Can the Maine Legislature impose new education requirements on local school districts without paying for them, and can it hand that authority off to the state education department?

Plain-English summary

Representative Donald V. Carter asked AG James E. Tierney whether the Maine Constitution let the state impose new education requirements on local school districts when the state was not paying for those requirements. The inquiry had two parts: could the Legislature itself impose unfunded mandates, and could the Legislature delegate that power to the Department of Educational and Cultural Services (DECS)? Tierney answered yes to both.

On the first question, Tierney pointed to Article IV, Part Third, Section 1 of the Maine Constitution, which gives the Legislature "full power to make and establish all reasonable laws and regulations for the defense and benefit of the people of this State." The 1876 Opinion of the Justices placed education squarely within that power. Tierney was unaware of any constitutional rule that legislation must come with its own appropriation. In the specific field of education, the constitutional text cut the other way: Article VIII, Part 1, Section 1 directed that "the several towns" make "suitable provision, at their own expense, for the support and maintenance of public schools." The Constitution itself, in other words, contemplated that schooling would be locally funded even when state policy required it.

A footnote acknowledged the practical wrinkle. In 1987 the Legislature had enacted 20-A M.R.S.A. § 2(3) (via P.L. 1987, c. 821), requiring full state funding of new educational programs until June 30, 1992. Tierney flagged that the effectiveness of that provision was open to serious doubt. One Legislature cannot bind a future one, either by preventing it from amending or repealing a law (Jones v. Maine State Highway Commission, Baxter v. Waterville Sewerage District) or by compelling it to make appropriations in future years (Maine State Housing Authority v. Depositors Trust Co., Opinion of the Justices, 146 Me. 183 (1951)). The current Legislature could keep the policy in place if it wished, but it could also change it.

On the second question, Tierney walked through the standards for permissible delegation. Article III, Section 2 prohibits an administrative agency from creating law. The Due Process Clause of Article I, Section 6-A requires that any delegation be paired with adequate standards and safeguards. Adequate standards exist, the Law Court had said, where the legislation reveals the purpose, defines what may be regulated, and suggests the appropriate degree of regulation (Lewis v. State Department of Human Services). The Maine SAD No. 15 v. Raynolds formulation called for "sufficient standards, specific or generalized, explicit or implicit," to guide the agency and to prevent arbitrary use of power. Whether any specific DECS requirement met the test would turn on the wording of the enabling statute, the fidelity of the rule to that statute, and compliance with the Administrative Procedure Act, 5 M.R.S.A. § 8051 et seq.

Currency note

This opinion was issued in 1989. 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

Did Maine's constitution forbid unfunded state mandates on schools in 1989?

No. The opinion read the Constitution as actively contemplating that local schools be funded "at their own expense" (Art. VIII, Pt. 1, § 1), and found no general rule that state legislation must come with its own funding. The 1987 statute requiring full state funding of new mandates until 1992 was a legislative policy choice, not a constitutional command.

Could one Maine Legislature lock in school funding for future Legislatures?

Not really. Tierney cited Jones v. Maine State Highway Commission, Baxter v. Waterville Sewerage District, and Maine State Housing Authority v. Depositors Trust Co. for the principle that a current Legislature cannot prevent a future one from amending laws or refusing to make appropriations. Statutory promises about future funding bind only as long as the next Legislature agrees.

On what terms could the Legislature hand the mandate-creation power to DECS?

Only on terms that supplied "adequate standards and safeguards" against arbitrary agency lawmaking. Tierney pointed to the Law Court tests in Lewis v. State Department of Human Services and Maine SAD No. 15 v. Raynolds: the enabling statute had to reveal the purpose, define what could be regulated, and guide the degree of regulation. A bare grant of power to "set educational requirements" without policy direction would not have satisfied Article III, Section 2 and Article I, Section 6-A.

Did the AG offer to review any specific DECS rule?

Yes. The closing paragraph invited Rep. Carter to identify any specific DECS educational requirement and offered to examine it against the constitutional standards. The opinion itself was framework guidance, not a verdict on any particular rule.

What was the role of the Maine Administrative Procedure Act here?

Even when a delegation was substantively valid, the agency still had to follow the rulemaking procedures of 5 M.R.S.A. § 8051 et seq. (notice, public comment, formal adoption). Tierney cited Northeast Occupational Exchange v. State and Lewis for the proposition that procedural noncompliance was an independent basis for invalidating a rule.

Background and statutory framework

The constitutional architecture sketched in this opinion has three pieces. Article IV, Part Third, Section 1 gives the Legislature broad lawmaking power. Article VIII, Part 1, Section 1 makes towns responsible for supporting and maintaining public schools at local expense. Article III, Section 2 separates legislative and executive functions, barring agencies from making law; the Due Process Clause in Article I, Section 6-A polices the boundary by requiring standards in any delegation. The Law Court's delegation cases (Lewis, Maine SAD No. 15 v. Raynolds, Northeast Occupational Exchange v. State, Secure Environments v. Norridgewock) supplied the operative test for whether a particular statute gave DECS enough guidance to act.

The 1987 effort to require full state funding of new education mandates through June 30, 1992 (20-A M.R.S.A. § 2(3)) was the political backdrop. Whether that funding promise would survive the next biennium was, by Tierney's analysis, entirely up to the next Legislature.

Citations

• Me. Const. art. IV, pt. 3, § 1
• Me. Const. art. VIII, pt. 1, § 1
• Me. Const. art. III, § 2
• Me. Const. art. I, § 6-A
• 20-A M.R.S.A. § 2(3) (enacted by P.L. 1987, c. 821)
• 5 M.R.S.A. § 8051 et seq. (Maine Administrative Procedure Act)
• Opinion of the Justices, 68 Me. 582 (1876)
• Jones v. Maine State Highway Commission, 238 A.2d 226, 230 (Me. 1968)
• Baxter v. Waterville Sewerage District, 146 Me. 211, 215 (1954)
• Maine State Housing Authority v. Depositors Trust Co., 278 A.2d 699, 707-08 (Me. 1971)
• Opinion of the Justices, 146 Me. 183 (1951)
• Superintending School Committee v. Bangor Educational Association, 433 A.2d 383, 386-87 n.4 (Me. 1981)
• Lewis v. State Department of Human Services, 433 A.2d 743, 748-49 (Me. 1981)
• Maine School Administrative District No. 15 v. Raynolds, 413 A.2d 523, 529 (Me. 1980)
• Secure Environments v. Norridgewock, 544 A.2d 319 (Me. 1988)
• Northeast Occupational Exchange v. State, 540 A.2d 1115, 1117 (Me. 1988)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1989/ag_19890427.pdf

Original opinion text

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

89-4

JAMES E. TIERNEY
ATTORNEY GENERAL

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

April 27, 1989

Representative Donald V. Carter
Maine House of Representatives
State House Station #2
Augusta, Maine 04333

Dear Representative Carter:

This is in response to your recent inquiry whether there is any constitutional impediment to the imposition by the Department of Educational and Cultural Services ("DECS") of new education requirements on local school districts in the absence of appropriations to pay for such requirements. Your inquiry raises two questions: first, whether the state government as a whole may impose such requirements, and, second, whether the Legislature may delegate the power to do so to DECS. For the reasons which follow, it is the opinion of this Department that the Legislature may enact new educational requirements whether or not it specifically funds them, and that the Legislature may delegate this authority to DECS by means of an appropriate grant of rulemaking authority.

I. Legislative power to impose new educational requirements.

Article IV, Part Third, section 1 of the Maine Constitution provides that the Legislature

shall have full power to make and establish all reasonable laws and regulations for the defense and benefit of the people of this State, not repugnant to this Constitution, nor to that of the United States.

Education is unquestionably one area where this legislative power prevails. Opinion of the Justices, 68 Me. 582 (1876). This Department is unaware of any constitutional requirement that legislation within this broad scope of authority be accompanied by any appropriation. Indeed, in the case of education, the Constitution strongly suggests that this is not so:

"A general diffusion of the advantages of education being essential to the preservation of the rights and liberties of the people; to promote this important object, the Legislators are authorized, and it shall be their duty to require, the several towns to make suitable provision, at their own expense, for the support and maintenance of public schools." Me. Const., Art. VIII, Pt. 1, sec. 1 (emphasis added).

Thus, in the field of education, if not generally, there is no constitutional impediment to the imposition of new duties on the municipalities of the state by the Legislature, even if those duties require the expenditure of funds not provided to the municipalities by the Legislature.[1]

II. Delegation of power to impose new educational requirements to DECS.

With respect to the impositions of new educational requirements by DECS, the pertinent questions are whether any legislation authorizes DECS to take such action, and, if so, whether such legislation constitutes a valid delegation of legislative power to the agency. Me. Const. Art. III, section 2 prohibits an administrative agency from usurping the function of the Legislature by creating law. Moreover, the Due Process Clause of Art. I, section 6-A requires that any delegation of legislative authority be accompanied by adequate standards and safeguards to assure that the delegation is not abused. Superintending School Committee v. Bangor Educational Association, 433 A.2d 383, 386-87, n. 4 (Me. 1981).

Adequate standards exist where "the legislation clearly reveals the purpose to be served by the regulations, explicitly defines what can be regulated for that purpose, and suggests the appropriate degree of regulation." Lewis v. State Department of Human Services, 433 A.2d 743, 748 (Me. 1981). Or as expressed in Maine School Administrative District No. 15 v. Raynolds, 413 A.2d 523, 529 (Me. 1980), a delegation must contain "sufficient standards, specific or generalized, explicit or implicit, to guide the agency in the exercise of its authority ... so that (1) regulation can proceed in accordance with basic policy determinations made by those who represent the electorate and (2) some safeguard is provided to assist in preventing arbitrariness in the exercise of power." See also Secure Environments v. Norridgewock, 544 A.2d 319 (Me. 1988); Northeast Occupational Exchange v. State, 540 A.2d 1115 (Me. 1988).

Whether or not any educational requirement prescribed by DECS meets these criteria will depend on the adequacy of the legislative mandate and how faithfully DECS adhered to it. This latter inquiry also includes compliance with the rulemaking provisions of the Maine Administrative Procedure Act, 5 M.R.S.A. § 8051 et seq. Northeast Occupational Exchange v. State, supra, 540 A.2d at 1117; Lewis, supra, 433 A.2d at 749. If there is any specific educational requirement imposed by DECS to which you would like to have examined for compliance with the rules outlined above, this Department would be happy to do so.

I hope the foregoing is of assistance to you. Please feel free to reinquire if further clarification is necessary.

JAMES E. TIERNEY
Attorney General

JET/ec

[1] As you may know, last year the Legislature amended the education statutes of the state to include a requirement of full state funding of new educational programs until June 30, 1992. P.L. 1987, c. 821, enacting 20-A M.R.S.A. § 2(3). The effectiveness of this provision is open to serious question, however, because of the well-established constitutional principles that one Legislature cannot prevent a future Legislature from amending or repealing any law which it passes, Jones v. Maine State Highway Commission, 238 A.2d 226, 230 (Me. 1968); Baxter v. Waterville Sewerage District, 146 Me. 211, 215 (1954), nor require a subsequent Legislature to make future appropriations, Maine State Housing Authority v. Depositors Trust Co., 278 A.2d 699, 707-08 (Me. 1971); Opinion of the Justices, 146 Me. 183 (1951). There is no reason, of course, why the Legislature cannot continue this statutory policy if it so chooses; the significance of the principles just set forth is only that it may change the policy as well.