MAINE	SUPREME	JUDICIAL	COURT	                                           Reporter	of	Decisions	
Decision:	     2016	ME	143	
Docket:	       Aro-15-406	
Submitted	
			On	Briefs:	 May	26,	2016	
Decided:	      September	15,	2016	
	
Panel:	        SAUFLEY,	C.J.,	and	ALEXANDER,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                       RICHARD	CAYER	et	al.	
                                                	
                                               v.	
                                                	
                                      TOWN	OF	MADAWASKA	
	
	
ALEXANDER,	J.	

	        [¶1]	 	 Richard	 and	 Ann	 Cayer	 appeal	 from	 a	 judgment	 of	 the	 Superior	

Court	(Aroostook	County,	Hunter,	J.)	dismissing,	as	untimely,	their	appeal	from	

decisions	 of	 the	 Madawaska	 Board	 of	 Select	 People	 declining	 the	 Cayers’	

requests	to	schedule	an	advisory	referendum,	pursuant	to	former	30-A	M.R.S.	

§	 2171-D	 (2012),	 on	 the	 Cayers’	 petition,	 pursuant	 to	 30-A	 M.R.S.	 §	 2171-B	

(2015),	 seeking	 to	 have	 their	 properties	 within	 the	 Town	 of	 Madawaska	

secede	from	the	Town.1		Because	the	court	did	not	err	in	determining	that	the	

appeal	was	untimely,	we	affirm.	


    1	 	 The	 issues	 in	 this	 case	 involve	 application	 of	 the	 municipal	 secession	 statute,	
30-A	M.R.S.	§§	2171	to	2171-G	(2012	&	2015),	portions	of	which	were	amended	during	the	course	
of	 the	 proceedings	 before	 the	 Town.	 	 See	 P.L.	 2013,	 ch.	 384	 (emergency,	 effective	 July	 1,	 2013)	
(codified	at	30-A	M.R.S.	§§	2171-C-1,	2171-D	(2015)).		The	legislation	added	section	2171-C-1	and	
amended	section	2171-D.		All	other	sections	of	the	statute	remained	unchanged.	
2	

                                  I.		CASE	HISTORY	

      [¶2]	 	 In	 this	 appeal	 from	 an	 order	 on	 a	 petition	 for	 review	 of	

governmental	action	pursuant	to	M.R.	Civ.	P.	80B,	we	draw	the	facts	from	the	

statements	of	material	facts,	M.R.	Civ.	P.	56(h),	including	what	purports	to	be	

the	 record	 of	 the	 municipal	 decision,	 that	 appear	 in	 the	 summary	 judgment	

record.	 Summary	 judgment	 is	 appropriate	 when	 review	 of	 the	 parties’	

statements	of	material	facts	and	the	record	evidence	to	which	the	statements	

refer,	considered	in	the	light	most	favorable	to	the	nonmoving	party,	here	the	

Cayers,	demonstrates	that	there	is	no	genuine	issue	of	material	fact	that	is	in	

dispute	 and	 the	 moving	 party	 is	 entitled	 to	 judgment	 as	 a	 matter	 of	 law.		

Remmes	v.	Mark	Travel	Corp.	2015	ME	63,	¶	18,	116	A.3d	466.		

      [¶3]	 	 On	 May	 28,	 2013,	 the	 Cayers	 filed	 a	 petition	 to	 secede	 from	 the	

Town	 of	 Madawaska	 pursuant	 to	 30-A	M.R.S.	2171-B.	 	 Since	 its	 enactment	 in	

1999,	P.L.	1999,	ch.	381,	§	2,	section	2171-B	has	specified:	

      The	 secession	 process	 may	 be	 initiated	 by	 submitting	 to	 the	
      municipal	 officers	 a	 petition	 signed	 by	 more	 than	 50%	 of	 the	
      registered	 voters	 within	 the	 secession	 territory	 that	 requests	 a	
      municipal	 public	 hearing	 for	 the	 purpose	 of	 discussing	 whether	
      the	 specified	 territory	 should	 secede	 from	 the	 municipality.	 The	
      petition	 must	 set	 forth	 the	 physical	 boundaries	 of	 the	 secession	
      territory,	the	resident	population,	the	nonresident	population	and	
      a	list	of	not	more	than	5	people	who	will	serve	as	representatives	
      of	 the	 secession	 territory.	 For	 purposes	 of	 this	 subchapter,	
                                                                                          3	

      “secession	territory”	means	the	area	described	in	the	petition	for	
      secession.	
         The	 registrar	 of	 voters	 of	 the	 municipality	 shall	 verify	 the	
      signatures	 on	 the	 petition	 within	 30	 days	 of	 the	 receipt	 of	 the	
      petition.	
         	
      [¶4]	 	 The	 “secession	 territory”	 identified	 in	 the	 petition	 consists	 of	 six	

parcels	of	land	owned	by	the	Cayers;	the	only	residents	of	the	territory	were	

the	Cayers.		The	Town	Manager	determined	that	the	Cayers’	petition	to	secede	

complied	 with	 section	 2171-B.	 	 However,	 no	 public	 hearing	 was	 scheduled	

pursuant	to	former	30-A	M.R.S.	§	2171-C	(2012),	which,	without	setting	a	time	

within	 which	 a	 hearing	 shall	 be	 scheduled,	 stated	 that	 “[u]pon	 receipt	 of	 a	

petition	 with	 the	 required	 number	 of	 verified	 signatures,	 the	 municipal	

officers	shall	call	and	hold	a	public	hearing.		The	purpose	of	the	public	hearing	

is	 to	 allow	 municipal	 residents,	 officers	 and	 residents	 in	 the	 secession	

territory	to	discuss	secession.”		Id.	

      [¶5]	 	 The	 statements	 of	 material	 fact	 indicate	 that	 Town	 officials	 were	

uncertain	 about	 application	 of	 the	 law	 and	 contacted	 a	 legislator	 and	 the	

Maine	Municipal	Association	regarding	that	uncertainty.	

	     [¶6]	 	 On	 July	 1,	 2013,	 the	 Legislature	 enacted	 and	 the	 Governor	

approved	 a	 bill,	 L.D.	 1561	 (126th	 Legis.	 2013),	 becoming	 P.L.	 2013,	 ch.	 384	

(emergency	 legislation,	 effective	 July	 1,	 2013).	 	 The	 new	 law	 changed	 the	
4	

Legislature’s	 practice	 for	 receiving	 and	 considering	 secession	 petitions.	 	 The	

new	 practice	 requires	 that,	 before	 any	 municipality	 conducts	 any	 advisory	

referendum	 on	 a	 petition	 to	 secede,	 a	 representative	 from	 the	 secession	

territory	 must	 first	 “obtain	 the	 authorization	 of	 the	 Legislature	 to	 proceed	

with	the	secession	process.”		30-A	M.R.S.	§	2171-C-1	(2015).		

      [¶7]	 	 The	 version	 of	 the	 statute	 in	 effect	 when	 the	 Cayers	 filed	 their	

petition	 to	 secede	 had	 provided	 that	 before	 consideration	 of	 a	 petition	 to	

secede	 by	 the	 Legislature	 “the	 municipality	 shall	 conduct	 an	 advisory	

referendum	 within	 the	 secession	 territory”	 at	 least	 thirty	 days	 but	 not	 more	

than	 120	 days	 after	 an	 initial	 public	 hearing	 on	 the	 petition	 to	 secede.	

30-A	M.R.S.	§	2171-D	 (2012).	 	 Thus,	 the	 effect	 of	 the	 Legislature’s	 action	 was	

that	 legislative	 authorization	 must	 now	 precede	 any	 municipal	 advisory	

referendum	on	a	secession	petition.	

	     [¶8]	 	 The	 Town	 determined	 that	 the	 amended	 statute	 governing	

legislative	 consideration	 applied	 to	 the	 Cayers’	 petition	 and	 scheduled	 a	

hearing	on	the	petition	for	July	30,	2013.		At	the	hearing,	Richard	Cayer	spoke	

and	 described	 the	 problems	 that	 prompted	 him	 and	 his	 wife	 to	 petition	 to	

secede.	 	 See	 30-A	 M.R.S.	 §	 2171-C(2)	 (2015).	 	 As	 required	 by	 law,	 the	 Town	

refrained	 from	 taking	 any	 action	 on	 the	 petition	 at	 the	 public	 hearing.		
                                                                                      5	

See	30-A	 M.R.S.	 §	 2171-C	 (“The	 purpose	 of	 the	 public	 hearing	 is	 to	 allow	

municipal	residents,	officers	and	residents	in	the	secession	territory	to	discuss	

secession[;]	.	.	.	no	.	.	.	official	vote	may	be	taken	at	the	public	hearing.”).	

	     [¶9]	 	 Richard	 Cayer	 attended	 a	 regularly	 scheduled	 meeting	 of	 the	

Board	on	August	6,	2013,	and	again	described	the	reasons	why	he	and	his	wife	

sought	to	secede.		At	that	meeting,	the	Board	voted	unanimously	that	it	did	not	

support	the	Cayers’	petition,	and	advised	Richard	Cayer	that,	pursuant	to	the	

newly	 enacted	 section	 2171-C-1,	 he	 would	 need	 to	 obtain	 approval	 from	 the	

Legislature	 before	 the	 Town	 could	 hold	 an	 advisory	 referendum	 on	 the	

petition	pursuant	to	section	2171-D.		

      [¶10]	 	 On	 November	5,	 2013,	 the	 Cayers	 again	 appeared	 before	 the	

Board	 and	 argued	 that	 the	 procedures	 stated	 in	 the	 repealed	 version	 of	 the	

secession	 statute,	 requiring	 that	 the	 Town	 hold	 an	 advisory	 referendum	

within	 120	 days	 after	 the	 July	 30,	 2013,	 hearing,	 should	 apply.	 	 The	 Board	

voted	 unanimously	 that	 it	 would	 not	 proceed	 to	 schedule	 an	 advisory	

referendum	on	the	petition	to	secede,	and	that	it	was	a	“closed	matter”	as	of	

that	November	meeting	date.		The	Town	took	no	further	formal	action	on	the	

Cayers’	petition	after	the	November	5,	2013,	vote.	
6	

	     [¶11]	 	 On	 February	 5,	 2014,	 the	 Cayers	 filed	 a	 complaint	 against	 the	

Town,	pursuant	to	M.R.	Civ.	P.	80B,	seeking	review	of	the	Town’s	denial	of	the	

Cayers’	 request	 to	 schedule	 an	 advisory	 referendum.	 	 The	 complaint	 also	

sought,	in	Count	II,	a	declaratory	judgment	that	the	repealed	statute	applied	to	

the	Cayers’	petition	pursuant	to	M.R.	Civ.	P.	57	and	14	M.R.S.	§	5953	(2015);	in	

Count	III,	damages	and	attorney	fees,	pursuant	to	42	U.S.C.	§§	1983	and	1988	

(2016),	for	alleged	violations	of	the	Cayers’	First	Amendment	and	due	process	

rights;	and,	in	Count	IV,	a	writ	of	mandamus	compelling	the	Town	to	take	all	

actions	mandated	by	the	repealed	version	of	the	secession	statute.	

	     [¶12]	 	 After	 some	 preliminary	 proceedings	 to	 develop	 a	 process	 to	

address	 the	 independent	 claims	 pursuant	 to	 M.R.	 Civ.	 P.	 80B(i),	 the	 Town	

moved	 for	 summary	 judgment,	 M.R.	 Civ.	 P.	 56,	 on	 all	 counts	 of	 the	 Cayers’	

complaint.	 	 As	 part	 of	 the	 statement	 of	 material	 facts,	 M.R.	 Civ.	 P.	 56(h),	

submitted	 with	 its	 motion,	 the	 Town	 filed	 an	 affidavit	 of	 the	 Town	 Manager	

providing	what	purported	to	be	the	administrative	record	of	the	proceedings.		

The	 Cayers	 objected	 to	 the	 Town	 Manager’s	 affidavit	 and,	 pursuant	 to	 M.R.	

Civ.	P.	 80B(e)(1),	 filed	 their	 own	 version	 of	 the	 record	 of	 the	 proceedings	

before	 the	 Town	 as	 part	 of	 their	 opposition	 to	 the	 motion	 for	 summary	

judgment.	 	 Resolution	 of	 disputes	 about	 the	 administrative	 record	 is	 not	
                                                                                                     7	

important	for	this	appeal	because	there	is	no	dispute	about	any	material	fact	

relevant	to	a	decision	on	the	motion	for	summary	judgment.	

        [¶13]	 	 On	 July	 23,	 2015,	 the	 trial	 court,	 in	 an	 opinion	 that	 thoroughly	

examined	the	facts	and	the	legal	issues,	entered	a	summary	judgment	in	favor	

of	the	Town	and,	finding	the	appeal	untimely,	dismissed	the	Cayers’	Rule	80B	

appeal	and	the	independent	claims,	which	the	court	found	either	unsupported	

in	the	law	or	subject	to	the	thirty	days	after	notice	of	action	filing	time	limits	

set	 in	 Rule	 80B(b).	 	 In	 its	 opinion,	 the	 court	 determined	 that	 the	 repealed	

mandate	 of	 former	 30-A	 M.R.S.	 §	 2171-D	 (2012)	 to	 hold	 an	 advisory	

referendum	 within	 120	 days	 of	 the	 public	 hearing	 applied	 to	 the	 Cayers’	

petition,	but	found	the	Cayers’	challenge	to	the	Town’s	explicit	refusal	to	take	

any	action	untimely.2		The	Cayers	timely	appealed	the	trial	court’s	judgment.	

                                      II.		LEGAL	ANALYSIS	

A.		    Application	of	the	Thirty-day	Filing	Limit	in	Rule	80B	

	       [¶14]		The	Cayers	acknowledge,	as	they	must,	that	their	action	was	not	

filed	 “within	 30	 days	 after	 notice	 of	 any	 action	 or	 refusal	 to	 act	 of	 which	

    2		We	will	assume	for	purposes	of	this	opinion	that	the	trial	court,	citing	1	M.R.S.	§	302	(2015),	

properly	determined	that	the	repealed	provisions	of	law	continued	to	apply	to	the	Cayers’	petition.		
However,	we	note	that	the	primary	impact	of	the	new	legislation	was	for	the	Legislature	to	add	a	
new	prerequisite	for	ultimate	legislative	approval	of	a	secession	petition.		Because	efforts	to	obtain	
legislative	approval	of	the	Cayers’	petition	had	not	yet	been	initiated,	and	were	not	pending	before	
the	Legislature	when	the	new	law	was	enacted,	section	302	may	not	have	barred	the	application	of	
the	new	legislative	preapproval	requirement	to	the	Cayers’	petition.	
8	

review	is	sought”	as	required	by	Rule	80B(b).		But	they	argue	that	the	Town’s	

actions	 here	 constituted	 a	 “failure	 to	 act”	 rather	 than	 a	 “refusal	 to	 act,”	

entitling	them	to	file	their	action	any	time	“within	six	months	after	expiration	

of	 the	 time	 in	 which	 action	 should	 reasonably	 have	 occurred.”	 	 M.R.	 Civ.	 P.	

80B(b).	

	     [¶15]		The	Town	expressly	refused	to	act	on	the	Cayers’	petition	twice:	

first,	at	the	August	6,	2013,	meeting,	when	the	Board	voted	unanimously	that	

it	 did	 not	 support	 the	 Cayers’	 petition	 and	 stated	 that	 the	 Town	 would	 not	

take	further	action	on	the	petition	absent	Legislative	approval;	and	second,	at	

the	 November	 5,	 2013,	 meeting	 when	 the	 Board	 voted	 unanimously	 that	 it	

would	 not	 schedule	 an	 advisory	 referendum	 on	 the	 petition	 to	 secede	 under	

the	repealed	version	of	the	statute,	and	determined	that	the	secession	request	

was	a	“closed	matter.”		The	thirty-day	appeal	period	from	the	Town’s	“refusal	

to	act”	expired	no	later	than	December	5,	2013,	two	months	before	the	action	

was	filed.	

B.	   Exclusivity	and	the	Federal	Civil	Rights	Claim	

      [¶16]	 	 “[W]hen	 direct	 review	 is	 available	 pursuant	 to	 Rule	 80B,	 it	

provides	 the	 exclusive	 process	 for	 judicial	 review	 unless	 it	 is	 inadequate.”		

Gorham	v.	Androscoggin	Cty.,	2011	ME	63,	¶	22,	21	A.3d	115.		“Resort	to	the	
                                                                                         9	

courts	 by	 alternate	 routes	 will	 not	 be	 tolerated,	 subject	 only	 to	 an	 exception	

for	 those	 circumstances	 in	 which	 the	 course	 of	 ‘direct	 appeal’	 review	 by	 a	

court	is	inadequate	and	court	action	restricting	a	party	to	[Rule	80B	review]	

will	cause	that	party	irreparable	injury.”		Colby	v.	York	Cty.	Comm’rs,	442	A.2d	

544,	 547	 (Me.	 1982).	 	 Review	 pursuant	 to	 Rule	 80B	 is	 inadequate	 when	 an	

alleged	deprivation	of	civil	rights	occurs	before,	and	not	as	a	part	of,	the	action	

or	inaction	for	which	a	plaintiff	seeks	review.		See	Gorham,	2011	ME	63,	¶	25,	

21	A.3d	115.			

      [¶17]		Here,	the	Cayers	sought	a	declaratory	judgment	that	the	repealed	

secession	statute	applied	to	their	petition,	and	that	the	Town’s	failure	to	apply	

that	statute	violated	their	due	process	rights.		The	Town’s	determination	that	

the	amended	statute	governed	the	petition	was	a	part	of	the	process	by	which	

the	 Town	 decided	 not	 to	 hold	 a	 referendum	 on	 the	 Cayers’	 petition	 for	

secession.		From	that	decision-making	process,	the	Cayers	had	available	Rule	

80B	 review	 to	 correct	 any	 process	 errors.	 	 Consequently,	 Rule	 80B	 review	

provided	all	the	process	the	Cayers	were	due,	had	they	timely	exercised	their	

right	of	appeal.	

      [¶18]		The	Cayers	also	argue	that	genuine	issues	of	material	fact	exist	as	

to	 their	 section	 1983	 claim,	 alleging	 deprivations	 of	 due	 process	 and	 First	
10	

Amendment	 rights.	 	 The	 due	 process	 issue	 is	 addressed	 above.	 	 The	 First	

Amendment	claim	apparently	arises	from	some	alleged	impropriety	in	Town	

officials’	speaking	with	a	legislator	and	the	Maine	Municipal	Association	about	

perceived	uncertainties	in	application	of	the	repealed	statutes.			

      [¶19]		Nothing	precludes	municipal	officials	from	exercising	their	First	

Amendment	 rights	 to	 speak	 with	 legislators	 or	 the	 Maine	 Municipal	

Association	 about	 concerns	 in	 application	 of	 statutes	 the	 municipal	 officials	

must	 administer.	 	 In	 fact,	 we	 have	 on	 occasion	 urged	 municipal	 officials	 to	

engage	 in	 such	 conversations	 to	 improve	 operation	 of	 State	 laws	 and	

municipal	 ordinances.	 	 See	 Bryant	 v.	 Town	 of	 Camden,	 2016	 ME	 27,	 ¶	 22,	

132	A.3d	1183	(“We	again	encourage	Maine’s	cities	and	towns,	perhaps	with	

the	 assistance	 of	 the	 Maine	 Municipal	 Association,	 to	 review	 the	 myriad	

provisions	 in	 local	 ordinances	 addressing	 finality	 and	 appealability.	 The	

creation	 of	 standardized,	 understandable,	 and	 comprehensive	 rules	 for	 the	

provision	 of	 appellate	 review	 could	 substantially	 diminish	 the	 problems	 of	

cost	 and	 delay	 created	 by	 the	 language	 of	 the	 municipalities’	 disparate	

ordinances.”);	Witham	Family	Ltd.	P’ship	v.	Town	of	Bar	Harbor,	2015	ME	12,	

¶	5	n.2,	110	A.3d	642	(“Parties	affected	by	municipal	decision-making	would	

benefit	from	efforts	by	the	Legislature,	or	individual	municipalities,	to	specify	
                                                                                         11	

how	 and	 when	 to	 appeal	 from	 municipal	 decisions”	 consistent	 with	 the	

requirement	that	a	decision	brought	to	a	court	for	review	must	be	final.).	

       [¶20]	 	 Municipal	 officials	 speaking	 with	 legislators	 or	 others	 about	

clarifications	 or	 improvements	 in	 laws	 they	 are	 administering	 do	 not	 violate	

42	U.S.C.	§	1983	or	any	other	civil	rights	law.	

       [¶21]	 	 While	 municipal	 officials	 and	 municipalities	 may	 be	 subject	 to	

civil	actions	for	local	ordinances	that	violate	individuals’	civil	rights,	municipal	

officials	 speaking	 to	 legislators	 about	 clarifications	 or	 improvements	 in	state	

law	do	not	render	the	municipality	civilly	liable	for	laws	the	Legislature	may	

ultimately	enact.		Only	the	State	and	the	Legislature	are	responsible	for	laws	

the	Legislature	enacts.			

       [¶22]		The	late	Justice	Antonin	Scalia,	concurring	in	an	opinion	that	had	

quoted,	as	legislative	history,	a	House	Committee	Report	that	had	“indicate[d]	

concern	with	abusive	practices	undertaken	by	attorneys,”	responded:		

      Perhaps,	 but	 only	 the	 concern	 of	 the	 author	 of	 the	 Report.	 	 Such	
      statements	 tell	 us	 nothing	 about	 what	 the	 statute	 means,	 since	
      (1)	we	do	not	know	that	the	members	of	the	Committee	read	the	
      Report,	(2)	it	is	almost	certain	that	they	did	not	vote	on	the	Report	
      (that	is	not	the	practice),	and	(3)	even	if	they	did	read	and	vote	on	
      it,	they	were	not,	after	all,	those	who	made	this	law.	
      	
Milavetz,	 Gallop	 &	 Milavetz,	 P.A.	 v.	 United	 States,	 559	 U.S.	 229,	 253	 (2010)	

(Scalia,	 J.,	 concurring).	 	 The	 Town	 officials	 here,	 and	 the	 individual	 legislator	
12	

the	 Town	 officials	 may	 have	 spoken	 with,	 are	 not	 the	 ones	 “who	 made	 this	

law,”	and	the	Cayers	cannot	hold	the	Town	legally	liable	for	the	Legislature’s	

making	the	law.		

          [¶23]		The	Town’s	actions	provide	no	basis	for	a	civil	rights	claim	or	a	

declaratory	judgment	action.	

C.	       The	Mandamus	Claim	

	         [¶24]		The	Cayers	seek	to	avoid	the	filing	limits	imposed	by	Rule	80B(b)	

by	 bringing	 a	 separate	 claim	 for	 a	 writ	 of	 mandamus.	 	 When	 originally	

adopted	in	1959,	and	subject	to	a	few	statutory	exceptions,	Rule	80B	replaced	

the	old	extraordinary	writs	such	as	certiorari	and	mandamus	and	became	the	

exclusive	 means	 for	 review	 of	 State	 and	 local	 government	 administrative	

actions.3	 	 See	 M.R.	 Civ.	 P.	 80B,	 Advisory	 Committee’s	 Note	 to	 1967	 amend.;	

First	Mfrs.	Nat’l	Bank	v.	Johnson,	161	Me.	369,	375,	212	A.2d	840,	843	(1965).			

	         [¶25]		An	action	for	a	writ	of	mandamus	provides	no	alternative	cause	

of	 action.	 	 Rule	 80B	 is	 the	 exclusive	 means	 to	 challenge	 a	 municipal	

administrative	decision	in	a	civil	action.	




      3		When	originally	adopted	in	1959,	Rule	80B	applied	to	judicial	review	of	both	State	and	local	

administrative	decision-making.		That	remained	the	case	until	the	1983	adoption	of	M.R.	Civ.	P.	80C	
governing	judicial	review	of	State	administrative	decision-making.			
                                                                               13	

	        The	entry	is:	

	        	        	         Judgment	affirmed.	

	    	     	      	       	     	
	
On	the	briefs:	
	
     Luke	 M.	 Rossignol,	 Esq.,	 Bemis	 &	 Rossignol,	 LLC,	 Presque	 Isle,	 for	
     appellants	Richard	and	Ann	Cayer	
     	
     John	J.	Wall,	III,	Esq.,	and	Matthew	K.	Libby,	Esq.,	Monaghan	Leahy,	LLP,	
     Portland,	for	appellee	Town	of	Madawaska	
	
	
	
Aroostook	County	Superior	Court	docket	number	AP-2014-2	
FOR	CLERK	REFERENCE	ONLY