Bayne v. Secretary of State

Orth, J., delivered the opinion of the Court. This case concerns the interplay between two amendments to the Constitution of Maryland made within a year of each other more than sixty years past. One, proposed by Acts 1914, ch. 673 and ratified at the election of 2 November 1915, added art. XVI and created “The Referendum.” The other, the “budget amendment,” proposed by Acts 1916, ch. 159 and ratified at the 1916 election, added § 52 to art.

Ill and established a comprehensive executive budget system for the State of Maryland, including the requirement that “[e]very appropriation bill shall be either a Budget Bill, or a Supplementary Appropriation Bill. ...” Md. Const., art. Ill, § 52 (2). We were called upon to decide whether a part of the Budget Bill for the fiscal year ending 30 June 1979 (Acts 1978, ch. 44) was subject to The Referendum. Through a per curiam order issued 17 August 1978, we held that it was not.

We now give our reasons. ⁵⁶³ I Item 32.01.05.03 of the Budget Bill for fiscal year 1979 designated an appropriation for “Medical Assistance Provider Reimbursements” relating to a “Medical Care Program” generally called the Maryland Medicaid Program. The appropriation is a composite of state and federal funds and is designed to provide direct payments to physicians, hospitals, clinics and other medical facilities undertaking to provide medical and hospital care for indigent persons. The Budget Bill was approved on 11 April 1978 1 with a rider attached to the appropriation: “Provided that no part of this General Fund appropriation may be paid to any physician or surgeon or any hospital, clinic or other medical facility for or in connection with the performance of any abortion, except upon certification by a physician or surgeon, based upon his or her professional judgment, that the procedure is necessary, provided one of the following conditions exists: 1. Where continuation of the pregnancy is likely to result in the death of the woman; or 2.

Where there is a risk that continuation of the pregnancy would have a detrimental effect on the health of the woman; or 3. Where there is a risk of the birth of the child with permanent physical deformity, genetic defect or mental retardation; or 4. Where medical procedures are necessary for a victim of rape, sexual offense or incest, when the rape, sexual offense or incest has been reported to a law enforcement agency or to a public or private health or social agency.” A petition was filed with the Secretary of the State to invoke The Referendum with respect to exceptions (2), (3) and ⁵⁶⁴ (4) of the Medical Assistance Provider Reimbursements appropriation. The Secretary refused to take action to verify the signatures on the petition.

He stated that no additional signatures would be accepted if proffered and made clear that the matter presented by the petition would not be certified to the boards of election to be placed on the ballot at the 1978 general election. On 13 June 1978, Susan E. Bayne and John M. Leonard, appellants, on their own behalf and on behalf of others, all Maryland citizens, taxpayers, and registered voters and signatories to or sworn petition carriers of and proponents of the referendum petition, instituted an action for a writ of mandamus and mandatory injunction in the Circuit Court for Montgomery County against Fred L. Wineland, Secretary of the State of Maryland, Blair Lee, III, Acting Governor of Maryland and Willard A. Morris, Administrator of the State Administrative Board of Election Laws, appellees. Appellants claimed that they would suffer irreparable harm if appellees prevented them from complying with the mandatory time limits imposed by law. They alleged that unless the court immediately ordered appellees to accept the referendum petition and to certify the signatures, the question could not be posed in the 1978 elections.

They requested the court to command appellees to accept and cause the signatures obtained to be verified, to accept and verify additional signatures to be obtained as provided by law, and, in the event the required number of signatures were received, to certify the question to the boards of election to be placed on the ballot at the 1978 general election. If the question was so referred to the voters, and the designated exceptions were approved by the people, appellants further asked that appellees be enjoined from proceeding under the exceptions until thirty days after such approval. Upon hearing, the circuit court denied appellants’ motion for summary judgment and granted appellees’ motion for summary judgment. Judgment was entered in favor of appellees for costs.

Appellants noted an appeal to the Court of Special Appeals. We granted appellants’ petition for a writ of certiorari before decision by the intermediate court. The ⁵⁶⁵ petition for the writ presented for resolution on review as the sole question decided below: “Is that portion of the budget bill affecting the appropriation for the State’s Medicaid Program sought to be petitioned to referendum an ‘appropriation for maintaining the State government’ and therefore not subject to rejection or appeal by referendum under Article XVI of the Maryland Constitution?” Upon consideration of briefs filed and argument heard, we affirmed the judgment of the trial court by our order as indicated with the mandate to issue forthwith. II Prior to the constitutional amendment, legislative referendum with respect to a law of general applicability did not exist in Maryland.

This Court had consistently held that to condition the operative effect of such a law upon approval by the voters of the State was an improper delegation of legislative authority. Cole v. Secretary of State, 249 Md. 425, 434 , 240 A. 2d 272 (1968), citing Hammond v. Haines, 25 Md. 541 , 90 Am. Dec. 77 (1866) and Burgess v. Pue, 2 Gill 11 (1844). The scope, mechanism, operation and effect of the referendum power reserved by the amendment are prescribed and defined in the six sections of art.

XVI

Dorsey v. Petrott, 178 Md. 230, 234 , 13 A. 2d 630 (1940); Dinneen v. Rider, 152 Md. 343, 355 , 136 A. 754 (1927); Beall v. State, 131 Md. 669, 678 , 103 A. 99 (1917). See Ritchmount Partnership v. Board of Sup’rs, 283 Md. 48, 60-61 , 388 A. 2d 523 [, 531-532] (1978); Anne Arundel Co. v. McDonough, 277 Md. 271, 283 , 354 A. 2d 788 (1976). Section 1 is the heart of the amendment. “(a) The people reserve to themselves power known as The Referendum, by petition to have submitted to the registered voters of the State, to approve or reject at the polls, any Act, or part of any Act of the General Assembly, if approved by the ⁵⁶⁶ Governor, or, if passed by the General Assembly over the veto of the Governor; “(b) The provisions of this Article shall be self-executing; provided that additional legislation in furtherance thereof and not in conflict therewith may be enacted.” See Maryland Code (1957,1976 Repl. Vol., 1977 Cum.

Supp.) art. 33, §§ 23-1, et seq. The general application of The Referendum is subject to three express limitations. Section 2 of art. XYI contains two of them: “No law making any appropriation for maintaining the State Government, or for maintaining or aiding any public institution, not exceeding the next previous appropriation for the same purpose, shall be subject to rejection or repeal under this Section.” 2 The third limitation appears in § 6: “No law or Constitutional Amendment, licensing, regulating, prohibiting, or submitting to local option, the manufacture or sale of malt or spirituous liquors, ⁵⁶⁷ shall be referred or repealed under any Act of the provisions of this Article.” 3 III We have traced the history of the budget amendment, now embodied in the Constitution of Maryland as § 52 of art.

Ill, discussed its provisions and explained its operation, in a number of cases. Md. Act. for Foster Child. v. State, 279 Md. 133, 140-147 , 367 A. 2d 491 (1977); Panitz v. Comptroller, 247 Md. 501, 505-509 , 232 A. 2d 891 (1967); McKeldin v. Steedman, 203 Md. 89, 96-100 , 98 A. 2d 561 (1953); Dorsey v. Petrott, 178 Md. at 241-245 ; Baltimore v. O’Conor, 147 Md. 639, 644-646 , 128 A. 759 (1925). The amendment was prepared by a Commission appointed by the Democratic State Convention held in Baltimore in 1915. The Commission, designated “The Commission on Efficiency and Economy,” was chaired by Dr. Frank J. Goodnow, president of Johns Hopkins University, and a noted political scientist.

Panitz at 507 . We summarized the reasons for the amendment in O’Conor; “Prior to the adoption of the Budget Amendment by the people of the State in 1916, there was no orderly plan or system which the General Assembly was required to follow in disbursing the State’s revenues, and as a result appropriations were more or less uncorrelated and deficits in the State treasury were not unusual. The purpose of the Budget Amendment was to remedy this situation by providing an intelligent and definite method of estimating and appropriating the income of the State.” Id., 147 Md. at 644 . The Governor sent the Goodnow report and its “accompanying Bill” to the Senate “for its prompt and favorable consideration.” A copy of the report was published in the Journal of Proceedings of the Senate of 28 January ⁵⁶⁸ 1916, pp. 129-134.

It reflected the Commission’s concern with cutting the cost of government through more efficient organization and management and with insuring that government expenditures should not exceed revenues. The Commission observed that its first thought in drafting the amendment was “[t]o impose on the Governor the sole responsibility, within the limits of the Constitution and the provisions of existing law, of presenting to the Legislature a complete and comprehensive statement of the needs and resources of the State____” Journal of Proceedings of the Senate, 28 January 1916 at 133. (Emphasis added). It rejected out of hand dilution of the control vested in the Governor.

In explaining why it chose the Governor alone over the Board of Public Works, it said: “[T]o make use of the Board of Public Works as a Budget Commission would have the disadvantage of dissipating personal responsibility for financial propositions, and would also run the risk of not securing party responsibility.” Id. at 131. It appears that the Commission was suggesting that if the Governor proposed an unpopular budget he and his party could be held accountable at the polls in subsequent Gubernatorial elections, but in the meantime the size of the budget would remain the sole responsibility of the Governor within certain well-defined limits. It is not surprising then, that in neither the Governors’ papers, nor the legislative Journals is there any indication that the Commission or the Legislature were concerned with the possibility that the Budget Bill was subject to referendum. But, of course, The Referendum was in existence at the time the budget amendment was proposed and passed, and subsection 14 of the budget amendment declared, with specific exceptions: 4 “In the event of any inconsistency between any of the provisions of this Section and any of the other provisions of the Constitution, the provisions of this ⁵⁶⁹ Section shall prevail.” It was in the light of the provisions of subsection 14 that we said in Dorsey, 178 Md. at 241 : “The Budget Amendment was not designed to interfere with the operation of the Referendum Amendment.” Although it may appear that to have the whole of State government brought to a standstill while a Budget Bill was before the voters on referendum would run counter to all the Commission stood for, being against its basic philosophy and the rationale and raison d’étre of the Bill it proposed, there is no indication that the Commission, the Legislature and the Governor were not content that any matter of referendum regarding a Budget Bill was to be resolved within the strictures of the referendum amendment itself.

IV In accord with the conclusion of our predecessors that the budget amendment was not designed to interfere with the operation of the referendum amendment, so that a Budget Bill is not per se excluded from The Referendum, we look to the limitations imposed by the amendment itself. 5 Patently, the limitation imposed by § 6, pertaining to the manufacture Or sale of malt or spirituous liquors, has no relation to the case at bar. 6 Equally apparent is that this case is not within the ambit of the provision of § 2 which excludes a law “for maintaining or aiding any public institution. .. The appropriation made by Item 32.01.05.03 of the Budget Bill is not concerned with a public institution but with reimbursing medical assistance providers under the Maryland Medical Care Program. Appellants agree that the only exception to be considered is that with respect to a law ⁵⁷⁰ “making an appropriation for maintaining the State Government.” This limitation has two requirements for the exclusion of a law from The Referendum: (1) the law must make an “appropriation” of public funds, and (2) such appropriation must be for “maintaining the State Government.” Dorsey v. Petrott, 178 Md. at 245 , points out that “although an act of the General Assembly may be passed for the purpose of maintaining the State government, the act is nevertheless subject to The Referendum, unless it be an act ... appropriating public funds for that purpose.” Dorsey defines an “appropriation”: “[A]n appropriation of public funds is made by a constitutional mandate or a lawful legislative act whose primary object is to authorize the withdrawal from the state treasury of a certain sum of money for a specified public object or purpose to which such sum is to be applied.” Clearly, § 32.01.05.03 of the Budget Bill makes an appropriation within the contemplation of art. XVI, § 2.

Appellants concede, “for the purpose of argument, that the conditions should be considered an ‘appropriation’....” They urge, however, that the appropriation is not within the limitation in that it does not maintain the State Government. The crux of their argument is that “[t]he provision of medical services to indigent persons is not a primary function of government.” We are not in accord with this view. Almost a century ago, this Court declared that the preservation of the health of the inhabitants is one of the chief purposes of government. Boehm v. Baltimore, 61 Md. 259, 263 (1884).

We said in State v. Hyman, 98 Md. 596, 613 , 57 A. 6 (1904): “One of the legitimate and most important functions of civil government is acknowledged to be that of providing for the welfare of the people by making and enforcing laws to preserve and promote the public health. ...” We have not departed from this view. See Stevens v. City of Salisbury, 240 Md. 556, 564 , 214 A. 2d 775 (1965); Wynkoop v. Hagerstown, 159 Md. 194, 201 , 150 A. 447 (1930); American Coal Co. v. ⁵⁷¹ Allegany Co., 128 Md. 564, 572-573 , 98 A. 143 (1916); Welch v. Coglan, 126 Md. 1, 7 , 94 A. 384 (1915). It is also generally recognized that the relief of indigent persons is a function of government. See Alameda County v. Janssen, 16 Cal. 2d 276 , 106 P. 2d 11, 15 (1940); State v. Lindstrom, 68 Idaho 226 , 191 P. 2d 1009, 1012 (1948); People v. Lyons, 374 Ill. 557 , 30 N.E.2d 46, 50 (1940); Bowman v. Frost, 289