TagState courts

Maine Supreme Court: Ballot measure violates boundaries of legislative power

On August 13, 2020, the Maine Supreme Court ruled in Avangrid Networks, Inc. v. Secretary of State that a ballot referendum scheduled to appear on the November 2020 ballot was an unconstitutional violation of state separation of powers principles. The judges held that the referendum did not meet the requirements of the state constitution for inclusion on the ballot because, in their words, “it exceeds the scope of the people’s legislative powers” under the Maine Constitution.

The referendum aimed to overturn a decision by the Maine Public Utilities Commission (PUC) to give a company permission to build a high-voltage power line to deliver electricity from Canada. The Maine Supreme Court argued that it had the power to review the constitutionality of the referendum before the November election to determine whether it would be a proper exercise of the people’s legislative authority.

The court ruled that the referendum was not within the legislative power of the people of Maine because it would be an exercise of executive or judicial power instead of legislative. The court wrote that the referendum’s “purpose and effect is to dictate the Commission’s exercise of its quasi-judicial executive-agency function in a particular proceeding.” The court added that the referendum “would interfere with and vitiate the Commission’s fact-finding and adjudicatory function—an executive power conferred on the Commission by the Legislature.”

While the legislature has the power to limit the legislative functions and authority of the PUC, the court ruled that it does not have the power to require the PUC to overturn and reverse a particular administrative decision that it had made. Since the ballot referendum process is an exercise of legislative power, the court held that the same limitation applies. Under the separation of powers provision contained in the Maine Constitution, no one in a particular branch of government may exercise the powers that belong to the other branches of government.

The court ruled that since the referendum did not propose legislation it should not appear on the November 2020 election ballot.

To learn more about the referendum and separation of powers, see here:
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Link to the Maine Supreme Court decision:

Pennsylvania Supreme Court justice expresses misgivings about judicial deference

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Pennsylvania Supreme Court Justice David N. Wecht on July 21 issued a concurring opinion in Crown Castle NG East LLC and Pennsylvania-CLE LLC v. Pennsylvania Public Utility Commission expressing what they called “deep and broad misgivings” about the court’s practice of deferring to state agency interpretations of statutes and regulations.

The case challenged the Pennsylvania Public Utility Commission’s (PUC) interpretation of a statute governing public utilities. The PUC argued that the court should defer to its statutory interpretation because of the subject matter’s highly technical nature. The court, however, refused to defer to the PUC’s interpretation because it found the statute in question to be clear and unambiguous.

“A court does not defer to an administrative agency’s interpretation of the plain meaning of an unambiguous statute because statutory interpretation is a question of law for the court,” wrote Justice Sallie Updike Mundy in the opinion.

In a concurring opinion, Justice Wecht expressed uncertainty about the court’s deference practices. Wecht pointed to the lack of clarity surrounding the court’s approach to deference, arguing that the court’s deference doctrines aren’t clearly distinguishable and have been, in their words, “thrown together over time.”

Ballotpedia tracks state approaches to judicial deference as part of The Administrative State Project. Since 2008, Wisconsin, Florida, Mississippi, Arizona, and Michigan have taken executive, judicial, or legislative action to limit or prohibit judicial deference to state agencies.

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Maine Supreme Judicial Court rules that ballot initiative to reverse certification for transnational transmission line project is unconstitutional

On August 13, the Maine Supreme Court blocked from the ballot a citizen initiative designed to reverse a certificate required for a transnational transmission line project. The court ruled that the measure violated the “procedural prerequisites for a direct initiative” found in the Maine Constitution. According to the Supreme Judicial Court, the Maine Constitution “requires that a citizens’ initiative constitute legislative action,” and the ballot initiative “exceeds the scope of the people’s legislative powers…”

The ballot initiative would have required the Maine Public Utilities Commission (PUC) to reverse an order made on May 3, 2019, that provided the New England Clean Energy Connect (NECEC) transmission project with one of the certificates needed before construction could begin. The NECEC transmission project was designed to cross about 145 miles in Maine, from the state’s border with Quebec to Lewiston, and transmit around 1,200 megawatts from Hydro-Québec’s hydroelectric plants in Quebec to electric utilities in Massachusetts and Maine.

Avangrid Network, Inc., the parent firm of Central Maine Power, sued Secretary of State Matthew Dunlap (D) on May 12, 2020. Avangrid argued the ballot initiative was not legislative in nature and instead was designed to exercise executive and judicial power. The Supreme Judicial Court agreed with Avangrid, stating that the ballot initiative would interfere with PUC’s executive power to make a decision—something that legislation, including citizen-initiated legislation, cannot do according to the ruling. According to the Supreme Judicial Court, the ballot initiative was “executive in nature, not legislative,” because legislation can define an agency’s functions and authority but cannot “vacate and reverse a particular administrative decision.”

Avangrid and Central Maine Power provided $10.60 million to the campaign against the ballot initiative. H.Q. Energy Services (U.S.) Inc., a subsidiary of Hydro-Québec, provided an additional $6.33 million. On July 29, 2020, 25 current and former state legislators sent a letter to Quebec Premier François Legault and Hydro-Québec CEO Sophie Brochu regarding “Hydro-Quebec’s political campaign aimed at influencing the outcome of a citizen-initiated ballot measure this November.” Hydro-Québec is a corporation owned by the government of Quebec, which, according to the legislators, gave the Quebec government and residents a “financial interest in the outcome of a Maine election.” Serge Abergel, the director of external relations for Hydro-Québec, responded that Hydro-Québec should be allowed to provide information to voters after spending years to obtain permits.

The No CMP Corridor PAC, which was leading the campaign in support of the ballot initiative, had the support of Mainers for Local Power. Mainers for Local Power received $688,665 from Calpine Corp., which owned a natural gas-fired plant in Westbrook, Maine, and $750,756 from Vistra Energy Corp., which owned a natural gas-fired plant in Veazie, Maine.

Proponents of the ballot initiative collected 75,253 signatures for the ballot initiative between October 2019 and February 2020. On March 4, 2020, Dunlap announced that 69,714 of the submitted signatures were valid, surpassing the required minimum of 63,067.

The ballot initiative was one of two potential November 2020 citizen-initiated measures in Maine. The other citizen-initiated measure is a veto referendum to repeal ranked-choice voting for presidential elections. Secretary of State Dunlap announced that not enough signatures were valid for the veto referendum to appear on the ballot. Proponents of the veto referendum, however, are challenging Dunlap’s decision in Superior Court.

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New Mexico Supreme Court rules Governor Lujan Grisham may fine businesses for violating public health orders

On August 4, 2020, the New Mexico Supreme Court unanimously ruled that the governor may legally fine businesses that violate the New Mexico Public Health Emergency Response Act.

The case came to the supreme court after several businesses filed suit in the 9th Judicial District in Curry County. The state Republican Party helped organize the complaint against the governor. The plaintiffs claimed that the power of the governor to fine businesses that violated the Emergency Response Act was not inherent to the act itself. Chief Justice Michael Vigil, writing the court’s opinion, said, “The Legislature has clearly given the governor that authority.”

In response to the supreme court’s decision, Republican Party Chairman Steve Pearce said, “We are deeply disappointed in today’s Supreme Court decision… This ruling demonstrates the need to seek change at the polls this November by electing conservative judicial candidates who will help protect our freedoms and basic rights. What happens at the polls impacts what happens in our lives in New Mexico, and we must make a stand this fall on Election Day.”

Gov. Michelle Lujan Grisham (D) tweeted in response to the court’s decision: “The state shouldn’t have to fine anybody…Doing the right thing in a crisis shouldn’t be something we have to argue about. But anyone endangering the lives of New Mexicans will face the consequences.”

The state supreme court may hear a similar case in the future. In July, the New Mexico Restaurant Association filed a lawsuit in a state District Court challenging the state’s authority to order establishments to close indoor dining again after briefly allowing the businesses to reopen at 50% capacity.

As of August 11, Ballotpedia has tracked 681 lawsuits filed in response to policies implemented to address the COVID-19 outbreak in the United States. Of these 681 suits, 189 have been filed in state-level courts (and 34 of those have been taken up by state supreme courts). The remaining lawsuits have been filed in the federal judiciary.

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Maine Supreme Judicial Court hears arguments about the role of ballot referenda in overturning state administrative agency decisions

On August 5, the Maine Supreme Judicial Court heard oral arguments in a case about whether voters may use the ballot referendum process to reverse actions taken by a state administrative agency. At issue is a ballot referendum set to appear on the November 2020 ballot that would overturn a state agency decision giving a power company permission to build a high-voltage power line.

The lawyer for Avangrid Networks, which owns the power company, argued that the “integrity of the Maine Constitution and [its] constitutional form of government” depended on the court stopping the ballot referendum. He said that it was the duty of the court to stop proponents of the ballot referendum from attempting to use the referendum process in a way that is not supported by the state constitution.

Opponents of the referendum argue that the ballot measure violates the separation of powers provision found in Article III of the Maine Constitution. They’ve argued that the measure is an attempt to use a ballot referendum to exercise executive authority by reversing an agency order, and judicial authority by overturning a related court decision.

The lawyer representing supporters of the referendum argued that the court should wait to rule on the constitutionality of the referendum until after the November 2020 election. He argued that the referendum, which would direct the behavior of the Maine Public Utilities Commission, was a legitimate use of legislative authority. He added that however the court decides, voters should be allowed to vote for or against the measure in the election.

The lawyer for the secretary of state of Maine stated that the secretary agreed, along with the challengers, that the referendum goes beyond the power of citizens to legislate under the Maine Constitution. She also stated that the court should decide the issue before the November election.

To learn more about the Maine ballot measure, see here:
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Link to the oral argument:

DeSantis appoints judge, attorney to Florida Court of Appeals

On July 29, Florida Gov. Ron DeSantis (R ) filled two vacancies on the Florida Second District Court of Appeal. The court is one of five intermediate appellate courts in Florida. Intermediate appellate courts serve as an intermediate step between the trial courts and the courts of last resort in a state. The Florida District Courts of Appeal were established in 1957 to relieve the case docket of the Florida Supreme Court.

John K. Stargel fills the vacancy created by the resignation of former judge Samuel Salario, who resigned from the court on June 4, 2020, to take a job in the investment industry. Prior to joining the appellate court, he was a judge on Florida’s Tenth Judicial Circuit Court.

Suzanne Labrit, who has worked in private law practice for over two decades, fills the vacancy created by the elevation of Judge John Badalamenti to the United States District Court for the Middle District of Florida. Both judges must stand for retention election in 2022 in order to serve full six-year terms on the court.

Judicial positions in Florida are nonpartisan. Of the 16 judges currently sitting on the Florida Second District Court of Appeal, two were appointed by a Democratic governor and 14 were appointed by a Republican governor. Of the 48 judgeships across the other four district appellate courts, only one sitting judge was appointed by a Democratic governor. The rest were appointed by a Republican governor.

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Davis joins Tennessee Court of Appeals after delayed confirmation

Over 60 days after Gov. Bill Lee (R) appointed Kristi Davis to the Tennessee Court of Appeals, Davis was confirmed and sworn into office. She resigned from her position on the state’s Sixth Circuit Court on July 31 and assumed office on the appellate court on August 3.

Davis fills the vacancy created by the retirement of Charles Susano, the longest-serving judge in the history of the Tennessee Court of Appeals. Lee appointed Davis on May 28, 2020, but her confirmation hearing was delayed due to the coronavirus pandemic. The Tennessee state legislature suspended its legislative session this spring effective March 19 until June 1. The legislature then adjourned on June 19.

Had the legislature voted to confirm Davis upon returning to session in June, she would have been required to stand for retention election this month. Tennessee appellate judges are mandated to stand for retention election in the next general election occurring at least 30 days after the vacancy occurs, and general judicial elections in the state take place during the non-judicial primary in August.

The Tennessee courts reported that mail-in ballots for the August election had already been distributed and that it would have cost an additional $700,000 to send out ballots including Davis’ name. Tennessee law states that nominees not confirmed by the state legislature within 60 days are automatically confirmed the following day. Tennessee Sen. Mike Bell (R) said of the decision to allow Davis to be automatically confirmed, “After talking about it and realizing that especially in these times of crunched budgets $700,000 is not an insignificant amount of money…What we decided to do would be to allow the nominee to be confirmed basically by default by us not acting.”

Judicial elections for the appellate court in Tennessee are held every two years in even-numbered years. Davis will thus stand for retention election in 2022, and her current term ends on August 31 of that year.

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Taylor leaves Wisconsin Legislature, replaces Karofsky on Dane County Circuit Court

Rep. Chris Taylor (D) resigned from the Wisconsin State Assembly on August 1 to be sworn in as the new Branch 12 judge on the Dane County Circuit Court that same day. Taylor fills the vacancy created by Jill Karofsky’s election to the Wisconsin Supreme Court. Karofsky left the circuit court to be sworn in as a state supreme court justice on August 1.

Taylor fills the third recent vacancy on the 17-branch Dane County Circuit Court, which has jurisdiction over the state capital of Madison. Gov. Tony Evers (D) appointed her to the court in June. He also appointed Mario White and Jacob Frost to the court that month. White filled the Branch 7 vacancy on the circuit court left by the resignation of William Hanrahan, who resigned to become an administrative law judge in March of this year. Frost filled the Branch 9 vacancy created by the retirement of judge Richard Niess. Judicial positions on the court are nonpartisan.

A fourth vacancy occurred on August 4, when Branch 12 judge Peter Anderson resigned. Gov. Evers is seeking applications for that and a fifth anticipated vacancy, which will occur when judge Shelley Gaylord resigns effective August 31.

Taylor, Frost, White, and the two pending appointees will each serve on the court for a term ending July 31, 2021. They must stand for retention elections in the spring of next year in order to serve full six-year terms on the court.

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Wisconsin Supreme Court justice to be sworn in during ultramarathon

Jill Karofsky, who won election to the Wisconsin Supreme Court on April 7 of this year, will be sworn in while running an ultramarathon race on Saturday. She plans to stop at mile 35 of a 100-mile race for a socially-distanced ceremony over which Justice Rebecca F. Dallet will preside.

Karofsky defeated incumbent Daniel Kelly with 55.2% of the vote to Kelly’s 44.7% in April’s nonpartisan election. Although the race was officially nonpartisan, Kelly has been a member of the court’s conservative majority and received support from conservative groups. Karofsky said she would join the court’s liberal minority and received support from liberal groups.

Of the seven justices on the state supreme court prior to Karofsky’s swearing-in, five justices were elected in nonpartisan elections and two, including Kelly, were appointed by Republican governor Scott Walker. Karofsky’s win reduced the size of the court’s conservative majority to 4-3, meaning that the 2023 election will determine control of the court, assuming no justices leave the bench early. A Kelly win would have prevented control of the court from changing until the 2026 election at the earliest.

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Texas Court of Appeals judge killed in accident

Appellate judge David Bridges (R), who sat in Place 1 on the Texas Fifth District Court of Appeals, was killed on July 25 when an individual driving under the influence of alcohol hit Bridges as he was driving on the freeway. Bridges had served on the court since 1996.

Bridges was running for re-election to his seat on the court and advanced unopposed from the Republican primary on March 3. He was to face Democratic candidate Craig Smith, a judge of the Texas 192nd District Court, in the general election on November 3. Because of the timing of Bridges’ death, Republican Party committee officials from his district will nominate a replacement candidate to appear on the general election ballot. They have until August 24 to submit the nomination.

The Texas Fifth Court of Appeals is one of 14 intermediate appellate courts in Texas. Judges run in partisan elections to serve six-year terms on the court. Of the 12 judges currently sitting on the court, eight are affiliated with the Democratic Party and four are affiliated with the Republican Party.

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