Beale & Verrill v Secretary
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision: 1997 ME 82
Docket: KEN-96-602 & KEN-96-632
Argued March 6, 1997
Decided  April 18, 1997

Panel:  WATHEN, C.J., ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA and LIPEZ, JJ.

FRED I. BEALE

&

LLEWELLYN T. VERRILL

v.

SECRETARY OF STATE

CLIFFORD, J.

	[¶1]  Fred Beale and Llewellyn Verrill appeal from judgments entered
in the Superior Court (Kennebec County, Alexander, J.), affirming the
suspensions of their licenses to operate a motor vehicle that were
administratively imposed by the Secretary of State.  On appeal they
challenge the constitutionality of the June 29, 1995, effective date of certain
sections of P.L. 1995, ch. 368, Part AAA.{1}  They contend that the portions of
the statute dealing with operating motor vehicles while under the influence
of intoxicants or with excessive amounts of alcohol in the blood, pursuant to
which their licenses were administratively suspended, should not apply to
them because the statutes were not in effect on July 1, 1995, the date on
which Beale and Verrill operated motor vehicles while under the influence
of intoxicants.  They argue that those provisions, enacted as part of P.L.
1995, ch. 368 as emergency legislation effective June 29, 1995, are not
emergency provisions because they are not related to the emergency recited
in the preamble.{2}  Accordingly, they argue that the provisions did not
become effective until September 29, 1995.  We disagree and affirm the
judgments.
	[¶2]  Beale was charged with operating a motor vehicle while under
the influence of alcohol (Class D) in violation of 29-A M.R.S.A. § 2411(1)
(1996), on July 1, 1995.  On March 1, 1996, Beale pleaded guilty to the
charge, and the court subsequently ordered his license suspended for ninety
days, imposed a $350 fine, and incarcerated him for forty-eight hours.  The
record reveals that Beale had been convicted twice in November of 1986 for
operating under the influence of intoxicants.  In addition, he had one
administrative suspension in 1990 for his refusal to take a chemical test. 
Sometime after March 8, 1996, the Secretary of State administratively
suspended Beale's license for six years to run consecutive to an eighteen-
month suspension for his refusal to take a chemical test on the date of the
crime.  See 29-A M.R.S.A. §§ 2451(3), (4) (1996).  Pursuant to the law as
amended, the two previous convictions, because they were within ten years
of the date of Beale's present conviction, were utilized in determining the
period of suspension.  Pursuant to the prior law containing only a six-year
look back period, these previous convictions would not have been
considered.  Following the denial of his request for an administrative
hearing on the six-year suspension by the Secretary of State, Beale sought
review by the Superior Court pursuant to 29-A M.R.S.A. § 2485(5) (1996),
and M.R. Civ. P. 80C.
	[¶3]  Verrill's motor vehicle license was administratively suspended
for an eighteen-month period, beginning September 24, 1995, based on his
operation of a motor vehicle with an excessive level of blood alcohol on July
1, 1995.  Verrill had one previous conviction for operating under the
influence that occurred on June 24, 1987, within ten years of the
suspension of Verrill's license; thus, this offense is a second offense for
suspension purposes pursuant to the new law.  See 29-A M.R.S.A. § 2453(6)
(1996).  After his suspension was affirmed at an administrative hearing on
November 8, 1995, Verrill sought review by the Superior Court.  The court
held a consolidated hearing for Beale and Verrill.  This appeal followed the
court's affirmance of their suspensions.
	[¶4]  Beale and Verrill contend that the statutory changes relating to
license suspensions were enacted unconstitutionally as emergency
legislation.  They contend that the OUI portions of the Act were not enacted
as a result of any emergency and are unrelated to the appropriations bill in
which they were passed.  Therefore, they argue, the OUI provisions should
not be deemed effective until September 29, 1995.  Accordingly, they
contend that because they operated a motor vehicle under the influence of
intoxicants or with excessive blood alcohol on July 1, 1995, within the
ninety-day period of the enactment of Chapter 368 Part AAA, the length of
their suspensions must be determined based on the prior law.
	[¶5]  In examining the sufficiency of the preamble, we have said that
 
the question of whether [] the Legislature has expressed (to wit,
made an allegation of) a fact or facts is a question of law.  Whether
[] such fact or facts can constitute an emergency within the
meaning of the Constitution is likewise a question of law.  These
questions of law may be reviewed by this [C]ourt.  On the other
hand, whether [] a fact expressed as existing, does exist, is a
question of fact and not of law.  It is likewise a question of fact
whether [] an expressed fact which can constitute an emergency,
does constitute an emergency.

Morris v. Goss, 147 Me. 89, 98-99, 83 A.2d 556, 561 (1951).  Questions of
fact are within the exclusive prerogative of the Legislature. Id; see also
Maine Milk Comm'n v. Cumberland Farms Northern, Inc., 160 Me. 366,
380, 205 A.2d 146, 153 (1964), appeal dismissed, 380 U.S. 521 (1965)
(absent contrary evidence, statements in preamble of the legislative act are
deemed true and court will not substitute its judgment for that of
legislature).  These authorities demonstrate that we grant substantial
deference to the Legislature in this area.
 	[¶6]  Article 4, part 3, section 16 provides that in order for an act to
be an emergency measure and become effective immediately the "facts
constituting the emergency shall be expressed in the preamble of the 
Act. . . ."{3}  We have not required that the preamble contain a litany of detail
in order for the emergency measure to comply with section 16.  In Morris v.
Goss, we concluded that an act imposing a sales and use tax was an
emergency measure when the preamble stated that "the essential needs of
state government require that additional revenue be raised by this
legislature[.]"  Morris v. Goss, 147 Me. at 101,  83 A.2d at 562.  In
responding to the argument that the preamble was conclusory and did not
state facts, we stated that the "constitutional requirement is satisfied by the
expression in the preamble of an ultimate fact or facts which constitute an
emergency without a recital of all of the separate facts evidencing the
existence of such ultimate fact," Id. at 102, 563, and that

[t]he only logical alternative to the use of [a] broad general
statement [stating the nature of the emergency] . . . would be to
set forth in the emergency preamble of an act to raise revenue
the entire budget of the State of Maine which was to be met
either in whole or in part by the tax imposed, together with a
recital of the then existing revenues available to meet the same.

 Id. at 101, 563; see also State v. Eaton, 577 A.2d 1162, 1165 (Me. 1990)
(act lawfully enacted as emergency legislation regarding the taking of
scallops within a cable area when preamble recited that the health and
safety of island residents was placed in jeopardy); In re Opinion of the
Justices, 153 Me. 469, 474, 145 A.2d 250, 253 (1958) (opinion that
emergency enactment of bill to organize school districts would be proper
when preamble referred to essential nature of "safe and adequate facilities
for such administrative units").  Cf. Payne v. Graham, 118 Me. 251, 256, 107
A. 709, 710-11 (1919) (language referring to the necessity of preserving the
public health was insufficient to justify as emergency legislation an act to
make punishment for sexual crimes more stringent than prior law).  
	[¶7]  In this case, the preamble declares the existence of a fiscal
emergency and the immediate necessity of the legislation as a response to
that emergency.  The amendments to the OUI statute are revenue positive
and include substantial increases in fines for violations of the OUI law.  The
amendments will directly result in increased revenue to the State, clearly
contributing to resolving the problem the emergency preamble addresses. 
Other provisions of the amendments, such as increases in the length of
terms of imprisonment and in the periods of suspension, although linked
less directly to fiscal considerations, nevertheless are an integral part of the
changes in the OUI law.  They reflect a legislative determination that the
operation of a motor vehicle while under the influence of intoxicants or with
excessive blood alcohol is a more serious violation that requires increased
jail time and longer periods of suspension as well as increased monetary
fines.  Beale and Verrill's challenges are to the suspension periods enacted
as part of the new law.  Section 16, however, does not require that each
individual section of the amendments to the OUI law, enacted as an
important part of an emergency fiscal bill, be examined separately for
different effective dates as long as the OUI amendments generally are
related to the stated preamble.  Because the changes to the OUI laws were
constitutionally enacted as part of emergency legislation, its provisions
became effective June 29, 1995, were in effect on July 1, 1995, and validly
apply to the administrative suspensions imposed on Beale and Verrill.  	
	The entry is:
									Judgments affirmed. 
                                                               
Attorneys for plaintiffs

Kristen L. Aiello, Esq. (orally)
Law Offices of P.J. Perrino, Jr.
P O Box 747
Augusta, ME 04332
(for Fred Beale)

Paul B. Watson, Esq. (orally)
P O Box 35
North Windham, ME 04062
(for Llewellyn Verrill)

Attorneys for defendant:

Andrew Ketterer, Attorney General
Joseph Wannemacher, Asst. Atty. Gen. (orally)
6 State House Station
Augusta, ME 04333-0006

FOOTNOTES******************************** {1} Part AAA of Chapter 368 amended portions of the law dealing with operating under the influence (OUI). See 29-A M.R.S.A. § 2402 (1996); 29-A M.R.S.A. § 2411(5) (1996); 29-A M.R.S.A. § 2451(3) (1996). The amended provisions increase the look-back period for prior convictions from six to ten years and also increase terms of imprisonment, and the fines and license suspension imposed. The law also increases suspensions imposed either upon an administrative finding of operating under the influence or upon certification of a conviction to the Secretary of State. See 29-A M.R.S.A. § 2453(6)(A) (1996) (noting that for an administrative determination of excess blood alcohol level, "the same suspension period applies as if the person were convicted of OUI.") {2} Article 4, part 3, section 16 of the Maine Constitution provides that no act shall take effect until ninety days after the recess of the session "unless in case of emergency, which with the facts constituting the emergency shall be expressed in the preamble of the Act, the Legislature shall, by a vote of two thirds of all the members elected to each House, otherwise direct." The relevant portion of the preamble of the act at issue states: . . . Whereas, certain obligations and expenses incident to the operation of state departments and institutions will become due and payable immediately; and Whereas, in the judgment of the Legislature, these facts create an emergency within the meaning of the Constitution of Maine and require the following legislation as immediately necessary for the preservation of the public peace, health and safety. . . . (emphasis added). {3} See supra note 2.