Does Maine's state-mandates amendment (Me. Const. art. IX, § 21) require a 2/3 vote or 90% State funding when the Legislature creates new crimes or civil infractions that municipal police will then have to enforce?

Plain-English summary

Senator Joseph Brannigan asked whether his bill LD 486 (establishing a civil violation for failing to ensure passengers wear seat belts) would trigger Me. Const. art. IX, § 21's 90%-funding or 2/3-vote requirement because municipal police would have new enforcement responsibilities. The AG said no.

The textual answer is in § 21's structure. The provision says the State may not "require a local unit of government to expand or modify that unit's activities so as to necessitate additional expenditures from local revenues" without 90% funding or a 2/3 vote. The AG read "require" narrowly: legislation that directly imposes new obligations on local government is in scope; legislation that creates secondary or indirect financial pressure (like increased law-enforcement workload from a new traffic violation) is not.

The legislative-history evidence reinforces the reading. Committee Amendment B to LD 66 (the immediate predecessor of the final amendment) contained an explicit definition of "mandate" that excluded changes in laws relating to crimes and civil infractions. House Amendment D replaced Committee Amendment B without floor debate as to scope. There was no indication that the Legislature meant to broaden the scope by removing the explicit exclusion. The AG read House Amendment D as carrying forward the same conceptual scope as Committee Amendment B.

The practical upshot: the Legislature can create new crimes and civil infractions without invoking § 21. Police-enforcement workload increases are not "mandates."

Currency note

This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice.

Common questions

Why doesn't increased law-enforcement workload count?

Because § 21 targets legislation that directly requires local government to do something new. A new traffic civil violation affects what drivers must do, not what municipalities must do. Municipalities are not "required" to enforce, in the sense of being told to provide a new service. They may choose how aggressively to enforce; the new law just expands their enforcement options.

What's the difference between this and a "mandate" that would trigger § 21?

A § 21 mandate is something like: "every municipality shall provide weekly trash collection." That directly requires a new local activity. A new crime or civil infraction is more like: "any person who does X commits a Class E crime." It is a rule about citizen behavior, not a directive to local government.

What about the prosecutorial workload? Don't local district attorneys have to handle new cases?

Yes, but district attorneys are funded by the State and counties, not the affected municipalities. And even if there were a local cost, the AG's textual reading treats indirect enforcement burdens as outside § 21's scope.

Did the AG cite any cases?

No. The 1993 opinion was an early interpretation of a recently-enacted amendment, and the AG worked primarily from the text and legislative history rather than case law.

What if a bill creates a new crime AND requires a new local service to enforce it?

The AG opinion doesn't address that hybrid. A bill that creates a new crime and also says "municipalities shall hire dedicated officers to enforce this crime" would have a direct local-spending requirement and might raise § 21 concerns for that requirement. But the criminal classification itself wouldn't.

Background and statutory framework

Me. Const. art. IX, § 21 (effective November 23, 1992). The full text appears in AG 93-1 above.

LD 486, "AN ACT Concerning the Mandatory Use of Car Safety Seat Belts," would have established a civil violation for the operator of a motor vehicle to fail to ensure that all persons in the vehicle wear a seat belt when one is provided.

Committee Amendment B to LD 66 (the predecessor amendment, passed by the Senate at Legis. Rec. S-169 (1992)) contained a definition of "mandate" that specifically excluded changes in the laws of the State relating to crimes and civil infractions. The opinion relies on that exclusion as evidence of the Legislature's understanding; it does not reproduce the full text of the definition.

Companion opinions: AG 93-1 (counties covered), AG 93-3 (general-employer legislation not covered), AG 94-3 (water district charter repeal), AG 94-4 (landfill subsidy reductions), AG 95-1 (MSRS teacher cap subsidy reduction).

Citations

• Me. Const. art. IX, § 21 (state mandates amendment)
• L.D. 486 (the seat-belt civil-violation bill)
• L.D. 66, Comm. Amend. B (115th Legis. 1992) (predecessor amendment with explicit crime/infraction exclusion)
• Op. Me. Att'y Gen. 93-1 (counties included)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1993/ag_19930311.pdf

Original opinion text

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

93-2

MICHAEL E. CARPENTER
ATTORNEY GENERAL

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

March 11, 1993

Honorable Joseph C. Brannigan
Maine State Senate
State House Station 2
Augusta, ME 04333

Dear Senator Brannigan:

I am writing in response to your inquiry into whether changes in the laws of the State involving crimes or civil infractions constitute "mandates" within the meaning of the recently enacted Article IX, Section 21 of the Maine Constitution, requiring that such new legislation be passed by two thirds of all members elected to each house of the Legislature, or, failing that, that the Legislature provide ninety percent of the increase in the local expenditures necessitated by such legislation. You offer, as an example of such legislation, Legislative Document 486, "AN ACT Concerning the Mandatory Use of Car Safety Seat Belts," of which you are the sponsor. LD 486 would establish a civil violation for an operator of a motor vehicle to fail to ensure that all persons in the vehicle wear a seat belt when one is provided. For the reasons that follow, it is the Opinion of this Department that such legislation does not contain a "mandate" within the meaning of the constitutional provision, and thus may be enacted by ordinary majorities of both houses.

Article IX, Section 21 provides in its entirety as follows:

For the purpose of more fairly apportioning the cost of government and providing local property tax relief, the State may not require a local unit of government to expand or modify that unit's activities so as to necessitate additional expenditures from local revenues unless the State provides annually 90% of the funding for these expenditures from State funds not previously appropriated to that local unit of government. Legislation implementing this section or requiring a specific expenditure as an exception to this requirement may be enacted upon the votes of 2/3 of all members elected to each House. This section must be liberally construed.

The purpose of this amendment is plain: to make it more difficult for the Legislature to enact legislation which will result in an increase in local property taxes. The amendment does not, however, purport to limit the Legislature's power with regard to any action which might conceivably result in increased expenditures by municipal government. Rather, the amendment provides that the State "may not require a local unit of government to expand or modify that unit's activities so as to necessitate additional expenditure from local revenues" (emphasis added). It thus appears clear, from the plain language of the amendment, that the only kind of legislation which it is designed to affect is legislation which directly imposes new obligations requiring additional expenditures upon local units of government of the State.

This Department has also reviewed the extensive legislative history of the amendment, and can find no suggestion that the Legislature intended it to apply to legislation which might have an indirect financial effect on local government, as opposed to legislation which directly imposed obligations upon such government. Indeed, an earlier version of the amendment, Committee Amendment "B" to Legislative Document 66, which was passed by the Senate, Legis. Rec. S-169 (1992), contained a definition of "mandate" which specifically excluded changes in the laws of the State relating to crimes and civil infractions. As set forth more fully in Opinion 93-1 of this Department, a copy of which is attached, Committee Amendment "B" was not adopted by the Legislature as a whole, but there was no indication that its substitute, House Amendment "D" to Committee Amendment "B", was intended to change the scope of the amendment. Accordingly, this Department is of the view that legislation, such as L.D. 486, would not be affected by the amendment, even though its enactment could conceivably increase the law enforcement burdens of local government.

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

Sincerely,

MICHAEL E. CARPENTER
Attorney General

MEC/bls

cc: Representative William B. O'Gara
Co-Chair, Joint Standing Committee on Transportation