Policy Wonk: Portland parks initiative preserves a constitutionally protected right

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Maine’s Constitution was amended in 1909 to take back two important powers of the people that had been ceded to the state Legislature: 1) the people’s power, as sovereign, to enact state legislation, and 2) their power to veto “any Acts, bills, resolves, or resolutions” of the state Legislature.

A third provision, enacted at the same time, extended these powers – the direct initiative and the people’s veto – to the municipal level of government.

This third provision was for unknown reasons made optional. The first line reads: “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 …”

Portland in 1923 amended its Charter to allow a people’s veto, and direct initiative of, any municipal “ordinance, order, or resolve …” The 1923 Charter language tracked the broad scope of powers taken back by the people in the 1909 Constitutional amendments.

It wasn’t until 1951 that Portland (motivated by the possibility that some fiscal issues might be the subject of an initiative or people’s veto) undertook to narrow the scope of the municipal initiative and veto rights. The city did so, not by amending existing City Charter provisions (which would have been cumbersome and require approval of the Legislature), but by the simple expedient of passing an ordinance.

The ordinance was direct: “Be it Ordained by the City Council of Portland Maine, in City Council Assembled: That there be and hereby is established initiative and referendum in the City of Portland dealing with legislative matters on municipal affairs.” This ordinance narrowing the scope of the people’s initiative and veto powers was approved by Portland voters. Whether these voters understood that in ratifying the ordinance they were actually narrowing their initiative and veto powers as laid out in the City Charter is problematic.

The city’s actions were challenged and sustained by the Supreme Judicial Court in a 1952 case, LaFleur v. Frost. The Law Court reasoned that the city had complied with all of the procedures for adoption of initiative and referendum laid out in the Constitution. This had the practical effect of nullifying the broader citizen’s initiative and referendum powers contained in the Charter.

A more questionable aspect of the Court’s holding, however, is found in its answer to a rhetorical question it posed: “must a city in … establish[ing] an initiative and referendum cover … all of its municipal affairs?” It answered: “We think not.”

The court went on to hold that constitutional initiative and referendum rights may not be expanded by a municipality (no argument here), but they may nonetheless be narrowed by municipal legislative action – I seriously doubt it. One is hard put to find any other state constitutionally provided right that is dealt with in a similar fashion.

The LaFleur reasoning allows a municipal legislative body to do precisely what the state Legislature is barred from doing, i.e., narrowing the scope of constitutionally established initiative and referendum rights given to the people. In Dorsky v. Goss (involving state legislative action) the Law Court held that initiative and referendum rights are absolute “and cannot be abridged directly or indirectly.” In short, LaFleur’s constitutional analysis is flawed and is inconsistent with the Law Court’s prior holding in Dorsky.

True, a municipality may choose whether to put directive initiative and people’s veto powers in place. If it chooses not to, that ends the matter. However, if it chooses to put these powers in place it is bound by the scope of these rights laid out by the state.

The fact that LaFleur has not been revisited, that Portland’s crabbed view of citizen initiative and veto powers has stood for some time, has emboldened many municipalities to follow suit: to adopt similarly narrow initiative and veto power ordinances. This robs the citizenry in these communities of an essential check on government. In Portland, this loss is made worse by the fact that the city consistently interprets narrowly what it believes is “legislative.”

Twenty-five years ago Portland railed against an initiated zoning ordinance protecting the working waterfront arguing that it was a type of legislation not amenable to being fashioned by the citizenry. More recently they argued that an initiative protecting Congress Square Park, and other park and open space areas, was not “legislative” in character. The latter effort was rebuffed recently by the Law Court. The waterfront rezoning was overwhelmingly adopted by the voters and subsequently sustained by the courts.

The bottom line is, governments never like to be pulled up short – even when they are acting badly – in a manner that large numbers of its citizens disagree with. But in a democracy, the people’s power to put issues before the voters needs to be in place. As a matter of principle and on the merits of the issue, I would urge Portland residents on June 10 to vote to preserve Congress Square Park. I would also add it’s time to revisit the LaFleur decision.

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Orlando Delogu of Portland is emeritus professor of law at the University of Maine School of Law and a longtime public policy consultant to federal, state, and local government agencies and officials. He can be reached at orlando.delogu@maine.edu.