Tax-cap case back in court Advocate foresees issue on November ballot

PORTLAND – Mary Adams was convinced Tuesday that, come November, the Taxpayer Bill of Rights she supports will be on the ballot.

“I remain confident that we’ll get the green light,” Adams of Garland told reporters outside the Cumberland County Courthouse after the Maine Supreme Judicial Court heard arguments in her appeal of a lower court’s decision.

If the justices overturn that decision, the TABOR question will be before voters this year. If they uphold it, Adams, along with her fellow anti-tax activists, will have to go back to the streets and local polling places to collect signatures all over again.

The issue before the court pits the deadline for submitting citizen initiative petitions to the Secretary of State’s Office, set in the Maine Constitution, against the deadline for gathering signatures set by state statute, according to Adams.

The constitutional deadline to get a question on the November 2006 ballot was Jan. 30, 2006. The state deadline was Oct. 21, 2005, one year after Adams’ ballot was approved by the secretary of state.

Adams’ appeal is the first case to bring the deadline conflict before the state’s high court.

In a special court session held Tuesday, lawyers, activists, law students and reporters packed the courtroom where the seven justices on the state’s high court regularly hear appeals. Many of the justices’ questions during the 45-minute hearing centered on the one-year time period set for gathering signatures and whether the process places a burden on petitioners.

The court is expected to issue its ruling on or before May 4.

To get the TABOR question on the ballot this year, organizers needed at least 50,519 valid signatures. On Oct. 21, 2005, a Friday that was treated as the deadline, petitions containing 54,127 signatures were filed with the secretary of state. Secretary of State Matthew Dunlap allowed an additional 4,024 signatures to be submitted on the next business day, Monday, Oct. 24. Without those additional signatures, the petitioners failed to meet the threshold because some of the original signatures were found to be invalid.

Kathleen McGee, a veteran political activist, challenged Dunlap’s action in Kennebec County Superior Court, maintaining that the secretary of state’s acceptance of the late petitions was illegal. Superior Court Justice Donald Marden agreed in a ruling issued earlier this month. Attorney Michael A. Duddy of Portland appealed the decision to the state’s high court on Adams’ behalf.

Duddy’s one-sentence appeal set in motion a fast-moving chain of events in which the Maine Supreme Judicial Court had to receive briefs, hear arguments and render a decision within 30 days.

“The secretary [of state has] said that despite the Superior Court’s ruling, he felt instinctively that he had done the right thing in accepting the Monday petitions and validating the Taxpayer Bill of Rights petitions,” Duddy told the justices Tuesday. “We think that the secretary of state’s instinct is right on the money. … What the secretary’s gut said is not only consistent with the spirit of the law, but also the letter of the law.”

McGee’s attorney, Gerald F. Petruccelli of Portland, argued in his brief that Dunlap did not have the discretion to extend the deadline to Monday when the petitioners delivered what they believed to be all of the signatures that had been gathered.

“Deadlines, by their nature, are specific and precise,” he wrote. “An estimate or an approximation is not a deadline.”

He told the court Tuesday that while utility and insurance law gives discretion to governing boards, such as the Public Utilities Commission, the election laws are not structured to give the secretary of state similar discretion.

Assistant Attorney General Phyllis Gardiner disagreed. She argued, as did Adams’ attorney, that the secretary of state has broad authority to determine the validity of initiative petitions just as he has the authority to invalidate them.

She also said that because the delay was only one business day and caused by inadvertence rather than an attempt to undermine the process, Dunlap had the authority to accept the petitions.

Democracy Maine, a nonprofit political group, filed a friend-of-the-court brief asking that the lower court’s decision be upheld. Attorney Richard O’Meara of Portland told the justices Tuesday that voters should not have to rely on the secretary of state’s instinct, but should know what decision he will make because he is following the law.

Dunlap, who attended the hearing Tuesday, said outside the courthouse after the hearing that “circulating and filing are creatures out of the same barn but somewhat different beasts.”

“I don’t think there’s a constitutional problem here at all,” he said. “I think that there’s a lack of clarity as to which deadline applies, and I think the Legislature is taking steps to address that.”

TABOR, modeled after a Colorado law, would limit growth in state spending by linking expenditures to increases in population and inflation. It also would require two-thirds votes in the Legislature and voter approval for measures to boost revenue.

The initiative effort came months after the Legislature enacted a property tax reform law that includes spending limits applying to state government and restricts the growth of county and municipal tax levies. Adams has characterized those caps as inadequate.