National Organization for Marriage v. Commission of Gevernmental Ethics and Elections Practices

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2015 ME 103Docket: BCD-15-225
Submitted
On Briefs: July 1, 2015
Decided: August 4, 2015
Panel: ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
NATIONAL ORGANIZATION FOR MARRIAGE
v.
COMMISSION ON GOVERNMENTAL ETHICS AND ELECTIONS
PRACTICES
ORDER ON PETITIONER’S MOTION TO CLARIFY STAY OR, IN THE
ALTERNATIVE, MOTION FOR A STAY OF AGENCY ACTION
PER CURIAM
[¶1] The National Organization for Marriage (NOM) has moved for a stay
pending the resolution of its appeal from a decision of the Business and Consumer
Docket (Murphy, J.) denying NOM’s petition for review, pursuant to M.R.
Civ. P. 80C, of a determination of the Commission on Governmental Ethics and
Elections Practices. The Commission concluded that NOM is a “ballot question
committee” (BQC) and is therefore subject to and in violation of the registration
and reporting requirements of 21-A M.R.S. § 1056-B (2008).1
1
Title 21-A M.R.S. § 1056-B has been amended since the events at issue here, primarily in ways that
are not relevant to this case, but also to change some of the language that NOM has challenged in federal
court as unconstitutionally vague. See P.L. 2009, ch. 190, § A-20 (effective Sept. 12, 2009); P.L. 2009,
ch. 366, § 7 (effective Sept. 12, 2009); P.L. 2009, ch. 524, §§ 8-13 (effective July 12, 2010); P.L. 2011,
2
[¶2] NOM asserts that the Commission’s determination is automatically
stayed pending appeal pursuant to M.R. Civ. P. 62(e), and, alternatively, petitions
for a stay of the Commission’s decision pursuant to our inherent equitable
authority.2 The Commission opposes the motion. After review of the motion
record, we conclude that the Commission’s decision is not automatically stayed,
and we deny NOM’s motion for a stay.
I. BACKGROUND
[¶3] NOM is a national nonprofit advocacy corporation “dedicated to
preserving the institution of marriage as between one man and one woman.” In
2009, NOM made contributions of more than $2 million to Stand for Marriage
Maine, a political action committee (PAC) that was formed to promote the
November 2009 people’s veto referendum to suspend a Maine law allowing
same-sex marriage. Despite its active involvement in support of the referendum,
NOM never registered with the Commission as a “ballot question committee”
pursuant to 21-A M.R.S. § 1056-B, which, at the time, required registration by any
person who received contributions in excess of $5,000 “for the purpose of . . .
ch. 389, §§ 39-42 (effective June 20, 2011); P.L. 2011, ch. 389, § 38 (effective Aug. 1, 2011) (now
codified at 21-A M.R.S. § 1056-B (2014)).
2
Among other things, NOM seeks to stay the portion of the Commission’s decision that requires
NOM to file a consolidated campaign finance report.
3
influencing in any way a ballot question.”3 Registering as a BQC would have
required NOM to publicly report its donors and the expenditures it made to
influence the referendum. See id. § 1056-B(2).
[¶4] In August 2009, the Commission received a complaint that NOM was
not in compliance with the registration and reporting requirements of section
1056-B. After considering evidence submitted by both sides, the Commission
voted to commence a formal investigation of NOM in October 2009. Shortly after
the Commission began its investigation, NOM mounted several ultimately
unsuccessful legal challenges in federal court to the constitutionality of Maine’s
campaign and election laws.4 See Nat’l Org. for Marriage v. McKee, 666 F. Supp.
2d 193 (D. Me. 2009) (denying NOM’s motion for a temporary restraining order
and finding that NOM did not have a high likelihood of success on the merits of its
3
The statute required “[a]ny person not defined as a political action committee who solicits and
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, promoting, defeating, or influencing in any
way a ballot question must file a report with the commission.” 21-A M.R.S. § 1056-B (2008). In
addition, the statute required that any such person “register with the commission as a ballot question
committee” within seven days of receiving contributions or making expenditures in excess of $5,000. Id.
The current statute contains substantially similar language, but requires that a contribution be “for the
purpose of initiating or influencing” a ballot question, rather than “for the purpose of initiating,
promoting, defeating, or influencing in any way” a ballot question. See 21-A M.R.S. 1056-B (2014).
4
Initially, NOM challenged only section 1056-B and the reporting and registration requirements for
ballot question committees, but then commenced a separate lawsuit arguing that Maine’s PAC laws were
unconstitutionally vague. See Nat’l Org. for Marriage & Am. Principles in Action v. McKee,
765 F. Supp. 2d 38, 40 n.1 (D. Me. 2011) (describing the two lawsuits). The First Circuit upheld the
constitutionality of Maine’s PAC laws in Nat’l Org. for Marriage v. McKee, 649 F.3d 34, 56-70 (1st Cir.
2011), and reversed the District Court’s conclusion that the use of the term “influencing” as used in the
PAC statute was unconstitutionally vague. See Nat’l Org. for Marriage v. McKee, 723 F. Supp. 2d 245,
259-61 (D. Me. 2010).
4
constitutional claims); Nat’l Org. for Marriage & Am. Principles in Action v.
McKee, 765 F. Supp. 2d 38, 44-53 (D. Me. 2011) (granting summary judgment in
favor of the Commission and rejecting NOM’s First Amendment, overbreadth, and
vagueness challenges to the constitutionality of section 1056-B); Nat’l Org. for
Marriage, Inc. v. McKee, 669 F.3d 34, 50 (1st Cir. 2012) (affirming the judgment
of the District Court and concluding that “section 1056-B satisfies constitutional
standards”).
[¶5] After considering evidence and argument submitted by NOM and
Commission staff, the Commission issued a written decision with extensive factual
findings on June 30, 2014. The Commission concluded that NOM had received
contributions in excess of $5,000 for the purpose of influencing the people’s veto
referendum and ordered that NOM register as a BQC and file the appropriate
campaign finance reports. The Commission also ordered that NOM pay $50,250
in fines for failing to timely register and file all of the required reports dating back
to 2009.
[¶6] Following the Commission’s decision, NOM filed an application with
the Commission for a stay pending appeal pursuant to 5 M.R.S. § 11004 (2014).
The Commission granted NOM’s application in part, staying the requirement that
NOM submit a campaign finance report until NOM could petition the Superior
Court for a stay, but denying NOM’s application for a stay in all other respects.
5
On August 1, 2014, NOM filed a petition in the Superior Court (Kennebec
County)5 for review of the Commission’s decision pursuant to M.R. Civ. P. 80C,
which was accompanied by a motion for a stay pending appeal. The court issued
an order on September 9, 2014, providing “by agreement of the parties” that NOM
was not required to file a campaign finance report until twenty-one days after the
court’s final decision on the Rule 80C petition and that NOM’s motion for a stay
was therefore deemed withdrawn. Following full briefing and a hearing, the court
denied NOM’s petition for review of the Commission’s decision on April 13,
2015.
[¶7] On May 4, 2015, NOM filed a timely notice of appeal and also filed a
new motion in the trial court for a stay of the Commission’s decision. The appeal
was docketed in the Law Court on May 11, 2015, but on June 1, 2015, the trial
court denied NOM’s request for a stay, finding that Rule 62(e) did not apply and
that NOM had not met the requirements for a stay of agency action set out in
5 M.R.S. § 11004.6 On June 5, 2015, NOM filed a motion with us, seeking
5
The case was transferred to the Business and Consumer Docket on October 28, 2014.
6
NOM did not appeal that decision, instead choosing to file the application for a stay that is now
before this Court. NOM’s failure to appeal does not bar our consideration of NOM’s motion in this Court
because the Business and Consumer Docket no longer had jurisdiction to rule on NOM’s motion for a
stay. See M.R. App. P. 3(b); Doggett v. Town of Gouldsboro, 2002 ME 175, ¶ 5, 812 A.2d 256 (“When
an appeal is taken from a trial court action, the trial court’s authority over the matter is suspended and[]
[t]he trial court shall take no further action pending disposition of the appeal by the Law Court.”
(alteration omitted) (quotation marks omitted)); Hawkes Television, Inc. v. Me. Bureau of Consumer
Credit Prot., 462 A.2d 1167, 1170 (Me. 1983) (holding that “[t]he Superior Court had no authority in this
6
“clarification” or “confirmation” that the trial court’s judgment and the
Commission’s decision are automatically stayed pursuant to M.R. Civ. P. 62(e), or,
alternatively, seeking a stay pursuant to our inherent power to grant a stay. See
M.R. App. P. 10. That motion is at issue here.
II. ANALYSIS
[¶8] NOM’s motion presents two questions: First, whether M.R.
Civ. P. 62(e) applies to automatically stay the agency action in this case, and,
second, if there is no automatic stay, whether we should nevertheless grant a stay
in order to preserve the status quo pending the outcome of the appeal.
A. Automatic Stay Pursuant to M.R. Civ. P. 62(e)
[¶9] NOM argues that the Commission’s decision is automatically stayed
pursuant to M.R. Civ. P. 62(e), which provides that, subject to several exceptions,
“the taking of an appeal from a judgment shall operate as a stay of execution upon
the judgment during the pendency of the appeal.”
[¶10] As an initial matter, the term “judgment” is defined in the Rules as “a
decree and any order from which an appeal lies.” M.R. Civ. P. 54(a); see also
First NH Banks Granite State v. Scarborough, 615 A.2d 248, 251 (Me. 1992)
(applying the definition in Rule 54(a) to Rule 62(e)). That definition does not
case to issue an injunction after [the appellant’s] appeal had been docketed in the Law Court”). In fact,
the trial court in its order on NOM’s request for a stay acknowledged the possibility that it did not have
authority to act on the request.
7
include agency actions, because an appeal to the Law Court does not lie directly
from the agency’s decision but instead from the Superior Court’s review of that
decision.7 Additionally, the plain language of “execution upon the judgment” in
M.R. Civ. P. 62(e) does not include agency actions because they are not judgments
upon which an execution may issue. See M.R. Civ. P. 69.
[¶11] Moreover, Rule 80C provides a clear mechanism for seeking a stay of
final agency action in the Superior Court. See M.R. Civ. P. 80C(b) (stating that the
procedure for stays of final agency action “shall be as provided by 5 M.R.S.[]
§ 11004”). Pursuant to that Rule, the applicant must first seek a stay from the
agency, and only if that fails may the applicant seek a stay from the Superior
Court. See 5 M.R.S. § 11004; see also Allied Res., Inc. v. Dep’t of Pub. Safety,
2010 ME 64, ¶¶ 6-8, 999 A.2d 940 (explaining that the Superior Court granted a
stay of agency action pursuant to M.R. Civ. P. 80C(b) and that the Law Court
granted a stay, but not discussing the possibility of an automatic stay pursuant to
M.R. Civ. P. 62(e)). Section 11004 also specifically states that “[t]he filing of a
petition for review shall not operate as a stay of the final agency action pending
judicial review,” which precludes an automatic stay of the agency’s decision
7
Although NOM purports in one part of its motion to seek a stay of the Superior Court’s judgment, a
stay of that judgment would have no effect, as it merely denied NOM’s petition for review. Instead, the
substance of NOM’s motion and NOM’s prayer for relief make clear that NOM seeks a stay of the
Commission’s underlying decision.
8
pursuant to M.R. Civ. P. 62(e), at least at the initial review stage. See 5 M.R.S.
§ 11004. It would make little sense to read Rule 62(e) to entitle a litigant to an
automatic stay of agency action pending appeal in the Law Court, but not during
review by the Superior Court.
[¶12] We therefore conclude that Rule 62(e) does not apply to the agency
action at issue in this case, and the Commission’s decision is not automatically
stayed pending appeal.
B. Request for a Stay Pending Appeal
[¶13] We now address NOM’s alternate request for a stay pursuant to our
inherent authority to grant a stay pending appeal. See M.R. Civ. P. 62(g) (stating
that the Rule does “not limit any power of the . . . 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”); M.R. App. P. 10 (describing motion practice in the
Law Court); see also Bangor Historic Track, Inc. v. Dep’t of Agric., Food & Rural
Res., 2003 ME 140, ¶ 1, 837 A.2d 129 (per curiam) (denying a motion for a stay
pending appeal filed in the Law Court).
[¶14] “Requests for stays or injunctions before the Law Court are subject to
the same standards for obtaining injunctive relief that are applied in the trial
9
courts.” Maine Appellate Practice § 10.1 at 107-08 (4th ed. 2013). Therefore, the
party seeking the stay has the burden of demonstrating
that (1) it will suffer irreparable injury if the [stay] is not granted;
(2) such injury outweighs any harm which granting the [stay] would
inflict on the other party; (3) it 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
[stay].
Bangor Historic Track, Inc., 2003 ME 140, ¶ 9, 837 A.2d 129 (citing Dep’t of
Envtl. Prot. v. Emerson, 563 A.2d 762, 768 (Me. 1989)); see also Respect Maine
PAC v. McKee, 622 F.3d 13, 15 (1st Cir. 2010) (applying similar factors to a
motion for a stay pending appeal).
1. Irreparable Injury
[¶15] NOM argues that, if the Commission’s decision is implemented and it
is required to file the 2009 campaign finance report, it will suffer irreparable injury
because it will be forced to publicly disclose the names, addresses, and personal
information of its donors, which it contends constitutes a restraint on the right to
freedom of association. See NAACP v. Ala. ex rel. Patterson, 357 U.S. 449,
462-63 (1958); see also Citizens Against Rent Control/Coalition for Fair Hous. v.
City of Berkeley, 454 U.S. 290, 298 (1981) (“Contributions by individuals to
support concerted action by a committee advocating a position on a ballot measure
is beyond question a very significant form of political expression.”). Although the
10
assertion of a restraint on First Amendment rights “does not automatically require
a finding of irreparable injury,” Respect Maine PAC, 622 F.3d at 15 (quotation
marks omitted), the effect of releasing the information to the public cannot be
reversed, nor can NOM be compensated for the release of the information. Thus,
NOM has demonstrated that it will suffer irreparable injury if the stay is not
granted.8
2. Harm to the Commission
[¶16] The Commission has indicated a willingness to delay the enforcement
of its decision at least until NOM has had the opportunity to pursue a stay from this
Court. While this self-imposed restraint is admirable, it suggests that any harm to
the Commission from a stay would be minimal at most. In addition, the
Commission does not argue in its filings with us that it will suffer any harm from a
further stay of its decision. Thus, the injury to NOM outweighs any injury to the
Commission that would result from a further delay in enforcement.
8
The Commission offers that, in addition to the injury that NOM identifies, there is the danger that if
a stay is not granted, the enforcement of the Commission’s decision will render NOM’s appeal to this
Court moot. See Globe Air, Inc. v. Thurston, 438 A.2d 884, 885 (Me. 1981). Because the Commission
has indicated to this Court a willingness to delay enforcement of its order at least until “NOM (has) had
an opportunity to obtain a court-ordered stay,” and because NOM also challenges the fines charged by the
Commission, the denial of a stay will not necessarily moot the appeal. We do, however, take that
possibility into account as part of the four-factor balancing test, weighing it and the prospect of
irreparable injury to NOM’s First Amendment rights against NOM’s likelihood of success on the merits,
while recognizing that if the likelihood of success on the merits is low, the consequences of NOM’s
claims becoming moot are limited.
11
3. Likelihood of Success on the Merits
[¶17] NOM’s substantive arguments on appeal primarily center on the
constitutionality of 21-A M.R.S. § 1056-B as applied to NOM and the
Commission’s interpretation and application of section 1056-B to NOM’s activities
in support of the 2009 referendum. In this part of our analysis, NOM must show
that there is “a substantial possibility” of success on those claims. See Bangor
Historic Track, Inc., 2003 ME 140, ¶ 9, 837 A.2d 129; Crafts v. Quinn,
482 A.2d 825, 830 (Me. 1984).
[¶18] First, NOM argues that the Commission’s decision departs from the
interpretation of section 1056-B upheld by the First Circuit in Nat’l Org. for
Marriage, Inc., 669 F.3d at 44-50, and thus, as applied by the Commission to
NOM, section 1056-B is unconstitutional. The First Circuit addressed NOM’s
as-applied vagueness challenge to the constitutionality of the definition of
“contribution” in section 1056-B(2-A)(B), concluding that the statute relies on an
objective, “reasonable person” test regarding whether the solicitation would lead a
contributor to believe that the funds donated would be used to support a particular
ballot question, and that such an objective test is not unconstitutionally vague.9
Nat’l Org. for Marriage, Inc., 669 F.3d at 45-47.
9
Writing for the First Circuit, Judge Lipez observed:
12
[¶19] We agree with the conclusion reached by the First Circuit and
conclude that it applies here. Contrary to NOM’s contention, there is no evidence
that the Commission relied on a different standard that would render the
application of the statute unconstitutional. In fact, the Commission’s decision
specifically states: “Applying the same analysis used by the U.S. Court of Appeals
for the First Circuit, the Commission finds that NOM received ‘contributions’ as
defined by Section 1056-B(2-A)(B) & (C).” NOM has therefore not shown how
its constitutional challenge in this appeal differs from its challenge in the First
Circuit. We thus conclude that NOM has not established a likelihood of success on
the merits of its constitutional claims.
[¶20] Second, NOM contends that the Commission erred by misconstruing
the definitions of “contribution” in 21-A M.R.S. § 1056-B(2-A)(B) and (C). In
particular, NOM contends that (1) the Commission ignored the requirement in
subsection B that donations be made “specifically” to support a ballot question,
and (2) the Commission erred in concluding that donations NOM received and
transferred directly to Stand for Marriage Maine (SMM) met the definition of
The question asked is whether the words spoken—the “solicitation”—would lead a
contributor to believe that the funds will be used to initiate or influence a campaign. The
answer does not require an assessment of what any particular contributor actually believed,
an inquiry that could turn on the hearer’s education, culture, or other background factors.
Rather, whether a communication is covered depends on the objectively reasonable meaning
of the language of the solicitation; hence, the only relevant hearer is the hypothetical
“reasonable person.”
Nat’l Org. for Marriage, Inc. v. McKee, 669 F.3d 34, 46-47 (1st Cir. 2012).
13
contribution in subsection C without any other evidence regarding NOM’s
communication with those donors about the Maine ballot question. On an appeal
from a review of agency action pursuant to M.R. Civ. P. 80C, “[w]e review issues
of statutory interpretation de novo.” Fox Islands Wind Neighbors v. Dep’t of
Envtl. Prot., 2015 ME 53, ¶¶ 1, 11, --- A.3d ---.
[¶21] The version of subsection B in effect in 2009 defined contribution in
part as “[f]unds provided in response to a solicitation that would lead the
contributor to believe that the funds would be used specifically for the purpose of
initiating, promoting, defeating or influencing in any way a ballot question.”
21-A M.R.S. § 1056-B(2-A)(B). Contrary to NOM’s contention, the Commission
applied that definition throughout its analysis, explicitly finding that each of the
solicitations it discussed would lead a reasonable person to believe that his or her
donations were to be used specifically for supporting the Maine referendum. For
example, the Commission found that references made in a thank-you note
“strongly suggest that the solicitation was made in a way that would reasonably
lead the [donors] to believe that their donation would be used, at least in part,
specifically for the purpose of promoting the Maine referendum campaign.”
(Emphasis added.) Similarly, the Commission concluded that an email solicitation
that mentioned Maine, but not the Maine referendum, “contains a message that
could lead a reasonable contributor to believe that donations made in response
14
would be used specifically for the purpose of influencing the Maine referendum
campaign.” (Emphasis added.) Thus, NOM has not demonstrated a likelihood of
success on the merits of its claim that the Commission erroneously applied
subsection B to the donations at issue in this case.
[¶22] The version of subsection C that was in effect in 2009 defined
contributions as “[f]unds that can reasonably be determined to have been provided
by the contributor for the purpose of initiating, promoting, defeating or influencing
in any way a ballot question when viewed in the context of the contribution and the
recipient’s activities regarding a ballot question.” 21-A M.R.S. § 1056-B(2-A)(C)
(emphasis added). The Commission concluded that the fact that certain large
donations were transferred directly to SMM after they were received by NOM
provided sufficient context to support a finding that the donations were
“contributions” pursuant to subsection C. NOM contends that determination was
an erroneous application of the law.
[¶23] We conclude that the scope of section 1056-B(2-A)(C) is ambiguous
as a matter of law, and thus we will defer to the Commission’s interpretation of the
statute if it is reasonable. See Kane v. Comm’r of the Dep’t of Health and Human
Servs., 2008 ME 185, ¶ 12, 960 A.2d 1196. The Commission reasonably
interpreted “in the context of the contribution and the recipient’s activities” in
subsection C to mean that the Commission may infer from the recipient’s use of
15
the entire contribution for a specific initiative that the donor intended the
contribution to support that initiative. Thus, NOM has not shown a likelihood of
success on its claim that the Commission committed an error of law when it
determined that NOM’s direct transfer of certain donations to SMM in support of
the Maine referendum meant that those donations were contributions pursuant to
subsection C.
[¶24] Finally, NOM contends that the Commission was biased against
NOM and that the Commission’s findings were not supported by substantial
evidence in the record. As to bias, NOM has not met its burden of “present[ing]
evidence sufficient to overcome a presumption that the fact-finders, as state
administrators, acted in good faith.” Friends of Maine’s Mts. v. Bd. of Envtl. Prot.,
2013 ME 25, ¶ 23, 61 A.3d 689. The only evidence of bias that NOM offers in its
motion is a record of the statements of dissenting Commissioners, which merely
shows reasonable disagreement as to some of the decisions of the Commission, not
bias against NOM.
[¶25] With regard to NOM’s argument that the Commission’s findings are
unsupported by substantial evidence in the record, the Commission made specific
findings about five categories of donations that met the definition of “contribution”
in 21-A M.R.S. § 1056-B(2-A)(B) or (C). Each of those categories contained
donations in excess of $5,000. Thus, to support the Commission’s conclusion that
16
NOM was subject to the reporting requirements of section 1056-B, there only
needs to be substantial evidence in the record to support its findings for at least one
of those categories of contributions. That standard is met here. There was
extensive evidence before the Commission that NOM repeatedly communicated
with its donors about the Maine referendum and described its activities in Maine
and its financial partnership with SMM when soliciting donations. Thus, there was
substantial evidence to support the Commission’s finding that at least $5,000 of the
millions of dollars of donations that NOM received were “provided in response to
a solicitation that would lead the contributor to believe that the funds would be
used specifically for the purpose” of supporting the Maine referendum.
See 21-A M.R.S. § 1056-B(2-A)(B). NOM thus has not established a likelihood of
succeeding on its claim that the Commission’s findings were not supported by
substantial evidence in the record.
[¶26] Because NOM has not advanced any persuasive constitutional
challenges to section 1056-B or any convincing arguments regarding errors of law
or fact committed by the Commission in reaching its decision, it has not met its
burden of demonstrating a likelihood of success on the merits.
4. The Public Interest
17
[¶27] The public has an interest in the release of information about the
donors behind ballot initiatives.10 See Nat’l Org. for Marriage, Inc., 669 F.3d at 40
(stating that “[t]he disclosure of information about the source of political-advocacy
funds thus enables the electorate to make informed decisions” (quotation marks
omitted)); see also Citizens United v. FEC, 558 U.S. 310, 371 (2010). In this case,
however, the ballot initiative occurred nearly six years ago, so there is no pressing
public interest in the expedited disclosure of NOM’s donors or expenditures. The
public interest will therefore not be harmed if the Court stays the enforcement of
the Commission’s decision for the duration of this appeal.
5. Balancing the Four Criteria
[¶28] The criteria for granting a stay “are not to be applied woodenly or in
isolation from each other; rather, the court of equity should weigh all of these
factors together.” Emerson, 563 A.2d at 768. As we engage in that process, we
recognize that, if a stay is not granted and the Commission acts to enforce its
decision, NOM will likely suffer irreparable injury, including the possibility of its
10
As we noted in the discussion of irreparable injury supra, a law that requires disclosure of donor or
membership information constitutes a restraint on the right to freedom of association. See NAACP v. Ala.
ex rel. Patterson, 357 U.S. 449, 462-63 (1958). That does not, however, doom all disclosure laws to the
heap of unconstitutionality. See Nat’l Org. for Marriage, 649 F.3d at 56-58. Instead, such laws are
constitutional when there is a “substantial relation” between the law and a “sufficiently important
governmental interest.” Citizens United v. FEC, 558 U.S. 310, 366-67 (2010) (quotation marks
omitted). The First Circuit has held that section 1056-B promotes the sufficiently important government
interest of “disseminating information about political funding to the electorate.” Nat’l Org. for Marriage,
Inc., 669 F.3d at 40 (quotation marks omitted).
18
appeal becoming moot. Nevertheless, our analysis cannot ignore the fact that
“[t]he sine qua non of this four-part inquiry is likelihood of success on the merits.”
Wine & Spirits Retailers, Inc. v. Rhode Island, 418 F.3d 36, 46 (1st Cir. 2005)
(quotation marks omitted).
[¶29] After reviewing the motion record and carefully weighing the four
criteria, we conclude that, because there clearly is no substantial possibility that
NOM will succeed on the merits of its claims, a stay is not warranted under
applicable principles of law and equity. The circumstances underlying the
Commission’s decision occurred almost six years ago, and the decision has
successfully withstood federal and state court challenges during that time. NOM
now asks us to decide many of the same issues and has failed to sufficiently show
that it has a likelihood of succeeding on the merits. Accordingly, we deny NOM’s
motion for a stay pending appeal.
The entry is:
NOM’s Motion to Clarify Stay Under Rule 62(e)
or, in the alternative, Motion for Stay of Agency
Action is DENIED. The appeal will proceed in the
usual course.
19
On the motion and opposition:
Stephen C. Whiting, Esq., The Whiting Law Firm, P.A.,
Portland, for appellant National Organization for Marriage
Janet T. Mills, Attorney General, and Phyllis Gardiner, Asst.
Atty. Gen., Office of the Attorney General, Augusta, for
appellee Commission on Governmental Ethics and Election
Practices
Business and Consumer Docket docket number AP-2014-02
FOR CLERK REFERENCE ONLY