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Mainers for Fair Bear Hunting v. Maine Commission on Governmental Ethics & Election Practices

Superior Court of Maine, Cumberland

August 12, 2015

MAINERS FOR FAIR BEAR HUNTING, Plaintiff
v.
MAINE COMMISSION ON GOVERNMENTAL ETHICS AND ELECTION PRACTICES, Defendant

ORDER

THOMAS D. WARREN JUSTICE.

Before the court is a Rule 80C appeal by Mainers for Fair Bear Hunting (MFBH) from a November 3, 2014 decision by the Commission on Governmental Ethics and Election Practices that it would not undertake an investigation of an alleged violation of contribution disclosure laws by the Maine Wildlife Conservation Council (MWCC).

MFBH was the sponsor of a citizen initiative to ban bear baiting, which appeared as Question 1 on the November 4, 2014 general election ballot. MWCC is an organization that opposed the citizen initiative and campaigned against it.

On October 30, 2014 (six days before the election) MFBH filed a request for an investigation by the Commission pursuant to 21-A M.R.S. § 1003(2). Its request involved certain activities by employees of the Maine Department of Inland Fisheries and Wildlife (IF&W) which MFBH argued constituted in-kind contributions to MWCC that were required to be disclosed on MWCC's campaign finance reports.[1] The Commission considered the request for an investigation at a meeting .the day before the election and voted 3-1 against undertaking an investigation. R. Tab. 11 at 6-7.

The voters rejected the citizen initiative to ban bear baiting on November 4, 2014. On December 2, 2014 MFBH filed this appeal, seeking to overturn the Commission's decision not to undertake an investigation.[2] The Commission filed the administrative record on January 5, 2015, and the parties thereafter filed their appeal briefs. Although the final brief was filed on April 23, 2015, the justice to whom the appeal was assigned retired effective March 31 and the appeal was not reassigned to the undersigned until June 2, 2015.

The court concludes that a decision of the Commission not to undertake an investigation is a matter of prosecutorial discretion that is not reviewable. See Herrle v. Town of Waterboro, 2001 ME 1 ¶ 10-11, 763 A.2d 1159. The applicable statute provides that the Commission "may undertake investigations to determine whether a person has violated [the campaign finance laws]." 21-A M.R.S, § 21003(1) (emphasis added). When a person applies in writing to request an investigation to determine whether the campaign finance laws have been violated, the Commission "shall review the application and shall make the investigation if the reasons stated for the request show sufficient grounds for believing that a violation has occurred." § 1003(2). An investigation is only required to be undertaken if the Commission concludes the request shows sufficient grounds for believing a violation has occurred. Whether the request shows sufficient grounds is left to the Commission's discretion.

This follows from, the Law Court's decision in Lindemann v. Commission on Governmental Ethics, 2008 ME 187 ¶ 17, 961 A.2d 538. MFBH points out that Lindemann primarily addressed the issue of standing. However, in the course of its standing discussion in Lindemann the Law Court stated that parties do not have enforceable rights to require the Commission to undertake investigations:

[A]n agency charged with enforcing a particular statute or rule has the prerogative of electing not to take action. See generally, Herrle v. Town of Waterboro, 2001 ME 1 ¶¶ 10-11, 763 A.2d 1159 (discussing prosecutorial discretion in enforcement actions). These decisions are left to the sole discretion of the agency and are not ordinarily subject to judicial review at the behest of members of the general public. In this matter, if the Commission received Lindemann5s request for an investigation and elected not to investigate, the same result would occur - Lindemann lacks standing to seek judicial review. His right, as established in section 1003(2), is to request the Commission to conduct an investigation; the Commission's obligation vis-a-vis Lindemann is simply to accept and review his request. A review concluding that no action or investigation will be undertaken creates no right of judicial review in Lindemann or any other member of the general public.

2008 ME 187 ¶ 17.

MFBH argues that this language only applies to members of the general public and that, as the organization who had sponsored the citizen initiative and was MWCC's direct opponent, it has standing even if a member of the general public would not.[3] The problem with this argument, as the court sees it, is that if MFBH is correct, ballot question committees or political candidates could require the Commission to investigate possible violations at their behest and the Commission would be prevented from setting its own enforcement priorities and exercising its discretion as to which potential violations should be pursued.

In the alternative, however, the court would conclude that even the decision of the Commission that MFBH's request did not show sufficient grounds for believing that a violation had occurred is reviewable, the Commission's decision should be affirmed.

MFBH's argument that there had been a violation by MWCC depends on the argument that the time spent by IF&W employees appearing in MWCC campaign videos constituted in kind "contributions." MFBH argues that the time spent by IF&W employees fell within the definition of contribution in 21-A M.R.S. § 1052(3)(A): "a gift, subscription, loan, advance, or deposit of money of anything of value to a political action committee, "[4] and MFBH emphasizes the words "anything of value."

However, the statute separately addresses the in-kind contribution of services in section 1052(3)(D), which defines contributions as

The payment, by any person or organization, of compensation for the personal services of other persons provided to a [ballot question] committee that is used by the [ballot question] ...

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