Portland Regional Chamber of Commerce v. City of Portland

STATE OF MAINE SUPERIOR COURT

CUMBERLAND, ss CIVIL ACTION

DOCKET NO. CV-20-518

PORTLAND REGIONAL CHAMBER

OF COMMERCE, et al.,

Plaintiffs

V. ORDER

CITY OF PORTLAND, et al., Plaintiffs-John Aromando, Esq.

Defendants-Dawn Harmon, Esq.

Defendants lntervenors-Shelby Leighton, Esq.

and

CALEB HORTON, et al.,

Intervenor - Defendants

This case involves a challenge to the validity of a minimum wage provision applicable to

declared emergencies that was enacted by the voters of Portland last November as part of a

successful citizen's initiative to increase the minimum wage for work performed in the City of

Portland.

The plaintiffs are the Portland Regional Chamber of Commerce, the Alliance for Addiction

& Mental Health Services (a nonprofit with member organizations located in Portland), and four

Portland businesses: Slab LLC, Nosh LLC, Gritty McDuffs, and Play It Again Sports. Plaintiffs

(collectively, "PRCC") contend in Count I of their complaint that the emergency minimum wage

provision in the citizen's initiative was not validly enacted under the direct initiative provision

applicable to municipalities in Art. 4, Pt. 3 § 21 of the Maine Constitution. In Count II of the

complaint PRCC asse1ts that the emergency minimum wage provision was not validly enacted

under section 9-36(a) of the Portland City Code. In Count III of the complaint PRCC contends

that, if the emergency minimum wage provision is otherwise valid, it does not take effect until

J rumruy 1, 2022.

PRCC's complaint named the City of Portland and its City Manager, Jon Jennings, as

defendants (collectively, the "City"). In most respects, the City's position is not adverse to that of

PRCC. Specifically, the City did not take a clear position with respect to the first two claims raised

by PRCC, the City agrees with PRCC as to the effective date, and the City also raises an additional

ru·gument that the Initiative is invalid because it purports to apply to city employees. The defense

of the emergency minimum wage provision has therefore been conducted by two Intervenor­

Defendants, Caleb Horton and Mario Roberge-Reyes. Intervenors are employees who work in

Portland at wages that are lower than they contend ru·e required under the emergency minimum

wage provision, which they assert went into effect on December 6, 2020. 1

The parties agreed to an expedited schedule and are now before the court on PRCC's

motion for summary judgment. The material facts are undisputed,2 and oral argument on the

motion was held on January 20, 2021.

In ruling on this dispute, the court is not ruling on the wisdom of the proposed emergency

minimum wage provision or whether its effects will be beneficial or harmful. Although PRCC and

1

Mr. Horton has been working at the Whole Foods store in Po1tland since July 2020 and is paid $15 per

hour. Mr. Roberge-Reyes has been working at the Whole Foods store in Po1tland since November 2020

and is paid $16 per hour. If the emergency minimum wage provision is valid and in effect, they would each

now be entitled to a minimum wage of $18 per hour for as long as the pandemic state of emergency exists.

2

Almost all of the factual asse1tions in PRCC's statement of material facts and in the statements of

additional facts submitted by the City and by Intervenors are admitted. There are a small number of

qualifications and denials, but none create a disputed issue of material fact for trial. Intervenors denied two

factual assertions with respect to the hann alleged by PRCC, but it is evident - and Intervenors do not

dispute-that there currently exists a significant and justiciable controversy between PRCC and Jntervenors.

For its pa1t, PRCC objects that a number of the factual assertions by Intervenors are immaterial. Subject to

that objection, however, and with one exception, PRCC has admitted those facts for purposes of summaiy

judgment. The one exception does not create a disputed factual issue for trial.

2

Intervenors have differing views on those issues, 3 the court's role is solely to consider whether the

emergency minimum wage provision is valid under the municipal initiative provisions of the

Maine Constitution and the Portland City Code and, if so, the effective date of that provision.

As stated below, the court concludes that the emergency minimum wage provision is not

invalid under either Me. Const. Art. 4, Pt. 3 § 21 or under section 9-36(a) of the Portland City

Code, but that, under its plain language, it does not take effect until January 1, 2022.

1. Citizens' Initiatives on Municipal Affairs under Maine Constitution and Portland City Code

Article 4, Part 3, section 21 of the Maine Constitution provides that municipalities may

establish a process for direct initiative and people's veto by the citizens of the municipality:

The city council of any city may establish the direct initiative and

people's veto for the electors of such city in regard to its municipal

affairs, provided that the ordinance establishing and providing the

metl10d of exercising such direct initiative and people's veto shall

not tal<e effect until ratified by vote of a majority of the electors of

said city, voting thereon at a municipal election. Provided, however,

that the Legislature may at any time provide a uniform method for

the exercise of the initiative and referendum in municipal affairs.

Pursuant to that provision a direct initiative provision was enacted by the Portland City

Council and ratified by the voters in 1991. It is contained in Article III of Chapter 9 of the City

Code. Section 9-36 provides in pertinent pait as follows:

Sec. 9-36. How invoked.

(a) In general. The submission to the vote of the people of

any proposed ordinance dealing with legislative matters on

municipal affairs or of any such ordinance enacted by the city

council and which has not yet gone into effect, may be accomplished

by the presentation of a petition therefor to the city council in the

3

Thus, plaintiffs have submitted affidavits asse1ting that they will have to lay off employees and suspend

ce1tain aspects of their business or activities if the emergency minimum wage is in effect, while lnte1venors

argue that the emergency minimum wage is appropriate "hazard pay" for workers whose work puts them

at 1isk during the pandemic.

3

manner hereinafter provided and signed by at least one thousand five

hundred (1,500) voters. The submission of a proposed ordinance, or

amendment or repeal, in whole or in pait, of an ordinance already in

effect shall be hereinafter referred to as the direct initiation of

legislation or "initiative." The submission of a petition to ove1Tide

any ordinance passed by the city council but which has not yet gone

into effect shall be hereinafter referred to as the "people's veto."

(b) Applicability. 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.

This procedure was invoked by the proponents of a citizens' initiative to amend P01tland's

Minimum Wage Ordinance (the "Initiative"). They submitted the required 1500 signatures and the

initiative was placed on the Portland ballot at last November's election. On November 6, 2020, the

City declared that the Initiative had been approved by a majority of the voters. Under section 9-42

of the City Code, ordinances enacted by initiative take effect 30 days after the official results ai-e

declai-ed. Although the ordinance itself has taken effect, the effective date of the emergency

minimum wage provision is disputed.

2. The Provisions of the Initiative and the Emergency Minimum Wage Provision

Portland's Minimum Wage Ordinance is set forth in Chapter 33 of the City Code. A copy

of the complete Initiative showing the ainendments made to the existing provisions of Portland's

minimum wage ordinance is contained in the record as Exhibit B to the verified complaint and to

PRCC's statement of material facts. It includes the emergency minimum wage provision that is

the subject of this action

Existing section 33.7(a), which was unchanged, provides that "except as provided herein,

Employers shall pay all Employees no less than the Minimum Wage established by this ordinance

4

for each hour worked within the City Limits." The amendments made by the Initiative begin with

section 33.7(b), which provides as foUows:

(b) Minimum Wage rate:

(i) Begilllling on January 1, 2022, the regular Minimum Wage for

all Employees, including, but not limited to, Service Employees,

shall be raised to $13. 00 per hour;

(ii) Begilllling on January 1, 2023, the regular Minimum Wage for

all Employees, including, but not limited to, Service Employees,

shall be raised to $14. 00 per hour; and

(iii) Begilllling on January 1, 2024, the regular Minimum Wage for

all Employees, including, but not limited to, Service Employees,

shall be raised to $15.00 per hour; and

(iv) On January 1, 2025 and each January 1st thereafter, the

minimmn hourly wage then in effect must be increased by the

increase, if any, in the cost of living. The increase in the cost of

living must be measured by the percentage increase, if any, as of

August of the previous year over the level as of August of the year

preceding that year in the Consmner Price Index for All Urban

Consumers, CPI-U, for the Northeast Region, or its successor index,

as published by the United States Department of Labor, Bureau of

Labor Statistics or its successor agency, with the amount of the

minimum wage increase rounded to the nearest multiple of 5¢. If the

state minimum wage established by 26 M.R. S. § 664 is increased in

excess of the minimum wage in effect under this ordinance, the

minimum wage under this ordinance is increased to the same

amount, effective on the same date as the increase in the state

minimum wage, and must be increased in accordance with this

ordinance thereafter.

The Initiative also amends section 33.7(c), applicable to the allowable credit for minimum wage

purposes given to tips, to provide that the tip credit would be limited to half of the minimum wage

established by the Initiative.

The remaining change made by the Initiative - the provision contested in this action - is

the addition of the following provision as subsection 33.7(g):

5

(g) Effect of Emergency Proclamation. For work performed during

a declared emergency, the effective Minimum Wage rate established

by this ordinance shall be calculated as 1. 5 times the regular

minimum wage rate under subsection (b) above. A declared

emergency under this ordinance shall include the period of time

during which:

(i) A proclamation issued pursuant to Chapter 2, Sec. 2-406,

of this code declares an emergency to exist, if such emergency

proclamation is geographically applicable to the Employee's

workplace; or

(ii) A proclamation issued pursuant to 37-B M.R.S. § 742

declares an emergency to exist, if such emergency proclamation is

geographically applicable to the Employee's workplace.

A declared emergency under this ordinance shall not apply to work

performed under a teleworking arrangement, as defined under 5.

U.S.C. § 6501, allowing the Employee to work from home.

There is no dispute that proclamations declaring a state of emergency have been issued and

extended by both the Governor pursuant to 37-B M.RS. § 742 and by the City pursuant to Chapter

2 of the City Code and that those proclamations are currently in effect.

3. Validity of the Emergency Minimum Wage Provision under Art. 4, Pt. 3 § 21

PRCC's first challenge to the validity of the emergency minimum wage provision is that it

exceeds the initiative power allowed to municipal voters under Me. Const. Art. 4, Pt. 3 § 21.

Specifically, PRCC contends that the section 21 only authorizes a city council to "establish the

direct initiative and people's veto for the electors of such city in regard to its municipal affairs"

(emphasis added), that binding Law Comi precedent establishes that this is limited to "exclusively"

municipal affairs, and that the emergency minimum wage does not fit within the limited category

of matters that are exclusively municipal.

6

PRCC's argument is based on two cases decided by the Law Court considering the

municipal initiative provision. The first was a decision in 1938 involving an attempt to subject to

referendum the assessment by the Bangor City Council of a property tax to fund schools. Burkett

v. Youngs, 135 Me. 459, 199 A. 619 (1938). The Law Court held that the wording in Art 4, Pt 3,

§ 21 limiting citizen initiatives to "municipal affairs" meant matters involving the internal business

of a municipality, issues that it suggested were strictly of a local character limited to the interests

of city residents apart from the people of the state at large. 135 Me. at 464,466, 199 A. at 620-21.

It went on to state:

The State at large is equally concerned with the city regarding

education, the support of the poor, the construction and maintenance

of highways, the assessment and collection of taxes, and other

matters , ... In fact, there are comparatively few governmental

doings that are completely municipal.

Id. at 467, 199 A at 621 (citations omitted).

The Court stated that where the "manifest intention" of the Maine Constitution that

municipal referenda be "limited to municipal affairs, that intention must prevail." Id., 199 A. at

621-22. The Court concluded that the proposed Bangor referendum was not limited to municipal

affairs, and it therefore rejected the proponents' attempt to subject the property tax to a referendum.

The Court also noted that in some respects the an1ount of money to be allocated for school purposes

had been required by the Legislature. Id. at 463, 199 A. at 620.

The second case was decided by the Law Court in 1991. Albert v. Town ofFairfield, 597

A.2d 13 53 (Me. 1991 ). In Albert the Court addressed the validity of a municipal referendum

overturning the town council's acceptance of a town way. Citing the language from Burkett quoted

above, the Court noted that Burkett had held that the municipal referendum procedure could not

7

be used to reject a city council's general appropriation resolve as such an action is both a state and

local matter. 597 A.2d at 1354-55.

The Albert Court went on to say:

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 Court noted that the Legislature had statutorily granted authority to municipalities to

accept a dedication of land for local highway purposes. Id at 1354-55 (citing 23 M.R.S. § 3025).

It concluded that since the Legislature had committed the decision to accept a town way to the

legislative discretion of a municipality, such an action was "exclusively a municipal affair" subject

to a referendum. Id

PRCC argues that the emergency minimum wage provision is not exclusively municipal

for two reasons. The first is because the State has set a statewide minimum wage and therefore,

PRCC argues, the State is equally concerned with the subject of minimum wages and the latter is

not an issue of a purely local character affecting the interests of only municipal residents apait

from the people of the state at large. This particular argument is curious because it would also

apply to all of the Initiative's minimum wage provisions - not just the emergency minimum wage

provision- even though PRCC is only challenging the emergency provision in this action. 4

4

PRCC also argues that the emergency minimum wage provision is not exclusively municipal because it

has extraterritorial effects, affecting, for example, Westbrook residents who work in Pottland and also

affecting members of plaintiff Alliance for Addiction & Mental Health Services who have employees both

in Portland and outside who would now be subject to different minimum wage requirements. This argument

would likewise apply not just to the emergency minimum wage provision of the Initiative but to all of the

minimum wage provisions in the Initiative.

8

Second, PRCC contends that the emergency minimum wage provision is not exclusively

municipal because it affects the State's authority and ability to effectively manage statewide

emergencies. If true, this is an argument that the court would expect would come from the State

rather than from PRCC. There is no evidence, and the court is not persuaded, that the presence of

the emergency minimum wage provision has had or or will have any effect on the actions of the

Governor to utilize her state of emergency powers to respond to the pandemic.

Nevertheless, the court agrees that if the language of the 1938 Burkett opinion is still

controlling, the emergency minimum wage provision would not qualify as "exclusively" municipal

and would therefore not be a proper subject for a municipal citizen's initiative. As lntervenors

point out, however, municipalities have been granted vastly more authority since 193 8, beginning

in 1969 with the Home Rule Amendment to the Constitution, Art. 8, Pt. 2 § I, and particularly in

1987 with the Legislature's enactment of30-A M.R.S. § 3001:

Any municipality, by the adoption, amendment or repeal of

ordinances or bylaws, may exercise any power or function which the

Legislature has power to confer upon it, which is not denied either

expressly or by clear implication, and exercise any power or

function granted to the municipality by the Constitution of Maine,

general law or charter.

PRCC does not dispute that section 3001 has granted municipalities the discretion to enact

minimum wage ordinances. 5 If, as suggested in Albert v. Town of Fairfield, the municipal direct

initiative authority exists in "those areas in which the municipality has been given the discretion

to do as it wishes," 597 A.2d at 1355 (emphasis added), municipal direct initiatives would include

authority to enact or amend municipal minimum wage ordinances.

5

lntervenors have cited examples of similar municipal minimum wage ordinances in Rockland and Bangor.

9

PRCC argues thattheAlbert case was decided in 1991, after the enactment of 30-A M.R.S.

§ 3001, and nevertheless reiterated the "exclusively municipal" test from Burkett. There are several

answers to this argument. The first and most significant is that, since Albert, the Law Court has

ruled that the authority of citizens to initiate legislation should be construed as favorably with

respect to municipal citizen initiatives as with the exercise of direct initiatives under the Maine

Constitution:

We liberally construe grants of initiative and referendum powers so

as to "facilitate, rather than to handicap, the people's exercise of

their sovereign power to legislate." Allen v. Quinn, 459 A.2d 1098,

1102-03 (Me. 1983); see also McGee v. Sec'y ofState, 2006 ME 50

~ 25, 896 A.2d 933 ("The broad purpose of the direct initiative is the

encouragement of participatory democracy").

Friends of Congress Square Park v. City of Portland, 2014 ME 63 ~ 9, 91 A.3d 601. The Law

Court has thus moved beyond the narrow construction of Art. 4, Pt. 3 § 21 demonstrated in Burkett.

The second reason is that there is no indication that the broadened authority of

municipalities under 30-A M.R.S. § 3001 was raised in Albert. Indeed, the acceptance of a town

way was so obviously and exclusively a municipal affair under the Burkett test that the Law Court

had no need to go beyond that test in order to uphold the municipal referendum challenged in

Albert.

It bears emphasis that Art. 4, Pt. 3 § 21 authorizes municipalities to establish a direct

initiative process in regard to "municipal affairs." The constitutional text does not modify

municipal affairs with the word "exclusively." The Law Court's interpretation that it was limited

to exclusively municipal affairs made sense in light of the constraints on municipal authority prior

to the Home Rule Amendment and the enactment of30-A M.R.S. § 3001. In School Committee of

York v. Town of York, 626 A.2d 935, 938 (Me. 1993), the Law Court stated that 30-A M.R.S. §

3001 broadened the municipal home rule authority set forth in the Maine Constitution by

10

permitting municipal legislation in areas beyond those expressly designated in the Home Rule

Amendment as "local and municipal in character." PRCC argues that this means that the scope of

"municipal affairs" within the meaning of Art. 4, Pt. 3 § 21 remains unchanged. However, the

Court was not construing Art. 4, Pt. 3 § 21 but was discussing the expansion of municipal authority

beyond the scope of what had formerly been considered "municipal." In light of that expansion, it

is logical to interpret the municipal initiative power under Art. 4, Pt. 3 § 21 as coextensive with

the broadened legislative authority of the city council except in those areas which the municipal

code or charter has excluded. 6

Finally, looking beyond the language in Burkett, that case involved an attempt to subject

to a referendum a property tax that the city council had enacted to fund schools - which ifrepealed

could have resulted in a conflict with state legislation requiring that certain minimum amounts be

raised and expended to fund schools and that certain state taxes be collected locally and then paid

to the State. See 135 Me. at 463, 199 A. at 620. In Albert, the Law Court emphasized that state

legislation authorized municipalities to accept town ways. 597 A.2d at 1355. In this case,

municipal minimum wage ordinances do not pose any conflict with state law, and PRCC's

argument that the emergency minimum wage provision could potentially affect the Governor's

actions under her declaration of emergency powers is unconvincing. Accordingly, this case

belongs in the category where a direct citizen's initiative on municipal affairs is authorized.

For the above reasons, the comt concludes that as a matter of law the emergency minimum

wage provision was validly enacted under Art. 4, Pt. 3 § 21 of the Maine Constitution. Summary

6 As seen above, the Po1tland City Code provides that neither the City's direct initiative provision itself

nor any ordinances dealing with appropriations, tax levy, or the wages and hours of city employees is

subject to the direct initiative or people's veto procedure. Portland Code§ 9-36(b).

11

judgment is therefore granted against PRCC on Count I of PRCC's complaint. See M.R. Civ. P.

56(c) (where appropriate, summary judgment may be granted against the moving party).

4. Validity of the Emergency Minimum Wage Provision under Code§ 9-36(a)

PRCC's argument that the emergency minimum wage provision is invalid under the direct

initiative provision of the Portland City Code is based on the language of Code Section 9-36(a)

authorizing citizens' initiatives dealing with "legislative matters on municipal affairs" (emphasis

added). In Friends of Congress Square Park v. City of Portland, the Law Court interpreted that

language to restrict citizens' initiatives to "legislative matters, as opposed to administrative

matters" and proceeded to consider whether the amendments proposed by initiative in that case

were legislative or administrative. 2014 ME 63 ~~ 10-11.

PRCC essentially contends that the emergency minimum wage provision is administrative

because it potentially restricts the City Manager's executive authority after a declaration of

emergency under Portland Code § 2-408. Under the Portland's City Code the City Manager has

the authority to declare a state of emergency, but no state of emergency declared by the City

Manager may continue for longer than 5 days unless renewed by the City Council. Portland Code

§§ 2-406, 2-407(b). During an emergency, section 2-408(a) authorizes the City Manager to

promulgate any regulations deemed necessary to protect life and property and preserve critical

resources, including any regulations necessary to preserve public peace, health, and safety.

The Law Court's decision in Friends ofCongress Square Park sets forth eight factors that

comts have considered in determining whether municipal actions are legislative or administrative

in nature. See 2014 ME 63 ~ 13 n. 7. No single factor is determinative. The court has reviewed

those factors and finds that only one of those - whether a provision relates to subjects that are

12

temporary in operation and effect as opposed to subjects of a permanent or general nature ­

arguably supports PRCC's categorization of the emergency minimum wage provision as

administrative. The others are either neutral or support the conclusion that the emergency

minimum wage is legislative in nature.

Friends of Congress Square Park does suggest that the most significant consideration on

whether an act exceeds the scope of the direct initiative power is whether it "compels or bars

actions by elected officials that would seriously hamper governmental functions." It also cited

authority to the effect that municipal initiative power should not be interpreted so as to "destroy

or impair" the efficacy of some other governmental power. Id. ,i 16.

The emergency minimum wage provision does not compel or bar any action by the City

Manager or the City Council. It affects the wages of persons working during a state of emergency,

but it does not destroy or impair the City Manager's ability under section 2-408 to promulgate

regulations deemed necessary to protect life and property, preserve critical resources, and preserve

public peace, health, and safety. The court therefore concludes that, as a matter of law, the

emergency minimum wage provision is legislative in nature and was a proper subject for a citizens'

initiative under section 9-36(a) of the Portland Code. Summary judgment is granted against PRCC

on Count II of the complaint.

5. Effective Date

In interpreting legislative provisions enacted by direct initiative, the Law Court has applied

the same rules of statutory interpretation that govern other legislation:

The first and best indicator of legislative intent is the plain language

of the statute itself. If the statute is unambiguous, we interpret the

statute according to its unambiguous language, unless the result is

illogical or absurd. If the language is ambiguous, we will consider

13

the statute's meaning in light of its legislative history and other

indicia of!egislative intent. If a statute can reasonably be interpreted

in more than one way and comport with the actual language of the

statute, an ambiguity exists.

Wawenock LLC v. Department of Transportation, 2018 ME 83 ~ 7, 187 A.3d 609 (quotations

omitted). The Wawenock case involved interpretation of the Sensible Transportation Policy Act,

23 M.R.S. § 73, enacted by citizens' initiative in 1991.

Looking first to the language of the emergency minimum wage provision, it provides that

for work during a declared emergency, the effective minimum wage rate "established by this

ordinance shall be calculated at 1. 5 times the regular minimum wage rate under subsection (b)

above." Section 33.7(g) (emphasis added). The minimum wage rates under section (b) of the

Initiative first apply "beginning on January 1, 2022," see Section 33.7(b)(i), with increases on the

first of January of every succeeding year.

The Initiative does not specify a minimum wage rate beginning any time prior to January

1, 2022. As shown by Exhibit B to the complaint and PRCC's statement of material facts, the

Initiative repealed the provisions of the existing minimum wage ordinance that would have taken

effect on January 1, 2021. Under the language of section 33.?(g), therefore, the emergency

minimum wage rate does not take effect until January 1, 2022, the first time any regular minimum

wage rate is specified by Section 33.7(b). This means that the State minimum wage rate (presently

$12.00 per hour) currently governs Portland wages.

Intervenors point to language in section 33.?(b)(iv) that "[i]f the state minimum wage

established under 26 M.R.S. § 664 is increased in excess of the minimum wage in effect under this

ordinance, the minimum wage under this ordinance is increased by the same amount." The

problem with is argument is that it speaks of an increase in excess of the minimum wage "in effect

14

under this ordinance" (emphasis added). 7 As discussed above, there is no minimum wage in effect

under the ordinance prior to January 1, 2022 and therefore under the unambiguous language of the

Initiative, the emergency minimum wage is not currently in effect

The Law Court has been firm in stating that "only if the plain language of the statute is

ambiguous" will the court look beyond that language to examine other indicia of legislative intent,

such as legislative history. E.g., Manirakiza v. Department ofHealth and Human Services, 2018

ME 10 1 8, 177 A.3d 1264. At oral argument, counsel for Intervenors suggested that a different

rule should apply in tl1e case of citizens' initiatives. However, in initiative cases where the Law

Court has looked to legislative history, the issue under consideration was either not resolved by

any legislative language or the legislative language was ambiguous. See, e.g., In re Opinion of

Justices, 283 A.2d 234, 236 (Me. 1971) (discerning expiration date of authority for

reapportionment); League of Women Voters v. Secretary of State, 683 A.2d 769, 773 (Me. 1996)

(language relating to potential application of term limits to sitting officeholders "could be

construed in two possible ways").

In Wawenock LLC v. Department of Transportation, the Law Court concluded that based

on the unambiguous language of the citizen-initiated statute, "we need not look beyond that

language to discern the legislative intent" 2018 ME 83 1 12. It nevertheless did look at the

legislative history but did so in part "in the interest of clarifying the means of determining

legislative intent for citizen-enacted legislation." Id.

The Wawenock Court first reaffirmed that legislative intent is determined as a matter of

law. Id 1 13. It noted that the usual sources of legislative history - legislative committee reports,

7

In addition, this language also refers to future increases in the state minimum wage, not to the existing

state minimum wage currently in effect.

15

statements of fact in legislative bills, and statements made in legislative debate - are not available

with respect to citizen-initiated legislation, and it therefore pointed to several p'otential alternative

sources oflegislative history. Id ~ 17. Only one of those listed-the language of the ballot question

- is available with respect to municipal initiatives. 8

Intervenors have marshalled other information which they contend the court should

consider on the issue of legislative intent but, even assuming that the effective date of the

emergency wage provision was ambiguous, the court can find no Law Court precedent suggesting

that it can consider or rely on newspaper articles, post hoc statements, or post hoc legislative

history offered by the drafters of an initiative.

If the legislative language was ambiguous, the court could consider the ballot question, a

copy of which is appended to Intervenors' statement of additional material facts as Exhibit E. The

ballot question recites that the proposed ordinance would require employees to be paid 1. 5 times

for minimum wage rate for work performed during a state of emergency. It goes on to state:

For instance, if the minimum wage were $12/hr, and the State of

Maine or the City of Portland issued emergency proclamations such

as the emergency orders declared during the COVID-19 pandemic,

work performed during that emergency would be paid at 1.5 times

the minimum wage, or $18/hr. This higher rate of pay would not

apply to employees being allowed to work from home.

This language gives an example of how the emergency wage provision would apply.

However, it does not specify that the emergency wage will take effect earlier than January 1, 2022.

It therefore does not conflict with the plain language of the initiative.

8

The others are documents prepared in connection with citizen-initiated proposals for state legislation

pursuant to 1 M.R.S. § 353: an explanatmy statement prepared by the Attorney General and estimates

prepared by the Legislature's Office of Fiscal and Program Review. No similar documents are prepared for

municipal initiatives.

16

The court recognizes that the ballot question might have led voters to believe that the

emergency wage provision would take effect during the existing state of emergency. Nevertheless

the court is constrained to follow Law Court precedent that when the wording of an enactment is

unambiguous, the plain language of the ordinance controls, and the court may not to seek a contrary

result by resorting to legislative history.

Wawenock LLC v. Department ofTransportation does state that the unambiguous language

does not control if the result would be "illogical or absurd." 2018 ME 83 ~ 7. Intervenors have not

expressly argued that a January 1, 2022 effective date would be illogical or absurd, and in the

court's view, it is neither illogical or absurd for the ordinance, interpreted based on its plain

language, to provide a delay in the effective date of both the emergency minimum wage provision

and the new regular minimum wage provision so that both are phased in at the same time.

In sum, under the established rule of statutory interpretation, persons subject to a statute

are entitled to rely on its plain language. The court concludes that as a matter of law the effective

date of the emergency minimum wage provision is January 1, 2022.

6. Remaining Issues - City Employees and Intervenors' Cross Claim

The above resolves all of the claims raised in PRCC' s complaint and in its motion for

summary judgment. Two issues remain.

In its response to PRCC' s motion for summary judgment, the City noted that the Initiative,

on its face, applied to "all Employees." However, the Portland Code's authorization for citizen

initiatives expressly provides that ordinances dealing with wages or hours of city employees shall

not be subject to direct initiative. Portland Code§ 9-36(b).

17

Although the City argues that this is a basis to hold the entire Initiative invalid, it is not

clear that this argument is properly before the court. The City neither filed a separate claim seeking

to invalidate the Initiative on this ground nor did it pursue this issue by asserting it as a separate

basis for summary judgment. There is also no evidence as to the wages of city employees and the

extent to which the Initiative might affect them.

In any event, assuming that the court can consider this argument, it holds that while the

Initiative would not be valid as applied to City employees pursuant to Code section 9-36(b), that

partial invalidity does not render the Initiative invalid as applied to other employees because its

application to City employees is plainly severable. See Bayside Enterprises Inc. v. Maine

Agricultural Bargaining Board, 513 A.2d 1355, 1360 (Me. 1986) (invalidation of one aspect of a

statute will not result in invalidation of the remainder of the statute if the remainder of the statute

can be given effect).

The final issue in the case is a cross-claim filed by Intervenors against the City Manager.

Based on their argument that the emergency minimum wage provision took effect on December 6,

2020, Intervenors seek an order requiring the City Manager to immediately enforce the emergency

minimum wage provision pursuant to Portland City Code § 33.9.

Although Intervenors' cross-claim was not the subject of the pending motion for summary

judgment, the court's ruling as to the effective date of the emergency minimum wage provision

necessarily requires that the cross-claim be dismissed. In paragraph 32 of their statement of

additional material facts, Intervenors assert that the City is not presently enforcing the emergency

minimum wage provision "and has stated its intention not to enforce it until January 2022." At this

point Intervenors do not have any basis to seek earlier enforcement, and the pendency of their

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cross-claim does not present a ground to delay the expedited appeal of this court's ruling to which

all parties have agreed. 9

The entry shall be:

1. The court concludes that the emergency minimum wage provision is not invalid under

Me. Const. Alt. 4, Pt. 3, § 21, and summary judgment is granted dismissing Count I of plaintiffs'

complaint.

2. The court concludes that the emergency minimum wage provision is not invalid under

section 9-36(a) of the Portland City Code, and summary judgment is granted dismissing Count II

of plaintiffs' complaint.

3. On Count III of plaintiffs' complaint, the court enters a declaratory judgment that the

effective date of the emergency minimum wage provision is January 1, 2022.

4. In light of the ruling on Count III of plaintiffs' complaint, Intervenors' cross-claim

against the City of Portland is dismissed.

5. The clerk shall incorporate this order in the docket by reference pursuant to Rule 79(a).

Dated: February_/_, 2021

Thomas D. Wanen

Justice, Superior Court

Entered on the Docket: 02 h/1.L

111e,/

9

The cou1t therefore does not need to reach the City's argument that the City Manager has enforcement

discretion and that, as a result, Intervenors would not be entitled to relief against the City Manager even if

the emergency minimum wage provision were immediately effective.

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