United States District Court, D. Maine
ORDER ON MOTIONS IN LIMINE CONCERNING STATEMENTS OF
CITY OFFICIALS AND MEMBERS OF THE PUBLIC
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
anticipation of trial on Portland Pipeline Corporation's
(PPLC) Commerce Clause challenge to the city of South
Portlands (the City) ordinance prohibiting bulk loading of
crude oil onto ships (the Ordinance), the parties filed
competing motions in limine concerning the admissibility of
voluminous statements from City officials and members of the
public. The Court grants PPLC's motion and denies the
City's motion because courts can consider a broad array
of evidence when tasked with discerning improper legislative
February 6, 2015, PPLC filed a nine-count complaint with this
Court against the city of South Portland and Patricia
Doucette. Compl. (ECF No. 1). On March 31, 2015, the
Defendants filed a motion to dismiss the Complaint.
Defs.'Mot. to Dismiss the Compl. Pursuant to Rule
12(b)(1) (ECF No. 16); Mem. of Law in Supp. of
Defs.'Mot. to Dismiss Pursuant to Rule 12(b)(1) (ECF
No. 17). The Court denied the motion to dismiss on February
11, 2016. Order on Defs.' Mot. to Dismiss (ECF
No. 29). Accordingly, the Defendants filed an answer to the
Complaint on February 29, 2016. Answer of Defs. City of
South Portland and Patricia Doucette (ECF No. 30).
November 17, 2016, the Plaintiffs filed a motion for summary
judgment. Pis.' Mot. for Summ. J. (ECF No. 87).
That same day, the Defendants filed a consolidated motion to
dismiss pursuant to Rule 12(b)(1) and a cross motion for
summary judgment. Defs.' Consolidated Mot. to Dismiss
Pursuant to Rule 12(b)(1) and Mot. for Summ. J. (ECF No.
88). The Court denied the renewed Motion to Dismiss on August
24, 2017, and a second renewed Motion to Dismiss on December
12, 2017, before turning its attention to the cross-motions
for summary judgment. Order on Defs.' Consolidated
Mot. to Dismiss Under Rule 12(b)(1) (ECF No. 185);
Order on Defs.'Renewed Mot. to Dismiss (ECF No.
199). On December 29, 2017, the Court granted summary
judgment in favor of the City on all issues except the
Commerce Clause challenge in Count V. Order on Mots, for
Summ. J. at 228 (ECF No. 200) (Summ. J. Order).
In the summary judgment order, the Court admitted statements
from City officials like DOC members and City Councilors, but
determined that public statements regarding the Ordinance and
its predecessor ballot initiative, the Waterfront Protection
Ordinance (WPO), were not probative of the Ordinance's
primary purpose. Id. at 42-43 n. 80, 44-45 n.85.
is set for June 18 to June 22, 2018. Notice of Bench
Trial (ECF No. 2014). On April 25, 2018, the City filed
a motion to have the Court view certain properties in the
city of South Portland, including PPLC's tanks and pier
facilities. Defs.'Mot. for View (ECF No. 206).
On June 1, 2018, the Court deferred ruling on the City's
motion until trial. Order Deferring Ruling on
Defs.'Mot. for View (ECF No. 218).
11, 2018, PPLC filed a motion in limine to admit certain
statements of City officials and members of the public, and
the City filed a competing motion to exclude those
statements. Pis.'Mot. in Limine to Admit
into Evidence Statements by City Officials and Members of the
Public (ECF No. 208) (Pis.'Mot.);
Defs.'Mot. in Limine to Exclude Irrelevant and
Inadmissible Statements (ECF No. 209) (Defs.'
Mot.). The City filed its response to the PPLC's
motion on June 1, 2018, and the PPLC filed its response to
the City's motion on June 4, 2018. Defs.'
Opp'n to Pis. 'Mot. in Limine to Admit into
Evidence Statements by City Officials and Member of the
Public (ECF No. 219) (Defs.' Opp'n);
Pis.' Obj. to Defs.'Mot. in Limine to
Exclude Statements Made by City Officials and Members of the
Public (ECF No. 223) (Pis.' Opp'n). On
June 8, 2016, PPLC filed its reply to the City's
response, and the City filed its reply to PPLC's
response. Pis.'Reply in Support of their Mot. in
Limine to Admit into Evidence Statements by City
Officials and Members of the Public (ECF No. 224)
(Pis.' Reply); Reply in Support of Defs.'
Mot. in Limine to Exclude Irrelevant and
Inadmissible Statements (ECF No. 226)
THE PARTIES' POSITIONS
seeks to admit statements from City officials and members of
the public made in pubhc meetings, emails, and campaign
literature between July 2013 and July 2014, the period
beginning with consideration of the WPO and ending with the
enactment of the Ordinance. Pis.'Mot. at 1-3
n.2. PPLC argues that statements from city officials are
"highly probative" because "[t]hey provide
unfiltered evidence" of the City's true goals in
enacting the Ordinance. Id. at 3-4. It asserts that
public comments are admissible because "public input
reflects the pressures imposed upon the decision-makers,
putting the decision-makers' actions in context."
Id. at 4-6. PPLC insists that the history and public
process of the predecessor ordinance is relevant because of
"the integrated nature of the publically initiated WPO
and the final version of the Ordinance ...."
Id. at 7-8. PPLC claims that the public comments put
the official statements in context, and it claims the Court
may choose to give more or less weight to comments
"based on speaker, timing, and content" but
maintains that they are all admissible. Id. at 9-10.
City seeks to exclude all statements about the WPO, public
comments about the Ordinance, statements by the DOC
facilitator, and information regarding PPLC's tax
payments, particularly because Plaintiffs counsel represented
at a telephone conference that they would not seek to
introduce statements by the public. Defs. 'Mot.
at 1-2. The City emphasizes that the WPO was a citizen
referendum which "[t]he City Council opposed ... by a
vote of 5-1." Id. at 4-5. The City also
highlights the large volume of material PPLC seeks to
introduce. Id. at 5-6. It cites caselaw from this
Court and the First Circuit indicating that comments from a
private sponsor of legislation have little if any probative
value compared to official legislative sources. Id.
at 7 (citing All. of Auto. Mfrs. v. Gwadosky, 430
F.3d 30, 39 (1st Cir. 2005); All. of Auto. Manufacturers
v. Gwadosky, 304 F.Supp.2d 104, 112 (D. Me. 2004)).
Finally, the City contends that the DOC facilitator's
comments are not probative because he was not a member of the
decision-making body, and PPLC's taxes are irrelevant
because the commerce clause protects interstate markets, not
particular interstate firms. Id. at 8.
alternative, if the Court permits PPLC to admit statements by
the public, the City requests that the Court allow it access
to PPLC's unofficial transcripts and grant leave for the
City to admit additional countervailing statements from
members of the public. Id. at 7 n.2.
claims it never made a "commitment" to conduct
trial without seeking to introduce statements from the
public. Pis.' Opp'n at 1. PPLC reiterates
its argument that the WPO and the Moratorium are relevant
legislative history because they represent an integrated
sequence of events leading to the Ordinance. Id. at
2-4. PPLC contends that many public comments were credited by
City officials, including what it calls the "Sanibel
Defense" of hiding the true motive and target of its
legislation. Id. at 4-5. PPLC claims the comments of
the DOC facihtator are probative of the Ordinance's
purpose because his comments indicate what the DOC's
charge was and he "kept the DOC focused on this
charge." Id. at 5-6. PPLC explains that its tax
payments are relevant ...