Could Maine make a Tri-State Lottery number limit effective only if New Hampshire and Vermont passed matching laws?

Plain-English summary

In 1987, the Maine Attorney General concluded that the Legislature could limit the Tri-State Lottery's number pool and make the change effective only if New Hampshire and Vermont enacted similar laws.

The nondelegation doctrine prevented Maine from transferring legislative discretion to another body. But it allowed a statute to depend on an independent fact or event that had significance outside the Maine law, so long as that event was discrete and did not involve exercising Maine's legislative judgment.

The proposed law fixed Maine's policy itself: the pool would contain 36 numbers and no more than six would be selected. The other states received no discretion to change that rule. Their matching enactments merely determined whether the compact amendment would take effect.

Currency note

This opinion was issued in 1987. 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.

For Maine legislators in 1987

The opinion treated the bill as a complete legislative choice whose effectiveness depended on a separate interstate event, not as a transfer of policymaking power.

For Tri-State Lottery officials in 1987

The lottery-number amendment could take effect only after all participating states agreed through their own legislation, as the compact required.

Common questions

Q: Did Maine delegate its lawmaking power to New Hampshire and Vermont?
A: No. The opinion said the other states had no discretion over Maine's chosen number limit.

Q: Why was matching legislation an acceptable condition?
A: Enactment by the other states was a discrete, independent event that determined effectiveness without changing the substance of Maine's law.

Q: What change did the bill make?
A: It limited the Tri-State Lottery pool to 36 numbers, with no more than six selected.

Q: Why did the compact matter?
A: Amendments to the Tri-State Lotto Compact required concurrence from the other participating states.

Background and statutory framework

Article IV, Section 1 of the Maine Constitution vested legislative power in the House and Senate. The opinion applied Maine decisions distinguishing an unlawful transfer of legislative discretion from a statute made contingent on an independent event.

The proposed L.D. 1931 stated the rule itself and delayed effectiveness until New Hampshire and Vermont passed similar legislation. The Attorney General concluded that structure was constitutional.

Citations and references

Constitution:

• Article IV, Section 1 of the Maine Constitution

Cases:

• Lucas v. Maine Commission of Pharmacy, 472 A.2d 904 (Me. 1984)
• Opinion of the Justices, 460 A.2d 1341, 1347-49 (1982)
• Superintending School Committee of Bangor v. Bangor Educational Association, 433 A.2d 383 (Me. 1981)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1987/ag_19871231.pdf

Original opinion text

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

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JAMES E. TIERNEY
ATTORNEY GENERAL

STATE OF MAINE
DEPARTMENT OF THE ATTORNEY GENERAL
STATE HOUSE STATION 6
AUGUSTA, MAINE 04333

December 31, 1987

Honorable Judy C. Kany
Honorable Charles R. Priest
Chairpersons,· Joint Standing Committee on Legal Affairs
State House Station #2
Augusta, Maine 04333
Dear Senator Kany and Representative Priest:
You have inquired whether it would constitute an unconstitutional delegation of legislative power for the State of Maine to enact a statute limiting the number of random numbers which may be used by the Tri-State Lotto Commission in the operation of the Tri-State Lottery contingent upon the enactment of similar legislation by the other states who are members of the Commission. For the reasons which follow, it is the Opinion of this' Department that the enactment of such legislation would not constitute an unconstitutional delegation of legislative power.
The circumstances which give rise to your question are as follows: at the Second Special Session of the 113th Legislature, the Maine Senate and House of Representatives enacted Legislative Document No. 1931, "AN ACT Relating to the Numbers Pool in the Tri-State Lotto." This bill is quite simple in its purpose: it seeks to limit to 36, from which no more than 6 are to be selected, the random numbers which may be employed by the Tri-State Lotto Commission in the operation of the Tri-State Lottery. Because, however, any amendment to the Tri-State Lotto Compact requires the concurrence of New Hampshire and Vermont, the other participating states, the legislation is made effective upon the enactment of similar legislation by those two states. You indicate, however, that Governor McKernan, whose approval the bill is currently - 2 -

I awaiting, has indicated his reservation as to its constitutionality in view of the doctrine that _the state may not delegate its legislative power to any other body, including other states .
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As indicat~d by the Supreme Judicial Court of Maine most recently in Lucas v. Maine Commission of Pharmacy, 472 A.2d 904 ('t.ie. 1984)~ the constitutional prohibition against delegation of legislative power is based upon Article IV, Section 1 of the Maine Constitution which vests the legislative power of the state in the House of Representatives and the Senate. Id. at 908-09. Under this doctrine, the State Legislature maynot .delegate its legislative power to some other body. However, as the Court in Lucas pointed out, the courts "have long recognized that a fact or event that has significance independent of a legislative act may be incorporated by reference into a statute without running afoul of the non-delegation.doctrine." Lucas v. Maine Commission of Pharmacy, 472 A.2d at 909. Generally, the rule is that if the independent act upon which the effectiveness of the state statute is made conditional is discrete and does not involve the exercise of legislative discretion, it will fall within the exception, and its use by the Legislature will not violate the non-delegation doctrine. See generally Opinion of the Justices, 460 A.2d 1341, 1347-49 (1982); Superintending School Committee of Bangor v. Bangor Educational Association, 433 A.2d 383 (Me. 1981).
In the view of this Department, the rendering of the proposed amendment to the Tri-State Lotto Compact contingent upon the enactment of similar legislation by the other participating member states satisfies these requirements. The Maine Legislature has delegated no discretion to the other two s:tates. It has simply provided that if the other two states ~gree with its proposed amendment to the Compact, that amendment shall become effective. Thus, L.D. 1931 does not pose any constitutional problem, and may be safely approved by the Governor.
I hope the foregoing answers your question. Please feel free to reinquire if further clarification is necessary.

TIERNEY
General
JET/ec cc: Honorable John R. McKernan, Jr.
Sen. Charles P. Pray
Rep. John Jalbert
Sponsors of Leg. Doc. 1931