March 23, 2019
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Bear-baiting foes press judges to rule on state election spending

BDN file | BDN
BDN file | BDN
A bear baiting opponent stands with signs the requisite distance from a polling station inside the Portland Expo on Nov. 4, 2014.

PORTLAND, Maine — A dispute over an unsuccessful 2014 referendum to ban methods of bear hunting continued before the Maine Supreme Judicial Court on Wednesday, when justices heard an appeal of an anti-bear baiting group’s lawsuit against the state.

The case — if decided for Mainers for Fair Bear Hunting — could have a wide impact on state government’s ability to influence elections. But the group faced difficult questions from justices at the hearing in Portland.

The Maine Department of Inland Fisheries and Wildlife spent at least $31,000 in public money to help defeat the referendum, and their action prompted a lawsuit before the election from Mainers for Fair Bear Hunting, which proposed banning bear baiting, hounding and trapping.

A judge declared the state’s action legal — saying restricting speech on a contested issue would go against the public interest — and dismissed the lawsuit in April, saying it was moot because the election has been decided.

The anti-bear baiting group’s attorney, Rachel Wertheimer, argued Wednesday that the case “is not moot because significant practical effects will flow from this resolution.”

Wertheimer said there’s no clear guidance on how government can use public funds to advocate in an election. The court could decide that, she said, by vacating the past decision and issuing an opinion.

Assistant Attorney General Emily Green, representing the state of Maine, said the case is moot and that the department is “allowed to make its specific position on the issues within its competence to the Legislature or the public.”

Justice Donald Alexander pressed Wertheimer early in her argument, asking — with an apparent tone of incredulity — if state employees can’t talk about ballot initiatives. She replied that while they can discuss them, they can’t spend public money outside of legislative approval to advocate for a yes or no vote.

“But talking about it effectively does that, and you’re saying the state can’t do that?” he said.

The 2014 vote was the second time in 10 years that Mainers rejected proposed limits on bear hunting. The department also opposed the 2004 referendum, but in a less aggressive way. There was a similar controversy over a state biologist appearing in an ad against the referendum then, but it never rose to court.

This time, they were vocal opponents of the effort, producing brochures and online ads, coaching staffers for debates, sending them to more than 50 public events and using more than 165 hours of staff time on campaign activities, according to documents provided to the Bangor Daily News under a public access request.

The high court’s decision will come at a later date, but this battle hasn’t been the only fallout from that campaign: Last year, sportsmen’s advocates unsuccessfully tried to get the Maine Legislature to ban future challenges to bear hunting laws and won legislative changes that made it harder for out-of-state residents to gather referendum signatures.

 


Correction: An earlier version of this report stated that the Maine Department of Inland Fisheries and Wildlife was officially neutral on a 2004 referendum targeting methods of bear hunting. The department also opposed that ballot question.


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