Dunn v. Bellows

STATE OF MAINE SUPERIOR COURT
KENNEBEC, ss. CIVIL ACTION
Docket No. AP-23-07

NL9
WILLIAM H. DUNN, JR.,

Ne
Le9
Petitioner,

ee
Le
v.

Ne
Ne
SHENNA BELLOWS, in her official

Ne
capacity as Secretary of State for the DECISION AND ORDER

Ne
State of Maine,

Se
ee9
Respondent,
ee=
ee=

and,
Se9
ee=

NO BLANK CHECKS BALLOT
Nee

QUESTION COMMITTEE,
ee
Nee
Nome

Intervenor.
Nee
Nem

Introduction

Petitioner William H. Dunn, Jr. (<Petitioner=) has filed an action pursuant to 21-A
M.R.S. § 905(2) and M.R. Civ. P. 80C appealing Secretary of State Shenna Bellows9
Determination of the Validity of a Petition for Initiated Legislation, dated January 26, 2023.
In her decision, the Secretary of State (<the Secretary=) found that the citizen initiative
petition at issue4known as <An Act to Require Voter Approval of Certain Borrowing by
Government-Controlled Entities and Utilities and to Provide Voters More Information
Regarding that Borrowing= 4was valid and supported by a sufficient number of valid
signatures. More particularly, the Secretary found that the proponents of the initiative
submitted 68,807 valid signatures, 1,125 above the 67,682 threshold.
On appeal, Petitioner argues that the Secretary erroneously deemed at least 1,181 of
those signatures to be valid, and when removed from the final signature count, a deficit of

56 signatures exists.' Among the errors alleged, Petitioner contends that the Secretary
failed to comply with the statutory requirements governing circulator affidavits, as set forth
in 21-A M.R.S. § 903-A(4). For relief, Petitioner asks the court to remand the matter to the
Secretary for invalidation of the challenged signatures or to directly reverse the Secretary9s
decision.

By statute, the court is required to decide this appeal <before the 40th day after the
decision of the Secretary of State.= 21-A M.R.S. § 905(2). The court has reviewed the
record as well as the briefing submitted by Petitioner, the Secretary, and Intervenor No
Blank Checks Ballot Question Committee. Oral argument was held on March 3, 2023.

Background

By way of some brief background,= William Ritch-Smith filed an Application for
Citizen9s Initiative with the Secretary on September 7, 2021. On December 7, 2021, the

Secretary approved the form of the petition, and supporters of the initiative thereafter began
collecting signatures. As part of that process, the individuals who solicited signatures for
the petition4i.e., the circulators 4prepared <circulator affidavits= to be submitted to the
Secretary along with the other petition materials. Circulator affidavits must meet certain
statutory requirements, including those described in 21-A M.R.S. § 903-A(4).

On December 27, 2022, the campaign submitted to the Secretary 28,238 petitions
containing 93,837 signatures. The Secretary then proceeded to review the petitions over a
period of 30 days. On January 26, 2023, the Secretary issued her Determination of the
Validity of the Petition for Initiated Legislation. In her written Determination, the Secretary

' Petitioner originally challenged 1,184 signatures. This number changed after Petitioner
acknowledged various signatures that were erroneously included in the challenged signature tally
and identified additional signatures that were subject to challenge.
2 Given the truncated timeframe for issuing a decision, the court dispenses with a lengthy
factual and procedural background.
invalidated 25,030 signatures, 28 of which were deemed <invalid because the circulator
did not file a circulator9s affidavit at the time the petitions were filed with the Secretary of
State or the affidavit was not properly completed.= The Secretary nevertheless found
68,807 valid signatures, a total that exceeded the constitutional threshold by 1,125. See Me.
Const. art IV, pt. 3, § 18(2). Accordingly, the Secretary found the petition to be valid. On
February 6, 2023, Petitioner appealed the Secretary9s decision pursuant to M.R. Civ. P.
80C and 21-A M.R.S. § 905(2).
Standard of Review/Legal Framework

The court9s discussion must begin with recognizing the various constitutional rights
and principles implicated in this case. The Maine Constitution grants Maine people the
right to legislate by direct initiative. Me. Const. art IV, pt. 3, § 18. The Law Court has
stressed the importance of such a right, declaring <the right of the people to initiate and
seek to enact legislation [to be] an absolute right.= McGee v. Sec'y of State, 2006 ME 50, 4
21, 896 A.2d 933. <[A]lthough the Legislature has the authority to enact laws providing
for the implementation of the initiative right, any legislative implementation must respect
the substance of the constitutional right.= Jd. | 20; Me. Const. art IV, pt. 3, § 22. The right
cannot be abridged either directly or indirectly by governmental action. McGee, 2006 ME
50, 4 21, 896 A.2d 933. Accordingly, laws governing the direct initiative process <must be
liberally construed to facilitate, rather than handicap, the people9s exercise of their
sovereign power to legislate.= Allen v. Quinn, 459 A.2d 1098, 1102-03 (Me. 1983).

The Law Court has also recognized that <[t]he circulation of direct initiative
petitions is 8core political speech,9 and any state regulation of the initiative process must
be 8narrowly tailored9 to carry out a compelling state purpose.= Me. Taxpayers Action
Network v. Sec'y of State, 2002 ME 64, 4 8, 795 A.2d 75. Laws governing the initiative
process should therefore be construed in a way that avoids imposing an impermissible
burden on protected speech. See id.; see also State v. Cropley, 544 A.2d 302, 304 (Me.
1988).
Moreover, under the Maine Constitution, <[t]he Secretary of State is the
constitutional officer entrusted with administering4and having expertise in4the laws
pertaining to the direct initiative process.= Reed v. Sec'y of State, 2020 ME 57, ¥ 18, 232
A.3d 202. The Secretary has been granted plenary power to investigate and determine the
validity of petitions. Me. Taxpayers Action Network, 2002 ME 64, § 12 n.8, 795 A.2d 75.

When assessing the Secretary9s determination of initiative petitions, the Court's review
must be deferential and limited, keeping in mind the Secretary9s <broad[] authority= in the
context of evaluating referendum petitions. Knutson v. Dep't of Sec'y of State, 2008 ME
124, 720 n.7, 954 A.2d 1054; Passadumkeag Mountain Friends v. Bd. of Envtl. Prot., 2014
ME 116, § 12, 102 A.3d 1181.
By statute, an action seeking review of the Secretary9s decision on a direct initiative
petition <must be conducted in accordance with the Maine Rules of Civil Procedure, Rule

80C, except as modified by this section.= 21-A M.R.S. § 905(2). In Palesky v. Sec9y of
State, the Law Court held that <[t]he provisions of section 905 that could be deemed
8modifications9 of Rule 80C relate to the expedited timing of the appeal.= 1998 ME 103, 4
5, 711 A.2d 129. The Palesky court further concluded that 21-A M.R.S. § 905 does not
require <a full de novo trial=; rather, the procedural framework for a Section 905 appeal is
set forth in Rule 80C. Jd. J¥ 5-6, 8.

Under Rule 80C, the court is not permitted to overturn an agency9s decision <unless
it: violates the Constitution or statutes; exceeds the agency9s authority; is procedurally
unlawful; is arbitrary or capricious; constitutes an abuse of discretion; is affected by bias

or error of law; or is unsupported by the evidence in the record.= Kroger v. Dep9t of Envtl.
Prot., 2005 ME 50, 7, 870 A.2d 566; 5 M.R.S. § 11007(4). The party seeking to vacate a
state agency decision has the burden of persuasion on appeal. Anderson v. Me. Pub. Emp.
Ret. Sys., 2009 ME 134, 43, 985 A.2d 501.

When reviewing agency decisions, the court must examine <<8the entire record to
determine whether, on the basis of all the testimony and exhibits before it, the agency could
fairly and reasonably find the facts as it did.9= Friends of Lincoln Lake v. Bd. of Envtl.
Prot., 2010 ME 18, 4 13, 989 A. 2d 1128. The court may not substitute its judgment for
that of the agency on questions of fact. 5 M.R.S. § 11007(3). The issue is not whether the
court would have reached the same result the agency did, but whether the <8record contains
competent and substantial evidence that supports the result reached9= by the agency. Seider
v. Bd. of Examiners of Psychologists, 2000 ME 206, § 8, 762 A.2d 551.

To the extent this case requires statutory interpretation, the court <interpret[s] every
statute de novo as a matter of law to give effect to the intent of the Legislature, first by
examining its plain language.= Reed, 2020 ME 57, § 14, 232 A.3d 202 (quotation marks
omitted). If the plain language is unambiguous, the court interprets the statute according
to its unambiguous meaning. Jd. <If, however, a statute is ambiguous4i.e., it is reasonably
susceptible to different interpretations4[the court] defer[s] to the agency's reasonable
construction when the agency is tasked with administering the statute and it falls within the
agency's expertise.= Jd. (quotation marks omitted). As the Secretary is the constitutional
officer with plenary power to determine the validity of petitions, the court will defer to the
Secretary9s <reasonable interpretation of [an] ambiguous _ statute[].= Jd.
q 18.

Discussion
On appeal, Petitioner points to various alleged deficiencies in the circulator
affidavits and signatures submitted in support of the direct initiative petition at issue.
Among his challenges, Petitioner argues that the Secretary validated certain circulator
affidavits (along with the signatures associated with them) in violation of the of 21-A
M.LR.S. § 903-A(4). According to Petitioner, Section 903-A(4) creates a mandate that
<explicitly= and <unambiguously= sets forth the requirements for circulator affidavits. Pet.
Br. at 11-12.

At oral argument, Petitioner conceded that if the court disagrees with his contentions
regarding the mandatory and unambiguous nature of Section 903-A(4), Petitioner will not
have the signatures he needs to meaningfully influence the final signature tally and to
obtain a reversal of the Secretary9s determination of validity. The court9s own calculations
confirm the same. As the issue is essentially outcome-determinative, the court first
examines Petitioner9s contention that the Secretary erroneously accepted circulator
affidavits that did not comply with Section 903-A(4)9s requirements4specifically, the
statutory requirement that the circulator affidavit include <the date the circulator signed the
affidavit.=

To support his argument in this regard, Petitioner points the court to the affidavits
of circulators Tyler Dorn (291 signatures), Elliot Oullette (1 signature), Isaac Pierce (71
signatures), Joseph Winn (135 signatures), and Drew Collins (64 signatures). See Pet.9s Br.
at 6. While these affidavits include a notarization date, the date next to the circulators9
signature was either incomplete or omitted, as exemplified by the circulator affidavits
reproduced below:
tg RP State of Maine
9 a Circulator AMdavit and Certificate of Registration
a For Cirlten's Initlotive and People's Veto Petiilons

A now Cotktes __ currently reside at the following address:
Printed Name of Circulator

Sh Street lle, fuses pve Gornen /Meeey OU6I9
Number and Name City, State and Zip Code

and being duly swom, hereby affirm the following:
Uhave read and und d the ink ion provided by the of State's Office to the applicant, ;
Pursuant to Title-21-A §903-A, sub-§3, including the laws and rutes governing the circulation of petitions;
the laws govern
d under Title 21-A §904 if | violate ing of
the circulation
lund d that I canbe p
petitions, including the requirement that I execute this Circulator's Affidavit truthfully;

Lunderstand that this A(Tidavit must be filed with the Secretary of State at the time the signed petitions
Prankle R. Keele, Notary Public
we Bled. State of Malas
RESIDENCY (check gne box): My Commission Rapires 12/2023

Bl 1 was a resident of the State of Maine at all times when | cicculated the petition.

ident of the State of Maine irculated the petition, but t
i during part or all of the time | circulated
many invesiaalarreRt Notap/ pub!
a ao oes to submit myself to the jurisdiction of the State of nod for S coatnne tate oft Mal 8
prosecutioi n of alleg: ed violations of Title 21-A of the Maine
27023
VOTER REGISTRATION (check one box):
at ell times when I circulated the petition.
(1 1 was registered to vote In the State of Maine
City/Town of Reg
part or all of the time I circulated the petition.
I was not registered to vote in the State of Maine during

Signature of Circulator: oi _ Ale Date:
ING
STATE of: _4MAWe th.
county of _ SUN BER AM dae: R= 1b ef
ed circulator and made oath that the fesogalng wtety
P ersnully appeared befor a en pereona knowledge. State of Mala yr
by him/herate true ; My CemuitistonBapipes 1192023
c:
Signature of Notary Publi
Bitinted Name: FRAWK, )E R KeE ~

fLgF Commission number (if'not Maine}: J 9949
Pe on expires: IM
~ x Se State of Maine
AN Ae : Circulator AMfdavit and Certificate of Registration
P Tt For Citizen's Initlative and People's Veta Petitions

IL Tseng Petre . ly reside at the ig adidress:
Printed Name of Circulator
ie) Tow, Shoes. Ceetis AR ators
Street Number and Name City, State and Zip Code

and being duly swom, hereby affinn the following:
Vhave read and und d the infc lon provided by the Secretary of State's Office to the applicant,
Pursuant fo Title-21-A §903-A, sub-§3, including the laws and rules g ing the lation of p
lund d that Lean be ¢ under Title 21-A §904 if I violate the faws governing the circulation of
petitions, including the that l execute this Circulator's Affidavit truthfully;
T understand that this Affidavit must be filed with the Secretary of State at the time the signed petitions
are filed.

RESIDENCY (check one box):
/
Q I was a resident of the State of Maine at all times when J circulated the petition.

>-4 [twas nota resident of the State of Meine during part or all of the time | circu! lated the petition, but J
o to the jurisdiction of the State of Maine for any investigation and/or
Teo iAor
on Meged vvole
of alleged i of Title 21-A of the Maine Revised Statutes.

VOTER REGISTRATION (cheek gone box):
when [ circulated the petition.
Oo 5 was registered to vote in the State of Maine at all times
- ade.
Baden
City/Town of Reg
the petition.
of Maine during part or all of the time Leirculated
oO 1 was not registered to vote in the State pate: 2/2]
. ee ae OLE,
4~4
Signature of Circulator:

sTATEof: (Mat, nue 1eferfpae
UNT Loum berlaad °
oath t hat the foregoing statenients made
co vor the above-named circulator and made
Personally appear ed before me his/her own personal knowledge. . SERN. COUSING =
im/her ere true and correct to
by kiminer ="- LA 44 | Here rublic, State of Haloe
oe = My Coruiubsalon Expires Ape, 14 2028
Signature of Nol tary Public:
Cousm>
Grones name: Christopker #.
Commlesion number (if not Maine):
My Commission expires: Ota) zone

According to Petitioner, the circulator affidavits should have been rejected by the
Secretary for failure to comply with the unambiguous mandates of 21-A M.R.S. § 903-
A(4). Resolution of this issue requires the court to interpret the language of Section 903-
A(4). That provision states in relevant part:

4. Circulator affidavit. A person who circulates a petition shall execute an
affidavit that must include:

A. The circulator9s printed name, the physical address at which the
circulator resides and the date the circulator signed the affidavit.

21-A MLR.S. § 903-A(4).

In the court9s view, the requirements of Section 903-A(4) are not as explicit as
Petitioner suggests. As counsel for the Secretary notes, the statute does not mandate a
particular form for the affidavit, only what must be included. Indeed, the court finds
ambiguity in the term <include,= even though the terms <printed name,= <physical address,=
and <date the circulator signed the affidavit= are clear. For example, <the date the circulator
signed the affidavit= may be <included= in different ways. The date may be <included= in
the portion of the affidavit that is completed by the circulator in his or her own hand. Or, it
may be <included= in the notary block by the notary witnessing the signature. The plain
language of the statute does not clearly establish who must date the affidavit or how or
where the date must appear on the face of the affidavit. As such, the court finds that there
is more than one reasonable interpretation of Section 903-A(4).3

As previously discussed, the court is bound to defer to the Secretary9s reasonable
interpretation of an ambiguous statute governing the citizen initiative process. Reed, 2020
ME 57, { 18, 232 A.3d 202. The record reveals that the Secretary treated the notarization
date4i.e., the date the notary witnessed the signature4as <the date circulator signed the
affidavit.= 21-A M.R.S. § 903-A(4)(A). Accordingly, she accepted circulator affidavits that
contained a notarization date, even though the circulator otherwise left the date blank or
incomplete.

The Secretary9s interpretation was consistent with the language of Section 903-
A(4). See Reed, 2020 ME 57, ¥ 19, 232 A.3d 202 (finding Secretary9s statutory
interpretation reasonable <because it [wa]s consistent with the[] language= of the statute).
And importantly, the Secretary adopted an interpretation of the provision that furthered the
fundamental right to legislate by direct initiative as well as the right to engage in core
political speech. McGee, 2006 ME 50, § 21, 896 A.2d 933; Me. Te axpayers Action Network,

3 Petitioner suggests that the terms <shall= and <must= in Section 903-A(4) render the
provision <mandatory= and preclude the use of the substantial compliance standard4a standard
that is appropriate only when the provision at issue is <directory.= McGee, 2006 ME 50, q 13, 896
A.2d 933. This <mandatory-directory distinction= was explored in greater detail by the majority
and concurrence in McGee v. Sec'y of State. Id. J] 13-17 & 99 55-59 (Clifford, J., concurring). The
court, however, need not dwell on the <mandatory-directory distinction= here. Indeed, the court
agrees that the statute is mandatory to the extent that it requires inclusion of the circulator9s printed
name, physical address, and date the circulator signed the affidavit. Though mandatory, Section
903-A(4)9s use of the word <include= renders the provision ambiguous, giving rise to more than
one reasonable interpretation as to how the mandate may be satisfied. The proper focus, therefore,
is on the reasonableness of the Secretary9s interpretation of Section 903-A(4).
2002 ME 64, 4 8, 795 A.2d 75. Petitioner9s contrary interpretation4that the date must be
supplied by the circulator in the circulator9s own hand4would require invalidation of
citizens9 signatures despite reliable evidence documenting the date the circulator signed
the affidavit. Such an interpretation would create a hurdle not imposed by the plain
language of Section 903-A(4) and unnecessarily frustrate the exercise of the important
constitutional rights discussed above. Faced with an ambiguity in the terms of Section 903-
A(4), it was eminently reasonable for the Secretary to resolve the ambiguity in a way that
<facilitate[d], rather than handicap[ped], the pebple9s exercise of their sovereign power to
legislate.= Allen, 459 A.2d at 1102-03.4

Thus, notwithstanding the missing and incomplete signature dates, the court
concludes that the Secretary adhered to Section 903-A(4)(A) when she accepted the
challenged circulator affidavits. As the court finds no error in the Secretary9s validation of
the signatures associated with these circulator affidavits, Petitioner lacks the signatures he
needs to obtain a reversal of the Secretary9s Determination or to otherwise justify a remand
to the Secretary.

Conclusion

The entry is: The Secretary of State9s Determination of the Validity of the Petition
for Initiated Legislation is AFFIRMED.

* Petitioner also suggests that the Secretary inconsistently and arbitrarily applied the
requirements of Section 903-A(4). To support this contention, Petitioner notes that the Secretary
rejected certain circulator affidavits on which the circulator failed to affix a signature. A
circulator9s failure to sign the affidavit is a serious and fundamental error that casts doubt on the
reliability of the entire affidavit. Such an omission cannot be likened to the minor date
discrepancies alleged here, particularly where the full date appeared in the notary block. As such,
it was reasonable for the Secretary to accept the affidavits with the alleged <date errors= but reject
the affidavits with omitted signatures. Petitioner has failed to satisfy his burden of demonstrating
that the Secretary acted arbitrarily.
The Clerk is directed to incorporate this Order into the docket of this case by
reference in accordance with MLR. Civ. P. 79(a).

Date: March 7, 2023 Vote SN

Michaela Murphy
Justice, Maine Superior Court

10