An Act to Restore Balanced Powers During a State of Emergency
Maine Legislature, Session 131, LD 1862
Committee: State and Local Government
Sponsors: WHITE, BRAKEY, CAMPBELL, DRINKWATER, HAGGAN, LEMELIN, LYMAN, PAUL, RUDNICKI, BENNETT
Amends: 37-B MRSA §742, 37-B MRSA §743, 37-B MRSA §821

Legislative Document
No. 1862
H.P. 1192
House of Representatives, May 2, 2023
An Act to Restore Balanced Powers During a State of Emergency
Reference to the Committee on State and Local Government suggested and ordered printed.
ROBERT B. HUNT
Clerk
Presented by Representative WHITE of Guilford.
Cosponsored by Senator BRAKEY of Androscoggin and
Representatives: CAMPBELL of Orrington, DRINKWATER of Milford, HAGGAN of 
Hampden, LEMELIN of Chelsea, LYMAN of Livermore Falls, PAUL of Winterport, 
RUDNICKI of Fairfield, Senator: BENNETT of Oxford.
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 by amending subparagraph (4) to read:
(4)  Authorize the obtaining and acquisition of property, supplies and materials 
pursuant to section 821;
Sec. 2.  37-B MRSA §742, sub-§1, ¶C, as amended by PL 2019, c. 617, Pt. H, §1, 
is further amended by amending subparagraph (5) to read:
(5)  Enlist the aid of any willing person to assist in the effort to control, put out or 
end the emergency or aid in the caring for the safety of persons;
Sec. 3.  37-B MRSA §742, sub-§1, ¶C, as amended by PL 2019, c. 617, Pt. H, §1, 
is further amended by amending subparagraph (6) to read:
(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. An action taken under this subparagraph must be applied to the smallest 
political subdivision possible. Statewide application of this subparagraph must be 
approved by 2/3 of the membership of the Legislative Council;
Sec. 4.  37-B MRSA §742, sub-§1, ¶C, as amended by PL 2019, c. 617, Pt. H, §1, 
is further amended by amending subparagraph (8) to read:
(8)  Control ingress and egress to and from a disaster area, the movement of persons 
within the area and the occupancy of premises therein.  Occupancy limitations that 
would have a substantial impact on the operation of businesses in the State must 
be approved by 2/3 of the membership of the Legislative Council;
Sec. 5.  37-B MRSA §742, sub-§1, ¶C, as amended by PL 2019, c. 617, Pt. H, §1, 
is further amended by repealing subparagraph (9).
Sec. 6.  37-B MRSA §742, sub-§1, ¶C, as amended by PL 2019, c. 617, Pt. H, §1, 
is further amended by amending subparagraph (12) to read:
(12)  Take whatever any action is necessary to abate, clean up or mitigate whatever 
any danger that may exist within the affected area. Any action under this 
subparagraph that would directly result in the temporary or permanent closure of 
any business or civic or religious organization must be approved by 2/3 of the 
membership of the Legislative Council; and
Sec. 7.  37-B MRSA §742, sub-§1, ¶F is enacted to read:
F.  If an order issued by the Governor, pursuant to the powers granted in paragraph C, 
is to be in effect for longer than 30 days, the Governor shall, before the 20th day 
following the issuance of the order, convene the Legislature, and the Legislature must, 
by a 2/3 vote in each House of the Legislature, vote to approve the Governor's authority 
to extend that order.
Sec. 8.  37-B MRSA §742, sub-§1, ¶G is enacted to read:
G.  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 
terminated by the Legislature without approval of the Legislature.
Sec. 9.  37-B MRSA §742, sub-§1-A is enacted to read:
1-A.  Limitation on emergency powers.  The exercise of any emergency power a 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)  "Constitutional right" means any right guaranteed under the United States 
Constitution or the Constitution of Maine, including, but not limited to, the right 
to:
(a) Travel, work, assemble and speak;
(b) Exercise religion without government interference;
(c) Make contracts and hold property without government interference;
(d) Be free from unreasonable searches and seizures; and 
(e) Purchase and keep firearms and ammunition.
(2) "Emergency order" means an order, decree, regulation or other mandate 
proclaimed or promulgated by a state or local official.
(3)  "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 any provision of law to the contrary, an emergency order that is 
issued by a state or local official that binds, curtails or infringes on the rights of private 
parties must be narrowly tailored to serve a compelling public health or safety purpose. 
Only the Governor may issue an order that infringes on constitutional rights, and that 
order must be narrowly tailored to serve a compelling public health or safety purpose.  
Each emergency order must be limited in duration, applicability and scope in order to 
reduce any infringement of the rights of private parties or constitutional rights.
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.  The court shall expedite consideration of a case 
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.
Sec. 10.  37-B MRSA §742, sub-§2, ¶C, as amended by PL 2001, c. 353, §5, is 
further amended by repealing subparagraph (1).
Sec. 11.  37-B MRSA §742, sub-§2, ¶C, as amended by PL 2001, c. 353, §5, is 
further amended by amending subparagraph (2) to read:
(2)  The enforcement powers granted in sections 786 and 829, unless the Governor 
specifically invokes these powers by an order issued pursuant to an energy 
emergency proclamation and approved by a majority 2/3 of the membership of the 
Legislative Council.  That order must specify those emergency orders or rules that 
are enforceable pursuant to this paragraph and must further specify the 
enforcement activities emergency management organizations are to pursue.  No 
An enforcement action may not be taken pursuant to this paragraph without 
publication of the order authorizing the action in a manner reasonably calculated 
to give affected persons adequate notice of the order or rule to be enforced, which 
may include publication on the Internet, and the sanctions to be applied.  
Publication of the order may include publication on the Internet.
Sec. 12.  37-B MRSA §743, sub-§2, as enacted by PL 1983, c. 594, §34, is amended 
to read:
2.  Limitation.  No A state of emergency may continue for longer than 30 days unless 
renewed by the Governor not be issued for a period longer than 30 days.  Any subsequent 
renewal of the same state of emergency must receive approval by a 2/3 vote of each House 
of the Legislature.  If the renewal is rejected by the Legislature, the Governor shall issue 
an executive proclamation ending the state of emergency within 24 hours of the rejection.  
A new state of emergency may not be declared for at least 30 days without approval by a 
majority vote of each House of the Legislature.  The Legislature, by joint resolution, may 
terminate a state of emergency at anytime any time.  Thereupon, the The Governor shall 
then issue an executive proclamation ending the state of emergency. The Legislature may 
terminate or amend any specific emergency order of the Governor with respect to a state 
of emergency by a majority vote of each House of the Legislature.  This subsection does 
not apply to the Governor's powers under chapter 3.
Sec. 13.  37-B MRSA §821, as enacted by PL 1983, c. 460, §3 and corrected by RR 
2019, c. 1, Pt. B, §§49 to 52, is repealed.
SUMMARY
This bill:
1. 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 public health or safety purpose and to 
be limited in duration, applicability and scope to reduce any infringement of individual 
liberty.  Only the Governor may issue an order that infringes on a right guaranteed under 
the United States Constitution or the Constitution of Maine, including, but not limited to, 
freedom of travel, assembly, work, speech and religion and freedom to purchase and 
possess firearms and ammunition.  That order must be narrowly tailored to serve a 
compelling public health or safety purpose limited in duration, applicability and scope to 
reduce any infringement of a constitutional right;
2. 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 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;
3. Requires the Governor to convene the Legislature if a declared state of emergency 
is to be in effect for longer than 30 days.  If the Legislature does not, by a 2/3 vote in each 
House of the Legislature, vote to extend the state of emergency, the Governor may not 
declare a similar, subsequent state of emergency;
4. Requires the Governor to convene the Legislature if, after a state of emergency is 
declared, an order issued by the Governor is to be in effect for longer than 90 days.  The 
Legislature must, by a 2/3 vote in each House of the Legislature, vote to approve the 
Governor's authority to extend that order;
5. Provides that the Governor may not reissue or renew an emergency proclamation 
that is substantially similar to one that expired or reissue an emergency proclamation 
terminated by the Legislature without approval of the Legislature; and
6. Amends the scope of the Governor's authority with regard to emergency 
proclamations by:
A. Removing the authority of the Governor to obtain and acquire property; 
B. Eliminating the Governor's authority to take possession of real and personal property 
through eminent domain when an emergency proclamation has been issued;
C. Changing the Governor's authority from enlisting any person to enlisting any willing 
person to provide aid in an emergency;
D. Removing the authority to suspend or limit the sale, dispensing or transportation of 
alcoholic beverages, explosives and combustibles;
E. Directing but not compelling evacuation for the smallest political subdivision 
possible and if statewide evacuation is sought, requiring approval of 2/3 of the 
membership of the Legislative Council;
F. Requiring approval of 2/3 of the membership of the Legislative Council for 
limitations on the occupancy of premises that would have a substantial impact on the 
operation of businesses; and
G. Requiring approval of 2/3 of the membership of the Legislative Council if action to 
abate, clean up or mitigate a danger would result in the temporary or permanent closure 
of any business or civic or religious organization.