DRAFT #6 – JMRP – 3/7/11 6:53 pm

STATE OF MAINE SUPERIOR COURT

CUMBERLAND, SS DOCKET NO. ________

DENNIS BAILEY, )
)
Petitioner-Plaintiff )
)
v. ) PETITION FOR REVIEW
) AND COMPLAINT
STATE OF MAINE COMMISSION ON )
GOVERNMENTAL ETHICS AND ELECTION )
PRACTICES, and WALTER F. MCKEE, ANDRE )
G. DUCHETTE, MICHAEL T. HEALY, )
MARGARET E. MATHESON and EDWARD )
M. YOUNGBLOOD, in their official capacities )
)
Respondents - Defendants )

Dennis Bailey brings this appeal for review of final agency action pursuant to

Title 5 M.R.S.A. § 11002 and M.R.Civ.P. 80C and this civil action for declaratory and

injunctive relief pursuant to 42 U.S.C. § 1983 and complains as follows:

INTRODUCTION

1. Petitioner-Plaintiff Dennis Bailey (“Bailey”) has a long history of

involvement in Maine politics. In 2009, on his own time and with his own money, he

created a website known as “the Cutler Files” in order to share information with the

public about Maine gubernatorial candidate Eliot Cutler. The website presented publicly-

accessible information, which Bailey obtained through internet searches and electronic

newspaper archives. The research and production of the website, including the internet

hosting fee, was approximately $92. The website did not include the name and address

of the person who expended those $92, nor did it initially include a disclaimer that this

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$92 website was not paid for or authorized by any candidate (though it was not).

Because these communications were made through a website, rather than through a

newspaper or a broadcast station, and because the communications criticized a

gubernatorial candidate by name, but did not contain these disclosures and disclaimers,

Mr. Bailey was found in violation of two provisions of Maine election law: 21-A

M.R.S.A. §1014(2) and §1014(2-A) and was fined $200.

2. Bailey brings this appeal and civil action for declaratory and injunctive

relief to review the legality, and to challenge the constitutionality, of the commission’s

actions as applied to him. This action alleges that the Maine Commission on

Governmental Ethics and Election Practices, and its members acting in their official

capacities, violated Bailey’s First Amendment right to free expression by penalizing him

for engaging in political speech—the most highly-protected form of speech under the

First Amendment.

PARTIES

3. Bailey is a resident of the Town of Freeport in Cumberland County and

the State of Maine. His principal place of business is in the City of Portland in

Cumberland County and the State of Maine.

4. Respondent-Defendant Maine Commission on Governmental Ethics and

Election Practices is a state agency charged with investigation and adjudication of alleged

violations of election law.

5. Respondents – Defendants Walter F. McKee, Andre G. Duchette, Michael

T. Healy, Margaret E. Matheson and Edward M. Youngblood are members of the Maine

Commission on Governmental Ethics and Election Practices and are sued in their official

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capacities. (The foregoing individual members and the Maine Commission on

Governmental Ethics and Election Practices are hereafter collectively referred to as the

“Commission.)

JURISDICTION

6. This Court has jurisdiction over this proceeding pursuant to 14 M.R.S.A.

§5953, 14 M.R.S.A. §6051(13), 5 M.R.S.A. § 11002 and 42 U.S.C.A. §1983.

BACKGROUND FACTS

7. The State of Maine in 21-A M.R.S.A. §1011-1031 regulates the reporting

of expenditures advocating the election or defeat of political candidates and the

publication or distribution of political communications on behalf of candidates for public

office in Maine (the “Campaign Reporting Act” Campaign Reporting Act).

8. Section 1014(2) of the Campaign Reporting Act requires that a person

who makes an “expenditure” advocating the election or defeat of a candidate which

expenditure is not authorized by a candidate or the candidate’s committee or agent must

“clearly and conspicuously state” on the communication that it is “not authorized by any

candidate” and the person financing the “expenditure” for the communication must state

his or her name and address.

9. Notwithstanding the foregoing general requirement, Section 1012(3)(B)(1)

excludes from the definition of “expenditure” any “news story, commentary or editorial

distributed through the facilities of any broadcasting station, newspaper, magazine or

other periodical publication” unless the facilities are owned or controlled by a political

party or candidate (hereinafter referred to as the “news story exemption”).

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 10. Beginning in about June 2010, Bailey was given extensive research

material from a third party on the background of Eliot Cutler who was at that time a

candidate for Governor of Maine. The third party research had been done using

publicly accessible internet sites, including online newspaper archives. Bailey

confirmed the research after receiving it and added material of his own through his own

internet searches.

11. Bailey’s initial intent when he received information about Cutler and then

undertook his own research was to provide information about Cutler’s background to the

press – information that the mainstream news media had either not bothered to undertake

or publish - in the hope that the press would disseminate the material to the public. After

completing his research, Bailey unsuccessfully attempted to share information about

Cutler with members of the print and broadcast news media.

12. Had either the print or broadcast news media accepted and published the

material gathered by Bailey and disseminated it through a newspaper, a broadcast station,

a magazine, or other “periodical,” any resulting publication of Bailey’s research would

have qualified for the “news story exemption” and the Campaign Reporting Act would

not have applied to the information gathered or material written by Bailey.

13. Because Bailey does not own or control his own broadcast station,

newspaper, or magazine, and because the mainstream press did not use the information

he had gathered, he decided to create his own vehicle, a so-called “blog,” to publicly

disseminate the information he had gathered about Eliot Cutler.

14. On or about August 30, 2010, Bailey used the research he had done to

create a blog with the title, “The Secret Files on Eliot Cutler,” (hereinafter, “the Cutler

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Files”) which was publicly accessible through the internet at www.cutlerfiles.com. The

title was chosen for its dramatic sound, but the information conveyed by the blog was all

obtained from public internet sources. The blog also contained photographs and

humorous depictions of Cutler to illustrate various points made in the text, not unlike the

editorial cartoons of most newspapers.

15. A “blog” is a type of website that generally contains commentary,

graphics, and hyperlinks to other sites. Some blogs are personal chronicles, much like an

online publicly-accessible diary, while others are more akin to internet magazines

devoted to a particular topic of interest, such as cooking or politics. The Cutler Files was

the latter type. Like most blogs, the Cutler Files was regularly updated by Bailey based

on his continuing research.

16. The purpose of the Cutler Files was to provide information to the public

about Eliot Cutler which information Bailey believed was being ignored by the

mainstream print and broadcast media.

17. Bailey regarded the Cutler Files as an example of citizen journalism, and

the site included factual material, analysis, and opinion. The articles on the Cutler Files

website cited numerous reputable sources that contradicted many of the statements made

by Cutler and his campaign, raised questions about his explanation and role in the

bankruptcy of a company named Thornburg Mortgage, examined his career as a

Washington lawyer and lobbyist and provided other information not found in the

mainstream print and broadcast news media in Maine.

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 18. The total amount spent by Bailey to undertake the research and create and

maintain the Cutler Files website was $91.38. Of that total, Bailey spent about half

simply registering and hosting the website online. .

19. When Bailey created the Cutler Files, he did not identify himself as the

person who “financed the expenditure for the communication” on the website nor did he

include any statement thatthe blog was “not authorized” by any candidate. .

20. Bailey is well-known in Maine for his work as a reporter for several

Maine newspapers, as press secretary to former U.S. Representative Tom Andrews and

former Maine Governor Angus King, as media and policy adviser to former Governor

John Baldacci, and as one of the campaign coordinators to a statewide anti-casino

campaign. Because he was so well known, Bailey was concerned that his identity would

detract from the information contained in the Cutler Files, and that the information

contained in the blog would be evaluated in connection with him and his clients, rather

than on its own merits, if he was publicly identified with the site.

21. In addition, because Bailey currently makes his living in the public

relations and communications field, he was concerned about personal and economic

retaliation if his identity as the author of the Cutler Files was made public.

22. Bailey’s original concern was in fact justified, since following the public

disclosure of his name as one of the authors of the Cutler Files, he has in fact received

anonymous threatening phone calls.

23. In light of these well grounded concerns, Bailey made the choice to speak

anonymously through the Cutler Files.

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 24. As stated above, the Cutler Files did not initially contain a statement that

it was was not “authorized by” any candidate as purportedly required by 21-A M.R.S.A.

§ 1014(2). On September 13, 2010 Bailey received notice from the Commission that

the failure to include a statement on the Cutler Files website that the site was “not

authorized” by any candidate constituted a violation of the Campaign Reporting Act.

Thereafter, and within 10 days of receipt of that notice, Bailey added such statement to

each page of the Cutler Files blog.

25. The Cutler Files was discontinued on or about October 29, 2010.

26. Bailey was not compensated directly or indirectly for the creation or

maintenance of the Cutler Files.

ACTIONS OF THE COMMISSION

27. On September 9, 2010, at the request of Eliot Cutler’s campaign,

Commission opened an investigation into whether the creator of the Cutler Files violated

Maine election law.

28. The Commission conducted an extensive investigation, which included

testimony from witnesses, and legal arguments from Bailey’s counsel, counsel for the

Cutler campaign, and other interested parties.

29. On December 20, 2010, the Commission reached a preliminary

determination that Bailey had violated 21-A M.R.S.A. §§ 1014(2) and (2-A). On January

27, 2011, the Commission reviewed proposed findings of fact and conclusions of law in

support of that determination.

30. On January 31, 2011, the Commission issued a final determination finding

that Bailey had committed two violations of Maine election law through the creation and

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maintenance of the Cutler Files. Notice of that final determination was mailed to Bailey

and received by Bailey on February 14, 2011.

31. The Commission found that Bailey had violated 21-A M.R.S.A.

§§1014(2) and 1014(2-A) because he did not include his name and address on the

website, though this requirement is inconsistent with and irreconcilable with the right to

anonymous speech.

32. The Commission also found that Bailey had violated 21-A M.R.S.A.

§1014(2) by not including a disclosure statement declaring that the communication was

“not authorized” by any candidate, notwithstanding the fact that Bailey did in fact add

such statement to the Cutler Files website within 10 days of receiving notification from

the Commission as provided by Section 1014(4).

33. In issuing its decision the Commission refused to construe the “news

story” exemption in 21-A M.R.S.A. §1012(3)(B)(1) liberally to include electronic as well

as conventional news media channels, in order to protect Bailey’s constitutional rights.

34. Like the Maine Campaign Reporting Act, Federal election law also

exempts spending on political speech disseminated through newspapers, broadcast

stations, magazines, and periodicals from being regarded as an expenditure triggering

disclosure or disclaimer requirements. However, unlike the Maine Commission, the

Federal Election Commission, which is the federal analogue to the Maine Commission in

this case, has interpreted the “news story exemption” in federal law to apply to media

entities on the internet, including blogs, websites or any other Internet or electronic

publication.

35. As a result of its decision, the Commission fined Bailey $200.

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 36. In taking its actions against Bailey, the Commission, as an agency of the

state of Maine, was acting under color of state law.

37. Bailey desires to use a blog or another form of internet communication to

engage in online political speech in the future, including perhaps even anonymous online

political speech, but the Commission’s actions have had a chilling effect on his

willingness and his ability to do so.

38. Bailey voluntarily added the disclaimers to the Cutler Files blog after he

received notice of a potential violation from the Commission, since he was concerned

about potential enforcement action by the Commission. However, Bailey still wishes to

engage in anonymous electronic political speech in the future, but the Commission’s

actions have had a chilling effect on his willingness and his ability to do so.

LEGAL CLAIMS

COUNT I

39. Bailey reasserts and realleges the allegations in paragraphs 1 - __.

40. The Campaign Reporting Act as applied to Bailey by the Commission,

and the Commission’s determination that Bailey’s blog was not entitled to the statutory

“news story exemption” in Section 1011(3)(B)(1) of the Act, violated Bailey’s rights

under the First Amendment to the United States Constitution, Article I, Section 4 of the

Maine Constitution and 42 U.S.C. § 1983.

COUNT II

41. Bailey reasserts and realleges the allegations in paragraphs 1 - __.

42. The Commission’s determination that Bailey’s Cutler Files blog was not

entitled to the statutory “news story exemption” in Section 1011(3)(B)(1) of the

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Campaign Reporting Act was an error of law, was in excess of statutory authority, and

was arbitrary and capricious. Such decision requires reversal under 5 M.R.S.A. §

11007(4)(C) (1), (2) and (4).

COUNT III

43. Bailey reasserts and realleges the allegations in paragraphs 1- __.

44. The Campaign Reporting Act as applied to Bailey, and the Commission’s

action ins penalizing Bailey for having made a de minimis expenditure of money to

finance his anonymous political speech was in violation of Bailey’s rights under the First

Amendment to the United States Constitution, Article I, Section 4 of the Maine

Constitution and 42 U.S.C. § 1983.

COUNT IV

45. Bailey reasserts and realleges the allegations in paragraphs 1- __.

The action of the Commission in penalizing Bailey for not including a statement in the

Cutler Files website stating that the website was “not authorized by a candidate,” despite

the fact that Bailey cured this alleged defect within 10 days of receiving notice of the

violation from the Commission pursuant to Section 1014(4) of the Campaign Reporting

Act, is an error of law and abuse of discretion pursuant to 5 M.R.S.A. § 11007(4)(C)

(6).COUNT V

46. Bailey reasserts and realleges the allegations in paragraphs 1- __.

47. The Campaign Reporting Act as applied to Bailey by the Commission,

and the Commission’s determination that Bailey’s blog was not entitled to the statutory

“news story exemption” in Section 1011(3)(B)(1) of the Act, violated Bailey’s rights

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under the Equal Protection Clause of the 14th Amendment to the United States

Constitution, Article I, Section 6-A of the Maine Constitution and 42 U.S.C. § 1983.

PRAYER FOR RELIEF

Wherefore, Bailey respectfully prays that this Honorable Court:

1. Vacate the judgment of Commission’s decision pursuant to 5 M.R.S.A. §

11007(4)(C);

2. Declare that the application of Maine’s Campaign Reporting Act to

Bailey’s creation of the Cutler Files is a violation o Bailey’s right to free expression

under the First Amendment to the U.S. Constitution and Article I, Section 4 of the Maine

Constitution and that 21-A M.R.S.A. §§ 1014(2) and 1014(2-A) are unconstitutional as

applied to Bailey;

3. Declare that the application of Maine’s Campaign Reporting Act to

Bailey’s creation of the Cutler Files is a violation of Bailey’s right to equal protection of

the laws under the 14th Amendment to the U.S. Constitution and Article I, Section 6-A of

the Maine Constitution and that the failure to include Bailey’s Cutler Files website

within the exemption of Section 1011(3)(B)(1) is unconstitutional as applied to Bailey;

4. Find that the Commission’s actions against Bailey to be a violation of 42

U.S.C. § 1983.

5. Permanently enjoin the Commission and its officials, employees, agents,

assigns, and others who may be working in concert with them, from interfering with

Bailey’s right to disseminate news and information through a blog or another form of

internet communication without triggering disclosure and disclaimer requirements;

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 6. Permanently enjoin Commission and its officials, employees, agents,

assigns, and others who may be working in concert with them, from interfering with

Bailey’s right to engage in anonymous political speech;

7. Award Bailey reasonable costs and attorney fees pursuant to 42 U.S.C.

§1988; and

8. Grant such other relief as this Court may deem just and appropriate to

protect Bailey’s constitutional rights.

Dated: ___________________ _______________________________

Zachary L. Heiden
AMERICAN CIVIL LIBERTIES UNION OF
MAINE
401 Cumberland Ave., Suite 105
Portland, ME 04101
207-774-5444

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