Can the Maine Legislature pass a law that tells voters which municipal decisions they're not allowed to overturn through a citizen initiative or referendum?

Plain-English summary

Senator Peggy Rotundo asked AG G. Steven Rowe whether LD 389, a bill in the 121st Legislature that would have amended 30-A M.R.S.A. § 3001 to bar voters from retroactively modifying, repealing, revoking, or invalidating certain final municipal actions through initiative or referendum, was constitutional. The AG's answer: no, both the original LD 389 and the version reported out with Committee Amendment "A" (H-354) would violate the Maine Constitution.

The constitutional provision the bill ran into is Article IV, Part 3, § 21. That section gives city councils the power to establish municipal initiative and people's veto systems, subject to ratification by city voters. The Legislature's only role in that provision is to "provide a uniform method for the exercise of the initiative and referendum in municipal affairs." Nothing in § 21 lets the Legislature carve out particular categories of municipal decisions that citizens may not put on the ballot.

The AG distinguished between two kinds of laws the Legislature could pass. One is a uniform procedural framework: that is squarely within Article IV, Pt. 3, § 21's grant. The Legislature has not enacted such a framework, but it could. The other is a substantive carve-out telling voters which decisions are off-limits: that exceeds the constitutional grant. LD 389 was the second kind.

The opinion did acknowledge a related path the Legislature could take. Under Article VIII, Pt. 2, § 1, the Legislature has broad authority to set the scope of municipal corporate power in the first place. So the Legislature could prohibit municipalities themselves from retroactively rescinding the categories of municipal actions the bill addressed. If municipalities cannot act in that way, voters cannot use a referendum to force them to. But that is a different route, and it would require the Legislature to legislate against the municipality, not against the citizens' referendum right.

Two limits on the opinion stand out. First, the AG explicitly said its analysis "should not be read to suggest that retroactive modifications or repeals of municipal actions are constitutionally sound simply because they were effected by an initiative or people's veto." Due process and property rights of third parties remain available defenses against a particular initiative. Second, the AG did not opine on the substance of what LD 389's drafters were trying to accomplish, only on the means.

Currency note

This opinion was issued in 2003. 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

Q: What does "municipal affairs" actually cover under Article IV, Pt. 3, § 21?
A: The Maine Law Court has read "municipal affairs" to include the "internal business of a municipality." Burkett v. Youngs, 135 Me. 459, 464 (1938). Later decisions confirm the same scope. Albert v. Town of Fairfield, 597 A.2d 1353, 1354 (Me. 1991). The constitutional limitation is built into the phrase: a city referendum has to be about municipal business, not state matters that happen to affect the city.

Q: Why couldn't the Legislature just say "no retroactive citizen overrides of municipal contracts" if it wanted to protect contract rights?
A: It could, by limiting municipal power. What the Legislature cannot do under Article IV, Pt. 3, § 21 is reach in and tell voters which kinds of municipal actions are unreachable by initiative. The two routes look similar in their result but are constitutionally distinct: regulating the city is fine, regulating the citizen's referendum right is not.

Q: At the time of this opinion, did Maine actually have a uniform method for municipal initiatives and referenda?
A: No. The AG observed that the Legislature had not enacted the uniform method that Article IV, Pt. 3, § 21 authorizes. Each city's process was governed by its own ordinance, ratified by city voters. The Legislature could have stepped into that space with a uniform statute, but the AG noted it had not.

Q: Does this opinion mean any citizen initiative survives a constitutional challenge?
A: No. The opinion answered only the question whether LD 389 itself was constitutional. A particular initiative or referendum still has to survive substantive constitutional review: it cannot violate due process, take property without just compensation, breach contracts, or impose impermissible classifications. The AG's footnote 1 expressly preserved those defenses.

Background and statutory framework

Article IV, Part 3, § 21 of the Maine Constitution is the only provision granting the people of Maine cities a municipal initiative and referendum power. The provision frames the right as a city-council option (each city has to establish its own process and have voters ratify it). The Legislature's role is bounded: it may provide a uniform method, but it has not.

Article VIII, Part 2, § 1 of the Maine Constitution authorizes the Legislature to grant home-rule authority to municipalities. Municipal corporations have only the powers the Legislature has given them or the Constitution has granted them directly. Schwanda v. Bonney, 418 A.2d 163 (Me. 1980). That separation matters here because it explains why the Legislature can legislate against the municipality but not against the voter.

The 30-A M.R.S.A. § 3001 home-rule statute is the general statute the AG opinion identified as the location LD 389 would have amended. Whether and how to amend it remained on the table even after the opinion; the constitutional defect was specific to telling voters what they could not do, not to the underlying policy concern about retroactive rescissions.

Citations

• 30-A M.R.S.A. § 3001 (municipal home-rule statute)
• Me. Const. art. IV, pt. 3, § 21 (municipal initiative and referendum; Legislature may provide uniform method)
• Me. Const. art. VIII, pt. 2, § 1 (Legislature's authority over municipal corporations)
• Burkett v. Youngs, 135 Me. 459 (1938)
• Albert v. Town of Fairfield, 597 A.2d 1353 (Me. 1991)
• Schwanda v. Bonney, 418 A.2d 163 (Me. 1980)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/2003/ag_20030603.pdf

Original opinion text

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

STATE OF MAINE
OFFICE OF THE ATTORNEY GENERAL
G. STEVEN ROWE, ATTORNEY GENERAL
6 STATE HOUSE STATION
AUGUSTA, MAINE 04333-0006

June 3, 2003

Senator Peggy Rotundo
Maine State Senate
3 State House Station
Augusta, Maine 04333-1515

Re: L.D. 389

Dear Senator Rotundo:

You have asked this office for an opinion as to whether L.D. 389, An Act to Amend the Laws Governing Municipal Citizen Initiatives and Referenda, if enacted, would violate the Maine Constitution. This legislation proposes to amend Title 30, M.R.S.A., § 3001 to limit the ability of citizens to retroactively modify, repeal, revoke, or invalidate certain final municipal actions through the initiative or referendum process. For the reasons stated below, we believe that L.D. 389, both in its original text and as amended by Committee Amendment "A" (H-354), would violate Article IV, Part 3, § 21 of the Maine Constitution.

The Maine Constitution does not require municipalities to provide a referendum process for municipal affairs. However, in granting municipalities the authority to establish an initiative or referendum process, the Constitution reserves to the Legislature only the power to establish a uniform method for the exercise of that authority.

Article IV, Part 3, Section 21 of the Maine Constitution reads:

The city council of any city may establish the direct initiative and people's veto for the electors of such city in regard to its municipal affairs, provided that the ordinance establishing and providing the method of exercising such direct initiative and people's veto shall not take effect until ratified by vote of a majority of the electors of said city, voting thereon at a municipal election. Provided, however, that the Legislature may at any time provide a uniform method for the exercise of the initiative and referendum in municipal affairs.

Nothing in Article IV, Pt. 3, § 21 gives the Legislature the authority to specify or limit the substantive areas of municipal regulation that may properly be the subject of the referendum process. Art. IV, Pt. 3, § 21 itself, of course, establishes a substantive limitation by authorizing a municipal referendum process in regard to "municipal affairs." The Law Court has defined "municipal affairs" to include the "internal business of a municipality." Burkett v. Youngs, 135 Me. 459, 464 (1938). See also Albert v. Town of Fairfield, 597 A.2d 1353, 1354 (Me. 1991).

Although Art. IV, Pt. 3, § 21 of the Maine Constitution provides the Legislature with the authority to enact a uniform method for the exercise of the initiative and referendum in municipal affairs, the Legislature has not done so. Moreover, L.D. 389 does not purport to establish a uniform method for how citizens may exercise their rights. Instead, L.D. 389 proposes to limit the types of municipal affairs that are subject to the municipal initiative and referendum process. This is violative of Article IV, Pt. 3, § 21.

The Legislature has broad powers to establish and modify the powers of municipalities and to define the scope of municipal affairs. Thus the Legislature has the power to prohibit municipalities from retroactively vetoing the types of municipal actions that are the subject of L.D. 389. If the Legislature so acted, we do not believe that citizens could circumvent such a prohibition through the use of the initiative and referendum process. However, the Legislature cannot directly impose such a limitation on the [referendum power].

I hope this information is helpful.

G. Steven Rowe
Attorney General

[Footnote 1: This opinion should not be read to suggest that retroactive modifications or repeals of municipal actions are constitutionally sound simply because they were effected by an initiative or people's veto. For example, due process or property interests of private parties may provide a basis for a successful constitutional challenge of such an initiative or people's veto.]

[Footnote 2: Art. VIII, Pt. 2, § 1. Municipal corporations, as public bodies, may exercise only such powers as the Legislature has conferred upon them by law or which may have been granted to them directly by the Constitution. Schwanda v. Bonney, 418 A.2d 163 (Me. 1980).]