No. 83SA381Supreme Court of Colorado.
Decided May 6, 1985. Rehearing Denied May 28, 1985.
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Appeal from District Court, City and County of Denver Honorable Harold D. Reed, Judge
Duane Woodard, Attorney General, Charles B. Howe, Deputy Attorney General, Richard Forman, Solicitor General, for Defendant-Appellant and Cross-Appellee.
Welborn, Dufford Brown, Philip G. Dufford, Gregory A. Ruegsegger, for Plaintiff-Appellee and Cross-Appellant.
EN BANC
JUSTICE KIRSHBAUM delivered the opinion of the Court.
[1] This appeal involves questions concerning the authority of the chief executive of the State of Colorado to transfer funds from the departments of the executive branch of government for which the funds were appropriated to other executive departments. Specifically, the appeal is brought by the Honorable Richard D. Lamm, as Governor of the State of Colorado, from a judgment of the trial court in two consolidated civil actions originally filed against the Governor and others by the Colorado General Assembly seeking a judicial declaration that certain transactions undertaken by the Governor were not authorized. The trial court concluded that one of the transactions was authorized and that the others were not. The General Assembly has filed a cross-appeal in one of the cases. We affirm in part, reverse in part and remand for further proceedings.[2] I. Facts
[3] The basic facts giving rise to the filing of the two suits are not in dispute, although the parties are in sharp conflict with regard to the significance of those facts. On August 28 and September 18, 1980, the Governor, by executive orders, authorized the transfer of $2,475,000 to various accounts of the Department of Corrections from accounts in other executive departments.[1] The transferred sums represented
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“reversions,”i.e., appropriated funds not spent during the fiscal year for the purposes for which they were appropriated. These funds had been appropriated by the General Assembly for the state fiscal year ending June 30, 1980. Had they not been expended, the funds would have been returned (“reverted”) to the state general fund or a special fund by the executive branch departments for whose programs the original appropriations had been made. These transfers were deemed essential by the Governor because the General Assembly was not in session and, under a decision of the United States District Court for the District of Colorado, Ramos v. Lamm, 485 F. Supp. 122 (D. Colo. 1979), aff’d in part, 639 F.2d 559 (10th Cir. 1980), cert. denied, 450 U.S. 1041 (1981), it was essential that the Division of Correctional Industries of the Department of Corrections complete construction of a new maximum security prison facility by December 30, 1980. The Department of Corrections was unable to finance completion of that project by the end of the year from its appropriated funds. The Governor consulted with the Joint Budget Committee of the General Assembly concerning this situation and informed that body of his decision to meet the perceived fiscal crisis by means of these transfers.
[4] In Civil Action No. 81CV10058, filed November 19, 1981, the General Assembly alleged that these 1980 transfers violated article III of the Colorado Constitution and sections 32 and 33 of article V of the Colorado Constitution.[2] The General Assembly also asserted that the transfers violated section 24-75-102, 10 C.R.S. (1973),[3]Page 512
sections 24-75-201.1,[4] -201.2,[5] -302[6] and -303,[7] 10 C.R.S. (1982), and certain administrative regulations. The suit was instituted subsequent to the adoption of Senate Joint Resolution No. 12 of the Fifty-third General Assembly. Sen. Joint Res. No. 12, 1981 Colo. Sess. Laws 2066. In his answer, the Governor argued that the transfers were authorized by article III of the Colorado Constitution and by sections 24-30-201(1)(b) and 24-37-405(1)(k), 10 C.R.S. (1982).[8] The Governor, who was the sole defendant in this action, asked for a declaratory judgment that the transfers were authorized.
[5] On June 16, 1982, Civil Action No. 82CV5005 was commenced by the General Assembly against the Governor, the Treasurer of the State of Colorado, the Controller of the State of Colorado, the Executive Director of the Department of Administration of the State of Colorado and twoPage 513
private parties.[9] This action challenged certain transactions which occurred in November 1981 and May 1982.
[6] On October 26, 1981, the State of Colorado received the sum of $306,783 from Standard Oil Company of California (Chevron), a private corporation. This sum represented Colorado’s share of a special fund created pursuant to a consent order which terminated Chevron’s involvement in federal administrative and judicial proceedings arising from allegations by the United States Department of Energy that Chevron had violated federal price-control legislation in sales of petroleum and natural gas products. In response to a letter from Chevron to the State Office of Energy Conservation, an office of the executive branch, indicating that Colorado was required by the consent order to indicate the purpose for which its share would be spent, the Governor had determined that the sum should be allocated to that office for energy conservation purposes. Accordingly, on November 12, 1981, the sum of $306,783 was allotted to the account of the Office of Energy Conservation. [7] In May of 1982, the Governor approved four sets of transfers of appropriated funds and cash funds spending authorities among several executive departments.[10] The first transaction involved the transfer of $649,000 of appropriated funds from fifty-two accounts in various executive departments to an account in the Office of the State Controller and a reallocation of this sum to three different accounts. The Central Pots account[11] of the Office of State Planning and Budgeting (O.S.P.B.) received $627,879, which sum was allocated by O.S.P.B. to several executive departments for personnel expenses. The second transaction involved the transfer of $300,000 in appropriated funds from Central Pots accounts and line item accounts of seven executive departments to the general funds account of the Governor’s Office, which funds were ultimately expended for operations of the Executive Office, the Executive Residence and the Office of the Lieutenant Governor. The third transaction involved the transfer of $312,315 of the cash funds spending authority appropriated to O.S.P.B. for Central Pots to accounts of three executive departments. Finally, $1,179,000 of the cash funds spending authority appropriated to Correctional Industries was transferred to the personal services budgets of other agencies which were cash funded in part and which had generated cash revenues in excess of their appropriated cash funds spending authorities.Page 514
[8] The complaint in Civil Action No. 82CV5005 alleged that the 1981 and 1982 transactions violated the following provisions of the Colorado Constitution: article III; article IV, section 2; and article V, sections 17, 32 and 33.[12] The complaint also alleged that the transactions violated sections 24-75-102, 24-30-202 and 24-50-110(1)(c), 10 C.R.S. (1982), and certain administrative regulations.[13] [9] The defendants filed an answer and two counterclaims to this complaint. The answer asserted that all of the challenged transfers were authorized by the Colorado Constitution and by sections 24-30-201(1)(b) and 24-37-405(1)(k), 10 C.R.S. (1982). It also asserted that the Chevron funds received by the executive branch in October of 1981 were not subject to legislative appropriation. The first counterclaim alleged that the passage of House Bill 1261[14] in 1982, a supplemental appropriations bill for the Department of Administration, violated the separation of powers provision of article III of the Colorado Constitution and constituted legislative interference with the executive power to administer appropriated funds, as vested by section 2 of article IV of the Colorado Constitution, because it retroactively decreased Central Pots appropriations for the executive branch for that fiscal year. The second counterclaim alleged that the General Assembly had arbitrarily refused to appropriate sufficient funds to ensure minimal levels of operation for the Office of the Governor for fiscal year 1981-82. It also alleged that such underfunding was part of a continuing course of conduct designed to reduce the effectiveness of the executive branch of government, in violation of article III of the Colorado Constitution. [10] The trial court concluded that the Governor’s treatment of the Chevron funds was authorized because those funds in essence constituted a gift to the State of Colorado and were not subject to the appropriation power of the General Assembly. With respect to the transfers to the Department of Corrections in 1980 and all of the transfers in May 1982, the trial court concluded that they were authorized by sections 24-30-201(1)(b) and 24-37-405(1)(k), 10 C.R.S. (1982), but that those statutes violated constitutional provisions vesting the General Assembly with sole authority over appropriations.Page 515
Reasoning that the expenditure of such funds constituted in effect a reappropriation by executive order, the trial court concluded that the two statutes constituted “an unlawful delegation of the legislative function.” Given this resolution, the trial court deemed the question of whether the transfers violated other statutes to be moot. The trial court also dismissed the counterclaims in Civil Action No. 82CV5005 on the grounds that appropriations are always subject to modification and amendment and that the Governor failed to establish that the challenged conduct “did or would impair the functions of the executive branch.”
[11] II. Jurisdiction
[12] The Governor contends that the judicial branch lacks jurisdiction to determine the issues raised by these two civil actions. We disagree.
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jurisdiction of the courts is a preliminary inquiry designed to ensure that the judicial power is exercised only in the context of a case or controversy. See State Board for Community Colleges Occupational Education v. Olson, 687 P.2d 429 (Colo. 1984). The resolution of standing issues requires a court to determine, based primarily upon the allegations contained in the complaint, “(1) whether the plaintiff was injured in fact [and] (2) whether the injury was to a legally protected right.” Wimberly v. Ettenberg, 194 Colo. 163, 168, 570 P.2d 535, 539 (1977). Parties seeking declaratory or injunctive relief, as in this case, may satisfy the injury-in-fact test by showing that the action complained of has caused or has threatened to cause injury. Id.; see Community Tele-Communications, Inc. v. Heather Corp., 677 P.2d 330
(Colo. 1984); CFI Steel Corp. v. Colorado Air Pollution Control Commission, 199 Colo. 270, 610 P.2d 85 (1980). The requirement of an injury in fact is of constitutional dimension; the judicial power granted to courts by article VI of the Colorado Constitution may be exercised only if an actual controversy exists, as demonstrated by real injury. See Conrad v. City County of Denver, 656 P.2d 662 (Colo. 1983) (as modified on denial of rehearing). The requirement that the injury be to a legally protected right reflects prudential considerations of judicial self-restraint. Id.
[20] III. The “Transfer” Statutes
[21] The Governor asserts that the trial court erred in concluding that sections 24-37-405(1)(k) and 24-30-201(1)(b), 10 C.R.S. (1982), violate the provisions of article III of the Colorado Constitution prohibiting each branch of government from exercising any power properly belonging to either of
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the other two branches of government.[16] We agree.
[22] Section 24-37-405(1)(k) states as follows: [23] “(1) The division of budgeting shall assist the governor in his responsibilities pertaining to the executive budget. Specifically, it shall:” [24] . . . . [25] “(k) Review for the governor all transfers between appropriations and all work programs recommended by the controller. . . .” [26] By its terms, this statute defines an administrative review function to be performed by the division of budgeting. It does not confer any authority upon that office to make, recommend or approve any transfers of any kind, nor does it contain any language indicating whether particular transfers are to be presumed authorized. The statute does not confer any power of appropriation or any other legislative power upon the division, and does not violate article III of the Colorado Constitution. [27] Section 24-30-201(1)(b), which will at times be referred to as the “controller statute,” states as follows: [28] “(1) The division of accounts and control shall be a division in the department of administration. The controller shall be the head of the division and shall be appointed by the executive director of the department of administration, subject to the provisions of section 13 of article XII of the state constitution. The controller shall be bonded in such amount as said executive director shall fix. The powers and duties of the division and of the controller shall be:” [29] . . . . [30] “(b) To recommend transfers between appropriations under the provisions of law, to become effective upon approval by the governor. . . .” [31] The authority described in this statute has been vested in the executive branch since the adoption of the Administrative Code of 1941 See ch. 2, sec. 9, 1941 Colo. Sess. Laws 35, 54 (codified at C.R.S. 1953, § 3-3-1(9)).[17] This statutory language permits the controller to exercise the power of recommendation only with regard to transfers “under the provisions of law.” Thus, the statute by its terms limits the controller’s authority to recommend transfers to such transfers as are authorized by some source independent of section 24-30-201(1)(b). Certainly transfers prohibited by the Colorado Constitution could not be considered transfers “under the provisions of law.” [32] The Governor contends that the phrase “under the provisions of law” should be construed to modify the word “appropriations.” Such a construction would render the phrase meaningless; “appropriations” may only be made by the adoption of a statute and, therefore, are always made “under the provisions of law.” When possible, every word of a statute must be given effect. See Leonard v. Board of Directors, 673 P.2d 1019 (Colo.App. 1983). Furthermore, if the transfers subject to the recommending authority of the controller are not limited to transfers authorized by some source independent of the controller statute, there would be no limit on the authority of the Governor to approve transfers of funds between appropriations, even in violation of specific directions by the General Assembly in the Long Bill or in some other statute. To read such broad authority into the statute would acknowledge that by this statute the General Assembly delegated to the chief executive the power of appropriation — an unconstitutional result to be avoided rather than embraced in seeking to ascertain the meaning and intent of legislation See, e.g., Romero v. Sandoval, 685 P.2d 772 (Colo. 1984).Page 518
[33] A limited construction of the controller statute is further indicated when consideration is given to another principle of statutory construction, namely, that when determining the meaning of a particular statute, it is important to consider the relationship of that statute to other legislative provisions concerning the same subject matter when the statute in question is part of a comprehensive legislative program. See, e.g., Allen v. Charnes, 674 P.2d 378 (Colo. 1984). The controller statute was initially adopted in 1941 as part of a comprehensive legislative revision of statutory provisions governing the administrative operations of the executive branch of government. See ch. 2, 1941 Colo. Sess. Laws 35. The conclusion that the controller statute refers only to transfers otherwise authorized by law is supported by an examination of the history of certain other provisions of the Code. [34] When the predecessor of the controller statute was adopted in the 1941 Administrative Code, a separate provision of that Code dealt with the authority of the Governor to effect transfers of funds appropriated to executive departments. Section 11 of article 2 of the 1941 Code — the section immediately preceding the predecessor of the controller statute — expressly authorized the Governor “to transfer from the contingent and incidental fund of any department, board or bureau having a surplus therein to any department, board or bureau having a deficit in its contingent and incidental fund such sums as he may deem necessary.” Ch. 2, sec. 11, 1941 Colo. Sess. Laws 35, 52 (codified at C.R.S. 1953, § 3-2-3). [35] However, the provision authorizing transfers between contingent and incidental funds of departments was repealed in 1963. Ch. 32, sec. 3, 1963 Colo. Sess. Laws 120, 122. Prior to 1963, it could be argued that the authority of the controller and of the Governor referred to in the controller statute extended at least to interdepartmental transfers of appropriations for contingent and incidental funds. However, since the repeal of the statute giving the Governor authority to transfer contingent and incidental funds from one department to another, the only statutory authority of the controller or the Governor with respect to the transfer of appropriated funds found in the Administrative Code, with the exception of an emergency provision,[18] is the language of the controller statute referring to transfers authorized by law. The Governor’s contention that since 1941 the controller statute itself has by implication recognized an authority in the office of the Governor to transfer funds between departments, if adopted, requires the conclusion that statutory language which for twenty-two years purported to authorize interdepartmental transfers of contingent andPage 519
incidental funds in fact was mere surplusage. We reject this proposed construction. See People v. Hamilton, 666 P.2d 152
(Colo. 1983). Rather, we conclude that the controller statute refers only to transfers which are authorized by some other provision of law. Thus construed, the statute itself does not unconstitutionally delegate to the chief executive the power of the General Assembly to appropriate funds.
[36] IV. Inherent Executive Authority
[37] The Governor contends that the 1980 and 1982 transfers were within the discretion inherent in the constitutional authority of the chief executive to administer the executive branch of government. We disagree.
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[40] “The object of the constitutional provision inhibiting the payment of money from the state treasury, except by an appropriation made by law, etc., is to prohibit expenditures of the public funds at the mere will and caprice of the crown or those having the funds in custody, without direct legislative sanction therefor. . . .” [41] 88, 69 N.W. 373 (1896) (discussing history of appropriations power in British and American governments). This plenary power of the legislature over appropriations is the power “`to set apart from the public revenue a certain sum of money for a specified object, in such manner that the executive officers of the government are authorized to use that money, and no more, for that object and for no other.'” People ex rel. Ammons v. Kenehan, 55 Colo. 589, 598, 136 P. 1033, 1036 (1913) (quoting Moore, 50 Neb. at 96, 69 N.W. at 376). [42] In determining whether particular legislation constitutes an appropriation, we have observed that no precise formula is required, and that the critical determination is whether the particular law fixes a sum certain for a specific purpose. See Goodykoontz, 22 Colo. 507, 45 P. 414. An act creating the office of state steam boiler inspector and fixing the inspector’s annual salary was held to constitute an appropriation. Id.; see also In re Continuing Appropriations, 18 Colo. 192, 32 P. 272(upholding the general validity of continuing appropriations). Conversely, a statute fixing a rate of pay for soldiers serving under order of local authorities in times of insurrection was held not to constitute an appropriation because no limit was set on the total that might be expended for such pay. Kenehan, 55 Colo. 589, 136 P. 1033. [43] Recognizing the legislature’s plenary power to determine the objects and level of support to which the public revenues may be put does not mean that the executive branch has no role in the appropriations process. The governor has veto power over appropriations. Colo. Const. art. IV, §§ 11, 12; see In re Interrogatories of Governor Regarding Certain Bills of the Fifty-first General Assembly, 195 Colo. 198, 578 P.2d 200
(1978). The executive branch also plays an important role in the budget process by submitting information to the General Assembly necessary for the intelligent exercise of the appropriations power. See §§ 24-37-100.3 to -404, 10 C.R.S. (1982 1984 Supp.); Dodge v. Department of Social Services, 657 P.2d 969 (Colo.App. 1982). The Governor also may convene the General Assembly on extraordinary occasions to address fiscal crises. See Colo. Const. art. IV, § 9; e.g., Proclamation, 1933 Colo. Sess. Laws, Extraordinary Session. Such cooperation between the branches of government illustrates the exception to the command of article III that the powers of government be kept distinct. See People v. McKenna, 199 Colo. 452, 611 P.2d 574 (1980). [44] Once an appropriation has been made, it becomes the executive’s responsibility to “take care that the laws be faithfully executed.” Colo. Const. art. IV, § 2. The Governor correctly notes that the duty to execute appropriations or spending laws encompasses the authority to administer the budget. See Anderson, 195 Colo. 437, 579 P.2d 620 MacManus, 179 Colo. 218, 499 P.2d 609. As the trial court found, the transactions here challenged were carried out in the good faith belief that they were essential for the fulfillment of that constitutional responsibility in view of the circumstances confronting the executive branch. The issue, however, is whether such transactions were in fact constitutionally authorized. [45] The appropriations and cash funds spending authorities transferred by the Governor in 1980 and 1982 were initially designated by the General Assembly for the use of particular executive departments. Each executive department is responsible for a particular area of governmental concern, as defined by the statute creating the department. When the General Assembly determines the amount of appropriations or cash funds spending authority
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to be used by a particular executive department, it is clear that one object of that legislative decision is regulation of the activity level of that department. The transfers challenged here altered dramatically the objectives which the General Assembly had determined were to be achieved through use of state monies. We conclude that whatever inherent authority to administer the executive budget may exist in the office of the chief executive, such authority may not normally be invoked to contradict major legislative budgeting determinations. In our view, the initial appropriations to the departments involved here constituted such major legislative budgetary determinations.
[46] The Governor contends that he shares the responsibility with the General Assembly to assure that appropriations and expenditures within a fiscal year do not exceed the total taxes in that year under article X, section 16, of the Colorado Constitution and that the executive transfers here challenged were consistent with that authority. However, this constitutional provision applies by its terms to appropriations made and expenditures authorized “by the general assembly.” Colo. Const. art. X, § 16. The case of In re Priority of Legislative Appropriations, 19 Colo. 58, 34 P. 277 (1893), the only authority cited by the Governor in support of this argument, merely recognizes that when revenues are insufficient to satisfy appropriations, a pronouncement on the priority of claims against the auditor may not be resolved in an ex parte proceeding without the claimants. That case does not support the broad interpretation of this constitutional provision advanced by the Governor. [47] The Governor relies on the following decisions from four other jurisdictions in support of the assertion that these transfers should be considered authorized by the inherent executive authority granted to the chief executive by the Colorado Constitution: State, ex rel. Schneider, v. Bennett, 219 Kan. 285, 547 P.2d 786 (1976) (Schneider I) and 222 Kan. 11, 564 P.2d 1281 (1977) (Schneider II); Bussie v. McKeithen, 259 So.2d 345(La.App. 1971), writ refused by, 261 La. 451, 259 So.2d 910 (1972) Advisory Opinion in re Separation of Powers, 305 N.C. 767, 295 S.E.2d 589
(1982); and State, ex rel. Meshel, v. Keip, 66 Ohio St.2d 379, 423 N.E.2d 60 (1981). Analysis of these decisions reveals that they were decided in quite different factual and legal contexts and do not assist the delicate delineations of governmental authority raised by these transactions under the Colorado Constitution. [48] In Schneider I, the Supreme Court of Kansas held that an executive agency’s authority to make transfers between line items of its appropriation constituted an exclusively executive power which could not be delegated to a legislative committee. See Kan. Stat. Ann. § 75-3726a
(Supp. 1975). The court distinguished, however, between the power of an agency to administer its own appropriation and the power of an administrative body to authorize an agency to exceed its appropriation, and concluded that in the latter case the delegation would infringe the legislative authority over appropriations. Schneider I, 219 Kan. 285, 547 P.2d 786. Indeed, Schneider I recognized that transfers which would cause amounts expended to exceed appropriations would encroach on the legislative domain, a conclusion which in reality supports the argument of the General Assembly here that the 1980 and 1982 executive transfers impermissibly altered the legislative policies established by the General Assembly for the departments involved. Schneider II dealt with particular aspects of the response of the Kansas legislature to Schneider I, and construed a certain provision of the Kansas Constitution which has no counterpart in the Colorado Constitution. [49] In Advisory Opinion in re Separation of Powers, the North Carolina Supreme Court concluded that its state legislature could not limit the authority of executive budget officials to transfer funds between line items “in the department of any agency” to ten percent of the amounts appropriated. See 305 N.C. 767, 295 S.E.2d 589 (construing ch. 1127, sec. 82, 1981 N.C. Sess. Laws 1622, 1654, a proposed amendment
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to N.C. Gen. Stat. § 143-23 (1983)). In Bussie v. McKeithen, the Louisiana Court of Appeals held only that a line item within an appropriation to a particular agency may be transferred by the agency without infringing on the legislative appropriation power. See 259 So.2d 345. Finally, in State, ex rel. Meshel, v. Keip, the Ohio Supreme Court considered whether the Ohio legislature may delegate to a board the power to authorize transfers of “all or part of appropriations from one fiscal year to another.” See Ohio Rev. Code Ann. § 127.14 (Page 1984). The court held that such a delegation was permissible only because another statute required such transfers to conform to the intent of the Ohio General Assembly. See Keip, 66 Ohio St.2d 379, 423 N.E.2d 60 (construing Ohio Rev. Code Ann. §127.17(B) (Page 1984)). These decisions, dealing with intradepartmental transfers in the context of various statutory and constitutional clauses, are of limited assistance in view of the circumstances of this case.
[50] The General Assembly relies on decisions from courts in other jurisdictions which describe the legislative appropriation power as the power to determine the precise amount to be spent on a particular object deemed worthy of state support by the legislature. See, e.g., State ex rel. Kurz v. Lee, 121 Fla. 360, 163 So. 859 (1935); Colbert v. State, 86 Miss. 769, 39 So. 65 pronouncements in Kenehan, 55 Colo. 589, 136 P. 1033, and Goodykoontz, 22 Colo. 507, 45 P. 414. The General Assembly also refers to opinions in other jurisdictions finding certain executive transfers unauthorized on state statutory or constitutional grounds. See Wallace v. Baker, 336 So.2d 156 (Ala. 1976); County of Cook v. Ogilvie, 50 Ill.2d 379, 280 N.E.2d 224 (1972); Opinion of the Justices to the Senate, 375 Mass. 827, 376 N.E.2d 1217 (1978); Baker v. Commonwealth, 312 Mass. 490, 45 N.E.2d 470 (1942). Although different constitutional clauses in different factual circumstances are involved in these cases, they support our conclusion that the legislative power of appropriation was impermissibly contravened by the major transfers challenged in this case.[20] [51] Article V, section 33, of the Colorado Constitution states as follows: [52] “No moneys in the state treasury shall be disbursed therefrom by the treasurer except upon appropriations made by law, or otherwise authorized by law, and any amount disbursed shall be substantiated by vouchers signed and approved in the manner prescribed by law.” [53] The Governor contends that the phrase “or otherwise authorized by law,” added to section 33 in 1974, see Sen. Con. Res. No. 1, sec. 1, 1974 Colo. Sess. Laws 445, 450, contemplates a delegation of fiscal authority to the executive branch that encompasses the power to transfer monies between appropriations. This interpretation, if adopted and applied to the transfers here, would in effect authorize the chief executive to reappropriate funds in a manner which would directly contravene major objectives or purposes sought to be achieved by the General Assembly’s process of appropriation. We do not read so broad a grant of executive authority into this phrase. We conclude that the transfers between executive departments here undertaken impermissibly infringed upon the General Assembly’s plenary power of appropriation, and, therefore, cannot be deemed to fall within the inherent administrative authority of the Governor over the state budget. However accurate the perception of the executive branch that emergency conditions existed might have been,Page 523
the means ultimately chosen in good faith to remedy those conditions were not within the inherent authority of the chief executive.[21]
[54] V. The Counterclaims
[55] The Governor asserts that the trial court erred in dismissing the two counterclaims filed in Civil Action No. 82CV5005. The first counterclaim alleged that the General Assembly, by adopting a supplemental appropriation which in fact reduced the amount of funds available for certain executive expenses, unlawfully invaded the Governor’s executive authority to manage the budget. The second counterclaim alleged that the General Assembly engaged in a continuing course of action of arbitrarily refusing to appropriate sufficient sums for the budget of the Governor’s executive office, thereby unconstitutionally restricting the Governor from carrying out his powers to administer the executive branch. The trial court ruled, with respect to both counterclaims, that the evidence failed to sustain the Governor’s allegations. We agree.
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governmental operations, the supplemental appropriation process becomes an extremely important facet of legislative responsibility.
[59] The evidence was conflicting as to the exact effect of supplemental appropriations adopted in the spring of 1982 for the Central Pots budget for fiscal year 1981-1982. The trial court found that in fact these supplemental appropriations did not result in a reduction of the total amount of funds available for Central Pots as provided by the Long Bill for that year. The evidence supports the trial court’s findings; therefore, we will not disturb them on appeal. Gebhardt v. Gebhardt, 198 Colo. 28, 595 P.2d 1048 (1979). [60] With respect to the second counterclaim, the trial court made the following findings: [61] “(a) There was no evidence that the office of the Governor was underfunded for FY 1981-1982 or that the functions and duties of that office were impaired by the level of appropriation made. [62] “(b) To the contrary, the evidence clearly established beyond a reasonable doubt, that the financial deficit realized by the executive offices of the Governor in April 1982 and thereafter was the product of a knowing overspending beyond the appropriation level established by the legislature — this without unusual or unexpected circumstances intervening.” [63] Although conflicting evidence was introduced by the parties concerning these questions, the record does support the trial court’s findings; therefore, we will not disturb them on appeal. In view of these findings, the factual predicate for the Governor’s legal argument fails. It is therefore not necessary to address the Governor’s position that the General Assembly is required by the constitution to appropriate a minimal level of funding to permit the executive branch to carry out its constitutional functions.[64] VI. The Chevron Funds
[65] In its cross-appeal, the General Assembly contends that the trial court erred in concluding that the determination of the Governor to direct the expenditure of $306,783 paid by Chevron did not violate the appropriation power of the General Assembly. In the circumstances of this case, we affirm.
(1944). The sum in question was paid by Chevron as the result of a consent order which resolved several federal administrative and judicial proceedings to which Chevron was a party. [67] The federal proceedings arose after an audit of Chevron’s pricing and allocation policies conducted by the United States Department of Energy (DOE) revealed that from January 1, 1973, through January 27, 1981, Chevron may have violated Department of Energy regulations in marketing certain petroleum and natural gas products. The consent order, which was entered in a Department of Energy administrative proceeding instituted by the Department against Chevron, required Chevron to establish a fund of $25,000,000 for the benefit of those states in which the petroleum and natural gas products in question had been marketed. The order permitted eligible states to request proportionate shares of the fund and provided for notice to those states as follows: [68] “Within 15 days after this Consent Order has been executed, [Office of Special Counsel of the DOE] shall notify the eligible states (1) of the amount designated for that state; (2) of the uses to which the amount may be put; and (3) the date by which an appropriate state official must certify that the state will undertake a specific program. A state’s entitlement under this [provision] is conditioned upon said certification.”
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[69] A list of possible uses for which the funds might be used were published in the Federal Register,[22] and in a letter addressed to the Colorado Office of Energy Conservation a Chevron representative described several uses which might be acceptable, including energy conservation or energy research. The amount to be distributed to each eligible state was to be determined by Chevron by means of a formula specified in the consent order. The Department of Energy and Chevron retained ultimate authority to approve any use of the funds proposed by eligible states. [70] We conclude that the trial court’s characterization of the Chevron payment as not subject to the appropriation power of the General Assembly is warranted by the record. The money, whether deemed from a private source because disbursed from the coffers of a private corporation or from a federal source because approved by a federal administrative authority, was required to be used for a purpose approved ultimately by non-Colorado authorities. The funds, although fundamentally in the nature of a reimbursement for moneys illegally taken from Colorado citizens, must be deemed to have originated outside Colorado. While the determination of which specific purpose among several options should be benefited was a determination which would inevitably affect the level of activity of some governmental department, the role of the state in administering the fund, as determined by the external source generating the revenue, was essentially custodial in nature. The fact that a discretionary determination had to be made concerning the object for which those non-Colorado sums would be spent is not the controlling factor in assessing the nature of the fund. We conclude that, under all the circumstances, this fund is most appropriately deemed a trust or custodial fund, to be administered in a trusteeship or custodial capacity. The Governor’s exercise of authority over this fund does not, in our view, constitute an impermissible invasion of the General Assembly’s right to appropriate public funds. See MacManus, 179 Colo. 218, 499 P.2d 609. [71] For the foregoing reasons, the judgment of the trial court is affirmed insofar as it concludes that the 1980 and 1982 interdepartmental transfers of appropriations and cash funds spending authorities were not authorized, that the Governor properly exercised executive authority over the Chevron fund, and that the Governor failed to satisfy his burden of proof respecting the two counterclaims in Civil Action No. 82CV5005. The trial court’s judgment declaring that sections 24-30-201(1)(b) and 24-37-405(1)(k) violate the Colorado Constitution is reversed, and the case is remanded to the trial court for further proceedings. [72] JUSTICE QUINN dissents in part.Department and Line Item Amount
Education-Public School Finance Act, Low Income Equalization $305,965.81
Education-Public School Finance Act, Increasing Enrollment Equalization 733,787.73
Education-School District Distributions Emeritus Retirement 52,323.68
Administration, Accounts and Control-Retirement Benefits-School and Municipal 99,487.16
Administration, Accounts and Control-Retirement Benefits-State Employees 52,096.32
Administration, Executive Director, Utilities Contingency Reserve. (This transfer was made from net savings on utilities in several agencies) 160,000.00
University of Colorado, Boulder Campus-ADP Operations 70,255.05
Social Services-Assistance Payments, Aid to the Needy Disabled, State Only Programs 369,981.10
Institutions, Division of Developmental Disabilities-Community Programs, Community Center Basic Programs 631,103.15
On September 18, 1980, the Executive Order of August 28 was cancelled and $1,599,000 which had been appropriated by the Order for construction projects was “reappropriated by the Governor to Correctional Industries as an operating subsidy from the General Fund.” The September Order did not alter the sources of the transferred funds.
(Colo. 1985), (Board could not assert unconstitutionality of statute in defense because subdivisions of state lack standing to assert such issues against the state); State Board for Community Colleges Occupational Education v. Olson, 687 P.2d 429 (Colo. 1984) (examining first party and third party standing claims separately). Such circumstances are not present here.
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budgetary transfers and to remand the case to the trial court for a new trial.
I.
[75] In declaring the transfer statutes unconstitutional, the trial court expressly acknowledged the General Assembly’s right to challenge the facial validity of the statutes upon which the Governor relied in making the budgetary transfers in question. Although the majority does not address this aspect of the case, I believe the declaration of unconstitutionality made by the trial court is fundamentally flawed.
(Colo. 1982): [77] “The `injury-in-fact’ requirement is dictated by the need to assure that an actual controversy exists so that the matter is a proper one for judicial resolution, for consistent with the separation of powers doctrine embodied in Article III of the Colorado Constitution, `[c]ourts cannot, under the pretense of an actual case, assume powers vested in either the executive or the legislative branches of government.’ [Wimberly v. Ettenberg, 194 Colo. 163, 167, 570 P.2d 535, 538 (1977).] The requirement that the interest injured be of a type legally protected by statutory or constitutional provisions is a prudential rule of standing based on judicial self-restraint.” [78] I have no problem with the General Assembly’s right to challenge the validity of the Governor’s actions as violative of the separation of powers doctrine, Colo. Const. art. III, or as violative of the transfer statutes themselves, §§ 24-30-201(1)(b) and 24-37-405(1)(k), 10 C.R.S. (1982). Deciding whether the actions of the Governor exceeded whatever authority has been committed to the Governor in the matter of budgetary transfers, while itself a delicate exercise in constitutional and statutory interpretation, is nonetheless the responsibility of the judicial department as the ultimate interpreter of the law bearing on an actual controversy. The trial court, however, did not resolve the case on this basis. Instead, the court accepted the claim of the General Assembly that, even if its own statutory law authorizes the Governor to make the budgetary transfers, the statutes themselves are facially unconstitutional as violative of the separation of powers doctrine. [79] Although the General Assembly’s claim of unconstitutionality was raised only as a rejoinder to the Governor’s reliance on the transfer statutes as one of the sources of his authority to make the budgetary transfers, it was this claim of facial unconstitutionality that provided the basis of the trial court’s judgment. If indeed, as the trial court ruled, the legislative enactments are unconstitutional, the only recourse contemplated under the Colorado Constitution, in my view, is for the General Assembly to remedy the constitutional infirmity by amending or repealing its own enactments. Whether the General Assembly chooses or has the necessary votes to effectuate an amendment to or repeal of the transfer statutes is essentially a nonjusticiable political issue, the resolution of which should be remitted to the interplay of the political process. See generally Goldwater v. Carter, 444 U.S. 996, 1002 (1979) (plurality opinion); Baker v. Carr, 369 U.S. 186, 217 (1962); Holtzman v. Schlesinger, 484 F.2d 1307, 1309-10 (2d Cir. 1973), cert. denied, 416 U.S. 936 (1974). [80] When a court refuses to entertain a request by the General Assembly to declare a legislative enactment unconstitutional, it does no more than place the General Assembly in the position of resorting to the very process which the Colorado Constitution demonstrably and exclusively commits to that body — the process of changing the
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statutory law. Colo. Const. art. V, § 1. In short, any injury that arguably might have been suffered by the General Assembly in its official capacity as a result of the claimed unconstitutionality of its own statutes is much too speculative in nature and certainly not the type which our traditional rules of standing are designed to address.
[81] I would hold that when, as here, the General Assembly requests a court to declare legislative enactments unconstitutional, a nonjusticiable issue is presented that does not lend itself to judicial relief. This resolution of the standing issue would dictate that the case be returned to the trial court to resolve the validity of the Governor’s budgetary transfers under appropriate standards of constitutional adjudication. Because the majority, however, has resolved the issues relating to the budgetary transfers on a basis different from that relied on by the trial court, I address this latter aspect of the case. II.
[82] The court concludes that the transfers involved here impermissibly infringed on the General Assembly’s power of appropriation. This conclusion, in my view, proceeds from an unduly restrictive view of the Governor’s inherent authority as the state’s chief executive officer responsible for the administration and management of the executive branch of government. I accordingly register my dissent to Part IV of the court’s opinion.
A.
[83] Article III of the Colorado Constitution divides the powers of government into three separate, co-equal departments — the legislative, executive, and judicial — and, under the rubric of the separation of powers doctrine, expressly prohibits any “person or collection of persons charged with the exercise of powers properly belonging to one of these departments” from exercising “any power properly belonging to either of the others, except as in this constitution expressly directed or permitted.” The supreme executive power of the state is vested in the Governor, who is charged with the responsibility of faithfully executing the laws of this state. Colo. Const. art. IV, § 2. The legislative power of the state is vested in the General Assembly consisting of a senate and house of representatives. Colo. Const. art. V, § 1. This legislative power includes the power to appropriate money “for the expense of the executive, legislative and judicial departments of the state.” Colo. Const. art. V, § 32.
(1977); see also People v. McKenna, 196 Colo. 367, 373, 585 P.2d 275, 279
(1978). The constitution, while diffusing the power among three branches of government in order to protect against the tyrannical accumulation of power in one, contemplates that “practice will integrate the dispersed powers into a workable government”; and to this end it enjoins upon the three branches “separateness but interdependence, autonomy but reciprocity.”Youngstown Sheet Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring). As one court succinctly observed: [85] “Under our system of government the absolute independence of the departments and the complete separation of powers is impracticable. We must maintain in our political system sufficient flexibility to experiment and to seek new methods of improving governmental efficiency. At the same time we must not
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lose sight of the ever-existing danger of unchecked power and the concentration of power in the hands of a single person or group which the separation of powers doctrine was designed to prevent.”
[86] State ex rel. Schneider v. Bennett, 219 Kan. 285, 288-89, 547 P.2d 786, 791 (1976). [87] Thus, the phrase “separation of powers,” no matter how solemnly reiterated, provides no talismanic solution to issues of unconstitutional usurpation of power by one department of government. Resolution of such issues requires an analysis of the functions delegated to the competing departments with a view toward developing adjudicatory standards that effectively accommodate the constitutional missions granted to each of the competing departments. An indispensable component of that analysis is the concept of implied or inherent power. [88] The idea that expressly granted constitutional powers carry with them implied or inherent powers necessary to their execution is not novel. As one commentator has noted: [89] “[A]lthough not conferred expressly by the Constitution, [such powers] are derived from the express powers by reasonable implication. One cannot question the validity, indeed necessity, of drawing reasonable implications from the constitutional text in this area, as in all others, for the implied authority provides the means whereby the express powers are carried into execution.” [90] Winterton, The Concept of Extra-Constitutional Executive Power in Domestic Affairs, 7 Hastings Const. L. Q. 1, 9 (1979) (footnotes omitted) see Marshall v. Gordon, 243 U.S. 521, 537 (1917) (principle of implied or inherent power — power that is reasonably appropriate and relevant to the exercise of a granted power is to be considered as accompanying the grant — “has been so universally applied that it suffices merely to state it”); Kolkman v. People, 89 Colo. 8, 33-34, 300 P. 575, 584-85(1931) (power to promulgate rules of procedure recognized as inherent in constitutional functions assigned to judicial department of government). The principle of inherent power, therefore, is simply a recognition of the fact that the separation of powers doctrine must be understood in a sense that recognizes the multi-faceted nature of governmental power delegated to each department of government by the Colorado Constitution. [91] The legislative power of appropriation, which consists of setting aside a certain amount of money for a particular purpose, People v. Kennehan, 55 Colo. 589, 136 P. 1033 (1913), represents an expression of legislative intent that a particular result, the object of the appropriation, be attained through the expenditure of an amount up to the limit of the appropriation. The amount of the appropriation is based on the General Assembly’s projection of the amount necessary to accomplish the governmental mission for which a particular agency of government is responsible. Although the appropriation may represent the general level of activity which the legislature intends the particular agency to engage in, it is at best no more than an estimate and may well be greater than or less than the amount necessary and sufficient to achieve the desired result. An appropriation, therefore, is not to be viewed as a directive to the funded agency to spend all of the appropriation but, rather, as a legislative authorization to use so much of the specified sum as necessary to achieve the purpose of the appropriation. [92] While the power of appropriation is constitutionally vested in the General Assembly, the Governor is constitutionally empowered to faithfully execute the laws of the state. Colo. Const. art. IV, § 2. Indeed, this court has recognized that the Governor has the inherent authority to administer funds appropriated by the legislature as an incident to his constitutional responsibility as the chief executive officer of the state Anderson v. Lamm, 195 Colo. 437, 442, 579 P.2d 620, 623-24 (1978). The General Assembly’s exercise of the appropriation power is complete once the appropriation has been made and, therefore,
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does not carry with it the authority “to interfere with the executive’s power to administer appropriated funds . . . .” Id.
[93] It is in light of the respective constitutional functions delegated to both the executive and legislative departments of government, including the inherent or implied powers necessary to carry out those functions, that particular standards must be developed to permit a principled resolution of whether the Governor’s budgetary transfers in this case violated the separation of powers doctrine by usurping the legislative power of appropriation. B.
[94] I believe the resolution of the separation of powers issue raised in this case requires a court to make in sequential order three separate inquiries. The initial inquiry is whether the Colorado Constitution, by either express provision or clear implication, grants the power in question to a department of government other than the one exercising it. If, for example, the only reasonable construction of the constitution is that the transfer power is expressly granted to the General Assembly or is clearly necessary to the proper exercise of those powers expressly delegated to the General Assembly, then the Governor’s budgetary transfers must be deemed to violate the separation of powers doctrine. No further inquiry would be necessary under such circumstances.
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Bennett, 219 Kan. at 288-89, 547 P.2d at 791. In making this third and final inquiry, a court should consider the extent to which the challenged action fosters or inhibits the accomplishment of those governmental functions for which the legislature appropriated funds to the executive agencies involved in the transfers. If, for example, both the transferor and transferee agencies have been initially funded by the General Assembly for the purpose of accomplishing their legal responsibilities, and if the transfers would not impair the ability of the transferor agencies to accomplish their legitimate objectives and would also enhance the functional ability of the transferee agencies to achieve their legitimate objectives, and, finally, if the cumulative effect of the transfers would not increase the overall level of appropriations made to the executive department of government, see Colo. Const. art. X, § 16, then it would follow that the power of budgetary transfer, far from usurping the legislative power of appropriation, would actually further the ability of the executive department to accomplish those missions for which the legislature has appropriated funds in the first instance.
C.
[97] Application of the foregoing mode of analysis leads me to conclude that the proper disposition of this case is to reverse that part of the judgment invalidating the budgetary transfers and to remand the case to the trial court for a new trial on this aspect of the controversy. I am led to this conclusion for the following reasons. First, the Colorado Constitution does not expressly grant to the General Assembly the power to make budgetary transfers within the executive department of government. Nor, for that matter, does the constitutional text relating to the General Assembly’s power of appropriation, Colo. Const. art. V, § 32, clearly imply that the power of budgetary transfer was intended as a necessary or significant attribute of the power of appropriation. It is necessary, therefore, to determine whether the Governor’s transfer power may reasonably be implied as inherent in his constitutionally assigned function of administering and managing the executive department of government.
1984 Supp.). See Colorado State Civil Service Employees Association v. Love, 167 Colo. 436, 448 P.2d 624 (1968). These governmental units have been delegated a vast array of responsibilities vital to the citizenry of this state. To posit in the office of Governor a limited power to make budgetary transfers is to do no more than recognize what is reasonably necessary to the proper execution of the constitutional role assigned to that office. Moreover, as I discuss in Part IV, infra, the General Assembly has itself acquiesced in the Governor’s exercise of this power for many years, as evidenced by its incorporation of the transfer statutes, §§ 24-30-201(1)(b) and 24-37-405(1)(k), 10 C.R.S. (1982), into the Administrative Organization Act of 1968. This legislative acquiescence, in my opinion, is at least some evidence of the General Assembly’s own interpretation of the type of authority that is reasonably necessary to the proper exercise of the Governor’s constitutionally assigned functions. [99] I am thus satisfied that the first two inquiries required by the analysis set forth in Part IIB of this dissent can be answered on the basis of the record on appeal. The third and final inquiry, however, is whether the budgetary transfers in issue prevented
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or significantly interfered with the exercise of the General Assembly’s power of appropriation. This question, in my view, should not be determined on the basis of the record before us, but rather should be resolved only after the parties to this controversy have been afforded an adequate opportunity to present evidence bearing on the issue. Such evidence should focus on whether and to what extent the transfers impaired the functional ability of the transferor agencies, whether and to what extent the transfers actually enhanced the functional ability of the transferee agencies, whether the transfers permitted the executive department to accomplish those missions for which the legislature appropriated funds in the first instance, and whether the transfers were achieved within the overall level of appropriations made by the General Assembly to the executive department.
D.
[100] The conclusion reached by the majority — that the executive transfers involved here violated the separation of powers doctrine by directly contravening major legislative budgeting objectives, supra at 522, — proceeds from assumptions which I find unacceptable on several counts. First, the majority assumes that the scope of the Governor’s inherent power to administer appropriations made to the twenty departments of the executive branch of government is quite narrow and is subordinate to the General Assembly’s power to appropriate. This assumption is obvious from the majority’s statement that the Governor’s authority to control how executive appropriations are to be allocated is limited “by the principle that the constitution vests the General Assembly with authority to determine `the amount of state funds‘ to be spent for particular purposes.”Supra at 519 (emphasis in original). The majority’s assumption, in my opinion, ignores the fact that the Governor’s power to administer and manage the twenty departments of the executive branch of government is part and parcel of his constitutionally assigned role as chief executive officer of the state. Colo. Const. art. IV, § 2; Anderson, 195 Colo. at 442, 579 P.2d at 623-24. Subordination of the Governor’s authority to manage and administer the executive department of government to the General Assembly’s power of appropriation is hardly consistent with the notion of coequal status among the three departments of government. Second, the majority assumes that a budgetary transfer necessarily interferes with the power of appropriation because it distorts the purpose for which the funds were appropriated. While it is true that an appropriation at least implicitly involves a legislative choice of purpose for which the appropriated funds will be used, a budgetary transfer by a coordinate department of government might well be made in a manner that is both consistent with the legislative choice of purpose and the executive power of administration and management. Whether the transfers in question can be so reconciled is a matter that should be determined on the basis of a full evidentiary hearing devoted to that issue. Last, the majority assumes that any transfer between appropriations will necessarily frustrate the legislative purpose established by the original appropriation. This assumption fails to take account of the nature of appropriation as an approximate estimate of the costs of governmental services and, instead, views the sum total of dollars appropriated as the indispensable criterion for achieving the governmental function legally assigned the particular governmental agency. Frustration of legislative purpose is basically a factual question which should not be answered without the benefit of a fully developed factual record. The trial court, not this court, is the proper forum to resolve such a factual matter.
III.
[101] My final comments are directed to the construction of section 24-30-201(1)(b), 10 C.R.S. (1982), set forth in Part III of the court’s opinion. Although the trial court struck down the statute as facially unconstitutional, this court finds the statute constitutional but does so by adopting a construction which I view as inconsistent with
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the constitutional principle of inherent power.
[102] While I do not consider the transfer statutes involved here, §§ 24-30-201(1)(b) and 24-37-405(1)(k), 10 C.R.S. (1982), as the ultimate determinant of the scope of the Governor’s inherent authority to transfer funds within the executive branch of government, I do believe that when these statutes are read in the context of the Administrative Organization Act of 1968 (hereinafter the 1968 Act), §§ 24-1-101 to -136, 10 C.R.S. (1982 1984 Supp.), of which the transfer statutes are a part, a strong case can be made for construing the statutes as providing the procedural framework to allow the Governor to make transfers in accordance with his constitutional responsibility for the administration and management of the executive department of government. The 1968 Act establishes twenty departments of government within the executive department itself, § 24-1-110, 10 C.R.S. (1982 1984 Supp.), one of which is the Department of Administration, § 24-1-116, 10 C.R.S. (1982 1984 Supp.). The statutory duties of the executive director of the Department of Administration include eliminating unnecessary governmental functions, increasing the efficiency of governmental services, and improving services to the public. § 24-30-102(1), 10 C.R.S. (1982). The 1968 Act made the Division of Accounts and Controls a division within the Department of Administration, with the controller as head of the division. § 24-30-201(1), 10 C.R.S. (1982). The powers and duties of the controller are set forth in one of the transfer statutes involved here, namely section 24-30-201(1)(b), 10 C.R.S. (1982), which provides as follows: [103] “The powers and duties of the division [of accounts and controls] and of the controller shall be: [104] . . . . [105] “(b) To recommend transfers between appropriations under the provisions of law, to be effective upon approval by the [G]overnor.” [106] The 1968 Act also established the Office of State Planning and Budgeting. § 24-1-128.1, 10 C.R.S. (1982).[23] The executive director of this office was delegated the responsibility of developing “the annual executive planning, programming, and budgeting cycle, consistent with the provisions of this article.” § 24-37-102(1)(a), 10 C.R.S. (1982). The Division of Budgeting was made a part of the Office of State Planning and Budgeting in order to integrate the policy level planning, programming, and budgeting functions of the executive department into a cohesive and unified system responsive to the policy-making requirements of the Governor and the General Assembly. § 24-37-402, 10 C.R.S. (1982). The 1968 Act requires the Division of Budgeting to assist the Governor “in his responsibilities pertaining to the executive budget” and specifically, as pertinent here, to “[r]eview for the [G]overnor all transfers between appropriations and all work programs recommended by the controller.” § 24-37-405(1)(k), 10 C.R.S. (1982). In recognition of the Governor’s constitutionally assigned function relating to the administration and management of the executive department of government, the 1968 Act expressly states that “[t]he final authority and decision in all matters relating to the executive budget is hereby vested in the [G]overnor.” § 24-37-406, 10 C.R.S. (1982). [107] The legislative purpose in enacting the 1968 Act was to create a structure of state government which would “be responsive to the needs of the people of the state and sufficiently flexible to meet changing conditions[,] to strengthen the powers of the [G]overnor and [to] provide a reasonable span of administrative and budgetary controls within an orderly organizational structurePage 533
of state government . . . .” § 24-1-101, 10 C.R.S. (1982). The General Assembly expressly declared in section 24-1-101, 10 C.R.S. (1982), that the 1968 Act “shall be liberally construed to accomplish these purposes.” Construing the transfer statute in a manner designed to effectuate the purposes of the 1968 Act leads me to conclude that the “under the provisions of law” language in section 24-30-201(1)(b) means in a manner consistent with the Governor’s constitutionally assigned functions of administering and managing the twenty departments of the executive branch of government and in accordance with the procedural protocol for transfers set forth in the 1968 Act.[24] In contrast to the majority, therefore, I would not read into section 24-30-201(1)(b) a requirement that there be some independent legislative authorization given to the Governor to effectuate interdepartmental transfers within the executive branch of government.
[108] Although, as the majority notes, a 1941 statute authorized the Governor to make interdepartmental budgetary transfers from a department with a surplus to a department with a deficit, ch. 2, sec. 11, 1941 Colo. Sess. Laws 35, 52, and this statute was repealed in 1963, ch. 32, sec. 3, Colo. Sess. Laws 120, 122, the most plausible explanation of the repeal is that the 1941 statute was unnecessary because the Governor already had such transfer power under the provisions of the former version of section 24-30-201(1)(b), which was also originally enacted as part of the Administrative Code of 1941, ch. 2, sec. 12, 1941 Colo. Sess. Laws 35, 54. This latter interpretation is confirmed by legislative efforts in 1979 to amend section 24-30-201(1)(b) in a manner that would limit the controller’s authority to recommend transfers to line-item appropriations within a department, which transfers would then become effective only upon written approval by the Governor after written notification to the legislative audit committee and the joint budget committee. Senate Bill 412 (1979). The bill, which passed both houses, was vetoed by the Governor, and the General Assembly failed to override the veto. This history, while certainly not controlling, nonetheless dispels any doubt about the General Assembly’s view of the Governor’s transfer authority under the present version of section 24-30-201(1)(b). [109] The construction adopted by the majority virtually equates the legislative power of appropriation with the executive power of transfer. In effect, the majority recognizes the power to transfer but only when authorized pursuant to independent legislative authorization. If, as the majority holds, section 24-30-201(1)(b) authorizes executive transfers only when there is independent legislative authorization for such transfers, the executive department of government is virtually shorn of any inherent transfer authority incident to the Governor’s constitutionally assigned function of administering and managing the executive department. Under the majority’s construction, the power of transfer becomes a particularized form of legislative appropriation. Within this conceptual framework, I fail to see how the General Assembly could constitutionally delegate any transfer authority to the Governor without concomitantly violating the constitutional prohibition against delegating a legislative function to another department of government. Simply stated, I view the holding in this case as a virtual refutation of executive inherent power and as a relegation of the Governor’s constitutionally assigned functions of administration and management to a subordinate status that is irreconcilablePage 534
with the “separate but equal” principle underlying the separation of powers doctrine.
V.
[110] In summary, I would reverse that part of the judgment holding the transfers constitutionally impermissible and would remand the case to the district court for a new trial on the issue of whether, under the standards set forth herein, the Governor’s budgetary transfers usurped the General Assembly’s power of appropriation in violation of the separation of powers doctrine enunciated in article III of the Colorado Constitution.