United States District Court, D. Maine.

DOE V. ROWE

156 F. Supp.2d 35 (D. Me. 2001)

JANE DOE, JILL DOE and JUNE DOE,by and through their guardian, MaineDepartment of Human Services, and THEDISABILITY RIGHTS CENTER OFMAINE, INC., Plaintiffs v. G. STEVENROWE, Attorney General for the State ofMaine, et al., Defendants

Docket No. 00-CV-206-B-S

United States District Court, D. Maine.

August 9, 2001 *36

Kristin L. Aiello, Disability Rights Center, Augusta,ME, for Jane Doe, Jill Doe, June Doe, plaintiffs.

William R. Stokes, Paul Stern, Susan P. Herman, As-sistant Attorney General, Augusta, ME, for AttorneyGeneral, Secretary of State, defendants.

*37

ORDER ON CROSS MOTIONS FOR

SUMMARY JUDGMENT

GEORGE Z. SINGAL, District Judge.

Before the Court are both State Defendants' Motionfor Summary Judgment (Docket #41) and Plaintiffs'Motion for Summary Judgment (Docket #44).Through these cross motions, the parties ask theCourt to resolve the following significant question:By prohibiting voting by persons under guardianship

for mental illness, does the Maine Constitution violatethe Fourteenth Amendment and the Americans withDisabilities Act?

For the reasons described below, the Court answersthis question in the affirmative. Thus, the CourtGRANTS Plaintiffs' Motion and DENIES State De-fendants' Motion.

I. STANDARD FOR SUMMARY

JUDGMENT

Generally, a federal court grants summary judgment"if . . . there is no genuine issue as to any material factand . . . the moving party is entitled to a judgmentas a matter of law." Fed.R.Civ.P. 56(c). "An issue isgenuine `if the evidence is such that a reasonable jurycould return a verdict for the nonmoving party.'" Ayerv. United States, 902 F.2d 1038,1044 (1st Cir. 1990)(quoting Anderson v. Liberty Lobby, Inc.,477 U.S.242, 248 (1986)). When faced *38 with cross motions

for summary judgment, the Court must draw all rea-sonable inferences against granting summary judg-ment to determine if there are genuine issues of factthat require a trial. See Cont'l Grain Co. v. PuertoRico Mar. Shipping Auth., 972 F.2d 426, 429 (1st Cir.1992). However, "`conclusory allegations, improbableinferences, and unsupported speculation'" will notsuffice to create a genuine issue of material fact re-quiring a trial. Dynamic Image Techs., Inc. v. UnitedStates, 221 F.3d 34, 39 (1st Cir. 2000) (quotingMedina-Munoz v. R.J. Reynolds Tobacco Co., 896F.2d 5, 8 (1st Cir. 1990)). Pursuant to the Local Rules,the Court has "no independent duty to search andconsider any part of the record." Local Rule 56(e).Rather, the Court relies on the parties' submitted

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statements of material facts ("SMF") and the record ci-tations found therein to construe the relevant facts.See Local Rule 56.

II. BACKGROUND

The Court has previously addressed the facts underly-ing this case in its Findings of Fact and Conclusionsof Law on Plaintiffs' Motion for Preliminary Injunc-tion (Docket #16). While the Court lays out all of therelevant facts below in accordance with the summa-ry judgment standards,1 it refers interested parties tothis earlier Order to put the facts, as well as the parties'proffered legal arguments, in context.

1.

Maine's Constitutional Restrictions on Voting2

2.

Pursuant to Maine's Constitution and relevant imple-menting statute, persons who are "under guardianshipfor reasons of mental illness" are prohibited from reg-

istering to vote or voting in any election.3 ME. CON-ST. art. 2 § 1; see also 21-A M.R.S.A. § 115(1).

3.

A mentally ill person under guardianship, who votesknowing that he or she is subject to the prohibition,can be subject to criminal prosecution. See 21-AM.R.S.A. § 674(3)(B) (making it a Class C crime for aperson to vote or attempt to vote "knowing that theperson is not eligible to do so.").

This restriction on voting by persons under guardian-ship due to mental illness was added to the MaineConstitution in 1965. Prior to the approval of the1965 *39 amendment, Maine's Constitution disenfran-

chised "paupers and persons under guardianship."(Chapter 34 of the Resolves of 1965 at 1065 (Attach. toState Defs. Mot. for Summ. J. (Docket #41).) Throughthe 1965 amendment, Maine sought to limit its disen-franchisement of persons under guardianship to on-ly those persons under guardianship due to mental ill-ness.

The Plaintiffs

Plaintiffs Jane Doe, Jill Doe, and June Doe, are allwomen under guardianship by reason of mental ill-

Although the parties have raised factual dis-putes in their respective Statements of Materi-al Facts and responses thereto, the Court findsthat these disputes are either not genuine ordo not relate to material facts. Thus, none ofthese disputes prevent the Court from decid-ing the case at the summary judgment stage.

Forty-three other states have similar consti-tutional or statutory provisions disenfranchis-ing persons because they fit within terms suchas "under guardianship or conservatorship,""idiot," "insane," "lunatic," "mentally incompe-tent," "mentally incapacitated," "of unsoundmind," and/or "not quiet and peaceable." SeeKay Schriner et al., Democratic Dilemmas:Notes on the ADA and Voting Rights of Peo-ple with Cognitive and Emotional Impair-ments, 21 Berkeley J. of Emp. Lab. L. 437, 439,456 tbl. 2 (2000). Federal law specifically al-lows for state laws to disenfranchise persons"by reason of criminal conviction or mentalincapacity." 42 U.S.C. § 1973gg-6(a)(3)(B).

Maine has attempted to excise this disen-franchising provision from the Maine Consti-tution on two occasions through ballot refer-endums. In the November 1997 election,Maine voters were asked, "Do you favoramending the Constitution of Maine to re-move language providing that all persons un-der guardianship for reasons of mental illnessare disqualified from voting?" Most recently,the November 2000 ballot asked Maine voters:"Do you favor amending the Constitution ofMaine to end discrimination against personsunder guardianship for mental illness for thepurpose of voting?" Because a majority of vot-ers voted against these referendums, the dis-enfranchisement of those under guardianshipfor mental illness remains.

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ness. Through their public guardian, the Maine De-partment of Human Services ("DHS"), Plaintiffsbrought this case claiming that the State of Maine hasdenied them the right to vote in violation of the Four-teenth Amendment as well as federal statute. The Dis-ability Rights Center of Maine, Inc. not only repre-sents the three named Plaintiffs but also is separatelynamed as a Plaintiff in order to challenge Maine's vot-ing restriction on behalf of other mentally ill personsunder guardianship.

A. Jane Doe

Jane Doe is a thirty-three year old resident of Lime-stone, Maine, who has been diagnosed with bipolardisorder.4 Since 1987, she has been under fullguardianship because of her mental illness. DHS hasserved as Jane Doe's appointed guardian since 1993.When Jane Doe was placed under full guardianship,the Probate Court did not specifically considerwhether she had the capacity to vote. Additionally, theProbate Court did not notify her that as a result of theguardianship proceedings she might lose her right tovote.

4.

Jane Doe wished to vote in the November 2000 elec-tion. Although she understood the nature and effect ofvoting such that she could make an individual decisionregarding the candidates and questions on the bal-lot, the Maine Constitution prohibited Jane Doe fromvoting because she was under guardianship by reasonof mental illness. Seeking to protect her right to vote,Jane Doe sought a preliminary injunction from thisCourt in October of 2000 (See Pls. Mot. for Prelim.Injunction (Docket # 2).) As a result of this litigation,Jane Doe learned that it was the position of the Stateof Maine that a person under full guardianship by rea-

son of mental illness could vote if the Probate Courtspecifically reserved the individual's right to vote.

On October 31, 2000, Jane Doe filed an unopposedmotion with the Aroostook County Probate Court re-questing that her guardianship order be modified toallow her to vote. On November 3, 2000, ProbateJudge Dunleavy granted the motion thereby reservingJane Doe's right to vote although she was under fullguardianship by reason of mental illness. According tothe State of Maine, this modification made Jane Doeeligible to vote in the November 2000 election, al-though she remained under guardianship by reason ofmental illness.

B. Jill Doe

Jill Doe, a seventy-five year old resident of Bangor,Maine, has been diagnosed with bipolar disorder. In1996, Jill Doe was placed under full guardianship be-cause she was found to be incapacitated by her mentalillness. During the guardianship proceedings, Jill Doe,through her representatives, argued that she was notincapacitated. Alternatively, Jill Doe *40 argued that

the Probate Court should only subject her to a limitedguardianship that would assure she took her medica-tion. Despite these arguments, the Probate Judge ap-pointed DHS as Jill Doe's full guardian. According toJill Doe, no one raised the issue of her capacity to votebefore placing her under full guardianship.

Similar to Jane Doe, Jill Doe sought to amend the con-ditions of her guardianship after learning that Mainewould allow her to vote despite being under guardian-ship by reason of mental illness if the right to vote wasspecifically reserved by the Probate Judge. On Novem-ber 1, 2000, Jill Doe filed an unopposed motion to re-vise her guardianship order with the Penobscot Coun-ty Probate Court. In a sworn affidavit accompanyingher motion, Jill Doe explained that she had voted inthe past by absentee ballot not realizing that she wasnot allowed to vote. The substance of this affidavitstrongly suggested that Jill Doe understood the natureand effect of voting such that she could make an in-

Bipolar disorder is defined as "a recurrentmood disorder featuring one or more episodesof mania or mixed episodes of mania and de-pression." U.S. Dep't of Health and HumanServices, Mental Health: A Report of the Sur-geon General 246 (1999).

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dividual choice about the candidates and questions onthe ballot. That same day, Probate Judge Woodcockendorsed the motion, "Motion Denied under the pro-visions of Article II, Section I of the Constitution ofthe State of Maine." (Defs. SMF Sealed Attach. 2.) Asa result, Jane Doe reasonably believed she was prohib-ited from voting in the November 2000 Election.

Dr. William Anderson, Jill Doe's attending psychia-trist since 1995, believes that Jill Doe has the mentalcapacity to understand the nature and effect of votingdespite his belief that she does not have the capacity tomake responsible decisions regarding her psychiatrictreatment. Based on his detailed conversations withJill Doe, Dr. Anderson reports that Jill Doe knowsMaine law restricts her from voting although she gen-uinely wants to vote. Moreover, Dr. Anderson is ofthe opinion that Jill Doe is capable of making an indi-vidual choice when casting a ballot based on her ownstrongly held opinions.

C. June Doe

June Doe, a sixty-eight year old resident of Bangor,Maine, has been diagnosed with intermittent explo-sive disorder, antisocial personality5 and mild organicbrain syndrome (secondary to encephalitis).6 Since1985, she has been under full public guardianship be-cause of this diagnosis. In 1996, while under guardian-ship, June Doe earned a high school diploma or"GED."

5.

6.

The Probate Court did not notify June Doe that as aresult of being under full guardianship for a mentalillness she would lose her right to vote, nor did itspecifically consider her capacity to vote. In fact, priorto learning that Maine law prohibited persons underguardianship for mental illness from voting, June Doehad voted in elections while she was under guardian-ship.

Unlike Jane Doe and Jill Doe, June Doe was unable toseek a modification of her guardianship order prior tothe November 2000 election because she was hospi-talized. Because she resides in Bangor, any motion tomodify her guardianship would be considered by thesame Penobscot County *41 Probate Judge who con-

sidered Jill Doe's motion to modify. Because Jill Doe'smotion to modify was summarily denied, June Doebelieves it would be futile for her to seek the samemodification when she is similarly under guardianshipbecause of a mental illness.

Dr. Roger Wilson, who has been June Doe's treatingpsychiatrist for more than twenty years, recently con-ducted a specific examination of June Doe to assess hercapacity to understand voting. During the examina-tion, June Doe was able to distinguish the various is-sues on the ballot and expressed a specific desire notto cast a vote as to some issues because "she did notwant to vote on issues she did not know." (Dr. RogerM. Wilson Aff. ¶ 4 (Pls. Ex. 5).) As a result of that ex-amination and his long history of treating June Doe,Dr. Wilson concluded that June Doe had the mentalcapacity to understand the nature and effect of votingsuch that she could make an individual decision withregard to candidates and questions on the ballot.7

7.

According to the Diagnostic and StatisticalManual of Mental Disorder ("DSM-IV-TR"),"antisocial personality disorder is a pattern ofdisregard for, and violation of, the rights ofothers." DSM-IV-TR at 685 (4th ed. 2000)(text revision).

Encephalitis is "an inflammation of thebrain." Stedman's Medical Dictionary at 586(27th ed. 2000). "Organic brain syndrome" is aterm used to describe "any of various disordersof cognition caused by permanent or tempo-

rary brain dysfunction and characterized espe-cially by dementia." Am. Heritage Dictionaryat 1239 (4th ed. 2000).

Based on his training and 32 years of experi-ence, Dr. Wilson generally believes that a per-son under guardianship for a severe mental ill-ness "is more likely to be monitored and re-

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D. Disability Rights Center of Maine

Disability Rights Center ("DRC") is a non-profit cor-poration organized pursuant to Maine law that pro-tects and advocates for the legal and civil rights ofMaine residents with mental disabilities.8

8.

The Defendants

The State Defendants, who have filed the pendingmotion for summary judgment, include: Maine's StateAttorney General G. Steven Rowe, in his official ca-pacity, and Maine's Secretary of State Dan Gwad-owsky, in his official capacity. Both the Maine Attor-

ney General's Office and the Maine Secretary of State'sOffice receive federal funds.

Additionally, Donna Bernier, Registrar for the Townof Limestone, and Gail Campbell, Registrar for theCity of Bangor, are named as Defendants in their re-spective official capacities (hereinafter "Municipal De-fendants"). As the registrars for these municipalities,Municipal Defendants are responsible for determin-ing whether an individual is eligible to vote in a MaineElection. Defendant Bernier has joined in State Defen-dants' Motion for Summary Judgment on the groundsthat the claims against the Registrar for Limestone arenow moot because Jane Doe has been reserved theright to vote. (See Docket #49.) Defendant Campbellhas taken no position on the pending cross *42 mo-

tions for summary judgment. (See Docket #50.)

In addition to a description of the parties, the Courtmust provide some factual background regarding howMaine's voting restriction has worked in practice andwould work according to State Defendants' profferednarrowing constructions. Thus, the Court belowbriefly explains Maine guardianship proceedings,which are conducted pursuant to Maine's ProbateCode, 18-A M.R.S.A. § 1-101 et seq. Then, the Courtbriefly lays out how Maine has previously applied itsvoting restriction to those wards who are underguardianship by reason of mental illness and contraststhat application with the State's newly proffered in-terpretation of the same voting restriction. This back-ground will lay the foundation for the Court's discus-sion of legal issues in dispute.

"Under Guardianship" Pursuant to Maine's ProbateCode

Under Maine's Probate Code, the Probate Court isdirected to make appointments or other orders only"to the extent necessitated by the incapacitated per-son's actual mental and adaptive limitations. . . ."18-AM.R.S.A. § 5-304(a). To fulfill this directive, there areprovisions for both full and limited guardianship for"incapacitated persons."9 See 18-A M.R.S.A. §§ 5-105

ceive treatment which will help restore him orher to capacity in areas such as voting" as com-pared to a similarly situated mentally ill personnot under guardianship. (Dr. Roger M. Wil-son Aff. ¶ 7 (Pls. Ex. 5).) Dr. Wilson's expertopinion captures what has been described asa "common phenomenon" among mental dis-orders. Olmstead v. L.C. by Zimring, 527 U.S.581, 610 (1999) (Kennedy, J., concurring) ("Itis a common phenomenon that a patient func-tions well with medication, yet, because of themental illness itself, lacks the discipline or ca-pacity to follow the regime the medication re-quires.")

When Plaintiffs initially added DRC as aparty, State Defendants objected on the basisof standing. State Defendants argued that theCourt should ignore the standing objection forpurposes of the preliminary injunction andtake it up at a later date. The Court notes thatState Defendants have not continued to pressthis standing argument. (See Second Am.Compl. ¶¶ 8 9 (Docket #29) and State Defs.Answer to Second Am. Compl. ¶¶ 8 9 (Docket#33).) Moreover, the Court is satisfied thatDRC has standing for the same reasons articu-lated in Risinger v. Concannon, 117 F.Supp.2d 61, 68-71 (D.Me. 2000) finding DRChad associational standing to sue on behalf ofminors with mental health impairments).

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5-304. The Probate Code defines "incapacitated per-son" as a person "who is impaired by reason of mentalillness, mental deficiency, physical illness or disability,chronic use of drugs, chronic intoxication or othercause except minority to the extent he lacks sufficientunderstanding or capacity to make or communicateresponsible decisions concerning his person." 18-AM.R.S.A. § 5-101(1).

9.

When an interested person files a petition to placean allegedly incapacitated person under guardianship,the person nominated to serve as guardian must filea guardianship plan detailing how the ward's personalhousing, medical, financial and social needs will bemet. See 18-A M.R.S.A. § 5-303(a). Upon receivinga petition for guardianship, a probate court appointsthe allegedly incapacitated person a visitor or guardianad litem. See id. § 5-303(b). The appointed visitor orguardian ad litem then meets with the allegedly inca-pacitated person to explain the potential consequencesof guardianship, including the aspects of the guardian-ship plan. In addition to this in-person meeting, theallegedly incapacitated person is served a written no-tice of the hearing on the pending petition. See id. §5-309(b).

After conducting an investigation that includes meet-ing with the allegedly incapacitated person and theproposed guardian, the appointed visitor or guardianad litem must determine whether the person wishesto attend the hearing and/or contest any aspect of theguardianship. See id. § 5-303(c). If the proposed warddoes wish to contest any aspect of the petition forguardianship, the Probate Court may appoint an at-

torney to represent the individual. See id. § 5-303(b).Ultimately, the appointed visitor or guardian ad litemfiles a written report with the probate court.

At the hearing, the burden is on the party filing thepetition to prove by a preponderance of the evidencethat the proposed ward is, in fact, incapacitated andthat the appointment of a guardian "is a *43 necessary

or desirable means of providing continuing care andsupervision of the person." 18-A M.R.S.A. § 5-304(b).See Guardianship of Hughes, 715 A.2d 919, 922 (Me.1998) (concluding that a preponderance of the evi-dence standard in guardianship proceedings satisfiedthe constitutional requirement of due process).

Since the beginning of this case, the State of Maine hastaken the position that a probate judge has the powerto specifically reserve or deny the right to vote to anyward.10 Under the current Probate Code, however,Maine probate judges appear to disagree over their au-thority to reserve the right to vote to a person placedunder full guardianship by reason of mental illness.11

Apparently, some probate judges, such as AroostookCounty Probate Judge Dunleavy, believe they can re-serve a person under full guardianship by reason ofmental illness the right to vote.12 Meanwhile, otherprobate judges, such as Penobscot County ProbateJudge Woodcock, believe that the Maine Constitutionprevents them from reserving mentally ill persons un-der guardianship the right to vote, even when it isspecifically requested and unopposed.13

10.

Incapacitated persons subject to limitedguardianship "retain all legal and civil rightsexcept those which have been suspended inthe decree or court order." 18-A M.R.S.A. §5-105. Thus, an incapacitated person underlimited guardianship because of mental illnessretains his or her right to vote, unless thatright is specifically suspended by the ProbateCourt.

As discussed below, State Defendants nowassert that probate judges not only have theauthority to specifically consider a mentally illward's right to vote, but also that probatejudges have a duty to specifically consider anindividual's capacity to vote and to disenfran-chise only those who are found to lack the req-uisite capacity to understand the nature andeffect of voting. By adopting this burden shift-ing with regard to voting rights, State Defen-dants appear to erase the difference betweenfull guardianship and limited guardianships.

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11.

12.

13.

Currently, individuals with mental illnesses who arethe subject of guardianship proceedings are not specif-ically advised that they could be disenfranchised if theyare placed under full guardianship. Moreover, whilethe State says that the capacity to vote could be specif-ically addressed during guardianship proceedings,there is no suggestion that the current procedure re-quires probate judges to consider the capacity to votewhen a person is facing the prospect of being disen-

franchised as a result of the proceedings. Rather, un-der the current system, it appears that the probabilityof a mentally ill person under guardianship having theright to vote reserved depends more on the individ-ual probate judge hearing the case than on the ward'sactual capacity to understand the nature and effect ofvoting.

"By Reason of Mental Illness"

One of the major points of dispute between the partiesin this case is the appropriate *44 definition of "mental

illness." When the Maine Constitution was amendedin 1965, the Legislature did not provide a specific def-inition for "mental illness." Additionally, Maine's Pro-bate Code does not offer a specific definition of "men-tal illness." It does, however, list both "mental illness"and "mental deficiency" as separate causes of incapaci-ty. See 18-A M.R.S.A. § 5-101(1).

In implementing Maine's voting restriction over thepast twenty years, the Secretary of State apparentlyhas adopted a rather narrow definition of mental ill-ness. In a March 31, 1980 letter from then-DeputySecretary of State James Henderson, to municipalclerks and registrars, the Deputy Secretary explainedthat

The only restriction in Maine law . . . is asfollows: "A person under guardianship forreasons of mental illness may not register orvote at any election." These are the only people,who otherwise meet the voting qualificationsof age, citizenship and residence, who may notregister or vote. Therefore, a person otherwisequalified, who is mentally ill but not underguardianship for that illness, may register andvote. A person otherwise qualified, who isunder guardianship for any reason except thatof mental illness is also eligible to register andvote. People who appear to be "senile","retarded", or have some other physical ormental handicap are also eligible to vote.

See supra note 9 (describing limited guardian-ships).

State Defendants represent in their filingsthat this matter was going to be specificallydiscussed by the probate judges at a March 15,2001 meeting. State Defendants have not pro-vided the Court with any further informationon the outcome of this March 15th discussion.Thus, the Court can only assume that the dis-agreement among the probate judges remains.

Kennebec County Probate Judge Mitchellalso believes it is within his authority to re-serve the right to vote to any ward.

Probate Judge Woodcock's definitivereading of Article II, Section I of Maine's Con-stitution is clear upon comparison of his de-nial of Jill Doe's unopposed motion for modi-fication of guardianship with his November 3,2000 ruling on the unopposed motion toamend guardianship in Estate of Russell Holt.In the later case, Holt similarly requested aspecific amendment reserving him the right tovote. Probate Judge Woodcock issued an or-der finding that Holt "is not under guardian-ship for reasons of mental illness" but "is un-der guardianship by reason of mental deficien-cy, to wit: mild mental retardation." (See Aff.of Arthur Keenan (Attorney for Russell Holt)(Pls. Ex. 6).) Interestingly, this ruling makesno specific findings regarding Holt's capacityto understand the nature and effect of votingin light of his mild mental retardation.

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(Pls. Ex. 2 (Attach. to Dep. of Sec'y of State Dan Gwa-dosky (Pls. Ex. 14)).) The Office of the Maine Secre-tary of State adopted a similar position in its "Guide toVoter Registration Laws and Procedures" provided tomunicipalities in 1999. The Guide states, in relevantpart,

A person under guardianship because of mentalillness may not register to vote in any election,as provided in the Constitution of Maine,Article II, Section 1. Before the registrar mayrestrict a person from registering, the registrarshould request documentation of theguardianship in the form of a court order. Thelaw does not restrict people under guardianshipfor reasons other than mental illness fromvoting.

(Pls. Ex. 7 at 8 (Attach. to Dep. of Secretary of StateDan Gwadosky (Pls. Ex. 14)).)

As a result of this guidance from the Secretary ofState's Office, the registrars for both Bangor andLimestone agreed that they would only restrict a per-son from voting if the court order placing them underguardianship says they are under guardianship for"mental illness." Pursuant to this interpretation ofMaine's voting restriction, it is apparently left to thediscretion of the probate judge to put a person underguardianship for "mental illness" rather than list an-other basis for guardianship. See 18-A M.R.S.A. §5-101(1) (listing the various reasons for impairmentthat justify placing a person under guardianship).

Although this rather narrow view of "mental illness"has guided the application of Maine's voting restric-tion for at least the last twenty years, State Defendantsnow realize that this interpretation disenfranchises anarbitrarily defined group of citizens, thereby raisingproblems of a constitutional dimension. Thus, StateDefendants now advocate for a broad definition of"mental illness" that disenfranchises anyone under fullguardianship by reason of not only a psychiatric men-tal illness, but also mental retardation or other un-soundness of mind. Although they now advocate for

that position in this case and have advised the Secre-tary of State to change its advice regarding the appli-cation of the voting restriction, there is no evidencethat State Defendants have taken any steps to adviseor educate municipal officials as to *45 this new inter-

pretation. Additionally, it does not appear that StateDefendants indicated to Maine voters, who had reit-erated their approval for restricting voting by personsunder guardianship due to mental illness in 1997 andagain in 2000, that "mental illness" was subject to thebroad interpretation. See supra note 3.

Another Change in Position

Having done their legal research, State Defendants ap-parently are now aware of the various constitutionalinfirmities that afflict Maine's voting restriction. In alast-ditch effort to save the provision, State Defen-dants have offered multiple radical changes in inter-pretation. Thus, in addition to a newly adopted broaddefinition of "mental illness," State Defendants alsosuggest dramatic changes in probate procedure withregard to a ward's voting rights.

Initially, when the individual Plaintiffs appeared be-fore this Court seeking a preliminary injunction al-lowing them to vote in the November 2000 election,the State Attorney General took the position that

Maine's prohibition on voting by personsunder guardianship due to mental illness . . .does not apply if the incapacitated person issubject to full guardianship but the court orderappointing the guardian explicitly reserves theindividual's right to vote. (See AndrewKetterer Aff. ¶ 3 (Defs. Ex. 3).) Therefore,Maine's voting prohibition applies only tothose persons under full guardianship byreason of mental illness who do not have theirright to vote specifically reserved.

(Findings of Fact Conclusions of Law at 5 (Docket#16).)

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In accordance with this interpretation, two individualPlaintiffs, Jane Doe and Jill Doe sought unopposedmodifications of their guardianship orders reservingtheir right to vote. They received contradicting deci-sions. In the case of Jane Doe, the order was modifiedallowing her the right to vote in the November 2000election. In the case of Jill Doe, the modification wasdenied thereby denying Jill Doe the right to vote in thesame election.

Now, State Defendants have adopted a new interpre-tation. As explained in the most recent round of mo-tion filings,

State Defendants believe Article II, Section Iof the Maine Constitution should be construedto mean that a ward retains the right to voteunless and until it is expressly suspended bya judicial officer in a guardianship proceedingbased upon a finding that the ward lacks themental capacity to understand the nature andeffect of the act of voting. Thus, StateDefendants have no objection and, in fact,would urge the Court to issue a judgmentdeclaring that Plaintiffs Jill Doe and June Doeretain the right to vote unless that right hasbeen expressly suspended by a judicial officerin a guardianship proceeding at which it hasbeen determined that the ward lacks the mentalcapacity to understand the nature and effect ofthe act of voting.

(State Defs. Resp. to Pls. Mot. for Summ. J. at 17(Docket #53).)14 Under this interpretation, Jane Doe,Jill Doe and June Doe would all retain the right tovote *46 without seeking a modification of their re-

spective guardianships. In fact, because it appears thatno guardianship orders currently include an expresssuspension of the right to vote, the immediate resultof endorsing this new interpretation would be that allpersons under guardianship would have the right tovote regardless of whether they lack the capacity tounderstand the nature and effect of voting. It is notclear that either the Maine courts or the Maine Legis-

lature would endorse State Defendants' unique inter-pretation of Maine law.

14.

III. DISCUSSION

Plaintiffs claim that under all of the State Defendants'proffered and applied interpretations, Maine's disen-franchisement of those under guardianship by reasonof mental illness fails to provide adequate proceduraldue process and violates the Equal Protection Clause.Additionally, Plaintiffs claim that Maine's voting pro-hibition discriminates against individuals with mentaldisabilities in violation of Title II of the Americanswith Disabilities Act, 42 U.S.C. § 12131 et seq., andSection 504 of the Rehabilitation Act, Pub.L. No.93-112,87 Stat. 355 (1973) (codified as amended inscattered sections of Title 29 of the U.S.C.). The Courtaddresses each of these claims below. However, it isappropriate to begin this discussion by outlining someprinciples of statutory construction that will guide theCourt's analysis.

A. Interpreting Maine's Voting Restriction

Defendants' radical changes in interpretation, both asto the definition of mental illness and as to the in-creased due process protections built into guardian-ship proceedings, seek to avoid the constitutional in-firmities that lie at the heart of Plaintiffs' equal protec-tion and due process claims. Pursuant to both feder-

While the Court appreciates State Defen-dants' somewhat belated epiphanies with re-gard to due process protections, Plaintiffs JillDoe and June Doe (along with the other indi-viduals under full guardianship for mental ill-ness) undoubtedly would have appreciated theState adopting this position when their mo-tion for preliminary injunction was pendingand prior to November 7, 2000, thereby allow-ing them to vote in the historic 2000 Election,which included a referendum vote on the por-tion of the Maine Constitution at issue in thiscase.

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al and state law, this Court should narrowly interpretany state enactment to avoid constitutional problemswhenever such a narrowing construction can be fair-ly and readily adopted. See Erznoznik v. Jacksonville,422 U.S. 205,216 (1975) ("[A] state statute should notbe deemed facially invalid unless it is not readily sub-ject to a narrowing construction by the state courts");Nat'l Pharmacies, Inc. v. Feliciano-de-Melecio, 221F.3d 235,241-42 (1st Cir. 2000); Stewart v. Durham,451 A.2d 308, 310-11 (Me. 1982); State v. Davenport,326 A.2d 1, 6 (Me. 1974) ("The cardinal principle ofstatutory construction is to save, not to destroy.") (cit-ing NLRB v. Jones Laughlin Steel Corp., 301 U.S. 1,30 (1937)).15

15.

With this guiding principle in mind, the Court con-strues Article II, Section I of the Maine Constitutionin conjunction with its implementing state statute. SeeME. CONST. art. 2 § 1; 21-A M.R.S.A. § 115(1). Re-cent decisions from the Maine Law Court provideguidance on construing the language of Mainestatutes. Generally, the Law Court has explained,

When we construe a statute, we first look tothe plain meaning of the language to determinethe legislative intent. Only if the language isambiguous do we resort to extrinsic evidenceto glean the statutory intent. In the absenceof a legislative definition, the term *47 must

be given a meaning consistent with the overallstatutory context and must be construed inlight of the subject matter, the purpose of thestatute and the consequences of a particularinterpretation. We avoid statutory

constructions that create absurd, illogical orinconsistent results. Brent Leasing Co., Inc. v.State Tax Assessor, 773 A.2d 457, 459 (Me.2001) (internal quotations and citationsomitted). In determining a term's plainmeaning in the absence

of a legislative definition, the Law Court has endorsedthe use of dictionaries. See Rockland Plaza RealtyCorp. v. City of Rockland,772 A.2d 256, 260 (Me.2001). By its plain language, Maine's Constitutionseeks to disenfranchise those "under guardianship byreason of mental illness." Thus, the restriction targetsa subset of incapacitated persons under guardianship— those with mental illnesses. It similarly targets asubset of mentally ill persons — only those underguardianship.

Recently, Maine voters have twice reaffirmed thisamendment to the Maine Constitution based solely onthis plain language and any knowledge that they mighthave had regarding the State's narrow application ofthe provision. In examining Plaintiffs' constitutionalclaims below, the Court similarly relies solely on theplain language and past application of Maine's disen-franchising provision to decide the "as applied" por-tion of Plaintiffs' claims. The Court then considers theviability of Maine's newest proffered interpretationswhen considering Plaintiffs' facial challenges to thevoting restriction in light of the principles of statu-tory construction laid out above. See Village of Hoff-man Estates v. Flipside, Hoffman Estates, Inc., 455U.S. 489, 495 n. 5 (1982) ("In evaluating a facial chal-lenge to a state law, a federal court must . . . considerany limiting construction that a[n] . . . enforcementagency has proffered.").

B. Procedural Due Process (Count IV)

Plaintiffs' procedural due process claim alleges thatduring guardianship proceedings (1) the State doesnot give notice or an opportunity to be heard on theissue of voting and (2) the State does not apply an ap-propriate burden of proof in guardianship proceedin-

At the same time, "a federal court may notslice and dice a state law to `save' it; [the court]must apply the Constitution to the law thestate enacted and not attribute to the state alaw [the court] could have written to avoid theproblem." K-S Pharmacies, Inc. v. Am. HomeProds. Corp., 962 F.2d 728, 730 (7th Cir. 1992)(citing Am. Booksellers Ass'n v. Hudnut, 771F.2d 323, 332-34 (7th Cir. 1985), aff'd withoutopinion,475 U.S. 1001 (1986)).

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gs, which can result in an individual losing his or herfundamental right to vote.

Both parties agree that Plaintiffs' arguments must beexamined through the balancing test articulated inMathews v. Eldridge, 424 U.S. 319 (1976). Becauseof this apparent agreement, the parties do not discusswhat liberty or property interest gives rise to Plain-tiffs' due process claim. See Lehr v. Robertson, 463U.S. 248, 256 (1983) (explaining that examination of adue process claim begins with "a determination of theprecise nature of the private interest that is threatenedby the State"). In fact, various courts have recognizedthat the fundamental nature of the right to vote givesrise to a liberty interest entitled to due process pro-tection. See, e.g., Raetzel v. Parks/Bellemont AbsenteeElection Bd., 762 F. Supp. 1354, 1357 (D.Ariz. 1990)("Because voting is a fundamental right, the right tovote is a `liberty' interest which may not be confiscat-ed without due process."); United States v. Texas,252F. Supp. 234, 250 (W.D.Tex. 1966) (discussing theother rights protected by due process and finding thatthe right to vote is entitled to the same protectionbecause as a fundamental right it is "included withinthe concept of liberty"), aff'd per curiam, 384 U.S.155 (1966) (mem.) (citing Harper v. Virginia State Bd.of Elections, 383 U.S. 663 *48 (1966), see also Grif-

fin v. Burns, 570 F.2d 1065, 1074-75, 1077-78 (1stCir. 1978) (explaining in a different context that dueprocess may be implicated by fundamentally unfairelection procedures).

Thus, the Court bases its due process analysis on afinding that the denial of the right to vote is a denialof a fundamental liberty. An examination of proce-dural due process is particularly appropriate in thiscase because the State has chosen to categorically de-fine as ineligible to vote a subset of persons subject toguardianship proceedings. When the State chooses touse such proceedings as the basis for the denial of afundamental liberty, an individual is entitled to basicprocedural protections that will ensure "fundamentalfairness." Lassiter v. Dep't of Social Servs., 452 U.S. 18,

24 (1981) (explaining that due process "expresses therequirements of `fundamental fairness'").

Pursuant to the balancing test articulated in Mathewsv. Eldridge, the Court examines the sufficiency of theprocedures used to disenfranchise Maine voters byweighing: (1) Plaintiffs' interest in participating in thedemocratic process through voting; (2) the risk of er-roneous deprivation of the right to vote under theprocedures used by the State; and (3) the State's inter-est, including any extra administrative or financial ur-den on the State from requiring additional procedures.See id. at 335. In conducting this inquiry, the Courtmust focus on striking a balance that will minimizethe risk of the State erroneously disenfranchising per-sons who have the capacity to vote. See Heller v. Doe,509 U.S. 312, 332 (1993) ("At least to the extent pro-tected by the Due Process clause, the interest of a per-son subject to governmental action is in the accuratedetermination of the matters before the court, not in aresult more favorable to him."). Below, the Court con-siders the due process currently afforded to personsfacing disenfranchisement as a result of guardianshipproceedings (the "as applied" challenge) and then con-siders the new procedure suggested by State Defen-dants (the "facial" challenge).

1. As Applied

Weighing all of the Mathews factors, it is clear thatthe procedures utilized by Maine's probate courts inthe past have failed to give Plaintiffs adequate dueprocess. Specifically, Plaintiffs were not given noticethat as a result of the guardianship proceeding theywould be disenfranchised. See Armstrong v. Manzo,380 U.S. 545, 550 (1965) (explaining that failure togive notice violates "the most rudimentary demands ofdue process of law.") As a result of this lack of notice,many mentally ill persons facing gaurdianship pro-ceedings were unaware of the ramifications of suchproceedings on their fundamental right to vote. Thisresult is clearly displayed by the evidence suggestingthat some persons under guardianship for mental ill-

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ness, in fact, continued to vote while under guardian-ship.

The lack of notice, in turn, led to an inadequate op-portunity to be heard. As a result, mentally ill personssubject to guardianship proceedings faced a high riskof being disenfranchised regardless of their capacity tounderstand the nature and effect of voting. Thus, pur-suant to the second Mathews factor, the Court findsthat the State's procedures or lack thereof resulted in ahigh risk of erroneous deprivation of the fundamentalright to vote.

By comparison, specific notice regarding the right tovote would give proposed *49 wards an opportunity to

contest this aspect of guardianship. Balancing all of therelevant Mathews factors, the Court concludes thatdue process requires that the State elevate the rightto vote to the same level of notice and opportunityfor hearing that is provided for all other aspects ofguardianship.16 Due process requires no more and noless in order to minimize the risk of erroneous disen-franchisement.

16.

The Court's consideration of the burden on the State,the third Mathews factor, finds that providing specificnotice as to the potential disenfranchising effect ofguardianship proceedings along with an opportunityto contest this specific aspect of guardianship wouldnot be overly burdensome on the State. In light of the

procedures already in place to protect persons subjectto guardianship proceedings, it would be fairly simpleto incorporate a specific notice regarding the right tovote.

It is true that as a result of this notice probate courtsmay be faced with an increased administrative burdenas a result of people contesting this aspect of fullguardianship. However, any increased burden at theinitial guardianship proceeding may actually result infewer people returning to probate court for modifica-tions of their guardianship orders. Thus, the end re-sult may well be simply a shifting of the administrativeburden on the probate courts. Additionally, the Courtnotes that by providing clear notice and a meaning-ful opportunity to be heard on the issue of votingat this early stage, the State can lessen the adminis-trative burden on municipal registrars who current-ly are burdened with the difficult task of determiningwhen a guardianship order makes a person ineligibleto vote. In the end, the Court believes that specific no-tice has the potential to decrease the overall admin-istrative burden on the State while ensuring affectedwards a meaningful opportunity to be heard.

Thus, balancing all of the Mathews factors, the Courtfinds that, as applied, Maine's current guardianshipprocedures have failed to provide adequate dueprocess before denying Plaintiffs the right to vote.

2. Facial Validity17

17.

Currently, the State does provide notice toa proposed ward that they are facing guardian-ship proceedings both in writing and throughan in-person meeting with an appointed visi-tor. Through the guardianship plan, proposedwards are advised about the petitioner's plansfor their individual housing, medical, financialand social needs. Thus, it appears that pro-posed wards are notified of plans that may af-fect their other fundamental liberties. Howev-er, nothing about this notice is reasonably cal-culated to advise proposed wards that theymay be disenfranchised.

In United States v. Salerno, 481 U.S. 739(1987), the Supreme Court explained, "A facialchallenge to a legislative act is, of course, themost difficult challenge to mount successfully,since the challenger must establish that no setof circumstances exists under which the Actwould be valid." Id. at 745. This "no set of cir-cumstances" test has come under question inrecent years. See, e.g., City of Chicago v.Morales,527 U.S. 41, 55 n. 22 (1999); see alsoPharm. Research and Mfrs. of Am. v. Concan-non, 249 F.3d 66 (1st Cir. 2001) (Keeton, J.,

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As the Court has previously explained, Defendantshave proffered a new procedure for the considerationof capacity to vote during guardianship proceedingsthat they believe would comply with due process.During this litigation, the Court previously has adopt-ed many of Maine's *50 proffered narrowing construc-

tions that appeared to be both reasonable and consti-tutional.18 State Defendants now advocate for an even"narrower construction" that will require a petitionerto specifically seek to disenfranchise a proposed ward,thereby providing notice. According to State Defen-dants, probate judges would then be required to makespecific findings regarding a ward's incapacity to votebefore expressly suspending a ward's franchise.

18.

Under this new proposed procedure, if a petitionerdoes not specifically seek to disenfranchise a proposed

ward, the ward retains the right to vote. However,once the petitioner raises the issue of voting, the pro-bate judge would be required to specifically considerthe proposed ward's capacity to vote before restrictingthe ward's right to vote. In light of the Court's con-sideration of the Mathews factors above, it is fairlyclear that this "narrowing construction" substantiallybroadens the procedural protections and providesmore than adequate due process.

Nonetheless, the State has taken no steps to actuallyadopt this innovative procedure and it appears that atleast some Maine probate judges harbor doubts abouttheir authority to specifically consider and reserve theright to vote absent some legislative amendment.19

Under these circumstances, the Court finds that State

19.

Defendants' proposal is not simply a fair narrowingconstruction that avoids a finding of procedural dueprocess deficiencies. Rather, it is an amendment tosubstantive state law that appears to exceed the re-quirements of due process; such an amendment ismore properly undertaken by either the Maine Leg-islature or Maine voters through the referendumprocess — not by a federal court at the suggestion ofthe State Attorney General. In short, the Court con-

concurring) (citing two opinions by JusticeStevens criticizing Salerno's "no set of circum-stances" test). Because the First Circuit hascontinued to endorse the application of the"no set of circumstances" test, see id. at 77, theCourt applies the test in examining Plaintiffs'facial challenges.

For example, at the preliminary injunctionstage, the Court found that Maine's voting re-striction did not apply to persons under limit-ed guardianships due to mental illness and thatpersons under full guardianship could havetheir right to vote reserved by a probate judgepursuant to 18-A M.R.S.A. § 5-304(a). (SeeFindings of Fact and Conclusions of Law at 5(Docket #16).) Thus, the Court fairly and nar-rowly interpreted Maine's voting prohibitionto apply only to those persons under fullguardianship for mental illness who did nothave their right to vote specifically reserved.The Court again endorsed this narrow readingin its Order on Defendants' Motion to Certify(Docket #35). The Court notes that some pro-bate judges apparently disagree that even thisnarrow reading is a fair interpretation of Arti-cle II, Section I of Maine's Constitution.

In fact, the evidence before the Courtpaints a picture of probate courts adopting avariety of procedures as well as opposing in-terpretations of Maine's voting restriction inlight of existing probate law. While all of theprobate courts appear to be operating withintheir discretion as they struggle to reconcileMaine's guardianship law with the voting re-striction, there is undoubtedly a troubling dis-parity when similarly situated wards have dif-ferent fundamental rights. While the Courtfinds that none of the currently utilized proce-dures provide adequate due process before de-priving wards the right to vote, adoption ofuniform procedures that satisfy due processrequires legislative, rather than judicial, ac-tion.

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cludes that State Defendant's "narrowing construc-tion" cannot be fairly and readily adopted by thisCourt.

Thus, the Court finds that no fair and reasonable read-ing of Maine's current guardianship provisions en-sures uniformly adequate notice regarding the poten-tial disenfranchising effect of being placed underguardianship for a mental illness. As a result of thisprocedural deficiency, State Defendants have failed toprovide Plaintiffs sufficient due process prior to de-priving them of the right to vote. The Court furtherconcludes that, under all *51 circumstances, Maine's

current voting restriction deprives mentally ill per-sons subject to guardianship proceedings of the rightto vote without adequate notice and an opportunity tobe heard in violation of the Due Process Clause of theFourteenth Amendment.20

20.

C. Equal Protection (Count I)

According to the Supreme Court, "once the franchiseis granted to the electorate, lines may not be drawnwhich are inconsistent with the Equal ProtectionClause of the Fourteenth Amendment." Harper v. Vir-ginia State Bd. of Elections, 383 U.S. 663, 665 (1966);see also Bush v. Gore,531 U.S. 98, 104-05 (2000) (af-firmatively citing the above quoted portion of Harp-er). The Court recognizes at the outset that Maine'svoting restriction may very well have constitutedequal treatment when it was passed in 1965. Nonethe-less, this historical perspective does not guide theCourt's inquiry. See Harper, 383 U.S. at 669 ("Notionsof what constitutes equal treatment for purposes ofthe Equal Protection Clause do change."). Rather, pre-sent day understandings of equal treatment mustguide the Court's scrutiny of the voter eligibility linesdrawn by the State of Maine.

For purposes of summary judgment, both partiesagree that Maine's restriction on voting is subject tostrict scrutiny because it restricts a fundamental right.See Dunn v. Blumstein, 405 U.S. 330, 337 (1972) ("[I]fa challenged statute grants the right to vote to somecitizens and denies the franchise to others, `the Courtmust determine whether the exclusions are necessaryto promote a compelling state interest.'") (quotingKramer v. Union Free Sch. Dist., 395 U.S. 621, 627(1969)). Additionally, for purposes of summary judg-ment, the parties agree that Maine has a compellingstate interest in ensuring that "those who cast a votehave the mental capacity to make their own decisionby being able to understand the nature and effect ofthe voting act itself." (Defs. Mot. for Summ. J. at 8(Docket #41).) The only question left for the Court toresolve is whether Maine's restriction is narrowly tai-lored to meet this compelling interest.

To fully comply with the Equal Protection Clause,Maine's provision must be both valid "as applied" and"facially valid." In both respects, the Court must ex-amine whether the ends — excluding persons who

Plaintiffs also argue that due process re-quires the application of the clear and con-vincing standard of proof rather than the pre-ponderance of the evidence standard. InGuardianship of Hughes, 715 A.2d 919 (Me.1998), the Law Court addressed this argumentand found that the application of the prepon-derance of the evidence standard did comportwith due process as explicated in Mathews v.Eldridge, 424 U.S. 319 (1976). Plaintiffs havenot brought to the Court's attention any caselaw suggesting the Maine Law Court's holdingin Hughes improperly applied the Mathewsbalancing test. Moreover, as indicated in thediscussion above, the Court concludes that dueprocess simply requires the State to elevate theright to vote to the same level of notice andconsideration given to all other fundamentalrights affected by guardianship proceedings.This same analysis applies to the burden ofproof. Therefore, the Court concludes that theHughes decision reflects a thorough consider-ation of the appropriate burden of proof andconcurs that a decision to raise the burden ofproof is best left to the Maine Legislature. SeeHughes,715 A.2d at 923 n. 1.

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lack the capacity to understand the nature and effectof voting such that they cannot make an individualchoice — justify the means — excluding persons underguardianship by reason of mental illness. *52 Strict

scrutiny demands a truly necessary correlation be-tween the ends and the means.

1. As Applied

It is clear from the evidence before the Court thatDefendants have applied Maine's constitutional provi-sion to disenfranchise only those under guardianshipfor psychiatric diagnoses. Since 1980, municipal offi-cials routinely have been advised that a person underguardianship because of mental retardation should beallowed to vote regardless of whether the individual'smental condition adversely impacts his or her abilityto understand the nature and effect of the act of votingsuch that the person cannot make an individual choiceabout the matters on the ballot.

Thus, in practice, Maine has construed the phrase"mental illness" to exclude only those with traditionalpsychiatric disorders from voting, while permittingincapacitated persons diagnosed with mental retarda-tion or senility to vote as they choose. State Defen-dants now admit that this narrow, but nonethelesscommon, definition of the term `mental illness' "pro-duces a result that renders Article II, Section I arbi-trary and irrational, in that it singles out, for no le-gitimate basis, people with psychiatrically based di-agnos[e]s as opposed to all those who may be underguardianship for reasons of mental incapacity." (StateDefs. Resp. to Pls. Mot. for Summ. J. at 10 (Docket#53).) The Court agrees.

As displayed by the evidence, there is little to no cor-relation between the State's interest and the disen-franchisement of Jill Doe and June Doe, two womenwho suffer from mental illness but, according to theirphysicians, understand the nature and effect of the actof voting. Moreover, while Maine claims to have acompelling interest in ensuring that all those who casta ballot understand the nature and effect of voting

such that they can make an individual decision, it hasallowed incapacitated persons afflicted with mentalretardation and other mental deficiencies to vote re-gardless of whether or not they possess the ability tounderstand the nature and effect of voting. In short,the State has disenfranchised a subset of mentally illcitizens based on a stereotype rather than any actualrelevant incapacity. Such state action cannot survivestrict scrutiny because there is no factually valid cor-relation between the ends and the means. Thus, it isclear that, as applied, Article II, Section I of Maine'sConstitution violates the Equal Protection Clause.

2. Facial Validity21

21.

In light of State Defendants' new interpretation ofMaine's disenfranchising provision, the Court mustdetermine whether Maine's voting restriction is fa-cially valid. Plaintiffs argue that even under the State'sproffered interpretation, Article II, Section I of theMaine Constitution cannot survive strict scrutiny.

In an effort to tailor Maine's voting restriction to meetthe State's compelling interest, State Defendants nowsuggest that the term "mental illness" was intended toapply to all mental incapacities. To support this broaddefinition of mental illness, State Defendants rely onlegislation passed by the Maine Legislature in 1959. Inrelevant part, the legislation stated that

Wherever in the Revised Statutes or publiclaws or private and special laws *53 the words

"insane" or "insanity" appear, they shall beamended to the words `mentally ill' and

See supra note 17. While a facial challengerequires the Court to apply the "no set of cir-cumstances" test, Plaintiffs' equal protectionclaim requires the Court to apply strict scruti-ny. Viewing this case through both of theselenses, the Court must determine whetherthere are no circumstances under which theState's voting restriction could be considerednarrowly tailored to meet the State's com-pelling interest.

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`mental illness' except in all circumstanceswhere the word "insane" is in reference to theword criminal.

Maine P.L. 1959, c. 242, § VIII. Because the MaineLegislature had declared five years earlier that "`insaneperson' may include idiotic, non compos, lunatic ordistracted person," State Defendants contend that in1959 the Maine Legislature meant for the term "men-tally ill" to apply to all idiotic,22 non compos,23 lunat-ic24 or distracted25 persons.26 See R.S. 1954, c. 10 § 22(VII) (codified at1 M.R.S.A. § 72(8) (repealed 1977)).State Defendants argue that the Court should extendthis logic to 1965 and then freeze the definition ofmental illness to the definition that they have deducedfrom this 1950s Maine legislation.27

22.

23.

24.

25.

26.

27.

In light of the Legislature's failure to provide a specificdefinition of "mental illness" in 1965 as well as themanner in which the recent referendum votes wereconducted, the Court is skeptical that State Defen-dants can now freeze the definition of "mental illness"to one meaning apparently endorsed by the MaineLegislature in 1959. Moreover, adopting this defin-ition creates illogical and inconsistent results. First,the State's proffered definition of mental illness en-compasses other bases for placing a person underguardianship, such as "mental deficiency." See 18-AM.R.S.A. § 5-101(1). Thus, the State's proffered defin-ition encompasses and overlaps with other listed rea-sons for incapacity leaving other terms in the ProbateCode meaningless.28 Second, State Defendants suggestthat it was the intention of the Maine Legislature toinclude persons with mental retardation in their de-finition of *54 "mental illness." However, the Maine

Legislature has explicitly laid out the "Rights of Per-sons with Mental Retardation or Autism" includingthe right to vote. See 34-B M.R.S.A. § 5605(5) ("A per-son with mental retardation or autism may not be de-nied the right to vote for reasons of mental illness,as provided in the Constitution of Maine, Article II,Section 1, unless under guardianship."); see also Car-

The term "idiot" is defined in relevant partas "[a] person of profound mental retardationhaving a mental age below three years andgenerally being unable to learn connectedspeech or guard against common dangers. Theterm belongs to a classification system nolonger in use and is now considered offen-sive." Am. Heritage Dictionary at 871 (4th ed.2000).

The dictionary defines the Latin phrase"non compos mentis" as "not of sound mindand hence not legally responsible; mentally in-competent." Am. Heritage Dictionary at 1196(4th ed. 2000).

The dictionary defines "lunacy" as"[i]nsanity, especially insanity relieved inter-mittently by periods of clear-mindness." Am.Heritage Dictionary at 1041 (4th ed. 2000).

In relevant part, "distracted" is defined as"suffering from conflicting emotions; dis-traught." Am. Heritage Dictionary at 525 (4thed. 2000).

Discussing this same statutory description of"insanity," the Maine Law Court explainedthat "there are many degrees and varieties ofmental derangement which come under thegeneric head of insanity. . . . Insanity, in a legalsense, embraces all the groups and conditions.. . . In a legal sense, unsoundness of mind issynonymous with insanity." St. George v. Bid-deford, 76 Me. 593, 595-96 (1885). Thus, StateDefendants embrace the term "unsoundness ofmind" as synonymous with "mental illness."

State Defendants' historical justificationfor broadly defining mental illness is especiallyperplexing in light of their desire to applytheir "2001 interpretation" to the phrase "un-der guardianship" for the purpose of the vot-ing restriction.

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roll M. MacGowan Jr. Aff. ¶¶ 10-12 (Pls. Ex. 7) (ex-plaining some of the history leading to the original1970s passage of the above quoted statutory provi-sion). Thus, it appears the Maine Legislature does dis-tinguish persons with mental retardation from per-sons with mental illness. Cf. 19-A M.R.S.A. § 701(3)(providing distinctive definitions of "mental illness"and "mental retardation" in the context of prohibitedmarriages).

28.

Additionally, by defining mental illness through theuse of archaic terms, the State somehow suggests thatprobate courts can properly place persons with mod-ern day diagnoses within the stigmatizing confines ofterms such as "idiotic," "lunatic," or "unsoundness ofmind." Thus, while attempting to develop a narrow-ing construction that takes Maine one step forward,State Defendants actually take two steps back. In fact,State Defendants need not look back to 1959 to find abroad definition of mental illness. In 1999, the Unit-ed States Department of Health and Human Servicesreleased the first Surgeon General's Report on Men-tal Health, which included the following definition ofmental illness:

Mental illness is a term that collectively refersto all diagnosable mental disorders. Mentaldisorders are health conditions that arecharacterized by alteration in thinking, moodor behavior (or some combination thereof)associated with distress and/or impairedfunctioning.

U.S. Dep't of Health and Human Services, MentalHealth: A Report of the Surgeon General 5 (1999).29

The Report goes on to name Alzheimer's Disease, de-pression, and attention-deficit/hyperactivity disorderas examples of conditions that fit under this expansivedefinition of mental illness. See id. at 5.30

29.

30.

Assuming for the moment that the Court would en-dorse the State's proffered 1959 definition of "mentalillness," Maine's disenfranchisement of individualsunder guardianship because they are idiotic, non com-pos, lunatic or distracted is not narrowly tailored tomeet Maine's stated compelling interest. Under thisdefinition, many more persons under guardianshipwould be subject to disenfranchisement, includingthose with mental retardation or late stageAlzheimer's Disease. However, even this broad defini-tion could not logically be extended to include all per-sons under guardianship who may not have the ca-pacity to understand the nature and effect of *55 vot-

According to the registrars' testimony,they would only exclude persons from votingif their guardianship orders include the phrase"mental illness." Under the State's broad defin-ition of mental illness, a probate judge is leftwith complete discretion to put "mental ill-ness" or "mental deficiency" or some other fac-tually supported basis for finding incapacityand thereby include or exclude a person fromvoting.

See also Am. Heritage Dictionary at 1098(4th ed. 2000) (defining "mental illness" as"any of various conditions characterized byimpairments of an individual's normal cogni-tive, emotional, or behavioral functioning,and caused by social, psychological, biochemi-cal, genetic, or other factors such as infectionor head trauma").

The Report also refers to and relies on thefourth edition of Diagnostic and StatisticalManual of Mental Disorders ("DSM-IV") foran explanation of the variety of mental disor-ders currently recognized by mental healthprofessionals. See U.S. Dep't of Health andHuman Services, Mental Health: A Report ofthe Surgeon General 44 (1999). The DSM-IVlist sixteen classes of mental disorder includ-ing: dementia and cognitive disorders, schizo-phrenia and other psychotic disorders, mooddisorders, personality disorders, substance-re-lated disorders; eating disorders and sleep dis-orders.

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ing. For example, it would be illogical to say that aperson who slips into a coma or persistent vegetativestate as a result of a physical injury or ailment was"mentally ill" by 1959 standards.31 Thus, State Defen-dants' historically-based definition of mental illness isnot narrowly tailored to encompass all of the possibleincapacitated persons who might lack the capacity tocast an individual ballot.

31.

To the extent State Defendants would attempt to in-clude all such incapacitated persons under the guise of"mental illness," the Court finds that such stretchingof the term "mental illness" is an absurd extension ofthe plain language of the statute.32 Thus, State Defen-dants' proffered definition of mental illness is eitherpoorly tailored to meet their asserted interest or cre-ates an absurd result that cannot be endorsed underMaine's principles of statutory construction. In somerespects, State Defendants' interpretation appears tosuffer from both of these infirmities simultaneously.

32.

Even if the Court were to adopt a modern day, expan-sive definition of mental illness, such as the definitionused by the Surgeon General, the State would be leftwith a voting restriction far broader than the statusquo, which could potentially disenfranchise many per-sons under guardianship who presently have the rightto vote. For example, a person placed under guardian-ship for an eating disorder could be disenfranchisedbecause they are, in fact, considered to be sufferingfrom a form of mental illness.

By including many more diagnoses within the catego-ry of "mentally illness," there is an even greater chanceof "mentally ill" people, who maintain the capacity tounderstand the nature and effect of voting, being er-roneously deprived of the right to vote, just as JillDoe and June Doe have experienced. The Court real-izes that the State now believes that by providing ex-tra procedures it could adequately protect this largergroup of "Jill Does" and "June Does" and actually endup disenfranchising fewer persons under guardian-ship. However, for the reasons explained in theCourt's due process discussion, the Court cannot fairlyand readily adopt such a dramatic change in probatecourt procedure.

In short, under any reasonable definition, "mental ill-ness" cannot serve as a proxy for mental incapacitywith regards to voting. See St. George v. Biddeford, 76Me. 593, 596 (1885) (recognizing that a person "maybe of unsound mind in one *56 respect, and not in

Through the 1965 amendment, it is likelythat the Maine Legislature sought to distin-guish those under guardianship for physicalillnesses as compared to mental illnesses.While the line between physical and mentalailments may have been clear to the MaineLegislature in 1965, the Court notes that in2001 a person's capacity or incapacity to un-derstand the nature and effect of the act of vot-ing simply cannot be determined by classifyingtheir illness as a mental illness or a physical ill-ness. See U.S. Dep't of Health and Human Ser-vices, Mental Health: A Report of the SurgeonGeneral 5 (1999) ("[E]veryday language tendsto encourage a misperception that `mentalhealth' or `mental illness' is unrelated to `phys-ical health' or `physical illness.' In fact, the twoare inseparable.")

Moreover, by casting a wider net with itsdefinition of mental illness, State Defendantsare forced to acknowledge that many "mental-ly ill" persons who are not under guardianship

are allowed to vote in elections routinely al-though according to the State they are partof a group that may very well not understandthe nature and effect of voting such that theycan make an individual decision. That said, theCourt believes that a voting restriction thatuses guardianship proceedings to screen forlack of capacity to vote can satisfy the EqualProtection Clause. However, such a system isinevitably underinclusive to the extent that itcannot include persons who, despite sufferingfrom mentally incapacitating conditions, arenot subject to guardianship proceedings.

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all respects"). After much consideration of a variety ofdefinitions, the Court finds all definitions to be eitherfatally underinclusive or overinclusive. Thus, Maine'sprovision disenfranchising only those individuals un-der guardianship by reason of mental illness cannot befairly and readily narrowly tailored by this Court tomeet the State's asserted compelling interest in ensur-ing that those who vote understand the nature and ef-fect of voting such that they can make an individualchoice.

Because the Court cannot subject Maine's disenfran-chising provision to any reasonable narrowing con-struction that would pass equal protection muster, itis forced to conclude that Maine's voting restrictionhas not only been applied in a manner that violates theEqual Protection Clause but is also facially invalid. Onthis basis, the Court concludes that Plaintiffs are enti-tled to judgment as a matter of law on Count I.

D. Title II of the Americans with Disabilities Act Sec-tion 504 of the Rehabilitation Act (Counts II III)

Finally, the Court turns to Plaintiffs' statutory claimsasserted under Title II of the Americans with Disabil-ities Act ("ADA") and Section 504 of the Rehabilita-tion Act. Before examining whether Plaintiffs meet allthe elements of these claims, the Court first address-es State Defendants' assertion of sovereign immunitywith regard to Title II of the ADA.

1. Title II of the ADA after Garrett

State Defendants mount a two-pronged legal chal-lenge regarding Plaintiffs' ability to press their ADAclaims against the named State Defendants. First, theyargue that Plaintiffs have failed to name the properdefendants. Second, State Defendants assert that theappropriate defendants to Plaintiffs' ADA claims areprotected by sovereign immunity. At the outset, theCourt notes that if it were to accept both of these ar-guments, Plaintiffs would have no way to enforce Ti-tle II of the ADA against the State.

State Defendants suggest that neither the AttorneyGeneral nor the Secretary of State, who are bothnamed as Defendants in their official capacity, are"public entities" subject to Title II of the ADA. Con-trary to Defendants' arguments, naming these agencyheads as defendants is not a fatal flaw. In their respec-tive official capacities, both the Maine Attorney Gen-eral and the Maine Secretary of State are agents of thepublic entities they lead. In these roles, they may beproperly named as defendants to a claim under Title IIof the ADA.33 See, e.g., Olmstead v. L.C. by Zimring,527 U.S. 581, 594 (1999) (naming the Commission-er of the Georgia Department of Human Resources,the Superintendent of Georgia Regional Hospital andthe Executive Director of the Fulton County RegionalBoard as defendants for alleged violations of Title II ofthe ADA); Theriault v. Flynn, 162 F.3d 46, 46 (1st Cir.1998) (naming the Commissioner of the New Hamp-shire Department of Safety as defendant for alleged vi-olation of Title II of the ADA); see also Kentucky v.Graham, 473 U.S. 159, 165-66 (1985) ("Official-capac-ity *57 suits . . . `generally represent only another way

of pleading an action against an entity of which an of-ficer is an agent.'") (quoting Monell v. New York CityDep't of Social Servs., 436 U.S. 658, 690 n. 55 (1978)).

33.

Realizing that Plaintiffs' ADA claims were likely to beconstrued as claims against the State, Defendants pro-ceed to argue that Plaintiffs' ADA claims against State"public entities" are barred by the Eleventh Amend-ment according to the Supreme Court's recent deci-sion in Board of Trustees of the University of Alaba-

Given the Court's finding that Plaintiffsmay properly proceed against the named StateDefendants in their respective official capaci-ties, the Court need not reach the issue ofwhether Plaintiffs could alternatively proceedagainst State Defendants in their individualcapacities under Ex parte Young, 209 U.S. 123(1908). See Randolph v. Rodgers, 253 F.3d342, 348-49 (8th Cir. 2001) (finding thatplaintiff could assert a Title II claim against astate official pursuant to Ex parte Young).

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ma v. Garrett, 121 S.Ct. 955 (2001). The Court dis-agrees. Garrett explicitly does not address Title II ofthe ADA. See id. at 960 n. 1. Thus, the holding of Gar-rett simply allows states to invoke sovereign immuni-ty when faced with claims for money damages underTitle I of the ADA. See id. at 968 n. 9. In this case,Plaintiffs state their claims under Title II and seek in-junctive relief, not money damages. The Court de-clines to extend the Garrett decision to apply underthese circumstances. But see Walker v. Snyder, 213F.3d 344,346-47 (7th Cir. 2000) (finding that statewas entitled to invoke sovereign immunity defenseto claims under Title II of the ADA to the extentthe claims "require[d] accommodation of disabilities(rather than simply requiring the state to disregarddisabilities) and to the extent that [Title II] forbids astate to take account of disabilities that are rationallyrelated to permissible objects of public action"), cert.denied, 121 S.Ct. 1188 (2001); Alsbrook v. Maumelle,184 F.3d 999,1007-10 (8th Cir. 1999) (en banc) (find-ing state was entitled to invoke sovereign immunity toclaims under Title II of the ADA because Title II wentbeyond "enforc[ing] equal protection guarantees forthe disabled as they have been defined by the SupremeCourt").34

34.

Thus, the Court concludes that State Defendants maynot invoke sovereign immunity to shield them fromPlaintiffs' claims under Title II of the ADA.

2. The Elements of Plaintiffs' Claims

Turning to the merits, the Court notes that even if itwere to accept State Defendants' sovereign immuni-ty argument, State Defendants would still be subjectto substantially the same standard of conduct pursuantto Section 504 of the Rehabilitation Act. As the FirstCircuit has explained, Title II of the ADA "essentiallyextends the reach of § 504 [of the Rehabilitation Act]to state and local governmental entities that do not re-ceive federal financial assistance." Parker v. Universi-dad de Puerto Rico, 225 F.3d 1, 4 n. 2 (1st Cir. 2000).In this case, State Defendants have admitted that boththe Department of the State Attorney General and theDepartment of the Secretary of State receive federalfunds thereby subjecting them to Section 504 liability.(See State Defs. Answer to Second Am. Compl. ¶ 56A(Docket # 33).)

In Parker, the First Circuit explained that the deci-sional law on Title II of the ADA and Section 504 maybe relied on "interchangeably." Parker, 225 F.3d at 4.With this similarity in mind, the Court finds it is ap-propriate to address the merits of Plaintiffs' Title IIand Section 504 *58 claims simultaneously.35

35.

To succeed on both of these statutory claims Plaintiffsmust establish: (1) that they are qualified individualswith disabilities; (2) that they were excluded from par-ticipation in a public entity's services, programs, or

In light of the Court's conclusion with re-gard to Plaintiffs' equal protection and dueprocess challenges, it is not clear that the rea-soning utilized by the Seventh Circuit inWalker and the Eighth Circuit in Alsbrook isapplicable to the ADA claim asserted by Plain-tiffs. In this case, Plaintiffs are not seeking anaccommodation and are seeking protection offundamental rights secured through equalprotection guarantees.

Plaintiffs initially moved for summaryjudgment on the ADA claim but did not in-clude the Rehabilitation Act claim in their mo-tion. State Defendants, on the other hand, in-cluded both the ADA claim and the Rehabili-tation Act claim in their initial Motion forSummary Judgment (Docket #41). Plaintiffs'oversight is not fatal. Because discovery hasbeen completed and State Defendants have re-ceived adequate notice that summary judg-ment on this claim is possible on the samegrounds as the ADA claim, the Court maygrant summary judgment for Plaintiffs on theRehabilitation Act claim sua sponte. See Ro-gan v. Menino, 175 F.3d 75, 79 (1st Cir. 1999).

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activities or otherwise discriminated against; and (3)that such exclusion or discrimination was by reason oftheir disability. See id. at 5.

The Court finds that both Jill Doe and June Doe satisfythese elements.36 Additionally, the Court finds thatDRC has standing to press these claims on behalf ofother individuals who have been disenfranchised be-cause they were placed under guardianship by reasonof mental illness. See Access Living v. Chicago TransitAuth., No. 00-C-0770, 2001 WL 492473 at *2-*3(N.D.Ill. May 9, 2001) (collecting cases finding that or-ganizations have standing to pursue claims under Ti-tle II of the ADA).

36.

State Defendants argue that Plaintiffs Jill Doe and JuneDoe cannot meet all of the elements because they ac-tually have not been excluded from participation invoting. The Court finds Defendants' ripeness chal-lenge meritless. The remaining Plaintiffs exemplify orrepresent persons under guardianship by reason of amental illness who have not had their right to votereserved. The plain language of Maine's Constitutionexcludes them from participating in elections as eligi-ble voters. As the Court explained in its backgroundsection, a person under guardianship for mental ill-ness who votes knowing that they are, in fact, pro-hibited from doing so subjects themselves to criminalprosecution. Plaintiffs need not subject themselves tocriminal liability in order to present a ripe ADA claim.

Moreover, the Court is satisfied that Plaintiffs maysatisfy the second element because they have beensubjected to discrimination by public entities — name-ly, because they have been diagnosed with mental ill-nesses, they are subject to discriminatory treatment

with respect to voting in public elections. See 42U.S.C. § 12132; see also28 C.F.R. § 35.130(b)(3)(i) ("Apublic entity may not . . . utilize criteria or methods ofadministration that have the effect of subjecting qual-ified individuals with disabilities to discrimination onthe basis of disability.").

Although Plaintiffs have presented evidence that theyare discriminated against with respect to voting "byreason of mental illness," State Defendants alterna-tively argue that they are entitled to judgment on theseclaims because of their newly proffered interpretationof the voting restriction, discussed at length above.According to State Defendants, this newly-crafted in-terpretation satisfies all the requirements of the ADAand simply makes capacity to understand the natureand effect of voting "an essential eligibility require-ment for the *59 activity of voting." (State Defs. Mot.

for Summ. J. at 19 (Docket #41).) State Defendantsnote that Congress appears to have endorsed mentalcapacity as an essential eligibility requirement becausethe National Voter Registration Act does allow forstate law to restrict persons from voting based on"mental incapacity." See 42 U.S.C. §1973gg-6(a)(3)(B).

Regardless of what level of mental capacity may beconsidered an "essential eligibility criteria," the Courtdeclines to review Plaintiffs' statutory claims in lightof State Defendants' proffered "narrowing construc-tion" of Maine's voting restriction. Unlike the consti-tutional claims discussed above, there is no such thingas a facial challenge to the State's compliance with afederal statute. A ripe claim for violation of a federalstatute is based on either previous conduct or ongoingviolations. Thus, in considering Plaintiffs' ADA andRehabilitation Act claims, the Court may only consid-er the evidence regarding Maine's past application ofits voting restriction along with any evidence relatingto how the voting restriction continues to be appliedtoday.

Because Jane Doe was reserved the right tovote prior to the November 2000 election, theCourt finds any ADA claim or Section 504claim by Jane Doe is MOOT. On this basis, theCourt concludes that Defendant Bernier is en-titled to judgment as a matter of law on bothCounts II III.

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By all accounts, this restriction currently applies tomentally ill persons under guardianship — at leastsome of whom have the capacity to vote, therebymeeting the proposed essential eligibility criteria. SeeTheriault, 162 F.3d at 50 (explaining that the ADAprohibits "rejecting an applicant automatically as a re-sult of his disease or its symptoms, without consider-ing the individual's abilities"). Of course, if the Statewere to implement changes to Maine's voting restric-tion thereby limiting its application to only those whofail to meet the essential eligibility criteria, Plaintiffs'claims of ongoing ADA violations could becomemoot. However, State Defendants' mere suggestionsfor how it could bring its voting regulations into com-pliance with the ADA and Section 504 in the futureare irrelevant.

In short, the Court is satisfied that the evidence provesState Defendants have violated the ADA as well asSection 504 of the Rehabilitation Act. None of StateDefendants' legal arguments preclude this conclusion.On this basis, Plaintiffs are entitled to a judgment as amatter of law on both Counts II and III.

IV. CONCLUSION

For the reasons stated herein, The Court finds thatArticle II, Section I of the Maine Constitution, alongwith its implementing statute found in21-A M.R.S.A.§ 115(1), violate both the Due Process Clause and theEqual Protection Clause of the Fourteenth Amend-ment. Thus, the State's disenfranchisement of thosepersons under guardianship by reason of mental ill-ness is unconstitutional. Additionally, the Court findsthat in implementing its voting restriction, State De-fendants have violated Title II of the ADA and Section504 of the Rehabilitation Act.

Therefore, the Court GRANTS Plaintiffs' Motion forSummary Judgment and DENIES State Defendants'Motion for Summary Judgment. To the extent Defen-dant Bernier joined in Defendants' Motion for Sum-

mary Judgment, the Court finds that the claims assert-ed against Defendant Bernier are MOOT.

SO ORDERED.

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