Can Maine pay its district attorneys' traffic-prosecution costs out of the Highway Fund instead of the General Fund?

Plain-English summary

Maine's constitution sets up the Highway Fund as a dedicated account. Money from car-registration fees, gas taxes, and other vehicle-related charges flows into the fund, and Article IX § 19 says it can only be spent on a defined list of purposes: highway construction, highway maintenance, debt service on highway bonds, statutory refunds, and "expense for state enforcement of traffic laws." Any other use is a forbidden diversion.

The Judiciary Committee chairs asked Attorney General Michael Carpenter whether paying district attorneys out of the Highway Fund for the traffic cases they prosecute would fit the "state enforcement of traffic laws" category. He concluded that it would, as long as the Legislature limits the appropriation to the share of each DA's budget actually used for traffic prosecutions.

The AG's reasoning leaned on two earlier opinions (1980 and 1981) about funding the State Police from the Highway Fund. Those opinions had established two rules: traffic enforcement by State Police is plainly covered; and the proportion of the State Police budget actually devoted to traffic enforcement is the constitutional ceiling for Highway Fund support of that agency. The AG saw no principled reason to treat DA-led traffic prosecutions any differently from a state trooper's traffic enforcement activities, since the trooper is often the complaining officer in the DA's case.

The opinion ended with a warning. The Maine Supreme Judicial Court has policed Article IX § 19 strictly, refusing to allow indirect uses of Highway Fund money even when the program had some highway nexus. So if the Legislature went this route, it would need to make a good-faith factual estimate of the traffic-prosecution share of each DA's budget, the same way it had done for State Police funding.

Currency note

This opinion was issued in 1991. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Article IX § 19 of the Maine Constitution dedicates revenues "derived from fees, excises and license taxes relating to registration, operation and use of vehicles on public highways, and to fuels used for the propulsion of such vehicles" to a narrow set of authorized expenditures: administration cost, statutory refunds, debt service for highway construction, the cost of highway and bridge construction and maintenance, and "expense for state enforcement of traffic laws." The section closes with the explicit command that funds "shall not be diverted for any purpose," with one carve-out for excise tax in lieu of personal property tax.

The Supreme Judicial Court has read this dedication strictly. Three justices' advisory opinions cited in this AG opinion (Opinion of the Justices in 1957, 1959, and 1961) refused to allow Highway Fund money for activities that were merely incidentally related to highway construction.

The 1980 and 1981 AG opinions referenced here built on that strict reading. They told the Legislature that if it wanted to fund State Police from the Highway Fund, it had to first determine, by good-faith factual inquiry, what percentage of police activity was traffic enforcement, and could only draw from the Highway Fund up to that share.

The 1991 opinion extends that framework: the constitutional category is "state enforcement of traffic laws," and prosecuting a traffic case is part of that enforcement chain, not a separate function.

Common questions

Why is the Highway Fund constrained at all?
Because Maine voters wrote a dedication clause into Article IX § 19. Gas taxes and registration fees feel like user fees on driving, so the framers tied them to road-related uses. Other states have similar constitutional or statutory dedications.

Could the AG also have said no?
The textual hook is the phrase "expense for state enforcement of traffic laws." Reading that to cover only the cop who pulls you over, and not the prosecutor who takes you to court, is a possible reading. But the AG concluded the chain from stop to prosecution is one enforcement activity and treated prosecution costs as a piece of it.

What did the AG demand from the Legislature in return?
A factual record. The opinion warns that if lawmakers go this route, they have to "make a good faith inquiry and estimate" of the share of each district attorney's budget that is actually attributable to traffic prosecutions. They cannot just sweep general DA costs into the Highway Fund.

What happens to the rest of a DA's budget?
It would still come from the General Fund. The opinion is about a permissible allocation, not a full transfer.

Does this answer apply to municipal DA work?
The opinion addresses Maine's state-funded district attorneys. Local prosecutorial funding for non-state cases would be analyzed separately.

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1991/ag_19910605.pdf

Original opinion text

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

State of Maine
Department of the Attorney General
State House Station 6
Augusta, Maine 04333

June 5, 1991

Senator N. Paul Gauvreau, Chair
Representative Patrick E. Paradis, Chair
Joint Standing Committee on Judiciary
State House Station 115
Augusta, Maine 04333

Dear Senator Gauvreau and Representative Paradis:

You have inquired whether it would be consistent with the provisions of Article IX, Section 19 of the Maine Constitution for the Legislature to appropriate funds from the General Highway Fund to cover the expenses of the District Attorneys' offices in the prosecution of traffic offenses. For the reasons which follow, it is the opinion of this Department that the utilization of the General Highway Fund for this purpose would not be unconstitutional.

Article IX, Section 19 of the Maine Constitution provides:

All revenues derived from fees, excises and license taxes relating to registration, operation and use of vehicles on public highways, and to fuels used for the propulsion of such vehicles shall be expended solely for cost of administration, statutory refunds and adjustments, payment of debts and liabilities incurred in construction and reconstruction of highways and bridges, the cost of construction, reconstruction, maintenance and repair of public highways and bridges under the direction and supervision of a state department having jurisdiction over such highways and bridges and expense for state enforcement of traffic laws and shall not be diverted for any purpose, provided that these limitations shall not apply to revenue from an excise tax on motor vehicles imposed in lieu of personal property tax.

The question which you raise is whether the costs of prosecuting traffic violations by the District Attorneys' offices can be considered an "expense for State enforcement of traffic laws" within the meaning of this provision.

This question is similar to one which was posed to this Department twice before, when it was asked whether the General Highway Fund could be used to fund the expenses of the State Police. In response to those inquiries, the Department indicated that the activities of the State Police in enforcing the State traffic laws clearly fell within the purview of the constitutional provision, and that the General Highway Fund could be used to cover the expenses of the State Police, but only to the extent that those expenses were attributable to such enforcement. Op. Me. Att'y Gen. 81-16; Op. Me. Att'y Gen. 80-41 (copies attached).

There does not appear to be any difference for purposes of the constitutional provision between the activities of the State Police in enforcing the traffic laws of the State and the activities of the District Attorneys' offices in bringing traffic prosecutions, in which the complaining officer may very well be a member of the State Police. That being the case, this Department can see no reason why the General Highway Fund could not be used to fund such expenses.

It should be emphasized, however, that, consistent with the attached prior Opinions of this Department, the constitutional ability of the Legislature to fund the District Attorneys' offices out of the General Highway Fund is limited to that portion of the District Attorneys' budgets which are fairly attributable to traffic law enforcement. Thus, if the Legislature determines to use the General Highway Fund for this purpose, it is constitutionally obligated to make a good faith inquiry and estimate of the portion of the District Attorneys' expenses attributable to this purpose, just as it has done with regard to the budget of the State Police. In making this judgment, the Legislature should be mindful of the fact that the Supreme Judicial Court has on several occasions been quite firm that the General Highway Fund may not be utilized for purposes which are not directly related to those enumerated in Article IX, Section 19. Opinion of the Justices, 157 Me. 104, 110-111 (1961); Opinion of the Justices, 155 Me. 138-139 (1959); Opinion of the Justices, 152 Me. 449, 455-456 (1957).

I hope the foregoing answers your question. Please feel free to reinquire if further clarification is necessary.

Sincerely,

Michael E. Carpenter
Attorney General

MEC: sw

[Attached: Op. Me. Att'y Gen. 80-41 (Feb. 21, 1980) and Op. Me. Att'y Gen. 81-16 (Feb. 11, 1981), both reaffirming the same constitutional limit on Highway Fund use for State Police, discussing P.L. 1977, ch. 423, Part B, § 5 and 23 M.R.S.A. § 1651, and citing Baxter v. Waterville Sewerage District, 146 Me. 211 (1951) and Jones v. Maine State Highway Comm., 238 A.2d 226 (Me. 1968) for the proposition that one Legislature cannot bind another.]