McCaffrey v. Gartley , 377 A.2d 1367 ( 1977 )

GODFREY, Justice.

In accordance with section 18 of article IV, part 3, of the Maine Constitution, a duly initiated bill to repeal the uniform property tax was presented to the 108th Legislature at its first session.¹ Where the Legislature does not enact an initiated bill without change, section 18 provides that the bill shall be submitted to the electorate at a special election. By proclamation of the Governor, that special election will be held on December 5. If approved by the electorate, the bill would repeal outright four provisions of the state tax law establishing or relating to the uniform property tax and one cognate provision of the school funding law, and it would replace two particular provisions of the school funding law with a single new provision.

After receipt of the initiative bill, the 108th Legislature passed successively, as emergency legislation, two inconsistent measures² each amending section 451(2) of the uniform property tax law. The earlier measure merely moved the annual deadline for the Legislature to set the uniform property tax rate from April 1 to April 14 of each year. The later measure, chapter 109, which called for a deadline of April 1, deleted a provision establishing the rate for the tax at 12.5 mills after June 30, 1977, and replaced it with a provision that the Legislature should set the rate in accordance with title 20, section 3747; i. e., to yield revenues not exceeding fifty per cent of the State’s basic education allocation as established by the Legislature.³ Later in the session it enacted, as section 131-A of chapter 564, “An Act to Make Additional Corrections of Errors and Inconsistencies in the Laws of Maine”, a measure repealing and replacing the same section as amended, of the uniform property tax law. Section 131-A again made April 14 the deadline for the Legislature to set the uniform property tax rate and provided, as chapter 109 had, that the Legislature would set the rate in accordance with title 20, section 3747. The statute to correct errors and inconsistencies in which the changes were included was emergency legislation, duly passed by two-thirds vote, and therefore, by virtue of section 16 of article IV, part 3, of the Maine Constitution, took effect immediately when approved by the Governor on July 23.⁴

The Secretary of State intends to include on the December 5 initiative ballot an option to vote for the amendment contained in section 131-A of the errors and inconsistencies act on the ground that it is a measure competing with the initiative bill. The result would be a ballot with three choices for the voters: to vote for the initiated bill, for the amendment enacted as section 131-A, or for the pre-1977 version of the statutory provisions that the initiated bill seeks to repeal.

Plaintiffs filed this action against the Secretary of State seeking a declaratory judgment that the proposed ballot fails to conform to certain requirements of the Maine Constitution. Plaintiffs allege that they are citizens of Maine who signed the initiating petitions, that they are voters entitled to vote on the question, and that they are owners of real property that is liable for payment of taxes assessed under the uniform property tax statutes. They assert that the 1977 amendments are not an “amended form” or “substitute” or “recommendation” of the Legislature that should go on the ballot as a competing measure under section 18 of article IV, part 3, of the constitution.⁵ They further assert that the alleged failure to follow required procedures deprives them of their right to initiate legislation and have the measure presented “concisely and intelligibly” as required by section 20 of article IV, part 3, of the constitution.⁶ The case is before this court on report from the Superior Court, Kennebec County, pursuant to an expedited appeal, the Superior Court not having passed on the merits of the dispute.

Standing

This action brings before the Court the standing issue noted but not resolved in Kelly v. Curtis, 287 A.2d 426 (Me.1972). Although the Secretary of State has not questioned standing, the issue will still be considered on appeal. Nichols v. City of Rockland, 324 A.2d 295 (Me.1974).

[2] This Court must determine whether plaintiffs have “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions”. Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663, 678 (1962). Long before Baker v. Carr, the Supreme Court had acknowledged that a political interest, though shared with a large segment of the public, could serve in an otherwise appropriate case as a basis for standing. Smiley v. Holm, 285 U.S. 355, 52 S.Ct. 397, 76 L.Ed. 795 (1932); Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939). The Maine Supreme Judicial Court, also, has recognized that a claimant asserting a political right may have standing. In Jones v. Maine State Highway Commission, 238 A.2d 226, 229 (Me.1968), we said,

“Plaintiff does not allege financial ‘damage,’ actual or threatened. The removal of tolls casts the financial responsibility of maintaining the bridge and retiring its bonds upon ‘the general highway fund,’ the source of which is not direct taxation (23 M.R.S.A. § 1651) and the effect of which upon him, plaintiff seems to concede is minimal. In the language of the day he alleges loss of a civil right, —the right to vote on the removal of the toll charges. If he has been wrongfully deprived of such right, it is a substantial loss and of recognized justiciability.”

In the present case, plaintiffs allege that as voters, property taxpayers, and signers of the initiative they have an interest in assuring the success of the initiative petition. They allege that they have a right under the Maine Constitution to have the question presented according to constitutional requirements and that those requirements include a provision in article IV, part 3, section 20, that the proposal be presented “concisely and intelligibly.” Finally, they claim that the Secretary of State’s plan will not meet those requirements and thus threatens the success of the petition. In these circumstances we must conclude that they have demonstrated the type of particularized interest in this controversy that assures that the issues will be litigated between parties having substantial, adverse interests.

The Merits

We come therefore to the merits of the controversy. The Secretary of State has taken the position that our decision in Farris ex rel. Dorsky v. Goss, 143 Me. 227, 60 A.2d 908 (1948) requires him to treat the amendment by the 108th Legislature of a section of the uniform property tax law as an amended form of, or substitute for, the initiated bill, within the meaning of section 18 of the Maine Constitution, article IV, part 3. In the Dorsky case, an initiated bill had been received by the Legislature but not passed in its original form. Legislation was then passed in the same session which treated the same subject matter as the initiative bill in a manner inconsistent with it so that the two measures could not stand together. We held that such legislation was a “substitute” within the meaning of the constitution. Our decision in Dorsky was, in effect, to require the Secretary to place on the ballot the measure that had passed the Legislature as a measure competing with the initiated bill, so that the people could choose between them or reject both as section 18 provides.

In Dorsky, this court was faced with the problem of determining what sort of legislative action would qualify as a competing measure under section 18. There was serious doubt whether the Legislature was required to designate its measure as an amended form of, or substitute for, the initiated bill or merely enact a measure that was in fact inconsistent with it in order to trigger the requirement of the constitution, article IV, part 3, § 18, that “any amended form, substitute, or recommendation” of the Legislature be placed before the people with the initiative bill itself. We decided in Dorsky that merely enacting inconsistent legislation could be sufficient and, in that case, was sufficient.

Article IV, part 3, section 16 of the Maine Constitution defines the circumstances in which the Legislature may pass emergency legislation and the procedure by which it may do so. Those provisions limit the use of emergency legislation to emergency situations. Morris v. Goss, 147 Me. 89, 83 A.2d 556 (1951). The Legislature may well be confronted with emergencies that require immediate action to avoid injury to the State. In such situations, the Constitution gives the Legislature the flexibility to make its measures effective as soon as approved by the Governor.

The Legislature should be free under our constitution to pass an emergency statute that amends laws challenged by an initiative measure without thereby complicating and confusing the initiative process. Last spring, in an Opinion of the Justices, Me., 370 A.2d 654 (1977), the members of this court noted how important it is that the Legislature have the authority to pass an emergency bill amending legislation that falls within the scope of an initiative and thereby make the amending measure effective immediately. We now hold, as the Law Court, that the Legislature has that authority. If the Legislature desires that a proposal be offered as an amended form of an initiated bill, it may invoke the Dorsky rule by passing a nonemergency measure, inconsistent with the initiated bill, that will be treated like an amended form of, or substitute for, the initiated bill. However, the constitution should not be interpreted as burdening the important emergency legislation process with a rule that designates emergency legislation as a measure competing with an initiative bill.

We believe our conclusion to be consistent with the limitation implicit in the rationale of the Dorsky case and to be in harmony with the special status accorded to emergency legislation in the Maine constitutional arrangements for referendum measures. The members of this court noted that special status in Opinion of the Justices, Me., 370 A.2d 654, 669 (1977), where we said:

“The importance of emergency legislation and the need that it be insulated from premature or ill-conceived disruption is recognized in § 17 of Part Third, Article IV of our Constitution. This section exempts emergency legislation from the referendum process — a process which suspends the effectiveness of laws until the law is ratified by popular election. This constitutional exemption from suspension is particularly important in the area of emergency tax legislation. Morris v. Goss, supra.

“The people may use the initiative process as provided by Article IV, Part Third, § 18 to challenge emergency legislation. But even this section refers only to the people’s power to repeal emergency legislation. No mention is made of their power to suspend existing legislation. To read such a power into section 18 would be to undercut the policies expressly recognized in sections 16 and 17.”

We therefore hold that the Secretary of State was in error in treating the emergency legislation in this case as a competing measure. It should not be placed on the December 5 ballot. The initiated bill, by itself, must be submitted to the electors for acceptance or rejection.

The entry will be:

Judgment for the plaintiffs.

Judgment is declared that the Secretary of State shall not place the amendments to the Uniform Property Tax enacted as Public Laws 1977, chapter 564, section 131-A, on the ballot with the measure initiated by petitions filed with the Secretary of State January 19, 1977, as a competing measure.

Remanded to the Superior Court for entry of judgment in accordance herewith.

POMEROY and WERNICK, JJ., concurred but wrote separate concurring opinions.

All other Justices concurring.

APPENDIX A

Text of Initiated Bill

“STATE OF MAINE

IN THE YEAR OF OUR LORD NINETEEN HUNDRED AND SEVENTY-SIX

AN ACT TO REPEAL THE STATE PROPERTY TAX

Be it enacted by the people of the State of Maine, as follows:

Sec. 1. 20 M.R.S.A. § 3742, first and second paragraphs, as enacted by P.L.1975, C. 660, § 2 are repealed and the following enacted one in place thereof:

It is the intent of the Legislature to provide at least 50% of the cost of operation of' the public schools from general fund revenue sources.

Sec. 2. 20 M.R.S.A. § 3747[8] as enacted by P.L.1975, C. 660, § 2 and amended by P.L.1975, C. 754, § 3 is repealed.

Sec. 3. 36 M.R.S.A. § 451[2] as enacted by P.L.1975, C. 660, § 5 is repealed.

Sec. 4. 36 M.R.S.A. § 452 second paragraph as enacted by P.L.1975, C. 660, § 5 is repealed.

Sec. 5. 36 M.R.S.A. § 453 as enacted by P.L.1975, C. 660, § 5 and P.L.1975, C. 754, § 6 is repealed.

Sec. 6. 36 M.R.S.A. § 453-A, as enacted by P.L.1975, C. 754, § 7 is repealed.

STATEMENT OF FACT

This bill repeals the Uniform State Property Tax and retiirns to the municipalities the authority to set the property tax rate for public school purposes.”

1 . The text of the initiated bill is set forth in Appendix A to this opinion. On January 19, 1977, petitions signed by plaintiffs and other electors, addressed to the 108th Legislature, were filed with the Secretary of State, and on January 26 the- Senate was notified of the petitions.

2 . P.L.1977, ch. 48, § 3 and P.L.1977, ch. 109.

3 . 20 M.R.S.A. § 3747, subsec. 8.

4 . Me.Const. art. IV, pt. 3, § 16 (1976 Supp.):

“No Act or joint resolution of the Legislature, except [certain types of orders or resolutions not pertinent here] shall take effect until ninety days after the recess of the session of the Legislature in which it was passed, unless in case of emergency, which with the facts constituting the emergency shall be expressed in the preamble of the Act, the Legislature shall, by a vote of two-thirds of all the members elected to each House, otherwise direct. An emergency bill shall include only such measures as are immediately necessary for the preservation of the public peace, health or safety; and shall not include [certain matters not pertinent here].”

5 .Me.Const. art. IV, pt. 3, § 18 (1976 Supp.) provides in part, as follows:

“The electors may propose to the Legislature for its consideration any bill, resolve or resolution, including bills to amend or repeal emergency legislation but not an amendment of the State Constitution, by written petition addressed to the Legislature or to either branch thereof .... Any measure thus proposed by electors, the number of which shall not be less than ten percent of the total vote for Governor cast in the last gubernatorial election preceding the filing of such petition, 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.”

6 . The last sentence of Me.Const. art. IV, pt. 3, § 20 (1976 Supp.) provides as follows:

“The full text of a measure submitted to a vote of the people under the provisions of the Constitution need not be printed on the official ballots, but, until otherwise provided by the Legislature, the Secretary of State shall prepare the ballots in such form as to present the question or questions concisely and intelligibly.”