TABOR gets its day in court


High court hears arguments in case to put taxpayers’ bill of rights on the November ballot.

PORTLAND – The state’s Supreme Judicial Court heard oral arguments Tuesday on whether the Taxpayers’ Bill of Rights deserves a place on November’s ballot.

The seven justices peppered lawyers on both sides with tough questions about Maine law, the state Constitution and apparent contradictions in the two.

At issue is whether Secretary of State Matthew Dunlap erred when he accepted about 4,000 signatures beyond a statutory deadline from petitioners working in favor of TABOR. Without the signatures, supporters of the citizens’ initiative would not have had enough to place the measure on the ballot this year.

TABOR would limit state and local government spending and require a two-thirds vote to exceed the limit or raise taxes. The court will issue its opinion on or before May 4.

Earlier this month, a Superior Court judge ruled against Dunlap’s decision, prompting an appeal to the Supreme Judicial Court from TABOR’s chief proponent, tax activist Mary Adams.

On Tuesday outside the Supreme Court in Portland, Adams said she was hopeful that the court would rule her way.

“On Saturday (after the first batch of petitions were turned in) I thought we were dead ducks,” Adams said. “I thought all of that work we had done was for nothing. But over the weekend I went back to the Constitution. Then I thought, ‘Maybe if the Constitution prevails, we have a chance.'”

The first signatures were turned into the secretary of state on Friday, Oct. 21. The additional signatures were filed on Monday, Oct. 24, three days past the deadline.

While the argument before the court occasionally devolved into the meaning of the word “must” and the Legislature’s intent and authority, the more direct question was a seeming contradiction between state law that places limits on petition drives and more generalized initiative guidelines enumerated in the Constitution and the authority of the secretary of state to interpret the two.

Attorney Michael Duddy, representing Adams, faced the court first.

“The secretary (of state) said, despite the Superior Court ruling, that he felt instinctively that he had done the right thing in accepting the Monday petitions,” Duddy began. “We think the secretary’s instincts are right on the money.”

Representing Kathleen McGee, an elections activist from Bowdoinham who originally challenged the decision by the secretary of state in Superior Court, Gerald Petruccelli also faced combative questioning.

“The peoples’ elected representatives, in a series of statutes, responding to problems including criminal fraud, exercised the constitutional authority to develop implementing legislation to advance the constitutional scheme and protect it from abuse. It is the peoples’ collective process that is at stake here today,” Petruccelli said.

The justices questioned whether the burden placed on petitioners was constitutionally acceptable and whether they deserved greater latitude and flexibility.

Petruccelli argued that there was no unreasonable burden, that, in fact, TABOR’s supporters had collected enough signatures within the time frame, according to their own admissions, but had simply and inexplicably failed to turn them in on time.

McGee, who sat through the proceedings, said afterward it’s impossible to discern which way the court might rule from its line of questioning, but that she thinks the law and the Constitution are clear.

“It’s my belief that the integrity of the referenda depends very much on how it is administrated,” McGee said. “The secretary of state does not have the kind of discretion to change deadlines, to move them. Having run many campaigns, both referenda and candidate campaigns, it is understood that there are deadlines and those deadlines must be met.”

In an interview after the hearing, Adams’ lawyer Duddy said there was clearly an unacceptable burden placed on the petitions, otherwise they wouldn’t be in court.

“The Constitution says that you can file anytime you like, but we’re only going to accept the signatures collected within a year. … People are confusing the filing with the age of the signatures,” Duddy said.

“It’s not at all inconsistent to have an administrative deadline within the year, and Mary Adams knew that when she took out the petitions. It’s understood,” McGee said. “There was no question about the constitutionality of it then. It was only the day after when they realized they made a mistake that this became a constitutional question.”