December 16, 2017
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Supreme court says LePage missed chance to veto bills

By Mario Moretto, BDN Staff
Updated:
Troy R. Bennett | BDN | BDN
Troy R. Bennett | BDN | BDN
Gov. Paul LePage

AUGUSTA, Maine — Gov. Paul LePage’s end-of-session gambit backfired Thursday, when the Maine Supreme Judicial Court said the governor has missed his chance to veto 65 bills.

The unanimous advisory opinion was a blow to LePage and Republican lawmakers in the House, who had argued for a decision that would require the Legislature to take up the vetoes, some of which were likely to be sustained.

Instead, the court said the bills had become law, and that the governor should enforce them.

The Legislature recessed on June 30, with the intention of returning on July 16, in order to give LePage enough time to veto any bills he opposed. The governor has 10 days, excluding Sundays, to return vetoes to the Legislature.

But no vetoes came, a notable development given LePage’s pledge to “waste a little of [lawmakers’] time” by vetoing every bill that crossed his desk.

But on July 16 — the last day of the session — LePage attempted to deliver vetoes of 65 bills. House Speaker Mark Eves, a Democrat, and Senate President Michael Thibodeau, a Republican, both rejected the vetoes as out of order. They, as well as the state’s attorney general, said the bills in question had already become law without the governor’s signature because LePage had missed the 10-day deadline.

“You cannot veto a law,” Eves said at the time. Democrats decried LePage’s maneuver as political brinksmanship.

LePage argued that because lawmakers were out of town when the deadline passed, a constitutional provision allowing him to hold the bills until their return was triggered. The provision in question says that the executive branch may hold bills if lawmakers “by their adjournment prevent” the governor from returning them.

The governor asked the court to weigh in, to determine which kind of adjournment triggers the extra time for vetoes, and to opine whether the Legislature must consider the 65 vetoes, or if the bills are law.

In their opinion, the justices said that final adjournment — not a temporary recess — prevents the governor from returning the vetoes. Therefore, the 65 bills in question had already become law without LePage’s signature.

The court also stressed the need for predictability in government, stressing “clarity of process and adherence to settled expectations are critical to assuring that the procedures of democracy do not devolve into uncertainty.”

“We are acutely aware that our conclusions will render ineffective the governor’s objections to 65 bills — a result that we do not take lightly,” the justices wrote. “Nonetheless, in exercising the authority of the judicial branch to respond to an inquiry from the executive branch, we are guided by the need for certainty in, and confirmation of, the constitutionally-identified process that has been employed in Maine for so many years.”

The court relied in part on four decades of precedent in which Maine governors — including LePage — had returned vetoes to the Legislature while it was in recess.

“These examples demonstrate that temporary adjournments of the Legislature near the end of a legislative session — whether until a date certain or until the call of the leadership, and whether beyond a 10-day period — have not prevented governors from returning bills with their objections to their houses of origin within the constitutionally-required 10-day timeframe,” the court wrote.

The Legislature, with the exception of LePage’s allies in the House Republican caucus, had scoffed at the governor’s interpretation of the Constitution and pointed to the language of its temporary adjournment order, which stated the purpose of the recess was to allow LePage time to veto bills.

How, lawmakers asked, could the Legislature have stymied the veto process when it acted deliberately to allow time for that process to take place?

But leaders in the House Republican caucus, including House Minority Leader Ken Fredette, R-Newport, appealed to the court to side with the governor, arguing that lawmakers should be given a chance to decide whether to support LePage’s vetoes.

Aside from the governor, House Republicans had the most at stake in the decision. LePage vetoed dozens and dozens of bills this session, in protest of the Legislature’s refusal to adopt his crusade against the income tax. Minority Republicans in the House were empowered to kill bills they opposed by simply sustaining the governor’s vetoes.

Many of the 65 vetoes in question would likely have been sustained by the caucus, including a law that will ensure asylum seekers and other immigrants will be eligible for General Assistance funds.

In its opinion, the court wrote it understood the desire of some lawmakers in the House Republican caucus to turn back the clock so it could take up the vetoes, but “the Maine Constitution, and nearly four decades of practice and precedent, do not, however, provide for such a process.”

Other high-profile laws in the disputed batch, which the governor must now enforce, include a law to expand access to federally funded birth control to more low-income women, a law to reverse the state’s jail consolidation scheme and a general obligation bond to provide subsidized senior housing through the state.

“The court has rightly rejected Gov. Paul LePage’s legal gymnastics. The decision affirms these bills are law. The governor must enforce them,” Eves wrote in response to opinion. “The ruling also reaffirms the Constitution, historical precedent, and honors the separation of powers in our democracy that protects against partisanship and abuse of power.”

Thibodeau said that while he was unhappy that certain bills in the disputed bunch became law, he was pleased that the court’s opinion reaffirmed the Legislature’s process.

He also said he hoped lawmakers and LePage could start anew after a contentious legislative session and court battle.

“We should now move past this dispute and use this as an opportunity to change the tone in Augusta,” Thibodeau said. “The executive and legislative branches must work together. I encourage the administration to reset their relationship with the Legislature to foster an environment of engagement and collaboration. Effective leadership requires instilling confidence both in our colleagues in Augusta and constituents back home. When that confidence is shaken, we should not be surprised when we are unable to accomplish our goals.”

Justices also rebuked the contention that the Legislature had not properly extended its session past the statutory adjournment date of June 17.

LePage and Fredette had both mused about whether bills passed by the Legislature after that date were invalid because lawmakers did not vote to continue working until the day after statutory adjournment. The court affirmed that it is the prerogative of the Legislature — not the governor — to determine when lawmakers are or are not in session.

The court also nudged LePage to abide by its opinion, while recognizing its role was strictly advisory.

“Cognizant that an opinion of the justices is not an adjudication, and is advisory only, we take the governor at his word that he seeks the input of the justices in order to ‘take care that the laws be faithfully executed,’” they wrote.

LePage’s spokeswoman, Adrienne Bennett, said the governor would enforce laws. In a written response to the opinion, the governor said he looked forward to “moving on and continuing to work for the Maine people”

“This was not about winning or losing; it was about doing things right,” LePage said. “We are fortunate to be able to seek legal opinions from the judicial branch, and we’re thankful the justices came to a fast and fair resolution to this issue.”

Follow Mario Moretto on Twitter at @riocarmine.


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