Maine Supreme Court Hears Arguments In LePage’s Veto Dispute

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July 31, 2015 11:52 a.m.

A weeks-long standoff between Maine Gov. Paul LePage (R) and the state legislature had its day in court Friday. The state Supreme Court heard arguments as to whether the governor missed the deadline to veto 65 bills that lawmakers say are now law due to his delay.

The discussion revolved around thorny, complex issues of procedural mechanics and constitutional balance of power between the executive and legislative branches. Over the course of about 45 minutes, LePage’s counsel Cynthia Montgomery and the attorney representing Maine’s House and Senate each had 15 minutes each for their opposing arguments, with Montgomery given the opportunity for rebuttal at the end. Additionally, an attorney representing a few House Republicans as well as counsel for the attorney general each had a few minutes to make their cases, with the former favoring LePage’s view and the latter challenging it.

The justices were clearly seeking to streamline the arguments being presented in front of them, perhaps knowing both the short-term impact of their decision on dozens of pieces of legislation, as well as the long-term precedent they could set in navigating what has become a constitutional crisis. Their questions touched on both broad understanding of the executive branch’s veto powers and LePage’s specific motivations in waiting to submit his vetoes. They were mostly patient to weed through the convoluted specifics of the case, but at times were willing to call out what appeared to be suspicious reasoning.

“Why, in a extremely difficult session, would the governor chose the time to [run] a test case?” one of the justice’s challenged LePage’s counsel.

At issue is whether — either on June 17 or June 30 — the legislature took the type of adjournment that would have paused the typical 10 day clock the governor has to veto legislation. LePage argues that the clock did pause and that under the state constitution he was allowed to wait to veto the legislation until the next time lawmakers convened for at least three days. The legislature, including many leading Republicans, contends LePage botched the vetoes by not acting within the 10 days and that bills already have become law.

The dispute started in early July, when the 10-day veto deadline expired on a number of bills passed by the legislature in a special session between June 18 and June 30, when lawmakers adjourned with intent of returning to consider possible vetoes in mid-July. LePage said he could wait to return the vetoes when lawmakers reconvened July 16; however, lawmakers said by then the bills had already become law, so the governor took the question to Maine’s top court.

It’s widely accepted that an adjournment sine die or a similarly formal statutory adjournment would have triggered that process. But lawmakers argue that the June adjournment was neither, but an informal break at the end of which the legislators had made clear they intended to return to consider the vetoed bills.

LePage’s counsel argued Friday that specific facts had converged to create a third kind of adjournment that allowed the governor to wait for lawmakers to reconvene to veto the bills. Firstly, the adjournment took place after the statutory adjournment date (in this case June 17). Secondly, the break lawmakers took was longer than the 10 days, so LePage couldn’t assume they would be around within the period he is normally given to veto bills. Thirdly, the lawmakers had not formally set a date of return, even though they had informally communicated their July 16 plans.

“If all we needed is to drop off the bills with the clerk, there would be no need for a three-day procedure” Montgomery said, addressing arguments that the legislative clerks and staff had made clear to the governor that they were around to receive the vetoes.

The attorney for the Maine legislature pushed back at the idea of a third type of adjournment that would prevented the return of the vetoes and said nothing in the constitution suggested that lawmakers needed to stay in session to await for his vetoes.

“The legislature has nothing left to do. There’s no reason for them be in town watching the clock,” Tim Woodcock, the House and Senate’s counsel, said.

The justices treated Montgomery’s logic skeptically as well.

“It was clear that they had adjourned, no matter what you call it, but the purpose of it was to wait for governor’s actions” one justice said, referring to the June 30 adjournment order that said that was the lawmakers’ plan.

Of particular concern was Montgomery’s suggestion that this especially tumultuous session had created the possibility of miscommunication between the governor and lawmakers that required he wait for their return to send back the vetoes.

“You cannot be making the argument that the governor was unaware that the legislature was taking the position that the clock is running,” one justice said.

LePage’s counsel also floated the possibility that lawmakers had screwed up their initial extension of the regular session by waiting until June 18, after the official adjournment June 17, to approve the extension. That argument was perhaps the governor’s strongest but is also primed to create the most chaos if adopt.

The justices grilled Woodcock on the suggestion that the legislature had botched the June 18 extension, and Woodcock argued that the issue was not raised at the time of the vote, and at best, it is within the realm of the legislature to decide.

The counsel of a few House Republicans, who are backing LePage in the dispute, also danced around the idea. L. Clinton Boothy said the idea was a “reasonable argument” but in his clients’ opinion the legislature on June 18 had effectively retroactively extended the session.

The justices noted that the opinion they issued was only an advisory one, but would set an important precedent.

“If the court is going to opine on the issue, it should do so in a way that in future years there is great clarity,” one justice said.

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