AG Jepsen: “Spending Cap Is Unenforceable.”

Few things are more gratifying to a lawyer than when another lawyer of great stature agrees with the first lawyer’s legal opinion on some matter of significance. So, needless to say, I was quite pleased yesterday when I read Attorney General George Jepsen’s legal opinion that the state’s constitutional spending cap “has no current legal effect,” i.e., it is unenforceable. I wrote a couple of blog posts last April that reached that same conclusion.

The gist of the Attorney General’s legal opinion is this: Although voters passed the constitutional spending cap in 1992 (in response to the new state income tax), the new constitutional provision expressly required the General Assembly to pass legislation, by a 3/5s vote, that defined certain terms used within the provision, to wit, “increase in personal income,” “increase in inflation,” and “general budget expenditures.” The General Assembly has never fulfilled its constitutional obligation to define those terms.  Moreover, in 1996, the Connecticut Supreme Court dismissed a lawsuit by a group of taxpayers seeking a court order compelling the General Assembly to define those essential terms.  The court held on several grounds that it lacked the legal authority to force the legislature to perform a legislative act. See Nielsen v. State of Connecticut (1996).

In sum, based largely on the Nielsen decision, the Attorney General concluded that the constitutional spending cap is presently unenforceable and will remain unenforceable until and unless the General Assembly defines the requisite terms.

The Attorney General’s opinion might be read to imply that if the General Assembly performs that task, the constitutional spending cap will become enforceable. To be clear, the opinion does not address that issue directly; Senator Fasano, who requested a legal opinion on the spending cap, only asked the Attorney General to opine on the current legal status of the cap.

But what if the General Assembly passes legislation that defines the required terms?  Will the spending cap be judicially enforceable then? I emphasize the word “judicially” because a spending cap that cannot be enforced in the courts is pointless. If the courts cannot resolve disputes involving alleged violations of the spending cap, what’s the point? (It may retain some political value, of course, but not much in my view.)

As I explained in my prior posts, I have serious doubts that a court would enforce the spending cap even after the terms were defined. One of the reasons that the Supreme Court refused to get involved in the spending cap issue in 1996 is because it viewed the case as raising a “political question.” Under the political question doctrine, courts will not exercise their jurisdiction to decide political disputes that are best left to the legislative and executive branches of government to resolve.

Of course, my prediction about how the courts would apply the political question doctrine to a spending cap dispute once the legislature defined the relevant terms could well be wrong. I’d love to hear other lawyers’ views on this issue. But I think my prediction has a reasonable basis in the case law.

So, if the Nutmeg State wants to make sure that the spending cap is judicially enforceable, I think two things need to occur. First, the legislature needs to define the required terms. Second, the constitutional spending cap needs to be amended to include express language that requires the judicial branch to hear and resolve spending cap claims. I discussed such language in an earlier post about Governor Malloy’s call for a transportation lock box amendment.