Bill Summary – FastDemocracy

APPROVED                 CHAPTER
                                                              FEBRUARY 13, 2024                 129
                                                                 BY GOVERNOR               RESOLVES
                                  STATE OF MAINE
                                          _____
                           IN THE YEAR OF OUR LORD
                       TWO THOUSAND TWENTY-FOUR
                                          _____
                                 H.P. 1405 - L.D. 2192
  Resolve, to Ensure That the Independent Commission to Investigate the
 Facts of the Tragedy in Lewiston Has Necessary Authority to Discharge Its
                           Fact-finding Mission
   Emergency preamble. Whereas, acts and resolves of the Legislature do not
become effective until 90 days after adjournment unless enacted as emergencies; and
    Whereas, Governor Janet T. Mills, by executive order of November 9, 2023,
established the Independent Commission to Investigate the Facts of the Tragedy in
Lewiston; and
    Whereas, the independent commission was established for the purpose of conducting
a thorough and objective investigation into the facts and circumstances of what happened
on that tragic night in Lewiston, the months that led up to it and the police response to it;
and
    Whereas, the families of the victims and all people of the State deserve to know the
truth about what happened; and
    Whereas, in order to fulfill its fact-finding mission, the independent commission
requires the ability to issue subpoenas to compel the testimony of witnesses and the
production of documents and have access to agency records that may not otherwise be
subject to disclosure under state law; and
    Whereas, this legislation needs to take effect before the expiration of the 90-day
period in order for the independent commission to complete its work in a timely fashion;
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; now,
therefore, be it
    Sec. 1. Definitions. Resolved: That, as used in this resolve, the following terms
have the following meanings.
    1. "Chair" means the chair of the independent commission.
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    2. "Independent commission" means the Independent Commission to Investigate the
Facts of the Tragedy in Lewiston, established by executive order of Governor Janet T. Mills
on November 9, 2023.
    Sec. 2. Issuance of subpoenas. Resolved: That, by a majority vote of its
members, the independent commission may issue subpoenas to compel the testimony of
witnesses and the production of documents in accordance with this resolve.
    Sec. 3. Notice to witnesses. Resolved: That a reasonable time before a witness
testifies, a prospective witness must be notified of the investigation's subject matter and
provided with a copy of this resolve. The information required by this section must be
presented at the time of service of the subpoena.
    Sec. 4. Oaths. Resolved: That all testimony of subpoenaed witnesses must be under
oath administered by the chair or the chair's designee.
    Sec. 5.    Testimony of witnesses under subpoena.                 Resolved: That the
independent commission's staff and its members may take testimony of witnesses under
subpoena. All testimony of witnesses under subpoena must be taken in open session, except
upon request of a witness or by a majority vote of the members of the independent
commission, in which case testimony may be taken in executive session. Testimony may
be taken in executive session upon a showing that confidentiality is necessary to fulfill the
independent commission's fact-finding mission.
    Sec. 6. Transcripts of testimony of witnesses under subpoena. Resolved:
That the independent commission shall prepare a transcript of all testimony of witnesses
taken under subpoena. A witness is entitled to obtain a copy of the transcript of the
witness's own testimony, except that the independent commission may delay the release of
a transcript until the independent commission determines that release will not compromise
the integrity of its investigation.
     Sec. 7. Release of testimony under subpoena. Resolved: That the independent
commission, by a majority vote of its members, may release transcripts of witness
testimony taken under subpoena, except that a transcript of the testimony may not be
released without first affording the witness who gave the testimony or the witness's counsel
an opportunity to object to the proposed release. The chair or the chair's designee shall rule
on an objection. The ruling of the chair or the chair's designee may be overruled by a
majority vote of the independent commission's members. The transcript of the testimony
may be released over the objection of a witness upon a showing that the release of the
transcript is necessary to the independent commission's fact-finding mission, outweighs the
interests of the witness and is not in violation of any federal or state laws, rules or
regulations.
   Sec. 8. Request for court to compel compliance; legal representation.
Resolved: That the independent commission, by a majority vote of its members, may
apply to the Superior Court to compel compliance with a subpoena and may by lawful
process seek to compel compliance in any state, federal or military court or tribunal. The
Attorney General, the Attorney General's designee or private counsel approved by the
Attorney General may represent the independent commission in such proceedings.
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   Sec. 9. Compliance with state law and the Maine Rules of Civil Procedure.
Resolved: That any time the independent commission exercises its authority to issue a
subpoena under this resolve, the independent commission shall comply with state law and
the Maine Rules of Civil Procedure.
   Sec. 10. Availability of counsel to witnesses under subpoena; objections;
privileges. Resolved: That a witness appearing before the independent commission
under subpoena may have counsel present to advise the witness at all times. The witness or
counsel may, during the time the witness is giving testimony, object to any action of the
independent commission that is detrimental to the witness's interests and is entitled to have
a ruling by the chair or the chair's designee on the objection. The witness must be given
the benefit of any privilege that the witness could claim in court as a party to a civil action,
except that the chair or the chair's designee may direct compliance with any request for
testimony to which an objection or claim of privilege has been made. The direction of the
chair or the chair's designee may be overruled by a majority vote of the independent
commission's members.
   Sec. 11. Access to state agency records not otherwise subject to disclosure.
Resolved: That, notwithstanding any provision of law to the contrary, the independent
commission, by a majority vote of its members, is authorized to request and receive records
in the possession of any state agency or instrumentality that the independent commission
determines are necessary to fulfill its fact-finding mission, including confidential records
and records not otherwise subject to public disclosure. The members of the independent
commission and its staff are authorized to review records received under this section solely
for the purpose of fulfilling the independent commission's fact-finding mission. During
meetings of the independent commission, the contents of confidential records and records
not otherwise subject to public disclosure may be reviewed only in executive session.
    Sec. 12. Cooperation with State Archivist. Resolved: That the independent
commission shall cooperate with the State Archivist to ensure that records of the
independent commission are maintained in compliance with federal and state laws, rules
and regulations.
    Sec. 13. Report on use of subpoena issuance. Resolved: That the independent
commission, in completing a final report of its work, shall include a detailed account of
each subpoena issued.
    Sec. 14. Establishment of precedent. Resolved: That nothing in this resolve may
be used to establish a precedent authorizing independent commissions to issue subpoenas
in the future.
    Sec. 15. Sunset. Resolved: That the independent commission's authority to issue
subpoenas under this resolve is effective until July 1, 2024. Any subpoena issued by the
independent commission before July 1, 2024 remains valid after that date.
    Emergency clause. In view of the emergency cited in the preamble, this legislation
takes effect when approved.
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