Town of Brookline v. Governor

Wilkins, J.

The court holds that the Governor had no authority under G. L. c. 29, §§ 9B and 9C (1988 ed.), to withhold $210,000,000 in local school aid funds, commonly called Chapter 70 aid, appropriated in the fiscal year 1990 budget. St. 1989, c. 240, § 2, line item 7061-0008. We further hold, on an entirely separate issue, that § 6 of St. 1989, c. 240, lawfully limits distributions of certain State lottery proceeds to cities and towns during the 1989 and 1990 fiscal years.

A judge of the Superior Court reported the case to the Appeals Court on a statement of agreed facts. We transferred the case to this court on our own motion.

1. In its fiscal year 1990 general appropriation act (St. 1989, c. 240), the Legislature appropriated funds for Chapter 70 school aid (line item 7061-0008) to be distributed to cities and towns. Purporting to act pursuant to G. L. c. 29, § 9C, the Governor has withheld $210,000,000 of the Chapter 70 aid appropriation from distribution, pending receipt of sufficient revenues. We conclude that the funds appropriated by line item 7061-0008 are not subject to reduction pursuant to G. L. c. 29, § 9C.

*379Line item 7061-0008, under the headings of Department of Education, Board of Education and Commissioner’s Office, appropriated more than $1,218,000,000 for “school aid to cities, towns, regional school districts, counties maintaining agricultural schools and independent vocational schools to be distributed pursuant to the provisions of section three of this act.” Section 3 in turn recites that the “amounts to be distributed from item 7061-0008 of [§ 2] are hereby deemed to be in full satisfaction of the amounts due under” G. L. c. 70, §§ 3, 6, and 7. Section 3 also states that “ [n] othwithstanding the provisions of any general or special law to the contrary, the total amounts to be distributed and paid to each city, town” and other political subdivision from item 7061-0008 of § 2 of the act “shall be [as] set forth” in the list included in this section. That list recites the precise dollar amount of 706Í-0008 Chapter 70 aid to be distributed to each municipality and political subdivision. Section 3 also provides that the State Treasurer shall make no payments to cities and towns pursuant to § 3 after November 30 of the fiscal year until he receives (1) certification from the Commissioner of Revenue concerning the prior year’s financial reports submitted pursuant to G. L. c. 44, § 43 (1988 ed.), and (2) certification from the Commissioner of Education of acceptance of the end of year pupil and financial report submitted pursuant to G. L. c. 72, § 3 (1988 ed.). Section 4 of St. 1989, c. 240, directs the State Treasurer to make “two equal payments” of various assistance programs to cities and towns during each fiscal year.

What these sections of the annual appropriation act provide is a specific amount of money for school aid to each city and town, in lieu of the amounts provided for in Chapter 70, notwithstanding the provisions of any general or special law to the contrary. The State Treasurer must pay to each city and town its specific amount in two equal payments during the fiscal year, but he may do so only after certain certifications have been delivered. These provisions are self-contained guidelines for the furnishing of Chapter 70 school aid in the 1990 fiscal year. They bar the application of G. L. c. 29, *380§§ 9B and 9C, or any other general or special law, to the determination of the amounts that must be paid as Chapter 70 aid. No party argues that § 3 of St. 1989, c. 240, is unlawful in any aspect because it is an improper provision for an annual appropriation act.

Even if § 3 did not bar the application of §§ 9B and 9C to the appropriation for Chapter 70 aid, those sections do not authorize the Governor to reduce Chapter 70 local aid amounts set forth in § 3 of the 1990 fiscal year appropriation act. Section 9C of G. L. c. 29, which is set forth in the margin,3 allows the Governor to reduce allotments under § 9B, in certain circumstances, when available revenues during a fiscal year will be insufficient to meet authorized expenditures. Section 9B, the first part of which is set forth in the margin,4 *381is the crucial statutory provision here. It describes which monies or allotments the Governor may reduce under § 9C. These monies or allotments are funds “made available by appropriation or otherwise, to state agencies under the control of the governor or a secretary.” Section 9B also directs the Governor to divide each agency’s funds into allotment periods. In this way, it is generally expected that an appropriation will be expended proportionately over the course of a fiscal year.

The short answer to the question whether the Governor may use § 9C to reduce amounts appropriated by line item 7061-0008 is that the school aid funds appropriated by that line item, and assigned in specific amounts to cities and towns by § 3 of the fiscal year 1990 appropriation act, are not “made available” to any State agency “under the control of the governor or a secretary.” Neither the requirement that the Commissioners of Revenue and Education must certify certain information before the State Treasurer may distribute those school aid funds, nor the fact that the appropriation appears under the heading “Department of Education” makes those school aid funds available to any State agency described in § 9B. Moreover, the provision in § 4 of St. 1989, c. 240, that the school aid funds be distributed twice a year is inconsistent with the allotment provisions described in § 9B.

The provision in § 9C concerning reductions in § 9B allotments obviously has no application to amounts that are not subject to allotment, and amounts not available to agencies under the control of the Governor or one of his secretaries simply are not subject to allotment.5

*3822. The plaintiffs claim that § 6 of St. 1989, c. 240, which purports to limit the distribution of State lottery funds as local aid in fiscal years 1989 and 1990, is unlawful. Their argument is that § 6, an outside section of the fiscal year 1990 general appropriation act, attempts to enact general legislation and that a general appropriation act may not lawfully be used for that purpose. We need not now decide whether an outside section not related to an appropriation may constitutionally be included in a general appropriation act because we conclude that § 6 is sufficiently related to the subject of the appropriation of funds that, even if the premise of the plaintiffs’ argument is correct, § 6 is lawful.6 For the same reason, we need not decide whether G. L. c. 29, § 7L (1988 ed.), would apply to invalidate a nonappropriation-related outside section of a general appropriation act.7

*383Each quarter the balance in the State Lottery Fund, after deduction for expenses and prizes, is credited to the Local Aid Fund, established under G. L. c. 29, § 2D (1988 ed.). G. L. c. 10, § 35 (1988 ed.). Under G. L. c. 58, § 18C (a) (1988 ed.), the State Treasurer quarterly must distribute amounts credited to the Local Aid Fund to cities and towns “without further appropriation.” It is thus apparent that, under the General Laws, the Legislature has appropriated the net proceeds of the State lottery to cities and towns through the Local Aid Fund.

Section 6 of St. 1989, c. 240, the second paragraph of which is quoted in the margin,8 if lawful, eliminated the planned automatic distribution of certain lottery funds to cities and towns for fiscal years 1989 and 1990. Under § 6, certain amounts of lottery funds in excess of $306,000,000 in each year are to be treated differently from the manner in which the General Laws provide. In modifying the normal appropriation of lottery funds made by the General Laws, the Legislature engaged in a process that directly concerns the appropriation of funds for local aid. See Slama v. Attorney Gen., 384 Mass. 620, 625-626 (1981), and cases cited; G. L. c. 29, § 1 (1988 ed.), defining “appropriation” for the *384purpose of G. L. c. 29; G. L. c. 29, § 7L, which, in turn, includes local aid within the permissible range of subjects to be included in an appropriation law. Cf. Massachusetts Coalition for the Homeless v. Secretary of Human Servs., 400 Mass. 806, 816-817 (1987) (fixing the aid for dependent children standard of need in annual budget “is not unambiguously a provision on a ‘subject matter’ other than an appropriation”). Because § 6 relates to an appropriation, we need not consider the plaintiffs’ constitutional and statutory challenges to § 6.9

We do not understand the defendants to argue that the plaintiffs lack standing to challenge § 6 on the ground that § 6 violates § 7L. The defendants do challenge the plaintiffs’ standing to argue that § 6 could not constitutionally replace the local aid distribution procedure described in the General Laws. We have answered this challenge unfavorably to the plaintiffs, and, therefore, the standing question (which is not a jurisdictional one) need not be resolved.10

3. The plaintiffs urge us, in a generalized argument, to enforce G. L. c. 29B (1988 ed.), which provides in part for a “general appropriation bill which shall constitute a balanced budget for the commonwealth” (G. L. c. 29B, § 2). Section 7 of G. L. c. 29B authorizes this court, and the Superior Court, to enforce its provisions on the petition of twenty-four taxable inhabitants, not more than six of whom shall be from any one county.

*385The plaintiffs have made no specific proposal for judicial action under G. L. c. 29B. The defendants properly question the right of the Legislature and Governor to restrict their respective successors through G. L. c. 29B. The defendants also suggest that any order under G. L. c. 29B would present art. 30 (separation of powers) questions. We put aside the constitutional issues and simply state that the plaintiffs have failed to present an adequate basis for judicial action under G. L. c. 29B.

4. A judgment shall be entered in the Superior Court declaring that (1) the procedures set forth in G. L. c. 29, §§ 9B and 9C, did not authorize a reduction in the amounts of Chapter 70 aid provided in St. 1989, c. 240; (2) Statute 1989, c. 240, § 6, lawfully authorized the Legislature to limit the distributions to cities and towns from the proceeds of the State lottery during the 1989 and 1990 fiscal years; and (3) the plaintiffs are not entitled to relief under G. L. c. 29B.

So ordered.

General Laws, c. 29, § 9C (1988 ed.), provides: “Whenever, in the opinion of the commissioner of administration, available revenues as determined by him from time to time during any fiscal year under the provisions of section five B will be insufficient to meet all of the expenditures authorized to be made from any fund, whether by appropriation or distribution, he shall immediately notify the governor and the house and senate committees on ways and means of the amount of such probable deficiency of revenue and the governor, within fifteen days of such notification, shall reduce allotments under section nine B or he shall submit to the general court specific proposals to raise additional revenues by a total amount equal to such deficiency.

“As an alternative to the submission of such proposals to raise additional revenues and to the extent funds are available, the governor may recommend an appropriation equal to such deficiency from the Commonwealth Stabilization Fund in the manner provided in section two H.”

General Laws c. 29, § 9B (1988 ed.), provides, in pertinent part: “Any monies made available by appropriation or otherwise, to state agencies under the control of the governor or a secretary, but not including the courts, the office of the governor, or the office of the lieutenant governor, shall be expended only in such amounts as may be allotted as provided in this section. The governor shall from time to time divide each fiscal year into allotment periods of not less than one month nor more than four months. The governor or the commissioner when designated in writing by the governor shall allot to each such state agency the amount which it may expend for each such period out of the sums made available to it by appropriation or otherwise. The amount so allotted initially by the governor or the commissioner shall be equal to an amount calculated in accordance with the following formula: the annual sum available for expenditure divided by twelve multiplied by the number of months in the allotment period, unless the full legislative objective of an appropriation would be ac*381complished, without amendment, by a lesser allocation than that required by the formula.”

Because we rule that the Governor had no statutory authority to reduce the line item 7061-0008 amounts (appropriated in lieu of Chapter 70 aid), we need not address the plaintiffs’ various constitutional arguments, including (1) a challenge to § 9C as an unconstitutional delegation of legislative authority in violation of the separation of powers principles expressed in art. 30 of the Massachusetts Declaration of Rights and (2) a challenge to § 9C’s validity because it was adopted as an outside section of a general appropriation act (St. 1976, c. 283, § 3F). If § 9C had a dubious *382birth, it may have been legitimized by its amendment in 1986 (St. 1986, c. 488, § 13). We need not address the defendants’ argument that the plaintiffs lack standing to challenge the constitutionality of § 9C.

Certain amici have raised other arguments challenging the Governor’s action with specific reference to the time of his action in relation to other steps taken in the budget process. In a case such as this, we normally would not pass on issues that a party has not raised and argued or adopted by reference to an amicus brief. In any event, resolution of the arguments of certain amici is not necessary because of our decision, on other grounds, that the Governor lacked authority to withhold local aid funds.

The constitutional issues would be worthy of attention, however, to the extent that a construction of § 9B and § 9C that avoids those issues would be appropriate to resolve any ambiguity in those sections. See Adamowicz v. Ipswich, 395 Mass. 757, 763-764 (1985). We need not resort to that principle of statutory construction because this case presents no statutory ambiguity concerning the Governor’s authority.

The Justices have noted the question whether such separable provisions may properly be included in a general appropriation bill. See Opinion of the Justices, 384 Mass. 820, 826 (1981). The court has never decided the question.

General Laws c. 29, § 7L, states that a “law making an appropriation for expenses of the commonwealth [including local aid] shall not contain provisions on any other subject matter.” We have expressed doubt whether § 7L can restrict a Legislature and Governor that wish to do otherwise. Massachusetts Coalition for the Homeless v. Secretary of Human Servs., 400 Mass. 806, 816 (1987). Because we conclude that, even if applicable, § 7L does not forbid a provision such as St. 1989, c. 240, § 6, we need not resolve the question of § 7L’s effectiveness.

“Nothwithstanding the provisions of any general or special law to the contrary, the lottery distribution to cities and towns for the fiscal year ending June [30, 1989] shall not exceed [$306,000,000]; provided, further, that the lottery distribution to cities and towns for the fiscal year ending June [30, 1990] shall also not exceed [$306,000,000]; provided, further, that the first [$20,000,000] available for transfer from the Lottery Fund to the Local Aid Fund in the fiscal year ending June [30, 1990] shall be transferred to a retained revenue account within the executive office for administration and finance and shall be expended for the purposes of item 1599-3850 of section two C; provided, further, that any amount in the balance of the Lottery Fund at the end of such fiscal years shall be transferred to the Local Aid Fund and be available for lawful appropriations allowed from the Local Aid Fund; and provided, however, if the total combined amount for said fiscal years so transferred to the Local Aid Fund for appropriation exceeds [$34,000,000], any amount in excess of [$34,000,000] shall be distributed by the treasurer from the Local Aid Fund in accordance with the provisions of clause (c) of section thirty-five of chapter ten of the General Laws, in a manner proportional to said lottery distribution of said funds for the fiscal year ending June [30, 1989].”

The challenge to § 6 as not involving an appropriation (or as involving subject matter other than an appropriation) is particularly unpersuasive in the context of St. 1989, c. 240, because in other portions of that act the Legislature provided for local aid that could have been restricted to achieve the local aid result it sought through § 6.

It does appear that the question whether local aid funds should be distributed pursuant to § 6, or in total disregard of § 6, is one that directly and specially affects all the plaintiff municipalities. If the plaintiff municipalities lack standing to challenge the lawfulness of § 6, no one else is likely to have any greater standing to do so. We would be reluctant to tolerate a situation in which allegedly unconstitutional conduct would be free from judicial scrutiny even on the request of an entity most directly affected by the alleged unlawful conduct. Cf. LaGrant v. Boston Hous. Auth., 403 Mass. 328, 330-331 (1988).