Attorney General v. Administrative Justice of Boston Municipal Court Department of Trial Court
Attorney General v. Administrative Justice of Boston Municipal Court Department of Trial Court
Opinion of the Court
The Attorney General commenced this action by a complaint filed in the Supreme Judicial Court for Suffolk County. He seeks an order in the nature of quo warranto (G. L. c. 249, § 9), or, alternatively, an order pursuant to the court’s general superintendence power (G. L. c. 211, § 3), declaring that the defendant, the Administrative Justice of the Boston Municipal Court Department of the Trial Court, is not also the Administrative
“1. Does the defendant lack authority to hold the office of Administrative Justice of the Housing Court Department of the Trial Court because the provisions of the general appropriation bill, St. 1981, c. 351, purporting to confer the title and statutory duties of that office, were lawfully disapproved by the Governor pursuant to Section 5 of Article 63 of the Amendments to the Massachusetts Constitution?
“2. Does the defendant lack authority to hold the office of Administrative Justice of the Housing Court Department of the Trial Court, notwithstanding the provisions of the general appropriation bill, because under the terms of St. 1978, c. 478, § 332, another Justice of the Trial Court continues to hold and to exercise the statutory duties of that office?”
We conclude that the Governor lawfully disapproved the provisions in issue pursuant to authority conferred by § 5 of art. 63 of the Amendments to the Massachusetts Constitution. Accordingly, we answer the first question in the affirmative. In doing so, we conclude that the defendant does not hold the position of Administrative Justice of the Housing Court Department of the Trial Court, and thus resolve the dispute that gave rise to this action. Consequently, there is no need to answer the second question.
We summarize the material facts. The defendant, Harry J. Elam, is the duly appointed Administrative Justice of the Boston Municipal Court Department. E. George Daher has held the title of, and exercised the powers and duties of, Ad
On or about July 15, 1981, the General Court passed a general appropriation bill for fiscal year 1982 and submitted it to the Governor. The bill included separate line item appropriations for each division of the Housing Court Department, but eliminated funding for its administrative office. Line item 0336-0100, providing for salaries and expenses of the Boston division of the Housing Court Department, includes the following language: “[that, notwithstanding the provisions of chapters one hundred and eighty-five C and two hundred and eleven B of the General Laws to the contrary, the administrative justice of the housing court department holding such office prior to the effective date of this act shall receive a salary equivalent to a justice of the trial court]; and provided further that notwithstanding said chapters of the General Laws the administrative justice of the Boston municipal court department shall be the administrative head of the Boston division of the housing court department . . . ”
On July 21, 1981, the Governor signed the general appropriation bill and returned it to the House of Representatives with a message indicating he had disapproved the above items to the extent they transferred to the defendant administrative authority over the Housing Court Department. Although the House overrode the Governor’s disapproval or reduction of certain other items and requested the opinion of the Justices of this court as to the Governor’s authority to disapprove certain riders or outside sections of the bill,
On August 17, 1981, the Chief Administrative Justice of the Trial Court advised the defendant in writing that, absent any contrary statutory interpretation, he should be prepared to assume the additional duties of administrative head of the Housing Court Department on August 21, 1981, the date the provisions were to take effect. He took this action “to ensure that the administration of the Trial Court proceeds in an orderly manner. . . .”
1. The first question asks whether the defendant lacks authority to hold the office of Administrative Justice of the Housing Court Department because the provisions in the general appropriation act purporting to confer on him the title and duties of the office were validly disapproved by the Governor pursuant to § 5 of art. 63 of the Amendments. Section 5 provides: “The governor may disapprove or reduce items or parts of items in any bill appropriating money. So much of such bill as he approves shall upon his
Thus, among the States which, like Massachusetts, permit partial vetoes, our conclusion accords with what appears to be the majority view, viz.: that where a provision of an appropriation bill does not direct the way an appropriation is to be used or qualify the appropriation, the provision is separable and susceptible to an item veto.
The line items involved provide appropriations for the operation of the Boston Municipal Court Department and the Housing Court Department. In no way does the deletion of the provision that the Administrative Justice of the Boston Municipal Court Department shall be the Administrative Justice of the Housing Court Department affect the object of the Legislature to provide funds for the operation of these courts.
Nor do we perceive that the disapproved provisions constitute restrictions or conditions on the expenditure of funds. In Opinion of the Justices, 294 Mass. 616, 619 (1936), the Justices considered a provision added by the Legislature to an item appropriating a sum not exceeding $100,000 for “extraordinary expenses and for transfer made to cover deficiencies.” The provision disapproved by the Governor was that certain minimum amounts of the $100,000 be set aside for various categories of contemplated expenditures.* **
While we do not intimate that skillful drafting may transform a separable provision of general legislation to a restriction or condition, we note that the Legislature here did not use conditional or restrictive wording in the disapproved provisions. The relevant language in the provision in line item 0335-0001, for example, is simply: “provided that . . . the administrative justice of said Boston municipal court department shall serve as the administrative justice of the housing court.” The wording of the other two provisions is nearly identical. Contrast this language with “subject, however, to the condition that,” used in the provision considered in Opinion of the Justices, 294 Mass. 616, 619 (1936), and “no funds authorized under this item shall be allowed to pay for,” used in the provision considered in Opinion of the Justices, 373 Mass. 911, 912 (1977). This contrast in wording further buttresses our conclusion that the provisions were not conditions or restrictions on the appropriations involved.
We conclude that the provisions in line items 0335-0001, 0336-0100, and 0336-0200 disapproved by the Governor are
2. The second reported question asks whether the defendant lacks authority to hold the office of Administrative Justice of the Housing Court Department because another Trial Court justice continues to htild and to exercise the duties of the office. Because the answer given to the first reported question is dispositive of the case, we need not answer the second.
We note, however, that the Attorney General and amici curiae raise the difficult issue whether the constitutionally protected tenure of the incumbent Administrative Justice of the Housing Court Department is impermissibly affected because the language at issue is an isolated instance of legislative alteration of a particular judicial office. They argue that the contested provisions are an unconstitutional legislative appointment of a judicial officer. Compare Opinion of the Justices, 372 Mass. 883, 902-905 (1977). Further, the assertion is that the legislative language is an implied repeal of § 332 of the Court Reorganization Act (St. 1978, c. 478), but they question whether an appropriation act could effect any change beyond the related fiscal year. These arguments raise significant constitutional questions which need not be addressed here.
The case is remanded to the county court where an order is to be entered consistent with this opinion and consistent with our conclusions that the Governor lawfully disapproved the legislative provisions here in issue, that the Administrative Justice of the Boston Municipal Court Department does not validly hold title to the additional position of Administrative Justice of the Housing Court Department, and that the general appropriation bill (St. 1981, c. 351) as disapproved in part by the Governor has had no effect upon the standing of E. George Daher as Administrative Justice of the Housing Court Department of the Trial Court.
So ordered.
The bracketed language was not disapproved by the Governor.
See the Justices’ response in Opinion of the Justices, post 820 (1981), discussed in the text.
The Attorney General correctly cites the following cases to support the conclusion that this is the majority view: State ex rel. Turner v. Iowa State Highway Comm’n, 186 N.W.2d 141, 150-151 (Iowa 1971). Henry
The language added by the Legislature was: “subject, however, to the condition that not less than fifty thousand dollars of the sum appropriated by this item shall be reserved for use in carrying out the provisions of sections twenty-five to thirty-three, inclusive, for chapter thirty-three of the General Laws, as so appearing, not less than ten thousand dollars thereof shall be reserved for use for the entertainment of the President of the United States and other distinguished guests while visiting or passing through the commonwealth, and not more than five thousand dollars
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