MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 20 2 3 ME 9 Docket: C um - 22

- 91 Argued : November	3,	2022 Decided: January 2 6 ,	2023 Panel: STANFILL ,	C.J.,	and MEAD, JABAR , HORTON , CONNORS ,	and	LAWRENCE , JJ.

FAIR ELECTIONS	PORTLAND,	INC. , et	al

.

v. CITY	OF	PORTLAND

JABAR ,	J. [¶1] Fair	Elections	Portland,	Inc. , and	ten	individual	voters (collectively , FEP)	 appeal from	 a	 Superior	 Court	 order	 (Cumberland	 County, McKeon,	 J. ) denying their M.R.	 Civ.	 P. 80B	 petition	 for	 review	 of	 the	 City	 of	 Portland’s decision	 to	classify their proposed modification to	 the	Portland	City	Charter , which	 would establish a	 public	 financing	 mechanism	 for	 city	 elections , as	 a

“ revision ”	of, instead	of	an “ amendment ”	to,	the	c harter

. We	dismiss	the	appeal

as	moot.
I.		BACKGROUND [¶ 2 ] The	classification of	a	proposed	charter	modification	as	a	revision
rather	 than	 an	 amendment is	 significant	 because	 under	 the	 Home	 Rule Act,2 30

- A	M.R.S.	§§	2101

- 2109	(202 1 ) , 1 a	proposed	amendment	must	be	submitted directly	 to	 the	voters	in	a	municipal	election, see 30

- A	M.R.S.	§§ 2104(1)

- (2) , 2105(2) ,	whereas	a	proposed	revision	can	be	submitted	to	the	voters only upon recommendation	 of	 a	 charter	 commission, see 30

- A	 M.R.S.	 §§ 2102(1)

- (2) , 2103(5)(D),	 (6) , 2105(1)

. See Fair	 Elections	 Portland,	 Inc.	 v.	 City	 of	 Portland ( FEP	I ) ,	2021	ME	32,	¶	4,	252	A.3d	504

. [¶ 3 ] After	classifying	FEP’s	proposed	charter	modification	as	a	revision,
the City	 formed	 a	 charter	 commission	 to , inter alia, consider the proposed
mechanism	 for public	 campaign financing

. The Charter	 Commission then recommended	a	modification	to	the	City	Charter establishing	a mechanism	for public	campaign financing that was similar	to the	one	proposed	by	FEP and that was	put	before	voters in	November	2022 .		Voters	approved	the	measure ,	which
received 65.3%	 o f the	 vote. City	 of	 Portland, General	 Municipal	 Election	 on 11/8/2022:	 Referendum	 Results , https://content.civicplus.com/api/asse ts/
dec12b09

- 575a

- 4da0

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- db63f30f272d?cache=1800 [https://perma.cc/
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- RGZS] (last	visited Jan. 17 ,	202 3 ).

1 Section	2102	of	the	Home	Rule	Act	has	been	amended effective	after	the	City	Council	voted	not to	send	the	proposed	modification	to	the	voters ,	but	the	amendments	do	not	affect	our	analysis	here. See P.L.	2019,	ch.	149,	§§	1

- 2	(effective	Sept.	19,	2019)	(codified	at	30

- A	M.R.S.	§	2102(3)(B),	(5)(A) (2021)).		For	consistency,	all	citations	to	the	Home	Rule	Act	in	this	opinion	are	to	the	2021	ver sion	of the statutes

.3 [¶ 4 ]		FEP’s	proposed	charter	modification	reads	as	follows: Section	12.		Public	Financing	of	Municipal	Elections The	 city	 council	 shall establish	 and	 fund	 a	 mechanism providing	public	campaign	funds	to	qualified	candidates	for	mayor, city	 council,	 and	 school	 board.	 	 The	 mechanism	 must	 provide sufficient	funds	to	allow	candidates	who	meet	qualifying	criteria	to conduct	competitive	campaigns ,	must	be	voluntary,	must	limit	the amount	 of	 private	 funds	 a	 candid a te	 may	 raise,	 must	 only	 be available	to	candidates	who	demonstrate	public	support,	and	must be	limited	to	candidates	who	enter	into	a	binding	agreement	not	to accept	private	contributions other	than	those	allowed	by	the	public funding	 program.	 	 The	 mechanism	 must	 be	 available	 by	 the 2021 municipal	elections. [¶ 5 ]		The	Charter	Commission ’s proposed modification	reads	as	follows: Section	12.		Public	financing	of	municipal	elections.
The city	 council	 shall	 establish	 and	 fully	 fund	 a	 City	 of Portland	 Clean	 Election	 Fund	 (hereinafter,	 the	 “Clean	 Election Fund”	or	the	“Fund”)	to	provide	public	campaign	funds	to	qualified candidates	for	elected	municipal	offices.		The	Clean	Election	Fund must be	available	to	candidates	in	municipal	elections	beginning	in FY	2023

- 2024.		Candidate	participation	in	the	Clean	Election	Fund shall	be	voluntary. Beginning	in	FY	2023

- 2024	to	allow	for	implementation	for the	 November	 2023	 election,	 the	 city	 council	 sha ll	 provide	 an independent	allocation	from	the	city’s	budget	each	year	to	ensure the	 Clean	 Election	 Fund	 is	 sustained	 at	 a	 level	 that	 facilitates competitive	 campaigns	 for	 participating	 candidates	 who	 meet qualifying	criteria.		The	Clean	Election	Fund	shall be	administered by	 the	 city	 clerk	 and	 the	 city	 council	 shall	 appropriate	 sufficient funds	to	ensure	there	are	adequate	resources,	including	paid	staff, to	effectively	administer	the	Fund.4 The	 city	 council	 shall	 maintain	 an	 ordinance	 directing	 the operati on	of	 the	Clean	Election	Fund.		The	ordinance	shall	direct that	the	Clean	Election	Fund	must: (a) Limit	 the	 amount	 of	 private	 funds	 a	 participating candidate	may	raise; (b) Be	limited	to	candidates	who i. demonstrate	public	support; ii. enter	into	a binding	agreement	stating	that the	 candidate	 will	 not	 accept	 private contributions	other	 than	 those	which	are permitted	by	the	Clean	Election	Fund;	and iii. agree	to	participate	in	at	least	one	(1)	city

sponsored	forum	or	voter	education	event. (c) Require that	 all	 unused	 funds	 from	 a	 participating candidate’s	campaign	be	returned	to	the	Clean	Election Fund	within	one	hundred	(100)	days	after	the	date	of the	election. The	 city	 council	 may	 adopt	 additional	 regulations	 and ordinances	not	inconsistent	with	th is	section City	 of	 Portland, Portland	 Charter	 Commission

– Final	 Report:	 BALLOT QUESTION	 #3

— Clean	 Elections ,	 https://content.civicplus.com/api/assets/
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- NKZ8]	 (last	 visited	 Jan. 17 ,	 202 3). The	 same	 ballot	 question	 also proposed	a	new	section	13	of	the	charter,	which	would	adopt	campaign	finance rules	for	all	candidates	for	municipal	offices. Id. [¶ 6 ] After	 voters	 approved	 the modification proposed	 by	 the	 Charter
Commission (the	Clean Election	Fund) during	the	November	2022	election, w e5 issued	a n order requiring FEP	to	show	cause	why	the	matter	pending	before us should	 not	 be	 dismissed	 as	 moot. FEP contend s that	 the	 case	 is	 not	 moot because	 the	measure	 could	 still	 be	 considered	 by	 voters	 and	 given	 effect	 as
written	 because	 the Clean	 Election	 Fund,	 which	 has	 now	 been	 adopted by voters,	 is not	 yet	 “valid	 and	 recognizable”	 and it	 is not	 identical	 to	 FEP’s
propo sed	charter	modification. It also	contend s that	even	if	the	matter	is	moot, we	 should	 reach	 the	 merits	 under	 the	 exceptions	 to	 the	 mootness	 doctrine because	the	public	has	an	interest	in	the	stable	and	efficient	administration	of the	Home	Rule	Act	by	muni cipal	officers	statewide , we	have	not	yet	conclusively
resolve d this	important	question	of	law,	and by	not	reaching	the	merits	of	the matter	the	City	of	Portland’s	position	will	act	as	precedent that has	the potential to	be	applied	to other Maine	charters and charter	modif i cations

. II.		DISCUSSION [¶ 7 ] As	 noted ,	 FEP challenges the	 actions	 of	 the	 City	 of	 Portland determining	 that the voters’	initiative promoted	by	FEP to establish	a	public financing	 mechanism	 for	 city	 elections would	 effectuate	 a	 revision	 to	 the Portland	City	Charter,	rather	 than	an	amendment,	and	 therefore	declining	 to conduct	a	referendum	vote	on	the	proposed	modification.6 A. Mootness [¶ 8 ] Because FEP seeks	a	holding that	its proposed	charter	modification was	an	amendment,	rather	than	a	revision, and should	therefore	be	presented to	the	voters,	and	because in	th e November 2022 election voters	approved a question	on	the	ballot	establishing	a mechanism	for public	campaign	f inancing that	was	proposed	by	the	Charter	Commission

— the	Clean	Election	Fund

— the question	 of	 mootness	 necessarily	 hinges	 on	 the	 similarities and differences between	these	competing	pro posals.		If	the	Clean	Election	Fund	is	substantially similar	to	FEP’s	proposed	charter	modification,	there	is	no	real	and	substantial controversy,	and	this	appeal	is	moot	and	therefore	not	justiciable. See Mainers for	Fair	Bear	Hunting v.	Dep’t	of	Inland Fisheries & Wildlife ,	2016	ME	57,	¶¶ 5

- 6, 136	A.3d	714 (“ An	issue	is	moot	when	there	remains	no	real	and	substantial controversy,	 admitting	 of	 specific	 relief	 through	 a	 judgment	 of	 conclusive
character.” (quotation	marks	omitted))

. 1. FEP’s Proposed	Charter	Modification [¶ 9 ] FEP’s	proposed	charter	modification	sought	to	add,	as s ection	12	of the	Portland	City	Charter,	a	requirement	 that	 the C ity C ouncil	 “establish	and fund	a	mechanism	providing	public	campaign	funds	to	qualified	candidates for
mayor, c ity c ouncil,	and	school	board”	that	would	provide	“sufficient	funds	to7 allow	 candidates	 who	 meet	 qualifying	 criteria	 to	 conduct	 competitive campaigns.”	 	 The	 “qualifying	 criteria”	 required	 by	 FEP’s	 proposed	 charter
modification	would	include	tha t	the	program:	(1) “ be	voluntary ” ;	(2) “ limit	the amount	 of	 private	 funds	 a	 candidate	 may	 raise ” ;	 (3) “ only	 be	 available	 to candidates	who	demonstrate	public	support ” ;	and	(4) “ be	limited	to	candidates who	enter	into	a	binding	agreement	not	to	accept private	contributions	other than	those	allowed	by	the	public	funding	program. ”
2. Clean	Election	Fund [¶ 10 ] The	 Clean	 Election	 Fund	 accomplishes	 all	 of	 the	 same	 goals	 as FEP’s	proposed	charter	modification , with	some	additions.		The	Clean	Election
Fun d , add ed as s ection	12	of	the	Portland	City	Charter,	require s that	the C ity
C ouncil	 “establish	and fully fund	a	City	of	Portland	Clean	Election	Fund

. . . to provide	 public	 campaign	 funds	 to	 qualified	 candidates for	 elected	 municipal offices. ” (Emphasis	added.) The	Clean	Election	Fund	uses	the	phrase	“elected municipal	offices,”	which	broadens	the	scope	of	the	public	funding	mechanism from	the	“mayor,	city council,	and	school	board”	positions	proposed	by	FEP. [¶1 1 ] The	 Clean	 Election	 Fund also	 clarifies	 the	 language	 around	 the funding	 mechanism .	 	 Whereas	 FEP’s	 proposed	 charter	 modification	 would require	the	public	campaign	funding	mechanism	to	“provide	s ufficient	funds	to8 allow	 candidates

. . . to	 conduct	 competitive	 campaigns,”	 the	 Clean	 Election Fund	is	more	specific	and	comprehensive,	requiring	that	the C ity C ouncil	“fully fund”	the	Clean	Election	Fund	by	“provid[ing]	an	independent	allocation	from
the city’s	budget	each	year	to	ensure	the	Clean	Election	Fund	is sustained	at	a level	 that	facilitates	 competitive	 campaigns for	 participating	 candidates”	and, separately,	 that	 the C ity C ouncil	 “appropriate sufficient	funds to	ensure	 there are	adequate	resour ces,	including	paid	staff,	to	effectively	administer	the	Fund.” (Emphasis	 added.) The	 difference	 between fully funding	 and sufficiently funding	the	program	is	inconsequential	because	the	outcome	is	the	same

— the establishment	 of	 a	 public	 campaign	 funding program	 that	 allows	 qualifying candidates	to	conduct	competitive	campaigns

. [¶1 2 ] Regarding	qualifying	criteria,	the	Clean	Election	Fund	includes	all of	the	same	qualifying	criteria	as	FEP’s	proposed	charter	modification:	(1) that participation	 “be	 voluntary,” (2) that	 “the	 amount	 of	 private	 funds	 a participating	candidate	may	raise”	be	limited, (3) that	the	program	be	“limited
to	 candidates	 who demonstrate	 public	 support , ”	 and (4) that	 the	 funds	 be available	only	to	candidates who will “enter	into	a	binding	agreement	stating that	the	candidate	will	not	accept	private	contributions	other	than	those	which are	permitted	by	the	Clean	Election	Fund.”		However,	the	Clean	Election	Fund9 goes	further	and	requires	that	qualified	candidat es	“agree	to	participate	in	at least	 one	 (1)	 city

- sponsored	 forum	 or	 voter	 education	 event”	 and	 that	 “all
unused	 funds

. . . be	 returned	 to	 the	 Clean	 Election	 Fund.”	 	 Finally,	 the	 Clean Election	 Fund	 includes	 language	 that	 allows	 the C ity C ouncil to “ adopt additional	regulations	and ordinances	not	inconsistent	with [ s ection 12] .” [¶1 3 ] In	 addition	 to	 the s ection	 12	 language,	 the ballot	 question approved	 by	 the	 voters added s ection	 13 to	 the	 charter ,	 which	 establishes campaign	finance	rules. City	of	Portland, Portland	Charter	Commission

– Final Report:	 BALLOT	 QUESTION	 #3

— Clean	 Elections , https://content.civicplus.com/api/assets/42c7a724

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- N KZ8]	 (last	 visited Jan. 17,	2023). Because	these	rules	govern	campaign	contributions,	spending, and	reporting for	all	candidates,	and	are	not	exclusive	to candidate s using	the Clean	Election	Fund	established	by	section	12,	the	provisions	of	section	13	are of	no	consequence	to	our	analysis.
B. Conclusion [¶1 4 ] Because the	Clean	Election	Fund	is	substantially	similar	to	FEP’s proposed	charter	modification,	with	no	conflicts,	 the	issue	on	appeal	is	moot and	therefore	not	justiciable.		The	requirement	that	the	program	be fully funded10 under	 the	Clean	Election	Fund,	as	oppo sed	to sufficiently funded	under	FEP’s proposed	modification,	ensures	that	the	program	not	only	meets	but	exceeds the	 funding	 requirements	 sought	 by	 FEP.	 	 FEP	 wanted	 a	 public	 campaign
f

inancing program	for	local elections, and it got	one.		The	issue	is	moo t. [¶1 5 ] Further,	there	is	no	reason	for	us	to	hold	that	any	of	the	exceptions to	 the	mootness	 doctrine	 apply. E xceptions	 to	 the	mootness	 doctrine apply
when (1) sufficient	 collateral	 consequences	 will	 result	 from	 the determination	 of	 the	 questions	 pre sented	 so	 as	 to	 justify	 relief; (2 ) the	appeal	contains	questions	of	great	public	concern	 that,	in the	interest	of	providing	future	guidance	to	the	bar	and	public	we may	address;	or	(3) the	issues	are	capable	of	repetition	but	evade review	because	of their	fleeting	or	determinate	nature.
See Mainers	for	Fair	Bear	Hunting , 2016	ME	57,	¶ 7 ,	136	A.3d	714 (quotation marks	omitted). In its memorandum	in	response	to	the	show	cause	order,	FEP
contends that all	three	exceptions	apply,	but it focus es on	the public	concern exception,	arguing	that we	need	to	give	guidance	to	municipalities	regarding	a
standard	to	determine	whether	a	measure	is	a	revision	or	an	amendment .		We disagree.	 	 I n FEP I ,	 we	 thoroughly	 discussed	 the	 meaning	 of	 “revision”	 and “amendment”	under	the	statute. 2021 ME	32,	¶¶ 28

- 34,	252	A.3d	504.		We	held that	determining	whether	a	proposed	charter	modification	was	an amendment11 or	a	revision	was	a	mixed	question	of	fact	and	la w ,	and	that	framework	is	more than	adequate	guidance	for	municipalities

. Id. ¶¶	33

- 38. The	entry	is: Appeal	dismissed.

Benjamin	 Gaines,	 Esq. (orally) ,	 Gaines	 Law,	 LLC,	 Portland, and John	 R. Brautigam,	 Esq.,	 John	 R.	 Brautigam ,	 Esq.,	 LLC,	 Falmouth, for	 appellants Fair Elections	Portland,	Inc.,	and	ten	individual	voters Jen	 Thompson,	 Esq., and	 Amy	 R.	 McNally,	 Esq. (orally) , City	 of	 Portland, Portland,	for	appellee	City	of	Portland

Cumberland	County	Superior	Court	docket	n umber	AP

- 2021

- 32 F OR C LERK R EFERENCE O NLY