Fair Elections Portland, Inc. v. City of Portland

• Decision Date: 17 June 2021
• Docket Number: Docket: Cum-20-159
• Citation: 252 A.3d 504
• Parties: FAIR ELECTIONS PORTLAND, INC., et al. v. CITY OF PORTLAND
• Court: Maine Supreme Court

252 A.3d 504

FAIR ELECTIONS PORTLAND, INC., et al.

v.CITY OF PORTLAND

Docket: Cum-20-159

Supreme Judicial Court of Maine.

Argued: February 11, 2021

Decided: June 17, 2021

Benjamin Gaines, Esq., Gaines Law, LLC, Portland, and John R. Brautigam, Esq. (orally), John R. Brautigam, Esq., LLC, Falmouth, for appellant Fair Elections Portland, Inc., et al.

Jennifer L. Thompson, Esq. (orally), and Danielle West Chuhta, Esq., City of Portland, Portland, for appellee City of Portland

Panel: MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.

HORTON, J.

[¶1] Fair Elections Portland, Inc., and thirteen voters of the City of Portland¹ (collectively FEP) appeal from a judgment of the Superior Court (Cumberland County, MG Kennedy, J. ) affirming a decision of the Portland City Council not to submit to the voters a citizen-initiated ballot question that proposed a change to the City of Portland's charter. Because the City Council failed to make findings of fact to explain its decision and enable appellate review, we must vacate the judgment and remand to the City Council for further proceedings.

I. BACKGROUND

A. The Home Rule Act

[¶2] To provide context for the factual background in this case, we first review the statutory process for citizen-initiated changes to municipal charters.

[¶3] The Maine Constitution grants to the inhabitants of all municipalities what is known as home rule power: the "power to alter and amend their [municipal] charters on all matters, not prohibited by Constitution or general law, which are local and municipal in character." Me. Const. art. VIII, pt. 2, § 1. The same provision requires the Legislature to prescribe procedures for municipalities to effectuate the home rule power. Id. The set of statutes that the Legislature has enacted, see 30-A M.R.S. §§ 2101 - 2109 (2021) (collectively the Home Rule Act),² has the express purpose of "implement[ing] the home rule powers granted to municipalities" by the Maine Constitution. 30-A M.R.S. § 2101. The Home Rule Act sets forth procedures for amending and revising municipal charters and for the establishment and operation of charter commissions. 30-A M.R.S. §§ 2102 - 2105.

[¶4] The statute does not include definitions of a charter "amendment" or a charter "revision," nor does it expressly identify what differentiates one from the other. However, it does distinguish between the two by setting forth different processes for their adoption. See generally 30-A M.R.S. § 2102 (governing charter revisions); 30-A M.R.S. § 2104 (governing charter amendments). The central difference in process is that a proposed amendment must be submitted directly to the voters in a municipal election, see 30-A M.R.S. §§ 2104(1)-(2), 2105(2), whereas a proposed revision can only be submitted to the voters upon recommendation of a charter commission, see 30-A M.R.S. §§ 2102(1)-(2), 2103(5)(D), (6), 2105(1).

[¶5] Either process can be initiated by the municipal officers—in this case, city councilors—or by municipal voters. 30-A M.R.S. §§ 2102(1)-(2), 2104(1)-(2) ; see 30-A M.R.S. § 2001(10) (2021). For the voter-initiated process, the first step is for any five voters of the municipality to file an affidavit with the municipal clerk setting forth their proposal, stating that they constitute a "petitioners’ committee," and requesting that the clerk issue petition forms for the committee to circulate. 30-A M.R.S. §§ 2102(3)(A), 2104(2)-(3).

[¶6] If the petitioners’ committee is proposing a charter revision, the petition forms must state that those signing the petition are requesting that the municipal officers establish a charter commission, 30-A M.R.S. § 2102(3)(B)(1), because revisions can be submitted to the voters only through a recommendation by a charter commission, 30-A M.R.S. §§ 2102(1)-(2), 2103(5)(D), (6), 2105(1). If instead the petitioners’ committee is proposing a charter amendment, the petition forms must state that those signing the petition are requesting that the municipal officers "provide for the amendment of the municipal charter," which is accomplished by placing the proposed amendment on a ballot. 30-A M.R.S. § 2104(2)-(3).

[¶7] A petitioners’ committee proposing a charter amendment also has the option to request that the petition forms include the following language:

Each of the undersigned voters further requests that if the municipal officers determine that the amendment set out below would, if adopted, constitute a revision of the charter, then this petition shall be treated as a request for a charter commission.

30-A M.R.S. § 2104(4). If a petition that includes this optional language garners enough voter signatures and meets the other statutory requirements, see 30-A M.R.S. §§ 2102(3)(B), 2104(2)-(3), the municipal officers must submit it to the voters either as a proposed charter amendment or as a proposal to form a charter commission, depending on whether the municipal officers determine that the proposed change would constitute an amendment or a revision, 30-A M.R.S. § 2104(2), (4).

[¶8] After the municipal clerk issues petition forms to the petitioners’ committee and the petition is circulated for voter signatures, the signed forms are submitted to the clerk, who determines whether they comply with the signature and other requirements of the statute. 30-A M.R.S. §§ 2102(3)(C), (4), 2104(3). In the case of a proposed charter amendment, after holding a public hearing on the proposal, the municipal officers must submit to the voters, at a regular or special election, the question of whether to approve the proposed amendment. 30-A M.R.S. §§ 2104(2), (5)(A), (C), 2105(2).

[¶9] If the proposal is instead for a charter revision, the question that the municipal officers must submit to the voters is whether to convene a charter commission. 30-A M.R.S. § 2102(2), (4), (5). If the voters decide that a charter commission should be established, commission members must be elected and appointed, and the commission must hold public hearings and issue a preliminary report. 30-A M.R.S. § 2103(1)-(5). Within twelve months—or up to two years, if an extension is granted—the commission must submit to the municipal officers a final report that contains the text of any recommended charter revision. 30-A M.R.S. § 2103(5)(D)-(E). The municipal officers must then submit to the voters the question of whether to adopt any revision recommended by the commission. 30-A M.R.S. §§ 2103(6), 2105(1).

[¶10] The Home Rule Act lacks specificity in two respects particularly pertinent to this case. It does not expressly explain the difference between a charter amendment and a charter revision. It also does not specify whether the municipal officers may determine that a voter-initiated petition that lacks the optional language and purports to propose a charter amendment in fact proposes a charter revision.

B. Procedural History

[¶11] The following procedural facts, which are undisputed, are drawn from the administrative record filed in the Superior Court.³ In April 2019, by filing an affidavit with Portland's City Clerk, five Portland voters initiated the process for circulating a petition in support of placing, on an upcoming municipal ballot, what they labeled as a proposed amendment to Portland's charter. See 30-A M.R.S. §§ 2102(3)(A), 2104(3).

[¶12] Their proposed charter modification read as follows:

Article IV of the City Charter of the City of Portland shall be amended by adding the following section immediately after Section 11, as follows:

Section 12. Public Financing of Municipal Elections

The city council shall establish and fund a mechanism providing public campaign funds to qualified candidates for mayor, city council, and school board. The mechanism must provide sufficient funds to allow candidates who meet qualifying criteria to conduct competitive campaigns, must be voluntary, must limit the amount of private funds a candidate may raise, must only be available to candidates who demonstrate public support, and must be limited to candidates who enter into a binding agreement not to accept private contributions other than those allowed by the public funding program. The mechanism must be available by the 2021 municipal elections.

[¶13] Although the voters characterized the proposed modification as an amendment, they exercised their statutory option to request that their petition be treated as a request for a charter commission in the event that the City Council determined that the petition actually proposed a charter revision. See 30-A M.R.S. § 2104(4).

[¶14] Upon receiving the voters’ affidavit, the City Clerk created petition forms for circulation and provided them to the petitioners’ committee, see 30-A M.R.S. § 2102(3)(B), but the forms lacked the requested optional language. Despite this omission, the supporters of the petition proceeded to circulate the forms as provided.

[¶15] In August 2019, the City Clerk certified that the petition had been returned containing a sufficient number of signatures for the measure to be placed on a ballot. See 30-A M.R.S. § 2104(2)-(3). The City Council scheduled a public hearing on the matter for September 4, 2019. See 30-A M.R.S. § 2104(5)(A).

[¶16] Before the public hearing, the City's attorney submitted a memorandum advising the City Council that the petition proposed a change to the charter that, if enacted, would involve "the type of fundamental change that a [c]harter [c]ommission must review" because the petition proposed a charter revision rather than a charter amendment. Attorneys for Fair Elections Portland, Inc., submitted a memorandum to the City Council taking the opposite position and contending that the City Council was required to submit the question of whether to adopt the proposed charter modification directly to the voters.

[¶17] At the public hearing, after listening to comments from the public, the councilors debated whether the measure constituted a charter amendment or a charter revision. They also debated whether, if the measure were a...