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«Office of The Attorney General (860) 808-5319 State of Connecticut November 17, 2015 The Honorable Leonard A. Fasano Senate Minority Leader ...»

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GEORGE C. JEPSEN 55 Elm Street

ATTORNEY GENERAL P.O. Box 120

Hartford, CT 06141-0120

Office of The Attorney General (860) 808-5319

State of Connecticut

November 17, 2015

The Honorable Leonard A. Fasano

Senate Minority Leader

Legislative Office Building

Suite 3400

Hartford, CT 06106

Dear Senator Fasano:

You have asked for a formal legal opinion concerning the legal effect of the constitutional and statutory spending caps set forth, respectively, in the Connecticut constitution, article third, § 18, and Conn. Gen. Stat. § 2-33a.

Specifically, you ask:

(1) Do we have an enforceable constitutional spending cap, or did voter approval of the spending cap create only the promise of a future enforceable right that is contingent upon the legislature fulfilling its obligation to adopt definitions for the enforcement of the spending cap by the requisite three fifths vote; and (2) Is the super majority vote requirement contained in the statutory spending cap binding on current and future legislatures, or absent an enforceable constitutional spending cap, could the general assembly exceed the cap with a simple majority vote.

We conclude that unless and until the General Assembly adopts the definitions that the constitutional spending cap requires by the necessary threefifths vote of the members of each house, the constitutional spending cap has no legal effect.

We further conclude that a court would likely hold that the General Assembly could exceed the statutory spending cap by a simple majority vote. We The Honorable Leonard A. Fasano Page 2 base this conclusion on the well-established principles that one legislature cannot control the exercise of power by a subsequent legislature, and that when two laws conflict, the later enacted one prevails. Although it would not bind a court, this opinion represents our considered judgment as to how a court would likely approach and resolve your questions in light of statutory construction principles and binding Connecticut precedent.

I. History of the Constitutional and Statutory Spending Caps In answering your questions, it is important to understand the history of the constitutional and statutory spending caps, and their relationship to each other.

You have set forth some of this history in your letter.

On August 21, 1991, the General Assembly passed House Joint Resolution 205, which proposed amending article third of the state constitution to add a constitutional spending cap. The proposed amendment prohibited the General Assembly from authorizing an increase in general budget expenditures that exceeded the percentage increase in personal income or inflation, whichever was higher, in the absence of a declaration by the Governor that there exists an emergency or extraordinary circumstances and a vote by at least three-fifths of each house of the General Assembly to exceed such limit. It further expressly required that the General Assembly define by law the terms "increase in personal income," "increase in inflation," and "general budget expenditures" by a vote of three-fifths of the members of each house. See H.J.R. 205 (June 1991 Special Session).

During floor debate on the proposed amendment, legislators discussed the requirement that the General Assembly define the amendment's key terms and recognized that these definitions were essential prerequisites to the amendment taking effect. See 34 Conn. S. Proc., pt. 13, 1991 Sess. 205 (Aug. 21, 1991); 34 Conn. H. R. Proc., pt. 34, 1991 Sess. 799-805 (July 1, 1991). In the House, when asked whether "the definitions that are spoken of here would need to be adopted and if so, how would that occur," Representative McNally explained that "the Resolution states that enactment or amendment of such definitions shall require a three-fifths vote of the members of each House of the General Assembly. So at that time a three-fifths vote of both Chambers would be required to implement definitions as proposed in this Resolution." 34 Conn. H. R. Proc., pt. 34, 1991 Sess. 800-801 (July 1, 1991). When Representative Prelli followed up with a question as to whether "general budget expenditures" meant gross or net appropriation, Representative McNally responded that "general budget expenditures are left for future definition. That could include whatever... threeThe Honorable Leonard A. Fasano Page 3 fifths of both Chambers of the General Assembly define it as." Id. at 803-804. In the Senate, Senator Fleming questioned whether the cap would "be able to go into effect if we were unable to reach that 3/5's vote and enact these definitions to get it going?" 34 Conn. S. Proc., pt. 13, 1991 Sess. 205 (Aug. 21, 1991). Senator Herbst responded, "it is doubtful that it could go into effect without that." Id. As Representative McNally summed up, the proposed amendment "provides the potential for future spending control. It doesn't provide any guarantees." 34 Conn.

H. R. Proc., pt. 34, 1991 Sess. 799 (July 1, 1991). After the General Assembly passed the proposed amendment, the electorate overwhelmingly approved it on November 3, 1992, and it became what is now article third, § 18(b), of the state constitution.1 On the same day that the General Assembly passed the proposed constitutional spending cap resolution, it also passed 1991 Conn. Pub. Acts No.





91-3 (June 1991 Special Session), which contained a statutory spending cap. The statutory spending cap mirrored the provisions of the constitutional spending cap except that, unlike the constitutional spending cap, it defined the terms "general budget expenditures," "increase in personal income," and "increase in inflation."

The General Assembly passed the statutory spending cap, including its definitions, by a simple majority vote. Nielsen v. State, 236 Conn. 1, 5 n. 5 (1996). It also did so before the voters had actually approved the constitutional

As adopted, the constitutional spending cap states:

The general assembly shall not authorize an increase in general budget expenditures for any fiscal year above the amount of general budget expenditures authorized for the previous fiscal year by a percentage which exceeds the greater of the percentage increase in personal income or the percentage increase in inflation, unless the governor declares an emergency or the existence of extraordinary circumstances and at least three-fifths of the members of each house of the general assembly vote to exceed such limit for the purposes of such emergency or extraordinary circumstances. The general assembly shall by law define 'increase in personal income', 'increase in inflation' and 'general budget expenditures' for the purposes of this section and may amend such definitions, from time to time, provided general budget expenditures shall not include expenditures for the payment of bonds, notes or other evidences of indebtedness. The enactment or amendment of such definitions shall require the vote of three-fifths of the members of each house of the general assembly.

Conn, const, art. Ill, § 18(b).The Honorable Leonard A. FasanoPage 4

spending cap. It is clear, therefore, that the legislature did not intend to, and did not, in fact, adopt definitions for the constitutional spending cap when it passed the statutory spending cap.

Rather, the General Assembly intended the statutory spending cap to be a temporary measure while it worked towards the more difficult goal of adopting definitions for the constitutional spending cap by the necessary three-fifths vote.

See 34 Conn. H.R. Proc., pt. 34, 1991 Sess. 804 and 805 (July 1, 1991) (remarks of Representative McNally). During floor debate, legislators recognized that the definitions in the statutory spending cap would not automatically become the definitions required by the constitutional spending cap. Thus, when Senator Freedman asked whether, once the constitutional amendment was adopted by the public, "the Legislature [would] then have to revote the current statutory language," Senator Herbst responded "[y]es, we will have to revote and we will probably have to redefine whatever takes place at that time." 34 Conn. S. Proc., pt. 13, 1991 Sess. 209 (Aug. 21, 1991).

After passage, the statutory spending cap was codified at Conn. Gen. Stat.

§ 2-33a and has never been amended. It provides, in pertinent part, that:

The General Assembly shall not authorize an increase in general budget expenditures for any fiscal year above the amount of general budget expenditures authorized for the previous fiscal year by a percentage which exceeds the greater of the percentage increase in personal income or the percentage increase in inflation, unless the Governor declares an emergency or the existence of extraordinary circumstances and at least three-fifths of the members of each house of the General Assembly vote to exceed such limit for the purposes of such emergency or extraordinary circumstances.

Conn. Gen. Stat. § 2-33a. The statute goes on to define its key terms.2 As noted, the General Assembly adopted § 2-3 3a, including the definitions, by a simple

Specifically, Conn. Gen. Stat. § 2-3 3 a states that:

As used in this section, 'increase in personal income' means the average of the annual increase in personal income in the state for each of the preceding five years, according to United States Bureau of Economic Analysis data; 'increase in inflation' means the increase in the consumer price index for urban consumers The Honorable Leonard A. Fasano Page 5 majority vote prior to the time the constitutional spending cap was approved by the voters. Nielsen v. State, 236 Conn. 1, 5 n. 5 (1996).

In 1993, when the General Assembly had failed, despite repeated attempts, to adopt the definitions required to implement the constitutional spending cap, a group of taxpayers sued the General Assembly, seeking to compel it to enact the necessary definitions. Nielsen v. State, 236 Conn. 1 (1996). The Connecticut Supreme Court affirmed the dismissal of the suit, holding that it presented "a political question not amenable to judicial resolution." Id- at 9. According to the Court, the plaintiffs sought relief that the court could not provide "without an impermissible intrusion upon the prerogatives and functions of the coordinate branches of government." Id.

The Nielsen Court explained that it could not order the relief sought because, among other reasons, "[a] necessary predicate for a right to injunctive relief is the determination that a constitutional right exists and has been violated."

Id. at 11. But the constitutional spending cap contained no such right. According to the Court, "the adoption of article third, § 18, establishe[d] only a future right to a spending cap, a right that will mature into an actionable right only after its predicate terms have been defined by the General Assembly." Id. at 11 (italics in original, citing State v. Sanabria, 192 Conn. 671, 687-691 (1984)). "In the absence of defined terms, there [was] no basis for enjoining presently permissible conduct by a coordinate branch of government." Id. at 12. Although the plaintiffs asked the Court to define the amendment's terms itself, the Court specifically during the preceding twelve-month period, according to United States Bureau of Labor Statistics data; and 'general budget expenditures' means expenditures from appropriated funds authorized by public or special act of the General Assembly, provided (1) general budget expenditures shall not include expenditures for payment of the principal of and interest on bonds, notes or other evidences of indebtedness, expenditures pursuant to section 4-3 Oa, or current or increased expenditures for statutory grants to distressed municipalities, provided such grants are in effect on July 1, 1991, and (2) expenditures for the implementation of federal mandates or court orders shall not be considered general budget expenditures for the first fiscal year in which such expenditures are authorized, but shall be considered general budget expenditures for such year for the purposes of determining general budget expenditures for the ensuing fiscal year.

As used in this section, 'federal mandates' means those programs or services in which the state must participate, or in which the state participated on July 1, 1991, and in which the state must meet federal entitlement and eligibility criteria in order to receive federal reimbursement, provided expenditures for program or service components which are optional under federal law or regulation shall be considered general budget expenditures.



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