McGee v. Secretary of State

CLIFFORD, J.,

concurring.

[¶ 42] I would vacate the judgment of the Superior Court, but for different reasons than those of the Court. Pursuant to applicable rules of statutory construction, I *945would avoid construing 21-A M.R.S. § 903-A (2005) to be unconstitutional. Rather, I view section 903-A as being ambiguous, and as being susceptible to two reasonable interpretations that do not render it unconstitutional. First, it can be construed not to invalidate for filing purposes circulated petitions filed more than one year from the date of their issuance. Secondly, even if the one-year statutory deadline in section 903-A were to be read as the deadline applying to filing of the petitions, that one-year statutory deadline can and should be read to grant to the Secretary of State some discretion to act as he did in this case in reviewing and accepting the petitions filed by Mary Adams on October 24, 2005.

[¶ 43] In holding that section 903-A is unconstitutional, the Court finds no ambiguity in the statute. The Court relies on rules of construction found at 1 M.R.S. § 71(9-A) (2005) and 21-A M.R.S. § 7 (2005) to conclude that the word “must” in section 903-A(l) is mandatory, and operates to invalidate any petitions filed by Mary Adams after October 21, 2005. The Court then further concludes that section 903-A is in conflict with the applicable provisions of the Maine Constitution and strikes down its provision. See ME. CONST. art. TV, pt. 3, § 18. I view the statute differently, and, applying what I believe to be the proper rules of statutory construction, I would conclude that section 903-A, when properly construed, is constitutional, and that the Secretary of State properly accepted all the petitions filed by Mary Adams, including those filed on October 24.

[¶ 44] A cardinal rule of statutory construction is that “if we can reasonably interpret a statute as satisfying ... constitutional requirements, we must read it in such a way, notwithstanding other possible unconstitutional interpretations of the same statute.” Rideout v. Riendeau, 2000 ME 198, ¶ 14, 761 A.2d 291, 297-98. Accordingly, if section 903-A is reasonably susceptible to more than one interpretation, one that is inconsistent with the provisions of the Maine Constitution and renders the statute constitutionally suspect, and another that is less restrictive and consistent with the Constitution, the latter interpretation should be used.

[¶ 45] This is particularly true in this ease, involving the citizen initiative provisions of the Constitution. In Allen v. Quinn, we held that such provisions “must be liberally construed to facilitate, rather than to handicap, the people’s exercise of their sovereign power to legislate.” 459 A.2d 1098, 1102-03 (Me.1983). Section 903-A, a statute implementing the constitutional provisions granting citizens the right to directly initiate legislation, should be afforded the same liberal construction.

I.

[¶ 46] I agree that the language of section 903-A could be read the way the Court reads it — that the mandatory deadline for the filing of Adams’s petitions was October 21, 2005, and that no petitions filed after that date can be valid. In my view, however, the statute is not free of ambiguity and can be construed liberally to facilitate the right of the people to initiate legislation and to avoid its being declared unconstitutional. There is one construction of the statute that does not invalidate, for purposes of filing, the petitions that were turned in to the Secretary of State on October 24, 2005.

[¶ 47] Section 903-A provides in its entirety:

§ 903-A. Circulation

Petitions issued under this chapter may be circulated by any registered voter.
*9461. Filing. Filing of petitions in accordance with the deadlines specified in the Constitution of Maine, Article IV, Part Third, Section 18 must be completed within one year of the date of issuance under this chapter.
2. Invalid Petition. Petitions not filed in accordance with the deadlines specified in the Constitution of Maine, Article IV, Part Third, Section 18 within one year of the date of issuance under this chapter are invalid for circulation.

21-A M.R.S. § 903-A.

[¶ 48] When read in isolation from subsection 2, subsection 1 provides that a petition must satisfy both the deadline established in section 18(1) of the Constitution, as well as the deadline that is one year from the date of the issuance of the petitions by the Secretary of State. Accordingly, based on the language of section 903-A(l) alone, one could reasonably conclude that the petitions presented to the Secretary of State by Adams on October 24 are invalid because, although all of the petitions were circulated within one year of the date of issuance, and were filed prior to the next occurring constitutional deadline, some of the petitions were not filed within the statutory deadline of one year from the date of issuance. This conclusion is premature, however, because subsection 1 is susceptible to at least one alternative construction when it is read together with subsection 2 and other provisions of chapter 11 of title 21-A.

[¶ 49] Section 903-A(2) addresses the consequences when petitions are not filed within both deadlines — the constitutional deadlines and the statutory deadline of one year from the date of the issuance of the petition. The only consequence expressed in title 21-A for failing to satisfy the deadlines addressed in section 903-A(l) is that the petitions are rendered invalid for any further circulation if they fail to satisfy either deadline. Subsection 2 does not provide that a failure to meet the statutory one-year deadline renders the petitions invalid for filing on or before the next-occurring constitutional deadline.

[¶ 50] Accordingly, subsection 1 and subsection 2, when read together, can be reasonably read so as not to invalidate for purposes of filing petitions circulated within section 903-A(l)’s one-year statutory deadline that are submitted to the Secretary of State after that deadline, but on or before the next occurring constitutional deadline.

[¶ 51] This alternative construction of section 903-A finds additional support in section 905 of the statute. Section 905 states that for the purposes of the Secretary’s determination of the validity of the petitions, the operative “final” deadline for filing petitions is not the statutory one-year from issuance date, but rather the more flexible constitutional deadline:

The Secretary of State shall determine the validity of the petition and issue a written decision stating the reasons for the decision within 30 days after the final date for filing the petitions in the Department of the Secretary of State under the Constitution of Maine, Article IV, Part Third, Section 17 or 18.

21-A M.R.S. § 905(1) (2005) (emphasis added). The “final date” to which section 905 refers is the constitutional deadline specified in section 18(1) that would have to occur on or after the last day of section 903-A(l)’s one-year statutory deadline.

[¶ 52] That the deadline for purposes of filing of petitions is not the one year from date of issuance statutory deadline in section 903-A(l) is further evidenced by the language of 21-A M.R.S. § 901(1) (2005). Captioned “Limitation on petitions,” section 901(1) makes no mention of section 903-A(l)’s one-year deadline and provides, *947without qualification, that “[a] direct initiative of legislation must meet the filing deadlines specified in the Constitution of Maine, Article IV, Part Third, Section 18.”

[¶ 53] Read together, sections 901(1), 903~A(1) and (2), and 905 can be reasonably construed to reflect two deadlines, one statutory and one constitutional, with the “final” deadline being the constitutional deadline that occurs on or after the completion of the statutory deadline. It is that “final” deadline, located in section 18, and not the one-year statutory provision that triggers the Secretary’s responsibility to determine the validity of the petition and issue a decision. See 21-A M.R.S. § 905(1).

[¶ 54] We are bound to construe statutes to avoid constitutional deficiencies. See Irish v. Gimbel, 1997 ME 50, ¶ 13, 691 A.2d 664, 671; State v. Cropley, 544 A.2d 302, 304 (Me.1988). We are also required to interpret statutes to be solicitous of the people’s exercise of their sovereign power to legislate. See Allen, 459 A.2d at 1102-03. All of these provisions, when read together, as we are required to do to harmonize their provisions, see Estate of Footer, 2000 ME 69, ¶ 8, 749 A.2d 146, 148-49, lead to the conclusion that the operative final deadline for the filing of direct initiative legislation petitions is the deadline set out in section 18 of the Maine Constitution, a deadline with which Adams complied.

II.

[¶ 55] Moreover, even if the one-year from issuance statutory deadline in section 903-A is read to apply to the filing of petitions, and not just to prohibit their further circulation, we are nevertheless still bound to construe the operative provisions, if we can do so reasonably, in a manner that upholds their constitutionality, see Rideout, 2000 ME 198, ¶ 14, 761 A.2d at 297-98, and facilitates the right of citizens to exercise their right to legislate by initiative, see Allen, 459 A.2d at 1102-03. In concluding that the Secretary of State had no discretion to accept any petitions filed beyond October 21, 2005, the Court concludes the word “must” in section 903-A(l) is mandatory, relying on rules of construction in 21-A M.R.S. § 7 and 1 M.R.S. § 71(9-A). I would rely on other applicable rules of construction and construe section 903-A(l) more liberally to support the exercise of the people’s right to legislate and to uphold the statute’s constitutionality. Thus I would construe the “must be completed within one year of the date of issuance” language of section 903-A(l) as being directory, and not mandatory, i.e., there is some discretion vested in the Secretary to determine whether there has been substantial compliance with the statutory deadline, and to validate those petitions submitted to the Secretary that are in substantial compliance. Substantial compliance with the one-year from the date of issuance deadline could occur if the underlying purposes of the statutory provisions have been satisfied. See Costa v. Superior Court, 37 Cal.4th 986, 39 Cal.Rptr.3d 470, 128 P.3d 675, 689-90 (2006); see also Loonan v. Woodley, 882 P.2d 1380, 1384 (Colo.1994).

[¶ 56] The application of a directory standard as opposed to a mandatory standard has been applied by the Justices of this Court:

[B]roadly speaking, requirements in a statute which are of the very essence of the thing to be done and the ignoring of which would practically nullify the vital purpose of the statute itself are regarded by the courts as mandatory and imperative; while those directions or details which are not of the essence of the thing to be done but which are prescribed with a view to the orderly conduct of the business, the omission of *948which would not prejudice the rights of interested parties, are regarded as directory, so far as the consequences of such omissions are concerned, unless they are followed by words of positive prohibition.

Opinion of the Justices, 124 Me. 453, 468-69, 126 A. 354, 363 (1924) (emphasis added). If construed to apply as the deadline for the filing of petitions, the one-year period in section 903-A is not an end in itself, but is intended to require compliance with the constitutional requirement that the signatures on the petitions not be more than a year old, and to eliminate the possibility of fraud in the process. Construing “must” as directory, and not mandatory, and upholding the Secretary’s determination that the petitions were submitted in substantial compliance with section 903-A in this case fulfills those purposes, facilitates the exercise of the right of the people to initiate legislation, and avoids an interpretation of the statute that is in conflict with the Constitution.

[¶ 57] This construction of section 903-A is also consistent with the various provisions of chapter 11 detailing the duties and powers of the Secretary of State in the initiative process. Although there is no express provision of 21-A M.R.S. §§ 901-906 (2005) granting the Secretary the authority to accept applications in substantial, but not technical, compliance with the statute, sections 901 through 906 are nevertheless replete with provisions that require the Secretary to exercise discretion in connection with the initiative process. Indeed, in enacting these provisions, the Legislature provided for the Secretary of State’s inextricable involvement in almost every aspect of the legislation by initiative process from its inception to its completion. The Secretary designs the application to initiate proceedings for a direct initiative of legislation, 21-A M.R.S. § 901; may witness the voter’s signing of the application, 21-A M.R.S. § 901; reviews and determines the form of the petition to be submitted to the voters, 21-A M.R.S. § 901; and reviews the proposed law sought to be enacted, and has the discretion to reject or revise the proposed law, 21-A M.R.S. § 901(3-A). The Secretary then chooses whether to approve the form of the petition, 21-A M.R.S. § 901; drafts the ballot question, 21-A M.R.S. § 901(4); requests from the Revisor of Statutes a summary describing the content of the proposed law, 21-A M.R.S. § 901(5); decides whether to approve or amend the summary as is deemed appropriate, 21-A M.R.S. § 901(5); and prepares instructions specifying statutory and constitutional requirements, as well as the conditions in which signatures and/or petitions may be invalidated, 21-A M.R.S. § 903. Finally, the petitions are filed with the Secretary, and the Secretary then reviews the petitions, and is empowered to determine their validity and to issue a written decision to that effect. 21-A M.R.S. § 905(1). Thus, at every step of the initiative process, the Secretary is charged with making decisions. Such decision-making is the very essence of discretion. See Me. Taxpayers Action Network v. Sec’y of State, 2002 ME 64, ¶ 12 & n. 8, 795 A.2d 75, 79-80.

[¶ 58] This case presents unique and exceptional circumstances that lead to a reasonable conclusion that section 903-A has been substantially complied with. The petitions were all circulated within one year of their issuance; no signatures were more than one year old; there was no suggestion of any kind of fraud or attempts to manipulate the petition circulating process; the petitions filed on October 24 were not filed on October 21 because of inadvertence, and not because those filing the petitions intentionally disregarded the statutory deadlines; no petitions were eir-*949culated and no signatures collected between October 21 and 24; and the petitions were filed early on the next business day following October 21. The Secretary’s decision to accept those petitions was in keeping with the purposes of the statute— to ensure that petitions contain recent, not stale, signatures, and to eliminate fraud and manipulation of the petition process. The exercise by the Secretary of his discretion to accept the petitions filed on October 24, and to validate the petitions after a thorough examination for compliance with all of the statutory and constitutional requirements is consistent with the discretion vested in him throughout the provisions of the statute governing the citizen initiative process. That exercise is also consistent with the holding in Opinion of the Justices, in which the Justices concluded that a decision to hold the polls open an extra one-half hour did not invalidate an election because the statutory closing time for polling places was directory, and not mandatory. 124 Me. at 474, 126 A. at 365.

[¶ 59] The power of the citizens to legislate through the initiative process is a right of the utmost importance. Because section 903-A(l) relates to the initiative right to legislate vested in the citizens, any doubt as to its meaning “must be liberally construed to facilitate, rather than to handicap, the people’s exercise of their sovereign power to legislate.” Allen, 459 A.2d at 1102-03; see also N.J. Democratic Party, Inc. v. Samson, 175 N.J. 178, 814 A.2d 1028, 1033 (2002) (“Election laws are to be liberally construed so as to effectuate their purpose. They should not be construed so as to deprive voters of their franchise .... ” (quotation marks omitted)). It was not unreasonable for the Secretary of State to consider the one-year from date of issuance filing date in section 903-A(l) to be directory, and not mandatory, and for him to conclude that he had the authority to determine if Adams had substantially complied with the statutory filing provisions.

[¶ 60]' Further, the Secretary acted within his discretion when he determined that the petitions were valid. The petitions were circulated well within both the constitutional and statutory deadlines, and most were filed within both deadlines. Those not filed on October 21 were filed on the next business day. In the unique circumstances of this case, the Secretary acted with reason when he concluded there was substantial compliance by Adams with section 903-A.

[¶ 61] Accordingly, pursuant to either of two reasonable constructions of section 903-A, both upholding its constitutionality and facilitating the right of the citizens of Maine to participate in the process to initiate legislations, I concur in the Court’s conclusion that this matter should be remanded to the Superior Court for entry of a judgment affirming the decision of the Secretary of State.