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Vying Over Vetoes in Vacationland

By: Marshall J. Tinkle

In Maine, the state that bills itself as “Vacationland,” all is not lobster bakes and sunset sails this summer. An ongoing feud between Governor Paul LePage and the Maine Legislature has resulted in a request by the Governor to the judicial branch to resolve a dispute with the legislative branch. The issue: under the Maine Constitution, how much time does the Governor have to veto a bill when the Legislature takes a break?

The fate of sixty-five pieces of legislation may hang on the answer. Like other constitutions, the Maine Constitution provides, as part of a complex system of checks and balances among the three branches of government, that after a bill has been passed by both houses of the legislature, the Governor may prevent it from becoming law by vetoing itsubject to override by 2/3 of the members of each house. Me. Const. art. IV, pt. 3, § 2. Ordinarily, the Governor has 10 days from presentation to exercise this veto power by returning it to the originating house with written objections. Id. However, that time is extended if the Governor is prevented from returning the bill by the Legislature’s “adjournment.” Specifically, the constitutional provision reads: 

If the bill or resolution shall not be returned by the Governor within 10 days (Sundays accepted) after it shall have been presented to the Governor, it shall have the same force and effect as if the Governor had signed it unless the Legislature by their adjournment prevent its return, in which case it shall have such force and effect, unless returned within 3 days after the next meeting of the same Legislature which enacted the bill or resolution; if there is no such next meeting of the Legislature which enacted the bill or resolution, the bill or resolution shall not be a law.

Id. (emphasis added). 

The Maine Legislature meets biennially but not continuously. From the beginning, it has been a part-time legislature. The lawmakers’ salaries are such that they generally require alternative sources of income and consequently are obliged to leave the State House from time to time. 

By statute, the first regular session of the Legislature is to adjourn by the third Wednesday in June, and the second regular session is to adjourn by the third Wednesday in April. 3 M.R.S. § 2. In case of emergency, by a vote of 2/3 of the members of each house, the body may extend the date for adjournment by up to five legislative days. Id. In case of further emergency, by the same vote the Legislature may extend the adjournment date by an additional five legislative days. Id

This year, the statutory adjournment date for the first regular session fell on June 17th. On June 18th both houses voted, by more than the requisite 2/3 majority, to extend the session for five legislative days. On June 23rd, they again voted to extend the session for another five legislative days. The legislators then recessed until June 30th, at which time, after voting on various legislation, they issued a Joint Order, adjourning “until the call of the President of the Senate and the Speaker of the House respectively, when there is a need to conduct business, or consider possible objections of the Governor.”

As of the June 30th adjournment, the Governor had not acted upon 85 bills that had been presented to him less than 10 calendar days before that date.  Before that date he had returned three of these bills without his signature on July 1st and signed seven into law between July 1st and July 8th.  As of July 8th, he was still holding 19 bills for which the ten-day deadline for action had expired and 51 bills enacted on June 30th, for which the time for action would ordinarily expire at midnight on July 11th.  On July 6th, the Senate posted notice that it would reconvene on July 16th.  On July 8th, the Governor issued a press release asserting he would submit his vetoes “when the Legislature meets again for three days.” 

Two senators then asked the Attorney General for an opinion on the Governor’s interpretation on the state constitution. On July 10th, the AG issued her opinion that the Legislature had not “adjourned” within the meaning of Article IV, part third, § 2 and that, hence, bills that the Governor had not acted on for ten days had become law. The Governor, however, deliberately allowed the July 11th deadline to pass without action, relying on his contrary constitutional interpretation. After the Legislature reconvened on July 16th, the Governor’s staff sought to deliver 65 veto messages. The Legislature rejected the vetoes as untimely. That same day, the Legislature announced the conclusion of its first regular session. The next day, the Governor requested an opinion from the Supreme Judicial Court. 

Article VI, section 3 of the Maine Constitution obliges the Justices of the Supreme Judicial Court “to give their opinion upon important questions of law, and upon solemn occasions, when required by the Governor, Senate or House of Representatives.” As recently as March of last year, the Governor invoked this provision to get the Justices to partially resolve an earlier dispute he was having with the Attorney General. This time around, he is posing the following three questions: 

1. What form of adjournment prevents the return of a bill to the Legislature as contemplated by the use of the word, adjournment, in Art. IV, pt. 3, § 2 of the Maine. Constitution?

2. Did any of the action or inaction of the Legislature trigger the constitutional three-day procedure for the exercise of the Governor’s veto? 

3. Are the 65 bills I returned to the Legislature on July 16 properly before that body for reconsideration?

These three inquires probably could be boiled down to one question: Under the circumstances summarized above, was the Legislature in “adjournment” within in the meaning of the veto clause, at least after June 30th until July 16th?

However phrased, the query defies an easy answer, for a few reasons. First, the Maine Constitution does not define “adjournment,” and the Supreme Judicial Court has not previously interpreted the term in this context. The term appears six times in the State Constitution but does not seem to be used in a consistent manner. Thus, for example, “adjournment” refers to a temporary break within a legislative session in Article IV, part 3, § 12, referring to when one house of the Legislature “adjourns for more that 2 days” with the permission of the other house. On the other hand, “adjournment” refers to the end of a legislative session in defining a “recess of the Legislature” for purposes of determining the timing of “people’s veto” measures. See Me. Const. art. IV, pt. 3, §§ 17,-20.   

The Legislature and its supporters argue that the meaning of the term must be understood in its specific context. By its terms, the veto clause applies only to adjournments that “prevent” the Governor from returning bills to the Legislature.

The temporary recess on June 30th, they contend, did not have that effect. Both the Clerk of the House of Representatives and the Secretary of the Senate specifically notified the Governor’s office on July 9th that they would remain available to receive any vetoes. Conversely, it is said, only a final adjournment of the session, or “adjournment sine die,” which terminates all legislative business, would prevent the Governor from returning bills to the Legislature. 

On the other hand, the Governor and his allies reason that since the veto clause does not say “final” adjournment or adjournment “sine die,” the term must be understood in a broader sense. Their opponents counter that this is going down a slippery slope, since the Legislature may be said to adjourn at the end of each legislative week (typically on Thursday), and to count the number of days from all temporary adjournments would create all sorts of uncertainties.  

The Governor further contends that the Legislature was precluded by statute from waiting until June 18th to extend its session. The Legislature’s response is twofold: 

(a) Nothing in the statute prevents the Legislature from acting to extend the session immediately after the session was to come to an end.

(b) Perhaps more significantly, under the separation of powers doctrine (enshrined in the State Constitution in Article III, section 2), it is exclusively for the legislative branch to decide when it is in session and when it adjourns and to select the procedures for doing so. It is noteworthy that not a single legislator raised any objection to the measures relating to adjournment on the floor of the House or the Senate.  To avoid intruding on the legislative prerogative, the Justices should abstain from opining on whether the Legislature correctly followed procedure when it enacted measures to adjourn temporarily and to postpone adjournment. Though the Justices may deem it appropriate to advise the Governor on whether certain bills have automatically become law and are therefore enforceable by the executive branch, they may be unwilling to answer the Governor’s second question, as to whether the Legislature’s “action or inaction” triggered the extension of time for exercising his veto power. They have previously declined requests “made by one branch of government for an advisory opinion regarding the power, duty, or authority of another branch….” Opinion of the Justices, 709 A.2d 1183, 1186 (Me. 1997). 

Although the measures adopted by the Legislature regarding adjournment in the latter part of June raise some interesting questions, it would appear that the Legislature on the whole has the better set of arguments. In terms of history, it can point to the long pattern of Governors (including LePage) returning bills with objections to the Legislature during periods of temporary adjournment. In terms of legal authority, most, though not all, courts that have considered similar constitutional provisions in other jurisdictions have concluded that only an adjournment ending a legislative session prevents the governor from returning a bill to the legislature.  See, e.g., State v. Joseph, 57 So. 942 (Ala. 1911); Harpending v. Haight, 39 Cal. 189 (1870); Hawaiian Airlines v. Public Util. Comm’n, 43 Haw.216 (1959); State ex rel. State Pharmaceutical Ass’n v. Michele, 27 So. 565 (La.1900); Wood v. State Administrative Board, 238 N.W.16 (Mich 1931); Hoppe v. Northern States Power Co. 215 N.W.2d 797 (Minn 1974); Miller v. Huford 9. N.W.. 477 (Neb.1881); In re Opinion of the Justices, 45 N.H. 607 (1864); Hequembourg v. City of Dunkirk, 2 N.Y.S. 447(1888); Corwin v. Comptroller General, 6 S.C. 390 (1875); Redmond v. Ray, 268 N.W.2d 849 (Iowa 1978); State ex rel. Gillmore v. Brown, 451 N.E.2d 235 (Ohio 1983); Johnson City v. Tennessee E. Elec. Co., 182 S.W. 587 (Tenn. 1916); Estate ex rel. Sullivan v. Dammann, 267 N.W. 433 (Wis. 1936). But see Jubelirer v. Pennsylvania Department of State, 859 A.2d 874 (Pa. Com. Ct.2004), aff’d, 871 A.2d 789 (2005); Opinion of the Justices, 175 A.2d 405 (Del. 1961). See generally Annot., What amounts to an adjournment within constitutional provision that bills must become a law if not returned by executive within specified time, unless adjournment prevents its return, 64 A.L.R. 1446 (1930). 

In short, the SJC is confronted not only with the relatively narrow issue of the meaning of adjournment  in the veto clause but also with significant questions concerning separation of powers and the scope of the legislative power over its own procedures. The Supreme Judicial Court is expected to weigh in relatively soon. Briefs have already been submitted and oral argument is scheduled for July 31st.  However the Justices rule, one benefit of the controversy is that it has generated renewed interest in the Maine Constitution, which has too often taken a back seat to its federal counterpart.