William Clardy v. Troy D. Jackson

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2024 ME 61
Docket: Ken-23-426
Argued: May 8, 2024
Decided: August 13, 2024

Panel: STANFILL, C.J., and MEAD, HORTON, CONNORS, LAWRENCE, and DOUGLAS, JJ.

WILLIAM CLARDY et al.

v.

TROY D. JACKSON et al.

STANFILL, C.J.

[¶1] William Clardy, Michelle Tucker, State Representative

Shelley Rudnicki, State Representative Randall Greenwood, and nonprofit

corporation Respect Maine brought suit against Senate President Troy D.

Jackson, Speaker of the House Rachel Talbot Ross, and Governor Janet T. Mills

seeking to invalidate the First Special Session of the 131st Legislature. The

Superior Court (Kennebec County, Murphy, J.) granted the defendants’ motion

to dismiss the complaint for failure to state a claim under M.R. Civ. P. 12(b)(6).

We affirm the dismissal, albeit on the ground that the plaintiffs lack standing.

I. BACKGROUND

[¶2] Viewed in the light most favorable to the plaintiffs, the complaint

alleges the following facts. See Berounsky v. Oceanside Rubbish, Inc., 2022 ME 3,
2

¶ 2, 266 A.3d 284. There are two regular sessions of each Maine Legislature.

Me. Const. art. IV, pt. 3, § 1. In addition to its regular sessions, the Legislature

may meet in special sessions, which can be called in one of two ways. Id.; Me.

Const. art. V, pt. 1, § 13. First, the Legislature may convene a special session by

consent “on the call of the President of the Senate and Speaker of the House,

with the consent of a majority of the Members of the Legislature of each political

party, all Members of the Legislature having first been polled.” Me. Const. art.

IV, pt. 3, § 1. Second, “[t]he Governor may, on extraordinary occasions, convene

the Legislature.” Me. Const. art. V, pt. 1, § 13.

[¶3] With limited exceptions not relevant here, the Legislature has

authority to control the agenda of its sessions and to adjourn each session sine

die.1 See Me. Const. art. III, § 2; Me. Const. art. IV, pt. 3, § 1; 3 M.R.S. § 2 (2023).2

[¶4] On March 30, 2023, during the First Regular Session of the

131st Legislature, the Maine Legislature considered L.D. 424 (131st Legis.

2023), the budget bill providing for approximately $10 billion in government

appropriations and spending “for the Fiscal Years ending June 30, 2023,

1Adjournment sine die, or “without day,” is the final adjournment of a legislative session. See
Opinion of the Justices, 2015 ME 107, ¶¶ 16 & n.3, 36-38, 123 A.3d 494.
2 Title 3 M.R.S. § 2 has since been amended, though the amendments are not relevant in this case.

P.L. 2023, ch. 446, § 1 (effective Oct. 25, 2023) (codified at 3 M.R.S. § 2 (2024)).
3

June 30, 2024, and June 30, 2025.”3 The then-current fiscal year would end on

June 30, 2023. If no biennial budget for Fiscal Years 2024 and 2025 had taken

effect by July 1, 2023, the government would have shut down on July 1. See

5 M.R.S. § 1501 (2023). Emergency legislation, which requires two-thirds

majority legislative approval, takes effect immediately upon the Governor’s

approval. See Me. Const. art. IV, pt. 3, § 16. Non-emergency legislation does not

take effect until ninety days after the Legislature adjourns sine die. Id. The

budget bill lacked bipartisan support and therefore could not pass as

emergency legislation. See id. Instead, it could garner only simple majority

approval in the Legislature, and thus the Legislature had to vote on the bill and

adjourn sine die by March 31 in order for a budget, and therefore funding for

government operations, to be in place for the new fiscal year. See id.; 5 M.R.S. §

1501.

[¶5] Before both chambers had voted on the budget bill, the Speaker of

the House polled the Legislature regarding convening in special session on

April 5, 2023, by consent. See Me. Const. art. IV, pt. 3, § 1. A majority of the

3 The bill provided the biennial budget for Fiscal Years 2024 and 2025 together with supplemental

funding for Fiscal Year 2023. See Comm. Amend. A to L.D. 424, No. H-12 (131st Legis. 2023).
4

members of one party voted against convening, and the Legislature therefore

could not convene in special session on its own accord on April 5.

[¶6] The Legislature then voted on the budget bill, which passed with a

simple majority vote. In addition, the Legislature passed a joint resolution to

carry over all unfinished legislative business from the First Regular Session to

the next special or regular session. S.P. 594 (131st Legis. 2023). Following

motions from both chambers, the Speaker adjourned the First Regular Session

sine die. The Speaker, the Senate President, and other members of the

Legislature expected that, despite the Legislature’s adjournment and vote not

to reconvene, the Governor would call the Legislature into a special session to

resume unfinished legislative business.

[¶7] As anticipated, the following day, Governor Mills signed the budget

bill into law, P.L. 2023, ch. 17 (effective June 29, 2023), and issued a

proclamation instructing the Legislature to convene in a special session. The

proclamation stated,

WHEREAS, there exists in the State of Maine an extraordinary
occasion arising out of the need to resolve many legislative matters
pending at the time of the adjournment of the First Regular Session
of the 131st Legislature of the State of Maine; and

WHEREAS, the public health, safety and welfare requires that the
Legislature resolve these pending matters as soon as possible, and
in any event prior to the date of the Second Regular Session of the
5

131st Legislature of the State of Maine, including but not limited to
the state budget, pending legislation, pending nominations of state
board and commission members, and pending nominations of
judicial officers by the Governor requiring legislative confirmation;

NOW, THEREFORE, I, JANET T. MILLS, Governor of the State of
Maine, by virtue of the constitutional power vested in me as
Governor pursuant to Article V, Part I, Section 13 of the
Constitution of the State of Maine, do convene the Legislature of
this State, and hereby request the Representatives to assemble at
ten o’clock and the Senators to assemble at ten o’clock in the
morning in their respective chambers at the Capitol in Augusta on
Wednesday, April 5, 2023, in order to receive communications,
resolve pending legislation carried over from the First Regular
Session of the 131st Legislature and act upon pending nominations
and whatever other business may come before the legislature.

Proclamation of Governor Janet T. Mills Convening the Members of the 131st

Legislature in Special Session, Off. of Governor Janet T. Mills,

https://www.maine.gov/governor/mills/official_documents/proclamations/

2023-03-proclamation-governor-janet-t-mills-convening-members (last

visited Aug. 9, 2024) [https://perma.cc/6N7K-29Z8]. In accordance with the

proclamation, the Speaker and the President assembled the Legislature on

April 5, 2023. The Legislature met eight times between April 5 and April 25 and

voted on various matters carried over from the First Regular Session, including

non-emergency laws; laws impacting spending, permitting rights,

governmental services, and aid programs; and laws affecting taxpayer

interests. The laws passed during the special session increased taxes and costs
6

for Maine people. Members of the Legislature who had voted not to convene a

special session by consent were compelled to appear at each meeting to avoid

bills passing without objection by vote of the majority party.

[¶8] On April 10, 2023, Maine citizen and taxpayer William Clardy and

unnamed plaintiffs “1–600” filed a complaint in the Kennebec County Superior

Court challenging the constitutionality of the special session. Two weeks later,

Clardy, along with Maine citizen and taxpayer Michelle Tucker, State

Representatives Rudnicki and Greenwood,4 and nonprofit corporation Respect

Maine filed an amended complaint containing two counts for declaratory and

injunctive relief against Speaker Talbot Ross, President Jackson, and Governor

Mills; this is the operative complaint. Count 1 alleged that the Governor’s

proclamation calling the Legislature into the special session was based on a

“contrived” extraordinary occasion and was therefore not a constitutional

exercise of her authority to convene the Legislature pursuant to Me. Const. art.

V, pt. 1, § 13. Count 2 alleged that the Speaker and President violated separation

of powers principles by “ceding Legislative power to the executive,” convening

the Legislature upon the Governor’s call, and conducting legislative business

4 The Representatives are also Maine citizens and taxpayers, and we assume they filed suit in their

capacities both as individual citizens and as legislators.
7

during an unconstitutional session. The complaint sought declarations that the

special session called by the Governor was unconstitutional and that legislation

passed during the session was void.

[¶9] Speaker Talbot Ross, President Jackson, and Governor Mills moved

to dismiss the amended complaint, arguing that the plaintiffs’ claims were

nonjusticiable, M.R. Civ. P. 12(b)(1), and that, because the defendants’ actions

did not violate the constitution, the amended complaint failed to state a claim

upon which relief could be granted, M.R. Civ. P. 12(b)(6). Following oral

argument on the motion, the court entered a judgment on October 13, 2023,

dismissing the complaint. Without deciding whether the plaintiffs had

standing, the court held that they had failed to state a claim because the

Governor’s determination that an extraordinary occasion existed to convene

the Legislature is not subject to judicial review and Speaker Talbot Ross and

President Jackson were immune from suit for their alleged conduct. The

plaintiffs timely appealed. M.R. App. P. 2B(c)(1).

II. DISCUSSION

[¶10] The plaintiffs argue that absent a true “extraordinary occasion,”

the Governor has no constitutional authority to convene the Legislature. In this

case, they argue, the Governor’s stated purpose of convening the Legislature to
8

complete unfinished legislative business from a prior session did not constitute

an extraordinary occasion, rendering the session unconstitutional and a

violation of separation of powers principles. The defendants argue that the

Governor’s determination of what constitutes an extraordinary occasion to

convene the Legislature is not subject to judicial review; that legislative

immunity precludes the plaintiffs’ claims against Speaker Talbot Ross and

President Jackson; and that the plaintiffs’ claims are nonjusticiable because,

among other things, the plaintiffs lack standing. We agree that the plaintiffs

lack standing and therefore we do not reach the merits of their appeal.

[¶11] The Superior Court assumed, without deciding, that the plaintiffs

have standing to challenge the validity of the Governor’s proclamation and the

special legislative session. The defendants have pressed the issue of standing

in their arguments to us, and it has been fully briefed by both sides. We review

standing de novo and may “raise the issue sua sponte,” even if the parties have

not raised it. Black v. Bureau of Parks & Lands, 2022 ME 58, ¶ 26, 288 A.3d 346.

[¶12] To sustain a claim for declaratory relief, a plaintiff must allege a

justiciable controversy, see Parker v. Dep’t of Inland Fisheries & Wildlife, 2024

ME 22, ¶ 13, 314 A.3d 208, and “a necessary element of justiciability is

standing.” Smith v. Allstate Ins. Co., 483 A.2d 344, 346 (Me. 1984). “The
9

plaintiffs bear the burden of establishing standing, which is determined based

on the circumstances that existed when the complaint was filed.” Black, 2022

ME 58, ¶ 26, 288 A.3d 346. Maine’s standing doctrine “has been applied in

varying contexts causing it to have a plurality of meanings.” Roop v. City of

Belfast, 2007 ME 32, ¶ 7, 915 A.2d 966 (quotation marks omitted). Nonetheless,

the hallmark of standing is the plaintiff’s “personal stake in the outcome of the

litigation.” Collins v. State, 2000 ME 85, ¶ 5, 750 A.2d 1257 (quotation marks

omitted).

[¶13] The complaint alleges that the plaintiffs fall into three categories.

First, it alleges that the individual plaintiffs, including Rudnicki and Greenwood

in their non-legislative capacity, are Maine citizens, taxpayers, and voters.

Second, it alleges that Representatives Rudnicki and Greenwood are elected

members of the 131st Legislature. Finally, it alleges that the organizational

plaintiff, Respect Maine, is a nonprofit corporation whose members are Maine

citizens and taxpayers. We address each category separately and conclude that

each plaintiff lacks standing.

A. Individual Plaintiffs

[¶14] The complaint alleges that bills passed during the special session

called by the Governor increase taxes and other costs on Mainers, causing
10

ongoing harm to the individual plaintiffs. Additionally, the complaint alleges

that the individual plaintiffs suffer injury because they are subject to laws

passed during an unconstitutional session of the legislature that are at risk of

being invalidated. The complaint thus alleges that the injury stems from the

individual plaintiffs’ statuses as taxpayers, citizens, and voters. We address

whether the plaintiffs have adequately pleaded standing under any theory.

1. Traditional Standing

[¶15] Generally, “to have standing to seek injunctive and declaratory

relief, a party must show that the challenged action constitutes” a “concrete and

particularized” injury that is “actual or imminent, not conjectural or

hypothetical.” Madore v. Me. Land Use Regul. Comm’n, 1998 ME 178, ¶ 13, 715

A.2d 157 (quotation marks omitted). Critically, the injury “must be distinct

from the harm suffered by the public-at-large.” Collins, 2000 ME 85, ¶ 6, 750

A.2d 1257.

[¶16] The plaintiffs argue that “members of the public writ large,

undoubtedly affected by legislation passed during an extraconstitutional

session, have standing to challenge the constitutionally repugnant legislative

activity precipitating the governmental action.” They rely on our decision in

Fitzgerald v. Baxter State Park Authority, where we held that citizens and users
11

of Baxter State Park, who had “been substantial users of Baxter State Park and

intend[ed] to use it substantially in the future,” had standing to enjoin the

Authority from carrying out a restoration project that would violate the

Authority’s trust obligations to maintain the land. 385 A.2d 189, 193, 197 (Me.

1978). We concluded that the Park users had demonstrated “a direct and

personal injury. . . to their interest in Baxter State Park.” Id.

[¶17] The Fitzgerald plaintiffs’ direct interest in the proper maintenance

of the Park, not their general interest in the proper function of government,

conferred standing. As we explained shortly after our Fitzgerald decision, a

plaintiff’s assertion “merely of the right, possessed by every citizen, to require

that the Government be administered according to law . . . does not confer

standing.” Heald v. Sch. Admin. Dist. No. 74, 387 A.2d 1, 4 (Me. 1978) (quotation

marks omitted). To the contrary, “[b]eing affected by a governmental action is

insufficient to confer standing in the absence of any showing that the effect is

an injury.” Collins, 2000 ME 85, ¶ 7, 750 A.2d 1257.

[¶18] Accepting as true that the individual plaintiffs will be subject to

laws passed during an unconstitutional legislative session, we conclude they

have failed to allege any particularized injury. Every Maine citizen will be

subject to the same laws; there is no difference between the individual
12

plaintiffs’ alleged injury and “the harm suffered by the public-at-large.” Id. ¶ 6.

They demonstrate no direct or personal interest, different from that of the

general public, in the special session called by the Governor or in the legislation

passed during it.

2. Taxpayer Standing

[¶19] In limited circumstances, we have concluded that taxpayers have

standing to contest unlawful government action. See, e.g., Common Cause v.

State, 455 A.2d 1, 13 (Me. 1983). In Common Cause, we held that Maine

taxpayers had standing to seek declaratory and injunctive relief in a claim

challenging the allegedly unconstitutional use of tax funds. Id. There, the

plaintiffs asserted a “direct interest in the enforcement of a provision of the

Maine Constitution which . . . is aimed precisely at protecting taxpayers from

having their tax dollars used for private purposes.” Id. at 10.

[¶20] Here, in contrast, the individual plaintiffs allege only that

legislation passed during the special session will increase their tax burden.

They have not alleged that any legislation considered or passed during the

special session is, on its own, unlawful, or that their tax dollars will be put to

improper use. Moreover, the challenged actions—the Governor’s proclamation

convening the Legislature in special session and the Speaker and President’s
13

assembling the Legislature—have no direct effect on taxpayer interests.5 Id.

(declining to decide that taxpayer standing exists “where the gravamen of the

complaint is the alleged violation of a . . . constitutional provision having little

or no direct connection with plaintiffs’ tax liability”). Unlike the plaintiffs in

Common Cause, the plaintiffs here have shown no direct connection between

the asserted constitutional violation and their tax dollars. See Collins, 2000 ME

85, ¶ 9, 750 A.2d 1257 (rejecting claim of taxpayer standing where plaintiff

alleged a constitutional violation having little direct connection with his tax

liability because his tax dollars did not directly pay the challenged bond debt)

The plaintiffs have not demonstrated taxpayer standing.

B. Representatives of the Maine Legislature

[¶21] We next address whether Representatives Rudnicki and

Greenwood have standing in their capacity as legislators. They allege they

suffered harm because the defendants’ conduct convening the special session

compelled them to legislate, despite having voted not to convene and

In Common Cause v. State, we stated that “[t]he chief argument against taxpayer standing . . . is
5

that the acknowledgement of such standing opens a door to litigation over decisions made at the
highest levels of state government.” 455 A.2d 1, 9 (Me. 1983). Given the tenuous relationship
between the individual plaintiffs’ claimed injury and the Governor’s proclamation convening the
special session, this argument has considerable weight here. See Black v. Bureau of Parks & Lands,
2022 ME 58, ¶ 27, 288 A.3d 346 (recognizing that “this Court may limit access to the courts to those
best suited to assert a particular claim” (quotation marks omitted)).
14

subsequently adjourning the First Regular Session sine die.6 They assert they

“have a personal stake in being compelled to the Legislature” because, had they

not appeared, the majority party would have “pass[ed] legislation without any

objection whatsoever.”

[¶22] We have not previously determined whether members of the

Legislature have standing generally to challenge government action. Black,

2022 ME 58, ¶ 31, 288 A.3d 346; cf. Me. Senate v. Sec’y of State, 2018 ME 52,

¶ 25, 183 A.3d 749 (“Assuming without deciding that the Senate has standing”

to seek a declaration of Secretary of State’s constitutional authority to

implement ranked-choice voting). Without deciding the outer limits of the

ability of legislators to maintain a suit for declaratory relief against government

actors, we hold that the Representatives lack standing here because they have

failed to meet the basic requirement that they assert an actual, concrete injury

arising from the defendants’ conduct. See, e.g., Collins, 2000 ME 85, ¶ 6, 750

A.2d 1257; Turner v. Shumlin, 163 A.3d 1173, 1178 (Vt. 2017) (requiring

legislators to meet traditional standing requirements).

The plaintiffs’ argument that the defendants “colluded” to adjourn the First Regular Session
6

prematurely and convene, at the Governor’s call, to continue unfinished legislative business adds
nothing in the way of standing.
15

[¶23] As we have said, standing requires that a plaintiff demonstrate a

“concrete and particularized” injury that is “actual or imminent, not conjectural

or hypothetical.” Madore, 1998 ME 178, ¶ 13, 715 A.2d 157 (quotation marks

omitted). The Representatives claim that the special session called by the

Governor and carried out by the Speaker and President deprived the

Representatives of the benefit of their votes not to reconvene and the

Legislature’s decision to adjourn the First Regular Session. These allegations

do not establish any injury because, although in reviewing the dismissal

pursuant to M.R. Civ. P. 12(b)(6) we accept the facts alleged in the complaint as

true, “we are not bound to accept the complaint’s legal conclusions.” Collins,

2000 ME 85, ¶ 4, 750 A.2d 1257 (quotation marks omitted).

[¶24] Contrary to the allegations in the complaint, the Representatives’

votes concerning convening by consent and the Legislature’s adjournment of

the First Regular Session were given full effect. No special session was

convened by consent, and the First Regular Session of the Legislature was in

fact adjourned. The Governor called the Legislature into the special session

only after the First Regular Session had ended; the fact that she did so does not

alter the validity and effect of the legislative votes. There can be no question

that her authority to convene the Legislature, irrespective of whether there
16

exists an “extraordinary occasion” to do so, is not conditioned on the

Legislature’s separate authority to convene itself in special session with the

approval of a majority of the members of each political party. See Me. Const.

art. V, pt. 1, § 13. Thus, the defendants’ conduct could not and did not harm the

Representatives’ role in voting not to reconvene or in adjourning the First

Regular Session. See Jeffs v. Utah Power & Light Co., 12 A.2d 592, 600 (Me. 1940)

(“A plaintiff, who can show no injury to himself by reason of the facts of which

he complains, surely has no standing in court.”); Markham v. Wolf, 136 A.3d 134,

145 (Pa. 2016) (“[Legislative] [s]tanding exists only when a legislator’s direct

and substantial interest in his or her ability to participate in the voting process

is negatively impacted, or when he or she has suffered a concrete impairment

or deprivation of an official power or authority to act as a legislator.” (citations

omitted)).

[¶25] Once called into session by the Governor, the Legislature—as

always—had the exclusive authority to adjourn immediately, to determine the

agenda of the special session, or to vote not to pass any legislation. See Me.

Const. art. III, pt. 1, § 2; Me. Const. art. IV, pt. 3, § 1. The Governor’s proclamation

did not compel the legislators to take any action. Moreover, although the

Speaker and President did not immediately seek to adjourn the special session,
17

the Representatives’ claim that they were required to participate in the session

to avoid bills that they opposed “passing with no objection whatsoever” is no

more than a claim that they undertook their responsibilities as legislators

seriously, as they presumably would in any legislative session.7 Because the

Representatives failed to allege any concrete injury arising from the Governor’s

proclamation or the convening of the special session by the Speaker and

President, the Representatives also lack standing.

C. Respect Maine

[¶26] Finally, we note that Respect Maine also lacks standing because

none of its members have standing. The plaintiffs allege that Respect Maine is

a nonprofit corporation “comprised of Maine residents, taxpayers, and

members of the 131st Legislature, that advocates for responsible government.”

Associational standing exists if (1) the organization’s members would have

standing to sue individually, (2) the interests involved are germane to the

organization’s purpose, and (3) “neither the claim asserted nor the relief

7To the extent that Speaker Talbot Ross and President Jackson can be said to have injured the
Representatives by not immediately adjourning the special session called by the Governor, the
Representatives still would not be entitled to relief. Legislators acting within the “sphere of
legitimate legislative activity . . . enjoy[] absolute common law immunity” from claims for declaratory
and injunctive relief. Lightfoot v. State of Me. Legislature, 583 A.2d 694, 694 (Me. 1990). Convening
the Legislature and acting upon legislation, as the Speaker and President did, are activities within the
constitutional sphere of legislative activity. See id.; Me. Const. art. IV, pt. 3, § 1. They are immune
from the plaintiffs’ suit.
18

requested requires the participation of individual members.” Black, 2022 ME

58, ¶ 29, 288 A.3d 346. Because, as discussed above, the harm alleged in the

complaint does not confer standing on individual plaintiffs, Respect Maine has

not demonstrated that its members “have standing to sue in their own right.”

Id.

[¶27] Although the trial court in ruling on the motion to dismiss assumed

the plaintiffs sufficiently alleged standing, we may affirm the trial court’s order

for reasons different from those the trial court relied on “when we determine,

as a matter of law, that there is another valid basis for the judgment.” Yankee

Pride Transp. & Logistics, Inc. v. UIG, Inc., 2021 ME 65, ¶ 11, 264 A.3d 1248; see

Fitch v. Doe, 2005 ME 39, ¶ 21, 869 A.2d 722. Despite alleging that they are

citizens, taxpayers, voters, and legislators, no plaintiff has suffered an injury

sufficient to confer standing to bring this case.

The entry is:

Judgment affirmed.
19

Carl E. Woock, Esq. (orally), and Stephen C. Smith, Esq., Steve Smith Trial
Lawyers, Augusta, for appellants William Clardy, Michelle Tucker,
Shelley Rudnicki, Randall Greenwood, and Respect Maine

Aaron M. Frey, Attorney General, and Kimberly L. Patwardhan, Asst. Atty. Gen.
(orally), Office of the Attorney General, Augusta, for appellees Troy D. Jackson,
Rachel Talbot Ross, and Janet T. Mills

Kennebec County Superior Court docket number CV-2023-52
FOR CLERK REFERENCE ONLY