Can Maine voters use a citizen initiative to require future legislation on a specific topic to be approved by referendum?

Plain-English summary

In 1991 a citizens' group sought to circulate a petition that would have prohibited the Legislature from enacting or amending any statute on sexual-orientation discrimination unless that statute was first submitted to voters in a statewide election. Secretary of State G. William Diamond asked whether such an initiative, if enacted, would be constitutional.

Attorney General Michael Carpenter said no, and explained that the Secretary of State could refuse to approve the petition for circulation under 21-A M.R.S.A. §§ 901 and 906.

The reasoning rests on a long-settled rule about legislative power. One Legislature cannot bind future Legislatures, either as to the substance of legislation or as to the procedures by which future legislation may be enacted. The U.S. Supreme Court put it that way in Woodruff v. Trapnall (1851), and Maine's Supreme Judicial Court has followed the same principle in Edgerly (1977), Maine State Housing Authority (1971), and Opinion of the Justices (1951). The Georgia Supreme Court spelled it out particularly cleanly: a Legislature "can not tie the hands of its successors, or impose upon them conditions" about how to legislate. The same goes for an early-twentieth-century Alabama decision rejecting a supermajority requirement imposed by statute on future bills.

The follow-up question was whether the initiative process gets a different answer because the voters, not the Legislature, would be doing the binding. The AG's view: no. Under Maine's constitution, "the legislature on the one hand and the electorate on the other are co-ordinate legislative bodies." Neither has superior power over the other, absent a special constitutional restraint. California's constitution has such a restraint (initiative statutes can only be amended by referendum), but Maine's does not. So a statute enacted by initiative cannot trap future Legislatures any more than a statute enacted by the Legislature itself can.

If the substantive premise of the initiative is unconstitutional, the next question is whether a referendum should still be held. The AG cited Op. Me. Att'y Gen. 91-2 and Farris ex rel. Anderson v. Colley, 145 Me. 95 (1950), for the rule that legally void legislation is "not a proper matter for submission to the voters." On that basis, the Secretary of State could decline to develop the petition form.

The opinion distinguishes 38 M.R.S.A. §§ 1493-1494, a then-existing low-level radioactive waste statute that required voter approval before construction of a disposal facility or a state agreement on disposal. That statute restricts private persons and the executive branch, not the Legislature, so it does not raise the same problem.

Currency note

This opinion was issued in 1991. 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.

Background and statutory framework

Maine's constitution authorizes citizen initiatives at Article IV, Part 3, Section 18. Voters can propose legislation to the Legislature; if the Legislature does not pass the proposal as-is, it goes to a statewide vote. Petitions for circulation are reviewed by the Secretary of State, with statutory authority at 21-A M.R.S.A. §§ 901 and 906.

The 1991 proposal, by its terms, would have taken effect immediately. Its operative section provided that a statute enacted or amended by the Maine Legislature pertaining to discrimination based upon sexual orientation would not become law unless first ratified at the next statewide election after enactment.

The AG opinion is structured in two layers. First, can the Maine Legislature, acting itself, impose such a procedural requirement on future legislation? The unanimous case law says no, both for substantive content and for procedure (citing Tayloe v. Davis as an example of a supermajority requirement struck down). Second, can the voters acting through the initiative process do something the Legislature could not? Again no, because the initiative power and the Legislature's power are co-equal under Maine's constitution.

The only mechanism that can constrain future Legislatures on a substantive topic, in this view, is a constitutional amendment. Maine's constitution, by its own terms, allows constitutional amendments only through Article IV, Part 3, Section 18(1), which the AG read to exclude citizen initiative as a route.

33 A.L.R. 2d 1118 is cited for the proposition that, absent special constitutional restraint, initiated statutes and legislative statutes are interchangeable.

Common questions

Could the Legislature itself condition future sexual-orientation laws on a referendum?
No. The same rule applies. The Legislature cannot lock its own successors into a procedure beyond what the constitution already specifies for enacting laws.

Was the Secretary of State required to decline the petition?
The opinion concluded that he was "within his authority" to disapprove circulation. AG opinions tend to use that softer phrasing. In practice the Secretary of State has discretion to refuse forms for circulation if the proposed legislation is constitutionally void on its face.

Could a similar restriction be added to the Maine Constitution?
Yes, but through the constitutional-amendment process, not by citizen initiative. The AG read Article IV, Part 3, Section 18(1) as excluding constitutional amendments from the initiative process.

What about the radioactive-waste statute? Doesn't that require a vote?
The opinion explains the distinction. 38 M.R.S.A. §§ 1493-1494 prohibits the construction or operation of a low-level radioactive waste facility, and prohibits the state from entering into interstate compacts on the subject, without statewide voter approval. That statute regulates the conduct of private parties and of the executive branch. It does not condition the Legislature's own ability to enact future statutes. Therefore it does not raise the bind-future-Legislatures problem.

Did the AG say anything about the proposal's substance on sexual-orientation rights?
No. The opinion is purely about procedure. It does not opine on whether anti-discrimination laws are required or forbidden, only on whether voters can lock the Legislature out of legislating on that subject.

What case authority anchors the rule?
Woodruff v. Trapnall, 51 U.S. 190 (1851) is the headline U.S. Supreme Court citation. The Maine Supreme Judicial Court has applied the same rule repeatedly, most cleanly in Edgerly v. Honeywell, Maine State Housing Authority, and the 1951 Opinion of the Justices. A nineteenth-century English constitutional treatise by A.V. Dicey is cited for the historical pedigree of the principle.

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1991/ag_19910805.pdf

Original opinion text

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

State of Maine
Department of the Attorney General
State House Station 6
Augusta, Maine 04333

August 5, 1991

Hon. G. William Diamond
Secretary of State
State House Station 29
Augusta, Maine 04333

Dear Secretary of State Diamond:

You have advised this Department that you have been requested to approve, pursuant to 21-A M.R.S.A. § 901 and § 906, a petition to initiate legislation, pursuant to Article IV, Part 3, Section 18 of the Maine Constitution, which would restrict the ability of the Maine Legislature to enact any statute pertaining to discrimination based upon sexual orientation unless such statute is submitted to the voters of the State and approved by them in a state-wide referendum. You have inquired of this Department whether the enactment of such initiated legislation would be constitutional. For the reasons which follow, it is the opinion of this Department that it would not be constitutional for the voters of the State (or the Legislature itself) to pass legislation conditioning future acts of the Legislature upon a state-wide referendum.

Any discussion of the ability of the electorate through the initiative process to bind future actions of the Legislature must begin with a discussion of the ability of the Legislature itself to enact such restrictions. On this issue, as the United States Supreme Court stated nearly a century and a half ago,

It is a principle controverted by no one, that, on general questions of policy, one legislature can not bind those which shall succeed it; . . .

Woodruff v. Trapnall, 51 U.S. 190, 208 (1851).[1] With regard to the Maine Legislature, the Supreme Judicial Court concurs. Edgerly v. Honeywell Information Services, Inc., 377 A.2d 104, 107 (Me. 1977); Maine State Housing Authority v. Depositors Trust Co., 278 A.2d 699, 707-08 (Me. 1971); Opinion of the Justices, 146 Me. 183, 189-90 (1951). See Op. Me. Att'y Gen. 89-12. This rule extends not only to the substance of legislation, but to the procedure by which future legislation may be enacted. Thus, to quote the Supreme Court of Georgia,

One Legislature can not lawfully provide that, whenever a subsequent Legislature enacts a statute with reference to a given subject, such statute shall embrace certain specified provisions. It can not tie the hands of its successors, or impose upon them conditions with reference to subjects upon which they have equal power to legislate.

Village of North Atlanta v. Cook, 133 S.E.2d 484, 489 (Ga. 1963), quoting Walker v. McNelly, 48 S.E. 718, 720 (Ga. 1904). Thus, for example, it has been held that a Legislature may not impose by statute a requirement that future legislation on a particular subject be enacted only by a supermajority. Tayloe v. Davis, 102 S.E. 433, 435 (Ala. 1924). Rather, if such restrictions on a Legislature are to be imposed, they must be found in the Constitution. See generally, 72 Am. Jur. 2d, States, Territories and Dependencies, § 40.

In view of these authorities, it is clear that the Maine Legislature may not bind future Legislatures by enacting a statute preventing the enactment of future statutes except upon ratification by the voters at a state-wide referendum. The question becomes, therefore, whether the result would be any different if the statute requiring such a referendum were enacted pursuant to the initiative process. In the view of this Department, the result would be the same. With regard to the relative constitutional weight to be assigned to legislation passed by the Legislature and legislation passed through the initiative process, the general principle is:

Under general constitutional provisions vesting the legislative power of the state in a legislature but reserving to the people the right of initiative and referendum, there is no superiority of power as between the two. The legislature on the one hand and the electorate on the other are co-ordinate legislative bodies. In the absence of special constitutional restraint,[2] either may amend or repeal an enactment by the other.

Annotation, Power of the legislative body to amend, repeal, or abrogate initiative or referendum measure, or to enact measure defeated on referendum, 33 A.L.R. 2d 1118, 1121, and cases cited therein. There is no such restriction in the Maine Constitution. Therefore, since initiated legislation does not have a special constitutional status in Maine, it may not be used to impose restrictions on the ability of future Legislatures to act.[3] Such restrictions may only be imposed through an amendment to the Constitution, which, of course, may not be accomplished by initiative. Me. Const., Art. IV, pt. 3, § 18(1).[4]

Since the proposed initiative, if enacted, would be unconstitutional, the only remaining question is whether there is any barrier to the holding of a referendum on the question anyway. Here, as indicated in an Opinion of this Department issued earlier this year, the authority in Maine and elsewhere in the country is virtually unanimous that referenda may not be conducted on subjects for which the legislative body in question has no legal authority to take action. See Op. Me. Att'y Gen. 91-2, a copy of which is attached. Thus, it would appear that even if a sufficient number of signatures were gathered on the proposed petition to activate the initiative process, the holding of a referendum on the question would be illegal. To quote the Supreme Judicial Court, if the proposed legislation, if adopted, would be void, "It is not a proper matter for submission to the voters." Farris ex rel. Anderson v. Colley, 145 Me. 95, 102 (1950). In view of this authority, it is the Opinion of this Department that it would be within your authority under 21-A M.R.S.A. § 901 and § 906 to disapprove for circulation to the voters the petition form pending before you.

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

Sincerely,

Michael E. Carpenter
Attorney General

MEC: lm
Attachment

[1] The rule is of even greater antiquity. A leading nineteenth century authority on the British Constitution, A.V. Dicey, confirms that Parliament is without power to "tie the hands" of its successors. A.V. Dicey, Introduction to the Study of the Law of the Constitution, ch. 1 at 64-70 (9th ed. 1939), and quotes from Francis Bacon a description of the unsuccessful effort of Henry the Eighth to prevent Parliament from passing laws during any minority rule of his son. When Henry did in fact die before Edward the Sixth was of age, the first statute passed by the next Parliament was to repeal Henry's Act, notwithstanding the King's minority. Id. at 64-65, n. 2.

[2] For example, the State of California has such a special constitutional restraint. CAL. CONST., Art. II, § 10(c) ("The Legislature may . . . amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval.")

[3] The Supreme Judicial Court has not been faced with this issue, but it has ruled that the Legislature is not prevented from amending a statute which was previously enacted after a legislatively authorized referendum. Jones v. Maine State Highway Commission, 238 A.2d 226, 230 (Me. 1968).

[4] It has been drawn to this Department's attention that the pending initiative proposal may have been based on a statute currently in force preventing the construction or operation of a low-level radioactive waste disposal or storage facility in Maine and preventing the State from entering into an agreement with any other state or states or the federal government concerning the disposal or storage of low-level radioactive waste, unless approved by the voters at a state-wide election. 38 M.R.S.A. §§ 1493, 1494. This statute, however, does not purport to limit the Legislature. Rather, it seeks only to limit the authority of private persons to establish a facility and the executive branch to enter into an agreement. The statute is, therefore, distinguishable from the one contained in the proposed petition.