MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2024 ME 61 Docket: Ken-23-426 Argued: May 8, 2024 Decided: August 13, 2024
Panel: STANFILL, C.J., and MEAD, HORTON, CONNORS, LAWRENCE, and DOUGLAS, JJ.
WILLIAM CLARDY et al.
v.
TROY D. JACKSON et al.
STANFILL, C.J.
[¶1] William Clardy, Michelle Tucker, State Representative
Shelley Rudnicki, State Representative Randall Greenwood, and nonprofit
corporation Respect Maine brought suit against Senate President Troy D.
Jackson, Speaker of the House Rachel Talbot Ross, and Governor Janet T. Mills
seeking to invalidate the First Special Session of the 131st Legislature. The
Superior Court (Kennebec County, Murphy, J.) granted the defendants’ motion
to dismiss the complaint for failure to state a claim under M.R. Civ. P. 12(b)(6).
We affirm the dismissal, albeit on the ground that the plaintiffs lack standing.
I. BACKGROUND
[¶2] Viewed in the light most favorable to the plaintiffs, the complaint
alleges the following facts. See Berounsky v. Oceanside Rubbish, Inc., 2022 ME 3, 2
¶ 2, 266 A.3d 284. There are two regular sessions of each Maine Legislature.
Me. Const. art. IV, pt. 3, § 1. In addition to its regular sessions, the Legislature
may meet in special sessions, which can be called in one of two ways. Id.; Me.
Const. art. V, pt. 1, § 13. First, the Legislature may convene a special session by
consent “on the call of the President of the Senate and Speaker of the House,
with the consent of a majority of the Members of the Legislature of each political
party, all Members of the Legislature having first been polled.” Me. Const. art.
IV, pt. 3, § 1. Second, “[t]he Governor may, on extraordinary occasions, convene
the Legislature.” Me. Const. art. V, pt. 1, § 13.
[¶3] With limited exceptions not relevant here, the Legislature has
authority to control the agenda of its sessions and to adjourn each session sine
die.1 See Me. Const. art. III, § 2; Me. Const. art. IV, pt. 3, § 1; 3 M.R.S. § 2 (2023).2
[¶4] On March 30, 2023, during the First Regular Session of the
131st Legislature, the Maine Legislature considered L.D. 424 (131st Legis.
2023), the budget bill providing for approximately $10 billion in government
appropriations and spending “for the Fiscal Years ending June 30, 2023,
1Adjournment sine die, or “without day,” is the final adjournment of a legislative session. See Opinion of the Justices, 2015 ME 107, ¶¶ 16 & n.3, 36-38, 123 A.3d 494. 2 Title 3 M.R.S. § 2 has since been amended, though the amendments are not relevant in this case.
P.L. 2023, ch. 446, § 1 (effective Oct. 25, 2023) (codified at 3 M.R.S. § 2 (2024)). 3
June 30, 2024, and June 30, 2025.”3 The then-current fiscal year would end on
June 30, 2023. If no biennial budget for Fiscal Years 2024 and 2025 had taken
effect by July 1, 2023, the government would have shut down on July 1. See
5 M.R.S. § 1501 (2023). Emergency legislation, which requires two-thirds
majority legislative approval, takes effect immediately upon the Governor’s
approval. See Me. Const. art. IV, pt. 3, § 16. Non-emergency legislation does not
take effect until ninety days after the Legislature adjourns sine die. Id. The
budget bill lacked bipartisan support and therefore could not pass as
emergency legislation. See id. Instead, it could garner only simple majority
approval in the Legislature, and thus the Legislature had to vote on the bill and
adjourn sine die by March 31 in order for a budget, and therefore funding for
government operations, to be in place for the new fiscal year. See id.; 5 M.R.S. §
1501.
[¶5] Before both chambers had voted on the budget bill, the Speaker of
the House polled the Legislature regarding convening in special session on
April 5, 2023, by consent. See Me. Const. art. IV, pt. 3, § 1. A majority of the
3 The bill provided the biennial budget for Fiscal Years 2024 and 2025 together with supplemental
funding for Fiscal Year 2023. See Comm. Amend. A to L.D. 424, No. H-12 (131st Legis. 2023). 4
members of one party voted against convening, and the Legislature therefore
could not convene in special session on its own accord on April 5.
[¶6] The Legislature then voted on the budget bill, which passed with a
simple majority vote. In addition, the Legislature passed a joint resolution to
carry over all unfinished legislative business from the First Regular Session to
the next special or regular session. S.P. 594 (131st Legis. 2023). Following
motions from both chambers, the Speaker adjourned the First Regular Session
sine die. The Speaker, the Senate President, and other members of the
Legislature expected that, despite the Legislature’s adjournment and vote not
to reconvene, the Governor would call the Legislature into a special session to
resume unfinished legislative business.
[¶7] As anticipated, the following day, Governor Mills signed the budget
bill into law, P.L. 2023, ch. 17 (effective June 29, 2023), and issued a
proclamation instructing the Legislature to convene in a special session. The
proclamation stated,
WHEREAS, there exists in the State of Maine an extraordinary occasion arising out of the need to resolve many legislative matters pending at the time of the adjournment of the First Regular Session of the 131st Legislature of the State of Maine; and
WHEREAS, the public health, safety and welfare requires that the Legislature resolve these pending matters as soon as possible, and in any event prior to the date of the Second Regular Session of the 5
131st Legislature of the State of Maine, including but not limited to the state budget, pending legislation, pending nominations of state board and commission members, and pending nominations of judicial officers by the Governor requiring legislative confirmation;
NOW, THEREFORE, I, JANET T. MILLS, Governor of the State of Maine, by virtue of the constitutional power vested in me as Governor pursuant to Article V, Part I, Section 13 of the Constitution of the State of Maine, do convene the Legislature of this State, and hereby request the Representatives to assemble at ten o’clock and the Senators to assemble at ten o’clock in the morning in their respective chambers at the Capitol in Augusta on Wednesday, April 5, 2023, in order to receive communications, resolve pending legislation carried over from the First Regular Session of the 131st Legislature and act upon pending nominations and whatever other business may come before the legislature.
Proclamation of Governor Janet T. Mills Convening the Members of the 131st
Legislature in Special Session, Off. of Governor Janet T. Mills,
https://www.maine.gov/governor/mills/official_documents/proclamations/
2023-03-proclamation-governor-janet-t-mills-convening-members (last
visited Aug. 9, 2024) [https://perma.cc/6N7K-29Z8]. In accordance with the
proclamation, the Speaker and the President assembled the Legislature on
April 5, 2023. The Legislature met eight times between April 5 and April 25 and
voted on various matters carried over from the First Regular Session, including
non-emergency laws; laws impacting spending, permitting rights,
governmental services, and aid programs; and laws affecting taxpayer
interests. The laws passed during the special session increased taxes and costs 6
for Maine people. Members of the Legislature who had voted not to convene a
special session by consent were compelled to appear at each meeting to avoid
bills passing without objection by vote of the majority party.
[¶8] On April 10, 2023, Maine citizen and taxpayer William Clardy and
unnamed plaintiffs “1–600” filed a complaint in the Kennebec County Superior
Court challenging the constitutionality of the special session. Two weeks later,
Clardy, along with Maine citizen and taxpayer Michelle Tucker, State
Representatives Rudnicki and Greenwood,4 and nonprofit corporation Respect
Maine filed an amended complaint containing two counts for declaratory and
injunctive relief against Speaker Talbot Ross, President Jackson, and Governor
Mills; this is the operative complaint. Count 1 alleged that the Governor’s
proclamation calling the Legislature into the special session was based on a
“contrived” extraordinary occasion and was therefore not a constitutional
exercise of her authority to convene the Legislature pursuant to Me. Const. art.
V, pt. 1, § 13. Count 2 alleged that the Speaker and President violated separation
of powers principles by “ceding Legislative power to the executive,” convening
the Legislature upon the Governor’s call, and conducting legislative business
4 The Representatives are also Maine citizens and taxpayers, and we assume they filed suit in their
capacities both as individual citizens and as legislators. 7
during an unconstitutional session. The complaint sought declarations that the
special session called by the Governor was unconstitutional and that legislation
passed during the session was void.
[¶9] Speaker Talbot Ross, President Jackson, and Governor Mills moved
to dismiss the amended complaint, arguing that the plaintiffs’ claims were
nonjusticiable, M.R. Civ. P. 12(b)(1), and that, because the defendants’ actions
did not violate the constitution, the amended complaint failed to state a claim
upon which relief could be granted, M.R. Civ. P. 12(b)(6). Following oral
argument on the motion, the court entered a judgment on October 13, 2023,
dismissing the complaint. Without deciding whether the plaintiffs had
standing, the court held that they had failed to state a claim because the
Governor’s determination that an extraordinary occasion existed to convene
the Legislature is not subject to judicial review and Speaker Talbot Ross and
President Jackson were immune from suit for their alleged conduct. The
plaintiffs timely appealed. M.R. App. P. 2B(c)(1).
II. DISCUSSION
[¶10] The plaintiffs argue that absent a true “extraordinary occasion,”
the Governor has no constitutional authority to convene the Legislature. In this
case, they argue, the Governor’s stated purpose of convening the Legislature to 8
complete unfinished legislative business from a prior session did not constitute
an extraordinary occasion, rendering the session unconstitutional and a
violation of separation of powers principles. The defendants argue that the
Governor’s determination of what constitutes an extraordinary occasion to
convene the Legislature is not subject to judicial review; that legislative
immunity precludes the plaintiffs’ claims against Speaker Talbot Ross and
President Jackson; and that the plaintiffs’ claims are nonjusticiable because,
among other things, the plaintiffs lack standing. We agree that the plaintiffs
lack standing and therefore we do not reach the merits of their appeal.
[¶11] The Superior Court assumed, without deciding, that the plaintiffs
have standing to challenge the validity of the Governor’s proclamation and the
special legislative session. The defendants have pressed the issue of standing
in their arguments to us, and it has been fully briefed by both sides. We review
standing de novo and may “raise the issue sua sponte,” even if the parties have
not raised it. Black v. Bureau of Parks & Lands, 2022 ME 58, ¶ 26, 288 A.3d 346.
[¶12] To sustain a claim for declaratory relief, a plaintiff must allege a
justiciable controversy, see Parker v. Dep’t of Inland Fisheries & Wildlife, 2024
ME 22, ¶ 13, 314 A.3d 208, and “a necessary element of justiciability is
standing.” Smith v. Allstate Ins. Co., 483 A.2d 344, 346 (Me. 1984). “The 9
plaintiffs bear the burden of establishing standing, which is determined based
on the circumstances that existed when the complaint was filed.” Black, 2022
ME 58, ¶ 26, 288 A.3d 346. Maine’s standing doctrine “has been applied in
varying contexts causing it to have a plurality of meanings.” Roop v. City of
Belfast, 2007 ME 32, ¶ 7, 915 A.2d 966 (quotation marks omitted). Nonetheless,
the hallmark of standing is the plaintiff’s “personal stake in the outcome of the
litigation.” Collins v. State, 2000 ME 85, ¶ 5, 750 A.2d 1257 (quotation marks
omitted).
[¶13] The complaint alleges that the plaintiffs fall into three categories.
First, it alleges that the individual plaintiffs, including Rudnicki and Greenwood
in their non-legislative capacity, are Maine citizens, taxpayers, and voters.
Second, it alleges that Representatives Rudnicki and Greenwood are elected
members of the 131st Legislature. Finally, it alleges that the organizational
plaintiff, Respect Maine, is a nonprofit corporation whose members are Maine
citizens and taxpayers. We address each category separately and conclude that
each plaintiff lacks standing.
A. Individual Plaintiffs
[¶14] The complaint alleges that bills passed during the special session
called by the Governor increase taxes and other costs on Mainers, causing 10
ongoing harm to the individual plaintiffs. Additionally, the complaint alleges
that the individual plaintiffs suffer injury because they are subject to laws
passed during an unconstitutional session of the legislature that are at risk of
being invalidated. The complaint thus alleges that the injury stems from the
individual plaintiffs’ statuses as taxpayers, citizens, and voters. We address
whether the plaintiffs have adequately pleaded standing under any theory.
1. Traditional Standing
[¶15] Generally, “to have standing to seek injunctive and declaratory
relief, a party must show that the challenged action constitutes” a “concrete and
particularized” injury that is “actual or imminent, not conjectural or
hypothetical.” Madore v. Me. Land Use Regul. Comm’n, 1998 ME 178, ¶ 13, 715
A.2d 157 (quotation marks omitted). Critically, the injury “must be distinct
from the harm suffered by the public-at-large.” Collins, 2000 ME 85, ¶ 6, 750
A.2d 1257.
[¶16] The plaintiffs argue that “members of the public writ large,
undoubtedly affected by legislation passed during an extraconstitutional
session, have standing to challenge the constitutionally repugnant legislative
activity precipitating the governmental action.” They rely on our decision in
Fitzgerald v. Baxter State Park Authority, where we held that citizens and users 11
of Baxter State Park, who had “been substantial users of Baxter State Park and
intend[ed] to use it substantially in the future,” had standing to enjoin the
Authority from carrying out a restoration project that would violate the
Authority’s trust obligations to maintain the land. 385 A.2d 189, 193, 197 (Me.
1978). We concluded that the Park users had demonstrated “a direct and
personal injury. . . to their interest in Baxter State Park.” Id.
[¶17] The Fitzgerald plaintiffs’ direct interest in the proper maintenance
of the Park, not their general interest in the proper function of government,
conferred standing. As we explained shortly after our Fitzgerald decision, a
plaintiff’s assertion “merely of the right, possessed by every citizen, to require
that the Government be administered according to law . . . does not confer
standing.” Heald v. Sch. Admin. Dist. No. 74, 387 A.2d 1, 4 (Me. 1978) (quotation
marks omitted). To the contrary, “[b]eing affected by a governmental action is
insufficient to confer standing in the absence of any showing that the effect is
an injury.” Collins, 2000 ME 85, ¶ 7, 750 A.2d 1257.
[¶18] Accepting as true that the individual plaintiffs will be subject to
laws passed during an unconstitutional legislative session, we conclude they
have failed to allege any particularized injury. Every Maine citizen will be
subject to the same laws; there is no difference between the individual 12
plaintiffs’ alleged injury and “the harm suffered by the public-at-large.” Id. ¶ 6.
They demonstrate no direct or personal interest, different from that of the
general public, in the special session called by the Governor or in the legislation
passed during it.
2. Taxpayer Standing
[¶19] In limited circumstances, we have concluded that taxpayers have
standing to contest unlawful government action. See, e.g., Common Cause v.
State, 455 A.2d 1, 13 (Me. 1983). In Common Cause, we held that Maine
taxpayers had standing to seek declaratory and injunctive relief in a claim
challenging the allegedly unconstitutional use of tax funds. Id. There, the
plaintiffs asserted a “direct interest in the enforcement of a provision of the
Maine Constitution which . . . is aimed precisely at protecting taxpayers from
having their tax dollars used for private purposes.” Id. at 10.
[¶20] Here, in contrast, the individual plaintiffs allege only that
legislation passed during the special session will increase their tax burden.
They have not alleged that any legislation considered or passed during the
special session is, on its own, unlawful, or that their tax dollars will be put to
improper use. Moreover, the challenged actions—the Governor’s proclamation
convening the Legislature in special session and the Speaker and President’s 13
assembling the Legislature—have no direct effect on taxpayer interests.5 Id.
(declining to decide that taxpayer standing exists “where the gravamen of the
complaint is the alleged violation of a . . . constitutional provision having little
or no direct connection with plaintiffs’ tax liability”). Unlike the plaintiffs in
Common Cause, the plaintiffs here have shown no direct connection between
the asserted constitutional violation and their tax dollars. See Collins, 2000 ME
85, ¶ 9, 750 A.2d 1257 (rejecting claim of taxpayer standing where plaintiff
alleged a constitutional violation having little direct connection with his tax
liability because his tax dollars did not directly pay the challenged bond debt)
The plaintiffs have not demonstrated taxpayer standing.
B. Representatives of the Maine Legislature
[¶21] We next address whether Representatives Rudnicki and
Greenwood have standing in their capacity as legislators. They allege they
suffered harm because the defendants’ conduct convening the special session
compelled them to legislate, despite having voted not to convene and
In Common Cause v. State, we stated that “[t]he chief argument against taxpayer standing . . . is 5
that the acknowledgement of such standing opens a door to litigation over decisions made at the highest levels of state government.” 455 A.2d 1, 9 (Me. 1983). Given the tenuous relationship between the individual plaintiffs’ claimed injury and the Governor’s proclamation convening the special session, this argument has considerable weight here. See Black v. Bureau of Parks & Lands, 2022 ME 58, ¶ 27, 288 A.3d 346 (recognizing that “this Court may limit access to the courts to those best suited to assert a particular claim” (quotation marks omitted)). 14
subsequently adjourning the First Regular Session sine die.6 They assert they
“have a personal stake in being compelled to the Legislature” because, had they
not appeared, the majority party would have “pass[ed] legislation without any
objection whatsoever.”
[¶22] We have not previously determined whether members of the
Legislature have standing generally to challenge government action. Black,
2022 ME 58, ¶ 31, 288 A.3d 346; cf. Me. Senate v. Sec’y of State, 2018 ME 52,
¶ 25, 183 A.3d 749 (“Assuming without deciding that the Senate has standing”
to seek a declaration of Secretary of State’s constitutional authority to
implement ranked-choice voting). Without deciding the outer limits of the
ability of legislators to maintain a suit for declaratory relief against government
actors, we hold that the Representatives lack standing here because they have
failed to meet the basic requirement that they assert an actual, concrete injury
arising from the defendants’ conduct. See, e.g., Collins, 2000 ME 85, ¶ 6, 750
A.2d 1257; Turner v. Shumlin, 163 A.3d 1173, 1178 (Vt. 2017) (requiring
legislators to meet traditional standing requirements).
The plaintiffs’ argument that the defendants “colluded” to adjourn the First Regular Session 6
prematurely and convene, at the Governor’s call, to continue unfinished legislative business adds nothing in the way of standing. 15
[¶23] As we have said, standing requires that a plaintiff demonstrate a
“concrete and particularized” injury that is “actual or imminent, not conjectural
or hypothetical.” Madore, 1998 ME 178, ¶ 13, 715 A.2d 157 (quotation marks
omitted). The Representatives claim that the special session called by the
Governor and carried out by the Speaker and President deprived the
Representatives of the benefit of their votes not to reconvene and the
Legislature’s decision to adjourn the First Regular Session. These allegations
do not establish any injury because, although in reviewing the dismissal
pursuant to M.R. Civ. P. 12(b)(6) we accept the facts alleged in the complaint as
true, “we are not bound to accept the complaint’s legal conclusions.” Collins,
2000 ME 85, ¶ 4, 750 A.2d 1257 (quotation marks omitted).
[¶24] Contrary to the allegations in the complaint, the Representatives’
votes concerning convening by consent and the Legislature’s adjournment of
the First Regular Session were given full effect. No special session was
convened by consent, and the First Regular Session of the Legislature was in
fact adjourned. The Governor called the Legislature into the special session
only after the First Regular Session had ended; the fact that she did so does not
alter the validity and effect of the legislative votes. There can be no question
that her authority to convene the Legislature, irrespective of whether there 16
exists an “extraordinary occasion” to do so, is not conditioned on the
Legislature’s separate authority to convene itself in special session with the
approval of a majority of the members of each political party. See Me. Const.
art. V, pt. 1, § 13. Thus, the defendants’ conduct could not and did not harm the
Representatives’ role in voting not to reconvene or in adjourning the First
Regular Session. See Jeffs v. Utah Power & Light Co., 12 A.2d 592, 600 (Me. 1940)
(“A plaintiff, who can show no injury to himself by reason of the facts of which
he complains, surely has no standing in court.”); Markham v. Wolf, 136 A.3d 134,
145 (Pa. 2016) (“[Legislative] [s]tanding exists only when a legislator’s direct
and substantial interest in his or her ability to participate in the voting process
is negatively impacted, or when he or she has suffered a concrete impairment
or deprivation of an official power or authority to act as a legislator.” (citations
omitted)).
[¶25] Once called into session by the Governor, the Legislature—as
always—had the exclusive authority to adjourn immediately, to determine the
agenda of the special session, or to vote not to pass any legislation. See Me.
Const. art. III, pt. 1, § 2; Me. Const. art. IV, pt. 3, § 1. The Governor’s proclamation
did not compel the legislators to take any action. Moreover, although the
Speaker and President did not immediately seek to adjourn the special session, 17
the Representatives’ claim that they were required to participate in the session
to avoid bills that they opposed “passing with no objection whatsoever” is no
more than a claim that they undertook their responsibilities as legislators
seriously, as they presumably would in any legislative session.7 Because the
Representatives failed to allege any concrete injury arising from the Governor’s
proclamation or the convening of the special session by the Speaker and
President, the Representatives also lack standing.
C. Respect Maine
[¶26] Finally, we note that Respect Maine also lacks standing because
none of its members have standing. The plaintiffs allege that Respect Maine is
a nonprofit corporation “comprised of Maine residents, taxpayers, and
members of the 131st Legislature, that advocates for responsible government.”
Associational standing exists if (1) the organization’s members would have
standing to sue individually, (2) the interests involved are germane to the
organization’s purpose, and (3) “neither the claim asserted nor the relief
7To the extent that Speaker Talbot Ross and President Jackson can be said to have injured the Representatives by not immediately adjourning the special session called by the Governor, the Representatives still would not be entitled to relief. Legislators acting within the “sphere of legitimate legislative activity . . . enjoy[] absolute common law immunity” from claims for declaratory and injunctive relief. Lightfoot v. State of Me. Legislature, 583 A.2d 694, 694 (Me. 1990). Convening the Legislature and acting upon legislation, as the Speaker and President did, are activities within the constitutional sphere of legislative activity. See id.; Me. Const. art. IV, pt. 3, § 1. They are immune from the plaintiffs’ suit. 18
requested requires the participation of individual members.” Black, 2022 ME
58, ¶ 29, 288 A.3d 346. Because, as discussed above, the harm alleged in the
complaint does not confer standing on individual plaintiffs, Respect Maine has
not demonstrated that its members “have standing to sue in their own right.”
Id.
[¶27] Although the trial court in ruling on the motion to dismiss assumed
the plaintiffs sufficiently alleged standing, we may affirm the trial court’s order
for reasons different from those the trial court relied on “when we determine,
as a matter of law, that there is another valid basis for the judgment.” Yankee
Pride Transp. & Logistics, Inc. v. UIG, Inc., 2021 ME 65, ¶ 11, 264 A.3d 1248; see
Fitch v. Doe, 2005 ME 39, ¶ 21, 869 A.2d 722. Despite alleging that they are
citizens, taxpayers, voters, and legislators, no plaintiff has suffered an injury
sufficient to confer standing to bring this case.
The entry is:
Judgment affirmed. 19
Carl E. Woock, Esq. (orally), and Stephen C. Smith, Esq., Steve Smith Trial Lawyers, Augusta, for appellants William Clardy, Michelle Tucker, Shelley Rudnicki, Randall Greenwood, and Respect Maine
Aaron M. Frey, Attorney General, and Kimberly L. Patwardhan, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellees Troy D. Jackson, Rachel Talbot Ross, and Janet T. Mills
Kennebec County Superior Court docket number CV-2023-52 FOR CLERK REFERENCE ONLY