Parsons v. Inhabs. of the Town of Carmel

_ HT

ALD L. GAREREC

DONALD LS

STATE OF MAINE FEB 25 2002 _ SUPERIOR COURT

PENOBSCOT, SS. Docket No. AP- 02- 2

JL ME ay = oa A002

Sharrlyn B. Parsons et al!, °

Plaintiffs

Vv. ORDER

FILED AND ENT

SUPERIOR COURT.

Inhabitants of the Town

FEB 21 2067

of Carmel et al.,

Defendants PENOBSCOT COUNTY

Pending before the court is the plaintiffs' motion for preliminary

injunction. Hearing on the motion was held on February 20, 2002. The

parties were present with counsel. The court has considered the record

evidence, the parties’ oral presentations and their written arguments.

Plaintiff Sharrlyn B. Parsons was involved in circulating a petition

among residents of Carmel. The purpose of the petition was to include an

article in the warrant for the town meeting scheduled for March 4, 2002.

The proposed article had several components that related to an ongoing

dispute between the Town of Carmel and plaintiff Earle McSorley. That

dispute, which generated significant litigation in both of Maine's trial -

courts and in the Law Court, centered on McSorley's legal obligation to

establish a proper grade along that portion of the Horseback Road abutting

his land, which, at least in part, is a gravel pit. The article would create an

acknowledgement that plaintiff Earle McSorley had "labored extensively"

in efforts to make a portion of the Horseback Road safe for travel; it would

]

deem the installation of a guardrail to complete the process by which the

Horseback Road would be made safe for traffic; it would prohibit the Town

from engaging in any further court proceedings (including collection of

attorney's fees, forfeitures and penalties); it would require the Town to

return to McSorley any real property that the Town had acquired in its

efforts to enforce prior court orders; and it would require the Town to

dismiss with prejudice any claims pending McSorley and his wife that

related "in any way" to the Horseback Road dispute.

Ultimately, enough signatures were collected to Satisfy the

quantitative requirements of 30-A M.R.S.A. § 2522. Parsons submitted the

petitions to the Town. At a meeting held on December 17, 2002, the

Town's Board of Selectmen ("the Board") decided that the article associated

with the petition would not be included in the warrant for the March 4

town meeting. McSorley's wife is one of the Town's selectmen! and

advised her husband that evening of the Board's decision. Parsons learned

on December 21 that the Board had decided to reject the proposed article

from inclusion in the warrant for the upcoming town meeting.”

On January 22, 2002, Parsons and McSorley filed the pending

1She abstained from voting at the selectmen's meeting when the petition issue

was addressed.

2The evidence generated a factual dispute about when Parsons received notice

of the Board's decision. The Town Manager testified that on December 18 he verbally

advised her of the decision and then wrote a letter dated December 19. The text of the

letter, however, does not make reference to any verbal notification, and one might

expect such a letter to do so. Parsons, on the other hand, testified that she did not

receive any notice of the Board's decision until December 24. This contradicts the

allegation in her complaint that she received that notice on December 21. See

complaint at | 9. The best evidence indicates: -- and the court finds -- that she

received that notice on December 21, as she alleged. This is generally consistent with

the transmission of a letter on December 19, if one allows a day or two for mailing.

2

complaint, seeking an order requiring the Town to include the proposed

article in its warrant for the March 4 town meeting.

A. Jurisdiction

Although not raised by the parties, this action raises a question of

whether the court has jurisdiction to entertain the merits of the plaintiffs’

argument.? Jurisdictional issues may be considered on the court's own

notice. Hodsdon v. Town of Hermon, 2000 ME 181, { 3, 760 A.2d 221, 222.

The plaintiffs have presented their complaint as an appeal under

M.R.Civ.P. 80B. The complaint itself is labelled generically as a complaint,

and the prayer for relief is framed in terms of an injunction. However, in

two summary sheets filed by the plaintiffs,4 they expressly designated this

action as a rule 80B appeal from the decision of a governmental body. Any

pleading, including a complaint, must be accompanied by a "properly

completed" summary sheet. M.R.Civ.P. 5(h). This requirement is not

meaningless, particularly in the circumstances of his case, because a

pleading party's characterization of a claim determines the process that the

claim will follow through the court system. When a plaintiff treats a claim

as a rule 80B appeal rather than as an independent civil cause of action,

then the defendant is not required to file a responsive pleading, the parties

are required to file a record of the administrative proceeding and the court

establishes a briefing schedule. None of these procedural aspects of an

3The defendants contend that the complaint was not filed in a timely way.

Such a procedural defect would be jurisdictional. See Davric Maine Corp. v. Bangor

Historic Track, Inc., 2000 ME 102, | 11, 751 A.2d 1024, 1029-30. This issue, however, is

different than the one discussed in the text.

4A second summary sheet was required because the first was on an outdated

form.

appeal apply to an independent claim.

Here, in response to the court's questions at the February 20 hearing,

the plaintiffs requested the court to treat their complaint as an

amalgamation of a rule 80B appeal and an independent claim for

injunctive relief. Because the plaintiffs themselves designated their claim

as appellate in nature and because a shift in the nature of the action would

create fundamental changes in the procedural course in this case, at this

time the court declines to treat the complaint as anything other than the

type of case that the plaintiffs themselves chose to file, namely, a rule 80B

appeal.> The resulting question is whether rule 80B is an available

procedural mechanism for the relief sought here by the plaintiffs.

Rule 80B provides a procedural avenue by which a party can seek

review of governmental action when a right of appeal "is provided by

statute or is otherwise available by law... ." MRCiv.P. 80B(a). The rule

itself does not create a right of appeal from governmental action. Lyons v.

Board of Directors of S.A.D. 43, 503 A.2d 233, 235 (Me. 1986). None of the

parties have identified any statute that allows an appeal from a

municipality's decision not to include an article on a town warrant when

‘the article is the subject of a petition that satisfies the numerical

requirements of 30-A M.R.S.A. § 2522. The court's research revealed no

such authority. The next question is therefore whether this type of court

action is "otherwise available by law" within the meaning of rule 80B(a).

"An action for an injunction in the nature of mandamus may be

SIf, on the other hand, the case became viewed as one that raised an

independent claim, then procedural complications would ensue because, for example,

the deadline for a responsive pleading has already passed. These types of important

procedural implications must be balanced against the plaintiffs’ verbal request that

the case be seen in part as an independent claim.

4

‘otherwise authorized by law’ if it is the type of action for which the

traditional writ would apply." Casco Northern Bank, N.A. v. Board of

Trustees of Van Buren Hospital District, 601 A.2d 1085, 1087 (Me. 1992).

In that instance, rule 80B may be used to seek injunctive relief.

Mandamus is available as a remedy in order "to compel governmental

performance of a strictly ministerial act, that the applicant, otherwise

without remedy, is entitled to have performed." Jd. Thus, it must be

determined, first, whether a municipality's response to a proper petition

under section 2522 is ministerial or discretionary, and, second, whether

the plaintiffs have other remedies.

The provisions of section 2522 do not deprive a municipality of

discretion in deciding whether to place an article on a warrant, because

section 2521(4) provides other ways for petitioners to present an article

for vote when the selectmen "unreasonably" refuse to call a town meeting.

Dunston v. Town of York, 590 A.2d 526, 527-28 (Me. 1991). It therefore

would appear that a municipality's response to a petition submitted under

section 2522 is discretionary and not ministerial. However, the standard

of reasonableness embodied in section 2521(4) has been held to create

parameters to the discretion vested in a municipality. Therefore,

unsuccessful petitioners have the right to judicial recourse when they

claim that the municipal officers abused their Statutory discretion. Jd.

Such an argument is within the scope of a mandamus action, id., because,

presumably, when a decision is non-discretionary (that is, beyond the

bounds of discretion), it is ministerial. When the plaintiffs’ allegations are

viewed in this way, the claim at bar satisfies this element of a mandamus

action.

The next issue is whether the plaintiffs have remedies other than the

pending action. See generally Casco Northern Bank, 601 A.2d at 1088. The

defendants argue that such other remedies and options exist because

section 2521(4) vests the plaintiffs with the right to have a notary public

call a public meeting at which the proposed article would be considered

and put to a vote. Any rights created by section 2521(4), however, are

triggered only when "the selectmen unreasonably refuse to call a town

meeting. . . ." Here, the selectmen did not make that decision. Rather, the

minutes from the Board's December 17 meeting show only that the

selectmen voted "not to put the petition on the Town Warrant as written."

See defendant's exhibit 2. Therefore, the condition that precipitates the

petitioners’ right to recourse from a notary public has not been satisfied,

and any relief otherwise available under section -2521(4) is not accessible

to the plaintiffs now.

The defendants also may be seen to argue that the plaintiffs have

other modalities of relief because the Board rejected the proposed article

"as written" and thus left open the opportunity to submit a revised

proposed article. On the present record, this argument is unpersuasive for

two reasons. First, there is no statutory provision requiring petitioners to

submit to such a request. The issue presented here is whether the Town is

required by statute to include this proposed article in the town warrant.

Second, the record is devoid of evidence revealing the reasons for the

Board's decision to reject the proposed article and thus, by implication,

what the Board might have found acceptable.® Therefore, the court

6The defendants attempted to introduce such evidence, but the evidence was

excluded because it was not admissible in the proffered form.

6

concludes that the plaintiffs do not have other adequate remedies.

The action at bar, in its essence, is equivalent to a mandamus action

if it is seen as alleging that the Town abused its discretion in rejecting the

proposed article. Thus, the record is adequate to demonstrate, at least

preliminarily, that the court has subject-matter jurisdiction over the

claim.’

B. Merits of the motion for preliminary injunction

Yo support an application for a preliminary injunction, the claimant

must establish four elements that are viewed collectively: that the

claimant will suffer irreparable injury in the absence of injunctive relief;

that such injury outweighs any harm caused by the issuance of injunctive

relief; that there is a clear likelihood of success on the merits; and that

injunctive relief will not harm the public interest. Department of

Environmental Protection vy. Emerson, 563 A.2d 762, 768 (Me. 1989). The

court concludes that neither of the plaintiffs has shown any likelihood of

success on the merits and that neither is entitled to a preliminary

injunction. .

(1) Claim of plaintiff Sharrlyn B. Parsons

The defendants argue initially that Parsons’ claim for relief is barred

7As defined in Casco Northern Bank, the proponent of a proper mandamus

action is one who is entitled to performance by the municipality. 601 A.2d at 1087. If

this is a distinct element of a mandamus claim, then it may implicate the standing

issues discussed in the text below. The court concludes that neither of the two

plaintiffs have shown that they have the right to bring this claim because of lack of -

standing (Parsons) and failure to file a timely appeal (McSorley). If that also means

that neither is entitled to obtain performance by the Town in accordance with

section 2522, then that means that this is not a proper mandamus action and that

therefore the plaintiffs do not have a tight to appeal under rule 80B. For purposes of

this order, however, the court assumes that a mandamus action would lie based on the

present allegations because someone (although perhaps not these particular

plaintiffs) would be entitled to seek the redress for which they have brought suit.

7

because she did not file a timely complaint in Superior Court. As is noted

above, the court has found that Parsons did not receive notice of the

Board's December 17 decision until December 21. As calculated from

December 21, the thirty day appeal period, see M.R.Civ.P. 80B(b), would

have expired on January 20, which was a Sunday. The complaint filed on

January 22 was timely as to her, because that was the first business day

following January 20. (Monday, January 21 was a court holiday.)

The defendants contend that the thirty day appeal period runs from

the date of the Board's decision (December 17) because, due to advance

publication of the Board's agenda and the public nature of the meeting

itself, Parsons had constructive notice of the Board's action taken on

December 17. The very terms of rule 80B(2), however, make clear that the

30 day appeal period commences upon “notice of any action." In analyzing

rule 80B, the Law Court has maintained that distinction between the

decision and the notice of that decision. See Woodward v. Town of

Newfield, 634 A.2d 1315, 1317 (Me. 1993); Keating v. Zoning Board of

Appeals of the ‘City of Saco, 325 A.2d 521, 524 (Me. 1974). Cf. Colby v.

York County Commissioners, 442 A.2d 544, 546 (Me. 1982) (affirming trial

court's ruling that rule 80B appeal was untimely because it was not filed

within thirty days after notice of the decision). Therefore, Parsons' appeal

was timely under rule SOB.

However, Parsons does not have standing to mount a judicial

challenge to the Board's refusal to include the proposed article in the town

warrant. Standing exists only where the claimant "has some private or

particular interest to be subserved, or some particular right to be pursued

or protected independent of that which he holds in common with the

public at large... ." Buck v. Town of Yarmouth, 402 A.2d 860, 861 (Me.

1979). Here, Parsons’ interest in these proceedings is identical to that of

any other resident of Carmel. Because she does not allege any

particularized injury from an alleged public wrong, and because the record

does not reveal any such injury, she is not entitled to pursue this action.

Further, none of the exceptions to this principle apply here. See id., 402

A.2d at 862-64. Therefore, Parsons has not demonstrated a clear

likelihood of success on her claim against the defendants. In fact, the

present record strongly demonstrates that she cannot proceed to the

merits of her claim because she lacks standing to do so.

This conclusion relates to the first of the four injunction inquiries.

For the same reasons that Parsons does not have standing to bring this

claim, she has not demonstrated that she’ would suffer an irreparable

injury that could be the subject of relief. When the factors relevant to the

issuance of an injunction are viewed in their: totality, even if the third and

fourth elements favor Parsons' case (an issue that the court need not

address in this context), the court would decline to issue a preliminary

injunction. Because the evidence demonstrates that Parsons does not have

standing to assert the claim at bar, and because she has not shown that she

has suffered or will suffer an injury that could form the basis for judicial

relief, judicial intervention to vitalize that claim would be inappropriate.

Her request for a preliminary injunction therefore must be denied.

(2) Claim of plaintiff Earle McSorley

McSorley's claim in this action is clearly untimely. He was notified of

the Board's December 17 decision on the very night that decision was

made. Under rule 80B(b), he had until January 16 to file an appeal that

would be timely. The complaint was filed on January 22, three business

days after the deadline. McSorley's reliance on the three day mailing

provisions of rule 6(c) is unavailing, because that rule simply does not

_ apply to these circumstances. Additionally, he has not made a showing of

excusable neglect that would justify his late filing under rule 80B(b).

Because his claim against the defendants is untimely, he has not invoked

this court's jurisdiction to consider the merits of his appeal. See Davric

Maine Corp. v. Bangor Historic Track, Inc., 2000 ME 102, J 11, 751 A.2d

_ 1024, 1029-30. McSorley therefore has not shown a clear likelihood of

success on the merits. Indeed, the record affirmatively demonstrates the

contrary.

Even if McSorley had filed his claim against the defendants in a

timely way, the court would decline to grant him preliminary injunctive

relief. In seeking a preliminary injunction, McSorley invokes the equitable

powers of the court. Merrill Lynch, Pierce, Fenner & Smith v. Bishop, 839

F.Supp. 68, 70 (D.Me. 1993); Town of Shapleigh y. Shikles, 427 A.2d 460,

464-45 (Me. 1981). "Upon him who seeks equity are enjoined strict

requirements that he do equity, and that he keep faith with his own

engagements." Lunt v. The Fidelity & Casualty Co. of New York, 139 Me.

218, 221 (1942),

During the course of the proceedings initiated by the Town against

McSorley, in August 1999 the court held McSorley in contempt due to his

_ willful non-compliance with prior orders that required him to establish a

requisite grade on that part of his property abutting the Horseback Road.

Based on its conclusion that McSorley contemptuously failed to comply

with a court order, the court reiterated its prior order (which, in fact, was a

10

form of injunctive relief granted to the Town) that McSorley establish a

defined grade, and the court then imposed significant monetary penalties

as a coercive sanction. One year later, in September 2000, the court found

that McSorley continued to resist the prior court orders and concluded that

he would continue his contemptuous conduct in the absence of

"compulsion." Although the court found that McSorley had engaged in

efforts that exceeded that of two other landowners, the court also

concluded that his failure to comply with outstanding court orders was not

excusable. On that basis, the court imposed a $2,500 punitive sanction

against McSorley. The court reserved to the Town the right to seek other

sanctions, including incarceration and an award of attorney's fees.®

McSorley's troubling history of refusing to comply with court orders,

Signified by the imposition of contempt sanctions, forecloses any conclusion

that he has satisfied the equitable conditions to injunctive relief and that

he appears in this proceeding with clean hands. ' Rather, the record on the

pending motion demonstrates that he has not conducted himself in a

manner that would entitle him to the benefit of equitable intervention by

the court. The eventual effect of the injunctive relief McSorley seeks here

is to countermand the adverse findings and orders entered against him by

the court: despite the court's conclusions to the contrary, the proposed

article would acknowledge the sufficiency of his efforts to remediate the

8None of the prior court orders in the several cases involving the Town and

McSorley was the subject of a direct appeal. All of those prior orders became final

judgments. Recently, McSorley filed a motion for relief of the judgments entered in

those cases. The motion was denied, and McSorley filed an appeal of that denial to the

Law Court. Counsel advise that the appeal remains pending. Particularly for

purposes of the pending motion, the court does not treat the appeal as affecting the

effectiveness of the prior orders or diminishing their significance here. See

RESTATEMENT (SECOND) OF THE LAW OF JUDGMENTS § 13 cmt. f (1982).

11

condition of his property; it would neutralize the remedies and coercive

sanctions that the court has fashioned in an effort to extract compliance

from McSorley; and it would deprive the Town of any rights it has under

Maine law to secure future compliance. Although the issue at bar relates

to the inclusion of the proposed article in the town warrant, this court

cannot ignore the ultimate purpose of the article and its effects on prior

court orders. Therefore, even in the absence of the procedural flaws

affecting McSorley's claims against the defendants, he has not shown that

he should be entitled to the benefit of the court's equitable powers.

The court does not reach the remaining issues raised by the

defendants.

The entry shall be:

For the foregoing reasons, the plaintiffs' motion for preliminary

injunction is denied.

Dated: February 21, 2002 A I] Vn 4

Justice! Maing! Superior Court

12

' Date Filed

1/22/02 Penobscot Docket No. AP-2002-02

Action

Civil - Rule 80B Appeal

County

Justice Mead recused

ASSIGNED TO JUSTICE ANDREW M. MEAD

REASSIGNED TO JUSTICE JEFFREY L. HJELM

SHARRLYN B. PARSONS and

EARLE MCSORLEY Vs.

INHABITANTS OF THE TOWN OF CARMEL AND

BOARD OF SELECTMEN OF THE TOWN OF CARME

Plaintiff's Attorney

GILBERT & GREIF

P O BOX 2339 - 82 Columbia St

Bangor ME 04402-2339

BY: Arthur Greif, Esq.

Defendant’s Attorney

BERNSTEIN, SHUR, SAWYER & NELSON

PO BOx 50577, 146 Capitol St

Augusta ME 04332-5057

BY: Lee K. Bragg, Esq. and

Gregory Cunningham, Esq.

FOR: All Defendants

Date of

Entry

1/22/02 Complaint and Application for Preliminary Injunction filed by Plaintiff

Exhibit A - O attached.

1/22/02 Plaintiffs' Memorandum of Law in Support of their Application for a

Preliminary Injunction filed.

1/24/02 Notice and Briefing Schedule 80B Appeal of Governmental Actions filed.

Copy - forwarded to attorney for the Plaintiff and to Defendants.

at P O BOx 114, Carmel ME 04419-0114

1/25/02 Notice of Assigned Justice filed. Pursuant to Administrative Order,

Single Justice Assignment of Civil Cases, Docket No. SJC-323, the

above referenced case.:is specially reassigned to Justice Jeffrey L. Hjelm.

/s/ Margaret Gardner, Clerk. Copy forwarded to Plaintiff's Counsel.

1/28/02 | Plaintiffs" Motion For Recusal and Incorporated Memorandum of Law filed.

1/31/02 Letter received by Arthur J. Greif, Esq. withdrawing plaintiffs motion

for Justice Mead's recusal.

2/5/02. Appearance filed by Lee K. Bragg, Esq. and Gregory M. Cunninghan, |

Esq. on behalf of Defendants.

2/5/02 Officer's Return of Service on Defendant Board of Selectmen of the

Town of Carmel filed. (s.d. 1/29/02 to Doug Small, Selectman)

2/5/02 Officer's Return of Service on Defendant Inhabitants of the Town

of Carmel filed. (s.d. 1/29/02 to Tom Richmond, Town Manager)

2/6/02 Copy of Notice and Briefing Schedule 80B Appeal of Governmental

Actions forwarded to Defendant's counsel.

STATE OF MAINE SUPERIOR COURT

PENOBSCOT, SS. CIVIL ACTION

Docket No. AP-02-2

OLA REN fiz 2008,

Sharrlyn B. Parsons et al., DONALD L. GARBRECH?

Appellants LAW LIBRARY

JUN ox 2002

Vv. Order on Appeal

FILED AND ENTERED

SUPERIOR COURT

Inhabitants of the Town of Carmel et al., JUN 17 2002

Appellees

PENOBSCOT COUNTY

Pending before the court is the appeal filed by Sharrlyn B. Parsons and Earle

McSorley from the decision of the Board of Selectmen of the Town of Carmel, declining

to include a proposed article in the town warrant for the March 4, 2002, town meeting,

and also declining to call a special town meeting at which the proposed article could be

considered. See 30-A MLR.S.A. § 2522. The appellants’ motion for a preliminary

injunction was heard on February 20 and denied in an order issued the next day. The

parties subsequently filed written argument on the ultimate merits of the appeal. The

court has fully considered the parties’ submissions.

The factual background of this dispute is set out in the February 21 order, which

the court fully incorporates into this order.

In that earlier order, the court found that McSorley had not filed the appeal at bar

in a timely manner. For that reason, the court denied his motion for a preliminary

injunction. In his brief on appeal, McSorley has stated that he does not challenge this

conclusion of law. Accordingly, for the reasons set out in the prior order, McSorley’s

appeal in this case must be dismissed.

In the February 21 order, the court further concluded that Parsons did not have

standing to bring the appeal at bar because she had not demonstrated particularized injury

resulting from the governmental action. In order to provide additional factual support for

her argument that she does have standing, Parsons has submitted an affidavit that she

contends is part of the record on this appeal. The appellees have objected to the

submission of that affidavit because they contend that they did not agree that the affidavit

would be included with the other portions of the record.’ Parsons’ attorney responds that

counsel did in fact agree that her affidavit would be part of the record.

An appellant bears the burden of creating the record on appeal. M.R.Civ.P.

80B(e); Milos v. Northport Village Corp., 453 A.2d 1178, 1179 (Me. 1983). The record

on appeal consists of material that the parties agree should be included in that record or,

in the event of a dispute that the parties submit to the court, material that the court

decides should be included. M.R.Civ.P. 80B(e). Here, the nature of counsel’s dispute

about the contents of the record leaves the court without an adequate basis to determine

the scope of the record to which they have agreed. Further, counsel’s references to their

apparent miscommunication do not represent or amount to a request that the court resolve.

that issue for them. Because Parsons has the responsibility to create the record, and

because the court cannot say that her March 1 affidavit is part of that record, the court

cannot consider the factual material in that affidavit on the question of standing.”

In the February 21 order, the court concluded that Parsons does not have standing

because any injury she attributes to the Town’s action was not particularized. This

conclusion resulted from the Law Court’s treatment of the standing question in Buck v.

Town of Yarmouth, 402 A.2d 860 (Me. 1979). There, the town council refused to take

the same type of action that the appellants at bar seek from the Town of Carmel, namely,

the inclusion of a proposed article in a warrant for a town meeting or arrangement fora

special town meeting when that article would be considered. Id. at 861. The petition at

issue in Buck, which was presented to the Yarmouth town council under the statutory

1 Despite making that objection, none of the parties has raised or argued the question of

whether standing may be determined from the appellate record or whether it is an issue

that the court must decide in its factfinding capacity. The court therefore assumes,

without deciding, that a party’s standing may be assessed on the basis of the record on

appeal.

? In light of the legal analysis leading to the court’s conclusion that Parsons does not have

standing, the additional factual data included in her March 1 affidavit would not affect

that outcome because they are not relevant to the reason why she lacks standing to pursue

this appeal.

predecessor to section 2522, was designed to force a municipal election on the

petitioners’ proposal to withdraw funding for a municipal recreation facility. Id.

Concluding that the petitioners did not have standing to challenge the town council’s

refusal to call a town meeting where the article would be the subject of a vote by the local

voters, the Law Court reiterated the notion that

[a] private individual can apply for this remedy (against allegedly illegal action or

inaction by public officials) only in those cases, where he has some private or

particular interest to be subserved, or some particular right to be pursued or

protected . . ., independent of that which he holds in common with the public at

large; and it is for the public officers, exclusively to apply, when public rights are

to be subserved.

Id. at 861, quoting Sanger v. County Commissioners of Kennebec, 25 Me. 291, 296

(1845). The Court held that the petitioners’ injury was not the town’s decision to

continue the funding for the recreational facility. Rather, the injury was the denial of an

opportunity to vote on that issue at a town meeting. 402 A.2d at 862; see also id. at n.4.

The Court concluded that the town “[c]ouncil’s refusal to comply with plaintiffs’ request

[to include the submitted article for vote at a town meeting] affects all voters of the Town

of Yarmouth alike.” Jd. at 462. In other words, because none of the town’s voters would

have the opportunity to vote on the issue, the petitioners stood in a position identical to

all other voters and therefore could not show particularized injury.

Here, the relief sought by Parsons, as framed in her complaint, is a court order

that would require the Town to include the proposed article on the warrant at the March

4, 2002, town meeting. (Because that specific form of relief is no longer possible,

Parsons seeks an order that would now require the Town, pursuant to section 2522, to call

a special town meeting where the article could be considered.) Thus, the harm alleged by

Parsons is the denial of an opportunity for her and all other qualified town residents to

vote on the merits of her proposed article. When the injury to the appellants at bar is

defined in this way, any injury to Parsons resulting from the Town’s refusal to call a town

meeting is the same as all town voters would sustain.’ Under this analysis, the

3 When Parsons’ standing is examined in this light, the extent of her prospective use of

the Horseback Road is immaterial.

appellants’ reliance on Fitzgerald v. Baxter State Park Authority, 385 A.2d 189 (Me.

1978) is misplaced because there the injury caused by governmental action was its actual

affect on the recreational interests of the plaintiffs. Jd. at 196.

This conclusion does not leave Parsons without recourse because, as Buck

confirms, a public injury — such as the one Parsons alleges here — may be the subject of

redress that is obtained by the Attorney General or some other public official. 402 A.2d

at 862-63.

The entry shall be:

For the foregoing reasons, the appeal of Earle McSorley is dismissed as untimely,

and the appeal of Sharrlyn B. Parsons is dismissed for lack of standing.

Dated: June 17, 2002 dt | Ve ZO

Justice, , Main uperior Court

Jeffrey L Hjélm

Date Filed 1/22/02 Penobscot Docket No. AP-2002-02

County

Justice Mead recused

Action Civil ~ Rule 80B Appeal

ASSIGNED TO JUSTICE ANDREW M. MEAD

REASSIGNED TO JUSTICE JEFFREY L. HJELM

SHARRLYN B. PARSONS and INHABITANTS OF THE TOWN OF CARMEL AND

EARLE MCSORLEY VS. BOARD OF SELECTMEN OF THE TOWN OF CARMEL

Plaintiff’s Attorney Defendant’s Attorney

GILBERT & GREIF BERNSTEIN, SHUR, SAWYER & NELSON

P O BOX 2339 - 82 Columbia St P O BOx 50577. 146 Capitol St

Bangor ME 04402-2339 Augusta ME 04332-5057

BY: Arthur Greif, Esq. BY: Lee K. Bragg, Esq. and

Gregory Cunningham, Esq.

FOR: All Defendants

Date of

Entry

1/22/02 Complaint and Application for Preliminary Injunction filed by Plaintiff

Exhibit A - O attached.

1/22/02 Plaintiffs" Memorandum of Law in Support of their Application for a

Preliminary Injunction filed.

1/24/02 Notice and Briefing Schedule 80B Appeal of Governmental Actions filed.

Copy . forwarded to attorney for the Plaintiff and to Defendants

at P O BOx 114, Carmel ME 04419-0114

1/25/02 | Notice of Assigned Justice filed. Pursuant to Administrative Order,

Single Justice Assignment of Civil Cases, Docket No. SJC-323, the

above referenced case is specially reassigned to Justice Jeffrey L. Hjelm.

/s/ Margaret Gardner, Clerk. Copy forwarded to Plaintiff's Counsel.

1/28/02 Plaintiffs’ Motion For Recusal and Incorporated Memorandum of Law filed.

1/31/02 Letter received by Arthur J. Greif, Esq. withdrawing plaintiffs motion

for Justice Mead's recusal.

2/5/02 Appearance filed by Lee K. Bragg, Esq. and Gregory M. Cunninghan,

Esq. on behalf of Defendants.

2/5/02 Officer's Return of Service on Defendant Board of Selectmen of the

Town of Carmel filed. (s.d. 1/29/02 to Doug Small, Selectman)

2/5/02 Officer's Return of Service on Defendant Inhabitants of the Town

of Carmel filed. (s.d. 1/29/02 to Tom Richmond, Town Manager)

2/6/02 Copy of Notice and Briefing Schedule 80B Appeal of Governmental

Actions forwarded to Defendant's counsel.