Mayor of Boston v. Treasurer & Receiver General

429 N.E.2d 691, 384 Mass. 718, 1981 Mass. LEXIS 1503
CourtMassachusetts Supreme Judicial Court
DecidedDecember 15, 1981
StatusPublished
Cited by23 cases

This text of 429 N.E.2d 691 (Mayor of Boston v. Treasurer & Receiver General) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mayor of Boston v. Treasurer & Receiver General, 429 N.E.2d 691, 384 Mass. 718, 1981 Mass. LEXIS 1503 (Mass. 1981).

Opinions

Wilkins, J.

In providing an additional $348,000,000 in financial aid to the cities and towns in the budget for the current year, the Legislature imposed a specific limitation on the distribution of funds to the city of Boston. St. 1981, [719]*719c. 351, § 2, item 0611-5500. That limitation conditioned the distribution to Boston on the city’s maintaining “the same level of police and fire protective services as during fiscal [1980]” and maintaining “as operating facilities all police and fire stations operating during fiscal [1980].”1 The city and its mayor brought this action to challenge the limitation on Boston on the ground that it violates the Home Rule Amendment, art. 2 of the Amendments to the Constitution of the Commonwealth, as appearing in art. 89 of the Amendments, approved by the people in 1966.2 They argue that the proviso should be treated as a nullity and that Boston’s share of the additional local aid should be distributed to it free of the limitation.3

[720]*720We agree that the limitation exclusively imposed on Boston was adopted in violation of the Home Rule Amendment and is invalid. We do not agree, however, that the proviso can properly be severed from the grant to Boston and Boston’s funds then distributed to it free of the limitation. Moreover, we agree with the Attorney General, arguing on behalf of the defendant Treasurer and Receiver General, that, if the limitation on Boston is unconstitutional, the entire allocation of $348,000,000 in additional local aid must be struck down. We have no hesitancy in concluding, however, that the unconstitutionality of the limitation on Boston does not invalidate any other portions of the budget, which we believe the Legislature would have adopted in any event.

We are aware of the disruptive consequences of the result we reach in this case. It would have been less disruptive to reach a contrary conclusion. It is, however, often precisely when seductive, extraneous pressures are most intense that the need is greatest for judges to focus on constitutional principles. We believe any disruption need only be temporary. The Legislature is still in session. The problem is not insoluble.

The plaintiffs commenced this action in the Supreme Judicial Court for the County of Suffolk seeking declaratory and injunctive relief against the operation of the limitation imposed on Boston’s receipt of its share of the funds additionally made available by St. 1981, c. 351, § 2, item 0611-5500. A single justice reserved and reported the case to this court on the complaint, the answer, and a statement of agreed facts.

We summarize certain of these facts. Item 0611-5500 was not enacted on a petition filed or approved by the voters or by the mayor and city council. Nor was item 0611-5500 enacted by a two-thirds vote of each branch of the General Court following a recommendation of the Governor.4 The number of [721]*721noncivilian personnel of the Boston police department was 1,768 on September 18, 1981, and had been in excess of 2,100 both at the beginning and at the end of the 1980 fiscal year. Also, there were 1,554 noncivilian personnel in the Boston fire department in the middle of September, 1981, and there had been more than 1,900 noncivilian employees in that department both at the beginning and at the end of the 1980 fiscal year. Two district police stations open in fiscal year 1980 have been closed, as have two fire stations. The Commissioner of Revenue has advised the mayor of Boston that distribution of funds to Boston made available pursuant to item 0611-5500, half of which would otherwise have been distributable before December 31, will not be made unless the city complies with the limitation on Boston stated in item 0611-5500 (or unless the Secretary of Public Safety approves). The total amount estimated to be payable to Boston under item 0611-5500 is approximately $56,700,000. The statement of agreed facts does not show what additional costs would be imposed on Boston if it were to comply with the limitation contained in item 0611-5500.5 There is nothing in the record or in any legislative document which shows that additional assistance was given to Boston in item 0611-5500 to compensate Boston for the cost of complying with the limitation concerning police and fire services. We note that in an additional proviso contained in item 0611-5500, and quoted below,6 the Legislature modi[722]*722fied the formula that would otherwise have been used in allocating the additional funds among cities and towns. The modification appears to be designed to benefit certain municipalities that are challenging the results of the 1980 , Federal census. We infer that Boston is one of those municipalities but do not know how much this adjustment in the formula has benefited Boston.

The Home Rule Amendment provides (in relevant part) that the General Court has “the power to act in relation to cities and towns, but only by general laws which apply alike to all cities, or to all towns, or to all cities and towns, or to a class of not fewer than two” (emphasis supplied). In passing item 0611-5500, to provide reimbursement to cities and towns, the General Court was acting “in relation to cities and towns.” The act containing the budget was a general law. Finally, it is apparent that, in limiting Boston’s use of the funds, the law does not “apply alike to all cities, or to all towns, or to all cities and towns, or to a class of not fewer than two.” It applies to a class fewer than two, that is, to Boston alone. Boston alone is told how to use funds made available to it. It alone is denied the opportunity to decide how to allocate funds generally made available to meet the financial problems of Proposition 2lA. Boston alone is told that, if it wants the stated financial aid, it must achieve compliance with the restrictions of Proposition 2Vz, largely if not entirely, by budgetary reductions in departments other than police and fire.

A straight-forward reading of the Home Rule Amendment indicates that the restriction on legislative action imposed by that Amendment has been violated by the limitation concerning police and fire protection in Boston. There are procedures described in the Home Rule Amendment by which the limitation might have been lawfully enacted. The procedure followed here is not one of them. Although “the scope of the disability imposed on the Legislature by the [Home Rule] [A]mendment is quite narrow” (Arlington v. Board of Conciliation & Arbitration, 370 Mass. 769, 773 [1976]), that disability is total and its scope is explicit. It [723]*723would be ironic if so recently after careful attention has been given to preventing the budgetary process from being misused to reduce the constitutional authority of the Governor,7 this court should endorse a budgetary device that seriously undercuts the protections of the Home Rule Amendment.

The conclusions we reach are supported by a thoughtful analysis of the Home Rule Amendment, published shortly after its enactment in 1966. See Eighth Report of the Special Commission on Implementation of the Municipal Home Rule Amendment to the State Constitution, Senate Doc. No.

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Mayor of Boston v. Treasurer & Receiver General
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Bluebook (online)
429 N.E.2d 691, 384 Mass. 718, 1981 Mass. LEXIS 1503, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mayor-of-boston-v-treasurer-receiver-general-mass-1981.