Lindemann v. Com'n On Governmental Ethics

• Decision Date: 16 December 2008
• Docket Number: Docket: Ken-08-133.
• Parties: Carl LINDEMANN v. COMMISSION ON GOVERNMENTAL ETHICS AND ELECTION PRACTICES.
• Court: Maine Supreme Court

961 A.2d 538

2008 ME 187

Carl LINDEMANN v. COMMISSION ON GOVERNMENTAL ETHICS AND ELECTION PRACTICES.

Docket: Ken-08-133.

Supreme Judicial Court of Maine.

Argued: September 17, 2008.

Decided: December 16, 2008.

John H. Branson, Esq. (orally), Law Office of John H. Branson, P.A., Portland, ME, for Carl Lindemann.

G. Steven Rowe, Attorney General, Phyllis Gardiner, Asst. Atty. Gen. (orally), Augusta, ME, for the Maine Commission

on Governmental Ethics and Election Practices.

Panel: SAUFLEY, C.J., and CLIFFORD,^* ALEXANDER, LEVY, SILVER, MEAD, and GORMAN, JJ.

MEAD, J.

[¶ 1] Carl Lindemann appeals from a judgment of the Superior Court (Kennebec County, Mills, J.) dismissing for lack of standing his petition for review of a final agency action made by the Commission on Governmental Ethics and Election Practices (Commission.) Lindemann argues that he meets the standing requirements set forth in the Maine Administrative Procedure Act (MAPA), and articulated by the United States Supreme Court in Federal Election Commission v. Akins, 524 U.S. 11, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998). He also argues that pursuant to 5 M.R.S. § 11007(1) (2007), he was entitled to oral argument on his petition. We conclude that Lindemann does not have standing under either MAPA or Akins, and he was not entitled to oral argument pursuant to 5 M.R.S. § 11007(1). We affirm the judgment.

I. BACKGROUND

[¶ 2] On October 19, 2006, Lindemann made an investigation request, pursuant to 21-A M.R.S. § 1003(2) (2007),¹ to the Commission. The request concerned the Maine Heritage Policy Center's (MHPC) involvement in a statewide referendum campaign to enact a Taxpayer Bill of Rights (TABOR). Lindemann's complaint suggested that MHPC qualified as a political action committee as defined by 21-A M.R.S. § 1052(5) (2007) and, as a political action committee, was required to register and file reports with the Commission. In the alternative, Lindemann suggested that if MHPC was not a political action committee, it was required to disclose expenditures made in connection with TABOR under 21-A M.R.S. § 1056-B(2007).²

[¶ 3] Beginning on October 20, 2006, Lindemann's complaint was addressed at a series of Commission meetings. The Commission received input on the matter from its staff, counsel for MHPC and Lindemann, and other interested parties. The Commission also received recordings of a public forum conducted by MHPC and MHPC press releases. On November 7, 2006, during the course of the Commission's review, the TABOR initiative was defeated.

[¶ 4] The Commission made its final decision (the enforcement decision) at its December 20, 2006, meeting. A written decision was issued on December 22, 2006, and consisted of three determinations. The Commission first determined that MHPC's major purpose was not to advocate for the passage of the TABOR initiative. Second, the Commission determined that MHPC was not a political action committee as defined at 21-A M.R.S. § 1052(5). Third, the Commission determined that MHPC had received contributions and made expenditures aggregating in excess of $1500 for the purpose of initiating, promoting, or influencing TABOR and directed MHPC to file a report pursuant to 21-A M.R.S. § 1056-B. The report was to be filed within thirty days of the written decision.³

[¶ 5] On January 19, 2007, Lindemann appealed to the Superior Court pursuant to M.R. Civ. P. 80C and 5 M.R.S. § 11002 (2007), requesting a review of the determinations and actions of the Commission. After Lindemann and the Commission filed their respective memoranda, Lindemann made a written request for oral argument. On February 28, 2008, without oral argument, the Superior Court issued its decision and order dismissing Lindemann's appeal. The court concluded that his injury was indistinct from any injury to the public at large, and therefore, Lindemann failed to satisfy the threshold requirement of standing. Lindemann's appeal to this Court followed.

II. DISCUSSION

[¶ 6] Lindemann's standing argument is based in statute and federal case law. First, he argues that because the Campaign Reports and Finances statutes (campaign statutes), 21-A M.R.S. §§ 1001-1105 (2007), do not specifically preclude or limit judicial review of the Commission's enforcement decision, judicial review under MAPA is allowed. Second, Lindemann argues he has satisfied prudential standing as articulated by the United States Supreme Court in Akins, because his informational injury,⁴ the deprivation of information concerning TABOR, falls within the zone of interest sought to be protected by Maine's campaign statutes.

[¶ 7] A party's standing to bring a Rule 80C appeal is reviewed de novo. See Norris Family Assocs., LLC v. Town of Phippsburg, 2005 ME 102, ¶ 11, 879 A.2d 1007, 1012.

A. Standing Under Maine's Campaign Statutes and MAPA

[¶ 8] In Maine, standing jurisprudence is prudential, rather than constitutional. Roop v. City of Belfast, 2007 ME 32, ¶ 7, 915 A.2d 966, 968. (quotation marks omitted). Standing is a threshold issue and Maine courts are "only open to those who meet this basic requirement." Ricci v. Superintendent, Bureau of Banking, 485 A.2d 645, 647 (Me.1984). While there is no set formula for determining standing, a court may "limit access to the courts to those best suited to assert a particular claim." Roop, 2007 ME 32, ¶ 7, 915 A.2d at 968 (citation omitted). In addition, the question of whether a specific individual has standing is significantly affected by the unique context of the claim. Id.

[¶ 9] In the context of an administrative decision, as is the case here, the right to judicial review is governed by statute. Nelson v. Bayroot, LLC, 2008 ME 91, ¶ 9, 953 A.2d 378, 381. "Whether a party has standing depends on the wording of the specific statute involved." Id.

[¶ 10] Title 21-A M.R.S. § 1003(2) (2007) of Maine's campaign statutes provides:

A person may apply in writing to the commission requesting an investigation concerning the registration of a candidate, treasurer, political committee or political action committee and contributions by or to and expenditures by a person, candidate, treasurer, political committee or political action committee. The commission shall review the application and shall make the investigation if the reasons stated for the request show sufficient grounds for believing that a violation may have occurred.

[¶ 11] There is no express provision here or elsewhere in the Maine campaign statutes allowing or precluding judicial review of Commission enforcement determinations. As the Commission noted, MAPA governs judicial review of its actions.⁵ Lindemann's standing to obtain judicial review of the Commission's enforcement decision, therefore, depends on whether he has standing under MAPA.

[¶ 12] MAPA provides a right to judicial review to any person "aggrieved" by an agency's final action or an agency's failure or refusal to act. 5 M.R.S. § 11001(1), (2) (2007).⁶ We conclude that neither provision of MAPA supports Lindemann's claim for standing.

[¶ 13] First, section 11001(2) is inapplicable to Lindemann's claim because the Commission has not failed or refused to act. Only a "person aggrieved by the failure or refusal of an agency to act" is entitled to judicial review pursuant to 5 M.R.S. § 11001(2). Here, Lindemann made an investigation request to the Commission pursuant to 21-A M.R.S. § 1003(2). The Commission reviewed and accepted Lindemann's request and undertook an extensive investigation that included oral testimony at Commission meetings and review of extensive written submissions and documents.⁷ The Commission's final agency action occurred when it voted and issued a written enforcement decision on the matter. Because the Commission has not failed or refused to act, section 11001(2) is not implicated.

[¶ 14] Section 11001(1) also provides no avenue to Lindemann to judicially attack the Commission's findings because he is unable to demonstrate that he is "aggrieved." Only a "person who is aggrieved by final agency action shall be entitled to judicial review." 5 M.R.S. § 11001(1). "Aggrieved," while not defined in MAPA, has been previously defined by this Court as requiring particularized injury—that is, the agency action or inaction must operate "prejudicially and directly upon the party's property, pecuniary or personal rights." Nelson, 2008 ME 91, ¶ 10, 953 A.2d at 382. In addition, we have required that the particularized injury be distinct from any injury experienced by the public at large. Id.; Ricci, 485 A.2d at 647.

[¶ 15] In limited circumstances, we have allowed individual members of the public to vindicate public rights in a judicial forum. See generally Fitzgerald v. Baxter State Park Auth., 385 A.2d 189 (Me.1978). For example, we recognized standing for citizens asserting a political right shared by the public at large, when a "particularized interest" was demonstrated. McCaffrey v. Gartley, 377 A.2d 1367, 1370 (Me.1977) (recognizing plaintiffs' standing as voters, property taxpayers, and signers of an initiative). Even in these circumstances, we still require a "particularized injury" or "direct and personal injury." Fitzgerald, 385 A.2d at 197; see also Heald v. Sch. Admin. Dist. No. 74, 387 A.2d 1, 3 (Me.1978) (finding no standing when plaintiffs did not demonstrate direct personal injury). "Being affected by a governmental action is insufficient to confer standing in the absence of any showing that the effect is an injury." Collins v. State, 2000 ME 85, ¶ 7, 750 A.2d 1257, 1260.

[¶ 16] Here, Lindemann is arguably affected, but not directly or personally injured, by the Commission's enforcement decision. Assuming there was an injury that flowed from the Commission's final decision, the injury affected all citizens, not just Lindemann.⁸ His alleged informational injury is indistinguishable from any injury experienced by other Maine citizens.

[¶ 17] Because the Commission did not fail or refuse to act and...