Portland Mayor Michael Brennan’s plan to create a citywide minimum wage is both constitutional and a cause for concern, according to a memo from the city’s top attorney.

Corporation Counsel Danielle West-Chuhta wrote that the city has legal authority to create its own minimum wage that is higher than the state and federal minimums of $7.50 and $7.25 an hour, respectively, under the home-rule clause in the Maine Constitution.

But West-Chuhta expressed other legal and practical concerns, including enforcement.

“Overall, a local minimum wage ordinance would seem to pass muster under all of the legal tests described above,” she wrote. “With that said, I am still concerned that this issue has not yet been litigated in Maine, and that future enforcement may prove to be difficult.”

Gov. Paul LePage, who opposes an increase in the state’s minimum wage, said Oct. 8 during a gubernatorial debate sponsored by the Portland Regional Chamber of Commerce that a citywide minimum wage would be unconstitutional.

“Portland should read the Maine Constitution. They can’t do what they’re thinking they’re going to do. I’ve already checked it,” LePage said.


Several council actions in recent years have landed the city in court, often on the losing end.

But Brennan said he is “very confident” the city has the legal right to set its own minimum wage.

“Obviously, there are a number of things we’ve chosen to do in the city of Portland, regardless of the advice we’ve received from the governor, and I think we’ll continue to do that,” Brennan said.

West-Chuhta’s legal opinion is outlined in a 12-page memo to the City Council’s Finance Committee, which took up the proposal Thursday. The committee will not act on the proposal until Dec. 11 because only two of the four committee members were present Thursday night.

Finance Committee Chairman Nicholas Mavodones said legal uncertainty is not enough for him to close his mind to a citywide minimum wage.

“For me, I would need to hear something definitive from legal counsel saying we couldn’t do it before taking it off the table,” Mavodones said.


Raising the minimum wage was central this fall to Democratic campaigns throughout the country, and polling suggests the issue enjoys the support of most Americans.

Brennan is seeking to increase the city’s minimum wage in several steps, beginning with a jump from $7.50 to $9.50 an hour next year. That would be followed by an increase to $10.10 an hour in 2016, and then to $10.68 an hour in 2017. The wage level would then rise annually through cost-of-living adjustments.

Brennan had hoped the new wage would take effect in January, but it is not likely to until July, if approved.

Legal conflicts over municipal minimum wages have occurred elsewhere in the U.S., according to a report from the Mayor’s Minimum Wage Advisory Committee.

The report said a minimum wage in New York City was struck down in 1964 because of a specific provision in the state constitution. A minimum wage in Baltimore, Maryland, was struck down in the late 1960s, but that ruling was overturned by an appellate court, a decision used more recently to uphold a minimum wage challenge in Santa Fe, New Mexico, the report said.

Ten municipalities have adopted minimum wages in 2014, according to the National Employment Law Project, a New York-based nonprofit advocacy group.


“More and more cities are adopting these minimum wages,” said the group’s general counsel, Paul Sonn. “In most states, the state minimum wage is a floor, not a ceiling.”

Portland’s attorney, West-Chuhta, said there is a conflict between the Maine Constitution, which limits home rule authority, and a statute enacted by the Legislature that expands home rule. She noted that the Maine Supreme Judicial Court has recognized the statute. Portland’s wage would not “frustrate” the intent of the state law, which ensures that people make at least $7.50 an hour, she said.

Among the council actions that have been challenged in court in recent years was an ordinance banning loitering and panhandling in street medians. The ban was overturned by a federal court. An ordinance creating a free-speech buffer zone at an abortion clinic was effectively nullified when the U.S. Supreme Court struck down a similar law in Massachusetts, and the city is still being sued by anti-abortion protesters, who are seeking damages for the period of time their free speech rights were violated. The city also lost a series of court challenges to block a citizens petition to increase protections for city parks, which ultimately passed this past summer in a citywide referendum.

Meanwhile, the city is party to a lawsuit against the state over providing General Assistance to undocumented immigrants. LePage has threatened to withhold all General Assistance payments to communities that continue to provide aid to undocumented immigrants, which in Portland is roughly $9 million a year.

West-Chuta said minimum wage laws have been challenged under the contract, equal protection, due process and takings clauses of the Maine Constitution, and the latter three have not been successful.

On the fourth one, she said an argument could be made that a municipal minimum wage impairs a contract between an employer and employees. In the unlikely event that argument prevails, she said the wage could still be upheld for a “significant and legitimate public purpose.” Like the state’s minimum wage, Portland’s wage would seek to help residents afford adequate housing and health care, she said.


Correction: This story was revised at 10:03 a.m., Nov. 24, 2014, to reflect that the Portland City Council’s Finance Committee will act on the mayor’s minimum wage proposal at its Dec. 11 meeting. A previous version of this story had an incorrect date.

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