Bird v. Town of Old Orchard Beach

• Decision Date: 27 February 1981
• Citation: 426 A.2d 370
• Parties: John R. BIRD v. TOWN OF OLD ORCHARD BEACH, et al.
• Court: Maine Supreme Court

Page 370

426 A.2d 370

John R. BIRD v. TOWN OF OLD ORCHARD BEACH, et al.

Supreme Judicial Court of Maine.

Argued Sept. 11, 1980.

Decided Feb. 27, 1981.

John R. Bird, pro se (orally).

Bernstein, Shur, Sawyer & Nelson, F. Paul Frinsko (orally), Geoffrey H. Hole, Portland, for defendants.

Before McKUSICK, C. J., GODFREY, ROBERTS and NICHOLS, JJ. and DUFRESNE, A. R. J.

DUFRESNE, Active Retired Justice.

In this appeal John R. Bird, the plaintiff-appellant, seeks reversal of the summary judgment entered in the Superior Court, York County, for the defendant-appellee Town of Old Orchard Beach, the members of the Town Council and the Treasurer of the Town. We affirm the judgment.

On September 15, 1977, the Old Orchard Beach Town Council passed a resolve authorizing the issuance of general obligation securities of the Town of Old Orchard Beach in a total principal amount not to exceed Four Hundred Thousand Dollars ($400,000.00) for the purpose of implementing a capital improvement program. Pursuant to a provision of the town charter, certain Old Orchard Beach residents filed with the Town Clerk a petition signed by the required number of the town's registered voters requesting submission of the foregoing resolve to a referendum vote. At a special town election held on December 12, 1977, the voters of the Town of Old Orchard Beach voted against the bond issue.

On December 28, 1977, the Town Council, by unanimous vote and without significant discussion, passed a second resolve authorizing a bond issue to implement the identical capital improvement project in the total principal amount not to exceed Three Hundred and Ninety-Two Thousand Dollars ($392,000.00). The present appellant brought suit to enjoin the issuance of the bonds under the second resolve, but, before court adjudication of the matter, the Town Council at a special council meeting held on January 10, 1979, voted to rescind the December 28, 1977 resolve and to authorize a third bond issue in the total principal amount not to exceed Three Hundred and Ninety Thousand Dollars ($390,000.00). Again, the vote on the third resolve was unanimous and minimal debate took place.

On January 31, 1979 the appellant filed with the Superior Court the present suit to block the third bond issue. He brings his action as a resident, citizen, voter and taxable inhabitant of Old Orchard Beach. ¹ In his complaint, Bird sought a declaratory judgment to the effect that the action of the Old Orchard Beach Town Council on January 10, 1979, authorizing a bond issue nearly identical to the bond issue defeated by the voters in the 1977 referendum election, was ultra vires. He also bases his claim for relief on the ground, so he alleged, that the Town Council had made the actual decision on the bond issue in secret "executive" sessions prior to the January 10, 1979 meeting, and, thus, the Town Council's action was in violation of Maine's Freedom of Access Law (1 M.R.S.A. §§ 401-410) and void.

The appellees moved for summary judgment, with supporting memoranda and affidavits, including an affidavit by Town Councilman Clarence L. Roberts, wherein Mr. Roberts stated under oath that, based on personal knowledge, no secret or illegal executive sessions took place as alleged in Mr. Bird's complaint; that in fact, no clandestine meeting, conference, or meeting held on private property without proper notice and ample opportunity for attendance by the public, took place; that the only meeting that did take place was on January 10, 1979, the minutes of which are attached as Exhibit B, and that at said meeting various members of the public and the press were present. Mr. Bird filed a counter affidavit which was fatally defective for non-compliance with the requirements of Rule 56 of the Maine Rules of Civil Procedure. The Superior Court decided both issues in favor of the appellees and granted their motion for summary judgment. In this, there was no error.

1. Council's Power to Authorize Third Bond Issue

Summary judgment was appropriate on the issue of the Old Orchard Beach Town Council's power to authorize the third bond issue. Disregarding for the time being the question of the alleged violation of Maine's Freedom of Access Law, the facts surrounding the three bond issues and the referendum election are not in dispute. The motion for summary judgment presented the Superior Court with a question of law, whether the Town Council, on January 10, 1979, had the power to adopt a valid resolve essentially duplicating the previous resolve of September 15, 1977 which had been disapproved by the town's voters in referendum election held on December 12, 1977. Where it is clearly established that no genuine triable issue of any material fact exists and that a party is entitled to a judgment as a matter of law, summary judgment is appropriate. Rule 56(c), M.R.Civ.P.; Haskell v. Planning Board of Town of Yarmouth, Me., 388 A.2d 100 (1978). When facts before the court so conclusively preclude a party's recovery that the court can conclude, as a matter of law, that only one conclusion of fact is possible, then the use of the summary judgment procedure is proper. Cardinali v. Planning Board of Lebanon, Me., 373 A.2d 251, 255 (1977).

Initially, we note that municipalities in relation to matters which are local and municipal in character have been granted "home rule" so-called by the Constitution of the State and that, by virtue thereof, they possess broad powers of legislation and administration of their affairs, provided there exists no express or implied prohibition by the Constitution or the general law. ² The statutory implementation of the constitutional home rule provision so confirms. ³ See Schwanda v. Bonney, Me., 418 A.2d 163, 167 (1980). Thus, reading the constitutional and statutory provisions together, we can say that municipalities in local and municipal affairs may exercise any power or function granted them by the State Constitution, the general law or the municipal charter, not otherwise prohibited or denied expressly or by clear implication by the constitution, the general law, or the charter itself.

No legislative enactment or constitutional provision denies a municipal corporation acting through its officers the power to reenact ordinances or resolves disapproved in voter referendum. It is necessary, then, to look to the Old Orchard Beach Town Charter itself to determine whether the charter grants the power to reenact such voter-rejected ordinances and resolves or prohibits the same.

Article III, section 12 of the Old Orchard Beach Town Charter provides that the Town Council shall exercise all powers vested in the municipal corporation, "so far as shall conform to the provisions of this Charter." ⁴ Thus, the Council's power is plenary within the limits fixed by the Charter.

But, the appellant contends that Article VIII of the Charter impliedly limits the power of the Council to reenact ordinances or resolves once rejected by the voters in referendum elections. Section 1 of Article VIII is entitled "Petition for Overrule of Action of Council," and it provides, in relevant part:

The following shall be subject to overrule by referendum as follows:

c. Orders or resolves authorizing bond issues of $50,000 or more of capital improvements or capital equipment.

e. If, within 20 days after the enactment of any such ordinance, order or resolve, a petition signed by not less than 10% of the registered voters of the Town of Old Orchard Beach is filed with the Town Clerk requesting its reference to a referendum, the Council shall call a public hearing to be held within 30 days from the date of filing of such petition with the Town Clerk and shall, within 14 days after said public hearing call a special town election for the purpose of submitting to a referendum vote the question of adopting or repealing such ordinance, order or resolve. Pending action by the voters of the town, the referred ordinance, order or resolve shall be suspended from going into operation until it has received a vote of the majority of the voters voting on said question.

The above-quoted provision unquestionably "suspended" operation of the first bond issue; the 1977 resolve was referred to town voters, a majority of whom declined to approve it on December 12, 1977. The charter, however, is silent regarding the power or lack of power in the Town Council forever thereafter to enact a new ordinance essentially identical to one "overruled" in a referendum election. If the charter is to be regarded as prohibiting a second valid enactment, there must be something in the nature of the referendum process itself that bars such legislative action.

The appellant supports his contention to the effect that the repassage of the second and third bond issues in the instant case was beyond the power of the Council, by quoting the rule stated in McQuillin on Municipal Corporations, Vol. 5, Rev. Vol. 1969, § 16.53, at page 208, as follows:

Thus, it has been said that the legislative body has no power to pass the same ordinance again, or an ordinance in all essential features like the one against which the petition protested. This would plainly be to nullify the referendum provisions of the charter. But it is equally clear that the council is not prevented from legislating on the subject matter of the dead ordinance. It doubtless may, if it acts in good faith and with no intent to evade the effect of the referendum petition, pass an ordinance covering the same subject matter that is essentially different from the ordinance protested against, avoiding perhaps the objections made to the first ordinance. ⁵

We are more impressed by the general rationale developed by the Supreme Court of New Jersey in Cornell v. Mayor and Council of Borough of Watchung, 49 N.J. 235, 229 A.2d 630 (1967), as follows:

We find no statutory authority limiting the discretion of the municipal council in passing this ordinance and, unless the Legislature...