Maine Supreme Court Considers Constitutionality of Janet Mills’ Proclamation Calling a Special Legislative Session in 2023

The Maine Supreme Court heard oral arguments Wednesday afternoon in a case concerning the constitutionality of Gov. Janet Mills’ (D) decision to call the Legislature back into session this past spring using powers reserved for “extraordinary occasions.”

The dispute behind this case centers around the series of procedural moves made by Gov. Mills, Senate President Troy Jackson (D-Aroostook), and Speaker of the House Rachael Talbot Ross (D-Portland) that allowed for the adoption of a party-line budget.

Under Maine’s constitution, bills are typically able to be passed by a simple majority and take effect 90 days after adjournment.

Bills with an “emergency” designation, however, go into effect as soon as they are signed into law by the governor, but in order to pass, they must receive support from at least two-thirds of both chambers.

In order to avoid the risk of a funding gap and potential government shutdown in 2023, lawmakers either had to pass a bipartisan, emergency budget or adjourn early so that the 90-day window elapsed before the end of the fiscal year.

The latter of these two scenarios ultimately played out, with Mills going on to issue a proclamation calling the Legislature back into session in response to the “extraordinary occasion arising out of the need to resolve many legislative matters pending at the time of the adjournment.”

According to the plaintiffs in the case heard Wednesday by the state’s Supreme Court, this series of events represented an unconstitutional coordinated effort between legislative leadership and the governor to “dictate the terms of legislative sessions” by “improperly delegat[ing] legislative constitutional authority to the executive branch.”

Those taking legal against Mills, Senate President Jackson, and House Speaker Ross include several Maine residents, the non-profit organization Respect Maine, and lawmakers Rep. Shelley Rudnicki (R-Fairfield) and Rep. Randall Greenwood (R-Wales).

During Wednesday’s oral arguments, Carl E. Woock — arguing on behalf of the plaintiffs — was questioned almost exclusively on the issues of standing and injury. (Full Disclosure: Woock is an attorney with Steve Smith, who advertises with the Maine Wire.)

Chief Justice Valerie Stanfill pushed Woock to explain the basis for the plaintiffs’ standing in this case, focusing primarily on the legal theory behind their arguments.

Woock responded by honing in on the specific circumstances underlying this case, emphasizing that the plaintiffs are not taking issue with the governor’s ability to override legislative decisions in a legitimate manner, but rather with Mills’ alleged misuse of power to skirt the state’s constitutionally-prescribed legislative process.

Justice Andrew Mead pressed Woock to identify the specific injury suffered by plaintiffs as a result of this conduct.

In response, Woock focused almost exclusively on Rep. Rudnicki and Rep. Greenwood, arguing that Mills’ decision to call a special session illegitimately diminished their vote to adjourn.

Justice Wayne Douglas asked Woock if his theory would allow lawmakers to claim standing when the governor vetoes bills they voted to support.

Woock explained that, according to his legal theory, there is a material difference between the legitimate use of executive power to override legislative decisions — and by extension any given individual lawmaker’s vote — and that which is done disingenuously to skirt a preset process.

The defendants’ attorney — Kimberly L. Patwardhan — was mostly asked about the extent of the governor’s discretion to call for a special session under her legal theory, as well as what the limits are on what can be considered an “extraordinary occasion.”

Central to Patwardhan’s case before the Court, however, was that the governor effectively has unlimited power to call a special session of the Legislature.

She argued that determining what constitutes an “extraordinary occasion” is an entirely subjective process and that the governor possesses the sole authority to make such a judgement.

According to Patwardhan’s understanding, this means that there is no room for the the judicial branch to review a governor’s decision to call a special session in response to an “extraordinary occasion.”

Justice Mead asked Patwardhan to clarify the limits of this theory, questioning if she were arguing that there would be no recourse if a governor decided to call a special session for an obviously illegitimate or ridiculous reason.

Patwardhan responded by saying that even under those circumstances, the courts would not be able to exercise judicial review. Instead, she argued, the proper check on the governor’s power with lies with the Legislature, as lawmakers would have the prerogative to immediately re-adjourn if they felt the governor had acted improperly in calling them back into session.

In bringing this legal action, the plaintiffs sought, among other things, to have the courts declare Mills’ proclamation reconvening the Legislature unconstitutional for lack of an “extraordinary occasion,” to halt the legislative work of the first special session, and to nullify anything passed during this time.

As of now, it remains to be seen how the Maine Supreme Court will rule in this case.