Do the proposed amendments to LD 1412's Section D-4 fix the constitutional problem flagged in Op. 95-6?

Plain-English summary

A day after the AG advised that LD 1412's Section D-4 (implement-by-inaction) was unconstitutional in Op. 95-6, the Appropriations Committee proposed parallel House and Senate amendments (H-182 and S-102) to fix the problem. The amendments scrapped the implement-by-inaction mechanism and replaced it with a tie-in to the Governor's existing temporary-curtailment-of-allotment power under 5 M.R.S.A. § 1668. If the Legislature failed to enact alternative legislation achieving the required savings within three days, the Governor could invoke § 1668 to curtail allotments and bring expenditures in line with available revenue.

Two important carve-outs: the amendments excluded General Purpose Aid for Local Schools and the Local Government Fund from any curtailment under Section D-4. Both are major sources of state aid to localities, and excluding them protected the most politically sensitive lines of state spending from gubernatorial curtailment.

The AG approved the fix in three respects.

The implement-by-inaction problem is gone. The Governor is no longer authorized to change Maine law unilaterally. The only authority he gets from Section D-4 (as amended) is the curtailment of allotments, which the Legislature has authorized since 1976 and which a Kennebec County Superior Court upheld in Butterfield v. Department of Human Services, No. CV-91-29 (Me. Super. Ct., Ken. Cty., Jan. 17, 1991). That case construed "equitably" in § 1668 to mean "fair," not strict mathematical equality, giving the Governor flexibility in how to allocate the curtailment.

Section D-5 is clarified. Section D-5 was already constitutional in the AG's view (per Op. 95-6), but the amendments tighten the language to make the Section's logic clearer: the Legislature exercises its appropriation power via lump-sum deappropriation in the biennial budget, and the Executive gets the managerial authority to transfer balances and positions accordingly.

Express standards added. The amendments also add explicit standards to guide the Governor's exercise of Section D-5 authority. The AG had concluded the implicit standards from Section D-1 were sufficient in Op. 95-6, but express standards make Section D-5 even more defensible in any future court challenge.

The opinion also walks through how curtailment works in detail (the Commissioner of Administrative and Financial Services must give written notice that anticipated income will not meet authorized expenditures; the Governor may then curtail allotments equitably; the Legislature can lift the curtailment at any time by passing alternative legislation). The AG attached the 1976 Brennan opinion to Governor Longley, which had analyzed § 1668 against the executive impoundment cases and concluded that the Governor's authority to curtail spending was limited to what § 1668 authorized.

Currency note

This opinion was issued in 1995. 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.

Common questions

What is the curtailment-of-allotment power?

A statutory mechanism in 5 M.R.S.A. § 1668 that lets the Governor temporarily reduce agency allotments below the appropriated level when anticipated revenue will not be sufficient to meet authorized expenditures. The reductions must be "equitable" and may not terminate any allotment outright.

Why are General Purpose Aid for Local Schools and the Local Government Fund carved out?

Politically, those are the largest single line items of state aid to localities. Letting the Governor curtail school aid or local-government revenue sharing would shift the budget pain directly onto cities, towns, and school districts. Excluding them keeps the curtailment confined to operational state-agency spending, where the Executive Branch has the most managerial flexibility.

What does "equitably" mean in this context?

The Butterfield Superior Court read "equitably" as "fair," not as strict mathematical equality. That gives the Governor flexibility to allocate the curtailment among programs based on relative impact. Across-the-board cuts are permitted but not required; selective cuts targeting less essential programs are also permitted, so long as the cuts are fair.

Could the Legislature reverse the curtailment?

Yes, at any time. § 1668 conditions the curtailment on the Commissioner's finding that revenue is insufficient. If the Legislature passes alternative legislation (raising revenue, deappropriating elsewhere, or otherwise balancing the budget), the curtailment-triggering condition is gone, and the Governor's curtailment authority ends.

Why is the cure structurally different from the original Section D-4?

The original D-4 let the Governor change the law. The cured D-4 only lets the Governor reduce spending under existing law. Changing the law requires the Legislature; reducing spending under § 1668 is already a delegated executive function with constitutional pedigree.

Background and statutory framework

The amended Section D-4 of LD 1412 incorporates 5 M.R.S.A. § 1668, which the opinion notes was originally enacted in 1976 and was successfully defended against constitutional challenge at the Superior Court level in 1991 (Butterfield). The constitutional analysis builds on Op. 95-6: by replacing the implement-by-inaction lawmaking authority with the existing curtailment-of-allotment authority, the amendments stay on the executive side of the lawmaking/execution line.

The opinion also notes that a 1976 opinion to Governor Longley analyzing § 1668 in the impoundment context is attached. Readers who want that analysis of the curtailment power against the federal impoundment cases should consult the attached document directly.

Citations

• 5 M.R.S.A. § 1668 (temporary curtailment of allotments)
• LD 1412, Part D (productivity initiative)
• Senate Amendment S-102 to LD 1412 (proposed cure)
• House Amendment H-182 to LD 1412 (parallel proposed cure)
• Butterfield v. Department of Human Services, No. CV-91-29 (Me. Super. Ct., Ken. Cty., Jan. 17, 1991) (construing "equitably" in § 1668)
• Op. Me. Atty. Gen. 95-6 (May 1, 1995, original LD 1412 review)
• 1976 Brennan opinion to Governor Longley (analyzing § 1668 in the impoundment context, attached to this opinion)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1995/ag_19950502.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative. The PDF also includes the H-182 and S-102 amendment texts and the 1976 Brennan opinion to Governor Longley.

95-7

ANDREW KETTERER
ATTORNEY GENERAL

STATE OF MAINE
DEPARTMENT OF THE ATTORNEY GENERAL
STATE HOUSE STATION 6
AUGUSTA, MAINE 04333

May 2, 1995

The Honorable Dana Hanley
State Senator
State House Station Three
Augusta, Maine 04333

The Honorable George Kerr
State Representative
State House Station Two
Augusta, Maine 04333

Dear Senator Hanley and Representative Kerr:

This is in response to the Appropriation Committee's request for an opinion on the constitutionality of the attached amendments (Nos. H-182 and S-102) to LD 1412, Part D and will confirm the advice I gave orally to the Appropriations Committee yesterday.

In a letter of April 27, 1995 and an opinion of May 1, 1995 to Senator John Cleveland, this Department previously expressed its views with respect to LD 1412, Part D, as it existed prior to the amendment in question. In those documents we expressed our view that the original version of Section D-4 of LD 1412 was unconstitutional.

We have now reviewed the attached proposed amendments to LD 1412. Simply stated, it is our view that these amendments appear to eliminate the constitutional problem discussed in the opinion we rendered to Senator Cleveland.

1. Proposed Amendments to Sections D-4 and D-5

The attached amendments change Sections D-4 and D-5 of LD 1412 in three respects that bear on our opinion of the validity of those sections. First, and most importantly, they eliminate the provision in Section D-4(3) whereby the Governor could implement proposed amendments to state law if the Legislature failed to act within three days. Instead, they provide that, if within the three day period the Legislature does not enact alternative legislation achieving equivalent savings or fails to act at all, the Governor can exercise the temporary curtailment of allotment power that is already contained in 5 M.R.S.A. § 1668 in order to achieve the necessary savings. The amendments would exempt the General Purpose Aid for Local Schools Program and the Local Government Fund from any curtailment under Section D-4. We believe that the attached amendments to Section D-4 of LD 1412 would solve the constitutional problem that now exists with the current version of LD 1412. In this connection, we note that the curtailment of allotment power contained in 5 M.R.S.A. § 1668 was originally enacted in 1976 and was successfully defended against a constitutional challenge at the Superior Court level in 1991. In our view, legislation authorizing the Governor to use the curtailment power under Section D-4 of LD 1412 would be likely to be found to be constitutional as well.

The remaining two changes effected by the amendments to LD 1412 that are relevant to the issue of the validity of Part D involve the language of Section D-5. The first of these changes clarifies that the Governor's authority to transfer positions and appropriation balances is designed to follow a lump sum deappropriation to be made by the Legislature in the 1996-97 biennial budget. This is helpful in demonstrating that the scheme contemplated by Section D-5 is that the Legislature will exercise its appropriation power via a lump sum deappropriation and that the Executive Branch will then have the managerial authority to transfer funds and positions as required to operate the government in light of the reduced funds available. See May 1, 1995 opinion to Senator Cleveland at pp. 4-5.

The attached amendments would also provide express standards to guide the exercise of the Governor's authority under Section D-5. In our May 1, 1995 opinion to Senator Cleveland, we expressed the view that Section D-5 would likely be found to be constitutional even without the inclusion of such express standards. The addition of such standards will provide further guidance for the exercise of gubernatorial authority under Section D-5 and will also make Section D-5 that much more defensible in any court challenge.

In expressing our views as to the constitutionality of the proposed amendment to LD 1412, we do not suggest any view as to whether the Legislature should, as a matter of policy, enact LD 1412 with the proposed amendments. That is a matter for the Legislature to decide.

I should also add that in expressing our views of the constitutionality of the proposed amendments to Sections D-4 and D-5 of LD 1412, we are offering a prediction as to how the courts of Maine would rule on the issue, and there is no guarantee as to how the courts would in fact rule. In this connection, our opinion is by necessity limited to an evaluation of the proposed amendments to LD 1412 on their face, while the court's eventual view of the issue may depend in part on how the authority contained in Part D of LD 1412 is exercised.

2. Governor's Authority to Curtail Allotments

In light of the proposed inclusion of the temporary curtailment of allotment power in Section D-4, the Appropriations Committee also asked several questions as to how that power would work in the context of LD 1412. As we see it, there are two differences between the exercise of the curtailment of allotment power under 5 M.R.S.A. § 1668 and under the attached amendments to LD 1412. Under 5 M.R.S.A. § 1668, the Governor's ability to exercise the curtailment power would depend on written notice from the Commissioner of Administrative and Financial Services that anticipated income and other available funds will not be sufficient to meet the expenditures authorized by the Legislature. Under the proposed amendments to LD 1412, the triggering event would be the failure of the Legislature to enact legislation that achieves the same projected savings as the legislation submitted by the Governor within three calendar days under Section D-4(3).

In addition, the amendments to LD 1412 would exempt General Purpose Aid for Local Schools and the Local Government Fund from the Governor's curtailment authority under LD 1412. In all other respects, in our view, the Governor's curtailment authority under LD 1412 would be identical to his authority under the existing provisions of 5 M.R.S.A. § 1668, which require that:

• The Governor must temporarily curtail allotments "equitably so that expenditures will not exceed the anticipated income and other available funds;"
• No allotment may be terminated;
• Any curtailment of allotments "shall, insofar as practicable, be made consistent with the intent of the Legislature" in authorizing the expenditures in question; and
• The Governor must immediately notify the Legislative leadership of the allotments curtailed and the effect of each curtailment on the program so affected.

See 5 M.R.S.A. § 1668.

With respect to the interpretation of the term "equitably" in § 1668, the Superior Court ruled as follows in Butterfield v. Department of Human Services, Docket No. CV-91-29 (Superior Court, Kennebec County, Jan. 17, 1991):

Because of the highly temporary nature of the expenditure curtailment authority which § 1668 extends to the Governor, the directive that such allotment curtailments be imposed 'equitably' is not so vague a standard as to render the statute unconstitutional. Essentially, this statute directs that program cuts must be fair, but need not necessarily be imposed equally by percentage. This recognizes the maxim that there is perhaps no greater unfairness than absolute equality mechanically imposed across a broad spectrum of persons or programs. The term 'equitably' implies making of choices rather than uniform, across the board equality such as would have been directed if the term 'equally' had been used. There is the protection, however, that these cuts 'equitably' imposed cannot be used as a subterfuge to absolutely terminate any program allotment.

In referring to the highly temporary nature of the curtailment, the Court in Butterfield recognized that any curtailment is temporary in the sense that the Legislature, once notified of the curtailment, can enact legislation at any time that achieves the necessary savings and eliminates the problem. Once the Legislature acts, the Governor's curtailment power, which is conditioned on assuring "that expenditures will not exceed anticipated income and other available funds," 5 M.R.S.A. § 1668, will necessarily cease to exist.

I hope this responds to your inquiries. Please feel free to seek further clarification if necessary.

Sincerely,

ANDREW KETTERER
Attorney General

AK/rar