Lance v. McGreevey

853 A.2d 856, 180 N.J. 590, 2004 N.J. LEXIS 915

• Court: Supreme Court of New Jersey
• Decided: July 26, 2004
• Status: Published

Opinions

PER CURIAM.

This litigation requires us to determine whether the State properly can rely on borrowed funds to balance its annual budget and fund general expenses, an issue of first impression. It also seeks to revisit a legal debate over the constitutionality of certain bonding mechanisms enacted by the legislative and executive branches without voter approval. See generally Lonegan v. State, 174 N.J. 435, 809 A2d 91 (2002) (Lonegan I) (outlining history of similar challenges). In respect of the first issue, we hold that contract bond proceeds used to fund general expenses in the State budget do not constitute “revenue” for purposes of Article VIII, Section 2, paragraph 2 of the New Jersey Constitution (the Appropriations Clause), and cannot be used to balance the annual budget.

However, because no decision of this Court clearly has set forth the rule of law announced today, and for other reasons expressed below, we apply our holding on a prospective basis. Our decision, therefore, will apply only in connection with next fiscal year’s budget and thereafter. As a result, the State properly may proceed with the bond sales as authorized, and no aspect of this decision shall affect either the currently proposed sale or any prior bond authorizations. In view of our disposition, and because we already have addressed whether contract or appropriations debt violates Article VIII, Section 2, paragraph 3 (the Debt Limitation Clause), we need not revisit that issue here. See Lonegan v. State, 176 N.J. 2, 819 A2d 395 (2003) (Lonegan II) (“[O]nly debt that is legally enforceable against the State is subject to the Debt Limitation Clause.”).

I.

We briefly summarize the facts and procedural history, derived largely from the Law Division’s decision. The legislative and executive branches adopted an annual budget in the form of an appropriations act, L. 2004, c. 71 (the Appropriations Act) and related legislation for Fiscal Year 2005, which began on July 1, 2004, and ends on June 30,2005. Two of the related measures are the Cigarette Tax Securitization Act of 2004, L. 2004, c. 68 (the Cigarette Tax Act), and the Motor Vehicle Surcharges Securitization Act of 2004, L. 2004, c. 70 (the Surcharges Act). Those acts make available bond proceeds in excess of $1.9 billion to be appropriated by the Legislature “for any lawful purpose,” including the operating expenditures of State government.

Under both statutes, the New Jersey Economic Development Authority (Authority or EDA) is the agency authorized to issue the bonds and deposit the proceeds from their sale into separate funds from which the proceeds will then be transferred to the General Fund at the State Treasurer’s request. In the case of the Surcharges Act, the statute authorizes the EDA and the Treasurer to enter into a contract to repay the proposed bond obligations from a fund containing unsafe driving surcharges, subject to appropriation by the Legislature. Similarly, the Cigarette Tax Act authorizes the EDA, consistent with a contract with the Treasurer and subject to legislative appropriation, to repay the proposed bond obligations from a fund generated by dedicated cigarette tax revenues.

More specifically, to secure payment of the bonds, the acts authorize the EDA to pledge the contracts between the Authority and the Treasurer. The statutes explicitly provide, however, that the State is obligated to make payments on the bonds only if the Legislature appropriates monies for that purpose. Each statute denominates the bond proceeds as revenue of the State when transferred to the General Fund. Consistent with that denomination, the Governor has certified the expected bond proceeds as anticipated revenue for purposes of the Appropriations Act. Absent recognition of the bond proceeds as revenue, the Appropriations Act would show a deficit of approximately $1.5 billion.

Plaintiffs filed suit seeking a declaration that the proceeds of the intended bond sale are not revenue as that term is used in the Appropriations Clause. They further claim that, absent voter approval, the contract or appropriations debt expected to be generated by the Surcharges Act and the Cigarette Tax Act is unconstitutional under the Debt Limitation Clause. The Law Division ruled against plaintiffs on both issues. This Court granted plaintiffs’ motion for direct certification, and dismissed as moot plaintiffs’ related motion to stay the issuance of any bonds based on the State’s representation that it would issue no bonds prior to the date of our anticipated decision.

II.

As a preliminary matter, the State acknowledges that this Court has never decided the question concerning what constitutes revenue under the Appropriations Clause. (For convenience, we refer to defendants collectively as the State.) At the same time, however, the State argues that the judiciary should decline to address the question because it falls exclusively within the province of the executive branch. The Law Division rejected that argument, as do we. Resolving the present dispute not only is consistent with our constitutional role, but also “is a matter of judicial obligation.” White v. Township of N. Bergen, 77 N.J. 538, 555, 391 A2d 911 (1978).

Turning to the merits of the revenue question, the Appropriations Clause provides:

No money shall be drawn from the State treasury but for appropriations made by law. All moneys for the support of the State government and for all other State purposes as far as can be ascertained or reasonably foreseen, shall he provided for in one general appropriation law covering one and the same fiscal year; except that when a change in the fiscal year is made, necessary provision may be made to effect the transition. No general appropriation law or other law appropriating money for any State purpose shall be enacted if the appropriation contained therein, together with all prior appropriations made for the same fiscal period, shall exceed the total amount of revenue on hand and anticipated which will be available to meet such appropriations during such fiscal period, as certified by the Governor.

[N.J. Const. art. VIII, § 2, ¶2.]

We previously have observed that the Clause reflects a “constitutional command that the State’s finances be conducted on the basis of a single fiscal year covered by a single balanced budget.” City of Camden v. Byrne, 82 N.J. 133, 151, 411 A.2d 462 (1980). The requirement that the State enact a balanced budget each fiscal year “cannot in any sense be regarded as merely providing governmental housekeeping details, necessary and important but not truly vital.” Id. at 146, 411 A.2d 462 (internal quotation marks and citation omitted). Rather, the Clause “must ... be given full and complete effect in accordance with [its] clear and obvious intent.” Ibid.

Viewed in that context, the question is whether the constitutional framers would have considered the Appropriations Act, relying as it does on $1.9 billion in borrowed monies to fund general expenses, to be consistent with a “balanced budget.” (For purposes of our analysis, general expenses include the ordinary, operating, and day-to-day costs of government.) The short answer is no. We cannot reasonably find that the current Appropriations Act constitutes a balanced budget without defeating the very purpose behind the Appropriations Clause. See State v. Trump Hotels & Casino Resorts, Inc., 160 N.J. 505, 527, 734 A2d 1160 (1999) (instructing that, although legislation challenged on constitutional grounds is entitled to presumption of validity, underlying constitutional provision “must be interpreted and applied in a manner that serves to effectuate fully and fairly its overriding purpose”) (internal quotation marks and citation omitted).

That purpose is to bar the State from adopting an annual budget in which expenditures exceed revenues. Indeed, the parties do not dispute that a balanced budget does not exceed certified revenues. The dispute is over how to treat bond proceeds that are intended to fund general expenses of State government. Plaintiffs argue that relying on such proceeds belies the common-sense notion of a balanced budget and is contrary to the framers’ original intent in drafting the Appropriations Clause. In response, the State notes that the Clause does not define revenue and that, in the absence of an explicit definition, the authority to define that term rests exclusively with the Governor consistent with his expressed authority to “certify” the amount of revenue available for each year.

We agree with plaintiffs. In a different setting, this Court has observed that “bond proceeds scarcely resemble ‘State revenue.’ ” Id. at 536, 734 A.2d 1160. At least one other court that has defined the term broadly has done so without including borrowed monies within the meaning of revenue. The Supreme Court of Oregon has explained:

When we refer to the revenues of the state, we usually mean the annual or periodic yield of taxes, excise, customs, etc., which the state collects and receives into the treasury for public use, but the word “revenues” may be much broader than that as it may include rent, yield, as of land, profit. It includes annual and periodical rent, profits, interest, or issues of any species of property, real or personal, income. [Pub. Mkt. Co. of Portland v. City of Portland, 171 Or. 522, 130 P.2d 624, 644 (1942) (internal quotation marks and citation omitted), supplemented on reh’g by, 171 Or. 522, 138 P.2d 916 (1943).]

We are not persuaded by a dictionary definition put forward by the State describing government revenue as “a broad and general term, including all public monies which the State collects and receives, from whatever source and in whatever manner.” Black’s Law Dictionary 1185 (5th ed.1979). Indeed, that definition begins with prefatory language stating: “As applied to the income of a government,” which qualifies the broad language that follows. Ibid. Certainly, as plaintiffs point out, income does not obviously include borrowed funds. See, e.g., ibid. (defining “public revenues” as “[t]he income which a government collects and receives into its treasury” including “[a]nnual or periodical yield of taxes, excise, custom, dues, [and] rents”) (emphasis added). We observe also that a dictionary available at the time the Constitution of 1947 was adopted defined revenue to include “[t]he annual or periodical yield of taxes, excise, customs, duties, rents, etc., which a nation, State, or municipality collects and receives into the treasury for public use; public income of whatever kind.” Webster’s New International Dictionary 2132 (2d ed.1934, updated 1945) (emphasis added). Most relevant, the Governor’s proposed budget for Fiscal Year 2004-2005 defines revenues similarly in the Reader’s Guide Glossary at A-12: “Funds received from taxes, fees or other sources that are treated as income to the state and are used to finance expenditures.”

We recognize that after revenues are defined, disputes can then arise over the definition of income as that concept appears in the definitions we have reviewed. In such circumstances, we do well to remember Learned Hand’s observation that “it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary.” Cabell v. Markham, 148 F.2d 737, 739 (2d Cir.), aff'd, 326 U.S. 404, 66 S.Ct. 193, 90 L.Ed. 165 (1945). We recall, also, this Court’s prior teaching that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” Vreeland v. Byrne, 72 N.J. 292, 302, 370 A2d 825 (1977) (internal quotation marks and citation omitted). That teaching supports the straightforward notion that borrowed monies, which themselves are a form of expenditure when repaid, are not income (i.e., revenues) and cannot be used for the purpose of funding or balancing any portion of the budget pertaining to general costs without violating the Appropriations Clause.

Nor do we agree with the State’s contention that a once-considered constitutional provision, the so-called “Single Fund” paragraph, requires a contrary conclusion. Although that provision contained a broad definition of revenue, it was never adopted. Moreover, even that definition did not specifically include borrowed monies as government revenue. Our rationale parallels that of Justice Stevens, who once remarked in respect of legislation that “the intentions of the proponents of previous legislation which was never enacted are at most a secondary aid to construing the intent of those that enacted a descendent of it.” Kosak v. United States, 465 U.S. 848, 867 n. 5, 104 S.Ct. 1519, 1530, 79 L.Ed.2d 860, 875 (1984) (Stevens, J., dissenting).

Although our dissenting colleague raises a number of interesting questions, they need not be answered to resolve this dispute. By way of example, questions relating to the applicability of the single object language in the Debt Limitation Clause have not been raised by the parties, and, most important, their disposition is not necessary to resolve this ease. We have always adhered to the principle that courts should address only those constitutional provisions that are necessary to dispose of a matter on appeal. See In Re New Jersey Am. Water Co., 169 N.J. 181, 197, 777 A2d 46 (2001) (stating that “courts should not reach constitutional questions unless necessary to the disposition of the litigation”) (citation omitted).

Lastly, barring the bond sales before us would require significant revisions to, if not a complete overhaul of, the current fiscal year’s budget. The resulting disruption to the State government could be great. We also are satisfied that the legislative and executive branches acted in good faith, relying on an honest, albeit erroneous, belief that the budget properly was balanced under existing constitutional standards. For those reasons we are convinced that our holding should be given prospective effect only. See Salorio v. Glaser, 93 N.J. 447, 462-69, 461 A2d 1100 (1983) (discussing practice of applying judicial decisions prospectively in appropriate circumstances). As a result, the State may proceed with the bond sales authorized by the Cigarette Tax Act and the Surcharges Act. Moreover, this decision shall not affect either those or any prior bond authorizations or sales.

III.

We reverse the judgment of the Law Division except to the extent that our holding is to be applied on a prospective basis only.