An Act To Establish Balance in the Governor's Emergency Powers
Maine Legislature, Session 130, LD 0980
Committee: State and Local Government
Sponsors: SAMPSON, DRINKWATER, FAULKINGHAM, FECTEAU, PICKETT, WADSWORTH
Amends: 37-B MRSA §742

Legislative Document
No. 980
H.P. 726
House of Representatives, March 9, 2021
An Act To Establish Balance in the Governor's Emergency Powers
Reference to the Committee on State and Local Government suggested and ordered printed.
ROBERT B. HUNT
Clerk
Presented by Representative SAMPSON of Alfred.
Cosponsored by Representatives: DRINKWATER of Milford, FAULKINGHAM of Winter 
Harbor, FECTEAU of Augusta, PICKETT of Dixfield, WADSWORTH of Hiram.
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  37-B MRSA §742, sub-§1, ¶C, as amended by PL 2019, c. 617, Pt. H, §1, 
is further amended to read:
C.  After For 7 days following the filing of the emergency proclamation and in addition 
to any other powers conferred by law, the Governor may:
(1)  Suspend the enforcement of any statute prescribing the procedures for conduct 
of state business, or the orders or rules of any state agency, if strict compliance 
with the provisions of the statute, order or rule would in any way prevent, hinder 
or delay necessary action in coping with the emergency;
(2)  Utilize all available resources of the State Government and of each political 
subdivision of the State as reasonably necessary to cope with the disaster 
emergency;
(3)  Transfer the direction, personnel or functions of state departments and 
agencies, or units thereof, for the purposes of performing or facilitating emergency 
services;
(4)  Authorize the obtaining and acquisition of property, supplies and materials 
pursuant to section 821;
(5)  Enlist the aid of any person to assist in the effort to control, put out or end the 
emergency or aid in the caring for the safety of persons;
(6)  Direct and compel the evacuation of all or part of the population from any 
stricken or threatened area within the State, if the Governor determines this action 
necessary for the preservation of life or other disaster mitigation, response or 
recovery;
(7)  Prescribe routes, modes of transportation and destinations in connection with 
evacuations;
(8)  Control ingress and egress to and from a disaster area, the movement of persons 
within the area and the occupancy of premises therein;
(9)  Suspend or limit the sale, dispensing or transportation of alcoholic beverages, 
explosives and combustibles;
(10)  Make provision for the availability and use of temporary emergency housing;
(11)  Order the termination, temporary or permanent, of any process, operation, 
machine or device which may be causing or is understood to be the cause of the 
state of emergency for which this proclamation was made;
(12)  Take whatever action is necessary to abate, clean up or mitigate whatever 
danger may exist within the affected area; and
(13)  During a state of emergency declared by the Governor in accordance with 
this section due to the outbreak of COVID-19:
(a)  Reasonably adjust time frames and deadlines imposed by law for state, 
county and municipal governments and other entities when such an adjustment 
is reasonably necessary to mitigate an effect of the emergency;
(b)  In consultation with the Public Utilities Commission, suspend the 
termination of residential electricity and water services during the period of 
emergency and up to 60 days after the state of emergency is terminated; and
(c)  Modify or suspend the requirements for professional or occupational 
licensing or registration by any agency, board or commission if strict 
compliance with such requirements would in any way prevent, hinder or delay 
necessary action in dealing with the emergency.
The powers granted in divisions (a) and (c) terminate 30 days following the 
termination of the state of emergency.
Sec. 2.  37-B MRSA §742, sub-§1, ¶E is enacted to read:
E. The Governor, during the pendency of a state of emergency, may not reissue or 
renew an emergency proclamation, issue another emergency proclamation that is 
substantially similar to one that expired or reissue an emergency proclamation that the 
Legislature has terminated pursuant to paragraph F without approval of the Legislature 
pursuant to paragraph F, except that the Governor, based on significant changes in 
circumstances, may reimpose such an emergency proclamation for a single period of 3 
days if the Governor calls upon the Legislature to reconsider the order and changed 
circumstances.
Sec. 3.  37-B MRSA §742, sub-§1, ¶F is enacted to read:
F.  After 7 days have elapsed from the issuance of an emergency proclamation by the 
Governor, all emergency powers revert to the Legislature. Emergency proclamations 
may be extended or discontinued by the Legislature pursuant to this paragraph.  
(1)  The Legislature may extend an emergency proclamation issued pursuant to this 
subsection up to a maximum of 30 days by a 2/3 majority vote in each House of 
the Legislature.  Additional 30-day extensions of the emergency proclamation may 
be approved, but only if done in compliance with this subparagraph.
(2)  Either House of the Legislature may terminate an emergency proclamation 
issued pursuant to this subsection, in whole or in part, by a majority vote.  
(3)  Debate and voting conducted pursuant to this paragraph by each House of the 
Legislature may be done remotely by electronic or other means as established by 
each House's rules, or in the absence of such rules, as specified by the presiding 
officer of each House.
Sec. 4.  37-B MRSA §742, sub-§1, as amended by PL 2019, c. 617, Pt. A, §1 and 
Pt. H, §1, is further amended by enacting at the end a new first blocked paragraph to read:
It is an impeachable offense, punishable by removal from office and a lifetime prohibition 
on serving in any elected or appointed office in the State, for a Governor to exercise any 
emergency powers conferred by this subsection except as provided in this subsection.
Sec. 5.  37-B MRSA §742, sub-§1-A is enacted to read:
1-A.  Limitation on emergency powers.  The exercise of any emergency power the 
Governor or other state or local official may have under the Constitution of Maine or the 
laws of this State that binds or regulates the public is limited as provided in this subsection.
A.  As used in this subsection, unless the context otherwise indicates, the following 
terms have the following meanings.
(1) "Emergency order" means an order, decree, regulation or other mandate 
proclaimed or promulgated by the Governor or a state or local official.
(2)  "State or local official" means the Governor, a person within the executive 
branch or an elected or appointed member of a municipal government.
B.  Notwithstanding subsection 1, paragraph D or any other law to the contrary, an 
emergency order that is issued by a state or local official that binds, curtails or infringes 
the rights of private parties must be narrowly tailored to serve a compelling health or 
safety purpose. Each emergency order must be limited in duration, applicability and 
scope in order to reduce any infringement of individual liberty.
C.  A court of this State has jurisdiction to hear a case challenging the legality of an 
emergency order, including compliance with the limitations imposed on emergency 
orders pursuant to this subsection.  A court shall expedite consideration of a challenge 
brought pursuant to this paragraph to the extent practicable. Inequality in the 
applicability of the impact of emergency orders on analogous groups, situations and 
circumstances may constitute one ground among others for a court to invalidate or 
enjoin an emergency order, or some of its applications, on the basis that it is not 
narrowly tailored to serve a compelling public health or safety purpose.
SUMMARY
This bill places limitations on the powers of the Governor to issue and maintain powers 
pursuant to an emergency proclamation, including:
1.  Limiting the length of the time period of an emergency proclamation to 7 days;
2.  Requiring an extension of an emergency proclamation beyond 7 days to be approved 
by a 2/3 vote of each House of the Legislature;
3.  Allowing the Senate or House, individually, by a majority vote, to discontinue an 
emergency proclamation;
4.  Prohibiting the Governor, during a state of emergency, from reissuing or renewing 
an emergency proclamation, issuing a similar proclamation to one that has expired or 
reissuing an emergency proclamation that the Legislature has discontinued; and
5.  Providing that a violation by the Governor of the exercise of emergency powers is 
an impeachable offense.
This bill allows the Legislature to debate and vote by remote or other electronic means 
on the extension or discontinuation of a Governor's emergency proclamation.  
This bill also requires the emergency powers exercised by the Governor, a person 
within the executive branch or a municipal official that bind, curtail or infringe on the rights 
of private parties to be narrowly tailored to serve a compelling health or safety purpose and 
to be limited in duration, applicability and scope to reduce any infringement of individual 
liberty.
Finally, this bill gives a state court jurisdiction to hear a case challenging the legality 
of the exercise of emergency powers and requires the court to expedite consideration of the 
case to the extent practicable.  Inequality in the applicability of impact of emergency orders 
on analogous groups, situations and circumstances may constitute one ground among 
others for a court to invalidate or enjoin an emergency order, or some of its applications, 
on the basis that it is not narrowly tailored to serve a compelling public health or safety 
purpose.