House Order Propounding Questions to the Justices of the Supreme Judicial Court

WHEREAS,  it appears to the House of Representatives of the 125th Legislature that the following are important questions of law and that this is a solemn occasion; and

WHEREAS,  the Constitution of Maine, Article VI, Section 3 provides for the Justices of the Supreme Judicial Court to render their opinion on these questions; and

WHEREAS,  there is concern within the House of Representatives that the Treasurer of State has violated the provisions of the Constitution of Maine, Article V, Part Third, Section 3, which states that: "The Treasurer shall not, during the treasurer's continuance in office, engage in any business of trade or commerce, or as a broker, nor as an agent or factor for any merchant or trader."; and

WHEREAS,  in response to questions posed to the Attorney General by a member of the House of Representatives dated February 10, 2012, the Attorney General has provided the following information. Most of this information regarding the Treasurer of State's activities contained in the Attorney General's opinion is also identified in an amended Statement of Sources of Income filed by the Treasurer of State with the Commission on Governmental Ethics and Election Practices in response to a complaint filed by the Maine Democratic Party alleging that the Treasurer of State failed to disclose adequately sources of income and activities on his 2010 Statement of Sources of Income.

WHEREAS,  the Attorney General was unable to locate any judicial decision construing the constitutional restrictions on the Treasurer of State's activities; and

WHEREAS,  the Treasurer of State does not appear to have responded to the recommendations of the Attorney General; and

WHEREAS,  the Treasurer of State has also indicated to the Commission on Governmental Ethics and Election Practices that he holds passive ownership interests in other investment companies and that his original required filing with the commission did not completely identify all of his activities and sources of income; and

WHEREAS,  if the activities of the Treasurer of State violate the provisions of the Constitution of Maine, Article V, Part Third, Section 3, the validity of previous and future action by the Treasurer of State under the Constitution and statutes of the State of Maine is placed in question; and

WHEREAS,  if the activities of the Treasurer of State violate the provisions of the Constitution of Maine, Article V, Part Third, Section 3, the only remedies available to the House of Representatives would be removal from office by impeachment or address under Article IX, Section 5; and

WHEREAS,  under the Constitution of Maine, Article IV, Part First, Section 8, the House of Representatives has the sole power of impeachment; and

WHEREAS,  the initiation of impeachment or address proceedings is one of the most serious actions that the Legislature can contemplate and should not be undertaken without a clear understanding of the governing provisions of the Constitution of Maine; and

WHEREAS,  a decision by the House of Representatives on whether to initiate proceedings to remove the Treasurer of State from office involves important questions of law on a solemn occasion; now, therefore, be it

ORDERED, that, in accordance with the provisions of the Constitution of Maine, the House of Representatives respectfully requests the Justices of the Supreme Judicial Court to give the House of Representatives their opinion on the following questions of law:

Question 1. Do any of the activities of the Treasurer of State identified by the Attorney General violate the constitutional restrictions prohibiting the Treasurer of State from engaging in a business of trade or commerce or as a broker or agent or factor for any merchant or trader? Has the Treasurer of State violated his oath "...to support the Constitution of the State of Maine"?

Question 2. If the answer to either part of Question 1 is in the affirmative, does this violation place in jeopardy the validity of any actions taken by the Treasurer of State while in violation of the constitutional restrictions?

Question 3. If the answer to either part of Question 1 is in the affirmative, having violated the Constitution of Maine, is it possible for the Treasurer of State to remain in office?

Question 4. Given that the Treasurer of State is prohibited from engaging in trade or commerce, could he comply with the Constitution of Maine by placing management of his business interests in the hands of a 3rd party or would it be necessary for him to divest himself of his interests entirely?

Question 5. Do the activities of the Treasurer of State identified by the Attorney General with regard to the Treasurer of State's involvement with the Popham Beach Club or Dirigo Holdings, LLC or the Treasurer of State's failure to provide complete information regarding sources of income and activities to the Commission on Governmental Ethics and Election Practices constitute a misdemeanor in office permitting the House of Representatives to take action against the Treasurer of State under the Constitution of Maine, Article IX, Section 5 providing for the impeachment or removal by address to the Governor?

Question 6. Are there any other avenues available to the Legislature to investigate the activities of the Treasurer of State and to determine whether the Treasurer of State's actions violate the Constitution of Maine or any provisions of law?

Question 7. Does the incompleteness of the Treasurer of State's bond constitute grounds for removal under the Maine Revised Statutes, Title 5, section 124? What action would be necessary under that law to remove the Treasurer of State?