WAWENOCK v. DEP'T OF TRANSPORTATION

GORMAN, J.

[¶ 1] Wawenock, LLC; Bermuda Isles, LLC; 48 Federal Street LLC; and 32 Middle Street LLC (collectively, the LLCs) appeal from a judgment on the pleadings entered in the Business and Consumer Docket (Mulhern, J.) in favor of the Department of Transportation on the LLCs' complaint seeking declaratory and injunctive relief regarding the Department's plan to widen Route 1 in Wiscasset. The LLCs argue that the court erred by determining that the Sensible Transportation Policy Act (STPA), 23 M.R.S. § 73 (2017), affords them no private right of action. We affirm the judgment.

I. BACKGROUND

[¶ 2] On February 14, 2017, the LLCs — four entities that own property in Wiscasset — instituted the present litigation in the Superior Court (Lincoln County)1 against the Department, seeking declaratory and injunctive relief regarding the "Wiscasset Downtown Improvement Project" (the Project) for the widening and alteration of Route 1/Main Street in Wiscasset.2 By amended complaint, the LLCs advanced nine counts claiming that the Department violated various constitutional, statutory, regulatory, and municipal provisions in planning and designing the Project. In particular, in Count 1, the LLCs alleged that the Department violated the STPA by failing to allow public participation in the planning and design of the Project.3

[¶ 3] The Department moved for a judgment on the pleadings pursuant to M.R. Civ. P. 12(c), arguing that the complaint was nonjusticiable on a variety of grounds. By judgment dated September 11, 2017, the court granted the motion and entered a judgment on the pleadings in favor of the Department on all counts. As to Count 1, the court concluded that the STPA affords no private right of action and that the LLCs were therefore precluded from seeking relief on that basis. The LLCs appeal from the denial of their motion for reconsideration.4 See M.R. Civ. P. 7(b)(5), 59(e).

II. DISCUSSION

[¶ 4] The LLCs challenge only that portion of the court's judgment determining that the STPA affords them no private right of action and entering a judgment on the pleadings as to Count 1 on that basis. When, as here, a motion for a judgment on the pleadings is filed by the defendant pursuant to M.R. Civ. P. 12(c), "only the legal sufficiency of the complaint is tested." Cunningham v. Haza, 538 A.2d 265, 267 (Me. 1988). In such circumstances, the "[d]efendant's motion for judgment on the pleadings is nothing more than a motion under M.R. Civ. P. 12(b)(6) to dismiss the complaint for failure to state a claim upon which relief can be granted." Cunningham, 538 A.2d at 267. We review the grant of a judgment on the pleadings de novo, Faith Temple v. DiPietro, 2015 ME 166, ¶ 26, 130 A.3d 368, by "assuming that the factual allegations are true, examining the complaint in the light most favorable to plaintiff, and ascertaining whether the complaint alleges the elements of a cause of action or facts entitling the plaintiff to relief on some legal theory," Cunningham, 538 A.2d at 267 (quotation marks omitted).

[¶ 5] The sole issue before us is whether the STPA provides for a private right of action such that the LLCs may seek its enforcement through the court. A statute may provide for a private right of action by express language or by implication. Larrabee v. Penobscot Frozen Foods, Inc., 486 A.2d 97, 101 (Me. 1984).

[¶ 6] When a private right of action exists, however, it is most often created by express language: "[I]f our Legislature had intended that a private party have a right of action ..., it would have either expressed its intent in the statutory language or legislative history or, more likely, expressly enacted one." Id.; see In re Wage Payment Litig., 2000 ME 162, ¶ 7, 759 A.2d 217 (stating that "when the Legislature deems it essential that a private party have a right of action, it has expressly created one" (quotation marks omitted)).

[¶ 7] To determine whether the STPA provides for a private right of action, we interpret the statute de novo to effectuate the legislative intent. Foster v. State Tax Assessor, 1998 ME 205, ¶ 7, 716 A.2d 1012. The first and best indicator of legislative intent is the plain language of the statute itself. Id. If the statute is unambiguous, we interpret the statute according to its unambiguous language, "unless the result is illogical or absurd." MaineToday Media, Inc. v. State, 2013 ME 100, ¶ 6, 82 A.3d 104 (quotation marks omitted). If the language is ambiguous, we will "consider the statute's meaning in light of its legislative history and other indicia of legislative intent." Id. "[I]f a statute can reasonably be interpreted in more than one way and comport with the actual language of the statute, an ambiguity exists." Me. Ass'n of Health Plans v. Superintendent of Ins., 2007 ME 69, ¶ 35, 923 A.2d 918.

A. Plain Language

[¶ 8] The STPA was enacted by a citizens' initiative in 1991. I.B. 1991, ch. 1, § 1 (effective Dec. 20, 1991); L.D. 719 (referred to the voters, 115th Legis. 1991); see Me. Const. art. IV, pt. 3, § 18. It provides,

23 M.R.S. § 73 (footnotes omitted). In short, the STPA has six primary components: it lists a series of "[p]urposes and findings" regarding transportation decisions; sets out seven policies to be integrated into transportation decisions; and requires the Department to adopt rules to implement the transportation policy, comply with the transportation policy and the rules implementing that policy, establish a priority system for state highway improvements, and report to the Legislature on a biennial basis regarding its progress and plans in meeting those goals. 23 M.R.S. § 73.

[¶ 9] As the LLCs concede, the plain language of the STPA unambiguously provides for no express private right of action.5 The LLCs argue, however, that a private right of action is instead implied by the STPA. We discern nothing in the language of the STPA that implies the creation of a private right of action. Contrary to the LLCs' suggestion, the mere presence of the words "must" and "shall" in a statute does not mean that a private right of action exists to enforce it. In Larrabee, for example, one of the statutes at issue provided that "[a]n employer shall" complete certain acts or else be "subject to a forfeiture of not less than $50 nor more than $500." 486 A.2d at 101 & n.6 (quotation marks omitted). Even given that language, we held that "nothing in the plain language or legislative history of [the provision] indicates that our Legislature intended a private party to have a right of action under [the statute]."6 Id. at 101.

[¶ 10] The LLCs further argue that the STPA would be a nullity — "a meaningless exercise" — in the absence of any enforcement mechanism. They offer no authority for the proposition that a statute is a nullity unless it provides for a private right of action, however, and indeed, the STPA is similar in effect to numerous other statutory provisions that set out broad policy objectives, e.g., 1 M.R.S. § 401 (2017); 9-A M.R.S. § 1-102(2) (2017); 18-A M.R.S. § 1-102(b) (2017); 22 M.R.S. § 4050 (2017), or require an entity to promulgate rules and regulations to further effectuate statutory objectives, e.g., 4 M.R.S. § 198 (2017); 10 M.R.S. § 2369 (2017); 22 M.R.S. § 2124 (2017); 32 M.R.S. § 13722 (2017). That the STPA contains few or no particularities on how its broad transportation goals and policies are to be executed also indicates that it was not intended to afford any private right of action. See Barbuto v. Advantage Sales & Mktg., LLC, 477 Mass. 456, 78 N.E.3d 37, 50 (2017) (declining to imply a private right of action where the statute "provides no guidance as to what the appropriate contours of the implied right of action would be").

[¶ 11] The STPA must be interpreted consistently with other provisions that unequivocally provide the Department with broad authority to manage the State's highways as a delegation of Executive Branch power. See 23 M.R.S. § 52 (2017) (describing the Department's powers regarding "the planning, design, engineering, construction, improvement, maintenance and use of transportation infrastructure"). Nothing in the STPA suggests an encroachment on that authority.

[¶ 12] We therefore conclude that the plain language of the STPA unambiguously provides for no implied private right of action. Because the plain language of the STPA resolves the question before us, we need not look beyond that language to discern the legislative intent. See Stockly v. Doil, 2005 ME 47, ¶ 12, 870 A.2d 1208. Nevertheless, because the trial court and the parties focused on the legislative history of the statute, and in the interest of clarifying the means of determining legislative intent for citizen-enacted legislation, we address the legislative history of the STPA as well. See id.

B. Legislative History

[¶ 13] As an initial matter, we address the LLCs' challenges to the procedure undertaken by the trial court when it evaluated the legislative history of the STPA to determine whether it discloses a legislative intent to provide for a private right of action. Contrary to the suggestion underlying many of the LLCs' arguments, the legislative intent of any statutory enactment is determined wholly as a matter of law, not fact; the trial court determines legislative intent as a matter of law, and we determine legislative intent de novo as a matter of law on appeal. MaineToday Media, Inc., 2013 ME 100, ¶ 7, 82 A.3d 104; see In re Wage Payment Litig., 2000 ME 162, ¶ 4, 759 A.2d 217 ("If the plain meaning of the text does not resolve an interpretative issue raised, we then consider the statute's history, underlying policy, and other extrinsic factors to ascertain legislative intent."); State v. Coombs, 1998 ME 1, ¶ 9, 704 A.2d 387 (characterizing de novo review as "independent review for conclusions of law"); League of Women Voters v. Sec'y of State, 683 A.2d 769, 773-74 (Me. 1996) (determining legislative intent without any evidentiary presentations); see also Alaskans for a Common Language, Inc. v. Kritz, 170 P.3d 183, 189 (Alaska 2007) ("We also apply our independent judgment to questions of statutory interpretation and adopt the rule of law that is most persuasive in light of precedent, reason and policy." (alteration omitted) (quotation marks omitted)). Thus, no burden or standard of proof applies, judicial notice is not implicated,7 "evidence" of legislative history is not offered or admitted, and the court is not limited to reviewing those portions of legislative history that have been provided by the parties. No matter what materials are directed to a court's attention, the court's review of any and all legislative history information in the course of its own evaluation of the law is not any more limited than a court's review of precedent identified by the parties.

[¶ 14] Contrary to the LLCs' contention, legislative intent is therefore properly analyzed in the context of a Rule 12(c) motion without any evidentiary process. Further, although consideration pursuant to Rule 12(c) required the trial court — and, on appeal, requires us — to make all factual inferences in favor of the LLCs, they are entitled to no favorable inferences as to the legal interpretation of the STPA — including the legislative intent as determined through its legislative history. See Cunningham, 538 A.2d at 267.

[¶ 15] In evaluating legislative intent using information beyond the language of the provision, we have relied on a variety of materials, including the statutory scheme in which the relevant section is found, see Charlton v. Town of Oxford, 2001 ME 104, ¶ 16, 774 A.2d 366; the history of relevant codifications, amendments, and repeals, see State v. Legassie, 2017 ME 202, ¶¶ 16-20, 171 A.3d 589; the legislative committee file, including testimony before a committee and newspaper articles submitted to a committee, see Craig v. Caron, 2014 ME 115, ¶ 14, 102 A.3d 1175; Bank of Am., N.A. v. Cloutier, 2013 ME 17, ¶ 19, 61 A.3d 1242; Me. Ass'n of Health Plans, 2007 ME 69, ¶¶ 50-51, 923 A.2d 918; scholarly literature available at the time of the enactment, see Cloutier, 2013 ME 17, ¶ 20, 61 A.3d 1242; "preenactment history, including circumstances and events leading up to a bill's introduction," see Estate of Robbins v. Chebeague & Cumberland Land Tr., 2017 ME 17, ¶ 24, 154 A.3d 1185 (quotation marks omitted); reports and recommendations from legislative task forces, committees, and working groups, see Me. Ass'n of Health Plans, 2007 ME 69, ¶ 54, 923 A.2d 918; Darling's v. Ford Motor Co., 1998 ME 232, ¶ 10, 719 A.2d 111; narrative summaries and statements of fact accompanying proposed legislation and committee amendments, see Me. Ass'n of Health Plans, 2007 ME 69, ¶¶ 49, 52, 923 A.2d 918; "pronouncements of the legislators during their initial consideration" of a statute, see id. ¶ 47; legislative debate, see id. ¶ 55; contemporaneous legislation, see In re Wage Payment Litig., 2000 ME 162, ¶¶ 9, 12, 759 A.2d 217; Mundy v. Simmons, 424 A.2d 135, 138 (Me. 1980); interpretations of federal counterpart statutes, Batchelder v. Realty Resources Hospitality, LLC, 2007 ME 17, ¶ 20, 914 A.2d 1116; information from uniform codes from which the provision may have originated, see Guardianship of Sanders, 2016 ME 99, ¶ 9 n.7, 143 A.3d 795; and the analysis of legislation by the Office of Policy and Legal Analysis, see McLaughlin v. Superintending Sch. Comm., 2003 ME 114, ¶ 18, 832 A.2d 782.

[¶ 16] "Citizen initiatives are reviewed according to the same rules of construction as statutes enacted by vote of the Legislature." Opinion of the Justices, 2017 ME 100, ¶ 59, 162 A.3d 188; see League of Women Voters, 683 A.2d at 771. Interpreting citizen-enacted legislation requires us to "ascertain the will of the people" rather than the will of the Legislature. Opinion of the Justices, 2017 ME 100, ¶ 7, 162 A.3d 188 (quotation marks omitted).

[¶ 17] Legislative debate and other standard fare for determining legislative intent may be unavailable for citizen-enacted statutes, but we have the benefit of additional materials not available for Legislature-enacted statutes. For example, the Attorney General is required by statute to issue a "brief explanatory statement that must fairly describe the intent and content and what a `yes' vote favors and a `no' vote opposes for each direct initiative." 1 M.R.S. § 353 (2017). The Office of Fiscal and Program Review also must "prepare an estimate of the fiscal impact on state revenues, appropriations and allocations of each measure that may appear on the ballot." 1 M.R.S. § 353. The language of the ballot question for a citizens' initiative is also an indication of legislative intent. State v. Brown, 571 A.2d 816, 818 (Me. 1990).

[¶ 18] We have relied on all such materials in determining legislative intent in prior matters. Id. ("In the absence of a challenge to the Attorney General's official explanation of the amendment, we assume that the voters intended to adopt the constitutional amendment on the terms in which it was presented to them...."); League of Women Voters, 683 A.2d at 773-74 (discussing the Attorney General's explanatory statement attached to a referendum question); see also Kritz, 170 P.3d at 193 ("[W]hen we review a ballot initiative, we look to any published arguments made in support or opposition to determine what meaning voters may have attached to the initiative."); People v. Clendenin, 232 P.3d 210, 215 (Colo. App. 2009) (noting that "the explanatory publication of the Legislative Council of the Colorado General Assembly, otherwise known as the Blue Book ... provides important insight into the electorate's understanding of [a citizen initiative] when it was passed and also shows the public's intentions in adopting the [enactment]." (quotation marks omitted)); Barbuto, 78 N.E.3d at 49 ("[W]e look to the closest equivalent to legislative history, which is the Information for Voters guide that is prepared by the Secretary of the Commonwealth and sent to each registered voter before the election.").

[¶ 19] We turn to a review of all such materials relating to the enactment of the STPA. In 1991, "An Act to Deauthorize the Widening of the Maine Turnpike and to Create a Sensible Transportation Policy" was first presented to the Legislature. L.D. 719 (115th Legis. 1991). The bill proposed the enactment of the STPA as well as the amendment of several other existing statutes within title 23. L.D. 719 (referred to the voters, 115th Legis. 1991). The Legislature declined to enact it, 1 Legis. Rec. H-751 (1st Reg. Sess. 1991); 3 Legis. Rec. S-801 (1st Reg. Sess. 1991), and the statute was eventually enacted by citizen initiative on November 5, 1991.8 I.B. 1991, ch. 1, § 1 (effective Dec. 20, 1991); L.D. 719 (referred to the voters, 115th Legis. 1991); see Me. Const. art. IV, pt. 3, § 18; 21-A M.R.S. §§ 901-906 (2017).

[¶ 20] The legislative history of the STPA persuades us that the particular focus of the bill was to prevent the Turnpike Authority from executing its plan to widen the Turnpike in southern Maine and to diminish the Turnpike Authority's ability to accomplish similar plans in the future. The Statement of Fact accompanying the legislation stated as much in declaring that the legislation would "ensure that transportation decisions and the substantial commitments of public funds resulting from them are made in the context of a comprehensive, statewide transportation policy"; deauthorize the widening of the Maine Turnpike between Exits 1 and 6-A; require the Turnpike Authority to obtain the Legislature's approval for any widening or expansion of the Turnpike;9 require the Turnpike Authority to transfer surplus funds to the Department; and make the Turnpike Authority's budget and expenditures subject to Legislative approval. L.D. 719, Statement of Fact (referred to the voters, 115th Legis. 1991); see Office of Policy and Legal Analysis, Joint Standing Committee Bill Summaries, L.D. 719 (Aug. 1991). It is notable in this regard that every portion of the bill except the one enacting the STPA worked amendments to title 23, chapter 24, the chapter dedicated to the Maine Turnpike. L.D. 719 (referred to the voters, 115th Legis. 1991).

[¶ 21] More than forty people testified at a public hearing about the bill before the Transportation Committee; the overwhelming focus of that testimony was the Turnpike Authority's plan to widen the Turnpike in southern Maine. An Act to Deauthorize the Widening of the Maine Turnpike and to Create a Sensible Transportation Policy: Hearing on L.D. 719 Before the Comm. on Transp. (Hearing on L.D. 719), 115th Legis. (1991). The supporters of the bill cited a host of financial, safety, air pollution, public health, and environmental concerns raised by the widening. Hearing on L.D. 719 (testimony of Booth Hemingway, Kittery Coordinator; Marshall Burke, Dir. of the Am. Lung Ass'n of Me.; Brownie Carson, Exec. Dir. of the Nat. Res. Council of Me.; Elizabeth Lovejoy for the Me. Audubon Soc'y). Opponents argued that failing to widen the Turnpike would compromise Maine's economic prospects for tourism and other industries, deny residents job opportunities, and create road safety issues. Hearing on L.D. 719 (testimony of Jerry G. Haynes for the Associated Gen. Contractors of Me., Inc.; Jon Olson, Exec. Sec'y of the Me. Farm Bureau; David M. Spahn, Chairman of the Gov't Affairs Comm. of the Sanford-Springvale Chamber of Commerce; Milton F. Huntington for the Me. Hwy. Users Conference; Clyde G. Berry, Master of the Me. State Grange). Notably, a handful of opponents pointed out that proponents of the bill seemed to be unaware that the legislation would have any lasting effect other than to prevent the widening of the Turnpike. Hearing on L.D. 719 (testimony of Laurie R. Winsor, Pres. of the Lewiston-Auburn Chamber of Commerce; Maria Fuentes, Dir. of the Me. Better Transp. Ass'n; Chuck Roundy for the Econ. Dev. Council of Me.).

[¶ 22] The LLCs rely on the testimony of the former Commissioner of the Department, who set out numerous concerns about the bill — among them, "I also fear that this new policy would give anyone the ability to stop a road improvement project by intervening or filing endless lawsuits." Hearing on L.D. 719 (testimony of Dana F. Connors, Comm'r of the Dep't of Transp.). The Commissioner's mention of the potential for litigation was a generalized statement that does little to suggest that the intent of the bill was to establish an implied private right of action; the testimony merely sets out the Commissioner's fear that others might interpret the bill in that manner.10 Further, although several opponents worried that a new transportation policy might hinder road improvements, none addressed precisely how, by whom, or in what circumstances road work could be stymied. Hearing on L.D. 719 (testimony of Fuentes; Paul Violette; Berry; Jack Dexter, Pres. of the Me. Chamber of Commerce and Indus.) Rather, the opponents warned against a general anti-growth policy that they feared the enactment of the bill could signal. Hearing on L.D. 719 (testimony of Roundy, Winsor). Indeed, other than the Commissioner's single mention, the testimony contains no reference to a private right of action or, in fact, any mention of the STPA at all.

[¶ 23] When the bill was presented to the voters by referendum, the ballot question was similarly focused on the broad policies at issue as applied to the widening of the Maine Turnpike; it asked, "Do you favor the changes in Maine Law concerning deauthorizing the widening of the Maine turnpike and establishing transportation policy proposed by citizen petition?" G. William Diamond, Sec'y of State, Maine Citizen's Guide to Upcoming Initiative, Bond Issues, and Proposed Constitutional Amendment (Citizen's Guide) 3 (1991).

[¶ 24] The Citizen's Guide to the 1991 referendum, published pursuant to 1 M.R.S. § 353, also gave no hint that any private right of action would be created. Like the Statement of Fact, the Citizen's Guide stated that the bill would require the adoption of a new transportation policy, "repeal existing statutory authority to widen the Maine Turnpike," require legislative approval of the Turnpike Authority's budget, and require that surplus Turnpike Authority funds be transferred to the Department. L.D. 719, Statement of Fact (referred to the voters, 115th Legis. 1991); Citizen's Guide 12.

[¶ 25] Finally, although the STPA has undergone several amendments by the Legislature since 1991, in none of them has the Legislature made any adjustments indicating an intent to allow the enforcement of the STPA by implied private right of action. See R.R. 1991, ch. 2, § 88; P.L. 2003, ch. 22, § 1 (effective Sept. 13, 2003); P.L. 2007, ch. 470, § B-1 (effective June 30, 2008); P.L. 2011, ch. 610, §§ B-1, B-2 (effective Aug. 30, 2012); P.L. 2011, ch. 655, §§ JJ-9, JJ-41 (effective July 1, 2012); P.L. 2011, ch. 657, § W-5 (effective Aug. 30, 2012).

[¶ 26] These legislative history sources do not purport to set out the intent of all — or even most — of the citizens who voted to enact the STPA, but they do illuminate the context and substance of the statewide conversation that culminated in the citizens' enactment of the STPA in 1991. See Brown, 571 A.2d at 818 (adopting "a common sense view of the context in which the voters of Maine adopted [a provision]"). The bulk of that conversation regarded the widening of the Maine Turnpike, indicating that the STPA was intended to reset the State's broad transportation policy goals. Citizen-initiated legislation must be interpreted liberally to effectuate its purpose, Opinion of the Justices, 2017 ME 100, ¶ 59, 162 A.3d 188, but it should not be interpreted beyond the scope of the legislative intent underlying its enactment, League of Women Voters, 683 A.2d at 773 ("It is fundamental that we look to the purpose for which a law is enacted, and that we avoid a construction which leads to a result clearly not within the contemplation of the lawmaking body." (quotation marks omitted)); see Kritz, 170 P.3d at 192 n.28 ("[T]o imply into statute what is not apparent on its face would be stepping over the line of interpretation and engaging in legislation." (quotation marks omitted)). None of these sources suggests that the legislative intent in enacting the STPA was to create an implied private right of action.

[¶ 27] We conclude that the STPA provides for no implied private right of action to allow enforcement of its terms and that the Superior Court committed no error in entering a judgment on the pleadings as to Count 1 based on the nonjusticiability of the LLCs' claim.

The entry is:

Judgment affirmed.