LePage’s Best Argument In Veto Fight Could Also Unleash The Most Chaos

With the Maine Supreme Court set to hold oral arguments Friday on whether Gov. Paul LePage (R) botched some 65 vetoes, the governor is making a new legal argument that — if adopted by the court — could send Maine into chaos.

Legislators are arguing that LePage missed the deadlines in early July to veto the bills in question and thus, the legislation was already law when LePage did finally returned the vetoes days later. LePage says the legislators had taken the type of formal adjournment that under the state Constitution would allow him to wait until the next time they reconvened to return the vetoes. Lawmakers say it was not an adjournment but an informal break that would have kept the clock ticking. History and custom is on the legislators’ side, but the governor has asked for the court to settle the argument.

But now in a new twist, LePage is telling the Supreme Court that the legislature also failed to properly extend its session before the bills were passed in the first place. If the court adopts such reasoning, it could create political anarchy, as all the legislation passed after that point would be in jeopardy.

According to Dmitry Bam, a professor at the University of Maine School of Law, this is LePage’s strongest argument in the entire case, but the havoc it would wreak also makes it unlikely the court would be willing to accept it, given the uncharted territory the justices find themselves in.

“There’s no guidance here, no history, no precedent,” Bam said, “It’s hard to imaging a court saying, ‘Well, here’s how were going to do it. We’re going to interpret it in this sort of chaotic way that nobody actually thought was the case at the time, it takes some pretty aggressive judging.’”

As the Bangor Daily News noted, the biennial budget is among the pieces of legislation that would be in jeopardy if LePage’s argument prevails.

A legal brief filed by LePage’s counsel Wednesday suggests lawmakers botched the adjournment they took when the session was scheduled to end June 17, before the proposals in question were enacted, because they waited until June 18 to vote for an extension.

“The facts giving rise to the Governor’s questions include the failure of the Maine Legislature to extend the session while it was legally convened,” the brief says. “The first regular session, therefore, ended by operation of law at the adjournment of the June 17 legislative day. Once the session ended, the Legislature lost its authority to act.”

The brief cites a Maine statute says that “[t]he first regular session of the Legislature shall adjourn no later than the 3rd Wednesday in June,” and that, while lawmakers are permitted to extend that session, this time legislators screwed up because they did not vote to do so until June 18.

If Maine’s top justices buy the claim, all the legislation passed in the scramble to conclude Maine’s tumultuous session could be nullified. Anticipating this point, Wednesday’s brief cautions that justices need not apply such a reading to the whole of the legislature’s actions after June 17, but to keep it in mind in assessing the governor’s decision to wait until the next time lawmakers convened for at least three days to veto the bills.

“[T]he Governor reasonably believed other events were sufficient to trigger the three-day procedure,” the brief says. “Still, the June 17 inaction is significant because it likely resulted in the bills at issue never having been enacted by the Legislature in the first place, in which case, the Governor could not enforce them. If nothing else, the Legislature’s failure to follow the adjournment statute, and the reticence in acknowledging as much, is ironic given its scrutiny of the Governor’s return of the vetoes. In law, as in life, what’s good for the goose is good for the gander.”

Nevertheless, Bam said that argument is stronger than any of the others LePage is offering as to why the bills should not be considered law.

“His best argument is that everything after June 17 is ineffective,” Bam told TPM. “The statute doesn’t say that it has to be extended before the end of the 17th, or the third Wednesday in June, but you can make the argument that it’s implied that you can’t extend it after it’s ended. They couldn’t come back in October and say, ‘We’re coming back.'”

The feud between LePage and legislators started in early July, when the typical 10 day (Sundays excepted) period the governor has to veto bills lapsed for 19 pieces of legislation. After extending the session on June 18, legislators adjourned June 30 with plans to meet again July 16. The governor said he could wait until they reconvened to send back the vetoes, and he let the deadlines pass on another 51 bills in the meantime. The 65 bills he tried to veto July 16 were rejected by lawmakers of both parties, prompting LePage’s plea for a court intervention.

Wednesday’s brief was in response to the initial round of court documents filed last week. Briefs authored by Attorney General Janet Mills — a Democrat who has supported the legislators in the dispute — as well as on behalf of the Democratic House and Republican Senate, highlighted internal documents that showed legislative staff had made it clear to the governor’s office that they were available and expected him to send back the vetoes before the 10 day deadline expired.

Responding to a request from the governor’s office that the revisor’s office stop chaptering the disputed legislation as law, a July 10 letter from Legislative Counsel shot back:

The Reviser’s Office did not ignore the Governor’s position; in fact, despite their repeated attempts to get clarification regarding the original bill folders for the bills that had become Law pursuant to the Constitution, no one In the Governor’s Office conveyed to them the Governor’s position. After repeated Inquiries by the Revisor’s Office, Scott Van Orman informed the Revisor that the bills were “not available,” prompting the Revlsor to ask whether the bills had been misplaced. Following assurances that the bills were in the Governor’s Office somewhere, the Reviser informed Scott Van Orman and Suzanne Brochu that “it was fine and that the office would simply chapter the laws without the original bill folders.”

At that point the governor had missed the alleged veto deadline for 19 bills, but the 10-day period for 51 more bills was set to expire at midnight on July 11, and Attorney General Mills rushed out an opinion to clarify that the governor was mistaken in his understanding that he could wait to act on the legislation.

Furthermore, Friday’s briefs show that clerks had again made it clear they they were available to accept the latest round of vetoes before the July 11 deadline.

“I was writing to let you know that if you need me to come in on Saturday to pick up bills that may be vetoed, I am more than willing to do so,” Clerk Rob Hunt wrote in an email to one of LePage’s staffer Lance Libby. Senate Secretary Heather Priest replied to the email that she would be available as well and even followed up with a text to LePage’s deputy chief of staff.

Libby confirmed receipt of Hunt’s and Priest’s email, and in response to Priest’s text, the Deputy Chief Kathleen Newman said “Hi sweet – I don’t anticipate delivering any bills this weekend. Thanks, though!”

In Wednesday’s brief LePage conceded that he wasn’t “physically prevented” from sending over the vetoes.

“Rather, ‘prevented’ in this situation is a term of art that reflects the interests at stake,” the brief said. “At this point of conflict between the Legislative and Executive Branches, it is vital that one branch, here the Legislature, not use its powers, including the power of adjournment, to frustrate the Governor’s constitutionally granted veto authority.”

The Attorney General’s Friday brief also highlighted the numerous times LePage returned bills during previous informal adjournments like the one lawmakers took in early July.

“This is why he is forced into looking for a profound meaning for the word ‘prevented,”” Bam said. “Because he’s done it before, so the fact that they’re adjourned, that they’re not there, doesn’t really prevent him. And the Constitution makes that pretty clear.”