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05/22/78 OPINION JUSTICES TO SENATE

May 22, 1978

OPINION OF THE JUSTICES TO THE SENATE


Edward F. Hennessey, Francis J. Quirico, Robert Braucher, Benjamin Kaplan, Herbert P. Wilkins, Paul J. Liacos, Ruth I. Abrams.

SYLLABUS BY THE COURT

Constitutional Law, General Court, Governor, Opinions of the Justices, Separation of powers, Appropriation of money, Expenditure of money. General Court. Governor. Supreme Judicial Court, Opinions of the Justices.

Discussion of executive and legislative prerogatives with respect to the appropriation of money and the expenditure of appropriated funds. [832-837]

The Governor has the constitutional prerogative to spend less than the full amount of an appropriation. [836-837]

A pending legislative bill providing, with an exception, that the full amount of every appropriation enacted by the General Court shall be expended, would eliminate any possible exercise of discretion by the Governor to spend less than the full amount so as to avoid wasteful expenditures not compromising the social purposes of the underlying legislation, and would be an unconstitutional infringement on the authority of the executive branch [837-839]; the exception, providing for passage by both branches of the General Court of a resolution approving a reduction in an appropriation recommended by the Commissioner of Administration in a special message, and then expenditure of the lesser amount approved, would eliminate the Governor's right to have laid before him "for his revisal" a modification of a previously enacted appropriation bill, and would violate Part II, c.1, § 1, art. 2 of the Massachusetts Constitution [839].

The Justices were unable to answer a question by the Senate as to a revision to a statute proposed by a pending bill which would leave unanswered a number of questions relevant to a determination of the constitutional validity of a specific legislative plan affecting the prerogatives of the executive branch of the government. [840-842]

On May 22, 1978, the Justices submitted the following answers to questions propounded to them by the Senate.

To the Honorable the Senate of the Commonwealth of Massachusetts:

The Justices of the Supreme Judicial Court respectfully submit their answers to the questions set forth in an order adopted by the Senate on January 25, 1978, and transmitted to us on February 2, 1978. The order recites the pendency before the Senate of a bill, Senate No. 1311, a copy of which was transmitted with the order.

The order recites in part that "t has become a growing practice for officers, employees, departments and agencies of the executive branch of the government of the commonwealth to refuse to expend or to expend only in part monies appropriated by the General Court for the purposes, objectives and programs enacted by the General Court, thereby obstructing, hindering or preventing the accomplishment of said purposes, objectives and programs."

Senate No. 1311 is entitled, "An Act controlling executive impoundment of appropriated funds." The emergency preamble to the bill declares that "he deferred operation of this act would tend to defeat its purposes, which are to ensure the proper separation of powers between the executive and legislative branches of government, to ensure that the executive branch fully uses appropriations to carry out the purposes for which the appropriations were enacted, to prevent the executive branch from impounding appropriations in ways which obstruct or hinder achieving the purposes for which the appropriations were enacted, and to establish certain express procedures whereby reductions may be made in the expenditure of moneys out of sums appropriated by the general court."

Section 1 of the bill would add a new § 14A to G.L. c. 29. Subsection (a) of the proposed § 14A requires that "ll sums appropriated in any item of any act of appropriation shall be expended in full" by all officers and employees of the Commonwealth who have responsibility for the expenditures of appropriated sums. Subsection (e) contains a similar direction. Subsection (a) also provides that no sum shall be expended for any purpose other than that for which it was appropriated. Expenditure of sums less than those appropriated is allowed only as authorized in the other subsections of § 14A.

Subsections (b), (c), and (d) specify the special procedures that must be followed by officers and employees of the executive branch to propose expenditure of a lesser amount than appropriated. Subsection (b), containing the essence of the plan, requires the Commissioner of Administration (Commissioner) to file a certain special message with the clerks of the House of Representatives and the Senate whenever the Commissioner determines that a full expenditure of appropriated funds will not be required to carry out the purposes, objectives, and programs for which the appropriation was enacted. The special message would have to include among other things, "the amount of the appropriation which the commissioner of administration proposes not to expend" (subsection [ b ], cl. 2); "the governmental purposes, objectives and programs which the appropriation was enacted to achieve or implement" (subsection [ b ], cl. 4); "the then-current status of realization or implementation of the purposes, objectives and programs for which the appropriation was enacted" (subsection [ b ], cl. 5); and "the reasons the commissioner of administration believes that the purposes, objectives and the programs for which the appropriation has been enacted can be met without expending that part of the appropriation which he proposes not to expend" (subsection [ b ], cl. 6).

If the Commissioner properly has submitted a special message to both branches of the General Court, the requirement of full expenditure imposed by subsections (a) and (e) will not apply, provided that "both branches of the general court shall have passed a resolution approving, in whole or in part, such reduction in expenditure as shall have been recommended by the commissioner of administration in such special message." Proposed G. L. c. 29, § 14A (e), cl. 2. The resolution must be approved within a certain time period, such period being forty-five days if the Legislature is in session.

Subsection (f) of the proposed ยง 14A requires the comptroller to file a special message, as provided in subsections (b), (c), and (d), in the event he has information that the Commissioner, or any head of an administrative or executive office, "has ordered, approved or permitted not fully expending any ...


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