Is Maine required to balance its budget, and how broad is the governor's power to cut spending mid-year when revenues fall short?

Plain-English summary

In June 2002, with the state facing a significant General Fund shortfall, Attorney General G. Steven Rowe sent the Governor, Senate President, and House Speaker an overview of the law governing Maine's balanced budget requirement and the governor's curtailment power. The memo functions as guidance for everyone in state government about how the rules work.

The AG made two main points. First, although Maine's Constitution has no clause that uses the words "balanced budget," the strict debt limits in Article IX, § 14 (which capped state-incurred debts and liabilities at $2 million absent a popular vote authorizing bonds) operate as the functional equivalent. The state has to live on its revenues, so the budgeting and appropriation statutes have to contemplate a balanced result. The AG quoted his predecessor's 1983 Opinion 83-8 for the same proposition.

Second, when revenues come up short, 5 M.R.S.A. § 1668 is the statutory pressure valve. Once the Commissioner of Administrative & Financial Services issues a written shortfall report, the governor "may temporarily curtail allotments equitably so that expenditures will not exceed the anticipated income and other available funds." In denying a preliminary injunction against an 80% curtailment of the Maine Child Care Voucher Program, the Superior Court in Butterfield v. Department of Human Services treated § 1668 as a temporary fiscal management device that does not delegate legislative power unconstitutionally. Butterfield read "equitably" as permitting priority-setting choices rather than mandating uniform across-the-board cuts, and held that no program can be permanently terminated through curtailment.

Currency note

This opinion was issued in 2002. 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

Does the Maine Constitution explicitly require a balanced budget?

Not in those words. Article IX, § 14 sharply limits the state's ability to take on debt, which the AG (and Op. Atty. Gen. 83-8 before it) read as functionally requiring the state to operate on a cash basis. Combined with the budget statutes at 5 M.R.S.A. §§ 1663, 1664, and 1666, which contemplate revenues matching expenditures, the practical effect is a balanced budget requirement.

What is the $2 million debt cap in Art. IX, § 14?

The constitution prohibits the Legislature from creating debts or liabilities on behalf of the state that, singly or in the aggregate, exceed $2,000,000 at any one time, except to suppress insurrection, repel invasion, fund wars, or cover temporary loans repayable from taxation within the same fiscal year. Larger bond issues require approval by two-thirds of each house plus a majority of voters at a general or special election.

What is an "allotment" for purposes of § 1668?

Under 5 M.R.S.A. § 1582, appropriations are not available for expenditure until they are "allotted" through the work program process. Title 5, § 1667 requires agencies to spread their appropriations across the four quarters of the fiscal year, broken down by personal services, capital expenditures, and other expenses. The Governor, with the State Budget Officer, reviews and approves these work programs. The curtailment power operates on the quarterly allotments, not the underlying appropriation.

What did the Butterfield court actually decide?

On a motion for a preliminary injunction, Butterfield considered five plaintiff challenges to an 80% curtailment of the Maine Child Care Voucher Program and denied the motion. The court concluded that § 1668 (i) is not an unconstitutional delegation of legislative power because curtailment is temporary and program-restoration belongs to the Legislature; (ii) is not an unconstitutional impoundment because the state must live within its revenues; (iii) requires "equitably" distributed cuts, but "equitably" does not mean "equally" across all programs; (iv) does not allow outright termination of any program; and (v) applies a deferential standard of judicial review because budget priority-setting is committed by the separation-of-powers doctrine to the elected branches.

Can the Legislature override a curtailment?

In effect, yes. Curtailment is temporary. As Butterfield put it, no program can be terminated by curtailment, and any cuts the governor makes can be promptly restored by the Legislature the next time it acts on appropriations.

Background and statutory framework

The AG attached and quoted from several sources: the curtailment statute itself, 5 M.R.S.A. § 1668; the appropriations-and-allotment framework at 5 M.R.S.A. §§ 1582, 1663, 1664, 1666, and 1667; the constitutional debt limit at Me. Const. art. IX, § 14; and the Superior Court's January 17, 1991 decision in Butterfield, written by Justice Alexander. The opinion also referred back to AG Opinion 83-8 (March 2, 1983), which had reached the same conclusion about the Maine Constitution's implicit balanced budget requirement.

As a Superior Court decision, Butterfield is persuasive rather than binding, but the overview memo treated it as the one judicial decision providing guidance on the interpretation and application of § 1668.

Citations

• Me. Const. art. IX, § 14 (debt limit functioning as balanced budget requirement)
• 5 M.R.S.A. § 1668 (governor's curtailment power)
• 5 M.R.S.A. § 1582 (appropriations available only after allotment)
• 5 M.R.S.A. § 1663 (scope of state budget)
• 5 M.R.S.A. § 1664 (budget must show balanced relation between expenditures and revenues)
• 5 M.R.S.A. § 1666 (budget based on estimated needs and anticipated income)
• 5 M.R.S.A. § 1667 (work program and quarterly allotments)
• Butterfield v. Department of Human Services, CV-91-29 (Kenn. Cty., Jan. 17, 1991)
• Op. Atty. Gen. 83-8 (March 2, 1983)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/2002/ag_20020618.pdf

Original opinion text

STATE OF MAINE
DEPARTMENT OF THE ATTORNEY GENERAL
6 State House Station
Augusta, Maine 04333-0006

G. Steven Rowe
Attorney General

June 18, 2002

Hon. Angus S. King, Jr.
Office of the Governor
1 State House Station
Augusta, Maine 04333

Hon. Richard A. Bennett
Office of the President of the Senate
3 State House Station
Augusta, Maine 04333

Hon. Michael V. Saxl
Office of the Speaker of the House of Representatives 2 State House Station Augusta, Maine 04333

Dear Governor King, President Bennett, and Speaker Saxl:

I enclose a memorandum outlining the law governing Maine's balanced budget requirement and the Governor's power of curtailment of allotments. I hope this may be of assistance to you as you consider how best to deal with the substantial revenue shortfall our State is experiencing. If this Office can be of further assistance, please let me know.

Sincerely,

G. Steven Rowe
Attorney General

OVERVIEW OF THE LAW GOVERNING THE BALANCED BUDGET REQUIREMENT AND THE GOVERNOR'S CURTAILMENT POWER

Summary. The curtailment statute provides a short term mechanism to ensure that State government does not overspend its revenues in violation of the constitutional requirement that the budget be balanced, by authorizing the Governor to curtail allotments until the Legislature is able to take action to address revenue shortfalls. The statute has been upheld at the Superior Court level against constitutional challenge in a decision that affords substantial deference to the Governor in his exercise of the curtailment power.

The balanced budget requirement. The requirement that the State budget be balanced originates from the limits imposed on the state's indebtedness by Me. Const. Article IX, § 14. Section 14 prohibits the creation of debts or liabilities on behalf of the State which in the aggregate "at any one time, exceed two million dollars." As noted in Attorney General Opinion 83-8, this provision "guarantees that the State's budget will be balanced and precludes deficit financing." Op. Atty. Gen. 83-8, p. 2.

The Governor's authority to curtail allotments. Under 5 M.R.S.A. § 1668, the Commissioner of Administrative & Financial Services is required to report to the Governor "[w]henever it appears . . . that the anticipated income and other available funds of the State will not be sufficient to meet the expenditures authorized by the Legislature," and to send a copy of that report to the Senate President and Speaker of the House. After receiving the report, "the Governor may temporarily curtail allotments equitably so that expenditures will not exceed the anticipated income and other available funds." This language authorizes (though it does not require) the Governor to curtail allotments in order to bring budgeted expenditures into alignment with anticipated revenues and other income.

Statutory standards for exercise of the curtailment power. Section 1668 imposes two limitations on exercise of the curtailment power: allotment curtailments must be equitable, and no allotment may be terminated by curtailment. The statute also requires that curtailments "insofar as practicable, be made consistent with the intent of the Legislature in authorizing these expenditures."

There is one judicial decision providing guidance from the courts concerning the interpretation and application of § 1668, Butterfield v. Department of Human Services. In that case, the Superior Court upheld an 80% cut to the Maine Child Care Voucher Program which supported child care for children of low income parents who were working or pursuing further education; this cut was imposed by a curtailment order issued by then Governor John McKernan on December 31, 1990. The Court's opinion addressed a number of challenges to both the statute and its application to the Child Care Voucher Program.

a. In rejecting the constitutional claim of improper delegation of legislative power: "[I]t is important to recognize that § 1668 is hardly the statutory equivalent of a constitutional line item veto provision. It is, by its terms, a temporary fiscal management device. It permits the Governor to begin realignment of expenditures to meet reduced revenue projections only between the time when those reduced projections are recognized and the later time when the Legislature is able to act to bring projected revenues and authorized expenditures back into line. This legislation [§ 1668] recognizes that prompt action to curtail expenditures may be necessary once a shortfall of revenues is perceived. This allows the impact of reduced expenditures to be spread over the longest period of time, with consequent lesser disruption than if the same shortfall had to be accommodated in a very short time at the end of the fiscal year." Butterfield opinion, pp. 4-5.

b. On the Legislature's intent in enacting § 1668: "No program can be terminated as a result of this allotment curtailment process and, theoretically, any cuts which the Governor makes in expenditures can be promptly restored by the Legislature. Thus, § 1668 extends to the governor no authority to usurp or displace the Legislature's role in appropriating and expending funds, it simply provides a device to assure responsible fiscal management of revenue shortfalls on a temporary basis, pending legislative review and ultimate legislative control of the expenditure process. See Statement of Fact, Senate document No. S-526, 107th Legislature (1976); 1976 Maine Legislative Record pp. 971-972." Butterfield opinion, pp. 5-6.

c. On what is "equitable": "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." Butterfield opinion, p. 6.

d. In concluding that curtailment of the Child Care Voucher funds was not an unconstitutional impoundment: ". . . there is a constitutional mandate that regardless of amounts of funds appropriated, expenditures may not exceed revenues, as state borrowing authority is severely restricted, Me. Const. Art 9, § 14 . . . [A]uthority which has been provided in § 1668 is simply being utilized to assure, as the Constitution requires, that expenditures do not exceed revenues. Absent the existence of § 1668, it may well be that the executive would have responsibility, on finding no money in the till, to decline to make expenditures not covered by revenues. To do anything else would be violative of the constitutional duty of the executive not to expend funds in excess of revenues." Butterfield opinion, p. 7.

e. On the deferential standard of judicial review: "Where there are entitlements, they can be enforced. But policy choices are more appropriately committed to elected Executive and Legislative political leadership. Courts have only a limited and very deferential review of such choice making and priority setting. Here the court is being invited to supersede the Governor who has overall policy responsibility for all state programs and impose a choice regarding expenditure of a finite amount of funds based on a specific petition supported by a compelling policy argument. By the separation of powers doctrine, Art. III, of our Constitution, this choice-making is committed to the Legislature and the Governor."

What is an "allotment" for purposes of the curtailment statute. Title 5, § 1582 provides that appropriations do not become available for expenditure by state agencies until allotted upon the basis of the work program approved by the Governor. The work program procedure outlined in § 1667 essentially requires agencies to allot their appropriations and revenues to the four quarters of the fiscal year, classified by personal services, capital expenditures, and all other expenses. These agency proposals are reviewed by the Governor (with the assistance of the State Budget Officer), who may revise them before giving his approval.

j ;

• Maine Constitution Article IX. _
  i .
  :
  Article IX.
  General Provisions. ; ;
  Section 14: Authority and procedure for issuance of bonds. The credit of the
  : ; State shall not be directly or indirectly loaned in any case, except as provided in sectiotis 14-A, 14-B, 14-C and 14-D. The Legislature shall not create any debt, -
  . or debts, liability or liabilities, on behalf of the State, which shall singly, or in
  _ the aggregate, with previous debts and liabilities hereafter incurred at any one . time, exceed $2,000,000, except to suppress insutrection, to repel invasion, or ' for purposes of war, and-except for temporary loans to be paid out of money raised by taxation during the fiscal year in whicli they are made; and excepting
  ; also that whenever 2/3 of both Houses shall deem it necessary, by proper .
  ; enactment ratified by a majority of the électors voting thereon at a general or ; special election, the Legislature may authorize the issuance of bonds on behalf
  . of the State at such times and in such amounts and for such purposes as
  / approved by such action; but this shall riot be construed to refer to any money _ ;
  \ that has been, or may be deposited with this State by the Government of the ; United States, or to any fund which the State shall hold in trust for any Indian ~ ; tribe. Whenever ratification by the electors is essential to the validity of bonds to be issued on béhalf of the State, the question submitted to the electors shall ’ be accompanied by a statement setting forth the total amount of bonds of the ;
  : State outstanding and unpaid, the total amount of bonds of the State authorized and. unissued, and the total amount of bonds of the State contemplated to be . issued if the enactment submitted to the electors be ratified. For any bond ; authorization requiring ratification of the electors pursuant to this section, if : any bonds have not been issued within 5 years of the date of ratification, then those bonds may not be issued after that date. Within 2 years after expiration of that 5-year period, the Legislature may extend, by a majority vote, the 5-year
  _ pétiod for an additional 5 years or may deauthorize the bonds. Lf the Legislature ; fails to take action within those 2 years, the bond issue shall be considered to be deauthorized and no further bonds may be issued. For any bond authorization in existence on November 6, 1984, and for which the 5-year period following ratification has expired, no further bonds may be issued unless the Legislature, by November 6, 1986, reauthorizes those bonds by a majority vote, for an additional 5-year period, failing which all bonds unissued under those authorizations shall be considered to be deauthorized. Temporary loans to be paid out of moneys raised by taxation during any fiscal year shall not exceed in the aggregate during the fiscal vear in question an amount greater than 10% of all the moneys appropriated. authorized and allocated by the Legislature from ( undedicated revenues to the General Fund and dedicated revenues to the ; Highway Fund for that fiscal year, exclusive of proceeds or expenditures from the sale of bonds. or greater than 1% of the total valuation of the State of Maine. whichever is the lesser.

JAMES E. TIERNEY

ATTORNEY GENERAL

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

March 2, 1983

Honorable John Diamond
House of Representatives
State House Station #2
Augusta, Maine 04330

Dear Representative Diamond:

You have requested an opinion from this office on the question of whether the state budget is required to be balanced under current constitutional and statutory pro- visions, or whether an amendment to the Maine Constitution is necessary to achieve that purpose. This office concludes that the current constitutional and statutory structure contemplates that the state budget be balanced.

It is important at the outset to define the term "balanced budget." It will be assumed, for purposes of this opinion, that a balanced budget is one in which "proposed expenditures [do] not exceed estimated avail- able funds." People ex rel. Ogilvie v. Lewis, 274 N.E.2d 87, 88 (Ill. 1971). A review of our relevant constitutional and statutory provisions indicates that they contemplate a budgetary and appropriation process in which no deficits occur.

Maine's constitutional limitation on the incurrence of debt by the State has the effect of ensuring that the

State function on a "cash basis." See Stein v. Morrison, 75 P. 246 (Ida. 1904). Section 14 of Art. IX of the Maine Constitution provides, in pertinent part:

The Legislature shall not create any debt

or debts, liability or liabilities, on behalf
of the State, which shall singly, or in the
aggregate, with previous debts and liabilities hereafter incurred at any one time, exceed

two million dollars, except to suppress
insurrection, to repel invasion, or for

the purposes of war, and except for temporary
loans to be paid out of money raised by taxa-
tion during the fiscal year in which they are
made; and excepting also that whenever two-
thirds of both Houses shall deem it necessary,

by proper enactment ratified by a majority of
the electors voting thereon at a general or
special election, the Legislature may authorize the issuance of bonds on behalf of:the. State at such times and.in such amounts and for

such purposes as approved by such action... .

Thus, § 14 prohibits the State from incurring long-term debt in the amount of more than $2,000,000, except for certain specified emergencies, without a vote of the people. By requiring the State to function on its revenues and by prohibiting loans except under carefully limited circumstances, the Maine Constitution guarantees that the State's budget will be balanced and precludes deficit financing.

The specific. statutory provisions which govern the budgetary process in Maine are consistent with the mandate of Art. IX, § 14, in that they contemplate that a balanced budget will be submitted to the Legislature. 5 M.R.S.A. § 1663, setting out the scope of the budget, provides that,

The budget of State Government. . . shall
set forth all proposed expenditures for.

the administration, operation and main-
tenance of the departments and agencies of
the State Government; all interest and debt

l/ It is true that certain states do have both debt limits similar to ours and balanced budget requirements. See, e.g., Colo. Const., Art. X, § 16, and Art. XI, § 3. The language of the balanced budget provisions, however, is similar to the language of our budget statutes. Moreover, where a State is limited in its power to incur debt, that state's budget must ultimately balance in the sense that anticipated expenditures must equal estimated revenues, because, under such limitations, the need for state debt must be anticipated by the legislature.

redemption charges during each fiscal year
and all expenditures for capital projects
to be undertaken and executed during each
fiscal year of the biennium.

It goes on to require that

the state budget... . set forth the
anticipated revenues of the State Govern-
ment and any other additional means of
financing expenditures proposed for each
fiscal year of the biennium.

Section 1664 of that Title requires that Part 1 of the budget

shall embrace a general budget summary
setting forth the aggregate figures of

the budget in such manner as to show the
balanced relations between the total pro-
posed expenditures. and the total anticipated
revenues together with the other means of
financing the budget. ...

Section 1666 of Title 5 similarly anticipates a budget based on

estimates. . . of the needs of the various
departments and agencies and the total
anticipated income of the State Govern-
ment during the ensuing biennium.

Thus, the specific provisions of the budget statutes strongly support the proposition that Maine is to have a balanced budget. 2/

Other statutes dealing with the consequences of the budget procedure also suggest a budgetary and appropriation process in which no deficits are to occur. Sections 1511 and 1544 of Title 5 establish procedures dealing with budget surpluses.

No such statutes exist for deficits. Section 1668 establishes a method for temporarily curtailing allotments where it "appears. . . that the anticipated income and other available funds of the State will not be sufficient to meet the expend- itures authorized by the Legislature. "

2/ Indeed, the language of our statutes bears a strong similarity to language found in other states' consti- tutions which has been characterized by the courts as requiring a balanced budget. See, e.g., Mass. Const., Art. 63, §2; Opinion of the Justices, 376 N.E.2d 1217, 1225 (Mass. 1978). See, n. 1, supra.

The specific constitutional and statutory provisions discussed herein therefore have the practical effect of requiring this State to function on a balanced budget. I hope this information addresses your concern. Please do not hesitate to call on us if this office can be of further

service.
Sincerely,
JAMES E. TIERNEY
Attorney General
JET/ec

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List of Titles §1668. Temporary curtailment of allotments | Maine Law a Disclaimer Whenever it appears to the Commissioner of Administrative and
=. Financial Services that the anticipated income and other available funds of
, Revisor's Office the State will not be sufficient to meet the expenditures authorized by the a Legislature, the commissioner sliall so report in writing to the Governor, M ae Leaislat and shall send a copy of the report to the President of the Senate and the 7» Maine Legislature Speaker of the House and the majority and minority leaders of the Senate :
. and House, After receiving the report, the Governor may temporarily curtail allotments equitably so that expenditures will not exceed the anticipated ;
: income and other available funds, No allotment may be terminated pursuant to this séction. Any curtailment of allotments must, insofar as practicable, be made consistent with the interit of the Legislature in authorizing these
; expenditures. £1991, c. 740, Pt. Y. §49 (amd)«] The Governor shall immediately upon the curtailment of any allotment, notify the President of the Senate and the Speaker of the House and the majority and minority leaders of thé Senate and House of the specific
{ allotments curtailed, the extent of curtailment of each allotment and the etiect of cach curtailment on the objects and purposes of the program so
_ affected, C4975. c. 77a §?7-A (new) -I _
’ Section History:
. PL A975. Ch. ??h4 §77-A . (NEW) -
: ; PL 1985, Ch- 785, §AS9 (AMD).~ /
PL 19914 Ch- 7405 SY49- CAMD) -
, The Revisor's Office cannot provide legal advice or interpretation of Maine law to
: the public. If you need legal advice, please consult a qualified: attorney.
, Office of the Revisor of Statutes
7 State House Station
oo. State House Room 108
. Auqusta, Maine 04333-0007
_ This page created on: 2002-01-07 ,
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; ; Cha

• ts . ; a
  , Ru fey OF
  STATE OF MAINE ; a SUPBERTOR COURT
  KENNEBEC, SS. ; CIVIL ACTLON .
  DOCKET NO. CV-91-29
  sees
  HEIDI BUTTERFIELD, et al., ) oe CO
  _— Plaintiffs ) ;

Vv. ) ; OPINION AND ORDER
DEPARTMENT OF HUMAN SERVICES,! _ ) ;

| )
Defendants ) ' , ,

This matter is before the court on plaintiffs' Complaint and Motien seeking a préliminary injunction to prevent termination of payments for approximately 700 ‘children whose child care is

A supported by the Maine Child Care Voucher Program. , Without

. objection, the court has approved plaintiffs' motion to join as a

class of plaintiffs all persons whose participation in the Voucher

Program is béing terminated as a result of Spending cuts imposed

by the Department of Human Services in order to meet its reduced allotment. ,

The Maine Child Care Voucher Program supports child care for children of low income parents who are working or advancing their education. Without the Voucher Program, many of these low-income

ins originally #ilsed, the suit aamed Governor John &.

; Mokexnan, Jr. and Commissisner Rollin T. ives of the Bevartmentc of

Human cexvices, in theiy cfiticial capacitiss, as detendants., The

Law Ocurt nas indicated thar the prover defsndanc in such acticns recarding offintist sets ctf aA Aeypastmenc is the nemec Berartwenc .-

: LISele. BS TALS Suih involves 2sticns ef the Derarcmenrc cf suman

( Givi res in lmeleamenting pSectuced alicoments inewsel &2 3% vetsubi cf

parents would have to terminate their jobs or education proczams in order to care for their children. As a result of reduced third quarter allotments the Department of Human Services imposed 28 a result of an executive order of the Governor dated December 31, 1990, the Child Care Vouchér Program, which is supported by the General Fund, is being reduced by approximately 80%. The prearam © has been authorized by legislative appropriation. The reduced allotments have been imposed by executive cxrder

• . utilizing as authority 5 M.R.S.A. § 1668. Paraphrased, § 1668
  provides that where it appears that -anticipated revenues wiil be , insufficient to cover expenditures authorized by the legislative appropriation process, the Commissioner of Finance: must notify tne -
  ; Gevernor and the Legislature.. Then the Governor "may temporarily curtail allotments equitably so that expenditures will not exceed the anticipated income and other available funds." In additicn to equitable curtailments, the law provides that: "No allotment may be terminated pursuant to this. section." Section 1668, in
  -pertinent part, reads as follows:
  Whenever it appears to the Commissioner of Finance that the anticipated income and other available funds of the State will not be sufficient to meet the axpenditures authorized by the Legislature, he shall so report in writing to the Governor, and shall send a copy ; ; of tne vepert tO the fresident of the Senate and The Speaker of tne House and the majority and: minority leaders or the Senate and House. Bfter veceiving tns eeport, the Governor may temporarily curtail allsiments equitably sco thar expenditures will net exceed ihe anticipated inecme and other avatilepls Funds. Mo alipgmerni may be tarmineted mursusnt in this sec0ien. ( sracticable. be meade consiscenc wich che intann «7 cts .

. 3
The Legislature must be immediately notified of curtailments.
| Plaintiffs essentially seek to enjoin the actions of the
Department of Human Services taken with regard to the Maine Child | Care Voucher Program pursuant to this statute. To obtain ao > preliminary injunction, plaintiffs must demonstrate four things: . .
: | 1. That they will be irreparably injured by the challenged
. . action, a -
, ; 2. That they have a reasonable likelihood of success en the
. merits of their claim, —- , . .
. 3. That a balancing of the harms from not issuing the
. injunction compared with the Harms of issuing the injunction Tios ( plaintiffs in their favor, and a . ;
. 4. Theat the public interest will not be adversely affected by issuance of the injunction. Department of Environmental Protection v. Emerson, 563 A,2d 762, a 768 (me. 1990); Ingraham v. University of Maine at Orono, 441 A.2d 691, 693 (Me. 1982). _ At pre-hearing conference held on January 14, 1991, the State agveerd that there is no dispute tnat the members of the plaintiffs . class will be irreparably injured by termination of the voucher _
/ programs. Many class ‘members will be required to terminate Tens or eéclucation wcrogqrvams to care for their children Lf the Voucher ; Program LS nok reinstated soon. wWioh ixreparabis nasm esvaplisnec, thea Hey Foes oF the ( tayties! siteniicn nes teen on 3.aintictis Linxelinesd af suciossa3 in |

: \ , .
: | . . 4
the merits. Plaintiffs make five claims for relief which must be . examined in this determination. . . First, plaintiffs assert that actions taken pursuant to 5 M.R.S.A. § 1668 are invalid because § 1668 amounts to an improper and standardless delegation of Legislative power to the
: Executive. . oo .
Second, plaintiffs contend that the actions. pursuant to
§ 1668 are invalid because they represent an illegal impounement
_ of funds, contrary to the direction of the Legislature in the .

• appropriations process. . .
  . Third, plaintiffs assert that imposing an 80% “cut in the ( Child Care Voucher Program while imposing no cuts or significantly
  . lessér cuts in other programs violates the provisions of § 1668
  , ' that allotments'’be curtailed "equitably". m, - Fourth, plaintiffs contend that the actions with respect to ' the Maine Child Care Voucher Program ace improper becausé they amount to a termination of the program contrary to the direction of § 1668 that: "No allotment may be terminated .. ." a pifth, plaintiffs allege that this cut is not made "consistent with the intent of the Leyislature." a The five claims will be examined in order’ In examinine the constitutional claim, it is important to recognize chan §$ 15635 is hasdly tns statutory equivalent of a constitutional item weto oroyvision. Ti is, key its wsrms, & temeorary Fiscal menagament F Zevine. El ctermits ins Eoverncor tl eevin weelisnmeni 3 ( | : | | | : | ~

. time when those reduced projections are recognized and the later time when the Legislature is able to act to pring projected
-revenues and authorized expenditures back into line. This legislation recognizes that prompt action to curtail expenditures may be necessary once a shortfall of revenues is perceived. This allows the impact of reduced expenditures to be spread over the
; longest period of time, with consequent lesser disruption than if
| the same shortfall. had to be accommodated in a very shexrt time at .
the end of the fiscal year. a ’ |
Section 1668 also recognizes that che Legislature is not a. ;
. body which can act instantly. It must convene and then give “matters due deliberation. Such deliberations may necessarily be ‘ extended when an apparent revenue shortfall requires re- examination and new priority setting acréss the entire spectrum of programs in the state budget. Seccion 1668 supports the : legislative process by allowing this priority reallocation debate to occur rationally and thoroughly, without time pressures for immediate action. | .

No program can be terminated as &@ result of this allotment curtailment process and, theoretically, any cuts which the Governor makes in expenditures can be cromptly restored by the Legislature. Thus, § 16638 extends to che Governor no authority) co usurp or displace che begislature's role in eoprepriating and enpending funde, Zo simpiv orovises 2 Zevice t5 asfurcs xveeucnsilsle FlLesceal management st wvsevanue Shirin lalls mn 2 tampcrasy basis.

‘expenditure process. See Statement of Fact, Senate Document No.
, $-526 LOTth Legislature (1976); 1976 Maine Legislative Record pp. 971-972. This does not amount to an unconstitutional delegation of legislative authority. 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 4s to render the statute | unconstitutional. Essentially, this statute directs tnat 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 mechanicaily imposed |
| across a broad spectrum of persons or programs. ‘The term
"equitably" implies making of choices rather than unizorm, 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" imposéd cannot be used as &@ subterfuge to © absolutely terminate any program allotment. ; The court also determines that there is no unconstitutional or illegal impoundment, violative of the appropriations process, in implementation of the allotment curtailimencts pursuant to
§ Loss. Much of the impoundment law cited to the court develoved Zrom federal case law arising when federal officials anilateresily
| eéelused to excend sums 2cproecristed for sescitic suxepeses in
| LerTain es in _ — a crn ahoss en —

expenditures, there was no question of availability of funds to make the expenditures. . . . The instant case presents a very different situation than the
, "impoundment" cases of the early 1970's. No one disputes the existence of the shortfall. There is no issue of 4 claimed shortfall being used as a pretext to cut disfavored programs. Further, there is a constitutional mandate that regardless of :
. amounts of funds appropriated, .expenditures ‘may not exceed revenues, as State borrowing authority is severely restricted, Me. const. Art. 3; S 14. This necessarily implies that where projected revenues are less than authorized expenditures, some — ( entity must décide not to make commitments that cannot be backed
. up with revenues. Instead, authority which has beer provided in § | 1668 ‘is simply being utilized to assure, as tne Constitution requires, that expenditures do not exceed revenues. Absent the , .
; existence of § 1668, it may well be that the executive would have responsibililty, on finding no money in the fill, to decline to |
| make expenditures not covered by revenues. To do anything else
would be violative of the constitutional duty of the executive not finds the impoundment cases and cleims regarding improper 7

; The court how turns to the question of whether the curtailment process, as applied to the Child Care Voucher Program, |
. is violative of the "equitably", "no termination” or "legislative intent" provisions of § 1668. Before addressing those issves - directly, the court must first examine the standard of review which the court will apply to its determinations. Courts regularly take actions requiring expenditure of public

• funds. Those actions ave generally taken in areas where the court
  finds a regulatory, statutory or constitutional entitlement to or mandate for expenditures. However, this case is presented in a . slightly different posture than most eéntitlement or mandate ( enforcement cases. There is an appropriation authorizing. tne expenditure of general funds for the Child Care Voucher Progxam. 7 However, the program is not an "entitlement" program as sucn. Tes
  . benefits are discretionary subject only to general requirements of
  | nondiscrimination and fairness in application. No particular
  person could claim or enforce entitlement to program benefits or
  . to program benefits at a specific level. In fact, it is precisely because this program is not an entitlement program that, as the Department of Human Services indicated at hearing, this oregram hes taken a heavier “hit" than larger encitlement’ programs to which soeciiic eligible persons miaght enfortes entitlements is. benerits 3c soecizic levels. . . The Ceurt is being asker fo enforce fare aocroeriaticns
  | BitncuLiaiion wee Semees —— ine —— Wheels Ll wns

| y
a finite amount of funds which-are insufficient to pay the total of the expenditures authorized by all General Fund appropriations. | Accordingly, if the court determines to require expenditure of
| part or all of the authorized but not allotted funds, for cnild
care vouchers, there will necessarily be a greater shortage of funds available for other General Fund supported programs. In ; effect, the court would involve itself in making choices, over’ the © entire range of Géneral’ Fund supported programs as to which
. programs are entitled to support and which are not, Certainly, on a case-by-case basis, it may be possible to make a particularly ; “compelling claim that certain curtailed expenditures should be
; spent for the public gqood.. That is clearly the case here. AS a ;
. matter of policy, the case for continuation of full expenditures:

• for the Child Care Voucher Program may be compelling Lndeed.
  . However, the policymakérs who have responsibility co make these choices at the executive or “legislative level have a general overview and mandate to consider and establish priorities for all of the programs supported by the General Fund. That is a role for which courts are particularly ill suited. Courts respond: to
  / specific claims wegqerding specific cases. Where there are
  | entitlements, thev can be enforced, But policy choices are more

Pow
impose a choice regarding expenditure of a finite amount of funds ~ | based on a specific petition supported by a compelling policy argument, By the separation of powers doctrine, Art. III, of our
~~ Constitution, this choice-making is committed to the Legislature and the Governor. The choice as to whether a finite amount of funds is more approximately spent on fill funding for child care , vouchers, correctional programs, health care, fish hatcheries ox
; regulating hairdressers is constitutionally committéd to the
’ elected political leadership of the State. . | | .

• The court may review the process by which choices are made Lz
  , - there are legal flaws in the process by, for example, implementing |

; | the protess in a discriminatory manner violative of provisions,

\ such as Article I, S CA of the Maine Constitution or the Maine a Human Rights Act, SM.R.S.A. § 4551 et seq. The court may review . the process if the mandate of the process -- in this case the mandate of § 1668 for broad based cuts: "equitably" distributed is. violated by, for example, focusing all cuts on cone or very few

| programs. However, such legally significant flaws in the
allocation process do not appea on the record that has been

developed in this case. Nor does it appear that the program is

being terminated, Tf the Child Care Voucher Program was being

| cerminated, an axgument might be made thac, as it is a speciiis

line item in the sepropriation pili, this Line item amounts To an

allotment whicn sannet be terminated pursuant 22 8 Lsse. Phere is

2 ceducticn cf 2£% in Senerel Func exCenditacss for the gyoerim.

es

• which the political leadership which has general responsibility
  for allocating priorities and making choices may impose without inference by the court. ,
  ; | _ The court also finds. no violation of legislative intent in the allotment curtailment that has beén imposed. The Legislature
  | has given other programs higher priority by creating entitlement
  _ to their benefits. The greater cuts to this program, to preserve the entitlement programs, recognize that legislative priority. , .
  . Courts involve themselves only reluctantly in what are ultimately political decisions and then respond only to specific a flaws in the decision-making process toa address the flaw or to
  | enforce ‘a specific entitlement. As the court cannot find {(1) a
  ( — :
  : legally significant flaw, such as bias, in application of. the allotment curtailment process or (2) an entitlement of a specific
  . “person, or class of persons, to a specific expenditure or 4 specific level of expenditure, or (3) clear violations of specific language of § 1668, the court does not involve itsél£ furthers in the process. This necessarily deferential standard of review is mandated by the essentially political nature of the decisions
  , which must be made curtailing allotments across the board, in an equitable manner, to bring expenditures into line with revenues well below those necessary to supocrt all authorized expenditures. As the court finds that the plaintiffs have not demonstrated reasonable likelihood of success on the merits, plaintiffs' Motion for Preliminary Injunction must be denied.
  \

Therefore the court orders and the entry shall be: | Plaintiffs' Motion for Preliminary Injunction DENIED. DATED: January 17, 1991 DONALD G. ALEXANDER JUSTICE, SUPERIOR COURT