Petition for Writ of Certiorari — Hart v. Gwadosky

s

Court, U.

FILED

“ «9B «B76 0cT2 31098

No. QFFICE OF THE CLERK

In The

October Term, 1998

STEPHANIE HART, et al.

Petitioners,

VS.

DANIEL GWADOSKY

Respondent.

On Petition for a Writ of Certiorari to the Maine

Supreme Judicial Court

PETITION FOR A WRIT OF CERTIORARI

James T. Kilbreth

Counsel of Record

Christopher B. McLaughlin

VERRILL & DANA, LLP

Attorneys for Petitioner

One Portland Square

P.O. Box 586

Portland, ME 04112-0586

(207) 774-4000

II.

i

QUESTIONS PRESENTED

Does the requirement that persons who

circulate petitions in support of a citizen’s

initiative petition be registered to vote in the

State of Maine unreasonably restrict the

political speech of the petition’s sponsors in

violation of the First Amendment of the

United States Constitution?

Does the requirement that persons who

circulate petitions in support of a citizen’s

initiative petition be legal residents of the State

of Maine unreasonably restrict the political

speech of the petition’s sponsors in violation

of the First Amendment of the United States

Constitution?

il

LIST OF PARTIES

Pursuant to Rule 14.1(b) of the Supreme

Court Rules, the parties to the proceedings below

whose judgment is sought to be reviewed are:

Stephanie Hart and Mainers for Medical Rights,

Plaintiffs/Petitioners

Daniel Gwadosky, in his capacity of Secretary of

State for the State of Maine,

Defendant/Respondent

iil

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ............. a

LIST GP PARTIES occ cree c ces ecenass il

TABLE OF CONTENTS ...........--.+---: ili

TABLE OF CITATIONS ..............+.--. Vv

OPINIONS BELOW .......cccccececcces: l

STATEMENT OF JURISDICTION .......... l

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ........... 2

STATEMENT OF THE CASE .............. 4

FACTUAL AND PROCEDURAL

PRAM ARUPUOD so nc tee cccccccccasss 7

REASONS FOR GRANTING THE WRIT ... 14

I. THE COURT BELOW’S DECISION

UPHOLDING THE REQUIREMENT

THAT PERSONS WHO CIRCULATE

A CITIZEN’S INITIATIVE PETITION

MUST BE REGISTERED VOTERS

UNREASONABLY RESTRICTS THE

“CORE POLITICAL SPEECH” OF

THE PETITION’S SPONSORS AND

iV

CONFLICTS WITH THE DECISIONS

OF TWO UNITED STATES COURTS

OP APRUD sr ecck es vee este ei acs 14

Il. THE REQUIREMENT THAT

PERSONS WHO CIRCULATE

CITIZEN’S INITIATIVE PETITIONS

BE LEGAL RESIDENTS OF THE _—

STATE OF MAINE

UNCONSTITUTIONALLY

RESTRICTS THE SPONSOR’S

Pgh Pug ty.) o , See enariea 26

CH so kl ok ee vole a kas eet 30

Vv

TABLE OF CITATIONS

Page

CASES

American Const. L. Foundation, Inc., et al.

v. Meyer, et al., 120 F.3d 1092

(10th Cir. 1997), cert. asap

Buckley v

Foundation, Inc., 118 S. & 1033

el and cert. denied, American

_ Foundati _v. Buckl

rig S. Ce 1045 C1998)... oe ee 16, 19

Bernbeck v. Moore, 126 F.3d 1114

(8th Cir. 1997) .......------+- 15, 19, 24

First National Bank of Boston v. Bellotti,

435 U.S. 765 C(A9TS) |. 0 ee cee eee 12

Meyer v. Grant, 486 U.S. 414 (1988) ... 17, 18, 23

Murphy v. Hunt, 455 U.S. 478 es bie ee 12

Term Limits Leadership, Inc. v. Clark,

984 F. Supp. 470 (S.D. Miss. 1997) .... 28

STATUTES

SEGA I oie 21

vi

SA IRD A NE i ce 21

Muh ME 33 o> 5 ee 21

ee ee Weer rer rene e 23

2A MRE A es ce 1

Me. Const. Art. 4, Pt. 3, §20 ............. a

APPENDIX

Page

Appendix A - Opinion of the Maine Supreme

Judicial Court, Dated July 28,1998 .......... la

Appendix B - Order of the Kennebec County

Superior Court, Dated May 15, 1998 ........ 16a

Appendix C - Order of the Kennebec County

Superior Court, Dated June 29,1998 ........ 42a

l

Petitioners respectfully petition for a writ of

certiorari to review the judgment of the Maine

Supreme Judicial court entered in the above-entitled

proceeding on July 28, 1998.

OPINIONS BELOW

The opinion of the Maine Supreme Judicial

Court, dated July 28, 1998, is reported at 1998 Me.

189. A copy is reproduced as Appendix A. The

unreported order and decision of the Maine Superior

Court, Kennebec County (Kravchuk, J.), dated May

15, 1998, is reproduced as Appendix B. Justice

Kravchuk’s July 1, 1998, unreported order affirming

her earlier order is reproduced as Appendix C.

STATEMENT OF JURISDICTION

Petitioners invoke the jurisdiction of this

Court under 28 U.S.C. § 1257 and seek review of a

2

judgment of the Maine Supreme Judicial Court

entered on July 28, 1998.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The constitutional and statutory provisions

implicated by this lawsuit are as follows:

First Amendment

Congress shall make no law respecting

an establishment of religion, or

prohibiting the free exercise thereof; or

abridging the freedom of speech, or the

press; or the right of the people

peaceably to assemble, and to petition

the government for a redress of

grievances.

42 U.S.C. § 1983

Every person who, under color of any

statute, ordinance, regulation, custom,

or usage, of any state or territory or the

District of Columbia, subjects, or causes

to be subjected, any citizen of the

United States or other person within the

jurisdiction thereof to the deprivation of

any rights, privileges, or immunities

secured by the Constitution and laws

shall be liable to the party injured in an

3

action at law, suit in equity or other

proper proceeding for redress. For the

purposes of this section an act of

Congress applicable exclusively to the

District of Columbia shall be considered

to be a statute of the District of

Columbia.

21-A M.R.S.A. § 903-A

Petitions issued under this chapter may

be circulated by any registered voter.

Maine Constitution, Art. 4, § 20 (in part)

_.. “circulator” means a person who

solicits signatures for written petitions,

and who must be a resident of this State

and whose name must appear on the

voting list of the city, town or plantation

of the circulator’s residence as qualified

to vote for Governor.

Petitioners raised federal questions regarding

the constitutionality of 21-A M.R.S.A. 903-A and

the Maine Constitution, Art. 4, § 20 at the outset of

the proceedings. The decisions of the Maine

Superior Court (Appendices B and C) and the Maine

Supreme Judicial Court (Appendix A) clearly refer

4

to the federal questions raised by Petitioners and

demonstrate that the federal questions were timely

and properly raised by Petitioners.

STATEMENT OF THE CASE

Petitioners Stephanie Hart and Mainers For

Medical Rights ask the Court to strike down two

state requirements that unconstitutionally limit the

methods by which a Maine registered voter and

Maine resident such as Ms. Hart may proinote

political speech and collect signatures in support of a

citizen’s initiative petition. Although the state may

have a legitimate interest in allowing only Maine

residents to sponsor legislation through the citizen’s

initiative process, the state cannot justify laws that

prohibit a Maine voter from enlisting non-residents

or non-voters to promote political discourse

regarding proposed legislation through the

5

circulation of an initiative petition. This Court has

struck down similar restrictions on political speech

after applying strict scrutiny to the justifications

offered by the different states. Two United States

courts of appeals have struck down as

unconstitutional voter registration requirements

identical to those challenged by Petitioners.

The Secretary of State’s arguments justifying

the restrictions at issue ring particularly hollow in

light of the absence of similar restrictions in

analogous areas of the state legislative and electoral

process. Maine does not prohibit non-residents or

non-registered voters from working as lobbyists or

from circulating nominating petitions for aspiring

political candidates. If the state truly has a

compelling interest in preventing non-residents or

non-voters from participation in the legislative

6

process, then restrictions on non-residents and non-

voters must be enforced across the board. Because

they are not, the requirements that persons who

circulate citizen’s initiative petitions be both

registered voters and residents cannot pass

constitutional muster.

Petitioners do not argue that non-residents

should be permitted to sponsor legislation that cou!d

become the law of the state. A resident and

registered voter such as Ms. Hart, however, must be

permitted to exercise her First Amendment right to

spread her political message and garner support for

her proposed legislation without unreasonable

restrictions. The laws challenged by Petitioners

must be struck down to protect the constitutional

rights of all Maine voters who desire to sponsor

legislation through the citizen’s initiative process.

2

Fs

*

5

FACTUAL AND PROCEDURAL

BACKGROUND

The facts of this matter are not in dispute.

The right to submit proposed legislation to Maine

voters through the use of a citizen’s initiative

petition is created by 21-A M.R.S.A. §§ 901 et seq.

and the Maine Constitution, Article IV, Part Third,

§ 18. A sponsor must first submit the proposed

legislation to the Secretary of State of Maine for

review to determine that it conforms to certain

drafting requirements. After approval by the

Secretary of State, the sponsor must collect a certain

number of signatures (ten percent of the votes cast

in the most recent gubernatorial election) from

Maine registered voters in order to qualify the

petition for the ballot. Signatures collected in

support of a citizen’s initiative petition are reviewed

first by the local registrars and then again by the

8

Secretary of State. Once the Secretary of State

determines that the sponsor has submitted a

sufficient number of valid signatures, the proposed

legislation is submitted to the state legislature. If the

state legislature declines to enact the proposed

legislation in its unamended form, it is placed on the

ballot in the next general election for approval by the

electorate.

Beginning in late November of 1997,

Petitioners drganized a drive to collect and submit

petitions to the Secretary of State of Maine Daniel

Gwadosky (the "Secretary") containing numerous

certified signatures in support of the citizen’s

initiative petition entitled, "AN ACT to Permit the

Medical Use of Marijuana." The Secretary initially

rejected the initiative petition on February 8, 1998,

because Petitioner’s failed to submit the required

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9

number of signatures in support of their petition. In

making his initial determination, the Secretary

refused to consider over 3,200 signatures submitted

by Petitioners to the City of Portland before the

constitutional deadline but not certified by the City

of Portland in a timely fashion. Petitioners were

forced to obtain an injunction from the Kennebec

County Superior Court ordering that the City of

Portland certify immediately the 3,200 signatures

and that the Secretary credit Petitioners with all of

the signatures so certified by the City.

On March 31, 1998, the Secretary announced

that Petitioners’ citizen's initiative would not be

forwarded to the Maine Legislature or placed on the

November 1998 ballot because Petitioners failed to

submit the required number of signatures, even

counting the belatedly certified signatures. The

10

Secretary rejected 4,347 signatures submitted by

Petitioners because these signatures were collected

by persons not registered to vote in Maine. An

additional 1,033 signatures were initially reyected

because they were collected by persons who

allegedly were not Maine residents. The number of

signatures rejected on the basis of the circulators’

residency was subsequently reduced to 347

signatures after the Superior Court required the

Secretary to reopen his residency investigation.

(See Secretary’s Decision Dated March 31, 1998,

Appendix to Briefs (submitted to Maine Supreme

Judicial Court), Tab 2, p. 2). If these signatures had

been accepted (or are accepted on some later date),

Petitioners would (or will) have submitted a

sufficient number of signatures to qualify their

Citizen’s Initiative Petition to be forwarded to the

3

4

4

3

4

-

11

Maine State Legislature and to be placed on the

general ballot in either 1998 or 1999.

Pursuant to 21-A M.R.S.A. §905, Petitioners

appealed the Secretary’s decision to the Kennebec

County Superior Court on April 7, 1998. In their

appeal, Petitioners challenged the constitutionality of

the requirements that persons who collect signatures

in support of a citizen’s initiative ("circulators") be

Maine residents and registered voters. Petitioners

also challenged the Secretary's factual decision that

five of the circulators were not legal residents of the

state. If Petitioners had prevailed on these

challenges, they would have submitted enough valid

signatures to qualify their initiative for the

November 1998 ballot.’

' Petitioners are aware that the Court will not have the

opportunity to award relief to Petitioners prior to the

November 1998 election. Petitioners’ claims are not moot,

however, for two reasons. First, if Petitioners were to prevail

12 |

After an evidentiary hearing before the

Superior Court relating to the factual challenge

regarding the residency status of five of the

circulators, and subsequent briefing on Petitioners’

constitutional challenges, the court issued an order,

dated May 15, 1998, rejecting Petitioners’

constitutional challenges to the residency and voter

on either or both of their constitutional challenges, any

signatures unconstitutionally rejected by the Secretary would

citizen’s initiative for the November 1999 ballot or reduce the

number of additional signatures that they would need to

collect to qualify for that ballot. Second, the First

Amendment violations complained of by Petitioners fall

squarely within the “capable of repetition but avoiding

review” doctrine. As explained by the Court in Murphy y.

Hunt, 455 U.S. 478, 482 (1982), a claim is not moot if there

is a “reasonable expectation or a demonstrated probability

that the same controversy will recur.” Clearly that is the case

with any challenge to Maine's citizen's initiative laws: by the

time a particular challenge is resolved in court, the November

elections will have already occurred and any relief will be too

late to place the petition on the ballot. Lacking action by the

Court, Petitioners will face the same First Amendment harm

when they attempt to place their petition on the November

1999 ballot. See

First National Bank of Boston v. Bellotti,

435 U.S. 765, 774 (1978 (applying “capable of repetition, but

avoiding review” doctrine to corporation's constitutional

13

registration requirements and remanding the

residency determination for the five allegedly non-

resident circulators back to the Secretary for

additional investigation. (See Appendix B, Decision

and Order of the Superior Court, Kennebec County,

Dated May 15, 1998.) Petitioners abandoned their

appeal of the factual decisions made by the Secretary

regarding the residency status of the circulators

following additional investigation into these

questions by the Secretary.

Pursuant to 21-A M.R.S.A. §905, Petitioners

appealed the order of the Kennebec County Superior

Court to the Maine Supreme Judicial court, again

challenging the constitutionality of the requirements

that circulators be registered voters and legal

residents of Maine. On July 28, 1998, the Maine

Supreme Judicial Court rejected Petitioners’

14

constitutional challenges and affirmed the judgment

entered below. (See Appendix A, Decision of the

Maine Supreme Judicial Court, Dated July 28,

hi Nn att AE AEE CEA A MA ESD

1998.)

REASONS FOR GRANTING THE WRIT

I. |THE COURT BELOW’S DECISION

UPHOLDING THE REQUIREMENT TH AT 1

PERSONS WHO CIRCULATE A ;

CITIZEN’S INITIATIVE PETITION MUST

BE REGISTERED VOTERS

UNREASONABLY RESTRICTS THE

“CORE POLITICAL SPEECH” OF THE

PETITION’S SPONSORS AND

CONFLICTS WITH THE DECISIONS OF

TWO UNITED STATES COURTS OF

APPEALS.

By affirming the judgment rendered below by

the Superior Court, the Maine Supreme Judicial

Court upheld the constitutionality of the requirement

that persons who serve as circulators of a citizen’s

15

initiative be Maine registered voters.’ Identical

requirements enforced by Nebraska and Colorado

have been struck down as unconstitutional by the

United States Courts of Appeals for the Eighth and

Tenth Circuits, because such requirements

unreasonably restrict the political speech of the

petition’s sponsors. See Bernbeck v. Moore, 126

F.3d 1114, 1116 (8th Cir. 1997)(applying strict

scrutiny to strike down Nebraska registered-voter

requirement on First Amendment grounds),

' Although the Maine Supreme Judicial Court stated

that it did not rule on Petitioners’ voter registration challenge,

its decision of July 28, 1998, affirmed the May 15, 1998,

order and decision of the Maine Superior Court in all

respects. See Appendix A. The Maine Supreme Judicial

Court thereby affirmed the lower court’s ruling that it was

constitutional for the Secretary to reject the signatures of over

4,000 registered Maine voters that were collected by

circulators who were not registered to vote in Maine. As

discussed in Note 1, supra, the validity of these signatures

will! be crucial to Petitioner’s effort to place their citizen’s

initiative petition on next year’s ballot. Moreover, the

invalidity of the Maine Supreme Judicial Court’s ruling with

respect to the residency requirement, demonstrated in Part II

below, requires a review of this issue.

16

Ameri nst. L. Foundation, I v.

Meyer, et al., 120 F.3d 1092, 1100 (10th Cir. 1997),

cert. granted, Buckley v. American Const. L.

Foundation, Inc., 118 S. Ct. 1033 (1998), and cert.

denied, American Const. L. Foundation, Inc. v.

Buckley, 118 S. Ct. 1045 (1998)(applying strict

scrutiny to strike down Colorado registered-voter

requirement on First Amendment grounds).

The constitutional challenges raised by

Petitioners in this petition are identical to those

raised in American Const, L. Foundation, Inc.

(“ACLF”), for which the Court has granted

certiorari to review the decision of the Court of

Appeals for the Tenth Circuit. Petitioners

respectfully request that their petition for certiorari

be granted so that Petitioners’ constitutional

challenges may be resolved by the Court

<a

=

‘

17

concurrently with the constitutional challenges

raised in the Tenth Circuit case.

Both the Eighth and Tenth Circuits struck

down registered-voter requirements to protect the

First Amendment right of the sponsor of a citizen's

initiative petition to garner support for and promote

political discussion about his or her proposed

legislation. Bernbeck and ACLF rely on a

unanimous 1988 opinion of this Court, Meyer v.

Grant, 486 U.S. 414 (1988), which held that

restrictions on the method of distributing citizen’s

initiative petitions must satisfy “strict scrutiny” to

pass constitutional muster. Meyer explicitly stated

that the right to circulate citizen’s initiative petitions

and encourage and participate in related political

discussion is a right “at the core of our electoral

process and of the First Amendment freedoms, an

18

area of public policy where protection of robust

political discussion is at its zenith.” Meyer, 486 U.S.

at 425 (citations omitted).

Although Meyer dealt with a statute that

prohibited the payment of circulators, both Bernbeck

and ACLF involved constitutional challenges to

statutes that were identical to the Maine statutory

and constitutional provisions chalienged by

Petitioners. As the Court of Appeals for the Eighth

Circuit observed,

The concerns raised by the prohibition

of paid circulators in Meyer are identical

to the effect of the voter-registration

requirement on the initiative process in

the present case. In both instances, the

laws "limit the number of voices who

will convey the appellees message and

the hours they can speak and, therefore,

limit the size of the audience they can

reach." Moreover, the laws at issue in

both Meyer and the present case "make

it less likely that appellees will garner

the number of signatures necessary to

place the matter on the ballot, thus

SS eee

19

limiting their ability to make the matter

the focus of statewide discussion" . . .

The effect, therefore, of these [voter-

registration] statutes is a restriction of

the people's constitutional right to

express core political speech.

Bernbeck, 126 F.3d at 116 (citations omitted).

Similarly, the Court of Appeals for the Tenth Circuit

concluded that “exacting scrutiny" is the appropriate

level of review for a First Amendment equal

protection analysis of regulations limiting the

number of eligible circulators. ACLF, 120 F.3d at

1100.

As in Meyer, Bernbeck and ACLF, the State

cannot demonstrate that the circulator restrictions at

issue are narrowly tailored to support a compelling

government interest. The primary compelling

interest identified by the Secretary to support the

circulator restrictions challenged by Petitioners is the

need for the State “to restrict participation in the

eel

20

process of self-government to members of its own

political community.” Brief of Appellee to the Maine

Supreme Judicial Court, p. 9. Petitioners concede

that the State has a compelling interest in limiting

the ability to sponsor legislation, either as a member

of the state legislature or through the citizen’s

initiative process, to state residents. But the State

cannot demonstrate any compelling interest in

limiting the number of voices permitted to convey a

sponsor’s message by preventing him or her from

enlisting non-registered voters to circulate petitions

and promote political discourse.

Moreover, the state’s asserted compelling

interest -- “to restrict participation in the process of

self-government to members of its own political

community” -- applies with equal force to lobbying

activities and to the election of legislators, yet no

bidiiiienicies sii

21

coriparable restrictions are imposed in those areas.

If Ms. Hart chose to lobby directly the State

legislature to pass a bill permitting the medical use

of marijuana, Ms. Hart would be free to hire as

many non-voters to lobby the legislature as she

could afford. See 3 M.R.S.A. 4311 et seq. (creating

reporting requirements for lobbyists but no residency

or voter registration requirements). If Ms. Hart

desired to run for the state legislature or to support

a particular candidate in order to sponsor a bill

permitting the medical use of marijuana, she would

be free to hire non-voters to circulate the required

nominating petitions. See 21-A M.R.S.A. §§335,

354 (creating no residency or voter registration

requirements for the circulation of nominating

petitions). It is only when Ms. Hart chooses to rely

on the citizen's initiative process that the State limits

22

the voices who may convey her message to

registered voters. The state’s failure to impose the

challenged restrictions in comparable areas of

political activity demonstrates a clear lack of the

compelling state interest necessary for the

restrictions to survive strict scrutiny.’

The additional state interest allegedly related

to the requirement of voter registration -- preventing

fraud and preserving the integrity of the electoral

process -- is aa:‘quately protected by other statutes

that criminalize fraudulent activity related to the

citizen’s initiative process and by individual review

° The state cannot discriminate against persons who

choose to express themselves politically through the use of the

citizen’s initiative process. The inconsistent application of

the restrictions challenged by Petitioners raises concerns that

the state favors other methods of political expression, perhaps

because of the content of some of the citizen's initiatives

sponsored in Maine in recent years. Similar First

Amendment “content” concerns were raised by Petitioners in

their successful court effort in February of 1998 to force the

City of Portland to comply with its constitutional mandate to

certify petition signatures in a timely fashion.

|

23

of signatures by municipalities and by the Secretary.

Maine enforces and publicizes criminal laws similar

to those identified in Meyer that deal expressly with

the danger that circulators might falsify petition

signatures or knowingly permit petition signatories

to commit fraud. See 21-A M.R:S.A. §904 (1)-

(4)(criminalizing false statements by circulators as to

the validity of petition signatures and the false

acknowledgment by a notary of a circulator's oath).

As the Supreme Court observed in Meyer, "These

provisions seem adequate to the task of minimizing

the risk of improper conduct in the circulation of a

petition." Meyer, 486 U.S. at 427. Moreover, the

Maine constitution requires that every signature

submitted in support of an initiative be verified by

the registrar of voters for the locality in which the

a

24

signatory resides.* In Bernbeck, the Court of

Appeals for the Eighth Circuit concluded that a

similar signature-by-signature verification process,

when combined with the other protections discussed

above, constituted "an adequate arsenal of

safeguards to protect against the danger of signature

fraud, and, accordingly, we conclude that the

requirement of voter registration is not narrowly-

tailored to serve the State's compelling interest."

126 F.3d at 1117. Finally, ifthe Secretary is not

convinced of the authenticity of a particular

signature, he has the authority to reject a signature

unilaterally without the need to locate and question

the circulator who obtained the signature. Several

* Me. Const. Art. 4, Pt. 3, §20 requires ihat "written

petitions for a direct initiative pursuant to Article IV, Part

Third, Section 18 must be submitted to the appropriate

officials of cities, towns or plantations for determination of

whether the petitioners are qualified voters . . . "

aaa aca

25

signatures submitted by Petitioners were, in fact,

rejected by the Secretary in this fashion. (See

Secretary’s Decision Dated March 31, 1998,

Appendix to Briefs (submitted to Maine Supreme

Judicial Court), Tab 2, p. 2). The ability of the

Secretary to reject any potentially fraudulent

signature without questioning circulators makes

clear that the registered voter requirement is not

necessary to prevent fraud.

As in Nebraska and Colorado, the state cannot

justify the unreasonable restrictions on Ms. Hart's

speech caused by the requirement that all circulators

be registered voters. Accordingly, the Court should

grant certiorari and overtum the decision of the

Maine Supreme Judicial Court.

26

ll. THE REQUIREMENT THAT PERSONS

WHO CIRCULATE CITIZEN’S

INITIATIVE PETITIONS BE LEGAL

RESIDENTS OF THE STATE OF MAINE

UNCONSTITUTIONALLY RESTRICTS

THE SPONSOR’S POLITICAL SPEECH.

For similar reasons, the prohibition against the

circulation of citizen’s initiative petitions by non-

residents also unreasonably restricts petitioner’s

First Amendment right to promote political speech

regarding proposed legislation. The Secretary

rejected the signatures from over 1,000 Maine

registered voters because the signatures were

collected by five circulators who initially were

determined by the Secretary not to be legal residents

of the state of Maine. (See Secretary’s Decision

Dated March 31, 1998, Appendix to Brefs

(submitted to Maine Supreme Judicial Court), Tab

2, p. 2). A court-ordered follow-up investigation by

the Secretary led him to conclude that two of these

27

circulators who had collected over 680 signatures

were, in fact, Maine residents. (See Secretary's

Revised Decision Dated June 23, 1998, Appendix to

Briefs (submitted to Maine Supreme Judicial Court),

Tab 4, p. 31). The Secretary’s Revised Decision

affirmed his earlier rejection of the 347 signatures

collected by the other three circulators in question,

based on the residency requirement for circulators.

The reasoning discussed in Meyer, Bernbeck,

and ACLF applies with equal force to a residency

requirement for circulators and renders such a

requirement unconstitutional. As with the voter-

registration requirement, the state’s need to limit the

ability to sponsor legislation to its own residents

cannot justify a requirement that persons who

circulate a citizen’s initiative petition be Maine

residents. In no other aspect of the legislative

iii

28

process does the state enforce similar restrictions on

political speech. The same arguments that

demonstrate the unconstitutionality of the voter-

registration intial also demonstrate the

unconstitutionality of the residency requirement.

Although this specific residency requirement

has not been reviewed by the Court, a United States

district court implicitly rejected circulator residency

under the strict scrutiny standard of review. In

Term Limits Leadership, Inc. v. Clark, 984 F. Supp.

470, 475 (S.D. Miss. 1997), the court struck down a

registered voter requirement for circulators in part

because the state could not demonstrate “actual

fraud or threat to citizen’s confidence in government

posed by out-of-state circulators.” (emphasis added)

As with the voter registration requirement, the

Secretary has made no showing that non-resident

29

circulators present a greater threat to the integrity of

the legislative process than do resident circulators,

much less a showing that the requirement furthers a

compelling state interest.

The residency requirement is intimately related

to the voter registration requirement that has been

challenged by Petitioners and that is the subject of a

writ to be reviewed by the Court this term.

Petitioners respectfully suggest that the residency

requirement for circulators at issue in this petition is

of equal national importance as are the voter

registration requirement and other restrictions at

issue in the ACLF appeal. Accordingly, Petitioners

request that the Court grant certiorari and overturn

the decision of the Maine Supreme Judicial Court

upholding the constitutionality of a residency

requirement for circulators.

30

NCLUSION

Requiring circulators of a citizen’s initiative

petition to be Maine residents and registered voters

unreasonably restricts the First Amendment right of

a petition’s sponsors to engage in political

discussion regarding the proposed legislation. The

Court has recognized the importance of these issues

in the writ of certiorari recently granted for a case

involving restrictions identical to one set of

requirements challenged by Petitioners. Petitioner’s

respectfully request that the Court grant a writ of

certiorari to review the decision of the Maine

Supreme Judicial Court.

Respectfully submitted,

James T. Kilbreth

Counsel of Record

Christopher B. McLaughlin

VERRILL & DANA, LLP

Attorneys for Petitioners

One Portland Square

P.O. Box 586

Portland, ME 04112-0586

(207) 774-4000

la

APPENDIX A - OPINION OF THE MAINE

SUPREME JUDICIAL COURT,

DATED JULY 28, 1998

MAINE SUPREME Reporter of Decisions

JUDICIAL COURT

Decision: 1998 ME 189

Docket: Ken-98-280

Argued: July 20, 1998

Decided: July 28, 1998

Panel: WATHEN, C.J., and ROBERTS,

CLIFFORD, RUDMAN. and SAUFLEY, JJ.

STEPHANIE HART

and

MAINERS FOR MEDICAL RIGHTS

¥.

SECRETARY OF STATE

WATHEN, C.J.

1. Stephanie Hart and Mainers for Medical

Rights (the proponents) challenge the

constitutionality of a provision of the Maine

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Constitution. They appeal from a judgment entered

in the Superior Court (Kennebec County, Kravchuk,

C.J) affirming the decisions of the Secretary of

State rejecting a direct initiative petition. On appeal,

they argue that the Secretary of State, by

invalidating signatures on the basis that the

circulators failed to comply with the constitutional

requirements of residency and voter registration,

violated their right to free speech protected by the

first and fourteenth amendments of the United States

Constitution. Because the number of signatures

invalidated on the basis of the circulators’ residence

alone would prevent the initiative from being placed

on the November 1998 ballot, we affirm the

judgment without ruling on the voter registration

requirement.

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2. The relevant facts may be briefly

summarized as follows: On October 24, 1997,

Stephanie Hart applied for approval of a direct

initiative petition entitled "An Act to Permit the

Medical Use of Marijuana." The Secretary of State

approved the form of the petition for circulation on

November 21, 1997, and the proponents had three

years to circulate and gather the 51,131 signatures

(10% of votes cast in last gubernatorial election)

required to place the initiative on the ballot. See 21-

AMRS.A. § 903-A(1) (Supp. 1997). The

proponents submitted petitions with a combined

total of 68,330 signatures. The Secretary of State

reviewed the petitions and invalidated a total of

22,507 signatures, leaving the proponents with

5,308 signatures less than the number required.

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3. | The proponents filed a complaint in the

Superior Court seeking a review of the Secretary of

State's decision pursuant to 21-A M.R.S.A. § 905

(1993 & Supp. 1997) and MLR. Civ. P. 80C. They

challenged the Secretary of State's action in

invalidating 1,033 signatures because the circulators

were not residents of the State of Maine and 4,347

signatures because the circulators did not meet voter

registration requirements.

4. Without the benefit of the guidance

provided by our recent decision in Palesky v.

Secretary of State, 1998 ME 103, A.2d 2

the court held two evidentiary hearings in April of

1998. After our decision in Palesky , the court

found the challenged provisions constitutional and

affirmed the Secretary of State's determination

concerning the 4,347 signatures collected by

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unregistered voters. With respect to the 1,033

signatures collected by alleged nonresident

circulators, the court vacated and remanded to the

Secretary of State for further factual findings.

5 After remand, the Secretary of State

issued an amended determination reducing the

number of signatures invalidated on the basis of the

circulators' residence from 1,033 to 347. The

Superior Court affirmed and the proponents, still

short by a total of 4,622 signatures, appealed.

Because the signatures invalidated on the basis of

the circulators’ residence leaves proponents short of

the required minimum, we address only that issue.

6. Proponents argue that Article IV, pt. 3,

§ 20 of the Maine Constitution (Supp. 1997)

requiring circulators to be residents violates their

fundamental rights to freedom of speech; freedom of

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expression and freedom of association afforded by

the first and fourteenth amendments to the United

States Constitution.’ The Secretary of State argues

that the requirement represents reasonable

regulation of the electoral process. We agree.

The first amendment provides in part:

Congress shall make no law ...

abridging the freedom of speech ... or

the right of the people peaceably to

assemble, and to petition the

Government for a redress of grievances.

U.S. Const. amend. I

The fourteenth amendment provides in part:

No State shall make or enforce any law

which shall abridge the privileges or

immunities of citizens of the United

States; nor shall any State deprive any

person of life, liberty, or property,

without due process of law; nor deny to

any person within its jurisdiction the

equal protection of the laws.

U.S. Const. amend. MV, § 1.

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7. The direct initiative process, the exercise

of the legislative power by the electors, is authorized

by the Maine Constitution in the following terms:

"The electors may propose to the Legislature for its

consideration any bill, resolve or resolution,

including bills to amend or repeal emergency

legislation but not an amendment of the State

Constitution, by written petition addressed to the

Legislature or to either branch thereof and filed in

the office of the Secretary of State..." Me. Const.

art. IV, pt. 3, § 18 (Supp. 1997) (emphasis added).

“Written petition” is defined as:

one or more petitions written or printed,

or partly written and partly printed, with

the original signatures of the petitioners

attached, verified as to the authenticity

of the signatures by the oath of the

circulator that all of the signatures to the

petition were made in the presence of

the circulator and that to the best of the

circulatory knowledge and belief each

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whose name it purports to be, and

accompanied by the certificate of the

official authorized by law to maintain

the voting list of the city, town or

plantation in which the petitioners reside

that their names appear on the voting list

of the city, town or plantation of the

official as qualified to vote for

Governor.

Me. Const. art. IV, pt. 3, § 20 (Supp. 1997)

(emphasis added). "Circulator" is defined as "a

person who solicits signatures for written petitions,

and who must be a resident of this State and whose

name must appear on the voting list of the city, town

or plantation of the circulator's residence as qualified

to vote for Governor." Me. Const. art. IV, pt. 3, §

20 (Supp. 1997) (emphasis added).

8. | The proponents rely heavily on Meyer v.

Grant, 486 U.S. 414, 108 S. Ct. 1886 (1988) and

American Const. Law Found., Inc. v. Meyer, 120

F.3d 1092 (10th Cir. 1997), cert. granted sub nom.

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Buckley v. American Const. Law Found., Inc., 118

S. Ct. 1033 (Feb. 23, 1998), and cert. denied, 118 S.

Ct. 1045 (Feb. 23, 1998). In Meyer v. Grant, the

United States Supreme Court declared

unconstitutional a provision in Colorado's citizen

initiative statute making it a criminal offense to pay

circulators. 486 U.S. at 428. The Colorado statute

also required circulators to be registered voters, but

the constitutionality of that provision was not before

the court and therefore was not addressed. In

American Const. Law Found., Inc. v. Meyer, the

10th Circuit, following the United States Supreme

Court's analysis, found, inter alia, that the Colorado

statute requiring circulators to be registered voters

was unconstitutional. Although this issue is

presently before the United States Supreme Court, it

has not yet been decided.

10a

9. The proponents argue that, although

neither Meyer v. Grant nor American Const. is

controlling, the same strict scrutiny applies and the

Secretary of State has not demonstrated a

compelling state interest to justify the requirement of

residence. We have acknowledged that, in general,

"(t]he initiative petition process involves political

discourse that is protected by the first amendment of

the federal constitution." Wyman v. Secretary of

State, 625 A.2d 307, 311 (Me. 1993) (citing Meyer

vy. Grant, 486 U.S. 414, 421, 108 S.Ct. 1886, 1891

(1988)). Specifically, "[t]he circulation of an

initiative petition of necessity involves both the

expression of a desire of political change and a

discussion of the merits of the proposed change. . . .

Thus the circulation of a petition involves the type of

interactive communication concerning political

lla

change that is appropriately described as ‘core

political speech.”” Id. (quoting Meyer v. Grant, 486

US. at 421-22). “Although the right to invoke an

initiative is a state-created right, it does not follow

that the state is free to impose limitations on that

right without satisfying the dictates of the first

amendment.” Id, (citing Meyer v. Grant, 486 U.S.

; at 425). We find, however, that the requirement

does not impose the same burden on political

expression; and, further, that the State has

. demonstrated a compelling state interest in pressing

the integrity of the law-making process and that the

| provision is narrowly tailored to serve that interest.

10. Contrary to the proponents’ argument,

the restriction in Meyer is distinguishable from the

restriction in this case. Meyer involved a state

statute making paid circulation a criminal offense.

12a

Thus, the proponents were forced to rely on

volunteer circulators and were prohibited from

making any contribution to their expenses. The

Supreme Court found that the proponents’ political

expression was restricted in two ways:

First, it limits the number of voices who

will convey [proponents'] message and

the hours they can speak and, therefore,

limits the size of the audience they can

reach. Second, it makes it less likely

that [proponents] will garner the number

of signatures necessary to place the

matter on the ballot, thus limiting their

ability to make the matter the focus of

statewide discussion.

Meyer, 486 U.S. at 422-23 (footnotes omitted).

11. In this case, the requirement is that a

circulator be a Maine resident. Although technically

any restriction limits the "number of voices who will

convey the [proponents'] message," Meyer, 486 U.S.

at 422, it does not follow that requiring circulators

to be residents will limit the size of the audience the

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13a

proponents can reach or will make it less likely that

proponents "will garner the number of signatures

necessary to place the matter on the ballot." Meyer,

486 U.S. at 423.

12. In Meyer, the petitioners had only six

months to gather the necessary signatures and they

demonstrated a need to pay circulators in order to

obtain the necessary signatures within the allotted

time. Here, the petitioners had three years to gather

the necessary signatures (21-A M.R.S.A. § 903-A

(Supp. 1997)) and failed to demonstrate any

necessity for employing nonresidents in circulating

the petitions.

13. We find persuasive the State's

justification for the residency requirement in the

citizens' law-making process. Residence enhances

the integrity of the initiative process by ensuring that

14a

citizens initiatives are brought by citizens of Maine.

Because the circulators are the persons who verify

that the signature and residence of petitioners are

accurate, the residency requirement provides the

State with jurisdiction over the circulators and

makes the circulators easier to locate if there is a

question as to the validity of the signatures

collected. Thus, any interference with proponents’

right to unfettered political expression is justified by

the State's compelling state interest in protecting the

integrity of the initiative process, and the residency

requirement set forth in the Maine Constitution is

narrowly tailored to serve that interest.

The entry is:

Judgment affirmed.

eth IOS BL als Pn ae RS

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Attorneys for plaintiffs:

Christopher B. McLaughlin, Esq., (orally)

James T. Kilbreth, Esq.

William C. Knowles, Esq.

Verrill & Dana, LLP

P 0 Box 586

Portland, ME 04112-0586

Attorneys for defendant:

Andrew Ketterer, Attorney General

Andrew Hagler, Asst. Atty. Gen., (orally)

Phyllis Gardiner, Asst. Atty. Gen.

6 State House Station

Augusta, ME 04333-0006

16a

APPENDIX B - ORDER OF THE KENNEBEC

COUNTY SUPERIOR COURT,

DATED MAY 15, 1998

STATE OF MAINE SUPERIOR COURT

KENNEBEC, ss. DOCKET NO. AP-98-30

STEPHANIE HART and )

MAINERS FOR MEDICAL )

RIGHTS, )

)

Plaintiffs )

)

Vv. ) ORDER

)

DANIEL A. GWADOSKY, )

in his capacity as Secretary )

of State for the State of )

Maine, )

)

Defendant )

This matter is before the Court on Petitioners'

M. R. Civ. P. 80C appeal from Respondent's finding

that they had failed to gather a sufficient number of

valid signatures to place initiated legislation

permitting the medical use of marijuana on the ballot

17a

in 1998. This appeal is brought pursuant to 21-A

M.R.S.A. 905(2).

Petitioners challenge on federal grounds the

constitutionality of Maine's constitutional

requirements that circulators of citizens’ initiative

petitions be residents and registered voters of this

State. They also contend that the Secretary of State

erred factually in finding five of the circulators to be

nonresidents. A total of 5,380 signatures were

invalidated on the basis that the circulators were not

residents and/or registered voters. Of that number

4,347 signatures were invalidated either because the

circulators collected signatures prior to becoming

registered to vote in the State of Maine or because

the circulators were not registered to vote at all in

the State of Maine. The remaining 1,033 contested

signatures were invalidated because the circulators

18a

were not residents of the State of Maine. Petitioners

need to regain validation of these signatures in order

to have their question placed on the ballot in

November 1998.

IL. RESIDENCY REQUIREMENT

This Court will first consider the issue of

whether Maine's residency requirement is

constitutional under the free speech guarantees of

the First and Fourteenth Amendments of the U.S.

Constitution.

Several U.S. Supreme Court and federal court

cases have dealt with issues concerning eligibility

restrictions on circulators of citizens’ initiative

petitions. The U.S. Supreme Court has held that the

communication engaged in by circulators is "core

political speech," and that the importance of First

Amendment protections is "at its zenith" with regard

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to this speech. Meyer v. Grant, 486 U.S. 414, 421,

425 (1988). Because core political speech was

implicated in Meyer, the Court held that the

statutory limitation on circulators in that case was

subject to strict scrutiny. Id. at 420. Under a strict

scrutiny analysis, this Court must determine whether

or not the burden placed on Petitioners’ speech is

narrowly tailored to a compelling state interest.’

2 ‘The constitutional analysis employed in the various

cases concerning free speech challenges to restrictions on

circulators and/or on election regulations appears to this

Court to be inconsistent. As Petitioners have relied on

cases utilizing different methods of analysis, this Court

has found it difficult to discern a step-by-step process to

follow and feels compelled to point out the discrepancies

in the case law.

The Meyer Court did not address whether or not

the extent to which a restriction burdens core political

speech affects the level of scrutiny to be applied. The

Court simply stated that the limitation in that case

required strict scrutiny. This Court notes that, deriving a

guideline from the facts in Meyer, limiting potential

circulators to volunteers by prohibiting the payment of

circulators translates into a substantial limitation on the

ability of proponents of a measure to find circulators.

As will be pointed out later in this opinion, other

courts have first measured the burden on speech in order

j

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In Meyer, authority heavily relied upon by

Petitioners, the state of Colorado statutorily

prohibited the use of paid circulators. The Court

found that the prohibition limited political speech in

two ways:

[flirst it limits the number of voices who

will convey appellees’ message and the

hours they can speak and, therefore,

limits the size of the audience they can

reach. Second, it makes it less likely

that appellees will garner the number of

signatures necessary to place the matter

on the ballot, thus limiting their ability to

make the matter the focus of statewide

discussion.

Id. at 422. As is the present case, Colorado also

required that circulators be registered voters. Id. at

to determine if strict or less exacting scrutiny applies.

However, this Court would assum. .or purposes of

comparing a residency requirement to no residency

requirement as advocated by Petitioners, that the burden

placed on speech by a residency requirement is at least as

substantial as the burden in Meyer. Therefore, this Court

will apply strict scrutiny in that it will require that

Respondents prove that a compelling state interest exists.

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417. No separate residency requirement was

mentioned. The Meyer Court never reached the

issues of voter registration or residency. Thus, the

holding in Meyer provides no direct guidance with

regard to the residency restriction being challenged

in this case and whether such a requirement for

circulators is narrowly tailored to a compelling state

interest.

In addition, Respondents correctly point out

that Petitioners have not cited any case law which

holds that a residency requirement unconstitutionally

restricts protected speech. In fact, one case relied

on by Petitioners strongly suggests that a residency

requirement would be constitutional. American

Constitutional Law Foundation v. Meyer, 120 F.3d

1092, 1100 (10th Cir. 1997) (finding that the state's

interest in ensuring that circulators are residents

SS

————

22a

could be more precisely achieved by imposing a

residency requirement instead of a voter-registration

requirement).

By definition a residency requirement restricts

the number of potential circulators to the number of

residents within the State. Cases which have

rejected restrictions on circulators have consistently

done so on the theory that the number of voices

conveying the message would be limited and it

would be less likely that the requisite number of

signatures would be garnered. In essence, the only

way a residency requirement can violate Petitioners'

freedom of speech is if the potential group of

circulators is the entire population of the planet.

Then the number of voices conveying the message

would be limited and it may be marginally less likely

that the requisite number of signatures would be

Gis linet pret |

23a

garnered. However, if the state has a compelling

interest in limiting participation in the referendum

process to residents, then obviously a residency

requirement places no unconstitutional burden on

speech. Thus, the issue becomes whether residency

for circulators is a compelling state interest sufficient

to justify the imposition of a residency requirement

in a State's constitution.

The Maine Constitution provides that, "the

electors may propose to the Legislature for its

consideration any bill . . . [and] any measure thus

proposed by electors . . . shall be submitted to the

electors." Art. 4. pt. 3, § 18. "Electors" means the

electors of the State qualified to vote for governor.

Id. at § 20. "Circulator" means a person who

solicits signatures for written petitions, and who

must be a resident of this State and whose name

24a

must appear on the voting list of his town. Id. The

Maine Constitution clearly intended to ensure that

the direct initiative process was reserved for Maine

residents. No other case offered by either party

deals with a state's constitutionally mandated

residency requirement.

Maine is not obligated to afford its citizens an

initiative procedure. See Meyer, 486 U.S. at 420.

Surely, by choosing to do so in our Constitution, the

State is free to constitutiv<sily limit participation in

that process to its own citizens, thus "citizens'

initiative." In the general area of election law the

U.S. Supreme Court has "repeatedly upheld

reasonable, politically neutral regulations that have

the effect of channeling expressive activities at the

polls." Burdick v. Takushi, 504 U.S. 428, 119

L.Ed.2d 245, 112 S.Ct. 2059 (1992). It is

25a

incomprehensible to imagine that states can be

afforded wide latitude in regulating the election of

their legislators and statewide officers, but they

cannot impose a constitutional requirement that

participants in "citizens' initiative" procedure be

citizens of the state.

The 10th Circuit American Constitutional Law

Foundation case, also relied upon heavily by

Petitioners, noted that the "petition process is a

ballot access vehicle, as well as an avenue for

political expression. " 120 F.3d at 1097. The

Circuit Court further noted that to read Meyer as

prohibiting any regulated access to the ballot would

conflict with the general rule that states have the

power to regulate their elections. As previously

stated, in Mever the potential pool of circulators was

limited to Colorado residents only by virtue of

26a

having a voter-registration requirement. In

American ( ~onstitutional Law Foundation, the court

stated, "[e]ven if we assume the state's potentially

compelling interest in preserving the integrity of its

elections requires all circulators to be residents, a

question we need not decide, the registration

requirement is not narrowly tailored." 120 F.3d at

1100. The court acknowledged a potential

compelling interest in residency based merely on

Colorado's registration requirement. A much

stronger argument supporting a compelling interest

in residency is present in this case where a separate,

constitutional, residency requirement exists.

Furthermore, the case at hand can be

distinguished from Bernbeck v. Moore, 126 F.3d

1114, 1117 (8th Cir. 1997) (finding a voter-

registration requirement was not narrowly tailored

27a

and was unconstitutional), in which the court noted,

"the Nebraska Constitution gives the nght to

circulate petitions to the 'people,' without any

limitation on whether they are registered to vote or

residents of Nebraska. . .". The court then

acknowledged, as had the court in American Const.,

that even assuming that residency was a

compelling interest, the registration requirement

was not narrowly tailored. Id. Nebraska, unlike

Maine, did not choose to limit participation to its

own citizens.

Any state has a strong, often compelling,

interest in preserving the integrity of its electoral

system. American Const., 120 F.3d at 1099(citing

Timmons v, Twin Cities Area 7iew Party, 117 S.Ct.

1364, 1366 (1997)). By state constitutional

provision the citizens’ initiative has been made an

28a

integral part of Maine's electoral system. The State's

interest in preserving the integrity of its provided

process of direct democracy for its own citizens is a

compelling and fundamental state interest.

Accordingly, this Court finds that requiring

circulators to be residents of the State of Maine does

not impermissibly burden Petitioners' freedom of

speech.

Il. VOTER-REGISTRATION

REQUIREMENT

This Court must separately review the

constitutional requirement that circulators be

registered voters. At first glance, the case law

suggests that registration requirements do

impermissibly burden the protected speech at issue.

However, the fact that residency has been

determined above to be a compelling state interest,

and the fact that the reason for the residency

29a

requirement is to ensure that Maine residents are

responsible for bringing an issue directly to the

ballot, distinguish this case from others which have

struck down registration requirements.

The burden the registration requirement places

on Petitioners’ protected speech must be determined

in order to apply the proper level of scrutiny. In

determining the validity of an election regulation, the

Court in Timmons held:

regulations imposing severe burdens

must be narrowly tailored and advance a

compelling state interest. Lesser

burdens, however, trigger less exacting

review, and a State's important

regulatory interests will usually be

enough to justify reasonable,

nondiscriminatory restrictions.

30a

117 S.Ct. at 1366. This standard of review was

utilized in American Const. in reviewing the

registration requirement for circulators.?

Petitioners’ potential group of circulators is

comprised of the residents of Maine according to the

findings in Section I of this opinion. In American

Const., the court relied on Colorado's

acknowledgment that there were at least 400,000

qualified but unregistered voters in the state. Id. at

1100. Petitioners have not argued or presented any

evidence that Maine's registration requirement

severely limits or burdens the number of possible

* This standard of review which was not articulated

in Meyer, yet which was employed in American Const.,

demonstrates the perceived analytical difficulty referred

to in footnote 1. This Court recognizes that Timmons

deals with an election regulation and not a restriction on

circulators. However, as this standard was employed by

the Tenth Circuit in this context, and as Petitioners rely

on the Tenth Circuit case, this Court finds that it is an

applicable guideline for an analysis of this portion of the

case.

3la

circulators by demonstrating that there are a

substantial number of unregistered residents. On the

other hand, the State asserts that the estimated

voting population in Maine is 934,105 based on the

1990 census. In November, 1996, 953,368 persons

were registered to vote. The State explains that the

number of registered voters exceeds the number of

eligible voters because there is a delay in removing

people who move or pass away from the voting

rolls. [Respondent's Memorandum, p. 23]. There

has been no showing that the registration

requirement discriminates against a significant

portion of Maine residents nor has there been any

showing that the Maine voter registration

requirement was an impediment to Petitioners’

ability to obtain qualified circulators.

32a

Vdiihout some showing that the number of

unregistered Maine residents is substantial compared

to the number of residents eligible to vote, and

without some showing that Petitioners have been

limited in their ability to obtain registered residents

for purposes of circulating their petitions, this Court

must find that the voter-registration requirement

does not severely burden protected speech. In this

crucial respect the record in this case significantly

differs from the American Const. record. It follows

that the registration requirement is a reasonable

vegulatory measure and passes the "less exacting"

standard of scrutiny.

However, even if it is determined that strict

scrutiny applies, this Court finds that the

requirement is narrowly tailored to Maine's

compelling interest of ensuring that circulators are

33a

residerts. The evidentiary portion of this case

exemplifies the difficulty of determining one's

residency based on a person's intent to remain in the

state indefinitely. Registering to vote in the State of

Maine is a very simple and inexpensive task that can

be undertaken relatively quickly in the event that an

unregistered resident desires to be a circulator. Due

to the ease of registering to vote, the registration

requirement does not unreasonably burden

Petiticners' core political speech. As a narrowly

tailored regulatory device, it provides the State with

a quick and uniform procedure by which it can

ascertain circulators’ residence.

A registration requirement is much less

prohibitive than the ban on paid circulators in

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Meyer.‘ In addition, the arguments put forth by

states advocating restrictions, in Meyer and in other

federal court cases cited herein, regarding fraud and

the policing of the petition process are not the

compelling interests of the State in this case. Those

voter registration restrictions were found not to be

narrowly tailored because other methods of policing,

such as criminal prosecution, were available.

The compelling interest in this case is ensuring

that Maine residents will be responsible for bringing

an issue to a citizens' referendum. Ensuring that a

circulator is a resident is most easily accomplished

by requiring that the resident be a registered voter.

This Court cannot imagine how a democratic

* Contrary to Petitioners’ assertion that the Court in

Meyer explicitly stated that any limitation on political

expression is subject to strict scrutiny, the Court actually

stated that "this case," referring to the ban on paid

circulators, involved a limitation subject to strict scrutiny.

486 US. at 420.

35a

government could fashion a more narrowly tailored

nor less intrusive requirement for determining

residency. It ensures that, in the absence of fraud,

all parties, the State, the proponents of the measure,

and the potential circulators, know at the start of

the process that the circulators have met the

residency requirement.

Ii. FACTUAL DETERMINATIONS

OF RESIDENCY

The Law Court has recently decided a

question of first impression concerning the nature of

the review in an action appealing the findings of the

Secretary of State relating to the validity of petitions

for the direct initiative of legislation. Palesky v.

Secretary of State, 1998 ME 103 (May 8, 1998).

As this decision was issued subsequent to the two

hearings held in this case on April 15 and 24, 1998,

this Court finds that it is bound by Palesky.

36a

Accordingly, the agreement between the parties and

approved by this Court under which factual

determinations on residency would be issued

following a hearing allowing new evidence will not

control these proceedings.

Instead, Palesky requires this Court to act only

in an appellate capacity. Pursuant to M. R. Civ. P.

80C(e), Id. at 19, this Court is allowed to take

additional evidence, which occurred at a hearing

held on April 24, 1998. Although petitioners did not

technically comply with M. R. Civ. P. 80C(e), the

agreement of the parties and the Court's initial belief

that petitioners were entitled to a "trial" pursuant to

21-A M.R.S.A. § 905(2) (1993) excuses the

procedural defect and allows this Court to consider

the evidence for the purposes enumerated in 5

M.R.S.A. § 11006(1)(B) (1993). This Court finds

37a

that the additional evidence adduced at the hearing is

material to the issues presented in the petition for

review, and that it could not have been presented or

was erroneously disallowed in proceedings before

the agency. 5 M.R.S.A. § 11006(1)(B).

Separate from Petitioners’ request to present

additional evidence, they also urge this Court to

review the Secretary of State's decision based on the

agency record. The Secretary of State's decision

was based primarily on information received by a

detective with the Investigations Division of the

Department of the Attorney General, Richard

Fairfield, Jr. In light of the inaccuracies in Mr.

Fairfield's findings which surfaced at the evidentiary

hearing,° this Court does not find it necessary to

: The procedural predicament of the factual portion

of this case evidences the extreme difficulty that

determining residency without a voter registration

38a

requirement would present to the Secretary of State if the

requirement was struck down. For instance, the evidence

presented by Petitioners at the hearing showed the

inadequateness of the investigation relied on by the

Secretary of State in uncovering the circulators’ ties to

Maine. Testimony of circulators and family members

and/or friends of circulators is often necessary to make a

fair and accurate determination of whether or not an

individual intended to reside in Maine. Driver's licenses

are not determinative of residency, and it would be

discriminatory against non-licensed residents to determine

residency by such means. Likewise, a state identification

card is not indicative of residency because it can be

obtained by an out-of-stater for purposes of purchasing

alcohol. In addition, as the testimony of Rebecca Avrett

demonstrated, the place where one receives mail is not

always indicative of residency as people can have mail

sent to another address. Ms. Avrett had most of her

important papers sent to her father’s address in another

state for her convenience, yet she was nct residing in that

State.

In the absence of a voter registration requirement,

having the details of one's life investigated and/or

requiring proof of this nature to prove residency could be

very burdensome to residents who desire to be

circulators, to proponents of a measure who are trying to

ensure that their circulators are qualified, as well as to the

State of Maine. Registering to vote is a very simple

process with no associated costs which simply entails that

the resident complete a registration card. The card

requires that the registrant provide the minimum amount

of personal information identified in attached Exhibit A.

Petitioners cannot legitimately contend that requiring

residents to register to vote places the type of restrictions

on obtaining circulators that the ban on paying circulates

39a

reach a decision on this issue. More appropriately,

this matter is remanded for modifications of the

Secretary of State's findings in accordance with the

additional evidence presented.°

Based on the foregoing, entry will be:

The decision of the Secretary of State invalidating

4,347 signatures collected by unregistered voters is

AFFIRMED. The decision of the Secretary of

State invalidating 1,033 signatures because the

did in Meyer.

$ This Court notes that no evidence surfaced at the

hearing that any of the five circulators came to Maine for

the purpose of circulating petitions. Yet, Mr. Fairfield’s

affidavit purports this to be the case where it states that

"at least five circulators had no ties to the State of Maine

prior to coming to the State in order to circuiate

petitions in this initiative." (Fairfield Aff. 4 2). Where

the Secretary had no evidence that the company hiring

circulators encouraged these five individuals to come to

Maine, and given the evidence which surfaced at the

hearing regarding the individuals’ ties to this State, this

Court suggests that the Secretary's decision regarding

residency was made without a thorough investigation.

40a

circulators were not residents of the State of Maine

is VACATED and the matter is remanded to the

Secretary of State for further factual findings

consistent with the evidence adduced at the "trial"

before this Court and any additional evidence

introduced in proceedings before the agency. As to

the remaining counts of the complaint wherein

petitioners ask this Court to declare Me. Con. Art.

4, Pt. 3 § 20 unconstitutional, judgment is entered

for the respondent.

Dated: Friday, May 15, 1998

/s/

Margaret J. Kravchuk, Justice

Superior Court

4la

Attorneys for Petitioners:

James T. Kilbreth, Esq.

William C. Knowles, Esq.

Verrill & Dana, LLP

One Portland Square

P.O. Box 586

Portland, ME 04112

Attorneys for Respondent:

Andrew Ketterer, Attorney General

Phyllis Gardiner, Asst. Attorney General

Andrew S. Hagler, Asst. Attorney General

Six State House Station

Augusta, Maine 04333

42a

APPENDIX C - ORDER OF THE KENNEBEC

COUNTY SUPERIOR COURT,

DATED JUNE 29, 1998

STATE OF MAINE SUPERIOR COURT

KENNEBEC, ss. DOCKET NO. AP-98-30

STEPHANIE HART and __sS?)

MAINERS FOR MEDICAL )

RIGHTS, )

)

Plaintiffs )

)

¥, ) ORDER

) ON APPEAL

DANIEL A. GWADOSKY, )

in his capacity as Secretary )

of State for the State of )

Maine, )

)

Defendant )

Pursuant to the Order of this Court dated

May 15, 1998, the Secretary of State has issued an

amended determination of the validity of a petition

- for initiated legislation entitled "An Act to Permit

‘he Medical Use of Marijuana". Upon remand the

43a

Secretary of State was ordered to incorporate

additional evidence, including the testimony

presented at a hearing before this Court, and to

make further ‘actual findings regardine the residency

status of five petition circulators. On June 23, 1998,

the Secretary of State filed with this Court his

amended findings wherein he concluded that two of

the five challenged circulators were indeed residents

of Maine and the other three were nonresidents.

Pursuant to the Order of the Chief Justice of

the Supreme Judicial Court, Sitting as the Law

Court, dated May 28, 1998, staying the apyeal of

this Court's May 15th Order, the petitioners have an

opportunity to seek judicial review of the Secretary's

June 23rd amended findings. Pursuant to their

Motion for Judicial Review, dated June 25, 1998,

petitioners have sought such judicial review. Both

44a

the petitioners and the Secretary agree that further

oral argument or memoranda of law would appear

to be redundant as the issue regarding residency was

previously thoroughly briefed and argued.

Upon remand the Secretary of State

concluded that Rebecca Avrett, Devon Salisbury,

and Alfred Thompson were not residents of the

State of Maine at the time they circulated petitions.

In making his determination the Secretary relied

upon the factors relevant to a determination of

residency as set forth in 21-A M.R.S.A. § 112(1)

(Supp. 1997). The Secretary's decisions regarding

Devon Salisbury and Alfred Thompson are so clearly

supported by evidence in the record that they do not

merit comment. The decision concerning Rebecca

Avrett's residence is one about which reasonable

minds might differ, but the Secretary's determination

45a

is clearly based upon evidence in the record,

including "objective facts" which the Secretary gave

greater weight than the testimony of Ms. Avrett.

His decision to do so was not arbitrary, capricious,

nor lacking in evidentiary basis.

Based on the foregoing, entry will be:

The Secretary of State's decision dated June 23,

1998, amending paragraph 2(D) of the decision

issued on March 31, 1998, is AFFIRMED and 347

signatures are found to be invalid because the

circulators were not residents of the State of Maine.

Dated: June 29, 1998

/s/

JUSTICE

SUPERIOR COURT