DOJ: News Release

AG Opinion: 1981 ‘Cap’ Cannot Control Subsequent Legislature’s Appropriation Powers

HELENA – In an opinion released today, Montana Attorney General Mike McGrath held that a so-called expenditure “cap” enacted by the 1981 legislature cannot act as a control over the appropriation powers of later legislative assemblies.

Hill County Commissioner Douglas Kaercher requested the opinion.

A law passed in 1981 limited state expenditures for a biennium, and provided a formula for figuring the limit. The same law said that the legislature may appropriate funds in excess of the limit if two-thirds of the members of each house approve a bill determining that an “emergency” existed, stating the amount to be spent and the source of the excess revenue, and stating an intention to exceed the cap.

But McGrath noted that the state’s constitution “explicitly recognize(s)” the power of the legislature to set expenditure levels. The body’s spending power is subject only to limits placed on it by the constitution. And, unless the constitution says otherwise, a bill passed by a simple majority vote of each house and signed by the governor becomes law.

“Consistent with this constitutional design, the legislature lacks the power to pass a law that purports to establish binding legislative spending policy for future legislatures,” the opinion says.

“The authority of the 1981 legislature to set spending policy for the State ended when the 1983 legislature was seated.”

Attorney general’s opinions carry the weight of law unless a court overturns them or the legislature modifies the laws involved.

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