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Opinion of the Justices

Supreme Judicial Court of Maine
Jan 23, 1968
237 A.2d 400 (Me. 1968)

Opinion

Question Propounded by the Senate in an Order Dated January 15, 1968.

Answered January 15, 1968. January 23, 1968.

Appeal from the Supreme Judicial Court.

ROBERT B. WILLIAMSON DONALD W. WEBBER WALTER M. TAPLEY, Jr. HAROLD C. MARDEN ARMAND A. DUFRESNE, Jr. RANDOLPH A. WEATHERBEE


SENATE ORDER PROPOUNDING QUESTIONS STATE OF MAINE

In Senate, January 15, 1968

WHEREAS, it appears to the Senate of the 103rd Legislature that the following is a important question of law, and that the occasion is a solemn one; and

WHEREAS, there is pending before the Legislature a Bill entitled, "An Act Providing for Appointment of Judges and Registers of Probate", H.P. 1295, L.D. No. 1801, and a Bill entitled, "Resolve, Proposing a Constitutional Amendment to Correct Inconsistency in Election of Judges of Probate", S.P. 780, L.D. No. 1852; and

WHEREAS, the legality of enacting L.D. 1801 at this Special Session has been questioned; and

WHEREAS, it is important that the Legislature be informed as to the legality of the enactment of L.D. 1801;

NOW, THEREFORE BE IT ORDERED, that the Justices of the Supreme Judicial Court are hereby respectfully requested to give to the Senate, according to the provisions of the Constitution on its behalf, their opinion on the following question, to wit:

If L.D. 1852 is enacted by the Legislature, is it necessary that it be approved by the people before L.D. 1801 may be enacted, in view of the fact that the people in referendum repealed Article VI, section 6, of the Constitution, and that the provision relating to judges of probate, appearing in Article V, Part 1, section 8, has not been repealed?

Name: Harding In Senate Chamber County: Aroostook January 15 1968 READ AND PASSED Jerrold B. Speers, Secretary

SECOND SPECIAL SESSION ONE HUNDRED AND THIRD LEGISLATURE

Legislative Document No. 1801

H.P. 1295 House of Representatives, January 9, 1968

Referred to Committee on State Government. Sent up for concurrence and ordered printed.

BERTHA W. JOHNSON, Clerk

Presented by Mr. Beliveau of Rumford.

STATE OF MAINE IN THE YEAR OF OUR LORD NINETEEN HUNDRED SIXTY-EIGHT AN ACT Providing for Appointment of Judges and Registers of Probate.

Be it enacted by the People of the State of Maine, as follows:

Sec. 1. R.S., T. 4 § 301, amended. The first paragraph of section 301 of Title 4 of the Revised Statutes is repealed and the following enacted in place thereof:

The Governor, with the advice and consent of the Council, shall appoint all judges of probate who shall hold their office for the term of 7 years. Vacancies, occurring in the offices of judges of probate by death, resignation or otherwise, shall be filled by the Governor, with the advice and consent of the Council, and the persons so appointed shall hold their office for the remainder of the unexpired term.

Sec. 2. R.S., T. 18 § 251, amended. The first 2 sentences of section 251 of Title 18 of the Revised Statutes are repealed and the following enacted in place thereof:

The judges of probate of the several counties shall appoint registers of probate, who shall serve at the pleasure of the respective judges of probate.

SECOND SPECIAL SESSION ONE HUNDRED AND THIRD LEGISLATURE

Legislative Document No. 1852

S.P. 780 In Senate, January 9, 1968

Referred to Committee on Judiciary. Sent down for concurrence and ordered printed.

JERROLD B. SPEERS, Secretary

Presented by Senator Harding of Aroostook.

STATE OF MAINE IN THE YEAR OF OUR LORD NINETEEN HUNDRED SIXTY-EIGHT RESOLVE, Proposing a Constitutional Amendment to Correct Inconsistency in Election of Judges of Probate

Constitutional Amendment. Resolved: Two-thirds of each branch of the Legislature concurring, that the following amendment to the Constitution of this State be proposed:

Constitution, Article V, Part First, Section 8, amended.

Section 8 of Part First of Article V of the Constitution is amended to read as follows:

Section 8. To nominate officers. He shall nominate, and, with the advice and consent of the Council, appoint all judicial officers (except judges of probate), coroners, and notaries public; and he shall also nominate, and with the advice and consent of the Council, appoint all other civil and military officers, whose appointment is not by this Constitution, or shall not by law be otherwise provided for, except the land agent; and every such nomination shall be made seven days, at least, prior to such appointment.

Form of question and date when amendment shall be voted upon. Resolved: That the aldermen of cities, the selectmen of towns and the assessors of the several plantations of this State are empowered and directed to notify the inhabitants of their respective cities, towns and plantations to meet in the manner prescribed by law for calling and holding biennial meetings of said inhabitants for the election of Senators and Representatives at the next general election in the month of November to give in their votes upon the amendment proposed in the foregoing resolution, and the question shall be:

"Shall the Constitution be amended as proposed by a resolution of the Legislature to Correct Inconsistency in Election of Judges of Probate?"

The inhabitants of said cities, towns and plantations shall vote by ballot on said question, and shall indicate by a cross or check mark placed against the words "Yes" or "No" their opinion of the same. The ballots shall be received, sorted, counted and declared in open ward, town and plantation meetings and returns made to the office of the Secretary of State in the same manner as votes for Governor and Members of the Legislature, and the Governor and Council shall review the same, and if it shall appear that a majority of the inhabitants voting on the question are in favor of the amendment, the Governor shall forthwith make known the fact by his proclamation, and the amendment shall become effective at such time as the Legislature by proper enactment shall establish a different Probate Court system with full-time judges.

Secretary of State shall prepare ballots. Resolved: That the Secretary of State shall prepare and furnish to the several cities, towns and plantations ballots and blank returns in conformity with the foregoing resolve, accompanied by a copy thereof.

ANSWER OF THE JUSTICES TO THE HONORABLE SENATE OF THE STATE OF MAINE:

In compliance with the provisions of Section 3 of Article VI of the Constitution of Maine, we, the undersigned Justices of the Supreme Judicial Court, have the honor to submit the following answer to the question propounded on January 15, 1968.

QUESTION (I): If L.D. 1852 is enacted by the Legislature, is it necessary that it be approved by the people before L.D. 1801 may be enacted, in view of the fact that the people in referendum repealed Article VI, Section 6, of the Constitution, and that the provision relating to judges of probate, appearing in Article V, Part 1, Section 8, has not been repealed?

ANSWER: We answer in the affirmative with respect to Section 1. An analogous situation was considered in Re Opinion of the Justices, 137 Me. 350, 351, 19 A.2d 53, wherein the following question was asked:

"Where the Constitution provides for the tenure of office, qualifications, and mode of election of a state officer but contains no express prohibition of legislation with regard to such tenure, qualifications or election, would it be a constitutional exercise of the legislative power to pass, concurrently with a resolve proposing an amendment to the constitution removing therefrom the provisions relative to the election, tenure of office and qualifications of such officer, an act providing a different mode of election and a different tenure of office, which act is not to become effective until and unless such resolve is adopted by the people?"

In answer to that question the Court expressed the opinion that the constitutional provision there under consideration, and to which Section 8, Part First of Article V is analogous, prevents the enactment of legislation providing for the appointment of Judges of Probate "even conditionally" until the inhibiting clause of the Constitution is repealed. In re Opinion of the Justices, 137 Me. 350, 353, 19 A.2d 53.

We deem it appropriate with reference to Section 2 of L.D. 1801, relating to the appointment of Registers of Probate, to state our opinion that legislation to this effect may properly be enacted without change in the Constitution.

With the repeal of the constitutional provision for the election of Registers of Probate (Article VI, Section 6) there remains no constitutional prohibition limiting the power of the Legislature to provide for the office of Register of Probate in such manner and on such terms as it may enact. Ross v. Hanson, (Me.) 227 A.2d 606. The office of Register of Probate does not fall within the classification of "judicial officers" who must be nominated and appointed by the Governor under Article V, Part First, Section 8 of the Constitution.

Should the Legislature see fit to provide for the appointment of Registers of Probate, we suggest that the intent of the Legislature be made clear with respect to the effect on present incumbents.

Dated at Augusta, Maine, this sixteenth day of January, 1968.

Respectfully submitted:


Summaries of

Opinion of the Justices

Supreme Judicial Court of Maine
Jan 23, 1968
237 A.2d 400 (Me. 1968)
Case details for

Opinion of the Justices

Case Details

Full title:OPINION OF THE JUSTICES of the Supreme Judicial Court Given Under the…

Court:Supreme Judicial Court of Maine

Date published: Jan 23, 1968

Citations

237 A.2d 400 (Me. 1968)