OPINION OF THE JUSTICES

• Decision Date: 29 March 2004
• Citation: 2004 ME 54,850 A.2d 1145
• Parties: OPINION OF THE JUSTICES of the Supreme Judicial Court Given Under the Provisions of Article VI, Section 3 of the Maine Constitution
• Court: Maine Supreme Court

850 A.2d 1145

2004 ME 54

OPINION OF THE JUSTICES of the Supreme Judicial Court

Given Under the Provisions of Article VI, Section 3 of the Maine Constitution

Supreme Judicial Court of Maine.

DATED March 29, 2004.

ANSWERED April 16, 2004.

STATE OF MAINE

SAUFLEY, Chief Justice.

IN THE SENATE

WHEREAS, it appears to the Senate and the House of Representatives of the 121st 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 opinions on such questions; and

WHEREAS, there is now before the 121st Legislature for its consideration Initiated Bill 4, L.D. 1893, Bill, "An Act to Impose Limits on Real and Personal Property Taxes"; and

WHEREAS, the initiated bill may have constitutional infirmities that can not be corrected by revision or amendment; and

WHEREAS, the initiated bill proposes broad changes to the laws of this State that would limit the ability of both state and local governments to raise revenues to support vital governmental functions; and

WHEREAS, these limitations, if constitutional, would require the Legislature and local governments to make dramatic changes to their budgets beginning with fiscal year 2004-05, and the Legislature is currently in the process of reviewing a supplemental budget bill for that fiscal year; and

WHEREAS, the Legislature must decide whether to enact the initiated bill as proposed or to put forth a competing measure to the initiated bill as authorized by the Constitution of Maine, Article IV, Part Third, Section 18; and WHEREAS, the Attorney General has indicated in the attached opinion that there is a "substantial possibility" that key portions of the initiated bill violate the Constitution of Maine and there is substantial doubt about the effectiveness of remaining portions; and

WHEREAS, it is vital that the Legislature be informed as to the questions propounded in this order; now, therefore, be it

ORDERED, the House concurring, that, in accordance with the provisions of the Constitution of Maine, the Senate and the House of Representatives respectfully request the Justices of the Supreme Judicial Court to give the Senate and the House of Representatives their opinion on the following questions of law:

Question 1. If Initiated Bill 4 becomes law, would those provisions of the bill that require the calculation of property taxes based on "full-cash value" or "appraised value," as adjusted, violate the Constitution of Maine, Article IX, Section 8, which requires taxes on real and personal property to be assessed and apportioned equally and according to just value?

Question 2. Initiated Bill 4, in the part that proposes the Maine Revised Statutes, Title 36, section 361, proposes a severability clause. If your answer to Question 1 indicates that portions of the initiated bill are unconstitutional, would any of the initiated bill's provisions remain effective by virtue of Title 36, section 361 or Title 1, section 71, subsection 8?

ANSWER OF CHIEF JUSTICE SAUFLEY, JUSTICE DANA, JUSTICE CALKINS, AND JUSTICE LEVY

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

[¶ 1] The Senate and the House of Representatives ask us for an advisory opinion addressing questions related to the constitutionality of Initiated Bill 4, L.D. 1893 (121st Legis.2004), "An Act to Impose Limits on Real and Personal Property Taxes." Specifically, we are asked to advise whether, if Initiated Bill 4 is enacted by the people, its provisions would require the assessment of real estate taxes in violation of Article IX, Section 8 of the Maine Constitution.¹ We are also asked whether, if we answer the first question in the affirmative, any of the remaining provisions of the initiated bill would be effective by virtue of the severability provisions.

I. SOLEMN OCCASION

[¶ 2] The Maine Constitution requires the justices of the Supreme Judicial Court to answer the questions propounded by the Senate and House if they are important questions of law and present a solemn occasion. ME. CONST. art. VI, § 3. Because not all of the justices agree that a solemn occasion exists, the undersigned justices briefly explain why we conclude that this is a solemn occasion.

[¶ 3] A solemn occasion exists when the questions are of a serious and immediate nature, Opinion of the Justices, 2002 ME 169, ¶ 6, 815 A.2d 791, 794; and the situation presents an unusual exigency, as when the Senate and the House have serious doubts as to action they can take, Opinion of the Justices, 709 A.2d 1183, 1185 (Me.1997). These factors are present.

[¶ 4] There is no question that the concerns of the Senate and House are serious. Initiated Bill 4 makes a major structural change in the valuation of property for property tax purposes, and it is the property tax upon which municipalities rely for revenue.

[¶ 5] Immediacy and an unusual exigency are likewise present. The Legislature has a constitutional duty to make a decision regarding Initiated Bill 4. That is, it must enact the bill, propose a competing measure, or decide to take no action. ME. CONST. art. IV, pt. 3, § 18, cl. 2. The Attorney General has given the Legislature an opinion that the valuation formula in Initiated Bill 4 is unconstitutional and that the severability provisions do not save the rest of the act. The Legislature has before it an immediate issue of whether to enact Initiated Bill 4 as written or propose a competing measure.² In light of these circumstances, we conclude that the requisite seriousness, immediacy and an unusual exigency exist.

[¶ 6] In the past, a majority of justices found that a solemn occasion existed when the House had a question about the constitutionality of an initiated bill that had not yet gone to the electorate. Opinion of the Justices, 623 A.2d 1258, 1261-62 (Me. 1993). There may be policy reasons in favor of amending the constitution to limit the use of advisory opinions from the justices when the questions involve an initiative, but because such amendment has not been enacted, the policy reasons do not allow us to decline to give our opinions. Former Chief Justice Emery indicated that although he considered Article VI, Section 3 of the Maine Constitution "undesirable," Lucilius A. Emery, Advisory Opinions from Justices, 2 ME. L. REV. 1, 1 (1908), because the provision remains in the constitution, "the Justices have no discretion in the matter. Their opinion is not `requested'; it is `required.' There is no suggestion that they may choose whether or not to give it." Lucilius A. Emery, Advisory Opinion of the Justices, No. II, 11 ME. L. REV. 15, 16 (1917).

[¶ 7] The members of the Maine Senate and the House of Representatives have told us that they need our opinion in order to undertake their responsibilities. We take them at their word that an opinion on the constitutionality of the initiated bill by the justices would assist and inform the Senate and House in their deliberations.

II. RESPONSE TO QUESTION ONE

[¶ 8] The first question propounded by the Legislature is the following:

Question 1. If Initiated Bill 4 becomes law, would those provisions of the bill that require the calculation of property taxes based on "full-cash value" or "appraised value," as adjusted, violate the Constitution of Maine, Article IX, Section 8, which requires taxes on real and personal property to be assessed and apportioned equally and according to just value?

A. Summary of Answer

[¶ 9] It is our opinion that the answer to this question is yes. For the reasons set out below, we conclude that those provisions of the initiative that base property taxes on "full-cash value" as defined by the proposed amendment to Title 36 M.R.S.A. § 351(4) (contained in Initiated Bill 4, L.D. 1893 (121st Legis.2004)) would violate the requirement of Article IX, Section 8 of the Maine Constitution mandating that "[a]ll taxes . . . shall be apportioned and assessed equally according to the just value thereof."³

B. Standards Applied

[¶ 10] Because we are asked to give our opinion on the constitutionality of a proposed law, and because that opinion must be based on a reasonable anticipation of the Law Court's conclusion, should it be called upon to rule on the constitutionality of the initiative as enacted in the context of a live controversy, we begin our analysis by addressing the Law Court's standard of review of initiated laws. In evaluating citizen initiatives, the Law Court applies the ordinary rules of statutory construction. League of Women Voters v. Sec'y of State, 683 A.2d 769, 771 (Me.1996) (citing Opinion of the Justices, 460 A.2d 1341, 1345 (Me.1982)). Accordingly, Initiated Bill 4 carries a heavy presumption of constitutionality, and "`[b]efore [the bill] may be declared in violation of the Constitution, that fact must be established to such a degree as to leave no room for reasonable doubt.'" Id. at 771-72 (quoting Orono-Veazie Water Dist. v. Penobscot County Water Co., 348 A.2d 249, 253 (Me.1975)).

C. Analysis

[¶ 11] We must determine, therefore, whether the application of the "full-cash value" definition referenced in the Question is so contrary to the requirements of fair and equal taxation as to leave no reasonable doubt that it violates the Maine Constitution.

[¶ 12] Full-cash value is defined in Initiated Bill 4 as follows:

4. Full-cash value. "Full-cash value" means the governmental entity's total assessed valuation of real or personal property as shown on the 1996-97 tax bill under "total value." For newly constructed or newly purchased real or personal property that changes in ownership after the 1996-97 assessment, "full-cash value" means the appraised value.

L.D. 1893 (121st Legis.2004) (proposed as 36 M.R.S.A. § 351(4)).

[¶ 13] On its face, this definition creates two different bases for tax value purposes: one for property acquired by...