The opinion
STATE OF MAINE | SUPERIOR COURT
CIVIL ACTION
YORK, ss. . DOCKET NO. AP-00-91
PAF —YorR- 4/4/300)
13 MAIN STREET, INC.,
Plaintiff
ORDER
Vv. AND
DECISION
TOWN OF OGUNQUIT,
Defendant
This suit involves a request for a liquor license, a complex appellate
procedure and the interpretation of portions of Maine’s Freedom of Access law, see 1
M.R.S.A. §§ 401- et seq.
The plaintiff corporation does business in Ogunquit as The Club and The
Rooftop Cafe. On or about April 18, 2000 the Ogunquit Board of Selectmen denied
the plaintiff's request for a liquor license for the 2000 season for the Rooftop Cafe
portion of the plaintiff’s business. The plaintiff then appealed to the Bureau of
Liquor Enforcement (Bureau), pursuant to 28-A M.R.S.A. §653(3), which reversed
the decision of the Selectmen and issued the requested liquor license. The Town
then appealed to the Administrative Court, pursuant to 28-A M.R.S.A. §653(5),
which dismissed the appeal on September, 5, 2000 on a procedural issue dealing with
service of process.
On September 19, 2000 the Selectmen met with their attorney in executive
session to discuss legal issues. It is this executive session which forms the basis of
the current suit in which the plaintiff claims several violations of the Freedom of
Access law. On September 28, 2000 the Town filed an appeal to the Law Court
regarding the decision of the Administrative Court. The parties have informed me
that the Law Court has remanded that appeal to the District Court which has been
granted jurisdiction over the majority of the types of cases, including this dispute,
formerly handled by the now defunct Administrative Court. See the current text of
28-A M.RS.A. §653(5) effective March 15, 2001. Therefore the appeal by the Town
from the issuance of a license tor 2000 by the Bureau is now before the District Court.
In the meantime the plaintiff's request for a license for 2001 has been denied by the
Selectmen and an appeal of that denial is before the Bureau.
The current suit is not moot for at least two reasons. First, the Law Court did
not dismiss the appeal as moot and potential relief available to the plaintiff in this
case is a declaration by the Superior Court that the decision to appeal to the Law
Court is “null and void”. See 1 M.R.S.A. §409(2). If such an order was entered the
proceedings from the 2000 appeal would be over. Second, two of the three standard
exceptions to the mootness doctrine, see Lewiston Daily Sun v. School
Administrative District No. 43,1999 Me. 143 417, 738 A.2d 1239, 1243, might apply in
that a decision can provide future guidance to the bar and public in an area of great
public concern and in that there are issues that are capable of repetition but evading
review because of their fleeting or determinate nature.
Did the Selectmen violate the Freedom of Access Act in going from public to
executive session? The answer is yes. The procedures governing executive sessions
are set forth at 1 M.R.S.A. §405. The selectmen failed to comply with 1 M.R.S.A.
§405(3) which states that “Executive sessions may be called only by a public, recorded
vote of 3/5 of the members, present and voting, of such bodies or agencies.” There
was no recorded vote to go from public to executive session. There is also no
evidence of compliance with i M.R.S.A. §405(4) which requires that, “A motion to
go into executive session shall indicate the precise nature of the business of the
executive session.” Therefore the Selectmen did not follow the precise procedures
necessary to properly go into executive session.
Could the Selectmen consult with their attorney in executive session
regarding pending litigation? They certainly could pursuant to 1 M.R.S.A. §405(6)(E)
which reads as follows:
4
“Consultations between a body or agency and its attorney
concerning the legal rights and duties of the body or
agency, pending or contemplated litigation, settlement
offers and matters where the duties of the public body’s
counsel to his client pursuant to the code of professional
responsibility clearly conflict with this subchapter or
where premature general public knowledge would clearly
place the State, municipality or other public agency or
person at a substantial disadvantage.”
Did the Selectmen make a decision in executive session which could only be
made in public session? Here the answer is unclear. The parties have submitted
conflicting evidence and arguments. The Town states that on June 27, 2000 the
Selectmen took the following public vote, “A Motion was made and seconded to
appeal the decision of the Liquor Commission with regard to The Club/Harold
Feldberg.” That motion passed 4 to 1. The Town further argues that the initial vote
to pursue an appeal encompassed any and all further appeals and that no vote to
further appeal was taken or needed at the Selectmen’s meeting on September 19,
2000. The plaintiff argues that the selectmen discussed the litigation in executive
session which is proper but then voted in executive session to appeal further which
is not proper. See 1 M.R.S.A. §405(2) which prohibits the final approval of “... other .
official actions” in executive session. The plaintiff argues that the vote to appeal
must be taken in public session.
I cannot with sufficient certainty determine whether the vote of June 27, 2000
included authorization to appeal to the Law Court if need be or whether “official
action” was finally approved in executive session on September 19, 2000. I can
declare that the proper procedures to go into executive session were not followed
and that the plaintiff might be entitled to costs, but not attorney’s fees, at the end of
this case.
If the parties believe that a hearing in this case is still necessary, as the 2001
appellate process is underway, they may inform the Clerk and one will be scheduled
on the issues of what the June 27, 2000 vote authorized and whether final approval
of official actions took place in executive session on September 19, 2000.
The entry is:
Plaintiff’s amended motion for summary judgment is
denied.
Plaintiff’s motion for leave to file a reply memorandum
exceeding 7 pages in length is granted.
Defendant's motion to strikesis denied.
Plaintiff's motion for enlargement of time is granted.
2? a
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Dated: April 9, 2001 (fal Le, Ete te
Paul A. Fritzsche
Justice, Superior Court
John C. Bannon, Esq. - PL
Roy T. Pierce, Esq. — DEF