CHAPTER V: Petitions for Town Meetings
[from Town Meeting
and Elections Manual, MMA]
This Maine Municipal Association publication is presented for "Classroom Use Only." Its intended use is to stimulate and aid in discussion and role playing within a classroom setting.
Introduction
State law makes important provisions for the right of petition. That right includes the right to petition for town meetings for the voters to consider specifically requested articles. Municipal officers need to know Maine law and procedure, and their own duties and powers, relating to petitions.
In Chapter II of this Manual we have reviewed generally the nature of the business that can be scheduled on a warrant for transaction at a town meeting, and we have stated that any of those matters can be the subject of a petition for an article on a warrant. Such a petition can arise in a town that does all of its business in an open town meeting forum or in a secret ballot town, where referendums are allowed.
In addition to petitions for business articles, such as ordinance and budget proposals, another kind of petition filed with town clerks may be a nominating petition for a position as an elected municipal official. This is done both in secret ballot towns and in those which, although they do not vote by secret ballot, have elected pursuant to 30-A MRSA §2527 to use the procedures of 30-A MRSA §2528 for nomination of candidates. This chapter concerns only petitions relating to issues, not nomination petitions. Those are discussed in Chapter VI.
Free Circulation of Petitions
Overview. In 1989 it came to the attention of the Legislature that one or more municipalities had charters or ordinances requiring voters to come in to city hall or town hall in order to sign some or all kinds of petitions, rather than allowing petitions to circulate freely among the general municipal population. The Legislature overrode any such limitations by enacting 30-A MRSA §2504, which bars municipalities from enacting any charter provision or ordinance "prohibiting the circulation of petitions for any local initiative." Accordingly, petitions must be allowed to be freely circulated.
Referendum as well as initiative petitions. The prohibitory language in Section 2504 uses the phrase "local initiative" and does not include the word "referendum." (These are terms commonly defined and provided for in municipal charters.) This might tempt one to limit 30-A MRSA §2504's prohibition of limitations on circulation to petitions for initiatives. For a couple of reasons, not least the specific listing contained in Section 25 and set out below, it is recommended that municipalities allow petitions both for initiatives and for referendums to circulate freely.
Examples. Section 2504 lists, by statutory reference, four specific kinds of local petitions which can be circulated by any registered voter, but these are set forth in the statute as examples only:
- petition for article on the warrant (30-A M.R.S.A. §2522);
- petition for a local referendum election in a secret ballot jurisdiction (30-A M.R.S.A. §2528(5));
- petition for an ordinance in a city to establish a local right of initiative and referendum in municipal affairs, and a petition arising under such an ordinance (Constitution of Maine, Art. IV, Pt. Third, Sec. 21); and
- petition pursuant to a municipal charter provision authorizing local initiatives.In the remainder of this Chapter the principal focus of attention is the first of these, although a bit is said about the second.
Who May Circulate Petition
It appears that any registered voter of the state may circulate a petition for a local initiative. Section 2504 of Title 30-A provides that "A petition related to any local initiative ... may be circulated as provided in Title 21-A, Section 903-A" (emphasis added). Section 903-A states that a petition may be circulated by any registered voter. Thus, it appears that, although a petition circulator must be a registered voter, the voter need not be registered to vote in the particular municipality in which the petition is circulated.
Note that other statutes may clearly impose a more specific requirement in specific contexts. For example, the statutes on charter commissions for adoption and revision of charters can be initiated either on order of the municipal officers or by local petition, but the petition must have a committee of locally-registered voters. See 30-A M.R.S.A. §2102(3). Accordingly, statutes specific to the subject matter of a petition should always be consulted.
Who May Sign Petition
Under all statutes concerning municipal petitions, only the signatures of voters registered to vote in the municipality in which the petition arises will count towards any applicable statutory requirement that a certain number or percent of signatures be obtained.
General Petition Statute [Overview of 30-A MRSA §§2522 and 2521(4)]
The remainder of this Chapter is addressed principally to the general power of petition for a town meeting warrant article.
Section 2522 of Title 30-A states the general petition requirement. It must be read together with a subsection of another statute, Section 2521(4), which provides additional procedure where municipal officers refuse to act on a petition. (Sections 2522 and 2521(4) were formerly a single statute.)
Section 2522 provides that if a number of voters of a municipality equal to a least ten percent (10%) of the number of votes cast for all candidates (including write-ins, although the statute does not expressly mention write-ins) in the town at the last gubernatorial election (but in no case less than ten voters) sign a written petition and submit it to the municipal officers, the Municipal officers "shall" either insert a particular article in the next warrant issued or "shall" within sixty (60) days call a special town meeting for its consideration.
Section 2521(4) provides that if the selectmen unreasonably refuse to call a town meeting, a notary public may call the meeting on the written petition of a number of voters equal to at least ten percent (10%) of the number of votes (including write-ins) cast in the town in the last gubernatorial election, but in no case less than ten voters.
Read together, it can be inferred that municipal officers do not have to act on every petition submitted to them, but that they may refuse it if their refusal is reasonable. If the circulators or other voters then believe that the refusal to act was not reasonable, they can begin a new petition, addressed to a notary public, who is empowered to issue a warrant for a town meeting to address the business proposed by the petition.
The statutes do not expressly require the voters who sign the petition addressed to a notary to be the same voters who signed the original petition, and no such requirement should be inferred.
The concept of reasonable refusal is discussed below (page 49), as is the power and duty of a notary public to whom a petition is addressed (page 56). Before taking up these subjects, there are many other preliminaries to discuss.
Circulators of Section 2522 or 2521(4) Petition; their obligations
As noted above, there appears to be no requirement that the circulators of a Section 2522 or a Section 2521(4) petition be voters of the town, or even residents of the town, but it appears they must be registered to vote somewhere in Maine.
Must a circulator do any of the following: (a) state that he personally circulated the petition? (b) state that each signer had an opportunity to read the petition before signing? (c) state the number of signatures on the petition? (d) state that each signer has signed no more than once; (e) swear or affirm that each of the voters signed in the presence of the circulator; or (f) swear or affirm that to the best of his knowledge and belief each signature is the signature of the person whose name it purports to be?
A circulator of a petition for a charter commission must execute an affidavit on the back of each petition form attesting to each of the six elements mentioned above. See 30-A M.R.S.A. §2102(B)(3). There is no such express requirement in Title 30-A for a petition under Section 2522 or Section 2521(4).
From the above, it can be argued that a Section 2522 or 2521(4) petition can simply be posted on a wall or placed on a counter in a business establishment in a town, and collected later for filing, and that it need not be accompanied by any circulators affidavit. There is a contrary argument. It is that Title 30-A incorporates both Title 21-A and the Maine Constitution by reference. See Albert v. Town of Fairfield, 597 A.2d 1353 (Me. 1991). Under this argument, not only would petition blanks be obtained from the town clerk, but also the circulator would have to verify under oath before a person authorized by law to administer oaths that all of the signatures to the petition were made in his or her presence and that to the best of his or her knowledge and belief each signature is the signature of the person whose name it purports to be.
We think the better view is the first of these two -- that a Section 2522 or a Section 2521(4) petition can be "homemade" and that no circulators affidavit is required.
Form of Petition Under Sections 2522 and 2521(4)
No particular form is prescribed by law for a Section 2522 or a Section 2521(4) petition. A petition should, however, on each page bearing signatures, set out the full text of the request, as a failure to do so may invite question, if the fact is not otherwise apparent, whether each of the signers had before her or him the full text of the petition before signing.
Section 2522 petitions typically are addressed 'To the Board of Selectmen of the Town of ______" and begin with the phrase "We, the undersigned, being registered voters of the Town of _______, request the municipal officers to place the following article before the voters for their consideration" and follow that introduction with the text of the article itself.
There is no express Title30-A requirement that a clerk or other municipal official prepare a form and make it available to anyone who wishes to circulate a Section 2522 or 2521(4) petition, but, as we have shown above, there is an argument that 30-A M.R.S.A. §2501, read together with 21-A M.R.S.A. §901, requires the clerk to make such forms available (and that only such forms be used). Section 901(2) indicates that some reasonable payment can be required for the forms, and Section 901(3) provides (again, through incorporation by reference) that a voter who prefers may furnish his own forms, but that they must be approved by the clerk.
There is no express or implied requirement in Title 30-A. Title 21-A, or the Maine Constitution, for either a Section 2522 or a Section 2521(4) petition, that signers provide their street address or anything else but their signatures. Because of the process of validation of a petition (discussed below in this Chapter), however, a clerk may wish to prepare and make available a form for these voter petitions. Such a form could have a column each for signatures, for printed names (to aid in validation where signatures are illegible), and for voters' street addresses. No signature should be discounted solely because the printed name or address does not appear, however.
No Specific Filing Requirement
Section 2522 does not expressly say that a petition must be submitted directly to the municipal officers, or any or each of them, although it should be addressed to them (as in the example above). A petition may come to any of them, or be filed with the clerk across the counter in the municipal office. Whichever municipal official first receives a petition should note the date of receipt upon receipt of it. The municipal officers should be made immediately aware of it, and may want a copy of the text of it promptly.
A section 2521(4) petition presumably will always be addressed and delivered or presented directly to a notary public.
Initial Procedure (validation)
Validation. To "validate" a petition means to ensure that it bears a sufficient number of signatures of voters registered in the municipality. Statute law does not expressly require, or provide any procedure for, validation of Section 2522 or 2521(4) petitions. Validation is, however, implicitly authorized by any applicable requirement that petitions bear a certain minimum percentage or number of signatures of registered voters. If a petition bears at least the minimum required, it must be addressed (that is, considered, not necessarily granted). If it does not, it may be dismissed.
The obvious way to accomplish validation is to compare the signatures on a petition with voter registration records. Certainly if circulators are not required to swear that the signatures are genuinely the signatures of the persons whose names they purport to be, signatures on petitions should not merely be compared with a town voting list, but should be compared directly with voter registration cards on file with the registrar or board of registration. Even with a circulator's affidavit, most municipal officers will want a petition validated.
Validation as first step. Section 2522 does not state whether, after filing, the first order of business is to validate a petition or whether the municipal officers can or should take it up for consideration. In theory, if they took it up directly, they could promptly determine whether they wished to act favorably on it. If they determined that they wished to act favorably on it, it would appear that they could, simply on their own motion and vote, order that the issue go forward to the voters. If they determined that they did not favor it and that a refusal to act favorably would not be unreasonable, there would, similarly, appear to be no need to validate the petition,
However, in order to avoid complications if litigation followed a decision to refuse to act on a petition, the best course would be to validate every petition either before the municipal officers take it up, or contemporaneously with their doing so, if they wished to proceed to consider it while awaiting the results of the validation process. This is recommended even though, particularly in larger municipalities, a routine requirement for initial validation might sometimes impose an unnecessary work burden upon whoever is in charge of the process of validation. (Unnecessary in the sense that if the petition can be refused on its merits, it can be refused regardless of whether it bears a sufficient number of signatures; the absence of the required signatures is simply an additional ground for a refusal.)
For purposes of this Manual, it is assumed that the process of validation precedes formal consideration of a petition by the municipal officers.
Responsibility for validation. Title 30-A does not specify who is responsible for validation of a Section 2522 or a 2521(4) petition. Obvious candidates are the clerk and the registrar. In some municipalities these offices are held by the same person, but in others they are not. Assignment of validation responsibility may be a matter of custom, position description in the case of an appointed clerk, or ordinance. In some towns, validation may be the responsibility of an administrative assistant or secretary to the board of selectmen.
Of these potential validators, one position clearly has the nature of a state official. That is the registrar of voters (or board of registration). Title 21-A, which establishes the office of registrar (and board) does not say that their duties shall include, in addition to those prescribed by Title 21-A, any assigned by the authority that appoints them. Arguably, the registrar or board should not be burdened with additional duties of a local nature. However, some registrars may prefer to validate the signatures themselves rather than have another person working extensively through the voter registration records.
An argument favoring assignment of validation of Section 2522 and 2521(4) petitions to the town clerk is that, for a charter commission petition, the law says the clerk shall determine and prepare a certificate of sufficiency of the petition. See 30-A M.R.S.A. §2103(4). Because clerks have this statutory duty anyway, and therefore should be acquainted with validation procedures, it makes sense to assign all petition validation duties to the clerk.
Municipal officers would do well to assign in writing the responsibility for validating Section 2522 and 2521(4) petitions, as well as other statutory petitions. An elected clerk may object, but it seems very likely a Court would say this is the clerks job.
For purposes of the remainder of this discussion, it is assumed that validation is done by the clerk.
Procedure. If it cannot be ascertained that a petition signature is indeed the signature of a registered voter of the municipality, the clerk should indicate as much by a checkmark and initials in the margin next to the entry, not by striking out or otherwise obscuring the signature.
The base for calculating whether there is a sufficient number of signatures is the number of votes cast in the municipally in the last gubernatorial election. That base number can be determined from the return of the most recent gubernatorial election filed with the Secretary of State. The total number should include any write-in votes cast for the office of Governor, as well as the votes cast for the candidates whose names were printed on the ballot.
If the number of valid signatures does not equal ten percent of the base number of gubernatorial votes, and in any event if there are fewer than ten valid signatures, then the petition is insufficient.
If a clerk determines that a petition is sufficient, then the clerk should certify that determination to the municipal officers and forward the petition or an attested copy to them for their consideration. If the clerk determines that the number of valid signatures is insufficient, then the clerk should certify that determination, and forward a certificate and the petition or an attested copy to the municipal officers, who should thereupon dismiss it as insufficient. If they wish to further insulate their action from attack and can agree on a reasonable basis for refusing to act favorably on the petition (see discussion below), then they can also, though not required to, go on record with a vote that declares, in effect, that even if it were valid they would not act favorably on it.
Additional procedure where signatures insufficient. Though not required by law,the municipal officers may determine, in lieu of dismissal of a petition bearing an insufficient number of valid signatures, to specify an additional period of time in which circulators will be allowed to gather and submit a number of additional signatures sufficient, with those already validated, to meet the minimum necessary.
The municipal officers would do best to create a written statement of policy concerning Section 2522 petitions before doing this. Such a policy could cover the following points: the original petition will remain on file and cannot be returned to the circulators; any additional signatures submitted will be the subject of validation and certification; a new and final certificate of sufficiency (or insufficiency, as the case may be) will be prepared by the clerk (or other validator) and submitted to the municipal officers, who will thereafter address the merits of the petition; and upon certification the supplemental petition may be associated with, and if the entirety is now sufficient, incorporated with, the originally filed petition.
In adopting such a policy, municipal officers may wish also to review and borrow from 30-A M.R.S.A. §2102(4), which, for charter commission petitions, expressly authorizes and provides procedures for a single supplemental petition filing where an initial filing is insufficient. In adopting such an extension policy, however, municipal officers should bear in mind that any extension granted will not have the effect of extending the sixty-day period provided for a decision on a petition under Section 2522 (which is discussed below in this Chapter).
Staleness of signatures. Section 2522 does not specify how recently before a filing the signatures on a petition must have been collected. This is the concept of staleness. It is not ordinarily a concern in petitions for business articles, as opposed to petitions for nomination of candidates (for which Section 2528 makes specific provisions, to guard against stale petitions),
However, controversies on issues come and go. Voters may not feel the same way about the subject matter of a petition six months or a year after they sign it, particularly if, even though it was not filed, some dispositive action on a controversy has been taken by the municipal officers or by a town meeting. Accordingly, if it is clear from the face of a petition that the signatures on it were collected a year or more, say, before the filing date, the municipal officers may wish to suggest to any known circulators that the petition may be stale, and that the circulators may wish to gather additional, fresh signatures, or circulate another petition. The municipal officers should not on the ground of staleness decline to accept a petition for consideration. It may be a ground for dismissing it after acceptance without considering its merits. Would this be a reasonable thing to do? Counsel should be consulted before determining to dismiss a Section 2522 petition for signature staleness, because no statute addresses this question and case law should perhaps be researched in depth.
Withdrawal of Signature from Petition
Before continuing with procedure after filing of a petition, we should consider two circumstances involving a voter seeking to withdraw his or her signature or name from a petition.
Withdrawal after signing but before filing of petition. A voter may inquire of a clerk or other municipal official after signing a petition but before it has been filed whether the voter's name can be withdrawn. The clerk should refer such an inquirer to any known circulator of the petition, as that is a matter between the circulators and the signer. No law known to MMA Legal Services staff requires a circulator to permit a signer to withdraw, but a circulator may wish somehow to accommodate the signer.
Withdrawal after filing not permitted. No statute expressly authorizes or forbids the withdrawal of a signature on a petition after filing. The recommended rule is simple: if you signed it, you cannot withdraw your name after filing. This is a simple rule of "look before you leap" which everyone should apply in civic and legal affairs. (The same rule applies to withdrawal of signatures on nomination petitions in secret ballot and Section 2527 towns.)
After filing of a petition, a signer's signature should not be erased, deleted, stricken out, or otherwise obscured or altered, and no entry should be made indicating that the signature is withdrawn. The signature, if it is that of a registered voter, will count in determining whether the required number of voters have signed, despite any expressed wish by a signer that the signature be discounted or disregarded.
A clerk, when confronted with a request for withdrawal, should provide the foregoing view, and may also, although not under any legal obligation to do so, wish to advise the signer that: (1) signing a petition does not legally commit or bind a person to vote at all, much less to vote for the issue presented; (2) if the issue is going to an open town meeting, the signer can appear and seek to speak in opposition to the issue despite having signed the petition; and (3) if it sufficiently concerns the signer, he or she can seek in other ways (e.g., letter to the editor) to disclaim support for the measure.
It may be important for clerks and other municipal officials to be aware of the human dimension of the matter of withdrawal of a signature. Sometimes a voter will realize only after a petition has been filed that it is open to inspection as a public record, and some may fear employment or business or other recrimination or adverse consequences for having signed. A voter may even have been threatened for having signed. Regrettable and understandable as such fears may be, however, there is no discretion or power to strike or obscure or otherwise delete the signature, and only sympathy can be extended.
In summary, the simple, recommended, uniform rule is that once a petition is filed a signature cannot be withdrawn in any way, for any reason.
Withdrawal of Petition
As with withdrawal of a signature after filing, there can be no withdrawal of a petition or any portion thereof after filing. Neither the petition nor any part of it should be in any way returned to a circulator. The document itself and its legal force and effect cannot be thus rendered inoperative.
The underlying theory here is that once individual voters have signed a petition and it has been filed, they have acquired some right to consideration (if the petition is otherwise valid) which cannot be withdrawn or cancelled by the circulators. Lafleur, Atty. Gen. v. Frost, 146 Me. 270 (Me. 1951).
The deeper question is whether any action at all can be taken that will destroy the legal vitality of a petition, such that its merits cannot be considered by the municipal officers.
The answer to this is also in the negative, with one theoretical exception. If all of the voters who signed a petition filed affidavits (sworn statements) requesting withdrawal or inaction on the petition, then perhaps the municipal officers could if they wished honor the affidavits and not consider the merits of the petition,
Consideration of Merits of Petition by Selectmen
Introduction. As indicated in the introduction to this Chapter, the municipal officers can refuse to put a petitioned article on a warrant if it would be reasonable for them to refuse to do so.
No definition of an "unreasonable refusal" or of a "reasonable refusal" appears in the statutes. Our knowledge of the concept of reasonability comes from case law. Before reviewing in detail what the decided cases teach us, it is very important to understand that the municipal officers may not refuse a petition merely because, from their political or personal perspective on what is appropriate for the municipality, they believe the petition is unreasonable. Their denial must be objectively reasonable as a matter of law.
Necessity for valid petition. For there to be a refusal to act, a petition must first be presented to the selectmen. Without a request, there can be no refusal, reasonable or unreasonable. Allen v. Hackett, 123 Me. 106 (1923).
Ultra vires request, or request for illegal action. Where it would be beyond the power of the voters of a town to act upon a particular article (such an action is said to be ultra vires, the Latin phrase literally means "beyond the powers"), or where the article seeks to accomplish an object at odds with law or the U.S. or Maine Constitution, the municipal officers can reasonably refuse to issue a warrant. Examples follow.
EXAMPLE - Even if enacted, petitioned ordinance would be invalid. In a case decided by the Maine Supreme Judicial Court, it was held that the municipal officers of Portland could not be compelled by the court to submit to the voters an ordinance which, if ratified, would be invalid. It would be a useless act on the part of the municipal officers, declared the Court, which then said that a court will not issue a peremptory writ to compel a useless act. LaFieur, Atty. Gen. v. Frost, 146 Me. 270, 290 (1951).
EXAMPLE-Vacancy in elective office that municipal officers may fill by appointment. With the exception of the positions of municipal officer and municipal school committee, a vacancy in office may be filled by the municipal officers by appointment of a successor, per 30-A M.R.S.A. §2602, to serve out the remaining term, When the municipal officers, following a resignation of say, an elected treasurer or road commissioner, appoint a successor who duly qualities and is sworn, and are then presented with a petition for a special town meeting to elect a successor to the official who has resigned, it is reasonable for the municipal officers to refuse to honor the petition, because there then remains no vacancy to be filled. Googins v. Kilpatrick, 131 Me. 23, 27 (Me., 1932) (treasurer). To the same effect is an Opinion of the Attorney General, May 13, 1980 (road commissioner),
EXAMPLE - Cable television ordinance enactment is exclusive authority of municipal officers. If petitioners sought enactment by the town meeting of a cable television enabling ordinance, the article would run afoul of 30-A M.R.S.A. §3008(2), which awards to the municipal officers the exclusive authority to enact such an ordinance. Adoption of such an ordinance by the voters would be beyond their powers, and the act would be void or voidable. Accordingly, a court would probably not require the municipal officers to hold a town meeting to vote on such an ordinance, and would quash any warrant issued by a notary public for the call of such a meeting. This example is akin to the City of Portland case, above.
EXAMPLE - Petition for town to establish or change speed limit. This example, also, is akin to the City of Portland case mentioned above. Municipalities may not establish, or increase, or lower, speed limits on any public road, including municipal roads. 29 M.R.S.A. §1251. Thus, it would be entirely reasonable, as a matter of law, to refuse to call a meeting to vote on an article to establish, or to raise or lower, a speed limit. (As a political matter, however, the municipal officers might well wish to communicate with the Commissioner of Transportation in response to a petition to change or set a speed limit, See the discussion of this subject in MMA's Municipal Roads Manual.)
EXAMPLE - Simple article (not an ordinance) for plowing private driveways at public expense. A petition to use public monies (e.g., from a town's surplus account) to pay the winter maintenance crew or a private contractor to keep everyone's driveway clear of snow would run afoul of the constitutional law doctrine that public funds cannot be devoted to essentially private benefits or other purposes, See, Opinion of the Justices, 560 A.2d 552 (Me., 1989). Such a petition could be dismissed as asking for something not within the power of the voters to direct, or of the municipal officers of the town to accomplish.
We now discuss more extensively a Sixth illustration of a "reasonable refusal" to honor a petition.
Petition to reconsider action after formal adjournment. Sometimes, voters will seek to reverse the outcome of an open town meeting vote on an issue, or of a secret ballot referendum, by petitioning for a new meeting or election to consider the same article previously acted on (whether passed or defeated). A 1990 Superior Court case is worth discussing at some length.
The case dealt with a secret ballot referendum on a school construction issue, and held that it was not unreasonable for the municipal officers to refuse to put an issue to a second referendum vote, at least upon the petition of a minority of voters, where no irregularity appeared in the conduct of the first vote.
The town concerned had voted by secret ballot referendum, 399 to 390, to approve a school construction bond issue. A ballot inspection was requested and held, and apparently turned up nothing warranting a recount. Nine days after the election, however, the municipal officers were presented with a petition bearing a sufficient number of signatures to entitle it to their consideration. The petition asked for another election and a revote on the same issue. The selectmen voted unanimously to reject the petition. Thereafter, a second petition was submitted, which did not ask for a revote, but for a meeting at which the voters could vote on whether to rescind the approval which had previously been given. (The effect of a rescission would be, one would think, much the same as a revote in which the referendum were defeated, but the circulators were probably trying by the wording of the second petition to respond to whatever they knew of the selectmen's reasoning for rejecting the first one.)
The board of selectmen postponed a decision on the second petition and filed suit in Superior Court. While the suit was pending, a third petition was in circulation. It was addressed to a notary public, and alleged that the selectmen had unreasonably refused to issue a warrant, and called upon the notary to do so. (This third petition was a Section 2521(4) petition. Procedure on them is discussed below,)
The Superior Court declared that the obligation upon the municipal officers (the "shall') in both 30-A M.R.S.A. 2522 and 2528(5) "should be interpreted to apply to petitions proposing new articles for voter consideration or concerning municipal officers' failure to act and should not apply to situations, such as the one presented here, in which minority voters seek a revote on a recently approved referendum." Inhabitants of the Town of Vassalboro v. Frederick & Camille Denico, et aL, Sup.Ct.Kenn.Cty., Civ, Action Docket No. 89-517 (Feb. 23, 1990), at p. 3.
The Superior Court went on to say that even if, contrary to its considered judgment, Sections 2522 and 2528(5) do permit reconsideration elections on the petition of a minority of voters, the denial in the case before it was not unreasonable as an abuse of discretion, because of factors the court reviewed. The court noted that although the voter turnout was low (it was a special election) and the margin of victory small, there were no allegations that voters were unable to get to the polls because of a natural disaster or other adverse circumstances. Moreover, the court found that the ballot inspection had revealed no evidence of fraud or impropriety. Finally, because there was some allegation that some town or school official had publicly misstated one or more facts relating to the bond issue, the court, for reasons that do not appear in the opinion, found that the board of selectmen could have reasonably concluded that the allegations were insufficient to require them to call for a second vote. Accordingly, the Court granted summary judgment to the plaintiff town, thereby effectively upholding the refusal of the selectmen to act on either of the first two petitions, and quashing any filing of the third. No appeal was taken in the case.The full text of the decision appears in Appendix D to this Manual.
The significance of the decision is that it appears to be the first by any Maine court of record to suggest that municipal officers need not permit the "ping-ponging" of referendum issues back and forth by a minority faction of dissatisfied voters. The municipal officers, it appears, can reasonably conclude that the first valid vote on an issue will be the only vote on to issue. (A related decision, Heald v. SAD No. 74, 387 A.2d 1 (Me. 1978), involved a different statute, and a SAD referendum and board of directors, not a board of selectmen or other municipal officers.) It would seem that the reasoning of the second prong of the decision could be applied to a petition seeking a second meeting and a re-vote on an issue decided by an open town meeting as well as to one decided by a secret ballot referendum.
Thus selectmen confronted with a "ping-pong" situation, where they conclude that it would be reasonable to refuse to call for another vote, can assert first that the law bars the petition and second that if it does not it is nevertheless reasonable to refuse it, in the particular circumstances. Of course if they are inclined to grant the petition, they can grant it and leave it to others to argue the first prong of the opinion as in the Vassalboro case.
Unintelligible petition. It may be reasonable (no decided case is known) to refuse to honor a petition for an article where the petitioned article is hopelessly unintelligible to a reasonable and fair-minded reader - that is, where it is simply impossible, because of ambiguity, apparent incompleteness, or other defect to discern what question the petition proposes to put before the voters. But counsel should be consulted before any determination is made that a petition is so vague or incomplete or ambiguous that even if it were adopted no one would know what it meant.
Technical deficiencies and objections. If a petition has been signed by the required minimum number of voters, a court will likely be impatient if the municipal officers have tried to turn every conceivable deficiency in the form of the petition into an argument for legal insufficiency. Here are five quick examples of clearly or arguably deficient petitions. All of the petitions in these examples should probably be allowed.
-A petition is not addressed to the municipal officers (as in the form, "We, the undersigned voters of the Town of ______, hereby petition the municipal officers of the said Town to place the following article before the voters for their consideration") but merely says "Please call a town meeting to consider the following article" and is delivered to them. The municipal officers should treat this as sufficient, if properly validated and otherwise proper.
-A petition is clearly addressed to the municipal officers but is delivered to the town clerk. This should not be a problem.
-A petition includes more than one article. This should not matter, even if they concern unrelated subjects. (If the substance of one article calls for an illegal act, however, or is utterly intelligible, then it might be refused while an unrelated, legal, and intelligible article should go forward.)
-A petition includes some articles that appear proper and some that are clearly illegal or otherwise beyond the powers of the voters, as discussed above. This is not a basis for rejecting the entire petition. The articles that it would be objectively unreasonable to refuse should ordinarily go forward to the voters.
The selectmen should bear in mind, too, that although they cannot change the wording of a petition, they can, for an open town meeting warrant, include both the petitioned article and any alternative version they prefer. In their alternative version, they can correct any technical deficiency in the petitioned article. This is discussed further below, in this Chapter.
Summary advice. Experience teaches that a court will listen carefully to arguments that a petition seeks an unauthorized act or thing, or that it seeks a re-vote on an issue that has recently been fairly and properly decided by a validly called and held town meeting, or that it was otherwise reasonable for the municipal officers to have denied a petition as an objective matter of law, as illustrated by the examples given above or by similarly compelling facts. But it will not suffice if the basis for the refusal is merely the municipal officers' subjective views, i.e., if they refuse a petition merely because it is inconsistent with their view of what is in the better or best interests of the municipality. And it will probably not suffice if the objection is merely a technical one.
The best advice is to apply common sense and to be objectively reasonable along the lines discussed in this Manual, and to consult with counsel, particularly where an article appears unintelligible.
How Long to Decide
Within what time limits must municipal officers make their decision on a petition?
As will be seen from the following discussion, it appears that they must decide well within sixty days after a petition is filed or presented.
Putting Issue to Vote
Introduction. Assume the filing of a petition containing a sufficient number of valid signatures of voters, and a request that it would not be reasonable for the municipal officers to refuse to act on. The obvious next question is when should or must the issue be put to a vote.
What if a petition specifies a date, or a date not later than which a meeting is requested? What if the petition is silent on the point? We have stated above, in Chapter II, that it is the municipal officers who set the date and time of annual and special meetings. The doctrine of "reasonable refusal" discussed above in this Chapter appears to apply as well to the timing of a meeting as to the subject matter of a meeting. But there is a statutory requirement which must be reviewed.
The statutory requirement. Section 2522 provides that "the municipal officers shall either insert a particular article in the next warrant issued or shall within 60 days call a special town meeting for its consideration." Much confusion arises from this statute because of the sequence of the phrases. It appears to mean that the selectmen's choices are two. They must either call a special town meeting to be held within 60 days after receipt of the petition or they must place it on the next warrant issued after sixty days from receipt of the petition.
The statute should not be read too technically. For example, if the selectmen have, before a petition is received, already posted a warrant for a town meeting which is to be held within sixty days after the petition is received, and if they decide to take the petition issue to a vote within sixty days of its the receipt, they can do so by adding it to the warrant for the meeting they have already scheduled. See the discussion of addendum warrants in Chapter II of this Manual. Also, if the selectmen issue a warrant for other business after a petition has been received but for a meeting within sixty days of filing, they can add the requested article to that warrant.
Similarly, whether a petition requests a special meeting or that the issue go to the annual town meeting, the municipal officers can decide to do the opposite of what is requested, if their decision is reasonable.
At heart, the statute, read together with 30-A M.R.S.A. §2521(4) means that municipal officers should have a good reason for not, one way or another, taking the issue to the voters within 60 days of filing. It may be a sufficient reason that the issue is not pressing or fugitive or transitory, or that the petitioners will not otherwise be prejudiced, or their interests completely destroyed, by delay, and that voter turnout will be higher if it awaits a later meeting (which might be the annual meeting), and that the expense of a special meeting for this one issue is disproportionate or excessive and no other matters are pending or planned for a special town meeting. But it would probably be wrong to delay the actual decision whether to honor the petition at all beyond the initial sixty day limit.
Wherever time is of the essence, for example, if the petition is to approve a grant application, or to appropriate matching funds from surplus, and a grant application or other action deadline is coming up quickly, the municipal officers should not set the date for a vote so far into the future that the vote would be of no assistance to the petitioners.
But the case may be otherwise where the petitioners do not need to meet some third-party deadline. A Penobscot County Superior Court decision illustrates this. Petitioners sought acceptance of a privately-owned road as a public way. The selectmen decided to put the article to a vote at the annual meeting, which was the next warrant issued after the filing of the petition. The annual meeting was not to be held for six more months, however.
The court found that there was no evidence showing an emergency, that the annual meeting was scheduled for "only" six months away, and that there was evidence that more town residents appeared at annual than at special meetings. Goodwin v. Leeman, Sup.Ct.Pen.Cty., Civil Action Docket No. CV-8126 (May 28, 1988). The court appeared to accord little weight to the continued expense to the petitioners for private maintenance of the road. It is hard to believe that the parties did not argue the point. Probably the Court was thinking that it is not unreasonable if the petitioners are merely inconvenienced or frustrated by delay, but that it would be wrong if their rights or opportunity, or whatever chance they had for obtaining their object, would be completely frustrated, or destroyed by delay.
Manner of Vote Requested
As noted in the introduction to this Chapter, a petition for an article could arise in a "pure" open town meeting town as well as in a secret ballot town. If a petition which complies with Section 2528(5) (secret ballot referendums) is submitted, some confusion can arise, because, apart from the filing deadline for a secret ballot referendum petition, a Section 2528 petition may look in all respects like a Section 2522 petition. Confusion also can arise because voters often refer to a "secret ballot" when they mean a written ballot.
Here is some guidance:
1) A petition for an article on an issue arising in a secret ballot town which requests voting "by secret ballot" must be honored.
2) If a petition in a secret ballot town asks for a vote by secret ballot, or asks for a vote under Section 2528, or can in any way fairly be construed to request a secret ballot vote, then that request is binding if the selectmen do not refuse to call the requested election. See 30-A M.R.S.A. §2528(5).
A corollary, however, concerns a petition asking that an article be put to secret ballot vote at a meeting already scheduled by the selectmen, where the petition is not filed at least 35 days before the scheduled election day (see 30-A M.R.S.A. §2528(5) and (4), read together). In such a case, it the warrant has not already been posted for seven days and if no absentee ballots have been mailed out, the selectmen can vote to take down the posted warrant and effectively (by posting a new warrant) postpone the planned meeting far enough into the future to allow them to enter a timely order on their own initiative for a referendum on the petitioned question (such an order, like a petition, must be filed with the municipal clerk at least 35 days before the day to which the election is being postponed, see 30-A M.R.S.A. §2528(5)): or they can decide to proceed with the first meeting already posted and schedule and prepare a warrant for a second, later meeting for its consideration. It is doubtful, however, that the municipal officers can by an addendum warrant (discussed earlier in this Manual) add a secret ballot vote (either petitioned or on their own initiative) to a posted warrant calling only for an open town meeting.
3) If a petition in a secret ballot town asks for a "written" ballot, and does not cite Section 2528 (or cites only Section 2522), then it can be treated as a petition for an open town meeting vote at which it is requested that voting be by written (not secret) ballot. (In fact, at the meeting, the Moderator or the voters themselves are not bound by the petition for a written ballot, but can determine to vote by some other means.) But see paragraph 7 below,
4) It a petition in a secret ballot town is silent on the point and does not request a referendum, and if there is no basis for interring a request for a secret ballot vote, then the municipal officers can order it to a vote either at open town meeting or by secret ballot referendum, as they prefer, but see paragraph 7 below.
5) If a petition in a town that uses only the open town meeting form of voting asks for a "secret ballot" then the request should be construed to be for a vote by written ballot, unless the petition seeks one of the statutory referendums mentioned in paragraph 7 below.
6) A petition for a vote "by written ballot" in a town meeting town (this includes a town that under Section 2527 has elected to use the procedures of Section 2528 for nomination of candidates) should be construed as a petition for an open town meeting. It is believed that the request for voting specifically by written ballot need not be honored simply because the petition requests it. No statute is known which expressly compels it, unless the petition is one to fill a vacancy in the office of moderator (unlikely to be the subject at a petition), selectman, or school committee member. It the petition does not call for such an election, but concerns some other office or an issue not expressly made the subject of a secret ballot referendum by statute, then it is believed that the request for a written ballot vote can be ignored, because the moderator of the meeting sets the procedure for the conduct of the open portion of any meeting, subject only to the exercise of the right of appeal by members of the assembly. ("Appeal" is discussed in Chapter VIII of this Manual.) For that reason, it would probably be inappropriate for the selectmen in the warrant to "order" such an election to be by written ballot. The meeting moderator can be alerted to the issue and invited or requested to consider it when determining how the vote will be conducted.
7) A petition arising under other statues that require the use of Section 2528 secret ballot procedures, even in towns that are not secret ballot towns, should be treated as a petition for a secret ballot vote, and this is so even if such a petition does not expressly ask for a vote by secret ballot, or if it asks for a "written ballot" vote or for an open town meeting. Five such statutes are identified at the top of page 34 of this Manual. They relate to charters, local liquor options, SAD referendums, revenue bonds, and school construction bonds. Upon receipt of a petition that is clearly concerned with one of these subjects, the discussion in Chapter IV and the pertinent statute cited therein should be reviewed carefully.
Incorrectly Petitioned Article -Use of Alternative Article
Overview. Sometimes a petitioned article will have typographical errors or apparent, and apparently inadvertent, gaps or omissions, or will seem otherwise unclear, or will mis-cite an ordinance which the article proposes to amend, or have some other defect. Sometimes, too, a petitioned article will appear complete but have some other, clearly substantive defect. Also, the municipal officers may believe that there is a more direct or more efficient way to accomplish what they perceive is the petitioners' objective. What are the limits of the selectmen's authority in such circumstances?
Typographical errors and other non substantive defects. The municipal officers should consider in all such cases that they have virtually no latitude to change the language of the petitioned article, even with the consent of the circulator(s) of the petition. This is because to alter the petitioned article would be to change what all of the signers - the petitioning voters - put their names to.
While it may seem entirely unobjectionable for municipal officers, in preparing the warrant, to correct what seem to be obviously faulty grammar or misspellings in a petitioned article, they have no obligation and no power to do so, and best practice is not to, but to print the article exactly as filed with the clerk.
Substantive matters. If the petition is not one asking for a referendum vote in a secret ballot town, then the municipal officers,both for minor and for more substantive matters, may put on the warrant both the petitioned article and an alternative article of their own drafting, They should not alter the petitioned article itself in any way. At the open town meeting, the municipal officers can urge that the petitioned article be defeated or passed over, and that their own proposal be considered.
Indeed, if the identity of one or more of the circulators is known, the municipal officers may succeed in convincing them in advance of town meeting of the relatively greater merits of the municipal officers' alternative proposal, and persuade the circulators themselves to move at the meeting for defeat or pass over of their own article, so that the alternative can be taken up with dispatch. Ordinarily, the alternative article will appear on the warrant immediately after the petitioned article, and information notes after each can explain the origin of each, and the recommendation of the municipal officers.
This alternative article technique is feasible only where the petition has not requested a secret ballot vote in a secret ballot town: there is no practicable way to list alternative articles on a pre-printed ballot, and there is a risk that both will pass, which will only complicate matters.
There will be times, however, when municipal officers will prefer not to submit any alternative, and to hope that the petitioned article will die of its own internal infirmities, omissions, or ambiguities. Results cannot be guarantee; however.
Refusal to Honor Petition
What happens when there is a refusal to call a meeting?
It was said above that petitioners can seek relief from a notary public if the municipal officers unreasonably refuse to honor a petition.
Our highest state court has said that the whole theory of the New England town meeting has been that upon all necessary occasions the inhabitants of a town could on short notice come together. On that idea is based the statute authorizing a notary (it formerly authorized a justice of the peace) to issue a warrant if the selectmen unreasonably refuse. Jones v. Sanford, 66 Me. 585, 590 (1877).
In fact, if application is made to a notary, the notary has no discretion not to issue a warrant calling the requested meeting and including the requested article or articles. In this respect the notary's duty is ministerial, not judicial - involves no discretion. The notary is not to hold a hearing nor otherwise to decide on evidence concerning the reasonableness or unreasonableness of the selectmen's refusal. Southard v. Bradford, 53 Me, 389 (1866).
Municipal officers who believe they have reasonably refused to honor a petition may apply to a court for a declaratory judgment (one declaring the relative rights of the parties) and an injunction barring the meeting and quashing the warrant, or they may delay and let the meeting run its course. Indeed, the municipal officers can choose to attend the meeting and attack the proposal, or they can simply boycott the meeting. (A clerk arguably has a statutory duty to attend, and so should be there: if a clerk is nonetheless absent, a moderator should appoint a clerk pro tem.) There is a chance, after all, that the requested article will not pass, and that would probably end the controversy. If the article does carry, the municipal officers can either go to court or refuse to implement whatever action the article directs or contemplates, thereby forcing others to take the judicial initiative.
The law is clear that a town meeting called by a notary public, where there has not been an unreasonable refusal by the municipal officers to call the meeting, is an illegal meeting. Allen v. Hackett, 123 Me. 106, 114 (Me. 1923). Once a court declares a meeting to have been illegal, it follows that any action taken at it is void and a legal nullity. An issue flowing from that is the validity of acts of any officials elected at such a meeting, Counsel should be consulted on this issue.