Board of Regents of Higher Ed. v. Judge

• Decision Date: 12 December 1975
• Docket Number: No. 13069,13069
• Citation: 168 Mont. 433,543 P.2d 1323
• Parties: BOARD OF REGENTS OF HIGHER EDUCATION of the State of Montana, Plaintiff, v. Thomas L. JUDGE, Governor of the State of Montana, Defendant, and Legislative Finance Committee of the Montana Legislative Assembly, Intervenors.
• Court: Montana Supreme Court

Page 1323

543 P.2d 1323

168 Mont. 433

BOARD OF REGENTS OF HIGHER EDUCATION of the State of

Montana, Plaintiff, v. Thomas L. JUDGE, Governor of the State of Montana, Defendant, and Legislative Finance Committee of the Montana Legislative

Assembly, Intervenors.

No. 13069.

Supreme Court of Montana.

Submitted Sept. 10, 1975.

Decided Dec. 12, 1975.

Datsopoulos & MacDonald, Missoula, Milton Datsopoulos, argued, Missoula, for plaintiff.

Robert L. Woodahl, Atty. Gen., Helena, John P. Atkins and Lon J. Maxwell, argued, Asst. Atty. Gen., Helena, for defendant.

John W. Northey, argued, Helena, for intervenors.

Berg, Angel, Andriolo & Morgan, Bozeman, Gregory O. Morgan, argued, Bozeman, for intervenors amicus curiae.

CASTLES, Justice.

This is an original proceeding for a declaratory judgment brought by the Board of Regents of Higher Education of the State of Montana against the Governor of the State. The Board of Regents seeks definitive rulings on the constitutionality of two bills passed during the 1975 legislative session and signed into law by the Governor. House Bill 271 appropriates monies to the university system for the biennium. Senate Bill 401 provides for a legislative finance committee to approve budget amendments. More will be said about these two bills later in this opinion.

The Board of Regents, hereinafter referred to as the Regents, sought original jurisdiction in this Court. This Court set the matter for adversary hearing. Hearing was had. Defendant Governor, hereinafter referred to as Governor, moved to dismiss on procedural grounds. The motion was denied. The Legislative Finance Committee and the Legislative Audit Committee of the Montana Legislative Assembly moved to intervene. Hereinafter these committees will be referred to in the singular as the Finance Committee. Such intervention was granted, and no challenge is made to the status of legislative committees as party litigants. The Associated Students of Montana State University and University of Montana were allowed to submit a brief and appear as amicus curiae.

By order this Court accepted original jurisdiction on the basis of the emergency nature of the controversy and set a prehearing conference pursuant to Rule 28, M.R.App.Civ.P., to consider simplification of the issues. Thereafter the Court directed the Governor and his agents to refrain from withholding payments on claims and warrants by the university system until further order of this Court.

Following the prehearing conference this Court ordered in part:

'I. The Forty-Fourth Legislature of the State of Montana passed House Bill 271 which purports to appropriate money to the University System for the biennium. During the same session, the Legislature passed Senate Bill 401 which provides for a legislative finance committee to approve budget amendments. Pursuant to House Bill 271, the budget director declared the appropriation to the University System void in the absence of a letter certifying compliance with the provisions of the bill. The Board of Regents declined to certify and brought this action for disposition of the issues involved.

'II. The issues to be resolved in this action are as follows: 1) whether Section 1(3) of House Bill 271, in light of the provisions of Senate Bill 401 is an unconstitutional infringement on the powers and duties of the Board of Regents; 2) whether (a) the certification requirement contained in the origination clause of Section 12 of House Bill 271 is unconstitutional as an improper legislative infringement on the management authority of the Board of Regents, and (b) whether Section 12(6) of House Bill 271 is unconstitutional as a direct invasion of the management prerogatives granted to the Board of Regents by Article X, Section 9 of the Montana Constitution.'

The pertinent parts of the two enactments are:

HOUSE BILL 271.

'Section 1. For the purposes of this act, unless otherwise stated:

'* * *

'(3) 'Approved budget amendment' means approval by the board of regents unless otherwise provided by law, of a request to:

'(a) obtain financing for new or expanded programs from funds which were not available for consideration by the legislature but which have become available from a source other than the state's general fund; or

'(b) transfer not more than fifteen percent (15%) of any single university system unit's appropriations, including general fund appropriation between units and transfer appropriations between programs within a university system unit; or

'(c) expend remaining balances of the first fiscal year of the biennial appropriations, including general fund appropriations, during the second fiscal year of the biennium.

'* * *

'Section 12. The provisions set forth in this section are limitations on the appropriations made in this act. It is the purpose of the legislature in enacting this bill only to appropriate funds and to restrict and limit by its provisions the amount and conditions under which the appropriations can be expended. Except as otherwise provided in this act, the expenditures of appropriations are hereby contingent upon the board of regents certifying to the budget director that the university units shall comply completely with the following general and specific provisions: * * *

'(4) All moneys collected or received by university system units subject to this act from any source whatsoever, including federal grants for research and operations, and any moneys received from a foundation shall be deposited in state treasury pursuant to the provisions of Title 79, R.C.M.1947, except that the department of administration may, pursuant to section 79-603, R.C.M.1947, permit any university system unit subject to this act to retain in its possession moneys that would otherwise be deposited in the state treasury, provided that the anonymity of private foundation donors shall be maintained and that private donations shall not be used as an offset to general fund appropriations.

'* * *

'(6) Salary increases for presidents of units of the university system and for the commissioner of higher education shall not exceed five percent (5%) each year of the biennium using the respective fiscal year 74-75 salaries previously approved by the regents as the basis for determining such increases.

'In the absence of such certification of compliance, the appropriations in this act are null and void.

'The regents shall grant classified university employees salaries in accord with House Joint Resolution, 37, forty-fourth legislature.' (Emphasis supplied.)

House Bill 271 was amended by the Forty-Fourth Legislature in its House Bill No. 1 (Special Session) by adding Section 13 to H.B. 271:

'Section 13. In addition to the appropriations contained in this act, all other monies received from sources other than the general fund and which were not available for consideration by the legislature are hereby appropriated. Such monies may be made available for expenditure only by a budget amendment approved by the legislative finance committee.'

SENATE BILL 401:

'Section 1. * * * Definitions. In this act: * * *

'(2) 'Budget amendment' means a request submitted through the budget director to the committee for executive branch agencies to expend funds in excess of those appropriated by the legislature.

'Section 2. * * * Approval of budget amendments. All budget amendments for state agencies must be submitted through the budget director to the committee. No state agency shall expend in excess of the appropriation except under authority of a budget amendment approved by the committee. The committee shall approve, with or without modification, or disapprove, each proposed budget amendment of any state agency.'

The Governor does not oppose the Regents with respect to the legislative budget process put forth in Issue No. 1, (but see Governor's stand in companion case, Cause No. 13201, Governor v. Legislative Finance Committee, 543 P.2d 1317). The Finance Committee does oppose the Regents with respect to the legislative budget process in Issue No. 1. Amicus Curiae support the Regents.

Prior to discussing Issue No. 1, it will be helpful to give some background. House Bill 271 appropriates money to the university system for the biennium by various line items from various state operating funds. The Commissioner of Higher Education, the University of Montana, Montana State University, and the various other college units are each appropriated certain funds.

For example, the University of Montana is appropriated $17,782,106.00 for the year ending June 30, 1976, in ten line items:

                Instruction ................................ 10,114,000
                Research ...................................... 176,768
                Public Service ................................ 131,718
                Academic Support ............................ 1,737,215
                Student Services .............................. 886,183
                Institutional support ....................... 1,730,230
                Operation & maintenance of plant ............ 1,941,316
                Forest Experiment Station ..................... 241,591
                Scholarships and fellowships .................. 525,000
                Malmstrom Air Force Base instruction .......... 298,085
                                                             ----------
                                                      Total  17,782,106
                

                From the general fund ....................... 9,808,239
                From the earmarked revenue fund
                  02106 University millage ERA .............. 3,041,786
                02650 U.M. Student fee ERA .................. 4,336,999
                From the federal and private revenue fund
                  04308 UM interest and income FPRA ............ 75,000
                  04515 UM federal program FPRA ............... 346,944
                  Social Rehabilitation Services transfer ..... 173,138
                                                             ----------
                                                      Total  17,782,106
                

H.B. 271 provides for budget amendment by the Regents whenever funds become available from sources outside the general fund for new or expanded programs, or in transfers of not more than 15% of any...