Superior Court Supports Portland’s Home Rule Argument

Justice Kennedy of the Cumberland County Superior Court recently ruled in favor of the City of Portland, giving significant deference to a municipality’s interpretation of its own charter. In the case of Fair Elections Portland v. City of Portland, the Court held that in a disputed factual context the judiciary would defer to the City’s determination that a petition that had been circulated for signatures and presented to the Council to put to the people for a vote, was a charter revision, not an amendment. A revision requires a charter commission and a more extensive process, whereas an amendment may simply be voted on at a municipal election if petitions are properly submitted. The Court implied that she was not convinced that was the proper result but felt constrained due to the deferential standard of review and separation of powers. The continuing lesson is that a municipality is not always compelled to put questions out to vote even if all other standards are met to call for an initiative or referendum. The question may be illegal, inconsistent with the existing charter, or otherwise improper, as here where it purported to be an amendment but was determined to be a revision.

New Deadline for Calling Secret Ballot Elections in Maine

One of those deadlines municipal officials tend to know off the top of their heads is that referendum elections must be ordered at least 45 days in advance. This has now changed! The Maine Legislature in its last session changed the filing deadline for nomination papers from 45 days to 60 days prior to the election. Because the deadline for calling a referendum election is, under 30-A M.R.S.A. § 2528(5), the same as the deadline for filing nomination papers, both now fall on the 60th day prior to the election. This new deadline applies both to referendum questions ordered by the municipal officers and those requested by citizens’ petition. If your town has a different deadline under a local charter, that deadline will still apply regardless of this law change.

Maine Superior Court Upholds Refusal to Honor Citizens’ Petition

The Town of Brunswick recently prevailed in a case regarding the Town Council’s decision to sell a waterfront property that had been acquired through tax foreclosure. The plaintiffs, several citizens, had presented a petition to the Council which sought a referendum vote to enact an ordinance designating the property as a municipal park. However, the Council had already considered designating the property as a park and ordered instead to put it out to sale. Based on our advice, acting as the town's attorney, the Council chose not to put the question to referendum because it sought to overturn a Council order and there was no authority to do so under the charter. 

This case is a good reminder that municipal charters can strictly limit—or even eliminate—the right to citizens’ petition otherwise available under Maine law. Brunswick’s charter allows only ordinances, and not orders, to be overturned by petition. This makes sense because the Council needs to be able to transact the Town’s more routine business without concern that its every action might be overturned through referendum. Although the petitioners argued that they were seeking to enact a new ordinance, not to overturn an order, the Maine Superior Court justice found that the petition did seek to overturn a Council order and was properly barred. The Court also denied the appeal on the grounds that the Town had already sold the property by the time the case was heard.

Maine Legislature Votes on Marijuana Bill Veto

Updating our previous post on the fate of LD 1650, Governor LePage last week vetoed the bill and set the stage for action at the State House on Monday, where the Legislature was deciding whether to override the Governor’s veto. A two-thirds vote in both the House and Senate was required to overcome a veto.

We now know the result: the veto has been sustained, with the House voting 74-62 to uphold the Governor’s action.

A vote to override the Governor’s veto would have meant that the bill, which provided a framework for implementing the legalization of recreational marijuana approved by voters last November, would have become law and provided some flexibility for municipalities to regulate recreational marijuana. Today’s vote at the Legislature, however, means that the legalization of recreational marijuana will continue to be in legal limbo for the foreseeable future.

Marijuana Bill Awaits Veto Decision

LD 1650, An Act to Amend the Marijuana Legalization Act, was passed in both the House and the Senate on October 23, 2017. Governor LePage has until November 2, 2017, to sign the bill, veto the bill or allow it to become law without his signature. The 77-page bill comprehensively rewrites the legalization bill enacted by Citizens’ Referendum now one full year ago. Legalization of marijuana has continued to be in a legal limbo. It is legal to grow and possess certain amounts of marijuana, but it is not legal to buy or sell it, even privately.

As a municipality there are reasons to be in favor of this amended law. It now contains an opt-in provision for municipalities rather than an opt-out provision. Because of this, some of the organizations backing legalization have actually opposed the bill because they argue that it is more difficult for a municipality vote to opt-in to a law than it is to opt-out. The bill also provides economic incentives to those municipalities who participate in the program and do not opt-out. The law provides for a number of different types of licensing, including retail sales, grow only and testing facilities. A licensee may hold the first two licenses, but the testing facility must be independent. If the governor does not sign the law, there will be a number of challenging legal issues arising.

The bill also sets more appropriate tax rates, limits properties to 18 plants growing, closes “gift” and “delivery” scams and allows employers to hire and fire based on adult use of legal marijuana.