Opposition Brief — Hart v. Gwadosky

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Supreme Court, U.S.

No. 98-676

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eee

OFFICE OF THE Cit

In The

Supreme Court of the United States

October Term, 1998

e

STEPHANIE HART, et al.,

Petitioners,

Vv.

DAN A. GWADOSKY,

Respondent.

— e en

On Petition For A Writ Of Certiorari

To The Maine Supreme Judicial Court

=) —

RESPONDENT'S BRIEF IN OPPOSITION

——————-—— -- § —— -

ANDREW KETTERER

Maine Attorney General

Paut STERN

Deputy Attorney General

Peter J. BRANN

State Solicitor

(Counsel of Record)

ANDREW S. HAGLER

PHYLLIS GARDINER

Assistant Attorneys General

Six State House Station

Augusta, Maine 04333

(207) 626-8800

Attorneys for Respondent

COCKIE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

RANE AE ASEE AE OE Cw 5 ins oO AES aw Raa a ii

RESPONDENT'S BRIEF IN OPPOSITION........... 1

CONSTITUTIONAL AND STATUTORY PROVI-

SNE A MRE EE eae ks ands Coen ee boii ik vies 5 1

PEPRR MTS GIR REE GBS so ao Sk soa hc 1

REASONS FOR DENYING THE WRIT............. 5

I. THE PETITIONERS’ CHALLENGE IS MOOT

AND IS OF NO RECURRING LEGAL SIGNIFI-

CANCE TO THE PETITIONERS ... 2505505 05. 5

Il. THE LAW COURT CORRECTLY REJECTED THE

PETITIONERS’ CHALLENGE ON GROUNDS

THAT DO NOT CONFLICT WITH OTHER

ORE i CE ERP ree Dates Se eh tee pee 8

il

TABLE OF AUTHORITIES

Page

CASES

American Constitutional Law Foundation, Inc. v.

Meyer, 120 F.3d 1092 (10th Cir. 1997), cert.

granted sub nom. Buckley v. American Constitu-

tional Law Foundation, Inc., 118 S. Ct. 1033

(1998), and cert. denied, 118 S. Ct. 1045 (1998)...8, 10

Bernbeck v. Moore, 126 F.3d 1114 (8th Cir. 1997)....... 8

Buckley v. American Constitutional Law Foundation,

No. 97-986 3c ice sak Sep ie ees eae oe eee 2, 8, 11

Farris v. Goss, 143 Me. 227, 60 A.2d 908 (1948)...... 10

Hart v. Secretary of State, 715 A.2d 169 (Me. 1998) ..... 1

Murphy v. Hunt, 455 U.S. 478 (2988). , ccsssduwvesceees 6

Palesky v. Secretary fe State, 711 A.2d 129 (Me.

1998) oa a ee 3, 7

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

470 (S.D. Miss. 2997) >> ss:c18; cen ceeseeeeav eines 9

CONSTITUTIONAL PROVISIONS AND STATUTES

Me. Rev. Stat. Ann. tit. 21-A, § 903-A (West Supp.

|.) PIE rece erect teen EN i Le 2

Me. Rev. Stat. Ann. tit. 21-A, § 905 (West 1993 &

Supp. BPRG) us cucky oivb cease a eee 1, 3, 7

Me, Const. art. EV, DE. 3). 280 is vn ceess ed aeaeunan i,2

Me. Const. art. TV, 96:5, 3 S00es «iiss ceveneaunensces 3

Me. Const. art. FV, pt: 3) © SO) ss cos ce cekas unease

Me. Const. art. TV, pt: 3, & as vc yne nes taceuepeeas 10

Me. Const. art. IV, pt. 3.3 22.5 0. soa eueraes Be

RE Ne erm

ot OA eon.

ill

TABLE OF AUTHORITIES - Continued

Page

1907 Me. Const. Resolves, ch. 121 (effective Janu-

ary 6, 1909) (codified as amended at Me. Const.

ee es ke Wy Oe OU hese case sure petatbchietsevcces.: 2

MISCELLANEOUS

R. Stern, E. Gressman, S. Shapiro & K. Geller,

Supreme Court Practice (7th ed. 1993).............. 10

RESPONDENT'S BRIEF IN OPPOSITION

The respondent, Dan A. Gwadosky, Maine’s Secre-

tary of State (“Secretary”), respectfully requests that the

Court deny the petition for a writ of certiorari seeking

review of the decision and judgment of the Maine

Supreme Judicial Court, sitting as the Law Court (“Law

Court”), issued on July 28, 1998, reproduced in the

Appendix to the Petition for a Writ of Certiorari (“Pet.

App.”) at Pet. App. 1a-15a, and reported in Hart v. Secre-

tary of State, 715 A.2d 169 (Me. 1998).

*

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

In addition to the constitutional and statutory provi-

sions cited by the petitioners, the following constitutional

and statutory provisions are implicated by this lawsuit

and are reproduced in the attached Respondent’s Appen-

dix (“Resp. App.”): Me. Const. art. IV, pt. 3, § 18 (Resp.

App. la-2a); Me. Const. art. IV, pt. 3, § 22 (Resp. App. 3a);

and Me. Rev. Stat. Ann. tit. 21-A, § 905 (West 1993 &

Supp. 1998) (Resp. App. 3a-5a).

¢

STATEMENT OF THE CASE

The petitioners, Stephanie Hart and Mainers for

Medical Rights, seek review of a decision that became

moot as a result of the November 1998 election, concern-

ing issues that the Law Court had not addressed previ-

ously in the 90 years that Maine has had citizen’s

initiatives. Because the conflict alleged by the petitioners

between the Law Court's decision and Buckley v. American

Constitutional Law Foundation, No. 97-930, is illusory, the

Court should not even hold this case pending the out-

come of Buckley to issue a decision that will have no

practical consequence to the parties.

In 1909, Maine amended its Constitution to provide

for a citizens’ initiative, whereby its citizens may initiate

and pass legislation. See 1907 Me. Const. Resolves, ch. 121

(effective January 6, 1909) (codified as amended at Me.

Const. art. IV, pt. 3, § 18; Resp. App. la-2a). The citizens’

initiative has become an ingrained feature of Maine’s

political landscape, with citizens’ initiatives appearing on

virtually every statewide ballot in the past 25 years. Last

year, the Law Court addressed for the first time a consti-

tutional challenge concerning the twin requirements that

petition circulators be Maine residents and be Maine

registered voters.

The petitioners are seeking to enact by citizens’ ini-

tiative a measure to legalize the use of marijuana for

medical purposes in Maine. On November 24, 1997, the

Secretary approved the form of the petition, which, under

then existing law, gave the petitioners three years, i.e.,

until November 24, 2000, to circulate their petitions and

submit the required number of signatures. See Me. Rev.

Stat. Ann. tit. 21-A, § 903-A (West Supp. 1998) (amended

by 1997 Me. Laws ch. 637 (reducing circulation period to

one year for subsequent citizens’ initiatives)).

By February 24, 1998, i.e., three months after the

Secretary approved their petition for circulation, the peti-

tioners submitted 68,330 signatures for the Secretary’s

review. Under Maine’s Constitution, in order to qualify a

sneha

citizens’ initiative for the ballot, the proponents must

submit valid signatures equivalent to “10% of the total

vote for Governor cast in the last gubernatorial election

preceding the filing of such petition.” Me. Const. art. IV,

pt. 3, § 18(2); Resp. App. la. If the measure is not adopted

without change by the Legislature, it is submitted to the

people as a ballot question at the next statewide election.

Me. Const. art. IV, pt. 3, § 18(3); Resp. App. 2a.

At the time the petitioners filed their petition, based

on the November 1994 gubernatorial election, the mini-

mum number of valid signatures necessary to qualify a

citizens’ initiative measure for the ballot was 51,131. The

Secretary found that 21,821 of the signatures submitted to

him were invalid, and, since the remaining 46,509 signa-

tures fell below the threshold of 51,131 valid signatures,

he declined to qualify the measure for the November 1998

ballot.

The petitioners then filed suit in Maine Superior

Court pursuant to Me. Rev. Stat. Ann. tit. 21-A, § 905

(West 1993 & Sunp. 1998); Resp. App. 3a-5a, challenging

both the factual and the legal bases of the Secretary’s

decision. Because the Law Court had not yet issued its

decision in Palesky v. Secretary of State, 711 A.2d 129 (Me.

1998), establishing the procedure for resolving factual

disputes concerning the validity of signatures in citizens’

initiatives, the Superior Court and the Secretary, on

remand, conducted further proceedings to resolve the

petitioners’ factual challenges. Pet. App. 4a-5a, 35a-39a.

Although these proceedings delayed the outcome of this

matter, they ultimately were inconsequential since the

petitioners abandoned their factual challenges on appeal

to the Law Court. See Appellants’ Brief at 5 n.1.

The petitioners challenged the constitutionality of the

requirement that the petition circulators be Maine resi-

dents, which had resulted in the invalidation of 347 sig-

natures, and the requirement that the petition circulators

be Maine registered voters, which had resulted in the

invalidation of 4,347 signatures. The Superior Court

rejected both challenges, Pet. App. 18a-35a, and, on

appeal to the Law Court, the petitioners conceded that

“Petitioners must strike down both the residency and the

voter registration requirements to qualify for the Novem-

ber 1998 ballot.” Appellants’ Brief at 5 n.1 (emphasis

added).

The Law Court reached only the issue of residency,

holding that this requirement did not offend the first

amendment. Pet. App. 5a-14a. The Court specifically

declined to reach petitioners’ challenge to the registration

requirement, noting that “[b]ecause the number of signa-

tures invalidated on the basis of the circulator’s residence

alone would prevent the initiative from being placed on

the November 1998 ballot, we affirm the judgment with-

out ruling on the voter registration requirement.” Pet.

App. 2a.

Less than two weeks after the petitioners filed their

Petition for a Writ of Certiorari (“Petition”), Maine held

its November 1998 gubernatorial election. Fewer persons

cast votes in that election than in the previous guber-

natorial election held in 1994. Accordingly, the minimum

number of petition signatures necessary to qualify an

initiative measure for the ballot is now 42,101, i.e., 9,030

less than the number of valid signatures previously

required, and, more importantly, 4,408 less than the

———————————E

number of valid signatures previously submitted by the

petitioners. Resp. App. 9a.

On November 24, 1998, the petitioners again submit-

ted their petition for the Secretary’s review. Resp. App.

6a-8a. The petitioners resubmitted the 46,509 signatures

that the Secretary had previously found to be valid, along

with new petitions containing an additional 1,024 signa-

tures. Resp. App. 9a. On December 23, 1998, the Secretary

issued his determination that, in light of the newer lower

threshold of 42,101 valid signatures, without even consid-

ering the signatures invalidated on the grounds of resi-

dency or registration, the petitioners had submitted

sufficient valid signatures to have the petitioners’ initia-

tive placed on the November 1999 ballot. Resp. App.

9a-1la. The petitioners, therefore, seek review of two

legal issues of no consequence to them, one of which was

never addressed by Maine’s highest court.

*

REASONS FOR DENYING THE WRIT

I. THE PETITIONERS’ CHALLENGE IS MOOT AND

IS OF NO RECURRING LEGAL SIGNIFICANCE

TO THE PETITIONERS.

Regardless of the outcome of the petitioners’ consti-

tutional challenges, the petitioners have now succeeded

in their stated aim to place their initiative on either the

November 1998 or the November 1999 ballot. See Appel-

lants’ Brief at 5; Petition at 11-12 n.1, 15 n.2. The peti-

tioners submitted 46,509 valid signatures by February 24,

1998, which was less than 10% of the ballots cast in the

November 1994 election, but more than 10% of the ballots

cast in the November 1998 election. The petitioners’ ini-

tiative therefore qualifies to be on the November 1999

ballot. The petitioners thus seek an advisory opinion from

the Court on the constitutionality of Maine’s require-

ments that circulators of citizens’ initiatives be Maine

residents aid be Maine registered voters.

The petitioners assert in passing that this case is not

moot for two reasons. Petition at 11-12 n.1. First, the

petitioners contend that if they prevail on either or both

of their constitutional challenges, it “would either qualify

Petitioners’ citizens’ initiative for the November 1999 bal-

lot or reduce the number of additional signatures that

they would need to collect to qualify for that ballot.”

Petition at 12 n.1. This argument, however, only under-

scores the mootness of this challenge since the peti-

tioners’ citizens’ initiative will now be on the November

1999 ballot without regard to the petitioners’ constitu-

tional challenges.

Second, the petitioners contend that this case “falls

squarely” within the “capable of repetition yet evading

review” exception to the mootness doctrine articulated in

Murphy v. Hunt, 455 U.S. 478 (1982). See Petition at 12 n.1.

The petitioners misquote the standard, which provides

that, to fall within the exception, “there must be a ‘rea-

sonable expectation’ or a ‘demonstrated probability’ that

the same controversy will recur involving the same com-

plaining party.” Murphy v. Hunt, 455 U.S. at 482 (empnasis

added to show portion excised by the petitioners). Since

the petitioners’ citizens’ initiative will be on the Novem-

ber 1999 ballot in light of the Secretary’s recent decision

on their resubmitted signatures, the petitioners are cer-

tainly incorrect when they argue that “[l]acking action by

————————

the Court, Petitioners will face the same First Amend-

ment harm when they attempt to place their petition on

the November 1999 ballot.” Petition at 12 n.1 (citation

omitted).

This also is not the sort of a dispute that is so evanes-

cent that it necessarily evades review by this Court.

Under both the Maine Constitution and Maine statutes,

the Secretary is required to review all petitions on an

expedited basis, and the courts are required to resoive all

judicial challenges on an expedited basis. See Me. Const.

art. IV, pt. 3, § 22 (Resp. App. 3a); Me. Rev. Stat. Ann. tit.

21-A, § 905 (West 1993 & Supp. 1998) (Resp. App. 3a-5a).

The petitioners filed their challenge on April 7, 1998, and,

even with the additional proceedings necessitated by

their ultimately abandoned factual challenges (and now

unnecessary in light of the Law Court’s decision in Pal-

esky v. Secretary of State, 711 A.2d 129 (Me. 1998)),

obtained a decision from Maine’s highest court on July

28, 1998. If these constitutional questions ever arise again,

it certainly is reasonable to believe that in light of these

expedited procedures, the complaining party could seek

and obtain review from the Court well in advance of an

election.

Furthermore, a citizens’ initiative can appear on the

ballot in any November statewide election. Me. Const. art

IV, pt. 3, § 18(3); Resp. App. 2a. This contrasts with a

candidate’s need to appear on the ballot in a particular

election for a public office that is filled only periodically.

Thus, if and when the Court reviews a live controversy

concerning the constitutionality of Maine’s residence and

voter registration requirements, it can provide effective

relief to the complaining party who seeks to place a

citizens’ initiative on the ballot. The Court need not

resolve these constitutional issues in the abstract at the

urging of a party for whom this controversy is of no

continuing consequence.

Il. THE LAW COURT CORRECTLY REJECTED THE

PETITIONERS’ CHALLENGE ON GROUNDS

THAT DO NOT CONFLICT WITH OTHER

COURTS.

The petitioners’ primary argument is that the Court

should grant review because the decision below conflicts

with decisions from the Eighth Circuit and the Tenth

Circuit invalidating voter registration requirements for

circulators of citizens’ initiatives. See Petition at 14-19

(citing Bernbeck v. Moore, 126 F.3d 1114 (8th Cir. 1997);

American Constitutional Law Foundation, Inc. v. Meyer, 120

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

American Constitutional Law Foundation, Inc., 118 S. Ct.

1033 (1998), and cert. denied, 118 S. Ct. 1045 (1998)). This

conflict is entirely illusory since the Law Court made

plain it was not ruling on the petitioners’ constitutional

challenge to the voter registration requirement: “Because

the number of signatures invalidated on the basis of the

circulator’s residence alone would prevent the initiative

from being placed on the November 1998 ballot, we

affirm the judgment without ruling on the voter registra-

tion requirement.” Pet. App. 2a.

The petitioners attempt to surmount this obstacle by

claiming in passing that although the Law Court

expressly stated it was not ruling on the voter registration

requirement, it nevertheless did so because it affirmed

the Superior Court’s “order and decision * * * in all

respects.” Petition at 15 n.2. This argument is belied by

the unequivocal language of the Law Court’s decision

quoted above.

Additionally, the Law Court did only what it was

asked to do by the petitioners. In the conclusion to their

brief in the Law Court, the petitioners only sought rever-

sal of the Secretary’s decision (not the Superior Court's

“order and decision”) declining to place their initiative

on the November 1998 ballot. See Appellants’ Brief at 21.

Furthermore, the petitioners virtually invited the Law

Court to consider only one of their constitutional chal-

lenges with their concession that “Petitioners must strike

down both the residency and the voter registration

requirements to qualify for the November 1998 ballot.”

Appellants’ Brief at 5 n.1 (emphasis added). The peti-

tioners should not be heard to complain about the Law

Court's refusal to reach their constitutional challenge to

the voter registration requirement, and the Law Court

should be taken at its word that it was unnecessary to do

so. There is no conflict between the decision below and

the Eighth ard Tenth Circuit decisions on the voter regis-

tration requirement.

The Law Court did determine that it was constitu-

tional to require that circulators of citizens’ initiatives be,

in fact, citizens of the State of Maine. Pet. App. 5a-14a.

The petitioners argue that this decision conflicts with a

district court’s implicit rejection of a residency require-

ment for circulators. See Petition at 28 (citing Term Limits

Leadership, Inc. v. Clark, 984 F. Supp. 470, 475 (S.D. Miss.

1997)). Suffice it to say, this Court does not review alleged

conflicts between a decision of the highest court of a State

10

and the dicta of a lower federal court. See R. Stern, E.

Gressman, S. Shapiro & K. Geller, Supreme Court Practice,

§ 4.8 (7th ed. 1993). Indeed, although numerous states

have citizens’ initiative procedures, the petitioners do not

cite - and we are not aware — of any cases concerning the

constitutionality of a residency requirement, which fur-

ther militates against Court review of the decision below.

Cf. American Constitutional Law Foundation, Inc. v. Meyer,

120 F.3d at 1100 (assuming, but not deciding, that “the

state’s potentially compelling interest in preserving the

integrity of its elections requires ali circulators to be

residents,” although concluding that the registration

requirement was not narrowly tailored to achieve this

interest).

The petitioners not only seek review of a constitu-

tional issue upon which no other court has yet opined,

but they seek review of a decision that is manifestly

correct. In reserving for themselves the sovereign power

to enact legislation by initiative, the citizens of Maine

were careful to reserve for themselves the right to partici-

pate in this unique legislative process:

In short, the sovereign which is the people, has

taken back, subject to the terms and limitations

of the amendment, a power vested in the Legis-

lature when Maine became a state.

Farris v. Goss, 143 Me. 227, 231, 60 A.2d 908, 910 (1948).

Thus, only residents of the State may propose measures

by initiative, circulate and sign petitions in an effort to

place them on the ballot, and vote to enact them as law.

Me. Const. art IV, pt. 3, § 20.

ne |

Pet say Lemme

1]

The Law Court correctly held that Maine’s interest in

preserving, for members of its own political community,

the power to engage in this retained sovereign power to

legislate is compelling, and that the residency require-

ment is narrowly tailored to advance this interest. Even

the petitioners recognize the importance of local citizen

participation (or the appearance of such participation) in

the citizen’s initiative process by calling their group

“Mainers for Medical Rights.” The Law Court’s conclu-

sion that the residency requirement also advances the

States’s compelling interest in ensuring the integrity of

the initiative process was also correct. There simply is no

pressing national need for the Court to review this deci-

sion, or even to hold this case pending the outcome of

buckley v. American Constitutional Law Foundation, No.

97-930.

12

CONCLUSION

The Court should deny the petition for a writ of

certiorari.

January 6, 1998

Respectfully submitted,

ANDREW KETTERER

Maine Attorney General

Paut STERN

Deputy Attorney General

Peter J. BRANN

State Solicitor

(Counsel of Record)

ANDREW S. HAGLER

PHyYtuis GARDINER

Assistant Attorneys General

Six State House Station

Augusta, Maine 04333

(207) 626-8800

Attorneys for Respondent

RESPONDENT’S APPENDIX

Tey i ee

nahi per

Hane

la

§ 18. Direct initiative of legislation; number of signa-

tures necessary on direct initiative petitions; dating sig-

natures on petitions; competing measures; proclamation

by Governor

Section 18. Direct initiative of legislation.

1. Petition procedure. 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 Constitu-

tion, by written petition addressed to the Legislature or

to either branch thereof and filed in the office of the

Secretary of State by the hour of 5:00 p.m., on or before

the 50th day after the date of convening of the Legislature

in first regular session or on or before the 25th day after

the date of convening of the Legislature in second regular

session. If the 50th or 25th day, whichever applies, is a

Saturday, Sunday, or legal holiday, the period runs until

the hour of 5:00 p.m., of the next day which is not a

Saturday, Sunday, or legal holiday.

2. Referral to electors unless enacted by the Legis-

lature without change; number of signatures necessary

on direct initiative petitions; dating signatures on peti-

tions; competing measures. For any measure thus pro-

posed by electors, the number of signatures shall not be

less than 10% of the total vote for Governor cast in the last

gubernatorial election preceding the filing of such petition.

The date each signature was made shall be written next to

the signature on the petition, and no signature older than

one year from the written date on the petition shall be

valid. The measure thus proposed, unless enacted without

change by the Legislature at the session at which it is

presented, shall be submitted to the electors together with

2a

any amended form, substitute, or recommendation of the

Legislature, and in such manner that the people can

choose between the competing measures or reject both.

When there are competing bills and neither receives a

majority of the votes given for omagainst both, the one

receiving the most votes shall at the next statewide elec-

tion to be held not less than 60 days after the first vote

thereon be submitted by itself if it receives more than '/s of

the votes given for and against both. If the measure initi-

ated is enacted by the Legislature without change, it shall

not go to a referendum vote unless in pursuance of a

demand made in accordance with the preceding section.

The Legislature may order a special election on any mea-

sure that is subject to a vote of the people.

3. Timing of elections; proclamation by Governor.

The Governor shall, by proclamation, order any measure

proposed to the Legislature as herein provided, and not

enacted by the Legislature without change, referred to the

people at an election to be held in November of the year

in which the petition is filed. If the Governor fails to

order a measure proposed to the Legislature and not

enacted without change to be submitted to the people at

such an election by proclamation within 10 days after the

recess of the Legislature to which the measure was pro-

posed, the Secretary of State shall, by proclamation, order

such measure to be submitted to the people at an election

as requested, and such order shall be sufficient to enable

the people to vote.

Me. Const. art IV, pt. 3, § 18

3a

§ 22. Election officers and officials, how governed

Section 22. Until the Legislature shall enact further

laws not inconsistent with the Constitution for applying

the people’s veto and direct initiative, the election officers

and other officials shall be governed by the provisions of

this Constitution and of the general law supplemented by

such reasonable action as may be necessary to render the

preceding sections self executing. The Legislature may

enact laws not inconsistent with the Constitution to

establish procedures for determination of the validity of

written petitions. Such laws shall include provision for

judicial review of any determination, to be completed

within 100 days from the date of filing of a written

petition in the office of the Secretary of State.

Me. Const. art IV, pt. 3, § 22

§ 905. Review of initiative and referendum petitions

1. Secretary of State. The Secretary of State shall

review all petitions filed in the Department of the Secre-

tary of State for a people’s veto referendum under the

Constitution of Maine, Article IV, Part Third, Section 17,

or for a direct initiative under the Constitution of Maine,

Article IV, Part Third, Section 18.

The Secretary of State shall determine the validity of the

petition and issue a written decision stating the reasons

for the decision within 30 days after the final date for

filing the petitions in the Department of the Secretary of

4a

State under the Constitution of Maine, Article IV, Part

Third, Section 17 or 18.

2. Superior Court. Any voter named in the applica-

tion under section 901, or any person who has validly

signed the petitions, if these petitions are determined to

be invalid, or any other voter, if these petitions are deter-

mined to be valid, may appeal the decision of the Secre-

tary of State by commencing an action in the Superior

Court. This action shall be conducted in accordance with

the Maine Rules of Civil Procedure, Rule 80C, except as

modified by this section. In reviewing the decision of the

Secretary of State, the court shall determine whether the

description of the subject matter is understandable to a

reasonable voter reading the question for the first time

and will not mislead a reasonable voter who understands

the proposed legislation into voting contrary to his

wishes. This action must be commenced within 5 days of

the date of the decision of the Secretary of State and shall

be tried, without a jury, within 15 days of the date of that

decision. Upon timely application, anyone may intervene

in this action when the applicant claims an interest relat-

ing to the subject matter of the petitions, unless the

applicant’s interest is adequately represented by existing

parties. The court shall issue its written decision contain-

ing its findings of fact and stating the reasons for its

decision within 30 days of the commencement of the trial

or within 45 days of the date of the decision of the

Secretary of State, if there is no trial.

3. Supreme Judicial Court. Any aggrieved party

may appeal the decision of the Superior Court, on ques- |

tions of law, by filing a notice of appeal within 3 days of

that decision. The appellant must file the required

number of copies of the record with the clerk within 3

en Ee eM eee NPR es |

5a

days after filing notice of appeal. After a notice of appeal

is filed, the parties have 10 days to file briefs with the

clerk of courts. As soon as the record and briefs have

been filed, the court shall immediately consider the case.

The standard of review shall be the same as for the

Superior Court. The court shall issue its decision within

30 days of the date of the decision of the Superior Court.

Me. Rev. Stat. Ann. tit. 21-A, § 905 (West 1993 & Supp.

1997)

6a

VERRILL & DANA LLP

ATTORNEYS AT LAW

CHRISTIOPHER B. McLAUGHLIN ONE PORTLAND

Email: cbm@verdan.com SQUARE

PORTLAND, MAINE 04112-0586

207-774-4000 « FAX 207-774-7499

November 23, 1998

(Via Hend—Delivery [Federal Express])

Ms. Julie Flynn

Secretary of State’s Office

148 State House Station

Augusta, ME 04333-0148

Re: Submission of Citizens’ Initiative Petition

Dear Julie:

Stephanie Hart and Mainers for Medical Rights

hereby submit their citizens’ initiative petition entitled,

“AN ACT to Permit the Medical Use of Marijuana,” for a

determination of its validity by the Secretary of State.

As we have discussed previously, I request that the

Secretary of State include in his review all signatures in

support of this citizens’ initiative petition submitted by

its sponsors in January and February of 1998. Secretary

Gwadosky’s Amended Determination of Validity, issued

June 23, 1998, indicates that Ms. Hart and Mainers for

Medical Rights submitted 4,622 fewer signatures than the

required minimum of 51,131. Accordingly, Ms. Hart and

Mainer for Medical Rights should be credited with 46,509

verified signatures previously submitted in support of

their citizens’ initiative petition. I ask that you add to this

total the 915 verified signatures collected by the sponsors

over the past several weeks. The collection sheets for

7a

these new signatures, properly notarized and signed by

the local registrars, are enclosed with this mailing. The

newly collected signatures break down as follows:

Signatures Township

546 Presque Isle

73 Caribou

296 Various other towns

in Aroostook County

915 Additional Verified Signatures

Also enclosed are proofs of voter registration for three

circulators, Charles Gale, Tom Murray and Christopher

Little, as well as seven signature sheets on which the local

registrants appear to have made errors during the veri-

fication process.

Because the Secretary of State did not authorize Ms.

Hart and Mainers for Medical Rights to begin the collec-

tion of signatures until November 21, 1997, I believe that

few, if any, signatures will be effected [sic] by the one-

year expiration period. It is my understanding from pre-

vious discussions with you and with the Attorney Gen-

eral’s Office that this letter, representing a formal re-

submission of Ms. Hart’s citizens’ initiative petition, will

toll the one-year expiration period and prevent any addi-

tional signatures from becoming invalid. I therefore cal-

culate that Ms. Hart and Mainers for Medical Rights will

have submitted approximately 47,424 verified signatures

in support of their citizens’ initiative petition. It appears

that this will be sufficient to satisfy the new signature

requirement, although I understand that the Secretary of

8a

State’s Office has yet to issue official voting statistics for

the 1998 gubernatorial election.

If you have any questions or concerns regarding this

letter or the submission of Ms. Hart’s citizens’ initiative

petition, please feel free to contact me at the above

number. I appreciate the continued assistance from you

and our office with this matter.

Sincerely,

/s/ Christopher B. McLaughlin

Christopher B. McLaughlin

CBM:d

Enclosures

cc: Mr. David Fratello

Ms. Stephanie Hart

Phyllis Gardner, Esq.

James T. Kilbreth, Esq.

9a

STATE OF MAINE

OFFICE OF THE SECRETARY OF STATE

DETERMINATION OF THE VALIDITY

OF A PETITION FOR INITIATED

LEGISLATION ENTITLED:

“An Act to Permit the Medical Use of Marijuana”

1. On November 24, 1998, petitioners resubmitted to

the Secretary of State for review, pursuant to the Consti-

tution of Maine, Article IV, Part Third, Section 18, peti-

tions containing 68,330 signatures which were already on

file, plus new petitions containing an additional 1,024

signatures, for a combined total of 69,354 signatures, on

behalf of the initiated legislation entitled, “An Act to

Permit the Medical Use of Marijuana.”

2. The number of valid signatures required for an

initiative petition to qualify for submission to the Legisla-

ture pursuant to the Constitution of Maine, Article IV,

Part Third, Section 18, is 10% of the total vote cast for

Governor in the most recent gubernatorial election pre-

ceding this filing. That election occurred on November 3,

1998, and the qualifying number is now 42,101 signatures.

Although, as petitioners requested, I have based this

determination of validity on a review of all of the signa-

tures submitted (both newly submitted and previously

filed), it is clear that petitioners already had in excess of

the minimum number of signatures to qualify under the

new threshold, without submitting any additional signa-

tures for review.

3. Based upon a consolidated review of the petitions

which were previously submitted, and the additional

petitions submitted for the first time on November 24,

10a

1998, I find these signatures to be invalid for the follow-

ing reasons:

A. 16,568 are invalid because they were not

certified by the registrars as belonging to a

registered voter in that municipality.

B. 2,677 signatures are invalid because the cir-

culators collected signatures prior to

becoming registered to vote in the State of

Maine.

C. 1,502 signatures are invalid because the cir-

culators were not registered to vote in the

State of Maine.

D. 733 signatures are invalid because the were

collected by three circulators (Rebecca

Avrett, Devon Salisbury and Alfred

Thompson) who were not residents of the

State of Maine. (Many of these also were

found invalid for other reasons as noted in

the previous determination of validity.)

E. 106 signatures are invalid because they are

duplicate signatures already counted.

F. 88 signatures are invalid because the peti-

tioner dated his or her signature after the

date of the circulator’s oath before the

notary.

G. 44 signatures are invalid due to counting

errors by the registrar.

H. 48 signatures are invalid because they do

not appear to have been made by the per-

sons they purported to be.

I. 39 signatures are invalid because of mate-

rial alterations to the petition.

lla

J. 36 signatures are invalid because the circu-

lator’s verification was incomplete.

K. 32 signatures are invalid because the certi-

fication of the registrar was not completed.

L. 8 names are invalid because the petitioners

failed to sign their name.

M. 6 signatures are invalid because the peti-

tions were circulated prior to the approval

by the Secretary of State.

N. 5 signatures are invalid because the person

whose name appears on the petition did not

sign the petition.

O. 16 signatures are invalid because the peti-

tioner’s signature was dated more than one

year before the date the petition was filed.

4. For the reasons set forth above, I find that a total

of 21,948 signatures are invalid. Petitioners have there-

fore submitted a combined total of 47,406 valid signa-

tures. As noted in paragraph 2 above, the minimum

number of signatures required for validity is now 42,101.

Because the number of valid signatures exceeds the mini-

mum required number by 5,305 signatures, I find the

petition to be valid.

Dated: December 23, 1998 /s/ Dan A. Gwadosky

Dan A. Gwadosky

Secretary of State