BREAKING NEWS: Judge denies Bar Harbor appeal in charter case; town to appeal again

BAR HARBOR, Sept. 21, 2023 - The town has lost its appeal of a Superior Court decision overturning its charter changes in 2020 reconstituting the Warrant Committee from 22 to 15 members, said several members of the Town Council who voted after a late night executive session Tuesday in favor of another appeal.

Council chair Val Peacock refused to answer questions about why the town decided to appeal again and details of the vote Tuesday night which was taken after residents had left a packed room to debate several contentious issues, including a moratorium on transient accommodations.

Member Kyle Shank stated in an email, “Yes, this was in public and not in executive session. Due to the fantastic turnout for last night's council meeting, it went pretty late into the evening - so I believe the vote happened sometime after 11 PM when we exited our 2nd of 3 executive sessions.”

In a decision dated Oct. 24, 2020, Judge William Anderson ruled, “This Court finds that procedures followed by the Town in enacting that (charter) revision were not appropriate under the Maine Home Rule Act.

“Correspondingly, the improperly enacted revision to the Town Charter should be set aside.

Michael Good, the lead plaintiff of 11 residents who sued the town, said, “The entire charter thing was to gut the Warrant Committee … the townspeople lost representation. Those guys were all worried that the warrant committee had too much power.

“That’s why the committee is there - to have multiple eyes on things that are going on in the town.”

The charter change also eliminated the practice of having residents run for the Warrant Committee as a slate, forcing them to run as individuals. In a town which struggled to find candidates, this was seen by Good and others as discouraging participation.

The charter changes also weakened the Warrant Committee’s influence over land use, Good said. The judge ruled the nine charter changes were not minor modifications as claimed by the town and required a more rigorous process.

“Even when viewed in the light most favorable to the Defendant, the facts show that, as a matter of law, the Town of Bar Harbor did not follow the proper procedures when enacting the changes, that the use of improper procedures materially and substantially affected the changes, and the changes should be invalidated. Therefore, Plaintiffs are entitled to summary judgment as a matter of law, their Motion is GRANTED, and Defendant Town of Bar Harbor's Cross-Motion is DENIED.” 

The judge made his ruling without an oral argument. "After conducting a thorough review of the issues and upon further reflection, the court reconsiders, and decides the motions without argument." 

Maxwell Coolidge, counsel for the plaintiffs, wrote them in an email, “I fully anticipate an appeal to the Maine Supreme Court from the town, but it's very good to be on the winning side at the Superior Court level and Justice Anderson's opinion is well reasoned and thorough. I can't know what the Supreme Court will do, but I have some degree of confidence because Justice Anderson's opinion is sound.”

Anderson retired shortly after the decision, and the town appealed to another Superior Court judge who took over the case.

You may read Anderson’s full decision here:

https://drive.google.com/file/d/1oLrgS_jywMglU2xQ6XcN5gq9Q9OTPbLG/view?usp=sharing

The ruling left many unsettled questions:

Is the current Warrant Committee a legal body?

A 15-member committee is clearly illegal under the judge’s ruling, but does the town revert to its previous 22-member committee?

Besides Good, the other plaintiffs were:

Dessa Dancy, Donna Karlson, the late Arthur Greif, James Blanchard, Donal Murphy, Pat Murphy, Shaiah Emigh-Doyle, Michael Blythe and Barbara Fenderson.