Allen v. Quinn

DUFRESNE, A.R.J.,

dissenting.

With due respect, I must dissent from the constitutional construction given by the majority opinion to Article IV, Part Third, Section 18 of the Constitution of Maine. That article, as relevant to the instant direct initiative of legislation, provides as amended in pertinent part as follows:

Section 18. Direct initiative of legislation.
1. Petition procedure. The electors may propose to the Legislature for its consideration any bill, resolve or resolution, including bills to amend or repeal emergency legislation but not an amendment of the State Constitution, by written petition addressed to the Legislature or to either branch thereof and filed in the office of the Secretary of State by the hour of five o’clock, p.m., on or before the fiftieth day after the date of convening of the Legislature in first regular session ....
2. Referral to electors unless enacted by the Legislature without change. Any measure thus proposed by electors, the number of which shall not be less than ten percent of the total vote for Governor cast in the last gubernatorial election preceding the filing of such petition, unless enacted without change by the Legislature at the session at which it is presented, shall be submitted to the electors together with any amended form, substitute, or recommendation of the Legislature, and in such manner that the people can choose between the competing measures or reject both ....

The issue presented in this case is whether the total vote cast for Governor at the 1982 gubernatorial general election must be used to determine the number of required valid signatures entitling the proposed direct initiative of legislation to be submitted to the people, in which case the intervenor-appel-lee’s attempt at having the moose hunting season legislation repealed would be aborted for insufficient numbers of valid signatures to the initiative petitions, or whether the total vote cast for Governor at the 1978 *1104gubernatorial election is the controlling figure. If, in applying the constitutional mandate, we must look to the 1978 gubernatorial election voting totals, then the sponsors of the initiative would have submitted a sufficient number of valid signatures to force submission of the proposed legislation to the vote of the people and the plaintiff-opponent’s appeal would be frustrated.

The key to the problem, however, depends on the meaning to be given to the two interrelated constitutional provisions: 1) the electors may propose to the Legislature for its consideration any bill, resolve or resolution, ... by written petition addressed to the Legislature or to either branch thereof and filed in the office of the Secretary of State by the hour of five o’clock, p.m., on or before the fiftieth day after the date of convening of the Legislature in first regular session; and 2) any measure thus proposed by electors, the number of which shall not be less than ten percent of the total vote for Governor cast in the last gubernatorial election preceding the filing of such petition, ... shall be submitted to the electors. The plaintiff-opponent contends that the filing of the petition as contemplated by the constitutional provisions means that the several petitions containing the bill, resolve or resolution proposed by the people, with the aggregate number of solicited signatures of electors, and constituting the “written petition,” must be addressed to, and filed with, the Legislature in the office of the Secretary of State during its first regular session and not later than five o’clock, p.m., of the fiftieth day after the date of its convening. He argues that, even though petitions may be deposited with the Secretary of State prior to the actual convening of an incoming Legislature, there is no official filing within the meaning of the constitutional provisions prior to the date of the convening of the Legislature. With this, I agree.

It is obvious that the constitutional language in the area which concerns us on this occasion is ambiguous. And, as a general rule, the usual principles governing the construction of statutes apply also to the construction of constitutions. Farris ex rel. Dorsky v. Goss, 143 Me. 227, 230, 60 A.2d 908, 910 (1948). True, we look primarily to the language used which in cases of doubt may be illumined by the surrounding circumstances. Id. at 230, 60 A.2d 908. Also, I agree that constitutional provisions should receive such a liberal and practical construction as will permit the purpose of the people expressed therein to be carried out, if such a construction is reasonably possible. Wakem v. Inhabitants of Town of Van Buren, 137 Me. 127, 132, 15 A.2d 873, 876 (1940).

The several constitutional provisions relating to the direct initiative must be examined as one comprehensive chart in any analysis geared to reaching the true meaning of each particular part thereof. A clause of doubtful import in itself may be made plain by comparison with some of the other clauses. The true sense of one clause may be found through the obvious meaning of another. In other words, one part may qualify another so as to restrict its operation otherwise than the natural construction would require if it stood alone. Cooley’s Constitutional Limitations (8th Ed.) 124, et seq.; John S. Westervelt’s Sons v. Regency, Inc., 3 N.J. 472, 70 A.2d 767, 771 (1950).

As in the case of construction of statutes, the history of a particular constitutional amendment may be of great value in the interpretation of that amendment as finally proclaimed. See Rines v. Scott, 432 A.2d 767, 768 (Me.1981); State v. Cormier, 141 Me. 307, 308, 43 A.2d 819, 820 (1945).

The original direct initiative became effective on January 1, 1909, as an amendment to the Constitution of Maine following the adoption by the people of Article XXXI of the Constitution of this State. By the amendment the people reserved to themselves power to propose laws and to enact or reject the same at the polls independent of the legislature (Farris ex rel. Dorsky v. Goss, supra, at 230 of 143 Me., at 910 of 60 A.2d), but the written petition to be used in the exercise of such power had to be filed in *1105the office of the secretary of state or presented to either branch of the legislature at least thirty days before the close of its session. This language contemplated that both the filing with the secretary of state or the presentment to either branch of the legislature would be made during the session of the legislature, except that it had to be completed at least thirty days before the close of the session. Such provision left the final deadline to file or present such petition in an uncertain time frame. Nevertheless, this dubious deadline for filing or presentment of the written direct initiative petition stood intact for over 40 years, before it was changed through the submission to the people in 1949 of Article LXVI as an amendment to the Constitution of Maine providing that such written petition addressed to the legislature or to either branch thereof be filed in the office of the secretary of state or presented to either branch of the legislature within 45 days after the date of convening of the legislature in regular session. See Resolves, State of Maine, 1949, ch. 61. This amendment clarified the period within which both the filing of the petition with the secretary of state or its presentment to either branch of the legislature had to be done.

As it then stood, the constitution required that not less than twelve thousand electors propose direct initiative of legislation for the process to become operative. This, however, was changed some two years later, when the people adopted Article LXXI as an amendment to the Constitution of Maine. See Resolves, State of Maine, 1951, ch. 110. This amendment provided that “any measure thus proposed by electors, the number of which shall not be less than ten per cent of the total vote for governor cast in the last gubernatorial election preceding the filing of such petition,” shall be submitted to the electors, etc. We note that this amendment, by requiring the necessary number of proponents of direct initiative legislation to be determined by reference to the total vote for governor cast in the last gubernatorial election preceding the filing of such petition, must necessarily indicate a unitary concept in the expression “preceding the filing of such petition.” Filing of the petition in the office of the secretary of state or its presentment to either branch of the legislature had to be viewed as equivalent procedural steps to be taken within 45 days after the date of convening of the legislature in regular session. Otherwise, if the direct initiative of legislation written petition was presented directly to a branch of the legislature without actual filing with the secretary of state, then the constitution would not have provided the number of electors required for entitlement to the process, an unrealistic surmise. Thus, from its very beginning until 1975, the constitutional direct initiative of legislation process contemplated the filing of the written petition or its presentment to either branch of the legislature within forty-five days after the date of convening of the Legislature in regular session, in other words within a specific period of forty-five days beginning with the day the Legislature was convened in regular session and ending on the forty-fifth day thereafter.

In 1975, in an attempt to enlarge the filing period and provide at the same time an hourly deadline on the last day of filing, the people adopted a legislative resolve which became effective October 1, 1975 (Constitutional Resolutions, State of Maine, 1975, ch. 2) and which provided that the electors may propose such direct initiative of legislation by written petition addressed to the Legislature or to either branch thereof and filed in the office of the Secretary of State by the hour of five o’clock, p.m., on the fiftieth day after the date of convening of the Legislature in regular session. At the same time, the language of presentment to either branch of the Legislature was deleted. I do not view the latter change as significant. The fact that the constitutional clause already required that the written petition be addressed to the Legislature or either branch thereof, made the further directive that the written petition be presented to the Legislature or either branch thereof presumably duplicative and repeti*1106tious terminology. See Yoder v. Commonwealth, 107 Va. 823, 57 S.E. 581, 584 (1907). This change, however, might have been interpreted as allowing the fiftieth day after the date of convening of the Legislature in regular session as the only day for the filing of the written petition in the office of the secretary of state.

This led to the adoption of the 1979 constitutional resolution (Constitutional Resolution, State of Maine, ch. 3) which did enlarge the original forty-five day period for filing the written petition to fifty days by making the following change in the language of the relevant provision by adding the underscored words:

The electors may propose to the Legislature for its consideration any bill, resolve or resolution, including bills to amend or repeal emergency legislation but not an amendment of the State Constitution, by written petition addressed to the Legislature or to either branch thereof and filed in the office of the Secretary of State by the hour of five o’clock, p.m., on or before the fiftieth day after the date of convening of the Legislature in first regular session or on or before the twenty-fifth dav after the date of convening of the Legislature in second regular session

This amendment became effective November 25, 1980. Where the constitutional change merely evinced an intention to provide a definite time period within which to file petitions of direct initiative of legislation, which had been in existence for years and which by inartistic drafting of a previous constitutional amendment seemed to have been eliminated, sound construction of the new constitutional amendment would require that it be construed to have intended no more than merely to put the organic law back on track. See Griffin v. Vandegriff, 205 Ga. 288, 53 S.E.2d 345, 349 (1949). An amendment should not be construed as effecting any greater innovation on the existing constitution than is reasonably necessary to accomplish the object of its adoption.

I would construe the meaning of the relevant constitutional provision as requiring the official filing in the office of the Secretary of State to be made between the date of the convening of the Legislature in first regular session and not later than five o’clock, p.m., on the fiftieth day thereafter. Hence, in the instant case, the total vote for Governor cast in the 1982 gubernatorial election was the controlling number of votes upon which the required ten percent of electors provided in the Constitution must be determined. There was error below and I would reverse the Superior Court judgment.