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Rule of Law in Maine In Critical Condition



Continuing where I left off in my last post- addressing the Lepage Campaign talking points as presented by Representative Heather Sirocki in this Portland Press Herald article titled Maine reaping rewards of governor’s commitment to fiscal responsibility
The article says:

Let’s start with the state’s improved credit standing. In June, rating agencies issued their outlooks for Maine’s creditworthiness. Standard & Poor’s Rating Services assigned its AA rating to our long-term bonds, while Moody’s Investor Services affirmed its Aa2 rating and upgraded its forecast of Maine’s debt from negative to stable. The agencies cited several major factors that influenced the strong ratings, including repayment of $748 million in MaineCare’s hospital debt; substantial public pension reform; and measures to control costs in the MaineCare program, which provides “free” taxpayer-subsidized health care to more than 300,000 state residents.

It's a good thing that Maine's credit rating has improved but Standard & Poor does not factor in the means used to achieve the end, which is of importance to a Constitutional Conservative, given that Maine is in the midst of a widely UN-publicized crisis that mirrors a similar crisis we are facing at the national level, which is a constitutional crisis. I submit that Maine's constitutional crisis is actually more advanced than the national constitutional crisis and the transformation of the State of Maine to the corporation of Maine is already complete in practice, if not re-written into our constitution. Our governing representatives take an oath to uphold the state constitution but misconstrue that to mean upholding the statutes, and, as we saw in the last post, even the statutes are not regarded as a rule of law that applies to government, as the rules governing the liquor industry were written over and then patched together with this announcement:

§83. Bureau of Alcoholic Beverages and Lottery Operations(CONFLICT)(CONTAINS TEXT WITH VARYING EFFECTIVE DATES)(WHOLE SECTION CONFLICT: Text as amended by PL 2013, c. 269, Pt. A, §2) (WHOLE SECTION TEXT EFFECTIVE UNTIL 7/1/14)
Recently I discovered a similarly styled fix :

Rule Chapters for the Department of the Secretary of State 

WARNING: While we have taken care with the accuracy of the files accessible here, they are not "official" state rules in the sense that they can be used before a court. Anyone who needs a certified copy of a rule chapter should contact the APA Office.We also offer advice if you're having trouble trying to view these chapters. 29-250          OFFICE OF THE SECRETARY OF STATE

A pattern emerges that discloses a disturbingly overt attitude toward the Rule of Law expressed more openly by this administration than I have previously encountered- Not to say that other administrations did not harbor the same attitude. Angus King signed the Small Enterprise Growth Fund into law, which includes an exemption for the fund to this general law:

3104. Conflicts of interest; purchases by the State 
No trustee, superintendent, treasurer or other person holding a place of trust in any state office or public institution of the State shall be pecuniarily interested directly or indirectly in any contracts made in behalf of the State or of the institution in which he holds such place of trust, and any contract made in violation hereof is void. This section shall not apply to purchases of the State by the Governor under authority of Title 1, section 814. [1975, c. 771, §164 (AMD).]

So not only has the constitution of Maine been conflated with the statutes by Maine's public servants, but even the statutes are not taken seriously as a deterrent to anything that our state government wants to do.

So to the Maine fiscal conservative, the end justifies the means and the political class stands outside the rule of law. Yes it is a fiscally good thing that LePage saved Mainers money by upping the age at which pensions can be collected upon - but lets take a look at how that public debt was created in the first place.

To save myself time I am now quoting directly from A Maine Citizen's Journey Through The Statutes of Transformation

Commentary:  The Maine Public Employees Retirement System is described as established in 1942 but information pertaining to what type of a system it was in its original form is missing and difficult to find in a standard internet search. and so it is reasonable to conclude that it was originally established under general laws that operate in the private sector..

The charter of the Maine Employees Retirement System corporation is clearly unconstitutional. There are only two exceptions to the constitutional prohibition against chartering corporations by special acts of the legislature. The first exception is for municipal purposes. There can be no doubt that a corporation declared as an instrumentality of the state is serving a state purpose, which is arguably the very purpose that Article IV Part Third Section 13 & 14 of the Maine State Constitution are intended to prohibit.

The second exception is that of if the object of the corporation cannot be achieved another way. Prior to 1993, the Maine Public Employees System had been in existence since 1942. For over fifty years the system had been attained in another way.

The intent of the government to provide benefits is stated in a statute in 1985, for which no constitutional amendment was sought. Neither was a constitutional amendment sought when MPERS was chartered as a state corporation, when the legislature obligated the general taxpayer to take on the debt for a public employees retirement system ( which includes the legislature). However  two years after the Public Employees Retirement System is statutorily declared to be a corporate instrumentality of the state, the public was called to vote on constitutionalizing contractual agreements with MPERS. Under general laws, such contractual terms of agreement are part and parcel of an initiating agreement to take on the debt. By the general standards, the agreement to take on the debt should also have been on the electoral ballot  to become a constitutional amendment - were it not for the fact that contractual agreements have no place in a constitutional document intended to establish general governing principles and chartering corporations to serve as instrumentalities of the state is prohibited by the Constitution.

In 2009 a statute was passed encouraging the retirement fund to invest in state economic development projects by offering a refundable tax credit to minimize the risk. A refundable tax credit means  taxpayers are liable for a cash payout if investment falters and the  fund does not owe taxes. The investment plan is explained as a solution  to the public liability to the Public Employees Retirement System, which was receiving attention from the media, a liability brought on by the legislature when it established the Public Employees Retirement System, making taxpayers liable for public employees pensions plans.

1942 established

1985 Legislature States intent to provide benefits to MPERS

1993 Legislature MPERS a corporate instrumentality of the state

1995 Constitutional Amendment enforces MPERS contractual agreement
Legislature creates MPERS investment fund for targeted sector

2010 MPERS Targeted Sector Refundable Tax Credits 
Notice that there are only two years between the legislature deeming MPERS to be an corporate instrumentality of the state and the contractual terms of agreement with MPERS being inserted into the constitution, despite the fact that there was never a consent from the governed sought to take on the MPERS debt in the first place. If Maine is a state the MPERS debt cannot be justified as government employees ( including legislature, courts and administration) constitutes a special interest faction of the general public -NOT justifiable as the benefiting the general welfare- However if Maine is a corporation, then MPERS is just a corporate expense. Every corporation is expected to provide benefits for its workers. The difference between a state corporation and a private corporation is that a state corporation can force the general public to pay.

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