Can the Maine Legislature pass forest-practices amendments while a competing measure on that subject is pending before voters?

Plain-English summary

The 1996 forest-practices saga produced one more AG opinion. To recap: citizens initiated L.D. 1819, "An Act to Promote Forest Rehabilitation and Eliminate Clearcutting." The Legislature responded with its own competing measure, the Compact for Maine's Forests. Voters in November 1996 saw both on the ballot. The competing measure received more than one-third but less than a majority. Under Me. Const. art. IV, pt. 3, § 18(2), that result triggered a runoff at the next statewide election (November 1997, unless the Legislature called an earlier special election).

Senator Vinton Cassidy asked Attorney General Andrew Ketterer whether, during the pendency of the 1997 runoff, the Legislature could enact ordinary legislation amending the laws governing forest practices. The AG said no, at least with respect to legislation inconsistent with the competing measure.

The reasoning relied on Farris ex rel. Dorsky v. Goss, 143 Me. 227 (1948), a 1948 Maine Supreme Judicial Court decision holding that if the Legislature passes a bill that "deals broadly with the same general subject matter as [an initiated measure], particularly if it deals with it in a manner inconsistent with the initiated measure so that the two cannot stand together," that legislative enactment cannot simply take effect. It must instead be sent to the voters as a competing measure. The policy underlying Farris was that an initiative's proponents are entitled to have their proposal presented to voters, undiluted by parallel legislation enacted by the same body the proponents were going around.

Cassidy's question was whether Farris extended to a runoff on a competing measure (rather than on an initiated bill). The AG concluded it did. The runoff was happening only because the initiative process had been successfully invoked. Even though the original initiated bill had failed, the constitution guaranteed voters a chance to vote on the surviving competing measure. Letting the Legislature enact inconsistent legislation during the runoff would subvert that constitutional process just as much as it would have during a vote on the original initiated bill.

The AG added a caveat: whether any particular bill the Legislature might consider was in fact inconsistent with the competing measure was a separate, fact-specific question that had to wait until the bill was actually drafted.

Currency note

This opinion was issued in 1997. 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 the runoff actually about?

A second vote on whether to enact the Compact for Maine's Forests, the legislative competing measure. The competing measure got more than one-third but less than a majority in November 1996, which under Me. Const. art. IV, pt. 3, § 18(2) put it on the November 1997 ballot for a yes-or-no second look.

What did Farris v. Goss decide?

That when the Legislature enacts a measure dealing broadly with the same subject as a pending initiated measure, particularly if the legislative measure is inconsistent with the initiative, the legislative measure cannot simply take effect. It has to go to the voters as a competing measure alongside the initiative. The rule protects the initiative process from being moot-pinched by parallel legislation.

Could the Legislature pass amendments that were consistent with the competing measure?

The opinion focuses on inconsistent legislation. Whether consistent amendments would slip through, or would also have to wait, is not directly addressed. As a practical matter, the AG advised the Legislature to leave the area alone while the referendum was pending.

What counts as "inconsistent"?

The opinion does not draw a bright line. It says that whether a particular bill is inconsistent with the competing measure depends on the actual text of the bill, an inquiry the AG could not undertake until the bill existed.

Did the runoff approve the Compact?

That outcome lay in the future when this opinion issued. The opinion's purpose was to constrain the Legislature in the interim period.

Background and statutory framework

Me. Const. art. IV, pt. 3, § 18 lays out Maine's initiative-and-referendum process. § 18(2) authorizes the Legislature to put a competing measure on the same ballot as an initiated measure, and contains the runoff trigger (a measure that gets more than one-third but less than a majority goes to the next statewide election). § 19 handles gubernatorial proclamation of voter-approved measures.

Farris ex rel. Dorsky v. Goss, 143 Me. 227 (1948), is the Maine Supreme Judicial Court's pre-modern decision establishing that the Legislature cannot circumvent the initiative process by passing inconsistent companion legislation. The AG's 1997 reading extended Farris to a runoff on a competing measure, on the theory that the runoff is itself a product of the initiative process.

Related opinions in the same legislative cycle: Op. Me. Att'y Gen. 96-8 and 96-10, which addressed the vote threshold for enacting the competing measure.

Citations

• Me. Const. art. IV, pt. 3, § 18 (initiative and competing-measure process)
• Me. Const. art. IV, pt. 3, § 18(2) (runoff trigger when competing measure receives more than one-third but less than a majority)
• Farris ex rel. Dorsky v. Goss, 143 Me. 227 (1948) (legislative measures inconsistent with initiative must go to voters as competing measures)
• L.D. 1819 (the citizen-initiated clearcutting ban)
• Competing Measure Resolutions 1995, ch. 1 (the Compact for Maine's Forests as competing measure)
• Op. Me. Att'y Gen. 96-8 (companion ruling: competing measures require only a simple majority)
• Op. Me. Att'y Gen. 96-10 (companion ruling on the competing-measure vote threshold)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1997/ag_19970226.pdf

Original opinion text

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

97-1

ANDREW KETTERER
ATTORNEY GENERAL

STATE OF MAINE
DEPARTMENT OF THE ATTORNEY GENERAL
6 STATE HOUSE STATION
AUGUSTA, MAINE 04333-0006

February 26, 1997

Senator Vinton E. Cassidy
Maine State Senate
3 State House Station
Augusta, ME 04333-0003

Dear Senator Cassidy:

I am writing in response to your inquiry to this office concerning whether the Maine Legislature may enact amendments to the laws governing forest practices during the period in which a competing measure on that general subject enacted by the Legislature as an alternative to initiated legislation is pending before the voters of the State. For the reasons which follow, it is the Opinion of this office that the Legislature may not, during this period, enact legislation which is inconsistent with the competing measure.

Your question has its origin in initiated legislation that was presented to the Second Regular Session of the 117th Legislature, pursuant to Article IV, Part Third, Section 18 of the Maine Constitution. That legislation was printed as Initiated Bill 4, Legislative Document 1819, "An Act to Promote Forest Rehabilitation and Eliminate Clearcutting." In response to this citizen initiative, the Legislature, at a Special Session held in September of 1996, acting pursuant to Article IV, Part Third, Section 18, Subsection 2 of the Maine Constitution, passed a "competing measure" for consideration by the voters as an alternative to the initiated legislation at the general election held on November 5, 1996. Competing Measure Resolutions 1995, ch. 1.

At the 1996 general election, the competing measure received more than one-third but less than a majority of all of the votes cast. Thus, pursuant to the provisions of Article IV, Part Third, Section 18, Subsection 2 of the Maine Constitution, the competing measure will be resubmitted to the voters at the next statewide election, which will be held on November 4, 1997, unless the Legislature elects to call a special election for this purpose sooner, pursuant to the same constitutional provision.

Your question is whether, during the pendency of the referendum on the competing measure, the Legislature may enact legislation which deals with the same subject matter as the competing measure. While the Maine Constitution does not in terms address this question directly, the Supreme Judicial Court has had occasion to do so in a closely related circumstance. In 1948, the Court was presented with a question of whether the Legislature could enact a measure dealing with the same subject matter as an initiated measure which was then pending before the voters. The Court held that if the Legislature enacted "[a] bill which deals broadly with the same general subject matter as [the initiated measure], particularly if it deals with it in a manner inconsistent with the initiated measure so that the two cannot stand together," the legislative enactment could not take effect, but must be considered a "competing measure" and sent to the electorate as an alternative to the initiated bill. Farris ex rel. Dorsky v. Goss, 143 Me. 227, 232 (1948). The problem presented by your question is whether this result would apply in the situation in which it is a competing measure, and not an initiated measure, which is being submitted to the voters.

In the view of this Department, it is likely that the Court would apply the rule in Farris to this situation. The policy underlying the Court's decision in Farris was that the interest of the initiators in having their legislation presented to the voters should not be subverted by the enactment of a measure by the Legislature which might divert votes from the initiative but which would not be submitted to the voters itself for their approval. It might be argued that this policy is not threatened when it is not the initiated legislation, but the Legislature's own competing measure which is before the voters. It is still the case, however, that the referendum on the competing measure is occurring as a result of the successful invocation of the initiative process. Thus, even though the initiators' bill has been defeated, the Constitution requires that the voters have an opportunity to vote on the measure which has survived, to determine if it alone can command a majority of the votes. That being the case, the same policy enunciated in Farris would apply, meaning that the presence of inconsistent legislation would not be allowed to subvert the process.

The only question remaining, therefore, is whether any particular statute which the Legislature might be contemplating enacting would, in fact, be inconsistent with the competing measure. This determination must await the development of such legislation.

I hope the foregoing answers your question.

Sincerely,

ANDREW KETTERER
Attorney General

CH:sw

cc: Governor Angus S. King, Jr.
Senate President Mark W. Lawrence
House Speaker Elizabeth H. Mitchell