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Palesky v. Secretary of State
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MAINE SUPREME JUDICIAL COURT            Reporter of Decisions
Decision:1998 ME 103
Docket:Ken-98-201
Submitted
on Briefs:May 4, 1998
Decided:May  8, 1998


Panel:WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, and SAUFLEY, JJ.





CAROL A. PALESKY v. SECRETARY OF STATE


WATHEN, C.J.

	[¶1]  Carol A. Palesky appeals from the entry of a judgment in the
Superior Court (Kennebec County, Mills, J.) affirming a decision of the
Secretary of State rejecting a direct initiative petition because it was not
signed by the requisite number of electors.  The Secretary of State
invalidated a total of 20,786 signatures leaving the petition 6,369 signatures
short of the 51,131 signatures (10% of votes cast in last gubernatorial
election) required to place the initiative on a statewide ballot.  On appeal,
Palesky argues that the Secretary of State erroneously invalidated 9,409 of
those signatures and asks that the initiative be placed on the November
1998 ballot.  By statute, we are required to decide this appeal within thirty
days of the date of the decision of the Superior Court.  21-A M.R.S.A. §
905(3) (1993). Finding no error on the part of the Secretary of State, we
affirm the judgment.
	[¶2] The relevant facts may be briefly summarized as follows:  In
September of 1994, Palesky and the Maine Taxpayer Association Network
(MTAN) applied for approval of a direct initiative petition entitled "An Act to
Impose Limits on Real and Personal Property Taxes." The Secretary of State
approved the form of their petition on October 14, 1994, and the
proponents then had three years to circulate and gather the 51,131
signatures required to place the initiative on the ballot.  See 21-A M.R.S.A. §
903-A(1) (Supp. 1997).
	[¶3] Proponents first submitted 53,000 signatures in January of 1996,
but the Secretary of State rejected more than half of those signatures on the
basis of apparent forgeries of the dates on individual signature lines and
certifications.  Palesky was convicted of aggravated forgery in August of 1997
as a result of her participation in gathering and submitting the signatures. 
The proponents continued to gather additional signatures, however, and
within the three-year period submitted a total of 65,548 signatures beyond
those invalidated in 1996. In January 1997, the Secretary of State again
reviewed the petitions presented to him and invalidated a total of 15,719
signatures.  He invalidated the signatures on the basis of defects apparent on
the face of the petitions: altered petitions and certifications; defects in
certifications; signatures more than one year old at time of certification; and
incomplete circulator-verification forms.  MTAN, Palesky and four other
named individuals filed a complaint in the Superior Court seeking review of
the Secretary of State's decision pursuant to 21-A M.R.S.A. § 905 (1993 &
Supp. 1997){1} and M.R. Civ. P. 80C.  Following the filing of the complaint and
the submission of briefs by both sides, the Secretary of State obtained a
remand to his agency, pursuant to M.R. Civ. P. 80C(e), to permit him to
entertain the presentation of newly discovered evidence of fraud.  After
receiving additional evidence in the form of affidavits and documents
submitted by both the Attorney General and Palesky, the Secretary of State
amended his decision and invalidated a total of 20,786 signatures.  At this
point, plaintiffs' counsel withdrew.  
	[¶4] When this complex matter came on for hearing, the Superior
Court was confronted with the necessity of trying the matter within fifteen
days of the Secretary of State's decision, with six unrepresented plaintiffs
and a question of first impression concerning the nature of the review.  Was
the court to review the record of the action taken by the Secretary of State
or to hold a full evidentiary trial?  The court, over the objection of the
Secretary of State, prudently chose to hold a trial, and received evidence on
all issues.  The court then considered the agency record, as well as the
evidence presented at trial, and affirmed the decision of the Secretary of
State.  Plaintiff Palesky alone appeals from the court's ruling.
	[¶5] We first hold that Palesky was not entitled to the full trial that she
received.  Section 905 provides that an appeal to the Superior Court "must
be commenced within five days of the date of the decision of the Secretary
of State and shall be tried without a jury, within fifteen days of the date of
that decision." 21-A M.R.S.A. § 905(2) (1993).  It further provides, however,
that the appeal "shall be conducted in accordance with the Maine Rules of
Civil Procedure, Rule 80C, except as modified by this section." Id.  The
provisions of section 905 that could be deemed "modifications" of Rule 80C
relate to the expedited timing of the appeal.  Accordingly, the procedural
framework of the hearing is set forth in Rule 80C.  
	[¶6] The Legislature has in certain instances explicitly provided for
the review of agency action with a full de novo trial in the Superior Court. 
For example, with respect to the appeal of the decision of the State Tax
Assessor, pursuant to Rule 80C, the underlying statute provides in relevant
part: "The Superior Court shall conduct a de novo hearing and make a de
novo determination of the merits of the case.  It shall make its own
determination as to all questions of fact or law." 36 M.R.S.A. § 151 (Supp.
1997).  We explained the  legal significance of such explicit language in
these terms: 
Following the 1991 amendment, the Superior Court no longer
functions in an appellate capacity for the purpose of reviewing
the decision of the Assessor.  Rather, the court functions as the
forum of origin for a determination of both facts and law.  In that
capacity it would be inappropriate for the court to defer to
previous decisions of one of the litigants or to give deference to
one of the litigant's interpretations of the law applicable to the
facts as determined by the court or agreed to by the parties.
Enerquin Air, Inc. v. State Tax Assessor, 670 A.2d 926, 928-29 (Me. 1996). 
The language of section 905 falls far short of requiring a full de novo trial.
	[¶7] The history of Rule 80C and its predecessor, Rule 80B,{2}
demonstrates that when, as here, a statute calls for an administrative action
to be "tried," the nature of the hearing is controlled by the procedure set
forth in the rule.  As the reporter's notes state, "these rules shall govern
trial when the review provided by statute calls for a trial." M.R. Civ. P. 80B
reporter's notes.  In later notes, it is explained that Rule 80B(d) was added
to include formal requirements to govern a party's ability to seek a trial on
the facts:
    This amendment creates a new procedure for Rule 80B
actions where a trial of the facts is appropriate.
     It requires that the party seeking to introduce new evidence
justify his demand for a trial of the facts at a hearing before the
court.  This amendment requires that a party seeking to add
facts to the existing record file a motion to do so.  With the
motion, the party shall be required to file an offer of proof.
     The court should then decide what evidence, if any, is
appropriate to be heard in a trial on the facts.  The court's action
would, of course, be subject to any requirements of the statute or
law under which the review is sought, e.g., 5 M.R.S.A. § 11006 of
the Administrative Procedure Act, which limits a court's ability
to go outside the record in state agency reviews.
M.R. Civ. P. 80B advisory committee's notes to 1981 amend., Me. Rptr., 428-
433 A.2d LIV.  Although this commentary is directed at Rule 80B(d), when
Rule 80C was promulgated, the advisory committee noted that Rule 80C(e)
provided the procedure for taking additional evidence when appropriate
under 5 M.R.S.A. § 11006(1) and that Rule 80C(e) is basically the equivalent
of 80B(d).  M.R. Civ. P. 80C advisory committee's notes to 1983 amend., Me.
Rptr., 459-466 A.2d XLVIII.
	[¶8] In reviewing an appeal from a tax assessor in 1974, we held that
when a statute allows an appeal to be "tried, heard and determined by the
court without a jury . . . Rule 80B, M.R. Civ. P., supplies the procedural
framework for review of all administrative action where, as here, the
petitioner's right to such review is provided by statute." Frank v. Assessors
of Skowhegan, 329 A.2d 167, 170 (Me. 1974). The appeal in the present
case is "tried" in the Superior Court, but the taking of evidence is
controlled by Rule 80C(e) and the judicial review provisions of the
Administrative Procedures Act.{3}
	[¶9] Here, Palesky made no request for taking additional evidence, nor
has she presented a transcript of the evidence received in the Superior
Court as part of the record on this appeal.  Although, in an exercise of
caution, the court received evidence on all issues, on this record it was
required to act only in an appellate capacity.  Thus, we review the decision
of the Secretary of State directly, Maine Bankers Ass'n v. Bureau of Banking,
684 A.2d 1304, 1305-1306 (Me. 1996) (where Superior Court acts as an
intermediate appellate court, this Court reviews the agency directly),
reviewing for abuse of discretion, errors of law, or findings not supported by
evidence.  Id. (citing Centamore v. Department of Human Servs., 664 A.2d
369, 370 (Me. 1995)).
	[¶10] Petitioner first challenges the Secretary's decision invalidating
certain petitions for defects in the oaths taken by circulators.  The Maine
Constitution requires that a person circulating a petition for signatures must
take an oath that "all the signatures to the petition were made in the
presence of the circulator and that to the best of the circulator's knowledge
and belief each signature is the signature of the person whose name it
purports to be . . . ." Me. Const. art. IV, pt. 3, § 20 (Supp. 1997).  The oath of
the circulator "must be sworn in the presence of a person authorized by law
to administer oaths." Id.  
	[¶11]   The Secretary of State received affidavits from seven
circulators stating that they did not take an oath in the presence of Donna
Hamilton, Palesky's daughter, the notary public whose name appears on
their petitions, nor did they take an oath before any other authorized
person.  The affidavits fully support the invalidation of the petitions.  See
Opinion of the Justices, 116 Me. 557, 569, 103 A. 761, 767 (1917) ("The
constitution itself prescribes these . . . indispensable accompaniments of a
valid petition, and a petition which lacks these requirements is invalid and
cannot be counted").  Thus, the Secretary of State committed no error in
this regard.  
	[¶12] Palesky next argues that the Secretary of State erred in
invalidating 365 signatures because the signatures were not on the approved
petition form.{4}  The Maine Constitution art. IV, pt. 3, § 20 and 21-A M.R.S.A.
§ 901 (Supp. 1997) require that petitions shall be furnished or approved by
the Secretary of State.  This requirement guarantees "clarity and allows for
procedural uniformity through the requirement that a standard form be used
or a petitioner-supplied form be approved by the Secretary.  Compliance
with this section imposes a justifiable minimal burden on a petitioner."
Wyman v. Secretary of State, 625 A.2d 307, 311 (Me. 1993).  The Secretary
of State did not err in rejecting signatures on unapproved forms.
	[¶13] Palesky next attempts to challenge the criteria which she
suggests the local registrars used in declining to certify signatures on the
petitions.  The Maine Constitution requires that a petition must be
"accompanied by the certificate of the official authorized by law to maintain
the voting list of the city, town or planation in which the petitioners reside
that their names appear on the voting list of the city, town or plantation of
the official as qualified to vote for Governor." Me. Const. art. IV, pt. 3, § 20
(Supp. 1997).  The local registrar has the exclusive authority to maintain the
voting list for each locality.  21-A M.R.S.A. §§ 121, 161 (1993 & Supp.
1997).  We have previously noted that if a petition does not contain the
registrar's certification as required by the constitution, it "is not a petition
within the meaning of [the Constitution]".  Opinion of the Justices, 114 Me.
557, 567, 95 A. 869, 873 (1915); see Opinion of the Justices, 116 Me. 557,
569, 103 A. 761, 767 (1917).  Nor can this defect be remedied after the
deadline for submission to the Secretary of State.  Id.  Here, the Secretary of
State correctly applied the constitutional requirement that petitions be
accompanied by the certification of the local registrar and thus did not err
in invalidating those lacking proper certification.{5}
	[¶14] Finally, Palesky contends that the court was without authority to
remand to the Secretary of State to allow the taking of additional evidence.
Rule 80C(e) and the underlying statute allows the court to remand if:
. . . [A]pplication is made to the reviewing court for leave to
present additional evidence, and it is shown that the additional
evidence is material to the issues presented in the review, and
could not have been presented or was erroneously disallowed in
proceedings before the agency.
5 M.R.S.A. § 11006(1)(B) (1989).  Here, the State moved to remand and
made an offer of proof to the effect that it had obtained newly discovered
evidence of fraud.  The court did not err in remanding to the Secretary of
State.
	The entry is:
					Judgment affirmed.
       
For plaintiff: Carol A. Palesky Kennebec County Correctional Facility 115 State Street Augusta, ME 04330 Attorneys for defendant Andrew Ketterer, Attorney General Thomas D. Warren, State Solicitor Phyllis Gardiner, Asst. Atty. Gen. 6 State House Station Augusta, ME 04333-0006 Attorney for intervenors: Bruce Gerrity, Esq. Preti, Flaherty, Beliveau & Pachios. LLC P O Box 1058 Augusta, ME 04330 (for Maine Citizens for Responsible Government, and others)
FOOTNOTES******************************** {1} The statute provides: 1. Secretary of State. The Secretary of State shall review all petitions filed in the Department of the Secretary of State for a people's veto referendum under the Constitution of Maine, Article IV, Part Third, Section 17, or for a direct initiative under the Constitution of Maine, Article IV, Part Third, Section 18. The Secretary of State shall determine the validity of the petition and issue a written decision stating the reasons for the decision within 30 days after the final date for filing the petitions in the Department of the Secretary of State under the Constitution of Maine, Article IV, Part Third, Section 17 or 18. 2. Superior Court. Any voter named in the application under section 901, or any person who has validly signed the petitions, if these petitions are determined to be invalid, or any other voter, if these petitions are determined to be valid, may appeal the decision of the Secretary of State by commencing an action in the Superior Court. This action shall be conducted in accordance with the Maine Rules of Civil Procedure, Rule 80C, except as modified by this section. In reviewing the decision of the Secretary of State, the court shall determine whether the description of the subject matter is understandable to a reasonable voter reading the question for the first time and will not mislead a reasonable voter who understands the proposed legislation into voting contrary to his wishes. This action must be commenced within 5 days of the date of the decision of the Secretary of State and shall be tried, without a jury, within 15 days of the date of that decision. Upon timely application, anyone may intervene in this action when the applicant claims an interest relating to the subject matter of the petitions, unless the applicant's interest is adequately represented by existing parties. The court shall issue its written decision containing its findings of fact and stating the reasons for its decision within 30 days of the commencement of the trial or within 45 days of the date of the decision of the Secretary of State, if there is no trial. 3. Supreme Judicial Court. Any aggrieved party may appeal the decision of the Superior Court, on questions of law, by filing a notice of appeal within 3 days of that decision. The appellant must file the required number of copies of the record with the clerk within 3 days after filing notice of appeal. After a notice of appeal is filed, the parties have 10 days to file briefs with the clerk of courts. As soon as the record and briefs have been filed, the court shall immediately consider the case. The standard of review shall be the same as for the Superior Court. The court shall issue its decision within 30 days of the date of the decision of the Superior Court. {2} Prior to the adoption of M.R. Civ. P. 80C, both governmental and agency actions were reviewed according to M.R. Civ. P. 80B: "Prior to the adoption of [80C], APA [Administrative Procedure Act] appeals as well as non-APA appeals were governed by Rule 80B . . . and reference should be made to the Advisory Committee Notes to amended Rule 80B for discussion of the provisions of Rule 80C." M.R. Civ. P. 80C advisory committee's notes 1983 amend., Me. Rptr., 459-466 A.2d XLVII. {3} 5 M.R.S.A. § 11006(1) (1993) provides as follows: 1. Review. Judicial review shall be confined to the record upon which the agency decision was based, except as otherwise provided by this section. A. In the case of the failure or refusal of an agency to act or of alleged irregularities in procedure before the agency which are not adequately revealed in the record, evidence thereon may be taken and determination made by the reviewing court. B. The reviewing court may order the taking of additional evidence before the agency if it finds that additional evidence, including evidence concerning alleged unconstitutional takings of property, is necessary to deciding the petition for review; or if application is made to the reviewing court for leave to present additional evidence, and it is shown that the additional evidence is material to the issues presented in the review, and could not have been presented or was erroneously disallowed in proceedings before the agency. After taking the additional evidence, the agency may modify its findings and decisions, and shall file with the court, to become part of the record for review, the additional evidence and any new findings or decision. C. If a required hearing was not held before the review proceedings were initiated, the reviewing court shall remand to the agency for a hearing in accordance with subchapter IV. D. In cases where an adjudicatory proceeding prior to final agency action was not required, and where effective judicial review is precluded by the absence of a reviewable administrative record, the court may either remand for such proceedings as are needed to prepare such a record or conduct a hearing de novo. {4} Petition nos. 3044, 3048, 3057, 3059, 3063, 3066, 3067, 3068, 4390 did not have the proposed legislation on the back of the petition and petition nos. 3022, 3023, 3024 had the proposed legislation stapled to the form. {5} Similarly, the Constitution requires that "[t]he date each signature was made shall be written next to the signature on the petition, and no signature older than one year from the written date on the petition shall be valid." Me. Const., art. IV, pt. 3, § 18(2) (Supp. 1997). These constitutional requirements are not mere technicalities. Palesky's argument that "circulators may fill in or correct in any block on a petition except signature which they did [and] . . . [R]egistered voters may correct anything on petitions in they made an error such as date [sic]" is without merit. The Secretary of State committed no error in strictly applying the constitutional requirements for placing a petition on the ballot.