Opinion
Questions Propounded by the Senate in an Order Dated January 3, 1979.
Answered January 3, 1979.
VINCENT L. McKUSICK Chief Justice CHARLES A. POMEROY SIDNEY W. WERNICK JAMES P. ARCHIBALD THOMAS E. DELAHANTY EDWARD S. GODFREY DAVID A. NICHOLS Associate Justices
State of Maine In the Year of Our Lord One Thousand Nine Hundred and Seventy-Nine
In Senate, January 3, 1979
Whereas, Charles L. Cragin, a partner of Verrill Dana, a law firm located in Portland, Maine, with offices elsewhere in the State, was nominated for Attorney General by the Republican members of the Maine House of Representatives and Senate of the 109th Maine Legislature; and
Whereas, on January 3, 1979, lists of the number of votes cast for candidates for the House of Representatives and the Senate of the 109th Maine Legislature (which had been received at the most recent election and sorted, counted, declared and recorded by the clerks of the various cities and towns, Maine Constitution, Article IV, Part 1, Section 5; Article IV, Part 2, Section 3, and thereupon forwarded to the Secretary of State, id., for the examination by the Governor, Maine Constitution, Article IV, Part 1, Section 5; Article IV, Part 2, Section 4) have been laid before both houses of the 109th Maine Legislature; the respective houses of the 109th Maine Legislature have finally determined their numbers, and the members of the 109th Maine Legislature have been sworn in by the Governor; it is now the duty of those elected to both houses of the 109th Maine Legislature by joint ballot of the Senators and Representatives in convention to choose an Attorney General of Maine, pursuant to the Maine Constitution, Article IX, Section 11; and
Whereas, as a result of this nomination, Mr. Cragin will be proposed as the Republican candidate for election to the office of Attorney General of Maine by joint ballot of the Senators and Representatives in convention, pursuant to Maine Constitution, Article IX, Section 11; and
Whereas, Mr. Cragin has stated that he cannot accept election to this high office unless the inapplicability of the Maine Revised Statutes Annotated, Title 5, section 15 to him and the remaining partners of Verrill Dana, after his resignation and withdrawal from the partnership in the event of election, is clarified; and
Whereas, the Senate of the 109th Maine Legislature is advised that: Verrill Dana is engaged in the general practice of law throughout the State; its partners and associates appear in all courts in the State representing individuals, partnerships, joint ventures, corporations and other legal entities; it also from time to time represents public agencies, such as the Maine Health Facilities Authority; and in the course of its practice it may also advise, represent and appear for its clients in civil and criminal matters before virtually all state officers, state departments and state boards and commissions; and
Whereas, Mr. Cragin has advised the Senate of the 109th Maine Legislature that, if elected: He will immediately resign and withdraw from the partnership and will not participate in, and will disqualify himself as Attorney General with respect to, any official proceeding in connection with which he or his former partners and associates had, at the time of his election, any responsibilities as lawyers in private practice which are directly within his official responsibilities as Attorney General and in which the State is a party or in which the State has a direct and substantial interest; and both he and his former partners will, of course, abide by the Code of Professional Responsibility adopted by the American Bar Association, as from time to time amended, and the provisions of any rules, regulations, or standards governing the professional conduct of attorneys contained in any Maine Code of Professional Responsibility promulgated by your honorable Court in response to its order establishing a Select Commission on Professional Responsibility, dated January 17, 1978, as supplemented by an order entered April 5, 1978; and
Whereas, if the Maine Revised Statutes Annotated, Title 5, section 15, subsection 2, (erroneously entitled "Partner of former executive employee.") has the consequence of making it a crime for any former partner of a constitutional officer of this State to continue to practice his or her profession in a manner consistent with all relevant ethical standards applicable to his or her professional conduct, at least two very serious consequences of great concern to the citizens of Maine would result:
A. Where relations among the partners are amicable, the pool of potential candidates for constitutional offices would be substantially reduced, thus depriving Maine of some of its most qualified citizens as public servants; and
B. Where the relations among the partners are hostile, the election to constitutional office of a partner could deprive his or her former partners of their ability to earn a livelihood in the practice of the profession in which they are trained, qualified and experienced, without any act, consent or forebearance on their part: and
Whereas, the Maine Revised Statutes Annotated, Title 5, section 15 is ambiguous with respect to its applicability to constitutional officers and, therefore, does not permit the members of the Senate or candidates for constitutional offices elected by the Legislature to ascertain, prospectively, the potential restrictions, of a criminal nature, on persons elected to such positions or to former partners of persons elected to such positions; and
Whereas, the Senate of the 109th Maine Legislature urgently desires guidance as to the application of the Maine Revised Statutes Annotated, Title 5, section 15 in order to know whether, as a practical matter, it is forestalled from nominating and participating in the election of anyone as Attorney General who currently practices law in a partnership; and
Whereas, the Senate of the 109th Maine Legislature is unwilling to participate in a joint convention called for the purpose of electing an Attorney General until its members have been advised by the Justices of the Supreme Judicial Court as to their views on the applicability of the Maine Revised Statutes Annotated, Title 5, section 15 to Mr. Cragin and any other qualified lawyer who is currently a member of a law partnership and the former partners of any of them if he or she is elected Attorney General; and
Whereas, it appears to the members of the Senate of the 109th Maine Legislature: That the following are important questions of law; that the occasion is a solemn one; and that the opinions requested hereby are designed to aid the members of the 109th Maine Legislature in the exercise of their constitutional responsibility pursuant to the Maine Constitution, Article IX, Section 11 to choose an Attorney General; now, therefore, be it
Ordered, that in accordance with and by virtue of the provisions of the Maine Constitution, Article VI, Section 3, the Justices of the Supreme Judicial Court are hereby respectfully requested to give to the Senate their opinions on the following questions, to wit:
I
Is a constitutional officer elected by the people or the Legislature and subject to removal by impeachment for misdemeanor in office or on the address of both branches of the Legislature, pursuant to the Maine Constitution, Article IX, Section 5, a person who is currently or who has been "a member of the classified or unclassified service employed by an executive agency" within the meaning of the Maine Revised Statutes Annotated, Title 5, section 15, subsections 1 and 2?
II
If the answer to Question I is in the affirmative, is it a crime for a former partner of the Attorney General (or any other constitutional officer), within one year after the Attorney General has withdrawn from the partnership, to act "as an agent or attorney for anyone other than the State in connection with any official proceeding in which:
`A. The State is a party or has a direct and substantial interest; and
`B. The subject matter at issue is directly within the official responsibility of the . . . . ." Attorney General;
if the Attorney General disqualifies himself: From participating in any way in any official proceeding which was the subject of his professional responsibility as a private lawyer; from participating in any such official proceeding in which his former partners act as agents or attorneys; and from participating in any official proceeding in which he has any economic interest whatsoever, except as a general citizen?
III
If the answers to Questions I and II are in the affirmative, would conduct of former partners of the Attorney General (or other constitutional officers) proscribed by the Maine Revised Statutes Annotated, Title 5, section 15, subsection 2, constitute crimes if performed by associates or employees of former partners of the Attorney General?
IV
Does the Maine Revised Statutes Annotated, Title 5, section 15, subsection 2, apply to attorneys who are employees of professional associations or professional corporations which are organized pursuant to the Professional Service Corporation Act, Maine Revised Statutes Annotated, Title 13, chapter 22?
V
Is the Maine Revised Statutes Annotated, Title 5, section 15, subsection 2 unconstitutional as applied to lawyers in violation of the separation of powers provisions of the Maine Constitution, Article III, Sections 1 and 2, especially if your honorable Court, in discharging its responsibilities of supervising the bar, promulgates by rule a Maine Code of Professional Responsibility governing the conduct of lawyers, in the public service, and former partners and associates (in a partnership or professional association or corporation) and employees of lawyers in the public service?
In Senate Chamber January 3, 1979 Read and Passed MAY M. ROSS. Secretary
ANSWER OF THE JUSTICES
To the Honorable Senate of the State of Maine:
In compliance with the provisions of Article VI, section 3 of the Constitution of Maine, we, the undersigned Justices of the Supreme Judicial Court, respectfully submit the following reply to the questions propounded to us by the Honorable Senate on January 3, 1979, which were received by us on January 3, 1979.
The Justices of the Supreme Judicial Court of Maine have historically shown a conscientious desire to answer questions propounded to them by the executive or legislative departments of government pursuant to Article VI, section 3 of the Constitution of Maine. The Justices have recognized, however, that upon receipt of questions from one of the other branches of government, it is first their constitutional duty to investigate with care whether in the given situation the Constitution denies them the right to answer the questions propounded. In making that investigation the Justices have been keenly aware that the provision of the Maine Constitution empowering them to give advisory opinions to the other branches represents an unusual and therefore limited exception to two overriding principles binding upon the judiciary. First, the Constitution of Maine in Article III expressly declares the foundational doctrine of separation of powers; the executive, legislative, and judicial departments of government, and the powers thereof, are strictly separated. Second, by an otherwise universal rule the judicial power may be exercised only in an actual case and controversy; that is, only in a concrete fact situation involving adversary litigants who have an appropriate interest in developing the relevant facts and arguing the applicable legal principles. In light of those principles the federal government and all but a few states do not permit advisory opinions at all.
Article VI, section 3 reads as follows:
"Section 3. The Justices of the Supreme Judicial Court shall be obliged to give their opinion upon important questions of law, and upon solemn occasions, when required by the Governor, Senate or House of Representatives."
Article III, entitled "Distribution of Powers," reads as follows:
"Section 1. The powers of this government shall be divided into three distinct departments, the legislative, executive and judicial.
"Section 2. No person or persons, belonging to one of these departments, shall exercise any of the powers properly belonging to either of the others, except in the cases herein expressly directed or permitted."
Recognizing the extraordinary nature of advisory opinions, the draftsmen of our Maine Constitution, in 1819, following the model of the Massachusetts Constitution of 1780, empowered the Justices of the Supreme Judicial Court to render such opinions only "upon important questions of law" and only "upon solemn occasions" and only "when requested by the Governor, Council, Senate or House of Representatives." Even when the Justices are constitutionally empowered to render an advisory opinion, that opinion has no precedential value and no conclusive effect as a judgment upon any party, and is not binding upon even the individual Justices rendering it in any subsequent litigated matter before their Court.
While the phrase "solemn occasion" is not expressly defined in the Constitution, it has been often interpreted, usually in negative fashion, in various Opinions of the Justices in both Maine and Massachusetts.
The Council was eliminated as an authorized requesting body by Amendment XCIV to the Maine Constitution, effective November 18, 1964.
Martin v. Maine Savings Bank, 154 Me. 259, 147 A.2d 131 (1958).
Turning from those general principles to the questions propounded to us on January 3, 1979, we regretfully conclude that constitutional limitations on our power to advise another branch of government in nonlitigated matters prevent us from answering. If we were to address and express an opinion on the merits of those questions, we would in several respects do violence to the limitations imposed upon us by the Constitution of Maine as previously construed on numerous occasions.
Although the Senate, a body constitutionally authorized to request advisory opinions, has propounded the questions before us, the Senate has no function or duty to perform in regard to the subject matter of the questions, namely, the election of the Attorney General. The Attorney General is chosen neither by the Senate nor by the House nor by a joint session of the Senate and House. Rather, under the Maine Constitution, Article IX, section 11, the Attorney General is chosen "by joint ballot of the Senators and Representatives in convention." (Emphasis added) Thus, the Senate has asked us questions in regard to a function constitutionally committed not to the Senate, but to the convention of those individuals who have qualified as Senators and Representatives. The Constitution does not empower that convention to address questions to the Justices in regard to its essentially political duty of electing the so-called constitutional officers, including the Attorney General. In a similar circumstance in 1933, the Justices advised the Senate that the Constitution of Maine did not authorize the Justices to answer questions propounded by the Senate that related to the powers and duties, not of the Senate, but of a proposed constitutional convention. We must do the same here.
Opinion of the Justices, 132 Me. 491, 167 A. 176 (1933). See also Opinion of the Justices, 147 Me. 410, 105 A.2d 454 (1952).
Furthermore, on its face, the statute that is the subject of the questions, 5 M.R.S.A. § 15(2), while imposing prohibitions and possible penalties upon any former partner of "a person who is currently a member of the classified or unclassified service employed by an executive agency," whoever such "person" is by the statute intended to be, imposes no prohibitions or penalties whatever upon that person himself. Thus, even if such "person" includes the Attorney General, the questions propounded do not relate to the legal qualifications of that person to discharge the duties of that office. Rather, the questions seek the opinion of the Justices as to possible peripheral consequences on his former partners of such person's serving as Attorney General. Also, the outcome of the political process in the convention of Senators and Representatives in choosing among the potential candidates for the office is still hidden in the unknown future. Thus, whether the application of 5 M.R.S.A. § 15(2) will ever come in issue remains in the realm of speculation. As the Justices stated in a comparable situation, the questions here posed are "at a stage yet too tentative, hypothetical and abstract to have achieved the `live gravity' necessary for the existence of a `solemn occasion'."
Opinion of the Justices, Me., 330 A.2d 912, 915 (1975).
While we recognize that some of those charged with the responsibility of choosing an Attorney General may feel inhibited in making a choice because of the circumstances narrated in the preamble to the questions propounded, this fact does not give rise to the constitutional occasion authorizing us to answer them. We find directly relevant the point made in 1975 by the Justices in responding to questions propounded by the Governor, in which he asserted that "the questioned statement of policy by a majority of the Executive Council `inhibit[ed] or prevent[ed]' his taking action . . ." to fill a vacancy on the Public Utilities Commission. There the Justices said that since the Governor nevertheless continued to have "unlimited statutory authority to nominate the candidate of his choice to fill the vacancy," the matter was one of "future and hypothetical concern until the Governor asserts his intention to nominate a person who does not meet the particular standards which the Governor understands the Council demands." By analogy, in the present situation the Senators and Representatives in convention still have unlimited constitutional authority to make their choice of an Attorney General. In this regard it adds nothing to the Justices' constitutional power that, as narrated in the preamble to the questions propounded, one of the candidates for Attorney General has announced his personal decision, for whatever reasons may motivate him, to refuse to accept election as Attorney General if doubt persists as to the applicable scope of 5 M.R.S.A. § 15(2). As we have already explained, whether or not that statute has applicability to former partners of the Attorney General does not bear on the legal qualifications of the person chosen as Attorney General to serve in that office. The personal decision of a candidate not to accept election as Attorney General for reasons which are unrelated to his legal qualifications to serve in that office must be deemed a matter essentially private and not sufficient to generate the "solemn occasion" required by section 3 of Article VI of the Constitution of Maine.
Opinion of the Justices, Me., 339 A.2d 483, 492 (1975).
Finally, at their root, all of the questions seek from the Justices an interpretation of an existing statute. This creates grave doubts as to the existence of a solemn occasion. First, the Legislature in any event may be amendatory enactment eliminate any ambiguity it finds in an existing statute. Such amendment would have the force of law. An advisory opinion has no such force. It is merely the opinion of the individual Justices, not the binding decision of the Supreme Judicial Court sitting as the Law Court. Second, an advisory opinion interpreting an existing statute, though not having the force of law, may jeopardize private rights and public interests created by such statute. As the Justices said in 1936, "any expression of opinion might prejudice the question before the arising of any occasion for its legal determination."
Opinion of the Justices, Me., 355 A.2d 341, 390 (1976); Opinion of the Justices, Me., 339 A.2d 483, 488 (1975). See also Answer of the Justices, Mass., 374 N.E.2d 1345, 1346-47 (1978).
Answer of the Justices, Mass., 374 N.E.2d 1345, 1347 (1978). See also Opinion of the Justices, 125 Me. 529, 539, 133 A. 265, 270 (1926) (Answer of Dunn, J., later Dunn, C.J.).
Opinion of the Justices, 135 Me. 519, 522, 191 A. 485, 487 (1936).
For all these reasons, we conclude that we lack constitutional power, and therefore must respectfully decline, to answer the questions propounded.