MAINE	SUPREME	JUDICIAL	COURT	                                        Reporter	of	Decisions	
Decision:	  2018	ME	95	
Docket:	   	Cum-17-368	
Argued:	    March	7,	2018	
Decided:	   July	12,	2018	
	
Panel:	     SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
      BRUNSWICK	CITIZENS	FOR	COLLABORATIVE	GOVERNMENT	et	al.	
                                 	
                                v.	
                                 	
                       TOWN	OF	BRUNSWICK	
	
	
SAUFLEY,	C.J.	

	     [¶1]		Brunswick	Citizens	for	Collaborative	Government,	Robert	Baskett,	

and	Soxna	Dice	(collectively,	Citizens)	appeal	from	a	judgment	entered	in	the	

Superior	 Court	 (Cumberland	 County,	 L.	Walker,	J.)	 determining	 Citizens’	 M.R.	

Civ.	P.	80B	petition	for	review	to	be	moot	and	granting	judgment	in	favor	of	the	

Town	on	Citizens’	complaint	for	a	declaratory	judgment.		Citizens	contends	that	

the	court	erred	when	it	declared	that	the	Brunswick	Charter	does	not	authorize	

a	 voter	 initiative	 to	 overrule	 a	 Town	 Council	 decision	 to	 sell	 a	 piece	 of	

residential	 property	 owned	 by	 the	 municipality.	 	 We	 affirm	 the	 court’s	

determination	 that	 the	 Rule	 80B	 petition	 is	 moot,	 vacate	 the	 declaratory	

judgment	as	moot,	and	remand	for	dismissal	of	the	complaint	in	its	entirety.					
2	

         [¶2]	 	 The	 following	 facts	 are	 not	 in	 dispute.	 	 The	 Town	 of	 Brunswick	

acquired	 waterfront	 property	 at	 946	 Mere	 Point	 Road	 in	 a	 tax	 delinquency	

foreclosure	in	2011.		On	September	19,	2016,	the	Town	Council	voted	to	sell	the	

property.	 	 The	 marketing	 of	 the	 property	 proceeded,	 and	 the	 sale	 was	

completed	on	June	15,	2017.			

         [¶3]	 	 One	 month	 after	 the	 Council	 voted	 to	 sell	 the	 property,	 five	

Brunswick	residents	obtained	petitions	from	the	Town	Clerk	to	begin	initiative	

proceedings	to	enact	an	ordinance—focused	on	the	specific	property	at	issue—

that	would	require	the	Town	to	retain	the	parcel	for	use	as	a	public	park	and	

for	 access	 for	 shellfish	 harvesters.	 	 On	 January	 27,	 2017,	 petition	 forms	

containing	the	requisite	number	of	signatures	were	returned	to	the	clerk,	who	

referred	 them	 to	 the	 Council	 to	 determine	 whether	 to	 set	 a	 date	 for	 a	 public	

hearing	 on	 the	 proposed	 ordinance.	 	 At	 its	 next	 meeting,	 the	 Town	 Council	

rejected	a	motion	to	put	the	proposed	ordinance	out	to	a	vote	and	accepted	a	

motion	to	take	no	further	action	on	the	petition.1			




     1		The	Council	had	received	advice	from	its	attorney	and	from	the	legal	services	division	of	the	

Maine	Municipal	Association	that	the	petitions,	although	ostensibly	made	pursuant	to	the	initiative	
power,	actually	sought	a	referendum	because	the	petitions	sought	to	override	an	act	of	the	Council.		
See	Brunswick,	Me.	Charter	§§	1101,	1105	(2017).		Because	the	Charter	permits	a	referendum	to	be	
used	to	override	ordinances	only,	and	because	the	Council	had	not	acted	by	ordinance	in	voting	to	
sell	the	property,	the	attorneys	advised	that	the	petitions	were	not	authorized	by	the	Charter.			
                                                                                                   3	

       [¶4]		On	February	21,	2017,	Citizens	filed	a	Rule	80B	petition	for	review	

of	 the	 Council’s	 decision	 to	 take	 no	 action	 on	 the	 initiative	 petition	 and	 a	

complaint	 for	 declaratory	 judgment.	 	 See	 M.R.	 Civ.	 P.	 80B;	 14	 M.R.S.	 §	5954	

(2017).		Citizens	sought	a	declaration	that	the	Town	Charter	permits	voters	to	

enact,	by	initiative,	an	ordinance	that	would	have	the	effect	of	overturning	the	

Council’s	decision	to	sell	the	property.		See	Brunswick,	Me.	Charter	§	1105.		The	

parties	submitted	an	agreed-to	statement	of	fact,	and	both	parties	filed	briefs	

with	the	court.2			

       [¶5]	 	 The	 Superior	 Court	 (Cumberland	 County,	 L.	 Walker,	 J.)	 issued	 a	

judgment	on	August	7,	2017—almost	two	months	after	the	property	had	been	

sold.		On	the	Rule	80B	petition,	the	court	concluded	that	the	Town	had	acted	

outside	the	bounds	of	its	discretion	in	declining	to	hold	a	public	hearing	on	the	

proposed	ordinance.		It	determined,	however,	that	the	issue	had	been	rendered	

moot	by	the	sale	of	property.3			




   2		The	parties	appropriately	filed	Rule	80B	briefs	regarding	the	appeal	from	the	Town’s	process,	

and	apparently	combined	those	briefs	with	arguments	on	the	declaratory	judgment	action,	to	be	tried	
on	stipulated	facts.			
   3		Although	it	likely	intended	to	do	so,	the	court	did	not	issue	an	order	dismissing	the	Rule	80B	

petition	for	review	after	determining	that	the	sale	of	the	property	rendered	the	petition	moot.		For	
this	reason,	we	remand	with	instruction	to	dismiss	the	entire	complaint,	including	both	the	Rule	80B	
petition	and	the	declaratory	judgment	action.			
4	

      [¶6]		The	court	then	granted	judgment	in	favor	of	the	Town	on	the	central	

issue,	 however,	 entering	 a	 declaratory	 judgment	 that	 the	 voters	 could	 not	

utilize	the	initiative	provision	in	the	Town	Charter	to	override	the	Council	vote	

to	sell	the	property.		Citizens	timely	appealed.		See	M.R.	App.	P.	2B(c).			

      [¶7]		“Courts	can	only	decide	cases	before	them	that	involve	justiciable	

controversies.”	 	 Lewiston	 Daily	 Sun	 v.	 Sch.	 Admin.	 Dist.	 No.	 43,	 1999	 ME	 143,	

¶	12,	738	A.2d	1239.		In	general,	a	case	is	moot	and	therefore	not	justiciable	if	

“there	 are	 insufficient	 practical	 effects	 flowing	 from	 the	 resolution	 of	 the	

litigation	to	justify	the	application	of	limited	judicial	resources.”		Witham	Family	

Ltd.	 P’ship	 v.	 Town	 of	 Bar	 Harbor,	 2015	ME	 12,	 ¶	 7,	 110	 A.3d	 642	 (quotation	

marks	 omitted).	 	 The	 Declaratory	 Judgments	 Act,	 14	 M.R.S.	 §§	5951-5963	

(2017),	“does	not	present	an	exception	to	the	justiciability	rule.”		Lewiston	Daily	

Sun,	1999	ME	143,	¶	20,	738	A.2d	1239.		We	review	questions	of	justiciability	

de	novo.		See	McGettigan	v.	Town	of	Freeport,	2012	ME	28,	¶	10,	39	A.3d	48.			

      [¶8]		There	can	be	no	question	that	the	sale	of	the	property	at	issue	here	

rendered	Citizens’	declaratory	judgment	action,	like	its	Rule	80B	petition,	moot.		

No	declaration	by	the	court	could	create	any	legal	impediment	to	the	sale	of	the	

property	that	had	been	completed	in	June.		Thus,	no	relief	that	the	court	could	

have	granted	would	have	any	“practical	effect”	on	Citizens’	rights	or	interests	
                                                                                                                5	

with	 respect	 to	 the	 property.	 	 See	 Halfway	 House,	 Inc.	 v.	 City	 of	 Portland,	

670	A.2d	1377,	1380	(Me.	1996)	(dismissing	as	moot	an	appeal	from	the	denial	

of	a	conditional	use	permit	where	the	intervening	sale	of	property	rendered	any	

relief	meaningless).			

        [¶9]		Citizens	argues	nonetheless	that	its	complaint	for	a	declaration	of	

the	 law	 fits	 within	 the	 exception	 to	 our	 mootness	 jurisprudence	 permitting	

review	 of	 “questions	 of	 great	 public	 concern.”4	 	 See	 Mainers	 for	 Fair	 Bear	

Hunting	v.	Dep’t	of	Inland	Fisheries	&	Wildlife,	2016	ME	57,	¶	8,	136	A.3d	714.		

When	we	address	the	exception	for	matters	of	“great	public	concern,”	we	ask	

“whether	 the	 question	 is	 public	 or	 private,	 how	 much	 court	 officials	 need	 an	

authoritative	determination	for	future	rulings,	and	how	likely	the	question	is	to	

recur.”		Id.	(quotation	marks	omitted).			

        [¶10]	 	 The	 central	 question	 presented	 by	 Citizens	 is	 whether	 the	

Brunswick	 Charter	 authorizes	 voters	 to	 create—by	 initiative—an	 ordinance	

that	would	have	the	effect	of	overturning	a	Council	vote	to	sell	property.		This	

question	is	“public”	in	nature.		It	deals	with	the	rights	of	Brunswick	residents	



   4	 	 Nothing	 in	 the	 record	 suggests—and	 Citizens	 does	 not	 argue—that	 either	 the	 “collateral	

consequences”	exception	or	the	exception	for	issues	that	are	“capable	of	repetition	but	evade	review”	
applies	 in	 this	 case.	 	 See	 Mainers	 for	 Fair	 Bear	 Hunting	 v.	 Dep’t	 of	 Inland	 Fisheries	 &	 Wildlife,	
2016	ME	57,	¶	7,	136	A.3d	714	(quoting	Halfway	House,	Inc.	v.	City	of	Portland,	670	A.2d	1377,	1380	
(Me.	1996)).			
6	

and	the	authority	of	the	Council.		However,	the	authoritative	value	of	any	ruling	

is	minimal.		The	interpretation	of	the	Brunswick	Charter	may	have	little	bearing	

on	 other	 town	 charters,	 and	 Citizens	 has	 presented	 no	 evidence	 that	 this	

specific	 question	 will	 recur	 in	 a	 similar	 fashion	 such	 that	 our	 guidance	 is	

necessary.		See	Mainers	for	Fair	Bear	Hunting,	2016	ME	57,	¶¶	9-10,	136	A.3d	

714;	Ten	Voters	of	the	City	of	Biddeford	v.	City	of	Biddeford,	2003	ME	59,	¶	7,	822	

A.2d	1196	(“The	mere	possibility	that	other	.	.	.	voters	sometime	in	the	future	

may	be	discouraged	by	the	existence	of	the	provision	is	not	enough	to	warrant	

judicial	intervention.”).		The	exception	for	cases	of	great	public	concern	does	

not	apply.	

      [¶11]	 	 In	 sum,	 given	 the	 timing	 of	 the	 court’s	 judgment	 here,	 no	

declaration	by	the	Superior	Court	could	provide	Citizens	with	any	meaningful	

relief	once	the	property	that	was	the	subject	of	this	litigation	was	lawfully	sold,	

and	no	exception	to	our	mootness	jurisprudence	applies.		The	court	correctly	

determined	the	Rule	80B	petition	to	be	moot	and	should	have	done	the	same	

regarding	the	declaratory	judgment	action.			

      The	entry	is:	
      	
                  Judgment	 determining	 Rule	 80B	 petition	 to	 be	
                  moot	 affirmed.	 	 Declaratory	 judgment	 vacated.		
                  Remanded	for	dismissal	of	the	entire	complaint.				
	                       	
                                                                                  7	

	     	     	      	     	       	
	
David	A.	Lourie,	Esq.	(orally),	Cape	Elizabeth,	for	appellants	Brunswick	Citizens	
for	Collaborative	Government,	Robert	Baskett,	and	Soxna	Dice		
	
Stephen	E.F.	Langsdorf,	Esq.	(orally),	and	Kristin	M.	Collins,	Esq.,	Preti	Flaherty	
Beliveau	&	Pachios	LLP,	Augusta,	for	appellee	Town	of	Brunswick	
	
	
Cumberland	County	Superior	Court	docket	number	AP-2017-06	
FOR	CLERK	REFERENCE	ONLY	
