BERN STEIN SHUR Bernstein, Shur, Sawyer & Nelson, RA. 100 Middle Street PO Box 9729 Portland, ME 04104-5029 T (207) 774-1200 F (207) 774-1127 James G. Monteleone (207) 228-7198 direct jmonteleonegbernsteinshur.com Via Federal Express April 15, 2020 Michele Lumbert, Clerk 1 Court Street, Ste 101 Augusta, ME 04220 Re: Clare Hudson Payne, et al. v. Matthew Dunlap, as Maine Secretary of State Dear Ms. Lumbert: Enclosed for filing in the above-captioned matter, please find a Complaint, Summary Sheet and the required Filing Fee. Very truly yours, (P) James G. Monteleone JGM:js Enclosures bernsteinshuncom SUMMARY SHEET This summary sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by the Maine Rules of Court or by law. This form is required for the use of the Clerk of Court for the purpose of initiating or updating the civil docket. (SEE INSTRUCTIONS ON REV-ERSE). I. County of Filing or District Court Jurisdiction: Kennebec County II. CAUSE OF ACTION (Cite the primary civil statutes under which you are filing, if any). Pro se plaintiffs: If unsure, leave blank. 14 M.R.S.A. §§ 5951-5963 and Rule 57 III. NATURE OF FILING ' Initial Complaint a Third-Party Complaint • Cross-Claim or Counterclaim • If Reinstated or Reopened case, give original Docket Number (If filing a second or subsequent Money Judgment Disclosure, give docket number of first disclosure) IV. • TITLE TO REAL ESTATE IS INVOLVED V. MOST DEFINITIVE NATURE OF ACTION (Place an X in one box only) Pro se Plaintiffs: If unsure, leave blank GENERAL CIVIL (CV) Personal Injury Tort • Property Negligence • Auto Negligence Z Medical Malpractice 3 Product Liability 3 Assault/Battery 3 Domestic Torts • Other Negligence B Other Personal Injury Tort Non-Personal Injury Tort 3 Libel/Defamation a Auto Negligence • Other Negligence 3 Other Non-Personal Injury Tort • Non-DHS Protective Custody Money Judgments • Money Judgments Request for Disclosure Contract • Contract Declaratory/Equitable Relief • General Injunctive Relief • Declaratory Judgment • Other Equitable Relief Constitutional/Civil Rights Constitutional/Civil Rights Statutory Actions • Unfair Trade Practices • Freedom of Access • Other Statutory Actions Miscellaneous Civil • Drug Forfeitures • 3 • • II • • 13 • • 3 • • • Other Forfeitures/Property Libels Land Use Enforcement (80K) Administrative Warrant HIV Testing Arbitration Awards Appointment of Receiver Shareholders' Derivative Actions Foreign Depositions Pre-action Discovery Common Law Habeas Corpus Prisoner Transfers Foreign Judgment Minor Settlements Other Civil CHILD PROTECTIVE CUSTODY (PC) SPECIAL ACTIONS (SA) REAL ESTATE (RE) Misc. Real Estate Foreclosure Z Equitable Remedies • Foreclosure for non-profit (ADR Exempt) II Foreclosure - Other • Mechanics Liens Trespass • Partition • Trespass III Adverse Possession APPEALS (AP) (To be filed in Superior Court) (ADR exempt) Z Governmental Body (80B) • Other Appeals • Administrative Agency (80C) Title Actions • Quiet Title • Eminent Domain • Easements • Boundaries II Nuisance II Abandoned Road • Other Real Estate VI. M.R.Civ.P. 16B Alternative Dispute Resolution (ADR): II I certify that pursuant to M.R.Civ.P. 16B(b), this case is exempt from a required ADR process because: • It falls within an exemption listed above (i.e. an appeal or an action for non-payment of a note in a secured transaction). MI The plaintiff or defendant is incarcerated in a local, state or federal facility. Z The parties have participated in a statutory pre-litigation screening process with (name of neutral) on (date). II The parties have participated in a formal ADR process with (name of neutral) on (date). • This is a Personal Injury action in which the plaintiffs likely damages will not exceed $30,000, and the plaintiff requests an exemption from ADR. CV-001, Rev. 01/02 VII. (a) I PLAINTIFFS (Name & Address including county) or LI Third-Party, LI Counterclaim or Cross-Claim Plaintiffs The plaintiff is a prisoner in a local, state or federal facility. SEE ATTACHED LIST (b) Attorneys (Name, Bar Number, Firm Name, Address, Telephone Number) (If Pro se plaintiff, leave blank) If all counsel listed to NOT represent all plaintiffs specify who the listed attorney(s) represent. James G. Monteleone, Esq. (Bar No. 5827) Bernstein Shur P.O. Box 9729 Portland, ME 04104-5029 (207) 228-7198 VIII. (a) DEFENDANTS (Name & Address including county) ancVor LI Third-Party, LI Counterclaim or LI Cross-Claim Defendants LI The defendant is a prisoner in a local, state or federn! facility. Matthew Dunlap Maine Secretary of State 148 State House Station Augusta, ME 04333-0148 (Kennebec County) (b) Attorneys (Name, Bar Number, Firm Name, Address, Telephone Number) Of known) IX. If all counsel listed do NOT represent all defendants, specify who the listed attorney(s) represent. RELATED CASE(S) IF ANY Judge/Justice Docket Number X. XI. Date: April 15. 2020 James G. Monteleone Bar No. 5827 Name of Lead Attorney of Record or Pro Se Party S. CC: ature of Attorney or Pro Se Party (v ) PLAINTIFFS: CLARE HUDSON PAYNE 15 Timothy's Lane Brooksville, ME 04617 PHILIP STEELE 22 Clifford Street Portland, ME 04102 FRANCES M. BABB 703 Greenwoods Road Sumner, ME 04292 THE COMMITTEE FOR RANKED CHOICE VOTING P.O. Box 928 Gorham, ME 04038 STATE OF MAINE KENNEBEC, ss. SUPERIOR COURT CIVIL ACTION Docket No. CV-20 - CLARE HUDSON PAYNE, PHILIP STEELE, FRANCES M. BABB, and THE COMMITTEE FOR RANKED CHOICE VOTING, Plaintiffs, V. COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF MATTHEW DUNLAP, as MAINE SECRETARY OF STATE, Defendant. Plaintiffs Clare Hudson Payne, Philip Steele, Frances M. Babb, and The Committee for Ranked Choice Voting, through their undersigned counsel, state the following as their Complaint for declaratory judgment and injunctive relief against Defendant Matthew Dunlap, in his official capacity as the Maine Secretary of State: Introduction 1. Plaintiffs ask the Court to declare that Maine law bars the pending People's Veto initiative that seeks to suspend P.L. 2019, ch. 539, entitled "An Act To Implement Ranked-choice Voting for Presidential Primary and General Elections in Maine" (hereinafter the "2019 RCV Law"), until a referendum vote is taken. The Maine Constitution, however, bars use of the People's Veto provision to suspend laws already in effect such as the 2019 RCV Law, which immediately took effect on January 12, 2020 when the governor's inaction had the same force and effect as if the law was signed at the close of the 2019 legislative session. Only a direct initiative referendum can lawfully repeal a law already in effect, not a People's Veto, and that option remains available to proponents seeking to challenge the 2019 RCV Law. Alternatively, the proposed People's Veto is prohibited by 14 M.R.S.A. § 901, because no application for a people's veto referendum was filed with the Secretary of State during the restricted 10-day filing period that opened upon legislative adjournment on March 17, 2020 and closed on March 31, 2020. Plaintiffs further ask that the Court enjoin the Maine Secretary of State from accepting or balloting the pending People's Veto initiative seeking to suspend and veto the 2019 RCV Law, because an erroneous suspension of the 2019 RCV Law will wrongfully alter and impact Maine's voting in the 2020 general election for the President of the United States. Parties 2. Plaintiff Clare Hudson Payne is a duly registered Maine voter enrolled with the Republican Party, and a citizen of Brooksville, Maine. 3. Plaintiff Philip Steele is a duly registered Maine voter enrolled with the Democratic Party, and a citizen of Portland, Maine. 4. Plaintiff Frances M. Babb is a duly registered Maine voter unaffiliated with any political party, and a citizen of Sumner, Maine. 5. Plaintiff Committee for Ranked Choice Voting is a Maine nonprofit corporation public proponent of the 2019 RCV Law. The Committee's primary place of business in Gorham, Maine. 2 6. Defendant Matt Dunlap is the Maine Secretary of State, with a primary place of business in Augusta, Maine, in Kennebec County. Mr. Dunlap is named in his official capacity. Jurisdiction and Venue 7. This Court has jurisdiction over this Complaint for Declaratory Judgment pursuant to 14 M.R.S.A. §§ 5951-5963. 8. Venue is properly laid in Kennebec County Superior Court pursuant to 14 M.R.S.A. § 505, because the Secretary of State conducts state business from his principal office located in the City of Augusta, Kennebec County, Maine. 9. Plaintiffs have standing to raise these issues before the Court. 10. Plaintiffs respectfully request a speedy hearing of the action for declaratory judgment pursuant to Rule 57 of the Maine Rules of Civil Procedure. Facts Common to All Counts 11. The 2019 RCV Law received final passage in the first special session of Maine's 129th Legislature (the "2019 Session") and was sent to Governor Janet Mills for executive action. 12. The 2019 Session went into recess on August 26, 2019. 13. The Governor took no action whatsoever on the 2019 RCV Law passed in the 2019 Session. 14. Legislation passed in the 2019 Session could take effect anytime after November 24, 2019, the date 90 days after the session's recess. 3 15. The next meeting of the 129th Legislature was on January 8, 2020. 16. The 2019 RCV Law was chaptered as P.L. 2019, ch. 539 on January 12, 2020, the date three days after that "next meeting" of the Legislature. 17. On February 3, 2020, the Secretary of State approved an application that sought to initiate a constitutional People's Veto referendum of the 2019 RCV Law (the "Proposed Referendum"). The Secretary of State's Office provided proponents with authorized petition forms that were customized for the Proposed Referendum. 18. The Secretary of State's Office has publicly stated that the Secretary will accept petitions for the Proposed Referendum anytime through and until the date that is 90 days after adjournment of the Legislature's second regular session. 19. The 129th Legislature adjourned its second regular session (the "2020 Session") on March 17, 2020. 20. The date 10 business days after adjournment of the 2020 Session was March 31, 2020; the date 90 days after adjournment is June 15, 2020. 21. There is a real and substantial controversy between the parties evinced by the Secretary of State's acceptance of an application by proponents for the Proposed Referendum based upon confusion regarding the effective date of the 2019 RCV Law and the statutory prerequisites for initiating a valid People's Veto referendum. 4 COUNT I Declaratory Judgment (Unconstitutional Application of Me. Const. art. IV, pt. 3, § 17) 22. Plaintiffs repeat and reallege every fact set forth above as if fully set forth herein. 23. The Proposed Referendum violates the Maine Constitution's Article IV, Part 3, § 17, which expressly limits applicability of People's Veto referendums to those laws not already in effect. 24. The 2019 RCV Law, P.L. 2019, ch. 539, took immediate effect on January 12, 2020, pursuant to Section 2 and Section 16 of the Constitution's Article IV, Part 3. 25. Section 2 of Article IV, Part 3, requires that those acts passed by the Legislature, but not timely returned by the Governor with objections, "have the same force and effect" as if the Governor had timely signed the law after the legislative session in which it was passed. 26. The Legislature alone can "pass" acts of law through the casting of votes of support by both legislative houses. The term "pass" or "passage" is used to describe the legislative power constitutionally reserved for the Legislature throughout the Constitution's delineation of legislative powers in Article IV, Part 3. 27. No legislative power that the Constitution vests in the Governor constitutes a passing of law. Rather, the Constitution's Article IV, Part 3 delineation of powers provides that the Governor either "approves," "signs," or "return[s] ... with objections" those acts of law passed by the Legislature. 5 28. Section 16 of the Constitution's Article IV, Part 3 imposes a restriction on the earliest possible date that non-emergency legislation may take effect. Specifically, Section 16 provides that le Act ... of the Legislature ... shall take effect until 90 days after the recess of the session of the Legislature in which it was passed." 29. The 2019 Session of the Legislature passed the 2019 RCV Law. 30. The 2020 Session of the Legislature took no action whatsoever on the 2019 RCV Law, nor did the 2020 Session have opportunity to take action to pass the 2019 RCV Law. 31. Section 16 of the Constitution's Article IV, Part 3 establishes that the laws passed in a Legislative session may take effect no earlier than 90 days after that Legislative session's recess. Section 16 does not include any requirement that every act of law shall be subject to a 90-day waiting period after being chaptered. 32. The 2019 RCV Law was eligible to go into effect anytime after November 24, 2019, the date "90 days after the recess of the session of the Legislature in which it was passed," pursuant to Me. Const. art. IV, pt. 3, § 16. 33. The 2019 RCV Law went into effect immediately upon being chaptered as P.L. 2019, ch. 539 on January 12, 2020, because the earliest-available effective date had already passed in November 2019. 34. The applicability of a People's Veto referendum is limited by Section 17 of the Constitution's Article IV, Part 3, providing its use only for those legislative acts that are "passed by the Legislature but not then in effect" (emphasis added). 6 35. Because the 2019 RCV Law is already in effect, the Maine Constitution expressly excludes the use of a People's Veto referendum to modify it. 36. Maine citizen legislators retain the right and opportunity to repeal or otherwise modify the 2019 RCV Law through the Citizen's Initiative process set out in Section 18 of the Constitution, Article IV, Part 3. WHEREFORE, Plaintiffs respectfully request that the Court enter judgment declaring that the 2019 RCV Law took immediate effect on January 12, 2020, pursuant to Me. Const. art. IV, pt. 3, §§ 2, 16; declaring that the People's Veto provisions of Me. Const. art. IV, pt. 3, § 17 bar the application of the referendum procedure on the 2019 RCV Law already in effect; and granting any other and further relief that the Court deems necessary and just. COUNT II Declaratory Judgment (Violation of 21-A M.R.S.A. § 901) 37. Plaintiffs repeat and reallege every fact set forth above in Paragraphs 1-21 as if fully set forth herein. 38 In the alternative, the Proposed Referendum violates statutory prerequisites for valid People's Veto petitions set out in 21-A M.R.S.A. § 901. 39. Subsection 1 of 21-A M.R.S.A. § 901 is titled "Limitations on Petitions." The subsection was adopted by the Legislature to impose reasonable limitations on People's Veto petitions by requiring the that petition drives are consistently conducted within a timeframe not longer than 90 days. 7 40. 21 -A M.R.S.A.§ 901 (1) requires that "[a]n application for a people's veto referendum petition must be filed in the Department of the Secretary of State within. 10 business days after adjournment of the legislative session at which the Act in question was passed" (emphasis added). 41 . Section 901 (1) thereby establishes a defined and limited window of time during which applications may be flied. The lawful application window opens at the session's adjournment and closes 10 business days later. 42 . The 10-day filing window achieves the legislative purpose of ensuring parity in the amount of time available to various People's Veto proponen加 so that the timing of legislative passage cannot drastically extend the 90-days that the Constitution provides for proponents to gather sufficient People's Veto petition signatures . 43 . Absent Section 901 (1)'s proper application, proponents People's Veto challen 夢ng ng an act passed early in a long legislative session could receive significantly more than 90 days to collect the required petitions, while those proponents seeking a People's Veto challenge of an act passed at the end of a legislative session are constrained. 44. Adjournment of the 2020 Session of the Legislature occurred on March 17, 2020; the date "10 business days after adjournment" of the 2020 Session, as referenced in 21 -A M.R.S.A.§ 901 (1),was March 31 ,2020. 45 . No application for a People's Veto referendum of the 2019 RCV Law was filed with the Secretary of State on or after the 2020 Session's adjournment. 8 46. The Secretary of State's Office could accept filings of People's Veto applications during the statutory March 17, 2020 to March 31, 2020 filing period. 47. The Proposed Referendum failed to satisfy the requirements of 21-A M.R.S.A. § 901(1) ensuring consistent application of the Constitution's 90-day petition-gathering period for proposed People's Veto referendums. 48. The wording of 21-A M.R.S.A. § 901 is ambiguous and subject to alternate interpretations that are inconsistent with the legislative intent to ensure parity for People's Veto referendum signature collection. 49. The Law Court has never interpreted the language of 21-A M.R.S.A. § 901(1). 50. The Secretary of State has misinterpreted the requirements of 21-A M.R.S.A. § 901(1) based upon an erroneous 1997 Superior Court holding in the nonprecedential matter Remmel et al. v. Gwadosky, AP-97-112 (Me. Super. Ct., Ken. Cty., Nov. 21, 1997). 51. Remmers holding should be disregarded. Remmel was decided in error based upon an reading that the statute's use of "within" set an endpoint and not a point of beginning. Id., slip op. at 7-8. Remmel, however, omitted interpretation of the word "within" in conjunction with "after adjournment," as Section 901(1) states. 52. In fact, 21-A M.R.S.A. § 901(1)'s drafters' wording to require an application filed "within 10 business days after adjournment" demonstrates the the statute's unambiguous purpose of setting the date of adjournment as the earliest possible filing date for a People's Veto referendum application. 9 WHEREFORE, Plaintiffs respectfully request that the Court enter judgment declaring that the Proposed Referendum of P.L. 2019, ch. 539 cannot be accepted or approved by the Secretary of State as a matter of law because it failed to satisfy the filing requirements set forth in 21-A M.R.S.A. § 901, or alternatively declaring that any petition signatures signed prior to legislative adjournment on March 17, 2020 are invalid as a matter of law; and granting any other and further relief that the Court deems necessary and just. COUNT III Injunctive Relief 53. Plaintiffs repeat and reallege every fact set forth above as if fully set forth herein. 54. Plaintiffs seek to enjoin the Secretary of State from accepting or balloting the proposed People's Veto referendum of the 2019 RCV Law because the Proposed Referendum is barred by the Maine Constitution, art. IV, pt. 3, § 17, or by the statutory requirements of 21-A M.R.S.A. § 901. 55. The Plaintiffs will suffer irreparable injury if the injunction is not granted because the Secretary of State's acceptance of the Proposed Referendum petition has the effect of suspending the 2019 RCV Law, which will alter and impact Maine voting in the 2020 general election for the President of the United States. 56. The injury to Plaintiffs and the general public outweighs any harm that granting the injunctive relief could inflict on the Defendant. 57. The public interest will be served by granting the injunction and ensuring lawful application of the People's Veto process. 10 WHEREFORE, Plaintiffs request that this Court, upon entry of judgment for Plaintiffs and against Defendant on either Count I or Count II, enjoin the Secretary of State from accepting or balloting the pending People's Veto initiative seeking to suspend and veto the 2019 RCV Law, and grant any other relief the Court deems necessary and just. Dated at Portland, Maine, this 15th day of April, 2020. '2?) -4.,,,,, (p.-) James G. Monteleone, Bar No. 5827 Attorney for Plaintiffs Clare Hudson Payne, Philip Steele, Frances M. Babb, and The Committee for Ranked Choice Voting BERNSTEIN SHUR 100 Middle Street P.O. Box 9729 Portland, Maine 04014 207-774-1200 jmonteleone@bernsteinshur.com 11