David A. Jones v. Secretary of State

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2020 ME 111
Docket: Cum-20-227
Argued: September 3, 2020
Decided: September 8, 2020

Panel: MEAD, GORMAN, JABAR, HUMPHREY, and HORTON, JJ.

DAVID A. JONES et al.

v.

SECRETARY OF STATE et al.

PER CURIAM

[¶1] On August 24, 2020, the Superior Court (Cumberland County,

McKeon, J.) entered a judgment on a petition for judicial review brought by

David A. Jones and others (collectively, “Jones”) to challenge a decision of the

Secretary of State. See 5 M.R.S. § 11001 (2020); 21-A M.R.S. § 905(2) (2020);

M.R. Civ. P. 80C. The court vacated the Secretary of State’s determination that

insufficient signatures had been collected to place on the November 2020 ballot

a people’s veto of An Act to Implement Ranked-choice Voting for Presidential

Primary and General Elections in Maine, P.L. 2019, ch. 539.

[¶2] Both the Secretary of State and intervenors The Committee for

Ranked Choice Voting and three individuals (collectively, “Committee”) have

moved to stay the execution of the Superior Court’s judgment pending their
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appeals to us from that judgment. The Committee argues that a stay of the

court’s judgment is automatically in place pursuant to Rule 62(e) of the Maine

Rules of Civil Procedure, and argues alternatively that, if there is no automatic

stay, we should enter an order staying the execution of the Superior Court’s

judgment because “the Superior Court decision erroneously and inadvertently

included at least 162 signatures that the Secretary’s tally of signature[] totals

failed to account.” The Secretary of State argues only that we should enter an

injunction in the form of a stay pursuant to Rule 62(g) in order to “preserve the

status quo or the effectiveness of the judgment subsequently to be entered.”1

Jones has filed an opposition to both motions, asserting that judgments entered

by the Superior Court on petitions for judicial review of final agency action are

not subject to the automatic stay pending appeal but rather are subject only to

the stay provisions of 5 M.R.S. § 11004 (2020), and that we should not order a

stay as a form of injunctive relief.

1 Rule 62(g) provides,

(g) Power of Reviewing Court Not Limited. The provisions in this rule do not
limit any power of the Superior Court or Law Court during the pendency of an appeal
to suspend, modify, restore, or grant an injunction or to make any order appropriate
to preserve the status quo or the effectiveness of the judgment subsequently to be
entered.
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[¶3] Because we conclude that execution of the judgment is

automatically stayed upon appeal, we do not reach the arguments regarding

injunctive relief. We dismiss both motions to stay as moot.

[¶4] Rule 62 governs the stay upon appeal of proceedings in Maine

courts. It provides, in pertinent part,

(e) Stay Upon Appeal. Except as provided in subdivisions
(c) and (d) of this rule, the taking of an appeal from a judgment shall
operate as a stay of execution upon the judgment during the
pendency of the appeal, and no supersedeas bond or other security
shall be required as a condition of such stay.

M.R. Civ. P. 62.2 Thus, pursuant to Rule 62(e), the docketing of an appeal will

ordinarily operate as a stay of a trial court’s order, including with respect to an

2 The exceptions to the stay set forth in Rule 62(c) and (d) are as follows:

(c) Order for Immediate Execution. In its discretion, the court on motion may,
for cause shown and subject to such conditions as it deems proper, order execution
to issue at any time after the entry of judgment and before an appeal from the
judgment has been taken or a motion made pursuant to Rule 50, 52(b), 59, or 60; but
no such order shall issue if a representation, subject to the obligations set forth in
Rule 11, is made that a party intends to appeal or to make such motion. When an
order for immediate execution under this subdivision is denied, the court may, upon
a showing of good cause, at any time prior to appeal or during the pendency of an
appeal order the party against whom execution was sought to give bond in an amount
fixed by the court conditioned upon satisfaction of the damages for delay, interest,
and costs if for any reason the appeal is not taken or is dismissed, or if the judgment
is affirmed.

(d) Injunction Pending Appeal. When an appeal is taken from an interlocutory
or final judgment granting, dissolving, or denying an injunction, the court in its
discretion may suspend, modify, restore, or grant an injunction during the pendency
of the appeal upon such terms as to bond or otherwise as it considers proper for the
security of the rights of the adverse party.
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administrative appeal. See Doggett v. Town of Gouldsboro, 2002 ME 175, ¶ 6,

812 A.2d 256 (holding that an appeal to us from a municipal decision pursuant

to M.R. Civ. P. 80B “suspend[ed] the trial court’s authority over the matter and

stay[ed] the effect” of its remand to a municipality); cf. Hawkes Television, Inc.

v. Me. Bureau of Consumer Credit Prot., 462 A.2d 1167, 1169 (Me. 1983)

(dissolving an injunction that the Superior Court issued in a Rule 80B case while

the matter was automatically stayed pending appeal to us).

[¶5] Jones has not filed a motion for immediate execution of the

judgment in the Superior Court.3 See M.R. Civ. P. 62(c). Jones urges us to

conclude, however, that the Superior Court, in vacating the Secretary of State’s

decision, entered an order “granting, dissolving, or denying an injunction”—a

decision that is not subject to the automatic stay pending appeal. M.R.

Civ. P. 62(d), (e).4 Jones argues that M.R. Civ. P. 81(c) requires us to treat the

3Nor has Jones otherwise sought to expedite matters at any time during the proceedings before
the Superior Court. We note that motions to the trial court pursuant to Rule 62(c) or (d)—which are
excepted from the automatic stay pending appeal—should precede any motion requesting that we
exercise our authority pursuant to Rule 62(g). See 3 Harvey & Merritt, Maine Civil Practice § 62:8 at
320 (3d, 2019-2020 ed. 2019) (“Resort to the appellate court under this Rule should only be sought
when relief cannot be had in the trial court.”); see, e.g., Senty v. Bd. of Osteopathic Examination
& Registration, 594 A.2d 1068, 1069 (Me. 1991) (issuing a stay, after the trial court refused to do so,
of an injunction that required the issuance of a professional license and ordering an expedited
briefing schedule).

4 Jones also contends that “execution” of a judgment means only the execution of a judgment for

money damages, citing M.R. Civ. P. 69. Rule 62 does not, however, reference Rule 69 as a limit on the
meaning of “execution,” and the exceptions included in Rule 62(a)—for injunctions and
receiverships, as well as orders “relating to the care, custody and support of minor children or to the
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Superior Court’s order as an injunction. Rule 81(c) does not, however, provide

that all administrative appeals are to be construed as seeking injunctions;

rather it establishes new procedural mechanisms to replace outmoded writs:

Scire Facias and Certain Extraordinary Writs Abolished. The
writs of scire facias, mandamus, prohibition, certiorari, and quo
warranto are abolished. Review of any action or failure or refusal
to act by a governmental agency, including any department, board,
commission, or officer, shall be in accordance with procedure
prescribed by Rule 80B. Any other relief heretofore available by
any of such writs may be obtained by appropriate action or motion
under the practice prescribed by these rules. In any proceedings
for such review or relief in which an order that an agency or other
party do or refrain from doing an act is sought, all provisions of
these rules applicable to injunctions shall apply.

M.R. Civ. P. 81(c). The rule thus makes clear that (1) the named writs are

abolished, (2) the Rules supply a new process for judicial review of

governmental agency actions, and (3) any other relief previously available

pursuant to the now-abolished writs may be obtained under the Rules of Civil

Procedure, with any request for a party to do or refrain from doing an act to be

brought as a claim for injunctive relief. See id.; see also 3 Harvey & Merritt,

Maine Civil Practice §§ 81:8-81:12 at 569-74 (3d, 2019-2020 ed. 2019). The

rule does not, however, convert every Rule 80B or Rule 80C action into a claim

separate support or personal liberty of a person or for the protection of a person from abuse or
harassment”—make clear that all types of judgments not listed are subject to the automatic stay of
execution pending appeal. M.R. Civ. P. 62(a), (e).
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for injunctive relief, and certainly in the matter before us, the test for granting

an injunction has not been applied.5 Jones never requested injunctive relief,

and the court did not reach findings of irreparable injury, balance any

competing harms, or consider the public interest. See Bangor Historic Track,

Inc. v. Dep’t of Agric., Food & Rural Res., 2003 ME 140, ¶ 9, 837 A.2d 129.

[¶6] Jones and the Secretary of State further contend that the Superior

Court’s judgment is not automatically stayed because in National Organization

for Marriage v. Commission on Governmental Ethics and Elections Practices,

2015 ME 103, 121 A.3d 792, we held that an agency’s decision was not stayed

pending appeal. We were not asked in that case to review whether the Superior

Court’s judgment was automatically stayed. Id. ¶¶ 1-2. Rather, we held there

that the agency’s decision was not a “judgment” as defined in M.R. Civ. P. 54(a),

and that the petition for judicial review filed in the Superior Court did not

effectuate an automatic stay of the agency’s decision, nor did an appeal from

5 An injunction may be issued only if the court finds that “(1) [the moving party] will suffer
irreparable injury if the injunction is not granted; (2) such injury outweighs any harm which granting
the injunctive relief would inflict on the other party; (3) [the moving party] has a likelihood of success
on the merits (at most, a probability; at least, a substantial possibility); and (4) the public interest
will not be adversely affected by granting the injunction.” Bangor Historic Track, Inc. v. Dep’t of Agric.,
Food & Rural Res., 2003 ME 140, ¶ 9, 837 A.2d 129. To the extent that we have exercised the authority
to suspend an injunction entered in a Rule 80C matter, we have done so when the trial court found
in the plaintiff’s favor on an independent claim for injunctive relief. See Senty, 594 A.2d at 1069
(staying an injunction that required the issuance of a professional license and ordering an expedited
briefing schedule); see also M.R. Civ. P. 62(g).
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that Superior Court decision to us. See Nat’l Org. for Marriage, 2015 ME 103,

¶¶ 10-11, 121 A.3d 792. Rather, to obtain a stay of an agency’s decision, a party

must request the stay from the agency or, if such a request is impracticable or

is denied by the agency, from the Superior Court. 5 M.R.S. § 11004; Nat’l Org.

for Marriage, 2015 ME 103, ¶ 11, 121 A.3d 792.

[¶7] Here, because the “petition for review shall not operate as a stay of

the final agency action pending judicial review,” 5 M.R.S. § 11004, and no stay

was granted by the Secretary of State or the Superior Court, the agency action

has plainly not been stayed. An automatic stay of the Superior Court’s judgment

is in place, however, while the present appeal is pending. See M.R. Civ. P. 62(e).

[¶8] Thus, the motions to stay seek relief that Rule 62(e) already

provides, and we dismiss them as moot. See In re Involuntary Treatment of K.,

2020 ME 39, ¶ 9, 228 A.3d 445 (stating that “issues are moot . . . when they have

lost their controversial vitality, and [a] decision would not provide . . . any real

or effective relief” (quotation marks omitted)).

[¶9] Because an automatic stay is in place, the motions to stay are

dismissed.

The entry is:

Motions to stay dismissed.
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James G. Monteleone, Esq. (orally), and Matthew J. Saldaña, Esq., Bernstein
Shur, Portland, for appellants The Committee for Ranked Choice Voting et al.

Phyllis Gardiner, Esq. (orally), Office of the Attorney General, Augusta, for
appellant Secretary of State

Patrick N. Strawbridge, Esq. (orally), Consovoy McCarthy PLLC, Boston,
Massachusetts, for appellees David A. Jones, et al.

Cumberland County Superior Court docket number AP-20-16
FOR CLERK REFERENCE ONLY