When the Maine Legislature passes a bill that creates a new executive or judicial office whose holder will be appointed by the Governor and confirmed by the Senate, does that bill need a two-thirds supermajority, or is an ordinary majority enough?

Plain-English summary

Senator Judy C. Kany asked AG James E. Tierney whether legislation establishing a new executive or judicial office to be filled by gubernatorial appointment and legislative confirmation required passage by a two-thirds supermajority under Article V, Part 1, Section 8 of the Maine Constitution. Several bills before the 114th Legislature would have created new boards or commissions with this structure, so the procedural question carried real consequences. Tierney's answer was that an ordinary majority sufficed for the establishment of such offices. The two-thirds requirement applied only to changes in the confirmation procedure for an existing office.

The structural and historical analysis traced through 1975 and 1980. In 1975, the Legislature abolished the Executive Council and redistributed confirmation powers among legislative committees. Article V, Part 1, Section 8 was the result. Its first paragraph authorized the Legislature to require confirmation of gubernatorial appointments. Its second paragraph set the procedure (joint committee recommendation; Senate review; Senate override of committee by two-thirds vote). Its third paragraph imposed a two-thirds legislative vote requirement on "statutes enacted to carry out this section." Tierney read the 1975 floor debate and a 1981 Department opinion (Op. Me. Att'y Gen. 81-40A) as showing that the framers' chief concern was the assignment of confirmation power to particular committees, which is what the two-thirds requirement protected.

In 1980, the Legislature amended the third paragraph through Amendment CXLIII to narrow its scope: "All statutes enacted to carry out the purposes of the second paragraph of this section shall require the affirmative vote of two thirds of the members of each House present and voting." The shift from "this section" to "the second paragraph of this section" was the key. The first paragraph (authorization to require confirmation in the first place) was now outside the two-thirds requirement. The second paragraph (the procedure itself) was still inside. Tierney concluded that the 1980 amendment must be read literally: bills establishing new confirmed offices fall under the first paragraph and need only a majority; bills altering the confirmation procedure for existing offices fall under the second paragraph and need two-thirds.

A 1983 Department opinion (Op. Me. Att'y Gen. 83-21) had already concluded that bills adding or removing board members, adding member qualifications, or making technical changes to confirmation procedures did not trigger the two-thirds requirement. The 1989 opinion completes the picture: creation of a new confirmable office likewise does not trigger it. The 1981 opinion's broader language ("creation or designation of a committee to review particular gubernatorial appointments would receive a two-thirds vote") was, in Tierney's reading, dictum and superseded by Amendment CXLIII as applied to office creation. The result: the only category that still requires two-thirds is a change to which committee handles a particular appointment, since that is what the 1975 framers cared most about and what the 1980 amendment left within the rule.

Currency note

This opinion was issued in 1989. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why did Maine abolish the Executive Council in 1975?

The Executive Council had constitutional authority to confirm gubernatorial appointments, but it was politically contentious and seen as a relic of nineteenth-century governance. The 1975 constitutional changes redistributed those powers among legislative committees and the Senate. The current confirmation framework in Article V, Part 1, Section 8 is the result.

What was Amendment CXLIII?

Amendment CXLIII (effective November 25, 1980) modified the third paragraph of Article V, Part 1, Section 8 by inserting "the purposes of the second paragraph of" before "this section." That seemingly small change limited the two-thirds requirement to statutes about confirmation procedure, freeing statutes about office creation from the supermajority barrier.

Does this opinion mean a bill creating a new confirmation requirement for an existing office needs only a majority?

Tierney's reading of the first paragraph (which authorizes the Legislature to require confirmation) implies that imposing a confirmation requirement on an existing office for the first time is also a first-paragraph action, not a second-paragraph action, and so needs only a majority. The opinion explicitly says "the Legislature may enact legislation creating new executive positions requiring confirmation, or requiring that existing executive positions be subject to confirmation, by an ordinary majority."

What kind of change still requires a two-thirds vote?

The clearest case is a change to which legislative committee reviews confirmations for a particular office. Op. Me. Att'y Gen. 81-40A held that transferring confirmation power for the State Personnel Board from the Labor Committee to the State Government Committee required two-thirds. That change is paradigmatic of "statutes enacted to carry out the purposes of the second paragraph of this section."

Why did Rep. Tierney's 1975 floor remarks matter?

Then-Representative James Tierney was a member of the second conference committee that drafted the final compromise. His on-the-floor explanation of the two-thirds requirement gave the cleanest contemporaneous evidence of legislative intent. By the time he became AG in 1989, his earlier remarks were the canonical reference point for interpreting the provision.

Background and statutory framework

Maine's gubernatorial appointment and legislative confirmation framework has three layers: (1) the constitutional authorization in Article V, Part 1, Section 8 first paragraph; (2) the procedural structure (joint committee, Senate review, two-thirds Senate override) in the second paragraph; and (3) the two-thirds vote requirement in the third paragraph as narrowed in 1980. Tierney's opinion sorts statutes into the layer they belong to and applies the supermajority rule only to layer-two statutes. The doctrinal payoff is to make it administratively easier for the Legislature to set up new boards, commissions, and offices, while still protecting the inter-committee allocation question that was the central battleground in 1975.

Citations

• Me. Const. art. V, pt. 1, § 8 (paragraphs 1, 2, 3)
• Me. Const. Amendment CXLIII (effective Nov. 25, 1980)
• L.D. 24 (107th Legis. 1975)
• Conf. Comm. Amend. A to L.D. 24, No. S-381 (107th Legis. 1975)
• L.D. 2007, Statement of Fact at 3 (109th Legis. 1980)
• 2 Legis. Rec. B2328 (1975) (remarks of Rep. Tierney)
• Op. Me. Att'y Gen. 81-40A (May 7, 1981)
• Op. Me. Att'y Gen. 83-21 (May 20, 1983)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1989/ag_19890615.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

89-8

JAMES E. TIERNEY
ATTORNEY GENERAL

STATE OF MAINE
DEPARTMENT OF THE ATTORNEY GENERAL
STATE HOUSE STATION 6
AUGUSTA, MAINE 04333

June 15, 1989

Honorable Judy C. Kany
Maine Senate
State House Station #3
Augusta, ME 04333

Dear Senator Kany:

You have inquired whether the provisions of Article V, Part 1, Section 8 of the Maine Constitution require that legislation establishing a new office to be filled by appointment by the Governor and confirmation by the Legislature be enacted by a two-thirds vote of the members of each House present and voting. For the reasons which follow, the opinion of this Department is in the negative. Although statutes altering the confirmation process once established for an executive or judicial office cannot be altered except by a two-thirds vote of the members of each House present and voting, legislation establishing executive and judicial offices in the first place do not require a super majority, even if they provide for legislative confirmation of gubernatorial appointments.

Your question arises because of several bills currently pending before the First Regular Session of the 114th Maine Legislature which would establish new boards or commissions in the Executive Branch, and would provide for the appointment of the members of these boards by the Governor and confirmation of them by the Legislature. The power of the Legislature to retain for itself the power to confirm executive officers is contained in Article V, Part 1, Section 8 of the Maine Constitution, the first paragraph of which, in pertinent part, provides:

[The Governor] shall nominate ... all ... civil ... officers whose appointment is not by this Constitution, or shall not by law be otherwise provided for.

The Legislature thus has the constitutional authority to require that the appointment of any person by the Governor to any office in the Executive Branch be confirmed by it.

The second paragraph of Section 8 sets forth the procedure which the Legislature must follow for the confirmation of appointments to offices which it sees fit to subject to a confirmation process:

The procedure for confirmation shall be as follows: an appropriate legislative committee comprised of members of both Houses in reasonable proportion to their membership as provided by law shall recommend confirmation or denial by majority vote of committee members present and voting. The committee recommendation shall be reviewed by the Senate and upon review shall become final action of confirmation or denial unless the Senate by vote of two thirds of those members present and voting overrides the committee recommendation. The Senate vote shall be by the yeas and nays.

The third paragraph of Section 8 then provides:

All statutes enacted to carry out the purposes of the second paragraph of this section shall require the affirmative vote of two thirds of the members of each House present and voting.

The question which you raise, therefore, is whether the provisions of the third paragraph must be read not only to prevent the alteration of a pre-existing procedure for confirmation except by a two-thirds vote but also to require that the establishment of a confirmation procedure in the first place be accomplished by a super majority.

The third paragraph of Section 8 has been the subject of two previous opinions of this Department, copies of which are attached. In 1981, the Department advised that the paragraph required that a two-thirds vote was required to change the joint standing committee responsible for recommending to the Senate whether appointees to a particular state agency should be confirmed. Op. Me. Att'y Gen. 81-40A. In 1983, the Department advised that legislation adding or subtracting members from a board appointment to which required confirmation and legislation adding specific qualifications for members of a board requiring confirmation, as well as nonsubstantive amendments to the confirmation process, does not require a two-thirds vote. The Department has not, however, directly addressed the question of whether the establishment of a confirmation requirement in the first place requires such a vote.

To answer such a question requires the Department once again to review the legislative history of the revision of Article V, Part 1, Section 8 in 1975 as part of constitutional changes abolishing the Executive Council and redistributing its confirmation powers to various units of the Legislature. As indicated in Opinion 81-40A the language which became Section 8 was the result of an amendment to Legislative Document 24 proposed by a second conference committee which was appointed after the Senate had rejected the report of a first conference committee. Conf. Comm. Amend. A to L.D. 24, No. S-381 (107th Legis. 1975). That amendment provided that the third paragraph of Section 8 read as follows:

All statutes enacted to carry out this section shall require the affirmative vote of two-thirds of the members of each House present and voting (emphasis added).

In explaining the meaning of this provision during debate on it in the House of Representatives, the House Chairman of the Conference Committee explained that "the final arbiter of which appropriate committee would hear which particular nominee shall be set by statute by a two-thirds vote of both Houses of the Legislature." 2 Legis. Rec. B2328 (1975) (remarks of Rep. Tierney).

This statement led this Department to state in course of its 1981 Opinion that "it was the intent of the framers of the constitutional amendment that the creation or designation of a committee to review particular gubernatorial appointments would receive a two-thirds vote." Op. Me. Att'y Gen. 81-40A at 3 (emphasis added). The Opinion then went on to conclude that, that being the case, the transfer of confirmation power from one committee to another required a two-thirds vote, the narrow question with which it was presented. As the Opinion noted, however, Section 8 was further amended in 1980 to limit the applicability of its third paragraph to "the second paragraph of this section." Me. Const. Amendment CXLIII (effective Nov. 25, 1980). The question thus becomes, therefore, whatever the Legislature intended in 1975 with regard to the amount of votes necessary to establish a confirmation process in the first place, what was its intention in 1980 in limiting the two-thirds vote requirement of the third paragraph of Section 8 to the provisions of the second paragraph of the section?

The legislative history of the 1980 amendment is not clear as to its precise scope. The only indication of legislative intent is the Statement of Fact to Legislative Document No. 2007 which states that the amendment of the third paragraph of Section 8 was intended "to clarify that the legislative two-thirds voting requirement only applies to statutes relating to confirmation of gubernatorial nominees." L.D. 2007, Statement of Fact at 3 (109th Legis. 1980). It is clear that this statement limits the applicability of the third paragraph to statutes concerning confirmation, but it is not clear that it was intended to relate to all such statutes. Indeed, the plain language of the amendment appears to suggest otherwise, since it confines the applicability of the third paragraph to the second paragraph of Section 8, and therefore precludes its applicability to the first paragraph of the Section. Since, as indicated above, that paragraph is the one which authorizes the Legislature to establish a confirmation power in the first place, it is a better construction of the third paragraph in its current form that it was not intended to require a super majority for a statute establishing a confirmation process for a new executive position in the first instance. Rather, it is reasonable to conclude that the Legislature, in enacting this amendment, intended to require such a majority only when alterations in a confirmation process, once established, were proposed. In short, therefore, the Legislature may enact legislation creating new executive positions requiring confirmation, or requiring that existing executive positions be subject to confirmation, by an ordinary majority. It is only when the Legislature seeks to change the procedure by which a particular appointee is to be confirmed that a two-thirds vote is required. Op. Me. Att'y Gen. 81-40A.

I hope the foregoing answers your question. Please feel free to reinquire if further clarification is necessary.

Sincerely,
JAMES E. TIERNEY
Attorney General

JET:SW

cc: President Charles P. Pray; Speaker John L. Martin

(Attachments: Op. Me. Att'y Gen. 83-21 (May 20, 1983) to Speaker John Martin, addressing whether technical changes to boards subject to confirmation require two-thirds vote; and Op. Me. Att'y Gen. 81-40A (May 7, 1981) to Representative Judy Kany, holding that transfer of confirmation power from one legislative committee to another requires two-thirds vote.)