Opinion of the Justices

2023 ME 34OPINION OF THE JUSTICES
OF THE SUPREME JUDICIAL COURT
GIVEN UNDER THE PROVISIONS OF SECTION 3
OF ARTICLE VI OF THE CONSTITUTION
Docket No. OJ-23-1
QUESTIONS PROPOUNDED BY THE MAINE SENATE
AND THE MAINE HOUSE OF REPRESENTATIVES
IN A COMMUNICATION
DATED MAY 11, 2023
ANSWERED JUNE 9, 2023
QUESTIONS PROPOUNDED BY THE MAINE SENATE
AND THE MAINE HOUSE OF REPRESENTATIVES
IN A COMMUNICATION DATED MAY 11, 2023
STATE OF MAINE
In Senate 5/4/2023
WHEREAS, the Constitution of Maine, Article VI, Section 3 provides for
the Justices of the Supreme Judicial Court to render their opinion on important
questions of law and upon solemn occasions; and
WHEREAS, it appears to the 131st Legislature that the following are
important questions of law and that this is a solemn occasion; and
WHEREAS, the Constitution of Maine, Article IV, Part Third, Section 18
provides the ability of electors to initiate and propose to the Legislature any
bill, resolve or resolution and further provides the procedures to be followed
by the initiators, including filing the petition for a direct initiative of legislation,
addressed to the Legislature, with the Secretary of State within a specified
number of days after the convening of a regular session; and
WHEREAS, the Constitution of Maine, Article IV, Part Third, Section 18,
Subsection 2 provides that the Legislature must be given the opportunity to act
on the measure: “The measure thus proposed, unless enacted without change by
the Legislature at the session at which it is presented, shall be submitted to the
electors together with any . . . recommendation of the Legislature” [emphasis
added]; and further that “[i]f the measure initiated is enacted by the Legislature
without change, it shall not go to a referendum vote” [emphasis added]; and
WHEREAS, the Constitution of Maine, Article IV, Part Third, Sections 1
and 4 grant the Legislature the exclusive authority to set its own rules of
procedure, including such rules establishing the manner in which initiated bills
may be presented to the Legislature for consideration; and
2
WHEREAS, between the convening of the 131st Legislature and
March 22, 2023, the Secretary of State certified as valid 4 measures proposed
by electors; and
WHEREAS, on February 16, 2023, the Secretary of State transmitted 2 of
the measures to the Legislature to be produced by the Office of the Revisor of
Statutes as legislative documents for consideration by the Legislature; and
WHEREAS, on March 22, 2023, the Secretary of State transmitted the
other 2 measures to the Legislature to be produced by the Office of the Revisor
of Statutes as legislative documents for consideration by the Legislature; and
WHEREAS, before any measure thus transmitted was produced as a
legislative document and presented to the Legislature, the First Regular Session
of the 131st Legislature adjourned on March 30, 2023; and
WHEREAS, prior to its adjournment, the First Regular Session of the
131st Legislature passed a joint order carrying over to a subsequent session of
the 131st Legislature “. . . all matters not finally disposed of at the time of
adjournment . . . in the possession of the Legislature, including working papers
and drafts in the possession of nonpartisan staff offices”; and
WHEREAS, among the working papers and drafts in the possession of the
nonpartisan staff office the Office of the Revisor of Statutes at the time of
adjournment were the 4 measures not yet prepared as legislative documents;
and
WHEREAS, the 131st Legislature convened in special session on April 5,
2023; and
WHEREAS, on April 10, 2023, 2 of the measures, as prepared by the
Office of the Revisor of Statutes, were transmitted to the Clerk of the House,
given Legislative Document numbers, L.D. 1610 and L.D. 1611, and ordered
printed by the Clerk of the House with the following statement “Transmitted to
the Clerk of the 131st Maine Legislature by the Secretary of State on April 10,
2023 and ordered printed.”; and
3
WHEREAS, these 2 measures were placed on the Advance Journal and
Calendar of the House of Representatives and presented to the Legislature on
April 11, 2023; and
WHEREAS, those 2 measures had not previously been printed and
presented to the Legislature in either the First Regular Session or the First
Special Session of the 131st Legislature; and
WHEREAS, Rule 401 of the Joint Rules of the 131st Legislature provides
that a bill or resolve is not considered to be “in the possession of the
Legislature” until “after it is printed”; and
WHEREAS, on April 11, 2023, the Secretary of State issued 4
proclamations of the Governor proclaiming that an election be held for all 4
measures, calling into question the ability of the Legislature to thereafter
consider these measures as provided by the Constitution of Maine, Article IV,
Part Third, Section 18, Subsection 2; and
WHEREAS, there are now questions before the Legislature regarding the
constitutionality of those proclamations and the efficacy of any actions the
Legislature may take to enact the measures; and
WHEREAS, as it considers action on the initiated bills, it is important that
the Legislature be informed as to the legal questions raised 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 their
opinion to the Senate and the House of Representatives on the following
questions of law:
Question 1. Is the mere transmittal of a measure by the Secretary of State
sufficient to constitute “present[ation] to the Legislature” within the meaning
of the Constitution of Maine, Article IV, Part Third, Section 18, Subsection 2,
notwithstanding that at the time it was transmitted the measure did not exist
as a legislative document, had not been printed pursuant to Joint Rule 401, had
not appeared on any legislative calendar, and that neither the full House nor full
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Senate were made aware that the measure was in possession of the Legislature
until approximately 53 days after transmittal?
Question 2. If the answer to Question 1 is in the affirmative, did the
Constitution of Maine, Article IV, Part Third, Section 18, Subsection 2 preclude
the 131st Legislature, as assembled in the First Regular Session, from carrying
the measure over for consideration in the First Special Session?
Question 3. If the answer to Question 2 is in the negative, does the
Legislature’s Constitutional power enumerated in Article IV, Part Third, Section
1 to “make and establish all reasonable laws and regulations for the defense
and benefit of the people of this State” include the power to consider and enact
the measure into law during the First Special Session?
Question 4. If the answer to Question 3 is in the affirmative and a
measure is thus enacted by the First Special Session of the Legislature without
change, must the identical measure identified in a Proclamation executed by
the Governor on April 7, 2023 “not go to a referendum vote” pursuant to the
Constitution of Maine, Article IV, Part Third, Section 18, Subsection 2?
Question 5. If the answer to Question 4 is in the negative, is a bill thus
enacted by the First Special Session of the Legislature a competing measure to
an identical measure placed on the ballot by proclamation of the Governor on
April 7, 2023, as described in the Constitution of Maine, Article IV, Part Third,
Section 18, Subsection 2?
SPONSORED BY: /s/
(President JACKSON, T.)
COUNTY: Aroostook
5
OPINION OF THE JUSTICES
To the Honorable Maine Senate and Maine House of Representatives:
[¶1] The questions propounded by the Maine Senate and the
Maine House of Representatives relate to four citizen-initiated measures that
were transmitted to the Legislature by the Secretary of State on February 16
and March 22, 2023, but were not prepared as legislative documents for the
Legislature’s consideration until after the First Regular Session of the 131st
Legislature adjourned on March 30, 2023.
[¶2] The Senate and House of Representatives propounded these
questions to us as individual Justices of the Maine Supreme Judicial Court
pursuant to article VI, section 3 of the Maine Constitution, which states, “The
Justices of the Supreme Judicial Court shall be obliged to give their 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; see
Opinion of the Justices, 2017 ME 100, ¶ 1, 162 A.3d 188.
[¶3] It is our honor to provide the following response. All participating
Justices join in this opinion.1
1 Justices Connors and Lawrence decline to answer because their disqualification or recusal is
required by the Maine Code of Judicial Conduct.
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I. BACKGROUND
[¶4] On February 16, 2023, the Secretary of State transmitted two
citizen-initiated measures to the Legislature to be produced by the Office of the
Revisor of Statutes as legislative documents for consideration by the 131st
Legislature. The Secretary of State transmitted two more such measures to the
Legislature on March 22, 2023.2
[¶5] The 131st Legislature adjourned its First Regular Session on
March 30, 2023, before any of the transmitted measures were produced as
legislative documents for the Legislature’s consideration. Before its
adjournment, the Legislature passed a joint order carrying over to a subsequent
session of the 131st Legislature “all matters not finally disposed of at the time
of adjournment of the First Regular Session of the 131st Legislature in the
possession of the Legislature, including working papers and drafts in the
possession of nonpartisan staff offices.” S.P. 594 (131st Legis. 2023). The four
measures at issue here were among the matters not finally disposed of by the
time of adjournment.
2 The Legislature indicates that “the Secretary of State transmitted . . . the measures to the
Legislature to be produced by the Office of the Revisor of Statutes as legislative documents for
consideration by the Legislature,” but does not describe in detail how, or to which legislative officer
or officers, the Secretary of State transmitted the measures.
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[¶6] On March 31, 2023, the Governor called the Legislature into special
session due to “an extraordinary occasion arising out of the need to resolve
many legislative matters pending at the time of the adjournment of the First
Regular Session of the 131st Legislature of the State of Maine.” Proclamation of
Governor Janet T. Mills Convening the Members of the 131st Legislature in
Special Session (Mar. 31, 2023); see Me. Const. art. V, pt. 1, § 13 (“The Governor
may, on extraordinary occasions, convene the Legislature . . . .”). The 131st
Legislature convened its First Special Session on April 5, 2023. On April 7, 2023,
the Governor, concluding that the measures were not “enacted without change
by the Legislature at the session at which [they were] presented,” Me. Const.
art. IV, pt. 3, § 18(2), proclaimed that the measures be referred to the people at
the November 2023 election, see id. art. IV, pt. 3, § 18(3).
[¶7] The Office of the Revisor of Statutes prepared two of the initiated
measures as legislative documents, which it transmitted to the Clerk of the
House on April 10, 2023. The documents were given legislative document
numbers, L.D. 1610 and L.D. 1611, and ordered printed by the Clerk of the
House with the following statement: “Transmitted to the Clerk of the 131st
Maine Legislature by the Secretary of State on April 10, 2023 and ordered
8
printed.” Both measures were included on the Advance Journal and Calendar
of the House of Representatives on April 11, 2023.
[¶8] The Governor’s proclamation that an election be held for each of the
four measures has called into question whether the Constitution of Maine
provides the Legislature with the authority to consider the measures in the
First Special Session. See Me. Const. art. IV, pt. 3, § 18(2). We invited briefs from
the Maine Legislature, Governor Mills, the Secretary of State, the
Attorney General, and any other interested party or entity. We received briefs
from the Maine Legislature, the Attorney General (joined by the Secretary of
State and, in relevant part, by Governor Mills); Protect Maine Elections, Inc.; and
Maine Affordable Energy Ballot Question Committee. We conducted an oral
argument on the questions on May 31, 2023.
II. DISCUSSION
A. Authority to Issue an Advisory Opinion
[¶9] The Maine Constitution places limitations on the authority of the
Justices to provide advisory opinions, which represent the advice of the
participating individual Justices. Opinion of the Justices, 2017 ME 100, ¶ 9, 162
A.3d 188; see Me. Const. art. VI, § 3. Such opinions are not binding in future
cases and have no conclusive effect. Opinion of the Justices, 2017 ME 100, ¶ 9,
9
162 A.3d 188. They may, however, provide necessary guidance and analysis for
decision-making by the other branches of government. Id. “The tension
between the constitutionally required separation of powers and the
constitutionally provided authority of the Justices of the Maine Supreme
Judicial Court to provide official but nonbinding advice to the other Branches is
addressed through the balance articulated in the requirements (1) setting out
who may seek the Justices’ advice, (2) inquiring whether that advice is sought
as to important questions of law, and (3) providing that a solemn occasion must
exist for the Justices’ provision of such advice.” Id. ¶ 17; see Me. Const. art. VI,
§ 3. The Justices must strictly observe these limitations on their authority.
Opinion of the Justices, 2017 ME 100, ¶ 17, 162 A.3d 188.
[¶10] Here, the Senate and the House of Representatives are authorized
to seek the Justices’ advice about their own authority and duties. See Me. Const.
art. VI, § 3; Opinion of the Justices, 2017 ME 100, ¶¶ 19, 24, 162 A.3d 188. The
questions are not inconsequential, “esoteric, or purely academic” but present
important questions of law concerning the Legislature’s authority to act.
Opinion of the Justices, 2017 ME 100, ¶ 20, 162 A.3d 188. Specifically, the
Legislature seeks to determine the scope of its authority to legislate by asking
whether the citizen-initiated measures were “presented” to it during the First
10
Regular Session and, if so, whether the Maine Constitution authorizes it to act
on those measures in its First Special Session. Me. Const. art. IV, pt. 3, § 18(2).
These are the types of “important question[s]” that Justices have answered in
the past. See, e.g., Opinion of the Justices, 2015 ME 107, ¶¶ 18-27, 123 A.3d 494(considering whether the Legislature effectively extended a legislative
session); Opinion of the Justices, 275 A.2d 800, 803-05 (Me. 1971) (considering
whether the Maine Constitution authorized the Legislature, upon gubernatorial
inaction, to order a special election on citizen-initiated legislation).
[¶11] There must also be a “solemn occasion[].” Me. Const. art. VI, § 3.
“[A] solemn occasion is one that arises when questions are of a serious and
immediate nature, and the situation presents an unusual exigency.” Opinion of
the Justices, 2017 ME 100, ¶ 22, 162 A.3d 188 (quotation marks omitted). “The
question presented must be one of live gravity, that is, one of instant, not past
nor future, concern.” Id. ¶ 23 (quotation marks omitted). The entity asking the
question must be seeking advice to guide its own actions relating to matters of
public concern that are not tentative, hypothetical, or remote. Id. ¶¶ 24-26,
28-29. If a question is overly complex because of intersecting legal and factual
variables, the Justices may determine that they cannot answer the question. Id.
¶ 27.
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[¶12] Here, the Legislature has a limited time in which to act before the
November 2023 election if it is authorized to consider the proposed measures.
Thus, we conclude that the Senate and House of Representatives have asked
questions about their authority that are of live gravity, are of a “serious and
immediate nature,” and present “an unusual exigency.” Id. ¶¶ 22-23. They are
questions in which the relevant facts are known and we can offer a meaningful
opinion. Id. ¶¶ 26-27. We conclude that the Senate and the House of
Representatives have presented important questions of law upon a solemn
occasion, and we proceed to answer all questions to which a response is
required.
B. Consideration of the Questions
[¶13] In answering the questions, we are guided by the
Maine Constitution, which provides as follows with respect to the direct
initiative of legislation:
Section 18. Direct initiative of legislation.
1. Petition procedure. The electors may propose to the
Legislature for its consideration any bill . . . by written petition
addressed to the Legislature or to either branch thereof and filed
in the office of the Secretary of State by the hour of 5:00 p.m., on or
before the 50th day after the date of convening of the Legislature
in first regular session or on or before the 25th day after the date
of convening of the Legislature in second regular session, except
that the written petition may not be filed in the office of the
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Secretary of State later than 18 months after the date the petition
form was furnished or approved by the Secretary of State. . . .
2. Referral to electors unless enacted by the Legislature
without change; number of signatures necessary on direct
initiative petitions; dating signatures on petitions; competing
measures. For any measure thus proposed by electors, the
number of signatures shall not be less than 10% of the total vote
for Governor cast in the last gubernatorial election preceding the
filing of such petition. A signature is not valid if it is dated more
than one year prior to the date that the petition was filed in the
office of the Secretary of State. The measure thus proposed, 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 statewide
election to be held not less than 60 days after the first vote thereon
be submitted by itself if it receives more than 1/3 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.
3. Timing of elections; proclamation by Governor. The
Governor 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 an election to
be held in November of the year in which the petition is filed. If the
Governor fails to order a measure proposed to the Legislature and
not enacted without change to be submitted to the people at such
an election by proclamation within 10 days after the recess of the
Legislature to which the measure was proposed, the Secretary of
State shall, by proclamation, order such measure to be submitted
13
to the people at an election as requested, and such order shall be
sufficient to enable the people to vote.
Me. Const. art. IV, pt. 3, § 18. In construing the Maine Constitution, we may
conduct an examination of “text; purpose; history; common law, statutes, and
rules; economic and sociological considerations; and precedent.” Winchester v.
State, 2023 ME 23, ¶ 14, 291 A.3d 707. The constitutional provisions that
govern the direct initiative of legislation “must be liberally construed to
facilitate, rather than to handicap, the people’s exercise of their sovereign
power to legislate.” McGee v. Sec’y of State, 2006 ME 50, ¶ 25, 896 A.2d 933(quotation marks omitted).
1. Question 1—Presentation of an Initiated Measure to the
Legislature
Question 1. Is the mere transmittal of a measure by the
Secretary of State sufficient to constitute “present[ation] to the
Legislature” within the meaning of the Constitution of Maine,
Article IV, Part Third, Section 18, Subsection 2, notwithstanding
that at the time it was transmitted the measure did not exist as a
legislative document, had not been printed pursuant to Joint Rule
401, had not appeared on any legislative calendar, and that neither
the full House nor full Senate were made aware that the measure
was in possession of the Legislature until approximately 53 days
after transmittal?
[¶14] The Maine Constitution provides that a proposed citizen-initiated
measure, “unless enacted without change by the Legislature at the session at
which it is presented, shall be submitted to the electors together with any
14
amended form, substitute, or recommendation of the Legislature, and in such
manner that the people can choose between the competing measures or reject
both.” Me. Const. art. IV, pt. 3, § 18(2) (emphasis added). Here, the Secretary of
State “transmitted” the proposed measures to the Legislature during the First
Regular Session, but the Legislature’s staff and the Office of the Revisor of
Statutes did not print—and the Legislature did not consider—the measures
before the adjournment of that session. At issue is whether the measures were
“presented” to the Legislature during the First Regular Session. Id.
[¶15] The sentence we interpret, read in isolation, does not explicitly
resolve the issue because it does not indicate how or by whom a proposed
measure is “presented” to the Legislature. Cf. Jones v. Sec’y of State, 2020 ME
113, ¶ 11, 238 A.3d 982 (“We will interpret the constitutional or statutory
provision according to its plain meaning if the language is unambiguous.”);
State v. Hoppe, 215 N.W.2d 797, 801 (Minn. 1974) (“[T]he language of a
constitutional provision, when . . . clear, explicit, unambiguous, and free from
obscurity, is the best evidence of the underlying intent.” (quotation marks
omitted)). Thus, we expand the scope of our inquiry to interpret the provision’s
meaning. See Winchester, 2023 ME 23, ¶ 14, 291 A.3d 707.
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[¶16] Because the Maine Constitution itself authorizes the Legislature to
enact laws to implement the direct initiative process described in the
Constitution, see Me. Const. art. IV, pt. 3, § 22; McGee, 2006 ME 50, ¶ 20, 896
A.2d 933, the laws adopted by the Legislature, see 21-A M.R.S. §§ 901-907
(2023), are helpful in understanding the constitutional process. See
Winchester, 2023 ME 23, ¶ 14, 291 A.3d 707 (authorizing the consideration of
statutes in interpreting the Maine Constitution). Because a statute must be
interpreted in a way that “will satisfy constitutional requirements” if the
interpretation is reasonable, Martin v. MacMahan, 2021 ME 62, ¶ 24, 264 A.3d
1224 (quotation marks omitted), the statutes governing ballot initiatives,
which effectuate constitutional requirements and do not conflict with them, are
important to our constitutional interpretation. We therefore summarize the
direct initiative process laid out by the Maine Constitution and the statutes
adopted to implement that process.
[¶17] The electors begin the process by “propos[ing]” a bill “to the
Legislature for its consideration . . . by written petition addressed to the
Legislature or to either branch thereof and filed in the office of the Secretary of
State.” Me. Const. art. IV, pt. 3, § 18(1) (emphasis added). Though the
legislation offered in the petition is proposed to the Legislature, see id., the
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Secretary of State decides whether the legislation qualifies to be “submitted” to
the Legislature, 21-A M.R.S. § 907, by “determin[ing] the validity of the petition
and issu[ing] a written decision stating the reasons for the decision within 30
days from the date of filing,” id. § 905(1); see Me. Const. art. IV, pt. 3, § 18(2)
(imposing requirements for a valid petition). If the petition is “determined
valid by the Secretary of State pursuant to section 905, subsection 1 and is
submitted to the Legislature,” the pertinent joint standing committee of the
Legislature must hold a public hearing unless a public hearing is waived by a
two-thirds vote in each house. 21-A M.R.S. § 907 (emphasis added). “The
measure thus proposed, unless enacted without change by the Legislature at the
session at which it is presented, shall be submitted to the electors . . . .” Me.
Const. art. IV, pt. 3, § 18(2) (emphasis added); see also id. art. IV, pt. 3, § 1
(establishing the Legislature’s lawmaking authority); id. art. IV, pt. 3, § 18(3)
(“The Governor 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 an election to be held in November of the year
in which the petition is filed.” (emphasis added)).
[¶18] Under this unified constitutional and statutory scheme, a petition
is “submitted” to the Legislature on the date of transmission of the petition to
17
the Legislature from the Secretary of State. 21-A M.R.S. § 907; see id. § 905(1);
Me. Const. art. IV, pt. 3, § 18(2). The transmittal date is also the date of
“presentation” because the electors present a proposal to the Legislature
through filing with the Secretary of State, and the electors’ presentation “to the
Legislature” becomes complete once the Secretary, after validating the petition,
transmits the proposed measure to the Legislature. Me. Const. art. IV, pt. 3,
§ 18(1), (2); see Me. Const. art. IV, pt. 3, § 1 (authorizing the Legislature to
consider, in its second regular session, legislation “presented to the Legislature
by written petition of the electors under the provisions of Article IV, Part Third,
Section 18” (emphasis added)); Avangrid Networks, Inc. v. Sec’y of State, 2020
ME 109, ¶ 6, 237 A.3d 882 (stating that the Secretary of State “presented” an
initiative to the Legislature in a communication).
[¶19] The history of the constitutional provision at issue supports this
interpretation. See Winchester, 2023 ME 23, ¶ 14, 291 A.3d 707 (authorizing
the consideration of constitutional history in interpreting the Maine
Constitution). The constitutional amendment that initially created the direct
initiative process in 1907 provided that citizens could submit proposed
legislation
by written petition addressed to the legislature or to either branch
thereof and filed in the office of the secretary of state or presented
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to either branch of the legislature at least thirty days before the
close of its session. Any measure thus proposed by not less than
twelve thousand electors, 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.
Resolves 1907, ch. 121 (effective Jan. 6, 1909) (emphasis added).
[¶20] The emphasized language remained in place until the adoption of
a definitive requirement that every petition must be filed with the Secretary of
State. Const. Res. 1975, ch. 2 (effective Nov. 24, 1975). The provision then read
as follows: “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 by the hour of five o’clock, p.m., on the fiftieth day after
the date of convening of the Legislature in regular session.” Id. (emphasis
added). Section 18 continued to provide for a measure’s submission to the
electors “unless enacted without change by the Legislature at the session at
which it is presented.”3 Id.Subsequent amendments did not affect the language regarding the session at which a measure
3
is “presented.” Const. Res. 1981, ch. 1 (effective Nov. 23, 1981); Const. Res. 2005, ch. 2 (effective
Nov. 27, 2006).
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[¶21] Because section 18(2) initially included multiple means of
submitting the petition—by filing it in the office of the Secretary of State “or
present[ing it] to either branch of the legislature” within a specified time before
the end of the legislative session, Resolves 1907, ch. 121 (effective Jan. 6,
1909)—the reference to the proposed measure being “presented” must have
initially referred to the petitioners’ presentation of it to the Legislature either
directly by the petitioners or through the Secretary of State. The presentation
now must be through the Secretary of State, and that presentation is complete
upon the Secretary of State’s transmittal to the Legislature.
[¶22] This interpretation of section 18(2) is also in harmony with
another provision of the Maine Constitution that refers to the direct initiative
process, indicating that “the business of the second regular session of the
Legislature” is limited to certain matters, including “legislation presented to the
Legislature by written petition of the electors under the provisions of Article IV,
Part Third, Section 18.” Me. Const. art. IV, pt. 3, § 1 (emphasis added); see
Laurence H. Tribe, American Constitutional Law, § 1-12 at 38 (3d ed. 2000)
(stating that interpreting constitutional text “requires close attention to
linguistic context—that is, to surrounding language; to how the relevant word
or phrase is used elsewhere in the document”); Avangrid Networks, Inc., 2020
20
ME 109, ¶ 27, 237 A.3d 882 (examining constitutional language in the context
of the Maine Constitution as a whole). Again, the electors4 are referenced as the
entities who “present” a proposed measure to the Legislature, which supports
an interpretation of section 18 to provide for the electors’ presentation of their
proposal to the Legislature through the Secretary of State.5
[¶23] Finally, because the Maine Constitution contemplates the electors’
presentation of the proposals to the Legislature during a regular session, see
Me. Const. art. IV, pt. 3, § 18(1), section 18(2) should not be interpreted to allow
a delay in the constitutional act of “presentation” when legislative staff does not
promptly prepare the transmitted measures for consideration by the
Legislature. Cf. Joint Rule 210 (131st Me. Legis. 2023) (“All bills and other
instruments, including bills proposed by initiative, must be allocated to the
Maine Revised Statutes as appropriate and corrected for form, legislative style
and grammar by the Revisor of Statutes before printing.”).
[¶24] We consider the initiated measures to have been “presented” when
the Secretary of State transmitted them to the Legislature. Me. Const. art. IV, pt.
4 See Me. Const. art. II, § 1 (establishing the scope of the term “electors”).
5 For this reason, the proclamation of the Governor here was properly made “subsequently to the
recess of the session of the Legislature to which such measure was proposed.” Opinion of the Justices,
275 A.2d 800, 804 (Me. 1971); see Me. Const. art. IV, pt. 3, § 18(3).
21
3, § 18(2). Thus, our answer to the first question is yes. We therefore proceed
to the remaining questions.
2. Questions 2 through 5—Scope of the Legislature’s Authority to
Act on the Measures in the First Special Session
Question 2. If the answer to Question 1 is in the affirmative,
did the Constitution of Maine, Article IV, Part Third, Section 18,
Subsection 2 preclude the 131st Legislature, as assembled in the
First Regular Session, from carrying the measure over for
consideration in the First Special Session?
Question 3. If the answer to Question 2 is in the negative,
does the Legislature’s Constitutional power enumerated in Article
IV, Part Third, Section 1 to “make and establish all reasonable laws
and regulations for the defense and benefit of the people of this
State” include the power to consider and enact the measure into
law during the First Special Session?
Question 4. If the answer to Question 3 is in the affirmative
and a measure is thus enacted by the First Special Session of the
Legislature without change, must the identical measure identified
in a Proclamation executed by the Governor on April 7, 2023 “not
go to a referendum vote” pursuant to the Constitution of Maine,
Article IV, Part Third, Section 18, Subsection 2?
Question 5. If the answer to Question 4 is in the negative, is
a bill thus enacted by the First Special Session of the Legislature a
competing measure to an identical measure placed on the ballot by
proclamation of the Governor on April 7, 2023, as described in the
Constitution of Maine, Article IV, Part Third, Section 18, Subsection
2?
[¶25] We consider the remaining four questions together because they
are analytically related. Here, the Legislature did not act on the proposed
22
measures during the session in which the measures were presented but rather
adjourned before its staff and the Office of the Revisor of Statutes had produced
and delivered legislative documents for the Legislature’s consideration. The
Legislature passed a joint order, however, to carry all pending matters over to
the next session.
[¶26] For purposes of determining the scope of the Legislature’s
authority to act on the initiatives in the First Special Session, we begin by
considering the opinion of the Justices who reasoned, in 1996, that the
Legislature was free to consider competing measures during a special session.
Opinion of the Justices, 680 A.2d 444, 446 (Me. 1996). There, the Justices opined
that the Constitution “does not appear to restrict the Legislature’s ability to
craft a competing measure to the same session” but instead “directs the
Legislature to submit the competing measure to the electors in time for the
people to choose between the competing measures or reject both.” Id. Those
Justices construed the Constitution to enable the Legislature “to enact a
competing measure at a subsequent Special Session within the same biennial
session of that Legislature,” and opined that their construction was “supported
by the broad language vesting all legislative power in the Legislature’s two
23
Houses in Article IV, Part First, § 1, subject only to the people’s reserved
powers.”6 Id.
[¶27] There is a distinction in the constitutional text between the
Legislature offering a competing measure and the Legislature enacting a
proposed measure without change. Section 18(2) provides, “The measure thus
proposed, 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.” Me. Const. art. IV, pt. 3, § 18(2) (emphasis added). There is no limitation,
however, on when any “amended form, substitute, or recommendation of the
Legislature” may be produced. Id.
[¶28] Section 18(2) subsequently provides that “[i]f the measure
initiated is enacted by the Legislature without change, it shall not go to a
referendum vote” except upon the electors’ petition for a people’s veto of
legislation. Me. Const. art. IV, pt. 3, § 18(2) (emphasis added); see Me. Const.
6 The Law Court has also held that the Legislature may enact emergency legislation that would
otherwise constitute a competing measure before the election. McCaffrey v. Gartley, 377 A.2d 1367,
1371 (Me. 1977).
24
art. IV, pt. 3, § 17. That provision does not indicate when the enactment by the
Legislature without change must occur. See id. art. IV, pt. 3, § 18(2).
[¶29] As mentioned above, we construe the constitutional text as a
unified whole. See Tribe, American Constitutional Law, § 1-12 at 38;
Avangrid Networks, Inc., 2020 ME 109, ¶ 27, 237 A.3d 882. In doing so, we also
consider the implementing statutes pertaining to the direct initiative of
legislation. See Winchester, 2023 ME 23, ¶ 14, 291 A.3d 707; Martin, 2021 ME
62, ¶ 24, 264 A.3d 1224.
[¶30] The relevant constitutional text provides that a petition must be
filed with the Secretary of State “by the hour of 5:00 p.m., on or before the 50th
day after the date of convening of the Legislature in first regular session,” and
“not . . . later than 18 months after the date the petition form was furnished or
approved by the Secretary of State.” Me. Const. art. IV, pt. 3, § 18(1). After
receiving the filing, the Secretary of State “determine[s] the validity of the
petition and issue[s] a written decision stating the reasons for the decision
within 30 days from the date of filing.” 21-A M.R.S. § 905(1). It is at that point
transmitted and thereby “presented” to the Legislature. Me. Const. art. IV, pt. 3,
§ 18(2); see also 21-A M.R.S. § 907. After the Secretary of State issues the
decision, however, it may be challenged by a qualified voter. Me. Const. art. IV,
25
pt. 3, § 22; 21-A M.R.S. § 905(2)-(4). If challenged, the decision is subject to a
constitutionally mandated judicial review process that can take up to “100 days
from the date of filing of [the] written petition in the office of the Secretary of
State.” Me. Const. art. IV, pt. 3, § 22; see 21-A M.R.S. § 905(2)-(4).
[¶31] The Legislature may, under this constitutional and statutory
framework, be presented with a proposed initiative that has not yet been
conclusively determined to be valid. In these circumstances, some delays might
arise in the Legislature’s consideration of a proposed initiative and result in the
measures not being fully considered before the end of a regular session. The
possibility that legislative proceedings on an initiative may be delayed is
especially profound because the Legislature must, by statute, hold a public
hearing on the proposed legislation unless it waives the hearing by a two-thirds
vote. See 21-A M.R.S. § 907. Thus, we opine that a Legislature that does not
enact a measure without change during a regular session can still—during a
special session—enact any of the proposed measures without change.7
[¶32] If the Legislature enacts a measure without change, the measure
will not be submitted to the electorate absent a petition for a people’s veto. See
7 If it is an identical measure, it cannot be a competing measure because a competing measure
deals “with the same general subject matter . . . in a manner inconsistent with the initiated measure
so that the two cannot stand together.” Farris ex rel. Dorsky v. Goss, 143 Me. 227, 232, 60 A.2d 908(1948).
26
Me. Const. art. IV, pt. 3, § 18(2); Tinkle, The Maine Constitution 103 (2d ed.
2013). To hold otherwise would thwart the constitutional power of the
Legislature to adopt an initiative without change. See Me. Const. art. IV, pt. 3,
§ 18(2); see also Me. Const. art. IV, pt. 3, § 1 (“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 this Constitution, nor to that of the United States.”);
Sawyer v. Gilmore, 109 Me. 169, 180, 83 A. 673 (1912) (“The powers of the
Legislature in matters of legislation, broadly speaking are absolute, except as
restricted and limited by the Constitution.”). More importantly, it would also
thwart the constitutionally conferred opportunity of the electors to “propose to
the Legislature for its consideration any bill, resolve or resolution” through the
direct initiative process. Me. Const. art. IV, pt. 3, § 18(1) (emphasis added); see
McGee, 2006 ME 50, ¶ 25, 896 A.2d 933. This interpretation also accords with
common sense: it would be strange, indeed, if the Legislature could enact a
similar measure to become a competing measure and yet be divested of the
power to enact the very measure the electors proposed.
[¶33] Thus, we interpret the Maine Constitution to allow the Legislature
to adopt any of the proposed measures without change. See Me. Const. art. IV,
27
pt. 3, § 18(2). If the Legislature does adopt a measure, it should be mindful of
the need to do so in a timely fashion to prevent ballots from including questions
that are not properly submitted to the electors for a vote. Cf. Opinion of the
Justices, 680 A.2d at 446 (interpreting section 18(2) to “direct[] the Legislature
to submit the competing measure to the electors in time for the people to
choose between the competing measures or reject both”).
[¶34] Thus, our response to Question 2 is no, our response to Question 3
is yes, and our answer to Question 4 is yes. We do not answer Question 5.
III. CONCLUSION
[¶35] In the context of the questions presented and for the reasons
stated above, we answer the questions as follows:
Question 1. Is the mere transmittal of a measure by the
Secretary of State sufficient to constitute “present[ation] to the
Legislature” within the meaning of the Constitution of Maine,
Article IV, Part Third, Section 18, Subsection 2, notwithstanding
that at the time it was transmitted the measure did not exist as a
legislative document, had not been printed pursuant to Joint Rule
401, had not appeared on any legislative calendar, and that neither
the full House nor full Senate were made aware that the measure
was in possession of the Legislature until approximately 53 days
after transmittal?
Answer: Yes.
Question 2. If the answer to Question 1 is in the affirmative,
did the Constitution of Maine, Article IV, Part Third, Section 18,
Subsection 2 preclude the 131st Legislature, as assembled in the
28
First Regular Session, from carrying the measure over for
consideration in the First Special Session?
Answer: No.
Question 3. If the answer to Question 2 is in the negative,
does the Legislature’s Constitutional power enumerated in Article
IV, Part Third, Section 1 to “make and establish all reasonable laws
and regulations for the defense and benefit of the people of this
State” include the power to consider and enact the measure into
law during the First Special Session?
Answer: Yes.
Question 4. If the answer to Question 3 is in the affirmative
and a measure is thus enacted by the First Special Session of the
Legislature without change, must the identical measure identified
in a Proclamation executed by the Governor on April 7, 2023 “not
go to a referendum vote” pursuant to the Constitution of Maine,
Article IV, Part Third, Section 18, Subsection 2?
Answer: Yes.
Question 5. If the answer to Question 4 is in the negative, is
a bill thus enacted by the First Special Session of the Legislature a
competing measure to an identical measure placed on the ballot by
proclamation of the Governor on April 7, 2023, as described in the
Constitution of Maine, Article IV, Part Third, Section 18, Subsection
2?
We do not answer this Question.
Dated: June 9, 2023
/s/
Valerie Stanfill
Chief Justice
/s/
Andrew M. Mead
/s/
Joseph M. Jabar
/s/
Andrew M. Horton
/s/
Wayne R. Douglas
Associate Justices
2
Melissa A. Hewey, Esq., David M. Kallin, Esq. (orally), and Oliver Mac Walton,
Esq., Drummond Woodsum & MacMahon, Portland, for the Maine State
Legislature
Aaron M. Frey, Attorney General, and Jonathan R. Bolton, Asst. Atty. Gen.
(orally), Office of the Attorney General, Augusta, for the Attorney General
Paul E. Suitter, Asst. Atty. Gen., Office of the Attorney General, Augusta, for the
Secretary of State
Gerald D. Reid, Esq., and Timothy J. Feeley, Esq., Office of the Governor, Augusta,
for the Governor
Benjamin Gaines, Esq. (orally), Gaines Law, LLC, Portland, for Protect Maine
Elections, Inc.
Nolan L. Reichl, Esq., Julia B. MacDonald, Esq., and Joshua D. Dunlap, Esq.
(orally), Pierce Atwood LLP, Portland, for Maine Affordable Energy Ballot
Question Committee