Can the Maine Legislature cut its own special-session per diem pay by passing a joint order instead of a statute?
Plain-English summary
On January 30, 2004, both chambers of the Maine Legislature approved a Joint Order stating that no extra per-diem compensation would be paid for a special session held before April 22, 2004, on the theory that compensation for the second regular session through that date was already established by statute and any additional payment would amount to an unconstitutional mid-term raise. A group of senators asked the AG whether the Joint Order was enforceable.
The AG concluded it probably was not. Article IV, Part 3, § 7 of the Maine Constitution requires legislators to receive compensation "as shall be established by law." The phrase "established by law," interpreted twice by the Justices of the Supreme Judicial Court in advisory opinions (1953 and 1957), means an enacted statute, not a joint order. The existing statute, 3 M.R.S.A. § 2, in its sixth paragraph, says "in addition to the salary paid for the first and 2nd regular sessions of the Legislature, when a special session is called, the members of the Senate and House of Representatives shall each be compensated $100 for every day's attendance." That language is clean and on its face requires the per diem regardless of whether the special session falls before or after the second regular session's adjournment deadline. A Joint Order cannot rewrite statutory text.
The AG then addressed the follow-up question: short of an emergency enactor, could the Legislature deny the per diem? Answer: possibly, through a retroactive statutory amendment to § 2 effective January 30, 2004. The traditional rule against retroactive impairment of vested rights (Fournier v. Fournier, 376 A.2d 100 (Me. 1977)) applies. The Law Court has upheld retroactive amendments (State v. LVI Group, 1997 ME 25; Tompkins v. Wade & Searway Construction, 612 A.2d 874 (Me. 1992)) in some contexts. The unusual posture here, where the Legislature would be taking away its own members' future per diem, was without direct precedent. The AG noted that courts might be more willing to allow the Legislature to take away pay from itself than from third parties, but could not predict the outcome with certainty.
The AG also addressed and rejected an argument that Article IV, Part 3, § 16 could authorize a joint order de-appropriating the per diem funds. Section 16 permits joint resolutions for legislative business and salary payment under existing law, but does not authorize the Legislature to eliminate a per diem already established by statute.
Currency note
This opinion was issued in 2004. 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: Why does "established by law" require a statute?
A: The Maine Supreme Judicial Court interpreted "established by law" in Article IV, Part 3, § 7 to mean an act or resolve with the Governor's signature. Two advisory opinions (1953 and 1957) involving compensation increases reached that conclusion. The phrase covers both increases and decreases.
Q: Could the Legislature pass an emergency act instead?
A: Yes. An emergency enactor (a statute with an emergency clause that takes effect immediately, two-thirds vote required) is the standard tool when the Legislature wants a statutory change that bypasses the 90-day delayed effective date.
Q: Why was a retroactive amendment uncertain?
A: Because retroactive legislation that impairs vested rights can violate due process under the Maine Constitution's Art. I, § 6-A. The LVI Group three-part test (public welfare purpose, appropriate means, not arbitrary) has been applied to validate certain retroactive statutes. The unique self-affecting nature of legislators-cutting-their-own-pay had no direct precedent.
Q: What's the difference between a joint order and a statute?
A: A joint order is a parliamentary instrument expressing the position of both chambers but not enacted as law. A statute (act or resolve) is signed by the Governor and codified. The constitutional phrase "established by law" reaches only the latter.
Q: What about the special-session per diem statute?
A: 3 M.R.S.A. § 2 says "in addition" to the regular session salary, members get $100 per day for attendance at a special session. The "in addition" phrase has no temporal qualifier. The Legislature in the Joint Order tried to read one in (no extra pay for a special session held during the calendar period of a regular session for which legislators were already paid). The AG concluded the plain meaning of the statute did not support that reading, citing Harding v. Wal-Mart Stores, Inc., 2001 ME 13.
Background and statutory framework
Article IV, Part 3, § 7 of the Maine Constitution governs legislative compensation. It requires that compensation be "established by law" and historically has been construed to require a statute. Section 16 of the same Part permits joint resolutions on legislative business and salary payment under existing law, but does not authorize a joint order to override a statutory pay scheme.
3 M.R.S.A. § 2 sets the compensation framework. The first paragraph fixes the second-year-of-the-biennium pay ($7,725 at the time). The second paragraph requires that the second regular session adjourn no later than the third Wednesday in April. The sixth paragraph adds the $100 per-day special-session per diem.
The Maine Supreme Judicial Court's plain-meaning rule (Harding v. Wal-Mart Stores, Darling's v. Ford Motor Co.) governs interpretation. Hallissey v. Sch. Admin. Dist. No. 77, 2000 ME 143, allows consideration of statutory context when interpretation is needed, but where the language is clean on its face the court does not look behind it. The AG concluded the "in addition" phrase was clean.
The retroactivity analysis relied on Fournier v. Fournier, State v. LVI Group, Tompkins v. Wade & Searway Construction, and Heber v. Lucerne-in-Maine Village Corp. The Court allows retroactive amendments where the change is clarifying and the affected party's reliance is limited; the special problem here was that the Legislature would be affecting its own members.
Citations and references
Maine Constitution and statutes:
- Me. Const. Art. IV, Pt. 3, § 7
- Me. Const. Art. IV, Pt. 3, § 16
- 3 M.R.S.A. § 2
Cases:
- Opinion of the Justices, 148 Me. 528 (1953)
- Opinion of the Justices, 152 Me. 302 (1957)
- Harding v. Wal-Mart Stores, Inc., 2001 ME 13, plain meaning rule
- Fournier v. Fournier, 376 A.2d 100 (Me. 1977), traditional vested-rights rule
- State v. LVI Group, 1997 ME 25, retroactive statute upheld
- Tompkins v. Wade & Searway Construction, 612 A.2d 874 (Me. 1992), same
Source
- Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
- Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/2004/ag_20040407.pdf
Original opinion text
MAINE STATE LEGISLATURE
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04-2
REGIONAL OFFICES:
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6 STATE HOUSE STATION TEL: (207) 496-3792
AUGUSTA, MAINE 04333-0006 FAx: (207) 496-3291
April 7, 2004
Honorable Richard Bennett Honorable Richard Nass
Honorable Kenneth Blais Honorable Christine Savage
Honorable David Carpenter Honorable Tom Sawyer
Honorable Paul Davis Honorable Kevin Shorey
Honorable Carolyn Gilman Honorable Karl Turner
Honorable Richard Kneeland Honorable Carol Weston
Honorable Kenneth Lemont Honorable Chandler Woodcock
Honorable Arthur Mayo Honorable Edward Youngblood
Honorable Betty Lou Mitchell
Maine State Senate
121 st Maine Legislature
3 State House Station
Augusta, ME 04333
Dear Senators:
By letter dated February 18, 2004, you have raised questions about the Joint
Order concerning legislators' compensation that was approved by both chambers of the
Legislature on January 30 th ("the Order"). The Order states that compensation for the
second regular session through April 21 is established by statute, and concludes that "any
compensation during the same period for a special session would in the opinion of the
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the Maine Constitution ... " It then provides that "there shall be no increase in
compensation for service in any special session ... held prior to April 22, 2004" above the
pay established by statute for the second regular session.
Your first question is: "Was the Order passed by the Legislature constitutional
and enforceable?" We believe that a court would likely answer this question in the
negative because the Maine Constitution requires that legislative compensation be
established by statute and the per diem requirement in the existing statute does not
distinguish between special sessions held before rather than after a regular session
adjournment deadline.
Primed on Recyck:d P:::v-r
Article IV, Part 3, §7 of the Constitution states that legislators shall receive such
compensation "as shall be established by law ... " The lan~age "established by law" has
twice been interpreted by the Justices of the Supreme Judicial Court to require enactment
of an act or resolve, with the Governor's signature. See Opinion of the Justices, 148 Me.
528 (1953), and Opinion of the Justices, 152 Me. 302 (Me. 1957). While these opinions
are not squarely on point because they each involve an increase in legislative ·
compensation, we believe that they provide sufficient guidance to support the conclusion
that the terms of the Order must be enacted by statute if they are to be enforceable. 1 The
question then becomes whether the compensation provisions of the Order are consistent
with existing statute, or require a statutory amendment that cannot be accomplished by
joint order. ·
Compensation payable to legislators is detailed in 3 M.R.S.A. § 2 (1989 & Supp
2003), three parts of which are relevant to the issue before us. The first paragraph of Title
3, section 2 specifies that each member of the House and the Senate "is entitled
to ... $7,725 in the 2nd year of each biennium." The second paragraph of section 2
requires that "the 2nd regular session of the Legislature shall adjourn no later than the 3rd
Wednesday in April." 2 The sixth paragraph of section 2 provides, [i]n pertinent part, that
"in addition to the salary paid for the first and 2 nd regular sessions of the Legislature,
when a special session is called, the members oft.1ie Senate and House of Representatives
shall each be compensated $100 for every day's attendance: .. "
The Order is based on reading these three provisions together to mean that the
Legislature did not intend for legislators to be paid the per diem rate for a special session
that occurs during the calendar period of a regular session for which they have already
been paid. However, the primary rule of statutory construction requires that courts give
effect to the plain meaning of a statute. Harding v. Wal-1vfart Stores, Inc., 2001 NIB 13,
<JI 9, 765 A.2d 73, 75. The "in addition" phrase in the sixth paragraph of section 2 on its
face appears to require that the $100 per diem payment applies during· any special session
without limitation as to when it occurs. 3 Since the special session per diem requirement
1
It has been suggested that Article IV, Part 3, §16 of the Maine Constitution provides a basis for a joint
order or resolution de-appropriating funds for the $100 per diem payment during the current special session
on the basis that such an order would "pertain solely to facilitating the performance of the business of the
Legisiarure, ... or appropriate money therefor or for the payment of salaries fixed by law" and therefore
may become effective prior to 90 days after recess of the legislative session in which it was passed. We do
not believe that a court would interpret the language of section 16 in this manner. Because the language
refers only to appropriating money for the payment of salariesjhed by law, we think it unlikely that a court
would construe it to encompass, by implication, authority to eliminate a per diem payment through de-
appropriation. Funher, , to read section 16 as providing authority to the Legislature to de-appropriate funds
for legislators' salaries previously "fixed by law" would effectively negate the clear mandate in Artit1e [V,
Part 3, §7.
2
This paragraph also authorizes two consecutive five-day extensions upon a two-thirds vote of each House;
provision is also made for one additional day to consider vetoes.
3
It is certainly the case that when interpreting statutes, courts "consider the whole statutory scheme for
which the section at issue forms a part so that a harmonious result, presumably the intent of the Legislature,
may be achieved." Hallissey v. Sch. Admin. Dist. No. 77, 2000 ME 143, ~14, 755 A.2d 1068, 1073. See
also Darling's v. Ford ivfotor Co., 1998 ME 232, ~5, 719 A.2d 111. 114 (courts seek to give effect to the
intent of the Legislamre by examining plain meaning of statutory language and considering the language in
context of the whole statutory scheme). However, there is no conflict among these provisions, :is currently
in section 2 contains no exception for such sessions if held before the required statutory
adjournment date of a regular session, we believe that a court would likely conclude that
the per diem is payable and that any contrary clarification of this provision would require
a statutory amendment to be consistent with Art. IV, Pt. 3, § 7.
Your second question is this: "Other than passing an emergency enactor, is there
any other way that the Legislature could constitutionally deny legislators the extra
compensation called for by law?" While the answer to this question is somewhat unclear,
the Legislature may be able to enact an amendment to Title 3 M.R.S.A. §2, for example,
stating that the per diem pay for a special session does not apply during the period
specified in the statute for a first or second regular session, with a retroactivity clause
making the change effective as of January 30, 2004. This action would appear to be
·within the authority of the Legislature unless a court concludes that vested rights of
individual legislators are thereby impaired.
The traditional rule is that legislatures lack constitutional power to enact
retrospective laws that impair vested rights. See Fournier v. Fournier, 376 A.2d 100, 102
(rvie. 1977). Where applicable, this restriction on legislative power arises from the due
process clause of the Maine Constitution, Art. I,§ 6-A. As the Law Court explained in
State v. LVI Group, 1997 NIE 25, 'IT 9, 690 A.2d 960, 963, ii.1 determining whether
retroactive application of an enactment violates due process, the analysis employs a three
part test: 1) the object of the exercise must be to provide for the public welfare; 2) the
legislative means employed must be appropriate to the ends sought; and 3) the manner of
exercising the power must not be unduly arbitrary or capricious.
We have found no case directly applicable to the somewhat unusual
circumstances that would be presented by a retroactive amendment to the legislative
compensation statute. It is clear, for example, that the Legislature cannot extinguish an
accrued cause of action for damages; Heber v. Lucerne-in-Jvfaine Village Corp., 2000 NIE
137, 755 A.2d. 1064. However, the Law Court has on several occasions upheld
retroactive statutory amendments against due process or vested rights challenges. In L VI
Group, the Law Court upheld a 1989 amendment to the severance pay statute that was
made retroactive to the statute's 1975 enactment date. That amendment was enacted to
clarify, in response to an adverse Law Court decision, that an "indirect owner" of a
business liable for severance pay included a parent corporation. Similarly, in Tompkins v.
Wade & Searway Construction, 612 A.2d 874 (Me. 1992), the Court upheld a 1991
amendment of the statute defining average weeldy wage to exclude certain fringe benefits
that was made applicable to injuries prior to its effective date, again to clarify the law in
response to a contrary interpretation of the Law Court (in.Ashby v. Rust Engineering, 559
A.2d 774 (Me. 1989)).
Moreover, a court might not even apply a vested rights analysis to a situation such
as this where the Legislature, by amending section :2, arguably would be taking away its
own right to a per diem payment, as opposed to altering the legal rights or obligations of
written. to harmonize. Where the language is clear on irs face, the court need not. and will not. look behind
the language m discern irnent as a guide to interprerntion.
private parties, or of members of another branch of government. It is possible that a court
would conclude that the Legislature may take away from its own members or from itself
as a body that which it could not take away from others. In a period of significant budget
shortfalls, the courts may be reluctant to find that the Legislature lacks the authority to
undertake a clarification of this nature as part of its budget balancing efforts.
As we have found no case law on point regarding legislative actions affecting only
legislators, however, we cannot predict vvith any certainty the outcome of a legal
challenge to a retroactive adjustment to the legislative compensation statute.
b
G. STEVEN ROvVE
Attorney General
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