Mayor of Boston v. Treasurer and Receiver General

• Decision Date: 15 December 1981
• Citation: 429 N.E.2d 691,384 Mass. 718
• Parties: MAYOR OF BOSTON et al. v. TREASURER AND RECEIVER GENERAL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 691

429 N.E.2d 691

384 Mass. 718

MAYOR OF BOSTON et al. v. TREASURER AND RECEIVER GENERAL.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 4, 1981.

Decided Dec. 15, 1981.

Harold J. Carroll, Corp. Counsel, Boston (Jacqueline A. Lillard, Asst. Corp. Counsel, Boston, with him) for plaintiffs.

Donald K. Stern, Asst. Atty. Gen. (James A. Aloisi, Jr., Asst. Atty. Gen., with him) for defendant.

Before HENNESSEY, C. J., and WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

WILKINS, Justice.

In providing an additional $348,000,000 in financial aid to the cities and towns in the budget for the current year, the Legislature imposed a specific limitation on the distribution of funds to the city of Boston. St.1981, c. 351, § 2, item 0611-5500. That limitation conditioned the distribution to Boston on the city's maintaining "the same level of police and fire protective services as during fiscal (1980)" and maintaining "as operating facilities all police and fire stations operating during fiscal (1980)." ¹ The city and its mayor brought this action to challenge the limitation on Boston on the ground that it violates the Home Rule Amendment, art. 2 of the Amendments to the Constitution of the Commonwealth, as appearing in art. 89 of the Amendments, approved by the people in 1966. ² They argue that the proviso should be treated as a nullity and that Boston's share of the additional local aid should be distributed to it free of the limitation. ³

We agree that the limitation exclusively imposed on Boston was adopted in violation of the Home Rule Amendment and is invalid. We do not agree, however, that the proviso can properly be severed from the grant to Boston and Boston's funds then distributed to it free of the limitation. Moreover, we agree with the Attorney General, arguing on behalf of the defendant Treasurer and Receiver General, that, if the limitation on Boston is unconstitutional, the entire allocation of $348,000,000 in additional local aid must be struck down. We have no hesitancy in concluding, however, that the unconstitutionality of the limitation on Boston does not invalidate any other portions of the budget, which we believe the Legislature would have adopted in any event.

We are aware of the disruptive consequences of the result we reach in this case. It would have been less disruptive to reach a contrary conclusion. It is, however, often precisely when seductive, extraneous pressures are most intense that the need is greatest for judges to focus on constitutional principles. We believe any disruption need only be temporary. The Legislature is still in session. The problem is not insoluble.

The plaintiffs commenced this action in the Supreme Judicial Court for the County of Suffolk seeking declaratory and injunctive relief against the operation of the limitation imposed on Boston's receipt of its share of the funds additionally made available by St.1981, c. 351, § 2, item 0611-5500. A single justice reserved and reported the case to this court on the complaint, the answer, and a statement of agreed facts.

We summarize certain of these facts. Item 0611-5500 was not enacted on a petition filed or approved by the voters or by the mayor and city council. Nor was item 0611-5500 enacted by a two-thirds vote of each branch of the General Court following a recommendation of the Governor. ⁴ The noncivilian personnel of the Boston police department was 1,768 on September 18, 1981, and had been in excess of 2,100 both at the beginning and at the end of the 1980 fiscal year. Also, there were 1,554 noncivilian personnel in the Boston fire department in the middle of September, 1981, and there had been more than 1,900 noncivilian employees in that department both at the beginning and at the end of the 1980 fiscal year. Two district police stations open in fiscal year 1980 have been closed, as have two fire stations. The Commissioner of Revenue has advised the mayor of Boston that distribution of funds to Boston made available pursuant to item 0611-5500, half of which would otherwise have been distributable before December 31, will not be made unless the city complies with the limitation on Boston stated in item 0611-5500 (or unless the Secretary of Public Safety approves). The total amount estimated to be payable to Boston under item 0611-5500 is approximately $56,700,000. The statement of agreed facts does not show what additional costs would be imposed on Boston if it were to comply with the limitation contained in item 0611-5500. ⁵ There is nothing in the record or in any legislative document which shows that additional assistance was given to Boston in item 0611-5500 to compensate Boston for the cost of complying with the limitation concerning police and fire services. We note that in an additional proviso contained in item 0611-5500, and quoted below, ⁶ the Legislature modified the formula that would otherwise have been used in allocating the additional funds among cities and towns. The modification appears to be designed to benefit certain municipalities that are challenging the results of the 1980 Federal census. We infer that Boston is one of those municipalities but do not know how much this adjustment in the formula has benefited Boston.

The Home Rule Amendment provides (in relevant part) that the General Court has "the power to act in relation to cities and towns, but only by general laws which apply alike to all cities, or to all towns, or to all cities and towns, or to a class of not fewer than two" (emphasis supplied). In passing item 0611-5500, to provide reimbursement to cities and towns, the General Court was acting "in relation to cities and towns." The act containing the budget was a general law. Finally, it is apparent that, in limiting Boston's use of the funds, the law does not "apply alike to all cities, or to all towns, or to all cities and towns, or to a class of not fewer than two." It applies to a class fewer than two, that is, to Boston alone. Boston alone is told how to use funds made available to it. It alone is denied the opportunity to decide how to allocate funds generally made available to meet the financial problems of Proposition 21/2. Boston alone is told that, if it wants the stated financial aid, it must achieve compliance with the restrictions of Proposition 21/2, largely if not entirely, by budgetary reductions in departments other than police and fire.

A straight-forward reading of the Home Rule Amendment indicates that the restriction on legislative action imposed by that Amendment has been violated by the limitation concerning police and fire protection in Boston. There are procedures described in the Home Rule Amendment by which the limitation might have been lawfully enacted. The procedure followed here is not one of them. Although "the scope of the disability imposed on the Legislature by the (Home Rule) (A)mendment is quite narrow" (Arlington v. Board of Conciliation & Arbitration, 370 Mass. 769, 773, 352 N.E.2d 914 (1976)), that disability is total and its scope is explicit. It would be ironic if so recently after careful attention has been given to preventing the budgetary process from being misused to reduce the constitutional authority of the Governor, ⁷ this court should endorse a budgetary device that seriously undercuts the protections of the Home Rule Amendment.

The conclusions we reach are supported by a thoughtful analysis of the Home Rule Amendment, published shortly after its enactment in 1966. See Eighth Report of the Special Commission on Implementation of the Municipal Home Rule Amendment to the State Constitution, Senate Doc. No. 1547 (November 30, 1967), containing "an analytical discussion of the Home Rule Amendment made for the Home Rule Commission by its legal consultant firm." In discussing the enactment of laws in relation to cities and towns, that document states "(a) law granting moneys to or imposing expenses upon cities and towns would seem to be a law 'in relation to cities and town' " (emphasis supplied). Id. at 25. Indeed, on what theory would a law granting funds to municipalities not be a law in relation to cities and towns? In discussing the special circumstances of General Laws which have excepted Boston from their application, the 1967 analysis of the Home Rule Amendment states: "But a general law may not create a new special rule for Boston only or change one exception for Boston only into a different exception for Boston only, because such a law does apply to Boston and fails to apply alike to it and at least one other city or town" (emphasis supplied). Id. at 27.

The defendant argues that the limitation applicable to Boston is a matter of regional concern and that, therefore, it does not fall within the restrictions of the Home Rule Amendment. He points to the importance of Boston as a regional center for business, tourism, and commerce in which the matter of police and fire protection is of interest to many people other than the residents of Boston and its city government. Interpretations of the Home Rule Amendment which say that it is not applicable to legislation principally of State or regional, rather than local, concern ⁸ cannot be stretched as far as the defendant argues. To do so in this case would substantially abrogate the Home Rule Amendment as applied to Boston because the limitation imposed here affects Boston in the conduct of its local affairs.

We also reject the defendant's argument that the authority of the Legislature in granting funds to municipalities is unrestrained by the Home Rule Amendment. Nowhere in the Home Rule Amendment is there the slightest suggestion that its provisions are inapplicable to a conditional grant of funds to a municipality. If we were to conclude that conditions and limitations could be imposed on an individual municipality in the process of distributing local aid, a substantial and unwarranted exception would be added judicially to the Home...