ALLIANCE, ASCME/SEIU, AFL-CIO & another [Note 1] vs. COMMONWEALTH & others. [Note 2]

FRIED, J. The plaintiffs, who represent certain State employees, seek a declaratory judgment that the Governor's disapproval of a clause requiring not less than thirty-nine full-time equivalent (FTE) positions as part of a budget item providing funding for early intervention services to certain children under the age of three and their families is an invalid exercise of the Governor's authority. The case is remanded to the single justice to enter an order dismissing the action for lack of jurisdiction.

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I

In 1995 the Legislature enacted a bill, House No. 5100, containing the budget for the Commonwealth's fiscal year 1996. Section 2, Line Item 4513-1000, read:

"For the administration of the division of family health services, including a program of maternal and child health in addition to any federal funds received for this program; . . . provided further, that not less than [$18,235,639] shall be expended for early intervention services; . . . provided further, that the [Department of Public Health shall fund not less than thirty-nine full time equivalent employees for the early intervention program . . . provided further, that notwithstanding any general or special law to the contrary, the funds made available herein shall be the only state funds available for said early intervention program . . ." (emphasis supplied).

Shortly thereafter, the Governor exercised his power under art. 63, s. 5, [Note 3] of the Massachusetts Constitution, as amended by art. 90, s. [Note 4], of the Amendments, to disapprove the italicized portion of this bill.4 See St. 1995, c. 38.

The plaintiffs brought a complaint before a single justice of this court, seeking a declaration that the Governor's disapproval

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of the italicized language fell outside his powers under the Constitution, and was therefore without effect. The Attorney General agrees that the Governor exceeded his authority by disapproving a legislative provision that was not separable from its line item, and suggests that, if the Governor wished to eliminate the FTE language, he was required to disapprove the provision's corresponding appropriation, either by disapproving "(a) the amount the line item language earmarks for the early intervention program . . . together with all the line item language relating to that program, or else (b) the whole of line item 4513-1000, including all language and dollar amounts." On request by the parties, the single justice reserved and reported this matter to the full court.

II

We must first decide if we have jurisdiction to grant a declaration. General Laws c. 231A, s. 1, states:

"The supreme judicial court, the superior court, the land court and the probate courts, within their respective jurisdictions, may on appropriate proceedings make binding declarations of right, duty, status and other legal relations sought thereby, either before or after a breach or violation thereof has occurred in any case in which an actual controversy has arisen and is specifically set forth in the pleadings and whether any consequential judgment or relief is or could be claimed at law or in equity or not; and such proceeding shall not be open to objection on the ground that a merely declaratory judgment or decree is sought thereby and such declaration, when made, shall have the force and effect of a final judgment or decree and be reviewable as such. "

Section 2 goes on to state that:

"The procedure under section one may be used to secure determinations of right, duty, status or other legal relations . . . provided, however, that this section shall not apply to the governor and council or the legislative and judicial departments. . . . "

It is a predicate of jurisdiction under c. 231A, s. 1, that "an actual controversy ha[ve] arisen." Although a disagreement

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certainly exists between the plaintiffs and the Attorney General on one hand, and the Governor on the other, we have always understood the term controversy to mean more than such a disagreement. We have consistently held that there must be an actual controversy between the parties. [Note 5] Assessors of Edgartown v. Commissioner of Revenue, 379 Mass. 841, 845 (1980); District Attorney for the Hampden Dist. v. Grucci, 384 Mass. 525, 527 (1981). The Governor is not a party to this suit, nor by virtue of G. L. c. 231A, s. 2, could he be made a party. See Milton v. Commonwealth, 416 Mass. 471, 475 & n.5 (1993). The plaintiffs have cited as defendants in this suit the Commonwealth, the Secretary of Administration and Finance, the Department of Public Health, and the Commissioner of Public Health. For purposes of an action of this sort "the Commonwealth" is an anomalous designation, and we take it to add nothing to the list of those others the plaintiffs designate as defendants. In contrast, we have allowed declaratory judgment actions against such executive officers and have not applied the bar of G. L. c. 231A, s. 2. See Barnes v. Secretary of Admin., 411 Mass. 822 (1992). The Secretary of Administration and Finance, the Department of Public Health, and the Commissioner of Public Health, however, may all appear in court only as represented by the Attorney General. See Secretary of Admin. & Fin. v. Attorney Gen., 367 Mass. 154 (1975). If the Attorney General takes the position, as he has here, that he agrees with the plaintiffs and that he will not defend the action, either on his own account or by appointing a special assistant attorney general to defend the action on behalf of the named executive officer, id. at 165 n.8, the constitutional and statutory position of the

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Attorney General [Note 6] carries the implication that those parties have simply declined, through their attorney, to defend. As a result, there is no "controversy between the parties" before the court, as our reading of the declaratory judgment statute demands. [Note 7] Nor is this jurisdictional defect cured by making the Governor -- or any of the named defendants Ú- an amicus curiae, for an amicus curiae is not a party and cannot create the kind of adversity that we require. See generally Mass. R. A. P. 17, 365 Mass. 864 (1974).

We conclude, therefore, that "we must put aside the natural urge to proceed directly to the merits of [an] important dispute

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and to 'settle' it for the sake of convenience and efficiency," Raines v. Byrd, 65 U.S.L.W. 4705 (No. 96-1671, slip op. at 8 [U.S. Supreme Court, June 26, 1997]), where there is no proper jurisdictional basis for our proceeding to the merits. Nor must the question the plaintiffs and the Governor seek to have resolved necessarily remain unanswered. The Legislature or the Governor is entitled to "require" an advisory opinion of the Justices pursuant to Part II, c. 3, art. 2, of our Constitution, as amended by art. 85 of the Amendments, as has been done in the case of similar controversies many times before. See, e.g., Opinion of the Justices, 411 Mass. 1201, 1202 (1991); Answer of the Justices, 406 Mass. 1220, 1224 (1989); Opinion of the Justices, 384 Mass. 828 (1981); Opinions of the Justices, 384 Mass. 820 (1981); Opinion of the Justices, 294 Mass. 616 (1936). [Note 8]

The case is remanded to the single justice to enter an order dismissing the complaint for lack of jurisdiction.

So ordered.