Can the Maine Legislature use an emergency resolve to authorize the State to buy real estate, when the state constitution forbids emergency bills from including provisions for the purchase of real estate?

Plain-English summary

Senator Bustin and Representatives Daggett, Hickey, and Paradis asked AG James E. Tierney whether Resolves 1989, ch. 104, the "Resolve, Authorizing the Governor and the Atlantic Sea Run Salmon Commission to Enter into an Agreement with Edwards Manufacturing Company, Inc.", which the Legislature had enacted as emergency legislation, violated the prohibition in Me. Const. art. IV, pt. 3, § 16 against emergency bills that "include provision for the purchase of real estate." The constitutional concern was that emergency legislation takes effect immediately, cutting off the 90-day window during which Maine voters can invoke the people's veto under Me. Const. art. IV, pt. 3, § 17. The framers had insulated real-estate purchases from emergency procedure to preserve voter review of major land acquisitions.

Tierney concluded the resolve did not violate § 16. The resolve did not give the Atlantic Sea Run Salmon Commission any new authority to acquire real estate. That authority already lived in 12 M.R.S.A. § 6252-A(5), which empowered the Commission to "acquire interests in real property, including dams." The eleventh whereas clause of the resolve itself made the point explicit: it described its purpose as providing legislative direction with respect to the future utilization of the Edwards Dam if the Commission entered into an agreement to acquire the dam "in accordance with its existing legal authority." So the resolve contained direction, not a provision for purchase.

Tierney added a backup point: even if the resolve had been viewed as violating § 16, the consequence would not have been the resolve's invalidity. The Law Court had held in Lemaire v. Crockett, 116 Me. 263, 268 (1917) that when an emergency bill includes a prohibited provision, the defect "affects only the emergency clause and the date when the law may take effect", so the bill simply becomes a non-emergency act and the people's veto window opens. Executive action taken under the resolve after 90 days following the recess would be unaffected.

Currency note

This opinion was issued in 1990. 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

What is the people's veto, and why does emergency legislation matter to it?

Under Me. Const. art. IV, pt. 3, § 17, Maine voters can collect signatures to force a statewide referendum on any law passed by the Legislature, but only during the 90-day window between enactment and the law's effective date. Emergency legislation, passed by a two-thirds vote, takes effect immediately on the Governor's approval, which closes that window. The constitutional list of subjects forbidden in emergency bills (including real-estate purchases) protects voter review of categories the framers thought were too important to bypass.

Why was the Edwards Dam a flashpoint?

The Edwards Dam on the Kennebec River blocked Atlantic salmon migration. The 1989 resolve set legislative direction for what the Salmon Commission should do if it acquired the dam, which became politically significant because the dam was eventually breached in 1999. In 1990, the live legal question was the narrower one Tierney answered: whether the legislative-direction resolve violated § 16.

Did Lemaire v. Crockett still control on emergency-clause defects?

In 1990, yes. Lemaire was a 1917 Law Court opinion holding that a defective emergency clause does not invalidate the underlying enactment; it just demotes the bill to non-emergency status, restoring the 90-day people's-veto window. Tierney cited it for the second-line argument that even a § 16 violation would not have killed the resolve.

What was 12 M.R.S.A. § 6252-A(5)?

Section 6252-A(5) was the standing statutory authority granting the Atlantic Sea Run Salmon Commission power to acquire interests in real property, including dams. Because that authority pre-existed the 1989 resolve, the resolve itself did not need to confer acquisition power.

Background and statutory framework

Maine's constitution structures emergency legislation as a deliberate trade-off: a two-thirds supermajority can suspend the people's veto window, but only for subjects outside the § 16 list of prohibited topics. Real-estate purchases sit on that list because the framers viewed major land transactions as warranting voter review. The 1989 resolve raised the question of whether legislative direction about a potential dam acquisition triggered the prohibition. Tierney's reading drew a clean line: a resolve that directs how an existing acquisition authority will be exercised is not itself a "provision for the purchase of real estate." The independent Lemaire fallback meant that even an adverse reading would not have invalidated the resolve, only its emergency status.

Citations

• Me. Const. art. IV, pt. 3, § 16 (prohibited subjects in emergency legislation)
• Me. Const. art. IV, pt. 3, § 17 (people's veto by referendum)
• Resolves 1989, ch. 104 (Edwards Dam direction resolve)
• 12 M.R.S.A. § 6252-A(5) (Atlantic Sea Run Salmon Commission real-property acquisition authority)
• Lemaire v. Crockett, 116 Me. 263, 268 (1917) (defective emergency clause does not invalidate underlying enactment)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1990/ag_19900510.pdf

Original opinion text

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

90-5

JAMES E. TIERNEY
ATTORNEY GENERAL

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

May 10, 1990

Senator Beverly Miner Bustin
Representative Beverly C. Daggett
Representative Daniel B. Hickey
Representative Patrick E. Paradis
Maine Legislature
State House Station #3
Augusta, ME 04333

Dear Senator Bustin and Representatives Daggett, Hickey and Paradis:

I am writing in response to your inquiry of April 27, asking whether a recent enactment of the Maine Legislature entitled "Resolve, Authorizing the Governor and the Atlantic Sea Run Salmon Commission to Enter into an Agreement with Edwards Manufacturing Company, Inc.," Resolves 1989, ch. 104, which was enacted as emergency legislation, violates Article IV, Part 3, Section 16 of the Maine Constitution which provides that emergency legislation may not include provision for the purchase of real estate. For the reasons which follow, it is the opinion of this Department that the legislative resolve does not violate the Constitution.

Article IV, Part 3, Section 16 of the Maine Constitution provides that acts of the Legislature shall not take effect until 90 days after the recess of the Legislature in which it was passed, unless the Legislature shall, by a vote of two thirds of all members elected to each House, pass a bill as emergency legislation, in which case it becomes effective on approval by the Governor. The reason for the delayed effective date is to allow the voters of the State, pursuant to Article IV, Part 3, Section 17 of the Maine Constitution, to exercise their right to veto any legislation through a referendum conducted pursuant to that section. The significance of emergency legislation, then, is to cut off the possibility of a people's veto.

Article IV, Part 3, Section 16 also provides that:

An emergency bill ... shall not include ... provision for the ... purchase ... of real estate.

Your question is whether the resolve at issue contained such a provision and therefore was improperly enacted as emergency legislation. The short answer to your question is that the legislation does not contain such a provision since it does not accord any new authority to any element of the Executive Branch to acquire real estate. Rather, the legislation reflects that, with respect to the Edwards Dam, that authority already exists in 12 M.R.S.A. § 6252-A(5) which authorizes the Atlantic Sea Run Salmon Commission to "acquire ... interests in real ... property, including ... dams ...." Indeed, the eleventh clause in the preamble to the legislation expressly recognizes the existence of this authority, and states that "the purpose of this resolve is to provide legislative direction with respect to the future utilization of the Edwards Dam if the commission enters into an agreement to acquire the Edwards Dam in accordance with its existing legal authority; ...." Thus, the legislation cannot be viewed as containing a "provision for the ... sale of real estate" within the meaning of the constitutional provision.

Beyond this, it is also important to note that even if the legislation were somehow viewed as violating Article IV, Part 3, Section 16, the consequence would be not its invalidity, but only the negating of its capacity to cut off the people's veto. As the Supreme Judicial Court held many years ago, the fact that a bill enacted as emergency legislation includes a provision which fits within one of the categories of prohibited emergency legislation enumerated in the constitutional provision "affects only the emergency clause and the date when the law may take effect. Instead of becoming a law immediately upon approval by the Governor, it will not take effect until ninety days after the recess of the Legislature thus becoming a non-emergency act and permitting, in the meantime, the invoking of the referendum." Lemaire v. Crockett, 116 Me. 263, 268 (1917). Thus, any executive action taken pursuant to the legislation in question after 90 days following the recess of the Legislature which passed it would not be affected by any infirmity deriving from Article IV, Part 3, Section 16.

I hope the foregoing answers your question. Please feel free to reinquire if further clarification is necessary.

JAMES E. TIERNEY
Attorney General

JET:SW