When the Maine Legislature decides how much Highway Fund money goes to the State Police, is it bound by the OPEGA report's findings on which State Police activities are highway-related?

Subject

Whether the Joint Standing Committee on Transportation and the Maine Legislature were obligated to follow the Office of Program Evaluation and Government Accountability (OPEGA) report's conclusions when allocating Highway Fund money to the State Police.

Currency note

This opinion was issued in 2007. 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.

Plain-English summary

Maine's Highway Fund holds revenues from gas taxes, vehicle registration fees, operator licensing, and motor-vehicle fines. Article IX, Section 19 of the Maine Constitution restricts how those revenues can be spent. Spending them on the State Police is allowed, but only to the extent State Police activity is "expense for state enforcement of traffic laws." That makes the allocation between the Highway Fund and the General Fund a constitutional question that turns on facts about what the State Police actually do.

In February 2007, OPEGA issued a report concluding that the existing Highway Fund support for the State Police might be too high. The Joint Standing Committee on Transportation asked the AG whether OPEGA's conclusions bound the Committee or the full Legislature. AG G. Steven Rowe answered no. The Legislature has a constitutional duty to make a good-faith, fact-based determination of the proper allocation, but it is not required to accept OPEGA's analysis. That principle had been laid out in a 1980 AG opinion (Op. Me. Att'y Gen. 80-41) addressing the same question with respect to a State Auditor report, and the AG concluded the same logic applied to OPEGA.

The opinion also flagged a real-world wrinkle: OPEGA itself acknowledged that it could not perform a clean activity-based cost analysis because Maine lacked both a clear statutory definition of "Highway Fund eligible" activities and reliable State Police activity data tied to financial data. The AG noted that the lack of activity data was the harder problem, and observed that the State Police planned to start collecting more detailed data so future budgets could rest on a stronger evidentiary base. As long as the Legislature acted on a reasonable factual basis, courts would likely defer to its allocation judgment.

Common questions

Q: Why does Article IX, Section 19 of the Maine Constitution matter here?

It restricts what the Highway Fund can be spent on: cost of administration, statutory refunds, payment of debts and liabilities for highway and bridge construction, costs of construction, reconstruction, maintenance and repair of highways and bridges, and "expense for state enforcement of traffic laws." Spending on State Police activity that is not traffic enforcement violates Section 19.

Q: If the Legislature is not bound by OPEGA, does that mean OPEGA reports are useless?

No. The AG's view was that OPEGA reports are evidence the Legislature can rely on, but the constitutional duty to allocate Highway Fund revenues correctly belongs to the Legislature itself. The Legislature has to weigh OPEGA's conclusions, decide whether the methodology and data are sound, and reach its own factual judgment.

Q: What did the AG say happens if a court reviews the Legislature's allocation?

The AG predicted courts would defer to the Legislature's judgment as long as there is a reasonable factual basis for it. That mirrors the 1980 AG opinion (Op. Me. Att'y Gen. 80-41) and reflects the general rule that legislatures making constitutional fact judgments get deference if they act in good faith on a reasonable record.

Q: What was the practical problem OPEGA hit?

Two things. First, no clear statutory definition of which State Police activities count as Highway Fund eligible. Second, no reliable State Police activity data linked to financial data. OPEGA said it could not run a traditional activity-based cost allocation analysis without those inputs.

Background and statutory framework

The Highway Fund traces back to a 1936 citizen-initiated law dedicating gas tax and motor-vehicle revenues to highway purposes, including "maintenance of the State highway police" (now the State Police). The 1936 statute was followed by Article IX, Section 19, adopted in 1943, which constitutionalized similar use restrictions. The two texts are not identical: Section 19 references "expense for state enforcement of traffic laws" rather than naming the State Police directly, and Section 19 does not capture motor-vehicle fines and forfeitures, which are governed only by the Highway Fund statute.

That distinction matters for legislative flexibility. Revenues that come into the Highway Fund through the statute alone, but not through Section 19, are not constitutionally restricted, so the Legislature could redirect them. Most of the Highway Fund's revenue, though, is locked in by Section 19.

The Law Court has read Section 19 narrowly. In Opinion of the Justices, 152 Me. 449 (1957), five Justices concluded that Highway Fund money could not be used to relocate utility facilities displaced by highway construction, since utility relocation was not "construction or reconstruction" of a highway. The 1957 opinion rejected the broader reading that any expense reasonably incidental to highway work could be funded from the Highway Fund. The Justices have approached State Police funding more flexibly, recognizing that funding shares should reasonably reflect the share of State Police work that is traffic-related.

This 2007 opinion does not break new constitutional ground. It applies the legal framework already laid down in earlier AG opinions (notably Op. Me. Att'y Gen. 80-41 and 81-16) to the new evidentiary record OPEGA had built.

Citations

Statutes:
- 23 M.R.S.A. § 1653 (Highway Fund statute)
- 29-A M.R.S.A. § 2602 (motor vehicle fines and forfeitures)

Cases:
- Portland Pipe Line Corp. v. Environmental Improvement Commission, 307 A.2d 1 (Me. 1973)
- Opinion of the Justices, 142 Me. 409, 60 A.2d 903 (1947), rules of constitutional construction
- Opinion of the Justices, 152 Me. 449, 132 A.2d 440 (1957), utility relocation not highway construction
- Opinion of the Justices, 371 A.2d 1189 (N.H. 1977): analogous Highway Trust Fund / State Police allocation

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/2007/ag_20070705.pdf

Original opinion text

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

STATE OF MAINE
OFFICE OF THE ATTORNEY GENERAL
6 STATE HOUSE STATION
AUGUSTA, MAINE 04333-0006

G. STEVEN ROWE
ATTORNEY GENERAL

July 5, 2007

Hon. Dennis Damon, Senate Chair
Hon. Boyd Marley, House Chair
Joint Standing Committee on Transportation
100 State House Station
Augusta, ME 04333-0100

Dear Senator Damon, Representative Marley, and Members of the Committee:

You have asked for my opinion as to the obligations of both the Committee on Transportation and the Legislature as a whole with respect to the allocation of Highway Funds to the State Police in the budget. Your question arises in the context of certain conclusions reached by the Office of Program Evaluation and Government Accountability ("OPEGA") in a report it issued in February 2007 entitled, "Highway Fund Eligibility at the Department of Public Safety—an Analysis of Select Departmental Activities" ("OPEGA Report").

This Office has previously opined that the Legislature has a responsibility to make a good faith, fact-based determination as to the uses of Highway Fund money that comply with the limitations of Article IX, section 19 of the Maine Constitution ("section 19") (see discussion in Part II, below). We have also opined that in making this determination, the Legislature was not bound to accept the factual findings of the State Auditor concerning the proper allocation of Highway Fund money to the State Police. Op. Me. Att'y Gen. 80-41. We believe that these conclusions are equally applicable in the instant circumstances. The Legislature is obligated to make a good faith effort to determine what portion of the State Police budget can be allocated to activities that come within the limitations of section 19, but in making that determination neither the Transportation Committee nor the Legislature is bound by the conclusions reached by the OPEGA Report. Since it is the Legislature that bears the responsibility for deciding how to allocate Highway Fund revenues, it is within the Legislature's power to decide whether the conclusions presented in the OPEGA Report provide a sufficient factual basis upon which to make that allocation.

We begin with a description of the history of section 19. We then outline the case law and prior opinions of the Attorney General that are relevant to your question.

I. The Highway Fund in the Maine Constitution, Article IX, Section 19

Article IX, section 19 of the Maine Constitution reads:

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

The Law Court discussed the history of section 19 in Portland Pipe Line Corp. v. Environmental Improvement Commission, 307 A.2d 1, 16-22 (Me. 1973). While section 19 was adopted by the people in 1943, the motor vehicle fuels tax ("gas tax") began in 1923.

The plan of the "gasoline tax" was to focus on those who derived benefits as users of the highway system as the class subject to the tax. While the entire tax has never been subject to an exemption, that part imposed without exemption was rationalized as a minimum payment by otherwise exempt users for residual benefits derived from good roads. The minimum gasoline tax collected from otherwise exempt users has also been expended for purposes other than specified in Article IX, Section 19. It is apparent to this Court that the gasoline tax statutes are intended to result in taxation of highway users.

Id. at 19 (footnotes omitted).

The Court goes on to note that in 1934 Congress enacted a requirement that federal highway funds be withheld from any state that did not apply gasoline taxes and other taxes on motor vehicle owners and operators to highway purposes. In response, an initiated bill "reserving for highway purposes the taxes derived from the 'tax imposed on internal combustion fuel'" was approved by the people at the general election held in November 1936. Id. at 21.

This citizen initiated measure has remained in statute since then in very nearly its original language, and appears now at 23 M.R.S.A. § 1653 ("the Highway Fund statute"). Since its inception, this statutory language has provided that the General Highway Fund is to be used first to satisfy obligations arising from state highway and bridge construction bonds, with the remainder to be "apportioned and expended solely" for: 1) "the cost of registering motor vehicles and licensing the operators thereof;" 2) "maintenance of the State highway police" (1936) or "State Police" (current version); 3) "administration of the office and duties" of the State Highway Commission (in 1936), and subsequently the Department of Transportation; 4) "administration of the tax on internal combustion engine fuel;" 5) "payment of rebates on said tax;" 6) "improvement, construction and maintenance of highways and bridges;" and 7) "snow guards or removal."

Thus, since 1936, the statute has specifically authorized the use of the Highway Fund to support the State Police. The statute was not repealed or modified when Article IX, section 19 was adopted in 1943. It should be noted that the language of section 19 is different from that of the Highway Fund statute in two respects. First, some of the permitted uses of the Highway Fund are described in a slightly different manner. For example, instead of the specific reference in the Highway Fund statute to the State Police, section 19 refers to "expense for state enforcement of traffic laws."

The other distinction between the language of section 19 and the Highway Fund statute is that in describing the revenues that are subject to its terms, section 19 does not include fines, forfeitures and costs accruing to the State for motor vehicle violations under 29-A M.R.S.A. § 2602. As a result, these fines, forfeitures and costs are not subject to the spending restrictions of section 19, and the Legislature is constitutionally free to spend them for other purposes. It is our understanding that fines, forfeitures and penalties that go into the Highway Fund under the Highway Fund statute are treated the same as those revenues whose use is restricted by section 19. However, while these revenues are not treated differently for spending purposes than other revenues to the Highway Fund, fines, forfeitures and penalties are separately accounted for as a source of revenue to the Highway Fund. In other words, the Legislature could identify these funds and choose to spend them differently if it wished.

II. Case Law and Opinions on Constitutional Uses of the Highway Fund

The principles governing the interpretation of a provision of the Constitution are discussed in the Portland Pipe Line case as follows:

The rules which guide this Court in determining the meaning of constitutional provisions are set forth in Opinion of the Justices, 142 Me. 409, 60 A.2d 903 (1947). There we said[,] "[t]he fundamental rule of construction of statutory and constitutional provisions is that the language shall be interpreted in accordance with the intention with which it was used, if that result may be accomplished by giving words their ordinary and usual significance." And further, "[i]t is proper in construing constitutional language to give decisive weight to the history of its development."… The Supreme Judicial Court of Massachusetts, in construing a constitutional amendment, stated that the amendment … "was written to be understood by the voters to whom it was submitted for approval. It is to be interpreted in the sense most obvious to the common intelligence."

Id., 307 A.2d at 18.

The Justices of the Supreme Judicial Court have on two occasions offered their views about the constitutional limits on uses of the Highway Fund. In the first of these opinions, the use of Highway Fund money to cover the cost of relocating utility facilities due to interstate construction was challenged. Five of the Justices concluded that although the state had the authority to pay for the cost of relocating such facilities if it chose, it could not constitutionally use Highway Funds for this purpose because the relocation could not be construed as construction or reconstruction of a highway within the meaning of Article IX, section 19. "The language of the Constitution should not, in our view, be extended beyond its plain and ordinary meaning." Opinion of the Justices, 152 Me. 449, 456, 132 A.2d 440 (1957). However, one Justice declined to find that section 19 prohibited use of Highway Funds for this purpose, finding that interpretation too narrow.

I am satisfied that the limitation placed upon the expenditure of highway funds was designed and intended to prevent raids on those funds for purposes entirely unrelated to the highway program. In my view expenditures which may reasonably be considered incidental to the construction or reconstruction of highways may properly be met out of highway funds whenever the Legislature elects.

152 Me. at 456.

Considering the same issue in the same year, the Justices of the New Hampshire Supreme Court took the position that drew the support of only one Maine Justice, concluding that the cost of relocating utility facilities required because of the relocation of a highway could appropriately be paid out of revenues governed by a constitutional provision worded in a manner very similar to Maine's. Opinion of the Justices, 132 A.2d 613 (N.H. 1957). These disparate results highlight the difficulty in construing section 19: in the absence of definitions of the prescribed Highway Fund uses, there is room for reasonable interpretations to differ on issues such as whether reasonably incidental expenses can be included.

We have found no Maine cases that specifically address how to determine the appropriate extent of Highway Fund support for a program that does not fall wholly within the purposes specified in section 19. The Legislature has historically demonstrated its judgment on this issue through appropriations to such programs. With respect to funding the State Police, the OPEGA Report contains data reflecting Highway Fund funding levels of the major appropriation directed to the State Police that are predominantly in the range from 74-90% for the period from 1946 to 1997, with dips to 50% for 1958-1961 and the year 1990. Since 1998, Highway Fund support for this same appropriation has ranged from 60-65%. See Table 5, State Police App. Program (0291) Ratio 1946-2006, OPEGA Report at 13.

The Justices of the New Hampshire Supreme Court have addressed the funding the State Police using that state's Highway Trust Fund in this way:

In our opinion the express language of pt. II, art. 6-a "including the supervision of traffic thereon" authorizes the expenditure of such funds for the enforcement of traffic laws and the patrolling of the highways. This is consistent with the constitutional convention history of the article. See Jour. N.H. Const. Conv. 148-49 (May 25, 1938). We note that a substantial part of the budget of the division of state police for the communication and traffic bureaus is and has been funded from revenues drawn from the highway trust fund. Such funding does not violate pt. II, art. 6-a provided the amount of funding from highway trust funds is in the proportion that the work of a particular bureau relates to the supervision of traffic, including the enforcement of traffic laws.

Opinion of the Justices, 371 A.2d 1189, 1190-1 (N.H. 1977).

As discussed above, since its original approval by the voters, the Highway Fund statute has identified the State Police as an appropriate recipient of Highway Fund money to support its operations. The question of how to properly allocate the State Police budget between the Highway Fund and other funding sources has been addressed by this Office in a prior opinion that also considers the question of whether the Legislature is bound by findings of fact made by the State Auditor concerning the portion of State Police activities that are appropriate to support with Highway Funds. The Legislature had provided:

The Department of Audit shall evaluate and determine the portion of State Police activities related to highway transportation and that portion related to other responsibilities. The purpose is to consider on a factual basis that portion of the State Police budget which should be supported from the Highway Fund and General Fund respectively.

P.L. 1977, c. 423, § 5.

The Auditor provided his conclusions by letter stating that the existing State Police funding ratio of 75% Highway Fund and 25% General Fund should be changed to 65% and 35%, respectively, based on a manpower study of the State Police. The then chairs of the Transportation Committee then asked the Attorney General whether the Legislature was required to make this adjustment.

The essence of the question posed in your letter, we think, is whether the Committee on Transportation is constitutionally bound by the State Auditor's determination. In our opinion it is not. It is clear that the Legislature (not the State Auditor) has the responsibility of how to allocate revenues from the General Highway Fund. 23 M.R.S.A. § 1651. In our opinion the 108th Legislature did not delegate this responsibility to the State Auditor. Rather, we interpret the 1977 law as directing the State Auditor to assist the Legislature to better enable the Legislature to make a determination.

Op. Me. Att'y Gen. 80-41.

Having concluded that the Legislature would not have been bound by the State Auditor's determinations even if it had intended to delegate this responsibility, the opinion describes the Legislature's responsibility as follows:

In the final analysis, then, it is the task of the 109th Legislature to determine whether adjustments are needed to the present funding ratios for the State Police in order to comply with Section 19 of Article IX of the Maine Constitution. If the Legislature determines in good faith that the State Auditor's judgment concerning the allocation of the expenses of the State Police is not accurate and that the existing ratio continues to be appropriate, then it is fully within the power of the Legislature to make that determination. If, on the other hand, the Legislature determines that the State Auditor's evaluation of the funding ratios is accurate, then the Legislature, in conformity with Article IX, Section 19, should change the existing funding ratios.

Addressing the same question in a subsequent opinion, the Attorney General stated:

Put most simply, a determination of the percentage of the State Police budget actually utilized for traffic enforcement is a question of fact which cannot be resolved in a legal opinion. In our view, the Constitution contemplates that the Legislature will make a good faith resolution of this question and that the appropriations from the Highway Fund will be in accordance with its factual conclusions. In short, insuring compliance with art. IX, § 19 of the Maine Constitution is in the first instance the responsibility of the Legislature.

Op. Me. Att'y Gen. 81-16.

As with the State Auditor's report described in the 1980 Attorney General's opinion, the OPEGA Report is the result of a study requested by the Legislature's Transportation Committee. It is based on available information, and utilizes a detailed analytical framework that incorporates certain specified assumptions. As we pointed out in our 1980 opinion, assessment of the facts and conclusions reached in such a report is a fact-based matter that is within the province of the Legislature, and cannot be made in a legal opinion. This is also the approach taken by the Justices of the New Hampshire Supreme Court when confronted with a challenge to the proper allocation of costs where funds dedicated to highways were involved.

There are numerous factual issues that could be deemed relevant to the ultimate conclusion of how much Highway Fund support can be given to the programs of the State Police, and how much reliance to place on OPEGA's conclusions. The approach taken by OPEGA was to select three specific appropriation programs that fund portions of the Department of Public Safety, focusing primarily on expenditures and activities in state fiscal year 2005. OPEGA Report at 5-6. With respect to the State Police, the appropriation that OPEGA selected accounts for 79% of total expenditures. Id., at 13. State Police activities supported by federal funds were not evaluated for Highway Fund eligibility. Id., at 10. Other valid approaches that might produce different results for purposes of comparison would include reviewing all State Police expenditures and/or including more years of data.

Perhaps more importantly, OPEGA discovered that it could not carry out its intention of undertaking a traditional, activity-based cost allocation analysis due to the absence of 1) a clear definition of what constitutes Highway Fund eligibility and 2) State Police activity data that either is or can be closely linked with financial data. Id., at 2, 6-10. As a result, OPEGA qualifies its analysis at the outset of its report by explaining that it is unable to reach any definitive conclusion in the absence of these elements. Id., at 2.

Of these two issues, the lack of a specific definition of activities eligible for Highway Fund support may be the less problematic from a legal perspective. As a practical matter, the Legislature's budget enactments reflect its determination (whether explicit or implicit) of what activities are properly supported by the Highway Fund. Moreover, while adopting a definition of eligible activities would be a useful policymaking exercise, any definition that might be provided by the Legislature would not bind its successors to the same interpretation. In contrast, the lack of reliable activity data presents a significant obstacle to any fact-based assessment. See OPEGA Report at 8-10.

It is our understanding that the State Police plan to collect more detailed data for the Committee's consideration in the future. As we have previously opined, the Legislature has a responsibility to make a good faith, fact-based determination as to the uses of Highway Fund money that comply with the limitations of Article IX, section 19 of the Maine Constitution. It is the prerogative of the Legislature to decide what information it requires to undertake that analysis, and to make the policy judgments necessary to determine what activities are appropriate to charge against the Highway Fund. In our opinion, the courts will likely defer to the Legislature's judgment on these factual issues as long as there is a reasonable basis for that judgment.

I hope this information is helpful.

Sincerely,

G. STEVEN ROWE
Attorney General