Could the Maine AG prosecute legislative staff for documents found on Capitol computers under the state-computer-misuse statute?

Plain-English summary

In January and February 1995, documents pulled from Maine legislative computers raised possible violations of 5 M.R.S.A. § 1890-B (Misuse of computer information systems), which makes it a Class C crime to "knowingly use a computer information system operated by a state department or agency or the Legislature, for the express purpose of" either advocating to voters about the election or defeat of a clearly identified candidate, or soliciting reportable campaign contributions. Because one of the documents touched the campaign of another candidate for Attorney General, AG Andrew Ketterer recused himself. Chief Deputy AG Linda Pistner referred the matter to the Department's Litigation Unit, Criminal Appellate Section, and Investigations Unit. This memorandum is their analysis.

The memo first parses the statute's threshold phrase "for the express purpose of." Read literally, that phrase might require an explicit declaration of purpose, which would make the statute virtually unprosecutable. The more sensible reading is that the document must contain either express advocacy of a specific candidate or an express solicitation of contributions. That reading conforms to mainstream campaign-finance jurisprudence and tracks the 21-A M.R.S.A. § 1(47) definition of "voter."

The memo then walks through four categories of documents that had been collected from legislative computers and explains why none would support a prosecution:

Category 1: Political documents lacking express advocacy or solicitation. Documents that were "political in nature" but did not directly advocate the election or defeat of a clearly identified candidate or expressly solicit contributions. Facial non-violations.

Category 2: Pre-enactment fundraising drafts. Documents about a proposed fundraising mailing scheme that pre-dated § 1890-B's enactment. The directory timestamps showed the documents were created before the statute became law, and there was no evidence the fundraising scheme was ever implemented. No retroactive application; no completed use.

Category 3: Documents about offices filled by legislative vote. Drafts advocating for or against candidates for positions chosen by legislators (Attorney General, Speaker, Senate President). The memo concluded that "voters" in § 1890-B(1)(A) means "persons registered to vote" under 21-A M.R.S.A. § 1(47), not legislators casting their official votes. Treating legislators as voters under the statute would mean banning ordinary legislative-staff communications about leadership elections, which the memo found implausible.

Category 4: Drafts of radio spots and a fundraising letter. Drafts prepared on legislative computers by a partisan staff member, intended for a particular candidate. The candidate did not recall receiving them, never used them, and was not aware they were drafted on state equipment. The memo identified two preliminary issues: whether a stand-alone PC counts as a "computer information system" (debatable, given the cross-reference to 17-A M.R.S.A. § 431(7)), and whether using a state computer to draft something later used elsewhere counts as use "directly" with voters under subsection 1(A). Even assuming the drafts were prosecutable in principle, since they were never used, § 1890-B was not violated. On attempt liability under 17-A M.R.S.A. § 152, the memo concluded that even if drafting plus delivery might constitute a "substantial step," the prosecution should be declined in light of the other statutory ambiguities.

The bottom line: every category had a sufficient legal infirmity that prosecution would be inappropriate. The memo carefully avoided opining on the underlying policy question (whether the conduct was wise or proper) and stuck to the threshold question of whether the criminal statute would support a conviction.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is 5 M.R.S.A. § 1890-B?

A Maine criminal statute that prohibits using state government or legislative computer systems to (a) advocate to voters for the election or defeat of clearly identified candidates, or (b) solicit reportable campaign contributions. Violation is a Class C crime.

Why is "express purpose" so important to the statute?

Because the statute's predicate act is "use" of the computer system "for the express purpose of" one of the prohibited activities. The memo treated "express" as requiring express (not implied) advocacy or solicitation, so a borderline-political document that did not name a specific candidate or specifically ask for money would not trigger the statute. That tracks federal campaign-finance precedent on "magic words" and express advocacy.

Are legislators "voters" for purposes of the statute?

No, under the memo's reading. § 1890-B(1)(A) targets advocacy "directly to voters eligible to vote" for a candidate. The natural reference for "voters" is the registered-voter definition in 21-A M.R.S.A. § 1(47), not the members of the Legislature casting institutional votes. Otherwise, ordinary internal communications about a Speaker race or AG appointment would be a felony.

Does the statute reach a stand-alone PC, or only networked systems?

That was an open question in 1995. § 1890-B uses the phrase "computer information system," which the memo suggested could be read narrowly (networked systems with large databases, the kind of equipment that lets staff produce merge mailings to voter lists) or broadly (any state-owned PC). The memo flagged the 17-A M.R.S.A. § 431(7) criminal-code definition of "computer system" as one possible cross-reference, but noted it was not expressly made applicable to § 1890-B.

Why was AG Ketterer recused?

Because one of the documents at issue touched the campaign of another candidate for Attorney General. The conflict ran directly to the AG's own electoral interests, so the analysis was handled by senior career deputies and the Investigations Unit under the Chief Deputy.

Background and statutory framework

5 M.R.S.A. § 1890-B was enacted to prevent state and legislative computer systems from being used for partisan campaigning. Subsection 1 prohibits use "for the express purpose of" two categories of activity: (A) advocating to voters for or against a clearly identified candidate, and (B) soliciting contributions reportable under Title 21-A, chapter 13. Subsection 2 makes violation a Class C crime.

The cross-references for the analysis are 21-A M.R.S.A. § 1(47) (defining "voter" as a registered voter for general election-law purposes), 17-A M.R.S.A. § 431(7) (defining "computer system" for criminal-code purposes, not expressly made applicable to § 1890-B), and 17-A M.R.S.A. § 152 (attempt liability, including the "substantial step" element in § 152(1)).

The memo's recommendation that no prosecution be brought rested on statutory-interpretation grounds (express-advocacy requirement, "voters" means registered voters), evidentiary grounds (no completed use, no proof of intent or causation as to the candidate), and prudential grounds (statutory ambiguity counsels against pushing the edges of a criminal statute against legislative staff and candidates).

Citations

• 5 M.R.S.A. § 1890-B (Misuse of computer information systems, Class C crime)
• 5 M.R.S.A. § 1890-B(1)(A) (advocacy to voters about candidates)
• 5 M.R.S.A. § 1890-B(1)(B) (solicitation of reportable contributions)
• 5 M.R.S.A. § 1890-B(2) (Class C penalty)
• 21-A M.R.S.A. § 1(47) (definition of "voter" as registered voter)
• 17-A M.R.S.A. § 152 (attempt liability)
• 17-A M.R.S.A. § 152(1) ("substantial step" element)
• 17-A M.R.S.A. § 431(7) (definition of "computer system" in criminal code; not expressly cross-referenced into § 1890-B)
• Title 21-A, chapter 13 (campaign finance, source of "reportable" contributions)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1995/ag_19950811.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

State of Maine
DEPARTMENT OF ATTORNEY GENERAL

MEMORANDUM

To: Linda Pistner, Chief Deputy Attorney General

From: Tom Warren, Director, Litigation Unit
Charles K. Leadbetter, Chief, Criminal Appellate Section
Brian MacMaster, Director, Investigations Unit

Date: August 11, 1995

Subject: Possible Violations of 5 M.R.S.A. § 1890-B

At your request, we are summarizing our concerns relating to the interpretation of 5 M.R.S.A. § 1890-B (Supp. 1994) in light of the facts surrounding the specific documents evidencing possible violations of section 1890-B that were furnished to this office on January 9 and February 6, 1995. This is addressed to you since Attorney General Ketterer has recused himself from any role in reviewing this case because one of the documents in question concerned the campaign of another candidate for Attorney General.

Sections 1 and 2 of 5 M.R.S.A. § 1890-B (Supp. 1994) provide as follows:

§ 1890-B. Misuse of computer information systems

1. Violation. No person may knowingly use a computer information system operated by a state department or agency or the Legislature, for the express purpose of:

A. Advocating, directly to voters eligible to vote, the election or defeat of a clearly identified candidate for elective state or county office; or

B. Soliciting contributions reportable under Title 21-A, chapter 13.

2. Penalty. A violation of subsection 1 is a Class C crime.

An issue that arises at the outset is what § 1890-B(1) means when it requires the use of a computer information system "for the express purpose" of advocating to voters or soliciting contributions. Taken literally, this might be construed to require that a violation of the statute would require an express statement of a purpose specified in subsection (A) or (B) (in other words, no violation unless someone expressly says or writes that he or she is using a state computer for the purpose of advocating to voters or soliciting contributions). It is, however, more logical to interpret the statute as requiring that there must be either express advocacy of the election or defeat of a clearly identified candidate or an express solicitation of contributions.

The documents found on computers at the Legislature that have been provided to this office as evidencing possible violations of § 1890-B fall into four categories:

1. The first category consists of documents created on a legislative computer that are political in nature but that did not involve either any direct communication to voters expressly advocating the election or defeat of a clearly identified candidate or any express solicitation of contributions. On their face, such documents do not involve any violation of § 1890-B.

2. The second category consists of documents created on a legislative computer that relate to a proposed political fundraising scheme. The scheme appears to have contemplated mailings from a legislative computer, and the documents include a sample fundraising letter. The computer directory indicates, however, that these documents were created before the enactment of § 1890-B in its present form.

Moreover, there is also no evidence that the fundraising scheme in question was ever implemented or that any fundraising letters were ever sent. Indeed, the evidence is to the contrary. For reasons discussed in more detail below, we believe that it would be likely that a court would find that there is no violation of § 1890-B unless a state computer system is actually used to communicate with voters or to solicit contributions.

3. The third category consists of documents created on legislative computers that advocated the election or defeat of certain candidates for office that are filled by a legislative vote (such as the Attorney General), rather than by a vote of the electorate. The dispositive issue here is whether legislators are included as "voters" within the meaning of § 1890-B(1)(A).

In our view, where § 1890-B(1)(A) refers to the use of a computer system for the express purpose of "advocating, directly to voters eligible to vote," the term "voters" should be interpreted to be consistent with the definition of "voter" contained in 21-A M.R.S.A. § 1(47) (1993), which is "persons registered to vote." Particularly given the rule that criminal statutes are strictly construed against the prosecution, we doubt that a court would sustain an interpretation of § 1890-B that would cover elections to positions voted on by members of the Legislature rather than ordinary citizens.

Moreover, we also doubt that the statute was ever intended to cover elections for offices that are filled by a vote of the Legislature. It is part of the official function of the Legislature to vote on such offices as Speaker of the House and President of the Senate. Interpreting § 1890-B to cover such elections would preclude the use of legislative computers to advocate on behalf of candidates for those offices. In our view, at least absent clearer statutory language, § 1890-B(1)(A) should be limited to communications to the general electorate involving legislative, gubernatorial, or county candidates.

In our view, therefore, the third category of documents described above would not constitute a prosecutable violation of § 1890-B.

4. The fourth category of documents consists of drafts of two radio advertisements and a fundraising letter which were created on a legislative computer by a partisan legislative staff member. The scripts of the draft radio spots urged voters to elect a specified candidate to the Legislature. The draft fundraising letter was created for the same candidate.

A preliminary issue here is that the documents in question were created on a stand-alone personal computer rather than on a computer or terminal which was part of a computer network. Section 1890-B(1) refers to the use of a "computer information system," and there is a question whether a stand-alone personal computer constitutes such a system. We believe that a "computer information system" could be interpreted to include a single stand-alone computer together with its software based on the definition of "computer system" in the Criminal Code, 17-A M.R.S.A. § 431(7) (Supp. 1994). However, that definition is not expressly made applicable to § 1890-B. One might also ask whether, in specifically forbidding use of a "computer information system," the legislature was intending to address those features of computers that might be particularly subject to abuses of the kind proscribed by § 1890-B (i.e., the use of large data bases and "merge mailings" for mass fundraising or campaign letters).

In any event, the evidence indicates that the drafts in question had not been requested by the candidate but were sent to the candidate by the staff member on his own initiative. It does not appear that the candidate would have had any reason to know that the drafts were prepared on a state computer. Moreover, when the candidate in question was interviewed, he advised us that he did not even recall whether or not he had received the draft radio advertisements and draft fundraising letter from the staff member in question. In any event, the candidate stated that he did not make any use of either the draft radio spots or the draft fundraising letter. There is no evidence suggesting that the drafts were in fact used. Under these circumstances, there is a significant question as to whether a state computer was used "for the purpose of" advocating directly to voters or soliciting contributions.

While the staffer in question intended that his drafts would be used in this fashion, even though they were not in fact so used, section 1890-B is not phrased in terms of forbidding use of a state computer information system "with the intent" to advocate to voters or to solicit contributions. Given the rule that ambiguities in criminal statutes are to be construed against the prosecution, it is likely that a court would find that for a crime to be committed under § 1890-B, some communication with voters using a state computer or some solicitation of contributions using a state computer must actually take place.

With respect to the radio spots, even if they had been broadcast, there is also a question as to whether this would constitute the use of a state computer system to advocate "directly" to voters. Where a state computer is used to create a draft but is not itself used for direct communication to voters, there is a legitimate question as to whether the requirements of section 1890-B(1)(A) are met.

There is no comparable language suggesting that the solicitation of campaign contributions has to be direct. As a result, even though the investigation indicates that the draft fundraising letter was never used, there is one other possible line of inquiry. By drafting the fundraising letter and providing it to the candidate, the legislative staff member may have engaged in an attempted crime. See 17-A M.R.S.A. § 152 (1983). The issue of whether the staff member could be found to be criminally liable for attempting to violate 5 M.R.S.A. § 1890-B would depend in part on whether his conduct in drafting the fundraising letter and furnishing it to the candidate would constitute a "substantial step" toward commission of the crime. See 17-A M.R.S.A. § 152(1) (1983). Whether or not the staff member's conduct would constitute such a substantial step, however, it is our view that, given all of the facts and the other problems with respect to section 1890-B that have been identified above, we should decline to pursue any prosecution for attempted use of a state computer information system in violation of section 1890-B of Title 5 and section 152(1) of the Criminal Code.

Accordingly, the fourth and final category of documents described above also would not constitute a prosecutable violation of § 1890-B.