MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2020 ME 110 Docket: Ken-20-169 Argued: July 28, 2020 Decided: August 13, 2020
Panel: MEAD, GORMAN, JABAR, HUMPHREY, and HORTON, JJ.
CLARE HUDSON PAYNE et al.
v.
SECRETARY OF STATE et al.
PER CURIAM
[¶1] This case is before us on report from the Superior Court
(Kennebec County, Murphy, J.) pursuant to M.R. App. P. 24(a). The report
submits three questions of law concerning a people’s veto effort seeking to
suspend P.L. 2019, ch. 539, entitled “An Act To Implement Ranked-choice
Voting for Presidential Primary and General Elections in Maine,” through the
November 3, 2020, general election. See Me. Const. art. IV, pt. 3, § 17(2)
(“The effect of any Act, bill, resolve or resolution or part or parts thereof as are
specified in such petition shall be suspended upon the filing of such petition.”).
This opinion is limited to these questions and does not address any substantive
issues presented by ranked-choice voting in Maine. See Me. Senate v. Sec’y of 2
State, 2018 ME 52, ¶ 1, 183 A.3d 749. We accept the report and answer the
three questions as follows:
I. The session of the 129th Legislature in which L.D. 1083 (129th Legis. 2019) was “passed” by the Legislature pursuant to Me. Const. art. IV, pt. 3, §§ 16-17, is that of the Second Regular Session.
II. Public Law 2019, ch. 539, was not effective on January 12, 2020.
III. Title 21-A M.R.S. § 901(1) (2020) permits the filing of an application for a people’s veto petition with the Department of the Secretary of State prior to the adjournment of the legislative session in which the Act in question was passed.
[¶2] Accordingly, we remand the matter to the Superior Court for further
proceedings.
I. BACKGROUND
[¶3] The story of ranked-choice voting in Maine has included many
twists and turns since the system’s introduction in 2016. We do not recount
the earlier chapters of that story here, see generally Me. Senate, 2018 ME 52,
¶¶ 3-13, 183 A.3d 749; instead, our focus is on the Legislature’s recent
enactment of P.L. 2019, ch. 539, extending ranked-choice voting to presidential
primary and general elections, and the people’s veto petition opposing that law.
[¶4] The parties agree upon the facts. In spring 2019, the First Regular
Session of the 129th Legislature introduced and debated L.D. 1083, “An Act To
Implement Ranked-Choice Voting for Presidential Primary and General 3
Elections in Maine.” The Maine House of Representatives voted in favor of the
bill, but the bill remained unfinished business in the Senate when the First
Regular Session of the 129th Legislature adjourned sine die on June 20, 2019,
and was carried over pursuant to a Joint Order. On August 26, 2019, the
one-day First Special Session of the Legislature convened, and the Senate
concurred in enacting L.D. 1083, as amended by Committee Amendment A.
See Comm. Amend. A to L.D. 1083, No. S-313 (129th Legis. 2019). That same
day, the Legislature presented the bill to the Governor and adjourned sine die.
[¶5] On September 6, 2019, the Governor announced her intent to allow
L.D. 1083 to become law without her signature in January 2020 during the
Second Regular Session of the 129th Legislature. See State of Maine Office of
Governor Janet T. Mills, Governor Mills Statement on Ranked Choice Voting for
Presidential Primary and General Elections in Maine (Sept. 6, 2019),
https://www.maine.gov/governor/mills/news/governor-mills-statement-ran
ked-choice-voting-presidential-primary-and-general-elections-maine.
[¶6] On September 10, 2019, counsel for Demitroula Kouzounas, the
intervenor in the present matter, communicated with Deputy Secretary of State
Julie L. Flynn. Referencing a 1979 opinion of the Attorney General, Flynn
opined that L.D. 1083 would not be considered “passed” until “it has been 4
signed by the Governor, vetoed with the Legislature then overriding the veto,
or allowed to become law without the Governor’s signature.” See
Op. Me. Att’y Gen. 79-170. Citing article IV, part 3, section 2 of the Maine
Constitution, Flynn explained that, without the Governor’s signature, the law
would not be “passed” until the “fourth day after . . . this Legislature
reconvenes.” Flynn told Kouzounas that the period within which she could file
a people’s veto application pursuant to 21-A M.R.S. § 901(1) would not start
until after the law became chaptered in 2020. However, Flynn recognized that
“someone might take a contrary position and argue that the 10-business day
period for filing an application to circulate a people’s veto position, pursuant to
21-A M.R.S. § 901(1), started to run once the special session ended on
August 26th,” in which case “the deadline for filing an application under this
statute would be today.” Flynn told Kouzounas’s counsel that should she decide
to file an application that day, “we are willing to keep [the application] on file,
but . . . would not consider the application ‘complete’ until after the legislation
has become a chaptered public law. This means we would not draft a ballot
question or create a petition form for circulation, pursuant to 21-A M.R.S.
§ 901(4) [(2020)], until after the public law is filed with us in January.” 5
Kouzounas filed an application for people’s veto regarding L.D. 1083 that same
day—on September 10, 2019.
[¶7] In accordance with Maine’s biennial legislative system, the Second
Regular Session of the 129th Legislature convened on January 8, 2020. The
Governor did not return L.D. 1083 to the Legislature “within 3 days after” the
beginning of the Second Regular Session, and the bill was chaptered as
P.L. 2019, ch. 539, without her signature on January 12, 2020. Me. Const. art. IV,
pt. 3, § 2. On January 16, 2020, Kouzounas filed an application for a people’s
veto regarding chapter 539 with the Department of the Secretary of State. On
February 3, 2020, the Secretary approved the application and provided petition
forms with which to collect signatures.
[¶8] On March 3, 2020, the Secretary of State administered presidential
primary elections without the use of ranked-choice voting for the Democratic
candidates, and Joseph R. Biden Jr. was declared the victor based on a plurality
of the vote. In light of the COVID-19 pandemic, the Second Regular Session of
the 129th Legislature adjourned sine die on March 17, 2020.
[¶9] In April 2020, Clare Hudson Payne, Philip Steele, Frances M. Babb,
and the Committee for Ranked Choice Voting (collectively, the Committee) filed
a complaint in the Superior Court against the Secretary of State seeking a 6
declaratory judgment (1) that the people’s veto petition was invalid on the
grounds that the law had taken effect on January 12, 2020, and a people’s veto
was thus untimely, or (2) alternatively, that the people’s veto application was
improperly filed because 21-A M.R.S. § 901(1) prevents the filing of an
application prior to the adjournment of the Legislature. The Committee
requested injunctive relief that would prevent the Secretary from accepting or
balloting the people’s veto measure for the November 2020 general election.
In its complaint, the Committee noted that, pursuant to article IV, part 3,
section 17(2) of the Maine Constitution, the Secretary’s acceptance of the
petition would “[have] the effect of suspending the 2019 [ranked-choice voting]
Law, which would alter and impact Maine voting in the 2020 general election
for the President of the United States.” Kouzounas moved to intervene in the
suit.
[¶10] On June 15, 2020, the 90th day after the recess of the Second
Regular Session, proponents submitted a people’s veto petition containing, on
its face, more than the 63,067 signatures required in order to place a proposed
veto of chapter 539 on the ballot at the general election in November 2020. See
Me. Const. art. IV, pt. 3, § 17(1) (stating “Upon written petition of electors, the
number of which shall not be less than 10% of the total vote for Governor cast 7
in the last gubernatorial election preceding the filing of such petition . . . .”);
Me. Const. art. IV, pt. 3, § 17(3) (providing that a people’s veto measure is voted
on “at the next statewide or general election, whichever comes first, not less
than 60 days after” the public proclamation announcing suspension of the law).
[¶11] The parties agreed to stipulated facts in the Superior Court matter.
In an order signed June 15, 2020, the Superior Court granted a report to us to
resolve the following three questions of law pursuant to M.R. App. P. 24(a).
I. Which session of the 129th Legislature was the session at which L.D. 1083, An Act to Implement Ranked-choice Voting for Presidential Primary and General Elections in Maine, was passed for purposes of Me. Const. art. IV, pt. 3, §§ 16 and 17?
II. Was P.L. 2019, ch. 539 effective January 12, 2020?
III. Does 21-A M.R.S.A. § 901(1) permit filing of a people’s veto application with the Department of the Secretary of State prior to adjournment of the legislative session at which the Act in question was passed?
II. DISCUSSION
[¶12] When the trial court reports questions pursuant to M.R.
App. P. 24(a),1 “we independently determine whether acceptance of the report
1 Maine Rule of Appellate Procedure 24(a) states,
(a) Report by Agreement of Important or Doubtful Questions. When the trial court is of the opinion that a question of law presented to it is of sufficient importance or doubt to justify a report to the Law Court for determination, it may so report when: 8
is consistent with our basic function as an appellate court or would improperly
place us in the role of an advisory board due to the lack of a final trial court
judgment to review.” Me. Senate, 2018 ME 52, ¶ 14, 183 A.3d 749 (quotation
marks omitted). Although we recognize that Rule 24 operates as an exception
to the final judgment rule and “should be used sparingly,” Liberty Ins.
Underwriters v. Estate of Faulkner, 2008 ME 149, ¶ 5, 957 A.2d 94 (quotation
marks omitted), we grant the report in the present matter because all of the
criteria for application of Rule 24(a) have been met, see Me. Senate, 2018 ME 52,
¶ 14, 183 A.3d 749.
A. Questions I and II
[¶13] The parties dispute which legislative session, the First Special
Session or the Second Regular Session, is the session in which L.D. 1083 was
“passed” within the meaning of sections 16 and 17 of article IV, part 3, of the
Maine Constitution. Me. Const. art. IV, pt. 3, §§ 16-17. The unique procedural
circumstances of the present matter, coupled with a paucity of evidence of
legislative intent, make this question of first impression a difficult one.
(1) all parties appearing agree to the report;
(2) there is agreement as to all facts material to the appeal; and
(3) the decision thereon would, in at least one alternative, finally dispose of the action. 9
[¶14] Sections 16 and 17 provide in relevant part,
Section 16. Acts become effective in 90 days after recess; exception; emergency bill defined. No Act or joint resolution of the Legislature . . . shall take effect until 90 days after the recess of the session of the Legislature in which it was passed, unless in case of emergency . . . .
Section 17. Proceedings for people’s veto.
1. Petition procedure; petition for people’s veto. Upon written petition of electors, the number of which shall not be less than 10% of the total vote for Governor cast in the last gubernatorial election preceding the filing of such petition, and addressed to the Governor and filed in the office of the Secretary of State by the hour of 5:00 p.m., on or before the 90th day after the recess of the Legislature, or if such 90th day is a Saturday, a Sunday, or a legal holiday, by the hour of 5:00 p.m., on the preceding day which is not a Saturday, a Sunday, or a legal holiday, requesting that one or more Acts, bills, resolves or resolutions, or part or parts thereof, passed by the Legislature but not then in effect by reason of the provisions of the preceding section, be referred to the people ....
Me. Const. art. IV, pt. 3, §§ 16-17(1). The Committee argues that section 17
requires that the phrase “passed by the Legislature” be limited to an
understanding in which “passed” means the final passage by the House and
Senate and does not contemplate later presentment to and action by the
Governor. The Committee urges that by expressly including the word “bills” in
section 17, the framers of the people’s veto envisioned the present situation. In
advancing the theory that sections 16 and 17 refer solely to actions taken by 10
the Legislature, the Committee points to a number of other places in the
Constitution in which the word “pass” is used to describe legislative conduct.2
These references, the Committee suggests, generate the negative implication
that the ranked-choice voting law could not have been “‘passed’ by any action
or inaction of the Governor,” whose role is not to “pass” laws but to “approve”
them. See Me. Const. art. IV, pt. 3, § 2 (explaining that when a bill is “presented
to the Governor, and if the Governor approves, the Governor shall sign it”
(emphasis added)).
[¶15] In opposition to the Committee’s view, the Secretary and
Kouzounas suggest that determining the session of the Legislature in which a
law was “passed” within the meaning of sections 16 and 17 cannot be
accomplished without also considering the Governor’s role in the enactment of
laws, as specified in section 2 of article IV, part 3, of the Maine Constitution. In
their view, “passed” must be interpreted to refer to the completion of the
legislative process rather than being limited to the Legislature’s actions within
2 See, e.g., Me. Const. art. IV, pt. 1, § 1 (observing the people’s “power at their own option to
approve or reject at the polls any Act, bill, resolve or resolution passed by the joint action of both branches of the Legislature” (emphasis added)), pt. 3, § 2 (“Every bill or resolution, having the force of law . . . which shall have passed both Houses, shall be presented to the Governor,” whereby a Governor’s veto returning the bill to the House in which it originated may be overturned if “2/3 of that House shall agree to pass it” before sending the measure to the other House for approval (emphasis added)), pt. 3, § 19 (stating that the Governor’s veto power “shall not extend to . . . any measure initiated by the people and passed by the Legislature without change” (emphasis added)). 11
that process. As Kouzounas and the Secretary explain, pursuant to section 2, a
bill cannot become operative until the Governor is involved.
[¶16] Section 2 provides in relevant part,
Every bill or resolution, having the force of law, . . . shall be presented to the Governor, and if the Governor approves, the Governor shall sign it . . . . If the bill or resolution shall not be returned by the Governor within 10 days (Sundays excepted) 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). Here, the Legislature prevented the Governor’s return of
the bill when it adjourned from its one-day First Special Session on
August 26, 2019, after passing L.D. 1083. Because the same biennial
Legislature (the 129th) convened on January 8, 2020, for its Second Regular
Session—“the next meeting of the same Legislature which enacted the bill”
pursuant to section 2—the Governor had until January 12, 2020, to approve or
return the bill. Me. Const. art. IV, pt. 3, § 2. The Governor took neither action
during that window, and thus the bill acquired “the same force and effect as if
the Governor had signed it” on January 12. Id. The Secretary and Kouzounas
also argue that the bill did not become effective until June 15, 2020, 90 days 12
after the recess of the Second Regular Session, the legislative session in which
the bill became law without the Governor’s signature and therefore the session
in which the bill “passed.” See Me. Const. art. IV, pt. 3, §§ 16-17.
[¶17] When interpreting provisions of the Maine Constitution, “we look
primarily to the language used. Because the same principles employed in the
construction of statutory language hold true in the construction of a
constitutional provision, we apply the plain language of the constitutional
provision if the language is unambiguous. If the provision is ambiguous, we
determine the meaning by examining the purpose and history surrounding the
provision.” Voorhees v. Sagadahoc County, 2006 ME 79, ¶ 6, 900 A.2d 733
(citations omitted) (quotation marks omitted).
[¶18] When construing the plain language, we interpret the
Constitution’s words in light of what meaning they would convey to an
“intelligent, careful voter.” Allen v. Quinn, 459 A.2d 1098, 1100 (Me. 1983)
(quotation marks omitted). Section 20 of article IV, part 3, which was enacted
at the same time as sections 16 and 17 as part of Amendment XXXI, defines a
number of words and phrases used in article IV but does not define the word
“pass.” See Me. Const. art. IV, pt. 3, § 20 (providing definitions including
“electors,” “people,” “recess of Legislature,” “statewide election,” and “written 13
petition”); Resolves 1907, ch. 121 (effective Jan. 6, 1909). Nor is the verb
defined elsewhere in the Constitution. Dictionary definitions from the time
when the initiative and referendum provisions of the Constitution were
enacted cut in favor of both interpretations and do not resolve the question at
hand.3
[¶19] The Committee’s observation that section 17 enables individuals
to submit “Acts, bills, resolves or resolutions” to a people’s veto,
Me. Const. art. IV, pt. 3, § 17(1) (emphasis added), although correct, does not
persuade us that the Legislature included the word “bills” in contemplation of
the present procedural thicket—where the Legislature passed a law but where
the law remained inoperative for more than ninety days after the recess of the
session in which both Houses passed the bill. The Committee fails to
acknowledge the circularity of that interpretation. Taken literally, it is difficult
to comprehend a meaningful distinction in this context between section 17’s
“Acts” and “bills.” Even assuming that a “bill” is a “proposal for a law” whereas
3 See, e.g., Pass, Webster’s New International Dictionary of the English Language (1909) (“13. To advance through all the steps necessary to validity or effectiveness; to be carried through a body that has power to sanction or reject; to receive legislative sanction; to be enacted; as, the bill passed.”); Passage, id. (“8. Of a measure or law: Act of passing; sanction; enactment. Ordinarily passage refers to the final affirmative action by which the assembly enacts the law; but it has been also sometimes used to designate the time of taking effect of the act; or the final act necessary to make it a valid law, as the signing or approving by the governor or other executive.” (citations omitted)). 14
an “Act” is a “[b]ill passed or enacted by both chambers that becomes a public
law,”4 when applying the Committee’s narrow construction, any relevant
distinction between the two dissolves in the context of section 17 because
section 17 ascribes to “bills” and “Acts” alike the notion that they have already
been “passed by the Legislature” by the time a people’s veto petition has been
filed. Me. Const. art. IV, pt. 3, § 17(1).
[¶20] We disagree with the Committee’s contention that the plain
language resolves the present matter and conclude that the meaning of the
word “passed” in sections 16 and 17 is ambiguous. We turn, therefore, to
examine the provisions’ history and purpose. See Voorhees, 2006 ME 79, ¶ 6,
900 A.2d 733.
[¶21] These provisions derive from Amendment XXXI to the Maine
Constitution, which established Maine’s initiative and referendum process
during a nationwide proliferation of direct popular democracy in the early
twentieth century. See Resolves 1907, ch. 121; Farris ex. Rel. Dorsky v. Goss,
143 Me. 227, 230-31, 60 A.2d 908 (1948); David Schuman, The Origin of State
Constitutional Direct Democracy: William Simon U’Ren and the “Oregon System,”
4 Act & Bill, State of Maine Legislature Glossary of Terms, https://legislature.maine.gov/LawMakerWeb/glossary_of_terms.asp (last visited Aug. 6, 2020). 15
67 Temp. L. Rev. 947, 948 (1994). We have observed that the broad purpose of
the referendum is “obvious”: to render “the legislative power not final but
subject to the will of the people.” Moulton v. Scully, 111 Me. 428, 448, 89 A. 944
(1914); see Lawrence L. Pelletier, The Initiative and Referendum in Maine,
16 Mun. Res. Series (Bureau for Res. in Mun. Gov’t, Bowdoin C.), Mar. 1951, at
8-9. That the amendment was intended to effectuate a “fundamental change in
the existing form of government,” Farris, 143 Me. at 230, 60 A.2d 908, is
reflected in its other provisions5 as well as in the high pitch of the legislative
debate in the sessions leading up to its passage. See Legis. Rec. 638-649 (1907);
cf. Legis Rec. 775-82, 841-42 (1905).
[¶22] The history and purpose of these provisions shed some light on the
“complicated machinery” of their text. Moulton, 111 Me. at 448, 89 A. 944.
Considering the ninety-day period that is mirrored in sections 16 and 17, it is
clear that the “purpose of the 90 day suspension in section 16 is to allow time
in which legislative acts or resolves may be subjected to the people’s veto under
section 17.” Opinion of the Justices, 682 A.2d 661, 666 (Me. 1996); see Tinkle,
5 For instance, the amendment also changed the styling of Maine’s laws. Prior to its enactment, laws were entitled, “Be it enacted by the Senate and House of Representatives in Legislature assembled”; ever since, laws bear the title, “Be it enacted by the People of the State of Maine,” such that the “people and not the Legislature [are] the real arbiters of the laws to be finally accepted.” Moulton v. Scully, 111 Me. 428, 448, 89 A. 944 (1914). 16
The Maine State Constitution 98-99 (2d ed. 2013). Indeed, the legislative history
of Amendment XXXI—although sparse and, on its own, inconclusive on the
specific procedural issue before us—reflects a tacit understanding among the
amendment’s enactors that the ninety-day period in section 17 was meant to
correspond with the ninety-day period in section 16, the latter being the point
at which laws passed by the Legislature generally become effective.6 See
Legis. Rec. 640-645 (1907); Legis. Rec. 775, 830 (1905). Other interpretations
over the years have joined in this understanding. See, e.g., Op. Me. Att’y Gen.
79-170; Pelletier, The Initiative and Referendum in Maine, 16 Mun. Res. Series
(Bureau for Res. in Mun. Gov’t, Bowdoin C.), Mar. 1951, at 16 (“Statutes enacted
by the legislature, with certain exceptions, do not become effective until
ninety days after the recess of the session approving the measure, and during
Not only does there exist a clear textual connection between section 16’s suspension of effective 6
dates “until 90 days after the recess of the session of the Legislature in which [legislation] was passed” and section 17’s 90-day period within which to file a people’s veto petition challenging measures “passed by the Legislature but not then in effect by reason of the provisions of [Section 16]” as those constitutional provisions were enacted, but an earlier version of the initiative and referendum amendment, which garnered majority votes in both houses but not by the two-thirds required for a constitutional amendment, see Legis. Rec. 785, 834-35, 855 (1905), had likewise been explicit about the synchrony between the period before a law becomes effective and the period in which a referendum petition may be filed. That bill provided as follows:
No act of the legislature not passed to be enacted by a two-thirds vote of each house . . . shall take effect until ninety days after the recess of the legislature passing it. Any act, if ten per cent of the voters . . . , by petition signed and filed with the secretary of state within said time, shall so request, shall be submitted to the people . . . .
S.D. 244 (72nd Legis. 1905) (emphasis added). 17
this period it is possible for the people to invoke a referendum on the
proposal.”).
[¶23] Although this purpose of the referendum is clear, neither of the
parties’ interpretations of the text of these provisions is perfectly reconcilable
with that purpose. The language of Maine’s Constitution measures the period
beyond which a referendum petition may not be filed not from the date an act
becomes law but rather from “the recess of the session of the Legislature in
which it was passed.” Me. Const. art. IV, pt. 3, § 16. But see Mass. Const., art. 48,
The Referendum, III, § 3 (measuring the duration from when “the law that is
the subject of the petition has become law” (emphasis added)). Ordinarily, by
the close of the ninety-day period following the Legislature’s passage of a bill,
the Governor would have weighed in pursuant to Me. Const. art. IV, pt. 3, § 2.
But Maine’s Constitution contains a unique procedural process; it grants the
Governor a three-day window in which to act on a bill—after a recess—when
the same Legislature’s early adjournment prevented the Governor from having
ten days to respond to the bill. See Me. Const. art. IV, pt. 3, § 2. This unique
process is not found in other state constitutions with otherwise similar people’s
veto schemes.7
7Using the Nebraska Constitution as an example, a section similar to Me. Const. art. IV, pt. 3, § 17 provides that a people’s referendum petition must be “filed in the office of the Secretary of State 18
[¶24] The trouble with the Committee’s position is that it leads to a result
whereby the deadline for invoking a people’s veto of a law would fall before the
date the law could take effect. It is unlikely that the framers intended a result
in which people were expected to petition for a people’s veto before it is clear
that the act in question will be approved; if the Governor opts to veto an act
during the three-day window after the “next meeting of the Legislature which
enacted the bill,” Me. Const. art. IV, pt. 3, § 2, the work involved in the petition
would have been wholly unnecessary, see Me. Const. art. IV, pt. 3, §§ 2, 16-17;
Op. Me. Att’y Gen. 79-170.
[¶25] We recognize that because the Governor’s decision to allow the bill
to become law was effectively delayed until the first three days of the Second
Regular Session, the effective date of the Act was also delayed until ninety days
following the Second Regular Session’s March 17, 2020, recess. This extended
the veto petition deadline to June 15, 2020 (a date that would very likely have
within ninety days after the Legislature at which the act sought to be referred was passed shall have adjourned sine die or for more than ninety days.” Neb. Const. art. III, § 3. Similar to Me. Const. art. IV, pt. 3, § 16, the Nebraska Constitution states that “[n]o act shall take effect until three calendar months after the adjournment of the session at which it passed, unless in case of emergency.” Neb. Const. art. III, § 27. However, Nebraska’s Constitution does not mirror the unique provision found in Me. Const. art. IV, pt. 3, § 2 providing the Governor a three-day window during the next meeting of the same Legislature should the Legislature’s adjournment prevent the Governor’s return of the bill. Instead, it provides that where the Legislature prevents the Governor’s return of the bill by its adjournment, the Governor may file the bill “in the office of the Secretary of State within five days after such adjournment, or [the bill] become[s] a law.” Neb. Const. art. IV, § 15. Hence, the extension of the Governor’s opportunity to respond until the next meeting of the Legislature found in the present situation would not occur under the Nebraska Constitution. 19
occurred even later had the Legislature not been forced to adjourn due to the
COVID-19 pandemic). Whether this result was anticipated or intended by the
drafters of Me. Const. art. IV, pt. 3, §§ 16 and 17, it is the result required by the
language, purpose, and history of those sections.
[¶26] Notwithstanding this possible shortcoming, we conclude that the
Secretary’s understanding is the better construction. We have observed that
“[c]onstitutional provisions are accorded a liberal interpretation in order to
carry out their broad purpose, because they are expected to last over time and
are cumbersome to amend.” Allen, 459 A.2d at 1102. This liberal interpretation
is especially important in the context of the people’s “absolute” right “to enact
legislation and approve or disapprove legislation enacted by the [L]egislature,”
a right that “cannot be abridged directly or indirectly by any action of the
Legislature.” Farris, 143 Me. at 231, 60 A.2d 908.
[¶27] This principle of construction, coupled with the clear purpose of
the ninety-day period to afford the time to invoke a people’s veto until a law’s
effective date, lead us to conclude that the word “passed” in sections 16 and 17
of article IV, part 3, of the Maine Constitution signifies the completion of the
legislative process rather than the Legislature’s actions within that process. Cf.
Moulton, 111 Me. at 448, 89 A. 944 (observing, in holding that a resolution 20
calling for the removal of a sheriff was not subject to the referendum process,
that the referendum process was “intended to apply only to acts or resolves . . .
having the force of law . . . which are passed by both branches [and] are usually
signed by the governor,” and citing for that proposition the force of law clause
in Me. Const. art. IV, pt. 3, § 2 (emphasis omitted) (quotation marks omitted)).
The legislative process for enactment is not complete until the Governor has
had the opportunity to consider the bill.8 See Me. Const. art. IV, pt. 3, § 2;
Stuart v. Chapman, 104 Me. 17, 23, 70 A. 1069 (1908) (“The approval of the
governor was the last legislative act which breathed the breath of life into these
statutes and made them a part of the laws of the State.”). Thus, in answer to
reported Question I, we conclude that the Second Regular Session of the
129th Legislature served as the “session of the Legislature in which [the law]
was passed,” Me. Const. art. IV, pt. 3, § 16, pursuant to sections 16 and 17. And
we answer Question II in the negative and hold that P.L. 2019, ch. 539, was set
to become effective on June 15, 2020, “90 days after the recess of” the
Second Regular Session, Me. Const. art. IV, pt. 3, § 16, and was suspended upon
the filing of the people’s veto petition, see Me. Const. art. IV, pt. 3, § 17(2).
8 We agree with Kouzounas’s structural observation that the placement of the provision regarding
presentment to the Governor within article IV part 3, entitled “Legislative Power,” Me. Const. art. IV, pt. 3, supports our understanding that the Governor’s role is the last necessary step in the legislative process. 21
B. Question III
[¶28] In the alternative, the Committee argues that the application for
the people’s veto violated 21-A M.R.S. § 901(1). The Constitution enables the
Legislature to enact laws “not inconsistent with the Constitution for applying
the people’s veto and direct initiative” and for establishing “procedures for
determination of the validity of written petitions.” Me. Const. art. IV, pt. 3, § 22;
see McGee v. Sec’y of State, 2006 ME 50, ¶ 9, 896 A.2d 933. The Constitution
directs that a completed people’s veto petition must be “filed in the office of the
Secretary of State by the hour of 5:00 p.m., on or before the 90th day after the
recess of the Legislature” in which the challenged act was passed.
Me. Const. art. IV, pt. 3, § 17(1). The Constitution does not dictate timing
requirements for filing an initial application for a people’s veto petition.
Instead, to regulate the filing of an application, the Legislature enacted
subsection 901(1), entitled “Limitation on petitions,” which provides in
relevant part,
An application for a people’s veto referendum petition must be filed in the Department of the Secretary of State within 10 business days after adjournment of the legislative session at which the Act in question was passed.
21-A M.R.S. § 901(1) (emphasis added). The Committee contends that the
phrase “within 10 business days after” must be construed to establish not 22
simply an end date but also a start date—the Legislature’s adjournment—for
filing an application for a people’s veto. Thus, it suggests that Kouzounas, who
filed applications on September 10, 2019, and on January 16, 2020—but not in
the ten-business-day window following the adjournment of the Second Regular
Session—did not file a valid veto application. In contrast, the Secretary and
Kouzounas argue that section 901(1) sets only an end date and not a beginning
cutoff, and therefore, Kouzounas’s early filing was valid.
[¶29] We agree with the latter contention and note that, although we
have not interpreted section 901(1) before, we find persuasive the Superior
Court’s interpretation in Remmel v. Gwadosky, No. AP-97-112 (Me. Super. Ct.,
Cumberland Cty., Nov. 21, 1997). Just as we interpret constitutional provisions
“liberally . . . to facilitate, rather than to handicap, the people’s exercise of their
sovereign power to legislate,” Allen, 459 A.2d at 1102-03, so too do we afford a
liberal interpretation to statutes regulating that right, see Hernett v. Meier,
173 N.W.2d 907, 911-12 (N.D. 1970).
[¶30] In Allen, we examined whether the constitutional provision
governing the people’s initiative, which required that an initiative petition be
“filed in the office of the Secretary of State . . . on or before the fiftieth day after
the date of convening of the Legislature in first regular session,” prescribed a 23
starting date before which applications could not be filed. 459 A.2d at
1098-1101, 1099 n.5 (quotation marks omitted) (citing Me. Const. art. IV, pt. 3.,
§ 18(1)). We affirmed our principle of construing constitutional provisions
liberally in order to effectuate their broad purpose, observing the procedural
specificity the Legislature provided the initiative process, which extended to
“prescribing five o’clock p.m. as the hour of the filing deadline for initiative
petitions.” Id. at 1102-03. We concluded that “a court must be chary of reading
another time limitation into section 18(1) by implication” and should require
additional procedures “only if they are clearly necessary to achieve consistency
with other constitutional provisions or to accomplish the general purpose of
the direct initiative.” Id. at 1103. Finding no such necessity, we held that
section 18(1) did not prohibit the early filing of an application. Id.
[¶31] The Superior Court in Remmel was guided by a decision of the
Nebraska Supreme Court, in which that court concluded that language in its
state constitution dictating that referendum petitions must be “filed in the
office of the Secretary of State within ninety days after the Legislature at which
the act sought to be referred was passed shall have adjourned sine die or for
more than ninety days,” Neb. Const., art. III, § 3 (emphasis added), created only
an end date and did not fix a starting cutoff, see Klosterman v. Marsh, 24
143 N.W.2d 744, 749 (Neb. 1966); Remmel v. Gwadosky, No. AP-97-112
(Me. Super. Ct., Cumberland Cty., Nov. 21, 1997). Other courts have likewise
construed “within” to set only an end date and not a start date. See, e.g., District
of Columbia v. Gantt, 558 A.2d 1120, 1122-24 (D.C. 1989); Southall v. State,
796 S.E.2d 261, 265 (Ga. 2017) (collecting cases and stating that “[t]he word
‘within,’ when used with reference to time, is generally a word of limitation that
means ‘not beyond’ or ‘not later than’—fixing the end, but not the beginning, of
a period”).
[¶32] Finally, we are unpersuaded by the Committee’s policy argument
that fairness demands that every people’s veto proponent be allotted an equal
ten-day period in which to file an application. As the Secretary responds, a
people’s veto application process is not a “horse race.” Different groups of
citizens may wish to challenge different bills for different reasons and are not
in direct competition with one another. In addition, early filing of an
application may be a “boon” rather than a “burden” to the Secretary of State’s
office in processing applications. Allen, 459 A.2d at 1101.
[¶33] In sum, we construe 21-A M.R.S. § 901(1) to set only an end date
for the filing of applications for a people’s veto and not a starting cutoff that 25
would prohibit the early filing of an application prior to the Legislature’s
adjournment. We therefore answer reported Question III in the affirmative.
The entry is:
Report accepted. Remanded to the Superior Court for entry of judgment.
James G. Monteleone, Esq. (orally), Eviana L. Englert, Esq., and Glenn Israel, Esq., Bernstein Shur, Portland, for appellants Clare Hudson Payne et al.
Aaron M. Frey, Attorney General, and Phyllis Gardiner, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee Secretary of State
Ann R. Robinson, Esq., and Joshua D. Dunlap, Esq. (orally), Pierce Atwood LLP, Portland, for appellee Demitroula Kouzounas
Kennebec County Superior Court docket number CV-2020-50 For Clerk Reference Only