McGettigan v. Town of Freeport

• Court: Maine Supreme Court
• Writing for the Court: Nancy Mills
• Decision Date: 20 October 2011
• Docket Number: CIVIL ACTION DOCKET NO. CV-10-464
• Citation: McGettigan v. Town of Freeport, CIVIL ACTION DOCKET NO. CV-10-464 (Me. Oct 20, 2011)
• Parties: MARIANNE MCGETTIGAN, et al., Plaintiffs v. TOWN OF FREEPORT, Defendant

MARIANNE MCGETTIGAN, et al., Plaintiffs v. TOWN OF FREEPORT, Defendant

CIVIL ACTION DOCKET NO. CV-10-464

STATE OF MAINE CUMBERLAND SUPERIOR COURT

Dated: November 17, 2010

Dated: October 20, 2011

Date: March 29, 2011

ORDER ON PLAINTIFFS' MOTION FOR TEMPORARY RETRAINING ORDER AND PRELIMINARY INJUNCTION

The plaintiffs filed a motion for a temporary retraining order and preliminary injunction on 10/1/10. They asked the court to restrain the Town of Freeport from transferring its dispatch services to the Town of Brunswick until the underlying complaint is resolved.

The plaintiffs have failed to make the necessary showing to obtain the relief they seek. The affidavit of Marianne McGettigan does not in any way demonstrate that the plaintiffs will suffer irreparable injury if the injunction is not granted. Bangor Historic Track, Inc. v. Dep't of Agric., 2003 ME 140, ¶ 9, 837 A.2d 129, 132; Ingraham v. Univ. of Maine at Orono, 441 A.2d 691, 693 (Me. 1982). "[P]roof of irreparable injury is a prerequisite to the granting of injunctive relief." Bar Harbor Banking & Trust Co. v. Alexander, 411 A.2d 74, 79 (Me. 1980).

Even assuming for the purposes of argument that the defendant acted in a manner inconsistent with the Town Charter and that establishes irreparable harm, the affidavits of Dale Olmstead, Jr. and Gerald Schofield demonstrate that the transfer tookplace on 10/7/10,¹ that the new system is an improvement, and that the harm to the defendant and to the public if the injunction were granted would exceed any harm to the plaintiffs. Bangor Historic Track, ¶ 9, 837 A.2d at 132; Ingraham, 441 A.2d at 693. The entry is

The Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction is Denied.

Nancy Mills

Justice, Superior Court

JUDY METCALF ESQ

EATON PEABODY

PO BOX 9

BRUNSWICK ME 04011

TIMOTHY O'BRIEN ESQ

62 PORTLAND RD

SUITE 17

KENNEBUNK ME 04043

CIVIL ACTION DOCKET NO. CV-|0-464

MARIANNE McGETTIGAN, et al. Plaintiffs

v.

TOWN OF FREEPORT, Defendant

ORDER ON DEFENDANT'S

MOTION TO DISMISS

Before the court is the defendant's motion to dismiss the plaintiffs' first amended complaint. The defendant argues that the court lacks subject matter jurisdiction. M.R. Civ. P. 12(b)(1). For the following reasons, the motion is granted.

BACKGROUND

In early 2010, the Town of Freeport's Town Council agreed to consider the possible outsourcing of the majority of its dispatch services to the Town of Brunswick on a multi-year basis. (First Am. Compl. (Compl.) ¶ 14.) Section 6.10 of the Town of Freeport's Town Charter prohibits the making of a multi-year contract unless the contract is made or approved by ordinance. (Id. ¶¶ 15-16.) On April 6, 2010, the Town of Freeport's Town Council voted to approve the transfer of dispatch services to the Town of Brunswick. (Id. ¶ 23.) The Town of Freeport's Town Council authorized the Town of Freeport Town Attorney to develop a contract for the services between the two Towns and authorized the Town of Freeport's Town Manager to execute the contract. (Id. ¶¶ 26-29.) On June 29, 2010, the Town of Freeport's Town Manager signed a contract with the Town of Brunswick pursuant to the Town of Freeport's TownCouncil's order of April 6, 2010. (Id. ¶ 43.) The contract between the Towns commenced on July 1, 2010 and expires on June 30, 2016. (Id. ¶ 48.)

The Town of Freeport also made a "Capital Payment" to the Town of Brunswick on or about June 29, 2010 in the amount of $122,500.00. (Id. ¶ 44.) Section 6.08 of the Town Charter specifies that supplemental appropriations will be accomplished through the enactment of an ordinance. (Id. ¶ 45.) The Town did not enact an ordinance authorizing the supplemental appropriation of $122,500.00. (Id. ¶ 46.)²

On October 7, 2010, the transfer of dispatch services from the Town of Freeport to the Town of Brunswick went into effect. (Olmstead Aff. ¶ 5; Def.'s Ex. A.) The Town of Freeport no longer employs any dispatchers and the Town of Freeport's fire alarm monitors have been transferred to the Town of Brunswick. (Id. ¶¶ 8, 9, 11.)

On October 12, 2010, the Town of Freeport's Town Council voted on and approved an ordinance, which ratified the Interlocal Cooperation Agreement for Dispatch Services between the Town of Freeport and the Town of Brunswick. (Muldoon Aff. ¶¶ 3-7; Def.'s Ex. B.) The ordinance ratified the expenditure of fundspursuant to the agreement between the Towns, including the $122,500.00 payment made on or about June 30, 2010. (Id.)

On September 16, 2010, the plaintiffs Marianne McGettigan, Donald Rice and Judith Blanchard filed a complaint for declaratory relief. On October 1, 2010, the plaintiffs filed an amended complaint for declaratory and injunctive relief. Plaintiff McGettigan is a resident of the Town of Freeport and a registered voter who pays taxes to the Town of Freeport. (Am. Compl. ¶ 3.) She is in individual with a disability who "has utilized dispatch services in the past and is fearful and concerned that the outsourcing of this vital function to the Town of Brunswick will have a direct and material adverse impact on her." (Id. ¶ 4.) Plaintiff Rice is also a resident, registered voter and pays taxes to the Town of Freeport. (Id. ¶ 5.) He "is an individual with a medical condition, has utilized the dispatch services of the Town of Freeport in the past, participates in the Reassurance Plan operated on a daily basis by the dispatch services of the Town of Freeport and is fearful and concerned that the outsourcing of this vital function to the Town of Brunswick will have a direct and material adverse impact on him." (Id. ¶ 6.) Plaintiff Blanchard resides in the Town of Freeport, is registered to vote, and pays taxes to the Town of Freeport. (Id. ¶ 7.) The defendant Town of Freeport moves to dismiss the amended complaint on the grounds that the case is moot and, alternatively, that the plaintiffs lack standing to sue.³

DISCUSSION

1. Standard of Review

"[W]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." M.R. Civ. P. 12(h)(3). "A party may challenge a courf s subject matter jurisdiction at any time during the proceedings." Strout, Payson, Pellicani, Hokkanen, Strong &: Levine v. Barker, 2001 ME 28, ¶ 7, 765 A.2d 994, 996. "When a motion to dismiss is based on the court's lack of subject matter jurisdiction, we make no favorable inferences in favor of the plaintiff such as we do when reviewing a motion to dismiss for failure to state a claim upon which relief can be granted." Tomer v. Me. Human Rights Comm'n, 2008 ME 190, ¶ 9, 962 A.2d 335, 338. Further, "the 'court does not draw inferences favorable to the pleader, but should consider any material outside the pleadings submitted by the pleader and the movant.'" Davric Me. Corp. v. Bangor Historic Track, Inc., 2000 ME 102, ¶ 6, 751 A.2d 1024, 1028 (quoting Hodgdon v. U.S., 919 F. Supp. 37, 38 (D. Me. 1996)).

2. Mootness

A case is moot "if the passage of time and the occurrence of events deprive the litigant of an ongoing stake in the controversy although the case raised a justiciable controversy at the time the complaint was filed." Carroll F. Look Constr. Co., Inc. v. Town of Beals, 2002 ME 128, ¶ 6, 802 A.2d 994, 996 (quoting Halfway House, Inc., 670 A.2d at 1379-80). Courts should not address issues "which by virtue of valid and recognizable supervening circumstances have lost their controversial vitality." Leigh v. Superintendent, Augusta Mental Health Inst, 2003 ME 22, ¶ 6, 817 A.2d 881, 883 (quoting In re Faucher, 558 A.2d 705, 706 (Me. 1989)). The test for mootness is "whether there remain sufficient practical effects flowing from the resolution of the litigation tojustify the application of limited judicial resources." Halfway House, Inc., 670 A.2d at 1380.

The plaintiffs' claims in the amended complaint are moot because the defendant approved the transfer of dispatch services by ordinance, effectively remedying their procedural errors.⁴ Section 6.10(b) of the Town of Freeporf s Town Charter states that the Town may enter into a multi-year contract "provided that such action is made or approved by ordinance." (Charter § 6.10(b); Def.'s Opp. to Pl.'s Mot. for TRO, Ex. C. (emphasis added); see also Am. Compl. ¶ 15.) The Town of Freeport ratified its decision to authorize the transfer of dispatch services on October 12, 2010.⁵ See Cohenv. Ketchum, 344 A.2d 387, 393 (Me. 1975) (appeal dismissed as moot because the holding of election and voter approval of bond issue rendered the question of whether the Court should enjoin the issuance of future warrants calling for future elections hypothetical and academic).⁶

3. Standing⁷

The defendant asserts that plaintiffs cannot maintain this suit because they lack standing, relying on the "established rule that to have standing in a suit against a municipal government, a single plaintiff must claim 'special injury' or seek 'preventive relief.'" McCorkle v. Town of Falmouth, 529 A.2d 337, 338 (Me. 1987). "At a minimum, '[s]tanding to sue means that the party, at the commencement of the litigation, has sufficient personal stake in the controversy to obtain judicial resolution of thatcontroversy.'" Mortgage Elec. Reg. Svs. v. Saunders, 2010 ME 79, ¶ 7, 2 A.3d 289, 293-94 (quoting Halfway House Inc., 670 A.2d at 1379).

In this case, plaintiffs McGettigan and Rice have standing to sue. They allege a particularized injury because they suffer from a disability and a medical condition and have utilized the dispatch transfer services in the past. (Am. Compl. ¶¶ 4, 6.) Plaintiffs McGettigan and Rice are not simply members of the general public, but actual users of the dispatch services. See Fitzgerald v. Baxter State Park Auth., 385 A.2d 189, 197 (Me. 1978). Additionally, as individuals with disabilities, there is a substantial likelihood that they will use dispatch services in the future. See id. Plaintiff Rice also has standing to sue because he...