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Daily Sun v. S.A.D. 43
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 143
Docket:	And-99-158	
Argued:	September 9, 1999
Decided:	October 18, 1999

Dissenting:DANA, SAUFLEY, and CALKINS, JJ.


	[¶1]  The Lewiston Daily Sun appeals from a judgment of the Superior
Court (Androscoggin County, Studstrup, J.) finding no violation of Maine's
Freedom of Access Act, 1 M.R.S.A. §§ 401-410 (1989 & Supp. 1998).  The
Sun contends that the court erred in determining that the Board of
Directors of SAD 43 did not approve an official action when, in executive
session, it accepted its attorney's recommendation for an independent
investigation of complaints regarding the superintendent of the school
district.  Because we determine the action is moot, we dismiss the appeal.
	[¶2]  In 1997 and 1998, the Lewiston Daily Sun and the Board of
Directors of SAD 43 were involved in a continuing dispute about policy and
practice of SAD 43 regarding conduct of business in executive sessions. 
During this time period, the Board had also been receiving a number of
complaints about the performance of its superintendent. 
	[¶3]  On March 30, 1998, the Board held a meeting to hear
complaints regarding the superintendent's job performance.  As required by
20-A M.R.S.A. § 6101(2)(B)(6),{1} but over the newspaper's objection, the
March 30 proceedings to receive complaints were conducted in executive
session.  After the March 30 meeting, the Board determined to ask
individuals who had complaints regarding the superintendent to submit the
complaints in writing.  Fourteen written complaints were forthcoming.  
	[¶4]  On April 14, 1998, the Board conducted another meeting, with
its attorney present, to consider how to proceed to address complaints
against the superintendent.  As required by 20-A M.R.S.A. § 6101(2)(B)(6)
and as authorized by 1 M.R.S.A. § 405(6)(A), (E) & (F),{2} this meeting also
was conducted in executive session.  
	[¶5]  The trial court found that, at the April 14 meeting, the Board's
attorney recommended an independent investigation of complaints, and the
Board "agreed to follow the advice of their attorney and investigate the
complaints . . . ."  The court also found that the actual conduct of the
investigation was left in the hands of the attorney, that the Board did not
approve any specific individual as the investigator, and "consequently, there
was no approval of a contract or expenditure of public funds made during
the executive session."
	[¶6]  The next day, April 15, 1998, the Board's attorney engaged
another attorney, from a different law firm, to conduct an independent
investigation of the complaints regarding the superintendent.  The
newspaper learned of this action soon afterward and published a story
regarding it the following week.  
	[¶7]  On May 13, 1998, nearly a month after learning of the events at
the April 14 meeting, the newspaper filed a four-count complaint asserting
violations of the Freedom of Access Act.  The first two counts challenged the
March 30 executive session.  The third count sought injunctive relief and
was a general complaint against past SAD 43 executive session practices.{3} 
The fourth count asserted that the proceedings which resulted in the
Board's attorney engaging another attorney to conduct an independent
investigation amounted to an "official action" taken at the April 14 executive
session.  This was alleged to violate 1 M.R.S.A. § 405(2) which states that: 
"No ordinances, orders, rules, resolutions, regulations, contracts,
appointments or other official actions shall be finally approved at executive
	[¶8]  During May 1998, the attorney engaged to conduct the
independent investigation completed her investigation and filed a report
with the Board.  The report was received and considered at a May 26 Board
meeting.  Also on May 26, the Board sent a letter to the superintendent
stating its findings and decision regarding the complaint and the
superintendent's job performance.  Over the superintendent's objection,
this letter was made public in accordance with 20-A M.R.S.A. § 6101(2)(C).{4}  
	[¶9]  Because the court had appropriately granted the newspaper's
request for an expedited hearing, trial on count IV of the complaint
commenced on May 27.  Most of the Board members present at the April 14
meeting testified.  Over the school district's objection, the record was then
left open to receive testimony by deposition from Board members who were
unable to be present on May 27. 
	[¶10]  After receiving briefs and giving the matter due consideration,
the court determined that no "official actions" had been taken by the Board
during its April 14 executive session and that, therefore, no violation of the
Freedom of Access Act had occurred.  At the newspaper's request, the court
issued further findings in an order dated February 11, 1999.  From that
order, the newspaper appealed.  
	[¶11]  The Freedom of Access Act provides a very narrow choice of
remedies in circumstances where violation of its limits on executive
sessions are found.  Official actions determined to have been taken illegally
in executive session may be declared "null and void." 1 M.R.S.A. § 409(2). 
Officials responsible for such actions may also be subject to civil penalties
under 1 M.R.S.A. § 410.  However, such penalties may only be sought by the
Attorney General or his representative. See Scola v. Town of Sanford, 1997
ME 119, ¶ 7, 695 A.2d 1194, 1195.  Thus, the only remedy which could
result if the newspaper's appeal were successful would be a declaration that
the Board counsel's engagement of an independent attorney to conduct an
investigation of the superintendent was null and void.  All actions relating to
or arising from that activity were completed with the Board's receipt of the
independent attorney's report, its action on it and issuance of its letter to
the superintendent on May 26, 1998.  When trial commenced in this
matter, it is doubtful that there was any available relief that the court could
grant on the newspaper's complaint had it ruled for the newspaper.  The
possibilities for relief have eroded with the passage of time.
	[¶12]  Courts cannot issue opinions on questions of fact or law simply
because the issues are disputed or interesting.  Courts can only decide cases
before them that involve justiciable controversies.  "'Justiciability requires a
real and substantial controversy, admitting of specific relief through a
judgment of conclusive character . . . .'"  Halfway House, Inc. v. City of
Portland, 670 A.2d 1377, 1379 (Me. 1996) (quoting Hatfield v.
Commissioner of Inland Fisheries, 566 A.2d 737, 739-40 (Me. 1989) and
Connors v. International Harvester Credit Corp., 447 A.2d 822, 824 (Me.
	[¶13]  If a case does not involve a justiciable controversy, it is moot. 
Here, there is no specific relief which the trial court could have ordered or
which this Court can order. 
	For public policy reasons deeply imbedded in the history
and nature of courts, the Law Court decides only questions of live
controversy, and not hypothetical, abstract or moot questions. 
The demands upon this Court are too heavy for it to commit any
of its limited resources of time and effort to reviewing the legal
correctness of action below at the behest of a person to whom
our decision in no alternative will make any real difference.
Halfway House, Inc., 670 A.2d at 1380 (quoting Sevigny v. Homebuilders
Association, 429 A.2d 197, 201 (Me. 1981)).  
	[¶14]  When mootness is an issue, we examine the record to
determine "'whether there remain sufficient practical effects flowing from
the resolution of [the] litigation to justify the application of limited judicial
resources.'"  Employee Relations v. Labor Relations Board, 655 A.2d 326,
327 (Me. 1995) (quoting State v. Irish, 551 A.2d 860, 861-62 (Me. 1988)).  
	[¶15]  In Freedom of Access Act litigation, we have addressed the
merits of an issue that was resolved prior to hearing because public records
were disclosed to the plaintiff only after suit was filed and because the
plaintiff, as prevailing party on a Freedom of Access issue, was entitled to
recovery of costs.  See Cook v. Lisbon School Committee, 682 A.2d 672, 680
(Me. 1996).  However, Cook presented very different issues from this case. 
In Cook, the plaintiff, in litigation which raised many issues, sought and was
originally denied access to public documents.  After filing suit, the
documents at issue were turned over to Cook.  Although this aspect of the
larger controversy had been resolved by the time it reached the Superior
Court, we held that:
It would be contrary to the purposes of the Freedom of Access
Act to permit a governmental body to avoid the payment of court
costs for a violation of the Act merely by producing the
improperly retained documents after the requesting party had
undertaken the additional time and expense of filing an appeal of
the denial in the Superior Court. Id.  
	[¶16]  There is no such entitlement to costs or any other remedy
here.  Suit was filed nearly a month after disclosure of the events at the
executive session, and the great bulk of the litigation in which the
newspaper engaged; trial in the Superior Court, development of the record
and briefing in the Superior Court, and this appeal occurred after any
opportunity for relief had passed.  Because there is no "real and substantial
controversy, admitting of specific relief through a judgment of conclusive
character," Halfway House, Inc., 670 A.2d at 379, this case is moot.
	[¶17]  While the mootness doctrine generally bars review of cases that
do not present a justiciable controversy, there are three exceptions to the
mootness doctrine which may justify addressing the merits of an issue if:  
(1) Sufficient collateral consequences will result from the
determination of the questions presented 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 the
public we may address; or 

(3) the issues are capable of repetition but evade review because
of their fleeting or determinate nature.
Halfway House, Inc., 670 A.2d at 1380; Foster v. Bloomberg, 657 A.2d 327,
329 n.1 (Me. 1995); In re Faucher, 558 A.2d 705, 706 (Me. 1989).  None of
these exceptions to the mootness doctrine justify judicial intervention in
this case.  In fact, prudential considerations of judicial restraint argue
against our addressing the merits of the issue presented here.  
	[¶18]  On sensitive issues of complaints about employees and
employee discipline, there is a delicate tension between the confidentiality
mandate of 20-A M.R.S.A. § 6101(2)(B) and the limitations on executive
sessions imposed by 1 M.R.S.A. § 405.  The issue of the application of
section 6101 was not addressed in the trial court's rulings or in the
newspaper's briefing of the issues to the trial court or this Court.  Ruling on
the issue of applicability of the limitations on executive sessions in section
405, in a case where there remain no practical consequences that can flow
from such a ruling and where the record is undeveloped regarding the
competing confidentiality mandate of section 6101, would be particularly
inappropriate.  In looking at the exceptions to the mootness doctrine, we
could not reasonably provide future guidance to the public and the bar on
this issue by ruling here and, beyond those consequences which had already
occurred by May 26, 1998, no other collateral consequences can flow from
the challenged Board actions or rulings by this Court.  
	[¶19]  At oral argument, counsel for the newspaper asserted that
ruling is needed because their ongoing controversy with SAD 43 indicates
that the issue of confidentiality of executive sessions is one that is capable of
repetition.  However, each such event is heavily fact specific.  Notably, one of
the executive sessions identified as creating the basis for repetition of the
problem is the March 30, 1998, executive session to hear complaints. 
Hearing complaints in executive session appears to have been mandatory if
the provisions of 20-A M.R.S.A. § 6101(2)(B)(6) were to be respected.  
	[¶20] The newspaper's complaint includes a claim under the
Declaratory Judgments Act, 14 M.R.S.A. §§ 5951-5963 (1980 & Supp.
1998).  However, the Uniform Declaratory Judgments Act does not present
an exception to the justiciability rule.  It may be invoked only where there is
a genuine controversy.  See Patrons Oxford Mut. v. Garcia, 1998 ME 38, ¶ 4,
707 A.2d 384, 385; Wagner v. Secretary of State, 663 A.2d 564, 567 (Me.
	[¶21]  When tried this case was moot, and on appeal this case is moot. 
	The entry is:
			Appeal dismissed.
To the dissenting opinion.

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