COUNTY OF BARNSTABLE & others [Note 1] vs. COMMONWEALTH.

ABRAMS, J. The Commonwealth entered into contracts subject to appropriation with eleven counties and the town of Nantucket for the lease of courthouse facilities and services for fiscal years (FY) 1990 and 1991 pursuant to G. L. c. 29A, Section 4 (1988 ed.). The Legislature did not appropriate full funding for the leases for either year. The counties filed a complaint in the Supreme Judicial Court for Suffolk County pursuant to G. L. c. 211, Section 3 (1988 ed.), requesting us to use our supervisory power to order the Commonwealth to pay the full amount of rent owed or, in the alternative, to require the judiciary to vacate that portion of the space leased for which it has not paid. A single justice denied the relief and transferred the case to the Superior Court. The counties appeal from that order. We affirm. [Note 2] Transfer to the Superior Court permits appropriate amendments to the complaint and further proceedings in which each county may seek to establish its constitutional claim made on behalf of the judiciary. [Note 3]

Prior to 1978, counties bore the cost of providing courthouses in the Commonwealth. See County Comm'rs of Plymouth v. State Superintendent of Bldgs., 383 Mass. 262, 263 (1981). Pursuant to the Court Reorganization Act of 1978, St. 1978, c. 478, the Commonwealth assumed "[a]11 costs of maintenance and operation of the judicial branch." G. L. c. 29A, Section 1 (1988 ed.). The law established a procedure whereby the Commonwealth leases courthouse space

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from the counties. The amount of rent is "equitably established taking into account the cost of maintenance, repairs, utilities and the annual debt service provided or paid by such county." G. L. c. 29A, Section 4. If the parties are unable to agree to the amount of rent, the deputy commissioner of capital planning and operations is to hold a hearing and establish the rent, with a right of appeal to this court. Id.

In May, 1990, the Office of the Chief Administrative Justice of the Trial Court (Trial Court) approved submissions from the counties documenting the cost of maintenance, repairs, utilities, and debt service for the court facilities leased from them. The Trial Court established a final FY 1990 rental amount of $31.4 million for all leased courthouses, $19.7 million of which was owed to the plaintiff counties. At the same time, however, the Trial Court notified the counties that, due to limited legislative appropriations and executive branch budget reductions, the Commonwealth would pay only 68.8% of the approved rent. The counties requested a hearing with the division of capital planning and operations (DCPO) pursuant to c. 29A, Section 4. A hearing officer established the equitable rent at the level of costs approved by the Trial Court. The Chief Administrative Justice then wrote to the Chairs of the Committees on Ways and Means in both the House and the Senate requesting a supplemental appropriation of $9.8 million to cover the 1990 rental deficiency. He also suggested that the Legislature consider either fully funding the courthouse rental accounts in FY 1991 or transferring ownership of the buildings to the Commonwealth. The Legislature did not appropriate a supplemental amount, and the counties involved in this case received $5.7 million less than they were owed under the DCPO's decision.

For FY 1991, the Legislature appropriated $23.7 million for the rental of court facilities. According to a letter from an assistant attorney general, dated November 15, 1990, $12.4 million of those appropriated funds are earmarked for rent to the plaintiff counties. Although the equitable rent for FY 1991 has not yet been established, the assistant attorney general's letter estimated that the plaintiff counties would

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need $21.7 million to run their courthouses in FY 1991, an estimate that the counties accept for purposes of this litigation. The earmarked funds for FY 1991, then, are $9.3 million short of the estimated costs to be incurred. [Note 4]

The plaintiff counties filed this G. L. c. 211, Section 3, complaint against the Commonwealth on September 25, 1990. They contend that they have been placed in the untenable position of being legally bound to continue providing court facilities to the Commonwealth, see Commonwealth v. County of Suffolk, 383 Mass. 286 (1981), without being able to obtain the reimbursement owed them under law. We have stated that "[a]ny lease [entered into pursuant to G. L. c. 29A, Section 4] . . . would be subject to the availability of appropriated funds, and no obligation would be imposed on the Commonwealth in excess of available appropriations, and that fact should be made explicit in any agreement or decision in advance of appropriation. But if the amount of rent were `established' by agreement or by decision of [the DCPO], the parties would be in a position to call the attention of the Legislature to the need and to ask that a specific amount be appropriated." County Comm'rs of Plymouth v. State Superintendent of Bldgs., 383 Mass. 262, 267-268 (1981). The counties maintain that their attempts to pursue the suggested political remedy have been fruitless, and request our intervention to enforce the rental obligation.

Allocation of taxpayer dollars, especially in times of limited fiscal resources, is the quintessential responsibility of the popularly-elected Legislature, not the courts. Where our judicial responsibilities might overlap with political decision-making traditionally undertaken by another branch of government, we must proceed with caution. It may well be, however, that one or more counties are or will become financially incapable of continuing to provide these facilities without adequate State reimbursement. In such circumstances, the legislative

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underfunding of the rental account may threaten the continued viability of the judicial branch of government, and we would be obliged to intervene.

The constitutional establishment of a tripartite form of government carries with it an implied assumption that sufficient funds will be provided to operate all three branches. When the funds provided for the judicial branch are not enough to maintain a minimally adequate court system, the judiciary has the power to order the provision of such funds, with or without legislative appropriation. See O'Coin's, Inc. v. Treasurer of the County of Worcester, 362 Mass. 507 (1972). See S.J.C. Rule 1:05, as appearing in 382 Mass. 704 (1981).

In O'Coin's, a retail appliance store sought a writ of mandamus directing a county to pay an $86 invoice for tapes and a tape recorder requisitioned by a judge of the Superior Court for use during criminal sittings. The county treasurer had refused to make the payment, contending that the judge had no statutory power to commit county funds. We held that, even absent statutory authorization, "a judge may bind a county contractually for expenses reasonably necessary for the operation of [the] court." Id. at 509. We determined that "among the inherent powers possessed by every judge is the power to protect [the] court from impairment resulting from inadequate facilities or a lack of supplies or supporting personnel." Id. at 510. In the case before us, we must decide whether the deficiency of the rental reimbursement presents an appropriate occasion for the exercise of the extraordinary inherent powers set forth in O'Coin's.

Aside from the obvious disparity in the amount of money involved, important differences distinguish O'Coin's from this case. O'Coin's involved a judicial requisition of supplies from a private party, and we determined that the county was obliged to reimburse that party. Here the judicial branch has occupied space owned by the counties, and the counties ask us to order reimbursement from the Commonwealth. Unlike the appliance store in O'Coin's, the counties are subdivisions of the Commonwealth. They are "bounded and organized by

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the Legislature for political purposes and the administration of government. They may be changed at the will of the Legislature . . . ." Boston v. Chelsea, 212 Mass. 127, 129 (1912). Thus, this case involves not the question whether the government is obliged to pay for the constitutionally necessary expenses of the judicial branch, but rather which organizational division of the government has the obligation to do so.

In County Comm'rs of Plymouth, supra at 267, we stated that the courthouse leases "would be subject to the availability of appropriated funds, and no obligation would be imposed on the Commonwealth in excess of available appropriations." Shortly thereafter, in County of Suffolk, supra, we upheld a preliminary injunction restraining the municipal defendants from reducing the existing level of courthouse services. Taken together, these cases establish that the counties' obligation to provide suitable courthouse facilities to the Commonwealth is independent of the Commonwealth's duty to pay rent, so that the obligation continues even when less than full funding is appropriated.

The Legislature set up a plan whereby the Commonwealth would be the primary source of funding for court facilities, but counties would retain secondary responsibility. Thus, following the enactment of the 1978 court reorganization legislation, the Legislature directed that county budgets be decreased "by those amounts appropriated" by the Commonwealth for the costs of county courts (emphasis added). St. 1979, c. 151, Section 3. In requiring a reduction equal to the amounts appropriated rather than to the costs themselves, the Legislature seems to have acknowledged implicitly that the full costs of the courthouses might not be covered by a legislative appropriation. In such cases, the counties could retain funding in their budgets to cover those unreimbursed costs. See County of Suffolk, supra at 289. Therefore, in the absence of full rental reimbursement from the Commonwealth,

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we think the Legislature intended the counties to finance the facilities themselves. [Note 5]

In O'Coin's, we emphasized that "[t]he very conception of inherent power carries with it the implication that its use is for occasions not provided for by established methods. . . . [Only w]hen . . . [established] methods fail and the court shall determine that by observing them the assistance necessary for the due and effective exercise of its own functions cannot be had . . . does occasion arise for the exercise of the inherent power." O'Coin's, supra at 516, quoting State ex rel. Hillis v. Sullivan, 48 Mont. 320, 329 (1913). The counties have not shown that the "established methods" -- the scheme of rental reimbursement from the Commonwealth backed by the residual duties of the counties -- have failed. Their complaint, filed in September, 1990, asserts that "[i]t is anticipated that within the next six months, five counties will become insolvent" as a result of the underpayment. Yet there is no evidence in the record as to the counties' fiscal situations, either as a group or on an individual basis.

O'Coin's further contemplated the exercise of the inherent power only when necessary to protect the court from "impairment." Id. at 510. Only those expenses "reasonably necessary for the operation of [the] court" are to be judicially incurred. See id. at 509. The theoretical underpinnings of O'Coin's make it clear that the "impairment" referred to is an impairment of constitutional proportions. We stated that "implicit in the constitutional grant of judicial power is `authority necessary to the exercise of . . . [that] power'" (emphasis in O'Coin's). Id. at 510, quoting Opinion of the Justices, 279 Mass. 607, 609 (1932). We also observed that the use of inherent judicial power to obtain necessary facilities is not contrary to the doctrine of separation of powers because "[i]t was never intended that any one department, through the exercise of its acknowledged powers, should be able to prevent another department from fulfilling its responsibilities

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to the people under the Constitution." Id. at 511. Thus, the O'Coin's power may only be used to the extent that the facilities and supplies obtained are essential to the fulfilment of the courts' obligations under the Constitution. Compare Woods v. State, 233 Ind. 320, 324 n.3 (1954) (court has authority to order remodeling to provide facilities to segregate juries from witnesses), with Committee for Marion County Bar Ass'n v. County of Marion, Ohio, 162 Ohio St. 345 (1954) (court has no authority to order construction of elevator in courthouse). We have no evidence before us as to the extent to which the facilities currently leased from the counties are "reasonably necessary" within the meaning of O'Coin's. In the absence of such evidence, we will not exercise our inherent power to order the Commonwealth to pay the counties for the use of court facilities in amounts in excess of legislative appropriations.

Because of these extensive gaps in the record, the single justice's order denying G. L. c. 211, Section 3, relief in the county court and transferring this matter to the Superior Court was proper. Transfer will allow the parties to set forth their claims and develop the record more fully, and provide a more appropriate basis for a decision on the possible use of our inherent power or for the granting of some other form of relief.

In the Superior Court, the burden will be on each county to establish that its available resources, combined with the rent appropriated by the Legislature, are insufficient to maintain and service the facilities occupied by the judicial branch at the contract level. Cf. Commonwealth ex rel. Carroll v. Tate, 442 Pa. 45, 55, cert. denied, 402 U.S. 974 (1971). If such an insufficiency is found, it will then be necessary to determine the extent to which the facilities and related services are reasonably necessary to the fulfilment of the court's constitutional duties. This is a determination that is more appropriately made by this court. In aid of these determinations, the counties should provide the relevant information on a county-by-county basis, perhaps on amended, severed complaints.

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The counties carry the burden of proving in the Superior Court that there is no potential source of funding available to them to maintain the courthouse facilities at the contract price. They should submit comprehensive information regarding their budgetary and financial situations. Potential sources of funding to be examined include, but are not limited to, any general unappropriated balance in the county treasury; the Capital Improvement Fund, see G. L. c. 35, Section 28B (i) (1988 ed.); the Reserve Fund, see G. L. c. 35 Section 32 (1988 ed.), see County Comm'rs of Middlesex County v. Superior Court, 371 Mass. 456, 460-461 (1976); the Deeds Excise Fund, see G. L. c. 64D, Sections 11-12 (1988 ed.); possible savings in discretionary areas of the budget; additional borrowing capacity pursuant to G. L. c. 35, Sections 36A-39I (1988 ed.); and additional levy capacity pursuant to G. L. c. 35, Sections 30-31 (1988 ed.). [Note 6] Only if these and other possible resources are inadequate would we consider using our inherent power to grant relief against the Commonwealth. A judge, therefore, should make a factual determination for each county as to whether it has exhausted all available resources and can no longer continue to provide court facilities and services for the judiciary at the contract price.

If the Superior Court makes such a determination for one or more counties, then it will become necessary to determine which expenditures for county facilities and services are essential to the fulfilment of the court's constitutional responsibilities. In connection with this determination, the counties should submit, again on a county-by-county basis and in as much detail as possible, a breakdown of the costs incurred in maintaining each county's various courthouses. The information

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supplied by the counties to the DCPO pursuant to the establishment of the equitable rent may be relevant in this regard.

When the record contains such information, then and only then shall we be in a position to decide whether the level of facilities and service provided for in a county's contract is more than is constitutionally required. [Note 7] If it is, we may decide to relieve that county of its obligation to provide the contract level of facilities and services. At the same time, we may use our inherent power to order the Commonwealth to pay for those reasonably necessary facilities and services that cannot be fully financed by the appropriated rent and available county resources. It is the parties' obligation to ensure that the record is sufficiently developed to permit us to exercise these powers.

In conclusion, oversight of the public fisc is a responsibility that, in the normal scheme of things, is within the Legislature's sole province. In present circumstances, the Legislature implicitly has determined that partial funding for courthouse facilities is to come from the counties. Because county governments exist at the will of the Legislature, it is within the Legislature's powers to do so. We may interfere with the Legislature's action only on proof that its decision results in insufficient provision for the judiciary's constitutionally required needs. We acknowledge that the counties have been placed in a difficult position, and that their financial viability may be at stake. The problem, however, is the creation of the Legislature, and can be relieved by the Legislature. It may be removed prospectively by any county that elects to turn over court facilities to the Commonwealth pursuant to St. 1988, c. 203, Section 18. [Note 8]

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For the foregoing reasons, the single justice's order denying relief and transferring the counties' case to the Superior Court is affirmed. Further proceedings should take place in accordance with this opinion.

So ordered.