STATE OFMAINE 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, inher official ) capacity as Secretary of State for the ) State ofMaine, ) 

### ) Respondent. )

Pursuant to M.R. Civ. P. SOC, PetitionersWayne R. Jortner, Richard Bennett, John Clark, and Nicole Grohoski appealthe decisionofRespondentShennaBellows, Secretary of State for the State ofMaine ("the Secretary"), regarding the final wording ofthe 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 ofthe ballotquestion onthe Initiative wouldbe 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 inMaine?

Page 1 of6("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 ofthe 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 certainconditions, to acquire investor-owned transmission and distributionfacilities. (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 ofthe proposed legislation ("the Legislation"). (R. 38-45.) The Summary of Proposed Initiative describes PTPC as a "privately-operated, nonprofit, consumer-owned utility controlledby a board the majority ofthe 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 provisionsofchapter35, withinthe service territoriesoftheinvestor-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" governedby a board composed of "13 voting members, 7 of whom are elected members

Page 2 of 6and 6 of whom are designated members chosen by the elected members." (R. 40.) The phrase "quasi-governmental" does not appearin 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 theballot question for an initiative. Me. Const. artIV, pt. 3, §20. Reviewby 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 pertinentpart: Inreviewing the decision ofthe Secretary ofState, the courtshall determine whether the description of the subject matter is understandable to a reasonablevoterreading the questionfor the first time and willnotmislead 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 legislationfor the first time." 

### Id. 'l[ 11. Rather, the issue is whethervoters who have educated themselves about the initiative, but "who may be reading the question for the first time inthe votingbooth, will understand the subject matter and the choice presented." 

### Id.

1 Nor did "quasi-governmental" appear anywhere in the Applicationfor CitizenInitiative. (R. 5-17.) 2Therequirementunderthe MaineConstitutionthatthequestionbeintelligibleis subsumedin§905. Olson v. Sec'y ofState, 1997ME 30, 'I[ 6, 689 A.2d 605; see Me. Const. art. IV, pt. 3, § 20. Page3 of 6III. Discussion The parties devote considerable time to debating whether "consumer-owned" or "quasi-governmental"is a moreaccuratedescriptorofPTPC. Whichoneis more accurate, however, is not the question to be decided. Rather, the issue is whether the Secretary's chosen language is understandable and notmisleading. A. Understandable The Secretary argues that a voter would understand the phrase "quasigovernmental" inthe context ofthe Initiativebecause (1) the Legislation describes PTPC

as a "bodycorporate andpolitic," whichis languageusedin otherlegislationestablishing otherquasi-governmental entities; (2) the Legislationprovidesthat theboard of directors ofPTPC would beelected instatewide elections; and (3) the Legislationidentifies certain powers and attributes of PTPC that are similar to those of other quasi-governmental entities. Althoughthe description "body corporate and politic" maybe a fair synonymfor "quasi-governmental," the Legislation does not define "body corporate and politic." 

### Itis unreasonable to expect an average voter to draw the connectionbetween 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 ofthe meaning ofeitherphrase. The Secretary suggests that the average voter, pursuant to Olson, canbe 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 sourcesbecause it is defined by statute and wouldundoubtedlybe discussedinthe context ofpolitical debate

Page4 of6onthe initiative." 1997ME 30, 

### 'II 11, 689 A.2d 605. "Quasi-governmental," however,isnot expressly defined elsewhere inMaine'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 wouldbegovernedby an electedboard, for example.3Thatis too large of a leap to expect

a voterto make ona first reading, especially inlight ofthe fact thatPTPC is referred to as "consumer-owned" in all otherrelevantplaces. 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 legislationis not enough." 1997 ME 30, 

### 'II 7, 689 A.2d 605. A question that makes an inaccurate suggestion about legislation is notnecessarily misleading. 

### Id. 

### '!I'll 7, 9.

3 Moreover, if the phrase "quasi-governmental" is meant to primarily indicate, as the Secretary suggests, thatPTPC will be governed by an elected board, then the remainder ofthe questionis redundant. Thus, the remainder of the question suggests that more is meantby "quasi-governmental." Page 5 of 6The 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," becauseit suggested that onlyintentionalconductwouldbe criminalized. 

### Id. 'l[ 7. The Law Court held that "putting" was similar to "introduce." A reasonable voter who understood the initiative would notbemisled. 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 atno pointrefers 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 meanthe opposite of"consumer-owned." Thus, the questioncreates a riskthat voters willbe 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 mustbe 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 consistentwith 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 Page 6 of 6