396 A.2d 219 | Me. | 1979
To the Honorable Senate of the State of Maine:
In compliance with the provisions of Article VI, section 3 of the Constitution of Maine, we, the undersigned Justices of the Supreme Judicial Court, respectfully submit the following reply to the questions propounded to us by the Honorable Senate on January 3, 1979, which were received by us on January 3, 1979.
The Justices of the Supreme Judicial Court of Maine have historically shown a conscientious desire to answer questions propounded to them by the executive or legislative departments of government pursuant to Article VI, section 3 of the Constitution of Maine.
Recognizing the extraordinary nature of advisory opinions, the draftsmen of our Maine Constitution, in 1819, following the model of the Massachusetts Constitution of 1780, empowered the Justices of the Supreme Judicial Court to render such opinions only “upon important questions of law” and only “upon solemn occasions”
Turning from those general principles to the questions propounded to us on January 3,1979, we regretfully conclude that constitutional limitations on our power to advise another branch of government in nonliti-gated matters prevent us from answering. If we were to address and express an opinion on the merits of those questions, we would in several respects do violence to the limitations imposed upon us by the Consti
Although the Senate, a body constitutionally authorized to request advisory opinions, has propounded the questions before us, the Senate has no function or duty to perform in regard to the subject matter of the questions, namely, the election of the Attorney General. The Attorney General is chosen neither by the Senate nor by the House nor by a joint session of the Senate and House. Rather, under the Maine Constitution, Article IX, section 11, the Attorney General is chosen “by joint ballot of the Senators and Representatives in convention.” (Emphasis added) Thus, the Senate has asked us questions in regard to a function constitutionally committed not to the Senate, but to the convention of those individuals who have qualified as Senators and Representatives. The Constitution does not empower that convention to address questions to the Justices in regard to its essentially political duty of electing the so-called constitutional officers, including the Attorney General. In a similar circumstance in 1933, the Justices advised the Senate that the Constitution of Maine did not authorize the Justices to answer questions propounded by the Senate that related to the powers and duties, not of the Senate, but of a proposed constitutional convention.
Furthermore, on its face, the statute that is the subject of the questions, 5 M.R.S.A. § 15(2), while imposing prohibitions and possible penalties upon any former partner of “a person who is currently a member of the classified or unclassified service employed by an executive agency,” whoever such “person” is by the statute intended to be, imposes no prohibitions or penalties whatever upon that person himself. Thus, even if such “person” includes the Attorney General, the questions propounded do not relate to the legal qualifications of that person to discharge the duties of that office. Rather, the questions seek the opinion of the Justices as to possible peripheral consequences on his former partners of such person’s serving as Attorney General. Also, the outcome of the political process in the convention of Senators and Representatives in choosing among the potential candidates for the office is still hidden in the unknown future. Thus, whether the application of 5 M.R.S.A. § 15(2) will ever come in issue remains in the realm of speculation. As the Justices stated in a comparable situation, the questions here posed are “at a stage yet too tentative, hypothetical and abstract to have achieved the ‘live gravity’ necessary for the existence of a ‘solemn occasion’.”
While we recognize that some of those charged with the responsibility of choosing an Attorney General may feel inhibited in making a choice because of the circumstances narrated in the preamble to the questions propounded, this fact does not give rise to the constitutional occasion authorizing us to answer them. We find directly relevant the point made in 1975 by the Justices
Finally, at their root, all of the questions seek from the Justices an interpretation of an existing statute. This creates grave doubts as to the existence of a solemn occasion. First, the Legislature in any event may by amendatory enactment eliminate any ambiguity it finds in an existing statute. Such amendment would have the force of law.
For all these reasons, we conclude that we lack constitutional power, and therefore must respectfully decline, to answer the questions propounded.
. Article VI, section 3 reads as follows:
“Section 3. The Justices of the Supreme Judicial Court shall be obliged to give their opinion upon important questions of law, and upon solemn occasions, when required by the Governor, Senate or House of Representatives.”
. Article III, entitled “Distribution of Powers,” reads as follows:
“Section 1. The powers of this government shall be divided into three distinct departments, the legislative, executive and judicial.
“Section 2. No person or persons, belonging to one of these departments, shall exercise any of the powers properly belonging to either of the others, except in the cases herein expressly directed or permitted.”
. While the phrase “solemn occasion” is not expressly defined in the Constitution, it has been often interpreted, usually in negative fashion, in various Opinions of the Justices in both Maine and Massachusetts.
. The Council was eliminated as an authorized requesting body by Amendment XCIV to the Maine Constitution, effective November 18, 1964.
. Martin v. Maine Savings Bank, 154 Me. 259, 147 A.2d 131 (1958).
. Opinion of the Justices, 132 Me. 491, 167 A. 176 (1933). See also Opinion of the Justices, 147 Me. 410, 105 A.2d 454 (1952).
. Opinion of the Justices, Me., 330 A.2d 912, 915 (1975).
.Opinion of the Justices, Me., 339 A.2d 483, 492 (1975).
.Opinion of the Justices, Me., 355 A.2d 341, 390 (1976); Opinion of the Justices, Me., 339 A.2d 483, 488 (1975). See also Answer of the Justices, Mass., 374 N.E.2d 1345, 1346-47 (1978).
. Answer of the Justices, Mass., 374 N.E.2d 1345, 1347 (1978). See also Opinion of the Justices, 125 Me. 529, 539, 133 A. 265, 270 (1926) (Answer of Dunn, J., later Dunn, C. J.).
. Opinion of the Justices, 135 Me. 519, 522, 191 A. 485, 487 (1936).