Can the Maine Legislature, by ordinary statute (LD 1350), establish a recall election mechanism for the Governor, State Senators, and State Representatives, or does that require a constitutional amendment?

Plain-English summary

Representative William Lemke asked the AG whether LD 1350 (proposing a statutory recall mechanism for the Governor and members of the Maine Legislature) would be constitutional. The AG said no.

The analytical framework comes from a freshly-decided Law Court opinion. In Opinion of the Justices, No. OJ-93-1, slip op. (Me. April 26, 1993), the Justices addressed whether the Legislature (or the electorate by initiative) could impose term limits on legislators by statute. The Justices said yes, because the Maine Constitution doesn't address the question of how many terms a legislator can serve, so the matter is open to ordinary legislation. The general rule from Baxter v. Waterville Sewer District, 146 Me. 211, 215 (1951): a statute is constitutional if it is not prohibited "either in express terms or by necessary implication" by the Maine Constitution.

The recall question is different because the Maine Constitution does address tenure and removal. The Constitution fixes terms for the Governor (4 years, art. V, pt. 1, § 2), Senators (2 years, art. IV, pt. 2, § 1), and Representatives (2 years, art. IV, pt. 1, § 2). It also provides specific removal mechanisms: impeachment for civil officers (art. IX, § 5), and removal of the Governor by the Supreme Judicial Court for prolonged mental or physical disability (art. V, pt. 1, § 14).

The 1975 Justices' opinion (343 A.2d 196, 203 (1975)) established the principle the AG relied on:

When the Constitution fixes the tenure of a civil office, it is beyond the power of the Legislature to affect the tenure. Persons holding such constitutional office, therefore, may be removed only by methods authorized by the Constitution itself.

The Constitution doesn't list recall as one of those authorized methods. So even though the Constitution doesn't mention recall specifically (which under the term-limits framework might suggest it's open to legislation), the Constitution's affirmative provisions on tenure and removal mean that any new removal mechanism must come through a constitutional amendment.

The AG added historical context in a footnote: shortly after Maine's 1907-1908 "Progressive" amendments added the initiative and the people's veto (Me. Const. art. IV, pt. 3, §§ 16-20), reformers tried twice (in 1911 and 1913) to add the recall to Maine law. Both efforts were framed as constitutional amendments, not statutes, and both failed. The history confirms the AG's reading: when Mainers wanted to add recall, they understood it required amendment.

Currency note

This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Maine still does not have a statewide recall mechanism for state-level officials, suggesting this opinion's analysis remained influential. Verify current law before relying on the specific holding.

Common questions

Why is recall different from term limits?

Because the Constitution is silent on term limits but explicit on tenure. A legislator's term is fixed at 2 years; the Governor's at 4. The Constitution provides specific removal mechanisms. Adding a new mechanism (recall) by statute would let the Legislature shorten constitutional terms, which it cannot do.

What removal mechanisms does the Maine Constitution allow?

This opinion points to two. Impeachment of a civil officer by the Legislature (Me. Const. art. IX, § 5), and, for the Governor only, removal by the Supreme Judicial Court for prolonged mental or physical disability (art. V, pt. 1, § 14). The opinion does not catalog any other procedure.

Why doesn't impeachment cover recall?

Impeachment is a legislative procedure, not a direct-democracy one. Recall would let voters, not the Legislature, remove an official. The Constitution gives the Legislature the impeachment power but does not extend a parallel removal power to the electorate.

Could a Maine recall amendment be adopted?

Yes, through the ordinary process for amending the Maine Constitution (Me. Const. art. X, § 4, requiring 2/3 of the Legislature and ratification by a majority of voters). The 1993 opinion does not say anything is wrong with the concept of recall, only that the route is constitutional amendment, not statute.

Why does the 1907-1908 history matter?

Because it shows that, at a moment when Maine was actively adopting direct-democracy reforms (the initiative and the people's veto), the reformers themselves treated recall as something that required a constitutional amendment. That contemporaneous understanding supports the AG's reading.

What about local recalls?

The 1993 opinion addresses recall of state-level officials only. Maine permits some municipal-level recall under home-rule charters or special legislation. Those rest on different constitutional analysis because the Maine Constitution doesn't fix municipal officeholders' terms in the same way it does state officials'.

Background and statutory framework

Fixed terms. Me. Const. art. V, pt. 1, § 2 (Governor, 4 years); art. IV, pt. 1, § 2 (House, 2 years); art. IV, pt. 2, § 1 (Senate, 2 years).

Removal mechanisms. Me. Const. art. IX, § 5 (impeachment); art. V, pt. 1, § 14 (Governor's incapacity).

Direct democracy provisions. Me. Const. art. IV, pt. 3, §§ 16-20 (the 1907-1908 "Progressive" amendments adding initiative and people's veto).

Term-limits framework. Opinion of the Justices, No. OJ-93-1 (Me. April 26, 1993) (statutes may regulate subjects the Constitution doesn't address). Baxter v. Waterville Sewer District, 146 Me. 211, 215 (1951) (statute is unconstitutional only if prohibited "either in express terms or by necessary implication").

Fixed-tenure principle. Opinion of the Justices, 343 A.2d 196, 203 (1975) (constitutionally-fixed tenure may be affected only by constitutionally-authorized removal methods).

Historical recall proposals. Legis. Rec. 661 (1911) (bill reported "ought not to pass"); Legis. Rec. 1199, 1201 (1913) (bill referred to next Legislature, both framed as constitutional amendments).

Citations

• L.D. 1350 (the proposed recall statute)
• Me. Const. art. IV, pt. 1, § 2 (Representatives' 2-year term)
• Me. Const. art. IV, pt. 2, § 1 (Senators' 2-year term)
• Me. Const. art. IV, pt. 3, §§ 16-20 (1907-1908 direct-democracy amendments)
• Me. Const. art. V, pt. 1, § 2 (Governor's 4-year term)
• Me. Const. art. V, pt. 1, § 14 (Governor's incapacity removal)
• Me. Const. art. IX, § 5 (impeachment and address)
• Opinion of the Justices, No. OJ-93-1 (Me. April 26, 1993) (term-limits opinion)
• Opinion of the Justices, 343 A.2d 196, 203 (1975) (fixed-tenure principle)
• Baxter v. Waterville Sewer District, 146 Me. 211, 215 (1951) (statute constitutional unless prohibited "in express terms or by necessary implication")

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1993/ag_19930511.pdf

Original opinion text

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

93-5

MICHAEL E. CARPENTER
ATTORNEY GENERAL

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

May 11, 1993

Representative William Lemke
Maine House of Representatives
State House Station #2
Augusta, ME 04333

Dear Representative Lemke:

I am writing in response to your request of May 10, 1993, concerning the constitutionality of Legislative Document No. 1350, "AN ACT to Provide for the Recall of the Governor, State Senators and State Representatives." For the reasons which follow, it is the Opinion of this Department that this proposed legislation would violate the Maine Constitution in that it seeks to establish by statute a mechanism for the removal of certain State officials which can only be accomplished by amendment to the Maine Constitution.

Legislative Document No. 1350 seeks to establish a mechanism whereby a certain number of qualified voters may sign a petition addressed to the Secretary of State for the recall of the Governor, a State Senator, or a State Representative, and directs the Secretary of State to call an appropriate special recall election. Although the text of the proposed legislation does not state as much, this Department assumes that if a majority of voters in the appropriate district voted to recall the official, the official would no longer hold office, and a new election would be called to fill the vacancy as provided by law. The question which you pose is whether this legislation would be effective, or whether the mechanism could only be implemented if it is part of the Maine Constitution.

In the Opinion of this Department, a constitutional amendment would be required. The issue is in some respects similar to that recently addressed by the Justices of the Supreme Judicial Court, in an Opinion responding to questions propounded to them by the Maine House of Representatives concerning the constitutionality of imposing statutory limits on the number of terms which members of the Maine Legislature may serve. In that Opinion, a majority of the Justices advised that the Legislature (or the electorate through the medium of initiated legislation) could impose term limits on the members of the Legislature since such a statute was not prohibited "either in express terms or by necessary implication" by the Maine Constitution. Opinion of the Justices, No. OJ-93-1, slip op. at 3 (Me. April 26, 1993), quoting Baxter v. Waterville Sewer District, 146 Me. 211, 215 (1951). In the term limits Opinion, the Justices found that since the Maine Constitution did not address the question as to how many terms a member of the Maine Legislature may serve, the matter was open to regulation by ordinary legislation.

The question raised by your inquiry, therefore, becomes whether the Maine Constitution has addressed the question of the removal of the Governor and members of the Maine Legislature. In this case, the Constitution does speak to the issue in several respects. First, the Constitution provides that the officials in question "shall hold ... office" for a fixed term of years, Me. Const. art. V, § 2 (Governor, 4 years); art. IV, pt. 1, § 2 (House of Representatives, 2 years); art. IV, pt. 2, § 1 (Senate, 2 years). In addition, the Constitution also provides for the removal of the Governor, as the holder of a "civil office under this State," by the Legislature through the mechanism of impeachment, Me. Const. art. IX, § 5, and by the Supreme Judicial Court in the case of a prolonged mental or physical disability, Me. Const. art. V, pt. 1, § 14. In the words of the Justices of the Supreme Judicial Court:

When the Constitution fixes the tenure of a civil office, it is beyond the power of the Legislature to affect the tenure. Persons holding such constitutional office, therefore, may be removed only by methods authorized by the Constitution itself.

Opinion of the Justices, 343 A.2d 196, 203 (1975) (citations omitted). The Constitution makes no provision for the removal of members of the Legislature, once elected. Nonetheless, in the view of this Department, the fact that the Constitution provides that these officers "shall hold their office" for two years, necessarily implies that they may not be removed, unless the Constitution otherwise so provides. Consequently, this Department concludes that in order for either the Governor or the members of the Maine Senate or House of Representatives to be removed from office by recall, provision for such removal would have to be made in the Maine Constitution.

[Footnote: It is significant in this regard that shortly after the adoption of the so-called "Progressive" amendments to the Maine Constitution (providing for the direct initiation of legislation by the people and the veto by the people of legislation enacted by the Legislature), Me. Const. art. IV, pt. 3, §§ 16-20, by the Legislature and the electorate in 1907 and 1908, two efforts were made to add the other major element of the Progressive agenda, the recall of public officers, to Maine law. In each case, the effort failed, but the proposals were framed in terms of amendments to the Maine Constitution. Legis. Rec. (1911) 661 (bill reported "ought not to pass"); Legis. Rec. (1913) 1199, 1201 (bill referred to next Legislature).]

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

Sincerely,

MICHAEL E. CARPENTER
Attorney General

MEC:sw

cc: Sen. Georgette R. Berube
Representative Ruth Joseph
Chairs, Joint Standing Committee on State and Local Government