Maine state government wrestles over the separation of powers.
Posted by Ed Folsom, June 2, 2025
Separation of powers: who decides what falls within the powers of each branch of government?
The separation of powers is a key part of our system of government in the U.S. and in the individual states. Government is divided into three distinct branches: the legislative, the executive, and the judicial. Each branch has exclusive power to act within its sphere, and no branch has any power to act outside its sphere. This underpins what is commonly referred to as our system of checks and balances. Absolute power cannot be concentrated in a single person or group when the system works as designed.
But what happens if there is a disagreement between the branches about whether a given act is properly a legislative act, an executive act, or a judicial act? Who gets to decide whether the legislative, the executive, or the judicial branch acts within or outside its constitutional bounds? The Supreme Court told us, in Marbury v. Madison, in 1803, that the Supreme Court is the ultimate arbiter of what is and is not constitutional under the U.S. Constitution. When all three branches of government accept that authority, the dispute truly ends with the Supreme Court’s determination in any given case. Still, unless and until the Supreme Court takes up and decides a given dispute, the dispute continues to exist, unsettled.
What would happen if the legislative or executive branch of government were to decide that a Supreme Court decision on such an issue is just plain wrong, and that because each branch is coequal, the legislative and executive branches are not bound by the Supreme Court’s wrongful pronouncement in the matter? What if the legislative or executive branch firmly believes that the Supreme Court exceeded its own constitutional boundaries in rendering the decision, that the decision is itself just a thinly-veiled legislative or executive act, merely replacing a disfavored legislative or executive judgment call with the Court’s own, more enlightened judgment?
I ask because we are currently witnessing abundant disagreements over the constitutional scope of legislative, executive, and judicial branch powers. We are witnessing increasing attacks on the Supreme Court’s legitimacy as the ultimate arbiter of what is and is not constitutional, and on the legitimacy of the Court itself.
These disputes and attacks are not just taking place at the federal level. They are also taking place at the state level, right here in Maine. Within the past week, Maine news stories have reported on: (1) a dispute between the Maine Legislature and the Maine Supreme Judicial Court over the Court’s power to exclusively police the misconduct of Maine judges; and (2) a dispute at a legislative hearing over whether the Maine Legislature is free to enact legislation regarding a statute of limitations that directly contradicts a recent Law Court case declaring similar legislation unconstitutional.
The Constitutional Origin of Separation of Powers.
The separation of powers between the three branches of the federal government originates in the U.S. Constitution. In Maine, it originates in the Maine Constitution.
The U.S. Constitution states, in pertinent part:
All legislative Powers herein granted shall be vested in a Congress of the United States…The executive Power shall be vested in a President of the United States of America…The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
Although the U.S. Constitution does not expressly state that no branch of government may exercise powers vested in another branch of government, the Maine Constitution does expressly state this. Article III of the Maine Constitution provides:
Distribution of Powers.
Section 1. Powers distributed. The powers of this government shall be divided into 3 distinct departments, the legislative, executive and judicial.
Section 2. To be kept separate. No person or persons, belonging to one of these departments, shall exercise any of the powers properly belonging to either of the others, except in the cases herein expressly directed or permitted.
Because the controversies discussed in this post do not involve the executive branch of Maine government, I will ignore the part of the Maine Constitution that pertains to executive branch power. As for legislative and judicial branch powers, in pertinent part the Maine Constitution states the following:
Article IV. Part First. House of Representatives.
Section 1. Legislative department; style of acts. The legislative power shall be vested in 2 distinct branches, a House of Representatives, and a Senate, each to have a negative on the other, and both to be styled the Legislature of Maine, but the people reserve to themselves power to propose laws and to enact or reject the same at the polls independent of the Legislature, and also reserve power at their own option to approve or reject at the polls any Act, bill, resolve or resolution passed by the joint action of both branches of the Legislature,
Article VI. Judicial Power.
Section 1. Courts. The judicial power of this State shall be vested in a Supreme Judicial Court, and such other courts as the Legislature shall from time to time establish.
Does the Maine Legislature have any power to act regarding Maine’s system for addressing the alleged misconduct of judges?
The Maine Monitor recently ran a story about a flap between Maine Supreme Judicial Court Chief Justice Valerie Stanfill and the Maine Legislature over legislative action to address alleged misconduct by Maine judges. The controversy arose when a complaint was filed against Maine Supreme Judicial Court Associate Justice Catherine Connors under the existing system for addressing judicial misconduct. I previously blogged about the matter, here. Under the current system, Justices of the Maine Supreme Judicial Court preside over cases involving the alleged misconduct of one of their fellow Supreme Court Justices. This creates an obvious conflict of interests.
The justices of the Maine Supreme Judicial Court recognize this conflict. In January this year, they proposed a set of amendments to the governing rules for such proceedings and invited public comment. The amendments would assign decisions on ethics complaints against Supreme Judicial Court justices to a panel comprised of justices of the Superior Court and judges of the District Court. As a result of the public comments, the Court made further amendments to the proposed rules and invited further public comment on those amendments, with a deadline of June 9, 2025.
In the meantime, some members of the Maine Legislature have become impatient with the judicial branch’s failure to yet squarely address the allegations in the Connors matter. According to the Maine Monitor story, a bill was introduced that purported to change the disciplinary procedures that the Maine Supreme Judicial Court both created and administers. This caused Chief Justice Stanfill to oppose the bill with written testimony stating, “The judicial power vested in the Supreme Judicial Court includes the exclusive authority to regulate the conduct of judges of all the courts, including imposing discipline or misconduct.” In other words, Stanfill told the Legislature that what it intended to do violated the Maine Constitution by encroaching on powers held exclusively by the judicial branch.
The Legislature’s judiciary committee amended the bill in reaction to Stanfill’s written testimony, attempting to avoid the constitutional problem. The amended bill, endorsed by the judiciary committee, would form a committee to study the Supreme Judicial Court’s processes for addressing judicial misconduct. Proceedings on the amended bill then caused Court spokesperson Barbara Cardone to show up before the committee to warn them, “What you’re about to undertake is an unconstitutional exercise of legislative power.” Cardone asserts that the Legislature has no power to form a committee to study a matter that it has no say in.
State representative, Adam Lee (D. Auburn), who introduced the bill, fired back, “The Maine Supreme Judicial Court is indeed the ultimate arbiter of the constitutionality of things, but they do so through cases and controversies, not through testimony to the judiciary committee.” Lee accepts that the Court has the final say regarding what are the exclusive constitutional powers of the judicial and legislative branches. But he does not accept the Maine Supreme Judicial Court’s pronouncements on those matters when those pronouncements are made outside the exercise of the Court’s proper role of deciding cases and controversies placed before it.
What, though, if Lee, as a member of the legislative branch, were to simply disagree completely with the Court’s pronouncement in the matter, even if that pronouncement was made in the context of a case before the Court? As we will see below, that is what the Legislature has been urged to do in another matter before it.
In any event, is it true that the Legislature has no power to form a committee to study the judicial branch’s processes for disciplining judicial misconduct, or to report and comment on its findings? What if the judicial branch’s processes were manifestly corrupt? Now, I’m not suggesting that the judicial branch’s processes are manifestly corrupt, but even if the Legislature in fact lacks the power to legislate changes in a manifestly corrupt judicial branch process, does it really lack the power even to spotlight the corruption to the public, to attempt to shame the judicial branch into changing those processes?
Would such an effort really be unconstitutional, as spokesperson Cardone asserts by implication? I have my doubts, and those doubts reinforce representative Lee’s observations about the need for the Court to firm-up issues and make its proclamations on constitutionality only when acting as a Court, and then only within the confines of a case or formal opinion on a specific question presented.
We have, in this disagreement between representative Lee and Chief Justice Stanfill, a clear clash between two branches of Maine State government over what each may and may not do within its respective constitutional powers. The Maine Constitution is very clear in its statement of what type of power is and is not held by each branch, but what the constitutional language means in the specific instance is not always so clear.
Is it constitutional for the Maine Legislature to ignore the Law Court’s declaration that a certain legislative action violates the Maine Constitution, on the prospect that a recent change in the Law Court’s composition will cause the Court to reverse itself if the issue is presented to it again?
In another recent story covering legislative committee hearings, the Portland Press Herald reported on proposed legislation that would eliminate the statute of limitations on lawsuits against governmental entities for sexual abuse committed by their employees. In January, the Law Court decided that legislation that eliminated the statute of limitations for child sex abuse allegations involving pre-1987 conduct is unconstitutional. The Court ruled that people accused of such abuse have vested rights created by the controlling statute of limitations, and that it is unconstitutional to divest them of those rights at this point by eliminating that statute of limitations.
Michael Bigos is an attorney with a big stake in pursuing civil cases for damages for pre-1987 child sex abuse allegations. According to the Press Herald story on the matter, in February Bigos’s law firm represented at least 100 people whose claims were made possible when the Legislature eliminated the statute of limitations on pre-1987 cases. The Law Court’s decision declaring the legislative action unconstitutional was very costly to Michael Bigos.
Still, Bigos represents one person who managed to secure a $1.1 million judgement even after the Law Court declared the elimination of the statute of limitations unconstitutional. Bigos’s client, George Eaton, sued Peter Boyce alleging that Boyce sexually abused him in the early 1970’s. Boyce didn’t have a lawyer and he failed to answer the complaint, which caused him to lose by default.
Boyce failed to assert that Eaton’s sex abuse claim was barred by the statute of limitations on grounds that the legislation purporting to set aside the statute of limitations was unconstitutional. A Superior Court Justice awarded Eaton $1.1 million in damages on his default judgment, about a month after the Law Court declared that the Legislature’s elimination of the statute of limitations was unconstitutional. Because Boyce failed to assert as a defense that Eaton’s lawsuit was barred by the statute of limitations, the Justice who awarded damages held that Boyce had waived the defense.
Boyce now has a lawyer and has appealed the matter to the Law Court. Bigos represents Eaton. Bigos has convinced himself that he can get the Law Court to reverse its January decision and now declare that the Legislature’s elimination of the statute of limitations was in fact constitutional. You see, a new justice has been appointed to the Law Court since January, and two of the justices who remain on the Court dissented the first time around, so…
So Bigos recently appeared before a legislative committee, to testify on new proposed legislation that would eliminate the statute of limitations on cases against governmental entities whose employees are alleged to have sexually abused children in way back times. The Press Herald story tells us that one of the legislators on the committee noticed that the language in the bill under discussion has the same unconstitutionality problem as the legislation on pre-1987 cases that the Law Court declared unconstitutional in January. But, according to the Press Herald’s account, Bigos told the Legislature not to worry:
“Bigos said he believes the Legislature still has the right to pass laws that serve their constituents.
‘It is this practitioner’s belief, and many others’, that the Maine judiciary exceeded its authority by impinging on the legislative authority, by declaring that [2021 law] unconstitutional,’ Bigos said.”
In other words, attorney Bigos told the Legislature that it has the authority to ignore the Law Court’s proclamation of unconstitutionality from this past January because Maine legislators have the right to pass laws that serve their constituents (whether constitutional or not?) and because attorney Bigos and many other lawyers believe that the Law Court exceeded its own authority and encroached on the Legislature’s authority by declaring the legislation that purported to eliminate the statute of limitations unconstitutional.
Bigos invited the Legislature to take the next step beyond what Adam Lee intends to do, and to simply ignore the Law Court’s proclamation of unconstitutionality. He urged the Legislature to make its own determination – his determination, in fact — and to determine that the legislation that the Law Court declared unconstitutional is in fact constitutional.
Did the Legislature exceed its constitutional authority by seeking to abolish the statute of limitations? Or did the judicial branch exceed its own authority and intrude on power exclusively held by the legislative branch when it declared the legislative action unconstitutional? Under the Maine Constitution, who in fact gets to decide: The Law Court? The Legislature? Michael Bigos?
I wonder if Bigos is one of those guys running around these days spouting-off about other people undermining the rule of law.
