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Volume 1981

Article 11

1-1-1981

Chapter 8: State and Local Government

Herbert P. Gleason

Thomas H. Martin

Follow this and additional works at:

http://lawdigitalcommons.bc.edu/asml

Part of the

State and Local Government Law Commons

Recommended Citation

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CHAPTER 8

State and Local Government

HERBERT P. GLEASON AND THOMAS H. MARTIN*

§ 8.1. Introduction. During the Survey year, an unusual number of court cases presented the issue whether federal, state or municipal policy should prevail in local controversies. Also during the year, the practice of passing general legislation as so-called "outside sections" of the annual general appropriation act reached unprecedented proportions. The court cases concerning allocation of power to and from municipalities are dis-cussed under Part A. The controversy over outside sections of the budget is considered in Part B.

A. COURT DECISIONS

§ 8.2. Jurisdictional Disputes Between the Commonwealth and the Cities and Towns. The Supreme Judicial Court has offered little rationale to ex-plain its holdings in cases adjudicating jurisdictional disputes between the Commonwealth and its cities and towns. One commentator has described those cases as "result-oriented."' The Court seems to uphold local initiative or condemn state intrusion according to its feel for where a particular sub-ject belongs, not according to the structural scheme of the Home Rule Amendment. 2

In 1973, we examined in these pages3 the local empowerment provision of

the Home Rule Amendment, 4 amply construed in Bloom v. Worcester' in

• HERBERT P. GLEASON and THOMAS H. MARTIN are colleagues in the Boston law

firm of Mason & Martin.

§ 8.2. ' [A]n attempt to stack the 'gray area' cases under subject headings produces a kind of intuitive feel for the Court's predilections: support of land-use regula-tions that encourage long-term or regional planning, along with discourage-ment of ad-hoc amenddiscourage-ment; support of traditional 'health' and zoning laws, along with mistrust of unprecedented exercises of power. But these are highly subjective interpretations - hardly reliable bases for local decisions on action or inaction.

Jerison, Home Rule in Massachusetts, 67 Mass. L. Rev. 51, 56 (1982). ' Mass. Const. amend. art. LXXXIX.

' See Gleason and Martin, State and Local Government, 1973 Ann. Surv. of Mass. Law § 15.1, at 594-99.

• Mass. Const. amend. art. I, § 6 provides, in part:

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198 1981 ANNUAL SURVEY OF MASSACHUSETTS LAW § 8.2

favor of municipalities. There had been reason to fear that the Court did not hold the provision safeguarding municipalities from legislative interfer-ence6 in such esteem. 7 The fears were confirmed in

Mayor of Boston v.

Treasurer and Receiver General'

where the safeguard provision survived judicial application by only one vote.

In 1981, the Legislature appropriated $348,000,000 as additional state aid to cities and towns.9 Boston's money was conditioned on that City's main-taining the same level of police and fire services it had in 1980. 10 The Mayor brought this action asserting that the limitation on Boston violated section 8 of the Home Rule Amendment to the Constitution. 11 Four members of the

Court (Wilkins, Abrams, Nolan and O'Connor) believed that the condition imposed on Boston's money was a law in relation to cities and towns which applied to Boston alone, "a class of . . . fewer than two." Hence, the con-dition violated the Home Rule Amendment.12 Three members of the Court

(Chief Justice Hennessey and Justices Liacos and Lynch) thought the Legislature did not "act in relation to" Boston in inserting a condition on the grant of money to it. 13 Chief Justice Hennessey said that the Home Rule Amendment was not offended by enticing rather than coercing a single municipality to implement the will of the Legislature. 14 Then, like Marie Antoinette, he suggested, ''Boston can opt not to receive its share of State aid," a mere $56.7 million!' Since the Legislature could validly have given nothing to Boston, he thought it incongruous to hold that it cannot con-stitutionally impose a condition on the use of the money granted. 16

The incongruity, of course, is resolved by recognizing that giving nothing is not acting. Appropriating money and imposing a condition to its use by

it, which is not inconsistent with the constitution or laws enacted by the general court

' 363 Mass. 136, 293 N.E.2d 268 (1973).

• Mass. Const. amend. art. II, § 8 provides, in part:

The general court shall have the power to act in relation to cities and towns, but only by general1aws which apply to all cities, or to all towns, or to all cities and towns, or to a class of not fewer than two. . . .

' See, Broderick v. Mayor of Boston, 375 Mass. 98, 374 N.E.2d 1374 (1978); Town of Hadley v. Town of Amherst, 372 Mass. 46, 360 N.E.2d 623 (1977); Board of Health of North Adams v. Mayor of North Adams, 368 Mass. 554, 334N.E.2d 34 (1975). Cf. Belin v. Secretary of Commonwealth, 362 Mass. 530, 288 N.E.2d 287 (1972).

• 1981 Mass. Adv. Sh. 2351, 429 N.E.2d 691. ' St. 1981, c. 351 § 2.

•• /d., item 0611-5500.

11 1981 Mass. Adv. Sh. at 2352, 429 N.E.2d at 692.

12 /d. at 2355, 429 N.E.2d at 693.

" /d. at 2359, 429 N.E.2d at 696.

•• Id. au 2359-60, 429 N.E.2d at 696.

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one city or town is acting with respect to a class of fewer than two. In his opinion for the majority, Justice Wilkins pointed to the irony that the Court, having just preserved the powers of the Governor against legislative encroachment through the budget process, should allow the budget process to undermine the constitutional protection of cities and towns.17 Had this

end run been sanctioned, the safeguard provision of the Home Rule Amendment would be as effective as the Maginot Line to prevent a new legislative invasion in the affairs of a single municipality.

On the other hand, the Court is not reluctant to advance its own policy preferences in local matters. It does so by declaring that a particular Gener-al Law represents a statewide scheme for solving a particular problem which, therefore, overcomes the presumption that special laws prevail over general ones.18 The Court called the throw in two cases involving school

finance in Boston. Boston Teachers Union v. City of Boston19 and School

Committee of Boston v. City of Boston.20

The 1981 Teachers Union case resolved the question which had been left open in 1976 by Boston Teachers Union v. School Committee of Boston.21

The earlier Teachers Union case held that the Mayor of Boston must submit to the City Council a request for appropriation in excess of the Boston School Committee's own appropriating power where the funds are necessary to carry out the terms of a collective bargaining agreement, not-withstanding the Mayor's exclusive control over appropriation requests under the Boston City Charter. 22 The Court there said that the provisions of

the statute allowing collective bargaining for public employees23 reveal "a

strong legislative intent" that the question of appropriating funds to meet the needs of a collective bargaining agreement should be submitted to the municipal body whose action is required to appropriate the necessary funds. 24 The provision of Boston's special act was therefore "construed" to

conform with the intent of chapter 1SOE of the General Laws. 25

The Boston City Charter also gives the Mayor the power of absolute veto over appropriations. 26 In the 1981 case the City sought a declaration

11 /d. at 23S6, 429 N.E.2d at 694 (citing Opinion of the Justices, 1981 Mass. Adv. Sh. 2169,

428 N.E.2d 117. Attorney.Gen. v. Administrative Justice of the Boston Municipal Court Dep't of the Trial Court, 1981 Mass. Adv. Sh. 2111,427 N.E.2d 735. Opinion of the Justices, 1981 Mass. Adv. Sh. 2071, 425 N.E.2d 750).

11 See, e.g., Marshall House, Inc. v. Rent Control Board of Brookline, 358 Mass. 686, 698,

266 N.E.2d 876, 88S (1971).

•• 1981 Mass. Adv. Sh. 387, 416 N.E.2d 1363. •• 1981 Mass. Adv. Sh. 1296, 421 N.E.2d 1187. •• 370 Mass. 4S5, 3SO N.E.2d 707 (1976).

22 /d. at 472, 3SO N.E.2d at 719 (citing St. 1909, c. 486, § 3).

" G.L. c. lSOE.

24 370 Mass. at 474, 3SO N.E.2d at 720 .

.. /d.

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200 1981 ANNUAL SURVEY OF MASSACHUSETI'S LAW § 8.2

whether or not the Mayor may veto a City Council appropriation of funds to meet collective bargaining obligations. 17 Superficially, it may seem ab-surd that the Mayor might veto his own request for an appropriation, but that apparent absurdity is inherent in the Boston City Charter. Only the Mayor can submit budget requests, and he may veto them absolutely. Mayors have often exercised their veto where appropriation requests have been reduced or subjected to conditions unacceptable to the executive. It is merely part of the process flowing from the separation of powers.

The City sought judicial guidance on the matter, because there is no

lan-guage whatsoever in the collective bargaining statute undercutting the Mayor's veto power. Indeed the Court in the 1976 Teachers Union Case stated that it had preserved as much of the Mayor's "veto power" as possi-ble.z• Citing McDonald v. Superior Court,19 Justice Quirico said that a statute designed to deal uniformly with a statewide problem displays on its face an intent to supersede local and special laws and to repeal inconsistent special statutes. 30 Then follows his entire exegesis of the statutory conflict:

The legislative purpose of G.L. c. 150E would be frustrated if the mayor, as a party with no role in the collective bargaining process, were permitted to veto by a stroke of the pen a collective bargaining appropriation agreed upon by designated bargaining representatives after weeks or months of negotiations. (Emphasis supplied). 31

Plainly, a stroke of the Mayor's pen is less effective than a judge's. Quite the contrary result was reached in School Committee of Boston v. City of Boston. In that case the School Committee sought an order requir-ing the City to appropriate $46,000,000 for support of special education, 31 basing its request on chapter 71B, section 5, which provides that a school committee which incurs costs for special education shall include money therefor in its annual budget, and the amount shall be added to the annual budget appropriation for school purposes "notwithstanding any general or special law or charter provisions which limit the amount of money that may be appropriated in any city or town for school purposes.'' (Emphasis sup-plied.)

The case turned, not on the Mayor's authority to submit or veto appro-priations, as did the collective bargaining cases discussed above, but on the

Every order, ordinance, resolution and vote authorizing a loan or appropriating money or accepting a statute involving the expenditure of money which is . . . returned to the city council [with the Mayor's disapproval] shall be void, and no further action shall be taken thereon . . .

27 1981 Mass. Adv. Sh. at 388-89, 416 N.E.2d at 1365-66.

21 370 Mass. 455, 474, 350 N.E.2d 707, 720 (1976).

2' 299 Mass. 321, 324, 13 N.E.2d 16, 17 (1938). •• 1981 Mass. Adv. Sh. at 398, 416 N.E.2d at 1370.

" /d. at 399, 416 N.E.2d at 1371.

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limitation on the Boston School Committee's appropriating power con-tained in Statute 1936, chapter 224, as amended. Was it superseded by the "notwithstanding" language of section S quoted above? The Court, without mentioning the passionate parental campaign to give special needs children priority in public school financing, offered this reasoned analysis of the statutory conflict:

We do not believe that the Legislature, in enacting G.L. c. 71B, § S, intended to repeal the detailed school financing system which has ex-isted in Boston since 1898. 33

§ 8.3. Exercise of Local Power. Two decisions of the Supreme Judicial Court appeared in the 1981 Survey year on municipal exercise of the police power: Rogers v. Town of Provincetown1 and Shell Oil Co. v. City of

Revere. 2 The police power has been described as including the ''right to

leg-islate in the interest of the public health, the public safety and the public morals." 3 In these two cases city or town legislation was passed arguably in the interests of public safety. In one of them (Rogers) the Court struck down an exercise of the police power even though it acknowledged the validity of the asserted public safety reasons for the local action. 4 In the other (Shell Oil) the Court sustained an exercise of the police power even though the asserted public safety reasons for the local action were proven to be based on misinformation. 5

In Rogers v. Town of Provincetown the Town had adopted a by-law

in-tended to discourage the proliferation of motorized bicycles ("mopeds"). 6

Neither an outright ban on mopeds nor restrictions on their use was an op-tion available to the Town because chapter 90, secop-tion 1B, provides that "[e]very person operating a motorized bicycle upon a way shall have the right to use any public ways in the Commonwealth except limited access or express state highways where signs specifically prohibiting bicycles have been posted . . . . " Therefore, the Town adopted the ingenious device of forbidding rentals of mopeds. 7 The purpose of the by-law was frankly

" /d. at 1305, 421 N.E.2d at 1193.

§ 8.3. ' 1981 Mass. Adv. Sh. 1728, 424 N.E.2d 239. ' 1981 Mass. Adv. Sh. 1285, 421 N.E.2d 1181.

' Commonwealth v. Strauss, 191 Mass. 545, 550, 78 N.E. 136, 137 (1906). • 1981 Mass. Adv. Sh. at 1729, 424 N.E.2d at 240.

' 1981 Mass. Adv. Sh. at 1287, 421 N.E.2d at 1183.

• 1981 Mass. Adv. Sh. at 1729, 424 N.E.2d at 240. See G.L. c. 90, § 1 defining "motorized bicycle" as a "pedal bicycle which has a helper motor . . . "

' 1981 Mass. Adv. Sh. at 1729,424 N.E.2d at 240. The November 13, 1978 by-law provided:

/d.

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202 1981 ANNUAL SURVEY OF MASSACHUSETTS LAW § 8.3

stated to be to reduce the availability of mopeds to tourists. • Chief Justice Hennessey's opinion for the Supreme Judicial Court acknowledged that " 'joyriding moped riders,' as the town phrases it, amount to a public in-convenience and may be a unique hazard in a congested resort area . . . . "9 Nevertheless, the Court held the by-law to be an undue burden upon the "rights" and "privileges" conferred upon the public by chapter 90, section lB. "The by-law frustrates the rights imminent in the statute . . . Pro-vincetown cannot achieve indirectly that which it is forbidden to achieve directly." 10

In finding the by-law repugnant to the statute the Court adverted to Bloom v. Worcester11 and quoted, with seeming approval, the following observation on repugnancy: "As a general proposition the cases dealing with the repugnancy or inconsistency of local regulations with State statutes have given considerable latitude to municipalities, requiring a sharp conflict before the local regulation has been held invalid." 12 The sharp conflict

necessary to repugnancy appears, again as quoted and approved in the opin-ion, "when either the legislative intent to preclude local action is clear, or, absent plain expression of such intent, the purpose of the statute cannot be achieved in the face of the local by-laws." 13 The Court, reading the statute broadly, apparently felt that its "purpose" could "not be achieved" if the exercise of the right to operate a moped upon public ways were burdened by adding the additional, although indirect, requirement that those wishing to use a moped in the Town must purchase one or rent it outside of Province-town and transport it into the Town.14

In Shell Oil Co. v. City of Revere the City had enacted an ordinance pro-hibiting service gas stations.•' The plaintiff claimed that banning self-service stations while allowing conventional stations to operate unjustly dis-criminated against self-service stations in violation of the fourteenth amendment.16 The City asserted that the ordinance was passed to protect the public from hazards which exist in operating self -service stations. 17 The case was referred to a master who found self -service stations to be generally as safe as conventional stations and safer than conventional stations as

• /d. at 1730, 424 N.E.2d at 241. • Id. at 1731, 424 N.E.2d at 241. 10 /d.

" 363 Mass. 136, 293 N.E.2d 268 (1973).

" 1981 Mass. Adv. Sh. at 1730, 424 N.E.2d at 240 (citing Bloom v. Worcester, 363 Mass. 136, 1S4, 293 N.E.2d 268, 279 (1973)).

" /d. (citing Grace v. Brookline, 379 Mass. 48, S4, 399 N.E.2d 1038, 1044 (1979)). 14 /d. at 1731, 424 N.E.2d at 241.

" 1981 Mass. Adv. Sh. at 1286, 421 N.E.2d at 1182. " /d.

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regards to incidence of fire.11 The trial judge adopted that finding.19 The public safety foundation for the ordinance was, therefore, found not to be supportable. Nevertheless, the trial judge found that Shell had not met its "onerous burden" of disproving the absence of any possible rational basis for the ordinance. 20

The Supreme Judicial Court granted direct appellate review and affirmed the trial court in an opinion by Justice Abrams disregarding procedural in-firmities in the interest of stating its views on an issue of concern to numerous cities and towns. 21 The opinion's analytical framework is conven-tional. The strong presumption of constitutionality in legislation affecting only economic interests is acknowledged, and the test of constitutionality is affirmed to be (1) a legitimate legislative purpose, and (2) a means rationally related to the achievement of that purpose. 22 The effect of the strong pre-sumption of constitutionality is to put upon the plaintiff the burden of dis-proving a legitimate legislative purpose and/or a rational relationship be-tween ends and means. That, this plaintiff failed to do.

Thus, even though the master found that the stated basis for the ordi-nance- the supposedly more hazardous nature of self-service stations-had no foundation in fact, and even though the judge adopted this finding, the plaintiffs failed. The opinion seemingly disapproves judicial review of the factual basis for legislative action. As an alternate route to its conclu-sion the Court points to other considerations of public health, safety and welfare which the city council might have relied upon when legislating ("customer disregard of the rules regarding smoking, turning off engines and placing gasoline in dangerous containers . . . the loss of gasoline sta-tion attendants and mechanics . . . unwillingness to leave with the gasoline companies the decision of what services are to be offered"), all apparently legitimate governmental objectives on which Shell had not sustained the burden of disproof. 23

After the Court's analysis in Shell Oil it is seriously to be doubted that any plaintiff can ever prevail against local legislation affecting only eco-nomic interests, where the plaintiff has no claim other than an asserted denial of due process and equal protection under the fourteenth amend-ment. If, however, the plaintiff can argue that the local legislation contra-venes a state Statute the standard of review will be much more strict. The Rogers standard will frustrate local legislative initiative in dealing with local conditions: not only must the local legislation not contravene a state statute;

" Id. at 1286-87, 421 N.E.2d at 1182-83.

19 /d. at 1287, 421 N.E.2d at 1183.

20 /d.

21 /d.

" /d. at 1289, 421 N.E.2d at 1184.

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204 1981 ANNUAL SURVEY OF MASSACHUSBTIS LAW §

8.4

it also must not "burden" rights accorded by the statute. This standard is more appropriate to first amendment jurisprudence than to the regulation of traffic on public ways.

No guidelines for local officials emerge from this hotchpotch of policy statements. Behind them all, however, there broods an ancient distrust of local self-government. In his incisive article, "The City as a Legal

C~ncept," Gerald Frug writes:

[T]here is a widespread belief that although cities are supposed to pro-tect the public interest, they cannot really be trusted to do so. This dis-trust engenders support for state and federal control of cities to pre-vent local abuse of power, curb local selfishness, or correct the ineffi-ciencies resulting from "balkanized" local decisionmaldng. City discretion of any kind evokes images of corruption, patronage, and even foolishness. This sense of necessity and desirability has made · local powerlessness part of our definition of modern society, so that decentralization of power appears to be a nostalgic memory of an era gone forever or a dream of romantics who fail to understand the world as it really is. 24

§ 8.4. Federal Supremacy. In

Massachusetts Council of Construction

Employers, Inc. v. Mayor of Boston'

the Supreme Judicial Court consid-ered if the Commonwealth could give preference to citizens of the Com-monwealth in employment on public construction and if the Mayor of Bos-ton could through an executive order give preference to City of BosBos-ton residents, minorities and women on construction projects paid for in part by city funds. The Court determined that neither the statute2 nor the execu-tive order offended the National L~bor Relations Act3 but that they did

of-fend the Commerce Clause4 of the United States Constitution. 5 With respect to the Executive Order, the Court with characteristic economy of ex-pression simply said that it

establishes a strict numerical requirement which is not at all targeted to the legitimate interest which the city has asserted. Given the order's

•• Frug, The City as a Legal Concept, 93 HARV. L. REv. 10S9, 1067 (1980). It is not frivolous to point out that the Supreme Judicial Court always capitalizes words applying to the Commonwealth or its officers and always uses lower case letters in speaking of municipalities. Contrast the Commonwealth or the State with the city, the Governor or the Commissioner of Revenue with the mayor, the General Court with the city council or school committee. See,

e.g., Mayor of Boston v. Treasurer and Receiver General, 1981 Mass. Adv. Sh. 23S1, 429 N.E.2d 691, passim.

§ 8.4. ' 1981 Mass. Adv. Sh. 2039, 42S N.E.2d 346. ' G.L. c. 149, § 26.

' See 29 U.S.C. § S1 et seq. (1976). • Article I, § 8, cl. 3.

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negative impact on interstate commerce linked with the broad applica-tion, it must fall. 6

Professor Frug provides an explanation for the case:

The idea of real local power conveys a picture of the strangulation of nationwide businesses by a maze of conflicting local regulations and the frustration of national political objectives by local selfishness and protectionism. Far from seeming a political choice, the rejection of local power seems implied by the need of modern large-scale organiza-tion, both public and private. 7

The United States Supreme Court granted the City's petition for cer-tiorari• and reversed the Supreme Judicial Court, saying that the Commerce Clause did not prevent the City, as a "market participant," from limiting employment on projects which it funded. 9 With respect to federally funded projects, the City's limitations were harmonious with federal affirmative action regulations.10

§ 8.5. Who Runs the Railroad? Governor King's seizure of control of the Massachusetts Bay Transportation Authority (MBT A) on November 18, 1980, provoked at least five judicial opinions on the extent of state power. Massachusetts Bay Transportation Authority Advisory Board v.

Massachusetts Bay Transportation Authority; 1 Massachusetts Bay

Trans-portation Authority Advisory Board v. Governor;2 Local 589,

Amalga-mated Transit Union v. Commonwealth of Massachusetts.3 In both 1979

and 1980, the MBT A found itself unable to continue operations during that calendar year within the limits of the budget which had been approved by the MBTA Advisory Board pursuant to chapter 161A, section S(i). In order to avoid a shutdown of transit operations, Governor King in both years seized control of the Authority, invoking the Governor's emergency powers set forth in the MBT A Enabling Act4 and under the Civil Defense Statute.' Alarmed lest its fiscal leash be undone and the cities and towns assessed the overrun, the Advisory Board following the 1980 seizure brought suit to have the Governor's action invalidated. Judge Young in the superior court issued

• /d. at 2053-54, 425 N.E.2d at 355.

7 Frug, The City as a Legal Concept, 93 HARV. L. REv. 1059, 1067 (1980). ' 102 S. Ct. 1273 (1982).

• 51 U.S.L.W. 4211, 4212 (Feb. 28, 1983).

'" /d. at 4213-14.

§ 8.5. 1 Super. Court No. 45001 (November 10, 1980) per Young J.; 1981 Mass. Adv. Sh.

403, 417 N.E.2d 7.

' 1981 Mass. Adv. Sh. 549, 417 N.E.2d 419.

' 511 F. Supp. 312 (D. Mass. 1981), modified, 666 F.2d 618 (1st Cir. 1981), cert. denied, 102

S. Ct. 2928 (1982). • G.L. c. 161A, § 20.

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206 1981 ANNUAL SURVEY OF MASSACHUSEITS LAW § 8.5

a "preliminary declaration" that the seizure was invalid. 6 Mter an extraor-dinary Saturday morning hearing, the Supreme Judicial Court vacated Judge Young's preliminary declaration.' A week later the Court promising a later opinion, entered an order that the Governor had exceeded his authority. • Without identifying the source of its authority, it allowed the MBT A to continue to operate for one more week. 9 Summoned into special session, the Legislature passed Chapter 581 of the Acts of 1980 allowing the MBT A to continue to operate.10

In February, the Supreme Judicial Court issued the promised opinion in which it held that the Governor lacked the power to seize and operate the MBT A in an emergency created not by a strike, a natural disaster or enemy attack but by its overspending its budget. 11 The Court quoted Article 20 of the Declaration of Rights of the Massachusetts Constitution 12 and said that

the Governor could not by executive order, in the absence of legislative authority, suspend the operation of chapter 161A, section 5(i). "Nor could we."l3

As indicated above, in seizing the MBTA in November of 1980, the Gov-ernor repeated his unchallenged action in December of 1979. After the Court declared his 1980 action unwarranted, the Advisory Board sought to exclude the budget overrun of nearly $12,000,000 from the 1979 expenses of the MBTA, so that the state's 1980 financial assistance would not be de-pleted thereby and the cities' and towns' burden increased. The Court said, after reviewing the sparse history of the state budget, that the "legislative intent [not to spare the cities and towns the burden of this illegal expendi-ture) seems clear." 14

The Court could have interpreted the MBT A appropriation to provide relief to the cities and towns and allow the Legislature to correct any misin-terpretation, but it put the burden of the doubt on the cities and towns. The case stands for the proposition: When a decision can go for the state or for the cities and towns, it goes for the state. The explanation may be as Pro-fessor Frug suggests, "that our highly urbanized country has chosen to have powerless cities,"15 or that courts are also dependent on the Legislature for their funds.

• Super. Court No. 45001 at 10-15; 1981 Mass. Adv. Sh. at 404-05, 417 N.E.2d at 9. ' 1981 Mass. Adv. Sh. at 406, 417 N.E.2d at 10.

• /d. at 404, 417 N.E.2d at 7. ' Id. at 404, 414, 417 N.E.2d at 7, 14.

•• /d. at 406 n.2, 417 N.E.2d at 10 n.2. " Id. at 412, 417 N.E.2d at 13.

12 Mass. Const. Pt. 1, art. 20.

" 1981 Mass. Adv. Sh. at 412, 417 N.E.2d at 13.

•• 1981 Mass. Adv. Sh. at 553, 417 N.E.2d at 422. Again judicial clairvoyance rather than analysis.

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The emergency statute passed by the Legislature in November of 1980 to allow the MBTA to continue operations also contained provisions with-drawing certain "inherent management rights" from collective bargaining.16 These rights include the right to hire, promote, assign, direct and discharge employees, to direct and control programs and departments, to determine staffing levels, to assign overtime, to hire part-time employees, and to decide how to procure goods and services. Chapter 581 also forbids the MBT A to agree to pay pensions that are based upon overtime pay or to provide for automatic cost-of-living adjustments.

These provisions came under Judge Skinner's scrutiny in the Federal District Court in a case brought by Local589 of the Transit Workers Union. The Union sought to have these provisions declared invalid as offensive to the assurances the MBT A had previously given the Secretary of Labor pur-suant to the Urban Mass Transportation Act 17 and the Contract Clause of the United States Constitution.18 Section 13(c) of the Urban Mass Transpor-tation Act provides that:

It shall be a condition of any assistance [to any local transportation system] that fair and equitable arrangements are made, as determined by Secretary of Labor, to protect the interests of employees affected by such assistance. 19

Such assurances were given repeatedly by the MBT A. The federal litiga-tion presented the queslitiga-tion if the seclitiga-tion 13(c) assurances were inconsistent with chapter 581 and, if so, which prevailed. The District Court held that the legislature could not withdraw matters from bargaining which were covered by prior collective bargaining agreements. 20

The Court of Appeals reversed the District Court. 21 Judge Breyer's opin-ion is a model of reasoned articulatopin-ion. He carefully expounded the legislative history of the Urban Mass Transportation Act to show that the language quoted above was only intended to protect employees from unfav-orable consequences of federal assistance, not forever to preserve particular collective bargaining provisions. 22 He also took the opportunity to limit the thrust of United States Trust Co. v. New Jersey, 23 which had revived the Contract Clause as a check on local government. The Court said, «United

States Trust limits its stricter 'review' approach to state laws in the

'finan-16 St. 1980, c. 581, § 8.

" 49

u.s.c.

§§ 1601-1613 (1976). " U.S. Const. art. 1, § 10.

I t 49

u.s.c.

1609 (1976).

•• 511 F. Supp. at 318. •• 666 F.2d at 620.

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1981 ANNUAL SURVEY OF MASSACHUSETI'S LAW § 8.6

cial' area -laws which impair 'financial obligations.' . . . [It] specifically distinguished . . . state actions in other areas which might 'fall within the reserved powers that cannot be contracted away.' "24

B. APPROPRIATING LAWS

§ 8.6. Testing Outside Sections of Appropriation Acts. A total of 299 numbered outside sections accompanied Statute 1981, chapter 351, the an-nual appropriation act. Seventy-seven were vetoed by the Governor. Many of the sections enacted had nothing to do with the expenditure of funds pro-vided in the budget. State agencies were created and abolished; 1 the duties

of others rearranged;2 county government was reformed;3 dozens of fees and charges were increased;• enforcement of parking violations was dra-matically streamlined and overhauled.' With support it can be argued that the legislation passed in 1981 as outside sections of the general appropria-tion act and supplementary appropriaappropria-tion acts equalled or exceeded in im-portance the remainder of the entire year's legislative output. In political terms the extensive use of outside sections indicates that the Ways and Means Committees of the two branches otthe legislature are becoming Ex-ecutive Committees, able to bypass all usual legislative channels and pro-pose general legislation which must, to be sure, be voted upon by the mem-bership - but in a form and at a time in the session where there is over-whelming pressure on the membership to vote yes.

This practice is attributable to frustration with current legislative proce-dures. So far, assessments of the practice have generally reflected views on the merits of what has been enacted. But thought should be given to its im-plications. Reform of procedures would be sounder, in a representative body, than massive delegation of legislative power to de facto Executive Committees.

The annual general appropriation act is mandated by Article 636 of the amendments to the Massachusetts Constitution, proposed by the 1917-1918 Constitutional Convention and generally referred to as the "budget amend-ment." The budget amendment does not contemplate what have come to be known as "outside sections," that is, legislation enacted as separate sec-tions of the bill distinct from the appropriation tables themselves. However, the practice of enacting them is at least as old as the budget amendment

24 666 F.2d at 642.

§ 8.6. ' Statute 1981, c. 351, § 192, created the Bay State Skills Corporation adding a new Chapter 401 to the General Laws. Section 272 abolished the State Building Code Commission.

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itself. The first general appropriation act to be passed under the budget amendment to the Constitution contained one outside section. 7 Outside

sec-tions have typically prescribed details of administration, condisec-tions, or re-strictions on the money appropriated in the bill. Only recently have they been used to enact measures indistinguishable from general legislation.

The budget amendment extends to the Governor an "item veto" over matters contained in the appropriation acts -that is, the Governor may veto "items or parts of items," and may also reduce the amount appropri-ated for any item.• The item veto is, of course, distinctly at variance with the usual Governor's veto power. Ordinarily the Governor has the power to veto only entire bills presented for his approval; partial vetos are imper-missible as are interstitial tinkerings such as reductions in amounts appro-priated. Not surprisingly, a question has arisen as to the extent of the Gov-ernor's veto over outside sections of appropriation acts. In a 1981 Opinion

of the Justices9 this question was addressed.

The problem of construction was that "outside sections" did not meet the amendment's judicially-created definition of "items" as "separable fis-cal units." If they are not "items," it was argued, then the Governor has no power to item-veto them. Reading the amendment as a whole, however, the Supreme Judicial Court found an intention to make "the Governor's powers coextensive with the Legislature's." 10 In other words, if the

Legislature has the power to insert general legislation in the annual ap-propriation act, then the Governor has power to veto it. Furthermore, his veto is severable and may be exercised on a section-by-section basis.

A more difficult question is presented where the vetoed language appears as a proviso to an appropriation item itself. Plainly, if the General Court appropriates money upon certain conditions the Governor cannot be al-lowed to disapprove the condition by use of the item veto while allowing the appropriation to stand; this was so declared in a 1936 Opinion of the

Justices. 11 If such a procedure were permissible the undoubted power of the

General Court to put conditions and limitations on the expenditure of appropriated funds would be gravely impaired. What should be the result, however, where the General Court attaches language to an appropriation item which is arguably not a restriction on the item but is arguably general legislation? Shortly after the Justices issued their Opinion on the item veto the Court was presented with this further question.

In the course of enacting the general appropriation act for fiscal1982 the General Court attached to certain line items a clause designating the

Ad-7 Sp. St. 1919, c. 153.

' Mass. Const. amend. art. 63, § 5.

• 1981 Mass. Adv. Sh. 2071, 425 N.E.2d 750.

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210 1981 ANNUAL SURVEY OF MASSACHUSETTS LAW § 8.6

ministrative Justice of the Boston Municipal Court Department as the Ad-ministrative Justice of the Housing Court Department, in effect eliminating the latter as an independent department of the Trial Court. '2 The reasons

for this move were obscure and suspect. The action itself perfectly illus-trates the vice of legislating via the budget. Had this measure been consid-ered in the usual legislative course by the Committee on the Judiciary (where it belonged), the measure might have been enacted nonetheless but we would know the reason for it and a roll call vote would have shown where its support lay. After enactment of the general appropriation act the Governor vetoed the clause.13 Was this veto the impermissible elimination

of a legislatively imposed condition on the appropriation, or a permissible application of the item veto power which, as set out above, extends to general legislation passed in a budget act? The Supreme Judicial Court passed on the question twice, once in an advisory opinion 14 and once in a

case brought by the Attorney General" to test the action.

Both opinions concluded that the veto was valid, setting out as general rules that (1) substance prevails over form, and the Governor's special veto power conferred by the budget amendment is in no way diminished by the fact that the provision in question appears as part of a line item rather than as a separate section, and (2) the test is that stated to be the ''majority'' view of courts in states which have item-veto provisions in their constitutions: '' [W]here a provision of an appropriation bill does not direct the way an ap-propriation is to be used or qualify the apap-propriation, the provision is separable and susceptible to an item veto." 16 On this test the Court had no

difficulty in finding that the clause at issue did not constitute a restriction or condition on the expenditure of funds and hence was properly vetoed.

It is, of course, helpful to have the rules of this game laid down, but we think that the better choice would be to discontinue the game itself and cease the practice of enacting general legislation in appropriation acts, which were intended by the framers of the budget amendment to be unique legislation for the sole purpose of establishing budgets and appropriating money.

12 Attorney General v. Administrative Justice of the Boston Municipal Court of the Trial

Court, 1981 Mass. Adv. Sh. 2111, 2112, 427 N.E.2d 73S, 736.

"Id.

•• Opinion of the Justices to the House of Representatives, 1981 Mass. Adv. Sh. 2169, 428 N.E.2d 117.

" See note 12, supra.

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