Petitions: Taking The
Direct Route To State/Local Lawmaking
(from Maine Townsman, October 1999)
by Kate Dufour, Legislative Advocate, MMA State & Federal Relations
Historically in Maine, the ability of citizens to have direct access to law making has been an important part of our state and local democratic processes.
The petition process enables citizens to float ideas by peers to determine whether they are in fact issues of significant statewide or local interest. Due to its inherent nature of shifting policymaking responsibility from elected officials to the citizens, the citizens initiative is a process that is explicitly detailed in state statutes and in local ordinances and charters.
In the past 20 years, citizens have been asked to make decisions on initiated bills questioning whether or not stores should open on Sundays (1990), on term limits (1994) and on campaign finance laws (1996). The peoples veto questions have included unsuccessful attempts at repealing laws controlling milk prices (1982) and hunting season on moose (1983) while one successful peoples veto repealed the law banning discrimination based on sexual orientation (1998).
This last legislative session several bills were submitted that would have made the petition process more burdensome. Some people believe that the existing statewide petition process is overused and has created an imbalance in our legislative process.
Setting aside the discussion of whether or not the existing petition process creates too easy an access, most people agree that without some thresholds to meet and clearly detailed filing requirements it is possible the petition process would replace the communication that is necessary to resolve differences between elected policymakers and citizens.
Article IV, Sections 17 and 18 of Maines Constitution authorize the citizens of Maine to address their policy-related grievances through the use of petitions. At the state level there exists two avenues for citizen petitions; the peoples veto and the direct initiative. A peoples veto petition is a process whereby the citizens of the state gather support to overturn a decision made by the legislature. A direct initiative is a process whereby citizens gather support in order to directly impact policy by submitting a bill to the legislature.
Regardless of whether the petition is to veto an act of the legislature or create a direct initiative, the processes are nearly similar. In each case the initiators of the petition are required to submit a written application to the Department of the Secretary of State. The state designed application form requests information on the names, addresses and signatures of five voters, in addition to the applicant, who are designated to receive any notices from the Secretary of State regarding the petition.
An application for a peoples veto must be submitted to the Secretary of State within 10 working days after the adjournment of the legislative session in which the Act in question was passed. In order for the Secretary of State to include on the ballot a peoples veto request, the petitioners must first collect a number of signatures from the registered voters of Maine equal to 10% of the voters participating in the last gubernatorial election. The current number of signatures, set by the gubernatorial election of 1998, is 42,101. Between the 1994 and 1998 elections, 51,131 signatures were needed for a valid petition. The signatures must be filed with the Secretary of State within 90 days after the Legislature has adjourned.
Once all signatures are verified the Governor must schedule a statewide election no less than 60 days and within 6 months of receiving the signatures. The veto question can be placed on the ballot of a general or primary election if the timing requirements are met. If not, the governor must schedule a special election. If the citizens veto fails then the Act in question becomes a law. If the citizens veto succeeds than the Act is void.
An application for a direct initiative of legislation must be filed with the Secretary of State 50 days after the Legislature has convened in the first session or 25 days after the convening of the second session. As is the case in the peoples veto petition, the petitioners must collect a number of signatures equal to 10% of the voters participating in the last gubernatorial election. If the Legislature does not enact the proposed measure, then the issue is submitted without change to the voters of the state in the November general election. If the Legislature enacts the bill without change, a referendum vote is deemed unnecessary unless a peoples veto initiative is filed against the enacted bill.
Since 1980, 20 direct initiatives and three citizens veto petitions have been placed before Maine voters. Figure 1 shows that the use of the citizen-initiated bills has been rather erratic in the past 20 years, with no initiatives being placed on the ballot in some years and up to three citizen initiatives in others. Without apparent reason there seems to be a cycle to the citizens initiative effort. A full slate of these initiatives occurred three times in the 20-year period, all of which were seven years apart. Over the years the success rate of these initiatives has been 60%.
Many of the citizen initiatives that were voted on in Maine in the 1980s and 1990s either had similar themes with different wording or resulted from a national campaign on a particular issue. The forestry compact during later part of the 1990s was a unique, three-choice referendum question that got its start from a citizen initiative.
In 1998 the voters of Maine repealed the decision of the Legislature passing a law banning discrimination based on sexual orientation. In 1995 the voters of Maine had defeated an initiative seeking to ban discrimination based on sexual orientation. Two votes on forestry management issues triggered by a citizen petition were held in 1996 and 1997, with no ultimate result. Maine voters approved term limits for state legislators and constitutional officers in 1993 and for the states Congressional representatives in 1994. The restriction on federal office holders was subsequently declared unconstitutional.
In the 1980s, the subject of multiple citizen initiatives was the production of electricity in Maine by nuclear power and the disposal of nuclear waste. Various votes on these subjects were held in 1980, 1982, 1985, 1987 and 1989.
This year on November 2nd, Maine voters will decide two additional initiated bills, one that addresses the medical use of marijuana and the other proposing a ban on late term abortions.
Based on this 20-year trend analysis, it appears that the Legislature has been rather responsive to issues that impact their constituents. As stated earlier, most of the citizen initiatives in Maine have been of the same genre or were instigated by a national campaign. Maine, in any event, doesnt see the high number of citizen initiatives that some other states, for example Oregon, do.
Tom LaPoint of Mainers for Death With Dignity (MDWD) agrees. He believes that state elected officials are responsive to their constituents.
Ironically, MDWD exercised Maines initiative petition process and collected 50,000 signatures in 10 months supporting physician-assisted deaths and their issue is slated for the November 2000 ballot. When asked why the organization chose the petition route, LaPoint said that although a public opinion poll showed that 71% of Maine residents support physician assisted deaths, the issue had been before the Legislature four times and failed each time.
Although this record would indicate that the Legislature was not responsive, LaPoint replied that a policy addressing physician-assisted deaths is too new for the Maine Legislature to address. It is an issue that has not been tested by many other states. LaPoint felt the Legislature really had no other option but to wait out this emotional issue. He feels that as other states address the issue and establish policy and regulation around assisted deaths, the Maine Legislature would have come around to endorsing the issue. However, with overwhelming statewide support for physician-assisted death, the initiative process was this groups more immediate alternative.
This use of the petition process as an alternative to address an issue that state legislature is not ready to address is the reason why the Sportsman Alliance of Maine (SAM) worked to get two bills submitted in the first session of the 119th Legislature. The bills, although defeated, attempted to establish a more demanding threshold to start a citizen initiative. One bill would have required petitioners to collect a certain percentage of signatures from all of Maines 16 counties. The second would have required petitioners to be 250 feet away from a polling place when collecting signatures on an election day.
SAM Executive Director, George Smith admitted that his organization was concerned about a national organization of animal rights activists attempting to curtail certain trapping and hunting practices in Maine, but Smith maintains that as a matter of public policy there is merit to the idea of collecting signatures for a statewide issue from all areas of the state.
Although disappointed with the loss, SAM will continue to support this type of legislation. Smith explained that the legislative process is at times slow and it takes a lot of education to get issues through. Sometimes the issues are supported immediately, but for the most part education is necessary. Smith believes that without a more stringent process, any issue, whether it is of statewide concern or not, can easily be given statewide status.
Unless otherwise stated in the municipal charter, the process of initiating a policy or repealing an existing local ordinance in town meeting communities is detailed in Title 30-A, section 2522 of Maine statutes. In order for residents to get issues before the municipal officers, the initiators of the petition must collect a number of signatures equal to 10% of the voters in that municipality participating in the last gubernatorial election. Once all signatures have been verified, the municipal officers have the option of placing the issue on the next municipal warrant, which in some cases could be the following year, or are authorized, but not compelled, to hold a special town meeting.
There is one exception to this rule. If placing the petitioned issue on the next warrant article frustrates the purpose of the petition, the initiators may use the same process to petition a notary public to schedule a special town meeting. If a notary public schedules the special town meeting there is question as to whether the decision of the residents is binding on the municipal officers. Basically, the issue is whether or not the municipal officiers refusal to call a special town meeting was unreasonable an issue which may have to be resolved by the courts.
While the basic process for initiating a warrant article or repealing adopted policies in those municipalities with specific ordinances or charter language are similar, the particulars can vary significantly. One variable is the number of signatures necessary to verify a petition. Figure 2 contains a list of those standards in the several municipalities where a citizens initiative was recently conducted as discussed in this article. The required number of signatures to initiate the petition process ranged from a percentage of the total number residents voting in the last gubernatorial election, to a percentage of the total registered voters in the municipality, to a set number. Finally, it is possible that the local law of a charter community does not even provide for voter initiated legislation, or it may limit the subjects for which the process may be used.
At the municipal level the petition process has been used to impact a variety of policies. In the past decade, two issues have emerged frequently in the local initiative process: equal rights and the recall of municipal officers. In a few communities, the petition process has been used to stop or overturn an action of the council or the board of selectmen.
Fueled by the statewide debate on whether or not to ban discrimination based on sexual orientation, many municipalities have or are going through the process of providing this level of protection on the municipal level. Communities that have enacted this type of ordinance include: Portland, South Portland, Long Island, Bar Harbor, Sorrento, and Orono.
The residents of Falmouth will be deciding in November whether or not to support this ban. The Falmouth council enacted an ordinance that would provide equal rights to all residents regardless of sexual orientation. Although the council was interested in sending this issue to the voters of the town, the Falmouth charter does not allow the council to send issues to the voters for approval. A group of citizens, however, successfully petitioned to get this issue before the voters in the upcoming November election. Town officials felt that some people may have signed the petition not because they favored or opposed the councils action, but because they felt it was an issue that should be placed before the voters.
In the early 1990s the Legislature authorized municipalities to adopt ordinances to recall the municipal officers. Previously, this kind of recall could only be done by local charter and it is still the case that school board members can only be recalled through a process established in charter. Since the Legislature created this recall option, several petitions of this nature have been initiated under local recall ordinances. In the town of Buxton, for example, the residents were successful in having two of the three selectmen recalled from office. In the town of Winterport, residents were successful in recalling two selectmen. In Calais, residents successfully recalled three school board members.
In Buxton and Winterport municipal officials were recalled due to a lack of confidence. The inability of the selectmen to work together resulted in the circulation of the petition recalling elected officials in Buxton, while in Winterport a vote against the school budget resulted in a recall election. In Calais, three school board members were recalled because they supported building a temporary school (which would not receive state funding) rather then leasing additional portable classrooms, an expense that would be supported to some extent with state dollars.
Stopping A Council Action
One of the last citizen initiated petitions circulated in Augusta attempted to block an order of the council to settle a school-related lawsuit. The petitioners were unsuccessful in their attempt to collect the full number of signatures required under the citys charter to "stay" the decision of the council. Since that petition, a charter commission has revamped some aspects of the charter, which were believed to be vague. Specifically the commission developed and the voters enacted charter language that specifies that the action of the council is valid until all required signatures are collected and verified. The commission also added language restricting petitions that stayed decisions regarding salaries, wages and appropriations.
Currently there is no provision in the City of Belfasts charter for citizen initiated petitions to stay a decision of council. However, a group of citizens, fueled by their disagreement with an action of the council to appropriate money to library and the YMCA residents, are using their home rule authority to petition for the creation of a charter commission. Lacking a petition process in the Belfast charter, petitioners were unable to "stay" a decision of the council unless they changed the charter to allow for a petition process.
Residents will be given the opportunity to vote on the creation of the charter commission this November. If the charter commission is approved, the commission members will look at all provisions of the existing charter, presumably addressing its lack of a petition process at some point in their deliberations.
Legal Issues and Citizen Petitions
Four sets of issues are common in the petition process at the local level.
One issue involves a petition for an enactment that would be illegal (ultra vires, meaning outside the scope of the municipalitys or petitioners authority) or that is preempted by state or federal law. In these instances, the municipal officers are justified in refusing to place the petitioned article on the warrant. In other words, the petition should be rejected, not for technicalities or philosophical differences, but because it attempts to do something that is illegal.
A second issue involves attempts by citizens to undo an action just taken by town meeting. An example of this was seen earlier this decade in the Town of Vassalboro. A group of Vassalboro citizens presented a petition to the selectmen that would have required a new vote on a bond referendum for school construction, one that the voters had approved two weeks before. The Superior Court upheld the selectmens refusal to place the petitioned article before the voters, holding that the Legislature could not have intended to allow a small minority to interfere with the decisions of the majority of voters by using the petition process (Inhabitants v. Town of Vassalboro v. Denico, 1990).
Third, the language used may not be "the best" or may even be inadequate to accomplish the petitioners goals. One resolution to this problem may be for the municipal officers to offer a "better" worded, alternative article, in addition to the petitioned one.
Finally, use of the petition process for zoning amendments presents a great deal of difficulty since the petitioned article may not be consistent with the comprehensive plan. Under State statute (30-A MRSA, section 4352), all zoning ordinances must be pursuant to and consistent with the comprehensive plan or else are subject to invalidation.
Although citizen initiated petitions have been circulated both at the state and municipal levels, it appears that both municipal and state officials continue to be responsive and available to their constituents and in possession of policymaking authority.
Regardless of the number of petitions filed at the state level, for the most part they are either of a national concern or address issues that are at times difficult for the legislature to address because they are directed at themselves. The responsiveness of state representatives is also supported by the fact that although the petition process is readily available, citizens and interest groups respect the legislative process and continue to address their issues through that process.
On the municipal side of the equation, the mere fact that municipal officials informally encounter their constituents daily and make themselves formally available, through board and council meetings, to all residents regularly, issues of concern can be addressed through communication and compromise rather than through the petition process.