PORTLAND — A set of questions that — depending on how they are answered — could tip Maine government on its ear were heard by the state’s highest court Friday.
The justices of the Maine Supreme Judicial Court seemed to be carefully considering both sides as they prepared to give an advisory opinion to Republican Gov. Paul LePage on whether he could veto 65 bills that legislative leaders say have already become law.
Among the bills is one that would allow Maine municipalities to provide General Assistance welfare benefits and another that would allow the state’s low-income health insurance program, MaineCare, to cover birth control and family planning services for women receiving benefits.
If the court sides with LePage on some key issues, including whether the Legislature adjourned in June or mid-July, a host of other bills, including the state’s two-year, $6.7 billion budget, could be deemed invalid.
Lawyers for both LePage and the political leaders of the Maine Legislature’s House and Senate majorities presented their facts in oral arguments during an advisory hearing that lasted about 60 minutes.
Also weighing in were lawyers for the House minority caucus and the Maine Attorney General’s Office.
The Legislature adjourned “at the call” of House Speaker Mark Eves, D-North Berwick, and Senate President Mike Thibodeau, R-Winterport, on June 30. Eves and Thibodeau maintain that the adjournment was not the final one for the 2015 session.
LePage maintains the Legislature adjourned for good on June 30.
LePage’s attorney, Cynthia Montgomery, argued that LePage was prevented from returning the bills to the Legislature after lawmakers left the State House for more than 10 days following the June adjournment.
Pointing to federal case law, Montgomery said that because lawmakers were not physically present to receive the bills for 16 days, LePage could not have returned the bills to them.
She suggested that if the court were to follow the precise language of the Maine Constitution, it would make a recommendation in LePage’s favor.
Chief Justice Leigh Saufley asked whether LePage was overlooking past practice and tradition of the Legislature. She and several other justices, including Joseph Jabar and Ellen Gorman, questioned whether it was the Legislature’s right, based on the constitutional wording, to decide when and how it would adjourn.
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 for vetoes to be returned.
“You’re saying that vetoes require an audience,” she said. “Is that really your argument, that they need to be sitting in the houses, waiting for vetoes to arrive?”
Jabar pointed out that the very intent of the Legislature’s adjournment in question was to give LePage the time he needed to act on the bills lawmakers were sending his way.
“It was clear they had adjourned, no matter what you call (it), but the purpose of it was to wait for the governor’s actions,” Jabar said.
The justices were equally strident in some of their comments and questions to Tim Woodcock, the attorney arguing on behalf of the Legislature’s majority caucuses.
Woodcock argued the question before the court was no less than a determination of whether the ideal that the Legislature and the governor are equal branches of government and, at its heart, LePage’s question challenged the ideal of the separation of powers between the branches. Even though partisan sides had lined up for and against LePage’s argument, the issue was not a political one, Woodcock said.
“Although we are here on an issue that has arisen in a somewhat partisan context, these are not partisan issues,” Woodcock said. “The issue that is being presented to the court today goes to the very fabric and structure of our system of government — the separation of powers and the principles and interests that (it) is intended to preserve.”
How the court decides the question will affect Maine government forever going forward, Woodcock said.
Arguing for Attorney General Janet Mills, a Democrat who sided with the Legislature on the issue, was Phyllis Gardiner.
Gardiner, who made her statements just ahead of a final rebuttal from LePage attorney Montgomery, boiled the question before the court down to a fine point.
Gardiner said the court is ultimately being asked to “set a bright line.”
She said that bright line was when the Legislature adjourned under the Latin term, “sine die,” which means, “without assigning a day for a further meeting or hearing.” That, and none other, is the signal to the governor that the Legislature is adjourned, Gardiner argued.
“It is really important to set a clear rule here to protect the separation of powers in a bright line and the bright line is the only form of adjournment that prevents the return of vetoes is an adjournment ‘sine die,'” Gardiner said, “and it is the Legislature’s prerogative to determine when that occurs, and they have a long historical practice of formality in declaring that, and that is the bright line that the justices should articulate to the governor.”
Several lawyers in the courtroom, including some sitting and former lawmakers, said observers should be careful not to read too much into the line of questioning from the justices Friday.
But they disagreed on the impact the recommendation from the justices would have.
Cynthia Dill, a lawyer and former Democratic state senator from Cape Elizabeth, said the decision the justices make would have real ramifications for real people because of the bills in question.
She said the health care bill, for example, left thousands of Maine women in limbo as they awaited finality on whether bills LePage wanted to veto were enacted into law.
“There’s more than just an esoteric interpretation of the (state) constitution at stake here,” Dill said. “There’s a bill that either passed or didn’t pass that will impact thousands of people because the bill has a specific mandate to the commissioner of Health and Human Services to apply for a Medicaid expansion. It’s this limbo that affects the day-to-day people of Maine more than what did the Federalist Papers say or what did the Supreme Court say.”
Michael Cianchette, a Republican attorney who previously served as LePage’s chief counsel, said he believed the court’s recommendation would set the course for how state government functions for the foreseeable future.
“The decision of the law court here is going to carry for as long as there is a state of Maine,” Cianchette said. “So more than any particular policy issue today, this has to be the right answer forever and getting (it) right is more important than taking the convenient answer.”
The court could take as long as it likes to offer a recommendation, but state Sen. Roger Katz, R-Augusta, who sides with the Legislature, said he believed the justices would deliver an answer relatively quickly. He also said the quality of the justices’ questions indicated to him they were earnestly studying the questions from LePage.
“All six of them asked questions that indicate to me that they take this extremely seriously,” Katz said.
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