The Friends of Congress Square Park have made Portland less governable, less able to make a decision that someone else can rely on, and less able to do business with others.
To review, Congress Square Plaza, on the northeast corner of Congress and High Streets, has been a failed space for 30 years. It is dark, deep, hard and charmless. It has not been a venue for good, wholesome, family fun. The new owners of the former Eastland Hotel offered to improve the park as part of their renovation of the hotel, and the city council agreed to sell them most of the space.
The Friends weren’t happy. They asked the city to issue them papers to start a people’s initiative that would thwart the sale by putting the park in the land bank. (In 1999, the city council passed an ordinance creating a land bank, which enables the council to protect property from development.)
When the city refused to issue the petitions on the grounds that the council’s decision to sell was not the type of government action that is subject to the people’s initiative process, the Friends sued.
On Oct. 31, a Superior Court justice sided with the Friends and against the city. She ruled that the initiative process applies to any decision where the city has discretion, that the city was wrong to refuse to give papers to the Friends, and that it must do so. The city vowed to appeal.
Representative government involves different branches with different powers and functions. The legislative branch makes policy, the executive implements policy, and the judiciary reviews the actions of the other two, with some exceptions. For example, judges don’t resolve political questions where there is no right or wrong answer, just differences of opinion, because judges need standards to decide things. And judges are not suited to making executive decisions, like what supplies to buy or what surplus property to sell.
In addition to these traditional powers of the typical branches of government, the Maine Constitution recognizes the people’s right to initiate and veto legislation. It extends that right to municipal affairs. By ordinance, Portland recognizes its residents’ rights to initiate and veto municipal legislation.
That makes sense. The people’s process is a process for making law: general policy, not specific decisions. It is hard enough for our elected representatives to make good general policy. Allowing the people to make administrative decisions through the people’s process would be heart-stoppingly inefficient. And unfair. The people do not have the patience to thoughtfully consider everyone’s pet project.
In 2010, Portland residents voted to change the City Charter to provide for a popularly elected mayor. The City Council had botched several important decisions, by getting bogged down in process. Remember the opportunity to have someone take responsibility for the deteriorating Maine State Pier? We had two possibilities, and lost both. The feeling was that an elected mayor would provide the executive leadership needed to make those kinds of decisions.
Congress Square seems like deja-vu all over again.