Michael Good v. Town of Bar Harbor

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2024 ME 48
Docket: Han-23-371
Argued: May 7, 2024
Decided: July 2, 2024

Panel: STANFILL, C.J., and MEAD, HORTON, CONNORS, LAWRENCE, and DOUGLAS, JJ.

MICHAEL GOOD et al.

v.

TOWN OF BAR HARBOR

HORTON, J.

[¶1] In Fair Elections Portland, Inc. v. City of Portland (FEP I), we

construed Maine’s Home Rule Act, 30-A M.R.S. §§ 2101-2109 (2024), to

determine whether, and in what circumstances, municipal officials must

convene a charter commission to review a petition by voters to alter the terms

of a municipal charter. FEP I, 2021 ME 32, ¶ 21, 252 A.3d 504. We focused

there on the difference between a “revision” of a charter, for which the Home

Rule Act requires consideration by a charter commission, and an “amendment”

of a charter, for which the Home Rule Act authorizes submission directly to

voters. Id. ¶ 23; see 30-A M.R.S. § 2104(1), (4). We now focus on a different

phase of the municipal charter process and consider when a municipality may

treat the recommendations of its charter commission as constituting “minor
2

modifications” to be presented to the voters in separate questions under

30-A M.R.S. § 2105(1)(A) rather than as collectively constituting a “revision” to

be voted upon as a package in a single question under section 2105(1).

[¶2] Here, the Town of Bar Harbor appeals from a summary judgment

entered by the Superior Court (Hancock County, Anderson, J.) in favor of Michael

Good and ten other Town voters (collectively Good) nullifying several

purportedly “minor modifications” to the Town’s charter because they were

submitted to the voters in separate questions and not submitted as a single

“revision” of the charter and also because of procedural irregularities in how

they were developed and submitted. We conclude that the Town acted lawfully

in submitting the charter commission’s proposals to the voters in the form of

separate questions and that none of the claimed procedural irregularities

nullifies the vote. We therefore vacate the judgment and remand for the court

to enter a judgment for the Town on Good’s complaint.

I. BACKGROUND

[¶3] The undisputed facts material to this appeal are drawn from the

parties’ properly supported statements of material facts. See Blue Yonder, LLC

v. State Tax Assessor, 2011 ME 49, ¶¶ 3, 7, 17 A.3d 667. At a special town

meeting in November 2018, the people of the Town voted to create a charter
3

commission. See 30-A M.R.S. § 2102(2)-(5). At the same meeting, the voters

elected six members to the charter commission. See id. § 2103(1)(A)(1)

(authorizing a municipality to elect six voting members “in the same manner as

the municipal officers, except that they must be elected at-large and without

party designations”). The town council appointed three members. See id.

§ 2103(1)(B).

[¶4] The charter commission issued a report of its recommendations

dated February 28, 2020. See id. § 2103(5)(D), (E). It recommended changes

to nineteen areas “within the current structure of the Charter.” It

recommended that its proposed “modifications,” representing a “vision for the

future of [the] town’s governance,” be grouped and presented to the voters in

nine separate warrant articles. See id. § 2105(1)(A) (“If the charter

commission, in its final report under section 2103, subsection 5, recommends

that the present charter continue in force with only minor modifications, those

modifications may be submitted to the voters in as many separate questions as

the commission finds practicable.”).

[¶5] The town council voted on April 7, 2020, to accept the report and

place the proposed changes before the voters at a special meeting to be

convened in November 2020 rather than at the regular town meeting
4

scheduled for June 2020. In August 2020, the warrant committee discovered

that proposed language depriving the voters of the exclusive power to amend

the land use ordinance was mistakenly included in article 3 instead of article 4

of the town meeting warrant. The warrant committee and town council

authorized changes to place the pertinent language in article 4, and the town

clerk corrected the error before the proposals went before the voters.

[¶6] On September 1, 2020, the town council voted to recommend that

the voters approve all nine articles. At a special town meeting in

November 2020, the voters passed all but one of the articles; the article that did

not pass would have changed the duties of the Town’s warrant committee. The

articles that passed

• authorized electronic voting at town meetings,

• allowed the town council to make procedural and minor changes to the
land use ordinance by a two-thirds supermajority if recommended by the
town planner to the planning board and approved by a two-thirds vote of
the planning board after a public hearing,

• provided for school committee members to have staggered terms and for
the town manager or a person designated by the town manager to be
designated as the planning director,

• removed specific salaries for members of the town council and school
committee and provided for those salaries to be set annually in the
Town’s budget,

• changed the budget development process,
5

• reduced the warrant committee membership from twenty-two members
to fifteen and made other changes pertaining to that committee’s
composition and the filling of vacancies,

• changed the deadline for filing nomination petitions from forty-five to
sixty days before the election, and

• added a public-hearing requirement to the initiative and referendum
process.

[¶7] On December 1, 2020, Good filed a complaint seeking a declaratory

judgment that the adopted modifications are null and void, in part because they

were not “minor modifications” that could be submitted to the voters in

separate questions.1 See 30-A M.R.S. § 2105(1)(A). Good filed an amended

complaint in December 2020 and a motion for leave to amend his complaint

along with a second amended complaint in May 2021. The court (Anderson, J.)

granted Good leave to amend his complaint and accepted his second amended

complaint, which is the operative pleading here.

[¶8] In December 2021, Good moved for summary judgment on the

complaint and filed a memorandum of law and statement of material facts

referencing attached supporting evidence. See M.R. Civ. P. 56(a), (h)(1). The

1 In September 2022, the court retroactively granted leave for Good to file the declaratory
judgment action. See 30-A M.R.S. § 2108(2) (2024) (authorizing a court to grant ten voters leave to
petition for a declaratory judgment to enforce the home rule statutes). The Town has noted but
waived an argument that the proper vehicle for judicial review was through a petition for review of
government action under section 2108(3) and M.R. Civ. P. 80B. To the extent that Good has raised
procedural issues, we consider those issues by applying the standard of review set forth in section
2108(3), as detailed in paragraphs 33-37 of this opinion.
6

Town opposed the motion and filed a cross-motion for summary judgment. It

submitted an opposing memorandum and statement of material facts and

stated additional facts, referencing supporting evidence. See M.R.

Civ. P. 56(h)(2). Good filed a reply memorandum and reply statement of

material facts, see M.R. Civ. P. 56(h)(3), also asserting additional facts.2 The

Town filed a response to Good’s reply and his additional facts.

[¶9] On October 31, 2022, the court denied the Town’s motion for

summary judgment and granted Good’s motion for summary judgment, see M.R.

Civ. P. 56(c), reasoning that the proposed changes to the charter were not minor

modifications because they would profoundly alter the essential character of

the charter. The court concluded that the improper presentation in separate

questions substantially affected the charter revision because the outcome—

with all but one proposal passing—could not have resulted from a single

up-or-down vote on all proposals. The court did not reach, or in light of its

ruling need to reach, Good’s alternative arguments that the vote should be set

aside because of procedural irregularities in the process that preceded the vote.

2 Rule 56(h)(3) of the Maine Rules of Civil Procedure does not authorize the assertion of

additional facts in a reply statement of material facts. Nor does it authorize a “response” to the reply
statement of material facts. Neither party takes issue with these procedural irregularities on appeal,
likely because of the existence of cross-motions for summary judgment.
7

[¶10] On November 14, 2022, the Town moved to alter or amend the

judgment. See M.R. Civ. P. 59(e). It argued that the changes were minor relative

to the charter as a whole and that the judgment, if not otherwise altered, should

authorize the resubmission of the question to the voters without the provision

that the voters rejected.

[¶11] The court (Larson, J.) denied the motion in an order entered on

September 21, 2023, concluding that the court (Anderson, J.) had already ruled

on the issues that the motion raised and that allowing the Town to submit to

the voters an altered proposal—omitting the portion that the voters rejected—

would not be a curative procedure that the court could grant under 30-A M.R.S.

§ 2108(4).

[¶12] The Town timely appealed from this judgment. See 14 M.R.S.

§ 1851 (2024); M.R. App. P. 2B(c)(1), (2)(D).3

3 The trial court’s order granting Good’s motion for summary judgment and denying the Town’s

cross-motion for summary judgment did not include an actual judgment indicating the relief granted,
although it resolved all pending claims and was clearly intended and understood by the court and
parties to constitute a final judgment. An order that simply grants a motion, even a dispositive
motion for summary judgment, without an award of judgment describing the relief granted, is not
the entry of final judgment. See Murphy v. Maddaus, 2002 ME 24, ¶ 9 n.3, 789 A.2d 1281 (“The bare
entry of an order granting a motion for summary judgment but lacking a description of relief . . . does
not indicate the substance of the court’s judgment required by [M.R. Civ. P.] 79(a) and thus is not an
effective entry of judgment pursuant to [M.R. Civ. P.] 58.”); see also Est. of Libby, 2018 ME 1, ¶ 10, 176
A.3d 1287; Foremost Ins. Co. v. Levesque, 2005 ME 34, ¶ 5 & n.2, 868 A.2d 244. Although the record
lacks an express entry of final judgment, however, we consider the appeal rather than remanding for
entry of a final judgment because the issues raised are “clearly presented and neither party has
questioned the sufficiency of the court’s order.” Est. of Libby, 2018 ME 1, ¶ 11, 176 A.3d 1287
8

II. DISCUSSION

[¶13] We begin by considering the legality of the Town’s presentation of

nine separate warrant articles to the voters. We then consider Good’s

arguments that, even if the proposals were lawfully presented in separate

warrant articles, other procedural irregularities require us to set aside the vote.

In conducting our analysis, we review de novo, for errors of law, the Superior

Court’s summary judgment entered upon facts that are not in dispute as to any

material issues. Blue Yonder, 2011 ME 49, ¶ 7, 17 A.3d 667.

A. Presentation of Separate Questions to Voters

[¶14] The determination of whether a charter commission’s proposals

are “minor modifications” is—like a determination of whether a proposal is an

amendment or a revision—a mixed question of law and fact. See Fair Elections

Portland, Inc. v. City of Portland (FEP II), 2023 ME 9, ¶ 15, 288 A.3d 1208.

Because the relevant facts here are not in dispute, we review de novo whether

the Town’s conduct violated section 2105(1). See Blue Yonder, 2011 ME 49, ¶ 7,

17 A.3d 667.

(quotation marks omitted). In such limited circumstances, judicial economy may, as here, weigh in
favor of ruling on the appeal despite the lack of a final judgment. See id.
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1. Statutory Framework

[¶15] The Maine Constitution establishes municipal home rule: “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.” Me. Const. art. VIII, pt. 2, § 1.

[¶16] The Home Rule Act enacted in accordance with the Maine

Constitution authorizes the establishment of a charter commission to consider

adopting a municipal charter or revising an existing charter. See 30-A M.R.S.

§§ 2102-2103. The process for establishing a charter commission may be

initiated either by the municipal officers or by voters. See 30-A M.R.S.

§ 2102(1), (2). Whichever way the process is initiated, the voters must decide

through a municipal election whether a charter commission will be formed. Id.

§ 2102(5).

[¶17] Charter amendments—as opposed to charter revisions—may be

presented to the voters directly without referral to a charter commission. Id.

§ 2104(1), (2). These amendments, similarly, may be proposed either by the

municipal officers or by voters. Id. An amendment submitted by voters must

be treated as “a request for a charter commission” if the municipal officers
10

“determine with the advice of an attorney that the proposed amendment would

constitute a revision of the charter.” Id. § 2104(4). As we held in FEP I, the

municipal officers must, to distinguish between a revision and an amendment,

“examine how the specific proposal at issue would, if adopted, interact with the

terms of the existing charter and the municipality’s operations under the

existing charter,” considering both “the breadth of what would be affected and

the depth of what would be altered.” 2021 ME 32, ¶ 33, 252 A.3d 504.

[¶18] We are now asked to construe the Home Rule Act provision,

30-A M.R.S. § 2105, that governs a different phase of the procedure for altering

a municipal charter—the process that applies after a charter commission has

been formed and has issued its report and recommendation. This provision

distinguishes between (1) a charter commission’s recommendation for either

the adoption of a new charter or the comprehensive revision of an existing

charter and (2) a charter commission’s recommendation of “only minor

modifications” to a charter that “continue[s] in force.” Id. § 2105(1). “[I]n the

case of a charter revision or a charter adoption,” section 2105(1) requires that

the entire recommendation be submitted to the voters in a single question:

“‘Shall the municipality approve the (charter revision) (new charter)

recommended by the charter commission?’” Id. However,
11

[i]f the charter commission, in its final report under section 2103,
subsection 5, recommends that the present charter continue in
force with only minor modifications, those modifications may be
submitted to the voters in as many separate questions as the
commission finds practicable. The determination to submit the
charter revision in separate questions under this paragraph and
the number and content of these questions must be made by a
majority of the charter commission.

30-A M.R.S. § 2105(1)(A) (emphasis added). The question before us is whether

the Town violated the statute by treating the charter commission’s proposals

as “minor modifications” under paragraph A and presenting them to the voters

in separate articles.

2. “Minor Modifications”

[¶19] In interpreting a statute, we look first to the plain language of the

statute, interpreting it to avoid “absurd, illogical, or inconsistent results.” FEP I,

2021 ME 32, ¶ 22, 252 A.3d 504 (quotation marks omitted). In doing so, we

consider the statute’s specific language “in the context of the whole statutory

scheme” and give “due weight to design, structure, and purpose as well as to

aggregate language.” Id. (quotation marks omitted). “[O]nly if the statute is

ambiguous will we look beyond that language to examine other indicia of

legislative intent, such as legislative history.” Express Scripts Inc. v. State Tax

Assessor, 2023 ME 68, ¶ 22, 304 A.3d 239 (quotation marks omitted).
12

[¶20] We have not construed the term “minor modifications,” though in

FEP I we opined on the difference between charter revisions, which can be

presented to voters only on the recommendation of a charter commission, and

charter amendments, which are submitted to the voters directly. 2021 ME 32,

¶¶ 26-34, 252 A.3d 504; see 30-A M.R.S. §§ 2104, 2105. We considered

dictionary definitions in drawing distinctions between revisions and

amendments, with a revision defined as “[a] general and thorough rewriting of

a governing document, in which the entire document is open to amendment,”

and an amendment defined as “[a] formal and usu[ally] minor revision or

addition proposed or made to a statute, constitution, pleading, order, or other

instrument.” FEP I, 2021 ME 32, ¶ 29, 252 A.3d 504 (quotation marks omitted).

Based on these definitions and decisions in other jurisdictions that cast “a

revision as representing a more significant change than an amendment,” id.

¶¶ 30-31, we held that the critical question was “whether the proposed change

is significant enough to require a (potentially) years-long inquiry into all

aspects of the municipality’s government,” id. ¶ 32.

[¶21] More particularly, we held that the scope of a revision is broader

and deeper than the scope of an amendment. Id. “In terms of breadth, a

proposed amendment would not, if enacted, materially affect the municipality’s
13

implementation, in the course of its operations, of major charter provisions that

are not mentioned in the proposed amendment. In terms of depth, an

amendment would not, if enacted, make a profound and fundamental alteration

in the essential character or core operations of municipal government.” Id. “If

a petition proposes a change to the charter that is either so broad or so

profound (or both) as to justify a revisitation of the entire charter by a charter

commission, the proposal is for a revision.” Id.

[¶22] Rather confusingly, the statute designates any recommendation by

a charter commission as a “revision,” even if it is clearly not a rewrite of the

charter but only a “minor modification” that may be recommended in a

separate question. 30-A M.R.S. § 2105(1)(A) (“The determination to submit the

charter revision in separate questions under this paragraph and the number

and content of these questions must be made by a majority of the charter

commission.”). Here, there is no question that the changes are revisions in that

they were developed by the charter commission and submitted to the town

council as provided in 30-A M.R.S. § 2103(5). The precise question is what

types of “revisions” resulting from a charter commission’s review of an existing

charter are “minor modifications” that may be presented in separate questions

to the voters. Id. § 2105(1)(A).
14

[¶23] The answer to that question turns on what the terms “minor” and

“modifications” mean. The dictionary definitions of the terms provide little

assistance. See Minor, American Heritage Dictionary of the English Language

(5th ed. 2016) (“Lesser or smaller in amount, extent, or size”); Modification,

American Heritage Dictionary of the English Language (“A change or a result

produced by modifying”); Modify, American Heritage Dictionary of the English

Language (“To change in form or character; alter”); see also Modification,

Black’s Law Dictionary (11th ed. 2019) (“A change to something; an alteration

or amendment”).

[¶24] Because the statutory language is ambiguous, we may look to

extrinsic evidence of legislative intent. See Express Scripts Inc., 2023 ME 68,

¶ 22, 304 A.3d 239. The provision now codified as amended at section

2105(1)(A) was enacted in 1985 as part of former Title 30. See P.L. 1985,

ch. 224, § 2 (effective Sept. 19, 1985) (codified at 30 M.R.S.A. § 1915(1)(A)

(Supp. 1985)). The initially proposed bill sought to avert “the possibility that a

voter may vote against an entire charter revision only because of a single,

controversial part of that revision.” See L.D. 930, Statement of Fact, at 3 (112th

Legis. 1985). The bill proposed that a charter commission “designate a ‘core’

proposal that contains all of the charter provisions that are necessary to the
15

effective implementation of the proposed charter” and then designate the

provisions that could instead be voted on independently. Id. The point was to

“allow[] the commission to isolate particularly sensitive issues that can be

separated from the charter revision ‘core’ and which, if included in the ‘core,’

might jeopardize passage of several important and generally popular

provisions.” Id. at 4.

[¶25] The initial bill was replaced with a new draft that the Legislature

ultimately enacted. See L.D. 1530 (112th Legis. 1985). Rather than providing

for the delineation of “core” and separable revisions, the bill provided, “If the

charter commission, in its final report . . . recommends that the present charter

continue in force with only a few modifications, those modifications may be

submitted to the voters in as many separate questions as the commission finds

practicable.” Id. § 2 (emphasis added). The Statement of Fact for the bill

provides some guidance about the Legislature’s intent:

This new draft allows a charter commission to submit a
proposed charter revision to the voters in more than one question
only when the commission recommends that only a few
modifications be adopted. Present law requires a charter revision
to be submitted as only one question, regardless of the extent of the
changes recommended by the charter commission. If only a few
modifications are recommended by the commission, this new draft
allows the commission to decide, by majority vote, if the charter
modifications are to be submitted as separate questions and the
number and content of those questions. The commission could
16

group together some of the modifications into a single question for
convenience or submit them all as individual questions.

L.D. 1530, Statement of Fact (112th Legis. 1985).

[¶26] The statute was then amended as part of a broad effort to recodify

the statutes governing municipal home rule as proposed in the Report of the

Joint Standing Committee on Local and County Government on the Revision of

Title 30 (Dec. 1986). The report suggested that three bills be drafted—one to

address the “flawed implementation of the concept of municipal home rule in

Maine,”4 one to correct substantive defects in the statutes, and one to “rewrite

and reorganize the statutes in Title 30 to clarify their intent and to make the

Title easier to use and understand.” Id. at ii.

[¶27] The amendment to the statute at issue here was passed as part of

the final, third bill in this series, which recodified former Title 30 as Title 30-A.

See P.L. 1987, ch. 737, § A-2 (effective Mar. 1, 1989); L.D. 2538 (113th Legis.

4 The report explained,

The statutory grant of home rule authority in 30 M.R.S.A. § 1917 [(1978)] [now
codified, as subsequently amended, at 30-A M.R.S. § 3001 (2024)], stands on its own
as a grant of power to municipalities to enact local legislation on any legal subject
unless the Legislature has acted to restrict that power, either expressly or by clear
implication. The result is that under this statute, the Legislature no longer has to
specifically authorize individual subjects of permissible municipal legislative action.
It is presumed that a municipality already has the authority to act under section 1917,
subject only to the Legislature’s ability to restrict that authority through legislation.

Report of the Joint Standing Committee on Local and County Government on the Revision of
Title 30, at 4 (Dec. 1986).
17

1988). The statutory language then enacted remains in effect today.

See 30-A M.R.S. § 2105(1)(A).

[¶28] The Statement of Fact for the enacted bill indicated, “No attempt

was made to change the substance of the laws in this revision and no such

change is intended by this bill. This bill is intended solely to clarify existing law

and to make it easier to use and understand the laws governing local

government in the State.” L.D. 2538, Statement of Fact (113th Legis. 1988).

[¶29] Thus, we are guided by the legislative intent to grant a charter

commission the authority, when only limited modifications are being proposed,

“to decide, by majority vote, if the charter modifications are to be submitted as

separate questions and the number and content of those questions.” L.D. 1530,

Statement of Fact (112th Legis. 1985). Although the statute does not expressly

equate “minor modifications” to charter “amendments,” it treats them similarly

in permitting them to be presented in separate questions to the voters rather

than in the single question required for a revision that involves a “general and

thorough rewriting” of the charter, FEP I, 2021 ME 32, ¶ 29, 252 A.3d 504

(quotation marks omitted). It follows that one common characteristic of a

proposed “minor modification” and a proposed “amendment” is that, even if

enactment of the proposal would have a significant effect on a particular
18

component of a charter, it can be presented to voters in a separate question

because it is sufficiently narrow in its effect to enable separate consideration

by the voters without affecting the functionality of the charter as a whole. In

contrast, a more sweeping “revision” may include interdependent parts that

cannot be separately enacted or rejected in piecemeal fashion without

rendering the charter potentially unworkable or inconsistent if some are

enacted and others are not, and that accordingly should be presented as a

package to the voters in a single question. FEP I, 2021 ME 32, ¶¶ 32-33, 252

A.3d 504.

[¶30] Here the charter commission proposed not a wholesale rewriting

of the charter but a set of discrete proposals in nineteen areas “within the

current structure of the Charter” that were grouped by subject matter into nine

articles to be presented to the voters. Given the clear legislative intent to

expand the authority of municipalities to provide voters with more choices than

a single question would allow, we conclude that this action is consistent with

the statute’s direction that a municipality may present proposed charter

modifications to the voters in separate questions when the proposals reflect

limited changes rather than a major, integrated revision of the charter in its

entirety. As the Legislature has stated about the chapter governing home rule,
19

“This chapter, being necessary for the welfare of the municipalities and their

inhabitants, shall be liberally construed to accomplish its purposes.”

30-A M.R.S. § 2109. Thwarting the charter commission’s intent in this situation

would not amount to a liberal construction to accomplish section 2105(1)(A)’s

purpose. We also accord a degree of deference to the municipal officers’

determination as to the nature and effect of a proposed charter change, which

is a mixed question of law and fact. Cf. FEP I, 2021 ME 32, ¶ 27, 252 A.3d 504

(stating that a charter change “proposal [is] to be evaluated not just in terms of

its effect on the entire municipal charter but also in terms of its practical effect

on existing municipal policies, practices, and operations”); see also id. ¶¶ 33-34

(explaining the fact-based decisions that the municipal officers must make).

[¶31] Although Good argues that most of the “minor modifications” were

in fact comprehensive changes that should have been submitted as a package

in a single question, the record does not by any means compel that conclusion.5

5 For example, Good argues that the enactment of a reduction in the size of the Town’s warrant
committee from twenty-two to fifteen members will compromise the committee’s ability to function,
especially given that another proposal that would have reduced the duties of the committee was not
enacted. However, any conflict is more theoretical than practical, and the voters evidently disagreed
with Good’s assessment. He also asserts that a proposal authorizing the town council to adopt land
use ordinance amendments was too sweeping in its effect to be a “minor modification” because the
Town’s voters had always had the exclusive authority to amend such ordinances. But the proposal,
which was enacted, limits the town council’s authority to enacting ordinance changes that are
“procedural or minor [and] seek[] to correct, modify, or reconcile inconsistencies, contradictions, and
errors or to bring the land use ordinance into compliance with state statutes pertaining to municipal
zoning.”
20

The charter commission explicitly indicated that it was proposing

modifications “within the current structure of the Charter” that should be

presented to the voters separately and not as a complete, integrated revision of

the charter. The changes summarized above in paragraph 6 do not so

fundamentally alter the charter that a court can declare as a matter of law that

they amount to a charter revision.

[¶32] Based on the summary judgment record before us, we conclude

that the charter commission acted legally in determining that its

recommendations constituted minor modifications and proposing that they be

submitted to the voters in nine separate articles, and likewise that the Town

and its warrant committee acted legally in presenting the commission’s

recommendations to the voters in separate articles. We therefore conclude that

the Superior Court erred in setting aside the modifications to the charter that

the voters approved.

B. Other Procedural Issues

[¶33] Because we hold that the Superior Court erred in concluding that

the proposals had to be submitted in a single question to the voters, we must

consider Good’s alternative arguments that he was entitled to a summary

judgment declaring the results of the election invalid. He argues that (1) the
21

revision should have been placed on the June 9, 2020, town meeting warrant

rather than the November 2020 special-town-meeting warrant; (2) the Town

improperly elected the charter commission members in a special town meeting

in November 2018 when it should have done so “in the same manner as the

municipal officers,” 30-A M.R.S. § 2103(1)(A)(1), at the annual town meeting in

June 2019; and (3) the Town improperly changed the questions after a mistake

was noted in the report from the charter commission.

[¶34] We review each claim of error under the standard set forth by the

Legislature: “No charter adoption, revision, modification or amendment may be

found invalid because of any procedural error or omission unless it is shown

that the error or omission materially and substantially affected the adoption,

revision, modification or amendment.” 30-A M.R.S. § 2108(3); see also Lamb v.

Town of Farmington, 2004 ME 50, ¶ 13, 846 A.2d 333 (noting the “drastic”

nature of a remedy that “overturn[s] the results of an election”). Thus, we will

determine whether, on the undisputed summary judgment record, there was

any procedural error or omission, and if there was such an error or omission,

whether it “materially and substantially affected” the modification of the

charter. 30-A M.R.S. § 2108(3).
22

1. Date of Election

[¶35] The statute governing the submission of charter modifications to

voters provides, “When the final report is filed, the municipal officers shall

order the proposed new charter or charter revision to be submitted to the

voters at the next regular or special municipal election held at least 35 days

after the final report is filed.” 30-A M.R.S. § 2103(6).6 The summary judgment

record indicates that the charter commission issued its report on

February 28, 2020, and that although the next town meeting was scheduled for

June 2020, the town council voted on April 7, 2020, to submit the proposals to

the voters in November 2020. The people of Maine were under restrictions

resulting from the COVID-19 pandemic at that time. See Me. Exec. Order No. 14

FY 19/20 (Mar. 18, 2020); Me. Exec. Order No. 28 FY 19/20 (Mar. 31, 2020).

Thus it is understandable that on April 7, 2020, a motion to present the charter

proposals on the November ballot prevailed. There has been no suggestion in

the summary judgment record that the delay worked a hardship on voters, and

indeed it appears that the delay resulted in more voters being able to vote on

the proposals than were present at the June 2020 meeting, for which the

election portion of the meeting was ultimately held in July. Even assuming

Reading this statute in conjunction with 30-A M.R.S. § 2105(1)(A) (2024), we understand it to
6

apply as well to “minor modifications” proposed by a charter commission in separate questions.
23

without deciding that the commission’s recommendations should have been

presented to the voters in June 2020 rather than in November 2020, we see no

evidence that the delay had any material and substantial adverse effect on the

outcome sufficient to justify invalidating the vote. See 30-A M.R.S. § 2108(3).

2. Election of Charter Commission Members

[¶36] By statute, six of the voter members of a charter commission “are

elected in the same manner as the municipal officers, except that they must be

elected at-large and without party designations.” 30-A M.R.S. § 2103(1)(A)(1).

Good argues that the manner for electing municipal officers is provided by the

Town’s charter. Good, however, did not submit a copy of the charter in effect

at the relevant time to the Superior Court. “We have consistently held that the

existence of municipal ordinances must be proved and that they are not subject

to judicial notice.” Odiorne Lane Solar, LLC v. Town of Eliot, 2023 ME 67, ¶ 16

n.9, 304 A.3d 253 (quotation marks omitted). We apply the same rule to the

charter at issue here, especially given that we know that the current charter

differs in some respects from that which was in effect at the time the members

were elected. Even if we were to regard the legislative formatting in the charter

commission’s markup as authoritative, however, we would not—on the record

before us—hold that any procedural flaw in the timing of the members’ election
24

“materially and substantially affected” the ultimate vote on the charter

modifications. See 30-A M.R.S. § 2108(3).

3. Alteration of Questions to Correct a Mistake

[¶37] Good contends that the charter commission improperly took steps

to correct a clerical error in its proposal more than thirty days after it submitted

its report, at a time when the commission had ceased to exist. Id. § 2103(8)(A).

Specifically, the charter commission chair realized that certain recommended

changes regarding land use ordinances were mistakenly grouped in the article

that contained a proposal for electronic voting instead of in the article relating

to land use ordinances. The mistake was obvious, and the solution to it equally

so—moving the recommendations into the same article as the other

recommendations relating to land use ordinances. It was the town council and

the warrant committee, not the charter commission, that ultimately allowed the

move after the presentation of the final charter commission report. Their

decision to do so ensured that the voters were considering the

recommendations regarding land use ordinances together, and their fix of what

could have been a source of voter confusion does not amount to a procedural

error as contemplated by 30-A M.R.S. § 2108(3).
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The entry is:

Judgment vacated. Remanded for the entry of a
summary judgment for the Town on Good’s
complaint.

Jonathan P. Hunter, Esq. (orally), and Stephen W. Wagner, Esq., Rudman
Winchell, Bangor, for appellant Town of Bar Harbor

Maxwell Coolidge, Esq. (orally), Franklin, for appellees Michael Good et al.

Jennifer L. Thompson, Esq., Maine Municipal Association, Augusta, for amicus
curiae Maine Municipal Association

Hancock County Superior Court docket number CV-2020-45
FOR CLERK REFERENCE ONLY