Fasano, 111715 CTAGO, AGO 2015-5

Docket Nº:AGO 2015-5
Case Date:November 17, 2015
The Honorable Leonard A. Fasano
AGO 2015-5
No. 2015-05
Connecticut Attorney General Opinions
Office of the Attorney General 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 three-fifths 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 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. Proa, pt. 13, 1991 Sess. 205 (Aug. 21, 1991); 34 Conn. H. R. Proa, 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. Proa, 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 . . . three- 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...

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