Our characterization of the Company as being most like a publicly owned utility finds support in the parties’ oral arguments. Counsel for the Secretary of State referred to the proposed Company as a “quasi-municipal entity,” and counsel for Jortner likened it to a municipal power company. 19

an assortment of other statutes using the term “quasi-governmental”—a term

not used in the proposed legislation. Although the term “quasi-governmental”

appears in several Maine statutes, it is not defined in any of them. See, e.g., 21-A

M.R.S. § 196-A(1)(E) (2023) (authorizing the Secretary of State or a registrar to

make available, to a “quasi-governmental entity, certain voter information for

that entity’s authorized use only”). Some statutes give examples of

quasi-governmental entities, including “a government-sponsored enterprise,”

24-A M.R.S. § 1151-A(31) (2023) (defining “person” for purposes of statutes

governing certain domestic life and health insurers), and “a conservation

commission, a regional planning commission or a water or sewer district,”

33 M.R.S. § 1581(1)(A) (2023) (defining “holder” for purposes of Maine’s trail

easement statutes).

[¶25] More generally, the term “quasi-governmental” itself is not a

common term; it does not appear even in some unabridged dictionaries.

See, e.g., Webster’s Third New International Dictionary of the English Language

Unabridged (2002); Random House Unabridged Dictionary (2d ed. 1993).

Moreover, even in legal contexts, the prefix “quasi-” “is not a very definite

word.” Quasi, Black’s Law Dictionary (11th ed. 2019) (quotation marks

omitted). In common usage, it has multiple meanings: 20

• “[t]o some degree; in some manner,” Quasi-, American Heritage Dictionary of the English Language (5th ed. 2016);

• “being partly or almost,” or “apparently but not really” having a quality, Quasi-, New Oxford American Dictionary (3d ed. 2010);

• “as if; in a sense or manner; . . . in part,” or “seemingly” but not actually being something, Quasi, Webster’s New World College Dictionary (5th ed. 2016); or

• “resembling, having some, but not all of the features of,” Quasi-, Random House Unabridged Dictionary (quotation marks omitted).

[¶26] The Secretary of State’s purpose in describing the Company is

entirely justified, but her use of a descriptive term that does not appear in the

proposed legislation and does not have a clear dictionary definition persuades

us that the question as drafted is not “understandable to a reasonable voter

reading the question for the first time.” 21-A M.R.S. § 905(2). In marked

contrast to the term at issue in Olson, the potentially confusing term used in

the ballot question here does not appear in the proposed legislation. See Olson,

1997 ME 30, ¶¶ 2, 10-11, 689 A.2d 605 (considering whether “Class A crime,”

a term used in the proposed legislation, was understandable to a reasonable

voter seeing the question for the first time). A voter who was aware of the

proposed legislation would not necessarily have encountered the term

“quasi-governmental” before reading the question. It is not reasonable to

assume that a voter would have researched statutes or other sources to 21

determine the meaning of a term that the voter has not seen in the proposed

legislation before proceeding to vote in an election.

[¶27] Even if the voter had previously encountered the term, the term is

not used in the proposed legislation to describe the Company, the prefix

“quasi-” has multiple meanings, and even in Maine statutes, there is no existing

statutory definition of the term. For these reasons, a voter could well be

uncertain about the meaning of the term in the context of the question: Is the

Company in fact partly governmental or does it merely resemble a

governmental entity? Or is the Company seemingly, but not actually, like a

governmental entity? Although “[i]t is inevitable that ballot questions will

reflect the ambiguities, complexities, and omissions in the legislation they

describe,” id. ¶ 11, a question that could generate additional ambiguity or

confusion is not “understandable to a reasonable voter reading the question

for the first time,” 21-A M.R.S. § 905(2); see also Me. Const. art. IV, pt. 3, § 20;

21-A M.R.S. § 906(6)(B).

[¶28] We hold that the term “quasi-governmental” is not a term that a

reasonable voter reading the question for the first time would be expected to

understand in context as an adjectival descriptor of the Company. The

Secretary of State’s inclusion of the term in the ballot question therefore means 22

that the question does not meet the “understandable” standard of section

905(2). On the other hand, because of the Company’s numerous governmental

qualities and features, it would not be misleading for the question to

incorporate a more understandable description of the governmental aspects of

the Company,6 but it is for the Secretary of State, not for us, to formulate the

question. See Me. Const. art. IV, pt. 3, § 20; 21-A M.R.S. § 906(6)(B). Our

application of section 905(2) in this manner furthers the legislative goal of

presenting questions to the public “in a clear, concise and direct manner that

describes the subject matter of the . . . direct initiative as simply as is possible.”

6 Jortner argues that the Secretary of State’s use of the term “quasi-governmental” is misleading

because the voters will assume that “an organization designated as ‘governmental,’ regardless of qualifier, is supported by tax revenues.” Existing publicly owned utilities in Maine are funded by users who pay rates, not by taxpayers, and a voter familiar with the proposed legislation would have no reason to believe that taxes would pay for the Company’s delivery of electricity. See 35-A M.R.S. § 3912 (2023) (requiring municipal electric districts to set rates to cover “the current expenses for operating and maintaining the electric system” and to cover debt obligations); 35-A M.R.S. § 6105(2) (2023) (requiring a municipal or quasi-municipal water utility to “establish rates, tolls or charges that are just and reasonable and that provide revenue as may be required to perform its public utility service and to attract necessary capital on just and reasonable terms”); Pine Tree Power Petition, § 12 (proposed 35-A M.R.S. § 4004) (providing that “[t]he rates and all other charges of the company must be sufficient to pay in full the cost of service, including the cost of debt and property taxation”). Jortner also argues that, if the question refers to the Company as in any sense governmental, it might “trigger” an “emotional impact” among voters. The potential effect upon voters of a descriptor is not, however, within the scope of our review of a drafted question—our only task is to determine whether the question is “understandable to a reasonable voter reading the question for the first time and will not mislead a reasonable voter who understands the proposed legislation into voting contrary to that voter’s wishes.” 21-A M.R.S. § 905(2). 23

III. CONCLUSION

[¶29] Ultimately, our task is not to compose the wording of a ballot

question de novo but to determine whether the Secretary of State’s chosen

wording is “understandable to a reasonable voter reading the question for the

first time” and whether it will “mislead a reasonable voter who understands the

proposed legislation into voting contrary to that voter’s wishes.” 21-A M.R.S.

§ 905(2). Fully recognizing the considerable challenge that the Secretary of

State faces in drafting a ballot question summarizing complex legislation in

simple, clear, and understandable terms, we conclude that Jortner has met his

burden to demonstrate that the question as drafted is not “understandable to a

reasonable voter reading the question for the first time.” Id. Even though some

features of the new entity would be governmental in nature, the use of the term

“quasi-governmental” in the ballot question does not meet this standard.

The entry is:

Judgment vacating the Secretary of State’s decision affirmed. Remanded for the Superior Court to remand to the Secretary of State to revise the ballot question consistent with the analysis in this opinion. Mandate to issue immediately. 24

STANFILL, C.J., dissenting.

[¶30] I appreciate the Court’s thorough discussion of the standards and

issues involved in this case, which recognizes that the responsibility for

drafting the ballot question lies with the Secretary of State. Court’s Opinion

¶¶ 3, 16; 21-A M.R.S. § 901(4) (2023). I respectfully dissent, however, because

I believe that the Secretary’s use of the term “quasi-governmental” to describe

the Pine Tree Power Company complies with her constitutional and statutory

responsibilities to ensure that “the description of the subject matter is

understandable to a reasonable voter reading the question for the first time and

will not mislead a reasonable voter who understands the proposed legislation

into voting contrary to that voter’s wishes,” 21-A M.R.S. § 905(2) (2023); to

“write the question in a clear, concise and direct manner that describes the

subject matter of the . . . direct initiative as simply as is possible,” 21-A M.R.S.

§ 906(6)(B) (2023); and to “prepare the ballots in such form as to present the

question or questions concisely and intelligibly,” Me. Const. art. IV, pt. 3, § 20.

[¶31] The proposed legislation does not use the term

“quasi-governmental”; rather, it classifies the Company as “consumer-owned.”

See Pine Tree Power Petition, §§ 9, 12 (proposed 35-A M.R.S. §§ 3501(1)(F),

4003(1), (12)(A)). In drafting the question, the Secretary chose to use the term 25

“quasi-governmental” to describe the proposed Company because she

regarded it as being similar to other “quasi-governmental” entities established

in Maine statutes. Court’s Opinion ¶ 24. Although an informed voter may not

be familiar with the term’s usage in other statutes, there is no requirement that

a term be defined in a statute to be understandable. And, particularly because

it may be encapsulating a complex piece of legislation into one simple question,

“the question need not provide complete, comprehensive information about

the legislation or its effect.” Court’s Opinion ¶ 13.

[¶32] The Court critiques the term “quasi-governmental” as ill-defined.

But it is a compound word, composed of a word and a prefix that are both

readily understood. “Governmental” is simply the adjectival form of

“government,” and “quasi” is a commonly used prefix. As the Court explains,

“quasi” can mean to some degree, in some manner, partly, apparently but not

really, resembling, or seemingly but not actually. Court’s Opinion ¶ 25. As both

the Secretary and the Court note, many aspects of the Company are, indeed,

governmental in nature. Court’s Opinion ¶¶ 21-22. The Company to some

degree, in some manner, almost, or partly resembles a governmental entity.

[¶33] “It is inevitable” that the phrasing of the question “reflect[s] the

ambiguities, complexities, and omissions in the legislation [it] describe[s].” 26

Olson v. Sec’y of State, 1997 ME 30, ¶ 11, 689 A.2d 605. It is not our task to

determine whether the Secretary’s chosen phrasing is optimal; indeed, it may

not be. Because I believe the question is understandable and will not mislead a

reasonable voter (as previously defined), however, I would vacate the decision

of the Superior Court.

Aaron M. Frey, Attorney General, Paul E. Suitter, Asst. Atty. Gen. (orally), and Jonathan R. Bolton, Asst. Atty. Gen., Office of the Attorney General, Augusta, for appellant Secretary of State

Sean R. Turley, Esq., and Peter L. Murray, Esq. (orally), Murray, Plumb & Murray, Portland, for appellees Wayne R. Jortner, Richard Bennett, John Clark, and Nicole Grohoski

Nolan L. Reichl, Esq. (orally), Pierce Atwood LLP, Portland, for amicus curiae Maine Affordable Energy Ballot Question Committee

Paul McDonald, Esq. (orally), and Rosalie Wennberg, Esq., Bernstein Shur, Portland, for amicus curiae Maine Energy Progress Political Action Committee

Benjamin Gaines, Esq. (orally), Gaines Law LLC, Portland, for amicus curiae The Sierra Club

Cumberland County Superior Court docket number AP-2023-7 FOR CLERK REFERENCE ONLY