# Stevenson v. Town of Kennebunk

> Supreme Judicial Court of Maine · April 26, 2007 · 930 A.2d 1046

URL: https://www.frixlaw.com/law-library/cases/4963372

## Case

- **Full name:** John M. STEVENSON v. TOWN OF KENNEBUNK
- **Court:** Supreme Judicial Court of Maine
- **Decided:** April 26, 2007
- **Citations:** 930 A.2d 1046; 2007 ME 55; 2007 Me. LEXIS 55
- **Precedential status:** Published
- **Opinion:** Concurrence by Alexander
- **Judges:** Alexander, Calkins, Clifford, Levy, Saufley, Silver
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4963372

## How later opinions describe it (automated extraction)

- concluding that the Kennebunk Board of Assessment Review could not legally act when it consisted of only two of the statutorily required three members

## Opinion text

ALEXANDER, J.,
with whom CLIFFORD, J., joins, concurring.
[¶ 13] When a three-member municipal board is reduced to two members, and those members are in disagreement, the resulting tie vote is void and of no legal effect. Because the tie vote in the present case cannot result in a default denial of the relief requested, I concur in the result.
[¶ 14] I do not join the Court’s opinion because the Court’s holding that a small municipal board with one member missing cannot act for any purpose, is dictum that reaches beyond what must be addressed to resolve this case, and may confuse and disrupt the operation of many small municipal boards. Cf. Pelkey v. Gen. Elec. Capital Assurance Co., 2002 ME 142, ¶¶ 12-13 , 804 A.2d 385, 388 (indicating that language addressing issues beyond what is needed to justify the result is dictum).
[¶ 15] The Court’s conclusion that, when one member of a three-member board resigns, the board cannot transact business as a board until the vacancy is filled, opines on a legal issue that needs the more thorough analysis that should only occur in a case where the issue is squarely presented for decision.
[¶ 16] Conventional wisdom, supported by statute and precedent, suggests that so long as a quorum is present, boards and commissions may conduct official business by majority vote, despite vacancies. Thus, our statutory rules of construction, state that “[w]ords giving authority to 3 or more persons authorize a majority to act.” 1 M.R.S. § 71(3) (2006). Section 71(3) supports the conclusion that two members of a three-member board, acting in agreement and constituting a majority, may properly conduct official board business. RobeRt’s Rules of OrdeR, the seminal text governing parliamentary procedure, states that a quorum “is a majority Of all the members,” and “the basic requirement for approval of an action ... is a majority vote ... at a regular or properly called meeting at which a quorum is' present.” HeNry M. Robert, Robert’s Rules of Order Revised § 39 at 340, § 43 at 395 (9th ed. 1990) (emphasis omitted). .
[¶ 17] Significant and long-standing precedent also supports the capacity of small municipal boards to act by vote of a majority of its members so long as a quorum is present. See Camps Newfound/Owatonna, Inc. v. Town of Harrison, 604 A.2d 908 (Me.1992) (holding that the action of two of three county commissioners acting in appellate capacity to affirm tax assessors’ grant of partial abatement was valid because majority of commissioners constituted quorum); Levant v. Parks, 10 Me. 441, 444 (1833) (involving a ministerial and school fund composed of municipal officers, stating “so long as there remain a sufficient number of members to constitute a quorum they will retain full corporate pow *1051 ers”); see also Braddy v. Zych, 702 S.W.2d 491, 493-94 (Mo.Ct.App.1985) (suggesting that despite vacancy on board of aldermen, majority vote of all possible members would be sufficient to enact ordinance); Clark v. North Bay Village, 54 So.2d 240, 241 (Fla.1951) (stating that a five-member board -with two vacancies could conduct business with three-member quorum).
[¶ 18] There is some contrary precedent. In Inhabitants of Williamsburg v. Lord, where a statute required that three members be appointed to a tax assessment board, and only two were appointed, their action was held invalid because “there never were three chosen and qualified” and “[t]wo assessors are not authorized to assess a tax.” 51 Me. 599, 601 (1863); see Inhabitants of Machiasport v. Small, 77 Me. 109, 113 (1885). Furthermore, in Inhabitants of Monmouth v. Inhabitants of Leeds, we held that, in order for an act of commissioners in deciding town lines to be valid, “the required number must first have been appointed.” 76 Me. 28, 32 (1884). Because the statute mandated that there be three, we held that the action of the two who had been appointed was invalid. Id.
[¶ 19] In the present case, the Board’s rules of procedure state that a majority of the Board may grant a reasonable abatement, and that “[a] quorum of the Board necessary to conduct an official Board meeting shall consist of at least two members.” Kennebunk, Me., Kennebunk Board of Assessment Review Rules of Procedures, Procedure ¶ 1 (Jan. 24, 2006). Here there was no action by two members, only a tie vote by two members in disagreement. Thus, there is no need to address the issue of the authority of a majority of two to act when they are in agreement. The Court’s holding that two members of the Board could not act, even if in agreement, may cause great confusion in municipalities that frequently have vacancies on small boards. We need not, and should not, reach that issue, as it is not generated by this case.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4963372. Public record. Not legal advice.