When does Maine's initiated bill LD 716 (repealing the motor vehicle emission inspection program) take effect, and can the Legislature pass it as an emergency?

Plain-English summary

Citizens had used Maine's direct-initiative process under Me. Const. art. IV, pt. 3, § 18 to put LD 716 (repealing the motor vehicle emission inspection program) before the Legislature. The 117th Legislature could enact it without change (which would prevent it from going to the voters) or pass it to a referendum vote. The Natural Resources Committee asked the AG two procedural questions: when would LD 716 take effect if enacted, and could the Legislature treat it as an emergency for immediate effectiveness.

The AG's first answer: an initiated measure, once enacted by the Legislature, counts as an "Act" of the Legislature under Me. Const. art. IV, pt. 3, § 16, which delays the effective date until 90 days after the session recesses. The purpose of that 90-day window is to permit the people's-veto procedure under § 17, by which citizens can collect signatures to force a referendum on enacted legislation. The framers of the 1908 direct-democracy amendments (Me. Const. amend. XXXI) likely meant the people's veto to apply even to initiated measures enacted by the Legislature, because otherwise one group of voters' successful initiative could not be checked by another group of voters wanting a referendum on the result.

The AG's second answer: the Legislature can still treat LD 716 as an emergency under § 16, requiring a 2/3 vote in each house. The emergency procedure affects only the bill's effective date, not its substance, so enacting an initiated bill as an emergency does not amount to a "change" within the meaning of § 18(2). The Law Court's decision in McCaffrey v. Gartley, 377 A.2d 1367 (Me. 1977), supported the general proposition that the Legislature retains its emergency-enactment authority even in the initiative context.

Currency note

This opinion was issued in 1995. 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

What is a Maine "initiated bill"?

A bill placed before the Legislature by petition of the voters under Me. Const. art. IV, pt. 3, § 18. If the Legislature enacts it without change, it becomes law. If the Legislature does not enact it without change, it goes to a statewide referendum. LD 716 was such a bill, proposing to repeal Maine's motor vehicle emission inspection program.

What is the "people's veto"?

A countervailing initiative procedure in Me. Const. art. IV, pt. 3, § 17. After the Legislature enacts a law, citizens can petition (within 90 days of recess) to suspend it and force a referendum to repeal it. That is why ordinary legislation does not take effect until 90 days after recess: to give the people's-veto window time to operate.

Why does an initiated measure go through the same 90-day window?

Because the people's veto applies to every "Act" of the Legislature. The AG read § 16's effective-date rule as covering Acts whether or not their origin was a citizen initiative. Otherwise, one group of voters who liked the initiated bill could lock in the legislative enactment, and another group of voters who disliked it would be unable to invoke § 17 to challenge it.

How does the emergency-enactment procedure work?

Under § 16, the Legislature can declare a bill an "emergency" by a 2/3 vote in each house. The bill then takes effect immediately on the Governor's approval, rather than 90 days after recess. The emergency procedure does not modify the substance of the legislation, only its effective date.

Doesn't enacting an initiated bill as an emergency change it in a way that triggers a vote of the people under § 18(2)?

The AG said no. § 18(2) requires the bill to go to the voters if the Legislature enacts it "with change." Adding emergency status changes only the effective date, not the substance. The AG could have imagined a counterargument that the initiators might have had a specific effective date in mind, but LD 716 itself did not contain any effective-date provision, so emergency enactment would not contradict the initiators' intent.

Background and statutory framework

Maine's direct-democracy framework runs through Me. Const. art. IV, pt. 3:

• § 16 sets the standard 90-day post-recess effective date for legislation, with an emergency exception requiring a 2/3 vote.
• § 17 establishes the people's veto, allowing voters to petition for a referendum to repeal legislation.
• § 18 establishes the direct-initiative process, allowing voters to put proposed bills before the Legislature for either enactment (no change) or referral to the voters.

The whole framework was added in 1908 as Me. Const. amend. XXXI, effective January 9, 1909. The framers built the three sections to work together: § 18 lets the voters initiate, § 17 lets the voters veto, and § 16's effective-date delay creates the window for § 17 to operate.

The dispositive precedent is McCaffrey v. Gartley, 377 A.2d 1367 (Me. 1977), which addressed the Legislature's authority to enact "competing measures" alongside pending initiated legislation. The AG drew on McCaffrey's general willingness to read the Legislature's procedural authority broadly within the initiative process.

Citations

• Me. Const. art. IV, pt. 3, § 16 (90-day post-recess effective date; emergency exception)
• Me. Const. art. IV, pt. 3, § 17 (people's veto)
• Me. Const. art. IV, pt. 3, § 18 (direct initiative; § 18(2) "without change" requirement)
• Me. Const. amend. XXXI (1908 direct-democracy amendments, effective January 9, 1909)
• LD 716, 117th Legislature (initiated legislation to repeal motor vehicle emission inspection program)
• McCaffrey v. Gartley, 377 A.2d 1367 (Me. 1977) (Legislature's competing-measure authority)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1995/ag_19950426b.pdf

Original opinion text

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

95-4

ANDREW KETTERER
ATTORNEY GENERAL

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

April 26, 1995

Senator Willis A. Lord
Representative Richard A. Gould
Chairs, Joint Standing Committee on Natural Resources
State House Station #115
Augusta, ME 04333

Dear Senator Lord and Representative Gould:

I am writing in response to your inquiry of April 19, 1995 asking two questions regarding Legislative Document 716, "AN ACT to Repeal the Motor Vehicle Emission Inspection Program," initiated legislation currently pending before the Legislature pursuant to Article IV, Part Third, Section 18 of the Maine Constitution. You have asked what the effective date of this legislation would be if it were enacted by the Legislature, and whether the Legislature may constitutionally enact the measure as an emergency. For the reasons which follow, it is the opinion of this Department that if enacted by the Legislature, the bill would not take effect until 90 days following the recess of the current session of the Legislature, but that the Legislature may enact it as an emergency measure, making it effective upon approval by the Governor.

With regard to the effective date of the measure, Article IV, Part Third, Section 16 of the Maine Constitution provides that "No Act or joint resolution of the Legislature ... shall take effect until 90 days after the recess of the session of the Legislature in which it was passed, ..." The problem posed by your inquiry is that, unlike ordinary legislation, LD 716 is before the Legislature as an initiated measure pursuant to Article IV, Part Third, Section 18 of the Maine Constitution. That section provides that, with regard to measures proposed by the electors of the State, any "measure thus proposed, unless enacted without change by the Legislature at the session which it is presented, shall be submitted to the electors..." The question, therefore, is whether if the Legislature enacts an initiated measure under Section 18, such action would constitute an "Act" of the Legislature under Section 16, meaning that it does not take effect until 90 days after the recess of the session of the Legislature passing it.

In the view of this Department, such a measure would constitute such an "Act." The purpose of the provision in Section 16 suspending the operation of legislation until 90 days after the recess of the Legislature is to allow for the operation of Article IV, Part Third, Section 17 of the Maine Constitution, whereby the electors may seek to prevent any legislation enacted by the Legislature from becoming law by exercising the "people's veto." That section provides that during the 90-day period citizens objecting to a particular measure passed by the Legislature may secure a requisite number of signatures, and thereby require the measure to be submitted to the voters for their approval at a general election. If an initiated measure were enacted by the Legislature, and if it were effective immediately, the possibility of the people's veto would be eliminated. It does not appear that this would have been the intention of the drafters of these direct democracy amendments to the Maine Constitution, all of which were enacted together in 1908. Me. Const., Amendment XXXI (effective Jan. 9, 1909). It is quite conceivable that one group of electors would succeed in gathering sufficient signatures to invoke the direct initiative process, and the Legislature would enact the measure thus proposed without change, but that another group of citizens might seek to invoke the provisions of the people's veto to prevent the legislation from becoming law. That being the case, there is no difference, for purposes of the effective date provision of Section 16, whether an "Act" of the Legislature is prompted by a direct initiative.

This is not to say, however, that the Legislature is without power to make the initiated legislation effective upon its enactment. Article IV, Part Third, Section 16 also provides that "in case of emergency, the Legislature shall, by a vote of 2/3 of all the members elected to each House," pass such a measure, in which case it shall take effect immediately upon such passage. The question posed by your second inquiry is whether the provision of Section 18(2) that, in order to prevent the measure from going to the electors, the Legislature must enact it "without change" prevents the Legislature from enacting it as emergency legislation. In the view of this Department, the Legislature would not be so prevented. The enactment of the legislation pursuant to the emergency provisions of Section 16 would not affect the substance of the legislation, only its effective date. While it is possible that the initiators might have included an effective date of their own in their initiated bill, the proposal in this case, LD 716, does not contain any such provision. It would thus not violate the intention of the initiators to enact the measure on an emergency basis, and consequently to do so would not constitute a "change," within the meaning of Section 18(2). See generally McCaffrey v. Gartley, 377 A.2d 1367 (Me. 1977) (Legislature may pass emergency legislation which might otherwise constitute a "competing measure" with pending initiated legislation).

In sum, therefore, if the Legislature enacts LD 716 without complying with the emergency requirements of Section 16, the bill will become effective 90 days after the session of the Legislature. If the Legislature chooses, it may enact the measure as emergency legislation, in which case it would become effective upon its approval by the Governor.

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

Sincerely,

ANDREW KETTERER
Attorney General

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