How Judiciary Views Competing Measure
(from Maine Townsman, July 2003)
by Jeff Austin, Legislative Advocate, MMA

Much has been said and written about the efforts of the Legislature and the Governor to craft a “competing measure” to the citizen-initiated School Finance and Tax Reform Act of 2003. Since these two branches of government have been unable to decide what their competing measure will be, it might be useful to review what a “competing measure” is and see what the third branch of government, the Judiciary, has had to say about competing measures over the years.

Constitutional History

It should be noted from the outset that there is no requirement that the Legislature create a competing measure at all. At the local level, certainly, and with respect to most citizen initiatives at the state level, no competing measures are created. The citizen-initiated proposal is simply placed before the voters to sink-or-swim on its own merits. The Legislature is authorized, however, to propose a competing measure, and that authority is contained in the same Constitutional provisions establishing the right of the citizens to have their petitions for changes to the law considered by the voters.

In 1909, the Legislature proposed and the voters adopted Amendment XXXI to the Maine Constitution adding several subsections to Article 4, part 3.  Subsection 18, entitled “Direct Initiatives”, contains the competing measure provision. That subsection of the Constitution, in pertinent part, reads as follows:

“The measure thus proposed [by the citizens], unless enacted without change by the Legislature, at the session at which it was presented, shall be submitted to the electors, together with any amended form,  substitute or recommendation of the Legislature, and in such a manner that the people can choose between the competing measures or reject both.” 

In order to implement the direct initiative provisions, the Legislature enacted chapter 11 of Title 21-A.  Sections 901-906 in that Title of Maine law outline the procedures the Secretary of State must follow in verifying, certifying and otherwise preparing the ballot initiative.

The School Finance and Tax Reform Act of 2003

The School Finance Act, which received a record number of signatures for any citizen initiative ever offered in Maine, has already gone through most of the chapter 11 review by the Secretary of State.  The next step for the direct initiative after the signature gathering and verification was the presentation of the measure to the Legislature.  The School Finance Act was filed with the 121st Legislature and offered for its consideration as LD 1372.  The Legislature did not enact the bill.  In accordance with the Constitution, The School Finance and Tax Reform Act of 2003 must be submitted to the electors as a referendum ballot at the statewide election on November 4, 2003. 

Competing Measure

There is no clear statutory guidance as to what must be done to create a competing measure if the Legislature feels compelled to go that route. Four essential guidelines can be identified from the few cases on that subject that have been decided by Maine’s Supreme Court over the state’s 94-year history of direct citizen initative:

1. It doesn’t matter if the Legislature intends to create a competing measure or not…a competing measure is determined by its substance, not its label.

2. One type of competing measure is alternative legislation that obviously conflicts with the citizen initiative such that one would be repugnant to the other if both were enacted.

3. An alternative measure that competes for support with the citizen initiative without being legally conflicting is also a competing measure.

4. Legitimate emergency legislation is exempted.

Broad Interpretation.  In the leading case on this issue, Farris ex. rel. Dorsky v. Goss 60 A.2d 908 (1948), the Court declared that the process for determining if an action of the legislature is a “competing measure”, is the same as deciding if two different laws are conflicting.  Following the logic of those “conflicting laws” cases, the Court in Farris held that any enactment of the Legislature that would touch a general subject matter covered in a direct initiative would need to be presented as a competing measure.

“A bill which deals broadly with the same general subject matter as an initiative measure, particularly if it deals with it in a manner inconsistent with the initiated measure, so the two cannot stand together, is such a ‘substitute’.”

Specifically, the Farris case involved two bills regarding the rights of organized labor.  The citizen initiated bill, known as the “Barlow Bill”, had two main thrusts: to prohibit closed union shops and to prohibit sympathy strikes.  During the legislative session at which the Barlow Bill was introduced and rejected, the Legislature passed a similar bill known as the Tabb Bill.

The Tabb Bill also prohibited closed union shops, but it did not address sympathy strikes.  Supporters of the Barlow bill asked the Court to declare the Tabb bill as a competing measure.  The Court agreed that since Tabb dealt broadly with the Barlow subject, even though the Tabb bill only dealt with two of Barlow’s eight distinct issues, it must go on the ballot as a competing measure.

Compete For Support.  A 1996 Opinion of the Justices confirmed the Farris Court’s broad interpretation of the competing measure doctrine.  Opinion of Justices, 680 A.2d 446, (1996).  In the Opinion, then Governor King sought the Court’s guidance on whether the Legislature could adopt a “forestry compact” law that would only become effective if a citizen-initiated anti-clear cutting proposal failed at the ballot box.  If the citizen-initiative passed, the “forestry compact” law would become void.  The court held that any such “fade-away” measure was a competing measure and must be on the ballot.

Supporters of the fade-away measure noted that the measure and the citizen initiative would never be forced to “stand together” and therefore should not be held as competitors.  The court rejected that logic.

“In every practical sense, the ‘fade-away’ measure would be  competing for support against the initiated measure.  The  ‘fade-away’ measure would furnish arguments in support of a no vote on the initiated measure.” 

Accordingly, any legislative action that could be used as an argument against the direct initiative would need to be put before the voters, even if it was only enacted contingently.

Fade-In.  What has not been expressly decided is whether a “fade-in” law would be also be deemed a competing measure by the Law Court.  A fade-in law, where the law is only effective if the initiative passes, is a potential with The School Finance and Tax Reform Act of 2003 because the citizen initiative contemplates further legislative action.  A bill enacted before November 4, 2003  that outlines how the state will fund its 55% financial obligation to public education would be a fade-in provision.

The logic of Farris and the 1996 Opinion strongly suggests that such a fade-in measure would also need to be offered as a competing measure.  Any such provision could be crafted to influence the voters either strongly for or against the underlying citizen initiative in the same way that the “fade away” forestry compact legislation was perceived as influencing the vote on the anti-clear cutting citizen initiative.

Emergency Exemption.  In McCaffrey v. Gartley, 377 A.2d 1367 (1977) the Court crafted an exception to the above rules for emergency legislation.  The principal holding is that emergency legislation which affects the subject of an initiative does not have to be submitted to the voters as a competing measure.  The decision, which has strong support from other constitutional provisions, makes practical sense as well.

In McCaffrey, the initiative petition sought to overhaul the state’s school funding mechanism.  The Legislature also passed an emergency change to the school funding formula from a fixed, statewide mill rate to a rate that would result in raising revenues equal to or less than 50% of all school funding.  While the Court recognized the potential of this action to affect the vote on the initiative, it also felt that a true emergency existed and therefore the action did not qualify as a competing measure.  The Court made clear that it would carefully scrutinize any declarations of “emergency” that future Legislatures may make in connection with laws that could impact initiative votes.  However, that same Court said it “must ascribe good will to Legislative bodies.”

Mechanics

Once an enactment of the Legislature has been deemed a “competing measure”, the Secretary of State must place both questions on one ballot, along with a third, neither-of-the-above option.  The Secretary is responsible for the wording of the question summarizing the citizen's initiative. The Legislature is responsible for the wording of the competing measure's question to the voters. Voters must be given the opportunity to vote for one of the two measures or neither of them.  The question with regard to the citizen initiative must be posed in the affirmative, and the Secretary of State has already determined that the question before the voters for The School Finance and Tax Reform Act of 2003 will be as follows:

“Do you want the state to pay 55% of the cost of public education, which includes all special education costs, for the purpose of shifting costs from the property tax to state resources?”

Whether the Legislature will reconvene within the next two months to craft a competing measure is anybody’s guess.