Two Republican House members have joined a long-shot lawsuit against Gov. Janet Mills and Democratic leaders that says they violated the state’s constitution by passing a partisan budget in March and then reconvening the Legislature in a special session to finish its other work.
They are asking the Kennebec County Superior Court to prevent the Legislature from meeting and conducting business while it reviews the case and that all remaining bills be carried over into next year’s legislative session.
After Democrats passed the budget in a party-line vote, they temporarily adjourned the session so the spending plan could take effect in time for the start of the next fiscal year on July 1. Mills signed the budget and immediately called the Legislature back into a special session to finish its work on hundreds of bills and decide what to do with hundreds of millions of dollars in surplus state revenue. Republicans blasted Democrats for cutting them out of the budget decision but did not have the votes to block the move.
Augusta resident William Clardy, who ran unsuccessfully as a Republican for the District 60 House seat last fall, and Republican Reps. Shelley Rudnicki of Fairfield and Randall Greenwood of Wales argue in their lawsuit that Mills’ decision to reconvene the Legislature in a special session violates the state constitution.
The lawsuit is not the only lingering controversy over the budget maneuver. Mills also is at odds with legislative leaders from her own party over whether they can enact proposed citizen initiatives now that the original session is over and they are technically in a special session. Mills said they can no longer pass the measures and have no choice but to send them to voters this fall, but the Democratic leadership is considering asking the Maine Supreme Judicial Court to weigh in.
Both issues stem from Democrats’ decision in March to enact a party-line budget over the opposition of Republicans seeking tax cuts.
Because majority budgets take effect 90 days after adjournment, the Democratic majority had to declare an end to the session on March 30 for the budget to take effect on July 1. Democrats feared that if they didn’t pass a budget and adjourn before the 90-day window, Republicans would threaten a government shutdown to win concessions, a claim that Republicans denied.
After the budget passed, the only way to reconvene the Legislature without Republican support was for Mills to call for a special session.
A spokesperson confirmed that the attorney general would be defending the administration, but declined to discuss the lawsuit.
Spokespeople for Mills, Senate President Troy Jackson, D-Allagash, and House Speaker Rachel Talbot Ross, D-Portland, declined to respond to the lawsuit.
REPUBLICAN LEADERS NOT PART OF SUIT
Republican leaders in the House have not signed onto the lawsuit. House Minority Leader Billy Bob Faulkingham, R-Winter Harbor, did not respond to questions about the lawsuit on Wednesday.
At issue is whether Mills’ calling of the special session met the constitutional requirement of an “extraordinary occasion.” The constitution provides two avenues for a special session – either a majority of lawmakers from each party votes to call a special session or the governor can call one based on the “extraordinary occasion” standard, which is not defined.
One day after the governor signed the nearly $9.9 billion spending package, when it was clear Republicans would not agree to reconvene, Mills called for the special session, citing “an extraordinary occasion arising out of the need to resolve many legislative matters pending at the time of the adjournment of the First Regular Session of the 131st Legislature of the State of Maine.”
“The public health, safety and welfare requires that the Legislature resolve these pending matters as soon as possible, and in any event prior to the date of the Second Regular Session of the 131st Legislature of the State of Maine, including but not limited to the state budget, pending legislation, pending nominations of state board and commission members, and pending nominations of judicial officers by the Governor requiring legislative confirmation,” she wrote.
The lawsuit is not the first time legislators have questioned the basis for calling a special session, and the Republicans would have to overcome a previous court ruling in favor of a past governor. In 1940, the Maine Supreme Judicial Court ruled on a suit challenging a special session by saying, “The Governor alone is the judge of the necessity for such action, which is not subject to review.”
The current lawsuit claims the move violated the part of the state constitution that separates governmental powers into three branches – executive, legislative and judicial – and states that “No person or persons, belonging to one of these departments, shall exercise any of the powers properly belonging to either of the others, except in the cases herein expressly directed or permitted.”
The plaintiffs, including Clardy’s new nonprofit, Respect Maine, argue that Mills “is colluding” with Jackson and Talbot Ross “in bypassing the constitution’s mandate” by calling a special session after the leaders failed to secure the votes necessary for lawmakers to call their own special session.
“This lawsuit matters because, when our legislative and executive branches start to routinely circumvent the rules they write and are supposed to enforce, it becomes the people’s duty to hold them accountable,” Respect Maine Board Member Michelle Tucker said in a written statement.
REFERENDUMS ALSO AFFECTED
The Democrats’ budget maneuver also is affecting referendum initiatives slated for the fall ballot.
Normally, lawmakers would hold hearings on statewide referendum initiatives and then have the option of enacting them or sending them out to voters.
A majority of lawmakers appeared poised to pass one of the four pending initiatives – a proposal to prohibit campaign spending by foreign governments in state elections. The initiative has broad bipartisan support in the Legislature.
But Mills told lawmakers that they could only do that in the regular session and not in the special session, and that their only option at this point is to send the measure to voters this fall.
“After consulting the Office of the Attorney General, the governor issued four proclamations sending the questions to voters – a ministerial action required by the Maine Constitution, done in consultation with relevant Constitutional Offices, without regard to the content of the proposals, and consistent with past practice,” spokesperson Ben Goodman said in a written statement.
The constitution says lawmakers can pass a referendum “at the session at which it was presented.”
Mills believes the referendum was presented during the regular session, but some lawmakers, including Sen. Rick Bennett, R-Oxford, believe the bill was formally presented on April 10, which was during the special session.
The Veterans and Legal Affairs Committee held a public hearing on that referendum on Wednesday.
Bennett, a leader of the Protect Maine Elections group, told the committee that lawmakers plan to ask the law court to offer an opinion on the dispute with the governor and urged the committee move the bill, L.D. 1610, forward while the court process plays out.
Bennett noted that a similar bill was passed last session, but vetoed by Mills. He said Maine citizens have a right to petition their government, regardless of whether lawmakers are gathered in a special session or regular session.
“While the court works though its process, the Legislature has a responsibility to work through ours,” Bennett said. “The only way that the people’s ability to petition their government can be sustained is through allowing this Legislature to take action on those matters.”
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