Maryland Action for Foster Children, Inc. v. State, 5

• Decision Date: 07 January 1977
• Docket Number: No. 5,5
• Citation: 367 A.2d 491,279 Md. 133
• Parties: MARYLAND ACTION FOR FOSTER CHILDREN, INC., et al. v. STATE of Maryland et al.
• Court: Maryland Court of Appeals

Page 133

279 Md. 133

367 A.2d 491

MARYLAND ACTION FOR FOSTER CHILDREN, INC., et al. v. STATE of Maryland et al.

No. 5.

Court of Appeals of Maryland.

Jan. 7, 1977.

Richard S. Kahn, Baltimore, for appellants.

Carl E. Eastwick, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., Henry R. Lord, Deputy Atty. Gen., George A. Nilson and Joel J. Rabin, Asst. Attys. Gen., Baltimore, on the brief) for appellees.

Amicus curiae brief filed on behalf of the President of the Senate of Maryland and the Speaker of the House of Delegates of Maryland, acting jointly on behalf of the Policy Committee of the General Assembly of Maryland. H. Vernon Eney and Judith A. Armold, Baltimore, on the brief.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, and ELDRIDGE, JJ., and RICHARD P. GILBERT, Special Judge.

ELDRIDGE, Judge.

This case presents questions involving the budget and appropriation provisions of the Maryland Constitution.

The particular dispute here concerns payments for the foster care of children under two separate programs maintained by the State of Maryland. One program, pursuant to Maryland Code (1957, 1969 Repl.Vol.), Art. 88A, is administered by the Social Services Administration of the Department of Human Resources (formerly the Department of Employment and Social Services and involves payments to foster parents for the care of 'neglected or dependent children.' The other program, pursuant to Code (1974, 1976 Cum.Supp.), § 3-820(b)(2) of the Courts and Judicial Proceedings Article, is administered by the Juvenile Services Administration of the Department of Health and Mental Hygiene and involves payments to foster parents on behalf of those children committed by juvenile courts and placed in foster homes. Prior to 1974 the monthly rates of payment to foster parents under both programs were not dealt with by statute; instead the rates were administratively determined, based upon the funds appropriated for each program in the annual State budgets. Moreover, the payment rates were not the same under each program, as the amount paid monthly for the foster care of a child under the program administered by the Social Services Administration was less than the amount paid under the program administered by the Juvenile Services Administration.

At its 1974 session the General Assembly passed House Bill 326, which upon the Governor's signature became Ch. 867 of the Acts of 1974, and which added new § 60B to Art. 88A of the Code (1957, 1969 Repl.Vol., 1976 Cum.Supp.). Subsection (a) of new § 60B required the Social Services Administration to 'establish by regulation eligibility guidelines for payment for one or more classifications of children receiving boarding care (foster care) who are in need of special care.' Subsection (b) of new § 60B provides that after July 1, 1975, the monthly rate paid by the Social Services Administration for the foster care of children 'described in the classification which is given the most demanding type of care provided in single family homes shall not be less than the monthly rate for care purchased in a single family home' by the Juvenile Services Administration. Subsection (b) goes on to provide: 'This rate shall not be lower than that paid in fiscal year 1975.'

Notwithstanding the provisions of Art. 88A, § 60B(b), the Budget Bill submitted by the Governor to the General Assembly in January 1975, for the fiscal year 1976, commencing July 1, 1975, made appropriations for the two foster care programs on the basis of unequal rates of payment. Although the requirement that the rate paid by the Social Services Administration 'shall not be lower than that paid in fiscal year 1975' was complied with, the appropriation for the Social Services Administration program was insufficient to comply with the requirement that the monthly rate 'shall not be less than the monthly rate' paid by the Juvenile Services Administration.

During the 1975 legislative session the Senate passed a resolution, Senate Resolution No. 109, which referred to Art. 88A, § 60B(b), and which requested the Governor 'to provide funds to increase family foster care payments' by the Social Services Administration to a level sufficient for the standard of § 60B(b) to be met. However, the Governor did not amend or supplement the Budget Bill submitted to the General Assembly so as to increase the appropriation for the foster care program administered by the Social Services Administration. As the General Assembly could not constitutionally increase this appropriation, the Budget Bill as enacted at the 1975 session contained appropriations for the two foster care programs reflecting unequal rates of payment. The General Assembly did not, as it could have under Art. III, § 52(8) of the Maryland Constitution, enact a Supplementary Appropriation Bill to appropriate the funds necessary for the increased rate of payment under the Social Services Administration program.

Thereafter, the 'Maryland Action for Foster Children, Inc.,' an association involved in the 'promotion of an effective foster care program for children without parents,' and several individual foster parents, brought this suit in the Circuit Court for Baltimore County against the State of Maryland, the Governor, the Comptroller, the Treasurer, and the Secretary of Budget and Fiscal Planning. The plaintiffs sought a writ of mandamus ordering the defendants to pay all foster parents in the State of Maryland who were providing boarding care for foster children no less than the minimum sum mandated by Art. 88A, § 60B(b). The plaintiffs also sought an order requiring retroactive payments to such foster parents, as a supplement to the monies already paid since July 1, 1975, the effective date of Art. 88A, § 60B(b). The defendants filed a motion raising preliminary objection or, in the alternative, a demurrer to the petition for a writ of mandamus. ¹

The circuit court, after a hearing and after rendering an opinion, denied the motion raising preliminary objection but sustained the defendants' demurrer without leave to amend. The circuit court in its opinion held that Ch. 867 of the Acts of 1974, adding new § 60B to Art. 88A of the Code, was 'a supplemental appropriation bill which is unconstitutional because it fails to contain within itself the means of providing the monies to pay for the costs thereof.' While holding that § 60B was unconstitutional as an invalid appropriation bill, the circuit court stated that 'it has, in effect, the same weight and value as a joint resolution of the Legislature . . ..'

The plaintiffs, in their appeal from the circuit court's order, concede that if Art. 88A, § 60B(b) amounts to an attempted appropriation, it is unconstitutional because it fails to meet the requirements for a Supplementary Appropriation Bill which are set forth in Art. III, § 52(8) of the Maryland Constitution. The plaintiffs, however, argue that the circuit court erred in holding that § 60B(b) constituted an appropriation measure. They claim that it is a valid law setting forth the policy of the State.

The plaintiffs apparently recognize that if § 60B(b) does not constitute a valid appropriation measure, mandamus would not lie to compel any of the defendants to pay the monies from the State Treasury which the plaintiffs sought in this case. See Art. III, §§ 32 and 52 of the Maryland Constitution; Red Star Line v. Baughman, 153 Md. 607, 610-611, 139 A. 291 (1927); McPherson v. Leonard, 29 Md. 377, 389-390 (1868); Thomas v. Owens, 4 Md. 189, 229-231 (1853). See also Panitz v. Comptroller, 247 Md. 501, 516, 232 A.2d 891 (1967). Consequently, in their brief and argument before us, the plaintiffs do not seek relief against any of the defendants other than the Governor, and they do not seek an order requiring the payment of monies. Instead, they insist that they are entitled to an order requiring the Governor to comply with § 60B(b) 'in the preparation of all future budgets.'

The President of the Maryland Senate and the Speaker of the House of Delegates, on behalf of the Policy Committee of the General Assembly, have filed a brief as Amicus Curiae, taking essentially the same position as the plaintiffs do in this Court.

The defendants agree that Art. 88A, § 60B(b) is not an appropriation measure. They argue, however, that, in the absence of a Supplementary Appropriation Bill enacted by the General Assembly, the funding of § 60B(b) is constitutionally committed to the discretion of the Governor. Since mandamus will not lie to control the exercise of discretion by a public official, Balto. County v. Egerton Realty, 217 Md. 234, 238, 140 A.2d 510 (1958); Hillyard v. Chevy Chase Vill., 215 Md. 243, 246-247, 137 A.2d 555 (1958); Red Star Line v. Baughman, supra, 153 Md. at 610, the defendants take the position that the circuit court's order sustaining their demurrer should be affirmed even though the circuit court's reasoning may not have been entirely correct.

Preliminarily, we agree with all of the parties that Art. 88A, § 60B(b) is not an appropriation measure, and thus compliance with the constitutional requirements for a Supplementary Appropriation Bill was unnecessary. Section 60B(b) does not purport to appropriate money out of the State Treasury or direct the Comptroller, Treasurer or anyone else to make payments of money. Cf. Winebrenner v. Salmon, 155 Md. 563, 566-567, 142 A. 723 (1928); Baltimore v. O'Conor, 147 Md. 639, 128 A. 759, 40 A.L.R. 1058 (1925); McPherson v. Leonard, supra, 29 Md. at 389-390. The statute regulates the manner by which the Social Services Administration is to carry out a particular program, setting certain guidelines in paying for a service under the program, but leaving it to another bill, such as the annual Budget Bill, to determine the amount of money available for the program. A bill merely fixing the criteria for paying for a service, but leaving it to the annual Budget Bill to determine the amount of money...