More than a year after voters defeated a referendum to ban the use of bait, dogs and traps in the state’s bear hunt, supporters of the measure went before the Maine Supreme Court Wednesday morning.
Mainers for Fair Bear Hunting had filed suit to prevent the Maine Department of Inland Fisheries and Wildlife from actively campaigning against the measure. After the election a state Superior Court dismissed the lawsuit as moot. But the group is challenging that ruling.
Attorney Rachel Wertheimer says the case brought by Mainers for Fair Bear Hunting is about whether a state agency can use its taxpayer-funded budget to support a political campaign. And when a Maine Superior Court gave the green light, Wertheimer says it erred by rejecting an earlier court decision and cases from across the country that have held that “absent clear and specific authorization,” government agencies may not use taxpayer funds for campaign activity.
She says the Superior Court also “dangerously extended” the scope of the government’s speech doctrine to immunize agencies from claims that they’ve misused funds in an election.
“The court today has an opportunity to correct the Superior Court’s fundamental errors and to ensure that government agencies are not free to use the resources of their offices to unfairly sway elections,” Wertheimer says.
Wertheimer says the issue is not moot because it will recur. IFW, she points out, has not once, but twice used its resources to advocate against anti-bear-hunting and trapping measures and her group is not giving up its efforts.
But Wertheimer faced tough questioning from the court, including Justice Donald Alexander, who asked whether it was her position that state departments must remain silent in any referendum.
“We have a referendum coming up, let’s just call it for short ‘Marijuana for Everybody,’” Alexander says. “Are you saying that state health officials and state law enforcement officials cannot talk about that?”
“I’m not saying they can’t talk about that, they can talk about…” Wertheimer says.
“And health risks could apply?” Alexander says, interrupting.
“What they cannot do is use their funds to tell the public to vote yes or to vote no,” Wertheimer says.
“But talking about it effectively does that,” Alexander says.
“Our position,” Wertheimer says, “is that they cannot use state funds as they did in this case, to coordinate directly with a ballot question committee to tell the public how to vote. They can advocate for one side or another, but they can’t produce televised ads and campaign materials that simply say ‘Vote No.’”
“Where do you draw the line if somebody comes out on an initiative and says everything but — it’s obvious what they want you to do,” says Justice Joseph Jabar. “What’s the difference?”
“The difference is it is not the role of state agencies to use their funds, absent specific authorization, to tell the public how to vote,” Wertheimer says.
But Assistant Attorney General Emily Green, arguing for IFW, says the department is specifically charged with effective management of wildlife resources and increasing the public’s knowledge of those practices. She says what the agency did in the campaign is akin to what it and many state agencies do all the time: engage in the legislative process and testify for and against bills.
Green maintains the issue before the court is moot, in part because there is no guarantee that the same controversy will recur.
“We don’t know whether appellants will bring another referendum,” she says. “It sounds like it will look different if they do and given those variables we can’t know how or whether IFW will react.”
In answer to a question about whether there is a way to prevent state agencies from overstepping their bounds and acting outside their authorized scope in an election, Green said there is a remedy. She says opponents can always use the courts to determine whether an agency is engaging in misconduct and decide whether an injunction is appropriate.
There is no timetable for a decision in the case.
