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Mainers for Fair Bear Hunting v. Maine Department of Inland Fisheries and Wildlife

Superior Court of Maine, Cumberland

March 31, 2015




Before the court is defendant Department of Inland Fisheries & Wildlife ("DIFW")'s motion to dismiss count II of the complaint. Following the election on November 4, 2014 in which Question 1 was defeated, defendant argues that plaintiffs lack standing and that count II is moot. Maine Wildlife Conservation Council ("MWCC"), which opposed Question 1, joins in the motion. For the following reasons, the motion is granted.


Plaintiff Mainers for Fair Bear Hunting ("MFBH") is a Maine Ballot Question Committee and was a proponent of Question 1, which read: "Do you want to ban the use of bait, dogs or traps in bear hunting except to protect property, public safety, or for research?" Plaintiff Katie Hansberry served as MFBH's campaign director. Voters rejected the measure.

Leading up to the election, plaintiffs filed their two-count complaint on September 30, 2014. Count I alleged certain FoAA violations and has been largely resolved. The parties agreed to bifurcate counts I and II to allow the court to enter a final judgment on plaintiffs' primary claim. (3/16/15 Stipulation.) Count II alleges the illegal expenditure of public funds over DIFW's advocacy against Question 1, which, most notably, included MWCC's TV commercials showing DIFW staff in uniform discussing their opposition to the ballot measure. Plaintiffs filed a motion for a temporary restraining order, which the court denied on October 22, 2014. Plaintiffs sought expedited review in the Law Court, but the Law Court declined to expedite the case on October 30, 2014. Plaintiffs then withdrew their appeal. On March 6, 2015, defendant moved to dismiss count II of plaintiffs' complaint.


Defendant challenges plaintiffs' standing and argues that count II is moot. "Standing and mootness are closely related concepts describing conditions of justiciability." Madore v. Me. Land Use Regulation Comm'n, 1998 ME 178, ¶ 8, 715 A.2d 157. "Standing to sue means that the party, at the commencement of the litigation, has sufficient personal stake in the controversy to obtain judicial resolution of that controversy." Halfway House, Inc. v. City of Portland, 670 A.2d 1377, 1379 (Me. 1996). "When a party initially holds the requisite personal interest, but is later divested of that interest" the doctrine of mootness applies. Madore, 1998 ME 178, ¶ 8, 715 A.2d 157. As the major organizing proponent of Question 1, the court is satisfied that plaintiff MFBH and its campaign director had a sufficient stake in the controversy at the outset of litigation to present a justiciable case. See McCaffrey v. Gartley, 377 A.2d 1367, 1370 (Me. 1973). The court will therefore focus on whether count II is moot.


In deciding whether a case is moot, the court must determine "whether there remain sufficient practical effects flowing from the resolution of the litigation to justify the application of limited judicial resources." Hal/way House, Inc. v. City of Portland, 670 A.2d 1377, 1380 (Me. 1996). The issue is often phrased in terms of whether a decision from the court could provide the litigants with any effective relief. Me. Civil Liberties Union v. City of S. Portland, 1999 ME 121, ¶ 8, 734 A.2d 191. "The mootness doctrine preserves the 'flexibility of the law by not creating unnecessary precedent.'" Gordan v. Cummings, 2000 ME 68, ¶ 10, 756 A.2d 942 (quoting Graffam v. Wray, 437 A.2d 627, 631 (Me. 1981)).

Plaintiffs' allegations in count II of the complaint are all focused on campaign activity leading up to the Question 1 vote. (Compl. ¶¶ 98, 102-103.) Plaintiffs request for relief under count II states:

[T]he plaintiffs respectfully request this Court to (a) permanently enjoin IF&W from further use of agency resources, including staff time, to oppose Question 1; (b) order IF&W to immediately remove political content from its website, YouTube channel, and other outlets; (c) order that the current television advertisement produced using IF&W resources be immediately removed from the air; (d) order repayment of funds illegally expended to the Treasurer of the State of Maine; (e) award Plaintiffs their attorneys' fees and other costs for the maintenance of this action; and (f) grant such other and further relief as this Court may deem just and appropriate.

Now that the election is over, the agency is no longer using any resources to oppose Question 1 and the television ads are no longer airing. The court does not have the authority to invalidate the election results. Me. Sch. Admin. Dist. No. 37 v. Pineo, 2010 ME 11, ¶ 8, 988 A.2d 987. Therefore, the court cannot grant plaintiffs any effective relief.[1] See Campaign for Sensible Transp. v. Me. Tpk. Auth, 658 A.2d 213, 215 (1995) ("Because the granting of an injunction preventing expenditure of toll revenues to influence the 1991 referendum's outcome would afford no effective relief to CST, its appeal is rendered moot."). Plaintiffs' claim is moot.

Plaintiffs urge the court to find that one of the exceptions to the mootness ...

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