In re Op. of the Justices

Decision Date17 July 2015
Docket NumberDocket No. OJ–15–2.
Citation2015 ME 107,123 A.3d 494
PartiesOPINION OF THE JUSTICES of the Supreme Judicial Court given under the Provisions of Article VI, Section 3 of the Maine Constitution
CourtMaine Supreme Court

Cynthia Montgomery, Esq. (orally), Hancock Fenton, Esq., Holly Lusk, Esq., and Avery Day, Esq., Office of the Governor, Augusta, for Governor Paul R. LePage.

Timothy C. Woodcock, Esq. (orally), and Adria Y. LaRose, Esq., Eaton Peabody, Bangor, for President of the Maine Senate Michael Thibodeau on behalf of the Maine Senate and Speaker of the House of Representatives Mark Eves on behalf of the House of Representatives.

Janet T. Mills, Attorney General, Susan P. Herman, Dep. Atty. Gen., and Phyllis Gardiner, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for Attorney General Janet T. Mills.

L. Clinton Boothby, Esq. (orally), Boothby Perry, LLC, Turner, for Representatives Kenneth W. Fredette, Eleanor M. Espling, and Jeffrey L. Timberlake.

Zachary L. Heiden, Esq., Alison Beyea, Esq., and Oamshri Amarasingham, Esq., ACLU of Maine Foundation, Portland, for American Civil Liberties Union of Maine Foundation.

Melissa A. Hewey, Esq., and David M. Kallin, Esq., Drummond Woodsum & MacMahon, Portland, for Planned Parenthood of Northern New England, Maine Family Planning, Mabel Wadsworth Women's Health Center, Maine Primary Care Association, and Maine Nurse Practitioner Association.

Lise McLain of Gilead and Dorothy Lafortune of Biddeford.

Audrey Spence of Portland.

QUESTION PROPOUNDED BY THE GOVERNOR IN A COMMUNICATION DATED JULY 17, 2015

Opinion

To the Honorable Justices of the Supreme Judicial Court:

Please accept my request for an Opinion of the Justices of the Maine Supreme Judicial Court pursuant to Article VI, Section 3 of the Maine Constitution. I seek your advice upon important questions of law regarding my constitutional obligation to faithfully execute the laws, specifically, 65 bills vetoed by me on July 16, 2015, 17 of which are emergency legislation.

When the Legislature adjourned on June 30 with no date to reconvene, I was prevented from returning the bills to their houses of origin. This triggered the constitutional provision that I could hold the bills until the Legislature reconvened for three consecutive days. The Legislature reconvened on July 16, providing the earliest opportunity to return the bills since the Legislature's adjournment. I promptly returned all 65 vetoes to their respective houses of origin on that date.

The Legislature's failure to timely extend the first regular session beyond the statutory adjournment date of June 17, then adjourning on June 30 with no date of return, has resulted in a dispute over the validity of the 65 bills. Now that the Legislature has refused to consider the vetoes, insisting that the bills have already become law, my constitutional duty as Governor to “take care that the laws be faithfully executed” is in question. I must know whether the 65 bills have become law.

To determine this, I must know what type of adjournment prevents the return of a bill to the Legislature. I must know whether the Legislature triggered the constitutional three-day procedure for the exercise of the Governor's veto. And finally, I must know whether the 65 bills I returned to the Legislature on July 16 were presented properly before that body for reconsideration.

FACTUAL BACKGROUND

The first regular session of the 127th Legislature began on December 3, 2014. Over the course of the session, the Legislature enacted bills and presented them to me for action. I signed numerous bills into law; I allowed others to become law without my signature; I vetoed many others. The statutory adjournment date for this session was June 17, 2015. Despite knowing the statutory adjournment date—a date published in numerous Legislative calendars—the Legislature failed to timely extend the session by the close of the June 17 meeting. This is so even though a Joint Order to extend the first regular session by five legislative days was prepared on June 17 (Exhibit 1, SP 549). That Joint Order was never presented, however. Instead of timely extending the first regular session, the Legislature simply adjourned and returned on June 18, creating a question around its legal authority to reconvene the session at all. A verbal motion to extend the session (which had arguably already ended by operation of law) was passed in the House (Exhibit 2, Roll Call # 296) and in the Senate (Exhibit 3, Remarks, and Exhibit 4, Roll Call # 288).1 The Legislature then met on June 19, 22, 23, and 24. On June 24, the Legislature attempted, by Joint Order, to further extend the session by five more legislative days (Exhibit 5, HP 991). At the close of that day, the Senate and House adjourned until June 30, 2015 at 10:00 in the morning (Exhibit 6, SP 550). In contrast, at the close of the June 30 meeting, the Legislature, by Joint Order, adjourned “... until the call of the President of the Senate and the Speaker of the House, respectively, when there is a need to conduct business or consider possible objections of the Governor” (Exhibit 7, SP 556). The Joint Order did not set any date certain on which the Legislature would reconvene.

Pursuant to the Maine Constitution, Article IV, Pt. 3, § 2, when the Legislature is in session, I have 10 days (excepting Sundays) in which to return bills with my objections to their legislative houses of origin. The Constitution also provides, however, that if “the Legislature by their adjournment prevent [a bill's] return”, there is an alternative veto process that ensures that the Governor has the opportunity to exercise his veto power and that the Legislature has time to reconsider the bill in light of the Governor's objections.

That process allows the Governor to return the bills “within 3 days after the next meeting of the same Legislature which enacted the bill....”

Prior to June 30, I had received 23 bills from the Legislature, six of which were emergency bills. The respective deadlines for return of these bills were all later than June 30. Just prior to its adjournment on June 30, the Legislature presented me with an additional 58 bills, 14 of which were emergency bills. The deadline for the return of these bills would have been July 11, 2015 if the Legislature had been in session.

Instead, the Legislature conditionally adjourned on June 30 with no date for its return. Moreover, the indefinite condition that could have prompted its return—the call of the Senate President and Speaker of the House—did not come to pass on or before July 11. In fact, while there were unofficial reports that the legislators would reconvene on July 16, the legislative record confirms that the date for reconvening was ambiguous at best (Exhibit 8, House Legislative Record on HP 991, Rep. Fredette's remarks). By their adjournment without a set date of return, I was prevented from returning these bills to their houses of origin.

Believing these circumstances triggered the constitutional three-day procedure2 , I held the bills until the Legislature reconvened, understanding that the Constitution afforded me the opportunity to hold the bills until the Legislature reconvened for four consecutive days. See Opinion of the Justices, 437 A.2d 597 (Me.1981) and Opinion of the Justices, 484 A.2d 999 (Me.1984). I had the opportunity to consider the bills and draft objections. Consequently, when the Legislature reconvened on July 16, I returned them within the time allowed me under the Constitution. July 16 was the very first opportunity after the Legislature's June 30 adjournment when I could return the bills. I returned the bills to their appropriate houses of origin with a request to the Legislative leadership that they reconsider the bills in light of my objections. The Speaker of the House refused to reconsider the bills, maintaining that they were laws that at his direction had already been chaptered. After refusing to reconsider the bills and my objections, the Legislature adjourned on July 16, 2015, using the words, “adjourned without day” in the House and “adjourned sine die” in the Senate, respectively.

I have a constitutional duty, as Governor, to “take care that the laws be faithfully executed” (Me. Const. Art. V Pt. 1, § 12 ). Accordingly, I must know whether the 65 bills I was prevented by the Legislature's adjournment from returning to their houses of origin by July 11 have become law. This is a particularly pressing issue because 17 of these bills are emergency legislation, meaning they are effective immediately after the conclusion of the session. There is no dispute that at this time, the first regular session of the 127th Legislature is over; the exact date of the end of the session is likely disputed, however. I must know whether the three-day procedure was triggered by the Legislature's action or inaction during and/or after the session. If so, the exercise of my veto power and the return of the bills on July 16 kept those bills from “having the same force and effect as if” I had signed them.

With great deference, therefore, I respectfully submit to you that these facts present the “important questions of law” and “solemn occasion” necessary to invoke your constitutional authority to issue advisory opinions under Article VI, Section 3 of the Maine Constitution. There can be no doubt that the validity of the laws at issue is a constitutionally important question. Likewise, according to a 1975 Opinion of the Justices, “for it to be a solemn occasion ... the questions must not be ‘tentative, hypothetical and abstract....” Opinion of the Justices, 330 A.2d 912, 915 (Me.1975). “Subjects of advisory opinions must be “of instant, not past nor future concern; things of live gravity.” Opinion of the Justices, 134 Me. 510, 513, 191 A. 487 (1936). The questions of whether the constitutional three-day procedure was triggered by the Legislature's action...

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  • In re Op. of the Justices, Docket No. OJ–17–1
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    • Maine Supreme Court
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  • Op. of Justices of Supreme Judicial Court Given Under Provisions of Article VI
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  • Me. Forest Prods. Council v. Cormier
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    • U.S. District Court — District of Maine
    • February 18, 2022
    ... ... 2 If, within ten days of receiving a bill from the Maine Legislature, the Governor does not sign the bill into law or veto the bill and the Legislature is still in session, the bill automatically becomes law. See Me. Const ... art. IV, pt. 3, 2 ; Opinion of the Justices of the Supreme Judicial Ct. Given under the Provisions of Art. VI, Section 3 of the Me. Const. , 2015 ME 107, 29, 123 A.3d 494 ("During the session, the Government has three options when a bill is presented to [her]: (1) [she] can sign the bill into law; (2) [she] can withhold [her] signature, ... ...
  • Me. Forest Prods. Council v. Cormier
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    • U.S. District Court — District of Maine
    • February 18, 2022
    ... ... bill from the Maine Legislature, the Governor does not sign ... the bill into law or veto the bill and the Legislature is ... still in session, the bill automatically becomes law ... See Me. Const. art. IV, pt. 3, § 2; Opinion ... of the Justices of the Supreme Judicial Ct. Given under the ... Provisions of Art. VI, Section 3 of the Me. Const. , 2015 ... ME 107, ¶ 29, 123 A.3d 494 (“During the session, ... the Government has three options when a bill is presented to ... [her]: (1) [she] can sign the bill into law; ... ...
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