STATE OF MAINE SUPERIOR COURT 

CUMBERLAND, ss. CIVIL ACTION 

Docket No. AP-2023-007 

WAYNER. JORTNER, RICHARD ) 


BENNETT, JOHN CLARK, and ) 


NICOLE GROHOSKI, ) 


) 

Petitioners, ) DECISION 

) 

V. ) 

) 


SHENNA BELLOWS, in her official ) 


capacity as Secretary of State for the ) 


State of Maine, ) 


) 


Respondent. ) 


Pursuant to M.R. Civ. P. SOC, Petitioners Wayne R. Jortner, Richard Bennett, John 

Clark, and Nicole Grohoski appeal the decision of Respondent Shenna Bellows, Secretary 

of State for the State of Maine ("the Secretary"), regarding the final wording of the ballot 

question on the initiative titled "An Act to Create the Pine Tree Power Company, a 

Nonprofit, Customer-owned Utility" ("the Initiative"). For the following reasons, the 

Court grants Petitioners' Appeal and remands the matter to the Secretary for revision of 

the Ballot Question. 

I. Background 

On November 30, 2022, the Secretary determined that the requisite number of 

valid signatures were submitted for the Initiative to appear on the ballot. (R. 46-47.) On 

January 30, 2023, after public comment, the Secretary determined that the final wording 

of the ballot question on the Initiative would be as follows: 

Do you want to create a new quasi-governmental power company 

governed by an elected board to acquire and operate existing for-profit 

electricity transmission and distribution facilities in Maine? 

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("the Ballot Question"). (R. 1.) In this action, Petitioners contend that the phrase "quasigovernmental power company" is not understandable to a reasonable voter and is 

misleading. The Secretary argues that the Ballot Question, including the phrase "quasigovernmental power company," was "carefully drafted by the Secretary to best reflect 

the substance of the initiative." (Resp't's Br. 1.) 

The Initiative would establish the Pine Tree Power Company ("PTPC"), which 

would "provide for its customer-owners in this State reliable, affordable electric 

transmission and distribution services." (R. 40.) PTPC would have the power, under 

certain conditions, to acquire investor-owned transmission and distribution facilities. (R. 

41-42.) 

The petition for the Initiative was issued on October 22, 2021 ("the Petition"). (R. 

38.) The Petition includes a "Summary of Proposed Initiative," an "Estimate of Fiscal 

Impact," and the language of the proposed legislation ("the Legislation"). (R. 38-45.) The 

Summary of Proposed Initiative describes PTPC as a "privately-operated, nonprofit, 

consumer-owned utility controlled by a board the majority of the members of which are 

elected." (R. 38.) 

The Legislation, at proposed 35-A M.R.S. § 4003(1), describes PTPC as "a 

consumer-owned transmission and distribution utility [that] has all the powers and 

duties of a transmission and distribution utility under this Title, as affected by the 

provisions of chapter 35, within the service territories of the investor-owned transmission 

and distribution utilities whose utility facilities it acquires under this chapter." (R. 40.) 

The Legislation further states that PTPC would be a "body corporate and politic" 

governed by a board composed of "13 voting members, 7 of whom are elected members 

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and 6 of whom are designated members chosen by the elected members." (R. 40.) The 

phrase "quasi-governmental" does not appear in the Petition. 1 (R. 38-45.) 

II. Legal Standard 

The Maine Constitution grants the Maine people the right to legislate by direct 

initiative. Me. Const. art. IV, pt. 3, § 18. The Secretary is charged with drafting the ballot 

question for an initiative. Me. Const. art IV, pt. 3, § 20. 

Review by the Superior Court of decisions of the Secretary of State regarding the 

wording of ballot questions is governed by 21-A M.R.S. § 905(2), which provides, in 

pertinent part: 

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 that voter's wishes. 

The Law Court has held that § 905(2) mandates that the Superior Court "independently 

determine whether the ballot question is understandable and not misleading" based on 

the record, without deference to the Secretary's decision. 2 Olson v. Sec'y of State, 1997 ME 

30, 'l[ 4, 689 A.2d 605. 

The Law Court further clarified that the issue to be reviewed is not whether the 

description of the subject matter is "understandable to a voter who is reading both the 

question and the legislation for the first time." Id. 'l[ 11. Rather, the issue is whether voters 

who have educated themselves about the initiative, but "who may be reading the 

question for the first time in the voting booth, will understand the subject matter and the 

choice presented." Id. 

1 Nor did "quasi-governmental" appear anywhere in the Application for Citizen Initiative. (R. 5-17.) 2 The requirement under the Maine Constitution that the question be intelligible is subsumed in§ 905. Olson 

v. Sec'y of State, 1997 ME 30, 'I[ 6, 689 A.2d 605; see Me. Const. art. IV, pt. 3, § 20. 

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III. Discussion 

The parties devote considerable time to debating whether "consumer-owned" or 

"quasi-governmental" is a more accurate descriptor of PTPC. Which one is more accurate, 

however, is not the question to be decided. Rather, the issue is whether the Secretary's 

chosen language is understandable and not misleading. 

A. Understandable 

The Secretary argues that a voter would understand the phrase "quasigovernmental" in the context of the Initiative because (1) the Legislation describes PTPC 

as a "body corporate and politic," which is language used in other legislation establishing 

other quasi-governmental entities; (2) the Legislation provides that the board of directors 

of PTPC would be elected in statewide elections; and (3) the Legislation identifies certain 

powers and attributes of PTPC that are similar to those of other quasi-governmental 

entities. 

Although the description "body corporate and politic" may be a fair synonym for 

"quasi-governmental," the Legislation does not define "body corporate and politic." It is 

unreasonable to expect an average voter to draw the connection between the use of the 

phrase "body corporate and politic" in the Legislation and "quasi-governmental" in the 

Ballot Question and emerge with a clear understanding of the meaning of either phrase. 

The Secretary suggests that the average voter, pursuant to Olson, can be expected 

to consult "external sources" to understand the Ballot Question, such as other statutes 

establishing quasi-governmental entities. The Secretary might be correct if another 

statute clearly defined "quasi-governmental." In Olson, the Law Court noted that "the 

term 'Class A crime' is readily understood by reference to external sources because it is 

defined by statute and would undoubtedly be discussed in the context of political debate 

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on the initiative." 1997 ME 30, 'II 11, 689 A.2d 605. "Quasi-governmental," however, is not 

expressly defined elsewhere in Maine's statutes. 

In other words, the Secretary suggests that the average voter should know of 

existing quasi-governmental entities (and the fact that they are quasi-governmental), 

consider the features and organization of those quasi-governmental entities, and 

extrapolate that the phrase "quasi-governmental" is intended to suggest that PTPC 

would be governed by an elected board, for example.3 That is too large of a leap to expect 

a voter to make on a first reading, especially in light of the fact that PTPC is referred to as 

"consumer-owned" in all other relevant places. 

The structure and function of PTPC are at the core of the Initiative. A ballot 

question which does not use understandable language to describe PTPC, therefore, 

inadequately describes the subject matter of the Initiative and is insufficient under § 

905(2) and Olson. 

B. Misleading 

Petitioners argue that the phrase "quasi-governmental" is misleading because it 

suggests that PTPC would be funded by taxpayers, rather than consumers. The Olson 

Court interpreted the "misleading" component of § 905(2) as requiring the following 

showing: "Plaintiffs must demonstrate that the question will mislead reasonable voters, 

who understand the proposed legislation, into voting contrary to their wishes. Merely 

demonstrating that the question creates a misleading impression about the legislation is 

not enough." 1997 ME 30, 'II 7, 689 A.2d 605. A question that makes an inaccurate 

suggestion about legislation is not necessarily misleading. Id. '!I'll 7, 9. 

3 Moreover, if the phrase "quasi-governmental" is meant to primarily indicate, as the Secretary suggests, 

that PTPC will be governed by an elected board, then the remainder of the question is redundant. Thus, 

the remainder of the question suggests that more is meant by "quasi-governmental." 

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The question at issue in Olson read: "Should spraying pesticides from the air or 

putting pesticides in Maine's waters be a Class A crime?" Id. 'l[ 3. The plaintiffs argued 

that the word "putting" did not comport with the initiative language, "cause, by any 

means, the introduction of," because it suggested that only intentional conduct would be 

criminalized. Id. 'l[ 7. The Law Court held that "putting" was similar to "introduce." A 

reasonable voter who understood the initiative would not be misled. 

The phrase "quasi-governmental," is not a synonym for "consumer-owned." The 

phrase "quasi-governmental" is not mentioned in the Legislation. Moreover, the Ballot 

Question at no point refers to consumer ownership-a core feature of the Legislation. A 

reasonable voter who compared the language of the Ballot Question to the language of 

the Legislation might be unsure whether the Ballot Question is referring to PTPC. To a 

voter who did not understand the meaning of "quasi-governmental," it might, in fact, 

appear to mean the opposite of"consumer-owned." Thus, the question creates a risk that 

voters will be led to vote contrary to their true intention. 

IV. Conclusion 

For the foregoing reasons, the Court finds that the Ballot Question does not meet 

the standard of 21-A M.R.S. § 905(2) and must be revised. 

The entry is: 

Petitioners' Appeal is GRANTED. This matter is remanded to the Secretary of 

State for the purpose of revising the final wording of the ballot question in a 

manner consistent with this decision. 

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

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

Kennedy, Justi 

uperior Court 

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