Davric Maine Corp. v. Harness Racing Comm.
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 99
Docket:	Cum-98-629	
Argued:	May 3, 1999	
Decided:	June 29, 1999	

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, and CALKINS, JJ.	   

DAVRIC MAINE CORPORATION, et al.

v.

MAINE HARNESS RACING COMMISSION, et al.

WATHEN, C.J.

	[¶1]  Davric Maine Corporation, the owner and operator of
Scarborough Downs racetrack, and the Maine Alliance of Harness Horsemen
and Women appeal from the judgment of the Superior Court (Cumberland
County, Brennan, J.) affirming a decision of the Maine Harness Racing
Commission.  Plaintiffs argue that the court erred in failing to vacate the
Commission's certification of election results selecting the Maine Harness
Horsemen's Association (MHHA) as the exclusive bargaining agent for
harness horse owners, trainers, and drivers at Scarborough Downs.  Finding
no error, we affirm the judgment.
	[¶2] Maine's harness racing law requires the Commission to conduct
and certify elections biannually to determine "the exclusive bargaining agent
to represent licensed harness horse owners, trainers and drivers at each
racetrack within that racing segment."  8 M.R.S.A. § 285-A(2) (Supp. 1998). 
Specifically, the statute sets forth the following requirements for the
election procedure:

During each January preceding such an election, the
commission, in consultation with the racetracks within each
racing segment and in consultation with the existing
representatives of licensed harness horse owners, trainers
and drivers within that racing segment shall prepare a list of
eligible voters within each racing segment.  During February
of each year for which elections are to be held, the
commission shall prepare and forward to each eligible voter
within each racing segment a ballot for the election of the
exclusive bargaining agent within that racing segment.  The
ballot must include the name of any incorporated entity that
during the preceding January has requested in writing to
have its name included on the ballot for that racing segment. 
Eligible voters for each racing segment are entitled to vote in
the election held for that racing segment either by returning
the commission's official mailed ballot to the commission no
later than the following February 28th or by appearing and
voting in person, by secret ballot, at the public polling
conducted pursuant to subsection 3.

Id.
	[¶3] In December 1997 and January 1998, both the Alliance and the
MHHA informed the Commission that they wished to be candidates in the
Scarborough Downs segment of the elections.  A ballot was printed by the
Commission's staff and mailed to eligible voters in February 1998,
incorrectly identifying the Alliance as the "Maine Alliance Horsemen's
Association."  The Alliance requested immediate corrective measures.
	[¶4] The Commission subsequently created and mailed a second
ballot, correctly identifying the Alliance.  The second ballot instructed:

PLEASE DESTROY THE BALLOT MAILED ON FEBRUARY 11,
1998.  USE ONLY THE ENCLOSED BALLOT FOR VOTING IN
THE SCARBOROUGH DOWNS SEGMENT.

THOSE BALLOTS RECEIVED FOR THE SCARBOROUGH
DOWNS BARGAINING AGENT SEGMENT WITH THE
INCORRECT ORGANIZATIONS NAMES WILL BE
DESTROYED.

YOU MUST PRINT AND SIGN YOUR NAME ON THE BACK OF
THE SELF ADDRESSED STAMPED ENVELOPE.  FAILURE TO DO
THIS WILL INVALIDATE YOUR BALLOT.

The ballot instructions stated that the deadline for receipt of ballots
returned by mail was March 4, 1998, at 5:00 pm.  In conjunction with the
ballot mailing and pursuant to the statute, the Commission also conducted
public polling, allowing all eligible voters to cast ballots in person at
Scarborough Downs on March 7.
	[¶5] All ballots received by mail by the March 4 deadline and all ballots
cast in person on March 7 were tallied with the following results, as
recorded in a memorandum generated by the Commission staff:

210 acceptable votes were counted.  The vote was 113 for the
Maine Harness Horsemen's Association.  The vote was 97 for the
Maine Alliance for Horsemen and Horsewomen.
233 votes were cast and 23 were disallowed in the following
breakdown.
	15 were not identifiable
	2 arrived after 5:00 p.m. on March 4, 1998 at the
  Commission Office.
	2 were handed to Henry . . . before the poles on
  March 7, 1998
	2 had sticker labels
	2 had Nancy Simpson's name on the envelopes

	[¶6] As stated in its printed agenda, the Commission planned to
certify the election results at its April 2 meeting.  Although no recording
was made of that portion of the meeting pertaining to the certification of the
election results, the Commission certified the MHHA as the winner of the
election.  Plaintiffs appealed to the Superior Court from the Commission's
certification of the election pursuant to M.R. Civ. P. 80C.  The Superior Court
affirmed and plaintiffs now appeal to this Court.
	[¶7] When the Superior Court acts as an intermediate appellate court
and receives no additional evidence, we review directly the record
developed before the administrative agency.  See Lewiston Raceway, Inc. v.
Maine State Harness Racing Comm'n, 593 A.2d 663, 664 (Me. 1991).  "The
standard of review is 'limited to whether the [governmental agency] abused
its discretion, committed an error of law, or made findings not supported by
substantial evidence in the record.'"  Id. (quoting Robinson v. Board of
Trustees of the Maine State Retirement Sys., 523 A.2d 1376, 1378 (Me.
1987)).  The administrative agency's "interpretation of a statute
administered by it, while not conclusive or binding on this court, will be
given great deference and should be upheld unless the statute plainly
compels a contrary result."  Town of Madison v. Public Utils. Comm'n, 682
A.2d 231, 234 (Me. 1996).
	[¶8] Plaintiffs initially argue that the Commission's failure to tape
record its meeting was an error that required the case to be remanded. 
Plaintiffs further contend that even if the Commission did not err by failing
to tape record the meeting, the record was insufficient for judicial review
and the court should have remanded the case to the Commission for further
proceedings, pursuant to 5 M.R.S.A. § 11006(1)(D) (1989).
	[¶9] The Administrative Procedures Act requires an agency to record
any hearing in an "adjudicatory proceeding."  5 M.R.S.A. § 9059(2) (1989). 
The APA defines "adjudicatory proceeding" as "any proceeding before an
agency in which the legal rights, duties or privileges of specific persons are
required by constitutional law or statute to be determined after an
opportunity for hearing."  5 M.R.S.A. § 8002(1) (1989).  
	[¶10]  The harness racing statute provides the Commission with a
simple rule for the certification of election results:  "If one entity receives
more than 50% of the total ballots cast under subsections 2 and 3 for
election of an exclusive bargaining agent within a racing segment, that
bargaining agent shall be certified by the commission as the exclusive
bargaining agent within that segment."  8 M.R.S.A. § 285-A(4) (Supp. 1998)
(emphasis added).{1}  Although neither the APA nor the harness racing statute
define "certify" or "certification," to "certify" is "[t]o confirm formally as
true, accurate, or genuine, esp. in writing."  Webster's II: New Riverside
University Dictionary 245 (1984).  "Certification" is generally defined as the
"formal assertion in writing of some fact."  Black's Law Dictionary 155 (6th
ed. 1991).
	[¶11] The Commission meeting was not an "adjudicatory proceeding"
because the certification was not the "determination of legal rights, duties
or privileges" of a party required to be determined only "after an
opportunity for fair hearing."  It was simply the confirmation of the results
of an election; the election itself defined the rights and duties of the
candidates.  Although the Commission allowed individuals to speak at the
meeting, the Commission was not required to do so nor did it regard such
statements as formal testimony.  Because the Commission's certification was
not an adjudicatory proceeding, it was not subject to the APA's hearing
requirement.  Moreover, the ballots, staff memorandum, and other
documents in the administrative record provide a sufficient basis for judicial
review of the certification.  Therefore, the Superior Court did not err in
declining to remand the case.
	[¶12] Plaintiffs next argue that irregularities in the election process
violated the statute and deprived them of constitutional rights.  First,
plaintiffs contend that the Commission violated the statute by scheduling the
public polling at Scarborough Downs in March 1998.  The statute specifies
that the election be held at each racetrack "on one of the first 3 live race
dates assigned to the track within the calendar year," 8 M.R.S.A. § 285-A(3),
yet the first three dates at Scarborough Downs in 1998 were in January. 
Similarly, plaintiffs argue that the Commission violated the statute by
counting all mailed ballots received by 5:00 pm on March 4 despite the
statute's requirement that mailed ballots be received by February 28. 
	[¶13] The harness racing statute provides no mechanism for
responding to logistical difficulties in the election process nor does it
specify a remedy for deviations from the election schedule set forth in the
statute.  We have declined to "create a remedy or penalty when a statute is
silent regarding the sanction for failure of an agency to timely act."  Bureau
v. Staffing Network, Inc., 678 A.2d 583, 590 (Me. 1996) (holding that we
did not have the power to penalize Workers' Compensation Board for issuing
provisional order after the twenty-one day deadline established by statute). 
Further, "statutory provisions requiring an act to be done within a certain
time are directory and not mandatory or jurisdictional unless the statute
manifests a clear intent to the contrary."  Anderson v. Commissioner of the
Dep't of Human Servs., 489 A.2d 1094, 1099 (Me. 1985).  
	[¶14] The harness racing statute anticipates that the election will be
held in February, as evinced by its explanation that candidates can request
inclusion on the ballot throughout January and its exhortation that ballots
should be mailed in February.  See 8 M.R.S.A. § 285-A(2).  The statute
manifests no intention that the Commission is deprived of any means of
reasonably responding to logistical difficulties in conducting the election.  It
is not for us to create a sanction where none is expressed or implied.
	[¶15] Second, plaintiffs argue that by disclosing the identity of voters
who had submitted ballots to the MHHA, by misnaming the Alliance on the
original ballots, and by deviating from the election schedule, the
Commission violated the Alliance's constitutional right to equal protection.{2} 
"'The prohibition against denial of equal protection of the law to any person
is implicated only when action by the state results in treatment of that
person [that is] different than that given similarly situated individuals.'" 
Nugent v. Town of Camden, 1998 ME 92, ¶ 15, 710 A.2d 245, 249 (quoting
Wellman v. Department of Human Servs., 574 A.2d 879, 883 (Me. 1990)).  In
this case, the misidentification of the Alliance on the original ballot was
rectified at the Alliance's request, the list of voters' identities was made
available to the Alliance on the day of its request and potentially only twenty-
four hours after the list was provided to the MHHA, and any irregularities in
the election procedure have not been shown to have benefitted the MHHA. 
The Alliance has not demonstrated that the Commission treated it any
differently than the other candidate, and further, has not established that,
even if such disparate treatment occurred, it was arbitrary or irrationally
discriminatory.  See Beaulieu v. City of Lewiston, 440 A.2d 334, 338 (Me.
1982) ("The party challenging the classification bears the burden of
demonstrating by clear and irrefutable evidence its arbitrariness and
irrationally discriminatory nature.").
	[¶16] Third, plaintiffs contend that the Commission unlawfully
delegated its authority to its staff members in conducting the election and
tallying the ballots and that the Commission members had a duty to
personally review the disputed ballots.  The harness racing statute
authorizes the Commission to "employ such personnel as it considers
necessary to provide adequate oversight and enforcement and to carry out
the purposes of this chapter."  8 M.R.S.A. § 264 (Supp. 1998).  Moreover,
the statute delineates responsibilities of the Commission's executive
director under the umbrella task of the "management of the work of the
commission."  See 8 M.R.S.A. § 263-A (Supp. 1998).  As we have stated,
"[w]here the statutory provisions enacted by the Legislature so provide, an
administrative agency is free to delegate its powers to a subordinate officer." 
Harold D. Smith & Sons, Inc. v. Finance Auth. of Maine, 543 A.2d 814, 818
(Me. 1988) (upholding legality of the Finance Authority of Maine's delegation
of authority to issue certificates of approval when the governing statute
authorized the Authority to employ a staff and delegate its powers). 
Furthermore, "the officer who has the ultimate authority to render a
decision need not hear or read all the evidence prior to reaching his
decision."  Id.   "As long as the officer both familiarizes himself with the
evidence sufficient to assure himself that all statutory criteria have been
satisfied and retains the ultimate authority to render the decision, he can
properly utilize subordinate officers to gather evidence and make
preliminary reports."  Id. 
	[¶17]  Plaintiffs have failed to establish that the Commission
improperly delegated the task of coordinating the election and reporting
the results.  In any event, it is undisputed that fifteen ballots were
disallowed because they were unidentifiable due to the lack of a signature on
the envelope.  Even if the Commission's staff erred in invalidating eight
other votes for various reasons, the result would not have been altered
because the MHHA won the election by more than eight votes. 
	[¶18] Fourth, plaintiffs argue that the MHHA did not receive more
than fifty percent of the votes "cast" because 233 ballots were cast in total
but the MHHA received only 113 votes.  The term "cast" is not defined in
the statute and "[i]n construing a statutory term that is undefined in the
statute itself, our primarily obligation is to determine its plain meaning." 
Apex Custom Lease Corp. v. State Tax Assessor, 677 A.2d 530, 533 (Me.
1996).  The statute's mandate that the entity receiving more than fifty
percent of the total ballots "cast" cannot plausibly be interpreted to include
valid as well as invalid ballots.  The MHHA received 113 of the 210 valid
votes; thus it received more than 50% of the total ballots cast and the
Commission properly certified the MHHA as the election winner.
	The entry is:
					Judgment affirmed.
                                                                           
Attorneys for plaintiffs:

Edward S. MacColl, Esq., (orally)
Thompson, Bull, Furey, Bass & MacColl, LLC, P.A.
P O Box 447
Portland, ME 04112-0447
(for Davric Maine Corp.)

Daniel R. Warren, Esq., (orally)
Jones & Warren, PA
243 US Route 1
Scarborough, ME 04074
(for Maine Alliance of Harness Horsemen)

Attorneys for defendants:

Andrew Ketterer, Attorney General
Susan Sapraco, Asst. Atty. Gen., (orally)
Patrick M. Downey, Special Asst. Atty. Gen.
6 State House Station
Augusta, ME 04333-0006
(for Maine Harness Racing Commission)

Craig J. Rancourt, Esq., (orally)
13 Crescent Street, Suite 100
Biddeford, ME 04005
(for Maine Harness Horsemen's Association)