The opinion
STATE OF MAINE SUPERIOR COURT
KENNEBEC, SS. CIVIL ACTION
DOCKET NO. AP-09;:56 !
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I
CHARLES L. JOHNSON III,
Petitioner
v. DECISION
MATTHEW DUNLAP,
SECRETARY OF STATE,
Respondent
and
CHARLES WEBSTER
Intervenor
Before the court is the petition for review of final agency action of Charles
L. Johnson, III pursuant to M.R. Civ. P. SOC, 5 M.R.S.A. §11001 and 21-A M.R.S.A.
§905(2).
This dispute arises from the submission and review of petitions intended
to trigger a People's Veto referendum of "An Act to Implement Tax Relief and
Tax Reform," P.L. 2009, ch. 382 (effective 1/1/10) (hereinafter the "Tax Reform
Act") signed into law by Governor John Baldacci on 7/12/09.
Following the signing of the Tax Reform Act by Governor Baldacci,
Intervenor Charles Webster began circulating petitions to trigger a People's Veto
referendum pursuant to the Maine Constitution and the laws of the State of
Maine. Me. Const. Art. IV, pt. 3, § 17; 21-A M.R.S.A. § 905. Within 90 days of the
legislature's adjournment, Webster was required to submit at least 55,087
signatures, constituting ten percent of the total number who voted in the last
gubernatorial election. Me. Const. Art. IV, pt. 3, § 17(1). On 9/11 / 09, Webster
submitted completed petitions containing approximately 71,035 signatures. The
Secretary stayed the effective date of the Tax Reform Act pending a
determination of the validity of the petitions.
When the People's Veto petition was filed with the Secretary of State, the
Secretary had 30 days to determine the validity of the petitions. 21-A M.R.S.A. §
905(1). Accordingly, the deadline to issue a decision was 10/13/09. The
Secretary failed to issue a decision by that date. On 11/2/09, Webster filed a
petition for review of agency action including an independent claim for
declaratory relief in the companion case, Webster v. Dunlap, AP-09-55.
On 11/9/09, the Secretary issued a Determination of the Validity of the
Petition for People's Veto of Legislation, invalidating 14,928 signatures for
various reasons, but finding Webster had submitted 56,107 valid signatures. On
11/17/09, Petitioner l Charles Johnson filed his Petition for Review of Final
Agency Action alleging the Secretary failed to invalidate at least 1,021 signatures
that were in some way deficient.
Petitioner assigns five areas of error by the Secretary of State. Petitioner's
specific arguments include that (1) petitions containing 4480 signatures are
invalid because the oaths of circulator's were administered by Stavros Mendros,
a notary public who petitioner alleges is a "self interested notary" due to
payments received by his company for organization of signature gathering
services; (2) petitions containing 3837 signatures are invalid because Cynthia
Petitioner is a registered voter in Town of Hallowell. 21-A M.R.S.A. § 905(2) permits any
voter to appeal a decision by the Secretary validating a petition.
2
Mendros2 f/k/ a Cynthia Bodeen signed the attestation that she administered the
circulators' oaths on the petitions as "Cynthia Bodeen" when her legal name was
in fact "Cynthia Mendros;" (3) 315 signatures are invalid because the signatories
do not appear on the Central Voter Registry (CVR), which petitioner contends is
the authoritative database to determine whether a person is a registered voter; (4)
signatures are invalid because the Secretary relied on the certifications of town
registrar's that the signatories were registered voters and did not conduct his
own independent investigation; and (5) 1042 signatures are invalid due to factual
issues presented on the face of the petitions, including incorrect dates, illegible
signatures, duplicate signatures, and clerical errors. In total, accounting for
signatures that fall into more than one category, petitioner has challenged that
9674 signatures are invalid.
On 12/21/09, this court entered a decision in the Webster case, holding
that the Secretary had lost his authority to act by failing to complete his review
within the thirty-day period proscribed in 5 M.R.S.A. § 905. The holding in
Webster necessarily means that any error the Secretary's substantive review in
this case is moot. However, in the event that the Webster decision is not
sustainable on appeal and due to constrained deadlines for judicial review in this
case, the court addresses the merits of petitioner's claims.
In conducting a judicial review of the evidence presented by the record
and additional evidence, the court is guided by two important principles
established in Maine law. The power in the agency "to reject names and names
falsely certified may tend to prevent fraud and to protect the referendum from
Cynthia Mendros and Stavros Mendros are married. Accordingly, petitioner argues that
if the court invalidates petitions due to Stavros Mendros' financial interests, petitions containing
an attestation by Cynthia Mendros should be similarly invalidated.
3
disrepute." Opinion of the Justices, 116 Me. 557, 103 A. 761, 772 (1917). On the
other hand, in the context of the direct initiative, the Maine Constitution "cannot
be said merely to permit the direct initiative of legislation upon certain
conditions. Rather, it reserves to the people the right to legislate by direct
initiative if the constitutional conditions are satisfied."McGee v. Secretary of State,
2006 ME 50, <[ 25; 896 A.2d 933, 941. Certainly the Constitution creates the right in
the people to veto legislation under certain conditions. Accordingly, this court is
constrained to require a constitutional, statutory, regulatory or common law
basis to overturn a decision of the respondent in accordance with the
Administrative Procedures Act.
Subsequent to the filing of his petition, discovery procedures revealed that
two individual notary publics taking the oaths of circulators on petitions
containing 8,550 signatures had a financial interest in the outcome of the petition
campaign by contract with the sponsor of the referendum. This allegation was
not presented to the Secretary of State and is not a part of his validation process.
The issue, therefore, is whether, as a matter of law, those documents containing
the acknowledgement of those notaries must be disallowed and the signatures
thereon not validated to meet the veto referendum requirement. Petitioner relies
on public policy and a publication of the Secretary called the Notary Public
Handbook and Resource Guide. The document states that a notary public must
not act in any official capacity if there is any interest that may affect impartiality.
The statement relies upon the general "conflict of interest" principle and refers to
a "beneficial interest" rule. This provision of the Handbook does not rely on any
4
statute or regulation nor does it provide the basis for invalidating elector's
signatures under the circumstances. 3
Petitioner further challenges the notary's authority to take the oath of the
circulator on a petition wherein the notary has signed as a registered voter. To
this deficiency, the Secretary responds that the Constitution spells out very
clearly the role of the notary in the referendum petition process, to administer an
oath to a circulator who swears that the signatures on the petition are original,
made in the presence of the circulator and that to the circulator's best knowledge
and belief, each signature is that of the person whose name it purports to be. Me.
Const. Art. IV, pt. 3, § 20.
Whatever concerns may be appropriate regarding the public interest in
the enforcement of a rule of "conflict of interest" or "beneficial interest" the
court has not been presented with any substantive law to cause it to invalidate
the signatures on petitions acknowledged under such circumstances.
Likewise, the petitioner has challenged the signatures on petitions on
which the notary public has taken the oath of a circulator by signing her previous
name and not her married name existing at the time of the acknowledgement. It
is clear from the record that a notary public involved in a substantial number of
petitions applied for, was granted and is registered with the Secretary under her
name at the time of the application. However, without notification to the
Secretary, she married and assumed the surname of her husband prior to this
petition campaign. By administrative rule, a notary public must notify the
3
The court is advised by the Assistant Attorney General at oral argument that a Maine statute
prohibiting the payment of circulators on the basis of number of signatures was struck down by the
Federal District Court on Constitutional grounds. See On Our Terms '97 Pac v. Secretary ofMe., 101
F. Supp.2d 19 (D. Me. 1999).
5
Secretary of a change of address, email address, name or other contact
information within 10 days of the change. 29-250 CMR Ch. 700. This, also,
appears in the Handbook. However, there is no indication that such a filing is a
condition that must be met in order for the notary to perform her duties with
authority as long as she does not use the name of another and the name used is
consistent with that registered with the Secretary. See Maine Taxpayer's Action
Network v. Sec'y of State, 2002 ME 64, 795 A.2d 75. Further, there does not appear
to be any authority for the proposition that use of the registered name rather
than the new married name invalidates the function performed on the
referendum petitions.
Petitioner's third argument is that the signatures of persons who do not
appear on the Central Voter Registry are invalid. See 21-A M.R.S.A. § 902
(providing that verification of people's veto must be conducted in the same
manner as nonparty nomination petitions); 21-A M.R.S.A. § 354(7)(C)(providing
that, for nomination petitions, the registrar "shall certify which names on a
petition appear in the central voter registration system as registered voters in
that municipality and may not certify any names that do not satisfy subsection
34 "). An examination of the language of the statute reveals the deficiency with
petitioner's argument. Section 354 requires that the registrar shall certify names
that are found on the CVR. The statute does not provide that the registrar is
required to invalidate names due to their absence on the CVR. To the extent that
an argument could be made that the negative implication of Section 354 is that
the CVR is the exclusive authority to consult in determining whether a name
could be certified, the sentence of Section 354 providing that the registrar may
4
Subsection 3 requires that the voter must personally sign the petition.
6
not certify names under certain conditions reveals that the Legislature did not
intend such an implication.
Petitioner's fourth argument is that the Secretary is under an independent
duty to review signatures under section 90S, notwithstanding valid certificates
from the municipal registrars that the names on the petitions are of persons
qualified to vote in the municipality. Presumably, this review would require the
Secretary to consult the CVR, as the CVR is the voter list within the Secretary's
custody. This argument presents two problems, one resulting from the text of
section 905 and another from the constitution. Section 905 requires the Secretary
to review the "petitions," not the individual signatures. Accordingly, it would
be difficult to read section 905 as imposing a mandatory duty to inspect each
individual signature rather than relying on the certificate by the municipal
registrar that the names are those of persons qualified to vote. s With regard to
the Constitutional issue, Section 20 of Article IV, part third of the Maine
Constitution defines "electors" as the persons of the State qualified to vote for
Governor. The certification of the registrar that the names "appear on the voting
list of the city, town, or plantation of the official as qualified to vote for
Governor" constitutes prima facie evidence that the signatories to the petitions
are registered voters. Me. Const. Art. IV, pt. 3, § 20; Opinion of the Justices, 116
Me. 557, 571, 103 A. 761, 768 (1917). Additionally, 21 M.R.S.A. § 121 provides
that the registrar has the "exclusive power" to determine whether a person is a
registered voter, and being listed on the CVR is not considered a prerequisite to
This does not imply that the Secretary lacks the power to review individual signatures for
duplicates, forgery, and other issues. Rather, it means that relying on the certificates of municipal
registrars, who have the "exclusive power" under 21-A M.R.S.A. § 121 to determine whether a person is a
registered voter is not error.
7
voting for Governor under Title 21-A. See also Palesky v. See'y of State, 1998 ME
103, fJI 13, 711 A.2d 129, 133 (acknowledging the registrar's exclusive authority to
maintain the municipal voting list). Accordingly, if the Secretary had the
authority to invalidate a person's signature because his or her name is not listed
on the CVR, that authority would infringe upon the right any person "qualified
to vote for Governor," who is absent from the CVR for one reason or another, to
sign a people's veto petition. Me. Const. Art. IV, pt. 3, § 20.
The remaining challenges by petitioner relate to particular factual
allegations regarding specific signatures. The Secretary has explained the
activities undertaken by him and his staff to address the alleged deficiencies but
the explanations take the form of arguments in the briefing material and the
statute providing for judicial review is specific regarding the correction of the
record and the taking of additional evidence. The respondent has not requested
the taking of evidence on these issues. Under the circumstance, the court would
normall y remand the matters to the Secretary to prepare findings for the court's
review. However, inasmuch as the present situation is more than 100 days from
the filing with the Secretary and the Constitution anticipates the final review by
the appellate court within that period, the court does not seem to have such a
luxury. Relying on the record, as corrected, the court considers the petitioner's
challenges.
The parties agree that there are an additional 62 signatures that may be
considered duplicates notwithstanding the agency review and the court will
disallow same.
The petitioner asserts that an additional three signatures are illegible and
must be disallowed. He premises the claim on his argument that the Secretary
8
has the statutory authority to make the final determination of each signature, a
premise to which this court disagrees as held above. The court is satisfied that
the Secretary has the authority to rely on the local registrar who has examined
the writing and the printed name and has certified the voter. As stated in the
procedure required by the Secretary in his People's Veto Petition Certification
Instructions, ("Instructions") found in the record, " ... if you believe the voter
has signed the petition, you may accept it. We want to give the benefit of the
doubt to the voter who signed the petition."
The petitioner challenges over 500 signatures he claims were written after
various petitions were notarized. Based on date issues, he asserts that the
signatures were either dated after the notary took the circulator's oath, the
signature was not dated or the signature was dated outside of the circulation
period. He challenges the acceptability of the Secretary in making an assumption
that undated signatures, or signatures with unlikely dates are not in compliance
with the Constitution. To some degree, he, again, relies on his position that the
Secretary has an independent duty not to rely on the notarized oath of the
circulator. The Instructions provide that the signatures must be determined to
have been entered during the circulation dates between June 30, 2009 and
September 8, 2009. It requires a signature to be discounted only if the reviewer
"cannot determine what the date of signing was." This allows the consideration
of factors such as obvious mistakes in a date and other dates appearing on the
petition. The respondent accepts the challenge as to 66 signatures but denies a
factual basis for the others. The court is satisfied that the agency exercised
acceptable judgment in this circumstance.
9
Me. Const. Art. IV, pt. 3, § 20 requires that petitions "must be submitted to
the appropriate officials of cities, towns or plantations, or state election officials
as authorized by law, for determination of whether the petitioners are qualified
voters by the hour of 5:00 p.m. on the fifth day before the petition must be filed
in the office of the Secretary of State, ..." Presumably this important provision is
to assure the registrars receive the petitions before the close of business and have
sufficient time to certify the signatures. Mr. Johnson alleges that 117 signatures
were on petitions submitted to the town clerks after the Constitutional deadline.
The Secretary agrees as to 54 signatures. However, he argues that in spite of
being encouraged to do so, not all town clerks have and use date stamps. In his
brief, the Secretary asserts that he is in possession of evidence to establish receipt
by the officials in due time. The record is not clear as to the complaint and the
court makes no findings except to accept the allegation.
Three signatures are challenged because the date of notarization is
indicated as September 27, 2009. The response is that the other signatures are
dated in the vicinity of August 2~ and on September 27, 2009, the petition was
already in the possession of the Secretary. This is an obvious error and
recognized as such by the Secretary within his discretion.
The petitioner challenges 1,597 signatures because the signature of the
notary is illegible. This happens to be the notary whose name change has
occasioned the challenge previously discussed. As is recognized by the court in
the case of the registrars familiar with a number of characteristics of the
registered voter, the Secretary has sufficient documentation and familiarity with
this notary public's signature to remove doubt as to authenticity. Examples of
such documentation exist in the record.
10
With the exception of the findings of this court in Webster v. Dunlap, AP
09-55 (Ken. Cty. Sup. Ct., Dec. 21, 2009), as to the date of the Secretary's
determination, the court is satisfied that the agency decision of the Secretary of
State in this matter is founded upon constitutional and statutory provisions, not
in excess of such authorities, followed lawful procedure, was not affected by bias
or error of law, is supported by substantial evidence, (with the minor exceptions
as noted) and is not arbitrary or capricious or characterized by abuse of
discretion.
Accordingly, the entry will be:
The Determination of the Validity of a Petition for People's
Veto of Legislation Entitled: "An Act To Implement Tax Relief
and Tax Reform" dated November 9, 2009 by the Office of the
Secretary of State is AFFIRMED.
December 23,2009
JUSTICE, SUPERIOR COURT
11
Date Filed 11 /17 /09 Kennebec Docket No. A_P_-_09_-_5_6 _
County
Action P_e_t_i_t_i_o_n"""'F"o;-r_R_e_v_i_e_w _
80C
Daniel Billings, Esq. (Intervenor)
44 Elm Street
PO Box 708
Waterville, Maine 04901-0708
Charles L. Johnson, III Secretary of State
vs.
Plaintiff's Attorney Defendant's Attorney
John M.R. Paterson, Esq. Phyllis Gardiner, AAG
PO Box 9729 6 State House Station
Portland, ME 04104-5029 Augusta, ME 04333-0006
Date of
Entry
11/18/09 Petition For Review of Final Agency Action, filed 11/17/09. Motion To
Take Additional Evidence, filed 11/17/09, w/ Statement Of Additional
Facts Requested To Be Presented To The Court. s/Paterson, Esq.
11/20/09 Letter entering appearance, filed. s/Gardiner, AAG
Hearing scheduled for 11/23/09 at 9:00 a.m. Called attys. of record.
Motion of Charles Webster to Interven, filed. s/Billings, Esq.
Proposed Order, filed.
Charles Webster's Motion to Consolidate, filed. s/Billings, Esq.
Proposed Order, filed.
11/30/09 SCHEDULING ORDER, Marden, J. (11/25/091
Copies to attys. of record.
Certification of Record, filed.
Affidavit of Julie L.Flynn, Deputy Secretary of State, filed. s/Flynn
12/7 /09 Motion for Modification of Record Under M.R.CIV.P. 80C(f)(or in the
Alternative Motion to Take Additional Evidence Under M.R.CIV.P 80C(e)),
filed. s/Paterson, Esq.
Joint Stipulation, filed. s/Paterson, Esq.
12/9/09 Inclusion in the Agency Record, filed. s/Gardiner, AAG
12/14/09 Petitioner's Motion for Extension of Time to File Compliation of Supportin
Documents from the Record, filed. s/Paterson, Esq.
Petitioner's Brief, filed. s/Paterson, Esq. (attachments in the vault)
12/16/09 Motion for Leave to File Amended Brief and Take and Present Additional
Evidence, filed. s/Paterson, Esq.
Motion for Oral Argument, filed. s/Paterson, Esq.
Proposed Order, filed.
12/16/09 Respondent's memorandum in Response to Petitioner's Motion to Modify
Record, filed. s/Gardiner, AAG
Date of
Entry Docket No.
Notice of soltmg tor~1~~-lJ-tL~~~
o.~
sent 10 attorneys o·~ l"3cord.
12/17/09 Supplement to Petitioner's First Amended Brief in Support of Petition
for Review, filed. s/Paterson, Esq.
Supplemental binder with attachments, filed. s/Paterson, Esq.
12/18/09 Respondent's Motion for Enlargement of Time to File 80C Brief, filed.
s/Gardiner, AAG
Response to Motion £or Modification of the Record.
ORDER, Marden, J.
GRANTED
Copies to attys. of record.
12/21/09 Intervenor's 80C Brief, filed. Billings, Esq.
Respondent's Brief, filed. s/Gardiner, AAG
12/21/09 Intervenor's Memorandum of Law in Opposition to Petitioner's Motion
for Leave to File Amended Brief & Take and Present Additional Evidence
s/Billings, Esq.
Joint Stipulation, filed. s/Paterson, Esq.
12/21/09 Respondent's Motion to Correct Agency Record, filed. s/Gardiner, AAG
Corrected Index to Agency Record.
12/22/09 Petitioner's Motion to Strike Portions of Respondent's Brief, filed.
s/Paterson, Esq.
Proposed Order, filed.
Petitioner's Rule 80C Reply Brief, filed. s/Paterson, Esq. (attachments
A,B,C)
Hearing held with the Hon. Justice Donald Marden, presiding.
John Paterson, ESQ. for the Petitioner, Phyllis Gardiner, AAG for the
Respondent, and Daniel Billings,Esq. Intervenor.
Oral arguments made to the court.
Mtn. to Take Additional Evidence is withdrawn
Mtn. to Amend Brief/Mtn. to Take Additional Evidence is Granted.
Stipulation of Parties to Change Name is Granted.
Petitioner calls S. Mendros as a witness.
Court to take matter under advisement. Court to issue order.
12/23/09 DECISION: Accordingly, the entry will be: the determination of the
petition for People's Veto of Legislation Entitled: "An
Act To Implement Tax Relief and Tax Reform" dated
November 9, 2009 by the Office of the Secretary of
State is AFFIRMED.
Order dated 12/23/09. /s/ Justice Marden. Copy of order
to Atty Paterson, AAG Gardiner and Atty Billings.
12/28/09 Transcript, filed. s/Tammy Drouin, CR
Copy of Decision mailed to repositories