When the Maine Legislature passes bond-issue legislation by a two-thirds supermajority under Article IX § 14, does the bill have to be presented to the Governor for approval before going to the voters for ratification?

Plain-English summary

Senator Michael D. Pearson asked AG James E. Tierney whether bond-issue legislation passed by two-thirds of both houses of the Maine Legislature under Article IX, § 14 of the Maine Constitution had to be presented to the Governor for approval before submission to the voters for ratification. Tierney concluded it did not. The opinion expressly disapproves a portion of the Department's 1977 opinion (issued under AG Joseph E. Brennan) that had reached the opposite conclusion.

The text of Article IX, § 14, added by Constitutional Amendment LXVII (effective October 12, 1950), provides that "whenever two-thirds of both Houses shall deem it necessary, by proper enactment ratified by a majority of the electors voting thereon at a general or special election, the Legislature may authorize the issuance of bonds on behalf of the State." That language is silent about the Governor's role and refers to the "Legislature," not the Legislature plus the Governor. By contrast, the ordinary legislative-presentment provision in Article IV, Part 3, § 2 provides that "every bill or resolution, having the force of law, . . . which shall have passed both Houses, shall be presented to the Governor." The bond-issue provision conspicuously omits any parallel presentment requirement.

The textual contrast carried the analysis. The bond-issue provision required two-thirds of each House to act, which is the same supermajority needed to override a gubernatorial veto of ordinary legislation under Article IV. Tierney reasoned that the framers of Amendment LXVII would not have intended a redundant presentment step that the supermajority requirement already mooted. If two-thirds of both houses had voted in favor, those same two-thirds could override any veto, leaving the presentment requirement a procedural formality without substantive effect.

The analogy to constitutional-amendment procedure under Article X, § 4 reinforced the conclusion. That provision uses very similar text ("The Legislature, whenever two-thirds of both Houses shall deem it necessary, may propose amendments to this Constitution") and has no presentment requirement. The Justices of the Supreme Judicial Court had held in Opinion of the Justices, 261 A.2d 53 (Me. 1970), that constitutional amendments do not require gubernatorial participation. The only textual difference between the two provisions is "may propose amendments" (constitutional amendment) versus "by proper enactment" (bond issue), and Tierney refused to read "proper enactment" as a covert reference to the ordinary presentment process.

The 1977 opinion under AG Brennan (issued in response to Senate Secretary May M. Ross) had read "proper enactment" as incorporating the Article IV presentment requirement by reference, relying in part on Stuart v. Chapman, 104 Me. 17 (1908). Tierney's 1989 opinion treats Brennan's reading as inconsistent with the bond-issue provision's structure and recommends that the Legislature consider seeking an Opinion of the Justices to settle the question definitively. The Brennan opinion's separate conclusion on legislation with optional referendum clauses (which Tierney does not reopen) drew on Opinion of the Justices, 231 A.2d 617 (Me. 1967), holding that an optional referendum clause does not change the presentment requirement for ordinary legislation. The Justices had also held in Opinion of the Justices, 159 Me. 209 (1963), that bond-issue legislation may not be initiated through the people's initiative process under Article IX, pt. 3, § 18.

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 does this matter as a practical procedural question?

Bond issues in Maine require both a two-thirds legislative vote and majority voter ratification. If a Governor's signature is also needed, that adds a step where the executive can express opposition through veto. If presentment is not required, the bond authorization goes directly to the Secretary of State for placement on the ballot once both houses have acted. The 1989 opinion reduces the procedural friction by one step.

Why did the 1989 opinion overturn the 1977 opinion?

Tierney concluded the 1977 reading misread "proper enactment." The bond-issue clause's structure, with its built-in supermajority and its specific (rather than general) authorization, suggested that the framers used "proper enactment" to mean a properly-passed two-thirds vote, not the ordinary legislative process. The parallel constitutional-amendment provision used similar text and unambiguously bypassed the Governor, and the 1970 Opinion of the Justices on amendments offered the cleanest authority.

What did the Brennan 1977 opinion address other than bond issues?

The 1977 opinion responded to two questions from Senate Secretary May M. Ross. The first concerned bond issues (which Tierney's 1989 opinion overturns). The second concerned ordinary legislation containing an optional referendum clause, where the 1977 opinion concluded presentment was required. Tierney's 1989 opinion expressly leaves the second conclusion in place.

Should the Legislature have asked the Justices for guidance?

Tierney noted that an Opinion of the Justices would settle the matter authoritatively. Maine permits the Legislature to ask the Justices of the Supreme Judicial Court for advisory opinions on important constitutional questions. Tierney's recommendation flagged that a definitive answer would require that procedural step, and absent that, AG opinions are persuasive but not binding.

What is "Constitutional Amendment LXVII"?

Maine constitutional amendments are numbered sequentially. Amendment LXVII, ratified at the 1950 general election, added the bond-issue language to Article IX, § 14. It was the 67th amendment to the Maine Constitution. The numbering becomes important when tracking what amendments did what; here, LXVII installed the very provision the opinion construes.

Background and statutory framework

Maine's bond-issue process is governed by Article IX, § 14, which sets a $2 million debt ceiling on the Legislature (absent voter-ratified bonds) and provides the bond-authorization mechanism by which the ceiling can be exceeded. The 1989 opinion settles a recurring question about procedure: does the Governor get a vote? Tierney's answer of no aligns Maine bond procedure with the simpler model used for constitutional amendments. The opinion's chief practical effect is to streamline the path from legislative passage to ballot placement. Its chief structural significance is the acknowledgement that Maine's constitutional design treats bond issues, like constitutional amendments, as a direct legislator-to-voter mechanism that does not require executive participation.

Citations

• Me. Const. art. IX, § 14 (state debt limit and bond authorization procedure)
• Me. Const. art. IV, pt. 3, § 2 (presentment of bills to the Governor)
• Me. Const. art. X, § 4 (constitutional amendment proposal procedure)
• Me. Const. art. IX, pt. 3, § 18 (people's initiative; bond issues excluded)
• Constitutional Amendment LXVII (1950)
• Opinion of the Justices, 261 A.2d 53 (Me. 1970) (constitutional amendments require no gubernatorial participation)
• Opinion of the Justices, 231 A.2d 617 (Me. 1967) (optional referendum clauses do not change presentment requirement for ordinary legislation)
• Opinion of the Justices, 159 Me. 209 (1963) (bond-issue legislation may not be initiated through people's initiative)
• Stuart v. Chapman, 104 Me. 17 (1908) (relied upon by 1977 Department opinion now disapproved in part)
• Op. Me. Att'y Gen. (July 15, 1977) (disapproved in part)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1989/ag_19890810a.pdf

Original opinion text

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

89-11

JAMES E. TIERNEY
ATTORNEY GENERAL

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

August 10, 1989

Senator Michael D. Pearson
Chairman, Joint Standing Committee on Appropriations
Maine State Senate
State House Station #3
Augusta, Maine 04333

Dear Senator Pearson:

You have inquired whether legislation authorizing the issuance of bonds passed by two-thirds of both Houses of the Legislature pursuant to Article IX, Section 14 of the Maine Constitution must be presented to the Governor for his approval prior to submission to the voters of the State for their ratification. For the reasons which follow, it is the Opinion of this Department that the Governor's approval is not required for bond issues.

Article IX, Section 14 of the Maine Constitution provides in pertinent part:

The Legislature shall not create any debt or debts ... which shall singly, or in the aggregate ... exceed $2,000,000 ... excepting ... that whenever two-thirds of both Houses shall deem it necessary, by proper enactment ratified by a majority of the electors voting thereon at a general or special election, the Legislature may authorize the issuance of bonds on behalf of the State at such times and in such amounts and for such purposes as approved by such action ...

This provision, which was added to the Maine Constitution by Amendment LXVII, effective October 12, 1950, is silent on its face regarding whether the participation of the Governor in the bond issuance process is required. Moreover, there is no indication in the legislative history of the provision whether its proponents intended that the Governor be so involved, nor has the issue of his involvement been addressed by the Maine Supreme Judicial Court. Thus, in answering your question, this Department is left only with the plain language of the provision to assist it.

In interpreting that language, one notes first that the operative language of the provision is that "whenever two-thirds of both Houses shall deem it necessary, ... the Legislature may authorize the issuance of bonds ...." The provision thus stands in stark contrast to the provision of the Constitution governing the passage of ordinary legislation, which provides that "every bill or resolution, having the force of law, ... which shall have passed both Houses, shall be presented to the Governor ...." Me. Const., art. IV, pt. 3, § 2. (Emphasis added). On its face, therefore, the bond issue provision does not expressly contemplate participation by the Governor, whereas the provision governing ordinary legislation does.

The only issue which your question presents, therefore, is whether, by using the phrase "by proper enactment", the authors of the bond issue provision intended to incorporate by reference the provision of the Maine Constitution relating to the passage of ordinary legislation. In the absence of any legislative history to the contrary, however, this office is reluctant to reach such a conclusion, particularly when it is remembered that under the terms of the bond issue provision, two-thirds of each House (the number of votes required to override a gubernatorial veto of ordinary legislation) must approve the bond issue in the first instance. In such a circumstance, it is difficult to conclude that the authors of the constitutional provision intended that the Governor have an opportunity to disapprove a bond issue, since the number of legislators necessary to override his veto would have already voted in favor of the issuance of the bonds by the time the authorization was presented to him.

This conclusion is bolstered by a 1970 Opinion of the Justices of the Supreme Judicial Court, interpreting a similar provision of the Maine Constitution dealing with constitutional amendments. Article X, Section 4 of the Maine Constitution provides that "The Legislature, whenever two-thirds of both Houses shall deem it necessary, may propose amendments to this Constitution ...." As in the case of the bond issuance provision, it is the "Legislature" which in terms is given the power to act (by two-thirds vote), and as in the case of the bond issuance provision, there is no mention of participation by the Governor in the process. The only textual difference in the two provisions is that the constitutional amendment provision specifies that the Legislature "may propose amendments" and that when such amendments are agreed upon, "a resolution shall be passed", while the bond issuance provision specifies that such action be taken "by proper enactment." The Justices of the Supreme Judicial Court concluded that the constitutional amendment provision did not require the participation of the Governor. Opinion of the Justices, 261 A.2d 53 (Me. 1970). Thus, in order to reach a different result in the context of the bond issuance provision, one would have to read a different meaning into the words "proper enactment" from that adopted by the Justices for the word "passed". For the reasons set forth above, this Department is reluctant, in the absence of any expression of legislative intention to the contrary, to read such a different meaning into the bond issuance provision language.

In reaching this conclusion, this Department is aware that it is inconsistent with the conclusion reached in part of an Opinion of the Department issued on July 15, 1977, a copy of which is attached. At pages 2-3 of that Opinion, the Department determined that the phrase "proper enactment" did incorporate by reference the provisions of Article IV, Part Third, Section 2, and thus require the participation of the Governor in the authorization of bond issues. Since the Department now concludes that such an intention should not be ascribed to the drafters of Article IX, Section 14 in the absence of any expression thereof, it must disapprove of its Opinion of July 15, 1977 to the extent that it suggests that the Governor's participation in bond issue authorizations is constitutionally required. In light of these differing conclusions, however, the Legislature might want to consider requesting an Opinion of the Justices in the matter.

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

Sincerely,
JAMES E. TIERNEY
Attorney General

JET/ec

cc: Honorable John R. McKernan; Honorable Charles Pray, Senate President; Honorable John L. Martin, Speaker of the House; Honorable Donald V. Carter, House Chairman, Joint Standing Committee on Appropriations; Honorable John David Kennedy, Revisor of Statutes

(Attachment reproduced from the same source document: the July 15, 1977 opinion of Attorney General Joseph E. Brennan.)

RICHARD S. COHEN
JOHN M. R. PATERSON
DONALD G. ALEXANDER
DEPUTY ATTORNEYS GENERAL

STATE OF MAINE
DEPARTMENT OF THE ATTORNEY GENERAL
AUGUSTA, MAINE 04333

July 15, 1977

Honorable May M. Ross
Secretary of the Senate
Senate Chambers
State House
Augusta, Maine 04333

Dear Mrs. Ross:

We are responding to your letter of July 12, 1977, in which you asked two questions concerning the constitutional procedure to be used with legislation which is subject to referendum. Your questions are whether bills which have been passed by both Houses of the Legislature should be presented to the Governor for his approval or should be presented directly to the Secretary of State to be placed on a referendum ballot, when those measures are: (1) bond issue legislation passed under the provisions of Article IX, Section 14 of the Constitution of Maine; and (2) any other measure which contains a referendum clause. The answer is that the legislative measures in both cases should be presented to the Governor for his approval pursuant to Article IV, Part Third, Section 2 of the Constitution of Maine.

Your questions require consideration of Constitutional provisions which read, in pertinent part:

"Every bill or resolution, having the force of law, to which the concurrence of both Houses may be necessary, except on a question of adjournment, which shall have passed both Houses, shall be presented to the Governor . . ." Article IV, Part 3, Section 2.

"The Legislature shall not create any debt or debts . . . which shall singly, or in aggregate . . . exceed two million dollars, except . . . that whenever two-thirds of both Houses shall deem it necessary, by proper enactment ratified by a majority of the electors voting thereon at a general or special election, the Legislature may authorize the issuance of bonds on behalf of the State . . ." Article IX, Section 14. (Emphasis provided)

Article IX, Part Third, Section 19 of the Constitution would relate to your questions except insofar as it allows the Legislature to include referenda provisions on legislation. The reference in that section to the Governor's veto power is not a limitation upon such power as is exercised before such legislation is sent to referendum. The Justices of the Supreme Judicial Court have rendered an opinion which in large part answers your questions. In 1967 the Legislature passed an appropriations bill for additional expenditures of state government on condition that the legislation be ratified by the people at a referendum. The House of Representatives asked the Justices for their opinion on questions of whether such legislation had the force of law so that it was necessary to present the act to the Governor for his consideration and whether the Governor had the power to veto such legislation. The Justices answered these questions by giving their opinion that the presence of a referendum clause in a bill would not alter or modify the requirement of Article IV, Part Third, Section 2 of the Constitution with regard to presentation of such legislation to the Governor, and that the Governor has the power to veto bills which carry a referendum clause added at the discretion of the Legislature. The Justices concluded that if such bill was vetoed and the veto was subsequently overridden by the Legislature, the legislation would then be submitted to referendum. Opinion of the Justices, 231 A.2d 617 (Me., 1967).

The only remaining question is whether bond issue legislation, passed pursuant to the mandatory referendum provisions of Article IX, Section 14, would create an exception to the Opinion of the Justices examined above. It is our opinion that this additional factor would not cause an exception and that the rationale of the Justices would be equally applicable. Article IX, Section 14 provides that such legislation is permitted only by "proper enactment" of two-thirds of both Houses followed by ratification at referendum. The term "proper enactment" is not defined in the section. Nor is this terminology clarified by legislative or constitutional history.1/ Therefore, we must conclude that the term "proper enactment" refers to the standard legislative process which is used for all Acts and Resolves. This legislative process must include review by the Governor pursuant to Article IV, Part Third, Section 2, since approval by the Governor, or other post-review constitutional means of enactment, are the last legislative acts which "breathe life" into an enactment. Stuart v. Chapman, 104 Me. 17 (1908). Consequently, bond issue legislation which is constitutionally required to contain a referendum clause, nevertheless must be presented to the Governor for his review and subsequent action.2/

The only apparent exception to the expressed opinion that legislation containing a referendum clause must be presented to the Governor for his review, is in the limited area of constitutional amendments. A Resolve proposing a Constitutional Amendment pursuant to the provisions of Article X, Section 4 would go directly to referendum without presentation to the Governor. Opinion of the Justices, 261 A.2d 53 (1970). It is noted by way of comparison, however, that the constitutional provision regarding Constitutional amendments speaks in terms of a resolve being "passed" rather than being by "proper enactment."

We trust that the foregoing opinion will be helpful to you.

Sincerely,
JOSEPH E. BRENNAN
Attorney General

JEB:mfe

cc: Governor James B. Longley; Joseph Sewall, President of the Senate; John Martin, Speaker of the House; Honorable Jerrold Speer; Honorable David G. Huber; Honorable Gerard P. Conley; Honorable Peter W. Danton; Honorable James E. Tierney; Honorable Rodney S. Quinn; Honorable Linwood E. Palmer, Jr.; Honorable William J. Garsee

1/ The pertinent provision of Article IX, Section 14 was added by Constitutional Amendment LXVII, pursuant to Resolves, 1949, c. 99 (H.P. 1571, L.D. 1885).

2/ It is interesting to note in this regard that the Justices of the Supreme Judicial Court have also rendered their opinion that bond issue legislation may not be started through the initiative process set forth in Article IX, Part Third, Section 18. Opinion of the Justices, 159 Me. 209 (1963).