Maine high court justices grill both sides in LePage veto dispute

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PORTLAND — Four teams of attorneys representing various branches and agencies of government had their day in court Friday, when the justices of Maine’s highest court heard oral arguments in the case of 65 disputed gubernatorial vetoes.

The courtroom was packed with lawmakers, reporters and others as the justices took up a fight that has been simmering in Augusta and among Maine political observers for weeks, raising immediate questions about whether 65 bills have become law and about the separation of powers between the legislative and executive branches of government.

Gov. Paul LePage attempted to deliver the vetoes to the Legislature on July 16, after lawmakers returned from a recess that began on June 30.

But Senate President Michael Thibodeau, R-Winterport, and House Speaker Mark Eves, D-North Berwick, rejected the vetoes as out of order. They said the bills in question already had become law without LePage’s signature because the governor missed his window of 10 days, excluding Sundays, to act on them.

The governor, however, argues that by adjourning on June 30 and not returning after the 10-day deadline had lapsed, the Legislature prevented him from returning the vetoed bills.

Maine’s Constitution states that if lawmakers “by their adjournment prevent” the governor from returning bills, they do not become law and the governor has another three days to return them, starting when the Legislature reconvenes for a new session.

LePage appealed to the Supreme Judicial Court for an advisory opinion.

On Friday, the justices grilled attorneys representing the governor, Eves and Thibodeau, the attorney general, and the House Republican caucus.

Chief Justice Leigh Saufley pressed Cynthia Montgomery, LePage’s chief legal counsel, about bills LePage vetoed during similar recesses in the past, with previous legislatures.

Montgomery said this situation was different, in part because of the “extremely difficult” session and lack of communication between LePage and the Legislature.

Timothy Woodcock, who represented Eves and Thibodeau, said the tone of the session and the relationship between LePage and lawmakers was irrelevant.

“It cannot be that … what differentiates this session from other sessions is contentiousness,” he said. “Contention is built into the separation of powers.”

In questioning the governor’s position that the Legislature’s availability to conduct business was vague, Justice Ellen Gorman pointed to communications received by the governor’s office, indicating that the secretary of the Senate and the clerk of the House were empowered, available and willing to accept vetoes while lawmakers were away.

“You cannot be saying there was a miscommunication or an error,” Gorman said. “This was a decision by the governor to challenge his reading of the Constitution against other readings.”

The court also referenced the adjournment order itself, which specifically stated that the recess was called to give the governor time to veto bills he opposed and that lawmakers would return to consider those vetoes.

Gorman also seemed incredulous at the governor’s contention that he could not simply return vetoes to the House clerk or Senate secretary – that lawmakers must be present before vetoes could be returned.

“You’re saying that vetoes require an audience,” she said. “Is that really your argument, that (lawmakers)] need to be sitting in the houses, waiting for vetoes to arrive?”

Not only did the justices probe LePage’s legal team with difficult questions, but they also pressed Woodcock about the Legislature’s failure to extend its session by June 17, the date set in statute as the end of the session.

State law allows lawmakers to extend the session past statutory adjournment by up to two five-day increments. But the House and Senate did not vote to extend until June 18, a day after session was scheduled to end.

Woodcock said nothing in the law required lawmakers to extend the session before it ended and that the Legislature is empowered as the only body that can decide when it is or is not in session.

Saufley wondered why the court should ignore that June 17 was set as a cap to the session, considering it was a date set by the Legislature itself. She also asked Woodcock why the Constitution’s writers would have created the provision giving the governor additional time to veto bills if it didn’t matter, as Woodcock suggested, whether lawmakers were present or not.

“If, as you say, the governor need not worry about when the Legislature is or is not in town because the Legislature can always convene itself, then there would be no reason for the three-day provision in the Constitution,” she said. “There must be a purpose for that provision.”

Lawmakers in the audience said they wouldn’t hazard a guess as to which way the court may be leaning.

“I think it was a very good beginning. … The court is obviously going to get this thing straight, and they’ll help us all get the clarity we need,” Sen. Bill Diamond, D-Windham, who believes the vetoes were too late, said. “I clearly have a point of view, but I’m not a Supreme Court justice. … I think the court is very good at not tipping its hand.”

Rep. Jeff Timberlake, R-Turner, who wants the Legislature to consider LePage’s vetoes, said he also couldn’t read the sentiment of the justices.

“You hear the first go-round and think, ‘Wow, that didn’t look good for us,’” he said. “Then you hear them do the other side and you say, ‘well, that was treated equally.’ They were both abused equally.”

Among the laws in question is one that would guarantee asylum seekers access to General Assistance benefits for up to two years, another that would expand access to birth control for low-income women and another that would reverse the state’s jail consolidation scheme.

But Michael Cianchette, a Republican attorney and former chief counsel for LePage, said the court’s opinion will be any bigger than any of the laws in question.

“The decision of the law court here is going to carry for as long as there is a state of Maine,” he said. “So more than any particular policy issue today, this has to be the right answer forever.”

The justices have as much time as they’d like to issue an opinion, though attorneys on both sides of the dispute say they expect one within the next two weeks.

Sidebar Elements

A court official stands guard Friday morning as the Maine Supreme Judicial Court prepares to hear oral arguments in Portland from four teams of attorneys representing various branches of government in the case of 65 disputed vetoes by Gov. Paul LePage.