Caribou moves to dismiss lawsuit claiming city charter violations

3 years ago

CARIBOU, Maine — The city of Caribou and City Councilor Doug Morrell, both defendants in a lawsuit asserting that the city charter was violated by allowing Morrell to sit on council, have moved to dismiss the lawsuit. 

Plaintiffs Christine Lister and Gary Aiken filed the lawsuit on Nov. 4 while they were both involved in a committee formed to recall City Councilor Morrell. The committee had circulated a petition that fell short by 53 signatures. Only 15 of those signatures were submitted to and verified by the city.

The lawsuit alleges that the city violated its own charter by swearing in Morrell, whose taxes were not paid by Dec. 31, 2019. The plaintiffs claim that the charter’s rules concerning forfeiture for unpaid taxes are clear, that the city violated the charter by failing to notify Morrell of the forfeiture offense in open session and in writing, by failing to deliver a copy of the written offense to the city’s legal counsel, failing to hold a hearing about this at the next regularly scheduled city council meeting, failing to judge Morrell’s qualification, failing to make a decision on the forfeiture, and by failing to vote on whether a forfeiture had occurred.

The lawsuit asks the court to review the council’s actions, and requests that the city take any mandatory and ministerial actions required under the charter, in addition to awarding the plaintiffs their legal fees and costs along with any other relief the court deems proper.

The city’s motion to dismiss the case asserts that the plaintiffs’ claims are legally defective and that only the council can collectively determine if a forfeiture occurred.

“Plaintiffs inexplicably seek to deputize themselves as private enforcement officers of the city where no such power exists,” according to court documents.

The motion also claims that the plaintiffs’ interpretation of the charter is not valid.

Roughly half an hour before Morrell was sworn in on Jan. 2, 2020, his taxes were paid by fellow councilor Hugh Kirkpatrick. The city’s motion to dismiss claims that while Morrell’s taxes were paid after Dec. 31, 2019, they were paid while he was a councilor-elect and before he was formally sworn in as city councilor.

“In sum, Mr. Morrell’s real estate taxes due and owing to the city on or before December 31, 2019, were current and paid prior to Mr. Morrell holding and occupying the office of City Councilor as of 6:20 p.m. on January 2, 2020,” the motion read.

According to the motion, Caribou City Manager Dennis Marker reviewed the charter with the city’s legal counsel shortly after Morrell was sworn in, as he had received feedback from multiple people who took issue with his eligibility.

And based on the feedback from legal counsel, the city council did not take action on Morrell’s eligibility or potential forfeiture.

On Oct. 5, 2020, plaintiff Aiken made a presentation to the council regarding Morrell’s eligibility, but the city did not address these issues during that meeting. During the next meeting on Oct. 19, Councilor Joan Theriault moved that the council invoke the process described in section 2.06 of the city charter concerning Morrell’s forfeiture. Her motion was not seconded. 

Defendants say in their legal argument that section 2.06 of the charter only applies to seated councilors, and that Morrell’s taxes were paid before he became a seated councilor.

Section 2.01(b) of the charter, which is available on the city’s website, says that “only qualified voters of the city, who are current for all annual personal and real property taxes due to the city on or before December 31st of the previous year, shall be eligible to hold the office of Councilor.”

This section is cited in both the plaintiffs’ complaint and the defendants’ motion to dismiss, with plaintiffs asserting that the charter’s rules are clear and that Morrell’s taxes were paid after this date. The motion to dismiss emphasizes the words “to hold,” and concludes that Morrell met this criteria because his taxes were paid before he was officially sworn in.

The city’s motion also asserts that any request for damages and attorney fees should be dismissed because the charter doesn’t allow for private rights of action against the city or its councilors, which means the plaintiffs’ lack authority or standing to take legal action against either.

The city argued against the claim that the council did not bring the matter up in open session by citing Theriault’s motion to move forward with the forfeiture process on Oct. 19, about nine months after Morrell was sworn in. 

The city claims that since the council took up the issue in public session, there is no need for the court to step in and make the council act on the complaints.

As of Feb. 4, the plaintiffs have not filed an opposition to the motion to dismiss. Their deadline to answer the city’s motion has been extended to Feb. 26, according to the Caribou Superior Court .