Town of Brookline v. Governor
| Decision Date | 14 May 1990 |
| Citation | 553 N.E.2d 1277,407 Mass. 377 |
| Parties | , 60 Ed. Law Rep. 181 TOWN OF BROOKLINE et al. 1 v. The GOVERNOR et al. 2 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
David Lee Turner, Town Counsel, Boston (Sara Holmes Wilson and George F. Driscoll, Jr., Brookline, with him), for plaintiffs.
Peter Sacks, Asst. Atty. Gen., for the Governor.
William L. Patton and Lorraine A. White, Boston, amicus curiae, for Massachusetts Taxpayers Foundation.
Lorraine A. White, Boston, amicus curiae, for the town of Andover.
Louis A. Rizoli and Elaine M. Farrell, Boston, amicus curiae, for Massachusetts House of Representatives.
Daniel J. Bailey, Jr., Town Counsel, Roderick MacLeish, Jr., and John W. Bishop, Jr., Boston, amicus curiae, for the town of Weymouth et al.
Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN, LYNCH, O'CONNOR and GREANEY, JJ.
The court holds that the Governor had no authority under G.L. c. 29, §§ 9B and 9C (1988 ed.), to withhold $210,000,000 in local school aid funds, commonly called Chapter 70 aid, appropriated in the fiscal year 1990 budget. St.1989, c. 240, § 2, line item 7061-0008. We further hold, on an entirely separate issue, that § 6 of St.1989, c. 240, lawfully limits distributions of certain State lottery proceeds to cities and towns during the 1989 and 1990 fiscal years.
A judge of the Superior Court reported the case to the Appeals Court on a statement of agreed facts. We transferred the case to this court on our own motion.
1. In its fiscal year 1990 general appropriation act (St.1989, c. 240), the Legislature appropriated funds for Chapter 70 school aid (line item 7061-0008) to be distributed to cities and towns. Purporting to act pursuant to G.L. c. 29, § 9C, the Governor has withheld $210,000,000 of the Chapter 70 aid appropriation from distribution, pending receipt of sufficient revenues. We conclude that the funds appropriated by line item 7061-0008 are not subject to reduction pursuant to G.L. c. 29, § 9C.
Line item 7061-0008, under the headings of Department of Education, Board of Education and Commissioner's Office, appropriated more than $1,218,000,000 for "school aid to cities, towns, regional school districts, counties maintaining agricultural schools and independent vocational schools to be distributed pursuant to the provisions of section three of this act." Section 3 in turn recites that the "amounts to be distributed from item 7061-0008 of [§ 2] are hereby deemed to be in full satisfaction of the amounts due under" G.L. c. 70, §§ 3, 6, and 7. Section 3 also states that "[n]otwithstanding the provisions of any general or special law to the contrary, the total amounts to be distributed and paid to each city, town" and other political subdivision from item 7061-0008 of § 2 of the act "shall be [as] set forth" in the list included in this section. That list recites the precise dollar amount of 7061-0008 Chapter 70 aid to be distributed to each municipality and political subdivision. Section 3 also provides that the State Treasurer shall make no payments to cities and towns pursuant to § 3 after November 30 of the fiscal year until he receives (1) certification from the Commissioner of Revenue concerning the prior year's financial reports submitted pursuant to G.L. c. 44, § 43 (1988 ed.), and (2) certification from the Commissioner of Education of acceptance of the end of year pupil and financial report submitted pursuant to G.L. c. 72, § 3 (1988 ed.). Section 4 of St.1989, c. 240, directs the State Treasurer to make "two equal payments" of various assistance programs to cities and towns during each fiscal year.
What these sections of the annual appropriation act provide is a specific amount of money for school aid to each city and town, in lieu of the amounts provided for in Chapter 70, notwithstanding the provisions of any general or special law to the contrary. The State Treasurer must pay to each city and town its specific amount in two equal payments during the fiscal year, but he may do so only after certain certifications have been delivered. These provisions are self-contained guidelines for the furnishing of Chapter 70 school aid in the 1990 fiscal year. They bar the application of G.L. c. 29, §§ 9B and 9C, or any other general or special law, to the determination of the amounts that must be paid as Chapter 70 aid. No party argues that § 3 of St.1989, c. 240, is unlawful in any aspect because it is an improper provision for an annual appropriation act.
Even if § 3 did not bar the application of §§ 9B and 9C to the appropriation for Chapter 70 aid, those sections do not authorize the Governor to reduce Chapter 70 local aid amounts set forth in § 3 of the 1990 fiscal year appropriation act. Section 9C of G.L. c. 29, which is set forth in the margin, 3 allows the Governor to reduce allotments under § 9B, in certain circumstances, when available revenues during a fiscal year will be insufficient to meet authorized expenditures. Section 9B, the first part of which is set forth in the margin, 4 is the crucial statutory provision here. It describes which monies or allotments the Governor may reduce under § 9C. These monies or allotments are funds "made available by appropriation or otherwise, to state agencies under the control of the governor or a secretary." Section 9B also directs the Governor to divide each agency's funds into allotment periods. In this way, it is generally expected that an appropriation will be expended proportionately over the course of a fiscal year.
The short answer to the question whether the Governor may use § 9C to reduce amounts appropriated by line item 7061-0008 is that the school aid funds appropriated by that line item, and assigned in specific amounts to cities and towns by § 3 of the fiscal year 1990 appropriation act, are not "made available" to any State agency "under the control of the governor or a secretary." Neither the requirement that the Commissioners of Revenue and Education must certify certain information before the State Treasurer may distribute those school aid funds, nor the fact that the appropriation appears under the heading "Department of Education" makes those school aid funds available to any State agency described in § 9B. Moreover, the provision in § 4 of St.1989, c. 240, that the school aid funds be distributed twice a year is inconsistent with the allotment provisions described in § 9B.
The provision in § 9C concerning reductions in § 9B allotments obviously has no application to amounts that are not subject to allotment, and amounts not available to agencies under the control of the Governor or one of his secretaries simply are not subject to allotment. 5
2. The plaintiffs claim that § 6 of St.1989, c. 240, which purports to limit the distribution of State lottery funds as local aid in fiscal years 1989 and 1990, is unlawful. Their argument is that § 6, an outside section of the fiscal year 1990 general appropriation act, attempts to enact general legislation and that a general appropriation act may not lawfully be used for that purpose. We need not now decide whether an outside section not related to an appropriation may constitutionally be included in a general appropriation act because we conclude that § 6 is sufficiently related to the subject of the appropriation of funds that, even if the premise of the plaintiffs' argument is correct, § 6 is lawful. 6 For the same reason, we need not decide whether G.L. c. 29, § 7L (1988 ed.), would apply to invalidate a nonappropriation-related outside section of a general appropriation act. 7
Each quarter the balance in the State Lottery Fund, after deduction for expenses and prizes, is credited to the Local Aid Fund, established under G.L. c. 29, § 2D (1988 ed.). G.L. c. 10, § 35 (1988 ed.). Under G.L. c. 58, § 18C(a ) (1988 ed.), the State Treasurer quarterly must distribute amounts credited to the Local Aid Fund to cities and towns "without further appropriation." It is thus apparent that, under the General Laws, the Legislature has appropriated the net proceeds of the State lottery to cities and towns through the Local Aid Fund.
Section 6 of St.1989, c. 240, the second paragraph of which is quoted in the margin, 8 if lawful, eliminated the planned automatic distribution of certain lottery funds to cities and towns for fiscal years 1989 and 1990. Under § 6, certain amounts of lottery funds in excess of $306,000,000 in each year are to be treated differently from the manner in which the General Laws provide. In modifying the normal appropriation of lottery funds made by the General Laws, the Legislature engaged in a process that directly concerns the appropriation of funds for local aid. See Slama v. Attorney Gen., 384 Mass. 620, 625-626, 428 N.E.2d 134 (1981), and cases cited; G.L. c. 29, § 1 (1988 ed.), defining "appropriation" for the purpose of G.L. c. 29; G.L. c. 29, § 7L, which, in turn, includes local aid within the permissible range of subjects to be included in an appropriation law. Cf. Massachusetts Coalition for the Homeless v. Secretary of Human Servs., 400 Mass. 806, 816-817, 511 N.E.2d 603 (1987) (). Because § 6 relates to an appropriation, we need not consider the plaintiffs' constitutional and statutory challenges to § 6. 9
We do not understand the defendants to argue that the plaintiffs lack standing to challenge § 6 on the ground that § 6 violates § 7L. The defendants do challenge the plaintiffs' standing to argue that § 6 could not constitutionally replace the local aid distribution procedure described in the General Laws. We have answered this challenge unfavorably to the plaintiffs, and, therefore, the standing question (which is not a jurisdictional one) need not be resolved. 10
3. The plaintiffs urge us,...
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