MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2013 ME 53
Docket: Ken-12-363
Argued: April 11, 2013
Decided: May 30, 2013
Panel: SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, and JABAR, JJ.
NATIONAL ORGANIZATION FOR MARRIAGE et al.
v.
COMMISSION ON GOVERNMENTAL ETHICS AND ELECTION
PRACTICES
SAUFLEY, C.J.
[¶1] The National Organization for Marriage (NOM), Stand for Marriage
Maine PAC (SMM), and Brian Brown appeal from a judgment of the Superior
Court (Kennebec County, Murphy, J.) affirming the decision of the Commission
on Governmental Ethics and Election Practices refusing to vacate or modify its
subpoenas demanding information from NOM and Brown, including the names of
donors to NOM. The appellants contend that the Commission’s subpoenas
infringe on their First Amendment right to freedom of association because
disclosure would expose NOM’s donors to threats, harassment, and reprisal. Their
appeal is the culmination of several years of litigation surrounding SMM’s
advocacy in favor of a ballot question presented to Maine voters in 2009. Our
review of the extensive record, the Superior Court’s well-reasoned opinion, and the
2
detailed analysis of related issues by our federal court colleagues1 leads us to
conclude that, on the facts of this case, the Commission did not err. We affirm the
Commission’s order.
DISCUSSION
[¶2] The Commission subpoenaed documents and testimony from NOM
and Brown as part of an investigation that began in 2009. The Commission seeks
the names of donors to NOM in order to allow the Commission to evaluate the oral
communications NOM made in soliciting donations during the 2009 election
season, a critical issue in determining NOM’s compliance with Maine’s campaign
laws. The appellants petitioned the Commission to vacate or modify the subpoenas
pursuant to 5 M.R.S. § 9060(1)(C) (2012). After the Commission rejected their
contentions, they petitioned for review of the Commission’s decision in the
1
Related federal litigation to which NOM was a party led to numerous decisions with extensive
analyses. See Nat’l Org. for Marriage, Inc. v. McKee, 669 F.3d 34 (1st Cir. 2012), cert. denied, 133 S.
Ct. 163 (2012); Nat’l Org. for Marriage v. McKee, 649 F.3d 34 (1st Cir. 2011), cert. denied, 132 S. Ct.
1635 (2012); Nat’l Org. for Marriage v. McKee, 765 F. Supp. 2d 38 (D. Me. 2011); Nat’l Org. for
Marriage v. McKee, 723 F. Supp. 2d 236 (D. Me. 2010); Nat’l Org. for Marriage v. McKee, 666 F. Supp.
2d 193 (D. Me. 2009).
In this litigation, NOM had the opportunity to, and in several instances did, present its constitutional
arguments regarding the identities of its donors to the federal judiciary. Its arguments were not
persuasive, and in at least one proceeding, NOM affirmatively chose not to pursue the very claim it
presses here. See Nat’l Org. for Marriage, 649 F.3d at 55 n.30. Therefore, not unreasonably, the
Commission argues that NOM is precluded from litigating these challenges further. Nonetheless, in an
effort to bring this protracted litigation to a close, we reach, consider, and rule on its constitutional
challenge.
3
Superior Court pursuant to M.R. Civ. P. 80C. The Superior Court affirmed, and
this appeal followed.
[¶3] The appellants allege that compliance with the subpoenas could chill
their First Amendment right of association by intruding into the privacy of
individuals involved with their organizations.2 The record reveals that the
Commission’s request for the donor information was central to the Commission’s
ability to carry out its statutory responsibilities. See 21-A M.R.S. § 1003(1) (2012)
(authorizing the Commission to undertake investigations to determine compliance
with campaign reporting requirements); 21-A M.R.S. § 1056-B (2009) (identifying
the criteria and reporting requirements for ballot question committees).3 The
Superior Court evaluated these legal claims in a thorough opinion.
[¶4] We have reviewed the record and the parties’ arguments carefully to
ensure that the important rights protected by the First Amendment have been
thoroughly considered, and that NOM’s assertions have not been overlooked. In
so doing, we directly review the Commission’s decision in this Rule 80C appeal.
2
The appellants also contend that the Commission’s subpoenas were overbroad and sought irrelevant
information. Given our deferential standard of review for this type of contention, see 5 M.R.S.
§ 11007(4)(C)(6) (2012), we do not address this argument further.
3
Title 21-A M.R.S. § 1056-B (2009) was subsequently amended by P.L. 2009, ch. 524, §§ 8-13
(effective July 12, 2010) and P.L. 2011, ch. 389, §§ 38-42, 62 (effective in part Aug. 1, 2011, otherwise
effective June 20, 2011).
4
See LaMarche for Governor Comm. v. Comm’n on Governmental Ethics &
Election Practices, 2006 ME 126, ¶ 3, 908 A.2d 1205.
[¶5] We conclude that the record does not support the appellants’
constitutional argument. Given the status of the dispute at this point in time,4 the
extensive litigation that has already occurred, and the Superior Court’s
well-reasoned, comprehensive decision, see Nat’l Org. for Marriage v. Comm’n on
Governmental Ethics & Election Practices, 2012 WL 7992438 (Me. Super.
June 27, 2012), we need not write further. See Hammer v. Sec’y of State, 2010 ME
109, ¶ 4, 8 A.3d 700; see also Citizens United v. Fed. Election Comm’n, 558 U.S.
310, 371 (2010) (reasoning that transparency in campaign finance “enables the
electorate to make informed decisions and give proper weight to different speakers
and messages”); Nat’l Org. for Marriage, Inc. v. McKee, 669 F.3d 34, 39-41 (1st
Cir. 2012), cert. denied, 133 S. Ct. 163 (2012) (holding that 21-A M.R.S. § 1056-B
survives exacting scrutiny “because its modest disclosure and reporting
requirements are substantially related to Maine’s interest in disseminating
information about political funding to the electorate” (quotation marks omitted));
Perry v. Schwarzenegger, 591 F.3d 1147, 1159-63 (9th Cir. 2010) (describing the
4
At oral argument, it became clear that many of the records that the Commission subpoenaed have
already been provided, either through this litigation or through parallel litigation in the federal courts.
5
showing required to demonstrate a prima facie case of chill to the First
Amendment freedom of association).
The entry is:
Judgment affirmed.
On the briefs:
Stephen C. Whiting, Esq., The Whiting Law Firm, Portland, and Kaylan L.
Phillips, Esq., ActRight Legal Foundation, Plainfield, Indiana, for appellants
The National Organization for Marriage, Stand for Marriage Maine PAC,
and Brian Brown
William J. Schneider, Attorney General, and Phyllis Gardiner and Thomas
A. Knowlton, Asst. Attys. Gen., for appellee Commission on Governmental
Ethics and Election Practices
At oral argument:
Kaylan L. Phillips, Esq., for appellants The National Organization for
Marriage, Stand for Marriage Maine PAC, and Brian Brown
Phyllis Gardiner, Asst. Atty. Gen., for appellee Commission on
Governmental Ethics and Election Practices
Kennebec County Superior Court docket number AP-10-12
FOR CLERK REFERENCE ONLY