Cohen v. Ketchum

• Decision Date: 19 September 1975
• Citation: 344 A.2d 387
• Parties: Herman COHEN v. Jack S. KETCHUM et al. Herman COHEN et al. v. Edna L. WENTWORTH et al. Herman COHEN et al. v. MAINE SCHOOL ADMINISTRATIVE DISTRICT NO. 71 et al.
• Court: Maine Supreme Court

Page 387

344 A.2d 387

Herman COHEN v. Jack S. KETCHUM et al.

Herman COHEN et al. v. Edna L. WENTWORTH et al.

Herman COHEN et al. v. MAINE SCHOOL ADMINISTRATIVE DISTRICT NO. 71 et al.

Supreme Judicial Court of Maine.

Sept. 19, 1975.

Murray, Plumb & Murray by Peter L. Murray, Portland, for plaintiffs.

Drummond, Wescott & Woodsum by Hugh G. E. MacMahon, Harry R. Pringle, Portland, David Roseman, Asst. Atty. Gen., Augusta, for defendants.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK, ARCHIBALD and DELAHANTY, JJ.

WERNICK, Justice.

Before us are appeals from judgments entered in three civil actions separately instituted in the Superior Court (York County) and seeking various relief concerned, primarily, with a $5,200,000 school construction bond issue and its incidents.

The appeals were consolidated for presentation to this Court and we deal with them in a single opinion.

I.-The History of the Litigation

On December 30, 1974 the Board of Directors of Maine School Administrative District No. 71 (hereinafter SAD No. 71) ¹ determined upon a school construction bond issue and voted to seek approval of it by the voters of the District in an election called for January 22, 1975.

I-A

Four days thereafter, on January 3, 1975, Herman Cohen instituted the first of the three actions under consideration. He sued as the only named plaintiff alleging himself a resident and taxpayer of the Town of Kennebunk, Maine. His subsequent motion to amend the complaint to add as parties plaintiffs ten other resident taxpayers of the Town of Kennebunk was denied by the presiding Justice.

The defendants in the action were the School District itself; Jack S. Ketchum, Jack L. Libby, Judith Dow, Robert E. Lewia, Daniel B. Beard, Frances Landry, David L. Sutter, Richard T. Littlefield and Theodore Towne, individually and in their capacities as members of the Board of Directors of the District; Arthur K. Hedberg, Jr., individually and as Superintendent of Schools of SAD No. 71; and the Maine State Board of Education.

The complaint alleged that the District School Board was apportioned in violation of the 'one person-one vote' principle controllingly prescribed by 20 M.R.S.A. § 301, as amended. Plaintiff sought a declaration of malapportionment, an order for reapportionment, and an injunction prohibiting, pending reapportionment, issuance of the proposed school construction bonds.

I-B

On January 14, 1975 Cohen, this time joined by ten other resident taxpayers of the Town of Kennebunk (who were the same persons Cohen had moved to add as plaintiffs in the first action), sued Edna L. Wentworth, individually and in her capacity as Clerk of the Town of Kennebunk, F. Herbert Severance, individually and in his capacity as Clerk of the Town of Kennebunkport, Maine, School Administrative District No. 71, and Arthur K. Hedberg, Jr., individually and as Superintendent of Schools of SAD No. 71. ²

In this second action plaintiffs alleged, as had Cohen in the first action, that the SAD No. 71 Board of Directors was malapportioned. They added a second claim that the warrant calling for the January 22, 1975 election was fatally defective.

Plaintiffs asserted that the illegalities of a malapportioned Board acting to call the election by a fatally infirm warrant justified a restraining order against the imminent election and an injunction against issuance, pending reapportionment of the Board, of any warrant calling for any other election to approve any other school construction bond issue.

The presiding Justice refused to restrain the election. It was held on January 22, 1975 and produced voter approval of a $5,200,000 school construction bond issue.

I-C

Two days after the election, on January 24, 1975, the same persons who were the plaintiffs in the second action instituted the last of the three actions before us. They sued Maine School Administrative District No. 71, and Arthur K. Hedberg, Jr., individually and in his capacity as Superintendent of Schools of SAD No. 71. ³ The complaint reasserted the claims of illegality made in the second action: malapportionment of the School Board and a fatally defective warrant for the call of the election. Plaintiff sought a declaration adjudicating these infirmities and an injunction, pending reapportionment, against issuance not only of the bonds already approved but also any other school construction bonds.

Concluding that the SAD No. 71 Board of Directors was validly apportioned and the warrant calling for the election to approve the bond issue was proper, the presiding Justice denied all relief sought in each of the three actions.

II.-Interrelated Matters of Standing, Mootness and Jurisdiction

We direct preliminary attention to various questions of standing, mootness and jurisdiction precipitated by the different postures in which the cases are before us.

II-A

The first action (Cohen v. Ketchum, et al)

In this action, as previously mentioned, a single named plaintiff has sued as a resident taxpayer of the Town of Kennebunk. Since this sole plaintiff has neither alleged nor proved that he is a duly qualified voter, he has neither alleged nor proved that he suffered such damage as, under Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) relative to malapportionment claims, may constitute special damage:-that the alleged malapportionment has diluted the power of plaintiff's vote relative to that of other voters.

As a plaintiff suing without special injury, Cohen lacks standing to achieve any form of remedial relief concerning allegedly illegal action by a local governmental body to which he has the relationship of a resident taxpayer. If plaintiff is to have relief at all, he must show himself entitled to preventive relief. Blodgett v. School Administrative District 73, Me., 289 A.2d 407 (1972).

The question remains, however, whether even preventive relief may be afforded to the plaintiff, Cohen, insofar as, without suffering special damage, he has sued as the only named plaintiff and is not joined by at least nine other resident taxpayers of the local governmental unit alleged to be engaging in illegal activity.

In Eaton v. Thayer, 124 Me. 311, 128 A. 475 (1925) more than ten taxpayers had sued, invoking the so-called special equity enabling 'ten taxpayers' statute (then R.S. 1916, Chapter 82 § 6, par. XIII). ⁴ Because the illegality alleged to inhere in the governmental action under attack was of a kind other than that delineated in this special statute, it was held inapplicable to the case. The Court concluded, however, that this deficiency would not defeat the standing of plaintiffs to have preventive relief pursuant to the full equity jurisdiction embodied in R.S.1916, Chapter 82 § 6, par. XIV (reflecting the grant of full equity jurisdiction originally conferred in 1874 by P.L.1874, Chapter 175). The Court said:

'Since this enlargement of the equity powers . . . jurisdiction to grant preventive relief has been regarded as not limited as by Paragraph XIII (the so-called 'ten taxpayers' special equity enabling statute).' (p. 314, 128 A. p. 476) (emphasis supplied)

In Tuscan v. Smith, 130 Me. 36, 153 A. 289 (1931) an action by 'ten taxable inhabitants' of the Town of Skowhegan claimed that a lease given by the Town to one of the defendants and assigned to another of the defendants was illegal because (1) one of the selectmen was pecuniarily interested in the grant of the lease and its assignment, and (2) the lease had been

'knowingly made for a less rental than could have been obtained from other parties . . . .' (p. 38, 153 A. p. 291)

Plaintiffs sought cancellation of the lease and

'an injunction against the lessee or his assignee taking possession of the demised premises.' (p. 38, 153 A. p. 291)

As in Eaton v. Thayer, the Court in Tuscan v. Smith, because of the nature of the illegality asserted, was obliged to hold the special 'ten taxpayers' equity enabling statute inapplicable. Again, however, as in Eaton v. Thayer, the Court held that this was not fatal to plaintiffs' maintenance of the action since once 'full equity powers' had been conferred, according to

'the weight of authority . . . taxable inhabitants (without special damage) are not barred from maintaining a bill in their own names in a proper case.' (pp. 43, 44, 153 A. p. 293)

As to the criteria of a 'proper case' Tuscan v. Smith stated:

'Our court has very clearly defined the limits of such right. It has held that it should be restricted to an application for preventive relief, and that individual taxpayers have not the right to apply for remedial relief after the commission of an illegal act, where the act is one which affects the entire community and not specifically the individual bringing the bill.' (p. 44, 153 A. p. 293)

In Eaton v. Thayer and Tuscan v. Smith-as in all subsequent cases which have addressed the standing issues here under consideration (including Blodgett v. School Administrative District 73, Me., 289 A.2d 407 (1972))-the named plaintiffs happened to be ten or more resident taxpayers. For this reason, uncertainty has persisted whether fewer than ten resident taxpayers-or, indeed, one such named plaintiff-will have standing to sue, without special damage, to achieve preventive relief by invoking the 'full equity powers' of Maine Courts as currently embodied in 14 M.R.S.A. § 6051 (13).

We now have occasion to remove this uncertainty and clarify the law of Maine.

The underlying logic of the reasoning in Eaton v. Thayer and Tuscan v. Smith is that once full equity jurisdiction was conferred upon Maine Courts (after 1874), the need to establish the special conditions required by the so-called 'ten taxpayers' statute had been superseded. In practical effect, in short, the restricted equity jurisdiction conferred by the 'ten taxpayers' statute had become a vestigial relic of the step-by-step evolution of equity jurisdiction in this State which ultimately culminated, in 1874, in...