School Committee of Lexington v. Commissioner of Education

Abrams, J.

(concurring). As the serve and volley of legislative enactments and judicial decisions demonstrates, the Legislature cannot easily or lightly evade the strictures of Proposition 21/2. See, e.g., Massachusetts Teachers Ass’n v. Secretary of the Commonwealth, 384 Mass. 209 (1981); Attorney Gen. v. School Comm. of Essex, 387 Mass. 326 (1982); G. L. c. 76, § 1, as amended through St. 1983, c. 663, § 1; Lexington v. Commissioner of Educ., 393 Mass. 693 (1985). Nevertheless, “ [e]nactment of appropriation measures [still] provides a crucial means by which the Legislature exercises its lawmaking power to accomplish social purposes.” Opinion of the Justices, 375 Mass. 827, 832 (1978). The General Court, like Congress,1 “sometimes legislates by innuendo, making declarations of policy and indicating a preference while requiring measures that, though falling short of legislating its goals, serve as a nudge in the preferred directions. ” Rosado v. Wyman, 397 U.S. 397, 413 (1970). Statute 1985, c. 140, is such a case. All the Legislature has done is express a preference for school transportation. No more, no less.

Nothing in Proposition 2½ limits the Legislature’s prerogative to achieve its chosen social goals by attaching permissive conditions to appropriations so as to make its choice more attractive than the alternative. “ [I]t would require words in the Constitution of unequivocal meaning to prevent the General Court from attaching conditions to the expenditure of moneys appropriated by it.” Mayor of Boston v. Treasurer & Receiver Gen., 384 Mass. 718, 724 (1981), quoting Opinion of the *598Justices, 294 Mass. 616, 621-622 (1936). Today’s decision does not undercut the basic premise of Proposition 2½, that the Legislature may not mandate a new, direct service or cost obligation on cities and towns without complying with its provisions. There is a “distinction between [legislative] ‘encouragement’ . . . and the imposition of binding obligations on the [cities and towns].” Pennhurst State School v. Halderman, 451 U.S. 1, 27 (1981). The fact that the condition is burdensome and unfair to Newton and Lexington does not make the exercise of legislative power unlawful.

It often is helpful to analogize to Federal law. See Bloom v. Worcester, 363 Mass. 136, 151-152 (1973). See also Mayor of Boston v. Treasurer & Receiver Gen., 384 Mass. 718, 728 (1981) (Hennessey, C.J., dissenting), and cases cited.