Friends of Congress Square Park v. City of Portland

~RED AUG 2 gztdi

STATE OF MAINE SUPERIOR COURT

CUMBERLAND, ss CIVIL ACTION

DOCKET NO. AP-13-055

FRIENDS OF CONGRESS vA'AJ-(/LU'Y)- rlb-JZ-14

SQUARE PARK, et al.

Plaintiffs

ORDER ON MOTION

v. FORAWARDOF

ATTORNEYS' FEES

CITY OF PORTLAND,

Defendant

ACG 18 20'14

.. \ ~--.~ . .~ ' ' <~:. ""'~t

Before the court is plaintiffs' motion for an award of attorneys' fees and' · ... '

costs. On May 6, 2014, the Law Court affirmed this court's decision finding in

plaintiffs' favor on counts I and II of their complaint regarding the City's refusal

to issue citizens' initiative petition forms. Friends of Cong. Square Park v. City of

Portland, 2014 ME 63, <JI 19, 91 A.3d 601. The parties stipulated that, if plaintiffs

prevailed on appeal, the City is liable on count III of plaintiffs' complaint under

42 U.S.C. § 1983. Id. <JI 5 n. 5. Under 42 U.S.C. § 1988, the court may award

reasonable attorneys' fees to the prevailing party on a section 1983 claim. 42

U.S.C. § 1988 (2012); Doe I v. Williams, 2013 ME 24, <JI 80, 61 A.3d 718. "Unless

special circumstances would render such an award unjust, the general rule is that

the prevailing party is entitled to an award of attorneys' fees." IMS Health Corp.

v. Schneider, 901 F. Supp. 2d 172, 187 (D. Me. 2012) (quotation marks omitted).

The City argues that special circumstances make an award of attorneys'

fees unjust in this case. "The special circumstances warranting the complete

denial of attorneys' fees are narrowly circumscribed." Cushing v. McKee, 853 F.

Supp. 2d 163, 171 (D. Me. 2012) (quotation marks omitted). Special circumstances

that permit the denial of a fee award "are few and far between." De Jesus Nazario

v. Morris Rodriguez, 554 F.3d 196, 200 (1st Cir. 2009).

The City relies on Schock v. United States, which involved a claim for

attorneys' fees under the Equal Access to Justice Act ("EAJA"), 42 U.S.C. § 2412.

Schock v. United States, 254 F.3d 1 (1st Cir. 2001). The City argues that its position

in this case was justified even though the City ultimately lost the case because the

law in Maine was unclear on the distinction between legislative and

administrative matters. Unlike § 1988, the EAJA requires a court to award fees

"unless the court finds that the position of the United States was substantially

justified or that special circumstances make an award unjust." 42 U.S.C. §

2412(d)(l)(A) (emphasis added). The "substantially justified" language is absent

from 42 U.S.C. § 1988. Schock is therefore not relevant to this case.

Federal courts have held that "mere uncertainty in the law is not a 'special

circumstance' justifying rejection of a statutory award of attorney fees in a civil

rights action." Northcross v. Bd. of Ed. of Memphis City Schs., 611 F.2d 624, 635 (6th

Cir. 1979); see also J & J Anderson, Inc. v. Town of Erie, 767 F.2d 1469, 1474 (lOth Cir.

1985) (stating that "good faith" and "uncertainty in the law" do not amount to

special circumstances under§ 1988). As the Northcross court explained, "[a] major

purpose of the Fees Awards Act was to encourage the bringing of suits in new

and undeveloped areas of civil rights law, and it would be anomalous indeed ...

to deny fees for the very reason the statute was passed." Northcross, 611 F.2d at

635. The City has failed to articulate a valid special circumstance to justify

denying plaintiffs' fee award.

Furthermore, although the City contends that it acted in good faith to

protect its rights in. this case, the Court notes that the City withheld the citizens'

initiative petition forms without any legal justification.' See Friends of Cong. Square

Park, 2014 ME 63, 'IT 4 n.3, 91 A.3d 601 ("The City Clerk does not have express

authority to reject citizens' initiative proposals submitted in compliance with the

petition procedure in the City Code on the grounds that they are not

legislative.") The City forced plaintiffs to file suit and litigate on an expedited

schedule just to obtain the requested petition forms. As the City concedes,

municipalities must proceed with caution when constitutional rights are

involved and should err on the side of ensuring the free exercise of political

speech.

The City does not contest the reasonableness of plaintiffs' fee request,

which is supported by affidavits from counsel. Accordingly, plaintiffs' motion is

granted in full.

The entry is:

Plaintiffs' motion for award of attorneys' fees is GRANTED.

Plaintiffs are awarded their attorneys' fees and costs in the

amount of $50,834.50, plus post-judgment interest at 6.16%

calculated from the October 31, 2013 judgment.

Dated: August 18, 2014

~Wheeler

Justice, Superior Court

Plaintiffs-Sarah McDaniel Esq

Robert Levin Esq

Defendant-Danielle West-Chuhta Esq

Jennifer Thompson Esq

• Plaintiffs waived this argument, likely out of a desire to avoid further litigation.

STATE OF MAINE SUPERIOR COURT

CUMBERLAND, ss CIVIL ACTION

DOCKET NO. A~-)3-0?5

. .JAW- cu..M- ;o;ai ;z_o;3

FRIENDS OF CONGRESS

SQUARE PARK, FRANK R.

TUREK, DAVID R. LaCASSE,

HERBERT C. ADAMS, and

PATRICIAM. O'DONNELL

Plaintiffs

ORDER ON SOB APPEAL

v. AND MOTION FOR

SUMMARY JUDG~ENfA~''~ ~ .

CITY OF PORTLAND r_;r~~rnh~;:!:-,;"' ~ f"·

Defendant

ocr 31 2013

Plaintiffs challenge the City of Portland's refusal to provide them the required~ ~:~ i

petition forms to gather signatures for a ballot initiative under the Portland City Code.

Factual and Procedural Background

Friends of Congress Square Park ("Friends") is a Maine nonprofit corporation

incorporated on July 15, 2013. (Pls.' S.M.F. ~ 2.) The individual plaintiffs are all Portland

citizens, registered voters, and board directors or officers of Friends. (Pls.' S.M.F. ~~ 1,

3.) Friends was formed in response to a proposal in 2013 to sell a portion of Congress

Square Park to a private developer. (Compl. ~ 10.) The organization ultimately adopted a

strategy of petitioning for a ballot initiative that would strengthen the current Land Bank

ordinance to protect Congress Square and other city parks. (Compl. ~ 11.)

The Land Bank Commission was established by the City Council in 1999. The

Commission manages the Land Bank properties and recommends properties for potential

Land Bank dedication. Under current law, the City Council alone has the authority to

approve any new acquisitions or dispositions of Land Bank properties.

On September 6, 2013, plaintiffs submitted a citizen petition ("Park Initiative") to

the Clerk of the City of Portland. (Pls.' S.M.F. ~ 7.) The Park Initiative would accomplish

three things: 1) establish a new category of land for Land Bank eligibility called "urban

open public spaces," 2) designate 35 city-owned properties, including Congress Square

Park, as Land Bank properties, and 3) strengthen the protections for all new and existing

Land Bank properties. (Pls.' S.M.F. ~ 7; Exhibit D.) On September 13,2013, counsel for

the City informed the plaintiffs that the City would not issue the petitions requested by

plaintiffs because the initiative would affect administrative matters and because it related

to "appropriations." (Pls.' S.M.F. ~;Exhibit F.) On September 16, 2013, City Council

voted 6-3 to approve the sale of Congress Square Park. (Pls.' S.M.F. ~ 12.) The City

entered into a purchase and sale agreement for the park on October 4, 2013. (Def.'s

S.M.F. ~ 34.)

Plaintiffs commenced this action on September 25, 2013 by filing an emergency

motion for preliminary injunction asking the Court to order the City to issue the petitions.

Plaintiffs alleged three counts. Count I is a Rule SOB appeal of government action, count

II is an action for declaratory judgment and injunctive relief, and count III is a § 19S3

claim. After a conference with counsel, the Court issued an order specifying the course of

proceedings on September 30, 2013. The order stayed consideration of count III pending

resolution of the first two counts. The Court accelerated the briefing deadlines for counts

I and II and ordered the parties to submit their filings on the SOB appeal and declaratory

judgment action in the form of a single motion for summary judgment.

2

Discussion

1. Standard of Review

The Court reviews interpretations of local ordinances de novo as a question of

law. Aydellot v. City of Portland, 2010 ME 25, ~ 10,990 A.2d 1024. In construing local

ordinances, courts "look first to 'the plain meaning [of the ordinance] to give effect to the

legislative intent."' Lewis v. Town of Rockport, 2005 ME 44, ~ 11, 870 A.2d 107 (quoting

Griffin v. Town of Dedham, 2002 ME 105, ~ 7, 799 A.2d 1239). "Any undefined or

ambiguous terms in the Ordinance 'must be construed reasonably with regard to both the

objects sought to be obtained and to the general structure ofthe ordinance as a whole."'

Adams v. Town of Brunswick, 2010 ME 7, ~ 11, 987 A.2d 502 (quoting Davis v. SBA

Towers II, LLC, 2009 ME 82, ~ 10, 979 A.2d 86).

2. Ministerial Duty

Plaintiffs argue that the Code imposes a ministerial duty on the City Clerk to issue

the petitions. Section 9-36 of the Portland Code outlines the procedure for invoking the

initiative process. It requires petitioners to file an affidavit of registered voters who will

circulate the petition, and then states:

Upon filing of such affidavit by ten (1 0) such voters, the city clerk shall have

seven (7) calendar days to prepare the proper petition forms pursuant to section 9-

37 below with a copy ofthe submitted ordinance either printed on the petition or

attached thereto and shall provide such petition to members of the petitioners'

committee and to any other registered city voter who wishes to circulate it.

Code ofOrdinances, City ofPortland, Me ("Code")§ 9-36(c) (eff. July 17, 2007). The

plaintiffs point to the Code's own rules of construction, which instruct that "[t]he word

'shall' is mandatory." Code§ 1-2; see also Casco N Bank, NA. v. Bd. ofTrs. of Van

3

Buren Hasp. Dist., 601 A.2d 1085, 1087 (Me. 1992) ("[T]he word 'shall' is to be

construed as 'must' for the purpose of sustaining or enforcing an existing right.").

The City argues that the application of Code § 9-3 6( c) is constrained by the

limitations found in the preceding Code subsections. Section 9-36(a) provides that the

initiative process extends to "any proposed ordinance dealing with legislative matters on

municipal affairs." Section 9-36(b) states: "Neither this article nor ordinances dealing

with appropriations, tax levy, or with wages or hours of city employees shall be subject to

the initiative and 'people's veto' referendum provisions herein established." The City

contends that the initiative must satisfy these code sections before the City Clerk is

required to issue the petitions.

In Wyman v. Secretary of State, the Law Court considered limitations on the

statewide initiative process in Maine. Wyman v. Sec'y of State, 625 A.2d 307, 310 (Me.

1993) The court found that "although the right to invoke an initiative is a state-created

right, it does not follow that the state is free to impose limitations on that right without

satisfying the dictates of the first amendment." !d. at 311. In Wyman, the Secretary had

concerns about the legality of the proposed law, but the court held that "the potential

invalidity of the subject of an initiative petition ... is not a sufficient reason to pre-empt

the petition process itself or to bar the discussion of the issues raised in the petition." I d.

at 311. The court further found that "the Secretary's concerns of voter confusion and

wasted resources if potentially invalid questions are included on the ballot are not

implicated during the initial signature collection phase." !d.

4

The City reads Wyman to prohibit pre-screening initiative petitions only on the

substance of the proposed legislation, where the right to petition is otherwise clearly

available. Here, the City argues, the issue is whether the right to petition exists at all.

It relies on Palesky v. Town of Topsham, where the Superior Court held that "town

officials cannot, despite the mandatory language contained in the Town Meetings and

Elections subchapter to Title 30-A, be required to undertake actions which are illegal,

fruitless, or unauthorized." Palesky v. Town ofTopsham, 1994 Me. Super. LEXIS 334, at

*7-8 (Aug. 25, 1994). The court explained, "[t]o interpret§ 2528(5) to eliminate any

discretion on the part of the town's officials simply because a petition with sufficient

signatures is presented, regardless of the incomprehensible, illegal, or unenforceable

nature of the language sought to be added to the warrant, would invite chaos into town

government." Id at *8.

At oral argument, plaintiffs conceded that the City Clerk could lawfully refuse to

issue petitions for initiatives that are not authorized by the City Code. While the Court

has concerns about the City Clerk exercising discretion to "pre-empt the petition process

itself," the Court will assume without deciding that the Clerk could refuse to issue

petitions for initiatives that are not authorized by the Code. Accordingly, the Court will

look to whether the Park Initiative complies with the initiatives provision of the City

Code.

3. Administrative vs. Legislative Matter

The City first argues that the Park Initiative improperly affects administrative or

executive matters. Under the initiatives provision of the Code, voters may petition for

"any proposed ordinance dealing with legislative matters on municipal affairs." Code § 9-

5

36(a). The City reads this provision to prohibit initiatives that affect an administrative

function.

In Albert v. Town of Fairfield, the Law Court considered a referendum

"overturning the town council's acceptance of a town way." Albert v. Town of Fairfield,

597 A.2d 1353, 1354 (Me. 1991). The Town of Fairfield's charter provided:

The qualified voters of the Town shall have power to require reconsideration by

the council of any adopted Action and, if the Council fails to repeal an Action so

reconsidered, then to approve or reject it at a Town Election.

Jd. The court explained the legislative versus administrative act distinction:

In other jurisdictions, the power of referendum is usually defined as restricted to

legislative measures and does not extend to executive or administrative action

taken by a municipality. See 5 E. McQuillin, The Law of Municipal Corporations

§ 16.55 (3d ed. 1989). Our law does not explicitly include such a distinction. In

Maine, the constitutional grant of the power of referendum permits a municipality

to "establish the direct initiative and people's veto for the electors of such city in

regard to its municipal affairs ...." Me.Const., art. IV, pt. 3, § 21 (emphasis

added). In Burkett v. Youngs, 135 Me. 459,464, 199 A 619, 621 (1938), we

defined "municipal affairs" as "compris[ing] the internal business of a

municipality" and described the referendum as affecting "only those ordinances

and resolves that are municipal legislation." Thus far, we have attempted to

distinguish between state and local affairs rather than between legislative and

administrative action.

Jd. (footnote omitted). The Court concluded:

Whether the analysis is premised on municipal versus state affairs or legislative

versus administrative duties, the goal remains the same: identify those areas in

which the municipality has been given the discretion to do as it wishes. In such

areas, the action of the municipality's legislative body is subject to the

referendum procedure.

Id. at 1355.

The City attempts to sidestep Albert by pointing to the language of Code § 9-

36(a), which authorizes petitions on "any proposed ordinance dealing with legislative

matters . ... "(emphasis added). The City argues that this reference to legislative matters

6

in the City Code restricts voter initiatives from reaching "administrative" matters in a

way that the Fairfield code in Albert did not. Given the broad language in Albert,

however, the reference to "legislative matters" in the Code plainly refers to legislation

that the Portland City Council has the power to enact. Moreover, Code§ 9-36(b) outlines

the applicability of the initiative process and does not make any mention of

administrative versus legislative matters.

Under current law, the City Council alone has the authority to dedicate properties

into the Land Bank. See Code§ 2-42(a) ("All acquisitions of property interests under this

article shall be subject to the approval of the City Council .... ").While the Land Bank

Commission serves an advisory function in recommending properties for Land Bank

protection, it is ultimately the City Council that must vote on their approval. The Court

therefore finds that, to the extent the City Code requires initiatives to be on "legislative

matters," the Park Initiative satisfies this requirement. 1

1

Even accepting the City's position that the City Code prohibits initiatives that affect administrative

functions, the cases on which the City relies are distinguishable from the present case. The City relies on

two California cases to establish that voter initiatives cannot touch on administrative matters. Both cases

involved voter initiatives that sought to modify policies previously adopted by voter initiatives. City of San

Diego v. Dunk!, 86 Cal. App. 4th 384, 389-90 (2001); Citizens for Jobs and the Economy v. County of

Orange, 94 Cal. App. 4th 1311, 1333 (2002). In those cases, the court found the proposed initiatives

improperly attempted to change policy-implementing decisions that had been committed to administrative

discretion. Dunk!, 86 Cal. App. 4th at 402; Citizens for Jobs, 94 Cal. App. 4th at 1333.

Unlike the initiatives in the California cases, the Park Initiative does not seek to implicitly negate

prior policy. In both Dunk! and Citizens for Jobs, the court was concerned that the initiatives did not

explicitly reverse prior policy. Rather, the initiatives sought to dictate results under policies already in

effect. See Dunk!, 86 Cal. App. 4th at 402 ("The proposed initiative does not seek to change this policy by

its plain language, but rather to change the substance of the implementing decisions that were created by

Prop. C."); see also Citizens for Jobs, 94 Cal. App. 4th at 1333 ("Measure F, as approved, would not have

sought to change this policy by its plain language, but rather would have changed the procedure and

substance of the implementing decisions that were created by Measure A."). The Park Initiative does not

simply change the procedure and the substance of implementing the Land Bank ordinance, it actually

changes the ordinance to protect a new category of properties. That the Park Initiative would also change

the procedure for disposing of properties is part of its stated goal: to strengthen protections for Portland's

public spaces. The Park Initiative therefore explicitly changes policy unlike the initiatives in the California

cases.

7

4. Whether the Park Initiative affects "Appropriations"

The City next argues that the Park Initiative improperly affects "appropriations," a

category restricted by Code§ 9-36(b). The City quotes dictionary definitions of

"appropriation" that encompass control over property. For example, one definition of

"appropriation" in Black's Law Dictionary is: "The exercise of control over property;

taking of possession." Black's Law Dictionary 98 (7th ed. 1999). 2

The City's argument ignores the principle that the Court must "construe disputed

language reasonably and with regard to both the ordinance's specific object and its

general structure" and must "give undefined terms their common and generally accepted

meaning unless indicated otherwise by their context in the ordinance." DeSomma v. Town

ofCasco, 2000 ME 113,, 9, 755 A.2d 485 (internal citations and quotations omitted). In

the legislative context, an appropriation typically means "[a] legislative body's act of

setting aside a sum of money for a public purpose." Black's Law Dictionary (9th ed.

2009). Plaintiffs point to eleven other sections of the Code that reference appropriations,

and every one of them relates to City expenditures. (Pls.' S.M.F., 30.) Moreover, the

other initiative restrictions contained in Code§ 9-36(b), matters dealing with "tax levy, or

with wages or hours of city employees," also relate to the City's fiscal affairs. The logical

intent behind Code § 9-36(b )' s restrictions on the ballot initiative process is to exclude

matters that would require the City to spend or collect money. See 42 Am. Jur. 2d

Initiative and Referendum § 11 (2013) ("The basic purpose of excluding specific

appropriation measures from the initiative process under a state constitution is to preserve

the legislature's general authority over the state treasury and to preclude special interest

2

The Court rejects the City's definition of"appropriation" in this context, but even if it were to accept it,

the term thus defined is typically used in reference to the legislature's power of eminent domain. See, e.g.,

23 M.R.S.A. § 3023. The plaintiffs' proposed ordinance does not affect the eminent domain power.

8

(

groups from attempting to usurp that authority through the use of initiatives which might

compel the expenditure of public funds in a piecemeal fashion.") If the City intended to

exclude land use or property matters from the voter initiative process, it would have done

so explicitly.

If approved, the Park Initiative would not require the City to make any

expenditures. 3 While it does restrict the power of the City Council to sell city-owned

property, "a prohibition against initiatives that appropriate public assets does not extend

to initiatives that regulate public assets so long as the regulations do not result in the

allocation of an asset entirely to one group at the expense of another." 42 Am. Jur.

Initiative and Referendum§ 11 (2013). The Park Initiative regulates the City's assets to

preserve them for the public. Since the measure has no other fiscal impact, the Court

rejects the City's argument that the initiative affects appropriations.

5. People's Veto

Finally, the City argues that the plaintiffs' petition is in reality an invalid people's

veto of a City Council Order. Unlike an initiative, which proposes new legislation, a

"people's veto" is a "petition to override any ordinance passed by the city council but

which has not yet gone into effect." Code § 9-36(a). The City contends that the petition

attempts to raise a people's veto question on the issue of whether the City should sell

Congress Square Park The City argues this is improper because only ordinances, and not

orders, passed by the City Council are not subject to the people's veto process. Ifthe

plaintiffs had petitioned for a people's veto the City might have a valid point, but that is

not the case here.

3

All 35 of the properties proposed for dedication to the Land Bank are city-owned properties. They are

predominantly city parks, including areas such as Deering Oaks Park and the Eastern Promenade Park.

(Exhibit D).

9

The Code specifically authorizes "a retroactive effective date of an initiated

ordinance, to the extent permitted by law, if such retroactive date is specifically provided

for in the petition and/or the question approved by the voters." Code § 9-42. The

retroactive date "shall not be earlier than the date of filing ofthe affidavit originating the

petition which is finally submitted to the voters." !d. Thus, by the plain language of the

Code, the plaintiffs were authorized to make the initiative retroactive to the date of filing

with the City Clerk, which in this case was September 6, 2013. (Pls.' S.M.F. ~ 7.) The

City Council did not approve the sale of Congress Square Park until September 16, 2013

(Pls.' S.M.F. ~ 12.) Thus, the plaintiffs' petition cannot be a people's veto because it was

filed with the City Clerk before the City Council voted to sell Congress Square Park.

Conclusion

Having considered the complaint, the motions, briefs, and the arguments of

counsel, the Court finds in favor of plaintiffs on count I and count II and concludes that a

permanent injunction should issue and for its reasons states as follows:

A. The Park Initiative constitutes a matter that is a proper subject of a citizens'

initiative under Section 9-36 ofthe City ofPortland Code of Ordinances

B. Pursuant to Rule 65(d) of the Maine Rules of Civil Procedure, therefore, it is

hereby ORDERED that Defendant City of Portland, its agents, servants,

employees, and attorneys, and all other persons in active concert or

participation with them, are hereby enjoined and restrained as follows:

The City of Portland, acting by and through its City Clerk, is

ORDERED AND DIRECTED to prepare and issue to Attorney

Robert C. Levin, attorney for the petitioners' committee, on or

before 3:00pm on Friday November 1, 2013 the petition

forms for the Park Initiative that was filed by plaintiffs with the

City Clerk on September 6, 2013.

Date: October 31, 2013

Friends-Sarah McDaniel Esq

. Robert Levin Esq

Clty-Danielle West-Chuhta Esq

Jennifer Thompson Esq

10

STATE OF MAINE SUPERIOR COURT

CUMBERLAND, ss CIVIL ACTION

DOCKET NO. AP~1j-<)55

._jA vJ -CuM- t ljY I iJ,.Ol3

FRIENDS OF CONGRESS

SQUARE PARK, et al.,

Plaintiffs

vs. ORDER ON MOTION FOR STAY

CITY OF PORTLAND

Defendant

NOV 04 2013

On October 31, 2013, the court issued an Order in favor of the plaintiffs on

Counts I and II of their Complaint and ordered the City to prepare and issue the petition

forms for the Park Initiative that was filed by plaintiffs with the City Clerk on September

6, 2013.

The effect of the City's motion for a stay is to ask this court to balance the

issuance of potentially unauthorized petitions with the deprivation of the right to petition

the government. In order to preserve the status quo and to insure effectiveness of any

eventual judgment, the City argues, a stay must be granted pursuant to M.R.Civ.P. 62(d).

The only harms cited by the City include confusion and that once the City Clerk issues

the petition forms, there is no mechanism to prevent putting the Park Initiative to the

voters. This is not true if the Law Court acts expeditiously in favor of the City because

the earliest this issue may be put to the voters is on a June 2014 ballot. Moreover, even if

the City prevails, the City only needs a day to prepare the appropriate ballots. In any

event, in Wyman v. Secretary of State, 625 A. 2d 307 (Me. 1993), the Law Court held that

"the potential invalidity of the subject of an initiative petition ... is not a sufficient

reason to pre-empt the petition process itself or to bar the discussion of the issues raised

in the petition." ld. at 311. This is what the City has attempted to do.

The Order does not require the City to undertake actions that are illegal, fruitless

or unauthorized. Rather, the court held that the Park Initiative constitutes a matter that is

the proper subject of a citizens' initiative under Section 9-36 of the City of Portland Code

of Ordinances and ordered the City to issue the petition forms for the Park Initiative that

were filed by the plaintiffs with the City Clerk. The City's failure to do so deprives the

citizens of their right to petition the government and bars the discussion of the issues

raised in the petition. This deprivation can never be undone and causes irreparable harm

to the first amendment rights of the citizens.

The entry is:

1. Order on SOB Appeal and Motion for Summary Judgment remains in

full force and effect except as modified below.

2. The City's motion for a stay is DENIED.

3. Pursuant to Rule 54(b)(2), since the only outstanding claim is for

attorney's fees, Judgment on Counts I and II shall be final.

4. Pursuant to M.R.Civ.P. 65(d) the City of Portland, its agents, servants,

employees, and attorneys, and all other persons in active concert or

participation with them, and hereby enjoined and restrained as follows and

the City of Portland, acting by and through its City Clerk, is ORDERED

AND DIRECTED to prepare and issue to Robert C. Levin, Esq, attorney

for plaintiffs, on or before 4:00p.m. on Monday, November 4, 2013 the

2

petition forms for the Park Initiative that was filed by plaintiffs with the

City Clerk on September 6, 2013.

Date: November 4, 2013

Friends-Sarah McDaniel Esq

-Robert Levin Esq

City-Jennifer Thompson Esq

-Danielle West-Chuhta Esq

3

ATTORNEY

For Plaintiff

DONALD FONTAINE, ESQ.

LAW OFFICES OF DONALD F. FONTAINE

PO BOX 7590

PORTLAND, ME 04112

HILLARY SCHWAB, ESQ. (PRO HAC VICE)

FAIR WORK, P.C.

192 SOUTH STREET

SUITE 450

BOSTON, MA 02111

HAROLD LICHTEN, ESQ. &

SARA SMOLIK, ESQ. (PRO HAC VICE)

LICHTEN & LISS-RIORDAN, P.C.

100 CAMBRIDGE STREET

20TH FLOOR

BOSTON, MA 02114

For Defendants RB Portland LLC and Portland II Hotel Management LLC

JAMES ERWIN, ESQ.

PIERCE ATWOOD

MERRILLS WHARF

254 COMMERCIAL STREET

PORTLAND, ME 04101

For Defendant MHG Portland LLC

JONATHAN SHAPIRO, ESQ.

FISHER & PHILLIPS LLP

ONE MONUMENT SQUARE

SUITE 600

PORTLAND, ME 04101