Reed v. Dunlap
| Decision Date | 13 April 2020 |
| Docket Number | BUSINESS & CONSUMER DOCKET NO. BCD-AP-20-02 |
| Parties | DELBERT A. REED, Petitioner v. MATTHEW DUNLAP, in his capacity of Secretary of State for the State of Maine, Respondent and MAINERS FOR LOCAL POWER PAC, NextEra ENERGY RESOURCES, LLC, INDUSTRIAL ENERGY CONSUMER GROUP, and MAINE STATE CHAMBER OF COMMERCE Intervenors |
| Court | Maine Superior Court |
CUMBERLAND, ss.
Before the Court is Delbert Reed's ("Mr. Reed's") Petition for review of final agency action pursuant to Rule 80C of the Maine Rules of Civil Procedure. Mr. Reed petitions the Court to reverse Respondent Secretary of State's Amended Determination of the validity of petitions supporting the Citizen Initiative entitled "Resolve, To Reject the New England Clean Energy Connect Transmission Project" ("the Petition"). Mr. Reed asserts the Secretary: 1) erred as a matter of law or otherwise abused his discretion when he validated petition signatures on petition forms notarized by specific notaries; 2) abused his discretion when he declined to conduct further investigations into Mr. Reed's allegations of fraud; 3) erred as a matter of law or otherwise abused his discretion when he determined he lacked authority to conduct evidentiary hearings after remand; and 4) abused his discretion when he failed to invalidate additional signatures after remand for other reasons.
At the outset, the Court would note what issues are not before the Court. First, the parties strenuously disagree as to whether the people of Maine pursuant to the Maine Constitution have the right through this Citizen's Initiative to reject this project, but they do agree that issue would not be ripe unless the measure is placed on the ballot and approved by Maine voters. Second, the Court is not asked here, nor could it be, to decide if the Initiative is good policy. And finally, the Court would note that federal law has very little to do with the task before the Court, which is to decide whether the Maine Constitution, Maine statutes and Supreme Judicial Court precedent requires that this measure go to the voters of Maine in November of 2020.
Petitioner is represented by Attorneys Nolan Reichl, Jared DesRosiers, Newell Augur, Joshua Tardy, and Joshua Randlett. Respondent Secretary of State is represented by Attorney Aaron Frey and Assistant Attorney General Phyllis Gardiner. Intervenor Mainers for Local Power (MLP) is represented by Attorneys David Kallin, Adam Cote and Amy Olfene. Intervenor NextEra Energy Resources, LLC (NER) is represented by Attorney Christopher Roach. Intervenor Industrial Energy Consumer Group (IECG) is represented by Attorneys Anthony Buxton, Sigmund Schutz, and Robert Borowski. Intervenor Maine State Chamber of Commerce (MSCC) is represented by Attorney Gerald Petruccelli.
Intervenors MLP and NER support the Secretary of State's Amended Determination issued on April 1, 2020. Intervenors IECG and MSCC support Mr. Reed's appeal.
On February 3, 2020, a total of 15,875 petition forms containing 82,449 signatures in support of the Citizen Initiative were filed with the Secretary. Upon receiving the written petition, the Secretary was required by statute to issue a Determination of the Petition's validity within thirty (30) days thereafter, by March 4, 2020. 21-A M.R.S. § 905(1). In response to the Petition submission, Clean Energy Matters ("CEM"), an organization opposed to the citizen initiative, submitted letters with a number of attached documents to the Secretary on February 24 and 27, 2020. Among CEM's submissions were allegations that eight specific notaries had provided services other than administering oaths to circulators in support of the petition drive and in violation of Maine law.1
Given the Secretary's statutory deadline to determine the Petition's validity, he asserted in the initial Determination that he lacked the opportunity to investigate all of the allegations contained in CEM's submissions, and specifically, was unable to investigate the specified notaries' activities, or to make findings concerning the validity of their notarial acts. No party in this case has directly questioned whether the Secretary had time to conduct such an investigation prior to remand, perhaps because of the date when Petitioner provided the information to the Secretary.2 The Secretary found that a total of 69,714 signatures on the petitions were valid, 6,647 more than required for the Petition to qualify for the ballot.
Thereafter, Mr. Reed filed a Rule 80C petition for judicial review of that Determination on March 13, 2020, in accordance with 21-A M.R.S. § 905(2). Shortly thereafter, on March 20, 2020 Mr. Reed filed a motion to take additional evidence with this Court. In response to Mr. Reed's motion, the Court issued an order on March 23, 2020, remanding this matter to the Secretary for the purpose of taking additional evidence pursuant to 5 M.R.S. § 11006(1)(B). Accordingly, the Secretary issued an Amended Determination on April 1, 2020.3
The Amended Determination detailed the process used by the Secretary to take additional evidence along with the Secretary's findings. According to the Amended Determination, the Secretary sent letters to each of the notaries in question, asking them to submit a signed (and sworn, if possible) statement explaining the details of their engagement and involvement with the petition drive. The notaries were also asked to produce documents, including copies of their notary logs, any agreement to provide services for the petition drive, paystubs or cancelled checks reflecting compensation for their services, and any instructions provided by the entity that hired them. All notaries complied with the Secretary's investigation. As a result, the Secretary validated petitions certified by four of the notaries. However, according to the Amended Determination, five other notaries either engaged (at some point) in other services relating to the initiative, or otherwise erredin their notarial duties. Therefore, the Secretary called these notaries' authority to administer oaths to circulators of the petitions into question.
The first notary whose notarial acts were called into question by the Secretary was David McGovern, Sr. who, according to the Secretary, circulated petitions during the first week of January 2020, and then volunteered to, and did, notarize petitions for other circulators. The Secretary found this behavior in violation of 21-A M.R.S. § 903-E, and rejected the petitions submitted by this circulator. As detailed in the Amended Determination, a second notary named Michael Underhill also circulated petitions on two occasions in December 2019, after which he notarized the petitions of another circulator. As with the signatures notarized by Mr. McGovern, the Secretary rejected the signatures notarized by Mr. Underhill.
The Secretary also questioned a third notary, Wesley Huckey, who is described in the Amended Determination as an employee in the City Clerk's office in Augusta who was hired to notarize petitions for circulators in January 2020. The Secretary found that Mr. Huckey was hired only as a notary and did not otherwise work on the initiative. However, the Secretary noted that on one occasion, Mr. Huckey carried a batch of petitions that his colleagues in the city of Augusta's clerk's office had just finished certifying to the campaign field office, where he was headed that evening to notarize petitions. The Secretary found that this action was, at most, a de minimis violation of section 903-E and therefore found that petitions notarized by Mr. Huckey were valid. If the petitions notarized by Mr. Huckey after January 17, 2020 when he carried the boxes to the field office were considered invalid by the Secretary, an additional 2,555 signatures would have been rejected.
The fourth notary described in the Amended Determination, Leah Flumerfelt, was initially hired by the campaign to circulate petitions, but was hired to notarize petitions instead when thecampaign learned she was a notary public. According to the Amended Determination, Ms. Flumerfelt administered oaths to circulators between January 12 and January 24, 2020. Then, on January 24 Ms. Flumerfelt was asked to deliver petitions to several town offices, organize petitions in the office, and to clean the office. The Secretary found that because Ms. Flumerfelt did not engage in any of these actions until after she had finished administering oaths to circulators, the oaths administered before she performed other services remained valid.
According to the Secretary, the final notary questioned, Brittany Skidmore, engaged in similar conduct to Ms. Flumerfelt. Ms. Skidmore reviewed certain petitions for errors on the weekend of January 27-30, 2020 after having administered oaths to circulators from December 17, 2019 to January 24, 2020. The Secretary found that there was no evidence Ms. Skidmore performed any non-notarial services for the initiative prior to the last week in January, after she had already finished her notarial duties. However, the Secretary found that Ms. Skidmore made other errors while acting as a notary prior to January 1, 2020, including failing to read oaths to circulators at correct times, and failing to ask for circulators identification. The Secretary noted that another campaign employee instructed Ms. Skidmore that she was required to read the oath to each circulator, watch the circulator sign his or her name to the oath, and then sign her name as notary in the circulator's presence- in accordance with 21-A M.R.S. § 902. The Secretary found that from that point on, Ms. Skidmore followed these practices. Accordingly, as detailed in the Amended Determination, the Secretary found the petitions notarized by Ms. Skidmore prior to January 2, 2020 invalid, but found the remaining signatures valid despite the other services she eventually...
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