An Act To Strengthen the Whistleblowers' Protection Act
Maine Legislature, Session 123, LD 0303
Committee: Judiciary
Sponsors: HARLOW
Amends: 26 MRSA §835-A

Legislative Document 
No. 303 
H.P.247 
House of Representatives, January 19,2007 
An Act To Strengthen the Whistleblowers' Protection Act 
Reference to the Committee on Judiciary suggested and ordered printed. 
'7Jf~ /J? 7J?J£~ 
MILLICENT M. MacFARLAND 
Clerk 
Presented by Representative HARLOW of Portland. (BY REQUEST) 
Printed un recyded paper 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1. 26 MRSA §835-A is enacted to read: 
§835-A. Qui tam actions 
1. Private actions. Notwithstanding any other provision of law, a person may bring 
a civil action for a violation of section 833 for the person and for the State. The action 
must be brought in the name of the State. The action may be dismissed only if the court 
and the Attorney General give written consent to the dismissal and their reasons for 
consenting. 
2. 
Service and filing. 
A copy of the complaint and written disclosure of 
substantially all material evidence and information the person bringing a civil action 
under this section possesses must be served on the State pursuant to the Maine Rules of 
Civil Procedure, Rule 4. The complaint must be filed in camera, must remain under seal 
for at least 60 days and may not be served on the defendant until ordered by the court. 
The State may intervene and proceed with the action within 60 days after it receives both 
the complaint and the material evidence and information. 
3. Extensions. The State may, for good cause shown, move the court for extensions 
of the time during which the complaint remains under seal under subsection 2. The 
motion may be supported by affidavits or other submissions in camera. The defendant 
may not be required to respond to any complaint filed under this section until 20 days 
after the complaint is unsealed and served upon the defendant pursuant to the Maine 
Rules of Civil Procedure, Rule 4. 
4. State response. Before the expiration of the 60-day period under subsection 2 or 
any extensions obtained under subsection 3, the State shaH: 
A. Proceed with the action, in which case the action must be conducted by the State; 
or 
B. Notify the court that it declines to take over the action, in which case the person 
bringing the action has the right to conduct the action. 
5. Intervention. When a person brings an action under this section, only the State 
may intervene or bring a related action based on the facts underlying the pending action. 
6. Rights of parties. The foHowing provisions apply to the rights of parties to 
actions brought under this section. 
A. 
If the State proceeds with an action under this section, it has primary 
responsibility for prosecuting the action and may not be bound by an act of the person 
bringing the action. The person initially bringing the action has the right to continue 
as a party to the action subject to the limitations set forth in paragraphs B to E. 
B. 
Notwithstanding the objections of the person initiating an action under this 
section, the State may dismiss the action if the person initiating the action has been 
notified by the State of the filing of the motion to dismiss and the court has provided 
the person with an opportunity for a hearing on the motion. 
Page I - 123LR1285(Ol)-1 
I. 
C. 
Notwithstanding the objections of the person initiating an action under this 
section, the State may settle the action with the defendant if the court determines, 
after a hearing, that the proposed settlement is fair, adequate and reasonable. Upon a 
showing of good cause, such a hearing may be held in camera. 
D. Upon a showing by the State that unrestricted participation during the course of 
the litigation by the person initiating an action under this section would interfere with 
or unduly delay the State's prosecution of the case, or would be repetitious, irrelevant 
or for purposes of harassment, the court may, in its discretion, impose limitations on 
that person's participation, including, but not limited to: 
(1) Limiting the number of witnesses the person may call: 
(2) Limiting the length of the testimony of witnesses described in subparagraph 
(I); and 
(3) Limiting the person's cross-examination of witnesses. 
E. Upon a showing by the defendant that unrestricted participation during the course 
of the litigation by the person initiating an action under this section would cause the 
defendant undue burden or unnecessary expense or would be for purposes of 
harassment, the court may limit participation by the person in the litigation. 
F. If the State elects not to proceed with an action under this section, the person who 
initiated the action has the right to conduct the action. At the request of the State, the 
State must be served with copies of all pleadings filed in the action and must be 
supplied with copies of all deposition transcripts at the State's expense. When a 
person proceeds with the action, the court, without limiting the status and rights of 
the person initiating the action, may permit the State to intervene at a later date upon 
a showing of good cause. 
7. Ongoing investigations or pending actions. Whether or not the State proceeds 
with an action under this section, upon a showing by the State that certain actions of 
discovery by the person initiating the action would interfere with the State's investigation 
or prosecution of a criminal or civil matter arising out of the same facts, the court may 
stay discovery of the civil action brought under this section for a period of not more than 
days. Such a showing must be conducted in camera. The court may extend the 60-day 
period upon a further showing in camera that the State has pursued the criminal or civil 
investigation or proceedings with reasonable diligence and any proposed discovery in the 
civil action will interfere with the ongoing criminal or civil investigation or proceedings. 
8. Alternative remedy. Notwithstanding subsections 4 and 6, the State may elect to 
pursue its claim through any alternate remedy available to the State, including any 
administrative proceeding to determine a civil penalty. If such an alternate remedy is 
pursued in another proceeding, the person initiating the action has the same rights in that 
proceeding as that person would have had if the action had continued under this section. 
A finding of fact or conc~usion of law made in another proceeding that has become final 
must be conclusive on all parties to an action under this section. For purposes of this 
subsection, a finding or conclusion is final if it has been finally determined on appeal to 
the appropriate court of the State or the United States, if all time for filing such an appeal 
with respect to the finding or conclusion has expired or if the finding or conclusion is not 
subject to judicial review. 
9. Award to plaintiff. The following provisions govern awards to plaintiffs in 
actions brought under this section. 
A. If the State proceeds with an action brought by a person under this section, that 
person must be awarded no less than 15% and no more than 25% of the proceeds of 
the action or settlement of the claim, depending upon the extent to which the person 
substantially contributed to the prosecution of the action, except that, if the court 
finds the action to be based primarily on disclosures of specific information, other 
than information provided by the person bringing the action, relating to allegations or 
transactions in a criminal, civil or administrative hearing or from the news media, the 
court may award to the person an amount not to exceed 10% of the proceeds of the 
action, taking into account the significance of the information and the role of the 
person in advancing the case to litigation. 
A payment to a person under this 
paragraph must be made from the proceeds of the action. That person must also 
receive an amount for expenses the court finds to have been necessarily incurred, plus 
reasonable attorney's fees and costs awarded against the defendant. 
B. If the State does not proceed with an action under this section, the person bringing 
the action or settling the claim must receive an amount the court determines is 
reasonable for collecting the civil penalty and damages. The amount may not be less 
than 25% or more than 30% of the proceeds of the action or settlement and must be 
paid out of the proceeds of the action. That person must also receive an amount for 
expenses the court finds to have been necessarily incurred, plus reasonable attorney's 
fees and costs awarded against the defendant. 
C. Whether or not the State proceeds with an action under this section, if the court 
finds that the action was brought by a person who planned and initiated the violation 
of section 833 upon which the action was brought, then the court may, to the extent 
the court considers appropriate, reduce the share of the proceeds of the action the 
person would otherwise receive under paragraph A or B, taking into account the role 
of that person in advancing the case to litigation and relevant circumstances 
pertaining to the violation. If the person bringing the action is convicted of criminal 
conduct arising from that person's role in the violation of section 833, that person 
must be dismissed from the civil action and may not receive any share of the 
proceeds of the action. Such a dismissal may not prejUdice the right of the State to 
continue the action. 
10. Frivolous action. If the State does not proceed with an action under this section 
and the person bringing the action conducts the action, the court may award to the 
defendant its reasonable attorney's fees and expenses if the defendant prevails in the 
action and the court finds that the claim of the person bringing the action was frivolous or 
brought primarily for purposes of harassment. 
11. Barred actions. The following actions may not be brought under this section: 
I 
A. An action by a former or present member of the Armed Forces of the United 
States against a mem ber of the armed forces arising out of that person's service in the 
armed forces; 
B. An action against a member of the Legislature or a member of the judiciary if the 
action is based on evidence or information known to the State when the action was 
brought; 
C. An action based upon allegations or transactions that are the subject of a civil suit 
in which the State is already a party; and 
D. An action based upon the public disclosure of allegations or transactions in a 
criminal, civil or administrative hearing, in a legislative or administrative hearing, 
II 
audit or investigation or by the news media, unless the action is brought by the 
Attorney General or the person bringing the action is an original source of the 
information. For purposes of this paragraph, "original source" means an individual 
who has direct and independent knowledge of the information on which the 
IS 
allegations are based and has voluntarily provided the information to 'the State before 
filing an action under this section that is based on that information. 
12. State not liable for certain expenses. The State is not liable for expenses a 
person incurs in bringing an action under this section or fees and expenses to a prevailing 
defendant. In civil actions brought under this section by the State, the provisions of Title 
14, chapter 311 apply. 
SUMMARY 
This bill authorizes a private citizen to bring an action on behalf of the State for 
violations of the Whistleblowers' Protection Act.