In re Op. of the Justices to the House of Representatives
| Citation | 32 N.E.3d 287,471 Mass. 1201 |
| Decision Date | 15 June 2015 |
| Docket Number | SJC–11883. |
| Parties | OPINION OF THE JUSTICES TO THE HOUSE OF REPRESENTATIVES. |
| Court | United States State Supreme Judicial Court of Massachusetts |
On June 15, 2015, the Justices submitted the following response to questions propounded to them by the House of Representatives.
To the Honorable the House of Representatives of the Commonwealth of Massachusetts:
The undersigned Justices of the Supreme Judicial Court respectfully submit this response to the questions set forth in an order adopted by the House of Representatives on May 22, 2015, and transmitted to us on that date. The order poses five questions concerning the State budget legislation for fiscal year 2016. All of the questions involve Part II, c. 1, § 3, art. 7, of the Massachusetts Constitution
, which we will refer to as the origination article.1 They ask, among other things, whether certain provisions in the House budget bill rendered it a “money bill” within the meaning of the origination article, and whether the Senate improperly “originated” a money bill in violation of this article.
As explained below, we are of the view that the House bill was a money bill, and that the Senate did not improperly originate a money bill.2
Bills and amendments at issue. We begin by summarizing the history of the various bills and amendments that give rise to the questions, and by describing generally the provisions that are at issue, reserving for later a more detailed analysis of the legal effect of those provisions.
On March 4, 2015, acting pursuant to art. 63, § 2, of the Amendments to the Massachusetts Constitution, art. 107 of the Amendments, and pursuant to G.L. c. 29, § 7H
, the Governor filed with the House his recommended budget for fiscal year 2016, which, as is customary, was designated House No. 1. Among its many provisions was section 27, entitled “Delay FAS 109 Deduction,”3 which provided: “Subsection (2) of section 95 of chapter 173 of the acts of 2008 is hereby amended by striking out the figure ‘2016’, inserted by section 189 of chapter 165 of
the acts of 2014, and inserting in place thereof the following figure: – 2017.” The Governor's submission described section 27 as follows: “This section delays until tax year 2017 the start of the deduction allowed to certain publicly-traded companies to offset increases in their net deferred tax liability that resulted from the commonwealth's implementation of combined reporting.”4
House No. 1 was referred to the House committee on ways and means on March 5, 2015. The committee filed its version of the budget on April 15, 2015, as House No. 3400. Among its numerous outside sections, House No. 3400 contained section 48, the language of which was identical to section 27 of House No. 1, i.e., the delay of the so-called FAS 109 deduction for corporations reporting on a combined basis. The House thereafter engaged in extensive debate on House No. 3400, during which it considered in excess of 1,000 amendments, including one that is particularly important to the questions that are now before us, amendment 685, entitled “For Expansion of the Conservation Land Tax Credit Program.” The amendment, which was adopted, provides that “Section 38AA (h) of Chapter 63 of the General Laws
is hereby amended by deleting ‘$2,000,000’ and replacing it with ‘$5,000,000’.”5
House No. 3400, as amended, was passed to be engrossed by the
House on April 30, 2015, in the form of House No. 3401. The delay of the so-called FAS 109 deduction, proposed by the Governor and adopted by the House, appears as section 48 of House No. 3401. The proposed increase in the amount of the tax credit for qualified donations of land to conservation agencies appears in sections 76 () and 77 (its effective date). For convenience, we shall refer to section 48 of House No. 3401 as the delayed FAS 109 deduction provision, and to sections 76 and 77 as the conservation land credit provision.
House No. 3401 was transmitted to the Senate, and referred by the clerk of the Senate to the Senate committee on ways and means, on May 7, 2015. The committee immediately set out to establish its version of the budget, which it completed and reported to the Senate on May 12, 2015. The bill reported from the committee, Senate No. 3, in section 54 contained language identical to the delayed FAS 109 deduction provision in House No. 3401. It had no language comparable to the House's conservation land credit provision, however.
The Senate, like the House, then engaged in extensive debate and considered numerous possible amendments. The final Senate bill, like the final House bill, has many outside sections. Among other things, section 54 continues to contain the delayed FAS 109 deduction provision. Two other sections are also relevant to the questions that are put to us. First, the Senate adopted amendment 6, entitled “Expand Earned Income Tax Credit and Increase Personal Exemptions,” which, among other things, added a new outside section to the Senate bill, section 31D, that would amend G.L. c. 62, § 4
, by striking out the current § 4 (b )7 and replacing it with the following: “Part B taxable income shall be taxed at a rate of 5.15 per cent for tax years beginning on or after January
1, 2016.”8 Amendment 6 added a further provision, section 107A, stating that the new section 31D would take effect on January 1, 2016. We will refer to sections 31D and 107A as the Part B income tax provision.
Second, the Senate adopted amendment 836, entitled “Reducing youth consumption of flavored cigars,” which added section 34A to the Senate bill. Section 34A, which we will refer to as the flavored cigar excise provision, would, among other things, amend G.L. c. 64C, § 7B (b )
,9 by adding a new second paragraph to the statute, providing as follows:
10
On May 21, 2015, Senate No. 3, as amended, was passed to be engrossed by the Senate, in the form of Senate No. 1930. The Part B income tax provision, which appeared in sections 31D and 107A of Senate No. 3, appears in sections 31F and 109 of Senate No.
1930. The flavored cigar excise provision, which appeared in section 34A of Senate No. 3, now appears in section 34A of Senate No. 1930. Other than the section numbers, the provisions are essentially identical.
It is against this backdrop that the budget bills were sent to a conference committee of the House and Senate. We are aware that the work of the committee has begun and is in progress.
By its order dated May 22, 2015, the House has posed the following five questions to us:
“1. Does an amendment to an existing session law postponing the effective date of a previously enacted tax expenditure, as set forth in section 48 of House No. 3401, render House No. 3401 a ‘money bill’ pursuant to Part II, c. 1, § 3, art. 7, of the Constitution of the Commonwealth
?
“2. Does an amendment to an existing General Law increasing the expenditure of tax credits as set forth in section 76 of House No. 3401, render House No. 3401 a ‘money bill’ pursuant to Part II, c. 1, § 3, art. 7, of the Constitution of the Commonwealth
?
“3. If the answers to question 1 and question 2 are in the negative, would it be violative of Part II, c. 1, § 3, art. 7, of the Constitution of the Commonwealth
for the Senate to ‘transfer money or property from the people to the State’ by initiating the repeal of the current statutory mechanism requiring the tax rate on personal income be set at 5% upon satisfaction of certain fiscal requirements and replacing that reduction mechanism with a permanently fixed tax rate on personal income of 5.15% as set forth in section 31D of Senate No. 3?
?”
The House order expresses grave doubt as to whether its budget bill, House No. 3401, as engrossed and transmitted to the Senate, was a “money bill” for purposes of the origination article; as to whether the Senate had the authority to insert its tax-related provisions into the bill that originated in the House; and as to the constitutionality of the Part B income tax provision and the flavored cigar excise provision in the Senate bill if enacted into law.11 , 12
Use of the advisory opinion process. We next consider whether the House's questions can properly be answered in an advisory opinion. We are of the view that they can in these circumstances.
The advisory process is rooted in Part II, c. 3, art. 2, of the Massachusetts Constitution
, as amended by art. 85 of the Amendments. This article authorizes the Governor, the Executive Council, and each branch of the Legislature to call on the Justices for “opinions ... upon important questions of law, and upon solemn occasions.”13 The Constitution requires the Justices to...
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