AUGUSTA – The legal battle between Gov. Paul LePage and the Legislature over 65 disputed laws is boiling down to whether lawmakers properly extended the legislative session on June 17 and whether a temporary adjournment on June 30 prevented the governor from vetoing the bills.
Those two arguments were the focus of response briefs filed by attorneys for the Legislature and the governor’s office in Maine Supreme Judicial Court on Wednesday, setting the stage for Friday’s oral arguments before the court. The court will ultimately determine whether it will intervene in the dispute, and if so, decide the fate of the 65 new laws.
Those measures affect a range of policy areas, including General Assistance for asylum seekers, expanded use of a medication to treat drug overdoses, property tax breaks for Vietnam War veterans and birth control for MaineCare recipients.
The briefs filed Wednesday were responses to more detailed arguments presented by both sides on Friday. In Friday’s filings, Timothy Woodcock, the attorney for the Legislature, provided sworn statements in which House and Senate staff members said they sent emails and text messages to the governor’s office saying they would be available to receive any vetoes he wanted to file after the Legislature adjourned on June 30, but that the governor did not act within the 10 days he had to respond.
The affidavits directly contradict LePage’s assertion that the Legislature’s adjournment “prevented” him from returning the vetoes until lawmakers reconvened on July 16. The definitions of “prevent” and “adjournment” appear central to the dispute, which could have significant political consequences depending on the outcome. Both words are found within a key provision of the Maine Constitution that describes the governor’s veto authority. It says that the governor has 10 days – excluding Sundays – to veto a bill or it “shall have the same force and effect as if the governor had signed it unless the Legislature by their adjournment prevent its return.”
Cynthia Montgomery, LePage’s legal counsel, originally argued that the governor was prevented from returning the bills because lawmakers had adjourned. The Legislature countered that the staff for the Clerk of the House and the Secretary of the Senate, which have the legal authority to accept the vetoes, had made themselves available, and therefore, the bills became law.
Woodcock wrote that the staff affidavits showed that “in addition to being empowered to receive bills returned by the governor, they were also empowered to discharge the Legislature’s constitutional duties with respect to those bills.”
Montgomery countered by writing that the governor isn’t arguing that he was physically prevented from returning the bills during the adjournment.
“Prevented,” she wrote, is a “term of art.” The Legislature’s adjournment on June 30 prevented him from making a political decision to veto the bills or allow them to become law, she wrote. When lawmakers returned to complete their business on July 16, she argued, they denied him a three-day window to determine the fate of the bills.
“Fundamentally, the veto is a political decision and the (governor) is given the three-day period in order to assess the political climate before exercising this authority,” Montgomery wrote. “By adjourning indefinitely and dispersing its members, the Legislature frustrates the effective exercise of the veto because it is impossible to take the political pulse of the Legislature – there is no pulse.”
The LePage administration has also argued that the Legislature did not properly extend the legislative session on June 17, the date of its originally scheduled adjournment. If the court agrees, votes taken after June 17 could be in question. Such votes include the Legislature’s vote to override LePage’s veto of the state budget and passage of a law that allows Mainers to carry concealed handguns without a permit.
Chief Justice Leigh Saufley invited lawyers for the governor, the state Senate and House of Representatives and any other interested parties to submit legal arguments before the close of court last Friday.
Saufley and five other justices of the state’s highest court will hear arguments in the case in the Cumberland County Courthouse on Friday, but have set no timetable on when they might issue an opinion. The court’s seventh judge, Justice Jeffrey Hjelm, has recused himself.
When LePage last sought an opinion from the Supreme Judicial Court in a dispute with Attorney General Janet Mills, the justices ruled in March that one of the two questions LePage posed reached the threshold for what’s known as a solemn occasion – a threshold for the court to take up a legal question and issue a ruling – while the other did not.
The 65 bills that LePage is seeking to veto were among 70 that most legislative leaders and Mills say have become law because LePage missed his 10-day window. Each piece of legislation has been written into law by the Legislature’s Office of the Revisor of Statutes.
LePage then asked the Supreme Judicial Court to hear his challenge of the veto denials. Unless the court sides with LePage, the bills that have become law will remain so.
Three lawyers from the ACLU of Maine urged the justices to issue an opinion and find that the governor missed his opportunity to file the 65 vetoes.
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