Reed v. Sec'y of State

• Court: Maine Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: Reed v. Sec'y of State, 232 A.3d 202 (Me. 2020)
• Decision Date: 07 May 2020
• Docket Number: Docket: BCD-20-126
• Parties: Delbert A. REED v. SECRETARY OF STATE

232 A.3d 202

Delbert A. REED

v.SECRETARY OF STATE

Docket: BCD-20-126

Supreme Judicial Court of Maine.

Argued: April 28, 2020

Decided: May 7, 2020

Revised: June 23, 2020

Joshua A. Tardy, Esq., and Joshua A. Randlett, Esq., Rudman Winchell, Bangor; and Jared S. des Rosiers, Esq., Nolan L. Reichl, Esq. (orally), Joshua D. Dunlap, Esq., and Newell A. Augur, Esq., Pierce Atwood LLP, Portland, for appellant Delbert A. Reed

Sigmund D. Schutz, Esq., Anthony W. Buxton, Esq., and Robert B. Borowski, Esq., Preti Flaherty Beliveau & Pachios LLP, Portland, for appellant Industrial Energy Consumer Group

Gerald F. Petruccelli, Esq., and Nicole R. Bissonnette, Esq., Petruccelli, Martin & Haddow, Portland, for appellant Maine State Chamber of Commerce

Aaron M. Frey, Attorney General, and Phyllis Gardiner, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee Secretary of State

David M. Kallin, Esq. (orally), Amy K. Olfene, Esq., and Adam R. Cote, Esq., Drummond Woodsum, Portland, for appellee Mainers for Local Power

Christopher T. Roach, Esq., Roach Ruprecht Sanchez & Bischoff, P.C., Portland, for appellee NextEra Energy Resources, LLC

Patrick Strawbridge, Esq., Consovoy McCarthy PLLC, Boston, Massachusetts, for amici curiae Garrett Mason and Kevin Battle

Panel: GORMAN, JABAR, HUMPHREY, and HORTON, JJ., and HJELM, A.R.J.

PER CURIAM

[¶1] In this proceeding for review of governmental action, see M.R. Civ. P. 80C, Delbert A. Reed appeals from a decision of the Business and Consumer Docket (Murphy, J. ) affirming a decision of the Secretary of State that validated a direct initiative petition regarding the New England Clean Energy Connect Transmission Project (NECEC).¹ Reed contends that the Secretary of State misinterpreted 21-A M.R.S. § 903-E (2018) by failing to invalidate signatures on petition documents notarized by notaries who he claims were unqualified to do so by operation of statute. Reed also challenges the Secretary of State's failure to conduct a more thorough fraud investigation of the initiative campaign's signature-gathering process. We affirm the decision.

I. BACKGROUND

[¶2] In 2019, the Maine Public Utilities Commission (PUC) issued a decision granting a certificate of public convenience and necessity for construction and operation of NECEC for the provision of hydroelectric power from Québec to New England via a 145-mile energy corridor located in Maine. Central Maine Power Co. , Request for Approval of CPCN for the New England Clean Energy Connect Consisting of the Construction of a 1,200 MW HVDC Transmission Line from the Québec-Maine Border to Lewiston (NECEC) and Related Network Upgrades, No. 2017-232, Order (Me. P.U.C. May 3, 2019); see 35-A M.R.S. § 3132 (2018) ;² see generally NextEra Energy Res., LLC v. Me. Pub. Utils. Comm'n , 2020 ME 34, 227 A.3d 1117. Later that year, NECEC opponents commenced a direct initiative entitled, "Resolve, To Reject the New England Clean Energy Connect Transmission Project." See 21-A M.R.S. § 901 (2018). The initiative proposed the adoption of a legislative resolve directing the PUC to amend its May 3, 2019, order to find that "the construction and operation of the NECEC transmission project are not in the public interest and that there is not a public need for the NECEC transmission project," and to deny the requested certificate of public convenience and necessity on that basis.

[¶3] The direct initiative process allows Maine voters to propose legislation for inclusion on a statewide ballot by obtaining a minimum number of voter signatures on petitions in compliance with various constitutional and statutory requirements. Me. Const. art. IV, pt. 3, §§ 18 (2), 20, 22 (requiring that a valid direct initiative petition must be signed by "not ... less than 10% of the total vote for Governor cast in the last gubernatorial election preceding the filing of such petition"); 21-A M.R.S. §§ 901 - 906 (2018) ;³ Me. Taxpayers Action Network v. Sec'y of State , 2002 ME 64, ¶¶ 3, 10, 19, 795 A.2d 75. Signatures must be obtained by qualified petition circulators—either volunteers or compensated individuals—according to an established procedure. Me. Const. art. IV, pt. 3, § 20 ; 21-A M.R.S. § 903-A ; see Me. Taxpayers Action Network , 2002 ME 64, ¶¶ 4, 11, 795 A.2d 75.

[¶4] The procedural requirement primarily at issue here provides that "[t]he circulator of a petition must sign the petition and verify by oath or affirmation before a notary public or other person authorized by law to administer oaths or affirmations that the circulator personally witnessed all of the signatures to the petition and that to the best of the circulator's knowledge and belief each signature is the signature of the person whose name it purports to be and that each signature ... was made by the authorized signer in the presence and at the direction of the voter." 21-A M.R.S. § 902 ; see Me. Const. art. IV, pt. 3, § 20 ; Knutson v. Dep't of Sec'y of State , 2008 ME 124, ¶ 11, 954 A.2d 1054 ; Me. Taxpayers Action Network , 2002 ME 64, ¶ 11, 795 A.2d 75 ; Palesky v. Sec'y of State , 1998 ME 103, ¶ 10, 711 A.2d 129. Upon administering that oath, the notary must sign a notarial certificate on each petition. 21-A M.R.S. § 902. The circulator's oath is "pivotal to the circulation process." Knutson , 2008 ME 124, ¶ 23, 954 A.2d 1054 (quotation marks omitted).

[¶5] After municipal verification that the signatories are qualified voters, petitions must be submitted to the Secretary of State for certification. Me. Const. art. IV, pt. 3, § 20 ; 21-A M.R.S. § 902 ; Palesky , 1998 ME 103, ¶ 13, 711 A.2d 129. At this stage, the Secretary of State must review the petitions filed and "shall determine the validity of the petition and issue a written decision stating the reasons for the decision." 21-A M.R.S. § 905(1).

[¶6] On February 3, 2020, the initiative proponents filed with the Secretary of State a total of 15,785 petitions bearing 82,449 signatures.⁴ By letter and attached documentation, Clean Energy Matters (CEM) raised various challenges to many of the signatures on the petitions, including the assertion that at least eight notaries were statutorily not qualified to notarize circulator oaths because those notaries also performed nonnotarial services for the campaign. See 4 M.R.S. § 954-A (2018) ; 21-A M.R.S. § 903-E.

[¶7] By decision dated March 4, 2020, the Secretary of State invalidated a total of 12,735 of the signatures for a variety of reasons but declined to consider whether any notaries were disqualified for having also performed nonnotarial services for the campaign. The Secretary explained, "This office did not have sufficient time ... to investigate this matter prior to the statutory deadline for issuing this decision and thus make[s] no findings regarding [CEM's] allegations." See 21-A M.R.S. § 905(1). Because 69,714 signatures remained—still more than the 63,067 required—the Secretary of State declared the proposed legislation eligible for a statewide vote pursuant to section 905(1).

[¶8] Reed petitioned the Superior Court⁵ (Kennebec County) for review of the Secretary of State's decision, arguing that the Secretary of State should have invalidated more than 17,000 signatures on petitions that he claimed had been notarized in violation of sections 903-E and 954-A.⁶ See 5 M.R.S. § 11001(1) (2018) ; 21-A M.R.S. § 905(2) ; M.R. Civ. P. 80C. On Reed's motion, the court determined that the Secretary of State had not had sufficient opportunity to consider all of the allegations in CEM's submissions and that additional evidence was "material to the issues presented in the review" because the number of signatures that CEM challenged could affect the validity of the petition as a whole. 5 M.R.S. § 11006(1)(B) (2018). The court thus remanded the matter to the Secretary of State to take additional evidence regarding CEM's allegations. See 5 M.R.S. § 11007(4)(B) (2018) ; Palesky , 1998 ME 103, ¶ 14, 711 A.2d 129.

[¶9] After remand, and based on the additional evidence that he collected, the Secretary of State issued an amended decision dated April 1, 2020, containing the following findings, accompanied by the Secretary's conclusions and determinations based on those findings. All of the findings are supported by competent evidence in the agency record.⁷

• David McGovern Sr. both circulated petitions and later notarized petitions for other circulators. Because he performed both notary and nonnotary services for the campaign, the 110 signatures on the petitions he notarized are invalid.

• Michael Underhill circulated petitions and later notarized petitions for another circulator. Because he performed both notary and nonnotary services for the campaign, the 69 signatures on the petitions he notarized are also invalid.

• Wesley Huckey works in a city clerk's office. With his employer's permission, he was hired to notarize petitions for the campaign on the evenings and weekends. He was not hired to perform any other services for the campaign. On one occasion, however, he transported certified petitions from the city clerk's office to the campaign field office. Although the Secretary of State found that this conduct "could" constitute a violation of 21-A M.R.S. § 903-E, he determined that any such violation was de minimis and declined to invalidate the affected signatures on that basis.⁸

• Leah Flumerfelt was originally recruited to be a circulator for the initiative. When the campaign learned that she was a notary, it instead hired her to notarize petitions. On one occasion, she also delivered petitions to town offices, and, during one weekend, she organized petitions in the campaign office and cleaned the campaign office. The Secretary of State concluded that because all of Flumerfelt's notarizations occurred before she performed these nonnotarial services, all of the signatures on petitions she notarized are valid.

• Brittany Skidmore was hired as a notary for the campaign, and she performed notary services from

...