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Case Law - save on Lexis / WestLaw. Original MSWord Version This case can also be found at 180 N.J. 590, 853 A.2d 856.
SYLLABUS
(This syllabus is not part of the opinion of the Court. It has
been prepared by the Office of the Clerk for the convenience of the
reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not
have been summarized). Argued July 22, 2004 -- Decided July 26, 2004 PER CURIAM As part of the budget for Fiscal Year 2004-2005, the legislative and executive branches adopted the Cigarette Tax Securitization Act of 2004 and the Motor Vehicle Surcharges Securitization Act of 2004. The Acts make available bond proceeds in excess of $1.9 billion to be appropriated by the Legislature "for any lawful purpose," including the operating expenditures of State government. Under the Acts, the New Jersey Economic Development Authority (EDA) is authorized to issue bonds and deposit the proceeds from their sale into separate funds from which the proceeds will be transferred into the General Fund at the request of the State Treasurer.
In the case of the Motor Vehicle Surcharges Act, the EDA and the
State Treasurer are authorized to enter into a contract to repay the proposed
bond obligations from a fund containing unsafe driving surcharges, subject to appropriation by
the Legislature. Similarly, the Cigarette Tax Act authorizes the EDA, consistent with a
contract with the State Treasurer and subject to legislative appropriation, to repay the
proposed bond obligations from a fund generated by dedicated cigarette tax revenues.
Each statute denominates the bond proceeds as "revenue" of the State when transferred
to the General Fund. Consistent with that denomination, the Governor has certified the
expected bond proceeds as "anticipated revenue" for purposes of the Appropriations Act. Absent
recognition of the bond proceeds as "revenue," the Appropriations Act would show a
deficit of approximately $1.5 billion.
Superior Court Judge Linda Feinberg ruled against plaintiffs on both issues. The Court
granted plaintiffs' motion for direct certification of their appeal and accelerated oral argument.
In dismissing plaintiffs' related motion for a stay as moot, the Court relied
on the State's representation that the bonds would not be issued prior to
the Court's disposition of the appeal.
HELD: Contract bond proceeds used to fund general expenses in the State budget
do not constitute "revenue" for purposes of the Appropriations Clause of the New
Jersey Constitution and cannot be used to balance the annual budget. The Court's
decision is prospective and will apply only to the 2005-2006 fiscal year budget
and thereafter. As a result, the State may proceed with the bond sales
as authorized, and no aspect of the Court's decision shall affect either the
currently proposed bond sales or any prior bond authorizations.
1. In view of the Court's disposition on the Appropriations Clause issue and
because it has previously addressed whether contract or appropriations debt violates the Debt
Limitation Clause of the New Jersey Constitution (Lonegan v. State II), the Court
declines to revisit that issue. (p. 3)
2. The State acknowledges that the Court has never decided what constitutes "revenue"
under the Appropriations Clause. (For convenience, the Court is referring to all of
the defendants collectively as the "State.") It argues that the Court should decline
to address the question because it falls exclusively within the province of the
executive branch. The Court rejects that argument on the ground that resolving the
current dispute comes within the scope of its constitutional role and judicial obligations.
(p. 6)
3. The constitutional requirement that the State enact a balanced budget each fiscal
year cannot in any sense be regarded as merely providing governmental housekeeping details.
The Appropriations Clause must be given full and complete effect in accord with
its clear and obvious intent. (pp. 6-7)
4. In considering whether the framers of the constitution would have considered the
2004-2005 Appropriations Act, relying as it does on $1.9 billion in borrowed monies
to fund general expenses, to be consistent with a "balanced budget," the answer
has to be "no." The purpose of the Clause is to bar the
State from adopting an annual budget in which expenditures exceed revenues. Plaintiffs argue
that the State's actions belie the common-sense notion of a balanced budget. The
State argues that in the absence of an explicit definition of "revenue" in
the Clause, the authority to define that term rests with the Governor under
his authority to "certify" the amount of revenue available for each fiscal year.
The Court agrees with Plaintiffs. (pp. 7-9)
5. In defining "revenue," the Court is not persuaded by the State's dictionary
definition, noting that its otherwise broad statement of "revenue" is qualified by an
introductory phrase that limits the definition "to the income of a government." Income
does not include borrowed funds. In addition, the Governor's proposed budget for Fiscal
Year 2004-2005 defines revenues as: "Funds received from taxes, fees or other sources
that are treated as income to the state and are used to finance
expenditures." (pp.9-10)
6. The Court recognizes that after "revenues" are defined, disputes can then arise
over the meaning of "income" as that concept appears in the various definitions
that have been reviewed. Precedent supports the straightforward notion that borrowed monies, which
themselves are a form of expenditure when repaid, are not "income" and cannot
be used for the purpose of funding or balancing any portion of the
budget pertaining to general costs without violating the Appropriations Clause. (pp.10-11)
7. The Court also declines to accept the argument of the State that
a once-considered -- but not adopted -- constitutional provision (the so-called Single Fund
paragraph) requires a contrary conclusion. (pp. 11-12).
8. The interesting questions raised by the Court's dissenting Justice need not be
answered to resolve the present dispute. Courts should address only those constitutional provisions
that are necessary to dispose of a matter on appeal. By way of
example, questions relating to the applicability of the single object language of the
Debt Limitation Clause have not been raised by the parties. (p. 12)
9. Barring the bond sales before the Court would require significant revisions to,
if not a complete overhaul of, the current budget. The resulting disruption to
the State government could be great. Further, the Court is satisfied that the
legislative and executive branches acted in good faith, relying on an honest, albeit
erroneous, belief that the budget was balanced properly under existing constitutional standards. The
Court has concluded, therefore, that its ruling should be given prospective effect only.
As a result, the State may proceed with the bond sales authorized by
the two Acts. Moreover, this decision shall not affect either those sales or
any prior bond authorizations or sales.
The judgment of the Superior Court, Law Division, is REVERSED except to the
extent that the Court's holding is to be applied on a prospective basis.
JUSTICE LaVECCHIA, concurring in part and dissenting in part, agrees with the determination
that the State should be allowed to proceed with the bond sales authorized
by the Cigarette Tax Act and the Motor Vehicles Surcharges Act. She disagrees
with the majority's determination on this record that certain contract bond proceeds do
not constitute "revenue" under the Appropriations Clause. She is of the view that
prior to taking action on the appeal, there should be further briefing and
oral argument in respect of a number of important issues, including whether any
debt proceeds -- voter-approved debt ("General Obligation" debt) or contract debt -- should
be allowed to be used for operational expenses other than those incidental to
a project, whether contract debt should be treated differently than General Obligation debt,
and whether the "single object or work" standard should be applied to contract
debt.
CHIEF JUSTICE PORITZ and JUSTICES VERNIERO, ZAZZALI, and WALLACE join in the Court's
opinion. JUSTICE LaVECCHIA has filed a separate concurring and dissenting opinion. JUSTICES LONG
and ALBIN did not participate.
SUPREME COURT OF NEW JERSEY A-
103 September Term 2003 HONORABLE LEONARD LANCE, as a citizen of New Jersey and a taxpayer; HONORABLE ALEX DeCROCE, as a citizen of New Jersey and a taxpayer; HONORABLE JOSEPH M. KYRILLOS, JR., as a citizen of New Jersey and a taxpayer; HONORABLE STEVEN M. LONEGAN, as a citizen of New Jersey and a taxpayer; HONORABLE BRET SCHUNDLER, as a citizen of New Jersey and a taxpayer; and ROBERT LINDMARK, as a citizen of New Jersey and a taxpayer,
Plaintiffs-Appellants,
v.
Defendants-Respondents,
and
HONORABLE RICHARD J. CODEY, President of the New Jersey Senate; and HONORABLE ALBIO
SIRES, Speaker of the Assembly,
Intervenors-Defendants-
Argued July 22, 2004 Decided July 26, 2004
On certification to the Superior Court, Law Division, Mercer County.
Mark D. Sheridan, Andrew T. Fede and Thaddeus R. Maciag argued the cause
for appellants (Drinker Biddle & Reath, attorneys for Honorable Leonard Lance, Honorable Alex
DeCroce, Honorable Joseph M. Kyrillos and Robert Lindmark; Contant Atkins & Fede, attorneys
for Honorable Steven M. Lonegan; and Maciag & Associates and Howes & Howes,
attorneys for Honorable Bret Schundler; Mr. Sheridan, Mr Fede, Mr. Maciag, Mark D.
Villanueva, James K. Webber, Jr., Peter J. Gallagher, Lauren D. Godfrey, W. Timothy
Howes and Andrew C. White, on the joint briefs).
Nancy Kaplen, Assistant Attorney General, argued the cause for respondents Honorable James E.
McGreevey and Honorable John E. McCormac (Peter C. Harvey, Attorney General of New
Jersey, attorney; Patrick DeAlmeida, Deputy Attorney General, on the brief).
Howard Graff, a member of the New York bar, argued the cause for
respondent New Jersey Economic Development Authority (Carella, Byrne, Bain, Gilfillan, Cecchi, Stewart &
Olstein, attorneys; Mr. Graff, Charles C. Carella and James E. Cecchi, on the
brief).
Leon J. Sokol argued the cause for intervenors-respondents (Sokol, Behot & Fiorenzo, attorneys;
Mr. Sokol and Steven Siegel, on the brief).
PER CURIAM We briefly summarize the facts and procedural history, derived largely from the Law Divisions decision. The legislative and executive branches adopted an annual budget in the form of an appropriations act, L. 2004, c. 71 (the Appropriations Act) and related legislation for Fiscal Year 2005, which began on July 1, 2004, and ends on June 30, 2005. Two of the related measures are the Cigarette Tax Securitization Act of 2004, L. 2004, c. 68 (the Cigarette Tax Act), and the Motor Vehicle Surcharges Securitization Act of 2004, L. 2004, c. 70 (the Surcharges Act). Those acts make available bond proceeds in excess of $1.9 billion to be appropriated by the Legislature for any lawful purpose, including the operating expenditures of State government. Under both statutes, the New Jersey Economic Development Authority (Authority or EDA) is the agency authorized to issue the bonds and deposit the proceeds from their sale into separate funds from which the proceeds will then be transferred to the General Fund at the State Treasurers request. In the case of the Surcharges Act, the statute authorizes the EDA and the Treasurer to enter into a contract to repay the proposed bond obligations from a fund containing unsafe driving surcharges, subject to appropriation by the Legislature. Similarly, the Cigarette Tax Act authorizes the EDA, consistent with a contract with the Treasurer and subject to legislative appropriation, to repay the proposed bond obligations from a fund generated by dedicated cigarette tax revenues. More specifically, to secure payment of the bonds, the acts authorize the EDA to pledge the contracts between the Authority and the Treasurer. The statutes explicitly provide, however, that the State is obligated to make payments on the bonds only if the Legislature appropriates monies for that purpose. Each statute denominates the bond proceeds as revenue of the State when transferred to the General Fund. Consistent with that denomination, the Governor has certified the expected bond proceeds as anticipated revenue for purposes of the Appropriations Act. Absent recognition of the bond proceeds as revenue, the Appropriations Act would show a deficit of approximately $1.5 billion. Plaintiffs filed suit seeking a declaration that the proceeds of the intended bond sale are not revenue as that term is used in the Appropriations Clause. They further claim that, absent voter approval, the contract or appropriations debt expected to be generated by the Surcharges Act and the Cigarette Tax Act is unconstitutional under the Debt Limitation Clause. The Law Division ruled against plaintiffs on both issues. This Court granted plaintiffs motion for direct certification, and dismissed as moot plaintiffs related motion to stay the issuance of any bonds based on the States representation that it would issue no bonds prior to the date of our anticipated decision. As a preliminary matter, the State acknowledges that this Court has never decided the question concerning what constitutes revenue under the Appropriations Clause. (For convenience, we refer to defendants collectively as the State.) At the same time, however, the State argues that the judiciary should decline to address the question because it falls exclusively within the province of the executive branch. The Law Division rejected that argument, as do we. Resolving the present dispute not only is consistent with our constitutional role, but also is a matter of judicial obligation. White v. Township of N. Bergen, 77 N.J. 538, 555 (1978). Turning to the merits of the revenue question, the Appropriations Clause provides: No money shall be drawn from the State treasury but for appropriations made by law. All moneys for the support of the State government and for all other State purposes as far as can be ascertained or reasonably foreseen, shall be provided for in one general appropriation law covering one and the same fiscal year; except that when a change in the fiscal year is made, necessary provision may be made to effect the transition. No general appropriation law or other law appropriating money for any State purpose shall be enacted if the appropriation contained therein, together with all prior appropriations made for the same fiscal period, shall exceed the total amount of revenue on hand and anticipated which will be available to meet such appropriations during such fiscal period, as certified by the Governor.
[N.J. Const. art. VIII, § 2, ¶ 2.]
We previously have observed that the Clause reflects a constitutional command that the
States finances be conducted on the basis of a single fiscal year covered
by a single balanced budget. City of Camden v. Byrne,
82 N.J. 133,
151 (1980). The requirement that the State enact a balanced budget each fiscal
year cannot in any sense be regarded as merely providing governmental housekeeping details,
necessary and important but not truly vital. Id. at 146 (internal quotation marks
and citation omitted). Rather, the Clause must . . . be given full
and complete effect in accordance with [its] clear and obvious intent. Ibid.
[Pub. Mkt. Co. of Portland v. City of Portland,
130 P.2d 624, 644
(1942) (internal quotation marks and citation omitted), supplemented on rehg by, 138 P.2d
916 (1943).]
We are not persuaded by a dictionary definition put forward by the State
describing government revenue as a broad and general term, including all public monies
which the State collects and receives, from whatever source and in whatever manner.
Blacks Law Dictionary 1185 (5th ed. 1979). Indeed, that definition begins with prefatory
language stating: As applied to the income of a government, which qualifies the
broad language that follows. Ibid. Certainly, as plaintiffs point out, income does not
obviously include borrowed funds. See, e.g., ibid. (defining public revenues as [t]he income
which a government collects and receives into its treasury including [a]nnual or periodical
yield of taxes, excise, custom, dues, [and] rents) (emphasis added). We observe also
that a dictionary available at the time the Constitution of 1947 was adopted
defined revenue to include [t]he annual or periodical yield of taxes, excise, customs,
duties, rents, etc., which a nation, State, or municipality collects and receives into
the treasury for public use; public income of whatever kind. Websters New International
Dictionary 2132 (2d ed. 1934, updated 1945) (emphasis added). Most relevant, the Governors
proposed budget for Fiscal Year 2004-2005 defines revenues similarly in the Readers Guide
Glossary at A-12: Funds received from taxes, fees or other sources that are
treated as income to the state and are used to finance expenditures. III. We reverse the judgment of the Law Division except to the extent that our holding is to be applied on a prospective basis only. CHIEF JUSTICE PORITZ and JUSTICES VERNIERO, ZAZZALI, and WALLACE join in the Courts opinion. JUSTICE LaVECCHIA filed a separate concurring and dissenting opinion. JUSTICES LONG and ALBIN did not participate. SUPREME COURT OF NEW JERSEY A- 103 September Term 2003 HONORABLE LEONARD LANCE, as a citizen of New Jersey and a taxpayer; HONORABLE ALEX DeCROCE, as a citizen of New Jersey and a taxpayer; HONORABLE JOSEPH M. KYRILLOS, JR., as a citizen of New Jersey and a taxpayer; HONORABLE STEVEN M. LONEGAN, as a citizen of New Jersey and a taxpayer; HONORABLE BRET SCHUNDLER, as a citizen of New Jersey and a taxpayer; and ROBERT LINDMARK, as a citizen of New Jersey and a taxpayer,
Plaintiffs-Appellants,
v.
HONORABLE JAMES E. McGREEVEY, Governor of the State of New Jersey; HONORABLE JOHN
E. McCORMAC, Treasurer of the State of New Jersey; and THE NEW JERSEY
ECONOMIC DEVELOPMENT AUTHORITY,
Defendants-Respondents,
and
HONORABLE RICHARD J. CODEY, President of the New Jersey Senate; and HONORABLE ALBIO
SIRES, Speaker of the Assembly,
Intervenors-Defendants-
SUPREME COURT OF NEW JERSEY NO. A-103 SEPTEMBER TERM 2003 ON CERTIFICATION TO Law Division, Superior Court, Mercer County
HONORABLE LEONARD LANCE, as a
v.
HONORABLE JAMES E. McGREEVEY,
and
HONORABLE RICHARD J. CODEY,
DECIDED July 26, 2004
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