McGee v. Dunlap

Decision Date03 April 2006
CourtMaine Superior Court

This matter is before the court on Kathleen McGee's ("McGee" or "petitioner") petition for review of final agency action pursuant to M.R. Civ. P. 80C.

Mary Adams ("Adams" or "intervenor"), a resident of Garland, Maine, spearheaded an effort to place a referendum question involving tax reform on the 2006 Maine ballot. The ballot question, known as the Taxpayer's Bill of Rights, or TABOR, is phrased, "Do you want to limit increases in state and local government spending to the rate of inflation plus population growth and to require voter approval for all tax and fee increases?" Adams followed the initial procedures for placing the question on the ballot without controversy, having the referendum language approved by the Secretary of State's ("Secretary" or "respondent") staff, and obtaining the pre-printed petition forms to be circulated to the public with a date of issuance of October 21, 2004. A minimum of 50,519 valid signatures (10% of the number of registered voters who participated in the last gubernatorial election) needed to be filed with the Secretary's office in order for the question to be placed on the November, 2006 ballot. On Friday, October 21, 2005, 54,127 signatures were filed with the Secretary ("the Friday petitions"), and on the following Monday, October 24, 2005, an additional 4,024signatures were filed with the Secretary ("the Monday petitions"). He found that a total of 51,611 valid signatures were filed between the two dates (though not enough valid signatures were included in the Friday petitions), and thus validated the petition. Apparently, a TABOR volunteer inadvertently failed to deliver the complete amount of petitions that had been gathered on October 21, 2005. The filing deadline for these valid signatures is the subject of the 80C petition before the court.

Both the Maine Constitution and state legislation address the citizen initiative process at issue in this case. The Maine Constitution speaks of when a petition can be filed: either "on or before the 50th day after the date of convening of the legislature in first regular session or on or before the 25th day after the date of convening the legislature in second regular session." Me. Const. art. IV, pt. 3, § 18(1). Regarding the TABOR initiative, all parties agree that those dates were January 20, 2005 and January 30, 2006 respectively. Indeed the Secretary of State's website makes reference to these constitutional deadlines as the "Deadlines for Current Citizen Initiatives." The second deadline addressed by the Maine Constitution concerns the age of signatures that can be used for filing petitions: "no signature older than one year from the written date on the petition shall be valid." Me. Const. art. IV, pt. 3, § 18(2).

Title 21-A M.R.S.A. §§ 901-906 (2005) lays out in more detail what citizens must do who wish to exercise their constitutional right to place a question on the ballot. Section 901 establishes the "date of issuance" of the petition as that date upon which the "approved form of the petition is provided to the voter submitting the [petition] application." The date of issuance of the TABOR petition, as all parties agree, was October 21, 2004. Section 903-A focuses on circulation. Section 903-A(1) states: "Filing of petitions in accordance with deadlines specified in the Constitution of Maine, Article IV, Part Third, Section 18 must be completed within one year of the date of issuanceunder this chapter." One interpretation of this statute is that the requisite number of petitions had to be filed by October 21, 2005.

Section 903-A(2) states: "Petitions not filed in accordance with the deadlines specified in the Constitution of Maine, Article IV, Part Third, Section 18 within one year of the date of issuance under this chapter are invalid for circulation." This part of the statutes signifies that late petitions would be "invalid for circulation." The parties dispute the relationship between "filing" and "circulation" as far as the one-year time limit is concerned.

McGee, as "any other voter," has the right to commence this action pursuant to 21-A M.R.S.A. § 905(2). The filing of the 80C petition was timely, made within three days of the Secretary's validation of the petition, executed on February 21, 2006. Briefs and replies from all parties were timely filed pursuant to the scheduling order issued by this court.

When the decision of an administrative agency is appealed pursuant to M.R. Civ. P. 80C, this Court reviews the agency's decision directly for abuse of discretion, errors of law, or findings not supported by the evidence. Centamore v. Dep't of Human Services, 664 A.2d 369, 370 (Me. 1995). "An administrative decision will be sustained if, on the basis of the entire record before it, the agency could have fairly and reasonably found the facts as it did." Seider v. Board of Exam'r of Psychologists, 2000 ME 206 19, 762 A.2d 551, 555 (Me. 2000) (citing CWCO, Inc. v. Superintendent of Ins., 1997 ME 226, 16, 703 A.2d 1258, 1261 (Me. 1997)). The burden of proof rests with the party seeking to overturn the agency's decision, and that party must prove that no competent evidence supports the Board's decision. Seider, 762 A.2d 551 (citations omitted).

"When the dispute involves an agency's interpretation of a statute administered by it, the agency's interpretation, although not conclusive on the Court, is accordedgreat deference and will be upheld unless the statute plainly compels a contrary result." Maine Bankers Ass'n, 684 A.2d at 1306 (citing Centamore v. Department of Human Services, 664 A.2d 369, 370 (Me. 1995)).

Petitioner's Brief.

The thrust of petitioner's argument "is that the Monday petitions were untimely and invalid as a clear matter of unambiguous statutory law and the Secretary exceeded his authority in accepting them." Petitioner asserts that 21-A M.R.S.A. §§ 901 and 903-A "work in tandem to create a one-year time period for circulating petitions with a beginning date and an end date." Section 901 establishes the "date of issuance" of the petition, in this case, October 21, 2004. Section 903-A requires the filing of those petitions within one year of the date of issuance. Thus McGee makes the straightforward argument that any petitions filed later than one year from the date of issuance, or later than October 21, 2005, would be invalid. The statute is unambiguous: it states that filing of the petitions "must" be completed within that one-year timeframe. See § 903-A(1).

McGee first addresses the timeframes outlined by the Maine Constitution. As discussed supra, the constitutional deadlines are related to the convening of the legislature, and are meant to be long enough after the convening of the regular sessions to provide time for the representatives to debate the citizen initiative. McGee stresses that the Constitution only supplies an end date by which the petition must be filed, but is silent as to how early the petition can be filed. See Allen v. Quinn, 459 A.2d 1098, 1099 (Me. 1983).

The Constitution also requires that no petition signature be more than one year old, but does not specify how that requirement is to be enforced—that is where the statutory regulations on circulation provide guidance. See Me. Const. art. IV, pt. 3,§ 18(2). Prior to the one year limit on circulating petitions, enacted as section 903-A in 1998, there was originally no time limit at all for circulating petitions, and then from 1994-1998, a three year limit. Without the time limit, there was no way to verify that signatures were indeed only one year old, as required by the Constitution: circulators were not required to swear under oath regarding the accuracy of the dates of signatures, but only as to the identity of the signatories. See Me. Const. art. IV, pt. 3, § 20. There was thus no efficient or practical way to verify that petitions had not been circulated for more than one year, and thus contained signatures older than one year. The purpose of enacting the one year statutory limit on circulation was thus to bring the law in line with the Constitution and eliminate the potential for forged signatures. Additional legislative intent centered around making sure that citizen initiatives contained fresh and relevant ideas. Petitioner thus emphasizes that legislative debate was centered on confirming the accuracy of dates in petitions, as unlike a signature, a date could be more easily altered.

McGee next underlines the mandatory nature of the deadline created by the statute and Constitution, arguing for a strict interpretation of the law. Section 903-A(1) states in relevant part, "Filing of petitions in accordance with deadlines...must be completed within one year..." (emphasis added). According to rules of statutory construction in Maine, "'[s]hall' and 'must' are terms of equal weight that indicate a mandatory duty, action or requirement." See 1 M.R.S.A. § 71(9-A) (2005). In addition, section 903-A(2) states that late petitions are "invalid for circulation." McGee urges the court to resist making a distinction between petitions that are "invalid for circulation" and signatures that are filed later than one year from the date of issuance of the petition. Since signatures on petitions are only valid if they are one year old or younger, it is somewhat of a redundancy to say that petitions are not valid for circulation beyond thatone-year period. Another way of approaching this conundrum is to say that in order to be valid, an otherwise legitimate signature must be filed within one year from the date of issuance of the petition. Thus if the signature was gathered within that one year timeframe, but not filed until after that one year deadline, the signature would not be valid. This is the interpretation that McGee urges upon the court,...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT