Clean Energy For Me, LLC v. Maine Commission on Governmental Ethics and Election Practices

STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
Docket No. AP-2021-18
)
)
CLEAN ENERGY FOR ME, LLC, )
)
Petitioner, )
)
V. ) RULE SOC DECISION
)
MAINE COMMISSION ON )
GOVERNMENTAL ETHICS AND )
ELECTION PRACTICES, )
)
Respondent. )
)

Petitioner Clean Energy for ME, LLC, a/k/a Stop the Corridor ("STC") seeks

judicial review, pursuant to M.R. Civ. P. SOC, of the July 2, 2021 decision of Respondent

Maine Commission on Governmental Ethics and Election Practices ("the Commission")

not to modify the scope of a subpoena issued by the Commission on March 16, 2021. For

the following reasons, the Court denies STC' s appeal.

I. Background

In 2018, STC was formed as a Maine limited liability company for the purpose of

opposing the New England Clean Energy Connect ("NECEC") transmission line project.

(R. 13, 33-35.) On January 17, 2020, the Commission received a request that the

Commission investigate STC for allegedly failing to register as a political action

committee ("PAC") when it became involved in the campaign to place a referendum

question opposing the NECEC project on the November 2020 ballot ("the Ballot

Question"). (R. 31, 137.) The Commission considered the request to investigate at its

Page 1 of 6
March 10, 2020 meeting and voted to authorize an investigation into whether STC should

have registered as a PAC.' (R. 154-64.)

Based on preliminary information obtained from STC during the investigation,

Commission staff recommended also investigating whether STC should have registered

as a ballot question committee ("BQC"). (R. 174.) After hearing at the Commission's May

2020 meeting, the Commission voted to expand the scope of the investigation. (R. 174­

81.)

On February 1, 2021, STC produced documents in response to a subpoena issued

by the Commission. (R. 139.) From the documents, the Commission learned of certain

business transactions between STC and two entities ("the Nonparty Entities") that

involved transfers of money while efforts related to the Ballot Question were underway.

(R. 143-44.) On March 16, 2021, the Commission issued a second subpoena ("the

Subpoena"). 2 (R. 2-4.) The Subpoena contained Requests Nos. 5 and 6, which sought all

documents relating to the Nonparty Entities or entities funded by or through the

Nonparty Entities. (R. 3.) On April 16, 2021, STC filed objections to the Subpoena with the

Commission. (R. 9-11.)

The Commission considered STC's objections as a request to modify at its June 11,

2021 meeting and June 18, 2021 meeting. (R. 12, 99.) The Commission voted to modify

Request No. 4 and not to modify Requests Nos. 5 and 6. (R. 104.) The Commission issued

its written determination on the request to modify on July 2, 2021 ("the Determination").

(R. 132-152.) This SOC appeal followed, in which STC appeals the Determination on the

1 21-A M.R.S. § 1003(1) (2019) authorizes the Commission to conduct investigations of electoral campaign
activity and the registration and financial activities of political entities, including PACs. The Commission
is authorized to subpoena witnesses and records for investigatory purposes. Id.
2 Only the second subpoena is at issue in this appeal.

Page 2 of 6
grounds that Requests Nos. 5 and 6 violate the Fourth Amendment to the United States

Constitution and Article 1, section 5 of the Maine Constitution.

II. SOC Standard

Review of final actions of state agencies by the Superior Court is governed by the

Maine Administrative Procedures Act, 5 M.R.S. §§ 11001-11008, and M.R. Civ. P. SOC. The

court is authorized to reverse an agency's decision if the decision is in violation of

constitutional or statutory provisions, in excess of statutory authority, made upon

unlawful procedure, affected by bias or error of law, unsupported by substantial

evidence in the record, or arbitrary or capricious or characterized by abuse of discretion.

5 M.R.S. § 11007(4)(C); see Goodrich v. Me. Pub. Emps. Ret. Sys., 2012 ME 95, 'l[ 6, 48 A.3d

212. The court shall not substitute its judgment for that of the agency on questions of fact.

5 M.R.S. § 11007(3).

III. Discussion

On appeal, STC challenges the decision of the Commission not to modify Requests

Nos. 5 and 6 on constitutional grounds. Specifically, STC argues that Requests Nos. 5 and

6 violate the Fourth Amendment to the United States Constitution and Article 1, section

5 of the Maine Constitution because the requests are overbroad and not relevant to the

purpose of the Commission's investigation. 3 The United States Supreme Court has held

that "when an administrative agency subpoenas corporate books or records, the Fourth

Amendment requires that the subpoena be sufficiently limited in scope, relevant in

purpose, and specific in directive so that compliance will not be unreasonably

burdensome." See v. Seattle, 387 U.S. 541, 544 (1967); see Donovan v. Lone Steer, 464 U.S.

408, 415 (1984); Cent. Me. Power v. Me Pub. Utils. Comm'n, 395 A.2d 414, 426 (Me. 1978)

3Article 1, section 5 of the Maine Constitution has been interpreted coextensively with the Fourth
Amendment to the United States Constitution. State v. Gulick, 2000 ME 170, 'II 9 n.3, 759 A.2d 1085.

Page 3 of 6
(subpoena issued by administrative agency is enforceable if "(l) the inquiry is one the

demanding agency is authorized by law to make, (2) the information sought is relevant

to the authorized inquiry, and (3) the disclosure sought is reasonable, i.e., the demand is

not disproportionately burdensome or unreasonably broad").

A. Sufficiently Limited in Scope

STC argues that the requests are not "sufficiently limited in scope." STC claims

that Requests Nos. 5 and 6 exceed the scope of the Commission's investigatory authority

because the requested documents are unrelated to STC's activities in connection with the

Ballot Question. The scope of the investigation, which is to determine whether STC was

required to register as a PAC or STC, is squarely within the Commission's statutory

authority to investigate violations of Maine's campaign finance laws. See 21-A M.R.S. §

1003(1). As discussed below, the documents are clearly relevant to the Commission's

investigation. The record contains no evidence supporting STC's contention that the

documents are unrelated to activities within the scope of the Commission's investigatory

authority. Accordingly, the Court finds that Requests Nos. 5 and 6 are sufficiently limited

in scope.

B. Relevant in Purpose

STC argues that the documents sought in Requests Nos. 5 and 6 are not relevant

to the Commission's investigation. The underlying investigation seeks to determine

whether STC qualified as a PAC or BQC, and therefore whether STC violated Maine

campaign finance laws by failing to register as such. APAC is defined as including:

(1) Any separate or segregated fund established by any corporation,
membership organization, cooperative or labor or other organization
whose purpose is to initiate or influence a campaign;

(4) Any person, including any corporation or association, other than an
individual, that has as its major purpose initiating or influencing a

Page 4of 6
campaign and that receives contributions or makes expendihires
aggregating more than $1,500 in a calendar year for that purpose; and

(5) Any person, other than an individual, that does not have as its major
purpose influencing candidate elections but that receives contributions or
makes expenditures aggregating more than $5,000 in a calendar year for the
purpose of influencing the nomination or election of any candidate to
political office.

21-A M.R.S. § 1052(5)(A) (2019). However, the definition of PAC excludes:

[O]rganization[s] whose only payments of money in the prior 2 years for
the purpose of influencing a campaign in this State are contributions to
candidates, party committees, political action committees or ballot question
committees registered with the commission or a municipality and that has
not raised and accepted any contributions during the calendar year for the
purpose of influencing a campaign in this State.

§ 1052(5)(B). This exclusion is commonly referred to as the "donor exception."

A BQC is defined as an entity, other than a PAC, "who receives contributions or

makes expenditures, other than by contribution to a political action committee,

aggregating in excess of $5,000 for the purpose of initiating or influencing a campaign."

21-A M.R.S. § 1056-B (2019). 4

Thus, the nature and amount of an entity's expenditures, in part, determine

whether the entity is required to register as a PAC or BQC. Accordingly, information

about the aggregate of STC's expenditures, the purpose of the expenditures, the entities

to which expenditures were directed, and the purposes of the entities to which

expenditures were directed, is highly relevant to the investigation. While STC argues that

records relating to the Nonparty Entities are irrelevant because its payments to the

Nonparty Entities were made for purposes unrelated to the Ballot Question, the record

lacks any evidence supporting its contention. Review of the requested records is

necessary to shed light on this relevant question.

4
The Court notes that§ 1056-B was repealed effective October 18, 2021. The Commission's investigation
centers on STC's activities during the time that§ 1056-B was in effect.

Page 5 of 6
C. Specific in Directive

STC argues that Requests Nos. 5 and 6 are not specific in directive because the

requests seek all documents related to the Nonparty Entities. However, STC does not

assert and the record does not support that producing the requested documents would

be unreasonably burdensome. 5 Moreover, the requests are clearly distinguishable from a

demand for unfettered access to all the books and records of an organization. See requires

only that an agency designate "the needed documents in a formal subpoena," which the

Commission has satisfied.

IV. Conclusion

For the foregoing reasons, the Commission's decision not to modify or vacate

Requests Nos. 5 and 6 of the Subpoena did not constitute a violation of the Fourth

Amendment to the United States Constitution or Article 1, section 5 of the Maine

Constitution. Accordingly, the Court denies STC's SOC appeal.

The entry is:

Petitioner Clean Energy for ME, LLC, a /k/ a Stop the Corridor's Rule SOC appeal
is DENIED.

The Clerk is directed to incorporate this Decision into the docket by reference

pursuant to Maine Rule of Civil Procedure 79(a).
I

Dated:
I Ma <;;lay Kennedy, Justice J
I
..~·ii)~
M..•
I
/
Superior Cour/ 1

/

5 "Some burden on subpoenaed parties is to be expected, ... is necessary in furtherance of the agency's

legitimate inquiry and the public interest." United States v. Tivian Lab'ys, Inc., 589 F.2d 49, 55 (1st Cir. 1978)
(quoting ITC v. Texaco, Inc., 555 F.2d 862, 882 (D.C. Cir. 1977)).

Page 6 of 6