When does a regular legislative bill have to be sent to Maine voters as a 'competing measure' against an initiated bill on the same topic?

Plain-English summary

Chief Deputy Attorney General Linda Pistner prepared this short legal memo for the Legislature on how Maine's "competing measure" rule works.

When citizens submit an initiated bill (a direct initiative) and the Legislature does not enact the bill without change at the session at which it is presented, the bill goes to the voters. Article IV, Part 3, Section 18(2) of the Maine Constitution adds a twist: "any amended form, substitute, or recommendation of the Legislature" must be submitted to the voters at the same time, "in such manner that the people can choose between the competing measures or reject both."

The opinion answers four practical questions about that rule.

When is regular legislation a "competing measure"? A detailed comparison is required. The Law Court in Farris ex rel. Dorsky v. Goss, 143 Me. 227 (1948), held that a bill "that deals broadly with the same general subject matter, particularly if it deals with it in a manner inconsistent with the initiated measure so that the two cannot stand together," is a competing measure that must be submitted to the voters. A "fade away" statute, designed to take effect only if the initiated bill fails at the polls, does not avoid the requirement (Opinion of the Justices, 680 A.2d 444 (Me. 1996)).

What about emergency legislation? The competing measure requirement does not deprive the Legislature of its emergency legislation power under Article IV, Part 3, § 16 (McCaffrey v. Gartley, 377 A.2d 1367 (Me. 1977)). Tax legislation can be enacted as emergency legislation even if the revenues will not be needed before the normal ninety-day delay would otherwise expire (Morris v. Goss, 147 Me. 89 (1951)). But a pending initiated bill is not by itself an emergency (Opinion of the Justices, 680 A.2d 444 (Me. 1996)).

What if the initiated bill requires money the state does not have? Article IV, Part 3, § 19 provides that "any such measure which entails expenditure in an amount in excess of available and unappropriated state funds shall remain inoperative until 45 days after the next convening of the Legislature in regular session, unless the measure provides for raising new revenues adequate for its operation."

Can the Legislature get advance guidance from the Court? Yes, sometimes. Article VI, § 3 allows the Governor, Senate, or House to request an Opinion of the Justices on "important questions of law" arising in "solemn occasions." The Court's case law on what counts as a "solemn occasion" is substantial.

Currency note

This opinion was issued in 2003. 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

Q: What is an "initiated bill" in Maine?
A: A direct initiative: legislation proposed by citizen petition, presented to the Legislature, and (if not enacted by the Legislature) submitted to the voters at referendum. Article IV, Part 3, § 18(2) of the Maine Constitution governs the procedure.

Q: What is a "competing measure"?
A: A bill the Legislature passes on the same subject as a pending initiated bill, dealing with that subject in a way that is inconsistent with the initiated bill so the two cannot stand together. Under § 18(2), competing measures must go to the voters alongside the initiated bill. Voters can choose between them or reject both.

Q: Why does the Constitution require competing measures to go to the voters?
A: To prevent the Legislature from short-circuiting the initiative process. If the Legislature could pass an alternative that nullified the initiated bill and that alternative did not have to face the voters, the initiative right would be illusory. The competing-measure rule preserves voter choice.

Q: How does the Court decide whether a bill is a "competing measure"?
A: Two-part test from Farris ex rel. Dorsky v. Goss, 143 Me. 227 (1948): (1) does the legislative bill deal broadly with the same general subject as the initiated bill? (2) does it do so in a manner inconsistent with the initiated bill so the two cannot stand together? If yes to both, it is a competing measure and must be submitted to the voters.

Q: Can the Legislature use a "fade away" trick to avoid the requirement?
A: No. A statute designed to take effect only if the initiated bill fails, then "fade away" if the initiative passes, still has to be submitted to the voters as a competing measure (Opinion of the Justices, 680 A.2d 444 (Me. 1996)). The Constitution looks at the substance, not the gimmick.

Q: Does the competing measure rule apply to emergency legislation?
A: No. Emergency legislation under Article IV, Part 3, § 16 is exempt (McCaffrey v. Gartley, 377 A.2d 1367 (Me. 1977)). Tax legislation can qualify as emergency legislation even if the revenues will not be needed within the usual ninety-day delay (Morris v. Goss, 147 Me. 89 (1951)). But the Justices have warned that a pending initiated bill does not by itself constitute an emergency under the Constitution.

Q: What happens if voters pass an initiated bill that costs more than the state has?
A: Article IV, Part 3, § 19 delays implementation. The initiated bill "shall remain inoperative until 45 days after the next convening of the Legislature in regular session, unless the measure provides for raising new revenues adequate for its operation." The Legislature gets a chance to appropriate funds before the new law takes effect.

Q: Can the Legislature ask the Court for guidance during a competing-measure dispute?
A: Sometimes. Article VI, § 3 allows the Governor, Senate, or House to request an Opinion of the Justices on important questions of law on "solemn occasions." The memo notes there is "a significant body of law on the question of when a 'solemn occasion' exists" sufficient for the Justices to offer an advisory opinion, without resolving how any particular question would come out.

Background and statutory framework

Maine's direct initiative process runs through Article IV, Part 3 of the Maine Constitution. Citizens petition for a proposed law, which is presented to the Legislature. Under § 18(2), unless the Legislature enacts the measure without change at the session at which it is presented, the measure goes to the electors, together with "any amended form, substitute, or recommendation of the Legislature," so the people can choose between the competing measures or reject both.

The competing-measure structure exists because of the basic logic of direct democracy. If the Legislature could pass a "fix" that defeated the initiative without going to voters, the initiative right would be hollowed out. The framers built in a requirement that legislative alternatives face the same democratic test.

Farris ex rel. Dorsky v. Goss, 143 Me. 227 (1948), is the leading case on what counts as a "competing measure." The two-part test asks about subject matter overlap and inconsistency. Bills that address the same general topic but can coexist with the initiated bill (because they handle different aspects, or because they merely supplement) are not competing measures. Bills that nullify, narrow, or fundamentally restructure what the initiated bill does are competing measures.

The Opinion of the Justices, 680 A.2d 444 (Me. 1996), closed the "fade away" loophole. The Legislature had considered enacting a tax-reform statute with a contingent effective date keyed to defeat of a parallel initiated bill. The Justices said the contingent design did not exempt the legislation from the competing-measure requirement. The Constitution looks at whether the legislation deals with the same subject inconsistently, not whether the legislature drafted the bill to vanish if the initiative wins.

Emergency legislation under Article IV, Part 3, § 16 takes effect immediately and is exempt from the competing-measure rule. McCaffrey v. Gartley, 377 A.2d 1367 (Me. 1977), affirmed the exemption. Morris v. Goss, 147 Me. 89 (1951), confirmed that emergency tax legislation is valid even where the revenue will not be needed during the usual ninety-day delay before normal legislation takes effect. The 1996 Justices opinion added a check on overuse: the pendency of an initiated bill is not itself an emergency. The Legislature cannot manufacture emergency status to dodge a competing measure submission.

The expenditure delay under § 19 is a fiscal safeguard. Voter-approved initiatives requiring expenditure above available unappropriated funds are paused until the Legislature has a chance to appropriate the money (45 days after the next regular session). The exception swallows the rule only if the initiative itself raises new revenues sufficient to fund its operation.

Opinion of the Justices procedure under Article VI, § 3 lets the Governor, Senate, or House obtain an advisory ruling from the Justices of the Supreme Judicial Court on "important questions of law, and upon solemn occasions." The memo flags that there is a significant body of law on when a "solemn occasion" exists that provides a sufficient basis for the Justices to take the unusual step of offering an advisory opinion, but does not itself resolve where any given budget question would fall.

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/2003/ag_20030128.pdf

Original opinion text

Initiated Bills and Competing Measures

The competing measure requirement. Proposed legislation on a subject addressed in an initiated bill that is before the Legislature must be sent out to the voters as a competing measure under the following provision of Article IV, Part 3, Sec. 18(2) of the Maine Constitution: "The measure thus proposed, unless enacted without change by the Legislature at the session at which it is presented, shall be submitted to the electors together with any amended form, substitute, or recommendation of the Legislature, and in such manner that the people can choose between the competing measures or reject both."

Determining whether proposed legislation is a competing measure. A detailed review of both the initiated bill and the legislation in question is necessary to determine when the competing measure requirement is triggered. The Law Court has held that a bill that deals broadly with the same general subject matter, particularly if it deals with it in a manner inconsistent with the initiated measure so that the two cannot stand together, is a competing measure within the meaning of the Constitution. Farris ex rel. Dorsky v. Goss, 143 Me. 227 (1948). The Justices have offered the opinion that a statute designed to "fade away" and not take effect in the event an initiated bill is approved by the voters would not avoid the competing measure requirement and must be submitted to the voters before it can become effective. Opinion of the Justices, 680 A.2d 444 (Me. 1996).

Emergency legislation. The competing measure requirement does not deprive the Legislature of its authority under Art. IV, Part 3, Sec. 16 to enact emergency legislation immediately necessary for the preservation of the public peace, health or safety. McCaffrey v. Gartley, 377 A.2d 1367 (Me. 1977). The Law Court has held that tax legislation can properly be the subject of emergency legislation even though the funds raised thereby will not be required or become available before the expiration of the ninety day period required for non-emergency legislation to become effective. Morris v. Goss, 147 Me. 89 (1951). However, the Justices have warned that the fact that an initiated bill is pending does not by itself constitute an emergency within the meaning of the Constitution. Opinion of the Justices, 680 A.2d 444 (Me. 1996).

Initiated bills requiring expenditures beyond appropriations. Initiated measures approved by the voters normally take effect 30 days after the referendum results are announced by the Governor (unless the terms of the initiative provide another date). However, Art. IV, Part 3, Sec. 19 provides that "any such measure which entails expenditure in an amount in excess of available and unappropriated state funds shall remain inoperative until 45 days after the next convening of the Legislature in regular session, unless the measure provides for raising new revenues adequate for its operation."

Requesting an Opinion of the Justices. If questions arise during the Legislature's consideration of budget proposals that impact its ability to enact a non-emergency budget, it may be possible to request an advisory opinion from the Justices of the Supreme Judicial Court under Art. VI, Sec. 3 of the Maine Constitution, which provides: "The Justices of the Supreme Judicial Court shall be obliged to give their opinion upon important questions of law, and upon solemn occasions, when required by the Governor, Senate or House of Representatives." There is a significant body of law on the question of when a "solemn occasion" exists that provides a sufficient basis for the Justices to take the unusual step of offering an advisory opinion.

Prepared by Linda M. Pistner, Chief Deputy AG
January 28, 2003