# Mainers for Fair Bear Hunting v. Maine Dept. of Inland Fisheries & Wildlife > Superior Court of Maine · March 31, 2015 URL: https://www.frixlaw.com/law-library/cases/10810814 ## Case - **Court:** Superior Court of Maine - **Decided:** March 31, 2015 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Judges:** Joyce A. Wheeler - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10810814 ## How later opinions describe it (automated extraction) - explaining that standing generally requires "a plaintiff to show that his claim is premised on his own legal rights" - noting that the First Amendment "was designed to secure the widest possible dissemination of information from diverse and antagonistic sources, and to assl.tre unfettered interchange of ideas for the bringing about of political and social changes . . . ." ## Opinion text twl STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION DOCKET NO. CV-14-414 MAINERS FOR FAIR BEAR HUNTING and KATIE HANSBERRY, Plaintiffs v. ORDER ON DIFW'S MOTION TO DISMISS MAINE DEPARTMENT OF INLAND FISHERIES AND WILDLIFE, Defendant and MAR 3 l 2015 MAINE WILDLIFE CONSERVATION COUNCIL, Intervener Before the court is defendant Department of Inland Fisheries & Wildlife ("DIFW")'s motion to dismiss count II of the complaint. Following the election on November 4, 2014 in which Question 1 was defeated, defendant argues that plaintiffs lack standing and that count II is moot. Maine Wildlife Conservation Council ("MWCC"), which opposed Question 1, joins in the motion. For the following reasons, the motion is granted. Background Plaintiff Mainers for Fair Bear Hunting ("MFBH") 1s a Maine Ballot Question Committee and was a proponent of Question 1, which read: "Do you want to ban the use of bait, dogs or traps in bear hunting except to protect property, public safety, or for research?" Plaintiff Katie Hansberry served as MFBH's campaign director. Voters rejected the measure. Leading up to the election, plaintiffs filed their two-count complaint on September 30, 2014. Count I alleged certain FoAA violations and has been largely resolved. The parties agreed to bifurcate counts I and II to allow the court to enter a final judgment on plaintiffs' primary claim. (3/16115 Stipulation.) Count II alleges the illegal expenditure of public funds over DIFW's advocacy against Question 1, which, most notably, included MWCC's TV commercials showing DIFW staff in uniform discussing their opposition to the ballot measure. Plaintiffs filed a motion for a temporary restraining order, which the court denied on October 22, 2014. Plaintiffs sought expedited review in the Law Court, but the Law Court declined to expedite the case on October 30, 2014. Plaintiffs then withdrew their appeal. On March 6, 2015, defendant moved to dismiss count II of plaintiffs' complaint. Discussion Defendant challenges plaintiffs' standing and argues that count II is moot. "Standing and mootness are closely related concepts describing conditions of justiciability." Madore v. Me. Land Use Regulation Comm 'n, 1998 ME 178, ~ 8, 715 A.2d 157. "Standing to sue means that the party, at the commencement of the litigation, has sufficient personal stake in the controversy to obtain judicial resolution of that controversy." Halfway House, Inc. v. City of Portland, 670 A.2d 13 77, 13 79 (Me. 1996). "When a party initially holds the requisite personal interest, but is later divested of that interest" the doctrine of mootness applies. Madore, 1998 ME 178, ~ 8, 715 A.2d 157. As the major organizing proponent of Question 1, the court is satisfied that plaintiff MFBH and its campaign director had a sufficient stake in the controversy at the outset of litigation to present a justiciable case. See McCaffrey v. Gartley, 377 A.2d 1367, 1370 (Me. 1973). The court will therefore focus on whether count II is moot. 2 Mootness In deciding whether a case is moot, the court must determine "whether there remain sufficient practical effects flowing from the resolution of the litigation to justify the application of limited judicial resources." Halfway House, Inc. v. City of Portland, 670 A.2d 1377, 1380 (Me. 1996). The issue is often phrased in terms of whether a decision from the court could provide the litigants with any effective relief. Me. Civil Liberties Union v. City ofS. Portland, 1999 ME 121, ~ 8, 734 A.2d 191. "The mootness doctrine preserves the 'flexibility of the law by not creating unnecessary precedent."' Gordan v. Cummings, 2000 ME 68, ~ 10, 756 A.2d 942 (quoting Graffam v. Wray, 437 A.2d 627, 631 (Me. 1981)). Plaintiffs' allegations in count II of the complaint are all focused on campaign activity leading up to the Question 1 vote. (Compl. ~~ 98, 102-103.) Plaintiffs request for relief under count II states: [T]he plaintiffs respectfully request this Court to (a) permanently enjoin IF&W from further use of agency resources, including staff time, to oppose Question 1; (b) order IF&W to immediately remove political content from its website, YouTube channel, and other outlets; (c) order that the current television advertisement produced using IF &W resources be immediately removed from the air; (d) order repayment of funds illegally expended to the Treasurer of the State of Maine; (e) award Plaintiffs their· attorneys' fees and other costs for the maintenance of this action; and (f) grant such other and further relief as this Court may deem just and appropriate. Now that the election is over, the agency is no longer using any resources to oppose Question 1 and the television ads are no longer airing. The court does not have the authority to invalidate the election results. Me. Sch. Admin. Dist. No. 37 v. Pineo, 2010 ME 11, ~ 8, 988 A.2d 987. 1 Therefore, the court cannot grant plaintiffs any effective relief. See Campaign for Sensible 1 Plaintiffs do not have standing to seek repayment of any funds to the Treasurer of the State of Maine. See Ouellette v. Mills, 22 F. Supp. 3d 36, 41 (D. Me. 2014) (explaining that standing generally requires "a plaintiff to show that his claim is premised on his own legal rights"). 3 Transp. v. Me. Tpk. Auth., 658 A.2d 213, 215 (1995) ("Because the granting of an injunction preventing expenditure of toll revenues to influence the 1991 referendum's outcome would afford no effective relief to CST, its appeal is rendered moot."). Plaintiffs' claim is moot. Plaintiffs urge the court to find that one of the exceptions to the mootness doctrine applies in this case. Exceptions to Mootness Doctrine When a case is moot, the court may nevertheless consider the merits if one of the following three exceptions to the mootness doctrine applies: "(1) sufficient collateral consequences will result from the determination of the questions presented so as to justify relief; (2) the appeal contains questions of great public concern that, in the interest of providing future guidance to the bar [the court] may address; (3) the issues are capable of repetition but evade review because of their fleeting or determinate nature." Halfway House, Inc., 670 A.2d at 1380. The court will address these exceptions individually. 1) Collateral Consequences Exception Before considering the merits under the collateral consequences exception, plaintiffs must show "that a decision on the merits ... will have more than conjectural and insubstantial consequences in the future." Sordyl v. Sordyl, 1997 ME 87, ,; 6, 692 A.2d 1386 (internal quotation marks omitted). For example, the consequences of a criminal conviction or an involuntary commitment, which might include loss of certain privileges or enhanced penalties for future convictions or commitments, are sufficient to allow the court to hear a case. In re Walter R., 2004 ME 77, ,;,; 10-11, 850 A.2d 346. Plaintiffs' complaint was based on DIFW's advocacy around Question 1, which has ended. Plaintiffs have failed to show how a decision on 4 the merits will have anything other than speculative consequences in the future. The collateral consequences exception does not apply. 2) Public Interest Exception In applying the second exception, the court must consider "whether the question is public or private, how much court officials need an authoritative determination for future rulings, and how likely the question is to recur in the future." Me. Sch. Admin. Dist. No. 37, 2010 ME 11, ~ 10,988 A.2d 987 (quoting Youngv. Young, 2002 ME 167, ~ 9, 810 A.2d 418). There is certainly a public interest in ensuring the integrity of elections. As discussed in the court's previous order, however, cases concerning the expenditure of public funds can be very fact-specific. (10/22/14 Order.) The court must determine the scope of an agency's authority to expend funds and look at the alleged campaign activity to determine whether it constitutes impermissible advocacy. See Campaignfor Sensible Transp. v. Me. Tpk. Auth., 1991 Me. Super. LEXIS 228, at *10-17 (Oct. 8, 1991). The court's ruling in this case would therefore have limited applicability in situations involving other state agencies with different authority, a different ballot question, and different plaintiffs. See Young, 2002 ME 167, ~ 10, 810 A.2d 418 (declining to apply the public interest exception where an authoritative determination could be df great benefit but "the facts [did] not allow [the court] to analyze all relevant facets of the ... statute"); see also In re Steven L., 2014 ME 1, ~ 8, 86 A. 3d 5 ("[O]ur consideration of the issues raised on appeal would not generate meaningful authority for future decision-making, and we cannot conclude that the narrow issues in this case are likely to repeat themselves in the future."). It would be prudent to consider the issues raised by plaintiffs' complaint in the context of an ongoing controversy and a live ballot question. 5 3) Issue Evading Review Exception The final exception to the mootness doctrine applies if this type of issue is repeatedly presented to courts but is of such short duration that it escapes review. In re Walter R.. 2004 ME 77, ~ 9, 850 A.2d 346. Plaintiffs argue that this controversy is bound to repeat itself in the next election because plaintiffs intend to submit a similar ballot initiative for the 2016 election. This assumes, however, that the identical question will be presented and defendant will engage in the same advocacy efforts to oppose the measure. The cases on which plaintiffs rely concerned straightforward questions of law. See, e.g., Libertarian Party of Me. v. Dunlap, 659 F. Supp. 2d 215, 21 7, (D. Me. 2009) (considering whether the state could impose a deadline for the submission of signatures for a non-party candidate to get on the ballot). In addition, unlike other election cases in which this exception applied, see, e.g., Fredette v. Secretary of State, 1997 ME 105, ~~ 2, 4, 693 A.2d 1146 (concluding that challenge to rule for primary election recounts would likely evade review presumably because general election occurs within several months of primary), this is not a case in which the issue is likely to evade review in the future. Plaintiffs knew as early as September 2013, over a year before the election, that DIFW was going to publicly oppose Question 1. (Compl. ~ 28.) Plaintiffs waited over a year to file their complaint challenging DIFW's campaign activity. If the plaintiffs sponsor a similar ballot question for the 2016 election, they will be able to get a timely decision on the issue well before the election. Conclusion Plaintiffs' claim is premised on campaign activity related to Question 1 on the November 2014 ballot. The case became moot after the election. Based on the facts of this case, none of the exceptions to the mootness doctrine apply. Although plaintiffs' complaint raises a potentially 6 important legal question, the court should consider that question in the context of a live controversy. The entry is: Count II of plaintiffs' complaint is dismissed as moot. Per the parties' stipulation, this order constitutes a final judgment for the purposes of appeal. y Ju ice, Superior Court Plaintiffs-Rachel Wertheimer Esq Defendant DIF&W-Scott Boak AAG/Mark Randlett AAG Intervenor-Paul McDonald Esq/Daniel Murphy Esq 7 I EIll TE R(I) OCT 2 3 2014 tJ.P j STATE OF MAINE SUPERIOR COURT CUJ\1BERLAND, ss CIVIL ACTION DOCKET NO. CV-14-414 CUJm -0-A\V- tv-~~14- MAINERS FOR FAIR BEAR HENTING and KATIE HANSBERRY, Plaintiffs V. ORDER ON MOTION FOR TEMPORARY RESTRAINING ORDER MAI:-JE DEPARTMENT OF INLAND FISHERIES AND WILDLIFE, Defendant and OCT 22 2014 lv1AINE WILDLIFE CONSERVATION COCNCIL, a:1r:r~~;,un=ro·· v_...,.,~ \': r.._.:_ Intervener BACKGROUND Before the court is the plaintiffs Mainers for Fair Bear Hunting and Katie Hansberry (collectively, "MFBH")'s motion for a temporary restraining order. MFBH argues that defendant Deparbnent of Inland Fisheries and Wildlif~ ("DIFW" or the "Department") is engaged in illegal campaign activity against Question 1-a ballot initiative that would ban bear baiting, hounding, and - trapping-on the November 2014 ballot. In November, Maine voters will have an opportunity to vote·on Question 1, which reads: "Do you want to ban the use of bait, dogs or traps in bear hunting except to protect property, public safety, or for research?" Plaintiff Mainers for Fair Bear Hunting is a Maine Ballot Question Committee md proponent of Question 1. Plaintiff Katie Hansberry is a Maine resident l'·rho serves as Campaign Director for Plaintiff Mainers for Fair Bear Hunting. The Department is a Maine state agency charged with, among other things, preserving, protecting, and enhancing the inland fisheries and 1vildlife resources of the State; encouraging the wise use of these resources; and effectively managing these resources. 12 M.R.S. § 10051. The Commissioner of DIFW and DIFW have the responsibility, pursuant to 12 M.R.S. §§ 10053(1) and 10103(2), to manage aU wildlife resources in Maine. When necessary to accomplish their statutory duties, the Commissioner and DIFW have the statutory duty, pursuant to 12 M.R.S. §10105(1), to authorize the taking of wildlife, including bears, subject to conditions and restrictions established by. the Commissioner and DIFW. Pursuant to 12 M.R.S. § 10056, they are also charged with increasing the public's knowledge and understanding of wildlife resources and the management of those resources, and with the promotion of such resources. The Commissioner and DIFW have the authority, pursuant to 12 M.R.S. § 10108(2), to implement program.s to promote the hunting of Maine wildlife, including the hunting of bears. Such programs "may include coordination of activities between the public and private sectors and utilization of promotional missions, exhibits, brochures, technical assistance and expertise as necessary to develop and promote" hunting activities in Maine, including the hunting of bears. According to Andrea Erskine•, Deputy Commissioner of DIFW, DIFW, and its Commissioner, based on their experience and expertise, consider bear baiting, hounding, and trapping to be legitimate forms of bear hunting in Maine. 1 See affidavit of Andrea Erskine, dated October 14, 2014, and filed with :he court on October 17, 2014. 2 Erskine Aff. \D\~~~~ ~-fu,rC'\~ VERRILL DANA PO BOX 586 PORTLAND ME 04112-0586 SCOTT BOAK AAG ATTORNEY GENRAL OFFICE OF AG Jk~(' ~-\1-orf\o PO BOX S PORTLAND ME 04104-5029 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10810814. Public record. Not legal advice.