237 A.3d 882
Me.2020Background
- CMP sought and the Maine Public Utilities Commission (PUC) granted a certificate for the 145-mile New England Clean Energy Connect (NECEC) transmission project; the Law Court affirmed the PUC decision in NextEra Energy Res., LLC v. Me. Pub. Utils. Comm’n.
- Opponents gathered and the Secretary of State verified sufficient petition signatures for a citizens’ initiative styled as a "resolve" directing the PUC to amend its May 3, 2019 order, find no public need, and deny the certificate.
- Avangrid (CMP’s parent), joined by intervenors, sued the Secretary seeking (1) a declaratory judgment that the initiative exceeds the people’s direct-legislation power and usurps executive/judicial functions (and is a forbidden special law) and (2) an injunction to keep the measure off the November 2020 ballot.
- The Superior Court dismissed the complaint as not ripe for pre-election review; Avangrid appealed and the Secretary and initiative proponents cross-appealed.
- The Maine Supreme Judicial Court held pre-election review is proper for the narrow question whether an initiative’s subject matter falls within the people’s constitutional initiative power and concluded the NECEC resolve exceeds that power because it directs the PUC to reverse an adjudicatory decision; the Court remanded for a declaratory judgment and declined to order injunctive relief given the Secretary’s assurance he will not place the invalid measure on the ballot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether subject-matter review of an initiative is ripe pre-election | Avangrid: courts may decide whether an initiative falls within the people’s initiative power before election | Proponents: substantive challenges are not ripe; Secretary: narrow role only to validate petitions | Court: Ripeness permitted for the narrow question whether subject matter is within initiative power (pre-election review appropriate) |
| Whether a resolve directing the PUC to amend and reverse its adjudicatory order is "legislation" within art. IV, pt. 3, § 18 | Avangrid: the resolve usurps executive/quasi-judicial functions and is not legislation | Proponents: regulation of utilities is legislative; Legislature can interpose itself; initiative labels it a "resolve" | Court: Not legislation—the initiative would command reversal of a particular adjudicatory agency decision and thus exceeds citizens’ legislative power |
| Separation of powers / usurpation of executive and judicial functions | Avangrid: initiative improperly directs agency adjudication and intrudes on executive/judicial roles | Proponents: Legislature delegated regulatory authority; citizens can propose legislation affecting utilities | Court: Initiative would interfere with the PUC’s executive/quasi-judicial factfinding and adjudication, violating separation of powers; citizens cannot use initiative to reverse an adjudicated case |
| Need for injunctive relief to keep measure off ballot | Avangrid: injunctive relief required to prevent submission of invalid measure | Secretary: injunctive relief unnecessary; he pledges to comply with a court declaration | Court: Declared initiative unconstitutional for ballot inclusion and remanded for declaratory judgment; declined to issue injunction given Secretary’s assurance |
Key Cases Cited
- NextEra Energy Res., LLC v. Me. Pub. Utils. Comm’n, 227 A.3d 1117 (Me. 2020) (Law Court affirmed PUC certificate for NECEC)
- McGee v. Sec’y of State, 896 A.2d 933 (Me. 2006) (initiative power construed liberally to facilitate popular legislation)
- Wagner v. Sec’y of State, 663 A.2d 564 (Me. 1995) (courts may decide whether initiative proposes permissible subject matter, but decline to adjudicate substantive constitutionality pre-enactment)
- Lockman v. Sec’y of State, 684 A.2d 415 (Me. 1996) (ripeness requires a real and substantial controversy)
- Moulton v. Scully, 89 A. 944 (Me. 1914) (a "resolve" may have the force of law and is legislative in nature)
- Friends of Cong. Square Park v. City of Portland, 91 A.3d 601 (Me. 2014) (factors distinguishing legislative from executive/administrative acts in initiative context)
- Grubb v. S.D. Warren Co., 837 A.2d 117 (Me. 2003) (Legislature may not disturb a final adjudicatory decision as to the parties)
- Auburn Water Dist. v. Pub. Utils. Comm’n, 163 A.2d 743 (Me. 1960) (history of PUC delegation and limits on legislative vs. administrative authority)