August 17, 2019
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Veto deadline fight erupts as lawmakers say LePage missed his chance

Gabor Degre | BDN
Gabor Degre | BDN
Gov. Paul LePage speaks at the Maine Heritage Policy Center luncheon on March 4 at the Cross Insurance Center in Bangor.

AUGUSTA, Maine — The stage is set for a contentious fight between Gov. Paul LePage and the Legislature over whether at least 20 bills approved by lawmakers have become law or not.

On Wednesday afternoon, the Legislature had begun the process to place many of those bills on the books, announcing that they had become law after the governor took no action. But LePage says the bills are in his office, vetoed, and that lawmakers must still vote on whether to override his vetoes.

LePage claimed authority under the Maine Constitution to hold the bills until after the Legislature reconvenes. The rule “is very, very clear,” he said in an interview with reporters.

“Even I can understand it, and I’m French,” he said.

Lawmakers and other experts, however, said LePage was misinterpreting the Constitution’s position on legislative adjournment, thereby losing his chance to issue vetoes by not returning the bills to the Legislature within the required timeframe.

Per the Maine Constitution, during a legislative session, a governor has 10 days — excluding Sundays — to sign enacted bills into law or return them, vetoed, to the Legislature. If neither occurs, the bill automatically becomes law without the governor’s signature. LePage is currently sitting on 20 bills that have passed the deadline, and there are dozens more for which the clock is ticking.

But, if the Legislature adjourns during this 10-day window, the rules change. Then, a governor can hold such bills until lawmakers return into session for a minimum of three days, at which point he can send them to the House and Senate as vetoed. If lawmakers do not return, the bills simply die — that’s what is known as the “pocket veto.”

At question is whether the Legislature has really adjourned or not. Typically, a session is not over until the Legislature passes an order to “adjourn sine die” — Latin for “without day” — which means that the session is over for good.

When legislative leaders sent lawmakers home on June 30, they did so with a directive that the Legislature would reconvene on July 16 to deal with any pending vetoes or other matters.

Legislative leaders contend that the Maine House and Senate remain “at ease” — not adjourned — until July 16.

But LePage’s office points to an order passed in the House and Senate on June 30, saying the Legislature would “adjourn until the call of the House speaker and Senate president.” Because they passed this order, LePage’s office says he can hold the bills.

“The Legislature can choose to meet for at least three days now, or they can wait until they come back January,” said LePage spokeswoman Adrienne Bennett in a news release Wednesday morning. “Either way, they will have ample time to thoughtfully consider these vetoes, rather than rushing through them in another veto-override spree without understanding what they are voting on.”

The Legislature passes such temporary “adjournment” orders nearly every day they’re in session. The generally held view in Augusta and legal circles is that such orders are adjournments in name only, and are in practice merely recesses.

Cynthia Montgomery, LePage’s chief legal counsel, on Wednesday said such common wisdom doesn’t matter.

“I recognize that is the common practice, but that does not make it law,” she said in an interview.

Montgomery said the Constitution must be read on its face. The section involving the governor’s veto authority makes reference simply to “adjournment,” not “adjournment without day,” which is referenced elsewhere in the Constitution.

House Speaker Mark Eves, D-North Berwick, said the meaning of “adjournment” in the constitution is well-understood. “The Constitution and historical precedent make clear that these bills are law,” he said in prepared statement. “The governor is wrong.”

It is so established, Eves pointed out, that it is spelled out in Sutherland Statutes and Statutory Construction, which is generally accepted as a core text on statutory interpretation, and is endorsed by the American Bar Association.

“The term adjournment as used in the constitutional provisions is generally held to relate to final adjournment rather than temporary adjournment or recess,” Sutherland states. “Thus, a return of a bill after a temporary recess does not prevent the bill from becoming law.”

Montgomery said that the meaning of “adjournment” is an open question but that even if Eves was right, it doesn’t matter. She said that because the temporary adjournment order passed by the Legislature on June 30 did not include a date on which the Legislature would reconvene, lawmakers had, in essence, adjourned sine die.

House Majority Leader Jeff McCabe, D-Skowhegan, said that if LePage tries to return vetoes to the House on July 16 that have already been on his desk for more than 10 days, the House will not take them up.

“If he delivers vetoes to the clerk of the House, they won’t be in order,” McCabe said Wednesday. “Those bills are law. … The governor has an opportunity to be part of the process. I may not like that he vetoes bills, but that’s his right. But to play these games is ridiculous.”

The Legislature is moving forward with writing the bills into law as they pass the 10-day deadline. By Wednesday, 20 such bills were being chaptered and published by the revisor of statutes — the final act of a bill becoming law.

And the revisor, Suzanne Gresser, wasn’t the only one who agreed with Eves and other Democrats who said LePage had botched his veto effort. Third-party advocacy groups were sending out news releases hailing the passage of their favored bills, based on the interpretation that they had become law without the governor’s signature after passing the 10-day threshold.

No bill in the bunch is more important to Democrats and their allies than LD 369, which ensures asylum seekers in Maine will have two years of access to General Assistance — a welfare program that provides money for existential expenses such as shelter, food and heat.

LePage has sought to make such legally present immigrants ineligible, and lawmakers expected him to veto the bill. There was a very real chance that House Republicans could have sustained his veto, but the revisor chaptered the law on Wednesday, meaning that it is scheduled to become law 90 days after the current legislative session adjourns.

The quandary over the bill’s status raises further questions about just what happens next, but the issue may well end up with the Maine Supreme Judicial Court because of the disagreement about whether the bills are law. LePage has said he will not enforce the bills in question as law.

“Try to have [lawmakers] enforce them. See what happens,” LePage told reporters. “We’ll go to courts and ask them.”

Follow Mario Moretto on Twitter at @riocarmine.

 



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