NEW ENGLAND DIVISION OF THE AMERICAN CANCER SOCIETY & others [Note 1] vs. COMMISSIONER OF ADMINISTRATION & others. [Note 2]

GREANEY, J. The plaintiffs commenced this action in the Supreme Judicial Court for the county of Suffolk pursuant to G. L. c. 214, § 1, challenging actions taken by the defendant State officials and by the Acting Governor [Note 3] (Governor), pursuant to G. L. c. 29, § 9C, to reduce allotments for certain expenditures appropriated in the fiscal year 2002 budget for smoking prevention and for cancer and multiple sclerosis detection and treatment initiatives. See St. 2001, c. 177, § 2, line items 4590-0300, 4590-0250, 4513-1115, 4513-1112, 4000-0875. The plaintiffs seek a declaratory judgment stating that the reductions were an improper exercise of the Governor's authority under G. L. c. 29, § 9C, or, in the alternative, that G. L. c. 29, § 9C, constitutes an unconstitutional delegation of legislative authority in violation of the separation of powers principles expressed in art. 30 of the Declaration of Rights to the Massachusetts Constitution. [Note 4] A single justice reserved and reported this case to the full court on a statement of agreed facts. [Note 5] We conclude that the challenged reductions are authorized underG.

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L. c. 29, § 9C, and are constitutional.

On November 21, 2001, the Legislature enacted its fiscal year 2002 general appropriations act. St. 2001, c. 177. The State subsequently experienced a decline in revenues, well beyond expectations, and, on February 5, 2002, the acting Commissioner of Administration (commissioner) informed the Governor that available revenues for fiscal year 2002 would be insufficient to meet authorized expenditures. The projected shortfall was $289 million. Relying on information and recommendations of the fiscal affairs division, [Note 6] the commissioner proposed specific cuts in allotments for specified line-item accounts in the budget, to be made pursuant to the Governor's authority under G. L. c. 29, § 9C, amounting to a total expenditure reduction of $155 million. [Note 7]

General Laws c. 29, § 9C, provides that:

"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 [§ 5B [Note 8]] 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

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under [§ 9B [Note 9]] or he shall submit to the general court specific proposals to raise additional revenues by a total amount equal to such deficiency.

"As an alternative to the submission of such proposals to raise additional revenues and to the extent funds are available, the governor may recommend an appropriation equal to such deficiency from the Commonwealth Stabilization Fund in the manner provided in [§ 2H [Note 10]]."

The Governor responded to the projected budget deficit by directing the commissioner to implement the recommended allotment

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reductions. These reductions affected, among other expenditures, monies that had been appropriated by the Legislature for local health programs dedicated to smoking prevention and cessation, multiple sclerosis services, prostate cancer prevention, and cervical and breast cancer treatment. See St. 2001, c. 177, § 2. The plaintiffs challenge, specifically, allotment reductions made by the Governor for expenditures for the following line items: (1) line item 4590- 0300: smoking prevention and cessation ($50,342,217 appropriated, $5,962,870 reduction); (2) line item 4590-0250: smoking prevention expansion ($37,867,379 appropriated, $10,642,410 reduction); (3) line item 4513-1115: multiple sclerosis programs ($438,700 appropriated, $340,000 reduction); (4) line item 4513-1112: prostate cancer prevention ($3,500,000 appropriated, $2,603,444 reduction); and (5) line item 4000-0875: cervical and breast cancer expansion ($2,824,522 appropriated, $2,824,552 reduction).

1. We consider first the defendants' claim that the plaintiffs lack standing to bring this action. Eight of the plaintiffs are organizations that sponsor, support, or administer tobacco control programs and other cancer-related health initiatives. Several had extended contracts with the Department of Public Health to receive funding for these programs in fiscal year 2002. The record indicates that, as a direct result of the § 9C allotment reductions, they have not received promised funding and have been forced to scale back, or eliminate, their programs. [Note 11] Two plaintiffs, the New England Division of the American Cancer Society and the Massachusetts Association of Health Boards, have member organizations that have been

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similarly affected. See Animal Legal Defense Fund, Inc. v. Fisheries & Wildlife Bd., 416 Mass. 635, 638 n.4 (1993) (recognizing associational standing when members would have standing in own right). [Note 12]

Each of the plaintiff organizations has been "directly and specially" affected by the Governor's action. Brookline v. The Governor, 407 Mass. 377, 384 n.10 (1990). Moreover, because the underlying contracts are (presumably) still in existence, we can infer that, should the monies represented by the § 9C allotment reductions at issue be forthcoming, the promised funding to the plaintiff organizations would be restored. [Note 13] The plaintiffs thus have established not only harm that is fairly traceable to the challenged allotment reductions, but a likely benefit should the contested point be resolved in their favor. That is enough to confer standing in these circumstances. See Mitchell v. Secretary of Admin., 413 Mass. 330, 333 n.7 (1992) (organizations that stand to benefit from increased expenditures have standing to challenge improper transfer from Highway Fund); Barnes v. Secretary of Admin., 411 Mass. 822, 824-825 (1992) (allowing

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organizations committed to assisting homeless to challenge refusal to release funds appropriated by the Legislature). Cf. Alliance, AFSCME/SEIU, AFL-CIO v. The Governor, 427 Mass. 546, 549-550 (1998) (plaintiff unions lacked standing to bring action for mandamus, where no showing that members would be hired, should challenged veto be declared invalid).

2. The plaintiffs maintain that the Governor's allotment reductions were improper uses of her statutory authority under G. L. c. 29, § 9C. Their claim is premised on the language of the statute, which directs the commissioner to notify the Governor when "available revenues . . . will be insufficient to meet all of the expenditures authorized to be made from any fund." The plaintiffs argue that "any fund" means "any [one] fund," and the Governor's authority under § 9C thus extends only to "reduc[ing] allotments" which are derived from that particular fund. Because the challenged allotment reductions were derived from three funds -- the Health Protection Fund, see G. L. c. 29, § 2GG, the Tobacco Settlement Fund, see G. L. c. 29, 2XX, and the General Fund, see G. L. c. 29, § 2 -- that were neither in deficit at the time of the reductions, nor projected to be in deficit by the end of the fiscal year, the plaintiffs assert that the Governor's authority under § 9C to reduce those allotments was not triggered. Accordingly, the plaintiffs urge this court to restore funding for the various health-related initiatives and programs represented by the line items in question.

The defendants respond that the Governor's authority under § 9C is triggered not whenever a deficit is projected for any particular fund, but solely when an over-all budget shortfall is projected for the fiscal year. [Note 14] Once triggered, however, the statute permits selective reductions of allocations for expenditures from all funds made available to State agencies, to the extent of the projected over-all budget deficit. In support of their position, the defendants argue that common usage dictates that the words "any fund" be read to mean "every fund." According to the defendants, this interpretation allows § 9C to work in harmony with related statutes and to reflect the practical reality of how State finances operate. Thus, in the defendants'

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view, the Governor was authorized, under § 9C, to make "difficult spending reductions" in the fiscal year 2002 budget, including those for the challenged line items, to compensate for the projected budget shortfall of $289 million. We are persuaded that this position is the better reasoned of the two.

Aside from the ambiguous reference to "any fund," the language of the statute is specific and direct: the commissioner "shall immediately notify the governor and the house and senate committees on ways and means" of a probable deficiency and, within fifteen days of such notification, the Governor must take one of three actions. She may either (1) "reduce allotments under [§ 9B]"; (2) "submit to the general court specific proposals to raise additional revenues"; or (3) "recommend an appropriation . . . from the Commonwealth Stabilization Fund." [Note 15]

The above mandates are set in motion whenever "available revenues as determined by [the commissioner] . . . under the provisions of [§ 5B]" are projected to be insufficient to meet "all of the expenditures to be made from any fund." Section 5B, in turn, speaks of "total available revenues." The statute does not require the commissioner to determine available revenue on a fund-by-fund basis. [Note 16] See note 8, supra. Further, the number of available sources for revenue is far smaller than the over one hundred funds in existence. Although revised estimates of total available revenues under § 5B would indicate whether sufficient revenues were forthcoming to meet the authorized expenditures to be made from all funds, they simply would not generate a workable comparison with authorized expenditures to be made from any one fund.

Reporting requirements found elsewhere in the statutory scheme also appear to speak unambiguously of a single deficiency to be reported under § 9C. See G. L. c. 29, §§ 9D & 9E. When "any officer" anticipates that Federal, or other,

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funding will be less than previously estimated, § 9D directs the commissioner to "include such decrease in the deficiency, if any, reported under [§ 9C]." Similarly, when it appears to "any officer having charge of any office, department or undertaking that any appropriation therefor will be insufficient to meet all of the expenditures required in the current fiscal year by any provision of law, rule, regulation or order not subject to his control," § 9E directs that such amount be added, by the commissioner, to "any deficiency reported under [§ 9C]." The Legislature could only have intended that these statutes, enacted together in 1976 (St. 1976, c. 283, § 3F), work together as a "harmonious whole," consistent with the settled axiom that "where two or more statutes relate to the same subject matter, they should be construed together so as to constitute a harmonious whole consistent with the legislative purpose." Board of Educ. v. Assessor of Worcester, 368 Mass. 511, 513-514 (1975).

Our conclusion is also supported by general principles under which our State finance system operates. The Commonwealth accounts for its finances through a system of "funds." [Note 17] In addition to three major funds (the General Fund, the Local Aid Fund, and the Highway Fund), there are over one hundred minor funds that have been established by statutes, which generally specify a particular revenue source that is to be credited to the fund and particular objectives for which the credited revenues may be used. [Note 18] At the end of each fiscal year, the comptroller certifies how all types of funds were used and provides a report

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that, for accounting purposes, associates monies appropriated and expenditures made from each fund. See G. L. c. 7A, § 12.

As a matter of cash management and flow, however, the Commonwealth maintains its cash resources in pooled accounts entirely disassociated with any particular fund. See G. L. c. 29, § 23. This system assumes that sufficient funds will exist in the State treasury to cover each allotment made by the Governor pursuant to § 9B. From an accounting standpoint, some funds are routinely in a deficit condition; other funds may vary from having positive to negative balances throughout the year. [Note 19] Still other funds may begin the fiscal year with a negative balance, but the Legislature continues to designate line items in the budget to be further funded from them. So long as the total revenues are adequate to meet expenditures expected to be charged to every fund, a deficiency in any particular fund does not present a fiscal shortfall or crisis situation. [Note 20] As stated by the commissioner in her affidavit, "[t]he [S]tate's overall fiscal health is judged on the net balance of all its funds, not on the balance of any one fund."

If the plaintiffs' interpretation of § 9C is correct, a projected deficit in any fund, even the most minor, could require the Governor's immediate response, in the form of acting to reduce allotments under § 9B; submitting to the Legislature proposals to raise taxes; or recommending to the Legislature an appropriation from the Commonwealth Stabilization Fund equal to the deficiency. The Legislature could not have intended the occurrence of what is, apparently, an ordinary event from an accounting

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standpoint, to be a catalyst for such drastic action. [Note 21] (The plaintiffs even seem to concede that § 9C, as interpreted by them, would be of little practical utility in the absence of an over-all budget deficit.) Historically, § 9C has been implemented only when severe reductions in State revenues have threatened the fiscal stability of the Commonwealth. [Note 22] We conclude that the Governor's authority under G. L. c. 29, § 9C, applies only in circumstances when the total available revenues during a fiscal year will be insufficient to meet all of the State's authorized expenditures. See Brookline v. The Governor, supra at 380. [Note 23] Because § 9C allows the Governor, on notification of such a projected deficiency, to "reduce allotments under [§ 9B]," and contains no restriction as to which allotments, [Note 24] the specific reductions challenged by the plaintiffs were permissible under § 9C. [Note 25]

3. We turn now to the plaintiffs' claim that the above construction

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of G. L. c. 29, § 9C, renders the statute unconstitutional. The plaintiffs assert that the appropriation process is the primary vehicle through which "the Legislature exercises its lawmaking power to accomplish social purposes." Opinion of the Justices, 375 Mass. 827, 832 (1978). They argue, in essence, that our conclusions stated above impermissibly vest in the Governor plenary power to effectively "reallocate over [sixty per cent] [Note 26] of the budget as she sees fit," and "to eliminate entirely programs and services for which the Legislature made explicit provision through the appropriation process." The plaintiffs assert that § 9C thus constitutes an unlawful delegation of the Legislature's authority to appropriate funds in violation of art. 30. We disagree.

We have defined the power of appropriation 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, 766 (1948), quoting State v. Moore, 50 Neb. 88, 96 (1896). It is beyond question that "[t]he power to appropriate money of the Commonwealth is a legislative power. Under the Constitution it can be exercised only by the General Court and in the particular manner prescribed." Opinion of the Justices, 302 Mass. 605, 612 (1939). See Opinion of the Justices, 375 Mass. at 832. It is equally clear, however, that "the activity of spending money is essentially an executive task." Id. at 835. Thus, we speak in abstract terms of separation of powers; in reality, some overlap is inevitable, and may well be desirable. See Chief Admin. Justice of the Trial Court v. Labor Relations Comm'n, 404 Mass. 53, 56 (1989), citing Opinion of the Justices, 365 Mass. 639, 641 (1974); Opinion of the Justices, 375 Mass. at 835; Opinion of the Justices, 302 Mass. at 615. Two key concepts are determinative of our analysis: (1) a statute may not constitutionally allow the Governor to exercise the appropriation power; but (2) a statute may grant the Governor discretion to determine how to spend appropriated funds, or, in

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limited circumstances, to withhold their expenditure. See Opinion of the Justices, 375 Mass. at 835-836; Opinion of the Justices, 369 Mass. 990, 993 (1976); Opinion of the Justices, 302 Mass. at 614-615. Thus, "[a] distinction must be made between the power of the Legislature to control the expenditure of funds in the sense that it determines the purposes for which expenditures may be made, and the power to control the extent of expenditures committed to a particular purpose." Opinion of the Justices, 375 Mass. at 835-836 n.4. We conclude that § 9C is an example of the latter power and constitutes not the legislative power of appropriation, but rather the executive power of expenditure. [Note 27]

Section 9C confers on the Governor neither the authority to set aside money from the treasury to be spent for a particular purpose, nor the authority to direct that any money so appropriated be spent in a manner different from what the Legislature intended. See id. at 834-835 n.2 ("the Governor . . . cannot use funds appropriated for one purpose to augment funds earmarked for a second purpose"). Instead, § 9C permits the Governor to use her executive judgment to reduce public expenditures in a time of true financial emergency. See Opinion of the Justices, 369 Mass. at 993. This obligation conforms to the constitutional requirement for a balanced budget. See art. 63, § 2, of the Amendments to the Massachusetts Constitution, as amended by art. 107 of the Amendments. It reflects a legislative determination that the Commonwealth's need to remain solvent overrides particular statements of social policy contained in those appropriation items subject to allotment under § 9B. It is an expression of the Legislature's recognition that the execu- tive branch has the "detailed and contemporaneous knowledge regarding spending decisions" to enable necessary reductions to be made on an expedited basis, and the Legislature's confidence

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that they will be made in a manner that will not compromise the achievement of underlying legislative purposes and goals. Opinion of the Justices, 375 Mass. at 836.

The probability the Governor might abuse her authority under § 9C to reduce, or eliminate altogether, funding for certain programs based on her own ordering of social priorities, is minimal. "To the contrary, the Governor is bound to apply [her] full energy and resources, in the exercise of [her] best judgment and ability, to ensure that the intended goals of legislation are effectuated." Id. at 834. As has been discussed above, allotment reductions under § 9C are applicable only to appropriations to certain State agencies, as provided in § 9B. In addition, § 9C limits the total amount of allotment reductions to an "amount equal to such [revenue] deficiency." Finally, the Governor can reduce only the allotment; the underlying appropriation remains fully in force to establish an upper limit on what may be spent for that line item, should sufficient revenue be forthcoming. It should not be overlooked either that § 9C requires that the Legislature be put on notice when a projected budget deficit triggers the statute's operation. To the extent that the Legislature chooses, it retains full authority to restore funding to programs affected by § 9C allotment reductions, by enacting legislation to transfer funds from the Commonwealth Stabilization Fund or to raise additional revenues to make up for any budget deficiency. Further, the Legislature may pass "conditions" to items in an appropriation bill, exempting the funds in question from allotment reductions under § 9C. See Opinion of the Justices, 375 Mass. at 834 n.2. The over-all plan effects a balance between the authority of the executive, who is in charge of the day-to-day operations of a considerable sector of State government, and the authority of the Legislature, which generally has the final word in matters of the purse, and which receives notice of the Governor's actions and has the ultimate right to undo anything done by her under the statute.

4. We remand the case to the county court for the entry of a judgment declaring that the Governor's reduction of allotments pursuant to G. L. c. 29, § 9C, was proper and constitutional.

So ordered.