Opinion of the Justices to the House of Representatives

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SJC-11883
OPINION OF THE JUSTICES TO THE HOUSE OF REPRESENTATIVES.
General Court. Constitutional Law, General Court, Appropriation
of money, Taxation. Statute, Appropriation of money,
Amendment. Taxation.
On June 15, 2015, the Justices submitted the following
response to questions propounded to them by the House of
Representatives.
To the Honorable the House of Representatives of the
Commonwealth of Massachusetts:
The undersigned Justices of the Supreme Judicial Court
respectfully submit this response to the questions set forth in
an order adopted by the House of Representatives on May 22,
2015, and transmitted to us on that date. The order poses five
questions concerning the State budget legislation for fiscal
year 2016. All of the questions involve Part II, c. 1, § 3,
art. 7, of the Massachusetts Constitution, which we will refer
to as the origination article.1 They ask, among other things,
1
Part II, c. 1, § 3, art. 7, of the Massachusetts
Constitution provides: "All money bills shall originate in the
2
whether certain provisions in the House budget bill rendered it
a "money bill" within the meaning of the origination article,
and whether the Senate improperly "originated" a money bill in
violation of this article.
As explained below, we are of the view that the House bill
was a money bill, and that the Senate did not improperly
originate a money bill.2
Bills and amendments at issue. We begin by summarizing the
history of the various bills and amendments that give rise to
the questions, and by describing generally the provisions that
are at issue, reserving for later a more detailed analysis of
the legal effect of those provisions.
On March 4, 2015, acting pursuant to art. 63, § 2, of the
Amendments to the Massachusetts Constitution, as amended by
art. 107 of the Amendments, and pursuant to G. L. c. 29,
§ 7H, the Governor filed with the House his recommended budget
for fiscal year 2016, which, as is customary, was designated
House No. 1. Among its many provisions was section 27, entitled
house of representatives; but the senate may propose or concur
with amendments, as on other bills."
2
We invited interested individuals and organizations to
file amicus briefs on or before June 5, 2015. We acknowledge
the receipt of briefs from the House of Representatives; the
Senate; Senators Bruce Tarr, Robert Hedlund, Richard Ross,
Donald Humason, Viriato de Macedo, and Ryan Fattman, comprising
the Senate Republican caucus; and attorney Peter Vickery.
3
"Delay FAS 109 Deduction,"3 which provided: "Subsection (2) of
section 95 of chapter 173 of the acts of 2008 is hereby amended
by striking out the figure '2016', inserted by section 189 of
chapter 165 of the acts of 2014, and inserting in place thereof
the following figure:- 2017." The Governor's submission
described section 27 as follows: "This section delays until tax
year 2017 the start of the deduction allowed to certain
publicly-traded companies to offset increases in their net
deferred tax liability that resulted from the commonwealth's
implementation of combined reporting."4
3
We understand the reference to "FAS 109" as meaning
Financial Accounting Standard 109 ("Accounting for Income
Taxes") of the Financial Accounting Standards Board.
4
It suffices to say that G. L. c. 63, § 32B, as amended by
St. 2008, c. 173, § 48, requires certain corporations engaged
with other, affiliated corporations in a "unitary business" to
report their income on a combined basis. At the same time it
rewrote G. L. c. 63, § 32B, to create this requirement, the
Legislature also provided a deduction for such corporations
designed to offset any increases in their net deferred tax
liability that would result from the combined reporting. See
St. 2008, c. 173, § 95 (2). The deduction was to be spread over
a seven-year period "beginning with the combined group's taxable
year that begins in 2012." Id. In each of the annual budget
acts beginning with fiscal year 2012, however, the Legislature
postponed the start date of the deduction by one year. So, for
example, the budget act for fiscal year 2012 postponed the
deduction until tax year 2013 (see St. 2011, c. 68, § 136), the
budget act for fiscal year 2013 postponed it until 2014 (see
St. 2012, c. 139, § 140), and so on. The Governor's recommended
budget for fiscal year 2016 would have postponed the start date
of the deduction for an additional year, until tax year 2017.
4
House No. 1 was referred to the House committee on ways and
means on March 5, 2015. The committee filed its version of the
budget on April 15, 2015, as House No. 3400. Among its numerous
outside sections, House No. 3400 contained section 48, the
language of which was identical to section 27 of House No. 1,
i.e., the delay of the so-called FAS 109 deduction for
corporations reporting on a combined basis. The House
thereafter engaged in extensive debate on House No. 3400, during
which it considered in excess of 1,000 amendments, including one
that is particularly important to the questions that are now
before us, amendment 685, entitled "For Expansion of the
Conservation Land Tax Credit Program." The amendment, which was
adopted, provides that "Section 38AA (h) of Chapter 63 of the
General Laws is hereby amended by deleting '$2,000,000' and
replacing it with '$5,000,000'."5,6
House No. 3400, as amended, was passed to be engrossed by
the House on April 30, 2015, in the form of House No. 3401. The
5
General Laws c. 63, § 38AA, authorizes a tax credit for a
"qualified donation" of "certified land" to a "public or private
conservation agency" as defined in the statute. Section
38AA (h) currently provides in relevant part that "[t]he total
cumulative value of the tax credits authorized pursuant to this
section and [G. L. c. 62, § 6 (p),] shall not exceed $2,000,000
annually."
6
As originally introduced, amendment 685 contained no
express effective date. The amendment was changed before being
adopted to indicate that the amendment to G. L. c. 63, § 38AA,
would take effect on January 1, 2016.
5
delay of the so-called FAS 109 deduction, proposed by the
Governor and adopted by the House, appears as section 48 of
House No. 3401. The proposed increase in the amount of the tax
credit for qualified donations of land to conservation agencies
appears in sections 76 (the substance of the provision) and 77
(its effective date). For convenience, we shall refer to
section 48 of House No. 3401 as the delayed FAS 109 deduction
provision, and to sections 76 and 77 as the conservation land
credit provision.
House No. 3401 was transmitted to the Senate, and referred
by the clerk of the Senate to the Senate committee on ways and
means, on May 7, 2015. The committee immediately set out to
establish its version of the budget, which it completed and
reported to the Senate on May 12, 2015. The bill reported from
the committee, Senate No. 3, in section 54 contained language
identical to the delayed FAS 109 deduction provision in House
No. 3401. It had no language comparable to the House's
conservation land credit provision, however.
The Senate, like the House, then engaged in extensive
debate and considered numerous possible amendments. The final
Senate bill, like the final House bill, has many outside
sections. Among other things, section 54 continues to contain
the delayed FAS 109 deduction provision. Two other sections are
also relevant to the questions that are put to us. First, the
6
Senate adopted amendment 6, entitled "Expand Earned Income Tax
Credit and Increase Personal Exemptions," which, among other
things, added a new outside section to the Senate bill, section
31D, that would amend G. L. c. 62, § 4, by striking out the
current § 4 (b)7 and replacing it with the following: "Part B
taxable income shall be taxed at a rate of 5.15 per cent for tax
years beginning on or after January 1, 2016."8 Amendment 6 added
a further provision, section 107A, stating that the new section
31D would take effect on January 1, 2016. We will refer to
sections 31D and 107A as the Part B income tax provision.
7
General Laws c. 62, § 4, sets the rates at which
Massachusetts residents (and nonresidents in certain
circumstances) are taxed on their taxable income. Section 4 (b)
governs so-called Part B taxable income, which includes wages,
salaries, tips, and other employee compensation earned in
Massachusetts. As currently written, § 4 (b) sets a rate of 5.3
per cent for tax years beginning on or after January 1, 2002,
and establishes a formula by which the rate will decrease by .05
per cent in years when the State achieves certain revenue growth
benchmarks. So, for example, the rate applicable to Part B
taxable income was 5.25 per cent for the tax year beginning on
January 1, 2013, and 5.2 per cent for the tax year beginning on
January 1, 2014, and is 5.15 per cent for the tax year beginning
on January 1, 2015. Section 4 (b), as currently written,
further provides that "Part B taxable income shall be taxed at a
rate of not less than 5 per cent."
8
Amendment 6 also added three sections to the bill
(sections 31A, 31B, and 31C) that would increase the dollar
amount of personal income tax exemptions under G. L. c. 62, § 3,
part B, subsections (b) (1), (b) (1A), and (b) (2), for
individuals, heads of household, and spouses filing jointly; and
one section (section 31E) that would increase the earned income
credit for qualifying taxpayers under G. L. c. 62, § 6 (h).
7
Second, the Senate adopted amendment 836, entitled
"Reducing youth consumption of flavored cigars," which added
section 34A to the Senate bill. Section 34A, which we will
refer to as the flavored cigar excise provision, would, among
other things, amend G. L. c. 64C, § 7B (b),9 by adding a new
second paragraph to the statute, providing as follows:
"In addition to the excise imposed by the preceding
paragraph, an excise shall be imposed on fruit-flavored or
other nontobacco-flavored cigars and smoking tobacco held
in the commonwealth at the rate of 170 per cent of the
wholesale price of such products. This excise shall be
imposed on cigar distributors at the time the fruit-
flavored or other nontobacco-flavored cigars or smoking
tobacco are manufactured, purchased, imported, received or
acquired in the commonwealth. The excise shall not be
imposed on any such cigars or smoking tobacco that: (i)
are exported from the commonwealth; or (ii) are not subject
to taxation by the commonwealth pursuant to any federal
law."10
On May 21, 2015, Senate No. 3, as amended, was passed to be
engrossed by the Senate, in the form of Senate No. 1930. The
Part B income tax provision, which appeared in sections 31D and
9
General Laws c. 64C, § 7B (b), currently provides an
excise on "cigars" and "smoking tobacco," as defined in the
statute, consisting of forty per cent of the wholesale price of
such products. The statute presently makes no mention of
"fruit-flavored" or "other nontobacco-flavored" cigars or
smoking tobacco.
10
Amendment 836 also added section 105A to the Senate bill,
stating: "The comptroller shall transfer the revenues received
under the second paragraph of section 7B of chapter 64C of the
General Laws during fiscal year 2016, in an amount not to exceed
$4,000,000, to item 4590-0300 for smoking prevention and
cessation programs." Line item 4590-0300 is within the
appropriation for the Department of Public Health.
8
107A of Senate No. 3, appears in sections 31F and 109 of Senate
No. 1930. The flavored cigar excise provision, which appeared
in section 34A of Senate No. 3, now appears in section 34A of
Senate No. 1930. Other than the section numbers, the provisions
are essentially identical.
It is against this backdrop that the budget bills were sent
to a conference committee of the House and Senate. We are aware
that the work of the committee has begun and is in progress.
By its order dated May 22, 2015, the House has posed the
following five questions to us:
"1. Does an amendment to an existing session law
postponing the effective date of a previously enacted tax
expenditure, as set forth in section 48 of House No. 3401,
render House No. 3401 a 'money bill' pursuant to Part II,
c. 1, § 3, art. 7, of the Constitution of the Commonwealth?
"2. Does an amendment to an existing General Law
increasing the expenditure of tax credits as set forth in
section 76 of House No. 3401, render House No. 3401 a
'money bill' pursuant to Part II, c. 1, § 3, art. 7, of the
Constitution of the Commonwealth?
"3. If the answers to question 1 and question 2 are
in the negative, would it be violative of Part II, c. 1,
§ 3, art. 7, of the Constitution of the Commonwealth for
the Senate to 'transfer money or property from the people
to the State' by initiating the repeal of the current
statutory mechanism requiring the tax rate on personal
income be set at 5% upon satisfaction of certain fiscal
requirements and replacing that reduction mechanism with a
permanently fixed tax rate on personal income of 5.15% as
set forth in section 31D of Senate No. 3?
"4. If the answers to question 1 and question 2 are
in the negative, would it be violative of Part II, c. 1,
§ 3, art. 7, of the Constitution of the Commonwealth for
the Senate to 'transfer money or property from the people
9
to the State' by initiating a new tax on certain tobacco
products as set forth in section 34A of Senate No. 3?
"5. If the answer to question 1 or question 2 is in
the affirmative, does the substitution by the Senate of the
text of Senate No. 3 for the text of House No. 3401 result
in the Senate originating a money bill in violation of
Part II, c. 1, § 3, art. 7, of the Constitution of the
Commonwealth?"
The House order expresses grave doubt as to whether its
budget bill, House No. 3401, as engrossed and transmitted to the
Senate, was a "money bill" for purposes of the origination
article; as to whether the Senate had the authority to insert
its tax-related provisions into the bill that originated in the
House; and as to the constitutionality of the Part B income tax
provision and the flavored cigar excise provision in the Senate
bill if enacted into law.11,12
Use of the advisory opinion process. We next consider
whether the House's questions can properly be answered in an
advisory opinion. We are of the view that they can in these
circumstances.
11
Because the House's questions refer to Senate No. 3, we
will do the same in our analysis. As stated above, we
understand that Senate No. 3 has been reprinted as amended and
now appears as Senate No. 1930.
12
In the interest of hewing closely to the questions that
have been posed, we have limited this summary to the provisions
cited in the House's order. We have not undertaken to identify
other provisions of the House and Senate bills that may pertain
to taxes or, in a broader sense, revenue. Nor have we
undertaken to identify the areas on which the House and Senate
bills are in agreement.
10
The advisory process is rooted in Part II, c. 3, art. 2, of
the Massachusetts Constitution, as amended by art. 85 of the
Amendments. This article authorizes the Governor, the Executive
Council, and each branch of the Legislature to call on the
Justices for "opinions . . . upon important questions of law,
and upon solemn occasions."13 The Constitution requires the
Justices to respond to such questions when properly put, but the
Constitution simultaneously imposes on us an obligation not to
respond unless we are first satisfied that the elements of
Part II, c. 3, art. 2 -- namely, an important question of law
and a solemn occasion -- exist. See Opinion of the Justices,
430 Mass. 1205, 1207 (2000); Answer of the Justices, 319 Mass.
731, 733-734 (1946); Answer of the Justices, 150 Mass. 598, 601
(1890).14
13
When presented with a request for an advisory opinion,
the Justices do not sit in their usual role, as a court,
adjudicating a case or controversy. Advisory opinions are given
by the Justices as individuals in their capacity as
constitutional advisers to the other branches of Government.
Opinion of the Justices, 341 Mass. 738, 748 (1960), citing
Commonwealth v. Welosky, 276 Mass. 398, 400 (1931), cert.
denied, 284 U.S. 684 (1932).
14
The elements of Part II, c. 3, art. 2, have been
described as "jurisdictional boundaries," Answer of the
Justices, 444 Mass. 1201, 1204 (2005), that "cannot be crossed."
Answer of the Justices, 362 Mass. 914, 917 (1973). "The
Justices must adhere strictly" to these boundaries "in order to
safeguard the separation of powers embodied in art. 30 of the
Massachusetts Declaration of Rights." Answer of the Justices,
444 Mass. at 1204. Article 30 "acts as an inhibition upon the
Justices giving opinions as to the duties of either the
11
There is no doubt that the questions presented by the House
are "important questions of law." All of the questions concern
a provision, the origination article, that has been in the
Massachusetts Constitution for 235 years; was a model for the
cognate Federal constitutional provision and for similar
provisions in the Constitutions of other States; articulates a
significant distinction between the powers of the two branches
of the Legislature; yet has generated remarkably little
discussion in the decided cases and the advisory opinions of the
Justices in Massachusetts (or elsewhere). It also appears that
this provision has been interpreted and applied differently by
different Senate presidents and senators. In short, the
questions are important, unresolved, and challenging to answer.
We are somewhat more concerned with the requirement that an
advisory opinion only be given on a "solemn occasion." In an
often-repeated formulation, the Justices said more than a
century ago that a solemn occasion "means some serious and
unusual exigency," such as when "either branch of the
Legislature, having some action in view, has serious doubts as
to their power and authority to take such action, under the
executive or legislative department except under the
Constitution." Id. at 1205, quoting Answer of the Justices, 214
Mass. 602, 604 (1913). See Answer of the Justices, 373 Mass.
898, 901 (1977); Opinion of the Justices, 314 Mass. 767, 770
(1943); Answer of the Justices, 150 Mass. 598, 601 (1890).
12
Constitution, or under existing statutes." Answer of the
Justices, 148 Mass. 623, 625-626 (1889). The Justices have
consistently construed this language strictly, as meaning "that
opinions are required 'only respecting pending matters in order
that assistance may be gained in the performance of a present
duty.'" Answer of the Justices, 444 Mass. 1201, 1202 (2005),
quoting Answer of the Justices, 211 Mass. 630, 631 (1912). See
Answer of the Justices, 426 Mass. 1201, 1203 (1997).15
Here the House's questions inquire as to the effect of two
bills -- House No. 3401 and Senate No. 3 -- that have already
been passed. If, on the one hand, we read the questions
literally, they do not ask about a "pending matter," but only
about action that has already been taken. By contrast, when we
are asked for our views on the constitutionality of a bill that
is pending and not yet passed, it is easier to see that there is
a "pending matter" and a "present duty." If, on the other hand,
we read the House's questions more broadly in light of the
stated concern in its order about the constitutionality of
Senate No. 3 if enacted into law, then the questions would
appear to be asking about an "abstract" or "hypothetical"
15
A further, but related, limitation on our duty to respond
is that we are not constitutionally permitted to respond to
"abstract" or "hypothetical" questions. See Answer of the
Justices, 426 Mass. 1201, 1204-1205 (1997), and authorities
cited.
13
situation only; this is so because we do not know at this
juncture whether the specific language in Senate No. 3 with
which the House is concerned -- the Part B income tax provision
and the flavored cigar excise provision -- will even survive the
conference committee and go before the House and Senate for a
full and final vote.16
That said, we conclude that we are presented with a "solemn
occasion." We reach this conclusion because we are aware that
the entire fiscal year 2016 budget legislation remains "pending"
and is currently being considered by the conference committee,
where the appointed members are attempting to reconcile the
differences between the House and Senate bills. The "present
duty" of the House, through its appointees to the conference, is
to negotiate a final bill. Mindful that the conference process
is first and foremost a political process in which the Justices
properly have no role, we accept that there is a significant,
unresolved legal question of constitutional dimension looming in
the present circumstances and a dearth of Massachusetts case law
16
In other words, if the questions are read literally then
they come too late, and if they are read broadly then they come
too early. There would be no such concerns about the existence
of a "solemn occasion" if -- after the conference process was
complete, and if the Senate provisions were included in the
final bill -- the questions were put to us before a final vote
in the full House and Senate. Then, unlike the present
situation, we would be faced with a known bill that has yet to
be voted on.
14
(and only a few advisory opinions) to which the House might look
for guidance. We are satisfied in these circumstances that the
House order is a proper attempt to obtain our advisory views on
the constitutionality of its options in conference, and we
expect that our answers to these questions will therefore assist
the members of the committee as they go about their present
conference duties.
Questions 1 and 2. The first and second questions
submitted to us ask whether the delayed FAS 109 deduction
provision and the conservation land credit provision,
respectively, render House No. 3401 a "money bill." For the
reasons we describe, we conclude that House No. 3401 is, indeed,
a money bill.
The origination article has provided since the inception of
our Constitution that "[a]ll money bills shall originate in the
house of representatives; but the senate may propose or concur
with amendments, as on other bills." Part II, c. 1, § 3, art.
7, of the Massachusetts Constitution. This provision grew out
of the ancient English tradition regarding taxation, that "all
grants in Parliament of subsidies to the King must begin in the
House of Commons" and not in the unelected House of Lords. See
Opinion of the Justices, 126 Mass. 557, 567 (1878).17 Comparable
17
As early as 1781, the Justices of this court observed
that the rationale underlying the English tradition does not
15
provisions have been adopted by approximately twenty States.
See Medina, The Origination Clause in the American Constitution:
A Comparative Survey, 23 Tulsa L.J. 165, 166 (1987). The United
States Constitution, too, contains an "origination clause,"
art. I, § 7, cl. 1, of the United States Constitution,18 which
was modeled on our own. See Opinion of the Justices, 126 Mass.
at 593-594. Although the Federal courts' decisions interpreting
the Federal origination clause do not bind us, we have given
careful consideration to those decisions when construing our own
origination article, given that the two provisions are similarly
worded and were adopted almost contemporaneously. See Opinion
of the Justices, 337 Mass. 800, 810 (1958) (noting, in light of
"close similarity" of Massachusetts and Federal provisions and
"almost contemporaneous[]" adoption of both, that Justices were
"disposed to construe our provision in like manner"); Opinion of
the Justices, 126 Mass. at 593-594.
The Justices of this court have discussed the meaning of
the term "money bill" on three prior occasions. In our earliest
transfer readily to post-Revolution Massachusetts, in which
"[t]he Senate . . . are as much the immediate choice of the
people, as the members of the House of Representatives."
Opinions of the Justices, 126 Mass. 547, 552 (1781).
18
The Federal origination clause states: "All bills for
raising revenue shall originate in the house of representatives;
but the senate may propose or concur with amendments as on other
bills." Art. I, § 7, cl. 1, of the United States Constitution.
16
reported advisory opinions, the Justices stated that an
examination of valuation reports prepared by the towns and
plantations of the Commonwealth was not a money bill and,
therefore, not subject to the origination article. See Opinions
of the Justices, 126 Mass. 547 (1781). One century later, the
Justices opined that the origination article does not apply to
"bills that appropriate money from the Treasury of the
Commonwealth to particular uses of the government, or bestow it
upon individuals or corporations," Opinion of the Justices, 126
Mass. at 601; rather, it is "limited to bills that transfer
money or property from the people to the State." Id.
The Justices analyzed the scope of the origination article
most recently in 1958, providing an advisory opinion to the
Senate concerning a bill designed to permit the Commonwealth to
maintain railroad passenger services on a segment of the former
Old Colony lines. See Opinion of the Justices, 337 Mass. at
801-803. The funding for costs entailed by that bill was to be
raised by local property taxes and by assessments on certain
cities and towns. See id. at 803, 808-809. The Justices noted
that the Federal origination clause "has not been understood to
extend to bills for other purposes which incidentally create
revenue." Id. at 809, quoting United States v. Norton, 91 U.S.
17566, 569 (1875).19,20 Reasoning that "[s]uch taxes as are imposed
locally [by the bill] to reimburse the Commonwealth for
expenditures made by it are purely incidental to the main
objects of the bill," the Justices concluded that the
origination article did not apply. See Opinion of the Justices,
337 Mass. at 810.
With this background in mind, we come to the view that
House No. 3401 is a money bill subject to the origination
article. For one, the delayed FAS 109 deduction provision
effectively increases the amount of tax revenue that the
Commonwealth will realize from certain corporations in fiscal
year 2016, by making those corporations ineligible for a tax
deduction in that year. See note 4, supra.21 By dint of this
19
It was in this context, distinguishing money bills from
"bills for other purposes which incidentally create revenue,"
Opinion of the Justices, 337 Mass. 800, 809 (1958), that the
Justices quoted additional language from United States v.
Norton, 91 U.S. 566, 569 (1875), according to which the
origination requirement applies to "bills to levy taxes in the
strict sense of the words."
20
The courts of other States have generally maintained
likewise that bills that create revenue "incidentally" only are
not subject to those States' origination provisions. See, e.g.,
Thomas v. Alabama Mun. Elec. Auth., 432 So. 2d 470, 479 (Ala.
1983); Colorado Nat'l Life Assur. Co. v. Clayton, 54 Colo. 256,
259 (1913); Baines v. New Hampshire Senate President, 152 N.H.
124, 136 (2005); Wallace v. Gassaway, 148 Okla. 265, 268 (1931);
Mikell v. School Dist. of Philadelphia, 359 Pa. 113, 118 (1948);
Andrews v. Lathrop, 132 Vt. 256, 265 (1974).
21
According to House No. 3401, section 1, the delayed FAS
109 deduction provision will generate $45.8 million in revenue
18
provision, House No. 3401 is a money bill within the narrow
meaning that the Justices have ascribed to this term in the
past: it "transfer[s] money or property from the people to the
State." Opinion of the Justices, 126 Mass. at 601.22
The conservation land credit provision also affects the
amount of tax money that will be transferred from the people to
the Commonwealth. That provision reduces the Commonwealth's
for the Commonwealth in fiscal year 2016. The fact that this
provision also is anticipated to reduce the amount of revenue
that will be realized by the Commonwealth in a future year is
too attenuated to affect our analysis, primarily in view of the
difficulty of predicting whether revenue foregone in the future
will equal or exceed in value the revenue gained in 2016.
22
We recognize that there are certain lines of similarity
between tax deductions and appropriations of money from the
treasury of the Commonwealth. See, e.g., G. L. c. 29, §§ 1, 5B
(Commissioner of Revenue is required to prepare annual estimates
of Commonwealth's "tax expenditures," defined in part as "tax
revenue foregone as a direct result of . . . exemptions,
deferrals, deductions from or credits against taxes"); Opinion
of the Justices, 401 Mass. 1201, 1203-1204 (1987)
(permissibility of statute granting tax deduction for
educational expenses must be tested under "'anti-aid'
amendment," art. 46, § 2, of Amendments to Massachusetts
Constitution, because "tax subsidies or tax expenditures of this
sort are the practical equivalent of direct government grants").
Still, "[t]he act of taking less money from a taxpayer because
of the grant of a tax credit or a tax deduction is not an
appropriation of funds from the State treasury or from anywhere
else." Tax Equity Alliance For Mass., Inc. v. Commissioner of
Revenue, 401 Mass. 310, 316 (1987). A bill that makes a tax
deduction unavailable in a given year is even farther removed
from the category of "bills that appropriate money from the
Treasury of the Commonwealth to particular uses of the
government, or bestow it upon individuals or corporations,"
which are not subject to the origination article. See Opinion
of the Justices, 126 Mass. 557, 601 (1878).
19
expected tax revenue, by raising the maximum tax credit that may
be claimed by taxpayers donating certain land to conservation
agencies. See note 5, supra. The question thus arises whether
a bill concerning the "transfer [of] money or property from the
people to the State," Opinion of the Justices, 126 Mass. at 601,
is a money bill even where it causes the amount of revenue being
transferred to the State to be less than it would have been
under the preexisting legislative scheme.23 We note that the
United States Supreme Court has not addressed this issue under
the Federal origination clause. The majority of United States
Circuit Courts of Appeals have held that "all legislation
relating to taxes (and not just bills raising taxes) must be
initiated in the House." Armstrong v. United States, 759 F.2d
1378, 1381 (9th Cir. 1985), citing Wardell v. United States, 757
F.2d 203, 205 (8th Cir. 1985), Heitman v. United States, 753
F.2d 33, 35 (6th Cir. 1984), and Rowe v. United States, 583 F.
Supp. 1516, 1519 (D. Del.), aff'd, 749 F.2d 27 (3d Cir. 1984).
23
Our attention has been directed to a "drafting manual"
prepared by the House and Senate Counsel in 2010. That manual
defines "money bills" as bills "that affect state tax revenue
for general purposes," and states that "[a] 'money bill' may
either reduce general state tax revenue or increase state tax
revenue." Massachusetts Gen. Ct., Legislative Research and
Drafting Manual, pt. 5, § F (5th ed. 2010) (General Court
Drafting Manual).
20
But see Bertelsen v. White, 65 F.2d 719, 722 (1st Cir. 1933).24
Given that the delayed FAS 109 deduction provision increases the
Commonwealth's anticipated tax revenue for the upcoming fiscal
year and thereby renders House No. 3401 a money bill, we do not
express a view on this issue under our own origination article.
As previously mentioned, a bill devoted to another purpose
or purposes that "incidentally create[s] revenue" is not a money
bill. See Opinion of the Justices, 337 Mass. at 809, quoting
United States v. Norton, 91 U.S. at 569. For two reasons, we do
not view House No. 3401 as such a bill. First, the types of
bills that we and the United States Supreme Court have situated
in this category of bills have been devoted to specific, well-
defined programs and goals. See Opinion of the Justices, 337
Mass. at 801-803 (railroad passenger services on former Old
Colony lines); United States v. Munoz-Flores, 495 U.S. 385, 397
(1990) (fund for programs that compensate and assist crime
victims); Millard v. Roberts, 202 U.S. 429, 436 (1906) (railroad
projects in District of Columbia); Twin City Bank v. Nebecker,
24
The State courts to have addressed this issue have
disagreed as to whether a bill that decreases revenue is subject
to those States' origination provisions. Compare, e.g., Perry
County v. Selma, Marion & Memphis R.R., 58 Ala. 546, 557 (1877)
(bill exempting certain railroad property from taxation "in one
sense, reduced the taxes," but "was, nevertheless, a bill to
raise revenue"), with In re Paton's Estate, 114 N.J. Eq. (13
Backes) 324, 327-328 (Prerogative Ct. 1933) (bill exempting
certain transfers from inheritance transfer tax would decrease
revenue and was therefore not "bill for raising revenue").
21
167 U.S. 196, 202-203 (1897) (introduction of national
currency).25 House No. 3401, by contrast, serves a multitude of
purposes. As the House's version of the "general appropriation
bill," required annually by art. 63, § 3, of the Amendments to
the Massachusetts Constitution,26 House No. 3401 contains three
detailed sections concerned with the Commonwealth's
appropriations for the upcoming year; but it also features more
than one hundred outside sections, devoted to topics ranging
from the registration of "home infusion pharmacies"
(sections 39A and 39B, proposing amendments to G. L. c. 112,
§ 39C) to the timeframe for certain proceedings before the Sex
Offender Registry Board (section 109, proposing an amendment to
G. L. c. 30A, § 14). A bill designed to implement so broad an
array of legislative goals cannot soundly be said to have one or
25
The General Court Drafting Manual, supra, states that
"the Senate could originate a bill raising the following kinds
of revenue: Non-tax revenue, such as fees or fines. Local
taxes, including property taxes or assessments. State tax
revenue specifically earmarked for a particular program."
(Citations omitted.)
26
We interpret art. 63, § 3, of the Amendments to the
Massachusetts Constitution "in harmony with the other parts of
the Constitution so as to make the whole a consistent frame of
government." Opinion of the Justices, 237 Mass. 598, 608
(1921). For this reason, and consistent with the phrasing of
questions 1 and 2, we assume that, when the General Court passes
general appropriation bills, it is required do so subject to the
constraints of the origination article.
22
more "main objects," see Opinion of the Justices, 337 Mass. at
810, to which revenue creation is incidental.
Second, we would not consider House No. 3401 to be a bill
that creates revenue "incidentally" even if we were to assume
that the bill's single most prominent purpose is, as its title
suggests, to "mak[e] appropriations."27 General appropriation
bills are required by our constitution to be "based upon the
budget" recommended by the Governor.28 See art. 63, § 3, of the
Amendments to the Massachusetts Constitution. The Governor's
budget must "contain a statement of all proposed expenditures of
the commonwealth for the fiscal year . . . and of all taxes,
revenues, loans and other means by which such expenditures shall
be defrayed." Art. 63, § 2, of the Amendments to the
Massachusetts Constitution. That is to say, the universe of
27
The full title of House No. 3401 is "An act making
appropriations for the fiscal year two thousand sixteen for the
maintenance of the departments, boards, commissions,
institutions and certain activities of the commonwealth, for
interest, sinking fund and serial bond requirements and for
certain permanent improvements."
28
The Governor's recommendation, like other recommendations
made to the Legislature, as well as public debates, lobbying
efforts, or other acts predating the passing of a bill in one of
the branches of the Legislature, is not a part of the
legislative process governed by the origination article. "[T]he
clause in the Constitution, that 'money bills shall originate in
the House of Representatives,' . . . respects acts of
legislation only." Opinions of the Justices, 126 Mass. at 551.
The first piece of proposed legislation in the budget process is
House No. 1, which "originate[s] in the house of
representatives" within the meaning of the origination article.
23
appropriations brought together in a general appropriation
bill -- those necessary to conduct the general business of the
Commonwealth in the coming year -- is by nature intertwined with
measures designed to ensure that the necessary funds are
available in the Commonwealth's coffers. In this sense, the
revenue provisions at issue here in the general appropriation
bill for fiscal year 2016 are not "incidental" to a particular
purpose (except in the sense that all tax legislation is
intended to support the Commonwealth's expenditures); rather,
these provisions "raise[] revenue to support Government
generally." United States v. Munoz-Florez, 495 U.S. at 398.
Our response to questions 1 and 2 is therefore that House
No. 3401 is a "money bill" by virtue of the delayed FAS 109
deduction provision, irrespective of whether the conservation
land credit provision also would render the bill a money bill.
Questions 3 and 4. Given that questions 3 and 4 are
contingent on negative answers to both questions 1 and 2, and we
have not given negative answers to those questions, we need not
answer questions 3 and 4.
Question 5. We read the final question essentially as
follows. Even if House No. 3401 is a money bill -- as we have
said, supra, that it is -- did the manner in which the Senate
adopted Senate No. 3 amount to "origination" of a new money
bill, in violation of the origination article? We conclude that
24
it did not; namely, that Senate No. 3 remains a money bill that
originated, as required, in the House of Representatives.29
This final question assumes, as do we, that Senate No. 3
made comprehensive revisions to House No. 3401. In our view,
these revisions did not amount to the origination of a new bill.
The origination article provides that, when a money bill has
originated in the House, "the senate may propose or concur with
amendments, as on other bills." Part II, c. 1, § 3, art. 7, of
the Massachusetts Constitution. An examination of the journals
of the House and the Senate reveals that it is commonplace for
one branch of the Legislature to "amend" a bill passed in the
other branch by "striking out all after the enacting clause and
inserting in place thereof" a different text.30 The same
practice is prevalent in other jurisdictions. See, e.g., Mayes
v. Daniel, 186 Ga. 345, 358 (1938) ("As is universally admitted
in parliamentary procedure, substitute is merely one method of
amending in legislative proceedings"). The Senate's power to
29
For purposes of this question as well, we assume that the
origination article applies to annual appropriation bills. See
note 26, supra.
30
See, e.g., 2014 House Doc. No. 4242 (conference committee
recommendation on general appropriation bill for fiscal year
2015). See also 2013 Senate Doc. Nos. 1766, 1777, 1811, 1812,
1813, 1829, 1830, 1835, 1841, 1890, 1899; 2014 Senate Doc.
Nos. 1975, 1982, 1988, 2010, 2018, 1052, 2055, 2072, 2073; 2013
House Doc. Nos. 3580, 3581, 3727, 3759; 2014 House Doc.
Nos. 4036, 4307, 4308, 4366, 4374, 4375, 4376, 4377, 4516.
25
propose amendments to money bills "as on other bills" thus
encompasses even far-reaching alterations.
The Federal courts have so held in interpreting the phrase
(identical to that in our origination article), "the senate may
propose or concur with amendments as on other bills." Art. I,
§ 7, cl. 1, of the United States Constitution. Flint v. Stone
Tracy Co., 220 U.S. 107, 143 (1911), abrogated on other grounds
by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528(1985), concerned a law that, as introduced in the United States
House of Representatives, would have created an inheritance tax;
the United States Senate amended the bill by enacting a
corporate tax instead. The United States Supreme Court rejected
an origination clause challenge to the law, stating that
"[t]he bill having properly originated in the House,
we perceive no reason in the constitutional provision
relied upon why it may not be amended in the Senate in the
manner which it was in this case. The amendment was
germane to the subject-matter of the bill, and not beyond
the power of the Senate to propose."
Id.Also instructive are decisions of the United States Circuit
Courts of Appeals concerning the Tax Equity and Fiscal
Responsibility Act of 1982 (TEFRA), P.L. 97–248, 96 Stat. 324(1982). The version of that law introduced in the United States
House of Representatives would have reduced total tax revenues
by $1 billion between 1982 and 1986. The United States Senate
26
"replaced the entire text of the House bill except for its
enacting clause, and the Senate version . . . increased total
revenues by about [$100 billion] between 1983 and 1985."
Armstrong v. United States, 759 F.2d 1378, 1380-1381 (9th Cir.
1985) (citations omitted). The Circuit Courts of Appeals relied
on Flint v. Stone Tracy Co. in holding that, permissibly, "[t]he
bill that ultimately became TEFRA 'originated' in the House as
revenue legislation." Armstrong v. United States, supra at
1382, and cases cited. See generally Kysar, The 'Shell Bill'
Game: Avoidance and the Origination Clause, 91 Wash. U. L. Rev.
659, 690 (2014). Recently, the Patient Protection and
Affordable Care Act, P.L. 111–148, 124 Stat. 119 (2010), has
been upheld on similar grounds. See Sissel v. United States
Dep't of Health & Human Servs., 951 F. Supp. 2d 159, 169-174
(D.D.C. 2013), aff'd, 760 F.3d 1 (D.C. Cir. 2014).
We need not express a view as to whether an amendment to a
money bill might conceivably be so radically "non-germane" to
the original bill as to represent a newly originated bill. Even
if we were to assume, for purposes of our discussion, that such
situations might in principle arise, we would not consider the
current circumstances to be one. As we have said, we accept the
premise that Senate No. 3 revises House No. 3401 quite
comprehensively. Still, much of the original substance remains;
as but one illustration, we have already noted that Senate No. 3
27
continues to include the delayed FAS 109 deduction provision
introduced by the House. Here, too, the amendment made by the
Senate was sufficiently "germane to the subject-matter [or
multiple subject-matters] of the bill, and not beyond the power
of the Senate to propose." Flint v. Stone Tracy Co., 220 U.S.
at 143.
Our answer to question 5 is that the manner in which Senate
No. 3 was passed did not amount to the Senate originating a
money bill in violation of the origination article.
Conclusion. In response to questions 1 and 2, we state
that House No. 3401 was a money bill. We do not answer
questions 3 and 4. In response to question 5, we state that the
Senate did not originate a money bill.
The foregoing answers are submitted by the Chief Justice
and the Associate Justices subscribing hereto on the 15th day of
June, 2015.
RALPH D. GANTS
FRANCIS X. SPINA
ROBERT J. CORDY
MARGOT BOTSFORD
FERNANDE R.V. DUFFLY
BARBARA A. LENK
GERALDINE S. HINES