Can the Maine Legislature designate confirmation committees by simple resolution, and can it extend its session by majority vote despite a statutory adjournment deadline?

Plain-English summary

House Clerk Joseph Mayo asked Attorney General Andrew Ketterer two separate questions, one about gubernatorial confirmations and one about session length.

The confirmation question turned on the grammatical reach of "as provided by law" in Article V, Part 1, § 8 of the Maine Constitution. That clause says confirmation will proceed before "an appropriate legislative committee comprised of members of both houses in reasonable proportion to their membership as provided by law." Does "as provided by law" modify only the proportionality requirement, only the committee designation, or all of the language that precedes it? The AG concluded it modifies all of the preceding language. If a statute designates which committee reviews a nominee, that statute controls. The proportional-membership requirement is satisfied by the statutes that already set House and Senate sizes. And, crucially, a Legislature designating a particular committee for a particular confirmation does not have to enact a statute to do so. The constitution requires a statute (with a 2/3 supermajority) only when "statutes are enacted to carry out the purposes of the confirmation process." A floor resolution or order simply assigning a committee is not an enactment. A simple majority is enough.

The session-length question concerned 3 M.R.S.A. § 2, which sets statutory adjournment deadlines (third Wednesday in June for first regular sessions; third Wednesday in April for second regular sessions) with an emergency 2/3-extension procedure for up to 5 additional legislative days. Could the Legislature extend its session by majority vote despite that statute? The AG concluded yes, citing the Opinion of the Justices, OJ-96-2 (April 3, 1996), for the rule that one Legislature cannot bind a subsequent Legislature. The Legislature could amend or repeal § 2. But more importantly, the AG read Me. Const. art. IV, pt. 3, § 16, which exempts orders or resolutions "pertain[ing] solely to facilitating the performance of the business of the Legislature" from the 90-day-after-recess effective-date rule, as letting the Legislature stay in session past the statutory deadline by majority order. The order itself is a self-governance act, not an act that has to satisfy the 90-day rule.

Currency note

This opinion was issued in 1999. 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 does "as provided by law" usually do in constitutional language?

It typically signals that the constitution leaves the details to the Legislature: "this is the framework, fill in the specifics by statute." The grammatical reach of the phrase depends on context. Here the AG read it as modifying everything that precedes, on the theory that the framers intended the Legislature to be able to designate the committee, set the membership rules, and adjust the proportions, all by ordinary legislation.

Why doesn't designating a confirmation committee require a 2/3 vote?

Because the 2/3 threshold in Article V, Part 1, § 8 applies to statutes enacted to carry out the confirmation process. A resolution that just says "the Judiciary Committee will hear this nomination" is not a statute; it is an internal procedural choice by the Legislature about how to organize its own work. The constitution's 2/3 requirement targets substantive statutes, not housekeeping.

Can the Legislature really override its own session-length statute by majority vote?

Yes, in the sense that any current Legislature can ignore a statute the prior Legislature wrote about how this Legislature must operate. One Legislature cannot bind a subsequent Legislature through ordinary legislation, a principle the Justices articulated in 1996. The session-length statute is a default; if the current Legislature wants to stay past the deadline, it can do so by majority resolution.

Does the 2/3 emergency extension in 3 M.R.S.A. § 2 still matter?

It matters as a procedural option, but the AG's view is that it is not the only way to extend. § 2 is one tool; a majority-vote order pertaining to legislative business is another.

Background and statutory framework

Maine's confirmation process for gubernatorial nominations is laid out in Me. Const. art. V, pt. 1, § 8, with implementing statutes scattered across other titles. Statutory session-length limits sit at 3 M.R.S.A. § 2, with adjournment deadlines for both regular sessions. The constitutional effective-date rule for legislation (90 days after recess unless emergency) is at Me. Const. art. IV, pt. 3, § 16, which includes the carve-out for legislative-business orders and resolutions that this opinion leans on.

Opinion of the Justices, OJ-96-2 (April 3, 1996), articulated the principle that one Legislature cannot bind a subsequent Legislature through ordinary statute. That principle is foundational to American legislative law and well established in many state and federal courts.

Citations

• Me. Const. art. V, pt. 1, § 8 (gubernatorial nominations and confirmation)
• Me. Const. art. IV, pt. 3, § 1 (legislative session convening rules)
• Me. Const. art. IV, pt. 3, § 16 (90-day effective-date rule and carve-out for legislative-business orders)
• 3 M.R.S.A. § 2 (statutory session-length deadlines)
• Opinion of the Justices, OJ-96-2 (Apr. 3, 1996)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1999/ag_19990604.pdf

Original opinion text

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

STATE OF MAINE
DEPARTMENT OF THE ATTORNEY GENERAL
6 State House Station
Augusta, Maine 04333-0006

Andrew Ketterer
Attorney General

June 4, 1999

Honorable Joseph W. Mayo
Clerk, Maine House of Representatives
2 State House Station
Augusta, Maine 04333-0002

Dear Clerk Mayo:

This will respond to your letter dated April 9, 1999 requesting an opinion from this office on two separate provisions of the Maine Constitution. We will respond to your request in the order in which you have presented your inquiries.

Your first question relates to the language of Article V, Pt. I, Section 8 of the Maine Constitution which deals with the Governor's power to nominate officers, subject to confirmation. Paragraph 2 of section 8 of Article 5, Pt. I provides in relevant part as follows:

"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."

You have specifically asked whether the phrase "as provided by law" modifies the language "an appropriate legislative committee" or the language "of members of both houses in reasonable proportion to their membership," or whether that phrase was intended to modify all of the language preceding it.

It is the view of this office that the phrase "as provided by law" modifies all of the language preceding it, namely, "an appropriate legislative committee comprised of both houses in reasonable proportion to their membership as provided by law."

If a provision of law designates the appropriate legislative committee which is to review a Gubernatorial nominee, that provision of law controls. Similarly, various provisions of Maine law deal with the number of Senators and Representatives to be elected and, therefore, provide for the proportion of the members of both houses to sit on the appropriate legislative committee.

The Constitution expressly provides that the committee recommendation of confirmation or denial can only be overridden by a vote of 2/3 of the members of the Senate present and voting. Moreover, the Constitution requires that any statutes enacted to carry out the purposes of the confirmation process must have the affirmative vote of 2/3 of the members of each House present and voting. Reference to a committee by the Legislature is not enacting a statute and, thus, would only require a simple majority.

Your second question relates to the provisions of Article IV, Part Third, Section 1 of the Maine Constitution which deals with the convening of the Legislature and what matters may be considered by the Legislature during its First and Second Regular Sessions. Section 1 of Article IV, Part Third then provides that:

"The Legislature shall enact appropriate statutory limits on the length of the first regular session and the second regular session."

You have specifically asked whether this Constitutional provision binds the current Legislature to the provisions of 3 M.R.S.A. section 2 which requires the adjournment of the first regular session of the Legislature no later than the 3rd Wednesday in June and the adjournment of the second regular session of the Legislature no later than the 3rd Wednesday in April. The law also allows the Legislature, in the case of an emergency and by a vote of 2/3 of the members of each House present and voting to extend the date of adjournment twice for no more than 5 additional legislative days for each extension.

You have also made reference to the Opinion of the Justices, OJ-96-2 Dated April 3, 1996 indicating that no statutory enactment passed by one Legislature can bind a subsequent Legislature and that "subsequent sessions of the Legislature may choose to follow it, or they may choose to repeal it, either expressly or by implication."

In light of this, you have asked whether the Legislature could extend the adjournment deadlines by majority vote, notwithstanding the express language of 3 M.R.S.A. section 2.

It is, of course, true that the Legislature could alter, amend or repeal the time limits contained in 3 M.R.S.A. section 2 either expressly or by implication. Normally, such legislative action of amending or repealing a statute would not take effect until 90 days after the recess of the session of the Legislature in which it was passed, unless in case of an emergency passed by a vote of 2/3 of all members elected to each House. See Article IV, Part 3, section 16.

The constitutional provision providing that Acts of the Legislature do not become effective until 90 days after the recess of the Legislature which passed it (except for emergency legislation) contains its own exception for "such orders or resolutions as pertain solely to facilitating the performance of the business of the Legislature, either branch, or of any committee or officer thereof, or appropriate money therefor or for the payment of salaries fixed by law."

Since an order or resolution by a majority of the Legislature that it should remain in session beyond the statutory timeframe set forth in 3 M.R.S.A. section 2 would be such as pertained "solely to facilitating the performance of the business of the Legislature," it is the view of this office that the Legislature could extend the legislative session by majority vote and, in essence, repeal or alter the statutory time limits of 3 M.R.S.A. section 2.

We hope this responds to your inquiries. Please let us know if we can be of further assistance to you.

Sincerely,

Andrew Ketterer
Attorney General