Hodge v. Maine School Administrative District 6

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STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss CIVIL ACTION
DOCKETNO. CV-18-420

JIM HODGE, et al.,

Plaintiffs
V. ORDER

MAINE SCHOOL ADMINISTRATIVE
DISTRICT 6, RIC·C'"
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Defendant

Before the court is a motion to dismiss filed by defendant Maine School Administrative

District 6.

This case is part of a two decades-long dispute relating to the Town of Frye Island's

attempt to withdraw from MSAD 6. This dispute centers on emergency legislation enacted in

2001 (P. & S.L. 2001 ch. 8, also referred to as "L.D. 500"), which states that Frye Island may

not withdraw from MSAD 6 unless authorized by further action by the Legislature.

L.D. 500 was challenged previously in litigation that culminated in the Law Court's 2008

decision in Town ofFrye Island v. State, 2008 ME 27, 940 A.2d 1065, although the Law Court

found that the issues with respect to L.D. 500 were moot at that time. L.D. 500 is now also being

challenged in a pending lawsuit between MSAD 6 and the Town of Frye Island in which the

plaintiffs in this action have intervened. MSAD 6 v. Town ofFrye Island, CV-18-008 (Superior

Court Cumberland County). In that case the court recently granted summary judgment to MSAD

6.
In this action plaintiffs Jim Hodge and Ed Rogers allege that L.D. 500 violates equal

protection, due process, the Emergency Legislation clause of the Maine Constitution, the right to

petition government for redress of grievances, and the right to Equal Taxation under the Maine

Constitution.

Plaintiffs-Catherine Connors, Esq.
Defendant-Melissa Hewey, Esq.
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Specifically, Hodge and Rogers allege they are residents, taxpayers, and registered voters

of the Town of Frye Island. Complaint ,r,r 1-2. 1 Frye Island is a seasonal community with

approximately 1500 seasonal and weekend residents and approximately 160 registered voters. Id.
,r,r 7, 9. Frye Island shuts down each winter from November 1 to April 1, suspending ferry
service, draining the public water supply, and closing the island roads. Id. ,r,r 23-24. 2

According to the complaint, Frye Island has no school age children who reside on the

island during the school year and no residents of the island attend MSAD 6 schools. Id. ,r,r 31­

32. Hodge and Rogers allege that Frye Island made an annual contribution of approximately $1.5

million to MSAD 6 in each of the years 2015, 2016, and 2017 and received no services for that
contribution. Id. ,r,r 38-40.

Hodge and Rogers allege that they are injured by L.D. 500 because a portion of their
taxes go to MSAD 6, and L.D. 500 denies Frye Island the ability to withdraw from MSAD 6 and

thereby relieve Frye Island residents from contributing to MSAD 6's finances. Id. ,r 50.

Legal Standard
For purposes of a motion to dismiss, the material allegations of the complaint must be

talcen as admitted. Ramsey v. Baxter Title Co., 2012 ME 113 ,r 2, 54 A.3d 710. The complaint
must be read in the light most favorable to the plaintiffs to determine if it sets forth elements of a

cause of action or alleges facts that would entitle plaintiffs to relief pursuant to some legal
theory. Bisson v. Hannaford Bros. Co., Inc., 2006 ME 131 ,r 2, 909 A.2d 1010. Dismissal is
appropriate only when it appears beyond doubt that the plaintiffs are not entitled to relief under

any set of facts that they might prove in support of their claim. Moody v. State Liquor & Lottery
Commission, 2004 ME 20 ,r 7, 843 A.2d 43. However, the plaintiffs may not proceed if the

complaint fails to allege essential elements of the cause of action. See Potter, Prescott, Jamieson
& Nelson P.A. v. Campbell, 1998 ME 70 ,r,r 6-7, 708 A.2d 283.

1 Both live elsewhere in Maine during the winter months (November 1 to April 1). Id.

2
During the winter Frye Island town government operates from an office in Raymond.

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In considering a motion to dismiss, the court can consider official public documents and

documents that are central to plaintiffs' claim without converting a motion to dismiss into a

motion for summary judgment. Moody v. State Liquor & Lottery Commission, 2004 ME 20 ,r,r 9­
10. In this case, therefore, the court can consider the text and provisions of L.D. 500 although

L.D. 500 is nowhere quoted in the complaint.

On the pending motion MSAD 6 challenges the standing of Hodge and Rogers to pursue

this action and the sufficiency of the factual allegations supporting their complaint.

Taxpayer Standing

Taxpayer standing in cases brought against units of local government appears to depend
on whether the taxpayers are seeking preventive or remedial relief and, if remedial relief is

sought, whether the taxpayers have demonstrated particularized injury. See Petrin v. Town of

Scarborough, 2016 ME 136 ,r 20, 147 A.3d 842. In this case, however, Hodge and Rogers are

not challenging actions by municipal authorities with respect to taxation or apportionment. They
are instead challenging a state statute which prevents Frye Island's attempt to withdraw from

MSAD 6 and thereby causes a portion of their property taxes to be contributed to an entity from
which they receive no services.

With respect to taxpayer standing in cases challenging state governmental action, the
Law Court has abandoned the distinction between preventative and remedial relief in cases
where taxpayers allege that the State is acting in violation of the Constitution and injuring them

by raising their taxes. Common Cause v. State, 455 A.2d 1, 9-13 (Me. 1982). Although the State
was a named party in Common Cause and is not a named party in this case, Common Cause
involved state action taken pursuant to legislation authorizing a bond issue which was then

approved by the voters in a referendum. 455 A.2d at 5. Because Hodge and Rogers are similarly
challenging a state statute which they allege raises their taxes, the court sees no reason to apply

the preventative vs. remedial distinction in this case.

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Even if that distinction were to be applied, Hodge and Rogers are seeking a declaratory

judgment that L.D. 500 is unconstitutional, which appears to be a form of preventative rather
than remedial relief. Accordingly, the court does not have to consider the issue of whether

Hodge and Rogers have shown a particularized injury given that the effect of L.D. 500 on their

taxes is indirect, rather than direct. On the issue of taxpayer standing, the court concludes that
Hodge and Rogers may proceed with this action.

However, as noted below, it appears that in some instances Hodge and Rogers are

attempting to assert claims on behalf of the Town of Frye Island rather than on their own behalf,
and it is not clear that they have standing to do so. The court will consider those issues in

connection with MSAD 6' s arguments that each of the claims set forth in the complaint fail to
state a claim on which relief may be granted.

As drafted, the complaint consists of one count, generally alleging that L.D. 500 is

unconstitutional. However, in the portion of the complaint addressed to the relief requested,
Hodge and Rogers are seeking separate declaratory judgments that L.D. 500 (I) violates equal

protection, (2) violates due process, (3) violated the Emergency Legislation Clause, (4) violates
the right to petition for redress of grievances, and (5) violates plaintiffs' rights under the Equal
Taxation clause.

Equal Protection

In support of their. equal protection claim, Hodge and Rogers allege that there are other
municipalities, similar to Frye Island, that have very few students that they send to the school
districts of which they are members but that only Frye Island is statutorily prevented from

withdrawing from its school district. Complaint 11 41-42. 3 MSAD 6 argues with some force that
the allegations in the complaint suggest that Frye Island is unique among Maine municipalities
in that it essentially shuts down for the winter - which may suggest that there are no similarly

3
MSAD 6 faults F1ye Island because it does not name any such municipalities, but for purposes of a
motion to dismiss the court is obliged to assume that such municipalities exist.

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situated towns. However, whether there are any sufficiently similarly situated towns cannot be

determined on the face of the complaint.

The problem, as the court sees it, with plaintiffs' equal protection claim is that plaintiffs

are alleging that Frye Island is being denied equal protection as compared with other towns. The

court is not aware of any authority that residents of a town have standing to assert constitutional

claims on behalf of the town. 4 Moreover, relying on the Law Court's 2008 Frye Island decision,

2008 ME 27 ,r 11 n.3, this court has already ruled that Frye Island is not entitled to claim a

violation of equal protection. See MSAD 6 v. Inhabitants of Frye Island, No. CV-18-008, 2018

Me. Super. LEXIS 112 *2 (June 26, 2018).

To the extent that Hodge and Rogers are arguing that they themselves are being treated

differently from similarly situated taxpayers, there are no such allegations in the complaint.

Moreover, their situation is not distinguishable from the situation of any other persons who own

second homes in Maine and pay property taxes on those homes but do not send their children to

schools in the towns where their second homes are located.

Plaintiffs' complaint fails to state a claim for a violation of equal protection.

Substantive Due Process

Plaintiffs' due process claim is based on the allegation - set forth in paragraph B of the

request for relief - that L.D. 500 represents "an unduly arbitrary and capricious exercise of

legislative power." This is a substantive due process claim. 5

4 In this context lack of standing relates to whether the equal protection claim as alleged fails to state a

claim upon which relief may be granted within the meaning ofM.R.Civ.P. 12(b)(6) rather than a lack of
standing for justiciability and jurisdictional purposes.

5 The memoranda of law submitted by the parties also discuss procedural due process. However, no

procedural due process claim is alleged in the complaint. Moreover, the procedure for withdrnwal from a
school district is created by statute, and procedural due process is not violated by legislative changes
withdrawing statutory benefits. See Atkins v. Parker, 472 U.S. 115, 129-30 (1985), quoting Logan v.
Zimmerman Brush Co., 455 U.S. 422, 432-33 (1982) ("The legislative detennination provides all the
process that is due").

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Substantive due process analysis initially turns on whether the challenged action
implicates a fundamental right. Doe v. Williams, 2013 ME 24 1 65, 61 A.3d 718. If no

fundamental right is implicated, the challenged action will be upheld so long as it is "reasonably
related to a legitimate state interest." Id. 1 66.

In this case Hodge and Rogers allege that the fundamental right that is implicated is the

right to petition the government for redress of grievances. The right of petition that they contend

has been infringed is Frye Island's right to petition for withdrawal from MSAD 6.

The first problem with that argument is that L.D. 500 applies to Frye Island, not to
plaintiffs. Hodge and Rogers retain their right to petition the government for redress of

grievances. They can petition the Legislature to repeal L.D. 500. They can petition the Executive
Branch to support a repeal of L.D. 500. And they can petition the courts for redress of their

grievances by challenging the constitutionality of L.D. 500 - exactly as they are doing in this
action.

The second problem with plaintiffs' right of petition claim is that the Law Court has held
that there is no requirement under the Maine Constitution for the submission of the formation of

school districts to a popular vote. McGary v. Barrows, 156 Me. 250, 262, 163 A.2d 747, 754
(1960). It has also ruled that "[i]t is within the power of the Legislature to divide or join towns

into school districts as it pleases." Inhabitants of the Town of North Berwick v. State Board of
Education, 227 A.2d 462, 468 (Me. 1967). Those rulings are fatal to any argument that the

citizens of Frye Island have a fundamental right to seek withdrawal from MSAD 6

notwithstanding the statutory prohibition placed by L.D. 500.
That leaves the question of whether L.D. 500 survives rational basis scrutiny as
"reasonably related to a legitimate state interest." Doe v. Williams, 2013 ME 24 1 66. In the

court's view, any contention that L.D. 500 does not have a rational relationship to a legitimate
state interest is foreclosed by the Law Court's 2008 Frye Island decision. In that case the Law
Court upheld legislation exempting MSAD 6 from a new cost allocation formula that would

have reduced Frye Island's contribution to MSAD 6 to "zero dollars." 2008 ME 2717.

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Specifically, after noting that the challenged legislation did not involve a fundamental

right, the Court held that legislation addressing a potential shortfall in the MSAD 6 budget was
rationally related to the legitimate state interest of financing public education. 2008 ME 27 ii

15-17.

Frye Island's withdrawal would similarly reduce its contribution to MSAD 6 to zero
dollars. In preventing such a withdrawal, L.D. 500 is rationally related to the legitimate state

interest of financing public education and therefore survives rational basis scrutiny.

Plaintiffs' substantive due process challenge therefore fails to state a claim upon which
relief may be granted.

Emergency Clause
Under the Maine Constitution enacted legislation ordinarily becomes effective 90 days

after the adjournment of the legislative session. Me. Const. art IV, pt. 3, § 16. To allow for the
passage of legislation that cannot wait for 90 days after adjournment, Article IV, pt. 3 § 16

provides that the Legislature can pass emergency legislation with the facts constituting the
emergency stated in the preamble. Article IV pt. 3 § 16 further provides

An emergency bill shall include only such measures as are
immediately necessary for the preservation of the public peace,
health or safety; and shall not include ( 1) an infringement of the
right of home rule for municipalities ....

In the companion case this court has twice addressed the Home Rule issue and has

concluded that L.D. 500 does not infringe Frye Island's Home Rule authority. See MSAD 6 v.

Inhabitants of Frye Island, No. CV-18-008, 2018 Me. Super. LEXIS 112 *3 (June 26, 2018);

Order filed April 30, 2019 in CV-18-008 at 8.

Accordingly, plaintiff's Emergency Clause claim is subject to the rule that a reviewing

court is limited to determining whether the legislature has expressed a fact that can constitute an

emergency within the meaning of the Maine Constitution. Morris v. Goss, 147 Me. 89, 98-99, 83

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A.2d 556, 561 (1951). The court may not review whether the fact expressed in the emergency

preamble actually existed or did constitute an emergency. Id

L.D. 500 was enacted effective April 11, 2001. The Law Court noted in its 2008 decision

that this was less than a month after Frye Island had sought to invoke the procedure for

withdrawal from MSAD 6 under the provisions of then-existing 20-A M.R.S. § 1405 by

submitting a draft withdrawal agreement to the Department of Education and to MSAD 6. See

2008 ME 27 ~ 5.

In pertinent part the emergency preamble to L.D. 500 states:

Whereas, resolution is needed prior to June 30, 2001 of the issue
of membership of School Administrative District 6 for purposes of
both the provision of educational services for students from the
Town of Frye Island and clarification of the valuation for school
funding purposes; and

Whereas, in the judgment of the Legislature, these facts create an
emergency within the meaning of the Constitution of Maine and
require the following legislation as immediately necessary for the
preservation of the public peace, health and safety ...

P. & S 2001, ch. 8.

Because of Frye Island's pending application to withdraw and the fact that MSAD 6's

fiscal year would begin on July 1, 2001, resolution of the financial problem that would be

caused by Frye Island's withdrawal could not wait until 90 days after the legislature adjourned. 6

This constituted an adequate factual basis to justify emergency legislation. See Verrill v.

Secretary of State, 1997 ME 82 ~ 7, 693 A.2d 336 (finding emergency legislation justified by

fiscal emergency).

Although the potential disruption that would be caused to the MSAD 6 budget by Frye

Island's withdrawal is not explicitly spelled out in the preamble, the legislative judgment to that

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effect is implicit, and the Law Court has found that implicit legislative judgments of that nature

are entitled to deference under the Emergency Clause. State v. Eaton, 577 A.2d 1162, 1165

(Me. 1990).

Plaintiffs' challenge under the Emergency Clause fails to state a claim on which relief

may be granted.

Right to Petition for Redress of Grievances

Plaintiffs' claim that L.D. 500 infringes their right to petition for redress of grievances

has already been addressed above. The right to petition addresses state action interfering with

access to the legislature, the executive branch, and the courts.

As noted above, nothing in L.D. 500 prevents Hodge and Rogers from petitioning the

legislature to enact legislation allowing Frye Island to withdraw from MSAD 6. Nothing

prevents them from seeking to enlist the Executive Branch to support that effort. Nothing has

prevented them from initiating litigation to invalidate L.D. 500.

The Town of .Frye Island does not have an independent constitutional right to petition

for redress of municipal grievances, and the right to petition for redress of grievances does not

extend to whether a town may invoke an administrative procedure for realignment of school

districts.

Plaintiffs' contention that L.D. 500 violates their right to petition for redress of

grievances fails to state a claim on which relief may be granted.

6 In 2001 the First Regular Session of the Legislature adjourned on June 22, 2001, and non-emergency
legislation therefore did not become effective until September 21, 2001, almost three months into the
fiscal year.

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Egual Taxation

Article IX § 8 of the Maine Constitution provides that"[a]ll taxes upon real and personal

estate, assessed by authority of this State, shall be apportioned and assessed equally according to

the just value thereof." To prevail on a claim for a violation of the right to equal taxation, a

plaintiff must demonstrate that property has not been assessed "at a relatively uniform rate to all

comparable properties in the district." Roque Island Gardner Homestead Corp. v. Town of

Jonesport, 2017 ME 152 ~ 13, 167 A.3d 564. Hodge and Rogers do not allege that their property

is assessed at a higher rate than similarly situated properties in Frye Island or MSAD 6. Their

challenge based on Art. IX § 8 fails to state a claim on which relief may be granted.

The entry shall be:

Defendant's motion to dismiss is granted. The clerk is directed to incorporate this order
in the docket by reference pursuant to Rule 79(a).

Dated: May 20 , 2019

Thomas D. Warren
Justice, Superior Court

Entered on the Docket: 5/l'3/Ji
/M-CJ

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