Did Maine's statutory ban on unfunded state mandates actually stop the Legislature from passing such mandates?

Plain-English summary

In 1992, Sections X-26, X-28, X-29, X-30 and X-31 of L.D. 2185 (the supplemental appropriations bill) imposed new requirements on counties and municipalities. Senator Joseph Brannigan and Representative Lorraine Chonko, chairs of the Appropriations Committee, asked the AG whether 30-A M.R.S.A. § 5684 stopped the Legislature from enacting these sections. That statute purported to prohibit the Legislature from passing legislation containing a "state mandate" unless the funding to comply was provided.

Cabanne Howard, Chief of the Deputy Attorney General's office, answered for AG Michael Carpenter: don't worry about whether the X sections are mandates, because 30-A § 5684 cannot bind the current Legislature anyway. One Legislature cannot constrain its successors by ordinary statute.

The reasoning sits on a long line of authority. The U.S. Supreme Court said it in 1851 (Woodruff v. Trapnall): "It is a principle controverted by no one, that, on general questions of policy, one legislature can not bind those which shall succeed it." The Maine Supreme Judicial Court agrees (Edgerly v. Honeywell, Maine State Housing Authority v. Depositors Trust Co., Opinion of the Justices). The rule covers not just substance but procedure: one Legislature cannot impose supermajority requirements, voter-approval conditions, or other procedural hurdles on its successors through ordinary statute. The exception is when the restriction comes from the Constitution itself, which is why the same procedural hurdles can be imposed by constitutional amendment.

The attached opinion (Op. Me. Att'y Gen. 91-9, August 5, 1991, to Secretary of State G. William Diamond) applies the same rule to an initiative process: voters cannot, by initiative, require future Legislatures to refer all sexual-orientation discrimination legislation back to the voters, because initiated legislation in Maine has no special constitutional status that distinguishes it from ordinary statute. The Maine Constitution does not create the kind of "special constitutional restraint" that California's does (Cal. Const. art. II, § 10(c)).

The practical upshot the opinion gives the committee is that 30-A § 5684 could not control what the Legislature did, so the committee did not need to decide whether the L.D. 2185 sections were mandates. The opinion adds that a binding restriction on legislative power of this kind would have to come from the Constitution rather than an ordinary statute.

Currency note

This opinion was issued in 1992. 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 was 30-A M.R.S.A. § 5684?

A statute that purported to prohibit the Legislature from enacting legislation imposing additional requirements on counties and municipalities if those requirements would force additional spending and the State did not provide the funding. The AG said the statute could not stand on its own legs because the Legislature that passed it could not bind future Legislatures.

Why can't one Legislature bind another?

Because they have equal power. Article IV of the Maine Constitution vests legislative power in the Legislature, and one Legislature cannot, by ordinary statute, take that power away from a later Legislature. If the people want to impose a real restriction on legislative power, it must be in the Constitution itself.

Did this make all anti-mandate laws meaningless?

Only the statutory kind. The opinion's logic is that a restriction in an ordinary statute cannot bind a later Legislature, while a restriction written into the Constitution can. Maine later added a mandate restriction to its Constitution by amendment, which is the route the opinion points to.

What about laws passed by initiative?

Same rule. The attached Op. Me. Att'y Gen. 91-9 holds that initiated legislation in Maine has no special constitutional status. Voters can amend the Constitution (subject to its own procedures), but they cannot, through initiative, pass a statute that binds future Legislatures any differently than the Legislature itself could.

What was the 1991-9 sexual orientation example about?

A petition sought to require any future legislation on sexual-orientation discrimination to go to a state-wide referendum. The AG advised the Secretary of State that the initiative, if enacted, would be unconstitutional, and that the Secretary could disapprove the petition for circulation under 21-A M.R.S.A. §§ 901 and 906. Citing Farris ex rel. Anderson v. Colley, 145 Me. 95 (1950): "if the proposed legislation, if adopted, would be void, 'It is not a proper matter for submission to the voters.'"

Background and statutory framework

The opinion rests on a basic constitutional principle: legislative power is plenary as to substance and procedure, and successive Legislatures hold that power equally. One Legislature cannot, by ordinary statute, tie the hands of its successors on a subject over which they have equal power to legislate.

In American constitutional law, the rule traces to Woodruff v. Trapnall, 51 U.S. 190 (1851), and extends to procedural restrictions. Tayloe v. Davis, 102 So. 433 (Ala. 1924), holds that a Legislature cannot impose a supermajority requirement on its successors by statute. The Maine Supreme Judicial Court has applied the same principle in Edgerly v. Honeywell Information Services, Inc., 377 A.2d 104 (Me. 1977); Maine State Housing Authority v. Depositors Trust Co., 278 A.2d 699 (Me. 1971); and Opinion of the Justices, 146 Me. 183 (1951).

The attached Op. Me. Att'y Gen. 91-9 extends the rule to initiated legislation, citing 33 A.L.R. 2d 1118 ("There is no superiority of power as between" the Legislature and the electorate using the initiative).

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1992/ag_19920227.pdf

Original opinion text

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

MICHAEL E. CARPENTER, ATTORNEY GENERAL
STATE OF MAINE
DEPARTMENT OF THE ATTORNEY GENERAL
STATE HOUSE STATION 6
AUGUSTA, MAINE 04333

February 27, 1992

Honorable Joseph C. Brannigan
Honorable Lorraine N. Chonko
Chairs, Joint Standing Committee on Appropriations and Financial Affairs
State House Station #3
Augusta, ME 04333

Dear Senator Brannigan and Representative Chonko:

I am writing in response to your letter of February 26, 1992, to this Department, asking whether the Legislature would be prohibited from enacting Sections X-26, X-28, X-29, X-30 and X-31 of Legislative Document 2185, "AN ACT to Make Supplemental Appropriations and Allocations for the Expenditures of State Government and for the Fiscal Years Ending June 30, 1992 and June 30, 1993 That Change Certain Provisions of the Laws," because of the provisions of 30-A M.R.S.A. § 5684, which purport to prohibit the Legislature from enacting legislation containing a "state mandate" upon the counties and municipalities of the State, if such a mandate requires additional funding, and if such funding is not provided.

Please be advised that this Department does not believe it is necessary to determine whether the provisions of L.D. 2185 constitute such "mandates" because the provisions of 30-A M.R.S.A. § 5684 are of no effect in controlling the actions of the Legislature. As this Department explained more fully in an opinion rendered to Secretary of State G. William Diamond last summer, the Legislature is without power to enact legislation binding the actions of future Legislatures. See Op. Me. Att'y Gen. 91-9 and the authority cited therein. A copy of that opinion is attached.

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

Sincerely,
Cabanne Howard
Deputy Attorney General, Chief, Opinions/Counsel

Attachment: Op. Me. Att'y Gen. 91-9 (August 5, 1991)

State of Maine, Department of Attorney General, August 5, 1991

Hon. G. William Diamond
Secretary of State

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). 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 So. 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, 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. (For example, the State of California has such a special constitutional restraint. CAL. CONST., Art. II, § 10(c).) 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).

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).

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. 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.

(Footnote on radioactive waste statute: 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.)

Sincerely,
MICHAEL E. CARPENTER
Attorney General