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Home Rule and the Pre-Emption Doctrine: The Relationship Between State and Local Government in Maine
Get PDFThe legal relationship between a state government and a municipal government determines the powers and responsibilities of these two political entities. In Maine this relationship is complex and uncertain due to ambiguities in the constitutional and statutory scheme governing it and due to the Maine Supreme Judicial Court\u27s narrow and inconsistent interpretation of that scheme. This Comment discusses the various methods for delegating power to municipalities, including the traditional method which was used in Maine prior to 1970. In addition, this Comment examines the home rule scheme enacted in 1970 and its subsequent judicial interpretation and application. Any statutory or common law framework for distributing the state\u27s police power between state and local government should attempt to accommodate three policy considerations. First, in what could be referred to as the certainty principle, the relationship should be clearly defined to allow the machinery of both state and local government to operate smoothly, efficiently, and with minimum uncertainty as to each other\u27s responsibilities. Second, a state legislature must be able to retain ultimate control over municipal government to avoid the disruptive effects of municipalities operating with impunity within the state sovereign\u27s borders: the supremacy principle. Finally, local government must be free to address local problems left unresolved by the state legislature: the governmental role principle. Maine\u27s home rule scheme, adopted in 1970, adequately accommodates each of these three policy considerations. However, the Maine Law Court\u27s interpretation of the scheme emphasizes the supremacy principle at the expense of the other two. This emphasis results in the invalidation of much municipal legislation, thus creating doubt as to the scope of municipal government\u27s authority and decreasing its ability to effectively legislate in the local population\u27s public interest. This Comment suggests that the Legislature should take action to temper the court\u27s emphasis on the supremacy principle and thus help restore certainty and assure the effectiveness of local government
Local Land Use Controls: An Idea Whose Time Has Passed
Get PDFThe suggestion that local land use control powers are not working well—that they may not be susceptible to modest but useful reforms or modifications and thus ought to be more drastically altered or abandoned altogether—is not new. Beginning nearly twenty years ago with Richard Babcock\u27s publication of The Zoning Game, the literature and case law in the field is rife with express and implied suggestions that too much land use control power has been given to local governments. More recently Professor Jan Krasnowiecki suggested we abolish zoning, and the New Jersey court in its latest Mount Laurel decision underscored the almost overwhelming difficulty of addressing what are really state and regional land use issues on a municipality by municipality basis. Local land use control powers are being abused at worst and too restrictively utilized at best, leaving area-wide problems unresolved. Alternative mechanisms, the private market and private control measures, coupled with state-level or regional land use control measures and harm avoiding performance standards seem better calculated to meet our needs. It is ironic that as courts, commentators, and land use experts become more dissatisfied with both the underlying theory and the actual implementation of local land use control prerogatives, the popular perception of many citizens and locally elected officials of an almost inherent right to exercise land use control powers at the local governmental level grows unabated. Local land use control powers are an almost unassailable article of faith embodied in such catch phrases as home rule, local control, and participatory or grass roots democracy
Posteriores Priores: An Unconstitutional Congressional Role in Treaty Termination
Get PDFThe Supreme Court recently decided a case involving an apparent conflict between a treaty provision and a subsequent act of Congress. A Japanese subsidiary corporation, Sumitomo Shoji America, Inc., claimed a provision of the Treaty of Friendship, Commerce, and Navigation of 1953 between the United States and Japan exempted it from the prohibition against discrimination embodied in title VII of the Civil Rights Act of 1964. The Court did not reach this issue because it found Sumitomo Shoji America, Inc. to be a United States corporation and unable, therefore, to invoke the provisions of the treaty. The issue raised in Sumitomo Shoji America, Inc. v. Avagliano is clearly of widespread importance. Treaty provisions identical to those involved in Sumitomo are found in numerous commercial treaties between the United States and countries having branch and subsidiary corporations in the United States. It is likely that one of these branch corporations will seek to invoke the treaty provision as an exemption from title VII. Eventually, the Supreme Court may have to resolve the apparent conflict between the treaty provision and title VII of the Civil Rights Act of 1964. The supremacy clause places acts of Congress and treaties on equal footing as law of the land. Thus, the Constitution does not resolve the conflict. A judicially developed solution, the later-in-time doctrine or posteriores priores, traditionally has been invoked to resolve such conflicts. The doctrine was stated succinctly by Justice Field nearly one hundred years ago . . . . Justification for the doctrine is premised on Congress\u27 independent legislative power to enact domestic law. The effect of the doctrine, however, is the unilateral termination of the domestic operation of a treaty provision by Congress by inconsistent legislation. Termination of the domestic operation of a treaty provision results in the inability of the United States to fulfill its international obligations, forcing breach of the treaty by the United States or presidential notice of termination in the international sphere. This raises serious questions regarding Congress\u27 constitutional role in treaty termination, especially in light of the recent case of Goldwater v. Carter. This Commentator asserts that Congress has no unilateral constitutional role to play in treaty termination. The later-in-time doctrine, therefore, allows Congress to play an unconstitutional unilateral role in treaty termination through the back door by enacting inconsistent legislation
Managing the Cumulative Effects of Coastal Land Development: Can Maine Law Meet the Challenge?
Get PDFFollowing a period of slow economic growth for the State of Maine in the early part of this decade, improved economic conditions and new demographic trends have renewed the demand for commercial, residential, and recreational development in coastal communities across the state. For many years, Maine has tried to stimulate growth in its communities. Now, many of its coastal towns face a huge development boom, particularly in the southern and mid-coast areas, in communities such as York, Wells, Ogunquit, Kennebunk, Kennebunkport, Portland, Camden, and Belfast. These towns are struggling to find ways to control the increasing density of development along the coast and to prevent the associated decline in the scenic quality of these areas and their suitability for traditional maritime and public recreational activities. Environmental planners now recognize that a number of small-scale, unrelated land development decisions can have even greater deleterious effects on natural resources than larger-scale projects. As a consequence, federal and state agencies are now seeking to incorporate a cumulative effects criterion into environmental and land use planning programs. Cumulative effects or impacts have been defined as the total effect on the environment of a series of related or unrelated land development activities taking place within one region and over a period of time. Under Maine\u27s principal environmental laws, however, only the larger, discrete projects are routinely subject to intensive review by the state\u27s regulatory agencies. Some small-scale projects are subject to regulatory review, but they are considered only in light of their immediate impact on a specific natural resource such as a wetland. Most projects are licensed on the basis of their individual environmental characteristics, not the effect they will have in conjunction with past or future development. New residential construction, particularly the multi-unit project designed as second-home or retirement property, is one of the leading forms of incremental development, especially along the coast. The rapid pace and density of this development, spurred by current economic conditions, threaten with degradation some of Maine\u27s most sensitive environmental resources. These resources include groundwater aquifers, wildlife habitat, scenic areas, and undeveloped shoreland. Attempts to regulate such development often fail to assess accurately their full environmental impact because each project generally is examined as a distinct unit, without a consideration of the cumulative effects of a number of such projects if approved for the same area
The Provisional Application of International Agreements
Get PDFThe last few decades have seen a tremendous increase in the number of international agreements concluded by states and international organizations. The pace of concluding international agreements is accelerating and will most likely continue to accelerate at an increasing rate. The growing reliance on international agreements by the members of the world community is of course a response to rapidly expanding international interactions and interdependencies. Until the latter part of the nineteenth century, international agreements dealt primarily with political matters: peace treaties, treaties of alliance and friendship, neutrality treaties, and treaties settling territorial claims. Today, international agreements deal not only with political matters, but with legal, social, cultural, economic, technical, and administrative matters as well. Perhaps most significant is the growing use of multilateral agreements, whereby nations codify or create norms of international law or establish international organizations. Indeed, the International Law Commission has recently observed that the conclusion of multilateral agreements has become the main device in the legal regulation of the relations between States. Given the prominence of international agreements of all sorts for the orderly and effective operation of the international legal system, it is central to the mission of international law to provide the legal framework for the expeditious conclusion and entry into force of legally meaningful international agreements. Unfortunately, problems are often encountered with the entry into force of international agreements that are negotiated and concluded in good faith. Some concluded agreements never do enter into force. Others enter into force only after long delay. Some multilateral agreements that do enter into force never obtain the number of adherences hoped for so that they do not attain the intended universal or near-universal application; or adherences to such agreements may be delayed for considerable periods of time. Although some international agreements, because of domestic political opposition, do not enter into force or obtain many adherences, others simply run afoul of the often cumbersome and time-consuming national processes required for ratification. The problem of final acceptance of multilateral agreements has been recognized by the League of Nations and the United Nations and has been the subject of discussion and study. Recently, the United Nations General Assembly requested the Secretary-General to prepare a report on the techniques and procedures used in the elaboration of multilateral treaties. The report expresses an increasing concern with the non-ratification or the slow ratification of multilateral treaties, resulting in delays in their entry into force, in restricting the number of participating States for an excessive number of years, and even in the failure of certain treaties to enter into force at all. The period between the conclusion of international negotiations and the definitive entry into force of treaty obligations is a particularly sensitive one. The momentum of negotiations and the cooperative relationships established during negotiations must continue. To this end, it is extremely helpful if the successful outcome of the negotiating process can be given immediate legal protection. The law of provisional application is an important mechanism developed by states to afford such protection. This Article describes and discusses the mechanism of provisional application
The Waiver Problem in Maine Real Property Foreclosure Law: A Commercial Paper Perspective
Get PDFWhen a mortgagee accepts from a mortgagor payment of part of a mortgage arrearage, does the mortgagee then waive its right to foreclose? Many bank counsel will say that the mortgagee does waive its right to foreclose, and they will point for authority to the broad holding of Savings & Loan Association of Bangor v. Tear. In that decision, the Maine Supreme Judicial Court, sitting as the Law Court, seemed to hold that a mortgagee waives its right to foreclose if it accepts tender of a late payment. This broad interpretation of the Savings & Loan decision has proven to be particularly vexatious to attorneys representing institutional mortgagees with multi-branch facilities, in that under this interpretation any attempt to foreclose a real estate mortgage substantially in arrears can be thwarted by the mortgagor\u27s tender of a single loan payment at any branch of the bank. In other words, to halt a foreclosure action a mortgagor need only travel to a distant branch office, tender a single mortgage payment, and stop the institution\u27s foreclosure action. Counsel faced with such a situation frequently choose to dismiss the foreclosure action and start anew, only to run the risk that the mortgagor will later repeat his act at another branch where he is unknown. In an age in which local banks have taken on regional faces, the possibility of such mortgagor action clearly poses a substantial challenge to the efficiency and economy of banking activity
State v. Durepo: Toward a Principled Maine Version of the Impeachment Exception to the Exclusionary Rule
Get PDFAs one might have anticipated, the broad substantive mandates of the major Warren Court exclusionary rule decisions have not been left completely intact by later Supreme Court decisions. Instead, the scope of the evidentiary exclusionary doctrine established by the Warren Court has been significantly narrowed by later Supreme Court decisions that have created numerous exceptions to the general command of the exclusionary rule that evidence obtained through unconstitutional means is inadmissible in a criminal trial. Although some members of the present Court argue that the exceptions to the exclusionary rule are consistent with the purposes of the rule, and therefore legitimate, other Justices argue that some of the exceptions to the exclusionary rule erode the constitutional rights of criminal defendants. Two cases which characterize the movement toward more restrictive application of the exclusionary rule are Harris v. New York and United States v. Havens. These cases generated an exception to the exclusionary rule by allowing the introduction of unconstitutionally obtained evidence at trial for the purpose of impeaching a criminal defendant\u27s credibility, notwithstanding the inadmissibility of the evidence in the prosecution\u27s case in chief. In State v. Durepo, the Maine Supreme Judicial Court, sitting as the Law Court, applied the settled federal law of Harris and Havens and affirmed the attempted murder and aggravated assault convictions of Thomas Durepo, whose suppressed pre-trial statements were used to impeach his credibility at trial. Justice Wathen, writing for the majority, concluded that the Law Court was bound by Harris and Havens because Durepo did not raise any state constitutional issues on appeal. Furthermore, in dicta the majority opinion explicitly endorsed the underlying rationale of the Harris-Havens rule. Dissenting in part, Justice Glassman argued that as a matter of state constitutional law statements suppressed under Miranda should not be admissible in Maine courts for any purpose. In a concurring opinion joined by Justice Nichols, Justice Roberts agreed with the majority that absent a violation of the Maine Constitution, the Law Court could not reject Harris-Havens on state constitutional grounds. However, the concurring justices were unwilling to join the majority\u27s endorsement of the Harris-Havens rationale
Personal Injury Compensation as a Tax Preference
Get PDFSamuel Johnson tells us [d]epend on it, sir, when a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully. Projected federal budget deficits in the realm of $200 billion a year for the foreseeable future ought to have a similar effect: a concentration on means of reducing these unacceptable deficits. The simple answer is either to spend less or tax more, or perhaps, a bit of both. If we choose to tax more, we must either raise tax rates or widen the tax base, or both. The former, a general rise in tax rates, seems unlikely. If tax rates are to remain constant, and constantly too low, then greater tax revenues will be achieved only by broadening the tax base. Rate reduction and base broadening are inevitably coupled. Having adopted a general rate reduction, we now must face the need for a broader tax base. The latter can be achieved only by the elimination of those Internal Revenue Code (Code) sections that narrow the tax base by either exempting income or granting deductions. A case in point concerns sections 104, 105 and 37 of the Code which, in general, exclude from gross income amounts received on account of personal injuries or sickness whether from workmen\u27s compensation, suit or agreement, or insurance. These sections, with antecedents in the 1918 Revenue Act, seem innocuous and perhaps even justifiable on humanitarian grounds. This Article will argue, however, that if we are serious about broadening the tax base, then we ought seriously to consider repeal or substantial modification of sections 104, 105 and 37
Group Homes for the Mentally Retarded in Maine: Legislative Intent and Administrative Process
Get PDFHistorically, mentally retarded citizens of Maine have been confined to Pineland Center, the state\u27s principal institution for the mentally retarded. In 1975 a class action suit, Wuori v. Zitnay, was filed in federal district court on behalf of involuntarily confined Pineland residents and conditionally released residents in need of care . . . in a humane and healthful . . . environment. Three years later agencies and officials of the State of Maine entered into a consent judgment which laid down a comprehensive plan designed to bring about speedy and meaningful relief to the plaintiff class. The relief granted was premised upon the right of each member of the class to be provided the least restrictive and most normal living conditions possible. Accordingly, pursuant to individual determinations of need, mentally retarded persons were to be released from the centralized Pineland facility and placed in small facilities integrated into the communities of the state. The court appointed a special master to monitor the implementation of the consent judgment. Concurrently with the Pineland litigation, both federal and state legislation on mental retardation established a clear legislative purpose promoting community-based facilities. Such community-based facilities include group homes for the mentally retarded. Group homes in Maine now number nearly thirty, almost all of which are operated by non-profit community-based organizations. The group homes are certified by the Department of Human Services as intermediate care facilities for the mentally retarded (ICF/MRs) and are therefore eligible for Medicaid funding. This apparent success story of legislative and judicial relief is belied by a less well-known story of delay and frustration caused by conflicts between different levels and agencies of government. For example, local governments may restrict the development of group homes through use of the zoning power. Moreover, just as the consent decree can be rendered dysfunctional by a state court applying a local zoning ordinance, the internal conflicts and processes of state administration may also hamper the implementation of the decree and the legislation