The Maine Supreme Judicial Court ruled Thursday that it did not have enough information to decide whether the city of Portland was justified when it declined in 2019 to allow residents to vote on a citizens proposal to create a public financing program for municipal candidates.

The high court ruling vacates a Superior Court decision supporting the city’s position and sends the proposal back to the City Council, so it can clearly state the legal and factual reasons for its decision.

“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,” the decision states.

Fair Elections Portland, the group pursuing the referendum, cast the decision as a victory, noting that the court appeared skeptical about the city’s position.

“We welcome the court’s decision,” John Brautigam, attorney for Fair Elections Portland, said in a written statement. “With this clarification of the law, there should be no question that the proposal brought forth by Portland voters belongs on the ballot.”

The city cast the ruling as a partial victory, saying it acknowledges that the City Council was within its rights to act as a gatekeeper for determining whether a proposal is a significant revision or a minor amendment.

“Although the city would have preferred to have this matter fully resolved, this guidance from the court is helpful,” the city said in a written statement. “Neither the state statute governing the city council’s action nor prior judicial decisions applying the statute are clear that the factual findings now sought by the court are required. Now that the court has clarified its expectations about how council decisions on proposed charter changes should be handled, the city council can revisit its decision with the benefit of that guidance.”

It’s unclear what happens next.

Since 2019, the council has welcomed four new members and a new mayor. So the current council could reach a very different conclusion than its predecessor.

In some ways, the outcome of the case may be moot in terms of whether voters will have a say in creating a clean elections program for municipal candidates. Voters this month elected members of a charter commission who are tasked with recommending changes to the basic structure of city government. And a solid majority of the commissioners support including a clean elections program in its recommendations.

But if the council decides to place the question on the ballot independent of the charter review process, that could free up bandwidth for the commission to tackle other issues, since it only has a year to submit its final recommendations to the council, and then ultimately to voters.

At issue is whether the proposal is a significant charter revision, which must first be studied by a charter commission, or whether it’s a minor amendment that can go straight to voters.

The court says that, while the state statute outlines different processes for charter revisions and amendments, there is no definition of what each of those terms means. This is the first time the court has been asked to weigh in.

The court points to a case in New Hampshire, where a charter modification changed how councilors and the mayor were elected and diminished the mayor’s voting power. There, the court determined an amendment was a specific change, whereas a revision would be a broad and profound change requiring charter commission review. The court ruled that the modification, though significant, was still an amendment, according to the Maine supreme court.

The lack of formal findings by the council, and on the council’s role as gatekeepers, were the focus of oral arguments in February.

The city had contended that the law, as written, allows municipal officers to be the gatekeepers of what constitutes a revision or an amendment. That position was challenged by Fair Elections Portland, which argued the city must treat it as an amendment because that was how advocates presented it.

The court ultimately sided with the city in this regard, saying that Fair Elections Portland’s position would “produce absurd results because it would enable a petitioners’ committee to circumvent the Legislature’s intent.”

“The petitioners’ committee could simply label a proposed modification – even one that would obviously constitute a revision – as an amendment and decline to request the optional language,” the decision states. “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.”

The City Council seemed to agree with the city attorney’s assessment that the clean elections proposal was a fundamental shift in the power of municipal government because it contained a funding requirement for the program and the charter currently grants spending power to the council. But the council never issued a finding of fact justifying its decision.

Nevertheless, the court seemed skeptical that the city made the right decision, but it could not offer a ruling without additional information.

“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 the form, structure, or nature of the city’s government,” the court said. “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.”

Fair Elections Portland is calling on the council to reverse course and send the questions to voters, without having the proposal come from the charter commission. They noted that about 6,800 Portland residents signed the petition to place the proposal on the ballot.

“The city has been incredibly cavalier with the will of the people,” said Maria Testa, one of the members of Fair Elections Portland’s steering committee, and a plaintiff in the lawsuit. “Now it’s time for this new City Council to take swift action, clean up the mess left by its predecessor, and finally allow a vote on this amendment.”


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