STATE OF MAINE SUPERIOR COURT CIVIL ACTION

CUMBERLAND, ss Location: Cumberland County

DOCKET NUMBER: CV-24-194

MARC A. LESPERANCE )
Plaintiff )
)
v. ) COMPLAINT SEEKING INJUNCTIVE RELIEF
)
)
CITY OF PORTLAND, MAINE )
Defendant

COMPLAINT – (jury trial not requested)

The Plaintiff, Marc Lesperance, by way of complaint against the Defendant, the City of Portland,

makes allegations and requests for injunctive relief as follows:

PRELIMINARY STATEMENT

1. On 10/5/2020 the Defendant’s Council passed an ordinance amendment (Ch. 5, Article II,

Division I, §5-15.1 (Subpart e, 1 - Order 45-20/21) that restricted off-leash dogs in Mayor Baxter

Woods (MBW). The Plaintiff alleges that this municipal ordinance was enacted in violation of

Maine State Charitable Trust Law, Title 14, Part 7, Ch. 711, §6051.101. As such the Plaintiff

requests injunctive relief from the Court that strikes all language in the applicable Municipal

ordinance that restricts off-leash dog walking in MBW.

2. The Plaintiff further alleges that sections of this same municipal ordinance, Ch. 5, Article II,

Division I, §5-15.1, frustrate the defined purpose of the Maine State Animal Welfare Act, Title 7,

Part 9, Ch. 719, §3907.6. Plaintiff also requests the Court’s relief from the Defendant’s enforcement

activities alleging violations of the Ch. 5-17 – Running at large prohibited ordinance that

1
See existing case law in Fitzgerald v. Baxter State Park Authority et al., 385 A. 2d 189 (1978), on
application of this legal argument as referenced below

1
does not comply with applicable Maine State Law. In addition, there is precedent in Maine case

history against leash restrictions, as the Plaintiff will cite below, and the well-established, long-

standing and well-defined Maine State Laws that preempt portions of this municipal ordinance. The

Plaintiff therefore seeks relief from the Court to strike all applicable references to “at large dog”

definitions from the City Code that do not comply with the accepted Maine State Law.

3. The Plaintiff alleges that the Defendant’s use of “Parks Department Constables” for

enforcement activities of the municipal ordinances restricting off-leash dog walking, and

specifically its 5-17 “running at large prohibited” ordinance, violate several sections of Maine

State Law, to include the Animal Welfare Act, Title 7, Part 9, Ch. 719, §3947; Title 30-A, Part 2,

Subpart 4, Ch. 141, §3009-A; Title 17-A, Part 1, Ch. 1, §17, and in general virtually the entirety of

Title 30-A, Part 2, Subpart 2, Ch. 123, §2671, §2672 and §2673. These established, long standing,

well-defined Maine State Laws clearly show, as other local municipalities2 and the Defendant’s own

ordinances will attest, that unqualified, unauthorized personnel that the Defendant consistently uses

should not be enforcing the ordinances in question. Plaintiff therefore seeks relief from the Court

barring the Defendant from using non-qualified Parks Department “Constables” to enforce alleged

“running at large prohibited” violations.

4. Furthermore, the Defendant’s own municipal ordinances (Ch.5, Art. II, Div. 1, §5-22, Ch. 5,

Art. II, Div. III, §5-73 and Ch.20, Sec. 20-1, Articles I, §20.19 and 20.19.5, as well as Ch. 20, Sec.

20-1, Art. III, §20.32) demonstrate that the Parks Department “Constables” they are using to enforce

the at large dog violations in question are not qualified to serve as Maine State Constables under

Maine law as well as its own municipal ordinances, and not authorized to issue the Uniform

2
Other local Towns Municipal Codes utilize only true Law Enforcement Officers and/or sanctioned
Animal Control Officers in the enforcement of its animal control ordinances.

2
Summons and Complaint (USAC) citations for alleged 5-17 “running at large prohibited ”

violations. Plaintiff therefore seeks relief from the Court that bars the Defendant from using

unqualified Parks Department Constables to enforce alleged “at large dog” violations in a manner

that does not comply with the Defendant’s own City Code.

5. Lastly – the Defendant’s Ordinance is confusing, silent as to how “offenses” are to be

tracked and includes no context, timeframes, or any other measures for how the alleged “running at

large prohibited” violations are monitored, who is counting/tallying occurrences, or how alleged

offenses will be reported to the State or prosecuted in the Courts. With the Defendant’s ordinance

virtually devoid of any specifics on how violations are measured, citizens such as the Plaintiff have

no way of knowing if alleged “at large” violations are accumulated over one’s lifetime, or over days,

months or years as in other local municipal ordinances3. Since the Defendant’s ordinance has no

measures, it should track violations in a manner that is at least consistent with Maine State Animal

Welfare Act, Title 7 MRS, Part 9, Subpart 4, Chapter 741, §4041.3 – Animal Trespass, versus the

unknown, unknowable and random ways exemplified in the ordinance. Where the Defendant’s

Ordinance offers no such measures and citizens can make no determinations on what standards the

Defendant will apply to alleged violations - Plaintiff therefore requests injunctive relief from the

Court to bar the Defendant from issuing any “running at large prohibited” violations pending the

municipalities effective establishment of meaningful standard in its ordinances in conformity with

the Maine Rules of Civil Procedure and Maine State laws.

3
South Portland, Cape Elizabeth and other local ordinances assign tracking responsibilities for
“at large” violations to the Animal Control Officer and provide for measures over periods of time.

3
 PARTIES

6. The Plaintiff is Marc A. Lesperance of 103 Candlewyck Terrace, Portland, Maine 04102,

appearing pro se who submits this complaint.

7. The Defendant is the City of Portland, Maine, 389 Congress Street, Room 208, Portland,

Maine 04101.

JURISDICTION AND VENUE

8. Plaintiff previously submitted a similar filing of this complaint to the Portland District Court

on 2/23/2021 (see POR-CV-21-132), which was dismissed without prejudice by order of the Court on

10/23/2023. The dismissal reasons were based on the District Court’s lack of jurisdiction over

complaints pertaining to municipal ordinances (4 M.R.S., §105.1 and 105.2) and cases regarding

discretionary trusts (18-B M.R.S., §203.1). As the District Court did not address the matters of law

in the original complaint, Plaintiff is now filing this new and expanded complaint seeking injunctive

relief from the Superior Court of Cumberland County regarding the Defendant’s municipal

ordinance Chapter 5 restrictions on walking with dogs off-leash in MBW, as well as other forms of

relief as detailed in the complaint, and previously argued in City of Portland v. Marc A. Lesperance,

CUM-VI-23-84 (currently under appeal in the Law Court as case CUM-24-94).

STANDING & HARM

9. Plaintiff contends he has standing in this complaint, as a resident and taxpayer of Portland

since 1990, and a regular/daily and often twice-daily visitor of MBW since the mid-1990’s. Similar

to the Court’s findings in Fitzgerald, where Plaintiff’s usage and enjoyment of Baxter State Park

was adversely impacted by the Baxter State Park Authorities logging operation at issue, my

4
enjoyment of MBW and visits have been even more adversely impacted by the City’s ban on off-

leash dog-walking and the ever-present threat of prosecution by City Staff - a constant anxiety and

threat. The Plaintiff has been harmed by the two dog “Running at large” summons he has received

from Parks Department Constables for walking off-leash in MBW, though his dog was under his

immediate, personal, voice control at all times. To date the Plaintiff has incurred over $500 in fines

for the two summonses, plus Court costs and fees, as well as a written threat from the City

Prosecutor of pending Criminal Trespass charges should the Plaintiff receive a third summons for an

alleged “running at large prohibited” violation. These threatened criminal charges are punishable by

up to $1,000 in fines and six months in prison. Plaintiff displays significant harm and personal

injury related to the City’s Ordinance banning off-leash dog-walking in MBW, and as was granted

to the parties in Fitzgerald, Plaintiff shows sufficient standing to file this complaint.

MATERIAL FACTS IN THIS CASE

10. Trust Violation - The Plaintiff files this complaint seeking relief from the Defendant’s

Municipal Ordinance, Ch. 5, Article II, Division I, § 5-15.1 (Subpart e, 1) as enacted by Portland,

Maine City Council on 10/5/2020 (Order 45-20/21 Amendment to Chapter 5 Re: Restricting Off-

leash Dogs in Baxter Woods). This ordinance amendment imposed a ban on off-leash dog walking

in Mayor Baxter Woods that Plaintiff contends violates Maine State Law, Title 14, Part 7, Ch. 711 –

Equity Proceedings, §6051.10 on properties held in Trust. Plaintiff cites from Fitzgerald, where:

“Citizens and users of Baxter State Park brought class action to restrain the Baxter State Park
Authority (BSPA) from carrying out a program for cleaning and restoring certain areas of timber
blowdown. …The Supreme Judicial Court held that…substantial evidence supported the conclusion
that the plan adopted by the Park Authority…exceeded what was permissible under the …trust…”
(emphasis added). Fitzgerald v. Baxter State Park Authority et al., 385 A. 2d 189 (1978), p.1, ¶ 1.

Plaintiff contends that the Defendant’s management practices, and municipal ordinance exceeded

what is permissible under the trust for the MBW property. Just as the Baxter State Park Authority

5
was found to be out of compliance with Trust Law in Fitzgerald, the Defendant’s action here did not

consider Gov. Baxter’s intent regarding off-leash dogs when it passed the Ordinance banning off-

leash dog-walking in Mayor Baxter Woods (MBW). Similar to Fitzgerald, Plaintiff here seeks the

Court’s review of Governor Baxter’s intent for Mayor Baxter Woods, and consideration of the

Governor’s writings on the matter, that the Defendant has neglected to do.

10-1. Gov. Baxter’s original intent. In his official plan for Baxter Woods (the Property Deed 4

dated 4/13/1946) Gov. Baxter used these words to describe the place he named Mayor Baxter

Woods: Woods, Municipal Forest, Park, Bird Sanctuary. At the heart of this complaint are what

those words meant to Gov. Baxter in 1946, and how they may guide us today. Taken individually it

may be difficult to understand how these Woods could be a “bird sanctuary”, when he dictated the

space “shall forever be retained and used by the City in trust for the benefit of the people of

Portland as a “Municipal Forest and Park and for public recreation and educational purposes”.

Today a bird sanctuary is not a place that welcomes public recreation, but in 1946 a “bird sanctuary”

simply meant a place where birds were free to thrive, away from hunters, when local hunting laws

didn’t exist or weren’t enforced. Baxter Woods, as Gov. Baxter further dictated in the Deed was

designed for the “sole use of pedestrians”, but there’s no mention of bicyclists or skiers in the Deed,

and nowadays people frequently bicycle and ski in MBW. In 1946 the Boy Scouts, Girl Scouts and

Camp Fire Girls even had sanctioned campouts there. Recreating was the intent, to enjoy nature.

10-2. Gov. Baxter’s intent on dogs. While there is no mention in the Deed of whether he

considered people’s dogs to be “pedestrians” or if they would be allowed off-leash – it could be this

was omitted simply because in 1946 there were no leash laws in Portland or the entire State of

Maine! At the time Gov. Baxter gifted MBW to the people of Portland dogs accompanied their

4
The Mayor Baxter Woods Deed has been widely shared by the Defendant and Plaintiff in the lead
up to and after the Ordinance was passed and makes no mention of dogs or leash laws.

6
owners all over the City and there were no restrictions to dogs being off leash anywhere. We know

Gov. Baxter would have allowed off leash dogs in MBW, as he was one of Maine’s earliest and

most fervent animal rights activists. Over the course of his life, he owned and bred many Irish

Setters, all that he considered family. He was so passionate about his dogs that while serving as

Governor of Maine in 1923 he wrote a short book 5 in their honor. Excerpts in the book are

dedicated to stories of his beloved dogs who were always off-leash. In one chapter titled “Deke

went to college” he recounted his dog at Bowdoin College where:

“Deke was a regular attendant at the classrooms…and sat beside me on the benches. Often he
would bound into chapel during services, rush up to the platform, speak to the President or
Professor who was presiding and then lie down beside the pulpit…I do not recall that the college
authorities ever objected to the dog and I shall always remember the friendly and tolerant spirit
they displayed”. Percival Baxter, 1923, My Irish Setter Dogs, p.10.

In another section of the book title “A Serious Accident” Baxter described a visit to Portland, where

one his dogs was hit by a trolley car and had a paw cut off. Baxter took the injured dog to a

Veterinarian who reluctantly treated the wounded pet, with Gov. Baxter noting:

“I insisted that I wanted the dog treated just as though he were a human being”. My Irish Setter
Dogs, p.11.

What’s clearly evident in his writings is that Gov, Baxter had a lifelong belief that dogs had rights,

and that one right in particular was that they be free dogs, off-leash!

10-3. Lastly on the Governor’s intent - as Gov. Baxter notes in the Deed, in the decades

preceding 1946 the property was commonly known to locals as “Baxter Bird Sanctuary”, but going

forward as a Municipal Forest, he wanted the property to forever be known as “Mayor Baxter

Woods”! In his writings Gov. Baxter clearly considered the “woods” to be a special place where

dogs were welcome, and welcome to be free, off-leash. In the next section of his book “Garry at

home at the Capitol”, Baxter says the following:

5
A free copy of Gov. Baxter’s book “My Irish Setter Dogs” from the Library of Congress is available
here: https://archive.org/details/myirishsetterdog00baxt/mode/2up
7
 “Garry, nine years old, is my constant companion in the Governor’s House, and in my office at the
State Capitol. He goes back and forth with me between Portland and Augusta…my eight months
old pup Eirie is a trifle too impetuous to remain in the Executive Chamber, but everyday Mr.
Chadbourne my Secretary and myself, with the two dogs, walk together through the woods and
over the hills back of the State House.” My Irish Setter Dogs p. 11.

Gov. Baxter would not only have allowed off-leash dogs in MBW – he likely envisioned the space

with dogs walking off-leash in mind. There would be no reason to state outright in the Deed that

dogs should be allowed off-leash in MBW because there were no leash laws during his lifetime and

absolutely none in 1946 when he gifted MBW to the people of Portland. It is evident in his writing

that Gov. Baxter found great joy in walking with his dogs freely and safely off-leash, and this

especially included in his mind and writings properties such as Mayor Baxter Woods.

10-4. Continuing in support of the Trust violation. In this complaint the Plaintiff seeks relief

from the defendant’s rules imposed by the language in the applicable section of the Ordinance (Ch.

5, Article II, Section 5-15.1 (Subpart e, 1) that restricts off-leash dog walking activity in Mayor

Baxter Woods. Again, citing the Fitzgerald case the Maine Supreme Judicial Court decision noted

that the Defendant in that case:

“…was performing a trustee function as well as a governmental function, and …must be

held accountable to that more stringent standard” Fitzgerald, p.11

As the Court explained regarding the “more stringent standard”, Trustees, such as the Baxter State

Park Authority (BSPA) or the Defendant in this case, should have considered Gov. Baxter’s intent,

beyond the property Deed(s) when making management decisions regarding the properties in

question. In Fitzgerald the Plaintiff successfully argued that the Defendant failed to meet this more

stringent standard in how it acted as the Trustee of BSP, as in this case I argue the Defendant has

not met the more stringent standard in how it has enacted the ban on off-leash dog walking in

MBW. Because the Defendant did not consider Gov. Baxter’s intent about dogs and especially off-

leash dogs in its passage of the MBW leash law - the Plaintiff seeks injunctive relief from the Court

to rescind the bans on off-leash dog walking in MBW that are written into the City Ordinance, and
8
relief from the Court to halt the Defendant’s enforcement of its leash law in MBW that are not “at

large” violations under state law.

10-5. Finally on the Trust violation. The clearest evidence that the Defendant did not consider

Gov. Baxter’s intent regarding off-leash dogs in its consideration and passage of the off-leash bans

for this Trust property is explicitly stated in an advisory memo6 written by Defendant’s Counsel

regarding the amended ordinance language as guidance for the City Council Sustainability

Committee. Publicly shared in early February 2020. In the memo the author, City Associate

Corporation Counsel Jennifer Thompson (later Acting Lead Corporation Counsel for the City, and

now no longer employed by the Defendant) advised Councilors on how they should decide on the

MBW leash law by noting:

“Given the City’s broad discretion under its police powers, the only restriction other than the City
Code that might limit the Council’s regulatory authority over Baxter Woods is the language in the
deed conveying the land to the City”. (emphasis added) Memorandum, Jennifer Thompson to
Sally Deluca (Director, Department of Parks, Recreation & Facilities) February 10, 2020, p.1,¶3

In the 2020 memorandum Ms. Thompson further advised Councilors that the Defendant:

“…is free to exercise its broad discretion to decide, as a policy matter, whether and to what extent
to apply its leash laws in Baxter Woods, just as it does in other City Parks.”. (emphasis added).
Thompson Memorandum, p.2, ¶ 4.

From the Defendant’s clearly stated perspective, it can enact and police any rules it desires in

Mayor Baxter Woods, just as it does for any City property, if such activity is not precluded in

the property deed. Plaintiff and Defendant can agree there is no mention of dogs or leash laws in

the Baxter Woods deed. Plaintiff though contends the Deed is not the final consideration of how

the Defendant should have imposed this Ordinance change in MBW, a trust property. In

complete disregard of “the more stringent standard”, nowhere in the memo does Ms. Thompson

identify State Law as being applicable to the Defendant’s consideration in how it should decide

6
Defendant’s Legal memo (dated 2/10/2020) was initially included in the Council Sustainability Committee
2/26/2020 meeting packet, and again in the 10/5/2020 Ordinance Enactment vote packet for public access.
9
on the Ordinance changes, and at no time in its deliberations did Defendant’s City Councilors

consider Gov. Baxter’s intent on dogs and in particular humans and their off-leash dogs in its

passage of the leash law Ordinance changes that banned and severely restricted off-leash dog

walking in MBW. Plaintiff contends this is a clear violation of the “more stringent standard” put

forth in Fitzgerald and as such the Plaintiff seeks relief from the Court that removes the Defendants

bans/restrictions on off-leash dog walking in MBW in the applicable ordinances.

11. The Ordinance frustrates the defined purpose of Maine State Animal Welfare Law.

The Plaintiff seeks relief from the Defendant’s enforcement of its “at large” dog violations per

Defendant’s City Ordinance Sec. 5-17. Running at large prohibited, that frustrates the purpose of

applicable State Law which defines the term “at large” as follows:

“At large” means off the premises of the owner and not under the control of any person
whose personal presence and attention would reasonably control the conduct of the
animal.” (emphasis added) MRS Title 7, Part 9, Chapter 717, §3907.6

11-1. The Defendant’s definition of a dog “at large” is confusing, ever-changing, and in the case

of this ordinance’s ban on off-leash dog walking, conflicts with the State’s definition, as the

Defendant’s ordinance does not take into account the “…under the control of any person…”

provision of §3907.6. Plaintiff seeks relief of the Defendant’s enforcement of the alleged violations

of municipal ordinance 5-17 “at large dog”, as it frustrates the purpose of Maine State Law Title 7,

Ch. 717, §3907.6. See MRS Title 30-A, Part 2, Subpart 4, Ch. 141, §3001.3 Standard of

Preemption.

11-2. Likewise – there is no statutory provision in Maine Law for a dog at large violation as the

City is enforcing, and no mention of leashes or being punished for having a dog off-leash anywhere

in the Maine Statutes. The Defendant may argue under Home Rule that it is just enforcing a stricter

ordinance than is provided for under State Law, but Plaintiff notes the Defendant’s stricter

10
ordinance was already found in its “voice control” ordinance in Chapter 5, §5-15.1 (e), where a dog

is NOT considered “at large” if…

“…the owner is physically present within fifty (50) feet of the dog at all times has a leash and the
dog under voice control. Voice control shall mean that the dog returns immediately to and remains
by the side of the owner in response to the owner’s verbal command…” Municipal Ordinance,
Ch. 5, Art. I, §5-15.1 (e).

The Defendant’s municipal ordinance that requires leashes and enforces the lack of a leash under

the State’s “at large” law, rather than being a stricter ordinance, creates new law that frustrates the

purpose of established and well-defined Maine “at large” law – per §3907.6 and §3911. Not only

does Maine Law preempt this ordinance though as noted above – but the Maine State Animal

Welfare Act under §3950 disallows the home rule argument, as is obvious here:

“Each municipality is empowered to adopt or retain more stringent ordinances, laws or

regulations dealing with the subject matter of this chapter…Any less restrictive municipal
ordinances, laws or regulations are invalid and of no force and effect.” (emphasis added) Maine
Animal Welfare Act, MRS Title 7. Part 9, Ch. 725, §3950.

The Animal Welfare Act’s treatment of home rule limits municipalities to only creating stricter

ordinances for the subject matter in Ch. 725 – Municipal Duties, which include the following topics:

- §3941 – Posting of laws

- §3942 – Issuance of dog licenses
- §3943 – Municipal Warrants (REPEALED)
- §3944 – Issuance of kennel licenses
- §3945 – Use of license fees and court fines retained by municipalities
- §3946 – Dog recorders in unorganized territories
- §3947 – Animal control officers
- §3948 – Animal control
- §3949 – Animal shelter designation
- §3950 – Local regulations
- §3950-A – Official refusal or neglect of duty
- §3950-B – Euthanasia for severely sick or severely injured livestock
- §3950-C – Immunity from civil liability

The “at large” definition (Ch.717, §3907.6) and violations (Ch. 719, §3911) of the Maine Animal

Welfare Act are not included in Ch. 725. The only reference to “at large” in Ch. 725 is as one of the

listed responsibilities of the municipal Animal Control Officers (ACOs) in §3947. Redefining the

11
purpose of what “at large” means is clearly beyond the subject matter of Ch. 725, and therefore not

allowable as a stricter ordinance under the Animal Welfare Act or municipal home rule authority.

11-3. Lastly on the matter of leashes and leash laws, Plaintiff cites prior case law on the matter

that precluded a leash requirement from being enforced - see State v. Koplow, where the Court said:

“We note the leashing of dogs is not required by the terms of section 3455. That section only
requires that dogs off the premises of its owner be kept under his control “by means of personal
presence and attention that will reasonably control the conduct of such dog”. State v. Koplow,
Supreme Judicial Court of Maine, June 6, 1984, 476 A.2d, 1155 (Me. 1984).

While the law cited in this 1984 decision has since been replaced by the current Maine Animal

Welfare Act statute codified in MRS Title 7, Part 9, Sections §3900 - §4163, with new and revised

law – it is important to note that the definition of “at large” in the former §3455 is virtually the same

as the current §3911 and §3907.6 – with the exact same intent and purpose of the original. A dog

under the owner’s control, even when off-leash is NOT “at large”. The Defendant’s ordinance,

which Plaintiff counts has 22 distinct definitions of the term “at large” (5 of which apply to the

same activity in MBW),7 nevertheless ignores the one definition of “at large” (§3907.6). As such the

Defendant’s ordinance frustrates the purpose of the defined state law. Plaintiff therefore requests

relief from the Defendant’s “at large” dog leash rules in MBW, and relief from enforcement

activities going forward for similar alleged violations, and that future “at large” summons be limited

to only occurrences where the dogs are truly “…not under the control of any person…”.

12. Defendant’s use of unqualified “Constables” to enforce this Municipal Ordinance

violates Maine State Law. The Plaintiff also seeks relief from the Court from the Defendant’s

enforcement activities related to the MBW off-leash restrictions, per municipal ordinance, Ch. 5,

Article II, Section 5-17 - Running at large prohibited. Plaintiff contends the Defendant’s municipal

ordinance enforcement activities frustrate the purposes of applicable Maine Laws and are not

7
Plaintiff ordinance Ch. 5-15.1 “at large” definition tally sheet is available for review.

12
compliant with Maine Statutes as detailed below. The Plaintiff seeks relief from the Defendant’s

enforcement of alleged “at large” violations of the municipal ordinance, barring the Defendant from

using non-law-enforcement staff who are not qualified to issue summons to the District Court for

these alleged civil infractions, in direct violation of Maine Title 7, Part 9, Ch. 717, §3909

Enforcement of Maine Animal Welfare Act. The Defendant’s actions do not comply with what is

allowed under Maine law, which requires that municipalities and counties use members of an

“organized police department” (Title 30-A, MRS, Pt.2, Ch.141, §3009-A (Enforcement of Municipal

Ordinances), Sheriff’s or other law enforcement staff to enforce ordinances. Furthermore, as is

clearly derived in Title 30-A, MRS, Part 2, Ch. 123, §2673 (Constables); Title 29-A, Ch. 23, §2601

(Summons and Complaint section of the Motor Vehicles and Traffic Act) and Title 17-A, Ch. 1, §17

(the Enforcement of Civil Violations section of the Maine Criminal Code), only Law Enforcement

Officers (to include Special Police and indeed official Constables), Humane Agents, Sheriff’s

Deputies, Wardens or ACOs are authorized to issue USACs. Most importantly here though,

Constables under Maine State Law are further defined as follows in the Maine Animal Welfare Act:

“Constable. Constable means a law enforcement officer appointed by municipal officers pursuant
to law.” Title 7 MRS, Part 9, Ch. 717, §3907.12 (the Definitions Section of the Maine Animal
Welfare Act)

Law Enforcement Officers under Maine State Law are defined in this way:

“Law Enforcement Officer. Law enforcement officer means any person who by virtue of the
persons public employment, is vested by law with a duty to maintain public order, enforce any law
of this state establishing a civil violation, prosecute offenders or make arrests for crimes, whether
that duty extends to all crimes or is limited to specific crimes.” Title 7 MRS, Part 9, Ch. 717,
§3907.18 (the Definition Section of the Maine Animal Welfare Act)

The Constables employed by the Defendant are by Defendant’s own appointment orders8 not

allowed to make arrests and therefore are technically NOT law enforcement officers, and not

_____________________________________________________________________
8
Constables Annual Appointment Orders are publicly shared and limit appointees from “making
arrests”, “carrying a weapon”. See below for an example of a common Defendant Constables Order

13
authorized under Maine Law to issue USACs. The Plaintiff seeks relief barring the Defendant from

using unqualified staff to issue USACs in their enforcement of the leash rules in question.

Defendant’s from using unqualified staff to issue USACs in their enforcement of the leash rules in

question.

13. Defendant’s “Constables” are not authorized to issue USACs per the Defendant’s own

municipal ordinances. Plaintiff seeks relief that bars the Defendant from using Non-law-

enforcement Employees to enforce its MBW “at large” bans and possibly other alleged violations

elsewhere in the City, who are not authorized by the Defendant’s own Appointment Orders, and

applicable City Ordinance’s which are cited below.

13-1. The official orders the Defendant uses to appoint Constables have two citations that

specifically limit the authority of the Constables – namely that…

“Constables are not allowed … to make arrests or issue parking tickets…” Order 88-23/24
Appointing Constables for 2024, 12/18/2023.

As noted above, making arrests is one of the requirements of being a Constable under State Law, so

the fact that these Orders preclude the Defendant’s Constables from making arrests indicates the

Defendant is or perhaps was aware that these are not truly Law Enforcement Officers.

As for “parking tickets”, the Plaintiff learned from the City Prosecutor in 2021 (at a District Court

Hearing for his first alleged “at large” violation) that the Defendant, in its Orders refers to USACs

using the old jargon of “parking tickets”, the most common use of USACs by Defendant Staff. In

the Defendant’s parlance therefore - where these Constables cannot issue parking tickets means they

cannot issue USACs for at large dog violations, for which I have to date been twice summonsed.

13-2. The Defendant’s own municipal ordinances §5-22 and §5-73 support the Plaintiff’s

argument that the Defendant is or was aware of whom should be enforcing its ordinances, and who

14
should not. Municipal Ordinance §5-22 – Enforcement of “running at large” violations clearly

states:

“The provisions of this division may be enforced by any designated representative of the Chief of
Police or by the canine control officer. Ch.5, Article II, Division 1, Section 5.22.

As can be seen in the Appointment Orders (previously cited) and as is evident when asked directly

by the Plaintiff or other citizens who have encountered Constables, and a Constable who testified in

Court (see CUM-VI-23-84) freely admitting they do not report to or serve as a “designated

representative” of the Chief of Police or as an “Animal (sic Canine) Control Officer”. Conversely

the Defendant’s Municipal Ordinance §5-73 – Enforcement of the Canine Waste violation section

clearly allows Parks Constables to enforce these types of violations - stating:

“The provisions of this division may be enforced by any designated representative of the director of
parks and recreation or the chief of police, or by the canine control officer. Ch.5, Article II, Division
1II, Section 5.73.

Now the Defendant may argue it has an additional section of the City Code where Constables are

codified in the municipal ordinances. In particular – see §20-19.5 – Park and Cemetery Constables

with some powers that conflict with the appointment orders previously cited. From §20-19.5:

“Persons employed by the city to work in the city’s parks and cemeteries may be appointed as
constables with the power to enforce the parking and animal control laws applicable within the
parks and cemeteries. They shall be empowered to serve civil summons for such violations but
shall not have any of the powers of a special police officer as provided in sections 20-17 and 20-
18…” Municipal Ordinances, Ch. 20, Article II, §20-19.5

As can be seen Parks Constables can write “parking tickets” in this ordinance, last modified in 1996

– where in the current 2024 Constables Orders they cannot issue parking tickets. While this

ordinance does indicate Constables can serve a “civil summons” (or whatever that meant in 1996)

for violations of animal control laws – we know that is not true today under the Maine Animal

Welfare Act. But most telling in this ordinance is the stipulation that these Constables do not have

any of the powers of a special police officer. What are the special powers the Constables do not

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have? Foremost – special police have all the powers of a regular police officer and must train as if

they are a full-time police officer. Constables are not considered police officers or law enforcement

officers in any way per this ordinance, and there is no indication in the ordinances that Constables

or Special Police Officers serve as “designated representatives” of the Chief of Police. Although in

Ch. 20, Art. III, §20.32 – officers of the Reserve Police Unit do serve “under the control and

supervision of chief of police”, a notable designation not afforded Constables or Special Police in the

previous ordinance sections.

13-3. The Plaintiff seeks relief from the Defendants long time use of non-law-enforcement staff,

who by their own admission are not “designated representatives” of the Chief of Police for the

enforcement of municipal “running at large” and possibly other ordinances. Plaintiff contends this

frustrates the purpose of State law requiring qualified personnel from an organized police or

sheriff’s departments to enforce municipal ordinances and is a standing violation of the City’s own

code of ordinances. The ”Constables” in question here are not authorized to make arrests, and so by

definition are not law enforcement officers, and not allowed to issue the Uniform Summons and

Complaint (USAC) tickets for the violations alleged. Summons issued by these unauthorized

“Constables” represent an insufficient Commencement of Proceedings per the Maine Rules of Civil

Procedure, Rule 80H (b) (1), and clearly frustrate the purpose of Maine State Law Title 29-A, Ch.

23, Subchapter 6, §2601.6 Uniform Summons and Complaint as summons, that requires a summons

to be issued by a “law enforcement officer”.

14. Vagueness. The Defendant’s ordinance includes no provisions for how violations are

measured or tallied over time, or whom in the Defendant’s employ tracks alleged violations.

Lastly on the Defendant’s ordinances – Plaintiff seeks relief from the Defendant’s confusing

ordinance (5-15 and 5-17) that is void of any references or provisions for how “offenses” are being

tracked and offers no context, or timeframes or any other measures for how these violations are
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accumulated, who is maintaining records of the occurrences, or how alleged offenses will be

prosecuted. Likewise, nowhere in the municipal ordinance are warnings mentioned, although City

Staff often issue “warnings” instead of USACs. With the ordinance being silent on how the

frequency of violations are measured over time, citizens such as the Plaintiff have no way of

knowing if the already confusing alleged “at large” dog violations are accumulated over one’s

lifetime, or over a number of months or years as in other local town ordinances as previously noted.

Where the Plaintiff’s Ordinance offers no such measures, and as the standards of Maine Law have

not been met – Defendant has no way of knowing what the standard is by which his actions are

being assessed. At a minimum since the municipal ordinance in question is silent on measures the

Defendant should adhere to the standard set forth in Title 7 MRS, Part 9, Subpart 4, Chapter 741,

§4041.3 – Animal Trespass. Plaintiff asks the Court to grant injunctive relief from the Defendant’s

future charges under ordinance 5-17, as the alleged violations do not meet a meaningful standard of

proof that a civil violation has occurred (Maine Rules of Civil Procedure, Rule 80H (g)), until applicable

measures are written into the applicable municipal ordinances that meet or exceed the strict rules

under existing Maine Law.

CITATIONS AND REFERENCES

Cases

City of Portland v. Marc Lesperance, VI-23-84 (Decided 2/14/2024)

City of Portland v. Marc Lesperance, CUM-24-94 (Appeal of VI-23-84)
Fitzgerald v. Baxter State Park Authority et al., 385 A. 2d 189 (1978)
Marc A Lesperance v. City of Portland, POR-CV-21-132 (Decided 10/23/2023)
State v. Koplow, Supreme Judicial Court of Maine, June 6, 1984, 476 A.2d, 1155 (Me. 1984)

Maine Statutes & Municipal Ordinances/Orders/Memorandums

Maine Rules of Civil Procedure, Rule 80H (b) (1)

Maine Rules of Civil Procedure, Rule 80H (g)
Percival Baxter, My Irish Setter Dogs, 1923
Portland City Council Order, 45-20/21 Amendment to Chapter 5 Re: Restricting Off-leash Dogs in MBW
Portland City Council Order, 88-23/24 Appointing Constables for 2024

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Portland Corporation Counsel Memorandum, To Sally Deluca (Dir. Parks and Recreation) Re: Restricting
Off-leash Dogs in Mayor Baxter Woods, 2/10/2020.
Portland Municipal Code, Ch. 20, Art. I, §20.19 - Constables
Portland Municipal Code, Ch. 20, Art. I, §20.19.5 - Park and Cemetery Constables
Portland Municipal Code, Ch. 20, Art. III, §20.32 - Police Reserve Unit
Portland Municipal Code, Ch. 5, Art. II, Div. III, §5-73 - Canine Waste
Portland Municipal Code, Ch.5, Art. II, Div. 1, §5-15.1 (Subpt e.1) - Definitions - Baxter Woods
Portland Municipal Code, Ch.5, Art. II, Div. 1, §5-17 - Running at large prohibited
Portland Property Deed, Mayor Baxter Woods, 4/13/1946
Title 4, MRS, §105.1 - Superior Court; Civil jurisdiction - jurisdiction
Title 4, MRS, §105.2 - Superior Court; Civil jurisdiction - exceptions
Title 7, MRS, Part 9, Ch. 719, §3907.6 - Definition of "at large"
Title 7, MRS, Part 9, Ch. 717, §3907.12 - Definition of "Constable" under the Maine Animal Welfare Act
Title 7, MRS, Part 9, Ch. 717, §3907.18 - Definition of "Law Enforcement Officer"
Title 7, MRS, Part 9, Ch. 717, §3909 - Enforcement of Animal Welfare Act
Title 7, MRS, Part 9, Ch. 719, §3947
Title 7, MRS, Part 9, Ch. 725, §3941 - §3950-C - Subject Matter of the Chapter
Title 7, MRS, Part 9, Ch. 725, §3950 - Local Regulations
Title 7, MRS, Part 9, Subpart 4, Ch. 741, §4041.3 - Animal Trespass rule - Maine Animal Welfare Act
Title 17, MRS, Part 7, Ch. 711, §6051.10 – Equity Proceedings
Title 17, MRS, Part 7, Ch. 717 - Animal Welfare Act
Title 17, MRS, Part 7, Ch. 719 - Uncontrolled Dogs
Title 17-A, MRS, Part 1, Ch. 1, §17 - Enforcement of Civil Violations
Title 18-B, MRS, Part 1, Ch. 2, §203.1 - Trust Law, Subject Matter Jurisdiction
Title 29-A, MRS, Ch. 23, §2601 - Summons and Complaint section of the Motor Vehicles & Traffic Act)
Title 29-A, MRS, Ch. 23, Subchapter 6, §2601.6 - Uniform Summons and Complaint
Title 30-A, MRS, Part 2, Ch. 141, §3009-A Enforcement of Municipal Ordinances
Title 30-A, MRS, Part 2, Ch. 123, §2671 (Police Officers), §2672 (Special Police), §2673 (Constables)
Title 30-A, MRS, Part 2, Subpart 4, Ch. 141, §3001.3 - Standard of Preemption
Title 30-A, MRS, Part 2, Subpart 4, Ch. 141, §3009-A - Enforcement of Municipal Ordinances

CONCLUSION

Governor Baxter’s intent about dogs, and particularly walking with them off-leash was

exemplified in his writings, and Plaintiff contends was a large part of how he intended MBW to be

used as a public park in Portland, Maine. Because the Defendant did not consider his intent

regarding dogs off-leash when it enacted the MBW bans on off-leash dog-walking, and as it was

instructed by its own Legal Counsel that it didn’t even need to do so, Plaintiff seeks relief from the

Defendant’s leash law ordinance regarding MBW (Ch. 5, Article II, Division I, § 5-15.1 (Subpart e,

1 - Order 45-20/21 Amendment to Chapter 5 Re: Restricting Off-leash Dogs in Baxter Woods).

Specifically, as the Court provided in Fitzgerald, Plaintiff requests that this Court grant injunctive
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relief striking the Defendants bans on off-leash dog walking in MBW from the applicable sections

of Ch.5 of the Defendant’s ordinance. See the draft of Order-1.

The Plaintiff also seeks injunctive relief from the Court that bars the Defendant from issuing

summons for its 5-17 “Running at large prohibited” violations, unless such summons comply with

established Maine State Law and are properly issued for valid, alleged violations, that sufficiently

meet the standards of proof and demonstrate all the criteria showing the commencement of

proceedings for a civil violation has occurred. See the draft of Order-2.

Further the Plaintiff seeks injunctive relief from the Court that bars the Defendant from

appointing unqualified and/or unauthorized, non-law-enforcement staff to issue summons for dog

“running at large” and possibly other civil violations, which it is doing in violation of established

Maine State law and even in violation of its own municipal ordinances. See the drafts of Order-3

and Order-4.

Lastly the Plaintiff requests injunctive relief from the Court that bars the Defendant from issuing

5-17 dog “running at large prohibited” summons, pending additional language being added to the

Defendant’s ordinance the Defendant providing any standards for how alleged violations are to be

accumulated/monitored, whom or what official is responsible for tracking alleged violations, the

measures by which alleged violations will be prosecuted. While other local towns and cities

provide these measures for citizens in their ordinances, the Defendant’s does not, meaning summons

for alleged “at large” violations do not meet the standards of proof, do not sufficiently describe what

the civil violation may be and therefore do not commence the proceedings to warrant a fine or

punishment the Defendant may be randomly seeking. See the draft of Order-5.

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 For those with precious few hours to spend with our dogs before work or physical challenges

that make walking in the street difficult, having an urban forest to exercise in is a treasure. Gov.

Baxter understood that you shouldn’t have to be a wealthy landowner to be able to let your dog run

and play in nature. He created MBW for all the people of Portland to share. We are dog walkers, not

criminals. For one, more or all the reasons cited above Plaintiff seeks relief from the Court for the

improper way the Defendant enacted its MBW off-leash bans, and the haphazard, seemingly supra-

legal ways in which it is currently enforcing the off-leash bans in the City.

Respectfully submitted,

____________________________

Marc A. Lesperance
103 Candlewyck Terrace
Portland, ME 04102
(207) 329-4953 [email protected]

Date: April 29, 2024

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