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

Supreme Judicial Court of Maine

August 4, 2015

NATIONAL ORGANIZATION FOR MARRIAGE
v.
COMMISSION ON GOVERNMENTAL ETHICS AND ELECTIONS PRACTICES

Submitted on Briefs July 1, 2015.

Page 793

NOM's Motion to Clarify Stay Under Rule 62(e) or, in the alternative, Motion for Stay of Agency Action is DENIED. The appeal will proceed in the usual course.

On the motion and opposition: Stephen C. Whiting, Esq., The Whiting Law Firm, P.A., Portland, for appellant National Organization for Marriage.

Janet T. Mills, Attorney General, and Phyllis Gardiner, Asst. Atty. Gen., Office of the Attorney General, Augusta, for appellee Commission on Governmental Ethics and Election Practices.

Panel: ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

Page 794

ORDER ON PETITIONER'S MOTION TO CLARIFY STAY OR, IN THE ALTERNATIVE, MOTION FOR A STAY OF AGENCY ACTION

PER CURIAM

[¶1] The National Organization for Marriage (NOM) has moved for a stay pending the resolution of its appeal from a decision of the Business and Consumer Docket ( Murphy, J. ) denying NOM's petition for review, pursuant to M.R. Civ. P. 80C, of a determination of the Commission on Governmental Ethics and Elections Practices. The Commission concluded that NOM is a " ballot question committee" (BQC) and is therefore subject to and in violation of the registration and reporting requirements of 21-A M.R.S. § 1056-B (2008).[1]

[¶2] NOM asserts that the Commission's determination is automatically stayed pending appeal pursuant to M.R. Civ. P. 62(e), and, alternatively, petitions for a stay of the Commission's decision pursuant to our inherent equitable authority.[2] The Commission opposes the motion. After review of the motion record, we conclude that the Commission's decision is not automatically stayed, and we deny NOM's motion for a stay.

I. BACKGROUND

[¶3] NOM is a national nonprofit advocacy corporation " dedicated to preserving the institution of marriage as between one man and one woman." In 2009, NOM made contributions of more than $2 million to Stand for Marriage Maine, a political action committee (PAC) that was formed to promote the November 2009 people's veto referendum to suspend a Maine law allowing same-sex marriage. Despite its active involvement in support of the referendum, NOM never registered with the Commission as a " ballot question committee" pursuant to 21-A M.R.S. § 1056-B, which, at the time, required registration by any person who received contributions in excess of $5,000 " for the purpose of . . . influencing in any way a ballot question." [3] Registering as a BQC would have required NOM to publicly report its donors and the

Page 795

expenditures it made to influence the referendum. See id. § 1056-B(2).

[¶4] In August 2009, the Commission received a complaint that NOM was not in compliance with the registration and reporting requirements of section 1056-B. After considering evidence submitted by both sides, the Commission voted to commence a formal investigation of NOM in October 2009. Shortly after the Commission began its investigation, NOM mounted several ultimately unsuccessful legal challenges in federal court to the constitutionality of Maine's campaign and election laws.[4] See Nat'l Org. for Marriage v. McKee, 666 F.Supp.2d 193 (D. Me. 2009) (denying NOM's motion for a temporary restraining order and finding that NOM did not have a high likelihood of success on the merits of its constitutional claims); Nat'l Org. for Marriage & Am. Principles in Action v. McKee, 765 F.Supp.2d 38, 44-53 (D. Me. 2011) (granting summary judgment in favor of the Commission and rejecting NOM's First Amendment, overbreadth, and vagueness challenges to the constitutionality of section 1056-B); Nat'l Org. for Marriage, Inc. v. McKee, 669 F.3d 34, 50 (1st Cir. 2012) (affirming the judgment of the District Court and concluding that " section 1056-B satisfies constitutional standards" ).

[¶5] After considering evidence and argument submitted by NOM and Commission staff, the Commission issued a written decision with extensive factual findings on June 30, 2014. The Commission concluded that NOM had received contributions in excess of $5,000 for the purpose of influencing the people's veto referendum and ordered that NOM register as a BQC and file the appropriate campaign finance reports. The Commission also ordered that NOM pay $50,250 in fines for failing to timely register and file all of the required reports dating back to 2009.

[¶6] Following the Commission's decision, NOM filed an application with the Commission for a stay pending appeal pursuant to 5 M.R.S. § 11004 (2014). The Commission granted NOM's application in part, staying the requirement that NOM submit a campaign finance report until NOM could petition the Superior Court for a stay, but denying NOM's application for a stay in all other respects. On August 1, 2014, NOM filed a petition in the Superior Court (Kennebec County)[5] for review of the Commission's decision pursuant to M.R. Civ. P. 80C, which was accompanied by a motion for a stay pending appeal. The court issued an order on September 9, 2014, providing " by agreement of the parties" that NOM was not required to file a campaign finance report until twenty-one days after the court's final decision on the Rule 80C petition and that NOM's motion for a stay was therefore deemed withdrawn. Following full briefing and a hearing, the court denied NOM's petition for review of the Commission's decision on April 13, 2015.

[¶7] On May 4, 2015, NOM filed a timely notice of appeal and also ...


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