Opinion

Sawyer v. The Legislative Council

Court: Superior Court of Maine
Filed: Mar 16, 2005
Status: Unpublished
On the bench: Donald H. Marden
Cited by: 0 cases
Authority: More cited than 34.1%

Court can even ignore literal meaning of phrases if that meaning thwarts clear legislative objectives

How later courts described this case

Court can even ignore literal meaning of phrases if that meaning thwarts clear legislative objectives
substantive rights of the parties are fixed at the date upon which the cause of action accrued
Strict construction cannot defeat clear intent of statute or construe statute in an unreasonable manner
a cause of action accrues at the time of the judicially recognized injury

Written by the judges who cited it.

The opinion

STATE OF MAINE SUPERIOR COURT

CIVIL ACTION

KENNEBEC, ss. DOCKET NO. » CV-04- 97

SD UArKEN-

W. TOM SAWYER, JR.,

ROBERT A. DAIGLE,

ALBION D. GOODWIN and

GARY E. SUKEFORTH,

Plaintiffs

Vv. DECISION AND ORDER

THE LEGISLATIVE COUNCIL, -

BEVERLY C. DAGGETT, DOMALDL. \, oe

PATRICK COLWELL, and Le

DAVID E. BOULTER,

‘JUN 6 05

Defendants

This matter is before the court on cross-motions for summary judgment pursuant

to MLR. Civ. P. 56. The present dispute involves a claim by the Plaintiffs, former Maine

Legislators, that they are due compensation for service during the Second Special

Session of the 121" Maine Legislature. Maine legislators are elected to serve for two-

year terms, and the Legislature holds sessions during each of these years. The so-called

First Regular Session begins on the first Wednesday of December following the

November general election. See Me. Const. art. IV, pt. 3, § 1. The statutory deadline for

the end of the First Regular Session is the third Wednesday in June. See 3 M.RS.A. § 2

(2004). The so-called Second Regular Session begins on the first Wednesday after the

first Tuesday in January of the following year. See Me. Const. art. IV, pt. 3, § 1. The

statutory deadline for the end of the Second Regular Session is the third Wednesday in

April. See 3 M.R.S.A. § 2 (2004). Although the Maine Constitution does not limit the

type of business that may be conducted during the First Regular Session, the

Constitution limits the business of the Second Regular Session to budgetary and other

specifically enumerated matters. See Me. Const. art. IV, pt. 3, § 1. Because legislators

generally work five days a week when the legislature is in session, a First Regular

Session involves approximately 120 days of work in Augusta and a Second Regular

Session involves approximately 80 days of work in Augusta.

Article IV, Part 3, § 7 of the Maine Constitution states that legislators shall receive

such compensation “as shall be established by law”. Current law provides legislators

with compensation of approximately $19,000.00 for the two-year term. See 3 M.RS.A.

§ 2 (2004).

In addition to the First and Second Regular Sessions, the Legislature may call

itself, or be called by the Governor, into “special session.” At the time of the Second

Special Session of the 121" Maine Legislature, 3 M.RS.A. § 2 provided that “{iJn

addition to the salary paid for the first and second regular sessions of the Legislature,

when a special session is called, the members of the Senate and House of

Representatives shall each be compensated $100 for every day’s attendance.”

The 121" Legislature’s First Regular Session commenced on December 4, 2002,

and adjourned on June 14, 2003. When legislators returned in January of 2004 for the

Second Regular Session, it was generally understood by the Plaintiffs that the session

would likely last until the middle or end of April due to the volume of work to be

accomplished. One of the tasks facing legislators when they returned for the Second

Regular Session was to enact a supplemental budget. The supplemental budget must

take effect by the end of the fiscal year, which occurs annually on June 30.

The Maine Constitution mandates that legislation does not take effect until

ninety days after the adjournment of the legislative session in which it was enacted. See

Me. Const. art. IV, pt. 3, § 16. The State Constitution, however, also contains a limited

exception that applies in the case of an emergency. Under this exception, if a bill

contains a preamble stating the facts constituting the emergency, and the bill passes

both houses by a 2/3 majority, the bill may take effect immediately upon signing by the

Governor. See Id. Hence, in years past, the Legislature typically ensured that the

budget took effect before the end of the fiscal year by passing budgets as emergency

measures by a 2/3 majority.

During the 121 Legislature’s Second Regular Session, however, efforts to pass

the supplemental budget by a 2/3 majority were unsuccessful, and instead, the budget

received the approval of only a simple majority of the members. Therefore, to ensure

that the supplemental budget took effect by June 30, a majority of the Legislature voted

to adjourn the Second Regular Session on January 30, thereby beginning the running of

the 90-day period. This action, however, meant that the Legislature had adjourned

without addressing numerous other pending matters. Thus, before adjourning on

January 30, and apparently realizing that a special session would be required to

complete this unfinished business, the Legislature twice attempted to block the

statutory $100 per day payments that might otherwise be forthcoming. First, an

Emergency Resolve was introduced and failed. The second measure introduced,

however, a Joint Order, managed to pass both houses by a simple majority. The Joint

Order did not purport to change the existing law, but rather, it stated that current law

already provided for legislative compensation through April 21, 2004, the statutory

adjournment date for the Second Regular Session.

Subsequent to the passage of the Joint Order, several senators asked the Attorney

General to give an opinion as to the Order’s effectiveness. The Attorney General

concluded that the Joint Order was likely not effective to eliminate the special session

payments because the State Constitution requires legislative pay to be “established by

law”, This requires that an act or resolve pass both houses of the Legislature and then

be signed by the Governor. The Attorney General did, however, suggest that the

special session payments could possibly be eliminated by amending the legislative pay

statute and by making the amendment retroactive to January 30, 2004.

Thus, during the Second Special Session, a bill was introduced to eliminate

special session payments retroactive to January 30, 2004, just as the Attorney General

suggested. Both the House and Senate passed the bill, which was signed by the

Governor on May 6, 2004. The Act amended 3 M.RS.A. § 2 to specify that special

session payments would not be made for any special session called during the time

period specified for regular sessions. See P.L. 2003, ch. 691, §§ 1, 2. Because the bill was

not an emergency measure, it did not take effect until July 30, 2004, ninety days after the

Second Special Session adjourned.

Each of the Plaintiffs to the present action, W. Tom Sawyer, Jr., Robert A. Daigle,

Albion D. Goodwin, and Gary E. Sukeforth (hereinafter “the Plaintiffs” or “the

Legislators”) served as members of the Maine Legislature during the Second Special

Session of the 121* Maine Legislature, which began on February 3, 2004, and ended on

April 30, 2004. On or before May 3, 2004, each of these individuals requested payment

from Defendant David Boulter, Executive Director of the Legislative Council, of $100 for

each day of their attendance at the Second Special Session. Each of these requests was

denied’.

The Plaintiffs filed their complaint on May 12, 2004, filed their amended

complaint’ on May 13, 2004, and filed their motion for summary judgment on August

24, 2004. All submissions relevant to Plaintiffs’ motion were timely filed. The

’ All legislators apparently were paid $100 per day for days in attendance at the Second Special Session

after April 21, 2004 pursuant to the amended version of 3 M.RS.A. § 2.

* The amended complaint is in three counts. Count I seeks a declaratory judgment; count II asserts a

claim of breach of contract; count III asserts a claim for unpaid wages pursuant to 26 MRSA. § 626-A.

Defendants filed their motion for summary judgment on September 28, 2004. All

Submissions relevant to Defendants’ motion were also timely filed.

The Law Court has explained that:

Summary judgment is no longer an extreme remedy. It is simply a

procedural device for obtaining judicial resolution of those matters that

may be decided without fact-finding. Summary judgment is properly

granted if the facts are not in dispute or, if the defendant has moved for

summary judgment, the evidence favoring the plaintiff is insufficient to

support a verdict for the plaintiff as a matter of law.

Curtis v. Porter, 2001 ME 158, { 7, 784 A.2d 18, 21-22. Summary judgment is proper if

the citations to the record found in the parties’ Rule 56(h) statements demonstrate that

there is no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law. See Dickinson v. Clark, 2001 ME 49, 4, 767 A.2d 303, 305.

“A fact is material if it has the potential to affect the outcome of the case under

governing law.” Levine v. R.B.K. Caly Corp., 2001 ME 77, { 4, n.3, 770 A.2d 653, 655, n.3

(citing Burdzel v. Sobus, 2000 ME 84, ¥ 6, 750 A.2d 573, 575). “The invocation of the

summary judgment procedure does not permit the court to decide an issue of fact, but

only to determine whether a genuine issue of fact exists. The Court cannot decide an

issue of fact no matter how improbable seem the opposing party’s chances of prevailing

at trial.” Searles v. Trustees of St. Joseph’s College, 1997 ME 128, {| 6, 695 A.2d 1206, 1209

(quoting Tallwood Land & Dev. Co. v. Botka, 352 A.2d 753, 755 (Me. 1976)). To avoid a

judgment as a matter of law for a defendant, a plaintiff must establish a prima facie case

for each element of her cause of action. See Fleming v. Gardner, 658 A.2d 1074, 1076 (Me.

1995).

1. Is This a Non-Justiciable Dispute?

In their brief, the Defendants first assert that the present action, which is

essentially a dispute within the Legislature regarding the budget process, presents a

nonjusticiable political question. The Defendants note that the Plaintiffs filed this

lawsuit in an effort to shape the budgetary process in the future because they were

unhappy that the majority did not make more concessions to achieve a 2/3 majority on

the supplemental budget. In the Defendants’ view, this is a purely political question

within a coordinate branch of state government, and the Court should permit the

Legislature to deal with the issue on its own.

In support of their position, the Defendants first set forth the most commonly

cited statement of the political question doctrine:

Prominent on the surface of any case held to involve a political question is found

a textually demonstrable constitutional commitment of the issue to a coordinate

political department; or a lack of judicially discoverable and manageable

standards for resolving it; or the impossibility of deciding without an initial

policy determination of a kind dearly for nonjudicial discretion; or the

impossibility of a court’s undertaking independent resolution without

expressing lack of the respect due coordinate branches of government; or an

unusual need for unquestioning adherence to a political decision already made;

or the potentiality of embarrassment from multifarious pronouncements by

various departments on one question.

Baker v. Carr, 369 U.S. 186, 217 (1962). The Defendants contend that at least three of

these factors are present here. First, they assert that Maine’s Constitution clearly

commits to the Legislature the power to set its own compensation by statute. Since a

majority in the Legislature has already decided that its members should not receive

extra pay for the Second Special Session, they believe that the Court should acquiesce in

this decision. Second, the Defendants contend that if the Court attempted to adjudicate

this dispute, it would show a lack of respect for the Legislature. This argument rests on

the fact that Plaintiffs have admitted filing this suit merely to affect the legislative

budget process, and it should remain up to the Legislature how that process plays out.

Finally, the Defendants suggest that there is an unusual need here for adhering to the

Legislature’s decision regarding special session payments. In particular, they assert that

the Legislature eliminated the payments in recognition of the fact that its members were

performing the work of a regular session in the context of a special session, and it

would be inappropriate for taxpayers to, in essence, pay twice.

In response, the Plaintiffs point out that although this action arises out of a

budget dispute in the Legislature, they do not ask the Court to interfere with that

process or to take action that would limit the Legislature’s ability to act in the future.

Instead, while recognizing that the parties and circumstances of this action are unusual,

they assert that the requests for relief and need for Court interpretation of

Constitutional and statutory provisions are not.

The Plaintiffs also believe that none of the factors espoused in Baker are present

in this case. The Legislators first point out that the issue in Baker was the

constitutionality of legislative districts created by a state legislature. Although there

was no dispute that the legislature had the power to apportion legislative districts, the

Supreme Court held that despite that grant of power, a Constitutional challenge to the

districts created by the use of that power was not a political question. Hence, the

Plaintiffs assert that more than a simple grant of power to a political branch is needed to

create a political question — that branch must also be given the power to resolve

disputes concerning the use of that power. As an example, the Legislators note that the

Maine Constitution gives the Legislature the exclusive power to “be the judge of the

elections and qualifications of its own members”. Me. Const. art. IV, pt. 3, § 3.

Conversely, to show the weakness of the Defendants’ argument, the Plaintiffs note that

the Legislature is also given the power of taxation, yet the Courts have never concluded

that the Legislature’s use of that power is immune from a Constitutional challenge in

court.

In response to the Defendants’ argument that this Court would be expressing a

lack of respect for the Legislature by becoming involved, the Plaintiffs note that this

same argument was unsuccessfully raised in Baker. Instead, the Supreme Court

determined that when a court’s decision would require no more than an interpretation .

of the law, it does not involve a lack of respect due a coordinate branch of government.

The Legislators assert that in this case all that is required is an interpretation of the law.

Lastly, in response to the suggestion that the Legislature was attempting to

lessen the impact of special sessions payments on the State Treasury, the Plaintiffs —

simply respond that this is no defense for violating the Constitution.

In light of the foregoing, it appears that this Court may properly hear and decide

the present case. It is true that the facts underlying this dispute implicate political

processes. However, this on its own is insufficient to make the issues presented

nonjusticiable. Indeed, “the mere fact that the suit seeks protection of a political right

does not mean it presents a political question.” Baker, 369 U.S. at 209. In this case, the

Plaintiffs seek an interpretation of Maine statutes and the State Constitution, functions

that are well within the authority of the Court. Moreover, the Defendants have failed to

persuade the Court that the factors espoused in Baker show this to be a nonjusticiable

dispute. Therefore, the Court will proceed to consider the other substantive arguments

raised in the briefs.

2. Can a Joint Order Lawfully Affect a Change in Legislative Pay?

The Plaintiffs argue that the Joint Order of January 30, 2004, was ineffective to

deny legislators $100 for each day’s attendance at the Second Special Session prior to

April 22, 2004. In support of their position, the Plaintiffs cite two Law Court opinions

from the 1950’s. In Opinion of the Justices, 96 A.2d 749 (Me. 1953), the House asked the

islature could authorize reimbursement for expenses to legislators by

joint order. In its opinion, the Law Court distinguished between expenses necessary for

operation of the Legislature, which can be provided for by an order, and the payment of

personal expenses of legislators, which can only be provided for by a law passed by

both Houses of the Legislature and signed by the Governor. See Id. at 750. The

Plaintiffs also find pertinent the conclusion that legislative compensation can only be

effected by act or resolve, and point out that the Law Court did not limit such formalities

merely to increases in compensation. See Id. at 751. In Opinion of the Justices, 140 A.2d

762 (Me. 1957), the House asked the Law Court if the Legislature could increase the

amount paid to legislators for travel by joint order. In finding that such an increase

could only be accomplished by law, the Justices explained that “[a] Legislature by

order, as here, if such a view prevailed, could destroy completely the mandate of the

statute.” Id. at 764. Based on these two opinions, the Plaintiffs assert that any terms of

the Order that made changes to legislative compensation needed to have been enacted

by statute to comply with the State Constitution.

Based on this framework, the Legislators contend that the next question for

consideration is whether the compensation provisions of the Order were consistent with

the statute that was in effect at the time of its passage, or if it made changes that require

a statutory amendment. The Plaintiffs note that 3 M.R.S.A. § 2 sets legislative pay at

$7,725.00 for the second year of the two-year term, and also mandates that the second

regular session of the Legislature adjourn no later than the 3% Wednesday in April.

Moreover, the version of 3 M.R.S.A. § 2 in effect at the time the Order was passed

provided that “in addition to the salary paid for the first and 2" regular sessions of the

Legislature, when a special session is called the members of the Senate and House of

Representatives shall each be compensated $100 for every day’s attendance.” The

Plaintiffs point out that the primary rule of statutory construction requires that courts

10 ©

give effect to the plain meaning of a statute. See Harding v. Wal-Mart Stores, Inc., 2001

ME 13, { 9, 765 A.2d 73, 75. In their view, the “in addition” phrase quoted above

requires that the $100 per diem payment be made during any special session regardless

of when it occurs. The Plaintiffs also note that payment to the legislators for service

during the second year of a term in office is in no way tied to attendance at or the length

of the second regular session. Therefore, the Plaintiffs believe that paying legislators for

attendance at a special session held prior to the statutory adjournment date would not

amount to paying legislators twice because statutory compensation paid for the second

year of a term is not tied to the performance of particular services. Moreover, they

believe the system implicitly recognizes that the work of the Legislature continues

when the Legislature is not in session.

In opposition, the Defendants concede that the Court should first look to the

plain meaning of statutory language. However, they assert that the prior version of

3.M.RS.A. § 2 was ambiguous with respect to whether legislators are entitled to $100

per diem under the present circumstances, and thus, legislative intent should be

examined. See, e.g., DiVeto v. Kjellgren, 2004 ME 133, { 18, 861 A.2d 618, 623. (If

statutory language is ambiguous, court will look to other evidence of legislative intent).

Furthermore, the Defendants note that the Law Court has even gone as far as to ignore

unambiguous statutory language where strict adherence would frustrate the obvious

‘intent of the Legislature. See, e.g., Town of Union v. Strong, 681 A.2d 14, 18 (Me. 1996)

(Strict construction cannot defeat clear intent of statute or construe statute in an

unreasonable manner); State v. Niles, 585 A.2d 181, 182 (Me. 1990) (Court can even

ignore literal meaning of phrases if that meaning thwarts clear legislative objectives).

As proof of the Legislature’s true intent, the Defendants assert that in passing the

Joint Order, a majority in both chambers apparently believed that under existing law

they were not entitled to special session payments for special sessions held during the

time reserved for regular sessions. Additionally, the Defendants note that the bill

passed during the Second Special Session purporting to retroactively eliminate special

session payments was entitled “An Act to Clarify Legislative Pay.” L.D. 1961 (121%

Legis. 2004) (emphasis in Defendants’ brief). The Defendants contend that this also

indicates that a majority of the Legislature believed that they were not entitled to special

session payments, and only sought to clarify what was not then specifically stated in

3 M.R-S.A. § 2.

The Defendants also believe the history of the legislative pay statutes supports

their position. The Defendants note that legislators originally received two dollars for

each day of attendance at a session, regardless of whether it was a regular session or an

“extra” session. Resolves 1820, ch. 23. Hence, legislative pay was historically based on

the number of days of attendance at a session. The Defendants go on to surmise that

when a fixed salary was eventually implemented, this was done in recognition of the

fact that the length of the regular sessions is predictable. On the other hand, the

Defendants speculate that because the length of special sessions is unpredictable, this is

probably why legislators still receive per diem compensation for their attendance.

Thus, the Defendants assert that the true legislative intent underlying 3 M.R.S.A. § 2

was to base legislative pay on the amount of work and approximate number of days

that the Legislature is in session, irrespective of whether those days were spent in

regular or special session.

In response, the Plaintiffs contend that if the statute could easily be interpreted to

deny per diem pay under the present circumstances as the Defendants suggest, then it

would have been unnecessary to introduce measures designed to ensure this result.

Additionally, the Plaintiffs note that during a past session of the Legislature, a similar

emergency resolve was introduced to deny per diem pay for attendance at a special

session held before the statutory deadline. These actions, in the Plaintiffs view, show

that the Legislature actually believed that the pre-amendment version of 3 M.R.S.A. § 2

required the per diem payments regardless of when a special session was held

The parties have correctly noted the general rule regarding statutory

interpretation, as well as the main exceptions thereto. Based on a plain reading of

3 M.R-S.A. § 2 as it existed at the time of the Second Special Session, the only reasonable

interpretation of the statutory language requires the per diem payments to be made as

argued by the Plaintiffs. Specifically, the “in addition” phrase that appears at the

beginning of the sixth paragraph, and the absence of any language tying compensation

for regular sessions to the length of those sessions, indicates that special session

payments must be made without regard to why or when the regular session adjourned.

Although the Defendants raise an interesting issue by delving into the history of

legislative pay statutes, they have failed to persuade the Court that the Legislature’s

true intent was to base compensation on the length of the session. In fact, the

Defendants’ argument on this point is counterintuitive. If the Legislature meant for

legislative pay to mirror days spent in session, the original statute assured this result.

Thus, by amending the statute to provide a fixed salary it seems that there existed some

alternative reasoning, such as the recognition that legislative work continues even when

the Legislature is not in session.

Based on the foregoing, the version of 3 M.RS.A. § 2 in effect during the Second

Special Session did not prohibit special session payments for special sessions held

during the time specified for a regular session. Moreover, the Court agrees with the

ume that the requirement that compensation be set by law is somewhat influenced by a

at a leoislature nat arbitrarily and canricioucly olay with leciclativa salaries and exnensces

MAMAN SAAN GAELS 2b Ha ctasy GANG CAPMCousy PAG VR see Ee atau ye GesGseaho Gitte CAPONSES,.

Plaintiffs’ interpretation of the two Opinions of the Justices cited above. Indeed, it

appears that the Law Court sought to foreclose the possibility of altering the legislative

pay statue by a unilateral act of the Legislature, regardless of whether the result would

be to increase or decrease compensation. See Opinion of the Justices, 152 Me. at 305.

Thus, the Joint Order of January 30, 2004, which purported to eliminate these payments,

was an unlawful attempt to alter legislative pay. Therefore, as a matter of law, this

Court finds that the Joint Order is of no legal effect. Furthermore, this Court declares

that under the version of 3 M.R.S.A. § 2 referenced above, the Plaintiffs are entitled to

payment of $100 for each day in attendance at the Second Special Session between

February 3, 2004 and April 30, 2004. The Joint Order of January 30, 2004, is ineffective

to deny the legislators $100 for each day’s attendance at the Second Special Session

prior to April 22, 2004.

3. Does 3 M.R.S.A. § 2 As Amended Apply in this Case?

Next, this Court must determine whether the amended version of 3 M.R.S.A. § 2

applies retroactively to prohibit special session payments for attendance at the Second

Special Session between February 3" and April 21* of 2004. As noted above, the

amendment was signed by the Governor on May 6, 2004, the Plaintiffs filed their

complaint on May 12, 2004, and the amendment became effective on July 30, 2004. The

Plaintiffs argue that under these circumstances, their case constitutes a “pending

proceeding” entitled to the protection of 1 M.R.S.A. § 302. 1 M.R.S.A. § 302 provides, in

part, “[t]he repeal or amendment of an Act or ordinance does not affect...any action or

proceeding pending at the time of the repeal or amendment.... Actions and

proceedings pending at the time of the passage, amendment or repeal of an Act or

ordinance are not affected thereby.”

The Plaintiffs argue that the Law Court has made inconsistent rulings as to

whether section 302 applies t to actions that are filed after a statutory change is enacted

but before the change in the law becomes effective. However, the Plaintiffs assert that

most of the authority supports the position that section 302 applies when, as here, a

complaint «5 filed after a statutory change is enacted, but before the change has gone

into effect. Specifically, they recognize that in Heber v. Lucerne-in-Maine Village

Corporation, 2000 ME 137, 755 A.2d 1064, and Fishermens Landing, Inc. v. Town of Bar

Harbor, 522 A.2d 1312 (Me. 1987), the Law Court reached a conclusion that directly

contradicts their position on this point, but in Morrissette v. Kimberly-Clark Corp., 2003

ME 138, 837 A.2d 123, Bernier v. Data General Corp., 2002 ME 2, 787 A.2d 144, State v.

Haskell, 2001 ME 154, 784 A.2d 4, DeMerchant v. DeMerchant, 2001 ME 66, 780 A.2d 1134,

Loud v. Kezar Falls Woolen Co., 1999 ME 118, 735 A.2d 965, Weeks v. Allen & Coles Moving

Systems, 1997 ME 205, 704 A.2d 320, Kinney v. Great Northern Paper, Inc., 679 A.2d 517

(Me. 1996), Peavey v. Taylor, 637 A.2d 449 (Me. 1994), State v. Dyer, 615 A.2d 235 (Me.

1992), DeMello v. Department of Environmental Protection, 611 A.2d 985 (Me. 1992), Moore

v. Moore, 586 A.2d 1235 (Me. 1991), and Schlear v. Fiber Materials, Inc., 574 A.2d 876 (Me.

1990), the Law Court reached the opposite result. Furthermore, the Legislators contend

that their position is the most practical one because neither the Maine Revised Statutes

nor the Laws of Maine indicate when a statute was enacted — both refer only to the

effective date of the statute. Hence, the contrary view would require courts to look to

the legislative records for laws passed but not yet on the books whenever making a

ruling.

In response, although the Defendants concede that the Law Court has in certain

cases referred to the effective date of statutes when applying section 302 they belteve

that Heber and Fishermens Landing provide a more accurate statement of the law

Particularly, the Defendants note that the Law Court specifically discussed and

analyzed whether the effective date or the enactment date controls in Heber and

Fishermens Landing, whereas in the cases relied upon the Plaintiffs, the Law Court

provided no such analysis. Furthermore, the Defendants believe that their proffered

interpretation is more consistent with the language of section 302, which refers to

proceedings pending at the time of “passage.” The Defendants point out that the Law

Court in Fishermens Landing equated that term with “enactment,” as opposed to

“effectiveness.” See Fishermens Landing, 522 A.2d 1312-13 (citing BLAcK’s LAw

DICTIONARY 1012 (5 ed. 1979).4

After due consideration, it is apparent that the Defendants have presented the

more persuasive argument regarding the operative date for the applicability of

1M.RS.A. § 302. While the inconsistencies noted by the parties are indeed puzzling,

the Heber and Fishermens Landing decisions provide the most direct analysis of the

question presented, and are therefore entitled to the greatest deference. Thus, this

Court finds as a matter of law that a “pending proceeding” for the purposes of section

302 is one that commenced prior to the date of enactment of the act or ordinance in

question. As the parties dispute neither the date that the amendment to 3 M.RS.A. § 2

was enacted, nor the date that the Plaintiffs filed their complaint, this Court further

concludes that 1 M.R.S.A. § 302 does not bar application of the amended statute to the

Plaintiffs’ claims.

4, Do the Plaintiffs Have a Vested Right to Receive Special Session Payments?

Irrespective of whether a statute purports to operate retroactively, the Plaintiffs

assert that when a complaint is filed after a change in the law, but states a cause of

* The current version of Black’s Law Dictionary (7 ed.) defines “passage, 1. The passing of a legislative

measure into law.” That same edition defines “enact, 1. To make it a law by authoritative act; to pass.”

This supports the favorable comparison of passage as enactment.

action that accrued before the change, courts look to common law principles to

determine whether the new or old law applies. See Heber, 2000 ME 137, { 10, 755 A.2d

at 1066. Moreover, the Plaintiffs note that at common law, an individual has a vested

right in an accrued cause of action, and a statutory enactment cannot act to defeat that

cause of action retroactively. See Dobson v. Quinn Freight Lines, Inc., 415 A.2d 814, 815-16

(Me. 1980). Since, in their view, they had a cause of action for unpaid compensation

before the amendment to 3 M.R.S.A. § 2 was adopted, applying the amended statute

would impermissibly change the nature of a vested right accrued pursuant to the prior

version of the statute.

The Plaintiffs also discuss the applicability of the Law Court’s holding in Norton

v. Blouin, Inc., 511 A.2d 1056 (Me. 1986), to the facts of this case. In Norton, the Law

Court stated that “[i]f the Legislature intends a retroactive application, the statute must

be so applied unless the Legislature is prohibited from regulating conduct in the

intended manner, and such a limitation upon the Legislature’s power can only arise

from the United States Constitution or the Maine Constitution.” Id. at 1060, n.5.

Although this statement of the law directly conflicts with the common law approach

espoused in Heber, the Plaintiffs emphasize that, in light of Heber, the Law Court has

obviously not abandoned extra-constitutional methods of limiting legislative power to

retroactively affect vested rights. However, even under the narrower view expressed in

Norton, the Plaintiffs believe that the amendment under consideration should not be

applied. Essentially, the Legislators suggest that their right to payment arises from

Article IV, Part Third, § 7 of the Maine Constitution, and hence, even under Norton,

applying the amended version of 3 M.R.S.A. § 2 would be inappropriate.

As for the specific source of their cause of action, the Legislators point to

their cause of action accrued, and thus became vested, eight days after they made a

demand for unpaid wages, and the wages did in fact remain unpaid. Also, implicit in

this argument is an assertion that this eight-day period lapsed prior to the change in the

law.

In opposition, the Defendants first argue that the amendment to 3 M.RS.A. § 2

can be applied retroactively because it can survive the three-part test governing

challenges to retroactive economic legislation under the due process clause of the Maine

Constitution. See State v. L.V.I. Group, 1997 ME 25, J 9, 690 A.2d 960, 964. To satisfy this

test, it must be shown that “1. The object of the exercise must be to provide for the

public welfare. 2. The Legislative means employed must be appropriate to the

achievement of the ends sought. 3. The manner of exercising the power must not be

unduly arbitrary or capricious.” Id. Accordingly, the Defendants note that the object of

the legislation was to protect already strained state coffers, eliminating special session

payments was an appropriate way to achieve this goal, and all legislators were equally

affected by this action. Hence, in their view, the three-part test espoused in L.V.I. Group

was easily satisfied.

Secondly, the Defendants argue that because this legislation was actually a

clarification of existing law, and did not affect any real change in the law, the

amendment may be applied retroactively. In support of this proposition, the

Defendants cite to the “curative” exception to the general rule against retroactive

application of statutes, whereby an amendment to a statute may apply retroactively

where it is designed merely to carry out or explain the intent of the original legislation.

See Norman J. Singer, Sutherland on Statutory Construction § 41:11, at 469-70 (6" ed. 2001).

In addition, the Defendants contend that the statute may be applied retroactively

because the Legislators had no reasonable expectation of receiving special session

payments under the present circumstances.

Lastly, the Defendants assert that because pre-amendment 3 M.R.S.A. § 2 is

susceptible to different interpretations with respect to the per diem payments, the

Plaintiffs could not reasonably have expected that such payments would be made.

Therefore, the Legislators never acquired a vested right in the special session payments.

In response to these arguments, the Plaintiffs characterized their claim as arising

under the Maine Constitution. This obviously depends upon a proper interpretation of

the language, ”...shall receive such compensation, as shall be established by law,”.

Further language requires that the expenses of members of the House of

Representatives shall be paid by the State out of the public treasury but quaere, does the

Constitution require that legislators receive a salary at all if it was established by law to

set the legislative compensation at zero? Notwithstanding that uncertainty, it is clear

that the true source of the Plaintiffs’ alleged right to compensation is the statute itself.

Moreover, even if the United States Constitution would permit the retrospective

application of the amended statute to the Plaintiffs’ claims, the Law Court has

apparently adhered to a different approach based on common law principles, as

illustrated in Heber. Also, as discussed above, the purported amendment was not

simply an attempt to clarify the law as the Defendants suggest, but rather, it was in fact

a substantive change. Thus, the remaining arguments presented by the Defendants are

without merit.

Based on the foregoing, and particularly in light of the Heber decision, so long as

the Plaintiffs’ cause of action did in fact accrue prior to the change in the law, they have

retroactively defeat their cause of action is ineffective. See Heber, 2000 ME 137, q 10, 755

A.2d at 1066. The Law Court considers the date upon which this law “changes” in this

context to be the date that the law becomes effective, not the enactment date. See Heber,

2000 ME 137, { 12, n.5, 755 A.2d at 1067.

5. Do the Plaintiffs Have a Cause of Action Pursuant to 26 M.R.S.A. § 626-A?

The Plaintiffs claim that because the Defendants failed to make timely payment

of wages (the per diem payments) as required by 26 M.RS.A. § 621-A, they, as

employees, are entitled to the remedies available under 26 M.R.S.A. § 626-A. At the

threshold, the Plaintiffs recognize that there is a question as to whether these sections

apply to them, as duly elected and sworn members of the Maine Legislature. The

Plaintiffs note that there is no statutory definition of “employer” or “employee” which

is made applicable to these sections.° Thus, the Legislators suggest that such undefined

terms in a statute should be given their common and generally accepted meaning,

unless the context of the statute clearly indicates otherwise. See State v. York, 1997 ME

209, | 9, 704 A.2d 324, 326. Accordingly, they offer the definition of employee found in

BLACK’S LAW DICTIONARY, 5* Edition, which is, inter alia, “a person working for salary

or wages.” BLACK’s LAW DICTIONARY 471 (5" ed. 1979).

In this case, the Plaintiffs believe that the lack of any definition of the term

employee in sections 621-A or 626-A shows an intent to include a broad scope of

individuals within its meaning. The Legislators also note that several other Maine labor

statues specifically exempt elected officials from their provisions, including sections

663(10), 962(6)(A), 979-A(4-A)(A), and 10143(11)(f)(21)@)(i) of title 26. However, the

> But see 26 M.RS.A. § 591(2) contained in the same chapter, Employment Practices, as section 626-A in

defining “employer” as “an individual, partnership, association, corporation, legal representative, trustee,

receiver, trustee in bankruptcy and any common carrier by rail, motor, water, air or express company

doing business in or operating within the state.”

Crauits

Plaintiffs also point out that elected officials are not exempted from all Maine labor

laws. See 39-A M.RS.A. § 102(11) (2003). In sum, the Plaintiffs assert that the

Legislature has exempted elected officials from Maine’s labor laws where it has deemed

appropriate, and the failure to do so in this case should be taken to indicate an intent to

include elected officials within the scope of the statutes under consideration.

In response, the Defendants first present a defense based on the doctrine of

sovereign immunity. The Defendants note that “[t]he immunity of the sovereign from

suit is one of the highest attributes inherent in the nature of sovereignty”. Drake v.

Smith, 390 A.2d 541, 543 (1978). Moreover, “a claim against the State will be dismissed

‘unless the State, acting through the Legislature, has given its consent that the present

action be brought against it.’” Waterville Industries v. Finance Authority of Maine, 2000

ME 138, J 21, 758 A.2d 986, 992 (quoting Drake, 390 A.2d at 543-44). The Defendants

assert that the Legislature can consent by way of an enactment making the State

amenable to a particular class of lawsuits, or the legislature can consent to a specific

lawsuit. See Drake, 390 A.2d at 544-45. But, without legislative consent, the State may

not be sued.

In addition, the Defendants note “the general rule in Maine that the State is not

bound by a statute unless expressly named therein.” Jenness v. Nickerson, 637 A.2d 1152,

1158 (Me. 1994) (quoting State v. Crommett, 151 Me. 188, 193, 116 A.2d 614 (1955)).

Hence, in the absence of an explicit waiver by the Legislature, and because the State is

not named in the unpaid wage statute, the Defendants suggest that the State is not

subject to claims under 26 M.R.S.A. § 626-A.

Based on the legal propositions espoused in Drake and the other cases cited

above, it appears that the Plaintiffs’ statutory claims for unpaid wages are indeed

barred by the doctrine of sovereign immunity. As was the c

ase in Drake, the present

Defendants are officials or agencies of the State of Maine. Moreover, the alleged

liability to pay money to the Plaintiffs arises by virtue of the Defendants’ official

activities. See Drake, 390 A.2d at 543. Therefore, “[t]he reach of the present action is

against the State of Maine as the party to be adjudicated liable to pay the money

claimed by the plaintiff[s].” Id. Furthermore, “[t]he State of Maine is a necessary party

to the action, and sovereign immunity has applicability to require dismissal of the

action unless the State, acting through the Legislature, has given its consent that the

present action be brought against it.” Id. at 543-44. It is apparent that the Legislature

has not consented to be subject to the remedies provided under 26 M.R.S.A. § 626-A.

Further, this court is not satisfied that the State of Maine would be considered an

employer as defined in 26 M.R.S.A. § 591.

Less clear, however, and seemingly to the contrary, is whether the State has

consented to be liable and subject to a cause of action to members of the Legislature as a

result of 3 M.R.S.A. § 2.

6. Did the Defendants Breach a Unilateral Contract?

The Plaintiffs claim that they have a contractual right to the statutory per diem

payments required by the pre-amendment version of 3 M.R.S.A. § 2. They concede that

certain Law Court holdings establish that a statute will not be presumed to create

contractual rights binding future legislatures unless the intent to do so is clearly stated.

See Spiller, et al. v. State of Maine, et al.,.627 A.2d 513, 515 (Me. 1993) (citations omitted).

However, they also assert that the case law distinguishes between contracts for future

compensation and for compensation already earned under a contract. See Bowman v.

Maine State Employees Appeals Board, 408 A.2d 688, 692 (Me. 1979)*. Based on this

distinction, the Legislators believe that they are entitled to the disputed per diem

payments since, in their view, their attendance at the Second Special Session created a

unilateral contract.

In response, the Defendants assert that the Plaintiffs would be unjustly enriched

if they received the disputed payments because it would essentially amount to paying

the Legislators twice for the same work. Moreover, the Defendants contend that the

Plaintiffs have no contractual rights in any event.

In the final analysis, the Maine Constitution asserts mandatory language that the

Senators and Representatives shall receive such compensation, as shall be established by

law. (Emphasis supplied). The law, as it existed January 30, 2004, established that each

member of a Senate and House of Representatives, “Beginning with the first

Wednesday of December 2000 and thereafter, is entitled to ...” That language clearly

indicates an intention on the part of the Legislature to establish a salary to be honored

until changed. Furthermore, the word “entitled” establishes intent to vest in the

members of the Senate and House of Representatives compensation. This vested

compensation as of January 30, 2004, created a unilateral contract subject to change and

repeal by change in the law. Closely following the language of the common law as

presented by Heber v. Lucerne-in-Maine Village Corp., 2000 ME 137; 755 A.2d 1064, when

faced with questions regarding the applicability of a statutory change, the Court must

first determine what body of law applies to the determination of the controlling statute.

If the complaint is filed before the enactment of the statutory change, the general

savings provision found in 1 M.R.S.A. § 302 applies. If the complaint is filed after the

In the f laintiffs brief they cite to age 691 0 the owman opinion. It assu that they neant to refer ence

> pag f B m. pinion. It is ssumed I

page 692. This lar lguage must be co

nsidered distinguishable ince it 1s cl ed in a context of a contract betw cena

sinc S t q

teacher and a governmental employer. Citing Sawin Vv. Lown of Winslow 253 A.2d 094 700 (Me. L

? >

Tacha

969).

statutory change is enacted, section 302 by its own terms does not apply. Plaintiffs’

complaint was filed May 12, 2004, six days after the enactment of the amended

3 M.RS.A. § 2. Although the amendment was not effective until July 30, 2004, after

plaintiffs filed their complaint, for purposes of section 302, the enactment date, rather

than the effective date, controls. Because the repeal was enacted before the plaintiffs

filed their complaint, this action was not “pending at the time of the repeal” and section

302 does not apply as the Court has recited above. The court states in Heber:

The fact that section 302 does not apply to ‘save’ the complaint does not,

however, end the analysis. When a complaint is filed after a change in the

law, but states a cause of action that accrued before the change, we look to

common law principles to determine whether the new or old law applies.

At common law, an individual has a vested right in an accrued cause of

action, and a subsequent statutory enactment cannot act to defeat

retroactively such a cause of action. Citing Dobson v. Quinn Freight Lines,

Inc., 415 A.2d 814, 815-16 (Me. 1980).

Citing Heber again: “... [t]here can be no question that the repeal of the [statute]

had the effect of entirely eliminating a cause of action that existed at the time [plaintiffs]

suffered the damages [they] now allege[], thus affecting [plaintiffs’] vested rights in that

cause of action.” Id., J 12, 755 A.2d at 1067. Considering the statements of material fact,

plaintiffs suffered damages prior to the effective date of the amendment. See id.

Because the cause of action accrued prior to a change in the law, it is governed by the

then applicable law and cannot be applied to extinguish plaintiffs’ claim. This

conclusion is founded upon established common law. See Choroszy v. Tso, 647 A.2d 803,

807 (Me. 1994) (a cause of action accrues at the time of the judicially recognized injury).

See Batchelder v. Tweedie, 294 A.2d 443, 444 (Me. 1972) (substantive rights of the parties

are fixed at the date upon which the cause of action accrued).

This recitation of the common law is supported by language in Spiller, et al. v.

State of Maine, et al., 627 A.2d 513 (Me. 1993). In this case, the plaintiffs complained of

modification to prospective retirement benefits for state employees made by the

Legislature for budgetary reasons. As argued by the defendants in this case, “[uJnder

time honored rules of construction, a statute will not be presumed to create a

contractual right, binding future legislatures, unless the intent to do so is clearly stated.”

Id. at 515, (citing National R.R. Passenger Corp. v. Acheson, Topeka & Sante Fe Railway Co.,

470 U.S. 451, 465-466 (1985)).

Absent some clear indication that the legislature intends to bind itself

contractually, the presumption is that “a law is not intended to create

private contractual or vested rights but merely declares a policy to be

pursued until the legislature shall ordain otherwise.”

This well-established presumption is grounded in the elementary

proposition that the principal function of the Legislature is not to make

contracts, but to make laws that establish the policy of the State. Policies,

unlike contracts, are inherently subject to revision and repeal, and to

construe laws as contracts when the obligation is not clearly and

unequivocally expressed would be limit drastically the essential powers of

the legislative body.

National R.R. Passenger Corp., 470 U.S. at 465-466 (quoting Dodge v. Board of Education,

302 U.S. 74, 79 (Me. 1937)).

The court found the legislative intent not to create contractual rights but rather to

state generally principles by noting a provision in the retirement law that stated that

only the retirement benefits that ““would be due to a... on the date immediately

preceding the effective date of the amendment’ cannot be reduced by an amendment to

the retirement statute.” Spiller, 627 A.2d at 516. The court found this to be, by

implication, intent by the Legislature to reserve to future legislators the power to

- modify prospective retirement benefits for employees to whom benefits are not then

due. The court noted that, “None of the benefits at issue here were due to any plaintiff

on the effective date of this legislation.” Id. That conclusion, as clearly recited by Heber,

755 A.2d 1066, makes a clear distinction from the legislative intent clearly stated in 3

M.RS.A. § 2 that the members of the Legislature are “entitled to” compensation as

provided by that law.

The entry will be:

Plaintiffs’ motion for summary judgment on count I of their

complaint is GRANTED; judgment for plaintiffs on count I of their

complaint; defendants’ motion for summary judgment on count I of

plaintiffs’ complaint is DENIED; plaintiffs’ motion for summary judgment

on count II of plaintiffs’ complaint is GRANTED; judgment for plaintiffs

on count II of plaintiffs’ complaint; defendants’ motion for summary

judgment on count II of plaintiffs’ complaint is DENIED; plaintiffs’ motion

for summary judgment on count Ill of their complaint is DENIED;

defendants’ motion for summary judgment on count III of plaintiffs’

complaint is GRANTED; judgment for defendants on count Ill of

plaintiffs’ complaint.

Donald H. Marden

Justice, Superior Court

Dated: March /€ , 2005

Attorney for: BETHEDA EDMONDS

MELISSA REYNOLDS O'DEA - RETAINED

ATTORNEY GENERAL OFFICE OF AG

111 SEWALL

STREET

6 STATE HOUSE STATION

AUGUSTA ME

04333-0006

JOHN RICHARDSON - DEFENDANT

Attorney for: JOHN RICHARDSON

MELISSA REYNOLDS O'DEA - RETAINED

ATTORNEY GENERAL OFFICE OF AG

111 SEWALL

STREET

6 STATE HOUSE STATION

AUGUSTA ME

04333-0006

DAVID E BOULTER - DEFENDANT

Attorney for: DAVID E BOULTER

MELISSA REYNOLDS O'DEA ~- RETAINED

ATTORNEY GENERAL OFFICE OF AG

111 SEWALL

STREET

6 STATE HOUSE STATION

AUGUSTA ME

04333-0006

Filing Document: COMPLAINT

Filing Date: 05/12/2004

Docket Events:

05/12/2004

FILING DOCUMENT - COMPLAINT FIL

Party(s): W TOM SAWYER JR