Fair Elections Portland, Inc. v. City of Portland

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2021 ME 32Docket: Cum-20-159
Argued: February 11, 2021
Decided: June 17, 2021
Panel: MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.
FAIR ELECTIONS PORTLAND, INC., et al.
v.
CITY OF PORTLAND
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.
1 The thirteen voters are Betress D. Ako, Krystian W. Bigosinski, April D. Fournier, Christopher
P. Hafford, Megan L. Lauer, Kimberly A. Rich, Philip T. Steele, Kathryn H. Sykes, Joanna J. Tatlock,
Maria E. Testa, Anna J. Trevorrow, Scott Vonnegut, and Damon R. Yakovleff.
2
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.
Section 2102 of the Home Rule Act has been amended since the time period relevant to this case,
2
but the amendments do not affect our analysis here. See P.L. 2019, ch. 149, §§ 1-2 (effective
Sept. 19, 2019) (codified at 30-A M.R.S. § 2102(3)(B), (5)(A) (2021)). For consistency, all citations to
the Home Rule Act in this opinion are to the 2021 version of the Maine Revised Statutes.
3
[¶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).
4
[¶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
5
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
6
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).
3 Ordinarily, in an appeal from a judgment on a complaint for review of governmental action filed
pursuant to M.R. Civ. P. 80B or 80C, we review the facts found by the person or entity that made the
decision at issue. E.g., City of Old Town v. Expera Old Town, LLC, 2021 ME 23, ¶ 13, --- A.3d ---. As we
discuss infra, the record in this case does not include any stated findings by the municipal
decision maker at issue, the Portland City Council.
7
[¶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
8
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
9
revision, the City Council should treat the petition as requesting a charter
commission given the omission from the petition forms of the optional
language reflecting that request. The City Council voted (7-2) not to put the
measure to the voters as a charter amendment and then voted to postpone the
matter until a meeting on September 16, 2019. At that meeting, after further
debate, the City Council voted (5-3) not to “send [the petition question] out as
a revision to the voters.” The City Council then voted again (6-2) not to put the
measure to the voters as a charter amendment and finally voted (6-2) to
postpone the matter indefinitely. The City Council noted these votes in its
minutes, but it did not make findings or otherwise explain its decisions.
[¶18] In September 2019, FEP brought this action in the Superior Court,
challenging the City Council’s decision not to put the proposed charter
modification to the voters as a charter amendment. The operative pleading for
purposes of appellate review is FEP’s first amended complaint, filed in
October 2019.4 According to that complaint, at least ten of the individual
plaintiffs were Portland voters who had signed the petition. FEP sought judicial
review of the City Council’s decision pursuant to M.R. Civ. P. 80B (Count 1) and
4Also in October 2019, on its own initiative and despite having tabled the petition, the City Council
voted to place on the ballot for the June 2020 municipal election a question asking voters whether a
charter commission should be established. See 30-A M.R.S. § 2102(1), (5) (2021).
10
asserted independent claims seeking a declaratory judgment and injunctive
relief (Count 2) and alleging violations of state and federal law pursuant to
42 U.S.C.S. § 1983 (LEXIS through Pub. L. No. 116-344) (Counts 3 and 4). After
the City filed a motion to dismiss the complaint, the court held a hearing on the
motion, and the parties filed briefs and an administrative record.
[¶19] By order dated May 13, 2020, acting in an appellate capacity to
adjudicate FEP’s Rule 80B complaint for judicial review, the court affirmed the
City Council’s decision.5 The court also dismissed FEP’s independent claims,
determining that those claims were duplicative of the Rule 80B appeal, which
afforded an adequate process for judicial review of the City Council’s decision.
FEP filed this timely appeal. See 14 M.R.S. § 1851 (2021); M.R. App. P. 2B(c)(1).
II. DISCUSSION
[¶20] When the Superior Court acts in an appellate capacity to decide a
Rule 80B complaint for judicial review of a municipal decision, we review the
municipal decision “directly without deference to the Superior Court’s
intermediate review.” Humboldt Field Rsch. Inst. v. Town of Steuben,
5The court construed the City Council’s several votes to reflect (1) an implicit legal conclusion
that the City Council had the authority to make a threshold determination of whether the proposed
modification would constitute an amendment or a revision if adopted and (2) an implicit finding that
the proposed modification would in fact constitute a revision rather than an amendment. The court
concluded that the implicit legal conclusion was correct and that the implicit finding could not be
disturbed because it was supported by evidence in the administrative record.
11
2011 ME 130, ¶ 4, 36 A.3d 873; see M.R. Civ. P. 80B(f). We review the operative
decision “for error of law, abuse of discretion or findings not supported by
substantial evidence in the record.” Osprey Fam. Tr. v. Town of Owls Head,
2016 ME 89, ¶ 9, 141 A.3d 1114 (quotation marks omitted). “Substantial
evidence exists if there is any competent evidence in the record to support a
decision.” 21 Seabran, LLC v. Town of Naples, 2017 ME 3, ¶ 10, 153 A.3d 113(quotation marks omitted)).
[¶21] FEP presents two central arguments in this appeal.6 First, it argues
that when municipal officers receive a petition proposing what proponents
have characterized as a charter amendment, the municipal officers are required
to submit the proposal directly to the voters—in other words, that the City
Council had no authority to make a threshold determination that the proposed
modification would, if adopted, constitute a charter revision. Second, in the
alternative, FEP argues that even if the City Council had the authority to make
that threshold determination, the proposed change at issue here cannot, as a
6 Although the City raised several justiciability-related arguments before the trial court, it has not
done so on appeal. The Home Rule Act explicitly authorizes judicial review for purposes of enforcing
the provisions relating to the amendment or revision of municipal charters. 30-A M.R.S. § 2108
(2021). Having independently reviewed the issues of subject matter jurisdiction, standing, ripeness,
and mootness, see Brunswick Citizens for Collaborative Gov’t v. Town of Brunswick, 2018 ME 95, ¶ 7,
189 A.3d 248, we conclude that the matter is justiciable.
12
matter of law, be characterized as a charter revision.7 FEP does not argue that
if the City Council determined that the proposed modification constituted a
proposed charter revision it was then required to initiate the charter
commission process despite the omission of the optional language from the
petition. We therefore do not address that issue here, and we limit our review
to the City Council’s vote not to place the petition question on the ballot as a
proposed charter amendment.
A. The City Council’s Authority
[¶22] In response to FEP’s first contention, the City argues that the
Legislature intended for municipal officials to serve a “gatekeeping” role to
ensure that any proposed charter modification that would fundamentally
change a municipal charter—even one initially labeled an amendment by its
7FEP also argues that the trial court incorrectly dismissed the independent claims. We disagree.
The court did not abuse its discretion by dismissing the declaratory judgment claim in Count 2 of the
first amended complaint because the claim was duplicative of the Rule 80B appeal and fails under
our exclusivity rule. See Cape Shore House Owners Ass’n v. Town of Cape Elizabeth, 2019 ME 86, ¶¶ 7-9,
209 A.3d 102. To the extent that Counts 3 and 4 asserted claims based on deprivations of procedural
due process under federal law, they failed to state claims because the review available through
Rule 80B provides adequate process as a matter of law. See M.R. Civ. P. 12(b)(6); Parratt v. Taylor,
451 U.S. 527, 538-41 (1981), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327(1986); Moreau v. Town of Turner, 661 A.2d 677, 680 (Me. 1995). To the extent that Counts 3 and 4
asserted violations of First Amendment or substantive due process rights, they failed to state claims
against the City because they asserted that the City acted in violation of a state election law, not in
execution of any official policy or custom, see Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978),
and also because we conclude that the City Council was entitled to exercise a gatekeeping function to
determine whether the petition proposed an amendment or a revision of the charter, see M.R. Civ. P.
12(b)(6); State v. Gorman, 2004 ME 90, ¶ 41, 854 A.2d 1164 (“A trial court action, proper under the
law, may be affirmed, even if for a reason different than that given by the trial court.”).
13
proponents—would undergo review by a charter commission. Resolving the
issue requires interpreting Maine’s Home Rule Act, a task that we undertake
de novo. See Pilot Point, LLC v. Town of Cape Elizabeth, 2020 ME 100, ¶ 17,
237 A.3d 200. “We look first to the plain language of [a] statute to determine
its meaning if we can do so while avoiding absurd, illogical, or inconsistent
results.” State v. Conroy, 2020 ME 22, ¶ 19, 225 A.3d 1011. As part of the
plain-language analysis, “we consider the [specific] language in the context of
the whole statutory scheme,” Chadwick-BaRoss, Inc. v. City of Westbrook,
2016 ME 62, ¶ 11, 137 A.3d 1020 (alteration omitted) (quotation marks
omitted), and “examine the entirety of the statute, giving due weight to design,
structure, and purpose as well as to aggregate language,” Dickau v. Vt. Mut.
Ins. Co., 2014 ME 158, ¶ 22, 107 A.3d 621 (quotation marks omitted).
[¶23] Section 2104(4) of the Home Rule Act, headed “Amendment
constituting revision,” is specifically relevant to the issue presented here and
provides as follows:
At the request of the petitioners’ committee, the petition form shall
also contain 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.”
14
Upon receipt of a petition containing this language, the municipal
officers, if they determine with the advice of an attorney that the
proposed amendment would constitute a revision of the charter, shall
treat the petition as a request for a charter commission and follow
the procedures applicable to such a request.
30-A M.R.S. § 2104(4) (emphasis added).
[¶24] This section expressly contemplates review by municipal officers
to determine whether a proposed amendment would in fact “constitute a
revision of the charter.” Id. FEP interprets the section to permit that
determination by municipal officers only “[u]pon receipt of a petition
containing” the optional language that was omitted from the petition forms in
this case. Id. Although FEP’s interpretation is grounded in the literal language
of section 2104(4), it makes no sense in light of the plain language of the Home
Rule Act as a whole. See Dickau, 2014 ME 158, ¶ 20, 107 A.3d 621 (“A plain
language interpretation should not be confused with a literal interpretation
. . . .”). The Home Rule Act makes clear that the Legislature intended for
proposed charter revisions to undergo the extensive review of a charter
commission instead of being submitted directly to the voters. See 30-A M.R.S.
§§ 2102(2), (5), 2105(1); see also supra ¶ 9. FEP’s interpretation would
produce absurd results because it would enable a petitioners’ committee to
circumvent the Legislature’s intent. The petitioners’ committee could simply
15
label a proposed modification—even one that would obviously constitute a
revision—as an amendment and decline to request the optional language
provided in section 2104(4).
[¶25] We conclude that the Home Rule Act authorizes municipal officers
to review a proposed charter modification to determine whether it constitutes
a revision rather than an amendment, even where the petition presenting the
proposed modification does not include section 2104(4)’s optional language.8
B. The City Council’s Vote to Decline to Put the Proposed Charter
Modification to the Voters as a Proposed Charter Amendment
1. The Parties’ Arguments and the Framework for Appellate Review
[¶26] In its arguments on appeal, the City assumes that the City Council
declined to put the public campaign financing modification to the voters as a
proposed charter amendment based on a finding that the modification actually
constituted a revision, and the City contends that the administrative record
8Although our conclusion is based on the aggregate language of the entire Home Rule Act, see
Chadwick-BaRoss, Inc. v. City of Westbrook, 2016 ME 62, ¶ 11, 137 A.3d 1020, it is also supported by
the relevant legislative history. In 1982, the Legislature amended what is now section 2104(4) to
add the language quoted above. See P.L. 1981, ch. 687, § 2 (emergency, effective April 15, 1982);
P.L. 1987, ch. 737, § A-2 (effective March 1, 1989). In the Statement of Fact associated with the bill,
the Legislature implicitly acknowledged that the municipal officers possessed gatekeeping authority
by indicating that the purpose of the amendment was to limit that authority. L.D. 2010, Statement of
Fact (110th Legis. 1982). By allowing petitioners to ask that a charter commission be established if
the municipal officers determined that a change proposed as an amendment was actually a revision,
the statute as amended would stop municipal officers from failing to consider the proposal at all. See
id.
16
supports that finding. FEP argues that even if the City Council possessed
gatekeeping authority to determine whether a proposed modification put
forward as an amendment actually constitutes a revision, the proposed
modification at issue here cannot—as a matter of law—be characterized as a
revision. These arguments reveal that the parties dispute whether the issue is
dominated by questions of law or fact. The distinction is important because it
affects the level of deference afforded to a municipal decision on appellate
review. See, e.g., Osprey Fam. Tr., 2016 ME 89, ¶¶ 9-10, 141 A.3d 1114(recognizing that we review findings only to ensure that they are supported by
substantial evidence in the record); Palian v. Dep’t of Health & Hum. Servs.,
2020 ME 131, ¶ 10, 242 A.3d 164 (recognizing that we review questions of law
de novo).
[¶27] The meanings of the statutory terms “amendment” and “revision”
are indeed issues of law requiring statutory interpretation and de novo review.
See White v. Fleet Bank of Me., 2005 ME 72, ¶ 16, 875 A.2d 680 (“We
independently review the meaning of [undefined] statutory term[s].”);
Manirakiza v. Dep’t of Health & Hum. Servs., 2018 ME 10, ¶ 7, 177 A.3d 1264.
However, the determination of whether a particular petition proposes a charter
amendment or a charter revision within the meaning of those statutory terms
17
is fact-based—it calls for the proposal to be evaluated not just in terms of its
effect on the entire municipal charter but also in terms of its practical effect on
existing municipal policies, practices, and operations. See Bizier v. Town of
Turner, 2011 ME 116, ¶ 8, 32 A.3d 1048 (“Although interpretation of an
ordinance is a question of law, we accord substantial deference to the Planning
Board’s characterizations and fact-findings as to what meets ordinance
standards.” (quotation marks omitted)); see also infra ¶¶ 32-34.
2. Charter “Amendment” and Charter “Revision” Pursuant to the
Home Rule Act
[¶28] Having defined the framework for review, we turn first to the
question of law, which we have not had occasion to address before: the
difference between a charter “amendment” and a charter “revision” for
purposes of the Home Rule Act.
[¶29] In common usage, the words “amendment” and “revision” have
similar meanings—both involve a change short of complete replacement.
Generally, however, courts presume that when a legislature uses different
words within the same statute, it intends for the words to carry different
meanings. See 2A Norman J. Singer & Shambie Singer, Statutes & Statutory
Construction § 46:6 at 261 (7th ed. 2014) (“Different words used in the same,
or a similar, statute are assigned different meanings whenever possible.”).
18
Given that the Home Rule Act sets forth separate processes for adopting charter
amendments and charter revisions, the Legislature plainly intended for the
terms to have different meanings. According to Black’s Law Dictionary, a
revision is more substantial than an amendment: “revision” is defined as “[a]
general and thorough rewriting of a governing document, in which the entire
document is open to amendment,” Revision, Black’s Law Dictionary
(11th ed. 2019), and “amendment” is defined as “[a] formal and usu[ally] minor
revision or addition proposed or made to a statute, constitution, pleading,
order, or other instrument; specif[ically], a change made by addition, deletion,
or correction; esp[ecially], an alteration in wording,” Amendment, Black’s Law
Dictionary (11th ed. 2019).
[¶30] Courts examining other states’ home rule provisions have similarly
understood a revision as representing a more significant change than an
amendment. See, e.g., City of Denver v. N. Y. Tr. Co., 229 U.S. 123, 130-31, 143-44
(1913); Albert v. City of Laconia, 592 A.2d 1147, 1148-49 (N.H. 1991); Kelly v.
Laing, 242 N.W. 891, 892-94 (Mich. 1932); cf. Martinez v. Kulongoski,
185 P.3d 498, 499-505 (Or. Ct. App. 2008) (discussing the distinction in the
context of a voter-initiated ballot measure that added provisions to the state
constitution); Amador Valley Joint Union High Sch. Dist. v. State Bd. of
19
Equalization, 583 P.2d 1281, 1284-86 (Cal. 1978) (same). For example, in an
instructive and well-reasoned opinion, the New Hampshire Supreme Court
examined the distinction as set forth in a statutory scheme that was very similar
to Maine’s Home Rule Act.9 See Albert, 592 A.2d at 1148-49. There, a
modification to the city’s charter changed how councilors and the mayor were
elected and diminished the mayor’s voting power, while “leav[ing] the City
Council/City Manager form of government unchanged.” Id. at 1148. The court
looked to the differing statutory processes for the adoption of amendments and
revisions, deducing that “the amendment process is directed toward specific
changes to a city charter, whereas the revision process is less specific and
contemplates the possible need for a general, more fundamental, change in a
city’s governmental structure.” Id. at 1149. The court concluded that although
the changes to the charter were “significant,” they were “not of such a
fundamental nature as to require a ‘convention to examine the whole subject’
and form of [the] city government.” Id. (quoting Kelly, 242 N.W. at 892). The
court explained:
Where, as here, a group of citizens seek[s] to make specific changes
to the council element of their council-city manager form of
government, they should not be required to seek, nor should a city
9The court reviewed a trial court decision that included findings of fact issued after an evidentiary
hearing. Albert v. City of Laconia, 592 A.2d 1147, 1148 (N.H. 1991).
20
be burdened with, establishment of a charter commission, whose
broad powers allow for a re-examination of the very nature of their
city government.
Id.[¶31] The Michigan Supreme Court explained the distinction in the
following way:
“Revision” and “amendment” have the common characteristics of
working changes in the charter and are sometimes used inexactly,
but there is an essential difference between them. Revision implies
a re-examination of the whole law and a redraft without obligation
to maintain the form, scheme, or structure of the old. As applied to
fundamental law, such as a constitution or charter, it suggests a
convention to examine the whole subject and to prepare and
submit a new instrument, whether the desired changes from the
old be few or many. Amendment implies continuance of the
general plan and purport of the law, with corrections to better
accomplish its purpose. Basically, revision suggests fundamental
change, while amendment is a correction of detail.
Kelly, 242 N.W. at 892. That court ultimately held that a “proposal to abolish
the office of city manager requires revision of the charter.” Id. at 894.
[¶32] Interpreting Maine’s Home Rule Act, we agree that the differing
processes for the adoption of charter amendments and charter revisions mean
that the critical question is whether the proposed change is significant enough
to require a (potentially) years-long inquiry into all aspects of the
municipality’s government. The distinction between an amendment and a
revision, therefore, is essentially one of scope, in terms of both the breadth of
21
what would be affected and the depth of what would be altered. See Martinez,
185 P.3d at 504-05. In terms of breadth, a proposed amendment would not, if
enacted, materially affect the municipality’s implementation, in the course of
its operations, of major charter provisions that are not mentioned in the
proposed amendment. In terms of depth, an amendment would not, if enacted,
make a profound and fundamental alteration in the essential character or core
operations of municipal government. If a petition proposes a change to the
charter that is either so broad or so profound (or both) as to justify a
revisitation of the entire charter by a charter commission, the proposal is for a
revision.
[¶33] Because each municipality’s charter is unique and the Home Rule
Act contemplates a broad spectrum of potential modifications, it is of critical
importance that the municipal officers—while exercising gatekeeping
authority to implement the inhabitants’ home rule power—examine how the
specific proposal at issue would, if adopted, interact with the terms of the
existing charter and the municipality’s operations under the existing charter.
In addition to considering the breadth of what would be affected and the depth
of what would be altered, municipal decision makers must heed the
Legislature’s directive that the Home Rule Act, “being necessary for the welfare
22
of the municipalities and their inhabitants, shall be liberally construed to
accomplish its purposes.” 30-A M.R.S. § 2109. The Home Rule Act’s stated
purpose is to “implement,” 30-A M.R.S. § 2101, the “power” of “[t]he inhabitants
of any municipality” to “alter and amend their 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.
[¶34] Given that whether a particular charter proposal would be an
amendment or a revision focuses on the proposal’s effect on the current
municipal charter and operations, the municipal officers’ adjudication of that
question is highly fact-specific. To enable judicial review, the adjudication
needs to include findings of fact and, to the extent necessary, conclusions of law
explaining the municipal officers’ reasoning. See Christian Fellowship
& Renewal Ctr. v. Town of Limington, 2001 ME 16, ¶ 15, 769 A.2d 834 (“[T]here
cannot be meaningful judicial review of agency decisions without findings of
fact.”).
3. The City Council’s Decision
[¶35] The City argues primarily that the record supports characterizing
the proposed modification at issue here as a proposed charter revision for two
reasons: (1) by requiring the City to “sufficient[ly]” fund the public campaign
23
financing program, the modification would interfere with the City Manager’s
fundamental duties, which include managing the City’s finances, and (2) by
requiring the City to “sufficient[ly]” fund the public campaign financing
program, the modification would conflict with the existing charter provision
that vests “[t]he administration of all the fiscal, prudential, and municipal
affairs of the City of Portland” in the City Council because the City Council would
be required to allocate funds to the program that it might otherwise allocate to
some other public function. FEP disagrees.
[¶36] The City’s reasoning, however, is set forth only in its briefing and
cannot be found in any actual findings of fact or conclusions of law expressed
by the City Council. The City’s attorney’s memorandum to the City Council set
forth reasons why, in the attorney’s opinion, the City Council should not treat
the petition as an amendment, but the City Council did not adopt that reasoning
in any decision. The City Council’s only decisions took the form of the three
non-unanimous votes—not to submit FEP’s petition to the voters as an
amendment, not to treat the petition as requesting a charter commission, and
to table the petition indefinitely. No written decision was adopted. Although
the City contends that “the [City] Council found as a fact that the [petition]
proposed a change to the City’s [c]harter so fundamental that, if adopted, it
24
would substantially disrupt the [c]harter by removing the City Council’s control
over the ‘administration of all fiscal, prudential, and municipal affairs of the
City’” (emphasis added), the record contains no such finding by the City Council.
Instead, the City relies on what its attorneys have extrapolated from the City
Council’s votes or the statements of individual councilors during debate.
[¶37] The record includes transcripts of the meetings at which members
of the City Council debated and discussed the questions before them, but we
can neither infer that any particular comment represents the decision of the
City Council nor deduce the City Council’s reasoning based on the comments as
a whole. See, e.g., Comeau v. Town of Kittery, 2007 ME 76, ¶¶ 9-13, 926 A.2d 189(deciding that findings were insufficient for appellate review where a town
planning board “designated the minutes of the meetings to serve as findings”);
Christian Fellowship & Renewal Ctr., 2001 ME 16, ¶ 7, 769 A.2d 834 (“Recitation
of the parties’ positions or reiterations of the evidence presented by the parties
do not constitute findings and are not a substitute for findings.”).
[¶38] The petition requesting a vote on the question of whether to
modify Portland’s charter to provide public funding for municipal election
candidates does not, on its face, purport to propose a fundamental change in
25
the form, structure, or nature of the City’s government.10 If the City Council
indeed deems the petition to propose a revision rather than an amendment of
the charter, a statement of its basis in law and fact for doing so is essential to
meaningful judicial review. Without such a statement, neither the Superior
Court nor we can determine whether the rejection of the petition involved legal
error, an abuse of discretion, or findings not supported by substantial evidence
in the record. See Osprey Fam. Tr., 2016 ME 89, ¶ 9, 141 A.3d 1114; Christian
Fellowship & Renewal Ctr., 2001 ME 16, ¶¶ 15-16, 769 A.2d 834; Chapel Rd.
Assocs. v. Town of Wells, 2001 ME 178, ¶ 10, 787 A.2d 137. Rather than attempt
to infer what findings and conclusions might underlie the City Council’s votes,11
we must vacate the judgment and remand to the trial court for further remand
to enable the City Council to rectify the omission. See Christian Fellowship
& Renewal Ctr., 2001 ME 16, ¶ 16, 769 A.2d 834 (“[T]he weight of authority in
other jurisdictions supports a remand instead of an assumption that an agency
10 As the City’s attorney pointed out to the City Council, the proposed charter change would
impose a funding mandate, but it is not obvious why the mandate would have the sweeping impact
on City government that the attorney attributed to it.
11 We have stated that “[i]n some cases the subsidiary facts may be obvious or easily inferred from
the record and the general factual findings, and a remand would be unnecessary.” Christian
Fellowship & Renewal Ctr. v. Town of Limington, 2001 ME 16, ¶ 19, 769 A.2d 834. This is not one of
those cases because the City Council made no “general factual findings” at all and the “subsidiary
facts”—those concerning the interactions between the proposed charter modification and the
existing charter—are not at all obvious. See id.; cf. Wells v. Portland Yacht Club, 2001 ME 20, ¶¶ 10-11,
771 A.2d 371.
26
has found facts to support its conclusion when its findings are inadequate for
review.”); Chapel Rd. Assocs., 2001 ME 178, ¶ 13, 787 A.2d 137 (“The remedy
for an agency’s failure to make sufficient and clear findings of fact is a remand
to the agency for findings that permit meaningful judicial review.” (alterations
omitted) (quotation marks omitted)).
The entry is:
Judgment vacated. Remanded to the Superior
Court with instructions to remand to the
Portland City Council for further proceedings
consistent with this opinion.
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
Cumberland County Superior Court docket number AP-2019-33
FOR CLERK REFERENCE ONLY