Can Maryland's legislature force a state agency to transfer a piece of land by attaching a condition to an unrelated budget appropriation?

Plain-English summary

Maryland's Secretary of General Services asked the Attorney General, in 1989, about a condition the General Assembly had attached to a $23 million budget appropriation for a new state office complex in Crownsville: a requirement that the Department of Health and Mental Hygiene transfer a separate parcel, Whitney's Landing Farm, to the Department of Natural Resources for park use. The Attorney General concluded that this condition was unconstitutional "legislating in the budget," because the farm property was about five miles from the office complex site and had no real connection to that appropriation, so under the constitutional rule limiting what the General Assembly can accomplish through budget conditions, the transfer requirement was merely directory advice to the agencies involved, not a legally binding mandate.

Currency note

This opinion was issued in June 1989 and analyzed a specific one-year budget condition in the fiscal year 1990 budget bill, Chapter 14 (House Bill 350) of the Laws of Maryland 1989. The underlying dispute over Whitney's Landing Farm was resolved or superseded long ago, and the constitutional doctrine discussed here has continued to develop in later Maryland case law. This page is a historical record of how the Attorney General applied the "legislating in the budget" doctrine to one specific 1989 budget rider. It describes what the opinion concluded at the time and is not a statement of current Maryland constitutional or budget law. Verify current law directly before relying on anything here.

Common questions

Could Maryland's legislature order a land transfer by attaching a condition to a completely different construction project's budget line?
No, according to this opinion. The Attorney General concluded that a budget condition must be "directly related to the expenditure of the sum appropriated," and a farm parcel five miles from the funded office complex, with no real connection to that project, failed that test, making the condition merely directory rather than binding.

What happened to Whitney's Landing Farm as a result of this opinion?
The opinion did not order any particular outcome for the farm. It concluded only that the General Assembly's transfer condition was not legally enforceable, so the Department of Health and Mental Hygiene was not bound to complete the transfer, though the opinion noted the agencies should still give the legislature's stated wish careful, good-faith consideration.

Background and statutory framework

The fiscal year 1990 budget bill appropriated $23,000,000 for a state office complex in Crownsville and attached several conditions to that appropriation, including one requiring the Department of Health and Mental Hygiene to complete the transfer of Whitney's Landing Farm, a separate parcel it held for Crownsville State Hospital, to the Department of Natural Resources for park and recreation use. The opinion traced the farm's history: Anne Arundel County had been trying since at least 1986 to acquire the property to expand a county park, and had grown frustrated with the pace of the multi-agency transfer process, ultimately prompting the General Assembly to try to force the issue through the Crownsville budget item.

Applying Article III, §52(6) of the Maryland Constitution and Bayne v. Secretary of State, the opinion explained that while the General Assembly may condition or limit the use of appropriated funds, a condition is valid only if it is "directly related to the expenditure of the sum appropriated," does not, in essence, amend substantive legislation, and is effective only for the fiscal year of the appropriation. The opinion found the farm-transfer condition failed the first requirement: the farm was roughly five miles from the office complex site, had no environmental or practical connection to the construction project, and the only link between the two was that the same state department happened to hold both parcels. Drawing on a pair of 1952-53 opinions addressing a similar attempt to force a public-access condition onto an unrelated pier at Solomon's Island (the "Solomon's Steamboat Wharf" opinions), the opinion concluded that the General Assembly was again trying to use a budget appropriation as a vehicle for legislating the status of land unconnected to that appropriation, something the Constitution's separate lawmaking process, including presentment to the Governor for a possible veto, is meant to require instead. Because the condition failed the constitutional test, the opinion concluded it was directory rather than mandatory, while cautioning that a directory condition still deserves the affected agencies' careful, good-faith consideration rather than being simply ignored.

Citations and references

Statutes:

• Article III, §52(6) of the Constitution, the General Assembly's budget-item power and its limits
• Chapter 14 (House Bill 350) of the Laws of Maryland 1989, the fiscal year 1990 budget bill containing the challenged condition
• §10-304(b) of the State Finance and Procurement Article, governing the Board of Public Works' authority to transfer property between executive branch units
• Chapter 15, Laws of Maryland, 1952, the original Solomon's Steamboat Wharf budget condition discussed as precedent
• Chapter 661, Laws of Maryland 1953, the renewed Solomon's Steamboat Wharf budget condition discussed as precedent

Cases:

• Bayne v. Secretary of State, 283 Md. 560, 574, 392 A.2d 560 (1978), the core Maryland precedent setting the "directly related to the expenditure" test for budget conditions
• State v. Burning Tree Club, Inc., 315 Md. 254, 296-97, 554 A.2d 366 (1989), cited for the standards governing severability of an invalid budget condition
• In re James S., 286 Md. 702, 707, 410 A.2d 586 (1980), cited for the principle that a merely directory condition still warrants an agency's good-faith consideration

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1989/Volume74_1989.pdf (this opinion appears at printed pages 53-59 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

BUDGETARY ADMINISTRATION

Constitutional Law - "Legislating In The Budget" - Condition Not
Directly Related To Appropriation Item

June 9, 1989

The Honorable Earl F. Seboda
Secretary of General Services

You have requested our opinion concerning the validity of a

particular condition attached to the appropriation for the construction
of a State office complex in Crownsville. Specifically, you ask about
a condition related to the transfer and subsequent use of the property
known as Whitney's Landing Farm.

For the reasons stated below, we conclude that this condition is

"legislating in the budget" and, hence, is beyond the General
Assembly's constitutional prerogative. Therefore, the condition should
be treated as directory only.

                                I

                     Budget Bill Language

 In the budget bill for fiscal year 1990, Chapter 14 (House Bill 350)

of the Laws of Maryland 1989, the General Assembly appropriated
$23,000,000 to the Board of Public Works, to "[d]esign/build a State
office complex in Crownsville on State-owned land ...." Appropriation
Code 23.05.02.01, item 003. This appropriation was made subject to
several conditions, including the one that prompted your request for an
opinion:

       Further provided that the Department of Health and
       Mental Hygiene shall complete arrangements for the
       transfer of the balance of the Whitney's Landing
       Farm Property located along Evergreen and Sunrise
       Beach roads (not earmarked for use by the Maryland
       Veterans Cemetery) to the Department of Natural
       Resources for use for open space, recreation and
       local community recreation and parks facilities.

 As we understand the facts, the Whitney's Landing Farm property,

although owned by DHMH and used in the past as a source of farm
products for Crownsville State Hospital, is not part of the Hospital
grounds proper and does not lie near any portion of land that was a
potential site for the office building.1 The site chosen for the complex
is located on the hospital grounds, southwest of Route 178. The Farm
property is about five miles away from this site, on the other side of
Route 178.

 The history underlying this budget condition confirms that the

status of the Farm property has for some while been the subject of
public scrutiny, quite apart from the issue of whether a State office
complex should be built at Crownsville. Correspondence dating back
to 1986 reflects the interest of Anne Arundel County in acquiring "that
portion of Whitney's Landing Farm located south of Sunrise Beach
Road comprising approximately one hundred six (106) acres. The
property is being sought to expand [the county's] Arden-on-the-Severn
Park." Letter from Joseph J. McCann, Director of the Anne Arundel
County Recreation and Parks Department, to Secretary of Natural
Resources Torrey C. Brown (September 11, 1986). Judging from later
correspondence, Anne Arundel County officials were frustrated by
delays in the process. That is, DHMH was taking longer than the
county wanted to determine whether the Farm property was surplus
and, if it was, to transfer it to the Department of Natural Resources for
subsequent use as park land. Another letter from Mr. McCann to
Secretary Brown, dated December 2, 1988, reflects the county's
unhappiness over the slow pace:

   At the time that the budget bill was passed, the exact site of the Crownsville

office complex had not finally been determined. In fact, one budget condition
required a consideration of sites other than the grounds of the Crownsville State
Hospital. The condition related to Whitney's Landing Farm was applicable only "if
the building is to be located on the grounds of the Crownsville State Hospital ...."
However, as we understand it, no possible building site was at or near the Farm
property. For this reason, we need not consider whether the validity of the budget
condition is to be assessed as of the time of the budget bill's enactment or as of the
time of site selection.

       For over a year now, the Anne Arundel County
       Recreation and Parks Department has been attempting
       to lease or purchase from the State of Maryland,
       some additional land, known to us as Whitney's
       Landing Farm, for community recreation. While
       your office has been sympathetic, we still are unable
       to report any progress on our efforts. The purpose of
       this letter is to request your personal review of the
       matter so that I may advise County Executive
       Lighthizer and our citizens of your decision on this
       matter. It has been difficult because we have been
       dealing with three separate agencies. Therefore, I am
       hoping this communication will help resolve the
       matter once and for all.2

Apparently the problem was not resolved by the time of the 1989

Session of the General Assembly, for the budget condition in question
reflects a legislative effort, in Mr. McCann's words, to "resolve the
matter once and for all." The appropriation for the Crownsville office
complex, affecting as it did one parcel of DHMH land in the
Crownsville area, was a seemingly apt vehicle for instructing DHMH
to complete the transfer of the Farm property.

                                    II

                      Requirement of Direct
                Relationship to Appropriation Item

Under Article III, §52(6) of the Constitution, the General Assembly

has the power to "strike out or reduce items" related to the Executive
Branch in the annual budget bill. As an adjunct to its power to strike
out or reduce items, the General Assembly also may "condition or limit
the use of money appropriated, or the use of the facility for which the
money is appropriated ...." Bayne v. Secretary of State, 283 Md. 560,
574, 392 A.2d 560 (1978).

The exercise of the authority to condition or limit items of

appropriation is subject to certain restraints, however, lest the General

2
   Copies of this letter were sent to the 33rd District delegation, including to

Senator Cade, a member of the Senate Budget and Taxation Committee.

Assembly engage in impermissible "legislating in the budget." In the
phrasing of the Court of Appeals, the authority may be exercised
"provided the condition or limitation is directly related to the
expenditure of the sum appropriated, does not, in essence, amend
either substantive legislation or administrative rules adopted pursuant
to legislative mandate, and is effective only during the fiscal year for
which the appropriation is made." Bayne, 283 Md. at 574. See 63
Opinions of the Attorney General 60 (1978).

In our view, the condition related to Whitney's Landing Farm does

not satisfy the first of these requirements. It is not "directly related to
the expenditure of the sum appropriated ...,"3

 When the General Assembly appropriated funds for the Crownsville

office building, it certainly had the authority to attach conditions
designed to ameliorate the environmental and other effects of the
project. Indeed, in one respect it did so: The General Assembly
instructed the State Highway Administration to "exert every reasonable
effort to improve road access into the site, minimizing the impact on
local traffic patterns, especially on Crownsville Road and the Generals
Highway (Route 178)." This condition is unquestionably valid.
Likewise, had the General Assembly attached a condition requiring the
preservation of open space around the building or other measures to
protect the immediate vicinity against the adverse effects of the project,
we would not question the condition's validity.

 The Farm property, however, is not the site of the project. It is

not adjacent to it. Instead, it is five miles away. The office complex
project itself has no effect, one way or the other, on the Farm
property. The only link between the farm property and the building
site is that both are now held by DHMH for the use of Crownsville
State Hospital. Although the two are thus not wholly unrelated, in our
view this connection is too attenuated to meet the constitutional
requirement.

 3 In light of this conclusion, we need not and do not consider whether the

condition "in essence, amend[s] substantive legislation," that is, the authority of the
Board of Public Works to transfer property from one unit of the Executive Branch to
another. §10-304(b) of the State Finance and Procurement Article.

In 37 Opinions of the Attorney General 139 (1952), Attorney

General Hammond considered the validity of a condition attached at the
end of the appropriations for the Department of Research and
Education. The condition required that a particular pier at Solomon's
Island, known as the Solomon's Steamboat Wharf, "shall be opened
and held open to general public use and shall not be held or restricted
to the exclusive use of the Department of Research and Education."
Chapter 15, Laws of Maryland, 1952. Attorney General Hammond
concluded that this condition, unrelated to any appropriation for the
Steamboat Wharf, was directory only:

       The Legislature was not appropriating money in 1952
       for the purchase of the Steamboat Wharf, nor was it
       appropriating money specifically for its use. The
       condition the Legislature sought to attach bore no
       reasonable relation to the appropriation or use of the
       money involved as money. If the policy which the
       Legislature sought to establish by the language is one
       which should be a policy of this State, the Legislature
       can pass a law to that effect which would be subject
       to the Governor's veto and the other constitutional
       restrictions which relate to the passage of all laws.
       It cannot make a law in the way it attempted to do in
       the Budget Bill, and thus by-pass the method of law
       making set up in the Constitution.

37 Opinions of the Attorney General at 142.

The next year, the General Assembly sought to achieve the same

result through a similar condition attached to the appropriation for the
Department of Research and Education:

       Provided that no part of this appropriation shall be
       available to the Department of Research and
       Education unless the pier at Solomon's Island
       originally known as the Solomon's Steamboat Wharf
       shall be opened and held open to the general public
       use and shall not be held or restricted to the exclusive
       use of the Department of Research and Education.

Chapter 661, Laws of Maryland 1953. Again, however, the Attorney
General rejected this attempt to use the budget bill as a vehicle for
legislating the status of the pier. Attorney General Rollins wrote:
"[W]e rule that the language seeking to open the Solomon's Steamboat
Wharf to the general public use is ineffective. The Department need
not fulfill the conditions set forth in order to have available to it the
appropriations provided." 38 Opinions of the Attorney General 110,
111 (1953). In another opinion that year, Attorney General Rollins
pointed out the difference between "the attempt to enact general
legislation concealed within the Budget Bill," like the Steamboat Wharf
provisions, "from the valid conditions which the General Assembly
may impose upon the expenditure of moneys appropriated. The line of
demarcation between what is valid and what is invalid is the
determination of whether or not the condition or limitation is directly
related to the expenditure of the appropriation." 38 Opinions of the
Attorney General 112, 113 (1953).4

In the condition related to the Whitney's Landing Farm property,

the General Assembly is attempting to do essentially the same thing as
it sought to do in the conditions concerning the Steamboat Wharf,
legislate the status of a parcel of State-owned land through a condition
in the budget bill, even though there is no appropriation related to that
parcel of land. For the reasons stated in the Steamboat Wharf
opinions, such an attempt is not constitutionally permissible.

 The status of Whitney's Landing Farm is not directly related to the

Crownsville office project. The appropriation item for the office
project was simply a ready vehicle for achieving a legislative solution
to the perceived problem of delay in converting the Farm property to
park use. However laudable this goal, the Constitution does not allow
the budget bill to be used in this manner. Accordingly, the condition

 4
    Attorneys General Finan and Burch later reiterated the principle that a

condition or limitation must be "directly related to the expenditure of the sum
appropriated." 46 Opinions of the Attorney General 13, 15 (1961); 61 Opinions of
the Attorney General 454, 459 (1976); 63 Opinions of the Attorney General 60, 73
(1978).

regarding the Farm property must be regarded as directory, rather than
mandatory.5

                                     Ill

                                Conclusion

In summary, it is our opinion that the budget condition regarding

the transfer of the Whitney's Landing Farm property attached to the
appropriation for the Crownsville office complex is not legally binding.
It should be viewed, instead, as directory only.

                                                 J. Joseph Curran, Jr.
                                                 Attorney General

                                                  Jack Schwartz
                                                  Chief Counsel
                                                    Opinions and Advice

   Although we need not decide the question of severability, there is no indication

that the General Assembly would not have appropriated the funds for the office
building had it known that the condition regarding the Farm property would be
directory rather than the mandatory. See State v. Burning Tree Club, Inc., 315 Md.
254, 296-97, 554 A.2d 366 (1989) (standards for severability).
That the condition is directory does not mean that the agencies may simply ignore
it. In re James S., 286 Md. 702, 707, 410 A.2d 586 (1980); 73 Opinions of the
Attorney General 57, at 64-65 (1988). Rather, they should give it careful, good-faith
consideration.