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Court decision pending on injunction
RUMFORD -- Two local lawyers who weighed in last Wednesday on an alleged town charter violation are now awaiting a decision from Oxford County Superior Court Justice Robert Clifford.
Clifford took the case under advisement in Paris after lawyer Tom Carey presented the complaint on behalf of plaintiffs Mark Belanger, Candice Casey, James Windover, Phillip Zinck, Len and Mary Greaney, Philip Blampied, Richard and Diana Pratt, Patrick Ryan, Diana Casey and Richard Suydam.
The dozen plaintiffs filed the complaint on July 26 against Rumford Selectmen Greg Buccina, Brad Adley, Jolene Lovejoy, Jeff Sterling and Frank DiConzo. They are represented by town attorney Jennifer Kreckel.
Plaintiffs allege that selectmen violated the town Charter by refusing to convene a special town meeting to allow residents to vote on a petition-initiated spending cap ordinance that seeks to limit 2013 spending to $6.2 million.
They are seeking a preliminary injunction, Rule 80B appeal and declaratory judgment to put the proposed ordinance before voters on Aug. 27 at the third revote on eight remaining municipal budget articles rejected by a majority of voters on July 23. Voters OK'd four budget articles at that time.
According to Carey's court documents, plaintiffs allege that a critical circumstance exists in Rumford to warrant selectmen calling a special town meeting on the petition cap.
Carey said plaintiffs first presented selectmen with their spending cap ordinance on April 9, but selectmen denied the request. Voters at the annual town meeting on June 11 rejected the proposed municipal budget.
Carey said the plaintiffs gathered the Charter-required signatures and again asked selectmen to put their spending cap ordinance before voters at a special town meeting. Selectmen declined to do so.
Consistent with the charter, plaintiffs gathered the necessary amount of signatures to override selectmen and force a special town meeting, presenting it to the board on July 5.
Carey said that on receipt of that petition, the Charter states that selectmen "shall immediately prepare and issue a warrant for a special meeting." He said selectmen refused to do so at their July 16 meeting.
Carey said that when residents voted no on eight of the 12 budget articles on July 23, they did so to support the plaintiffs.
"The no vote at each of the prior town meetings is a demonstration of the broad voter support for plaintiffs' effort to have the spending cap ordinance on the ballot for a vote by the Rumford voters," he said.
Therefore, plaintiffs are appealing that and asking Justice Clifford to require selectmen to put the ordinance on the August ballot.
"It is obvious that the will of the people has twice prevailed over the obstructionist tactics of the Board of Selectpersons and that the town will continue to vote no to any budget proposed by the selectpersons or the Finance Committee until the ballot includes the option of spending cap as proposed by plaintiffs," Carey said.
He said if the third town meeting and any subsequent town meetings are allowed to occur without inclusion of the spending cap ordinance, "it will irreparably prejudice and harm plantiffs' attempts" to have the ordinance presented to town voters for enactment in 2013 and before the remainder of the budget is established.
Attorney Kreckel asked Justice Clifford to dismiss the plaintiffs' action, stating that they failed to prove standing, and failed to establish any elements required for injunctive relief.
Additionally, she said Rule 80B does not create an independent right to appeal any governmental action to the Superior Court. Instead, she said it only provides the procedure to be followed for disputes in which the court has jurisdiction.
"Plaintiffs have cited no independent right to appeal the governmental action," Kreckel said.
She also said plaintiffs failed to allege any particularized harm to them that is different from all voters in Rumford.
Kreckel said the Charter establishes the structure and power of Rumford's government. It also establishes the procedure for residents to propose ordinances to the town. She said selectmen initially accepted the proposed spending cap ordinance with amendments on April 23.
However, at the next ordinance hearing on April 30, Kreckel said she told the board that the spending cap represented a fundamental change to the voting and budgetary process and should instead be a charter revision. Selectmen voted not to include the ordinance on the annual town warrant.
She said plaintiffs did not appeal that action.
Kreckel also cited case law that the word "shall" does not necessarily mean "mandatory" in discretionary acts of town government.
She said plaintiffs have the burden to establish that they will suffer irreparable injury without injunctive relief.
She said Rumford residents can vote down any budget proposal if they deem it too high or too low. At the July 23 budget referendum, Kreckel said there were more votes for the budget proposals of selectmen and the Finance Committee than there were for the negatives.
Additionally, she said plaintiffs want their ordinance placed on the warrant for the eight items not passed on July 23, but "fail to provide any legal authority for such a demand."
"Despite the allegations of plaintiffs that no votes on budget items are conclusive evidence of overwhelming support for a spending cap, it is anything but," she said. "There is no means of determining whether voters voted no on budget items," because they were too high or too low.
Kreckel said that should the court order the ordinance placed on the warrant passes along with the proposed $6.9 million budget, it places more burdens on the town that far exceed any harm to the plaintiffs.
"It will place the town in the untenable position of now having passed a complete budget which is undermined by the passing of the ordinance, which the town maintains is a violation of the charter process," she said.
Kreckel said an ordinance cannot change or alter the Charter.
"The Charter is the bones of the town," she said. "It is the document which gives power to the town government and defines the use of that power.
"Seeking to impose a spending cap on the town government goes to the very heart of the budgetary power of the town government and its voters," Kreckel said. "For such a fundamental change to occur, the Charter must be changed."