PORTLAND REGIONAL CHAMBER OF COMMERCE et al. v. CITY OF PORTLAND et al.
2021 ME 34; Docket: Cum-21-31
MAINE SUPREME JUDICIAL COURT
Argued: May 4, 2021; Decided: July 6, 2021
Reporter of Decisions
MEAD, J.
[¶1] Portland Regional Chamber of Commerce and other entities1 (collectively, the Chamber) appeal from a judgment of the Superior Court (Cumberland County, Warren, J.) granting summary judgment against the Chamber on its claims that voter-initiated legislation establishing an emergency minimum wage in Portland violates the Maine Constitution and the Portland City Code. Caleb Horton and Mario Roberge-Reyes (Intervenors) cross-appeal from the court‘s determination that the emergency minimum wage provision is not effective until January 1, 2022. We affirm the judgment.
I. BACKGROUND
[¶2] The pertinent facts are not contested and are drawn from the summary judgment record. See Oceanic Inn, Inc. v. Sloan‘s Cove, LLC, 2016 ME 34, ¶ 25, 133 A.3d 1021. In July 2020, the required number
(b) Minimum Wage rate:
(i) Beginning on January 1, 2022, the regular Minimum Wage for all Employees, including, but not limited to, Service Employees, shall be raised to $13.00 per hour;
(ii) Beginning on January 1, 2023, the regular Minimum Wage for all Employees, including, but not limited to, Service Employees, shall be raised to $14.00 per hour; and
(iii) Beginning on January 1, 2024, the regular Minimum Wage for all Employees, including, but not limited to, Service Employees, shall be raised to $15.00 per hour; and
(iv) On January 1, 2025 and each January 1st thereafter, the minimum hourly wage then in effect must be increased by the increase, if any, in the cost of living. The increase in the cost of living must be measured by the percentage increase, if any, as of August of the previous year over the level as of August of the year preceding that year in the Consumer Price Index for All Urban Consumers, CPI-U, for the Northeast Region, or its successor index, as published by the United States Department of Labor, Bureau of Labor Statistics or its successor agency, with the amount of the minimum wage increase rounded to the nearest multiple of 5¢. If the state minimum wage established by
26 M.R.S. § 664 is increased in excess of the minimum wage in effect under this ordinance is increased to the same amount, effective on the same date as the increase in the state minimum wage, and must be increased in accordance with this ordinance thereafter.. . . .
(g) Effect of Emergency Proclamation. For work performed during a declared emergency, the effective Minimum Wage rate established by this ordinance shall be calculated as 1.5 times the regular minimum wage rate under subsection (b) above. A declared emergency under this ordinance shall include the period of time during which:
(i) A proclamation issued pursuant to Chapter 2, Sec. 2-406, of this code declares an emergency to exist, if such emergency proclamation is geographically applicable to the Employee‘s workplace; or
(ii) A proclamation issued pursuant to
37-B M.R.S. § 742 declares an emergency to exist, if such emergency proclamation is geographically applicable to the Employee‘s workplace.
A declared emergency under this ordinance shall not apply to work performed under a teleworking arrangement, as defined under 5 U.S.C. § 6501 , allowing the Employee to work from home.
[¶3] The City of Portland announced that it would not enforce the emergency provision until January 1, 2022. On December 1, 2020, the plaintiffs, all employers with employees in Portland, filed a complaint seeking declaratory relief against the City of Portland and Jon Jennings, in his official capacity as City Manager of Portland (collectively, the City). They asserted that the initiative was invalid under the Maine Constitution and the Portland City Code and that, if it was valid, it would not take effect until January 1, 2022. Horton and Roberge-Reyes, employees at the Whole Foods store in Portland, were granted intervenor status as defendants and cross-plaintiffs; they filed a cross-claim seeking declaratory relief establishing the effective date of the emergency provision as December 6, 2020, and injunctive relief compelling the City to enforce it.
[¶4] The Chamber moved for summary judgment on its complaint. The Superior Court concluded that the emergency provision was validly enacted pursuant to the Maine Constitution and the Portland City Code. It determined that the home rule provision in the Constitution, in conjunction with statute, granted municipalities greater legislative authority and therefore expanded the scope of direct initiatives. Accordingly, it granted summary judgment against the Chamber on its validity claims. The court then determined that the language of the emergency provision was unambiguous and established an effective date of January 1, 2022. It dismissed Intervenors’ cross-claims.
[¶5] The Chamber timely appealed from the judgment declaring that the emergency provision was valid, and Intervenors timely cross-appealed from the determination that the emergency provision becomes effective on January 1, 2022. See
II. DISCUSSION
A. Validity
[¶6] The Chamber argues that the emergency provision was not validly enacted under the Maine Constitution and the Portland City Code because the initiative is not limited to exclusively municipal affairs. It asserts that the home rule provision of the Constitution is irrelevant because it gives greater power to municipalities as political subdivisions of the State but does not expand the scope of direct voters’ initiatives. The City defends the validity of the initiative.
1. The Maine Constitution
[¶7] On appeal from a summary judgment decision, “we review de novo the trial court‘s interpretation and application of the relevant statutes and legal concepts.” Belanger v. Yorke, 2020 ME 24, ¶ 13, 226 A.3d 215 (quotation marks omitted). We review constitutional interpretation issues de novo. Bouchard v. Dep‘t of Pub. Safety, 2015 ME 50, ¶ 8, 115 A.3d 92. “Constitutional provisions are accorded a liberal interpretation in order to carry out their broad purpose, because they are expected to last over time and are cumbersome to amend.” Allen v. Quinn, 459 A.2d 1098, 1102 (Me. 1983). “[T]he constitutional validity of a citizen initiative is evaluated under the ordinary rules of statutory construction.” League of Women Voters v. Sec‘y of State, 683 A.2d 769, 771 (Me. 1996). Accordingly, such laws “carr[y] a
[¶8] Last year we reiterated the purpose and breadth of the direct initiative power:
The broad purpose of the direct initiative is the encouragement of participatory democracy. By [
Me. Const. art. IV, pt. 3, § 18 ] the people, as sovereign, have retaken unto themselves legislative power, and that constitutional provision must be liberally construed to facilitate, rather than to handicap, the people‘s exercise of their sovereign power to legislate. Section 18 cannot be said merely to permit the direct initiative of legislation upon certain conditions. Rather, it reserves to the people the right to legislate by direct initiative if the constitutional conditions are satisfied.
Avangrid Networks, Inc. v. Sec‘y of State, 2020 ME 109, ¶ 15, 237 A.3d 882 (alterations and quotation marks omitted); see League of Women Voters, 683 A.2d at 771; see also Opinion of the Justices, 275 A.2d 800, 803 (Me. 1971).
[¶9] We begin with some historical context for this case. Effective in 1909, the Maine Constitution was amended to shift some legislative power from the Legislature to the people. See Farris v. Goss, 143 Me. 227, 230, 60 A.2d 908 (1948); Const. Res. 1907, ch. 121, approved in 1908. Pursuant to the amendment, a sufficient number of citizens may directly propose a law by petition to the Legislature, and if it is not enacted, the Legislature must submit the law to the people.
The city council of any city may establish the direct initiative and people‘s veto for the electors of such city in regard to its municipal affairs, provided that the ordinance establishing and providing the method of exercising such direct initiative and people‘s veto shall not take effect until ratified by vote of a majority of the electors of said city, voting thereon at a municipal election. Provided,
however, that the Legislature may at any time provide a uniform method for the exercise of the initiative and referendum in municipal affairs.
[¶10] Pursuant to this authority, the Portland City Council enacted a direct initiative ordinance in 1950. See
[¶11] In 1969, the Maine Constitution was amended to add the home rule provision: “The inhabitants of any municipality shall have the power to alter and amend their charters on all matters, not prohibited by Constitution or general law, which are local and municipal in character. The Legislature shall prescribe the procedure by which the municipality may so act.”
by clear implication, and exercise any power or function granted to the municipality by the Constitution of Maine, general law or charter.”
[¶12] Turning now to this case, we examine two cases that were discussed at length in arguments and in the Superior Court‘s order: Burkett v. Youngs, 135 Me. 459, 199 A. 619 (1938), and Albert v. Town of Fairfield, 597 A.2d 1353 (Me. 1991). In Burkett, we concluded that a resolve passed by the Bangor City Council addressing appropriations for school funding was not subject to referendum because some of the appropriations were required by state law, and thus the resolve was not a local affair. 135 Me. at 461-67, 199 A. 619. In Albert, we concluded that a municipal referendum was valid where Fairfield voters rejected the Town Council‘s decision to accept a street as a town way. 597 A.2d at 1354-55.
[¶13] Both cases are distinguishable from the facts and circumstances presented in the matter pending before us. Burkett was decided before the home rule provision was added to Maine‘s constitution in 1969, and furthermore, in that case, a direct and patent conflict existed between a state
funding mandate and the voters’ initiative, thus taking the initiative outside the purview of the municipal direct initiative authority. See 135 Me. at 463-66, 199 A. 619; Const. Res. 1969, ch. 29, passed in 1969. Albert is distinguishable because, in that case, the Legislature had, by statute, expressly granted the discretionary power to accept a town way to a municipality. 597 A.2d at 1355. Although both cases are helpful, neither established bright-line, authoritative criteria as a matter of precedent, and neither controls this case. See Albert, 597 A.2d at 1354-55; Burkett, 135 Me. at 463-67, 199 A. 619.
[¶14] We disagree with the Chamber‘s assertion that the home rule provision is irrelevant to this case. Both the home rule and direct initiative provisions are part of the structure that grants authority to municipalities and voters to legislate with respect to municipal affairs. See
in the preexisting right of voters’ direct initiatives. See
[¶15] The Chamber correctly points out that the home rule provision provides authority to municipalities as political subdivisions of the State. See
[¶16] The home rule provision expressly limits what municipalities may legislate concerning to matters “not prohibited by Constitution or general law.”
[¶17] The constitutional grant to electors of the power to legislate by direct initiative and by people‘s veto uses the language “in regard to its municipal affairs” to limit the scope of the subject matter of a direct initiative,
statewide minimum wage). Indeed, the Portland City Code presently reflects this understanding. See
[¶18] The fact that an ordinance that is otherwise directed to matters within the geographical confines of the municipality may affect nonresident individuals or entities who have employment or business interests within the municipality does not mean that it loses its characterization as “local and municipal.” The key inquiry is whether the ordinance provision is fundamentally local or statewide in its scope. See
2. Portland City Code
[¶19] We review “legal issues concerning the interpretation of the [Portland] City Code . . . de novo for errors of law.” Friends of Cong. Square Park v. City of Portland, 2014 ME 63, ¶ 7, 91 A.3d 601. Pursuant to the City Code, Portland voters may petition the city council to submit to a vote “any proposed ordinance dealing with legislative matters on municipal affairs.”
[¶20] As with the Chamber‘s constitutional argument, its argument that the emergency provision does not relate to “municipal affairs” as provided in the Portland City Code fails. Although Portland‘s original direct initiative ordinance was adopted before the home rule provisions,
emergency provision here relates to municipal affairs. Therefore, it likewise does not run afoul of Portland‘s direct initiative ordinance.3
[¶21] Moreover, the ordinance that empowers Portland electors with direct initiative authority is a predominantly procedural provision; it explains how a petition for a direct initiative is to be filed.4 See
Subsection a imbues voters with legislative authority, and subsections c through f address how a direct initiative may be achieved.
B. Effective Date
[¶22] Having concluded that the emergency provision in the initiative is valid, we must also determine its effective date. Intervenors argue that the effective date for new ordinances established by ordinance, see
[¶23] “Interpretation of [an] [o]rdinance is a question of law that we
Language is ambiguous when it “can reasonably be interpreted in more than one way.” Id. (quotation marks omitted).
[¶24] We construe words in an ordinance according to their plain meaning and “construe undefined or ambiguous terms reasonably with regard to both the objects sought to be obtained and to the general structure of the ordinance as a whole.” Fitanides, 2015 ME 32, ¶ 13, 113 A.3d 1088 (quotation marks omitted). We seek “to give effect to legislative intent, and if the meaning of the [ordinance] is clear on its face, then we need not look beyond the words themselves.” Jade Realty Corp. v. Town of Eliot, 2008 ME 80, ¶ 7, 946 A.2d 408 (quotation marks omitted).
[¶25] Here, the language of the emergency provision is unambiguous on its face and therefore we need not go beyond the text. See Fitanides, 2015 ME 32, ¶ 13, 113 A.3d 1088; Jade Realty Corp., 2008 ME 80, ¶ 7, 946 A.2d 408. The emergency provision in
for all Employees . . . shall be raised to $13.00 per hour.”
[¶26] The newly passed legislation does not explicitly state an effective date for the emergency provision. See
[¶27] We reject Intervenors’ argument that
January 1, 2025 and each January 1st thereafter, the minimum hourly wage then in effect must be increased by the increase, if any, in the cost of living.”
[¶28] Furthermore, the ordinary use of “thereafter” in the first sentence conveys that the preceding subsections must take effect first given that they appear chronologically. See
Fitanides, 2015 ME 32, ¶ 13, 113 A.3d 1088. This result is neither illogical nor absurd, see Wawenock, LLC, 2018 ME 83, ¶ 7, 187 A.3d 609, because there are valid reasons for delaying application of the emergency provision.5 Notwithstanding Intervenors’ insistence that we consider the ballot question in interpreting the ordinance, we do not examine any extrinsic evidence in the absence of textual ambiguity, and there is no such ambiguity here. See Jade Realty Corp., 2008 ME 80, ¶ 7, 946 A.2d 408. Accordingly, the emergency provision is effective as of the date set in
The entry is:
Judgment affirmed.
John J. Aromando, Esq. (orally), James R. Erwin, Esq., Joshua D. Dunlap, Esq., and Sara A. Murphy, Esq., Pierce Atwood LLP, Portland, for appellants Portland Regional Chamber of Commerce; Alliance for Addiction and Mental Health Services, Maine; Slab, LLC; Nosh, LLC; Gritty McDuff‘s; and Play It Again Sports
Shelby H. Leighton, Esq. (orally), Valerie Z. Wicks, Esq., and David G. Webbert, Esq., Johnson, Webbert & Garvan, LLP, Augusta, for cross-appellants Caleb Horton and Mario Roberge-Reyes
Dawn M. Harmon, Esq., and Jason Caron, Esq. (orally), Perkins Thompson, P.A., Portland, for appellees City of Portland and Jon Jennings
Kasia S. Park, Esq., Jeana M. McCormick, Esq., and Sara P. Cressey, Esq., Drummond Woodsum, Portland, for amicus curiae Maine Association for Community Service Providers
Benjamin K. Grant, Esq., McTeague Higbee, Topsham, for amici curiae Maine AFL-CIO, Maine Center for Economic Policy, The Proper Cup, Maine State Building & Construction Trades Council, Southern Maine Workers’ Center, People First Portland, Maine Small Business Coalition, and Portland Hunt and Alpine Club
John R. Brautigam, Esq., John R. Brautigam, Esq., LLC, Falmouth; Benjamin Gaines, Esq., Gaines Law, LLC, Portland; and Zachary L. Heiden, Esq., and Emma E. Bond, Esq., American Civil Liberties Union of Maine Foundation, Portland, for amici curiae American Civil Liberties Union of Maine Foundation and League of Women Voters of Maine
Gerald F. Petruccelli, Esq., Petruccelli, Martin & Haddow, LLP, Portland, for amicus curie Maine State Chamber of Commerce
Cumberland County Superior Court docket number CV-2020-518
FOR CLERK REFERENCE ONLY
Notes
Sec. 9-36. How invoked.
(a) In general. The submission to the vote of the people of any proposed ordinance dealing with legislative matters on municipal affairs or of any such ordinance enacted by the city council and which has not yet gone into effect, may be accomplished by the presentation of a petition therefor to the city council in the manner hereinafter provided and signed by at least one thousand five hundred (1,500) voters. The submission of a proposed ordinance, or amendment or repeal, in whole or in part, of an ordinance already in effect shall be hereinafter referred to as the direct initiation of legislation or “initiative.” The submission of a petition to override any ordinance passed by the city council but which has not yet gone into effect shall be hereinafter referred to as the “people‘s veto.”
(b) Applicability. Neither this article, nor ordinances dealing with appropriations, tax levy, or with wages or hours of city employees shall be subject to the initiative and “people‘s veto” referendum provisions herein established.
(c) Petition procedure. Any ten (10) registered voters of the city may file with the city clerk an affidavit stating:
(1) That the ten (10) registered voters will constitute the petitioners’ committee;
(2) The names and addresses of the ten (10) registered voters;
(3) The address to which all notices to the committee are to be sent; and
(4) That the ten (10) registered voters will circulate the petition and file it in proper form.
Upon filing of said affidavit by ten (10) such voters, the city clerk shall have seven (7) calendar days to prepare the proper petition forms pursuant to section 9-37 below with a copy of the submitted ordinance either printed on the petition or attached thereto and shall provide such petition to members of the petitioners’ committee and to any other registered city voter who wishes to circulate it. The petition may be circulated for signature by registered voters of the city for eighty (80) calendar days from the original date of issuance of the petition, which date shall be noted by the clerk on each blank form; provided, however, that any petition for the “people‘s veto” of an ordinance not in effect must be filed with the city clerk prior to the effective date of said ordinance or within thirty (30) calendar days after passage by the city council, whichever is less. Any “people‘s veto” petition not so filed is void. All provisions as to the filing and the form of petitions in this article, other than the aforementioned time frame, shall apply to both initiative and “people‘s veto” petitions.
(d) Filing of petition. The petition must be returned to the city clerk for filing by close of business within eighty (80) calendar days from the date of issuance thereof. If the eightieth day is a Saturday, Sunday or holiday, said petition shall be filed by the close of business of the next immediate business day. All petition forms not so submitted are void. The petition forms shall be assembled as one (1) instrument, with each page numbered, attached to a written statement from the petitioners’ committee stating the number of petition forms being filed. The clerk shall certify the date of filing and the number of forms returned.
(e) Verification of petition.
(1) Within fifteen (15) calendar days after the petition is filed, the clerk shall complete a certificate as to its sufficiency, specifying, if it is insufficient, the particulars which render it defective. The clerk shall promptly send a copy of the certificate to the petitioners’ committee by certified mail, return receipt requested, or by hand-delivery, and shall file a copy with the city council.
(2) A petition certified insufficient may be amended once, if the petitioners’ committee files a written notice of intention to amend it with the clerk within eight (8) calendar days after mailing by certified mail, return receipt requested, or hand-delivery of the copy of the clerk‘s certificate. Within ten (10) calendar days after this notice of intention is filed, the petitioners’ committee may file a supplementary petition to correct technical deficiencies in the original which shall, in form and content, comply with the requirements for an original petition but which shall not contain additional signatures of voters.
(3) Within five (5) calendar days after a supplementary petition is filed, the clerk shall complete and file a certificate as to its sufficiency in the manner provided for in an original petition.
(4) Any petition finally determined to be insufficient is void. The clerk shall stamp the petition void and seal and retain it in the manner required for secret ballots.
(5) The clerk‘s decision as to the sufficiency of the petitions shall be a final determination, reviewable as provided by law.
(f) Hearing. At its first regular meeting after receipt of a report that a petition is sufficient and has at least one thousand five hundred (1,500) valid signatures of the registered voters of the city, the city council shall set a date for public hearing, which hearing shall be held within thirty (30) calendar days thereafter. Notice of the hearing shall be published in a newspaper having general circulation in the city at least ten (10) calendar days prior to the hearing and shall contain the text of the petition. As provided by section 9-39, the city council shall take the necessary steps to submit to the voters of the city the ordinance proposed in the petition; provided that, in the case of the “people‘s veto” referendum, the entire repeal by the city council of the ordinance sought to be referred and, in the case of the initiative, the passage by the city council of the desired ordinance shall put an end to all proceedings under the petition.