Policy Wonk: It's time to force LePage to follow the law

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Maine’s Constitution allows the governor, state Senate, and House to seek a Supreme Judicial Court opinion with respect to “important questions of law and upon solemn occasions.” The Law Court must first determine whether the issue(s) raised meet these threshold tests of significance.

Gov. Paul LePage has no qualms rushing to the court when he feels executive prerogatives have been infringed by the Legislature or constitutional officers. He raised two questions seeking to narrow the powers of the attorney general in settings where the AG refuses to defend the legal position of a state agency.

Maine’s Department of Health and Human Services sought to amend the state’s Medicaid Plan. The DHHS amendment received a negative ruling from the federal government, and wished to appeal the federal ruling. The AG refused, stating that the appeal “… lacks substantial legal merit.”

The DHHS, pursuant to statute, requested the AG’s authorization to hire outside counsel to pursue its point of view. The AG approved this authorization with reasonable limitations.

The governor’s first question to the Law Court characterized the need to request authorization, which conceivably could have been denied, as a “… de facto veto power over (his) differing assessment of the public interest.”

The Law Court rejected this argument. After laying out the independent status of the AG’s office, it held that the AG can take a position that is contrary to that of the governor. It noted that the AG had approved the administration’s request for outside counsel. Moreover, the justices knew of no instance where such a request had ever been denied.

The Law Court concluded that the question presented only a hypothetical; it did not present a “solemn occasion.”

But the governor did not go home empty handed. His second question argued that in the rare instances that the AG not only refuses to defend a state agency position, but also (as was done here) enters the case to actively oppose the position taken by the governor’s outside counsel, the AG could not in these circumstances limit or advise the approved outside counsel. The Law Court agreed.

More recently, LePage sought an opinion of the justices with respect to the legal status of 81 bills enacted by the Legislature and sent to the governor in the waning days of the legislative session. The Legislature temporarily adjourned to await the governor’s disposition of these enactments.

Normally, the governor has 10 days (exclusive of Sundays) to either sign enacted measures, or veto them and return them to the house of origin to enable the Legislature to override (or not) his veto. The governor took no action on these enacted measures within this 10-day period. The Legislature asserted that pursuant to Maine’s Constitution, these enacted measures became law.

LePage subsequently sought to veto 65 of the 81 enactments. He asserted that the Legislature’s adjournment triggered an alternative constitutional provision allowing the governor to hold these measures until the Legislature was in session for more than three days.

The Law Court agreed these were “important questions of law” – a “solemn occasion.” It acknowledged that there was ambiguity with respect to the term “legislative adjournment.”

But looking at “… the factual background … the constitutional context of the language at issue, long-held traditions and practices of Maine Governors and Legislatures …,” the justices held that all 81 enactments had become laws of Maine at the expiration of the normal 10-day period for executive consideration. The governor’s risky delaying tactic failed.

The Maine House and Senate have a similar constitutional right to seek an opinion of the justices to enforce the governor’s constitutional duty to “take care that the laws be faithfully executed.”

Nothing prevents the House or Senate from framing appropriate questions to the Law Court that challenge the governor’s refusal to issue voter-approved bonds, which become law 30 days after the approving vote is certified.

The time frame for challenging LePage’s long-standing refusal to issue now-released highway bonds has passed, but his continuing refusal to issue Land for Maine’s Future Bonds is ripe for consideration. Some of these bonds have already expired; the law, the statutory duties of the LMF board, cannot be carried out for want of these bond proceeds.

In the same vein, LePage’s refusal to make statutorily required appointments to critical boards and agencies, thereby preventing these agencies from discharging their statutory duties, is another failure by the governor to faithfully execute the law.

In short, legislative leaders need to stop complaining about the governor’s heavy-handed tactics. They must find the courage – frame the necessary questions – and seek an opinion of the justices that will force the governor to execute the law.

Orlando Delogu of Portland is emeritus professor of law at the University of Maine School of Law and a longtime public policy consultant to federal, state, and local government agencies and officials. He can be reached at orlando.delogu@maine.edu.