OPINION OF THE JUSTICES TO THE SENATE.

On May 22, 1978, the Justices submitted the following answers to questions propounded to them by the Senate.

To the Honorable the Senate of the Commonwealth of Massachusetts:

The Justices of the Supreme Judicial Court respectfully submit their answers to the questions set forth in an order adopted by the Senate on January 25, 1978, and transmitted

Page 828

to us on February 2, 1978. The order recites the pendency before the Senate of a bill, Senate No. 1311, a copy of which was transmitted with the order.

The order recites in part that "[i]t has become a growing practice for officers, employees, departments and agencies of the executive branch of the government of the commonwealth to refuse to expend or to expend only in part monies appropriated by the General Court for the purposes, objectives and programs enacted by the General Court, thereby obstructing, hindering or preventing the accomplishment of said purposes, objectives and programs."

Senate No. 1311 is entitled, "An Act controlling executive impoundment of appropriated funds." The emergency preamble to the bill declares that "[t]he deferred operation of this act would tend to defeat its purposes, which are to ensure the proper separation of powers between the executive and legislative branches of government, to ensure that the executive branch fully uses appropriations to carry out the purposes for which the appropriations were enacted, to prevent the executive branch from impounding appropriations in ways which obstruct or hinder achieving the purposes for which the appropriations were enacted, and to establish certain express procedures whereby reductions may be made in the expenditure of moneys out of sums appropriated by the general court."

Section 1 of the bill would add a new Section 14A to G. L. c. 29. Subsection (a) of the proposed Section 14A requires that "[a]ll sums appropriated in any item of any act of appropriation shall be expended in full" by all officers and employees of the Commonwealth who have responsibility for the expenditures of appropriated sums. Subsection (e) contains a similar direction. Subsection (a) also provides that no sum shall be expended for any purpose other than that for which it was appropriated. Expenditure of sums less than those appropriated is allowed only as authorized in the other subsections of Section 14A.

Subsections (b), (c), and (d) specify the special procedures that must be followed by officers and employees of the executive

Page 829

branch to propose expenditure of a lesser amount than appropriated. Subsection (b), containing the essence of the plan, requires the Commissioner of Administration (Commissioner) to file a certain special message with the clerks of the House of Representatives and the Senate whenever the Commissioner determines that a full expenditure of appropriated funds will not be required to carry out the purposes, objectives, and programs for which the appropriation was enacted. The special message would have to include among other things, "the amount of the appropriation which the commissioner of administration proposes not to expend" (subsection [b], cl. 2); "the governmental purposes, objectives and programs which the appropriation was enacted to achieve or implement" (subsection [b], cl. 4); "the then-current status of realization or implementation of the purposes, objectives and programs for which the appropriation was enacted" (subsection [b], cl. 5); and "the reasons the commissioner of administration believes that the purposes, objectives and the programs for which the appropriation has been enacted can be met without expending that part of the appropriation which he proposes not to expend" (subsection [b], cl. 6).

If the Commissioner properly has submitted a special message to both branches of the General Court, the requirement of full expenditure imposed by subsections (a) and (e) will not apply, provided that "both branches of the general court shall have passed a resolution approving, in whole or in part, such reduction in expenditure as shall have been recommended by the commissioner of administration in such special message." Proposed G. L. c. 29, Section 14A (e), cl. 2. The resolution must be approved within a certain time period, such period being forty-five days if the Legislature is in session.

Subsection (f) of the proposed Section 14A requires the comptroller to file a special message, as provided in subsections (b), (c), and (d), in the event he has information that the Commissioner, or any head of an administrative or executive office, "has ordered, approved or permitted not fully

Page 830

expending any appropriation(s) and the commissioner of administration has failed to transmit a special message."

Subsection (g) requires heads of administrative and executive offices to submit annual spending plans setting forth monthly rates of expenditure of sums made available by appropriation or otherwise. The spending plans are to be formulated so as to carry out the purposes, objectives, and programs for which such sums were made available.

Subsection (h) provides that any person may file a civil action in the Supreme Judicial Court or the Superior Court to require the full expenditure of appropriations in accordance with the other provisions of proposed Section 14A.

Subsection (i) exempts from the provisions of Section 14A, and G. L. c. 29, Section 9B, "any governing board of institutions of higher education."

Section 2 of the bill would amend G. L. c. 29, by striking out Section 9C, inserted by St. 1976, c. 283, Section 3F, and substituting a new Section 9C. The new section would eliminate the Governor's authority to reduce allotments under G. L. c. 29, Section 9B, where there has been a determination by the Commissioner that revenues will not be sufficient to meet authorized expenditures. It would require the Governor to submit "specific proposals" to the Legislature to raise additional revenues sufficient to offset the expected deficiencies, a course of action provided in the present Section 9C, as an alternative to the exercise of the allotment power.

The questions propounded are:

"1. Does the Governor, the officers, employees, departments or agencies of the executive branch of the government of the commonwealth have the authority, under any provision of the Constitution of the commonwealth, whether by impoundment, allotment or otherwise, to expend, from monies that have been duly appropriated by act of the General Court, amounts less than the amounts so appropriated, such that the provisions of section 14A of chapter 29 of the General Laws,

Page 831

as that section is proposed to be enacted by the Senate Bill No. 1311, would be an unconstitutional infringement upon such authority of the said executive branch?

"2. Is the said section 14A, as that section prescribes a procedure for the reduction of the amounts to be expended from sums duly appropriated by act of the General Court, a constitutionally permissible means for the reduction of such expenditures, it not being provided in the said section 14A that there be any enactment of law by the General Court reducing the sums so appropriated?

"3. Does section 9C of chapter 29 of the General Laws, as that section is proposed to be amended by Senate Bill No. 1311, impose a constitutionally permissible requirement upon the executive branch insofar as it would require the governor and the officers, employees, departments and agencies of the executive branch of the government of the commonwealth to `submit to the General Court specific proposals to raise additional revenues' in amounts equal to certain deficiencies in anticipated revenues?

"4. Is it constitutionally competent for the General Court, under that clause of Article IV of section 1 of chapter 1 of Part the Second of the Constitution of the commonwealth, which empowers it `. . . to make, ordain and establish, all manner of wholesome and reasonable orders, laws, statutes, and ordinances, directions and instructions . . .' to enact legislation regulating the expenditure of appropriations by the General Court by the officers, employees, departments and agencies of the executive branch of the government of the commonwealth and providing civil remedies in the courts of the commonwealth against such officers, employees, departments and agencies for the violation of the regulations so enacted?" [Note 1]

Page 832

1. The First and Fourth Questions -- Executive and Legislative Prerogatives.

The first question propounded requires our consideration of the nature of executive power under the Constitution of the Commonwealth. Because we view this question as a difficult one requiring careful delineations between the prerogatives of the executive and legislative branches of government, it is best to consider the question of executive power raised in the first question in conjunction with the fourth question propounded -- whether the Legislature is constitutionally competent to enact the proposed legislation.

The Constitution grants to the Legislature full power to make laws, consistent with the Constitution, as the Legislature "shall judge to be for the good and welfare of this Commonwealth, and for the government and ordering thereof, and of the subjects of the same, and for the necessary support and defence of the government thereof." Part II, c. 1, Section 1, art. 4. Thus, the power to order social priorities, and to focus the energies of society into the accomplishment of designated objectives or programs is entrusted to the Legislature through the enactment of laws according to prescribed procedures. See Part II, c. 1, Section 1, art. 2, of the Constitution; art. 1 of the Amendments; art. 56 of the Amendments; art. 63, Section 5, of the Amendments. Cf. art. 48 of the Amendments (popular initiative and referendum).

Enactment of appropriation measures provides a crucial means by which the Legislature exercises its lawmaking power to accomplish social purposes. See art. 63, Sections 3, 4, of the Amendments. The power of appropriation has been defined as the authority "to set apart from the public revenue a certain sum of money for a specified object, in such manner that the executive officers of the government are authorized to use that money, and no more, for that object and for no other." Opinion of the Justices, 323 Mass. 764,

Page 833

766 (1948), quoting from State v. Moore, 50 Neb. 88, 96 (1896). See Opinion of the Justices, 373 Mass. 911, 914 (1977). This power of appropriation is exclusively a legislative power, to be exercised only by the Legislature and in the particular manner prescribed under our Constitution. Opinion of the Justices, 302 Mass. 605, 612 (1939). Cf. art. 48, The Initiative, II, Section 2.

It cannot be disputed that the lawmaking power, encompassing the appropriation power, is within the prerogative of the Legislature. However, it is equally clear that it is the constitutional prerogative, as well as duty, of the Governor to execute the laws. The Governor is the "supreme executive magistrate" of the Commonwealth. Part II, c. 2, Section 1, art. 1, of the Constitution of the Commonwealth. The nature of such an office requires that the Governor have authority to use discretion in applying the energies of the executive branch and the resources of the Commonwealth, as such resources are made available by the Legislature, to achieve the purposes or objectives of the laws. The power to execute the laws, constituting the essence of the Governor's constitutional office, must be accorded the same deference as the several specific executive powers enumerated in the Constitution. See Part II, c. 2, Section 1. "[The Governor] has executive powers in the exercise of which the General Court cannot interfere without violating art. 30 of the Declaration of Rights providing that `the legislative department shall never exercise the executive and judicial powers, or either of them. '" Opinion of the Justices, 302 Mass. at 616.

The crucial determination to be made is whether, and to what extent, the act of expending appropriated funds, or refusing to spend the full amount of appropriated funds, may be characterized as the exercise of the Governor's constitutional prerogative to execute the laws. This determination may be facilitated by first stating certain relevant and undisputed principles.

The most important such principle is that it is for the Legislature, and not the executive branch, to determine finally which social objectives or programs are worthy of pursuit.

Page 834

It is not within the Governor's official competence to decide that the objectives of any validly enacted law are unwise and, therefore, that no effort will be made to accomplish such objectives. To the contrary, the Governor is bound to apply his full energy and resources, in the exercise of his best judgment and ability, to ensure that the intended goals of legislation are effectuated.

This decidedly is not to say that the Governor does not have a role to play in determining social goals and priorities. He may propose legislation, and the budget prepared by the Governor forms the basis for the general appropriation bill. Art. 63, Section 3, of the Amendments. The Constitution provides that the Governor may veto any bill or resolve presented to him for his signature, and return it to the Legislature with his written objections or with recommended amendments. The Governor may exercise the veto power because he feels that the proposed legislation is unwise, or for another reason, and a vote of two-thirds of both houses of the General Court will be required to enact the bill notwithstanding the Governor's objections. Part II, c. 1, Section 1, art. 2. Art. 56 of the Amendments. With regard to appropriation bills, the Governor may disapprove or reduce items or parts of items, and thus exercise a selective veto power. Art. 63, Section 5, of the Amendments. Opinion of the Justices, 373 Mass. 911 (1977).

Once a bill has been duly enacted, however, the Governor is obliged to execute the law as it has emerged from the legislative process. He is not free to circumvent that process by withholding funds or otherwise failing to execute the law on the basis of his views regarding the social utility or wisdom of the law. [Note 2] As will be discussed more fully below, such

Page 835

a refusal to expend funds for the purpose of amending or defeating legislative objectives is to be distinguished from the exercise of executive judgment that the full legislative objectives can be accomplished by a lesser expenditure of funds than appropriated. [Note 3]

What we have said about the limits of executive action in the realm of appropriations helps to define those areas that are not in dispute. The difficult area that remains to be canvassed is near the juncture of legislative territory and executive territory; indeed, some overlap may be inevitable. We begin with the observation that the activity of spending money is essentially an executive task. Opinion of the Justices, 369 Mass. 990, 993 (1976). Opinion of the Justices, 302 Mass. at 614-615. It generally may be assumed that in an appropriation bill, "[H]owever minutely appropriations are itemized, some scope is left for the exercise of judgment and discretion by executive or administrative officers or boards in the expenditure of money within the limits of the appropriation." Opinion of the Justices, 302 Mass. at 615. [Note 4]

Page 836

We think there is a constitutional basis for such an assumption, in that the exercise of judgment and discretion in the implementation of legislative policy is necessary to the efficient and effective operation of government. Inasmuch as it is the function of the executive branch to expend funds, it must be implied that the "supreme executive magistrate," as head of one of the three coequal branches of government, is not obliged to spend the money foolishly or needlessly. The executive branch is the organ of government charged with the responsibility of, and is normally the only branch capable of, having detailed and contemporaneous knowledge regarding spending decisions. The constitutional separation of powers and responsibilities, therefore, contemplates that the Governor be allowed some discretion to exercise his judgment not to spend money in a wasteful fashion, provided that he has determined reasonably that such a decision will not compromise the achievement of underlying legislative purposes and goals. See Dwyer v. Commissioner of Ins., ante 227, 237 (1978).

Our discussion of this point would lead us to answer the first part of the first question propounded to us -- whether the Governor [Note 5] has the constitutional prerogative to spend

Page 837

less than the full amount of an appropriation -- in the affirmative. The first question in its entirety, as well as the fourth question, however, requires that we consider whether the provisions of the proposed Section 14A would infringe unconstitutionally on such a prerogative. A blanket requirement of full expenditure would be invalid because it would not distinguish between the situations where, on the one hand, the Governor attempts to substitute his judgment of the merits of a program for that of the Legislature by reducing or eliminating expenditures, and, on the other hand, the Governor makes a reasonable determination that the full legislative purpose can be accomplished by spending less than the legislative forecast or estimate represented by an appropriation. We must now determine whether the resolution mechanism included in proposed Section 14A provides a valid means of accommodating the exercise of executive discretion in appropriate circumstances while giving effect to the legislative purpose of preventing feared abuses by the Governor of the executive spending power. We thus postpone answering the first and fourth questions until we have made a determination of the constitutionality of the resolution mechanism -- the subject of the second question.

2. The Resolution Mechanism of Proposed Section 14A.

Section 14A, if enacted, would be a law regulating the spending activities of the executive branch. Passage by both Houses of the Legislature of resolution under Section 14A (e) would release the executive from the obligation to expend an entire appropriation, an obligation which Section 14A otherwise purports to impose on the executive. The intended effect of such a resolution is the same as if a subsequent law were passed suspending the operation of Section 14A as to a particular appropriation. Another intended effect would be to modify an appropriation bill previously enacted. The crucial difference provided in proposed Section 14A (e), however, is that

Page 838

this section eliminates the Governor's constitutional veto power as to the subsequent "legislation." What this part of the proposed bill attempts to do is to provide an open-ended means of regulating the conduct of members of the executive branch according to the consensus of the Houses of the Legislature as evidenced by resolutions enacted at unspecified times in the future. This would violate Part II, c. 1, Section 1, art. 2, of the Massachusetts Constitution, which provides in part: "No bill or resolve of the senate or house of representatives shall become a law, and have force as such, until it shall have been laid before the governor for his revisal." [Note 6]

The argument has been raised that since, under the scheme of Section 14A, officials of the executive branch would have proposed and supported a reduction, the approval of the Governor could be assumed and the formality of putting the resolution before him for his signature or the exercise of the veto power would be a meaningless gesture. We think the words of the constitutional provision just quoted adequately dispose of this argument. We also note that in a circumstance in which the Governor has proposed a $200,000 reduction and the Houses of the Legislature approve only a $100,000 reduction, the Governor's acquiescence in such a compromise cannot be presumed.

We are now in a position to answer questions 1, 2, and 4. In view of our conclusion that the reduction resolution provision

Page 839

is constitutionally defective, the over-all scheme of the proposed Section 14A is itself rendered unconstitutional. This is so because the resulting blanket prohibition against less than full expenditure eliminates any possible exercise of discretion by the Governor to avoid wasteful expenditures in circumstances where the social purposes of the underlying legislation are not compromised. Moreover, the section is not amenable to a more limited interpretation that would preserve its constitutionality. See Baird v. Attorney Gen., 371 Mass. 741 745 (1977); Commonwealth v. Lamb, 365 Mass. 265, 269 (1974). Proposed Section 14A (b) requires a special message by the Commissioner whenever it is determined "that all or part of any appropriation enacted by the general court . . . will not be required to carry out the full purposes, objectives and programs for which it has been enacted." This special message must contain, among other things, the reasons that the Commissioner "believes that the purposes, objectives and the programs for which the appropriation has been enacted can be met without expending that part of the appropriation which he proposes not to expend" (cl. 6). Subsection (e) reiterates the directive of subsection (a) that the full amount of an appropriation, including any amount which the Commissioner proposes in a special message not to expend, nonetheless shall be expended in accordance with the act of appropriation unless resolutions allowing the reduction are passed. Without a valid mechanism for ultimately allowing the executive branch to exercise discretion where such an exercise of discretion is appropriate, the restrictions on executive action are absolute and therefore cannot stand. The words are unambiguous and their effect cannot be avoided. We therefore answer question 1, "Yes"; question 2, "No"; question 4, "No," to the extent that question 4 is concerned specifically with the particular statutory scheme envisioned by proposed Section 14A. [Note 7]

Page 840

3. The Third Question.

The third question involves Section 2 of Senate No. 1311, which would strike out G. L. c. 29, Section 9C, and insert a new Section 9C. Existing Section 9C, inserted by St. 1976, c. 283, Section 3F, provides: "Whenever, in the opinion of the commissioner of administration, available revenues as determined by him from time to time during any fiscal year under the provisions of section five B will be insufficient to meet all of the expenditures authorized to be made from any fund, whether by appropriation or distribution, he shall immediately notify the governor and the house and senate committees on ways and means of the amount of such probable deficiency of revenue and the governor, within fifteen days of such notification, shall reduce allotments under section nine B or he shall submit to the general court specific proposals to raise additional revenues by a total amount equal to such deficiency" (emphasis added).

Page 841

The new Section 9C would be identical to the existing section except that the italicized language would be deleted. This would effect two changes. First, it would eliminate the Governor's statutory authorization to reduce allotments in response to a revenue deficiency. Second, the alternative response of submitting specific revenue raising proposals to the Legislature would be made mandatory. The third question propounded to us requires that we direct our attention only to the second effected change.

In general terms, a legislative directive to the executive branch does not result in a per se violation of the constitutional requirement of separation of powers. Art. 30 of the Declaration of Rights. "The Legislature, in the exercise of its functions, may pass laws calling for action by the executive department, as it may pass laws calling for action by the judicial department. It is when it attempts to interfere with action taken by the executive department, or the judicial department, under existing laws, and thus to project itself into a field of action which belongs to another department, that art. 30 of the Declaration of Rights is violated." Opinion of the Justices, 302 Mass. 605, 617 (1939), quoting from Opinion of the Justices, 208 Mass. 610, 613 (1911). We do not believe that the obligation to be required of the Governor of submitting specific revenue raising proposals viewed as an abstract proposition imposes an improper burden on the executive branch or impinges on an area of independent operation. To the contrary, the requirement seems generally consistent with the constitutional provision for a balanced budget. Article 63, Section 2, of the Amendments, provides that the Governor shall submit a budget to the Legislature "which shall contain a statement of all proposed expenditures of the commonwealth for the fiscal year, including those already authorized by law, and of all taxes, revenues, loans and other means by which such expenditures shall be defrayed." Section 3 of that Amendment allows the Governor to recommend to the Legislature supplementary budgets "which shall be subject to the same procedure as the original budget." Section 4 requires that any

Page 842

special appropriation bills enacted by the Legislature "provide the specific means for defraying the appropriations therein contained." It is thus appropriate, and consistent with the over-all constitutional scheme, for the Legislature to require the assistance of the executive branch in ensuring that sufficient revenues will be available to avoid deficit spending.

On the other hand, the proposed revision to Section 9C leaves unanswered a number of questions which may be relevant to a determination of the validity of a specific legislative plan which may serve to unduly trample on the prerogatives of the executive branch. We assume that proposed Section 9C is not meant to intrude on the Governor's prerogatives to make administrative allotments within the context of appropriated funds where no revenue deficiency, such as is contemplated by Section 9C, exists. See G. L. c. 29, Section 9B. We assume, also, that when a revenue deficiency occurs, the Governor, rather than requesting additional revenues, may determine (1) that excess funds exist in other areas of governmental activity which may be transferred from one program or part of the executive branch to another by the use of appropriate procedures; or (2) that a request to reduce one or more appropriations is preferable to a request for an additional appropriation. Also, we assume that the proposed Section 9C is not intended to, and would not, interfere with the constitutional prerogatives of the Governor to veto any specific measures voted by the Legislature to raise additional revenues.

In this context we are unable to answer question 3, "yes" or "no."

In summary we answer:

question 1, "Yes";

question 2, "No";

question 3, "unable to answer";

question 4, "No" (but see note 7, supra).

Page 843

The foregoing answers and opinion are submitted by the Chief Justice and the Associate Justices, subscribing hereto on the twenty-second day of May, 1978.

EDWARD F. HENNESSEY

FRANCIS J. QUIRICO

ROBERT BRAUCHER

BENJAMIN KAPLAN

HERBERT P. WILKINS

PAUL J. LIACOS

RUTH I. ABRAMS