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 was unconstitutional in Op. 95-6, the Appropriations Committee proposed parallel House and Senate amendments (H-182 and S-102). The amendments replaced the mechanism that would have let the Governor implement statutory changes after legislative inaction with temporary allotment curtailment modeled on 5 M.R.S.A. § 1668. If the Legislature failed to enact alternative legislation achieving equivalent savings within three days, the Governor could curtail allotments to achieve the necessary savings. The AG said the amendments appeared to remove the constitutional problem, while cautioning that the courts could decide differently based on how the authority was used.

The amendments would exempt General Purpose Aid for Local Schools and the Local Government Fund from curtailment under Section D-4. The opinion says the Legislature may specify areas that the Governor cannot curtail.

The opinion addressed three changes.

Section D-4 changes. The amendments remove authority for the Governor to implement proposed changes to state law following three days of legislative inaction. They instead authorize temporary allotment curtailment. The curtailment statute had authorized that power since 1976, and a Kennebec County Superior Court upheld the statute against a constitutional challenge in Butterfield v. Department of Human Services, No. CV-91-29 (Me. Super. Ct., Ken. Cty., Jan. 17, 1991). The appeal became moot before the Law Court ruled. The Superior Court read "equitably" as "fair," rather than requiring equal percentage cuts.

Section D-5 is clarified. The AG had predicted in Op. 95-6 that Section D-5 would likely be constitutional. The amendments clarify that the Legislature would make a lump-sum deappropriation in the biennial budget, after which the Executive would transfer balances and positions to operate with reduced funds.

Express standards added. The amendments add standards to guide the Governor under Section D-5. The AG said those standards would make the provision more defensible in court, although he had predicted it would likely be constitutional without them.

The opinion distinguishes the two curtailment triggers. Under § 1668, the Commissioner of Administrative and Financial Services must give written notice that anticipated income and other available funds will not meet authorized expenditures. Under amended Section D-4, the trigger would be the Legislature’s failure to achieve equivalent savings in three calendar days. The opinion also says curtailment must be equitable and temporary; the Legislature can lift it by later achieving the necessary savings. A 1976 opinion to Governor Longley is attached.

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?

5 M.R.S.A. § 1668 lets the Governor temporarily curtail allotments after written notice from the Commissioner that anticipated income and other available funds will not meet authorized expenditures. The amended Section D-4 would instead trigger on the Legislature’s failure to enact equivalent savings within three days. Under both, curtailment must be equitable and no allotment may be terminated.

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

The proposed amendments explicitly excluded those two accounts from Section D-4 curtailments. A footnote says the Legislature may specify areas that will not be subject to curtailment.

What does "equitably" mean in this context?

The Butterfield Superior Court read "equitably" as "fair," rather than requiring equal percentage cuts. The attached 1976 Brennan opinion said across-the-board cuts could be used but were not required. The 1995 AG cautioned that specific curtailments would depend on the shortfall, statutes, programs and circumstances involved, including any federal requirements.

Could the Legislature reverse the curtailment?

Yes. The opinion says that under amended Section D-4 the Legislature could lift a curtailment at any later time by enacting legislation that achieves the necessary savings.

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

The original D-4 would have let the Governor implement proposed changes to law after legislative inaction. The amendments instead authorize temporary curtailment of allotments. The AG predicted the changed provision would likely be constitutional, while making clear that the final answer could depend on its use.

Background and statutory framework

The amended Section D-4 of LD 1412 drew on 5 M.R.S.A. § 1668, which the opinion says was enacted in 1976 and survived a Superior Court constitutional challenge in Butterfield. The AG assessed the proposed amendments on their face and did not express a policy view on whether the Legislature should enact them. The official PDF omits printed page 2 of each attached amendment, so its full wording is unavailable in this source.

The PDF attaches a January 7, 1976 opinion to Governor Longley. That opinion said the Governor and Executive Council had no inherent power to withhold appropriated funds and could make equitable, temporary curtailments only under the statute then in force.

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

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 1412.1 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 The amendments in question (H-182 and S-102) are identical. It is our understanding that these will be separately offered in each House.

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.2 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 use of the curtailment power is discussed below in further detail.

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 (copy attached).

2 The amendment also makes several other changes to those Sections - to clarify the timetable for legislative action under Section D-4 and to delete language relating to utilization and elimination of vacant positions in Section D-5. We were not involved in the discussions that led to those changes, which do not affect our views as to the validity of those sections.

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 1412.3 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.

3 In our view, it is permissible for the Legislature, in authorizing the Governor to curtail allotments under Section D-4, to specify areas that will not be subject to any curtailment of that section.

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.

Slip op. at 6.4

4 The Butterfield case was appealed to the Law Court but became moot while on appeal because the Legislature acted in the meantime.

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. In the context of the proposed amendments to LD 1412, this means that the Governor can temporarily curtail allotments if the Legislature fails to achieve the necessary savings in the three calendar days provided by Section D-4, but the Legislature can lift the curtailment if it takes action to achieve the necessary savings at any point thereafter.

In connection with the interpretation of "equitably" in the context of curtailment, I would also direct your attention to an opinion written by Attorney General Joseph Brennan to Governor Longley on January 7, 1976, which discusses language similar to 5 M.R.S.A. § 1668 that was contained in the Appropriation bills for 1975. The gist of that opinion is that "equitable" in this context means "fair." Across-the-board curtailments would be permitted but are not required. A copy of this opinion is attached.

Finally, I would add that in curtailing allotments "equitably," the Governor may also find himself constrained in some areas by federal requirements. How curtailment would work in other contexts cannot be precisely determined in the abstract but would depend on the amount of the shortfall, the specific statutes and programs involved, and the specific circumstances existing at the time of the curtailment.

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

Sincerely,

ANDREW KETTERER
Attorney General

AK/rar

-~
~
L.D. 1412
2
DATE: May 2, 1995
(Filing No. S- 102)
4

6 Reproduced and distributed under the direction of the Secretary of the Senate.
8
STATE OF MAINE
10
SENATE
117TH LEGISLATURE
12
FIRST REGULAR SESSION

14
SENATE AMENDMENT "C II to H.P. 1001, L.D. 1412, Bill, "An Act 16 to Make Additional Appropriations and Allocations for the Expenditures of State Government for the Fiscal Year Ending June 18 30, 1995"

20
Amend the bill in Part D by striking out all of sections 4,
5 and 6 and inserting in their place the following:
22
'Sec. D-4. Implementation of task force recommendations by 24 Governor.· The Governor shall review the recommendations of the task force as presented throughout the fiscal year. Nothing in 26 this Part may be construed to constrain the Governor's authority to exercise the powers granted by the Constitution of Maine or 28 statutes to execute the laws of the State.

30
Any recommendation of the task force that requires a change
to the Maine Revised Statutes, a Public Law or a Private and 32 Special Law enacted by the Legislature, except as expressly authorized by section 5 of this Part, and that the Governor seeks 34 to implement requires the following.

36
1. The Governor shall immediately notify the Legislature of
the specific recommendation or recommendations that require 38 legislation to implement; the departments, programs and positions to be affected; and the projected savings and deappropriations 40 required in fiscal year 1995-96 and fiscal year 1996-97.

42
2. After having provided at least 2 weeks' notice to the
President of the Senate and the Speaker of the House, the 44 Governor shall convene the Legislature into special session to address legislation to implement the specific recommendation or 46 recommendations identified by the Governor in subsection 1.
Should the Legislature be in regular session, the Governor shall 48 ~ immediately submit legislation to implement the specific recommendation or recommendations identified by the Governor in 50 subsection 1.

Page 1-LR2374(9)

[The official PDF omits printed page 2 of Senate Amendment S-102.]

SENATE AMENDMENT

~c.- SENATE AMENDMENT 11 11
to H.P. 1001, L.D. 1412
~
(

             2         4.   Integration of   the effective use of· technology        into

state departments, agencies, programs and operations; and 4
5. Achievement of the most effective delivery of services 6 to Maine citizens.

8 Sec. D-6. Appropriation. The following funds are appropriated from the General Fund to carry out the purposes of this Part.
10
1994-95
12
ADMINISTRATIVE AND FINANCIAL
14 SERVICES, DEPARTMENT OF

16 Productivity Realization Task
Force
18
All Other
$250,000
20
Provides for the necessary expenses,
22 including consulting fees, of the Productivity Realization Task Force.
24
LEGISLATURE
26
Legislature
28
Personal Services
($250,000)
30
Provides for the deappropriation of
funds
32 from available balances.

34
TOTAL APPROPRIATIONS
$-0- I

36
FISCAL NOTE
38
This amendment is not expected to have an impact on the 40 · ability of the Governor to achieve the savings proposed in the Governor's proposed "current services" budget.
42

44
STATEMENT OF FACT

46 This amendment addresses the constitutional issues raised in the bill.
48

("
Page 3-LR2374(9)

SENATE AMENDMENT

_/
-y{ ~S·
~

L.D. 1412
2
DATE: 5/2/9 5
(Filing No. H-182 )
4

6 Reproduced and distributed under the direction of the Clerk of the House.
8
STATE OF MAINE
10
HOUSE OF REPRESENTATIVES
117TH LEGISLATURE
12
FIRST REGULAR SESSION

14
HOUSE AMENDMENT .,1)., to H.P. 1001, L.D. 1412, Bill, "An Act
16 to Make Additional Appropriations and Allocations for the
Expenditures of State Government for the Fiscal Year Ending June 18 30, 1995"

20 Amend the bill. in Part D by striking out all of sections 4, 5 and 6 and inserting in their place the following:
22
'Sec. D-4. Implementation of task force recommendations by 24 Governor. The Governor shall review the recommendations of the task force as presented throughout the fiscal year. Nothing in 26 this Part may be construed to constrain the Governor's authority to exercise the powers granted by the Constitution of Maine or 28 statutes to execute the laws of the State.

30 Any recommendation of the task force that requires. a change to the Maine Revised Statutes, a Public Law or a Private and 32 Special Law enacted by the Legislature, except as expressly authorized by section 5 of--this Part, and that the Governor seeks 34 to implement requires the following.

36 1. The Governor shall immediately notify the Legislature of the specific recommendation or recommendations that require 38 legislation to implement; the departments, programs and· positions to be affected; and the projected savings and deappropriations 40 required in fiscal year 1995-96 and fiscal year 1996-97.

42 2. After having provided at least 2 weeks' notice to the President of the Senate and the .Speaker of the House, the 44 Governor shall convene the Legislature into special session to address legislation to implement the specific recommendation or 46 ,. recommendations identified by the Governor in subsection 1.
Should the Legislature be in regular session, the Governor shall 48_ immediately submit legislation to implement the specific recommendation or recommendations identified by the Governor in 50 subsection 1.

(
Page 1-LR2374(10)

[The official PDF omits printed page 2 of House Amendment H-182.]

HOUSE AMENDMENT

. ~c_,.
J)
·HOUSE AMENDMENT 11 11 to H.P. 1001, L.D. 1412
~

2 4. Integration of the effective use of technology into state departments, agencies, programs and operations; and 4
5. Achievement of the most effective delivery of services 6 to Maine citizens.

8 Sec. D-6. Appropriation. The following funds are appropriated from the General Fund to carry out the purposes of this Part.
10
1994-95
12
ADMINISTRATIVE AND FINANCIAL
14 SERVICES, DEPARTMENT OF

16 Productivity Realization Task
Force
18
All Other
$250,000
20
Provides for· the necessary expenses,
22 including consulting fees, of the Productivity Realization Task Force.
24
LEGISLATURE
26
Legislature
28
Personal Services
($250,000)
30
Provides for the deappropriation of funds 32 from available balances.

34
TOTAL APPROPRIATIONS
$-0- I

36
FISCAL NOTE
38
This amendment is not expected to have an impact on the 40 ability of the Governor to achieve the savings proposed in the Governor's proposed "current services" budget.
42

44
STATEMENT OF FACT.

46 This amendment addresses the constitutional issues raised in the bill.
48-

Page 3-LR2374(10)

HOUSE. AMENDMENT

January 7, 1976

Honorable James B. Longley
Governor of Maine
State House
Augusta, Maine 04333
Dear Governor Longley:
Your letter of December 30, 1975, described a fiscal dilemma which the State appears to face today. Briefly stated, anticipated State revenues evidently will not be sufficient to meet appropriated expenditures. You have set forth your intent to meet this problem by asking the Executive Departments to refrain from instituting certain new programs, though funding for these programs has been appropriated by the Legislature, and have asked for our counsel on this matter. In our opinion, the Governor's authority to withhold or reduce allocations of appropriated funds is limited to that authority which has been conferred by statute, and, as such, would not include authority to withhold funds in the manner you have suggested.
The primary source of the Governor's authority is the Constitution, which vests in him the supreme executive power of the State. Article V, Part 1, § 1, Constitution of Maine. One might argue that the executive power includes promotion of sound fiscal policies and, therefore, implies the power to withhold or reduce allocations from appropriated funds. This argument has not been tested by the Maine judiciary, but the same argument, as applied to the President and his subordinates, has been rejected by the Federal courts in several "impoundment" cases. In Sioux Valley Empire Electric Association, Inc. v. Butz, 367 F. Supp. 686 (D.S.D., 1973), a.Federal District Court noted that the President has broad powers, but these do not include the power to nullify Congressional action. In other words, there is no inherent executive power to impound legis- latively mandated funds. The basis for this decision, which would have equal application in Maine, is the constitutional

Hon. James B. Longley
Page 2
January 7, 1976
doctrine of "separation of powers." [See Art. III, §§ 1 and 2 Constitution of Maine]. If the executive determined to withhold appropriated funding from certain programs, it would frustrate the legislative intent that the programs be funded. Art. IV, Part 1, § 1, Constitution of Maine [See also: Guadamuz v. Ash, 368 F. Supp. 1233 (D.D.C., 1973)]. Further, as pointed out in Sioux Valley, an executive impoundment of appropriated funds __ . could be interpreted as displeasure with the programs to be financed, especially when the appropriations were enacted over the executive's veto. In the latter case, such action could be construed as subverting the Legislature's constitutional right to override the Governor's veto, in derogation of the doctrine of "checks and balances. 11 Art. IV, Part 3, § 2 Constitution of · · Maine. In light of the foregoing, it is clear that there is no constitutional authority for withholding or reducing allocations of appropriated funds •.
It should be noted at -this point that the Governor -obviously does have the authority to institute authentic cost-saving programs. The Governor has the constitutional duty to take care that the laws, which include appropriation acts, are faithfully executed. Art. V, Part 1/ § 12,· Constitution of Maine. · This means that he must pro- mote the legislative intent in all cases. If the Legislature has instituted a particular program, it is clear that it intends the purpose of the program to be carried- forward. However, it is also assumed that the Legislature would intend that the program be run as economically as possible. Therefore, the Governor may seek cost-savings in any program, with resultant decreases in allotments, so long as these economies do not detract from per- formance of the program's original purpose as intended by the Legislature. Carrying this logic a step further, there is some authority for the proposition that an Executive Officer may terminate allotments of appropriated funds for an existing program which is no longer performing its function in accord-·· ance with the original legislative intent. Commonwealth of Pennsylvania v. Lynn, 501 F.2d 848 (D.D.c., 1974). However, any executive action performed on this basis would undoubtedly be closely examined.
In the absence of constitutional authority or direction, the Governor's powers in a particular area are limited to those conferred by statute. The statutory direction in the present case is quite clear. Both the Current Service Appropriations Act (P. & S.L. 1975, c. 78) and the Additional Appropriations Act (P. & S.L. 1975, c. 90) included an identical Section 3, which reads:

Hon. James B. Longley
Page 3
January 7, 1976

"Sec. 3. Temporary curtailment of allot- ments. Whenever· ·it. ·appears to the Commissioner of Finance and Administration that the antici- pated income and other available funds of the State will not be sufficient to meet the expenditures authorized by the Legislature, he shall so report to the Governor and
Council and they may temporarily curtail allotments equitably·so that expenditures will not exceed the anticipated income and other available funds." (underlining pro- vided)
This section, which is incorporated in most general appropriations bills, acquired its present wording in 1967 with the addition of the two words underlined in the quotation. [P. & S.L. 1967, c. 154]. These words were added during a redrafting of the bill by the Committee on Appropriations and Financial Affairs [Compare L.D. 70 with L.D. 1575]. The intent of the resulting legislation was explained in the Senate as follows:
"If our actual experience during the next biennium indicates that the State revenues are not meeting these anticipated [revenue]. estimates it· is the intent of this language that upon the determination that such a situation exists the-Legislature shall be called in session as soon as possible to deal with the problem. It is also the intent of this section that there shall be no arbitrary cuts in specified departments in order to bal- ance the budget if such revenues are not anti- cipated." Legislative Record, Senate, April 11, 1967, p. 1118.
It is reasonable to assume that the legislative intent has not changed since 1967, considering the fact- that succeeding Legis- latures have used this section verbatim. Therefore, the statutory. gubernatorial authority and the procedures to be used in the present case are clear.
First, the Governor has no power, acting alone, to curtail allotments. The Commissioner of Finance and Administration must determine that anticipated State income and other available funds will not be sufficient to meet authorized expenditures, and he.
··· must report this fact to the Governor and Council. Then, the Governor and Council have the discretionary authority to

Hon. James B. Longley
Page 4
January 7, 1976

temporarily curtail allotments of appropriated funds on an equitable basis among the departments, but only until such time as the Legislature can meet and correct the problem through the· exercise of their legislative power. It is anticipated· that the Legislature would meet for this purpose as soon as possible.
The Governor and Council, after receiving the report of .the Commissioner of Finance and Administration, .would have flexibility in determining how to "equitably" curtail allotments. In construing a statute a word should be given effect according to its common meaning [Canal National Bank of Portland v. Bailey, 51 A.2d 482 (Me., 1947)], unless the word has acquired a special .meaning through judicial definition [Acheson v. Johnson, 86 A.2d 628 (Me., 1952) J • In the case of the word "equitably," it appears that both the common and legal definitions are very close·. Webster's New International Dictionary (2nd Ed.) gives ... the common meaning as "justly; fairly; impartially." The same definition was judicially adopted in Pearce v. Wisdom, 165 S.E. 574 {Ga., 1932), which also noted that the word gave flexibility to. the defendant school superintendent who was to distribute tax funds "equitably. 11 [See also Gericke v. City of Philadelphia, 44 A.2d 233, 236 (Pa., 1945) for proposition · that the word con- fers an element of discretion]. Further, Black's Law Dictionary (Revised Fourth Edition) defines the adjective form, "equitable, 11

as: "Just, fair. and right, in consideration of the facts and circumstances of the individual case." Any curtailment plan utilized by the Governor and Council would have to fall within these definitions, but latitude "is still possible. For example, the Governor and Council could make across-the-board cuts which would affect each agency and program equally. Alternatively, each department head might be asked to determine what programs or governmental functions could most fairly stand curtailments, consistent with the legislative intent, and the amounts con- cerned. These examples are _not exhaustive 1 but it is clear that a complete withholding of funds for a program mandated by the Legislature would not be an alternative available to the Governor and Counc~l under current law. Indeed, complete withholding of funds would, in effect, amount to an item veto, a power which the Governor of the State of Maine does not possess under present law.
There are two additional points which should be discussed in light of the fact that your letter primarily concerned new programs funded by the Additional Appropriations Act (P. & s. L. 1975, c. 90). First, although.this Act does involve some new programs, the "new or expanded programs II prohibition of section 9 of that Act would not apply because all of the programs contained

Hon. James B. Longley
Page 5
January 7, 1976

therein have been reviewed by the Budget Office and the Legis- lature has made funds available for their use by appropriations in the Act. Second, the foregoing discussion concerning the
. Governor .-s statutory authority would apply equally to both the Current Service and Additional Appropriations Acts since the identical provision for temporary curtailment of allotments is found in both .Acts. In addition, this statutory authority is also applicable to all other appropriations measures, as·pro-. vided in the last introductory section of both Acts.
In summary, the Governor has certain powers·conferred on him by statute which he may exercise, together with the Executive Council, in the situation where ..--estimated State revenues will not be sufficient to meet authorized expenditures. These powers to temporarily curtail allotments on.an equitable basis pending . legislative action, allow the Governor certain flexibility, but do not include withholding all funds· from new, legislatively- approved programs. The Governor has no constitutional_powers in this area to augment those conferred by statute' though cost'-= saving programs which further legislative intent are not prohibited. Therefore, the Governor does not have the power to withhold funds in the manner you have suggested, ·for such action is not author- ized by statute and would violate the constitutional doctrine of "separation of powers II and "checks and balances. 11 Very truly yours,

JOSEPH E. BRENNAN
Attorney General
JEB/ec