Kelly v. Curtis

• Decision Date: 17 February 1972
• Citation: 287 A.2d 426
• Parties: John N. KELLY v. Kenneth M. CURTIS, in his capacity as Governor of the State of Maine.
• Court: Maine Supreme Court

Page 426

287 A.2d 426

John N. KELLY v. Kenneth M. CURTIS, in his capacity as Governor of the State of Maine.

Supreme Judicial Court of Maine.

Feb. 17, 1972.

Verrill, Dana, Philbrick, Putnam & Williamson by Roger A. Putnam, Portland, for plaintiff.

Beliveau & Beliveau by Severin M. Beliveau, Michael J. Gentile, Rumford, Marden, Debord, Bernier & Chandler by Bruce W. Chandler, Waterville, Sawyer & Sawyer by Richard G. Sawyer, Augusta, for defendant.

Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.

DUFRESNE, Chief Justice.

The plaintiff together with the constitutionally required number of electors proposed to the 105th Legislature in regular session a bill more particularly referred to as 'AN ACT Relating to Form of Ballots in General Elections' under Article IV, Part Third, Section 18 of the Constitution of Maine. The Legislature has determined this ballot reform measure to have been validly initiated, but it adjourned without day on June 24, 1971, failing during the session either to enact the initiated bill without change, or to reject it, and proposing no competing measure for submission to the people. The electors' written petitions, addressed to the Legislature and proposing the ballot reform measure, contained a request to the Governor of this State that he, by proclamation, order the proposed bill to be referred to the people at a special election to be held not less than four nor more than six months after such proclamation in accordance with the terms of said constitutional provisions. The plaintiff, by his complaint brought under Rule 80B of the Maine Rules of Civil Procedure, seeks a determination of rights and a judicial order, if necessary to implement said rights, compelling the Chief Executive of the State to comply with the constitutional mandate. The Superior Court by judgment dated February 11, 1972 entered the following order:

'WHEREFORE, IT IS ORDERED AND ADJUDGED, that the Defendant in his capacity as Governor of the State of Maine, shall, within twenty-four (24) hours of the time of the service of this Order upon his counsel, immediately issue a proclamation pursuant to Article IV, Part Third, Section 18 of the Constitution of Maine, calling and requiring a special election to be had on initiated bill 'AN ACT Relating to Form of Ballots in General Elections', said election to be called and held not less than four (4) nor more than six (6) months after the date of such proclamation.'

The Governor has seasonably appealed to this Court.

Article IV, Part Third, Section 18 provides as follows:

'Section 18. The electors may propose to the Legislature for its consideration any bill, resolve or resolution, including bills to amend or repeal emergency legislation but not an amendment of the State Constitution, by written petition addressed to the Legislature or to either branch thereof and filed in the office of the Secretary of State or presented to either branch of the Legislature within forty-five days after the date of convening of the Legislature in regular session. Any measure thus proposed by electors, the number of which shall not be less than ten percent of the total vote for Governor cast in the last gubernatorial election preceding the filing of such petition, unless enacted without change by the Legislature at the session at which it is presented, shall be submitted to the electors together with any amended form, substitute, or recommendation of the Legislature, and in such manner that the people can choose between the competing measures or reject both. When there are competing bills and neither receives a majority of the votes given for or against both, the one receiving the most votes shall at the next general election to be held not less than sixty days after the first vote thereon be submitted by itself if it receives more than one-third of the votes given for and against both. If the measure initiated is enacted by the Legislature without change, it shall not go to a referendum vote unless in pursuance of a demand made in accordance with the preceding section. The Legislature may order a special election on any measure that is subject to a vote of the people. The Governor may, and if so requested in the written petitions addressed to the Legislature, shall, by proclamation, order any measure proposed to the Legislature as herein provided, and not enacted by the Legislature without change, referred to the people at a special election to be held not less than four nor more than six months after such proclamation, otherwise said measure shall be voted upon at the next general election held not less than sixty days after the recess of the Legislature, to which such measure was proposed.' (Emphasis added.)

In Farris, Attorney General, ex rel. Dorsky v. Goss, 1948, 143 Me. 227, 231, 60 A.2d 908, 911, this Court held that the 'right of the people * * * to enact legislation (reserved to the people through the direct initiative of legislation provisions of the Constitution) * * * is an absolute one and cannot be abridged directly or indirectly by any action of the Legislature.'

We only recently said in the Opinion of the Justices, 1971, Me., 275 A.2d 800, that a liberal construction to effectuate the purpose of the direct initiative of legislation is the standard to be used to determine the meaning of the constitutional provisions which relate to the holding of special elections for the enactment or rejection at the polls of measures initiated by the people. Although the powers of the Governor in respect thereto were not directly involved in the questions submitted to the Justices, and recognizing that advisory opinions are not necessarily binding on this Court in an adversary proceeding (Martin v. Maine Savings Bank, 1958, 154 Me. 259, 147 A.2d 131), nevertheless, we do adopt, as the law of this State under Article IV, Part Third, Section 18 of the Constitution, that once the written petitions addressed to the Legislature concerning initiated proposed legislation have requested a gubernatorial proclamation of a special election, to be held within the constitutionally defined limits, the Governor is subjected by the very terms of the Constitution to a mandatory obligation to order the special election.

We re-affirm the underlying reasons there stated for construing the constitutional language to be a mandatory rather than a discretionary obligation:

'This interpretation, derived from the literal language of Section 18, is supported by practical factors which suggest a need that the initiators of a measure should have opportunity to impose a compulsory obligation upon the Governor to order a special election within time limits other than those ordinarily operative as to general elections. Under given circumstances the people initiating a measure may believe that the issues are sufficiently complex to justify extensive opportunity for the conducting of public debate as well as to allow sufficient time for adequate education of the voters on the issues. Hence, they may wish to require a minimum of four months after the recess of the Legislature. Similarly, they may envision that a period as long as one year and a half could elapse until the next general election (should the Governor choose to refrain from calling a special election in the exercise of discretion), and the initiators might consider such extended delay unwise or otherwise prejudicial to the purposes they seek to achieve.'

In said Opinion of the Justices, 1971, Me., 275 A.2d 800, we added:

'Furthermore, to prevent frustration of the broadly reserved power of the people to legislate it is implicit that the proclamation of the Governor is intended to be made within a reasonably short time after the legislative session has been adjourned without day.'

The Governor by interrogatories has announced his intention to proclaim a...