Town Asks Superior Court to Reconsider Decision

“Not Appropriate” Charter and Warrant Committee Changes Put Town in Tough Spot

BAR HARBOR—Town Manager Kevin Sutherland said that he has submitted a reconsideration and amendment on behalf of the town in regards to Hancock County Superior Court Justice William Anderson’s Summary Judgement against the town in the case Good v. Town of Bar Harbor.

Anderson ruled on October 24 that 2020 changes to the town’s charter were “not appropriate” and “should be set aside.” Those changes occurred prior to Sutherland’s tenure in Bar Harbor.

Though the court initially said it would have oral arguments, Anderson decided not to “after conducting a thorough review of the issues raised and upon further reflection.” Instead, the court decided without hearing discussion or argument.

The court found that “as a matter of law, the Town of Bar Harbor did not follow the proper procedures when enacting the changes, that the use of improper procedures materially and substantially affected the changes, and the changes should be invalidated.”

Those changes impact multiple aspects of the town’s charter including the composition and election of the Warrant Committee.

The plaintiffs had argued that the changes were “improperly presented to the voters” and therefore violating Maine’s Home Rule Act. This, they said, “materially and substantially affected what changes were ultimately made” to the town’s charter. The court agreed and said that those eight changes “should indeed be invalidated.”

Several Bar Harbor voters brought the case to court. They were led by Michael Good, former Warrant Committee member. Initially, in November 2018, the town created a commission to change the town’s charter. That commission came up with nine changes, and according to the brief, “which  it indicated created ‘changes to 19 areas within the current structure of the Charter’ and constituted a ‘vision for the future of (the town’s) governance.’”

“There are many towns in Maine who have done the exact same thing that Bar Harbor did,” Sutherland said.

What Bar Harbor did was split out those changes into separate votes rather than combining them as one.

Judge Anderson retired the week after the decision. Sutherland’s request for a reconsideration of that decision is being passed to another judge, and that decision probably won’t happen until January or February. The town’s legal advice is for the town is to follow the same process as last year with the same timeline for the budget and timeline.

Sutherland said Thursday that there is nothing in Anderson’s decision that provides guidance for the town, and he said the decision also needs to tell the town if everything that has occurred since the vote is legal, needs to be reversed, or something similar.

Sutherland wrote in his Manager’s Update:

“Unfortunately, this judgement would set a precedent for other towns in Maine who have followed the same or similar attempts to address changes within their Charters. Because of this, we would ask for a reconsideration of the judgement. Additionally, we’ve implemented parts of the Charter changes including the budget process and the composition / election process for Warrant Committee members. The judgement provided no guidance on how we should consider previous actions and are therefore requesting the judge amend the judgement to provide guidance.

“On Monday, November 14, 2022 the Town of Bar Harbor filed pleadings for a Motion for Reconsideration or to Alter or Amend Judgment.

“Justice W. Anderson who provided the judgement has since retired and the case has been transferred to Justice A. Murray. We probably won’t have a decision on our motions until mid-January at the earliest.”

The reconsideration and amendment Sutherland submitted on November 14 asks about the implications of the precedent and/or asking for an amendment to the judgement and how the town should move forward.

The town may have to put something on the June ballot to fix the issue. That fix could potentially putting those articles that passed together as one for a vote and seeing if they are approved or not, Sutherland said. The deadline to put things to the voters at the June election is in March. He’d have to have the town council’s decision about it by the town council’s second meeting in March.

The reconsideration request puts a pause on the judgement.

Former City Councilor J.T. Burton said at the session in the library, “What the judge essentially said in the summary judgement is that you can’t do what you’ve done.” He added, “Essentially, he upheld what the warrant committee and the people of the town have been fighting about.”

That fight for representation and voice, Burton told Sutherland, has occurred for years. He added that he met with town staff before those changes were endorsed by the Charter Commission and brought to vote and told them that it was illegal.

Sutherland said he understood that there was a lot of frustration around the reconstruction of the Warrant Committee but that he wanted to stay away from that issue, which began before his tenure. His question has more to do with the impact this ruling has to Bar Harbor and especially around the state where other towns and cities have also separated out similar changes for voters.

Burton said that there is a lot deeper issues going on in Bar Harbor. He spoke specifically of Sutherland holding the biweekly Manager Minutes sessions at the Jesup and said, “You sitting here, I think, is commendable.”

Sutherland said that he wants to just do the right steps for the town. He also credited Communications Coordinator Maya Caines for the concept of Manager Minutes.


The brief

Maine Home Rule Statute

2020 Charter Commission Report

Judge Rules 2020 Changes to Bar Harbor’s Town Charter Should Be Set Aside

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