Allen v. Quinn

• Decision Date: 29 April 1983
• Citation: Allen v. Quinn, 459 A.2d 1098 (Me. 1983)
• Parties: David ALLEN v. Rodney S. QUINN and John Cole. 1
• Court: Maine Supreme Court

Page 1098

459 A.2d 1098

David ALLEN v.Rodney S. QUINN and John Cole. ¹

Supreme Judicial Court of Maine.

Argued April 21, 1983.

Decided April 29, 1983.

Marden, Dubord, Bernier & Chandler, Bruce W. Chandler(orally), Waterville, for plaintiff.

James E. Tierney, Atty. Gen., Paul F. Macri, Asst. Atty. Gen. (orally), Augusta, for Rodney S. Quinn.

Sewall, Mittel & Hefferan, Michael P. Asen(orally), Robert Edmond Mittel, Portland, for John Cole.

Before McKUSICK, C.J., and GODFREY, NICHOLS, CARTER, VIOLETTE and WATHEN, JJ., and DUFRESNE, A.R.J.

McKUSICK, Chief Justice.

By adding the direct initiative ² and referendum ³ provisions to the Maine Constitution in 1909, the people took back to themselves part of the legislative power that in 1820they had delegated entirely to the legislature.⁴In this appeal we are faced with a question as to the nature of the time limit the people have put upon thier own exercise of the initiative: Under article IV,part 3, section 18(1) of the Maine Constitution, ⁵ may a petition starting the initiative process be filed with the Secretary of State only during the first 50 days after the legislature convenes in its first regular session of the biennium (or the first 25 days after it convenes in its second regular session)?We answer that question in the negative.Although the constitution expressly imposes a deadline date by which an initiative petition must be filed, it does not, either expressly or by necessary implication, bar the early filing of an initiative petition even though the legislature to which it is addressed is yet to convene.

We affirm the judgment of the Superior Court, which also construed the direct initiative provision of the constitution to permit an initiative petition to be effectively filed with the Secretary of State prior to the convening date of a regular session of the legislature.

This case arose from an initiative petition drive seeking to repeal the 1981legislative enactment that authorized moose hunting seasons, 12 M.R.S.A. § 7463-A(1981).An unincorporated association of individuals (including John Cole of Brunswick) using the name SMOOSA ("Save Maine's Only Official State Animal") circulated the petitions.Between October 25 and November 1, 1982, SMOOSA physically delivered to the office of the Secretary of State petitions later determined to contain a total of 39,942 valid signatures of Maine voters.The petitions were directed to the 111th Legislature, the first regular session of which, pursuant to Me. Const. art. IV, pt. 3, § 1, convened on December 1, 1982.The 1982 gubernatorial election was held on November 2, 1982, the next preceding gubernatorial election having been held in November, 1978.

On February 14, 1983, Secretary of State Rodney S. Quinn, acting through his deputy and in performance of his duties under 21 M.R.S.A. § 1355(1)(Pamph. 1982-1983), issued a written decision that the SMOOSA initiative petition ⁶ was valid.In making this decision the Secretary of State treated the petition as having been filed on November 1, 1982; and he certified that it satisfied all of the constitutional requirements, including the requirement that it contain valid signatures in a number in excess of "ten percent of the total vote for Governor cast in the last gubernatorial election preceding the filing of such petition,"⁷ that minimum number being 37,026 based upon the 1978 vote.

Thereupon, David Allen, a Maine voter who opposes the repeal of the moose hunting law, ⁸ took a timely appeal from the Secretary of State's decision to the Superior Court (Kennebec County).He contended that under the applicable constitutional provisions the SMOOSA petition could not be considered filed earlier than the first day of the legislative session to which it was directed--in this case, December 1, 1982--and that to be valid in initiating a popular vote on the repeal of the moose hunting law, the SMOOSA petition must therefore contain signatures equal to or greater than ten percent of the vote cast in the gubernatorial election held on November 2, 1982, that minimum being 46,030.The Superior Court permitted John Cole and SMOOSA ⁹ to intervene as defendants.After receiving the parties' stipulation of facts and after hearing oral argument the Superior Court on March 30, 1983, issued its opinion and order denying plaintiff Allen's appeal.Two days later plaintiff appealed to the Law Court, which, out of respect for the expeditious judicial review contemplated by the constitution, art. IV, pt. 3, § 22, set the appeal for briefing and oral argument on a much foreshortened time schedule.

Resolution of the controversy over the validity of the SMOOSA initiative petition depends exclusively upon a determination of the meaning of the controlling constitutional language.Although the constitution(art. IV, pt. 3, § 22)¹⁰ contemplates that the legislature will enact laws to implement the direct initiative, any such laws, of course, must be consistent with the constitutional provision setting up the direct initiative, i.e., section 18; until the legislature does enact laws not inconsistent with section 18, the constitutional provisions are expressly declared to be self-executing.¹¹

In interpreting our State Constitution, "we look primarily to the language used."Farris ex rel. Dorsky v. Goss, 143 Me. 227, 230, 60 A.2d 908, 910(1948).As the New York Court of Appeals well stated in Kuhn v. Curran, 294 N.Y. 207, 217, 61 N.E.2d 513, 517-18(1945):

It is the approval of the People of the State which gives force to a provision of the Constitution ... and in construing the Constitutionwe seek the meaning which the words would convey to an intelligent, careful voter.

The critical language of section 18(1) is that which requires an initiative petition to be "filed in the office of the Secretary of State ... on or before the fiftieth day after the date of convening of the Legislature in first regular session."See note 5 above.Plainly, section 18(1) thereby sets a deadline beyond which a petition may not be effectively filed for consideration at that regular session.On the other hand, it is not at all clear from the quoted language that it prescribes any date before which a filing may not be made.The phrase "after the date of convening," combined with the rest of the quoted language, makes clear that calendar days, rather than legislative days, are the measuring units for setting the filing deadline.¹²We do not find persuasive plaintiff Allen's argument that the same phrase "after the date of convening" can be read to serve the additional purpose of limiting the filing of initiative petitions to the first 50 days after the regular session convenes.In the critical first sentence of section 18(1), there simply is no express provision that initiative petitions must be filed during the time the legislature is in regular session.Plaintiff Allen is left to trying to show that such a requirement is a necessary implication in order to avoid inconsistencies with other constitutional provisions or to carry out underlying public policy.

First, plaintiff Allen points out that section 18(2) provides that legislation proposed by an initiative petition shall be submitted to the electors "unless enacted without change by the Legislature at the session at which it is presented" and that SMOOSA directed its petition to the 111th Legislature, and not to the 110th, which was still in existence on November 1, 1982.That election by SMOOSA, he suggests, requires that SMOOSA be treated as if it had filed its petition at a time when the 111th Legislature was in existence; the earliest date on which that was the case was December 1, 1982.The answer to that argument lies in the fact that only a regular session of the legislature can be required to consider a measure proposed by an initiative petition.SMOOSA had no choice; its petition had to be directed to the legislature that was next to be in regular session.The nonexistence of the 111th Legislature at the time of the SMOOSA filing had, as a practical operating matter, no effect whatever upon the Secretary of State's function in receiving the petition for filing and in promptly determining its validity--all in preparation for the upcoming regular session.One would expect that early filing is not a burden, but rather is a boon to the Secretary of State's office and later to the legislature in considering the proposed measure.

Second, plaintiff Allen points to the provision of section 18(3) that requires the Governor to order any initiative measure that is not enacted by the legislature without change to be "referred to the people at an election to be held in November of the year in which the petition is filed."With considerable force, plaintiff notes the absurdity or impossibility of referring the moose hunt repeal proposed by SMOOSA to the November election of the year (1982) in which the SMOOSA petition was filed.However, this absurdity or impossibility also exists with plaintiff's own construction of section 18(1), since even by his own construction the SMOOSA petition could have been filed at any time on or after December 1 in the year 1982.Section 18(3) in its present form was approved by the voters in 1980, subsequent to the 1978 constitutional amendment that set the date of convening of the first regular session at the first Wednesday of December following the general election.CompareConst.Res.1979, ch. 3, passed in 1980 with Const.Res.1977, ch. 4, passed in 1978, amending Me. Const. art. IV, pt. 3, § 1.Obviously, a problem exists in applying section 18(3), whatever is the correct construction of section 18(1).The existence of that problem with section 18(3) cannot be permitted to warp our construction of section 18(1).Rather, it should be the occasion for giving a sensible interpretation to section 18(3) that will carry out its quite obvious intent, regardless of its literal language.¹³SeeNew...