AGO 07-1.

Case Date:January 15, 2007
Maine Attorney General Opinions 2007. AGO 07-1. STATE OF MAINE OFFICE OF THE ATTORNEY GENERAL 6 STATE HOUSE STATION AUGUSTA, MAINE 04333-0006 January 15, 200707-1Honorable Glenn Cummings Speaker of the House Maine House of Representatives 2 State House Station Augusta, ME 04333-0002 RE: Proposed Joint Rule 219 Dear Speaker Cummings:You have asked whether the Legislature's Proposed Joint Rule 219, which would impose a supermaj ority voting requirement upon any legislation exceeding the spending limits in 5 M.R.S.A. § 1534, is constitutional. Your January 9, 2007 letter to me sets out the text of the proposed rule, which reads:
Rule 219. Legislation that exceeds spending limitations.
Any legislation that exceeds the spending limitations established under the Maine Revised Statutes, Title 5, section 1534 must be proposed in a separate measure that addresses the excess amount solely and that may be enacted only by a 2/3 vote of the elected members of each chamber.
This rule expires December 2, 2008.
Senate Paper 10 (123rd Legis. 2007). The proposed rule concerns the spending limitations set forth in Title 5, section 1534, which requires that as of December 1st of each even-numbered year, a limitation must be established on all General Fund appropriations for the ensuing legislative biennium. This limitation is calculated separately for each year of the biennium under a formula set forth in section1.535 that is based on the ranking of Maine's local tax burden relative to that of the other states.(fn1) Section 1534(3) identifies "extraordinary circumstances" under which the limitation can be exceeded, such as loss of federal funding. INTRODUCTION The issues presented by your question are complex as well as important. In the short time allowed to our office by the exigencies of the Legislature's business, we have focused on those issues that appear to be most significant in the absence of an opportunity to undertake a more comprehensive review. Proposed Joint Rule 219 contains two requirements. First, any legislation that would result in exceeding the spending limits in Title 5, section 1534 would have to be proposed in a separate measure that addresses only the excess amount. We can think of no constitutional defect in a legislative rule requiring that such a measure be proposed in a separate bill. The second requirement of the proposed rule is that enactment of any such measure would require a 2/3 vote of the elected members of the House and the Senate. This is the aspect of the rule that presents significant constitutional issues and is therefore the focus of our analysis. DISCUSSION A. Sufficiency of a Majority Vote for Non-emergency Enactments Under Maine Constitution Article IV, part 3, section 2, every bill or resolution "having the force of law...which shall have passed both Houses, shall be presented to the Governor..." This provision, which is sometimes referred to as the "presentment clause," has been described by the Justices of the Supreme Judicial Court as follows:
"Every bill or resolution, having the force of law", the phrase employed in Article IV, Part Third, Section 2, means every bill or resolution which, upon completion of the legislative process, shall have the effect of law. The legislative process here involved is composed of concurring action by both Houses of the Legislature together with consideration by the Chief Executive resulting in (a) approval, (b) disapproval, followed by reconsideration and passage by the Legislature over such disapproval, or (c) failure of the Chief Executive to either approve or disapprove within the applicable period of time prescribed in the last sentence of Article IV, Part Third, Section 2.
Opinion of the Justices, 231 A.2d 617, 619 (Me. 1967) (citations omitted). The reference in the presentment clause to bills "which shall have passed both Houses" is not further explained, nor is the term "passed" defined in this context in Maine's Constitution. However, passing legislation is perhaps the quintessential legislative function and the Constitution expressly specifies that in each house "a majority constitutes a quorum to do business." Me. Coast., art. IV, pt. 3 § 3.(fn2) If a majority of the members is sufficient to do business, it would be logical to conclude that "passing" legislation requires a simple majority vote unless the Constitution itself provides otherwise. While the applicability of majority rule in the passage of legislation is so fundamental to American democracy that it is rarely addressed expressly by the courts, we have found several judicial decisions on this point. The Justices of the Maine Supreme Judicial Court discussed the majority rule in responding to questions addressed to them by the Governor during a constitutional crisis that arose in 1879 when the outcome of the election for Governor was in the hands of the newly elected Legislature, and where a number of legislative seats were contested. The Governor requested the opinion of the Justices on several legal issues that were in dispute. In responding to a question concerning the number of selectmen needed to sign the election returns for their town, the Justices relied on the rule applicable to the Legislature and concluded:
[A] majority of the whole must be present to constitute a legal quorum, but a majority of the quorum may act,--and so far as we are aware, the law is so stated in substance by all ancient and modern authorities. The rule applicable to such cases is similar to that which applies to our house of representatives. The whole number of representatives established by law is one hundred and fifty-one. A majority, (that is, seventy-six members) constitute a quorum to do business. If there is actually that number present, and a majority of them (that is thirty-nine members) vote

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