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Legal Opinion on Challenging School Law Cites Penalty Provisions
East Machias Officials to Gauge Support for Suit

By Will Tuell
Downeast Coastal Press, April 7, 2009

As legislators began their third year of debate on the state's school reorganization law, East Machias selectmen received copies of a legal opinion outlining the town's chances for overturning portions, if not all, of the law in federal court.

Attorney Bryan Dench of Skelton, Taintor & Abbott suggested that, while the assertion that the state has penalized towns for voting against consolidation is “morally appealing,” it might be a risky strategy in the court system.

“Many object to the fact that the penalties are really imposed for ‘voting wrong’ on consolidation,” wrote Dench. “They feel that somehow impinges the right to vote. They are right in the sense that the state is imposing penalties on them for ‘voting wrong,’ making the right to vote hollow. However, a court could also say that by giving the municipalities the power to vote whether or not to consolidate, the state has allowed them to choose whether or not to incur the penalties. Thus they are not being penalized for voting wrong, but have simply chosen to bear the economic hardship as the price for local control. I have considered this theory. It is appealing morally, but I am not sure it would get us very far legally.“

Dench advised that towns stood a “more significant” chance of getting penalties tossed out on the grounds that the Department of Education (DOE) encouraged planning committees to count the penalties as a cost saving. “It is more significant I think,” wrote Denh, “that when many communities studied consolidation options they found that they would not save anything significant by consolidating, or would actually have to spend more on education. Many regional planning committees were told that if they could not project any genuine cost savings, they should simply project the avoidance of the penalties imposed by the law itself as a cost saving. In other words, it was good enough for the RPC merely to show the state, by consolidating, a unit would not incur a financial penalty that would not exist without the consolidation law itself!”

Dench said that this argument could not only serve to repeal the penalties, but possibly to have the entire law voided, assuming that's the direction any potential plaintiffs choose to go.

“If nothing else proves the irrationality of the consolidation law and its penalties in light of its supposed purpose to produce savings through creating larger units, this does,” said Dench. “To be valid, legislative provisions must at least bear a rational relationship to permitted objects of legislation. In any litigation we would want to compile all of this evidence for the court. This tends to show the irrationality of the entire consolidation law, but our challenge need only be to the penalty provisions.”

Dench said that potential litigants could argue that the law's penalties “are imposing a non-uniform educational tax,” though he urged that this area of attack would warrant further research before advancing that claim legally.

“Article IX, Section 8, of the Maine Constitution, requires that “All taxes upon real and personal estate, assessed by authority of this state, shall be apportioned and assessed equally according to the just value thereof.” The effect of the mill rate tax penalty ... is to impose a higher rate of taxation on value in those communities that did not vote the right way, compared to those that were not required to take any action to consolidate and those that voted the right way.”
Inequitable Penalties

Dench also said he believes that communities may have a case on the grounds that the penalties are inequitable in the way they could be assessed. “The penalties in the consolidation law seem arbitrary and capricious and unsupported by a rational foundation,” he wrote. “To be valid constitutionally, legislation must be rationally related to a permissible government purpose. The courts generally defer to the legislative judgments made by states in deciding how much funding to provide for public education and how to allocate it. However, school funding formulas and methods must have a rational foundation. The penalties imposed by this law seem to be completely arbitrary. The courts would give great deference to the Legislature, but there must still be some rational relationship between the operation of the formula, and any penalties, and a legitimate purpose.

“Finally, it is also worth noting that the penalty provisions tend to be hurting mostly rural and small town students. This is not surprising, as the law effectively exempted (and favored) students in the big cities and towns and population centers. Because of this, if the facts are clear enough, it might be that the penalties could be invalidated as unduly infringing on the constitutionally protected right to live where one chooses.”

Lawyer Assesses Legal Chances, Costs

“I see the best chances of success being in a law suit in which representative parents join with municipal officers and school boards as plaintiffs, because the individual interests of parents and students are implicated,” wrote Dench. “In a case brought in 1995, 83 school units and three students joined as the plaintiffs.”

Dench signaled that filing a lawsuit would incur a “minimum budget of $75,000,” and that plaintiffs should not move forward until they are able to raise that amount.

East Machias First Selectman Kenneth “Bucket” Davis said in a phone interview that he has approached other municipalities and school districts across the state in an effort to gauge their support for such a challenge. He said that he has been receiving calls from other towns that have heard about East Machias's efforts, but that he would not feel comfortable proceeding until other areas have come on board.