Opinion of the Justices

• Decision Date: 10 March 1993
• Citation: 623 A.2d 1258
• Parties: . Supreme Judicial Court of Maine. Questions Propounded by the House of Representatives in a Communication Dated
• Court: Maine Supreme Court

Page 1258

623 A.2d 1258

OPINION OF THE JUSTICES of the Supreme Judicial Court Given

Under the Provisions of Section 3 of Article VI of

the Constitution.

Supreme Judicial Court of Maine.

Questions Propounded by the House

of Representatives in a Communication

Dated March 10, 1993.

Answered April 26, 1993.

STATE OF MAINE

______________

In House March 4, 1993

House Order Propounding Questions to the Justices of the Supreme Judicial Court

WHEREAS, it appears to the House of Representatives of the 116th Legislature

that the following are important questions of law and that this is a solemn

occasion; and

WHEREAS, the Constitution of Maine, Article VI, Section 3, provides for the

Justices of the Supreme Judicial Court to render their opinion on these

questions; and

WHEREAS, there is now before the 116th Legislature for its consideration

Initiated Bill 1, Legislative Document 751, "An Act to Impose Term

Limitations on Legislators, Constitutional Officers and the State Auditor";

and

WHEREAS, that bill has been submitted to the Legislature as a result of a

petition for direct initiative of legislation pursuant to the Constitution of

Maine, Article IV, Part Third, Section 18; and

WHEREAS, that bill may have constitutional infirmities that can not be

corrected by revision or amendment; and

WHEREAS, it is important that the Legislature be informed as to the questions

raised in this order; now, therefore, be it

Ordered, that in accordance with the provisions of the Constitution of Maine,

the House of Representatives respectfully requests the Justices of the

Supreme Judicial Court to give the House of Representatives their opinion on

the following questions of law:

Question No. 1. If Legislative Document 751 becomes law, would its

limitations on the terms of Legislators be valid in light of the lack of

those limitations in the Constitution of Maine, Article IV, Parts First and

Second?

Question No. 2. If Legislative Document 751 becomes law, would its

limitations on the terms of the Secretary of State, Treasurer of State and

Attorney General be valid in light of the lack of those limitations in the

Constitution of Maine, Article V, Parts Second and Third and Article IX,

Section 11?

Question No. 3. If the answer to question 1 or 2 is negative, must the

initiative nevertheless be submitted in its current form to the voters at

referendum pursuant to the Constitution of Maine, Article IV, Part Third,

Section 18?

                NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
                                                    [Seal]
                                            116th MAINE LEGISLATURE
                                          FIRST REGULAR SESSION"1993
                -------------------------------------------------------------------------------
                Legislative Document                                                    No. 751
                -------------------------------------------------------------------------------
                Initiated Bill 1                        House of Representatives, March 2, 1993
                An Act to Impose Term Limitations on Legislators, Constitutional Officers and
                  the State Auditor
                -------------------------------------------------------------------------------
                  Transmitted to the Clerk of the House on the 116th Maine Legislature by the
                  Secretary of State on February 12, 1993 and 1,200 ordered printed
                (s)  Joseph W. Mayo
                     JOSEPH W. MAYO, Clerk
                

Be it enacted by the People of the State of Maine as follows:

Sec. 1. 21-A MRSA c. 8 is enacted to read:

CHAPTER 8

LIMITATION OF TERMS

§ 551. Short title

This chapter may be known and cited as the "Term Limitation Act of 1993."

§ 552. Definitions

As used in this chapter, unless the context otherwise indicates, the following terms have the following meanings.

1. Responsible electoral official. "Responsible electoral official" means a public official who is responsible for accepting a nomination or nomination petition for an elected office and also means a public official who is responsible for placing the name of a person nominated for public office on a ballot, ballot label, calendar or other similar instrument.

2. Term. "Term" means a full term or any portion of a term served by an elected official in an office subject to the provisions of this chapter.

§ 553. Limitations on terms

Notwithstanding any other provision of law, consecutive terms in office are limited as follows.

1. State Senate. A person may not serve more than 4 consecutive terms as a state Senator.

2. State Representative. A person may not serve more than 4 consecutive terms as a member of the state House of Representatives.

3. Secretary of State. A person may not serve more than 4 consecutive terms as Secretary of State.

4. Treasurer of State. A person may not serve more than 4 consecutive terms as Treasurer of State.

5. Attorney General. A person may not serve more than 4 consecutive terms as Attorney General.

6. State Auditor. A person may not serve more than 2 consecutive terms as State Auditor.

This section applies to terms of office that begin on or after December 3, 1996.

§ 554. Exclusion from nomination, election and service

Notwithstanding any other provision of law, a person who is prohibited from service in an office as set forth in section 553 may not be nominated for or elected to that office. A responsible electoral official may not accept or certify such a person's nomination or nomination petition for an office subject to this chapter. A responsible electoral official may not print or cause to be printed such a person's name on a ballot, ballot label, calendar or other similar instrument for election to an office subject to this chapter. This section applies to nominations occurring and ballots printed after January 1, 1996.

Sec. 2. Transition. A person elected or appointed to an office subject to the provisions of this Act who is disqualified from service by this Act may complete that person's term of office if the term commences on or before December 2, 1996. The limitations imposed by this Act apply to the terms of office served by persons elected to serve in or persons elected to serve by the First Regular Session of the 118th Legislature and to all terms of office served by persons elected to serve thereafter.

STATEMENT OF FACT

This bill establishes limitations on terms for state legislators, the Secretary of State, the Treasurer of State, the Attorney General and the State Auditor. The bill would limit those officeholders to 4 consecutive terms, except for the State Auditor, who is limited to 2 terms, beginning with terms of office commenced in the First Regular Session of the 118th Legislature.

ANSWERS OF THE JUSTICES

To the Honorable House of Representatives of the State of Maine:

In compliance with the provisions of section 3 of article VI of the Constitution of Maine, we, the undersigned Justices of the Supreme Judicial Court, have the honor to submit the following responses to the questions propounded by the House of Representatives on March 4, 1993.

On receiving a request for an advisory opinion from either house of the Legislature or the Governor, we must first determine whether we have constitutional authority to answer the propounded questions. Opinion of the Justices, 460 A.2d 1341, 1345 (Me.1982). The Maine Constitution obliges us "to give [our] opinion upon important questions of law, and upon solemn occasions, when required by the Governor, Senate, or House of Representatives." Me. Const. art. VI, § 3.

We are to answer only questions pertaining to matters of "instant, not past or future concern; things of live gravity." Opinion of the Justices, 355 A.2d 341, 389 (Me.1976) (citation omitted). "The anticipated need for the advice must not be 'tentative, hypothetical and abstract.' " Id. (quoting Opinion of the Justices, 330 A.2d 912, 915 (Me.1975)). In this instance, the House of Representatives has before it an initiated bill, (L.D. 751 (116th Legis.1993)), seeking to impose term limits on legislators and various constitutional offices. ¹ Pursuant to article IV, part third, section 18, clause 2 of the Maine Constitution, that initiative, "unless enacted without change by the Legislature at the session at which it is presented, shall be submitted to the electors...." Therefore, the Legislature must either enact L.D. 751 without amendment ² or decline to enact L.D. 751 and submit the proposal to the electors. The House of Representatives has expressed substantial doubt as to the bill's constitutionality based on advice from the Attorney General. The House's need for guidance in the discharge of its obligations is not merely hypothetical and constitutes an issue of instant concern despite the fact that the Legislature could decline to enact L.D. 751 and allow it to be submitted to the voters. See Opinion of the Justices, 370 A.2d 654 (Me.1977) (solemn occasion existed even though the Senate could have declined to act on a pending initiative and the voters could have rejected the initiative at an election); Opinion of the Justices, 343 A.2d 196, 202 (Me.1975) (solemn occasion existed when Governor was required to either act or refuse to act in pending complaint seeking removal of a District Attorney and Governor professed doubts based on legal advice regarding the constitutionality of the statute under which he was requested to act).

We conclude that the questions propounded constitute important questions of law on a solemn occasion, see Opinion of the Justices, 370 A.2d at 667; Opinion of the Justices, 355 A.2d at 389. We answer questions 1 and 2 in the affirmative and therefore do not answer question 3.

At issue is the scope of legislative power, which is declared to be plenary and subject only to the limitations of the state and federal constitutions. "The Legislature, with the exceptions hereinafter stated, shall have full power to make and establish all reasonable laws and regulations for the defense and benefit of the people of this State, not repugnant to the...