Marriage v. Me. Comm'n On Governmental Ethical, Docket No.: BCD-AP-14-02

• Decision Date: 10 April 2015
• Docket Number: Docket No.: BCD-AP-14-02
• Parties: THE NATIONAL ORGANIZATION FOR MARRIAGE, Petitioner, v. MAINE COMMISSION ON GOVERNMENTAL ETHICAL AND ELECTION PRACTICES, Respondeat.
• Court: Superior Court of Maine

THE NATIONAL ORGANIZATION FOR MARRIAGE, Petitioner, v. MAINE COMMISSION ONGOVERNMENTAL ETHICAL AND ELECTION PRACTICES, Respondeat.

Docket No.: BCD-AP-14-02

Superior Court of Maine

April 10, 2015

STATE OF MAINE

CUMBERLAND, ss

BUSINESS AND CONSUMER COURT

Location: Portland

DECISION ON PETITIONER'S RULE 80(C) APPEAL

I. INTRODUCTION

This matter is before the court on National Organization for Marriage's ("NOM") Petition for Review of Agency Action pursuant to M.R. Civ. P. 80C. Petitioner seeks review by this Court of the June 30, 2014, determination by the Respondent, Maine Commission on Governmental Ethical and Election Practices (the "Commission"), finding NOM in violation of Maine's "ballot question committee" ("BQC") registration and reporting requirements pursuant to 21-A M.R.S. § 1056-B.

LI. FACTUAL BACKGROUND

NOM was founded in 2007 pursuant to Title 26 U.S.C. § 501(c)(4) as a social welfare group with the mission to promote and preserve the institution of marriage as between one man and one woman across the country. (R. 12.) In 2009, NOM and its Executive Director, Brian Brown, had critical leadership roles in support of Maine's people's veto referendum to suspend a recently enacted Maine law that would have allowed same-sex marriage. Stand for Marriage Maine ("SMM") was a Political Action Committee ("PAC") dedicated to defeating thelegalization' of same-sex marriage through the November referendum vote.¹ NOM was the biggest supporter of SMM. In total, NOM donated over $2 million, representing 64% of the total spent by the PAC. (R. 11.) NOM contends that it made no expenditures to promote the Maine referendum other than by contributions from SMM. Id.

NOM makes its donors aware of its efforts to protect the traditional definition of marriage through various emails and newsletters. In 2009, NOM sent a series of emails that mentioned or discussed the Maine referendum as well as other nationwide initiatives. The emails contained requests for donations to assist NOM in its efforts. However, NOM does not allow donors to earmark their contributions to specific projects promoted in the emails.² (R. 2.) In 2009, NOM generated over $5.5 million from fourteen (14) major donors. (R. 12.) NOM contends that in total, the emails that discussed the Maine ballot question raised less than $5,000, the threshold for BQC registration. (R. 152.) NOM disputes the Commission's determination and donation calculations behind one email, which is alleged to have generated $570 in donations. (R. 32.) NOM contends that the email made no specific reference to the Maine referendum. As such, NOM does not believe that the amount should count towards the $5,000 statutory limit. (R. 152.) NOM maintains that all donations were made in support of the Maine campaign came from NOM's general treasury and were not designated for any particular state's campaign. (R. 4.)

Despite NOM's role in funding the pro-referendum campaign, NOM did not register or file financial reports with the Ethics Commission as a Ballot Question Committee ("BQC")pursuant to 21-A M.R.S. § 1056-B. Further, it did not publicly report its donors or any expenditure that it made to influence the referendum (other than by contributions to SMM).

On October 1, 2009, the Commission voted to investigate NOM to determine whether it was in violation of Maine campaign laws by not registering as a BQC under 21-A M.R.S. § 1056-B. (R. 1.) The investigation was based on concerns over large donations NOM made to SMM. Id. By the end of the campaign, NOM had reportedly donated $1.93 million to SMM. (R. 11.) In a final determination dated June 30, 2014, the Commission found NOM to be in violation and required NOM to register with the Commission as a BQC, file a consolidated campaign finance report for calendar year 2009, and pay penalties totaling $50,250, (R. 2.) The Commission unanimously denied NOM's request for a waiver or reduction of the penalties.

III. STANDARDS OF REVIEW

A. Appeal Pursuant to M.R. Civ. P. 80C

In its appellate capacity, the Court reviews agency decisions for "abuse of discretion, error of law, or findings not supported by the evidence." Rangeley Crossroads Coal. v. Land Use Reg. Comm'n, 2008 ME 115, ¶ 10, 955 A.2d 223. The Court must "examine the record to determine whether any competent evidence supports the Commission's findings, as well as to determine whether the Commission has applied the applicable law." Bean v. Maine Unemployment Ins. Comm'n, 485 A.2d 630, 632-33 (Me. 1984).

The petitioner bears the burden of proving that "no competent evidence supports the [Commission's] decision and thai the record compels a contrary conclusion." Bischoff v. Maine State Ret. Sys., 66 J A.2d 167, 170 (Me. 1995). "Judges may not substitute their judgment for that of the [Commission] merely because the evidence could give rise to more titan one result." Gulick v. Bd. of Envtl. Prot., 452 A.2d 1202, 1209 (Me. J9S2). Rather, the Court will defer tothe Commission's conclusions when based on evidence that "a reasonable mind might accept as adequate to support a conclusion." Id. In doing so, the Court must give great deference to the Commission's construction of its own rules and regulations "unless the rules or regulations plainly compel a different result." Rangeley Crossroads Coal, 2008 ME 115, ¶ 10, 955 A.2d 223.

B. Statutory Framework

The Commission's investigation sought to determine whether NOM qualifies as a BQC pursuant to 21-A M.R.S. § 1056-B. A BQC is defined as an entity, other than a PAC, "who receives contributions or makes expenditures, other than by contribution to a political action committee, aggregating in excess of $5,000 for the purpose of initiating or influencing a campaign." id. BQCs are required to file certain reports that include the name and address of each contributor. § 1056-B(2). A "contribution" is defined several ways, including:

A. Funds that the contributor specified were given in connection with a campaign;

B. Funds provided in response to a solicitation that would lead the contributor to believe that the funds would be used specifically for the purpose of initiating or influencing a campaign;

C. Funds that can reasonably be determined to have been provided by the contributor for the purpose of initialing or influencing a campaign when viewed in the context of the contribution and the recipient's activities regarding a campaign...

§ 1056-B(2-A). The First Circuit upheld the constitutionality of the BQC law, including its definition of "contribution." Nat'l Org. for Marriage v. McKee, 669 F.3d 34 (1st Cir. 2012). Whether NOM is a BQC depends in large part on the nature of donations it received in 2009 and whether those qualified as "contributions" under the statutory definition.

IV. DISCUSSION

At issue in this appeal is whether the Commission correctly determined that NOM's activities in 2009 resulted in "contributions" triggering certain registration and reporting obligations as required by Maine law, The Court has considered each of NOM's arguments below.

A. The Commission's Determination Was Consistent With Both Constitutional and Statutory Principles

1. Constitutional Vagueness

In this case, Petitioner, for the third time,³ asserts that Maine's BQC law is void for vagueness as applied to NOM. NOM contends that the Commission ignored key elements of the definition of "contribution." See 21-A M.R.S. § 1056-B(2-A)(A-C). Subsection B of said definition defines "contribution" as "[f]unds provided in response to a solicitation that would lead the contributor to believe that the funds would be used specifically for the purpose of initiating or influencing a campaign." Id. (emphasis added).

"A strong presumption of constitutionality attaches to all statutes, which will be construed, where possible, to preserve their constitutionality." Maine Milk Producers, Inc. v. Comm'r of Agric., Food and Rural Res., 483 A.2d 1213, 1218 (Me. 1984)). "Any party attacking the constitutionality of a state statute thus carries a heavy burden of persuasion. In order to prevail . . . Petitioner^ must prove that no logical construction can be given to the words , of. . . [the] Act that will make it constitutional." Maine Assoc. of Health Plans v. State, 2006 WL 2959744, at *2 (Me. Super. Aug. 4, 2006) (internal citations omitted). Further, it is clear inMaine that "the cardinal rule of statutory interpretation is to give effect to the intention of the Legislature." See Cobb v. Bd. of Counseling Prof'ls Licensure, 2006 ME 48, ¶ 11, 896 A.2d 271. The Court discerns legislative intent from the plain meaning of the statute and the context of the statutory scheme. Id. (citing Brent Leasing Co., Inc. v. Slate Tax Assessor, 2001 ME 11, ¶ 6, 773 A.2d 457.) "All words in a statute are to be given meaning, and none are to be treated as surplusage if they can be reasonably construed." Id.

NOM argues that the Commission misinterpreted the statute as it failed to give meaning to the word "specifically." NOM contends that the Commission's final determination expands the definition of contribution to include a wide range of donations received by organizations. (Br. of Pet. 15.) Under NOM's interpretation, a communication must specifically refer to a Maine ballot question independent of other questions and communication referring to the State of Maine generally is insufficient.⁴ Id.

The Respondent Commission, on the other hand, contends that the Commission's interpretation of the BQC law is consistent with the Legislature's intent and the statute's plain language. Under NOM's interpretation of the word "specifically," a single communication discussing several topics in addition to a Maine ballot question would result in counting only a portion of donations received as "contributions." The Commission further contends that the plain meaning of the word "specifically" does not support NOM's narrow reading.⁵ Rather, according to the standard dictionary definition, "specific" means "explicit, particular...