MAINE STATE LEGISLATURE

The following document is provided by the LAW AND LEGISLATIVE DIGITAL LIBRARY at the Maine State Law and Legislative Reference Library http://legislature.maine.gov/lawlib

Reproduced from scanned originals with text recognition applied (searchable text may contain some errors and/or omissions)

LEGISLATIVE RECORD

OF THE One Hundred and Ninth Legislature

OF THE

STATE OF MAINE

Volume I FIRST REGULAR SESSION January 3, 1979 to May 4, 1979 LEGISLATIVE RECORD - SENATE, JANUARY 3, 1979 9

ST ATE OF MAINE Senator-elect was charged with a message to (A) Provide what I am told is an all-time One Hundred and Ninth Legislature the Governor informing him that a quorum of improvement in aid and programs for the el­ JOURNAL OF THE SENATE the Senators-elect was present in the Senate derly. Wednesday, January 3, 1979 Chamber, ready to take and subscribe to the (B) Substantially improved services for Pursuant to the provisions of the Constitution oaths of office required by the Constitution to the retarded and mental health community and and the laws of the State of Maine, the Sen­ qualify them to enter upon the discharge of absorbed seed money programs of community ators-elect to the One Hundred and Ninth Leg­ their official duties. mental health agencies. islature convened in the Senate Chamber and Subsequently, Mr. Katz reported that he had (C) Instituted a more involved and caring were called to order by May M. Ross, Secre­ delivered the message with which he was approach to those in our institutions and the tary of the Senate of the One Hundred and charged and the Governor was pleased to reply pardon. parole and commutation process. Eighth Legislature. that he would attend upon the Senators-elect The results indicate that the experiment of a forthwith for the purpose of administering to Republican Senate, Democratic House and In­ Prayer by Father John Anderson, St. Mary's them the oaths of office required by the Consti­ dependent Governor worked ... not because of Church, Old Town. tution. the efforts of one individual or the efforts of Father ANDERSON: Let us Pray! God Thereupon, the Governor, the Honorable one or more parties, but it worked because you're always a loving Father, who will listen James B. Longley entered and addressed the when the chips were down each came together to our requests. We pray today especially for Senate: and placed the best interests of the people of this assembly, that you will inspire it to con­ Maine first and their own differences second. cern itself with the common good; that you will GOVERNOR JAMES B. LONGLEY: For example, I believe the officials of Pratt guide it by your devine wisdom; that its deci­ Would you please rise, raise your right hand and Whitney Aircraft.. .. one of the world's larg­ sions will always be in accordance with your and repeat after me, please. est and most reputable firms .... had to be im­ devine will. That you will sustain it in all its un­ Thereupon, the Senator-elect took and sub­ pressed when they were asked to locate in dertakings by devine power. We ask you, scribed the oaths of office required by the Con­ Maine by the Republican Senate President, the O'Lord, this in Chirst our Lord. Amen. stitution. Democratic House Speaker, the Independent Governor and the Governor-elect. This firm Communication GOVERNOR LONGLEY: and others as well have also had the knowledge Office of the Secretary of State One of the most rewarding experiences of my that these elements also came together to To May M. Ross, Secretary of the Senate of tenure as Governor of the State of Maine has absorb deficits, curb government spending and the One Hundred and Eighth Legislature: been the opportunity to administer the oath of to provide tax relief to the people of this State. In compliance with 3 M.R.S.A., Section 1, I public office to men and women like you ... men and to create a positive climate for industrial hereby certify that the following are the names and women who have stepped forward, often at development. and residences of the Senators-elect to the One personal sacrifice, to serve the citizens of The experiment did not always work quietly. Hundred and Ninth Legislature, as appears by Maine. Therefore, let me commend each of you There were disagreements and there were the report submitted to the Governor under for your willingness to try to help Maine and its challenges, but in the final analysis I came to date of November 27, 1978. people by your willingness to accept legislative the conclusion that the time people should be District 1 Walter W. Hichens of Eliot involvement and reponsibility. concerned about government is when everyone District 2 Robert M. Farley of Biddeford In my inaugural address four years ago, I is agreeing and when everything is quiet. De­ District 3 Ralph M. Lovell of Sanford said that Maine had to be headed in a direction mocracy, I submit, was designeo for challenge District 4 Peter W. Danton of Saco that would bring her people a quality of life ... .it is the difference between open and free District 5 Roland 1. Sutton of Paris without forcing them to sacrifice the things discussions in town halls and state houses and District 6 David G. Huber of Falmouth that have made the State unique in both spirit the quiet trooping of faceless. expressionless District 7 Ronald E. Usher of Westbrook and beauty. masses to unknown destinies. such as we see in District 8 Barbara A. Gill of South Portland With the deep realization that no one individ­ some nations of the world where dis· District 9 Gerard P. Conley of Portland ual designs the avenues of history, I stand agreements, at least in the open. do not take District 10 Mary Najarian of Portland before you today with the hope and prayer that place. The l09th Legislature and the new ad­ District 11 Nancy Randall Clark of Freeport I have at least used my brief time of service to ministration in the executive branch now em­ District 12 Barbara M. Trafton of Auburn help keep Maine on that course toward a qual- barks on its own experiment in Government. District 13 Albert E. Cote of Lewiston ity of life for its people. • How well it serves the people of this State. I District 14 Carroll E. Minkowsky of Lewiston I do believe Maine is on the right course. feel, will be measured in large degree by the District 15 David R. Ault of Wayne With the help and support of the 107th and openness and debate and yes the disagreement District 16 Donald R. O'Leary of Mexico 108th Legislatures and many other people from which will compose the sounds of democracy District 17 Andrew Redmond of Anson inside state government and from the private coming from the State House in Augusta. District 18 Richard H. Pierce of Waterville sector, I feel we have succeeded in instilling On behalf of the people of Maine ... this In­ District 19 Bennett D. Katz of Augusta within Maine State Government an attitude of dependent asks you and challenges you ... Re­ District 20 John D. Chapman of Woolwich fiscal responsibility balanced with humanitari­ publicans and Democrats, as well as District 21Samuel W. Collins, Jr. of Rockland anism. With their help we have absorbed the Independents, to do everything possible to help District 22Melvin A. Shute of Stockton Springs deficits we inherited, created surpluses which the new Governor be the best Governor in the District 23 Thomas M. Teague of Fairfield have been returned to the people in the form of history of this State. District 24 Jerome A. Emerson of Corinna tax relief, and have left a balance for this new I have confidence that there exists in this District 25 Howard M. Trotzky of Bangor legislature and the new Governor to begin their body and the new administration the desire. the District 26 Dana C. Devoe of Orono work. talent and the dedication to serve the people of District 27 Joseph Sewall of Old Town I said in my inaugural address four years ago Maine and to serve them well. My very best District 28 Thomas R. Perkins of Blue Hill that Maine was embarking on a unique experi­ wishes to each of you and to Governor Brennan District 29 Harold 1. Silverman of Calais ment in government, with an Independent Gov­ and his administration in that regard. District 30 Charles P. Pray of Millinocket ernor, a Republican Senate and Democratic Thank you very much. District 31 James McBreairty of Perham House. I said the eyes of the nation would be on District 32 Roland D. Martin of Frenchville Maine to see how we handled this unique exper­ The Governor then withdrew from the Senate District 33 Michael E. Carpenter of Houlton iment. I submit now, four years later that we Chamber. IN TESTIMONY WHEREOF I have caused the handled it exceedingly well and I will compare Seal of the State to be herewith affixed at Au­ Maine's accomplishments during that time The SECRETARY: The Secretary recogniz­ gusta this third day of January, 1979. period with those of any state in the nation or es the Senator from Cumberland, Senator MARKHAM L. GARTLEY any Legislative-executive period in the history Conley. Secretary of State of the State. Albeit we had occasional dis­ Senator CONLEY: Madam Secretarv: I Which was Read and Ordered Placed on file. agreement yet the periods of cooperation and move that the Senator from Kennebec. Senator caring together showed results in areas such Katz, be authorized to cast one ballot on the The roll being called, the following Sena tors­ as: part of the Senate in favor of Joseph Sewall of elect responded to their names: Ault, Carpent­ (1) PaSSing the first major tax reduction in Old Town for the President of the Senate. er. Chapman. Clark, Collins, Conley, Danton, the history of the state. The SECRETARY: The Senator from Cum­ Devoe, Emerson, Farley, Gill, Hichens, Huber, (2) Working to support the Attorney Gener­ berland, Senator Conley, moves that the Sen­ Katz. Lovell. Martin, McBreairty, Minkowsky, al in what has been referred to as the most seri­ ator from Kennebec, Senator Katz. be Najarian. O'Leary, Perkins, Pierce, Pray, ous problem to face Maine since we separated authorized to cast one ballot on the part of the Sewall. Shute. Silverman, Sutton, Teague, from Massachusetts in 1820 ... The Indian Land Senate in favor of Joseph Sewall of Old Town Trafton. Trotzky, Usher. Case. for President of the Senate. Is it the pleasure of 31 Senators-elect having answered to the roll . (3) Or, the legislature supporting this Inde­ the Senate that this motion receive passage? It call. the Secretary declared that a quorum was pendent Governor's programs for people ... .in is a vote. present. which we met and improved Human Services Senator Katz of Kennebec cast one ballot for .... as well as balanced this humanitarianism Joseph Sewall of Old Town for President of the On motion by Mr. Katz of Kennebec, that with fiscal reponsibility to: Senate. The Secretary then declared Senator 10 LEGISLATIVE RECORD - SENATE, JANUARY 3, 1979

Sewall of Penobscot duly elected President of "What's wrong with he's an Irishman," a burly President, May M. Ross as Secretary and Mary the Senate for the political years 1979 and 1980. giant roared. If anyone who stood their ground, S. Porter as Assistant Secretary. The Secretary then appointed Senator Conley was certain to be floored. "Oh nothing's wrong The President appointed Senator Collins of of Cumberland to escort the President of the with Irishmen except there are too many, to Knox to convey the message. The Senator re­ Senate to the Governor's Office for the purpose keep the balance needed in this present world tired to the Hall of the House. of taking and subscribing to the necessary so zany. The nationalities in Maine are even­ Subsequently, Senator Collins reported that oa ths of office to qualify him to enter upon the balanced now, for too many Irishmen around he had delivered the message with which he discharge of the duties as President of the could tip the scales in the haul. There will soon was charged. Senate of the 109th Maine Legislature. be others added Brennan's, Mryttler, and the Subsequently the Senator reported that he such and in future years the State of Maine On motion by Senator Hichens of York, had discharged the duties with which he was may fee~ it is too much." My friends, the years ORDERED, that a committee of seven be charged. have quickly passed and here we sit today, appointed by the President, to whom the re­ The Sergeant at Arms escorted the President watching how these Irishmen have through life turns of votes for Senators for the political of the Senate to the rostrum. made their way. The one who sits among us is years of 1979 and 1980 shall be referred for ex­ Thereupon, President Sewall of Penobscot added to the clan a great many little Conley's amination and report. was escorted to the rostrum amid the applause and proved he's quite a man within his native Which was Read and Passed. of the Senate Chamber, the members rising. city. The good old State of Maine has profited by his finesse, and using the old brain. He has The President appointed: The PRESIDENT: Thank you, Senator been minority leader and has handled his job Senators: Conley, for your kind escort, and your motion. I well. I hesitate to say much more for fear his KATZ of Kennebec thank all the rest of you for your confidence in head might swell; but I want to let my col­ COLLINS of Knox me. It gives me great pleasure to stand before leagues know I treasure as a friend, good old HUBER of Cumberland you today as the presiding officer of this distin­ Gerry Conley and as he his way doth wind along REDMOND of Somerset guished body. Serving a third term as the Pres­ life's highway may he find the wind behind his DANTON of York ident of the Maine Senate fs an honor and a back. the sunshine lighting up the paths, may NAJARIAN of Cumberland responsibility which I assure you, I do not take he never lack the very best life has to give, and O'LEARY of Oxford lightly. always on the way may he be blessed by God The beginning of any new legislative session above. Senator Conley this is your day. On motion by Senator Usher of Cumberland. offers its own unique opportunities and chal­ ORDERED, the House concurring, that the lenges. Today, with a new administration and Senator Conley was granted unanimous con­ returns of votes for the Governor, given in the legislature we have the opportunity to begin sent to address the Senate off the record. several cities, towns and plantations of the anew the task of serving the best interests of State for the political years 1979, 1980, 1981 and the people of Maine in a positive spirit of coop­ The PRESIDENT: The Chair recognizes the 1982, be referred to a Joint Select Committee of eration and mutual understanding. Senator from Kennebec, Senator Katz. seven on the part of the Senate, with such as Let us remember over the course of the next Senator KATZ: Mr. President, I move that the House may join. two years to treasure the rich tradition that we the Senator from Penobscot, Senator Trotzky S. P. 023 inherit as members of this body. That tradition be authorized to cast one ballot on the part of Which was Read and Passed. Sent down is one of keen debate and informed decision the Senate in favor of May M. Ross for Secre­ forthwith for concurrence. making which places the peoples' interests tary of the Senate. above personal interest. Regardless of our The PRESIDENT: Is it the pleasure of the The President appointed: party affiliations or disagreements on specific Senate that this motion receive passage? It is a Senators: issues reasonable men and women can always vote. PIERCE of Kennebec arrive at solutions in a spirit of friendship and Senator Trotzky of Penobscot cast one ballot LOVELL of York mutual respect. By conducting our business in for May M. Ross as Secretary of the Senate. SUTTON of Oxford this manner we assure that the peoples' inter­ The Chair then declared May M. Ross duly GILL of Cumberland est is served. elected Secretary of the Senate for the political CONLEY of Cumberland We will no doubt be faced with many com­ years 1979 and 1980. PRAY of Penobscot plex issues in the upcoming months, but in my The President then appointed Senator Trotz­ MINKOWSKY of Androscoggin oIJinion the overriding issue will be surviving ky of Penobscot to escort the Secretary of the within our present tax structure. To accom­ Senate to the Governor's Office for the purpose Communication plish this will require hard decisions on priori­ of taking and subscribing to the necessary STATE OF MAINE ties and programs but we must make those de­ oaths of office to qualify her to enter upon the DEPARTMENT OF STATE cisions in the interest of a healthy economic discharge of the duties of the Secretary of the Augusta, Maine climate and in response to the obvious wishes Senate. January 3, 1979 of a vast majority of Maine's citizens. Subsequently the Senator reported that he To the President of the Senate and to the I pledge to you that my door will be open to had discharged the duties with which he was Speaker of the House of Representatives of the each of you regardless of party and look for­ charged. (Applause) One Hundred and Ninth Legislature of the State ward to working with all of you for the next two ---- of Maine: years. The PRESIDENT: The Chair recognizes the In compliance with the Constitution and laws of I would also like to take this opportunity to Senator from Sagadahoc, Senator Chapman. the State of Maine, I have the honor to herewith express my sincere appreciation, and I am cer­ Senator CHAPMAN: Mr. President, I move transmit the returns of the votes cast for Gov­ tain the appreciation of my fellow Senators to that the Senator from Kennebec, Senator ernor in the several cities, towns and planta­ Mrs. Ross and her outstanding staff for the fine Pierce be authorized to cast one ballot on the tions in the State of Maine at the General job they have done in preparing us for the open­ part of the Senate in favor of Mary S. Porter Election held on November 7, 1978, as sub­ ing of the session. for Assistant Secretary of the Senate. mitted by the appropriate officials of the mu­ Thank you all very much. The PRESIDENT: Is it the pleasure of the nicipalities involved immediately following Senate that this motion receive passage? It is a said election. At the request of the President, Senator vote. . Respectfully, Pierce of Kennebec escorted Senator-elect Senator Pierce of Kennebec cast one ballot MARKHAM L. GARTLEY Andrew J. Redmond of Franklin to the Gover­ for Mary S. Porter as Assistant Secretary of Secretary of State nor's Office for the purpose of subscribing the the Senate. The Chair then declared Mary S. STATE OF MAINE oath of office required by the Constitution. Porter duly elected Assistant Secretary of the GENERAL ELEcrlQN Subsequently the Senator announced that he Senate for the political years 1979 and 1980. NOVEMBER 7, 1978 had performed the duty with which he was The President then appointed Senator Chap­ GOVERNOR charged and escorted Senator Redmond to his man of Sagadahoc to escort the Assistant Sec­ Joseph E. Herman C. seat in the Senate Chamber. retary to the Governor's Office for the purpose Brennan, Frankland of taking and subscribing to the necessary Democrat Bangor Senator Hichens of York was granted unan­ oaths of office to qualify her to enter upon the Portland imous consent to address the Senate off the discharge of the duties of the Assistant Secre­ Androscoggin 18,637 6,477 record. tary of the Senate. Aroostook 13,162 4,888 Senator HICHENS: On the 3rd of January, Subsequently, the Senator reported that he Cumberland 37,628 11,127 forty-nine short years ago, a mighty storm was had discharged the duties with which he was Franklin 3,607 1.681 brewing. and it wasn't rain or snow. It was in charged. (Applause) Hancock 4,898 3,765 the Conley household where a new son had been --- Kennebec 19,717 5.768 born, who proclaimed himself quite lustfully On Motion by Mr. Collins of Knox, a message Knox 3,934 2,074 this January morn. "0 ye Gods, another Irish­ was sent to the House of Representatives in­ Lincoln 2,803 1.756 man!" someone was heard to say. Right off a forming that body that the Senate had organ­ Oxford 7,159 3,298 brawl was started in a real old Irish way. ized by the choice of Joseph Sewall as Penobscot 21,046 8.084 LEGISLATIVE RECORD - SENATE, JANUARY 3, 1979 11

Piscataquis 2,419 1,214 Vesta L. Orr, Auburn 3,263 tion of the two branches of the Legislature in Sagadahoc 3,605 2,096 Barbara M. Trafton, Auburn 7,597 the Hall of the House at 4 o'clock in the af­ Somerset 6,666 2,894 Others 1 ternoon, for the purpose of electing a Secretary Waldo 3,281 1,749 DISTRICT 13 of State, pursuant to Art. V, Part Third, Sec­ Washington 4,445 3,214 Albert E. Cote, Lewiston 8,726 tion 1 of the Constitution of the State of Maine: York 23,486 5,804 DISTRICT 14 and for the purpose of electing a State Treasur­ Carroll E. Minkowsky, Lewiston 8,466 er, pursuant to Art. V, Part Fourth, Section 1 of Totals 176,493 65,889 Others 7 the Constitution of the State of Maine. Linwood E. James B. Others DISTRICT 15 Which was Read and Passed. Palmer, Jr., Longley, David R. Ault, Wayne 6,095 Republican Write-in William B. Manheimer, Monmouth 5,359 The President appointed Senator Katz of Nobleboro Lewiston John Portela, Litchfield 764 Kennebec to convey the message. The Senator Androscoggin 8,591 65 6 DISTRICT 16 then retired to the Hall of the House. Aroostook 6,142 23 14 Robert F. Bradford, Rumford 3,172 Subsequently, Senator Katz reported that he Cumberland 27,507 128 36 Anthony Wallace Martin, Dixfield 1,080 had delivered the message with which he was Franklin 2,947 9 20 Donald R. O'Leary, Mexico 5,635 charged. Hancock 6,853 3 26 DISTRICT 17 Kennebec 12,026 103 27 Andrew Redmond, Anson 8,367 Communications Knox 5,412 28 12 Others 6 Department of Lincoln 5,939 7 14 DISTRICT 18 Educational and Cultural Services Oxford 5,950 16 22 Jo Maheu Fitzpatrick, Belgrade 3,658 November 29, 1978 Penobscot 14,101 67 35 Richard H. Pierce, Waterville 7,248 TO: Members of the l09th Legislature Piscataquis 2,528 13 DISTRICT 19 Bureau of the Budget Sagadahoc 3,105 7 8 Bennett D. Katz, Augusta 8,794 FROM: H. Sawin Millett, Jr .. Commissioner Somerset 4,639 98 80 Others 8 SUBJECT: Enclosed Notification of Actual Waldo 3,347 13 29 DISTRICT 20 Education Costs for 1977-78 Washington 2,600 5 John D. Chapman, Woolwich 10,506 Maine Statutes require that the Legislature York 15,175 61 39 Others 10 and the Bureau of the Budget be notified of the DISTRICT 21 "actual education costs" for the base year Total 126,862 628 386 Samuel W. Collins, Jr., Rockland 7,802 1977-78. The attached statement provides the Which was Read and Referred to the Com­ Chester E. Johansen, Damariscotta 4,039 information as defined. mittee on Gubernatorial vote. DISTRICT 22 This particular listing of expenditures item­ Sent down forthwith for concurrence. Eugene B. Bowler, Camden 1,108 izes specific program costs by subject, includ­ Melvin A. Shute, Stockton Springs 7,091 ing both State and local costs. Items in the list Communication Donald J. Webber, Belfast 2,915 are not exclusive and, therefore, totals of costs STATE OF MAINE John W. Bullard, Northport (Write-in) 202 have to be approached cautiously. The total of Office of the Secretary of State Others 11 Items A through G represents local expendi­ Augusta, Maine DISTRICT 23 tures from State and local sources for the basic January 3, 1979 Thomas M. Teague, Fairfield 5,493 education allocation. Items H through Mare To the President of the Senate: Sheldon L. Ward, Winslow 4,854 duplicative in that they represent State monies In compliance with the Constitution and laws DISTRICT 24 sent to the locals to support the basic education of the State of Maine, I have the honor to here­ Earl H. Baldwin, Jr., Orrington 4,804 programs. Items Nand 0 are separate with transmit the returns of the votes cast for Jerome A. Emerson, Corinna 6,218 amounts expended by the locals to support Senators to the Legislature in the several Others 4 their programs. cities, towns and plantations in the State of DISTRICT 25 Maine at the General Election held on Novem­ Louise Shindler, Bangor 3,233 Department of ber 7, 1978. Howard M. Trotzky, Bangor 5,498 Educational and Cultural Services Respectfully, DISTRICT 26 November 29. 1978 MARKHAM L. GARTLEY Patricia A. Clark, Orono 5,170 TO: Members of the l09th Legislature Secretary of State Dana C. Devoe, Orono 5,209 Bureau of the budget DISTRICT 1 Others 1 FROM: H. Sawin Millett, Jr" Commissioner Walter W. Hichens, Eliot 9,150 DISTRICT 27 SUBJECT: Actual Education Costs for Base Others 23 Joseph Sewall, Old Town 8,156 Year 1977-78 DISTRICT 2 Others 11 Pursuant to the provisions of 20 M.R.S.A. Robert M. Farley, Biddeford 7,012 DISTRICT 28 4744, I forward herewith notification of the Artemus E. Weatherbee, Kennebunk 4,292 Virgil Don Mahoney, Brooksville 2,309 "actual education costs" as defined in subsec­ DISTRICT 3 Thomas R. Perkins, Blue Hill 10,163 tion 1 of 20 M.R.S.A. 4743 for the base year 1977- Irving H. Kellman, Sanford 4,366 Others 2 78. Ralph M. Lovell, Sanford 7,217 DISTRICT 29 A. Elementary operating costs $151.186.688 O~n 2 Charles Casey, Baileyville 1,575 B. Secondary operating costs 93.756.932 DISTRICT 4 Harold L. Silverman, Calais 4,800 C. Special education costs for programs op- Berton K. Braley, Saco 6,010 J. Hollis Wyman, Milbridge 3,958 erated by administrative units 11,081,854 Peter W. Danton, Sa co 7,103 Others 1 D. Special education tuition and board, ex· Others 6 DISTRICT 30 c1uding medical costs 3,284,062 DISTRICT 5 Woodrow A. Mercier, East Millinocket 4,032 (1) Tuition and board for pupils placed Dennis B. Gray, Norway 4,188 Charles P. Pray, Millinocket 6,569 by administrative units $3.114,814 Roland L. Sutton, Paris 7,391 DISTRICT 31 (2) Tuition and board for State wards Others 1 Frank W, Hussey, Presque Isle 2,929 and direct State placements 169.248 DISTRICT 6 James McBreairty, Perham 4,517 (3) Adjustments under section 4749. David G. Huber, Falmouth 6,942 DISTRICT 32 subsection 6 N; A David T. Mulhearn, Naples 1,744 Roland D. Martin, Frenchville 5,785 E. Vocational education costs 7,927,543 Mark Terison, Falmouth 5,406 DISTRICT 33 F. Transportation costs DISTRICT 7 Michael E. Carpenter, Houlton 7,263 (1) Operating costs 18,889,489 Frank A, Farwell, Jr., Westbrook 4,807 Others 12 (2) Purchase of buses 2,982.817 Ronald E. Usher, Westbrook 7,054 Which was Read and referred to the Commit­ G. Debt service costs 25,863,930 Others 5 tee on Senatorial Vote. Major capital costs 2.631,535 DISTRICT 8 H, Costs of unusual enrollment adjustments Peter J. Curran, South Portland 5,513 At this point a message was received from 495,635 Barbara A. Gill, South Portland 6,229 the House of Representatives, through Rep­ I. Cost of geographic isolation adjustments DISTRICT 9 resentative Elizabeth Mitchell of Vassalboro, 308,933 Gerard P. Conley, Portland 5,822 announcing the organization of the House by J. Cost of adjustments for small adminis- DISTRICT 10 the election of John L. Martin as Speaker, trative units 49,121 Mary Najarian, Portland 6,532 Edwin H. Pert as Clerk, Deborah B. Wood as Cost of guaranteed allocation for de- David E. Robinson, Portland 5,343 Assistant Clerk. crease in enrollment 75.671 DISTRICT 11 K. Cost of reimbursement for private Nancy Randall Clark, Freeport 7,142 On motion by Senator Katz of Kennebec, school transportation 206,525 Margaret T. Ring, Brunswick 4,785 ORDERED, that a message be sent to the L. State expenditures for paragraphs C-K DISTRICT 12 House of Representatives proposing a Conven- for 1977-78 12 LEGISLATIVE RECORD - SENATE, JANUARY 3, 1979

(includes portion from Uniform Property torney General. ute, its legislative history, and other relevant Tax) During the course of that review, I consid­ statutes and judicial opinions in an attempt to (1) Special education costs for programs ered the provisions of 5 MRSA § 15, entitled ascertain whether and, if so, how, the statute, operated by the administrative units 7,946,222 "Disqualification of former state employees penal in nature, applied to constitutional offi­ (2) Special education tuition and board, and the former partners of present state em­ cers elected by the Legislature. The questions excluding medical costs 2,725,107 ployees from participation in certain mat­ which were the subject of the research includ­ (3) Vocational education costs 5,471,836 ters." This statute provides in pertinent part: ed the following: (4) Transportation costs "2. Partner of former executive employee. 1. Is the Attorney General, as a constitutional a. Operating costs (prorated at 90%) (sic) Any former partner of a person who is officer, considered to be a person who is "a 14,536,643 currently a member of the classified or unclas­ member of the classified or unclassified ser­ b. Purchase of buses 2,677,215 sified service employed by an executive agency vice employed by an executive agency" for the (5) Debt service costs shall be guilty of a Class E crime if that former purposes of 5 MRS A § 15? a. Principal & interest 25,863,930 partner, within one year after the partnership 2. Does the statute apply only to former part­ b. Insured value factor 298,698 has ended, acts as agent or attorney for anyone ners or does it also reach former associates? c. Leases 442,824 other than the State in connection with an offi­ 3. Does 5 MRSA § 15 relate only to members (6) Major capital costs 196,552 cial proceeding in which: of law partnerships or does it also reach em­ (7) Costs of unusual enrollment adjust- "A. The State is a party or has a direct and ployees of professional associations of attor­ ments 495,635 substantial interest; and neys? (8) Costs of geographic isolation adjust- "B. The subject matter at issue is directly 4. Does the statute unconstitutionally. dis­ ments 308,933 within the official responsibility of the person, criminate against partners in law firms in (9) Costs of reimbursement for private currently employed by an executive agency, favor of their associates and/or lawyers who school transportation 206,525 who was formerly his partner." have chosen to practice through profsssional M. Audit adjustments 70,816 As you are aware, I am currently a partner in associations or corporations, thereby depriving N. Optional local appropriations with state the law partnership known as Verrill & Dana. such partners of equal protection of the laws? participation The firm has its principal offices in Portland 5. Does the statute violate the separation of (1 ) Local share 17,381,359 with offices elsewhere in the State of Maine. powers provisions of the Maine Constitution? (2) State share 6,911,945 Verrill & Dana is engaged in the general prac­ 6. If the statute is unconstitutional or other­ O. Optional local funds without state partic- tice of law throughout the State; its partners wise impermissibly overbroad as applied to ipation 10,427,886 and associates appear in all courts in the State me, if I am elected Attorney General, and to The above figures include all adjustments in representing individuals, partnerships, joint my former partners, is the statute rendered expenditure reports through November 29, 1978 ventures, corporations, and other legal enti­ valid and effective by not applying it to situa­ and include state and local monies only except ties; it also from time to time represents tions in which the Attorney General voluntarily that Federal P. L. 874 funds are included. public agencies such as the Maine Health Fa­ disqualifies himself? NOTE: The sum of items A to G represent cilities Authority; and in the course of its prac­ Until recently, because of the various ambi­ the total expenditures for the base year while tice it may also advise, represent, and appear guities contained in the statute and the lack of items H to 0 are duplicative. for its clients in civil and criminal matters legislative history, no independent counsel has Which was Read and Ordered Placed on File. before virtually all State officers, State depart­ been willing to say, with total certainty, that ments, and State boards and commissions. the statute would not apply to my former part­ Department of Business Regulation After reading the statutory provisions quoted ners and/or associates were I to be elected At­ December 28, 1978 above, I questioned their applicability to the torney General, in the absence of judicial TO MEMBERS OF THE ONE HUNDRED position of Attorney General. If applicable, the clarification, particularly as to the effect of my AND NINTH SENATE statute would place prospective criminal limi­ willingness to disqualify myself from. and to Gentlemen: tations on the practice of the person who as­ refuse to participate in, any particular matter, It is with pleasure that as Commissioner of sumes the office of Attorney General. These as Attorney General, which otherwise might be the Department of Business Regulation I trans­ disabilities would arise at the conclusion of his cQ,nstrued to be within the statute's ambit. On mit the following report pertaining to a study or her term of office. However, the statute, if December 20, 1978, Deputy Attorney General of the costs and benefits accruing to the State if applicable to the Attorney General, would have Donald G. Alexander transmitted a letter to a self-insurance plan were instituted for state immediate and far reaching ramifications to Representative Paul Boudreau stating that. in employees and their dependents. This action former partners of the person occupying that the opinion of the office of the Attorney Gener­ has been taken to fulfill the Joint Resolution office. al, the statute in question does not apply to the contained in Chapter 75 of the Resolves of 1978. If elected Attorney General, I will immedi­ Attorney General. A copy of that letter is at­ At this time I wish to thank the members of ately resign and withdraw from the part­ tached and incorporated herein. the committee who assisted in making this nership of Verrill & Dana. Furthermore, I will While I remain the nominee of the Republi­ report possible. not participate in, and will disqualify myself can members of the l09th Maine Legislature Respectfully submitted, with respect to, any official proceeding in con­ for the office of Attorney General, I wish re­ ALFRED W. PERKINS nection with which either I or my former part­ spectfully to advise the Senate, through you, Commissioner ners or associates had, at the time of my that I cannot, in good conscience, accept a posi­ Which was Read and with accompanying election, any responsibilities of the Attorney tion which I sincerely wish to undertake so long papers, Ordered placed on file. General and in which the State is a party or in as the possibility exists that 5 MRSA § 15 ap­ which the State has direct and substantial in­ plies to the Attorney General and former part­ At this point a message was received from terest. Both my former partners and I will of ners of the Attorney General. the House, through Representative James E. course abide by the Code of Professional Res­ I believe that the question of the applicability Tierney of Lisbon Falls, informing the Senate ponsibility adopted by the American Bar Asso­ of 5 MRSA § 15 to constitutional officers and that the House concurs in the proposal for a ciation and the provisions of any rules, their former partners poses an important ques­ Joint Convention, to be held at 4 o'clock this af­ regulations, or standards governing the profes­ tion of law. The uncertainty concerning the ap­ ternoon in the Hall of the House of Representa­ sional conduct of attorneys promulgated by the plicability of this criminal law, in my opinion. tives, to receive such action as might come Maine Supreme Judicial Court. deprives both the members of the Legislature before it. If I accepted election to the office of Attor­ and candidates for constitutional office from ney General and the statute in question applied knowing, at the outset, the scope of restrictive CHARLES L. CRAGIN to the holder of this office, my former partners conditions "imposed upon such officers. The un­ 349 Gray Road would be forced, without their consent and ag­ certainty of this law's applicability impairs the Falmouth, Maine 04105 ainst their will, to forebear from representing ability of the members of the Legislature to January 3, 1979 clients in "official proceedings" with the State secure qualified candidates for constitutional The Honorable Joseph Sewall of Maine which are "directly within the official offices and deters citizens from being willing to President of the Senate responsibility" of the Attorney General. If the undertake these offices. l09th Maine Legislature applicability of this statute were not deter­ Because of the uncertainty which surrounds State House mined prior to the election and if my former the applicability of this statute, I respectfully Augusta, Maine 04333 partners continued to represent clients before request that the Senate consider propounding Dear President Sewall: the State, it might later be determined that questions to the Justices of the Supreme Judi­ As you are aware, I am the Republican can­ each and every one of them had committed a cial Court in order to determine the applicabili­ didate for the office of Attorney General of the crime leading to fines, imprisonment, and pos­ ty of 5 MRSA § 15 to the Attorney General and State of Maine for the 1979-1980 biennium. Fol­ sible disbarment. It is only because of my can­ to persons who were his or her partners within lowing the public announcement of my candi­ didacy and possible election that this situation one year prior to the assumption of the office. dacy in mid-November 1978, I undertook a arises. In the event that the Justices decline to answer thorough review of the various statutes relat­ Because of the far-reaching ramifications of the question or, in the alternative, advise the ing to the office of Attorney General as well as the statute, both the firm of Verrill & Dana and Senate that 5 MRSA § 15 applies to the Attorney opinions of the Maine Supreme Judicial Court I employed independent legal counsel, both General and his or her former partners, I will, concerning the common law powers of the At- within and without the State, to review the stat- regrettably, withdraw as the Republican candi- LEGISLATIVE RECORD - SENATE, JANUARY 3, 1979 13

da te for the office of Attorney General. WHEREAS. as a result of this nomination, lature urgently desires guidance as to the ap­ Very respectfully yours. Mr. Cragin will be proposed as the Republican plication of the Maine Revised Statutes CHARLES L. CRAGIN candidate for election to the office of Attorney Annotated, Title 5, section 15 in order to know Which was Read and Ordered Placed on file. General of Maine by joint ballot of the Senators whether, as a practical matter. it is forestalled and Representatives in convention, pursuant to from nominating and participating in the elec­ Bills and Resolution Requiring Reference Maine Constitution, Article IX, Section 11; and tion of anyone as Attorney General who cur­ The following 8 Bills and 1 Resolution were WHEREAS. Mr. Cragin has stated that he rently practices law in a partnership: and transmitted by the Secretary of the Senate of cannot accept election to this high office unless WHEREAS, the Senate of the 109th Legis­ the 108th Legislature in accordance with the the inapplicability of the Maine Revised Stat­ lature is unwilling to participate in a joint.con­ provisions of Joint Rule 21. utes Annotated, Title 5, section 15 to him and vention called for the purpose of electing an Senator-elect Collins of Knox. Co-sponsor the remaining partners of Verrill & Dana, after Attorney General until its members have been Senator-elect O'Leary of Oxford presented, his resignation and withdrawal from the part­ advised by the Justices of the Supreme Judicial Bill. An Act to Establish the Maine Probate nership in the event of election, is clarified; Court as to their views on the applicability of Code. (S. P.) (L. D. 1) and the Maine Revised Statutes Annotated, Title 5, Senator-elect Danton of York presented, WHEREAS, the Senate of the 109th Legis­ section 15 to Mr. Cragin and any other qualified Bill, An Act to Make Drinking in an Unli­ lature is advised that: Verrill & Dana is en­ lawyer who is currently a member of a law censed Public Place a Class E Crime. (S. P. 2) gaged in the general practice of law throughout partnership and the former partners of any of (L. D. 2) the State; its partners and associates appear in them if he or she is elected Attorney General. Senator-elect O'Leary of Oxford presented, all courts in the State representing individuals, and RESOLUTION, Proposing an Amendment to partnerships, joint ventures, corporations and WHEREAS, it appears to the members of the the Constitution of Maine to Limit Tax Increas­ other legal entities; it also from time to time Senate of the l09th Maine Legislature: That the es to a One-year Period to Require Further represents public agencies, such as the Maine following are important questions of law: that Legislation and Economic Impact Analysis for Health Facilities Authority; and in the course the occasion is a solemn one; and that the opin­ the Further Continuation of any Tax Increase of its practice it may also advise, represent ions requested hereby are designed to aid the and to Require a Two-thirds Vote of Each and appear for its clients in civil and criminal members of the l09th Maine Legislature in the House to Extend the Tax. (S. P. 3) (L. D. 3) matters before virtually all state officers, exercise of their constitutional responsibilit~· Senator-elect Redmond of Somerset, pre­ state departments and state boards and com­ pursuant to the Maine Constitution. Article IX. sented. missions; and Section 11 to choose an Attorney General: now. Bill. An Act to Remove Moose River from WHEREAS, Mr. Cragin has advised the therefore, be it the Maine Forestry District. (S. P. 4) (L. D. 4) Senate of the 109th Maine Legislature that. if ORDERED, that in accordance with and by Senator-elect McBreairty of Aroostook pre­ elected: He will immediately resign and with­ virtue of the provisions of the Maine Constitu­ sented. draw from the partnership and will not partici­ tion, Article VI. Section 3, the Justices of the Bill. An Act to Provide for Pre-payment of pate in, and will disqualify himself as Attorney Supreme Judicial Court are hereby respectful­ State Bonded Debt. (Emergency) (S. P. 5) (L. General with respect to, any official proceed­ ly requested to give to the Senate their opinions D.5) ing in connection with which he or his former on the following questions, to wit: Senator-elect Redmond of Somerset pre­ partners and associates had, at the time of his I sented. election, any responsibilities as lawyers in pri­ Is a constitutional officer elected by the Bill. An Act to Require Candidates for Nomi­ vate practice which are directly within his offi­ people or the Legislature and subject to remov­ nation by Primary Petition to File Petitions by cial responsibilities as Attorney General and in al by impeachment for misdemeanor in office April 1st of Election Year. (S. P. 6) (L. D. 6) which the State is a party or in which the State or on the address of both branches of the Legis­ Senator-elect Collins of Knox presented, has a direct and substantial interest; and both lature, pursuant to the Maine Constitution, Ar­ Bill, An Act to Make Corrections of Errors he and his former partners will, of course, ticle IX, Section 5, a person who is currently or and Inconsistencies in the Laws of Maine. abide by the Code of Professional Responsibili­ who has been "a member of the classified or (Emergency) (S. P. 7) (L. D. 14) ty adopted by the American Bar Association, unclassified service employed by an executive Senator-elect Redmond of Somerset, Co­ as from time to time amended, and the provi­ agency" within the meaning of the Maine Re­ sponsor Senator-elect Collins of Knox pre­ sions of any rules, regulations, or standards vised Statutes Annotated, Title 5. section 15. sent, governing the profeSSional conduct of a ttor­ subsections 1 and 2? Bill. An Act to Revise the Inland Fisheries neys contained in any Maine Code of Profes­ II and Wildlife Laws. (S. P. 8) (L. D. 15) sional Responsibility promulgated by your If the answer to Question I is in the affirma­ Senator-elect Collins of Knox, presented, honorable Court in response to its order estab­ tive, is it a crime for a former partner of the Bill, An Act to Strengthen and Streamline the lishing a Select Commission on Professional Attorney General (or any other constitutional Habitual Offender Law. (Emergency) (S. P. 9) Responsibility, dated January 17, 1978, as sup­ officer), within one year after the Attorney (L. D. 16) plemented by an order entered April 5, 1978; General has withdrawn from the partnership. On motion of Senator Katz of Kennebec and to act "as an agent or attorney for anyone tabled, pending reference. Yv'HEREAS, if the Maine Revised Statutes other than the State in connection with any offi­ !.nnotated, Title 5, section 15, subsection 2, (er­ cial proceeding in which: Orders roneously entitled "Partner of former exe­ "A. The State is a party or has a direct and On motion by Senator Collins of Knox, cutive employee.") has the consequence of substantial interest; and WHEREAS, Charles L. Cragin, a partner of making it a crime for any former partner of a 'B. The subject matter at issue is directly Verrill & Dana, a law firm located in Portland, constitutional officer of this State to continue within the official responsibility of the Maine. with offices elsewhere in the State, was to practice his or her profession in a manner nominated for Attorney General by the Repub­ consistent with all relevant ethical standards " Attorney General; if the Attorney General lican members of the Maine House of Rep­ applicable to his or her professional conduct, at disqualifies himself: From participating in any resentatives and Senate of the l09th Maine least two very serious consequences of great way in any official proceeding which was the Legislature: and concern to the citizens of Maine would result: subject of his professional responsibility as a WHEREAS. on January 3. 1979, lists of the A. Where relations among the partners are private lawyer; from participating in any such number of votes cast for candidates for the amicable, the pool of potential candidates for official proceeding in which his former part­ House of Representatives and the Senate of the constitutional offices would be substantially re­ ners act as agents or attorneys; and from par­ 109th Maine Legislature (which had been re­ duced, thus depriving Maine of some of its ticipating in any official proceeding in which he ceived at the most recent election and sorted, most qualified citizens as public servants; and has any economic interest whatsoever. except counted. declared and recorded by the clerks of B. Where the relations among the partners as a general citizen? the various cities and towns, Maine Constitu­ are hostile, the election to constitutional office III tion, Article IV, Part 1, Section 5; Article IV, of a partner could deprive his or her former If the answers to Questions I and II are in the Part 2. Section 3, and thereupon forwarded to partners of their ability to earn a livelihood in affirmative, would conduct of former partners the Secretary of State, id., for the examination the practice of the profession in which they are of the Attorney General (or other constitution­ by the Governor, Maine Constitution, Article trained, qualified and experienced, without any al officers) proscribed by the Maine Revised IV, Part 1. Section 5; Article IV, Part 2, Sec­ act, consent or forebearance on their part; and Statutes Annotated, Title 5, section 15, subsec­ tion 4) have been laid before both houses of the WHEREAS, the Maine Revised Statutes An­ tion 2, constitute crimes if performed by asso­ 109th Maine Legislature; the respective houses notated, Title 5, section 15 is ambiguous with ciates or employees of former partners of the of the 109th Maine Legislature have finally de­ respect to its applicability to constitutional of­ Attorney General? termined their numbers, and the members of ficers and, therefore, does not permit the IV the 109th Maine Legislature have been sworn in members of the Senate or candidates for con­ Does the Maine Revised Statutes Annotated. by the Governor; it is now the duty of those stitutional offices elected by the Legislature to Title 5, section 15, subsection 2, apply to attor­ elected to both houses of the l09th Maine Legis­ ascertain, prospectively, the potential restric­ neys who are employees of professional associ­ lature by joint ballot of the Senators and Rep­ tions, of a criminal nature, on persons elected ations or professional corporations which are resentatives in convention to choose an to such positions or to former partners of per­ organized pursuant to the Professional Service Attorney General of Maine, pursuant to the sons elected to such poSitions; and Corporation Act, Maine Revised Statutes Anno­ Maine Constitution, Article IX, Section 11, and WHEREAS, the Senate of the l09th Legis- tated, Title 13, chapter 22? 14 LEGISLATIVE RECORD - SENATE, JANUARY 3, 1979

V decided in caucus that Charles L. Cragin III, of comment which tends to express what the Is the Maine Revised Statutes Annotated, Title the firm of Verrill & Dana, should be our people are saying around the State of Maine. 5, section 15, subsection 2 unconstitutional as state's next Attorney General. It must be em­ He said "It would be regretable if the Maine applied to lawyers in violation of the separation phasized that there is no legal or constitutional Senate got cold feet over the candidacy of of powers provisions of the Maine Constitution, impediment for Mr. Cragin to assume that po­ Charles Cragin as State Attorney General. Not Article III, Sections 1 and 2, especially if your sition, indeed Mr. Cragin could be sworn in only is Cragin highly qualified for the post in honorable Court, in discharging its responsibil­ today. To repeat, nothing would stop Mr. terms of experience and professional creden­ ities of supervising the bar, promulgates by Cragin from being Attorney General and there tials he is to borrow from Dwight Eisenhower. rule a Maine Code of Professional Responsibili­ is nothing in this constitutional question which "Clean as a hound's tooth." Not unlike Mr. ty governing the conduct of lawyers, in the in any way inhibits or restricts the 109th Legis­ Cragin it goes on talking about an old friend, a public service, and former partners and associ­ lature meeting in Joint Convention and making beloved friend, who has passed on, Richard ates (in a partnership or professional associa­ its decision. Dubord, a former Democratic candidate for tion or corporation) and employees of lawyers What then is the issue? It is simple, does a Governor, a man who would have made an out­ in the public service? particular statute, which a previous Legis­ standing Governor and, subsequently, became Which was read. lature has passed, apply to a particular law a Democratic Attorney General. It said "not firm. This is not a question to be decided by our only Mr. Cragin, but Mr. Dubord brought cre­ The PRESIDENT: The Chair recognizes the Supreme Court Justice under the rules of a dentials and experience to the Attorney Gener­ Senator from Cumberland, Senator Conley. Solemn Occasion, to a public body. This is a al's post and like Cragin, Dubord was a former Senator CONLEY: Mr. President and mem­ question of a private law firms relationship to gubernatorial candidate and a lawyer from a bers of the Senate. Once again the majority the criminal and civil law. This is precisely the very prominent law firm which was accus­ party has presented to us for consideration a type of issue which should be resolved in the tomed to doing business with state govern­ series of questions proposed to our Supreme normal course of judicial events. It is why we ment." What has happened since then? Judicial Court, under Article 6, Section 3 of our pay our Judges, our District Attorneys, and yes We passed a law in the 107th, I believe, and Constitution, for advisory ruling on Solemn Oc­ and even our Attorney General. I am sure that just before the session started today I went up casions. the firm of Verrill and Dana will be able to find to five members of this body, who served in the Once again the majority party of the Maine somewhere in our fine state someone with the l07th, and said to them, "when you voted for Senate, has erred fundamentally in its analysis legal skills necessary to defend them before this bill, was it your understanding that you of the reasons and the policies behind the Con­ our judiciary. were voting to include the constitutional offi­ stitutional provision. Should the majority party nonetheless pre­ cers to be incorporated in Title 5, Section 15, Anglo-American Jurisprudence is based on serve and send these questions to our Supreme sub-section 2 of the Maine Revised Statutes?" the concept that the best decisions made by the Judicial Court, they will be perverting the con­ The answer was "No." judiciary are made in deciding real cases be­ stitutional bases of a Solemn Or;casion. This is I was in that body, there is no way that I tween real people. Decisions made in this fash­ a transparent attempt to drag our judiciary would have voted for this Bill if I had felt that it ion are only done after full consideration and into the middle of the political process. If they applied to constitutional officers, as a matter after it has been determined that the issue is succeed the reputation of the Maine Supreme of fact, it was not until Charles Cragin himself proper for judicial judgement. Abstract ques­ Judicial Court will be forever impaired. raised the issue that we become alert to a pos­ tions must be avoided at all costs. If the Supreme Judicial Court gives in to the sible problem with the law. Of course there is a way the majority party pressures of the majority party of this branch Not it might have been that there were one or of the Senate could greatly reduce the issue, of of the Legislative they can rest assured that two clairvoyant people in the lO7th who were whether or not this question is abstract. The this will only be the first of many, many ques­ pushing this legislation to a-pply to constitution­ lO9th Legislature could meet in Joint Conven­ tions to them regarding the interpretation of al officers. I heard nothing about it, and I sus­ tion and Mr. Cragin's name could be placed in laws, to private law firms and business in the pect that in debate here today that we will get nomination for the office of Attorney General, state without regard to the normal judicial pro­ some indication, of just what the Legislative at that point the Joint Convention can move to cess. Record shows. Well, the Supreme Court of the recess until the Supreme Judicial Court res­ The Supreme Judicial Court can be assured State of Maine is going to be impaired perma­ ponds to that inquiry. Why has not this logical that the flood gates will be opened and our in­ nently be dealing with an issue that the people route been taken? The answer is obvious, the creasingly, lawless legislature will be turning of the State are asking? The Legislature will be Republican Party is afraid to ask the Joint Con­ to them on every possible occasion for a deci­ lawless, by passing this Order and asking the vention to table a nomination, because it does sion. The precedent that they set with these Court for an opinion that everyone is asking not think that it has the votes. questions will be felt by the outer reaches of for? Lawless, impaired, I just cannot react The leaders of the Republican party and Mr. our state government for years to come. positively when the minority leader says that if Cragin and the law firm of Verrill and Dana is I urge the members of this Senate to reject we had framed things differently, if we had afraid to allow the Joint Convention to work its the motion of the good Senator from Knox, Sen­ gone into a Joint Convention and let the Repub­ will. This fear is so deep that they are willing to ator Collins. To keep from our Supreme Court lican nominee be nominated and then recessed pervert our usual processes and give the Su­ this abstract and political issue. the Joint Convention that they would have had preme Judicial Court an abstract question. Therefore, Mr. President, I move that this no objections. That it is only the procedures An abstract question only because they do order be indefinitely postponed. I request that that they are concerned about? Boush. not have the political muscle to win a simple it be taken by the Yeas and Nays. In every inch of the way, the Democratic tabling motion. This is the essence of a political The PRESIDENT: A Roll Call has been re­ Party has been trying to toss barriers into the move and our Law Court should not be in­ quested. The Chair recognizes the Senator resolution of the problem with editorial com­ volved. There is a long and fundamental tradi­ from Kennebec Senator Katz. ments my constituents, your constituents. are tion that the American Judiciary should absent Senator KATZ: Mr. President, I would be asking should be resolved. Indeed Mr. Cragin itself from political embroilment. The Court is presumptuous if I attempted to respond to the himself says that if it is not resolved, he would to determine how justice is to be meted out in legal arguments of the minority floorleader. I not be a candidate. Well, I imagine that the our society, and not to decide political ques­ am confident that others more capable, will legal concerns about whether or not this is a tions for elected officials who are unwilling or follow my debate. Solemn Occasion can be dealt with better then who are afraid to face them. I will vote to But I could not help but listen to the remarks 1. If the Democratic Party here today is trying oppose sending these questions to the Supreme of the minority leader and think that, in hea­ to cover Itself with a blanket of piety in oppos­ Court, because the issue is at first abstract, ven's name, where has he been? Is there any ing the resolution of the Solemn question it falls and second political. Our constitution requires question in the minds of anybody who has been far short of its mark. that we meet in order to select certain consti­ reading the papers for weeks, that Charles L. The PRESIDENT: The Chair recognizes the tutional officers traditionally among these has Cragin is going to be the nominee of the Repub­ Senator from Knox Senator Collins. been, the office of Attorney General. This se­ lican Party for Attorney General, if this cloud lection is to be done by Joint Convention and by is removed? Is there anybody who has not been Senator COLLINS: Mr. President and mem­ secret ballot. No such Joint Convention has reading the steady stream of editorial com­ bers of the Senate. I understand the concerns of been called, however, and there is no particu­ ment, asking and pleading with the Legislature the minority leader, Senator from Cumberland lar individual as yet to be nominated for this to go to the Court in a proper fashion to resolve Senator Conley. They have to do not with the high post. Each political party in its own way this question which goes far beyond the ques­ difficulty of this question, or with the need that through the media has broadcast the possible tion of whether or not Mr. Cragin can serve, or the question be answered, but with the question names for the selection, but no official legal whether or not Mr. Cragin's partners will be of timing. When some of us were here nearly a act has yet been taken. Therefore before the penalized if he should serve? Has he read any month ago, as members of the lO8th Legis­ Joint Convention has met and while no nomi­ of the editorials including the one in the Bangor lature, we sought at that time, to resolve this nations have been made we are asking the Su­ Daily News this morning, and I must confess same question, by sending the question to the preme Court to rule on a completely abstract that I make it a point not to read the editorial Law Court. The Law Court came back to us question, this can only make for bad law. page of the Bangor Dailey News, but this was with an answer saying in effect that we were Second, the issue is obviously a political one, on my desk. premature. They pointed out that the lOBth the Republican Party is trying to free itself I would like to read a few remarks which are Legislature should not be asking questions that from a difficult political position. They have typical of what I have been reading in editorial were the problems of the 109th Legislature. LEGISLATIVE RECORD - SENATE, JANUARY 3, 1979 15

No where in that opinion, which I have read Some of us will remember that a young man portant question before us today and that is. and reread many times, do I find any hint that named Edmund Muskie, who was a lawyer in the election of the Attorney General. I think the que,tion ought not to be answered when it Waterville, at one time had a legal association that when we go into Joint Convention, we became timely. So I think the question that in his law practice. Some of us will remember should ballot and elect one, whether it be Mr the minority leader has presented is whether the clients that he represented were important Merrill or whether it be Mr. Cragin. the timeliness is before we move in the Joint business interests in the state of Maine, power­ Therefore, I urge the Senate to vote against Convention or even after election. ful interests. We all remember that firm of the motion of the good Senator from Knox. Sen­ I submit to you that it is much better service Marden and Dubord has represented the lead­ ator Collins. to the people of this state, to do it in the most ing utilities, the leading banks, the leading in­ The PRESIDENT: The Chair recognizes the efficent and orderly manner. Not to have the surance companies of this state. I have the list Senator from Kennebec, Senator Katz. prospect of an Attorney General being elected here, so long that I won't read it to you. Senator KATZ: Mr. President. the proposal and having to resign. Not to have a period of I think that we need to face up to the issue of made by the minority leader sounds so reason­ uncertainty while this man is in office or wait­ what the statute means. It is not a one-sided able. Let's go into convention and let's elect an ing to be sworn into office, but to get the issue, politically, it is a political issue because Attorney General. If one did not understand answer as early on as possible. It is the judge­ all of our issues are political business of this that the Republican nominee will not even be a ment of many attorneys, and we all know that state. I hope that you will join with me in candidate, will not permit his name to be attorneys will differ in their opinions, but it is voting "no" on this motion to postpone this placed before the convention for election until the judgement of many attorneys that this is an order. the cloud is removed, one can just get swal­ appropriate time to seek the answer. The PRESIDENT: The Chair recognizes the lowed by the reasonableness of the approach I once again point out to the Senate, that the Senator of Penobscot Senator Pray. that is suggested. answer to this question effects all of our Consti­ Senator PRAY: Mr. President and members The Constitution makes a unique distinction tutional Officers, the Governor, as well as the of the Senate. As I sat here and listened to the between the other constitutional officers and Secretary of State, the State Treasurer, the distinguished Senator from Knox, Senator Col­ the Attorney General. With respect to the Sec­ State Auditor and the Attorney General. It will lins, whose legal understandings are far great­ retary of State, the constitution requires us in have to be faced in years to come, if not now; er than mine, the choice of his words left me a our first session as an in-coming Legislature to and it needs to be faced now in order to ac­ little troubled, as he talked about the individu­ elect a Secretary of State. The Constitution re­ complish the orderly process of the State's als who belong to this prestigious law firm quires us in our first session to go in and elect a business. which is in question before us. He asked us, as Treasurer. But when it comes to the Attorney I, too, was a part of the Legislature that en­ a Chamber whether or not we are going to pre­ General, the Constitution makes a distinction. acted the statute that is now in question. The clude the individuals who belong to a law firm It says that the Attorney General shall be elect­ statute as passed in 1975 was part of Senate such as that, from serving the people of Maine. ed biennially and it doesn't say in the first ses­ Amendment "297", the Committee Amend­ I would only point out again, as the Demo­ sion. ment that came out of the State Government cratic Floor Leader raised the question, wheth­ We feel that we have conscientiously tried to Committee. I think many of us as we read leg­ er or not, Charles Cragin could enter into the pursue the guidance that we feel we got when islation rely rather heavily on the statement of nomination in the Joint Convention and be the Courts wrote back to us in response to the fact that accompanies a bill or an amendment, elected and serve as Attorney General. The lO8th Senate's request. We feel that a Solemn because we do not have time often to read answer to that is that he could definitely do Occasion does exist and we feel that prudent every word of a statute. The statement of fact that. The question is how does it relate to the men and women should know, in advance. for in that particular amendment is as follows: law firm? Just to clarify that we are not at­ all time, as to the applicability of this law. We "The purpose of this amendment is to provide tempting to preclude any individual. from serv­ ask our Democratic friends to join with us in criminal penalties for former members of the ing a constitutional office. removing this cloud in a timely manner. classified or unclassified service employed by It is the interpretation of the law to include The PRESIDENT: The Chair recognizes the an executive agency who continue to partici­ or prevent conflict of interest. As the majority Senator from Aroostook, Senator Carpenter. pate in a substantial way in certain of the gov­ Floor Leader so quickly pointed out editorials, Senator CARPENTER: Mr. President. ernmental areas they were responsible for I would also point out that Marshal Stone of the ladies and gentlemen of the Senate. I might while state employees." This amendment also Bangor Daily News also made reference to the just briefly make a couple of remarks. I guess applies to former partners of current state em­ fact, that if the law does not apply to the Attor­ my first remark would deal with tradition. ployees. ney General, it should. So all editorials are not which has been bailed about a good deal here If I had seen the words, officers, or constitu­ definitely saying that this is exemplary posi­ the last few minutes. We witnessed this morn­ tional officers, or Governor or whatever, in tion, and that is the question as it is put before ing, whether the spectators here, are aware or that statement of fact, I certainly would not us. not, a good bit of good old Maine tradition. have voted for it. But the language leaves some The PRESIDENT: The Chair recognizes the which I don't think is nearly as meaningful as questions in the minds of many and it needs to Senator from Cumberland, Senator Conley. the tradition that we should be taking part in be resolved. If issues like this are not resolved, Senator CONLEY: Mr. President and pre­ this afternoon in the election of the Attornev what is the consequence to the quality of the sent members of the Senate. First, I have a General. We witnessed the separate swearing people who will be leaders in serving this great deal of respect for the judicial wisdom of in of the Senator of Franklin, who traditionally State? the good Senator from Knox, Senator Collins. has been sworn in separately because years I think back to a time when the State Chair­ But I would submit, if the good Senator from ago he use to stoke State House fires. We sat man of the Democratic party was a partner in Knox, Senator Collins, was Mr. Sam Collins, here for a few minutes while my good friend. the firm of Verrill and Dana. I remember the private citizen of the State of Maine, would he Senator Redmond, was taken downstairs. even time when a partner in Verrill and Dana was be able to submit a question through the though he was here as early as any of us this the Democratic nominee to be Governor of this Courts, by taking the shortcut such as the pro­ morning, and he was taken downstairs and state. I remember the time when a partner of cedure that is being used here today for some­ sworn in separately by the Governor, because Verrill and Dana became a Democratic con­ thing entirely different that may take effect traditionally, symbolically, was out of the gressman from the State of Maine. I remember upon his welfare or the welfare of someone else Chamber stoking the State House fires. This is the time when a partner of Verrill and Dana close to him? r say, "no" and I think that every­ a tradition that, apparently, is still very much became a judge of the United States District one else here agrees. in vogue in this body and this Legislature. but. Court from the State of Maine. I remember the With respect to the Coffins and Dubords and yet the tradition of electing our constitutional time when a classmate and friend of mine, a the Muskies, yes, they have been outstanding officers is no longer. Democrat leader, a partner, in the firm of Ver­ citizens in this State, but we, must point out I would also submit to the members of this rill and Dana became a Federal Judge in the too, that this was all previous or prior to this body that the very informal discussions that second highest echelon of Federal Courts in law that was passed in 1975. took place during the pre-legislative confer­ this country, where he has served with distinc­ There are other questions that come to my ence as to who was going to be the next Attor­ tion. The Senator of Kennebec, Senator Katz, mind, with respect to when tomorrow night the ney General, Secretary of State. State has brought to mind, the performance of a par­ Governor-elect is sworn into office, who is the Treasurer, are certainly not formal votes, they ticular member of a Waterville firm, the head of the Attorney General's Department? aren't binding in any way. In fact, I was lobbied Marden and Dubord firm. I remember further Do we have a constitutional officer to rep­ yesterday by a gentleman who, I believe, was a back than that, when the father of that Attor­ resent this State in any type of a legal question, defeated candidate for one of those positions. ney General was a Democrat nominee to be that may come before it? he doesn't believe that he is out of the running Governor of this State. I submit again, I think, in all fairness that we yet, he is still in there scrapping. I don't be­ The Governor is a constitutional officer, just should go to the Joint Convention this afternoon lieve that there has been any formal nomi­ the same as the Attorney General is a constitu­ and let the chips fall where they lie, elect an nation made of a State Treasurer, at this point. tional officer. Do we intend do deny ourselves Attorney General. I don't want to cloud the air I have also heard the argument about the the services of these outstanding Democrats in one bit, with respect to the qualifications of great Democratic leaders who have served the the future if men of that caliber come along in Charles 1. Cragin III. I think that everybody in State of Maine. I would just reiterate the words leading law firms, or accounting firms, or busi­ this Legislature knows that he is an extremely of my good floor leader from Cumberland, Sen­ ness firms, in this state? We certainly need to able individual. ator Conley, and rebut the Bangor Daily News know the answer to this question. I believe that we have a very much more im- editorial, in that I don't believe this particular 16 LEGISLATIVE RECORD - SENATE, JANUARY 3, 1979

law was in effect when Mr. Dubord served the bers of the Senate. I would like to pose a ques­ of copies as may be required. (SP 012) State of Maine. tion through the chair, if I may, to the good Which was Read and Passed. I would just ask, I guess, a former member Senator from Knox, Senator Collins. That is, Sent down forthwith for concurrence. of this body. A friend of all of us, a question who does assume the constitutional power that was posed to me, as to why couldn't our within the Attorney General's office once the On motion by Senator Redmond of Somerset. good friend from Pittsfield, Mr. Cianchette, Governor-elect is sworn into office tomorrow ORDERED, the House concurring, that the come back here the next time the Legislature evening? Clerk of the House and the Secretary of the decides to change truck weight law, we could The PRESIDENT: Senator Conley posed a Senate be authorized to furnish 100 15¢ postage have the Supreme Court decide on how the question through the Chair to the Senator from stamps for each member of the House and axles on all the trucks should be rearranged? Knox, Senator Collins, who may answer if he so Senate for the purpose of distributing various Now you chuckle and you smile, but it is a ques­ desires. Is the Senator ready for the question? reports of the Departments of State and other tion very similar to the one we are proposing to A Roll Call has been requested. Under the Con­ public documents such as they may desire to ask the Supreme Court, if we follow this order stitution, in order for the Chair to order a Roll mail to the citizens of the State. (SP 013) that has been proposed. Call it requires the affirmative vote of at least Which was Read and Passed. I would mention to Senator Katz he didn't one-fifth of those Senators present and voting. Sent down forthwith for concurrence. happen to ask me. I was around in the 107th. I Will all those Senators in favor of ordering a voted for this particular bill. He didn't happen Roll.Call, please rise and remain standing until On motion by Senator Minkowsky of Andros­ to ask me my intent or what I thought the counted. coggin, intent was when I voted on it. Obviously more than one-fifth having arisen ORDERED, the House concurring, that the I would say to you, that many times we a Roll Call is Ordered. Legislative Finance Officer be authorized and passed legislation up here and the intent is per­ The pending question before the Senate, is directed to prepare weekly, from expense ac­ ceived to be different than what we thought it the Motion by the Senator from Cumberland, counts to be submitted to him by the members was when we were voting on the bilL I would Senator Conley, that this order be Indefinitely of the Senate and House, expense rosters show­ refer the Senator from Kennebec Senator Katz, Postponed. ing the entitlement of each member for meals to a rather infamous piece of legislation called A yes vote will be in favor of Indefinite Post- allowance and lodging reimbursement and to L. D. 1994, which a large percentage of the ponement. obtain approval thereof by the President of the people in this state felt intentionally took away A nay vote will be opposed. Senate and the Speaker of the House, respec­ their local control, I think that probably had The Doorkeepers will secure the chamber. tively, and deliver the same to the State Con­ you asked Senator Katz and the other members The Secretary will call the Roll. troller for processing and payment, in the of the Legislature that passed that particular ROLL CALL manner and form recommended by the Joint statute that if it was their intent, that local con­ YEAS-Carpenter, Clark, Conley, Danton, Interim Committee of the 101st Legislature trol over school funding, be removed that un­ Farley, Martin, Minkowsky, Najarian, created to study and report on a method of im­ doubtedly, the question would have been, "oh O'Leary, Pray, Silverman, Trafton, Usher plementing the administration of the provision no, of course not" but yet that bill was repealed NA YS-Ault, Chapman, Collins, Devoe, of law relating to the mileage and expenses for because of the perceived intent. I guess I would Emerson, Gill, Hichens, Huber, Katz, Lovell, members of the Legislature; and be it further end by touching upon something that hasn't McBreairty, Perkins, Pierce, Redmond, Shute, ORDERED, that the Legislative Finance Of­ been really brought out very carefully. Many of Sutton, Teague, Trotzky, Sewall ficer be authorized and directed to provide the the members of this body and the other body A Roll Call was had. forms necessary for such purpose and provide are business people, attorneys, and every day 13 Senators having voted in the affirmative suitable space in his office for the filing and when they sit in this chamber, they must make and 19 Senators in the negative, the Motion to safekeeping of all such expense accounts and decisions as to conflict of interest and they Indefinitely Postpone does not prevaiL other papers and records pertaining thereto. must decide on their own. They must go home The Order was passed. (SP 014) at night and they must wrestle these problems Which was Read and Passed. as to whether or not if they vote on a particular On motion by Senator Conley of Cumberland, Sent down forthwith for concurrence. issue they are in conflict of interest. I don't ORDERED, that the rules of the Senate of think that we are asking the particular individ­ the One Hundred and Eighth Legislature be the On Motion by Senator Farley of York, ual mentioned in this order anything different­ rules of the Senate. ORDERED, the House concurring, that tele­ ly than what we ask ourselves everyday. That Which was Read and Passed. phone service may be provided for each is to decide for himself whether he would be in member of the Senate and House, and each rep­ violation of the statute whether he and his On motion by Senator Perkins of Hancock, resentative from the Indian Tribes at the Leg­ former law partners could be in conflict of in­ ORDERED, the House concurring, that 3,500 islature for a reasonable number of calls, of terest, if he were to become the Attorney Gen­ copies of the Governor's Message be printed. reasonable duration, as determined by the eral. (SP 010) President of the Senate as to members of the This is a question that I have' had to ask Which was Read and Passed. Senate and the Speaker of the House as to myself, and all the members of this body have Sent down forthwith for concurrence members of the House and the representatives had to ask. I think it is a question that should from the Indian Tribes, to points within the not be forwarded to Law Courts. I think that I On motion by Senator Carpenter of Aroos­ limits of the State of Maine, the privilege agree 100% with my floor leader that we are took, granted to be a personal privilege, not to be ex­ subverting the intent of the Solemn Occasion if ORDERED, the House concurring, that the ercised by other than the members or rep­ we go to them on this particular question. I do Secretary of the Senate and the Clerk of the resentatives, that each member of the Senate agree with him and disagree with the good Sen­ House, respectively, purchase such services, and House, and each representative from the ator from Kennebec, Senator Katz that this supplies and equipment as may be needed to Indian Tribes at the Legislature, may be pro­ will not be a precedent-setting Solemn Occa­ carry on business of the Senate and the House, vided with a credit card under the direction of sion, by any means. I think it certainly will, respectively; and be it further the Secretary of the Senate and Clerk of the and we will see many questions going before ORDERED, that in the interim when the House, respectively, the cost of this service to the Court if they answer this one, which in the Legislature is not in session, purchases of be paid to the New England Telephone Compa­ past we have seen them refuse to answer, due equipment by the Clerk of the House or the Sec­ ny at regular tariff rates; and be it further to lack of Solemn Occasion. So I would respect­ retary of the Senate shall be subject to the ap­ ORDERED, that the President of the Senate fully request that the members of this body proval of the Legislative Administrative or the Speaker of the House may, upon a find­ vote to indefinitely postpone the order present­ Director. (SP 011) ing of abuse of the privilege of telephone ser­ ly before us and allow the people involved to Which was Read. vice by a member of the Senate or a member of decide for themselves whether they are in con­ On motioQ by Senator Katz of Kennebec, the House, respectively, temporarily suspend flict or not. tabled pending passage. or terminate the privilege of said telephone They certainly may run for the office, if they service to that member. are nominated. There are other people that On motion by Senator Chapman of Sagada­ (S. P. 15) have been mentioned in the press as possible hoc, Which was Read and Passed. nominees of both parties for the post of Attor­ ORDERED, the House concurring, that Sent down forthwith for concurrence. ney General. If the individuals mentioned in there be prepared, after adjournment of the this order are, in fact, nominated in formal present session, by the Legislative Information On motion by Senator Sutton of Oxford, Joint Convention, and I certainly think that Officer, a Register of all the Bills and Resolves ORDERED, the House concurring, that they have the wherewithall, especially Mr. considered by both branches of the Legislature, there be paid to the members of the Senate and Cragin having been associated with such a showing the history and final disposition of House as advances on account of compensation prestigious law firm, certainly has the ability each Bill and Resolve and that there be printed established by statute, the amount of Three and the intelligence, we all know that, to decide 600 copies of the same. The Legislative Infor­ Hundred and Sixty Dollars ($360) bi-weekly. these questions on his own. Thank you. mation Officer shall mail a copy of the Regis­ according to lists certified to the State Control­ The PRESIDENT: The Chair recognizes the ter to each member and officer of the ler by the President of the Senate and Speaker Senator from Cumberland, Senator Conley. Legislature and the State Law and Legislative of the House, respectively. Senator CONLEY: Mr. President and mem- Reference Library shall receive such number (S. P. 16) LEGISLATIVE RECORD - SENATE, JANUARY 3, 1979 17

Which was Read and Passed. Which was Read and Passed. Which was Read and Passed. Sent down forthwith for concurrence. On motion of Senator O'Leary of Oxford, On motion by Senator Pierce of Kennebec. On motion by Senator Shute of Waldo, ORDERED, that the Secretary of the Senate ORDERED, that the Secretary of the Senate ORDERED, the House concurring, that the be authorized to purchase five thousand (5,000) be directed to furnish each member of the Secretary of the Senate be authorized to furn­ copies. of the folder entitled "This Is Your Leg­ Senate, during the present session with two ish to the Superintendent of Public Printing, islature." and five thousand (5,000) copies of daily newspapers printed in the State, as each postage on all correspondence relative to ad­ the pamphlet entitled "How a Bill Becomes a member may direct. vertising committee hearings during the pre­ Law in Maine," from the League of Women Which was Read and Passed. sent session, same to be charged to legislative Voters of Maine for the use members of the expense. Senate. Senator Pray of Penobscot was granted (S. P. 18) Which was Read and Passed. unanimous consent to address the Senate off Which was Read and Passed. the record. Sent down forthwith for concurrence. On motion by Senator Collins of Knox, ORDERED, that the Secretary of the Senate On Motion by Senator Pierce of Kennebec. On motion by the Senator Pierce of Kenne­ prepare and have printed five hundred di­ Recessed until 3: 55 this afternoon. bec, agrams of the Senate Chamber for the use of ORDERED, the House concurring, that the the Senate. Recess Secretary of the Senate and Clerk of the House Which was Read and Passed. jointly prepare the Senate and House Register After Recess and that 40,000 copies be printed for the use of On motion by Senator Danton of York, the Legislature. ORDERED, that the Secretary of the Senate The Senate called to order by the President. (S. P. 17) be directed to secure uniforms for the subordi­ Which was Read and Passed. nate officers of the Senate. THE PRESIDENT: Would there be anv ob­ Sent down forthwith for concurrence. Which was Read and Passed. jection from the Senate, if the Governor were to go tonight and swear Senator-elect Cote in" On motion by Senator Najarian of Cumber­ On motion by Senator Huber of Cumberland, The Chair hears no objection. I will accept the land. ORDERED, that the Secretary of the Senate Governor's kind offer to do this. ORDERED, the House concurring, that be authorized to invite the clergymen of Augus­ three hundred twenty-five (325) copies of the ta, Hallowell and Gardiner to officiate as Chap­ On motion by Senator Pierce of Kennebec. Legislative Record for the session of 1979 be lains of the Senate, or to invite clergymen from recessed until 7 o'clock in the evening. printed. one copy for each of the members of other areas of the State as requested by any the Senate. House of Representatives, the Sec­ member of the Senate, and be it further Recess retary of the Senate and Clerk of the House, ORDERED, that all clergymen acting as and the remainder to be deposited with the Chaplains of the Senate shall receive $10.00 for After Recess State Law Librarian for exchange and library each officiation. The same is to be approved by use: and be it further the Secretary of the Senate. The Senate called to Order by the President. ORDERED. that suitable index be prepared Which was Read and Passed. for such Legislative Record, under the direc­ Out of Order and Under suspension of the tion of the Director of Legislative Research. On motion by Senator Clark of Cumberland, rules, the Senate voted to take up the follow­ (S. P. 19) ORDERED, that the Official Reporter of the ing: Which was Read and Passed. Senate be authorized to procure the services of Communication Sent down forthwith for concurrence. an assistant reporter during the present ses­ State of Maine sion. Supreme Judicial Court On motion by Senator Lovell of York, Which was Read and Passed. Portland, Maine 04112 ORDERED, the House concurring, that any January 3, 1979 Town or City Clerk or Board of County Com­ On motion by Senator Teague of Somerset, Mrs. May M. Ross missioners may, upon written request to the ORDERED, that the Senate Majority Floor- Secretary of the Senate Document Clerk receive without charge, leader and the Senate Minority Floorleader be State House copies of all printed bills, so that there may be authorized to hire one secretary each. Augusta, ME 04333 available to the public during the legislative Which was Read and Passed. Dear Mrs. Ross: session a complete and convenient file of all I have the honor to transmit herewith the re­ printed bills. On motion by Senator Pray of Penobscot, sponse of the Justices of the Supreme Judicial (S. P. 20) ORDERED, that all Bills and Resolves car- Court given pursuant to the Senate's request Which was Read and Passed. rying or requiring an appropriation or involv­ for an advisory opinion of the Justices. which Sent down forthwith for concurrence. ing a loss of revenue that are in order to be was received January 3, 1979. passed to be enacted, or finally passed, shall, Sincerely yours. On motion by Senator Martin of Aroostook, at the request of a member of the Committee VINCENT L. McKUSICK ORDERED, the House concurring, that the on Appropriations and Financial Affairs, be ANSWER OF THE JUSTICES rooms in the State House and State Office placed on a special calendar to be called up for To the Honorable Senate of the State of Maine: Building used by the One Hundred and Eighth consideration only by a member of that com­ In compliance with the provisions of Article Legislature as hearing rooms be reserved for mittee. VI, section 3 of the Constitution of Maine. we. hearing rooms for the One Hundred and Ninth Which was Read and Passed. the undersigned Justices of the Supreme Judi­ and succeeding Legislatures and be released cial Court, respectfully submit the following for other purposes only upon approval by the On motion by Senator Trotzky of Penobscot, reply to the questions propounded to us by the President of the Senate and Speaker of the ORDERED, that all Bills and Resolves car- Honorable Senate on January 3, 1979. which House. rying or requiring an appropriation of highway were received by us on January 3, 1979. (S. P. 21) revenue or involving a loss of highway revenue The Justices of the Supreme Judicial Court of Which was Read and Passed. that are in order to be passed, to be enacted, or Maine have historically shown a conscientious Sent down forthwith for concurrence. finally passed, shall, at the request of a desire to answer questions propounded to them member of the Committee on Transportation, by the executive or legislative departments of On motion by Senator Devoe of Penobscot, be placed on a special calendar to be called up government pursuant to Article VI, section 3 of ORDERED. the House concurring, that all for consideration only by a member of that the Constitution of MainelThe Justices have printing and binding authorized by the Legis­ committee. recognized, however, that upon receipt of ques­ la ture shall be under the direction of the Secre­ Which was Read and Passed tions from one of the other branches of govern­ tarv of the Senate and Clerk of the House. ment, it is first their constitutional dutv to . (S. P. 22) On motion by Senator Trafton of Androscog­ gin, investigate with care whether in the given situ­ Which was Read and Passed. ORDERED, that the President of the Senate ation the Constitution denies them the right to Sent down forthwith for concurrence. is authorized. at his discretion, to permit radio answer the questions propounded. In making or sound television film or live television, or that investigation the Justices have been On motion by Senator Ault of Kennebec, any two or three of these communication keenly aware that the provision of the Maine ORDERED. that the subordinate officers of media, on the floor of the Senate while the Constitution empowering them to give advisory the Senate be appointed as follows: by the Senate is in session. opinions to the other branches represents an President, a Secretary to the President; by the Which was Read and Passed. unusual and therefore limited exception to two Secretary, a reporter, an assistant Postmas­ overriding principles binding upon the judici­ ter. four secretaries, and three stenograpl!ers, On motion by Senator Gill of Cumberland, ary. First, the Constitution of Maine in Article one of whom will operate the Public Address ORDERED, that the Senate hold one session III expressly declares the foundational doc­ System. a day commencing at 10 o'clock in the forenoon trine of separation powers; the executive. leg- until otherwise ordered. 18 LEGISLATIVE RECORD - SENATE, JANUARY 3,1979

islative, and judicial departments of its essential\y political duty of electing the so­ 8 Opinion of tbe Justices, Me., 339 A.2d 483, 492 government, and the powers thereof, are caned constitutional officers, including the At­ (1975). strictly separated2, Second, by an otherwise torney General, In a similar circumstance in Final\y, at their root, al\ of the questions universal rule the judicial power may be exer­ 1933, the Justices advised the Senate that the seek from the Justices an interpretation of an cised only in an actual case and controversy; Constitution of Maine did not authorize the Jus­ existing statute. This creates grave doubts as that is, only in a concrete fact situation involv­ tices to answer questions propounded by the to the existence of a solemn occasion. First, ing adversary litigants who have an appropri­ Senate that related to the powers and duties, the Legislature in any event may by amendato­ ate interest in developing the relevant facts not of the Senate, but of a proposed constitu­ ry enactment eliminate any ambiguity it finds and arguing the applicable legal principles, In tional convention.6 We must do the same here. in an existing statute. Such amendment would light of those principles the federal govern­ Furthermore, on its face. the statute that is have the force of law. 9 An advisory opinion has ment and al\ but a few states do not permit ad­ the subject of the questions, .5 M.R.S.A. § no such force. It is merely the opinion of the in­ visory opinions at alL 15(2), while imposing prohibitions and possible dividual Justices, not the binding decision of 1 Article VI, section 3 reads as fol\ows: penalties upon any former partner of "a person the Supreme Judicial Court sitting as the Law "Section 3. The Justices of the Supreme Ju­ who is currently a member of the classified or Court. Second, an advisory opinion interpreting dicial Court shal\ be obliged to give their unclassified service employed by an executive an existing statute, though not having the force opinion upon important questions of law, and agency," whoever such "person" is by the stat­ of law, may jeopardize private rights and upon solemn occasions, when required by the ute intended to be, imposes no prohibitions or public interests created by such statute. IO As Governor, Senate or House of Representa­ penalties whatever upon that person himself. the Justices said in 1936, "any expression of tives." Thus, even if such "person" includes the Attor­ opinion might prejudice the question before the 2 Article III, entitled "Distribution of ney General, the questions propounded do not arising of any occasion for its legal determina­ Powers," reads as fol\ows: relate to the legal qualifications of that person tion."l1 "Section 1. The powers of this govern­ to discharge the duties of that office. Rather, 9 Opinion of tbe Justices, Me., 355 A.2d 341. 390 ment shal\ be divided into three distinct de­ the questions seek the opinion of the Justices as (1976); Opinion of tbe Justices, Me., 339 A.2d partments, the legislative, executive and to possible peripheral consequences on his 483, 488 (1975). See also Answer of tbe Jus­ judicial, former partners of such person's serving as At­ tices, - Mass. - , 374 N. E. 2d 1345, 1346-47 "Section 2. No person or persons, belong­ torney General, Also, the outcome of the politi­ (1978). ing to one of these departments, shal\ exer­ cal process in the convention of Senators and 10 Answer of tbe Justices, - Mass. -, 374 N. cise any of the powers properly belonging to Representatives in choosing among the poten­ E. 2d 1345, 1347 (1978). See also Opinion of either of the others, except in the cases tial candidates for the office is still hidden in tbe Justices, 125 Me. 529, 539, 133 A. 265, 270 herein expressly directed or permitted." the unknown future. Thus, whether the applica­ (1926) (Answer of Dunn, J., later Dunn, C. Recognizing the extraordinary nature of ad- tion of 5 M. R. S. A. § 15(2) will ever come in J.). visory opinions, the draftsmen of our Maine issue remains in the realm of speCUlation. As 11 Opinion of the Justices, 135 Me. 519, 522, 191 Constitution, in 1819, fol\owing the model of the the Justices stated in a comparable situation, A. 485, 487 (1936). Massachusetts Constitution of 1780, empo­ the questions here posed are "at a stage yet too For al\ these reasons, we conclude that we lack wered the Justices of the Supreme Judicial tentative, hypothetical and abstract to have constitutional power, and therefore must re­ Court to render such opinions only "upon im­ achieved the 'live gravity' necessary for the spectfully decline, to answer the questions pro­ portant questions of law" and only "upon existence of a 'solemn occasion'. ") pounded. solemn occasions 3" and only "when requested 6 Opinion of tbe Justices, 132 Me. 491, 167 A. 176 Dated: January 3, 1979. by the Governor. Council, Senate or House of (1933). See also Opinion of tbe Justices, 147 VINCENT 1. McKUSICK Representatives. 4" Even when the Justices Me. 410, 105 A.2d 454 (1952). Chief Justice are constitutional\y empowered to render an ) Opinion of tbe Justices, Me., 330 A.2d 912, 915 CHARLES A. POMEROY advisory opinion, that opinion has no prece­ (1975). SIDNEY W. WERNICK dential value and no conclusive effect as a While we recognize that some of those charg­ JAMES P. ARCHIBALD judgment upon any party, and is not binding ed with the responsibility of choosing an Attor­ THOMAS E. DELAHANTY upon even the individual Justices rendering it ney General may feel inhibited in making a EDWARD S. GODFREY in any subsequent litigated matter before their choice because of the circumstances narrated DAVID A. NICHOLS Court.5 in the preamble to the questions propounded, Associate Justices 3 While the phrase "solemn occasion" is not this fact does not ~ive rise to the constitutional Which was Read and Ordered Placed on File. expressly defined in the Constitution, it has occasion autb9rizmg lis to answer them., We been often interpreted, usual\y in negative find directly relevant the point made in 1975 by Senator Katz of Kennebec was granted unan­ fashion, in various Opinions of the Justices in the Justices' in responding to questions pro­ imous consent to address the Senate off the both Maine and Massachusetts. pounded by the Governor, in which he asserted record. 4 The Council was eliminated as an authorized that "the questioned statement of policy by a requesting body by Amendment XCIV to the majority of the Executive Council 'inhibit(ed) On motion by Senator Pierce of Kennebec, Maine Constitution, effective November 18, or prevent(ed)' his taking action ... " to fill a va­ Recessed until January 4, 1979 at 11 :30 o'clock 1964. cancy on the Public Utilities Commission. in the morning. 5 Martin v. Maine Savings Bank, 154 Me. 259, There the Justices said that since the Governor 147 A.2d 131 (1958). nevertheless continued to have "unlimited" (Recessed) Turning from those general principles to the statutory authority to nominate a candidate of questions propounded to us on January 3, 1979, his choice to fill the vacancy," the matter was we regretful\y conclude that constitutional lim­ one of "future and hypothetical concern until itations on our power to advise another branch the Governor asserts his intention to nominate of government in nonlitigated matters prevent a person who does not meet the particular stan­ us from answering. If we were to address and dards which the Governor understands the express an opinion on the merits of those ques­ Council demands." By analogy, in the present tions. we would in several respects do violence situation the Senators and Representatives in to the limitations imposed upon us by the Con­ convention still have unlimited constitutional stitution of Maine as previously construed on authority to make their choice of an Attorney numerous occasions. General, In this regard it adds nothing to the Although the Senate. a body constitutional\y Justices' constitutional power that, as narrated authorized to request advisory opinions, has in the preamble to the questions propounded, propounded the questions before us, the Senate one of the candidates for Attorney General has has no function or duty to perform in regard to announced his personal decision, for whatever the subject matter of the questions, namely, reasons may motivate him, to refuse to accept the election of the Attorney General, The At­ election as Attorney General if doubt persists torney General is chosen neither by the Senate as to the applicable scope of 5 M.R.S.A. § 15(2). nor by the House nor by a joint session of the As we have already explained whether or not Senate and House. Rather, under the Maine that statute has applicability to former part­ Constitution, Article IX, section 11, the Attor­ ners of the Attorney General does not bear on ney General is chosen "by joint bal\ot of the the legal qualifications of the person chosen as Senators and Representatives in convention," Attorney General to serve in that office. The (Emphasis added) Thus, the Senate has personal decision of a candidate not to accept asked us questions in regard to a function con­ election as Attorney Genera'l for reasons which slitutional\y committed not to the Senate, but are unrelated to his legal qualifications to 10 the ('onvention of those individuals who have serve in that office must be deemed a matter qualified as Senators and Representatives. The essentially private and not sufficient to gener­ Constitution does not empower that convention ate the "solemn occasion" required by section to address questions to the Justices in regard to 3 of Article VI of the Constitution of Maine.