Can a Maine governor reduce General Purpose Aid for schools without calling the Legislature into special session?

Plain-English summary

During Maine's fiscal 2002-03 revenue shortfall, Representative Thomas Murphy asked two questions. First, did Governor King and his Commissioner of Education exceed their authority by unilaterally reducing General Purpose Aid (GPA) below the level the Legislature had appropriated and the Governor had recently signed into law? Second, by failing to promptly call the Legislature into special session, did the Governor disenfranchise the Legislature from reviewing his curtailment decisions?

Attorney General G. Steven Rowe answered no to both. On the first question, he relied on 5 M.R.S.A. § 1668 and the Superior Court's Butterfield decision. Once the Commissioner of Administrative and Financial Services issued the written shortfall report contemplated by § 1668 (here, on June 13, 2002), the Governor's statutory curtailment power was triggered. Butterfield had upheld an even more aggressive curtailment (an 80% cut to the Child Care Voucher Program) against constitutional challenges, treating § 1668 as a temporary fiscal management device that does not unconstitutionally delegate legislative power.

On the second question, the AG noted that § 1668 does not require the governor to call a special session when curtailing allotments. The statute only obliges the governor to notify legislative leadership of the specific cuts. And the Maine Constitution, at Article IV, Part 3rd, § 1, gives the Legislature its own path to reconvene without the governor's call, on motion of the Senate President and House Speaker with the consent of a majority of each party caucus.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What triggers the governor's curtailment power under § 1668?

A written report from the Commissioner of Administrative and Financial Services to the Governor, with copies to legislative leadership, stating that anticipated income and other available funds will not cover the expenditures the Legislature authorized. Until that report issues, the governor cannot curtail.

Could the Legislature itself have convened to address the cuts?

Yes. Maine's Constitution (Art. IV, Part 3rd, § 1) lets the President of the Senate and the Speaker of the House call the Legislature back into session with the consent of a majority of the members of each political party, after polling all members. So the absence of a special session in 2002 was not the governor's choice alone.

Did Butterfield bind this opinion?

Butterfield is a Superior Court decision, not Law Court precedent, so it is persuasive but not binding. The AG cited it as the most direct judicial analysis of § 1668 available, and found no basis to conclude its reasoning would not apply to the General Purpose Aid curtailment.

What is the limit on curtailment under § 1668?

The statute imposes three: (1) curtailment must be "equitable"; (2) "no allotment may be terminated"; and (3) the curtailment must, "insofar as practicable," be consistent with the Legislature's intent in authorizing the expenditure.

Does this mean the governor can permanently cut programs?

No. Curtailment is temporary. The Legislature retains the power to restore the funds when it next acts on appropriations, which is the structural feature Butterfield relied on to find no separation-of-powers violation.

Background and statutory framework

Title 5, § 1668 is the statutory mechanism that lets the governor bridge a mid-year revenue gap by temporarily curtailing allotments once the Commissioner of Administrative and Financial Services reports a shortfall in writing. The Superior Court's Butterfield decision (CV-91-29) is the leading judicial treatment of § 1668; the opinion cites it for the holding that the statute is a temporary fiscal management device and does not represent an unconstitutional delegation of legislative authority, an impoundment of funds, or a separation-of-powers violation. Separately, Maine's Constitution gives the Legislature its own route to reconvene without the governor's call (Art. IV, pt. 3rd, § 1).

Citations

• 5 M.R.S.A. § 1668 (governor's curtailment power)
• Me. Const. art. IV, pt. 3rd, § 1 (Legislature may convene without the governor's call)
• Butterfield v. Department of Human Services, CV-91-29 (Kenn. Cty., Jan. 17, 1991)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/2002/ag_20020703.pdf

Original opinion text

STATE OF MAINE
DEPARTMENT OF THE ATTORNEY GENERAL
6 State House Station
Augusta, Maine 04333-0006

G. Steven Rowe
Attorney General

July 3, 2002

Representative Thomas W. Murphy, Jr.
House of Representatives
2 State House Station
Augusta, ME 04333-0002

Dear Representative Murphy:

I am responding to your letter of June 26, 2002, requesting an opinion on two issues related to the curtailment of allotments undertaken by the Governor in response to the revenue shortfall reported by the Commissioner of Administration & Financial Services for fiscal years 2002 and 2003. Specifically, you ask the following:

1. Have the Chief Executive and his Commissioner of Education exceeded their legal authority by unilaterally reducing General Purpose Aid substantially below the level approved by the Maine Legislature and recently signed into law?

2. Has the Chief Executive circumvented and disenfranchised the members of the Maine Legislature by his failure to call the Legislature in a prompt manner back into Special Session so that they can review and then either approve, amend, or disapprove the budgetary actions the Chief Executive has proposed?

For the reasons set forth below, we do not find a basis to conclude that the Governor's actions exceed his authority or otherwise violate the Maine Constitution.

The Governor's curtailment power is set out in 5 M.R.S.A. § 1668 (2002), which provides in pertinent part as follows:

Whenever it appears to the Commissioner of Administrative and Financial Services that the anticipated income and other available funds of the State will not be sufficient to meet the expenditures authorized by the Legislature, the commissioner shall so report in writing to the Governor, and shall send a copy of the report to the President of the Senate and the Speaker of the House and the majority and minority leaders of the Senate and House. After receiving the report, the Governor may temporarily curtail allotments equitably so that expenditures will not exceed the anticipated income and other available funds. No allotment may be terminated pursuant to this section. Any curtailment of allotments must, insofar as practicable, be made consistent with the intent of the Legislature in authorizing these expenditures.

On June 13, 2002, the Commissioner of Administrative and Financial Services issued the written report contemplated by § 1668, concluding that it appeared that anticipated income and other available funds of the State General Fund would not be sufficient to meet expenditures authorized by the Legislature for fiscal year 2002 and for fiscal year 2003. The issuance of this report triggered the Governor's power to curtail allotments to bring expenditures into line with anticipated income and other available funds pursuant to the standards established by § 1668. In short, the Governor's exercise of the curtailment power in reducing General Purpose Aid to Education is within the authority granted to him by statute.

We turn now to the question of whether this statutory authority is consistent with the requirements of the Maine Constitution. In Butterfield v. Department of Human Services, CV-91-29 (Kenn. Cty, Jan. 17, 1991)(Alexander, J.), the Superior Court upheld then Governor McKernan's exercise of the curtailment power in cutting eighty percent of the funding for the Maine Child Care Voucher Program. In rejecting the claim that the curtailment process constitutes an improper exercise of legislative authority by the executive, the Court reached the following conclusions about the curtailment statute.

It is, by its terms, a temporary fiscal management device. It permits the Governor to begin realignment of expenditures to meet reduced revenue projections only between the time when those reduced projections are recognized and the later time when the Legislature is able to act to bring projected revenues and authorized expenditures back into line. This legislation recognizes that prompt action to curtail expenditures may be necessary once a shortfall of revenues is perceived. Section 1668 also recognizes that the Legislature is not a body which can act instantly. It must convene and then give matters due deliberation. Such deliberations may necessarily be extended when an apparent revenue shortfall requires reexamination and new priority setting across the entire spectrum of programs in the state budget. Section 1668 supports the legislative process by allowing this priority reallocation debate to occur rationally and thoroughly, without time pressures for immediate action.

No program can be terminated as a result of this allotment curtailment process and, theoretically, any cuts which the Governor makes in expenditures can be promptly restored by the Legislature. Thus, § 1668 extends to the Governor no authority to usurp or displace the Legislature's role in appropriating and expending funds; it simply provides a device to assure responsible fiscal management of revenue shortfalls on a temporary basis, pending legislative review and ultimate legislative control of the expenditure process.

Butterfield at 5-6. While the Butterfield decision concerned executive curtailment of a different program, we do not find any basis to conclude that the Court's reasoning would not apply to Governor King's curtailment of General Purpose Aid to Education, a program that was curtailed in 1991.

Your second question is whether the Governor has usurped powers reserved to the Legislature by issuing his curtailment order without calling the Legislature into a special session to approve or modify the substance of that order. The curtailment statute, 5 M.R.S.A. § 1668, does not require the Governor to convene a special session upon issuance of an executive order curtailing allotments. To the extent that this question concerns the constitutionality of the curtailment process as provided by § 1668, the Butterfield decision rejected claims that the statute represented an unconstitutional delegation of legislative authority to the executive, impoundment of funds, or a separation of powers violation. Section 1668 does contain a provision requiring that the Governor immediately notify the Senate President and Speaker of the House, as well as the other members of legislative leadership, "of the specific allotments curtailed, the extent of curtailment of each allotment and the effect of each curtailment on the objects and purposes of the program so affected." The Maine Constitution provides a procedure for the Legislature to convene without the Governor's call. Specifically, Article IV, Part 3rd, § 1, provides that the Legislature may convene on the call of the President of the Senate and Speaker of the House with the consent of a majority of the Members of the Legislature of each political party, all Members of the Legislature having been polled.

Please let me know if we can be of any further assistance.

Sincerely,

G. STEVEN ROWE
Attorney General