Nat'l Org. for Marriage v. Comm'n on Governmental Ethics & Elections Practices

• Decision Date: 04 August 2015
• Docket Number: Docket No. BCD–15–225.
• Citation: 121 A.3d 792,2015 ME 103
• Parties: NATIONAL ORGANIZATION FOR MARRIAGE v. COMMISSION ON GOVERNMENTAL ETHICS AND ELECTIONS PRACTICES.
• Court: Maine Supreme Court

121 A.3d 792

2015 ME 103

NATIONAL ORGANIZATION FOR MARRIAGE

v.COMMISSION ON GOVERNMENTAL ETHICS AND ELECTIONS PRACTICES.

Docket No. BCD–15–225.

Supreme Judicial Court of Maine.

Submitted on Briefs: July 1, 2015.

Decided: Aug. 4, 2015.

Stephen C. Whiting, Esq., The Whiting Law Firm, P.A., Portland, for appellant National Organization for Marriage.

Janet T. Mills, Attorney General, and Phyllis Gardiner, Asst. Atty. Gen., Office of the Attorney General, Augusta, for appellee Commission on Governmental Ethics and Election Practices.

Panel: ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

ORDER ON PETITIONER'S MOTION TO CLARIFY STAY OR, IN THE ALTERNATIVE, MOTION FOR A STAY OF AGENCY ACTION

PER CURIAM.

[¶ 1] The National Organization for Marriage (NOM) has moved for a stay pending the resolution of its appeal from a decision of the Business and Consumer Docket (Murphy, J. ) denying NOM's petition for review, pursuant to M.R. Civ. P. 80C, of a determination of the Commission on Governmental Ethics and Elections Practices. The Commission concluded that NOM is a “ballot question committee” (BQC) and is therefore subject to and in violation of the registration and reporting requirements of 21–A M.R.S. § 1056–B (2008).¹

[¶ 2] NOM asserts that the Commission's determination is automatically stayed pending appeal pursuant to M.R. Civ. P. 62(e), and, alternatively, petitions for a stay of the Commission's decision pursuant to our inherent equitable authority.² The Commission opposes the motion. After review of the motion record, we conclude that the Commission's decision is not automatically stayed, and we deny NOM's motion for a stay.

I. BACKGROUND

[¶ 3] NOM is a national nonprofit advocacy corporation “dedicated to preserving the institution of marriage as between one man and one woman.” In 2009, NOM made contributions of more than $2 million to Stand for Marriage Maine, a political action committee (PAC) that was formed to promote the November 2009 people's veto referendum to suspend a Maine law allowing same-sex marriage. Despite its active involvement in support of the referendum, NOM never registered with the Commission as a “ballot question committee” pursuant to 21–A M.R.S. § 1056–B, which, at the time, required registration by any person who received contributions in excess of $5,000 “for the purpose of ... influencing in any way a ballot question.”³ Registering as a BQC would have required NOM to publicly report its donors and the expenditures it made to influence the referendum. See id. § 1056–B(2).

[¶ 4] In August 2009, the Commission received a complaint that NOM was not in compliance with the registration and reporting requirements of section 1056–B. After considering evidence submitted by both sides, the Commission voted to commence a formal investigation of NOM in October 2009. Shortly after the Commission began its investigation, NOM mounted several ultimately unsuccessful legal challenges in federal court to the constitutionality of Maine's campaign and election laws.⁴ See Nat'l Org. For Marriage v. McKee, 666 F.Supp.2d 193 (D.Me.2009) (denying NOM's motion for a temporary restraining order and finding that NOM did not have a high likelihood of success on the merits of its constitutional claims); Nat'l Org. for Marriage & Am. Principles in Action v. McKee, 765 F.Supp.2d 38, 44–53 (D.Me.2011) (granting summary judgment in favor of the Commission and rejecting NOM's First Amendment, overbreadth, and vagueness challenges to the constitutionality of section 1056–B ); Nat'l Org. for Marriage, Inc. v. McKee, 669 F.3d 34, 50 (1st Cir.2012) (affirming the judgment of the District Court and concluding that “section 1056–B satisfies constitutional standards”).

[¶ 5] After considering evidence and argument submitted by NOM and Commission staff, the Commission issued a written decision with extensive factual findings on June 30, 2014. The Commission concluded that NOM had received contributions in excess of $5,000 for the purpose of influencing the people's veto referendum and ordered that NOM register as a BQC and file the appropriate campaign finance reports. The Commission also ordered that NOM pay $50,250 in fines for failing to timely register and file all of the required reports dating back to 2009.

[¶ 6] Following the Commission's decision, NOM filed an application with the Commission for a stay pending appeal pursuant to 5 M.R.S. § 11004 (2014). The Commission granted NOM's application in part, staying the requirement that NOM submit a campaign finance report until NOM could petition the Superior Court for a stay, but denying NOM's application for a stay in all other respects. On August 1, 2014, NOM filed a petition in the Superior Court (Kennebec County)⁵ for review of the Commission's decision pursuant to M.R. Civ. P. 80C, which was accompanied by a motion for a stay pending appeal. The court issued an order on September 9, 2014, providing “by agreement of the parties” that NOM was not required to file a campaign finance report until twenty-one days after the court's final decision on the Rule 80C petition and that NOM's motion for a stay was therefore deemed withdrawn. Following full briefing and a hearing, the court denied NOM's petition for review of the Commission's decision on April 13, 2015.

[¶ 7] On May 4, 2015, NOM filed a timely notice of appeal and also filed a new motion in the trial court for a stay of the Commission's decision. The appeal was docketed in the Law Court on May 11, 2015, but on June 1, 2015, the trial court denied NOM's request for a stay, finding that Rule 62(e) did not apply and that NOM had not met the requirements for a stay of agency action set out in 5 M.R.S. § 11004.⁶ On June 5, 2015, NOM filed a motion with us, seeking “clarification” or “confirmation” that the trial court's judgment and the Commission's decision are automatically stayed pursuant to M.R. Civ. P. 62(e), or, alternatively, seeking a stay pursuant to our inherent power to grant a stay. See M.R.App. P. 10. That motion is at issue here.

II. ANALYSIS

[¶ 8] NOM's motion presents two questions: First, whether M.R. Civ. P. 62(e) applies to automatically stay the agency action in this case, and, second, if there is no automatic stay, whether we should nevertheless grant a stay in order to preserve the status quo pending the outcome of the appeal.

A. Automatic Stay Pursuant to M.R. Civ. P. 62(e)

[¶ 9] NOM argues that the Commission's decision is automatically stayed pursuant to M.R. Civ. P. 62(e), which provides that, subject to several exceptions, “the taking of an appeal from a judgment shall operate as a stay of execution upon the judgment during the pendency of the appeal.”

[¶ 10] As an initial matter, the term “judgment” is defined in the Rules as “a decree and any order from which an appeal lies.” M.R. Civ. P. 54(a) ; see also First NH Banks Granite State v. Scarborough, 615 A.2d 248, 251 (Me.1992) (applying the definition in Rule 54(a) to Rule 62(e) ). That definition does not include agency actions, because an appeal to the Law Court does not lie directly from the agency's decision but instead from the Superior Court's review of that decision.⁷ Additionally, the plain language of “execution upon the judgment” in M.R. Civ. P. 62(e) does not include agency actions because they are not judgments upon which an execution may issue. See M.R. Civ. P. 69.

[¶ 11] Moreover, Rule 80C provides a clear mechanism for seeking a stay of final agency action in the Superior Court. See M.R. Civ. P. 80C(b) (stating that the procedure for stays of final agency action “shall be as provided by 5 M.R.S.[ ] § 11004 ”). Pursuant to that Rule, the applicant must first seek a stay from the agency, and only if that fails may the applicant seek a stay from the Superior Court. See 5 M.R.S. § 11004 ; see also Allied Res., Inc. v. Dep't of Pub. Safety, 2010 ME 64, ¶¶ 6–8, 999 A.2d 940 (explaining that the Superior Court granted a stay of agency action pursuant to M.R. Civ. P. 80C(b) and that the Law Court granted a stay, but not discussing the possibility of an automatic stay pursuant to M.R. Civ. P. 62(e) ). Section 11004 also specifically states that “[t]he filing of a petition for review shall not operate as a stay of the final agency action pending judicial review,” which precludes an automatic stay of the agency's decision pursuant to M.R. Civ. P. 62(e), at least at the initial review stage. See 5 M.R.S. § 11004. It would make little sense to read Rule 62(e) to entitle a litigant to an automatic stay of agency action pending appeal in the Law Court, but not during review by the Superior Court.

[¶ 12] We therefore conclude that Rule 62(e) does not apply to the agency action at issue in this case, and the Commission's decision is not automatically stayed pending appeal.

B. Request for a Stay Pending Appeal

[¶ 13] We now address NOM's alternate request for a stay pursuant to our inherent authority to grant a stay pending appeal. See M.R. Civ. P. 62(g) (stating that the Rule does “not limit any power of the ... Law Court during the pendency of an appeal to suspend, modify, restore, or grant an injunction or to make any order appropriate to preserve the status quo or the effectiveness of the judgment subsequently to be entered”); M.R.App. P. 10 (describing motion practice in the Law Court); see also Bangor Historic Track, Inc. v. Dep't of Agric., Food & Rural Res., 2003 ME 140, ¶ 1, 837 A.2d 129 (per curiam) (denying a motion for a stay pending appeal filed in the Law Court).

[¶ 14] “Requests for stays or injunctions before the Law Court are subject to the same standards for obtaining injunctive relief that are applied in the trial courts.” Maine Appellate Practice § 10.1 at 107–08 (4th ed. 2013). Therefore, the party seeking the stay has the burden of demonstrating

that (1) it will suffer irreparable injury if the [stay] is not granted; (2) such injury outweighs any harm which granting the [stay] would inflict on the other party; (3) it has a likelihood

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