Convening June 13 in Bangor, the Maine Supreme Judicial Court took up the issue of whether a 2008 referendum vote created an ordinance directing all future Waldoboro town meetings.
The Court is expected to render a decision later this summer in the case of Dennis Blanchet v. Town of Waldoboro. In addition to Blanchet, the plaintiffs listed in the action are Travis Reed, Michael Robitaille, John Higgins, Doreen Weiss, Wallace Walton, Patricia Chapman, Duncan Morrell and Scott Dupuis.
The plaintiffs filed the case in Lincoln County Superior Court alleging an open town meeting, held in 2011, violated an ordinance created by a 2008 referendum vote specifying secret ballots for future town meetings. In 2008, Waldoboro citizens voted 1919-717 in favor of the change.
The case was brought against the town of Waldoboro and (in their official capacities) selectmen Steven Cartwright, Clinton Collamore Sr., Craig Cooley, Rebecca Maxwell and Theodore Wooster, as well as Tax Collector Allene Roy and Interim Town Manager Eileen Dondlinger.
On Nov. 14, 2011, Justice Jeffery Hjelm dismissed the lawsuit. In his decision, Hjelm wrote the suit was dismissed because, “Any effort to regulate municipal voting methods… through some means other than a municipal charter is ineffective because it violates state law… the 2008 ordinance that purports to establish a voting procedure is of no effect, because it is not one of the ways that such a format can be established.”
Speaking on behalf of the plaintiffs at the Bangor hearing, attorney Clifford Goodall told the seven Law Court justices that Maine statute gives citizens the right to instruct elected representatives and the right to have access to a ballot. He said access to a secret ballot was the crux of the matter.
Calling town meetings the purest form of democracy, Justice Joseph Jabar asked Goodall whether anyone at the 2011 open meeting had made a motion calling for the budget vote to be made by secret ballot. Goodall said no such motion had been made.
“Couldn’t we say your clients waived their right to a secret ballot?” Jabar asked.
Goodall said the 2008 warrant petition had set in place a rule that all votes would be secret. The article read as follows: “Shall the Town of Waldoboro, beginning in fiscal year 2009, submit all warrant articles, at any Annual and / or Special Town Meetings, to the voters of the Town in the format of secret ballot referendum questions and keep the polls open from 8 a.m. – 8 p.m. when said Article or Articles are voted upon? Article submitted by petition.”
“It seems to me, when the whole town is there, they can decide however they want to vote,” Jabar said.
“If what you want is to make sure, why not enact a charter?” asked Justice Ellen Gorman.
“That would be an alternative,” said Goodall. “However, it’s cumbersome.”
When asked if enacting a charter would be more cumbersome than the court procedure currently under way, he said creating a charter requires “a lot of night meetings, controversy and anguish.”
“We can try to cause anguish, too,” said Gorman.
On Nov. 14, 2011, Justice Jeffery Hjelm dismissed the lawsuit that was originally brought in Lincoln County Superior Court, writing in his decision, “Any effort to regulate municipal voting methods … through some means other than a municipal charter is ineffective” because it violates state law…the 2008 ordinance that purports to establish a voting procedure is of no effect, because it is not one of the ways that such a format can be established.”
The plaintiffs appealed that decision, landing it in the Law Court.
Calling it “an end run” Justice Donald Alexander said the 2008 warrant article did not comply with proper procedure for enacting an ordinance and asked if Goodall thought it had any legal power beyond the vote at which it was established.
“It was not a resolution,” Goodall said. “It was an ordinance because it set a future binding process on the town.”
“Did it have the notices that are required for an ordinance?” Alexander asked. Goodall said there was no record of such notice.
“Neither the warrant, nor the article, said it was proposed as an ordinance,” Justice Andrew Mead said.
Goodall said that it was an ordinance by virtue of the fact that it set up requirements to govern all future actions of the town. He said citizens have the authority, under home rule, to make such decisions.
Chief Justice Leigh Saufley said there has not been a determination as to whether approval of the warrant article created an ordinance; Goodall said that decision could be made by the Superior Court, if the Supreme Court remanded the case back to that jurisdiction.
Speaking on behalf of the defendants, attorney Kristin Collins told the court Maine statute leaves it up to selectmen to determine the voting method for town business.
“There are reasons for that,” Collins said. She said open town meetings provide a forum for debating issues of concern and an opportunity for selectmen to learn what specific objections voters have to a given warrant article.
“I’ve never known an open meeting to adjourn without adopting a budget,” she said. On the other hand, she said, a secret ballot can end up with a zero appropriation on a budget line. In the case at hand, this consequence offered selectmen little time to set up a vote in which a budget could be approved.
“Any changes to the procedure would have to be accomplished by a charter, because of the issue of one legislative body taking action that binds a future one,” she said. “Things change from year to year. Elections have to be consistent.”
Collins said state law does not indicate a preference toward secret ballots, but a request for a secret ballot, if approved by voters at an open meeting, would have to be honored.
Even so, Collins said, that vote could not bind the actions of a future meeting. She said a secret ballot vote requires 45-days notice.
Saufley asked her why the 2008 vote did not bind the town to use secret ballot voting for all annual town meetings. Collins said the 2008 article did not use the correct wording for establishing an ordinance.
Returning to the lectern, Goodall said language that requires a warrant article to begin with the words “Shall an ordinance be enacted…” is only necessary if the full text of the ordinance does not appear on the warrant itself.
“In this case, the entire language of the ordinance was included,” he said. Goodall said town officials may have omitted the word ordinance from the article intentionally, because it would limit their power.
A decision on the case is expected later this summer.
Following the hearing, lead plaintiff Dennis Blanchet said there were facts he would have liked to hear presented to the court. He said selectmen originally planned to hold a referendum for reconsideration of the 2011 budget and that they went back on that decision.
“When they didn’t get things the way they wanted, they decided to hold a special town meeting,” Blanchet said. “This is not a voting issue; it’s a tax issue.”
He said less than 100 citizens agreed, in open town meeting, to let the town increase the mil rate beyond that levy limit set by state law, the so-called LD 1 limit. Blanchet said the more than 900 voters who voted against that article, in earlier secret ballot voting, had been disenfranchised.
Goodall told Blanchet and the other Waldoboro residents who attended the session that it was good that the court focused on whether or not the article created an ordinance. He said other issues could be raised in Superior Court, if the Law Court decided to send the case back.
“Oral arguments mean that at least some of the justices think it’s important,” he said.
