Bates v. Director of the Office of Campaign & Political Finance

Spina, J.

(dissenting, with whom Cowin, J., joins). Today the court has reshaped our Constitution in three significant respects. It requires the Legislature under art. 48 of the Amendments to the Massachusetts Constitution to appropriate funds to implement laws enacted by the people; it has stripped the Legislature of its discretion under art. 63 of the Amendments to the Massachusetts Constitution to make appropriations for laws enacted under art. 48; and it has made a constructive appropriation in violation of art. 30 of the Massachusetts Declaration of Rights *188 in order to create a private remedy for what it has determined is a failure of the Legislature to act.

First, the gloss that the court has placed on art. 48 effectively gives the people the power to do indirectly that which they cannot do directly, namely, enact a measure that makes a specific appropriation of money. See art. 48, The Initiative, II, § 2. Although the court says that the clean elections law does not specifically appropriate public funds, the law has been transformed into an appropriation because it “engages” art. 48. Ante at 146. Article 48 now imposes on the Legislature a duty to appropriate funds necessary to implement any law enacted by the initiative process and the court has made clear its willingness to provide a remedy for the Legislature’s failure to carry out that duty. Thus, the mandate of art. 48 makes all such laws self-appropriating. The fact that they may be repealed makes them no less so. The court’s interpretation of art. 48 was not, in my view, ever contemplated by the constitutional convention.

Second, the court’s all-or-nothing interpretation of art. 48 has done violence to art. 63. Until today, the Legislature had unqualified discretion under art. 63 to appropriate money. That discretion is now qualified by the mandate of art. 48 that all laws enacted by the people be fully funded. This exception to the Legislature’s authority under art. 63 places initiative laws in a category above other laws. Laws enacted by the people have become super laws, because they alone must be fully funded.

The third area affected is the principle of separation of powers, embodied in art. 30. Today, the court has intruded on the legislative function by granting relief to a litigant for what the com! has determined is the failure of the Legislature to perform a duty assigned to it by the Massachusetts Constitution. Although I do not agree that the Legislature has failed to perform any duty, we have, historically and constitutionally, refrained from granting relief in such circumstances. See, e.g., LIMITS v. President of the Senate, 414 Mass. 31, 35 (1992); Alliance, AFSCME/SEIU v. Secretary of Admin., 413 Mass. 377 , 383-384 n.9 (1992). The court has not directly ordered the Legislature to do anything, but it has created a remedy that amounts to a constructive appropriation. This, in my view, violates art. 30.

Finally, I believe that the cases relied on to create a remedy *189 for certified candidates are inapposite to the situation. Those cases involved contract claims or a right to obtain a license. Ante at 169-170. By contrast, the clean elections law specifically provides that payments to certified candidates are to be made from the clean elections fund, which is subject to appropriation. See G. L. c. 55A, §§ 7, 8 (a). Although the director may have certified a qualifying candidate to receive funds, there has been no appropriation. That is a matter of public record. There could be no reliance, and there should be no remedy. The law creates no right to funds unappropriated. See Milton v. Commonwealth, 416 Mass. 471 (1993).

For the foregoing reasons, I respectfully dissent.