Opinion

National Organization for Marriage v. Commission on Governmental Ethics and Election Practices

  • 66 A.3d 579
  • 2013 ME 53
  • 2013 Me. LEXIS 52
  • 2013 WL 2353801
Court
Supreme Judicial Court of Maine
Filed
May 30, 2013
Status
Published
Author
Saufley
On the bench
Saufley, Alexander, Silver, Mead, Gorman, Jabar
Cited by
1 cases
Authority
More cited than 49.8%

The opinion

MAINE SUPREME JUDICIAL COURT Reporter of Decisions

Decision: 2013 ME 53

Docket: Ken-12-363

Argued: April 11, 2013

Decided: May 30, 2013

Panel: SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, and JABAR, JJ.

NATIONAL ORGANIZATION FOR MARRIAGE et al.

v.

COMMISSION ON GOVERNMENTAL ETHICS AND ELECTION

PRACTICES

SAUFLEY, C.J.

[¶1] The National Organization for Marriage (NOM), Stand for Marriage

Maine PAC (SMM), and Brian Brown appeal from a judgment of the Superior

Court (Kennebec County, Murphy, J.) affirming the decision of the Commission

on Governmental Ethics and Election Practices refusing to vacate or modify its

subpoenas demanding information from NOM and Brown, including the names of

donors to NOM. The appellants contend that the Commission’s subpoenas

infringe on their First Amendment right to freedom of association because

disclosure would expose NOM’s donors to threats, harassment, and reprisal. Their

appeal is the culmination of several years of litigation surrounding SMM’s

advocacy in favor of a ballot question presented to Maine voters in 2009. Our

review of the extensive record, the Superior Court’s well-reasoned opinion, and the

2

detailed analysis of related issues by our federal court colleagues1 leads us to

conclude that, on the facts of this case, the Commission did not err. We affirm the

Commission’s order.

DISCUSSION

[¶2] The Commission subpoenaed documents and testimony from NOM

and Brown as part of an investigation that began in 2009. The Commission seeks

the names of donors to NOM in order to allow the Commission to evaluate the oral

communications NOM made in soliciting donations during the 2009 election

season, a critical issue in determining NOM’s compliance with Maine’s campaign

laws. The appellants petitioned the Commission to vacate or modify the subpoenas

pursuant to 5 M.R.S. § 9060(1)(C) (2012). After the Commission rejected their

contentions, they petitioned for review of the Commission’s decision in the

1

Related federal litigation to which NOM was a party led to numerous decisions with extensive

analyses. See Nat’l Org. for Marriage, Inc. v. McKee, 669 F.3d 34 (1st Cir. 2012), cert. denied, 133 S.

Ct. 163 (2012); Nat’l Org. for Marriage v. McKee, 649 F.3d 34 (1st Cir. 2011), cert. denied, 132 S. Ct.

1635 (2012); Nat’l Org. for Marriage v. McKee, 765 F. Supp. 2d 38 (D. Me. 2011); Nat’l Org. for

Marriage v. McKee, 723 F. Supp. 2d 236 (D. Me. 2010); Nat’l Org. for Marriage v. McKee, 666 F. Supp.

2d 193 (D. Me. 2009).

In this litigation, NOM had the opportunity to, and in several instances did, present its constitutional

arguments regarding the identities of its donors to the federal judiciary. Its arguments were not

persuasive, and in at least one proceeding, NOM affirmatively chose not to pursue the very claim it

presses here. See Nat’l Org. for Marriage, 649 F.3d at 55 n.30. Therefore, not unreasonably, the

Commission argues that NOM is precluded from litigating these challenges further. Nonetheless, in an

effort to bring this protracted litigation to a close, we reach, consider, and rule on its constitutional

challenge.

3

Superior Court pursuant to M.R. Civ. P. 80C. The Superior Court affirmed, and

this appeal followed.

[¶3] The appellants allege that compliance with the subpoenas could chill

their First Amendment right of association by intruding into the privacy of

individuals involved with their organizations.2 The record reveals that the

Commission’s request for the donor information was central to the Commission’s

ability to carry out its statutory responsibilities. See 21-A M.R.S. § 1003(1) (2012)

(authorizing the Commission to undertake investigations to determine compliance

with campaign reporting requirements); 21-A M.R.S. § 1056-B (2009) (identifying

the criteria and reporting requirements for ballot question committees).3 The

Superior Court evaluated these legal claims in a thorough opinion.

[¶4] We have reviewed the record and the parties’ arguments carefully to

ensure that the important rights protected by the First Amendment have been

thoroughly considered, and that NOM’s assertions have not been overlooked. In

so doing, we directly review the Commission’s decision in this Rule 80C appeal.

2

The appellants also contend that the Commission’s subpoenas were overbroad and sought irrelevant

information. Given our deferential standard of review for this type of contention, see 5 M.R.S.

§ 11007(4)(C)(6) (2012), we do not address this argument further.

3

Title 21-A M.R.S. § 1056-B (2009) was subsequently amended by P.L. 2009, ch. 524, §§ 8-13

(effective July 12, 2010) and P.L. 2011, ch. 389, §§ 38-42, 62 (effective in part Aug. 1, 2011, otherwise

effective June 20, 2011).

4

See LaMarche for Governor Comm. v. Comm’n on Governmental Ethics &

Election Practices, 2006 ME 126, ¶ 3, 908 A.2d 1205.

[¶5] We conclude that the record does not support the appellants’

constitutional argument. Given the status of the dispute at this point in time,4 the

extensive litigation that has already occurred, and the Superior Court’s

well-reasoned, comprehensive decision, see Nat’l Org. for Marriage v. Comm’n on

Governmental Ethics & Election Practices, 2012 WL 7992438 (Me. Super.

June 27, 2012), we need not write further. See Hammer v. Sec’y of State, 2010 ME

109, ¶ 4, 8 A.3d 700; see also Citizens United v. Fed. Election Comm’n, 558 U.S.

310, 371 (2010) (reasoning that transparency in campaign finance “enables the

electorate to make informed decisions and give proper weight to different speakers

and messages”); Nat’l Org. for Marriage, Inc. v. McKee, 669 F.3d 34, 39-41 (1st

Cir. 2012), cert. denied, 133 S. Ct. 163 (2012) (holding that 21-A M.R.S. § 1056-B

survives exacting scrutiny “because its modest disclosure and reporting

requirements are substantially related to Maine’s interest in disseminating

information about political funding to the electorate” (quotation marks omitted));

Perry v. Schwarzenegger, 591 F.3d 1147, 1159-63 (9th Cir. 2010) (describing the

4

At oral argument, it became clear that many of the records that the Commission subpoenaed have

already been provided, either through this litigation or through parallel litigation in the federal courts.

5

showing required to demonstrate a prima facie case of chill to the First

Amendment freedom of association).

The entry is:

Judgment affirmed.

On the briefs:

Stephen C. Whiting, Esq., The Whiting Law Firm, Portland, and Kaylan L.

Phillips, Esq., ActRight Legal Foundation, Plainfield, Indiana, for appellants

The National Organization for Marriage, Stand for Marriage Maine PAC,

and Brian Brown

William J. Schneider, Attorney General, and Phyllis Gardiner and Thomas

A. Knowlton, Asst. Attys. Gen., for appellee Commission on Governmental

Ethics and Election Practices

At oral argument:

Kaylan L. Phillips, Esq., for appellants The National Organization for

Marriage, Stand for Marriage Maine PAC, and Brian Brown

Phyllis Gardiner, Asst. Atty. Gen., for appellee Commission on

Governmental Ethics and Election Practices

Kennebec County Superior Court docket number AP-10-12

FOR CLERK REFERENCE ONLY

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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