Attorney General: Honorable Denise L. Nappier, Office of the Treasurer, 2001-009 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

April 23, 2001

Honorable Denise L. Nappier
State Treasurer
Office of the Treasurer
55 Elm Street
Hartford, CT 06106

Dear Ms. Nappier:

You have asked whether annual legislative approval would be required for legislation allocating unappropriated surplus funds under article third, §18(c) of the Connecticut Constitution.

As noted in your letter, article third, §18(c) provides that:

Any unappropriated surplus shall be used to fund a budget reserve fund or for the reduction of bonded indebtedness; or for any other purpose authorized by at least three-fifths of the members of each house of the general assembly.

Conn. Const. art. third, §18(c). You question (1) whether this constitutional provision requires the General Assembly to approve annually, by a three-fifths majority of the membership of each house of the General Assembly, any legislation establishing specific priorities for allocating unappropriated surplus in addition to funding the budget reserve fund and reducing bonded indebtedness, or (2) whether there is no need for further legislative action once the General Assembly has approved the legislation by a vote of three-fifths of all members. As discussed below, we conclude that there would be no need for further legislative action in order for such legislation to remain in force after it has been approved by a three-fifths majority of each house.

Article third, §18, was originally introduced as House Joint Resolution No. 205, which was adopted by the General Assembly on August 21, 1991. See Nielsen v. State, 236 Conn. 1, 3, 670 A.2d 1288 (1996); 1993 Conn. Op. Atty. Gen. 93-006 (4/14/93). The Resolution was approved by voters on November 3, 1992, and certified by the Secretary of the State as the twenty eighth amendment to the Connecticut Constitution on November 25, 1992. Nielsen, 236 Conn. at 4.

"As a general rule, the usual principles governing the construction of statutes apply also to the construction of constitutions, except that consideration should be given to the broader purposes and scope of constitutions." 16 C.J.S., Constitutional Law, §19. Thus, "constitutional provisions should be given a broader and more liberal construction than statutes." Id.

When construing a statute, the court’s "fundamental objective is to ascertain and give effect to the apparent intent of the legislature." Doucette v. Pomes, 247 Conn. 442, 455, 724 A.2d 481 (1999). Similarly, "[a] constitutional provision should . . . be construed so as . . . to give it effective operation and suppress the mischief at which it was aimed." Palka v. Walker, 124 Conn. 121, 127, 198 A. 265 (1938). "In seeking to discern that intent, [the court] look[s] to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." Doucette, 247 Conn. at 455; Frillici v. Town of Westport, 231 Conn. 418, 431, 650 A.2d 557 (1994).

On its face, the plain language of article third, §18(c), provides that any unappropriated surplus may be used for "any purpose authorized by at least three-fifths of the members of each house of the general assembly," but does not state whether the purpose, once authorized, must be reauthorized by a three-fifths vote of the general assembly every year in which there is a surplus. The legislative history of the amendment does not address this issue and no relevant Connecticut court decisions or opinions of the Attorney General interpreting the amendment were found.

Turning to well-established rules of statutory construction, the principle that "[c]ourts cannot, by construction, read into statutes provisions which are not clearly stated" suggests that, in the absence of any language in the amendment explicitly requiring the General Assembly to annually reauthorize any "other purpose" to which a surplus is put, such a requirement should not be read into the amendment. See Houston v. Warden, 169 Conn. 247, 251, 363 A.2d 121 (1975). To do so would arguably be excessively burdensome for the legislature and would be contrary to the general rule that a valid enactment of the general assembly remains in force until repealed or amended, unless the language of the statute provides otherwise. See 82 C.J.S., Statutes, §3 ("[w]hen duly enacted, the statute becomes controlling with respect to the matter to which it properly relates and . . . its effect is absolute until it is changed by legislative authority").

Further support for the conclusion that the General Assembly need not annually reauthorize the purposes to which a surplus may be applied comes from the language of the other subsections of article third, §18. "In order to determine the meaning of a statute, [the court] must consider the statute as a whole." Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 235, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103 (1997). "The use of different words or the absence of repeatedly used words in the context of the same subject matter must indicate a difference in legislative intention." Napoletano, 238 Conn. at 252 (brackets omitted). In the case of article third, §18, the General Assembly repeatedly used the phrase "for any fiscal year" in subsections (a) and (b), but did not use the same qualifying language in subsection (c). For example, in subsection (a), the amendment states that "[t]he amount of general budget expenditures authorized for any fiscal year shall not exceed the estimated revenue for such fiscal year." (Emphasis added). And in subsection (b), the amendment states that "[t]he general assembly shall not authorize an increase in general budget expenditures for any fiscal year "above a specified amount unless the governor declares an emergency and three-fifths of the members of each house of the general assembly approve the measure. (Emphasis added). Had the legislature intended that any purpose to which a surplus is put, other than funding the reserve fund or reducing bonded indebtedness, must be reapproved every year, it would have used language in subsection (c) similar to that which it used in the other subsections. In other words, it would have stated that any unappropriated surplus may be used "for any other purpose authorized for any fiscal year by at least three-fifths of the members of each house of the general assembly." The fact that it did not use such language in subsection (c), but did use it in subsections (a) and (b), "must indicate a difference in legislative intention." Napoletano, 238 Conn. at 252.

Accordingly, we conclude that the General Assembly did not intend article third, §18(c), to require annual legislative reapproval of legislation, passed by a three-fifths majority of each house, establishing purposes to which an unappropriated budget surplus may be allocated in addition to funding the budget reserve fund and reducing bonded indebtedness. As long as such legislation is passed by the requisite three-fifths majority of each house, it is our opinion that it should remain in force without further legislative action until amended or repealed by a subsequent legislature.

We trust that this opinion answers your questions.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

RB/jrr


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