Avangrid Networks, Inc. v. Sec'y of State

• Decision Date: 13 August 2020
• Docket Number: Docket: Cum-20-181
• Parties: AVANGRID NETWORKS, INC., et al. v. SECRETARY OF STATE et al.
• Court: Maine Supreme Court

237 A.3d 882

AVANGRID NETWORKS, INC., et al.

v.SECRETARY OF STATE et al.

Docket: Cum-20-181

Supreme Judicial Court of Maine.

Argued: August 5, 2020

Decided: August 13, 2020

John J. Aromando, Esq. (orally), Jared S. des Rosiers, Esq., Joshua D. Dunlap, Esq., and Sara A. Murphy, Esq., Pierce Atwood LLP, Portland, for appellant Avangrid Networks, Inc.

Gerald F. Petruccelli, Esq., and Nicole R. Bissonnette, Esq., Petruccelli, Martin & Haddow, Portland, for appellant Maine State Chamber of Commerce

Sigmund D. Schutz, Esq., Anthony W. Buxton, Esq., and Robert B. Borowski, Esq., Preti Flaherty Beliveau & Pachios LLP, Portland, for appellant Industrial Energy Consumer Group

Aaron M. Frey, Attorney General, and Phyllis Gardiner, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for cross-appellant Secretary of State

David M. Kallin, Esq., Adam R. Cote, Esq., and Elizabeth C. Mooney, Esq., Drummond Woodsum, Portland, and Paul W. Hughes, Esq. (orally), and Andrew Lyons-Berg, Esq., McDermott Will & Emery LLP, Washington, D.C., for cross-appellants Mainers for Local Power and nine Maine voters

Christopher T. Roach, Esq., Roach Ruprecht Sanchez & Bischoff, P.C., Portland, for appellee NextEra Energy Resources, LLC

Timothy C. Woodcock, Eaton Peabody, Bangor, for amici curiae Mark N. Dion and Kenneth C. Fletcher

James L. Costello, Esq., and Rebecca Gray Klotzle, Esq., Curtis Thaxter LLC, Portland, for amici curiae former commissioners of the Maine Public Utilities Commission

Dmitry Bam, amicus curiae pro se

Orlando E. Delogu, amicus curiae pro se

Panel: GORMAN, JABAR, HUMPHREY, and HORTON, JJ., and HJELM, A.R.J.

PER CURIAM

[¶1] Avangrid Networks, Inc., the company that owns Central Maine Power Company (CMP) as a subsidiary, and intervenors Maine State Chamber of Commerce and Industrial Energy Consumer Group (IECG) appeal from a judgment of the Superior Court (Cumberland County, Warren, J. ) dismissing their complaints for a declaratory judgment and to enjoin the Secretary of State from placing a citizen initiative on the November 2020 ballot. The initiative proposes a "resolve" that would reverse a Maine Public Utilities Commission order granting CMP's request for a certificate of public convenience and necessity for the New England Clean Energy Connect Transmission Project (the Project)—"a 145.3-mile transmission line, proposed to run from the Maine-Québec border in Beattie Township to Lewiston, that will deliver 1,200 megawatts of electricity from Québec to the New England Control Area." NextEra Energy Res., LLC v. Me. Pub. Utils. Comm'n , 2020 ME 34, ¶ 1, 227 A.3d 1117. The Secretary of State and intervenors Mainers for Local Power and nine Maine voters cross-appeal.¹

[¶2] We conclude that the Superior Court erred by dismissing the declaratory judgment count of the complaint, and we therefore vacate that portion of the judgment and remand the matter for the Superior Court to enter a declaratory judgment that the initiative fails to meet the constitutional requirements for inclusion on the ballot because it exceeds the scope of the people's legislative powers conferred by article IV, part 3, section 18 of the Maine Constitution. Because the Secretary of State has expressed his willingness to heed a clearly stated declaration from us, we see no necessity for injunctive relief.

I. BACKGROUND

[¶3] The citizens’ initiative at issue here is responsive to a decision issued by the Public Utilities Commission in 2019. Id. ¶ 10. We begin by summarizing the proceedings before the Commission and our review of the Commission's decision on appeal, after which we focus on the citizens’ initiative and the litigation before us today.

A. Proceedings Before the Public Utilities Commission and Appeal to the Law Court

[¶4] This matter has its origins in a petition that CMP filed with the Commission in 2017 seeking a certificate of public convenience and necessity for the Project. Id. ¶ 3 ; see 35-A M.R.S. § 3132 (2018).² After holding an extensive public hearing and considering a voluminous amount of evidence, the Commission's hearing examiners issued a report in March 2019 containing their recommendations. NextEra Energy Res., LLC , 2020 ME 34, ¶¶ 6-9, 227 A.3d 1117. In a lengthy written order issued in May 2019, the Commission adopted the examiners’ recommendations and findings. Id. ¶ 10. The Commission concluded that the Project meets the statutory public need standard and is in the public interest, and it issued the certificate. Id. We affirmed the Commission's decision in March 2020. Id. ¶¶ 1, 43.

B. Citizens’ Initiative

[¶5] After the Commission issued its decision, opponents of the Project gathered signatures for a citizens’ initiative proposing the adoption of a resolve directing the Commission to amend its order and issue the opposite determinations—that the Project is not in the public interest and that there is no public need for the project—and to deny the request for a certificate of public convenience and necessity. The initiative reads,

Sec. 1. Amend order. Resolved: That within 30 days of the effective date of this resolve and pursuant to its authority under the Maine Revised Statutes, Title 35-A, section 1321, the Public Utilities Commission shall amend "Order Granting Certificate of Public Convenience and Necessity and Approving Stipulation," entered by the Public Utilities Commission on May 3, 2019 in Docket No. 2017-00232 for the New England Clean Energy Connect transmission project, referred to in this resolve as "the NECEC transmission project." The amended order must find that the construction and operation of the NECEC transmission project are not in the public interest and that there is not a public need for the NECEC transmission project. There not being a public need, the amended order must deny the request for a certificate of public convenience and necessity for the NECEC transmission project.

Resolve, To Reject the New England Clean Energy Connect Transmission Project (emphasis added) (available at the Secretary of State's website: https://www.maine.gov/sos/cec/elec/citizens/index.html).³ The initiative's proponents submitted petitions bearing more than the required number of signatures verified by the Secretary of State. See Me. Const. art. IV, pt. 3, ¶ 18, cl. 2; Reed v. Sec'y of State , 2020 ME 57, ¶ 10, 232 A.3d 202. In an action challenging that verification, the court (Murphy, J. ) entered a judgment in the Business and Consumer Docket affirming the Secretary's determination in April 2020. Id. ¶¶ 1, 11. We affirmed that judgment on appeal on May 7, 2020. Id. ¶¶ 12-24.

[¶6] In the meantime, the Secretary presented the proposed initiative to the Legislature in a communication dated March 16, 2020. See Me. Const. art. IV, pt. 3, § 18, cl. 2; Sen. Jour. (129th Legis. Mar. 17, 2020) (reporting S.C. 1058); House Jour. Supp. No. 10 (129th Legis. Mar. 17, 2020) (reporting H.P. 1548). The Legislature, however, adjourned sine die the next day as a result of the COVID-19 pandemic and did not enact the proposal. See Sen. Jour. (129th Legis. Mar. 17, 2020) (reporting S.C. 1059, 1060); House Jour. Supp. No. 4 (129th Legis. Mar. 17, 2020) (reporting H.C. 384, 385).

C. The Present Litigation

[¶7] On May 12, 2020, days after we affirmed the Secretary's verification of the petition signatures, Avangrid filed the verified complaint that initiated the present litigation. The complaint, naming the Secretary of State as the defendant, sought

• A declaratory judgment that the initiative

• Exceeds the scope of legislative powers reserved to the people, see Me. Const. art. IV, pt. 3, § 18 ;

• Usurps the power of the executive and judicial branches, see Me. Const. art. III, § 2 ; and

• Is illegal as a special law that singles out one corporation to exempt from the generally applicable law; and

• Injunctive relief preventing the Secretary from including the initiative on the November 3, 2020, ballot.

Avangrid simultaneously moved for a preliminary injunction to prevent the initiative from appearing on the ballot. The court granted motions filed by Maine State Chamber of Commerce and IECG to intervene, and each entity filed a complaint joining in Avangrid's requests for declaratory and injunctive relief. The court also granted motions to intervene filed by NextEra Energy Resources, LLC; Mainers for Local Power; and nine Maine voters.

[¶8] Mainers for Local Power and the nine Maine voters moved to dismiss the complaint on several grounds, including that (1) the requested relief is barred because the Maine Constitution requires the Secretary to include the initiative on the ballot, see Me. Const. art. IV, pt. 3, § 18 ; (2) the claims were not ripe before the election; and (3) the initiative is constitutional because utilities regulation is a legislative function.

[¶9] After conducting commendably expedited proceedings, including a hearing, the Superior Court issued a judgment on June 29, 2020, concluding that the initiative's constitutionality was not subject to judicial review before the election and dismissing Avangrid's complaint in which the Chamber of Commerce and IECG had joined. Avangrid, the Chamber of Commerce, and IECG appealed from the judgment, and the Secretary of State, Mainers for Local Power, and the nine Maine voters filed cross-appeals, all of which are now before us.

II. DISCUSSION

A. Positions of the Parties

[¶10] The issue before us is narrow—whether the proposed citizens’ initiative falls within the scope of the citizens’ constitutional power to legislate, created in section 18 of article IV, part 3 of the Maine Constitution. This case cannot—and therefore does not—prospectively address the constitutionality or legality of the initiative itself as an independent issue. Any such determination necessarily could be made only if the issue became ripe, which would be after an initiative is enacted. See Wagner v. Sec'y of State , 663 A.2d 564, 567 (Me. 1995). Further but importantly, it goes without saying that our analysis and...