IN THE CASE No. SJC-08677
KELLY BATES & others
vs.
DIRECTOR OF THE OFFICE OF CAMPAIGN AND
POLITICAL FINANCE & another.
MEMORANDUM AND ORDER
In October, 2001, the plaintiffs commenced an action in the Supreme Judicial Court for the county of Suffolk against the Director of the Office of Campaign and Political Finance (director) and the Secretary of the Commonwealth (Secretary) seeking declaratory and injunctive relief. A single justice reserved and reported the matter to the full court on the plaintiffs' complaint, a stipulation in lieu of the defendant's answer, and a statement of agreed facts. Upon consideration of the briefs and argument, the court concludes as follows:
(1) The clean elections law, G. L. c. 55A (clean elections law), was approved by the people under the initiative provision of art. 48, The Initiative, V, § 1, of the Amendments to the Massachusetts Constitution. See St. 1998, c. 395, § 2. The initiative petition also created the clean elections fund, G. L. c. 10, § 42. See St. 1998, c. 395, § 3 (rewriting G. L. c. 10, § 42). The clean elections law was enacted by popular initiative, pursuant to art. 48, which provides that "if a law approved by the people is not repealed, the general court shall raise by taxation or otherwise and shall appropriate such money as may be necessary to carry such law into effect."
(2) The
court concludes that, unless the Legislature has repealed a law that has been
enacted by way of initiative, the Legislature is mandated by art. 48 to raise
by taxation or otherwise and to appropriate such money as may be necessary to
carry the law into effect.
(3)
The clean elections law provides that the distribution of any clean elections
funds is "subject to appropriation," G. L. c. 55A, §
8 (a). General Laws c. 10, § 42,
establishing the clean elections fund, provides, in turn, that amounts credited
to such fund "shall be expended, subject to appropriation, only for the
purposes set forth in [the clean elections law]." G. L. c. 10, §
42. The "subject to appropriation" language contained in G. L.
c. 55A, § 8 (a), and in G. L. c. 10, §
42, was not required to avoid the "specific appropriation" exclusion
of art. 48, and with or without that language the measure is not a
"specific appropriation" under art. 48.
(4)
Nothing in the provisions of the clean elections statutes, including the
language "subject to appropriation" referred to above, relieves the
Legislature of its constitutional duties under art. 48. The clean
elections law has not been repealed. Thus, art. 48 commands that, for as long as
that law remains in effect, the Legislature is constitutionally required to
appropriate the funds necessary to its operation. To date, the Legislature has
not satisfied its constitutional obligation.
In
light of the above, the court will proceed to consider, on an expedited basis,
the relief that is appropriate, including, but not limited to the following:
(i)
whether, in light of the passage of time since the enactment of the clean
elections law and the failure of the Legislature to appropriate funds for the
2002 elections, it is still open to the Legislature to repeal the clean
elections law for this election cycle;
(1)
(ii)
whether, in the absence of a vote to repeal the clean elections law, funds to
carry the law into effect shall be deemed appropriated as matter of law;
(iii)
whether, as suggested by amicus curiae Massachusetts Democratic State
Committee, if the Secretary of Administration and Finance is added as a party,
he would have any power to authorize payments to certified clean elections
candidates;
(iv)
whether an injunction should enter ordering the Secretary of the Commonwealth
from proceeding with any or all elections in the Commonwealth in the absence of
a vote by the Legislature to repeal the clean elections law or to appropriate
funds to carry the law into effect;
(v)
whether the addition of any further parties is necessary for the relief
specified above or otherwise.
The
court invites the parties and any other interested persons to file memoranda
solely on the question of the appropriate relief. The court does not intend
that the above remedies be considered exclusive, and the court invites
proposals of any additional and further remedies as may be appropriate. All
such submissions, each of which shall include a proposed order, shall be filed
on or before 5 P.M. on Friday, February 1, 2002.
An
opinion or opinions shall follow.
|
ENTERED: January 25, 2002 |
By the Court, ________________________ Susan Mellen, Clerk |
COWIN,
J. (dissenting, with whom Spina, J., joins). In my view, the court misconceives
art. 48 and proposes a list of possible remedies, all of which presuppose that
the Legislature has acted improperly. The Legislature has acted within its
constitutional prerogative in refusing to fund the clean elections law, and it
is not for the judicial branch to attempt to override it.
The
plaintiffs have sought an injunction ordering the director to provide public
campaign funds to eligible candidates and barring the Secretary from holding
all future elections until the funds are disbursed to these candidates. In my
opinion, we cannot order the director to disburse funds absent a legislative
appropriation and enjoining future elections is unjustified. The director has
no power to pay out funds, and we have no power to order him to do so, without
a legislative appropriation.
The
court, however, decides that the litigation should continue, perhaps with the
Secretary of Administration and Finance (secretary of A&F) or others as
parties. This implies that other officials are vested with some authority which
the court can order them to exercise and that the problem will thereby be
solved. Clearly, neither the secretary of A&F nor any other executive
official possesses such power because no executive official may spend the
Commonwealth's money without a prior legislative appropriation. Therefore, the
question for decision, which the court today avoids, is whether, absent
legislation to appropriate passed, in the ordinary course, this court has the
power to order an appropriation or to treat the situation as if an appropriation
were in place.
It
is my view that an appropriation is necessary before an executive official is
permitted to spend the Commonwealth's funds. We therefore must determine
whether art. 48 requires the Legislature to appropriate funds and, if the
Legislature fails to perform its obligation in this regard, whether this court
can order the Legislature to appropriate the funds or, in the alternative, deem
there to be an appropriation as a matter of law and order the Treasurer or any
other executive official to spend the Commonwealth's funds.
I
disagree with the court's conclusion that art. 48 requires the Legislature to
either repeal the clean elections law or to appropriate such money as may be
necessary to carry it into effect. Article 48 provides: "[I]f a law
approved by the people is not repealed, the general court shall raise by
taxation or otherwise and shall appropriate such money as may be necessary to
carry such law into effect." Article 48, The Initiative, Part II, § 2.
We must read this provision of art. 48 consistently with the provision that
excludes specific appropriations from the initiative process. See McDuffy
v. Secretary of Executive Office of Educ., 415 Mass. 545, 559 (1993),
quoting Cohen v. Attorney Gen., 357 Mass. 564, 571 (1970)
("the Constitution 'is to be interpreted in the light of the conditions
under which it and its several parts were framed"). Article 48's provision
prohibiting specific appropriations indicates that the drafters intended to keep
the appropriation power with the Legislature and feared placing such power in
the people. During the 1917-1918 Constitutional Convention, one proponent of
the prohibition on specific appropriations stated that the purpose of the
provision is to prevent the people from spending "the money that has been
saved . . . for crises . . . without the calm, deliberate, judicious, fair
scrutiny that is given by a legislative investigation." 2 Debates in the
Constitutional Convention 1917-1918, at 817 (remarks of Mr. Luce).
It
is clear from the debates that the drafters chose to exclude specific
appropriations from the initiative process despite their recognition that such
an exclusion would permit the Legislature to thwart the voters' purposes by
withholding funding for a measure adopted by popular vote. One delegate
cautioned that "if this [provision] is adopted it will be possible to make
absolutely useless any legislation proposed by the initiative and
referendum." 2 Debates, supra at 818 (remarks of Mr. Creamer). The
delegates, however, adopted the provision despite this concern because they
believed that:
"no
Legislature that had received a mandate from the people to put a certain scheme
into effect, and that scheme voted for by a considerable majority of the
people, would dare stand up and say: 'We won't appropriate any money for this
scheme.'" 2 Debates, supra at 822 (remarks of Mr. Churchill).
Thus,
although the drafters believed that political pressures would prevent the
Legislature from withholding funding, they did not believe that art. 48 itself
prevented the Legislature from doing so. The repeal or fund provision was
adopted without any recorded debate. 2 Debates, supra at 948. If the
drafters had intended to negate the effect of the earlier-adopted specific
appropriations prohibition by requiring a choice between funding and repealing,
surely the provision would have been more controversial.
In
addition to reading art. 48 consistently with the specific appropriations
prohibition, we must read art. 48 consistently with the other articles of our
Constitution. McDuffy v. Secretary of Executive Office of Educ., supra
at 559. Article 63 of the Amendments to the Constitution, drafted during the
same constitutional convention as art. 48, serves as further evidence that
language of art. 48 should not be interpreted as requiring that the Legislature
appropriate money to fund laws passed by initiative petition. Article 63 vests
the Legislature with the responsibility for managing the financial affairs of
the Commonwealth, see Opinion of the Justices, 297 Mass. 577, 580
(1937), and provides that "[t]he general court may increase, decrease, add
or omit items in the budget." Article 63, § 3.
This suggests that the provision of art. 48 that the Legislature "shall
appropriate such money as may be necessary to carry such law into effect"
implies "as determined by the legislature," so that the Legislature
bears sole responsibility for determining the amount of appropriation, if any,
that is necessary.
Further,
we must interpret art. 48 consistently with art. 30 of the Massachusetts
Declaration of Rights, which states that the "judicial [branch] shall
never exercise the legislative . . . powers." See Alliance AFSCME/SEIU
v. Secretary of Admin., 413 Mass. 377, 382 (1992) ("The power to
appropriate is exclusively that of the Legislature"). Article 30's
principle of separation of powers prevents the "judiciary [from] substituting
its notions of correct policy for that of a popularly elected
Legislature." Commonwealth v. Leno, 415 Mass. 835, 841
(1993), quoting Commonwealth v. Lammi, 386 Mass. 299, 300 (1982).
The framers of art. 48 were well aware of the limitations imposed by art. 30
and presumably did not enact a provision that would violate its mandate.
Even
if art. 48 requires the Legislature to fund or repeal a law passed by
initiative petition, the language of the clean elections law provides that its
implementation is dependent on a legislative appropriation. The court rewrites
the initiative petition and the resulting statute by ignoring the phrase
"subject to appropriation," although this language indicates that the
provisions of the measure were not intended to be effective without a
legislative appropriation. See Associated Indus. of Mass. v. Secretary
of the Commonwealth, 413 Mass. 1, 7 (1992) ("It is difficult to
imagine how a measure which states that it is 'subject to appropriation' could
have been intended to be an appropriation in and of itself"). See also Gilligan
v. Attorney Gen., 413 Mass. 14, 19-20 (1992) ("the inclusion in the
summary of the phrase 'subject to appropriation by the state Legislature'
accurately and fairly informs voters of the precise contingency
involved").
(2)
I
disagree with the court's conclusion that, even absent the "subject to
appropriation" language, the clean elections law would not constitute a
specific appropriation. A specific appropriation is one that "removes
public monies, and the decision how to spend them, from the control of the
Legislature." Associated Indus. of Mass. v. Secretary of the
Commonwealth, supra at 6-7 (initiative petition establishing excise
tax and creating fund to be used for cleanup and control of hazardous waste did
not violate art. 48 because money in fund was to be used for this purpose
"subject to appropriation"). See Tax Equity Alliance For Mass.,
Inc. v. Commissioner of Revenue, 401 Mass. 310, 315 (1987) ("An
appropriation designates a sum of money to be devoted to some object").
The
clean elections law sets aside money from the public treasury for the
particular purpose of providing funds for candidates who agree to abide by the
law's restrictions. The statute enumerates by formula the exact amounts to be
distributed to clean elections candidates. See G. L. c. 55A, §§ 1,
7, and 8 (a). Once a candidate meets the requirements set out by the
law, the amount of the disbursement is fixed. The clean elections law forces
the State to pay money to candidates when they satisfy certain conditions.
Therefore, the people, rather than the Legislature, directly decide the amounts
of money to be expended. Our Constitution does not permit the people to make
this type of determination.
This
court does not have the power to grant any of the relief suggested. We cannot
order the Legislature to appropriate funds or deem the funds appropriated as
matter of law, and members of the executive branch are powerless to authorize
payments to certified clean elections candidates in the absence of a
legislative appropriation. This result is a consequence of the separation of
governmental powers, a foundational principle of our system with which we
should be reluctant to tamper. The plaintiffs' remedy, as it always is with
political questions, is at the ballot box. If the public is truly concerned
about this issue, it will retaliate in the next election against those they
hold to be responsible for frustrating the public will. If the public does not
care enough about the issue, there will be no such retaliation. See LIMITS
v. President of the Senate, 414 Mass. 31, 35 (1992) ("When the
purpose of art. 48 has been frustrated, the only remedy may come from the
influence of public opinion, expressed ultimately at the ballot box").
1.
The clean elections law applies to all election cycles for Statewide office on
or after November 1, 1998, and to all elections cycles for other State offices
beginning on or after November 1, 2000. G. L. c. 55A, § 18.
2.
The Attorney General's summary for the petition in the instant case provides
"candidates meeting all these requirements would, subject to appropriation
by the Legislature, receive public funding in the primary and general
elections." 1998 Ballot Questions, Attorney General's Summary.