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Kevin Collins v. State

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 85
Docket:	Kno-99-430	
on Briefs:	March 29, 2000
Decided:	May 16, 2000

Concurrence:	DANA and CALKINS, JJ.



	[¶1]  Kevin J. Collins appeals from the judgment entered in the
Superior Court (Knox County, Marsano, J.) dismissing his declaratory
judgment action seeking a declaration that 4 M.R.S.A. §§ 1606(2), 1610-A
(Supp. 1999) are violative of the Maine Constitution, article IX, section 14,{1}
and enjoining the issuance of $85 million of bonds authorized by those Laws. 
On the motion of the State, the court dismissed the action with prejudice. 
We affirm the judgment.  Collins lacks standing to assert his challenge.
	[¶2]  Maine Court Facilities Authority was created in 1987, see P.L.
1987, ch. 438, § 1, as a quasi-governmental agency to undertake the
construction and renovation of court facilities.  Ten years later, the
Authority's mission was extended to all governmental facilities and its name
changed to the Maine Governmental Facilities Authority (Authority or
MGFA).  See 4 M.R.S.A. §§ 1601-1603 (1989 & Supp. 1999).  Since its
founding, the Authority has been authorized "to borrow money and to issue
negotiable securities."  4 M.R.S.A. § 1604(10) (1989).{2}  The Authority uses
the proceeds of these securities to finance construction projects, and the
structures thus built are leased to the State.  Rental payments to the MGFA
by the State are expressly conditioned on the passage of subsequent
legislative appropriations.  If the Legislature fails to appropriate the money
to pay the rent, the Authority would be unable to fulfill its obligation to
security holders.  The State is not obligated in any way on the bonds issued
by the Authority.
	[¶3]  Collins, a prisoner at the Maine State Prison, is concerned with
the State's use of MGFA bond proceeds to finance the construction of a new
prison facility.  Collins asserts that he has standing as "a State Tax Payer, a
State Citizen, and is affected by the actions, failure and/or refusal to act [of
the State]."  He additionally asserts that the Crafts Program he now
participates in at the Maine State Prison will be unavailable at the new
prison being built with the funds generated from the sale of the bonds in
question.  He asserts that the Crafts activity enables him to earn thousands of
dollars every year and further that his "personal liberties will be severely
curtailed" at the new prison for he will not have access to a music room, a
distressing turn of events for Collins who styles himself as "an aspiring
	[¶4]  Review of a dismissal pursuant to M.R. Civ. P. 12(b)(6) accepts
the facts as presented in the complaint as true.  See Bowen v. Eastman,
645 A.2d 5, 6 (Me. 1994).  "Nevertheless, we are not bound to accept the
complaint's legal conclusions."  Id. (citing Robinson v. Washington County,
529 A.2d 1357, 1359 (Me. 1987)).  Nor do we have to accept the Superior
Court's decisions of law that buttress a dismissal under Rule 12(b)(6); these
are reviewed de novo.  See State v. O'Connor, 681 A.2d 475, 476
(Me. 1996).
	[¶5]  We have established general standing rules for litigants seeking
to challenge the validity of a statute.  Although we have declined to use a
label to describe these rules, we have stated:
While standing is an amorphous concept fraught with a
plurality of meanings, its basic purpose and requirements are
clear.  A party must assert a personal stake in the outcome of
the litigation and present a real and substantial controversy
touching on the legal relations of parties with adverse legal
Franklin Property Trust v. Foresite, Inc., 438 A.2d 218, 220 (Me. 1981)
(internal citations omitted).  To have standing to challenge a statute's
validity, "a party must actually be deprived of a constitutional right by the
operation of the statute."  State v. York, 1997 ME 209, 704 A.2d 324 (citing
Brann v. State, 424 A.2d, 699, 702 (Me. 1981)).  We can raise the issue of
standing sua sponte as it is jurisdictional.  See Nemon v. Summit Floors,
Inc., 520 A.2d 1310, 1312 (Me. 1987).
A.  Traditional Standing

	[¶6]  One who suffers only an abstract injury does not gain standing
to challenge governmental conduct.  See Nichols v. City of Rockland, 324
A.2d 295, 297 (Me. 1974).  To have standing, a party must show they
suffered an injury that is fairly traceable to the challenged action and that is
likely to be redressed by the judicial relief sought.  See Allen v. Wright, 468
U.S. 737 (1984) (cited with approval in Proctor v. County of Penobscot, 651
A.2d 355, 357 (Me. 1994)).  Further, the injury must be particularized.  Put
differently, it must be distinct from the harm suffered by the public-at-large. 
See Stull v. First American Title Ins. Co., 2000 ME 21, ¶ 11, 745 A.2d 975,
979; Proctor, 651 A.2d at 357.  This requirement is met when defendant's
actions have "adversely and directly affected the plaintiff's property,
pecuniary or personal rights."  Stull, ¶ 11, 745 A.2d at 979.
	[¶7]  Under this traditional doctrine, Collins does not have standing
because he does not allege, nor does he demonstrate, that he was injured. 
Collins merely claims that he is "affected" by defendant's action.  Being
affected by a governmental action is insufficient to confer standing in the
absence of any showing that the effect is an injury.  Although Collins claims
that the new prison facility may not allow him to continue to participate in a
Crafts Program or to have access to a music room, he is, however, in the
custody of the Department of Corrections and he has no constitutional right
to the program and facility which he claims he may now be deprived of.  See
Parkinson v. State, 558 A.2d 361, 363-64 (Me. 1989); Duncan v. Ulmer, 159
Me. 266, 275, 191 A.2d 617, 622 (1963).

B.  Tax Payer Standing and Common Cause v. State.

	[¶8]  Collins suggests two possible bases for asserting standing due
to his taxpayer status: as an income taxpayer and as a sales taxpayer.  In
Common Cause v. State, 455 A.2d 1, 10 (Me. 1983), we allowed income
taxpayers to challenge state action even without showing special injury to
themselves.  The facts in Common Cause differed markedly from the facts of
this case, however.  First and foremost, Common Cause involved the issuance
of general obligation bonds; bonds upon which the State was liable.  In
Common Cause, the plaintiffs contended that the challenged law violated the
equal protection clauses of the State and Federal Constitutions.  See id. at 6. 
We indicated that, "the general rule is that a litigant may not assert
constitutional rights of third parties."  Id. (citing Singleton v. Wulff, 428 U.S.
106, 113-14 (1976) (plurality op.)).  We therefore declined to consider the
plaintiff's equal protection claim as they were third parties.  In Common
Cause, the plaintiffs further argued that the Legislature may not authorize
the issuance of general obligation bonds except for a public purpose and that
the proposed action by the State illegally violated that rule.  See id. at 8.  We
agreed and rejected the proposition that taxpayers without special injury
may never have standing to challenge illegal State action.  We stated:
[I]ndeed, the plaintiffs, as taxpayers, assert their own direct
interest in the enforcement of a provision of the Maine
Constitution which, as construed by this Court, is aimed
precisely at protecting taxpayers from having their tax
dollars used for private purposes.  The plaintiffs assert also a
direct interest in the enforcement of a constitutional
provision designed to prevent the state from becoming
overburdened with debt.  Again, the taxpayers of the state are
surely among the principal intended beneficiaries of that
Id. at 10.

	[¶9]  The revenue bond issue that Collins challenges is not backed by
the full faith credit of the State of Maine.   If he earns income, he must pay
income tax.  See Maine State Housing Auth. v. Depositors Trust Co., 278 A.2d
699, 706-08 (Me. 1971).  Collins' income tax payments will not directly
help finance MGFA's bond issue as the debt will be serviced by the Authority
and not by the State.  So unlike the plaintiffs in Common Cause, Collins
alleges only a "violation of a statute or constitutional provision having little
or no direct connection with [his] tax liability."  Common Cause, 455 A.2d at
10.  At the time, we noted that our holding in Common Cause "intimate[s]
no opinion about the standing of taxpayers without special injury to bring a
suit of that sort."  Id.  Here, Collins has not shown a connection between the
asserted statutory violation by the State and his taxes because Collins's tax
dollars do not directly pay the bond debt.  Therefore, Collins does not have
income taxpayer standing.
	[¶10]  Collins explicitly asserts that he has paid sales tax, but, as the
South Dakota Supreme Court points out, payment of sales tax by a consumer
"does not fit within the definition of a taxpayer" for taxpayer standing
purposes.  Stumes v. Bloomberg, 551 N.W.2d 590, 593 (S.D. 1996).  See also
Cornelius v. Los Angeles County Metro. Transp. Auth., 57 Cal.Rptr.2d 618,
626-29 (Cal. Ct. App. 1997).  In Maine, as in South Dakota and California, the
retailer pays the sales tax, and can choose to pass that cost on to the
consumer.  See Harvey F. Gamage, Shipbuilder, Inc. v. Halperin, 359 A.2d
72, 76-77 (Me. 1976) (holding that the legal incidence of the sales tax is on
the retailer and not the consumer, notwithstanding the language of 36
M.R.S.A. § 1753 (1990) which says sales tax is a levy on the consumer).  His
reimbursement of the retailer's sales tax cannot alone avail Collins of
	The entry is:
				Judgment affirmed.

CALKINS, J., with whom DANA, J., joins, concurring. [¶11] I would not reach the standing issue, and I would affirm the Superior Court's dismissal on the merits. While I agree that we can raise the issue of standing sua sponte as we have done here, I do not believe that we should reach to dispose of a case on standing where the merits are more easily determined than standing. Our standing jurisprudence is prudential, rather than constitutional. See Seven Islands Land Co. v. Maine Land Use Reg. Comm'n, 450 A.2d 475, 484 (Me. 1982) (Nichols and Wathen, JJ., concurring). We are not required to determine standing. I would decide the merits because the standing issue is a close one, the record is minimal, standing was not raised by the parties, we do not have the benefit of the Superior Court's conclusion on standing, and the decision on the merits is clear. [¶12] On the merits, Collins seeks a declaration that 4 M.R.S.A. § 1610-A (Supp. 1999) which authorized the issuance of additional securities for the construction of correctional facilities is invalid because it violates the debt limitation of Article IX, Section 14 of the Maine Constitution. The statutory scheme creating the MGFA and defining its powers and limitations is similar to the statutory scheme at issue in Maine State Hous. Auth. v. Depositors Trust Co., 278 A.2d 699, 706-07 (Me. 1971), in which we held that the issuance of securities of the Housing Authority did not violate the Maine Constitution. Securities issued by the MGFA are not a debt of the State, and the credit of the State is not pledged to pay the securities or interest thereon. See 4 M.R.S.A. § 1618 (Supp. 1999). While the State pays rent to the MGFA to use the facilities it has constructed, that rent is expressly contingent on legislative appropriations. See 4 M.R.S.A. § 1604(18) (Supp. 1999). Because the State is under no legal obligation to pay MGFA's debt, the Maine Constitution does not bar MGFA from issuing bonds in excess of $2 million. Cf. Maine State Hous. Auth., 278 A.2d at 706-08. [¶13] Collins also asserts that section 1610-A was enacted improperly because it has not been shown that it passed with a two-thirds majority of the Legislature. Maine follows the enrolled bill rule that prevents parties from challenging the process by which bills become law and deems that bills, which are duly certified as having been passed by the Legislature and approved by the Governor, cannot be impeached by the showing of any irregularity in the passage. See Weeks v. Smith, 81 Me. 538, 547, 18 A. 325, 327 (1889); see also Twin City Nat'l Bank of New Brighton v. Nebecker, 167 U.S. 196, 201 (1897). Therefore, Collins's attack on the manner of enactment of the statute fails. [¶14] For these reasons, I would affirm the judgment of the Superior Court dismissing Collins's complaint for failure to state a claim. See M.R. Civ. P. 12(b)(6).
For plaintiff: Kevin J. Collins P O Box A Thomaston, ME 04861-0500 Attorneys for defendant: Andrew Ketterer, Attorney General Christopher C. Taub, Asst. Attorney General Paul Stern, Deputy Attorney General 6 State House Station Augusta, ME 04333-0006
FOOTNOTES******************************** {1} . The relevant portion of Section 1606(2) reads: 2. Limitation on securities issued. . . . . Nothing in this chapter may be construed to authorize the authority to issue securities to fund the construction, reconstruction, purchase or acquisition of facilities without a majority vote of approval in each House of the Legislature. 4 M.R.S.A. § 1606(2) (Supp. 1999). Section 1610-A reads in full: § 1610-A. Additional securities Notwithstanding any limitation on the amount of securities that may be issued pursuant to section 1606, subsection 2, the authority may issue additional securities in an amount not to exceed $85,000,000 outstanding at any one time for correctional facilities. 4 M.R.S.A. § 1610-A (Supp. 1999). The relevant part of the applicable section of the Maine Constitution reads: Section 14. The credit of the State shall not be directly or indirectly loaned in any case, except as provided in sections 14-A, 14-B, 14-C and 14-D. The Legislature shall not create any debt or debts, liability or liabilities, on behalf of the State, which shall singly, or in the aggregate, with previous debts and liabilities hereafter incurred at any one time, exceed $2,000,000, except to suppress insurrection, to repel invasion, or for purposes of war, and except for temporary loans to be paid out of money raised by taxation during the fiscal year in which they are made; and excepting also that whenever 2/3 of both Houses shall deem it necessary, by proper enactment ratified by a majority of the electors voting thereon at a general or special election, the Legislature may authorize the issuance of bonds on behalf of the State at such times and in such amounts and for such purposes as approved by such action; . . . . Me. Const. art. IX, § 14. {2} . The relevant portions of this section read: § 1604. Powers In order to carry out the purposes of this Act, the Maine Governmental Facilities Authority has the following powers with respect to project, projects or part of any project together with all powers incidental to those powers or necessary for the performance of the following: . . . 10. Provide for financing or refinancing. To provide financing for any project, projects or part of any project or to provide for refinancing of existing indebtedness, and, for the financing of the project, projects or part of any project and of other necessary and usual attendant facilities, to borrow money and to issue negotiable securities and to provide for the rights of the holders of those securities; . . . . 4 M.R.S.A. § 1604(10) (1989).