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MCLU v. City of So. Portland
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 121
Docket:	Cum-99-60
Argued:	June 8, 1999
Decided:	July 29, 1999

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, and ALEXANDER, JJ.

MAINE CIVIL LIBERTIES UNION et al.
v.
CITY OF SOUTH PORTLAND

CLIFFORD, J.
	[¶1]  The City of South Portland appeals from a summary judgment
entered in the Superior Court (Cumberland County, Cole, J.) in favor of the
Maine Civil Liberties Union, and two South Portland citizens, Nancy Crowell
and Judith Kimball.{1}  The City contends that the court erred by concluding
that its City Council failed to comply with the notice requirements of
21-A M.R.S.A. § 631 (1993 & Supp. 1998) when the City Council voted to
consolidate the City's five voting districts into one voting district for a
special state election.  Because the election in which the City sought to
consolidate its voting districts was held well over a year ago, and because the
circumstances under which the attempted consolidation arose are not likely
to recur, we dismiss the appeal as moot.
	[¶2]  The facts are essentially undisputed.  On October 20, 1997, the
Secretary of State's office announced that a "People's Veto" petition had
received sufficient signatures to require a special state election on whether
recently enacted amendments to Maine's Human Rights Act that prohibited
discrimination based on sexual orientation should be repealed.{2}  During the
week of November 24, 1997, the Governor scheduled the special election
for February 10, 1998.  Because the City Council anticipated a low voter
turnout and problems with being able to hire sufficient election workers, it
planned to consolidate the City's five voting districts into one district for the
special election.  Pursuant to 21-A M.R.S.A. § 631, "municipal officers may
divide a town or ward into convenient voting districts after public notice and
hearing held at least 60 days before the election. . . .  Voting districts, once
established, may be consolidated into a lesser number of districts by
following the same procedure."{3}  (Emphasis added.)  Thus, before
consolidating voting districts for the special election scheduled for February
10, 1998, section 631 required the City Council to provide public notice and
a hearing before December 12, 1997.
	[¶3]  The City Council's regular meetings were scheduled for
December 1st and 15th of 1997.  The December 1st meeting fell on the
Monday following the Thanksgiving holiday and less than one week after the
Governor had announced the date of the special election vote.  Because the
City Council lacked the time to comply with its rules for placing items on
the agenda for that meeting, and because the December 15th meeting was
less than 60 days before the referendum, Mayor Susan Avery called a special
City Council meeting for December 8, 1997.  The meeting would
immediately precede the regularly scheduled City Council workshop. 
Although City Council workshops are open to the public, the normal practice
is not to allow public comment.
	[¶4]  The City Council published notice of the special meeting in the
Portland Press Herald and the agenda for the meeting was posted at four
locations--City Hall, the recreation center, the main library, and the branch
library.  The Agenda provided:

H.  ACTION ON OLD AND NEW BUSINESS
1.	ORDER #85-97/98--setting the district lines and polling
place for the Special State Election on February 10, 1998. 
Passage requires majority vote.

In addition, the City Clerk notified the Portland Press Herald and the
American Journal of the special meeting. 
	[¶5]  The special City Council meeting was held on December 8, 1997. 
Two members of the public, Clarence W. Beckwith and Ray L. Lee, attended
the special meeting and spoke against the proposal to consolidate the voting
districts.  The two men stated in affidavits that they regularly attended and
participated in City Council meetings, but they were unaware of the special
meeting until the evening of December 8th.  After the two men spoke, the
City Council voted 4-3 to authorize the consolidation and the designation of
the main library as the only polling location.  The City Council published a
notice in the Portland Press Herald and the American Journal advising the
public that voting for the February 10, 1998, special election would take
place only at the main library.
	[¶6]  On December 24, 1997, the MCLU filed a complaint for
declaratory and injunctive relief, alleging violations of 21-A M.R.S.A. § 631
and the South Portland City Charter.  The complaint asserted that
consolidating voting districts would impede voting and reduce voter turnout. 
It sought: (1) a temporary restraining order (TRO) to prevent the City
Council from consolidating the voting districts for the February 10, 1998
election; (2) a declaration that 21-A M.R.S.A. § 631 requires that, prior to
consolidating voting districts, the City Council must provide notice making
clear that a public hearing will be held and describing the issue being
considered at the meeting; and (3) a declaration that consolidating the City's
voting districts violated the South Portland City Charter.{4}  The City opposed
the TRO and filed a motion for a summary judgment.  The Superior Court
granted the MCLU's motion for a TRO after concluding that it had met its
burden of proving that the voters would suffer irreparable injury if the
injunction was not granted; that such injury outweighed any harm that
granting the injunctive relief would inflict on the City; that the MCLU had
exhibited a likelihood of success on the merits; and that the public interest
would not be adversely affected by granting the injunction.  See Ingraham v.
University of Maine, 441 A.2d 691, 693 (Me. 1982). 
	[¶7]  The City did not appeal the temporary restraining order.  The
City made available voting places in the five voting districts within the City
for the election that was held on February 10, 1998.  The City, however, did
pursue its motion for a summary judgment and, in response, the MCLU filed
its own summary judgment motion.  The court granted summary judgment to
the MCLU after concluding that the terms "public notice and hearing"
required the City Council to "not only inform the public of the specific
proposed action to be taken but also that a hearing was going to be held on
the proposed action.  Otherwise, the requirement of public notice and
hearing would be useless."  The City then filed this appeal.
	[¶8]  We only review cases that present a justiciable controversy.  See
Campaign for Sensible Transp. v. Maine Turnpike Auth., 658 A.2d 213, 215
(Me. 1995).  "'A justiciable controversy is a claim of present and fixed rights,
as opposed to hypothetical or future rights, asserted by one party against
another who has an interest in contesting the claim.'"  Id. (quoting Connors
v. International Harvester Credit Corp., 447 A.2d 822, 824 (Me. 1982)).  "If
issues become moot, an appeal is nonjusticiable."  Sordyl v. Sordyl,
1997 ME 87, ¶ 4, 692 A.2d 1386, 1387 (citation omitted).  "The test for
mootness is whether there remain sufficient practical effects flowing from
the resolution of the litigation to justify the application of limited judicial
resources."  Nugent v. Town of Camden, 1998 ME 92, ¶ 6, 710 A.2d 245,
247 (citing Campaign for Sensible Transp., 658 A.2d at 215).  "A dispute
loses its controversial vitality when a decision by this court would not
provide an appellant any real or effective relief."{5}  International Paper Co. v.
United Paperworkers Int'l Union, 551 A.2d 1356, 1360-61 (Me. 1988).  
	[¶9]  Under the circumstances present here, no meaningful relief
could be afforded to the City.  The City was prevented by a temporary
restraining order from consolidating its voting districts for a special state
election.  The City did not appeal that order prior to the election that was
held on February 10, 1998.  Thus, on its face, the appeal is moot.  Even
though an appeal is technically moot, we have recognized three exceptions
to the mootness doctrine: 

(1) sufficient collateral consequences will result from the
determination of the questions presented so as to justify relief;
(2) the appeal contains questions of great public concern that, in
the interest of providing future guidance to the bar and public,
[the court] may address; or (3) the issues are capable of
repetition but evade review because of their fleeting or
determinate nature.

Halfway House, 670 A.2d at 1380 (citations omitted). 
	[¶10]  The Superior Court determined and the parties contend that
this case presents an issue capable of repetition but evading review.  We are
not persuaded, however, that the circumstances of this case are likely to be
repeated.  "Unless the questions that have become moot occur in a context
where there is a 'reasonable likelihood that the same issues will imminently
and repeatedly recur in future similar contexts with serious impact upon
important generalized public interests, the determination of those questions
should be avoided."  Campaign for Sensible Transp., 658 A.2d at 215-16
(quoting Good Will Home Ass'n v. Erwin, 285 A.2d 374, 380 (Me. 1971)).  
	[¶11]  The date for the "Peoples Veto" special election, February 10,
1998, was not established until the week of November 24, 1997.  Although
the special election could have been held as late as six months after receipt
of the "People's Veto" petition, see Me. Const. art. 4, pt. 3, § 17, the
Governor called for an election date that was less than three months away
and was in the month of February, when weather conditions are likely to
reduce voter turnout.  Because 21-A M.R.S.A. § 631 requires municipal
officers planning to consolidate a city's voting districts to provide public
notice and a hearing 60 days before the election, the timing of the
announcement precluded consideration of the issue at a regularly scheduled
City Council meeting.  As a result, a special meeting of the City Council was
held just prior to a City Council workshop.  The MCLU contends that the
specificity of the notice is important because public comment is not normally
allowed at City Council workshops and, without the notice specifying that
consolidation of the voting districts was on the agenda, the public would be
unaware that the purpose of the hearing was to consider consolidation.  For
those circumstances to recur, the City must not only seek to consolidate its
voting districts for a future election, but the setting of the election date must
be such that the issue of consolidation could not be considered at a regular
City Council meeting.  We consider the occurrence of such a circumstance to
be unlikely.  The issue of notice presented here, therefore, is not likely to be
revisited in a future case.  Because this appeal presents issues that are moot
and because the unique circumstances surrounding this appeal are unlikely
to be repeated, we dismiss the appeal as moot.
	The entry is:
			Appeal dismissed.
Attorney for the plaintiff:
David Lourie, Esq. 	 (orally)
189 Spurwink Ave.
Cape Elizabeth, Maine   04107

Attorney for the defendant:

Mary Kahl, Esq.		  (orally)
City of South Portland
P.O. Box 9422
South Portland, Maine 04116-9422