ERNIE FLETCHER, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF L L KENTUCKY ; AND ROBBIE RUDOLPH, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE FINANCE AND ADMINISTRATION CABINET TRANSFER COMMONWEALTH OF KENTUCKY, OFFICE OF THE ATTORNEY GENERAL EX REL . GREGORY D . STUMBO ; COMMON CAUSE OF KENTUCKY, A NON-PROFIT, NON-PARTISAN ORGANIZATION, BY ITS CHAIRMAN RICHARD V . BELILES, AS A KENTUCKY TAXPAYER ; STEVE NUNN, REPRESENTATIVE ; JIM WAYNE, REPRESENTATIVE ; HARRY MOBERLY, JR ., IN HIS OFFICIAL CAPACITY AS MEMBER OF THE HOUSE OF REPRESENTATIVES OF THE COMMONWEALTH OF KENTUCKY; JOE BARROWS, IN HIS OFFICIAL CAPACITY REPRESENTATIVES OF THE COMMONWEALTH OF KENTUCKY ; JIM CALLAHAN, IN HIS OFFICIAL CAPACITY REPRESENTATIVES OF THE COMMONWEALTH OF KENTUCKY ; DAVID L . WILLIAMS, IN HIS CAPACITY THE COMMONWEALTH OF KENTUCKY ;
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,,iuprrmr Qlvurf of ~rufurkV
2005-SC-0046-TG
ERNIE FLETCHER, IN HIS OFFICIAL
CAPACITY AS GOVERNOR OF
KENTUCKY; AND ROBBIE RUDOLPH, IN
HIS OFFICIAL CAPACITY AS
SECRETARY OF THE FINANCE AND
ADMINISTRATION CABINET
APPELLANTS
L=~1
L
L
TRANSFER FROM COURT OF APPEALS
2005-CA-108
FRANKLIN CIRCUIT COURT NO. 04-CI-719
COMMONWEALTH OF KENTUCKY,
OFFICE OF THE ATTORNEY GENERAL
EX REL. GREGORY D. STUMBO ;
COMMON CAUSE OF KENTUCKY, A
NON-PROFIT, NON-PARTISAN
ORGANIZATION, BY ITS CHAIRMAN
RICHARD V. BELILES, AS A KENTUCKY
TAXPAYER ; STEVE NUNN,
REPRESENTATIVE ; JIM WAYNE,
REPRESENTATIVE ; HARRY MOBERLY,
JR ., IN HIS OFFICIAL CAPACITY AS
MEMBER OF THE HOUSE OF
REPRESENTATIVES OF THE
COMMONWEALTH OF KENTUCKY; JOE
BARROWS, IN HIS OFFICIAL CAPACITY
AS MEMBER OF THE HOUSE OF
REPRESENTATIVES OF THE
COMMONWEALTH OF KENTUCKY; JIM
CALLAHAN, IN HIS OFFICIAL CAPACITY
AS MEMBER OF THE HOUSE OF
REPRESENTATIVES OF THE
COMMONWEALTH OF KENTUCKY ;
DAVID L. WILLIAMS, IN HIS CAPACITY
AS PRESIDENT OF THE SENATE OF
THE COMMONWEALTH OF KENTUCKY;
JODY RICHARDS, IN HIS CAPACITY AS
APPELLEES
SPEAKER OF THE HOUSE OF
REPRESENTATIVES OF THE
COMMONWEALTH OF KENTUCKY;
KENTUCKY RETIREMENT SYSTEMS,
BOARD OF TRUSTEES ; AND
COMMONWEALTH OF KENTUCKY,
DEPARTMENT OF THE TREASURY EX
REL. JONATHAN MILLER
AND
2005-SC-0049-TG
STEVE NUNN ; AND JIM WAYNE
APPELLANTS
TRANSFER FROM COURT OF APPEALS
2005-CA-109
FRANKLIN CIRCUIT COURT NO . 04-CI-719
COMMONWEALTH OF KENTUCKY EX
REL. GOVERNOR ERNIE FLETCHER ;
ROBBIE RUDOLPH, COMMONWEALTH
OF KENTUCKY, SECRETARY OF
FINANCE & ADMINISTRATION ;
GREGORY D . STUMBO,
COMMONWEALTH OF KENTUCKY,
ATTORNEY GENERAL ; JONATHAN
MILLER, COMMONWEALTH OF
KENTUCKY, STATE TREASURER;
DAVID WILLIAMS, COMMONWEALTH
OF KENTUCKY, SENATE PRESIDENT ;
JODY RICHARDS, COMMONWEALTH
OF KENTUCKY, HOUSE SPEAKER ;
COMMON CAUSE OF KENTUCKY AND
RICHARD BELILES; KENTUCKY
EMPLOYEES RETIREMENT SYSTEMS,
BOARD OF TRUSTEES; HARRY
MOBERLY, REPRESENTATIVE, IN HIS
OFFICIAL CAPACITY ; JIM CALLAHAN,
REPRESENTATIVE, IN HIS OFFICIAL
CAPACITY; AND JOE BARROWS,
REPRESENTATIVE, IN HIS OFFICIAL
CAPACITY
APPELANTS
AND
2005-SC-0050-TG
COMMONWEALTH OF KENTUCKY,
DEPARTMENT OF THE TREASURY,
ACTING THROUGH THE TREASURER
OF THE COMMONWEALTH, JONATHAN
MILLER
V
APPELLANT
TRANSFER FROM COURT OF APPEALS
2005-CA-107
FRANKLIN CIRCUIT COURT NO. 04-CI-719
COMMONWEALTH OF KENTUCKY,
OFFICE OF ATTORNEY GENERAL EX
REL. GREGORY D. STUMBO ;
COMMONWEALTH OF KENTUCKY,
OFFICE OF THE GOVERNOR EX REL.
ERNIE FLETCHER; COMMONWEALTH
OF KENTUCKY, FINANCE AND
ADMINISTRATION CABINET EX REL.
ROBBIE RUDOLPH ; DAVID WILLIAMS,
IN HIS OFFICIAL CAPACITY AS
PRESIDENT OF THE SENATE; JODY
RICHARDS, IN HIS OFFICIAL CAPACITY
AS SPEAKER OF THE HOUSE OF
REPRESENTATIVES ; STEVE NUNN,
REPRESENTATIVE ; JIM WAYNE,
REPRESENTATIVE ; COMMON CAUSE
OF KENTUCKY AND RICHARD BELILES ;
KENTUCKY RETIREMENT SYSTEMS,
BOARD OF TRUSTEES; HARRY
MOBERLY, REPRESENTATIVE; JIM
CALLAHAN, REPRESENTATIVE ; AND
JOE BARROWS, REPRESENTATIVE
OPINION OF THE COURT BY JUSTICE COOPER
AFFIRMING IN PART AND REVERSING IN PART
APPELLEES
The issue presented by this appeal is whether the Governor of the
Commonwealth of Kentucky may order money drawn from the state treasury to fund the
operations of the executive department of government if the General Assembly fails to
appropriate funds for that purpose . The issue arose when the General Assembly
adjourned sine die on April 14, 2004, without adopting an executive department budget
bill for the 2004-06 biennium .
Unlike some state constitutions, e .g ., Cal . Const. art. IV, § 12(c), the Constitution
of Kentucky does not require a state "budget." It does, however, require that any such
budget be balanced . That constitutional requirement derives from Sections 49, 50, and
171, which together authorize and require the General Assembly to raise revenues
sufficient to pay the debts and expenses of government. See generally Dalton v. State
Prop . & Bldg . Comm'n , 304 S.W.2d 342, 347-51 (Ky. 1957) ; State Budget Comm'n v.
Lebus , 244 Ky. 700, 51 S .W.2d 965 (1932) . The first statutory provisions describing a
budgeting process were enacted in 1918 and compiled at KS § 1992, et seg. 1918 Ky .
Acts, ch . 12. The present version, KRS Chapter 48, is a comprehensive scheme that
describes the process for preparing and enacting a "budget bill" by which the revenues
of the Commonwealth are appropriated for the operation of the three departments of
government during the ensuing biennium . KRS 48 .300(1) . All provisions of a budget
bill expire at the conclusion of the second fiscal year of the biennium . KRS 48 .310(1) .
If a budget bill is enacted at an extraordinary session, Ky . Const. § 80, its provisions
expire on "July 1 of the year in which the next even-numbered year regular session
takes place ." KRS 48 .310(1).
Prior to 2001, the General Assembly met in regular legislative session only for
sixty legislative days in even-numbered years . Ky. Const. §§ 36 (unamended), 42
(unamended) . Necessarily, the budget bill for the next biennium was enacted during
those sessions . Sections 36 and 42 were amended in 2000 to add an additional regular
session of thirty legislative days in odd-numbered years . Id. (as amended) . However,
because all existing budget bills expire on July 1 of even-numbered years, the General
Assembly has continued to address budget issues during the sixty-day even-numberedyear sessions . On three occasions within a ten-year period, the General Assembly
adjourned its sixty-day regular session without enacting an executive department
budget bill for the next biennium . On the first occasion, 1994, Governor Jones
reconvened the General Assembly into an extraordinary session, during which the
members resolved their differences and enacted a budget bill for the 1994-96 biennium.
At the 2002 regular session, the Republican-controlled Senate and the
Democratic-controlled House of Representatives deadlocked on whether to appropriate
funds for the election campaign fund created by the Public Financing Campaign Act,
KRS 121 A.020, and adjourned sine die on April 15, 2002, without enacting a budget bill
for either the executive or judicial departments for the 2002-04 biennium . On April 17,
Governor Patton reconvened the General Assembly into an extraordinary session for
the sole purpose of negotiating a budget bill . Recalcitrance prevailed, however, and the
General Assembly adjourned the special session on May 1, 2002, without enacting a
budget bill for either of the other two departments of government.
On June 26, Governor Patton promulgated an "Executive Spending Plan" and
authorized the Secretary of the Finance and Administration Cabinet to issue warrants
against the treasury to implement that plan "and to assist the Court of Justice as may be
necessary to implement lawful expenditures for its operation ." Exec. Order No . 2002-
727, para . 6, at 4.' In essence, the Governor adopted his own executive department
budget and ordered appropriations from the state treasury to fund it. The Treasurer
filed a petition in the Franklin Circuit Court for a declaration of rights, KRS 418.040, to
determine the constitutionality of the Executive Spending Plan . Ky. Dept . of the
Treasury ex rel. Miller v. Ky. Fin. and Admin . Cabinet, No . 02-CI-00855 (Franklin Circuit
Court, filed June 26, 2002) . However, the legislative deadlock dissolved when all
potential gubernatorial candidates announced their intentions to reject public financing
of the 2003 election . During its 2003 regular thirty-day session, the General Assembly
enacted a budget bill for the 2002-04 biennium that did not fund the election campaign
fund and ratified the Governor's expenditures under the Executive Spending Plan, nunc
pro tunc . The Franklin Circuit Court dismissed the declaration of rights action as moot.
See generally Paul E . Salamanca, The Constitutionality of an Executive Spending Plan ,
92 Ky. L.J . 149, 152-58 (2003-04) .
At the 2004 regular session of the General Assembly, the Republican-controlled
Senate and the Democratic-controlled House of Representatives again deadlocked, this
time on whether the 2004 executive department budget bill should include new taxation
measures proposed by Republican Governor Fletcher . On March 9, 2004 (day 44 of
the 60-day session), the House passed a budget bill that substantially amended the
budget recommendation submitted by the Governor pursuant to KRS 48.1 00(l) and
48 .110(6) . On March 10, the House's version of the budget bill officially arrived at the
Senate. On March 11 ; the Governor unveiled his proposed new taxation measures . On
March 29 (day 58), the Senate passed its version of the budget bill, restoring many of
On June 27, 2002, the Chief Justice promulgated an order implementing a spending
plan to cover the expenses of the judicial department from and after July 1, 2002, and
issued warrants against the treasury to fund that plan. The constitutional efficacy of this
order is not before us. But see Ky. Const. § 120, discussed infra .
-6-
the Governor's original recommendations and adding the Governor's tax proposals.
Conference committee negotiations failed and, on April 14, 2004 (day 60), the General
Assembly adjourned sine die without enacting an executive department budget bill for
the 2004-06 biennium .
Unlike Governors Jones and Patton before him, Governor Fletcher did not
reconvene the General Assembly into extraordinary session for the purpose of further
budget negotiations . When asked during oral argument whether the Governor should
have called an extraordinary session so that the General Assembly could attempt to
resolve its differences, the attorney for the President of the Senate responded that an
extraordinary session would have been "futile." Instead, the Governor announced that
he, like Governor Patton before him, would formulate his own executive department
spending plan, i .e . , his own budget.
On May 27, 2004, the Attorney General filed this action in the Franklin Circuit
Court against the Governor, the Treasurer, and the Secretary of the Finance and
Administration Cabinet seeking to preclude the anticipated suspension of 153 existing
statutes in the Governor's executive spending plan . Other parties, including the
President of the Senate, the Speaker of the House of Representatives, individual
legislators, representatives of state employees, and the Board of Trustees of the
Kentucky Employees Retirement System, intervened to assert limitations on the
Governor's power to suspend statutes or to spend unappropriated funds . Common
Cause of Kentucky, an unincorporated self-styled "non-profit, non-partisan organization
which advocates ethics and constitutional law in Kentucky," intervened on the relation of
its chairman, a self-described "Kentucky taxpayer," seeking an injunction against the
Governor to preclude him "from implementing any spending plan which would draw
money from the State Treasury without appropriations made by the Legislature" in
contravention of Section 230 of the Constitution of Kentucky.
On June 28, 2004, Governor Fletcher promulgated Executive Order 2004-650,
adopting an executive department budget which he denominated a "Public Services
Continuation Plan ." The Order noted that:
Through its adoption of House Bill 396, the General Assembly has made
appropriations for the use of the Judicial Branch totaling $234,648,400,
and in House Bill 397 for the Legislative Branch totaling $40,731,400,
leaving $20,739,752,600 in previously estimated revenues identified for
use by the Executive Branch, as modified by the Consensus Forecasting
Group estimates of June 8, 2004, for the operation and function of the
Executive Branch of government.
The Public Services Continuation Plan proposed to appropriate exactly
$20,739,752,600 to the executive department for its operations during fiscal year 200405 and authorized the Secretary of the Finance and Administration Cabinet to issue
warrants against the state treasury to obtain those appropriations as needed.
On October 4, 2004, the Governor issued a proclamation convening the General
Assembly into extraordinary session, but only to consider "the compensation, health
insurance benefits and retirement benefits of active and retired public employees, and
making an appropriation therefor ." The General Assembly resolved those issues but
Section 80 of the Constitution precluded it from considering any other unresolved
budget issues .
On December 15, 2004, the Franklin Circuit Court declared the Public Services
Continuation Plan unconstitutional but authorized its continuation until June 30, 2005, 2
after which, "absent legislative action, no public funds shall be expended from the State
2 No doubt, the circuit court permitted the temporary continuation of the executive
spending plan for reasons of expediency . However, as will be noted later in this
opinion, expediency does not justify the judicial sanction of an unconstitutional act. The
better course would have been to stay the judgment pending appeal.
-8-
Treasury . . . . with the exception of those funds demonstrated to be for limited and
specific essential services previously approved in Quertermous [Miller v. Quertermous,
304 Ky. 733, 202 S.W.2d 389 (1947)] ." On January 13, 2005, the Governor and the
Secretary of the Finance and Administration Cabinet appealed . We granted transfer,
CR 74 .02, ordered an expedited briefing schedule, and set oral arguments for March 9,
2005 . On March 8, 2005, during the course of its thirty-day regular legislative session,
the General Assembly enacted both an executive department budget bill for the 200406 biennium and a tax bill. As it had done in its 2003 session, the General Assembly
also ratified all executive department actions taken pursuant to the Public Services
Continuation Plan, nunc pro tunc .
I. MOOTNESS.
Counsel for the Governor suggested at oral argument that this appeal should
now be dismissed as moot because the Public Services Continuation Plan no longer
exists and the General Assembly has ratified the appropriations and expenditures made
by the executive department under that plan . However, a well-known exception to the
mootness doctrine occurs when an issue is "capable of repetition, yet evading review."
Lexington Herald-Leader Co ., Inc. v. Meigs, 660 S.W.2d 658, 661 (Ky. 1983) (quoting
Neb. Press Ass'n v. Stuart, 427 U .S. 539, 546, 96 S.Ct. 2791, 2797, 49 L.Ed .2d 683
(1976); see also Woods v. Commonwealth , 142 S .W.3d 24, 31 (Ky. 2004) ;
Commonwealth v. Hughes, 873 S.W.2d 828, 830 (Ky. 1994) . A two-part test governs
the application of this exception : "(1) is the 'challenged action too short in duration to be
fully litigated prior to its cessation or expiration and (2) [is there] a reasonable
expectation that the same complaining party would be subject to the same action
again ."' Hughes, 873 S .W .2d at 830 (quoting In re Commerce Oil Co. , 847 F .2d 291,
293 (6th Cir . 1988)) . The present case satisfies both prongs.
On three occasions within a ten-year period, the General Assembly convolved
itself into a partisan deadlock and adjourned sine die without enacting an executive
department budget bill. After the two most recent such occasions, the respective
governors promulgated their own budgets and ordered appropriations drawn from the
treasury in accordance therewith . On each occasion, lawsuits were filed to test the
constitutionality of those actions . On each occasion, the General Assembly enacted an
executive department budget bill and ratified the governor's actions before the issue
could be finally resolved by the Court of Justice . Having no assurance that similar
partisan brinkmanship will not recur in the General Assembly, resulting in future
gubernatorially promulgated budgets, we conclude that this issue is capable of
repetition, yet evading review, and will address its merits . See Burlington Northern R.
Co. v. Bhd . of Maint . of Way Employees , 481 U .S. 429, 436 n.4, 107 S.Ct. 1841, 1846
n.4, 95 L.Ed .2d 381 (1987) ("Because these same parties are reasonably likely to find
themselves again in dispute over the issues raised in this petition, and because such
disputes typically are resolved quickly by . . . legislative action, this controversy is one
that is capable of repetition yet evading review .").
II. POLITICAL QUESTION .
The President of the Senate suggests that when a budget deadlock occurs, a
court can supervise the Governor's expenditures on an item-by-item basis to ensure
that they do not exceed the constitutional exception for "essential services" allegedly
created in Miller v. Quertermous , 304 Ky. 733, 202 S.W.2d 389 (1947) . The Governor
responds that budgetary matters, including determinations of what services are
-10-
essential or not, are nonjusticiable political questions that should be reserved to the
other departments of government .
The "political question" doctrine is grounded primarily in the separation of
powers . Baker v. Carr , 369 U .S . 186, 210, 82 S .Ct. 691, 706, 7 L.Ed.2d 663 (1962) .
Under this doctrine, the judicial department should not interfere in the exercise by
another department of a discretion that is committed by a textually demonstrable
provision of the Constitution to the other department, Powell v. McCormack, 395 U.S .
486, 518, 89 S.Ct. 1944, 1962, 23 L.Ed .2d 491 (1969), or seek to resolve an issue for
which it lacks judicially discoverable and manageable standards, Vieth v. Jubelirer, 541
U .S. 267,
, 124 S .Ct. 1769, 1776, 158 L.Ed .2d 546 (2004) . See , e .g., Philpott v.
Haviland , 880 S.W.2d 550, 554 (Ky . 1994) (determination of what is a "reasonable time"
within which to report a bill out of a legislative committee under Section 46 of the
Constitution is a purely legislative issue) ; Dalton, 304 S.W .2d at 345 (wisdom of fiscal
policy, levy of taxes, and appropriation of revenue is outside the purview of judicial
authority) ; Lakes v. Goodioe, 195 Ky. 240, 242 S .W. 632, 635 (1922) ("The expediency
of a statute, or whether or not the public weal demands its enactment, are political
questions, which address themselves to the legislative department of the government
. . . ."). We agree with the Governor that the judicial department should neither inject
itself nor be injected into the details of the executive department budget process . What
constitutes an essential service depends largely on political, social and economic
considerations, not legal ones. Vaughn v. Knopf, 895 S .W.2d 566, 567 (Ky. 1995)
(declaring the statute requiring circuit court oversight of sheriff's budget unconstitutional :
"In acting on these annual budget requests, the judges would, per se, be injected into
the political side of the executive branch offices.") .
The issue in this case, however, is not the efficacy or necessity of a particular
appropriation, but whether the Governor has any constitutional authority to determine
what are essential services or to unilaterally order gany appropriations from the treasury .
Deciding whether a matter has in any measure been committed by the
Constitution to another branch of government, or whether the action of
that branch exceeds whatever authority has been committed, is itself a
delicate exercise in constitutional interpretation, and is a responsibility of
this Court as ultimate interpreter of the Constitution.
The courts cannot reject as "no law suit" a bona fide controversy as to
whether some action denominated "political" exceeds constitutional
authority.
Baker, 369 U .S . at 211, 217, 82 S .Ct. at 706, 710. The issue presented by this case is
a constitutional issue, not a political one; thus, it is justiciable . Cf. Rose v. Council for
Better Educ ., Inc. , 790 S .W.2d 186, 209 (Ky. 1989) ("To allow the General Assembly
(or, in point of fact, the Executive) to decide whether its actions are constitutional is
literally unthinkable .")
III . SEPARATION OF POWERS.
Section 27 of the Constitution of Kentucky provides :
The powers of the government of the Commonwealth of Kentucky
shall be divided into three distinct departments, and each of them be
confined to a separate body of magistracy, to wit : Those which are
legislative, to one ; those which are executive, to another; and those which
are judicial, to another.
Section 28 provides :
No person or collection of persons being of one of those
departments, shall exercise any power properly belonging to either of the
others, except in the instances hereinafter expressly directed or permitted .
Section 28's "unusually forceful command," Ex Parte Auditor of Public Accounts ,
609 S .W.2d 682, 684 (Ky. 1980), has no counterpart in the United States Constitution .
It is reputed to have been penned by Thomas Jefferson .
When Mr. Jefferson returned from France, the federal constitution had
been adopted ; and, having been appointed secretary of state, he obtained
permission to go to Monticello for some months . John Breckinridge and
George Nicholas paid him a visit there, and informed him that Kentucky
was about to frame a constitution for herself, and that Virginia was about
to permit Kentucky to become a separate and independent state. He told
them that there was danger in the federal constitution, because the clause
defining the powers of the departments of government was not sufficiently
guarded, and that the first thing to be provided ,for by the Kentucky
constitution should be to confine the judiciary to its powers, and the
legislative and executive to theirs. Mr. Jefferson drew the form of the
provision, and gave it to Nicholas and Breckinridge ; and it was taken by
Nicholas to the convention which met at Danville, and there presented, Breckinridge not being present at the convention . There was much
discussion and dissent when the article was offered, but, when its author
was made known, the respect of Kentucky for the great name of Jefferson
carried it through, and it was at once adopted .
Comm'rs of Sinking Fund v . George, 104 Ky. 260, 47 S.W. 779, 785 (1898) (Du Relle,
J., dissenting) . See also Rouse v . Johnson , 234 Ky. 473, 28 S .W.2d 745, 752 (1930)
(Willis, J ., dissenting) ; Sibert v. Garrett , 197 Ky. 17, 246 S .W. 455, 457 (1922) ; Purnell
v. Mann , 105 Ky. 87, 48 S .W. 407, 50 S.W . 264, 264 (1899) (Du Relle, J ., dissenting) ;
Sheryl G . Snyder & Robert M . Ireland, The Separation of Governmental Powers Under
the Constitution of Kentucky: A Legal and Historical Analysis of L.R .C . v. Brown , 73 Ky.
L.J . 165, 206 (1984-85) .
Though the separation of powers is not as forcefully enunciated in the United
States Constitution, the principal drafter of that document clearly intended that there
would be a strict separation . "If there is a principle in our Constitution, indeed in any
free Constitution more sacred than another, it is that which separates the legislative,
3 Judge Du Relle cited to no authority for the following account of Jefferson's role.
Later authorities cite only to Judge Du Relle's dissents in George and Purnell , infra .
-13-
executive and judicial powers." James Madison, Speech on the Floor of the House of
Representatives, June 22, 1789, in 1 Annals of Congress 581 . The United States
Supreme Court has consistently allayed Jefferson's purported fears. E. ., Plaut v.
Spendthrift Farm, Inc., 514 U .S . 211, 239, 115 S .Ct. 1447, 1463, 131 L.Ed .2d 328
(1995) ("[T]he doctrine of separation of powers is a structural safeguard . . . a
prophylactic device, establishing high walls and clear distinctions because low walls and
vague distinctions will not be judicially defensible in the heat of interbranch conflict.") ;
Immigration and Naturalization Serv . v. Chadha , 462 U .S . 919, 951, 103 S.Ct. 2764,
2784, 77 L.Ed .2d 317 (1983) ("The Constitution sought to divide the delegated powers
of the new federal government into three defined categories, legislative, executive and
judicial, to assure, as nearly as possible, that each Branch of government would confine
itself to its assigned responsibility . The hydraulic pressure inherent within each of the
separate Branches to exceed the outer limits of its power, even to accomplish desirable
objectives, must be resisted ."); Nixon v. Fitzgerald , 457 U .S . 731, 760-761, 102 S .Ct .
2690, 2707, 73 L.Ed .2d 349 (1982) ("The essential purpose of the separation of powers
is to allow for independent functioning of each coequal branch of government within its
assigned sphere of responsibility, free from risk of control, interference, or intimidation
by other branches .") ; Youngstown Sheet & Tube Co . v. Sawyer, 343 U .S . 579, 588-89,
72 S.Ct. 863, 867, 96 L .Ed. 1153 (1952) (only Congress has authority to authorize
seizure of private property for public use ; consequently, the President exceeded his
executive powers by seizing steel mills to avert a nationwide shut-down by labor union
strike) .
Likewise, we and our predecessor court have interpreted Sections 27 and 28 to
mandate a strict separation of powers. Rejecting an argument that the provisions
- 1 4-
should be liberally construed in the modern era to permit some legislative encroachment
on executive powers, Snyder & Ireland, supra , at 206-07, we noted in Legislative
Research Comm'n ex rel . Prather v. Brown [" L.R .C . v. Brown "], 664 S.W.2d 907 (Ky.
1984), that :
Our present constitution contains explicit provisions which, on the one
hand, mandate separation among the three branches of government, and
on the other hand, specifically prohibit incursion of one branch of
government into the powers and functions of the others .
[I]t has been our view, in interpreting Sections 27 and 28, that the
separation of powers doctrine is fundamental to Kentucky's tri-partite
system of government and must be "strictly construed."
The precedents established by this court have been uniform in retaining
the goals set out by the framers . The separation of powers doctrine is set
in the concrete of history and legal precedent.
Id. a t 912, 914 . See also Diemer v. Commonwealth , 786 S .W.2d 861, 864 (Ky. 1990)
("Kentucky is a strict adherent to the separation of powers doctrine .") ; Sibert , 246 S .W .
at 458 ("The purpose was to have each of them to so operate in their respective
spheres as to create checks to the operations of the others and to prevent the formation
by one department of an oligarchy through the absorption of powers belonging to the
others .") .
As anticipated by the "except" clause in Section 28, the Constitution does
articulate some exceptions to the strict separation of powers. For example, the
Governor's veto power, Ky. Const. § 88, is a legislative function . Arnett v. Meredith , 275
Ky. 223, 121 S .W.2d 36, 37 (1938). The power of the Senate to try impeachments, Ky.
Const. § 67, is a judicial function. And the Chief Justice's administrative powers, Ky.
Const. § 110(5)(b), are executive functions. Further, while the General Assembly
cannot delegate its power to make law, it can make a law that delegates the power to
determine some fact or state of things upon which the law makes its own action depend
-15-
- so long as the law establishes policies and standards governing the exercise of that
delegation . L.R .C. v. Brown, 664 S.W .2d at 915 ; Bloemer v. Turner , 281 Ky. 832, 137
S .W.2d 387, 391 (1939). See Bd. of Trustees v. Attorney Gen . , 132 S.W.3d 770, 78185 (Ky. 2003), for a detailed discussion of the "nondelegation doctrine ." The authority of
the General Assembly to make a limited delegation to the executive department has, on
occasion, been extended to expenditures of excess or emergency funds . Hopkins v.
Ford, 534 S .W .2d 792, 795-96 (Ky. 1976) ; Commonwealth ex rel. Meredith v. Johnson ,
292 Ky. 288, 166 S.W.2d 409, 412 (1942) . In fact, KRS 48 .150 anticipates that the
budget will appropriate funds to each department of government to meet unexpected
contingencies or emergencies. However, in the absence of a proper delegation of
authority by one department to another, or a specific exception articulated by the
Constitution, itself, Section 28 has erected a "high wall," Plaut, 514 U .S. at 239, 115
S .Ct. at 1463, which precludes the exercise by one department of a power vested solely
in either of the others .
The doctrine of the separation of powers was adopted . . . not to promote
efficiency but to preclude the exercise of arbitrary power. The purpose
was not to avoid friction, but, by means of the inevitable friction incident to
the distribution of the governmental powers among three departments, to
save the people from autocracy .
Myers v. United States , 272 U .S . 52, 293, 47 S .Ct. 21, 85, 71 L.Ed. 160 (1926)
(Brandeis, J ., dissenting) .
IV. APPROPRIATIONS POWER.
I simply believe that "Congress shall make no law" means Congress shall
make no law.
Hugo Black, A Constitutional Faith 45 (1969), referring, of course, to the First
Amendment of the United States Constitution . That simple textual interpretation mirrors
- 1 6-
the primary rule of constitutional construction : "There is no room for construction of a
Constitution outside of the words themselves, if they are unambiguous . . . ." Button v.
Drake, 302 Ky. 517, 195 S .W.2d 66, 68 (1946) .
When the framers of the Constitution use language that is in no sense
ambiguous, it is not a function of this court to construe that language as
meaning something that the framers of the Constitution did not say, or to
hold that while the Constitution says something definitely and
unequivocally, no special importance is to be attached to its language.
Harrod v. Hatcher, 281 Ky. 712, 137 S .W.2d 405, 407 (1940). See also Pardue v.
Miller , 306 Ky. 110, 206 S.W.2d 75, 78 (1947) ("The basic rule . . . is to interpret a
constitutional provision according to what was said and not what might have been said
. . . ...) . That rule applies to the unambiguous words of Section 230 of the Constitution of
Kentucky, viz:
No money shall be drawn from the State Treasury, except in
pursuance of appropriations made by law . . . .
We have consistently held that this provision means exactly what it says.
Commonwealth ex rel . Armstrong v. Collins, 709 S .W.2d 437, 441 (Ky. 1986) ("It is clear
that the power of the dollar - the raising and expenditure of the money necessary to
operate state government - is one which is within the authority of the legislative branch
of government . The Constitution of the Commonwealth so states and we have so
stated .") ; L.R.C . v. Brown , 664 S .W.2d at 925 ("The budget, which provides the revenue
for the Commonwealth and which determines how that revenue shall be spent, is
fundamentally a legislative matter.") ; Ferguson v. Oates, 314 S.W .2d 518, 521 (Ky.
1958) ("[T]he purpose of [Section 230] was to prevent the expenditure of the State's
money without the consent of the Legislature .") (internal citation and quotation omitted) .
Article I, Section 9, Clause 7 of the United States Constitution contains wording
almost identical to that of Section 230, and the United States Supreme Court has
-17-
consistently given that provision its literal meaning. Cincinnati Soap Co. v . United
States , 301 U .S . 308, 321, 57 S.Ct . 764, 770, 81 L.Ed. 1122 (1937) ("It means simply
that no money can be paid out of the Treasury unless it has been appropriated by an
act of Congress ."); Reeside v. Walker , 52 U .S. (11 How.) 272, 291, 13 L.Ed . 693 (1850)
("However much money may be in the Treasury at any one time, not a dollar of it can be
used in the payment of any thing not thus previously sanctioned ."). Its purpose is to
vest in Congress, the branch of government that is most representative of the people,
the power to determine how the people's money will be spent . Office of Pers . Mgmt . v.
Richmond , 496 U.S . 414, 427-28, 110 S.Ct. 2465, 2473, 110 L.Ed .2d 387 (1990) ("But
the Clause has a more fundamental and comprehensive purpose . . . . It is to assure
that public funds will be spent according to the letter of the difficult judgments reached
by Congress as to the common good and not according to the individual favor of
Government agents or the individual pleas of litigants .") ; Cincinnati Soap Co. , 301 U.S .
at 321, 57 S .Ct. at 770 ("The provision of the Constitution . . . that, 'No Money shall be
drawn from the Treasury, but in Consequence of Appropriations made by Law,' was
intended as a restriction upon the disbursing authority of the Executive department
The object is apparent upon the slightest examination . It is to secure
regularity, punctuality, and fidelity, in the disbursements of the public
money . As all the taxes raised from the people, as well as revenues
arising from other sources, are to be applied to the discharge of the
expenses, and debts, and other engagements of the government, it is
highly proper, that congress should possess the power to decide how and
when any money should be applied for these purposes . If it were
otherwise, the executive would possess an unbounded power over the
public purse of the nation ; and might apply all its moneyed resources at
his pleasure . The power to control and direct the appropriations,
constitutes a most useful and salutary check upon profusion and
extravagance, as well as upon corrupt influence and public peculation . . . .
- 1 8-
Joseph Story, 2 Commentaries on the Constitution of the United States § 1348 (3d ed.
1858) .
It is an axiom of American government that the legislature holds the
purse strings . The federal and most state constitutions, for example,
require that the budget originate in the House of Representatives, the arm
of government most representative of the populace . This is traditionally
viewed as the means by which the representatives of the people hold their
most powerful check and balance upon the executive branch .
Snyder & Ireland, supra, at 225 .
The Governor asserts that Section 230 applies only if the General Assembly has
enacted a budget bill. As noted at the outset of this opinion, there is no provision in the
Constitution of Kentucky requiring the General Assembly to enact a budget bill. Such is
purely a statutory requirement . Since Section 230 preexisted that statutory scheme, the
Framers could not have intended for the Section to apply only when the General
Assembly enacts a budget bill . Accordingly, we hold that, in the absence of a specific
appropriation, or a statutory, constitutional, or federal mandate as discussed below, the
unambiguous language of Section 230 prohibits the withdrawal of funds from the state
treasury .
V. STATUTORY, CONSTITUTIONAL AND FEDERAL MANDATES .
KRS 41 .110 provides :
No public money shall be withdrawn from the Treasury for any purpose
other than that for which its withdrawal is proposed, nor unless it has been
appropriated by the General Assembly or is a part of a revolving fund, and
has been allotted as provided in KRS 48 .010 to 48.800, and then only on
the warrant of the Finance and Administration Cabinet . The provisions of
this section do not apply to withdrawals of funds from state depository
banks for immediate redeposit in other state depository banks or to funds
held in trust for the security of bond holders .
Where the General Assembly has mandated that specific expenditures be made on a
continuing basis, or has authorized a bonded indebtedness which must be paid, such is,
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in fact, an appropriation . Otherwise, the General Assembly has not delegated its
constitutional power of appropriation to the executive department. It has even forbidden
the expenditure of surplus monies in the general and road funds . KRS 48 .700(8) ; KRS
48.710(8).
There are statutes that mandate appropriations even in the absence of a budget
.,
,E
bill.
KRS 18A.015(2) ("Appropriations shall be made from the general expenditure
fund to the cabinet to meet the estimated pro rata share of the cost of administering the
provisions of this chapter . . . ."); KRS 44.100 ("All amounts necessary to pay awards
and cost of operation assessed by the board [of claims] against all other cabinets or
agencies of the Commonwealth shall be paid out of the general fund of the
Commonwealth, upon warrants drawn by the secretary of the Finance and
Administration Cabinet upon the State Treasurer."); KRS 45A.275 ("The first five
hundred thousand dollars ($500,000) of any Kentucky court judgment against the
Commonwealth awarding damages on a contract claim under the provisions of KRS
45A.240 to 45A .270 shall be a necessary governmental expense and payment shall be
approved by the Finance and Administration Cabinet and paid by the State Treasurer.
Appropriations for these judgments shall be continued appropriations .") ; KRS 61 .565(1)
("Each employer participating in the State Police Retirement System . . . and each
employer participating in the Kentucky Employees Retirement System . . . shall
contribute annually to the respective retirement system . . . .") . There are others - but
they are substantially less than legion . In those instances, the General Assembly has
already made the necessary appropriations . White v. Davis, 133 CaI.Rptr.2d 691, 699700 (Cal. Ct. App. 2002), reversed in part on other grounds by White v. Davis , 68 P .3d
74 (Cal. 2003) .
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However, the mere existence of a statute that can be implemented only if funded
does not mandate an appropriation . "[T]he General Assembly is permitted through the
reduction or elimination of an appropriation, to effectively eliminate the efficacy of
existing statutes . . . . " Commonwealth ex rel . Armstrong v. Collins , 709 S .W.2d at 441 .
In fact, the State Senate's 2002 refusal to fund the election campaign fund established
in KRS 121 A.020 was the immediate cause of the collapse of that session's budget
negotiations . Obviously, the mere existence of KRS 121A .020 was not a mandate to
fund it.
A similar crisis occurred in the federal government in 1980 when it became
apparent that Congress would not pass a federal budget or a budget continuation plan
before October 1, the beginning of the next fiscal year . Former United States Attorney
General Benjamin R. Civiletti opined, when interpreting 31 U .S.C. § 1341, the "AntiDeficiency Act," which precludes any officer or employee of the government from
making or authorizing the expenditure of unappropriated funds, that:
[S]tatutory authority to incur obligations in advance of appropriations . . .
may not ordinarily be inferred, in the absence of appropriations, from the
kind of broad, categorical authority, standing alone, that often appears, for
example, in the organic statutes of governmental agencies .
5 Op. Off. Legal Counsel 1, 2 (1980) (quoted in 43 Op . Atty. Gen . 293, 297 (1981)) . We
agree . Only those statutes specifically mandating that payments or contributions be
made can be interpreted as self-executing appropriations . A mandated appropriation
cannot be inferred from the mere existence of an unfunded statute .
In contrast, "constitutional provisions are mandatory and never directory ." Arnett
v. Sullivan , 279 Ky. 720, 132 S.W.2d 76, 78 (1939) . Certain provisions of our
Constitution mandate payments for services rendered, viz:
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Section 42 ("The members of the General Assembly shall severally
receive from the State Treasury compensation for their services . . . .") ;
Section 74 ("The Governor and Lieutenant Governor shall at stated times
receive for the performance of the duties of their respective offices
compensation to be fixed by law.");
Section 86 ("The President of the Senate shall receive for his services the
same compensation which shall, for the same period, be allowed to the
Speaker of the House of Representatives, and during the time he
administers the government as Governor, he shall receive the same
compensation which the Governor would have received had he been
employed in the duties of his office .");
Section 96 ("All officers mentioned in Section 95 shall be paid for their
services by salary, and not otherwise .") ;
Section 98 ("The compensation of the Commonwealth's Attorney shall be
by salary and such percentage of fines and forfeitures as may be fixed by
law, and such salary shall be uniform in so far as the same shall be paid
out of the State Treasury, and not to exceed the sum of five hundred
dollars per annum . . . .") ;
Section 106 ("In counties or cities having a population of seventy-five
thousand or more, the Clerks of the respective Courts thereof (except the
Clerk of the City Court), the Marshals, the Sheriffs and the Jailers, shall be
paid out of the State Treasury, by salary to be fixed by law, the salaries of
said officers and of their deputies and necessary office expenses not to
exceed seventy-five per centum of the fees collected by said officers,
respectively, and paid into the Treasury .") ;
Section 120 ("All justices and judges shall be paid adequate compensation
which shall be fixed by the General Assembly . All compensation and
necessary expenses of the Court of Justice shall be paid out of the State
Treasury. The compensation of a justice or judge shall not be reduced
during his term .") ; and
Section 235 ("The salaries of public officers shall not be changed during
the terms for which they were elected . . . .") .
There are other constitutional mandates that can only be implemented by the
expenditure of funds from the treasury . These are :
Section 40 ("Each House of the General Assembly shall keep and publish
daily a journal of its proceedings . . . . ") ;
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Section 53 ("The General Assembly shall provide by law for monthly
investigations into the accounts of the Treasurer and Auditor of Public
Accounts . . . .") ;
Section 147 ("The General Assembly shall provide by law for the
registration of all persons entitled to vote in cities and towns having a
population of five thousand or more . . . .");
Section 151 ("The General Assembly shall provide suitable means for
depriving of office any person who, to procure his nomination or election,
has . . . been guilty of any unlawful use of money, or other thing of value,
or has been guilty of fraud, intimidation, bribery, or any other corrupt
practice . . . .");
Section 183 ("The General Assembly shall, by appropriate legislation,
provide for an efficient system of common schools throughout the State .") ;
Section 220 ("The General Assembly shall provide for maintaining an
organized militia . . . .");
Section 221 ("The organization, equipment and discipline of the militia
shall conform as nearly as practicable to the regulations for the
government of the armies of the United States .") ;
Section 223 ("The General Assembly shall provide for the safekeeping of
the public arms, military records, relics and banners of the Commonwealth
of Kentucky.") ;
Section 244a ("The General Assembly shall prescribe such laws as may
be necessary for the granting and paying of old persons an annuity or
pension .");
Section 252 ("It shall be the duty of the General Assembly to provide by
law . . . for the establishment and maintenance of an institution or
institutions for the detention, correction, instruction and reformation of all
persons under the age of eighteen years, convicted of such felonies and
such misdemeanors as may be designated by law. Said institution shall
be known as the "House of Reform ."); and
Section 254 ("The Commonwealth shall maintain control of the discipline,
and provide for all supplies, and for the sanitary conditions of the convicts
. . . .") .
Unlike unfunded statutes, which are creatures of the General Assembly who may
choose to fund them or not, these constitutional mandates must be implemented . "The
Kentucky Constitution is, in matters of state law, the supreme law of this
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Commonwealth to which all acts of the legislature, the judiciary and any government
agent are subordinate ." Kuprion v. Fitzgerald , 888 S .W .2d 679, 681 (Ky. 1994) . The
General Assembly cannot prevent the implementation of constitutional mandates by
simply withholding its appropriations power. In the absence of appropriations by the
General Assembly, the Treasurer must fund these constitutional mandates at no more
than existing levels until the General Assembly provides otherwise .
Finally, there are what the parties in this case have referred to as "federal
mandates," i .e . , programs or requirements established by federal law that require
expenditure of state funds . While the constitutionality of such mandates is currently in
doubt, Printz v. United States , 521 U .S. 898, 925, 117 S .Ct. 2365, 2380, 138 L.Ed .2d
914 (1997) ; New York v. United States , 505 U.S . 144, 188, 112 S.Ct. 2408, 2435, 120
L.Ed .2d 120 (1992), that issue is not before us . Nor do we decide whether a state,
having accepted federal benefits, can opt out of an otherwise voluntary participation in a
federal program . Q., 29 U .S.C. § 651, et seg. (Occupational Safety and Health Act of
1970) ; 30 U.S .C . § 1201, et seg. (Surface Mining Control and Reclamation Act of 1977) ;
33 U.S .C. § 1251, et seg . (Clean Water Act) ; 42 U.S .C. § 6901, et seg . , (Resource
Conservation and Recovery Act of 1976) ; 42 U.S.C. § 7401, et seg. (Clean Air Act) . We
simply hold that to the extent the Supremacy Clause of the United States Constitution,
U .S . Const. art. VI, cl . 2, requires compliance with any valid federal mandate, it must be
funded by the Treasurer notwithstanding Section 230 of the Constitution of Kentucky.
However, absent a statutory, constitutional, or valid federal mandate, Section 230
precludes the withdrawal of funds from the state treasury except pursuant to a specific
appropriation by the General Assembly .
V1. CONTINUATION BUDGET.
The Attorney General posits that, in addition to statutory, constitutional, and
federal mandates, the Governor ought to be able to look to the immediately preceding
biennial budget as a "guide" for additional appropriations, i.e. , a kind of "quasicontinuation budget."
From 1918 until 1983, there existed statutory authority for a continuation budget
in Kentucky, subject to substantial executive department leeway, viz:
If the General Assembly fails to make an appropriation for any fiscal year
for any purpose required to be executed by provisions of existing laws, or
if the Governor vetoes an appropriation essential to the carrying out of any
such purpose, an appropriation equal in amount to the appropriation
made, or deemed to have been made under this section, for that purpose
for the fiscal year next preceding, exclusive of any such appropriations for
extraordinary expenses and capital outlays, shall be deemed to have been
made and shall continue available from year to year until an appropriation
has been made as provided in this chapter and has become effective . If
any such appropriation for the fiscal year next preceding is applicable alike
for ordinary recurring expenses, extraordinary expenses, and capital
outlays, the Executive Department for Finance and Administration shall
determine what proportion thereof shall be deemed under the provisions
of this section to have been appropriated for ordinary recurring expenses
by the General Assembly for the next fiscal year . Each appropriation or
the proportion of each appropriation that is continued under this section
shall be included in the budget and made available for expenditure by
allotments as provided in this chapter .
KRS 45 .120. The statute was repealed effective July 1, 1983. 1982 Ky. Acts, ch. 450,
§ 79. We interpret that repeal as a specific legislative rejection of the solution proffered
by the Attorney General . Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U .S. at
586, 72 S.Ct. at 866 (finding no Congressional authority for President's seizure of steel
mills partially because, "[w]hen the Taft-Hartley Act was under consideration in 1947,
Congress rejected an amendment which would have authorized such governmental
seizures in cases of emergency .") .
- 25-
Thus, we are left with KRS 48.310(1) ("No provision of a branch budget bill shall
be effective beyond the second fiscal year from the date of its enactment .") and the
ancient principle that each legislature is a free and independent body and cannot control
the conduct of its successor except by acts in the form of binding contracts . Bd . of
Trustees v. Attorney Gen . , 132 S .W .3d at 789; City of Mt. Sterlin g v. King , 126 Ky. 526,
104 S.W. 322, 322 (1907); Swift & Co. v. City of Newport , 70 Ky. (7 Bush) 37, 41
(1870) . There presently exists no authority for a continuation budget in Kentucky.
VII. GOVERNOR'S CONSTITUTIONAL POWERS .
The Governor asserts that when the General Assembly fails to exercise its
appropriations power to fund the operations of the executive department, he (the
Governor) possesses the inherent power to order the appropriations necessary to
prevent the imminent collapse
of
governmental services . He cites Sections 69 and 81
of the Constitution as the source of that power.
Section 69 provides : "The supreme executive power of the Commonwealth shall
be vested in a Chief Magistrate, who shall be styled the 'Governor
Commonwealth
of
of
the
Kentucky."' That provision only vests the Governor with executive
powers, just as Section 29 vests the General Assembly with legislative powers and
Section 109 vests the Court of Justice with judicial powers . Manifestly, Section 69 does
not vest the Governor with legislative powers, which are specifically reserved by
Sections 28 and 29 solely to the legislative department. Section 81 provides : "He shall
take care that the laws be faithfully executed." The Governor asserts that he cannot
faithfully execute the laws enacted by the General Assembly without the funds
necessary to do so . However, as noted earlier in this opinion, the mere existence of a
- 26-
law does not mean that it must be implemented if doing so requires the expenditure of
unappropriated funds . Commonwealth ex rel. Armstrong v. Collins , 709 S.W.2d at 441 .
The same Constitutional powers and duties described in Sections 69 and 81 are
granted to the President of the United States by Article ll, Sections 1 and 3 of the United
States Constitution . As Justice Black wrote in the lead opinion in the Youngstown case :
In the framework of our Constitution, the President's power to see that the
laws are faithfully executed refutes the idea that he is to be a lawmaker.
The Constitution limits his functions in the lawmaking process to the
recommending of laws he thinks wise and the vetoing of laws he thinks
bad . And the Constitution is neither silent nor equivocal about who shall
make laws which the President is to execute . The first section of the first
article says that "All legislative Powers herein granted shall be vested in a
Congress of the United States ."
Youn stown, 343 U.S . at 587-88, 72 S.Ct. at 867. See also Myers v. United States , 272
U .S. at 295, 47 S .Ct. at 85 (Holmes, J., dissenting) ("The duty of the President to see
that the laws be executed is a duty that does not go beyond the laws or require him to
achieve more than Congress sees fit to leave within his power."). The Governor has no
constitutional authority to exercise legislative powers even when the General Assembly
has failed to do so .
VIII . ALLEGED EMERGENCY POWERS .
The Governor also cites the opinions of our predecessor court in Miller v.
Quertermous , 304 Ky. 733, 202 S.W .2d 389 (1947), and Rhea v. Newman , 153 Ky. 604,
156 S .W . 154 (1913), for the proposition that he may expend unappropriated funds to
provide essential services during emergencies . We easily distinguish Rhea because
the funds in that case had, in fact, been appropriated by the General Assembly. There
simply was insufficient money in the treasury to pay the warrant when it was submitted .
A statute, 1910 Ky. Acts, ch. 72, § 3, provided that, in such a circumstance, the
- 2 7-
Treasurer should endorse the warrant as bearing five percent interest from the date of
its presentation . The issue was whether, considering the extent of other state
indebtedness, that endorsement would violate Section 49 of the Constitution, which
authorizes the General Assembly to contract debts to meet casual deficits but requires
that such debts not exceed a maximum of $500,000. Rhea, 156 S.W. at 155 . The case
had nothing to do with Section 230 .
Quertermous did have to do with Section 230, but has been regarded as an
anomaly, at best. There, the General Assembly made what it believed to be sufficient
appropriations for the maintenance of state prisons, correctional institutions for children,
and mental institutions . Unfortunately, with the elimination of the price control system in
effect during World War II, the cost of living rose unexpectedly and the appropriated
funds proved insufficient to pay the necessary, ordinary and recurring expenses of
those institutions . The Commissioner of Welfare sued the State Treasurer and the
Commissioner of Finance for funds necessary to continue the operation of the
institutions . Noting that the appropriated funds would expire on May 15, 1947 (the
opinion was rendered on May 16, 1947), and that there was a substantial surplus in the
treasury, Quertermous , 202 S.W.2d at 390, the court ordered the Treasurer to pay the
funds necessary to operate the institutions . Id. at 392 .
We are justified in assuming that the Legislature was fully cognizant
of its obligation to make such appropriation for the care of these
institutions and inmates . The intention so to care for them is evidenced by
the appropriation made . The fact that an unanticipated rising cost of living
later shows the estimate to be erroneous, in no way operates to destroy
that proper intention, nor could it in anyway be justifiable grounds for
criticism . A great untouched surplus of public funds, collected for public
purposes, is on hand . An unexpected and unanticipated emergency
requiring more than emotional gestures confronts us .
Id. at 391-92. Thus, the court inferred an intent on the part of the General Assembly to
provide the additional funds for the operation of the institutions from the fact that it had
already appropriated what it believed to be sufficient funds for their operation, and from
the fact that a surplus of funds was on hand in the treasury sufficient to pay for their
continued operation . The opinion can be partially justified by the constitutional
mandates of Sections 252 and 254 and partially explained by expediency (though there
is no explanation why the Commissioner of Welfare did not ask the Governor to call an
extraordinary session of the General Assembly to obtain a proper legislative
appropriation of the necessary funds, a process that would have required less time than
it took to litigate the issue through the trial and appellate courts) .
Nine years later, the Attorney General sued the Commissioner of Finance for
funds needed to operate his office in excess of those appropriated by the General
Assembly, citing Quertermous . Ferguson v. Oates, 314 S .W.2d at 519-20 .
Recognizing the fundamental impropriety of a court order directing payment of
unappropriated funds to provide to the executive department additional funds that the
legislature had deemed unnecessary, the court in Ferguson expressly limited
Quertermous to its facts . "[T]he court's action was 'brought about by an inexorable
necessity coupled with an inescapable responsibility,' and the case should not be
considered as precedent except under comparable conditions." Ferguson, 314 S.W.2d
at 520. In fact, despite the Quertermous court's obvious good intentions when faced
with seemingly insoluble facts, the decision was prima facie an unconstitutional
encroachment by the executive and judicial departments on the powers of the legislative
department . Good intentions do not justify unconstitutional acts. Dishman v. Coleman ,
244 Ky. 239, 50 S .W.2d 504, 508 (1932) (State Treasurer held personally liable for
- 29-
expenditure of unappropriated funds "even though the officer thought he was doing
what was best for the commonwealth, and had the concurrence of the Attorney General
at the time .,,4)
We reject the proposition that a Governor can unilaterally declare an emergency
and spend unappropriated funds to resolve it. As Justice Jackson said in his famous
concurring opinion in the Youngstown case:
The Solicitor General lastly grounds support of the seizure upon
nebulous, inherent powers never expressly granted but said to have
accrued to the office from the customs and claims of preceding
administrations . The plea is for a resulting power to deal with a crisis or
an emergency according to the necessities of the case, the unarticulated
assumption being that necessity knows no law.
The appeal, however, that we declare the existence of inherent
powers ex necessitate to meet an emergency asks us to do what many
think would be wise, although it is something the forefathers omitted .
They knew what emergencies were, knew the pressures they engender
for authoritative action, knew, too, how they afford a ready pretext for
usurpation. We may also suspect that they suspected that emergency
powers would tend to kindle emergencies.
[E]mergency powers are consistent with free government only when their
control is lodged elsewhere than in the Executive who exercises them .
With all its defects, delays and inconveniences, men have discovered no
technique for long preserving free government except that the Executive
be under the law, and that the law be made by parliamentary
deliberations.
Youngstown , 343 U .S . at 646, 649-50, 652, 655, 72 S .Ct. at 875-76, 877, 878, 880
(Jackson, J ., concurring) .
The Governor possesses no "emergency" or "inherent" powers to appropriate
money from the state treasury that the General Assembly, for whatever reason, has not
4 Dishman noted that the General Assembly had the power to appropriate funds to pay
the judgment against the Treasurer, id. at 508, a solution similar to the General
Assembly's ultimate ratifications of the executive spending plans promulgated by
Governors Patton and Fletcher, respectively.
- 30-
appropriated . Cf. Brown v. Barklev, 628 S.W.2d 616, 623 (Ky. 1982) ("Practically
speaking, except for those conferred upon him specifically by the Constitution, [the
Governor's] powers, like those of the executive officers created by Const. Sec . 91, are
only what the General Assembly chooses to give him."). Nor does the Court of Justice
have the power to confer such authority. Miller v. Quertermous is overruled to the
extent it holds or can be interpreted otherwise .
IX. SUSPENSION OF STATUTES.
As earlier noted, the Attorney General initiated this action to prevent the
Governor's anticipated suspension of 153 statutes . Among the statutes that the parties
to this appeal claim were actually suspended in the Public Services Continuation Plan
were KRS 18A.010(2) (number of state employees limited to 33,000) ; KRS 18A.355(1)
(automatic 5% annual pay increases for all state employees) ; KRS 42 .4585 (allocation
of Local Government Economic Assistance Funds) ; KRS 61 .565(2) (delegation of
authority to Kentucky Retirement Systems Board of Trustees to determine employer
contribution rates necessary to adequately fund the Kentucky Employees Retirement
System) .
Section 15 of our Constitution provides : "No power to suspend laws shall be
exercised unless by the General Assembly or its authority." Since this provision is a
part of the Bill of Rights, the Governor could not suspend statutes even if he possessed
"emergency" or "inherent" powers under Sections 69 and 81 . Ky. Const. § 26 ("To
guard against transgression of the high powers which we have delegated, We Declare
that everything in this Bill of Rights is excepted out of the general powers of government
. . . . . ). The suspension of statutes by a Governor is also antithetical to the
constitutional duty to "take care that the laws be faithfully executed." Ky. Const. § 81 . A
-31-
fortiori , the suspension of any statutes by the Governor's Public Services Continuation
Plan was unconstitutional and invalid ab initio .
However, neither the parties representing state employees5 nor the Board of
Trustees of the Kentucky Employees Retirement System presently seek remedial relief
from the suspensions of KRS 18A.355(1) and KRS 61 .565(2), admitting that those
issues were resolved during the 2004 extraordinary session of the General Assembly.
X. CONCLUSION .
Some truths are so basic that, like the air around us, they are easily
overlooked . Much of the Constitution is concerned with setting forth the
form of our government, and the courts have traditionally invalidated
measures deviating from that form . The result may appear "formalistic" in
a given case to partisans of the measure at issue, because such
measures are typically the product of the era's perceived necessity . But
the Constitution protects us from our own best intentions: It divides power
. . . among branches of government precisely so that we may resist the
temptation to concentrate power in one location as an expedient solution
to the crisis of the day.
New York v. United States , 505 U.S . at 187, 112 S.Ct. at 2434 .
There is no constitutional mandate that the General Assembly enact a budget
bill, and there is no statute providing for an alternative when it fails to do so. Despite
much hand-wringing and doomsday forecasting by some of the parties to this action at
the prospect that we would hold that Section 230 means what it unambiguously says, it
is not our prerogative to amend the Constitution or enact statutes . When the General
Assembly declines to exercise its appropriations power, that power does not flow over
the "high wall" erected by Section 28 to another department of government.
The separation of the powers of government did not make each
branch completely autonomous . It left each in some measure, dependent
on the others . . . . Obviously, the President cannot secure full execution
of the laws, if Congress denies to him adequate means of doing so . Full
5 Those parties were permitted to withdraw from this litigation prior to oral argument .
-32-
execution may be defeated because Congress . . . declines to make the
indispensable appropriation . . . . If . . . adequate means are denied to the
President, the fault will lie with Congress. The President performs his full
constitutional duty, if, with the means and instruments provided by
Congress and within the limitations prescribed by it, he uses his best
endeavors to secure the faithful execution of the laws enacted.
Myers , 272 U .S. at 291-92, 47 S.Ct. at 84 (Brandeis, J., dissenting) . If the legislative
department fails to appropriate funds deemed sufficient to operate the executive
department at a desired level of services, the executive department must serve the
citizenry as best it can with what it is given. If the citizenry deems those services
insufficient, it will exercise its own constitutional power- the ballot . Ky. Const . §§ 31,
70 .
Accordingly, we affirm that portion of the Franklin Circuit Court's judgment that
declares the Public Services Continuation Plan unconstitutional insofar as it requires
expenditure from the treasury of unappropriated funds other than pursuant to statutory,
constitutional, and federal mandates; and reverse that portion of the Franklin Circuit
Court's judgment that authorizes unappropriated expenditures for other "limited and
specific services previously approved in Quertermous ."
Graves, Johnstone, and Wintersheimer, JJ., concur. Lambert, C .J., concurs in
part and dissents in part by separate opinion . Keller, J., concurs in part and dissents in
part by separate opinion, with Scott, J ., joining that opinion .
COUNSEL FOR APPELLANTS ERNIE FLETCHER, IN HIS OFFICIAL CAPACITY AS
GOVERNOR OF KENTUCKY ; AND ROBBIE RUDOLPH, IN HIS OFFICIAL CAPACITY
AS SECRETARY OF THE FINANCE AND ADMINISTRATION CABINET
(2005-SC-0046-TG) :
John C. Roach
Office of the Governor
The Capitol, Room 101
Frankfort, KY 40601
M . Holliday Hopkins
Sheryl G . Snyder
David Seth Kaplan
Jason Patrick Renzelmann
Frost, Brown, Todd, LLC
Suite 3200
400 West Market Street
Louisville, KY 40202-3363
COUNSEL FOR APPELLANTS STEVE NUNN ; AND JIM WAYNE (2005-SC-0049-TG) :
Walter A . Baker
213 South Green Street
Glasgow, KY 42141
Phillip J . Shepherd
307 West Main Street
P.O . Box 782
Frankfort, KY 40602-0782
COUNSEL FOR APPELLANT COMMONWEALTH OF KENTUCKY, DEPARTMENT OF
THE TREASURY, ACTING THROUGH THE TREASURER OF THE
COMMONWEALTH, JONATHAN MILLER (2005-SC-0050-TG) :
David J. Hale
Courtney L. Rice
Reed, Weitkamp, Schell & Vice
Suite 2400
500 West Jefferson Street
Louisville, KY 40202
COUNSEL FOR APPELLEES COMMONWEALTH OF KENTUCKY EX REL.
GOVERNOR ERNIE FLETCHER ; AND ROBBIE RUDOLPH, COMMONWEALTH OF
KENTUCKY, SECRETARY OF FINANCE & ADMINISTRATION (2005-SC-0049-TG
AND 2005-SC-0050-TG) :
John C. Roach
Office of the Governor
The Capitol, Room 101
Frankfort, KY 40601
M . Holliday Hopkins
Sheryl G . Snyder
David Seth Kaplan
Jason Patrick Renzelmann
Frost, Brown, Todd. LLC
Suite 3200
400 West Market Street
Louisville, KY 40202-3363
COUNSEL FOR APPELLEE COMMONWEALTH OF KENTUCKY, OFFICE OF THE
ATTORNEY GENERAL EX REL. GREGORY D. STUMBO (2005-SC-0046-TG, 2005SC-0049-TG AND 2005-SC-0050-TG) :
C . David Johnstone
Office of the Attorney General
Suite 118, The Capitol
700 Capital Avenue
Frankfort, KY 40601-3449
Robert S . Jones
Assistant Attorney General
Office of the Attorney General
Suite 118, The Capitol
700 Capital Avenue
Frankfort, KY 40601-3449
Pierce Butler Whites
Assistant Deputy Attorney General
Suite 118, The Capitol
700 Capital Avenue
Frankfort, KY 40601
Janet M. Graham
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
COUNSEL FOR APPELLEE COMMON CAUSE OF KENTUCKY, A NON-PROFIT,
NON-PARTISAN ORGANIZATION, BY ITS CHAIRMAN RICHARD V. BELILES, AS A
KENTUCKY TAXPAYER (2005-SC-0046-TG, 2005-SC-0049-TG AND 2005-SC-0050TG):
Richard V. Beliles
6900 Crossbow Place
Prospect, KY 40059
COUNSEL FOR APPELLEES STEVE NUNN, REPRESENTATIVE ; AND JIM WAYNE,
REPRESENTATIVE (2005-SC-0046-TG AND 2005-SC-0050-TG) :
Walter A . Baker
213 South Green Street
Glasgow, KY 42141
Phillip J . Shepherd
307 West Main Street
P .O . Box 782
Frankfort, KY 40602-0782
COUNSEL FOR APPELLEES HARRY MOBERLY, JR . ; JOE BARROWS ; AND JIM
CALLAHAN, IN THEIR OFFICIAL CAPACITIES AS MEMBERS OF THE HOUSE OF
REPRESENTATIVES OF THE COMMONWEALTH OF KENTUCKY; AND JODY
RICHARDS, IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF
REPRESENTATIVES OF THE COMMONWEALTH OF KENTUCKY (2005-SC-0046TG, 2005-SC-0049-TG AND 2005-SC-0050-TG):
Donald P. Cetrulo
Lexington Financial Center
Suite 1910
250 West Main Street
Lexington, KY 40507
Timothy Firkins
Assistant Attorney General
Room 307, The Capitol
Frankfort, KY 40601
John S . Gillig
Room 307, The Capitol
700 Capital Avenue
Frankfort, KY 40601
COUNSEL FOR APPELLEE DAVID L. WILLIAMS, IN HIS CAPACITY AS PRESIDENT
OF THE SENATE OF THE COMMONWEALTH OF KENTUCKY (2005-SC-0046-TG,
2005-SC-0049-TG AND 2005-SC-0050-TG) :
Harland C. Hatter
203 Capitol Annex
Frankfort, KY 40601
Paul Emmanuel Salamanca
279 Cassidy Avenue
Lexington, KY 40502
COUNSEL FOR APPELLEE KENTUCKY RETIREMENT SYSTEMS, BOARD OF
TRUSTEES (2005-SC-0046-TG, 2005-SC-0049-TG AND 2005-SC-0050-TG) :
Lizabeth Ann Tully
James D. Allen
Stoll, Keenon & Park, LLP
Suite 2100
300 West Vine Street
Lexington, KY 40507-1801
J . Eric Wampler
Kentucky Retirement Systems
Perimeter Park West
1260 Louisville Road
Frankfort, KY 40601
COUNSEL FOR APPELLEE COMMONWEALTH OF KENTUCKY, DEPARTMENT OF
THE TREASURY EX REL. JONATHAN MILLER (2005-SC-0046-TG AND 2005-SC0049-TG) :
David J . Hale
Ridley M. Sandidge, Jr .
Reed, Weitkamp, Schell & Vice
Suite 2400
500 West Jefferson Street
Louisville, KY 40202
RENDERED : MAY 19, 2005
TO BE PUBLISHED
uprrutr (gourf of ktttfurkg
2005-SC-000046-TG
ERNIE FLETCHER, IN HIS OFFICIAL
CAPACITY AS GOVERNOR OF
KENTUCKY ; AND ROBBIE RUDOLPH, IN
HIS OFFICIAL CAPACITY AS
SECRETARY OF THE FINANCE AND
ADMINISTRATION CABINET
TRANSFER FROM THE COURT OF APPEALS
2005-CA-108
FRANKLIN CIRCUIT COURT NO. 04-CI-719
COMMONWEALTH OF KENTUCKY,
OFFICE OF THE ATTORNEY GENERAL
EX REL . GREGORY D. STUMBO ;
COMMON CAUSE OF KENTUCKY, A
NON-PROFIT, NON-PARTISAN
ORGANIZATION, BY ITS CHAIRMAN
RICHARD V. BELILES, AS A KENTUCKY
TAXPAYER; STEVE NUNN,
REPRESENTATIVE ; JIM WAYNE,
REPRESENTATIVE ; HARRY MOBERLY,
JR ., IN HIS OFFICIAL CAPACITY AS
MEMBER OF THE HOUSE OF
REPRESENTATIVES OF THE
COMMONWEALTH OF KENTUCKY ; JOE
BARROWS, IN HIS OFFICIAL CAPACITY
AS MEMBER OF THE HOUSE OF
REPRESENTATIVES OF THE
COMMONWEALTH OF KENTUCKY; JIM
CALLAHAN, IN HIS OFFICIAL CAPACITY
AS MEMBER OF THE HOUSE OF
REPRESENTATIVES OF THE
COMMONWEALTH OF KENTUCKY;
DAVID L. WILLIAMS, IN HIS CAPACITY
AS PRESIDENT OF THE SENATE OF
THE COMMONWEALTH OF KENTUCKY ;
JODY RICHARDS, IN HIS CAPACITY AS
SPEAKER OF THE HOUSE OF
APPELLANTS
REPRESENTATIVES OF THE
COMMONWEALTH OF KENTUCKY;
KENTUCKY RETIREMENT SYSTEMS,
BOARD OF TRUSTEES ; AND
COMMONWEALTH OF KENTUCKY,
DEPARTMENT OF THE TREASURY EX
REL. JONATHAN MILLER
AND
2005-SC-000049-TG
STEVE NUNN; AND JIM WAYNE
V.
APPELLEES
APPELLANTS
TRANSFER FROM THE COURT OF APPEALS
2005-CA-109
FRANKLIN CIRCUIT COURT NO. 04-CI-719
COMMONWEALTH OF KENTUCKY EX
REL. GOVERNOR ERNIE FLETCHER;
ROBBIE RUDOLPH, COMMONWEALTH
OF KENTUCKY, SECRETARY OF
FINANCE & ADMINISTRATION ;
GREGORY D . STUMBO,
COMMONWEALTH OF KENTUCKY,
ATTORNEY GENERAL; JONATHAN
MILLER, COMMONWEALTH OF
KENTUCKY, STATE TREASURER;
DAVID WILLIAMS, COMMONWEALTH
OF KENTUCKY, SENATE PRESIDENT ;
JODY RICHARDS, COMMONWEALTH
OF KENTUCKY, HOUSE SPEAKER;
COMMON CAUSE OF KENTUCKY AND
RICHARD BELILES ; KENTUCKY
EMPLOYEES RETIREMENT SYSTEMS,
BOARD OF TRUSTEES ; HARRY
MOBERLY, REPRESENTATIVE, IN HIS
OFFICIAL CAPACITY ; JIM CALLAHAN,
REPRESENTATIVE, IN HIS OFFICIAL
CAPACITY ; AND JOE BARROWS,
REPRESENTATIVE, IN HIS OFFICIAL
CAPACITY
APPELLEES
AND
2005-SC-000050-TG
COMMONWEALTH OF KENTUCKY,
DEPARTMENT OF THE TREASURY,
ACTING THROUGH THE TREASURER
OF THE COMMONWEALTH, JONATHAN
MILLER
V.
APPELLANTS
TRANSFER FROM THE COURT OF APPEALS
2005-CA-107
FRANKLIN CIRCUIT COURT NO. 04-CI-719
COMMONWEALTH OF KENTUCKY,
OFFICE OF THE ATTORNEY GENERAL
EX REL. GREGORY D . STUMBO ;
COMMONWEALTH OF KENTUCKY,
OFFICE OF THE GOVERNOR EX REL.
ERNIE FLETCHER; COMMONWEALTH
OF KENTUCKY, FINANCE AND
ADMINISTRATION CABINET EX REL.
ROBBIE RUDOLPH ; DAVID WILLIAMS,
IN HIS OFFICIAL CAPACITY AS
PRESIDENT OF THE SENATE; JODY
RICHARDS, IN HIS OFFICIAL CAPACITY
AS SPEAKER OF THE HOUSE OF
REPRESENTATIVES ; STEVE NUNN,
REPRESENTATIVE ; JIM WAYNE,
REPRESENTATIVE ; COMMON CAUSE
OF KENTUCKY AND RICHARD BELILES ;
KENTUCKY RETIREMENT SYSTEMS,
BOARD OF TRUSTEES; HARRY
MOVERLY, REPRESENTATIVE ; JIM
CALLAHAN, REPRESENTATIVE ; AND
JOE BARROWS, REPRESENTATIVE
APPELANTS
OPINION BY CHIEF JUSTICE LAMBERT CONCURRING IN PART AND
DISSENTING IN PART
The power of the purse is the most potent assignment of power in our
Constitution ; for it provides the resources upon which all others subsist.' In this respect
the power of the purse is akin to freedom of speech protected by the First Amendment,
which is the most fundamental of all rights because freedom of speech is at the means
by which all other constitutional rights are exercised .2 For example, the right to exercise
one's religion depends upon the right to speak freely. Likewise, the making of war,
imprisoning of society's miscreants, and adjudicating cases and controversies - to
name but a few - cannot be performed without the use of resources that reach the
executive and judicial branches by way of legislative appropriations . And because of its
potency, the power to withhold the purse has the ability, if untamed, to bring the other
branches of government to their knees by depriving them of essential funds to carry out
their constitutional mandates .
That is what this case is about: the power of the purse as articulated in
Section 230 of the Constitution of Kentucky. Section 230 says that "[n]o money shall be
drawn from the State Treasury, except in pursuance of appropriations made by law."
But while Section 230 is at the heart of this case, it is not the only constitutional section
implicated or necessary for proper resolution . For example, the separation of powers
provisions3 are also in play in a number of different ways, not least of which is the
potential to use the appropriations clause to control the executive and judicial branches
of government. Practically, for the everyday Kentuckian, what is at stake is government
itself . Without funds elections cannot be held, the Kentucky State Police cannot be
'The Federalist No . 58, at 356, 359 (James Madison) (Clinton Rossiter ed. 1961)
(calling the power of the purse "the most complete and effectual weapon").
2 E De Jonge v. Oregon , 299 U .S. 353, 365, 57 S. Ct. 255, 261, 81 L. Ed. 278 (1937)
.,
.g
("Therein lies the security of the Republic, the very foundation of constitutional
government.") .
I KY CONST . §§ 27 and 28.
called upon to serve and protect, there will be no reading, writing, or arithmetic
instruction in public schools, and government will shut down. This is not merely a
parade of horribles, but a real and natural consequence of omitted funding .
The majority begins its analysis of the appropriations power by citing
Justice Hugo Black for the proposition that "'Congress shall make no law' means
Congress shall make no law." Applying that simple analysis to the language of Section
230, the majority asserts that a constitutional section means precisely what it says. But
what the majority fails to acknowledge is that relatively no one agrees with Justice Black
on this issue, and certainly no other Justice of the United States Supreme Court in the
entire twentieth or twenty-first centuries agrees . And even Justice Black himself
cannot be considered an absolutist in the truest senses because he upheld the
criminalization of burning the American flag, laws against picketing,' and prohibitions
on wearing an armband to protest the Vietnam War.$ Perhaps Justice O'Connor said it
best: "The protections afforded by the First Amendment, however, are not absolute, and
we have long recognized that the government may regulate certain categories of
expression consistent with the Constitution ."9
Steven Gey, The Case Against Post-Modern Censorship Theory, 145 U . Pa . L. Rev.
193 (1996).
5 See RODNEY SMOLLA, FREE SPEECH IN AN OPEN SOCIETY, 24 (1992) ; see also Patricia R.
Stembridge, Note, Adjusting Absolutism : First Amendment Protection for the Fringe, 80
B .U .L. Rev. 907 (2000) .
6 Street v. New York, 394 U .S . 576, 610, 89 S. Ct. 1354, 22 L . Ed . 2d 572 (1969).
NLRB v. Fruit & Vegetable Packers & Warehousmen , 377 U .S . 58, 84 S. Ct. 1063, 12
L. Ed . 2d 129 (1964) (Black, J ., concurring).
' Tinker v . Des Moines Indep. Cmty . Sch. Dist. , 393 U.S . 503, 517, 89 S . Ct . 733, 21 L.
Ed. 2d 731 (1969) .
See Virginia v. Black , 538 U.S . 343, 360, 123 S. Ct. 1536, 1548, 155 L. Ed. 2d 535
(2003) .
4
If one applied Justice Black's quasi-absolutist views, all laws against
defamation, sexual harassment, threats of violence, and obscenity, and all laws
regulating campaigns, corporate reporting, attorney advertisements and other
commercial speech (just to name a few) would be stricken from the books as violative
of the First Amendment . But no one agrees with that. Therefore, the views of Justice
Black on the First Amendment have little to do with our analysis of Section 230. Only if
the majority adopted an absolutist view of Section 230, which it does not, would the
Justice Black quotation have persuasive effect.
Thus, while the majority tips its hat to an absolute standard it retreats
when that standard becomes untenable . In retreat, the majority cleverly holds that
when state statutes mandate spending, or when the federal Supremacy Clause"
requires spending, or when other constitutional sections so require a de facto
appropriation is made, dispensing with Section 230 . And to a certain extent I agree.
Let me first set out the situations with which I agree and then those with which I
disagree . First, there are two types of statutes . One tells the treasurer to pay for
services, and the other tells the treasurer how much to pay for services . Only the latter
kind of statute can be truly deemed an appropriation . The majority opinion states it
thusly: "Only those statutes specifically mandating that payments or contributions be
made can be interpreted as self-executing appropriations . A mandated appropriation
cannot be inferred from the mere existence of an unfunded statute." In other words, the
statute that calls for a $50 payment to the dog-catcher is an appropriation, but the
statute that merely calls for the dog-catcher to be paid is not.
'° U .S . CONST .
art . VI, cl . 2.
I also agree with the majority's analysis of the federal Supremacy Clause .
It states that "[t]he Supremacy Clause . . . requires compliance with any federal
mandates made in pursuance of the United States Constitution, notwithstanding
Section 230 of the Constitution of Kentucky. . . . the Treasurer must fund such
mandates." It couldn't have been said better .
However, I disagree with the analysis of funding required by various
constitutional sections. Before explaining that disagreement I pause to note that while I
agree with the result, I strenuously disagree with the reasoning to that result . And, as in
most aspects of life, the reasoning is important. In this case, it is particularly important
because when one accepts the notion that Section 230 is not to be read in an absolute,
trump-all-other-sections-of-the-Constitution fashion, the analysis leads to a more
expansive ultimate result . Now, to the disagreement .
The majority says that all constitutional sections dealing with funding are
de facto appropriations . "In the absence of appropriations by the General Assembly,
the Treasurer must fund these constitutional mandates at no more than existing levels
until the General Assembly provides otherwise ." Aside, for now, from the utter lack of
authority for such a spending limit at "existing levels," there are a number of problems
otherwise. Essentially, there are four types of constitutional spending sections . First,
there are those that require the General Assembly to meet a constitutional standard of
spending. An example of this is Section 183, which states that "[t]he General Assembly
shall, by appropriate legislation, provide for an efficient system of common schools
throughout the State ." This section requires further action by the General Assembly
and gives no guidance as to the required amount of funding. A second type of
constitutional section does not call for the General Assembly to do anything, but
requires some amount of funding . Section 221, dealing with the militia, is an example
of this type. It states that that "the militia shall conform as nearly as practicable to the
. . . armies of the United States." This section does not call for action by the General
Assembly and does not give guidance as to the required funding . A third type is one
that requires the General Assembly to provide a determinable amount of funding, such
as Section 120. Section 120 deals with salaries for justices and judges, but specifically
calls for action by the General Assembly even though the amount is determinable .
Finally, there are those that do not call for the General Assembly to do anything, and by
their terms require a determinable amount of funding . An example of this type is
Section 96, which states that "[a]ll officers mentioned in Section 95 shall be paid for
their services by salary, and not otherwise ."
Only the fourth type of constitutional section can be truly regarded as an
appropriation . It is the only one that meets both requirements of a constitutional
appropriation, i .e ., that the General Assembly is not required to do anything more and
that the amount of money to be spent by the Treasurer is determinable . The other
three types of constitutional sections are not appropriations because they either require
further action by the General Assembly or they do not provide sufficient guidance as to
how much funding is required .
In effect, the majority interprets all of these sections to be appropriations,
thus creating a vast inconsistency with absolutism. But the majority fails to
acknowledge clear differences among the varying types of constitutional sections . I
agree with the majority that some constitutional sections can be properly interpreted as
appropriations, thus falling within the language of Section 230 . However, I disagree
with lumping them all together as one and the same . For instance, however desirable
the outcome, it cannot be said that Section 183 is an appropriation because it requires
the General Assembly to take further action and the amount is generally within its
discretion . A simple hypothetical is illustrative . When a catcher gives the curve-ball
sign to the pitcher, it is not a curve ball . It is a signal for a curve ball . Similarly, when
the constitution gives the "appropriation sign" to the General Assembly, it is not an
appropriation . It is a signal for an appropriation . Only the fourth type of constitutional
section, as discussed above and of which there are few, is an appropriation .
Furthermore, what the majority's analysis of constitutional sections leaves
behind the curtain is revealing, because it glosses over the sections that require action
by the General Assembly . Telling Dorothy to pay no attention to the man behind the
curtain did not change the fact that Oz had no resident wizard . By the same token,
glossing over the constitutional sections that require further action by the General
Assembly does not change the fact that not all sections can be honestly interpreted as
"appropriations made by law." An absolute interpretation of Section 230 would require
disregard of the plain language of numerous other constitutional sections that
specifically require action by the General Assembly. Disjoining the latter part of Section
183 ("provide for an efficient system of common schools") from its beginning ("The
General Assembly shall, by appropriate legislation, provide") is to disallow Section 183
to mean what it says. The responsibility to comply with Section 183 is squarely on the
General Assembly," and it is not a self-executing provision .
So, while I agree with the majority's conclusion that the Governor can
execute the requirements of the law as enunciated in (some) statutes, federal
mandates made in compliance of the United States Constitution by way of the
" See Rose v. Council for Better Educ., Inc., 790 S.W .2d 186 (Ky. 1989) .
9
Supremacy Clause, and (some) Kentucky constitutional provisions, I disagree that all
constitutional sections can be deemed to be appropriations without intellectual
legerdemain . In my view the majority has presented a weak rationale for allowing
executive spending for such things as education, and its rationale would not allow
spending for elections or the Kentucky State Police . Nevertheless, other rationale
achieve a similar, albeit more expansive, result with proper fidelity to the principle of
comprehensive constitutional construction .
Analogous situations in history and other jurisdictions provide ample
authority for unappropriated executive spending. The history of the appropriations
clause does not suggest that it was intended as a power of the legislature as much as it
was intended to ensure fiscal responsibility and accountability . 12 Justice Story noted
that this was "apparent upon the slightest examination . It is to secure regularity,
punctuality, and fidelity, in the disbursements of the public money . "'s Obviously, Justice
Story was commenting upon the appropriations clause in the federal constitution, but it
is clear that Section 230 of Kentucky's Constitution is derived from its federal
counterpart . 14 Furthermore, the question presented has been considered by other
jurisdictions, and in limited circumstances the appropriations power has given way to
other compelling interests when a strict adherence to its literal language would violate
'Z See J. Gregory Sidak, The President's Power of the Purse, 1989 Duke L .J . 1162
(1989), for a discussion of the history and meaning of the appropriations clause .
'3
J . Story, Commentaries on the Constitution of the United States § 681, at 486 (1833)
(R. Rotunda & J . Nowak eds . 1987) .
'4
KY Const . of 1792 at VIII, § 3 (appropriations clause follows the federal
appropriations clause verbatim) .
10
separation of powers . It has been said that the constitution is not a suicide pact," and
must be interpreted to further its purpose of supporting the endurance of a
representative republic . 16 Allowing the General Assembly to control the executive by
way of the appropriations clause strikes at the heart of the purpose of separation of
powers, especially in Kentucky where it is overwhelmingly expressed in Sections 27
and 28 of the Constitution . The logical extension of such an idea would be destruction
of government.
When the ink on the Constitution was barely dry, the President of the
Convention and the first President of the United States, George Washington, spent
unappropriated funds to suppress the Whisky Rebellion ." Nine years later President
Thomas Jefferson made perhaps the most important and controversial purchase in our
nascent nation's history: the Louisiana Territory . He purchased this territory from
France for $15 million "even though he had only received authorization from Congress
" See, e.g . , TerminieIlo v. Chicago , 337 U . S . 1, 37, 69 S . Ct . 894,
93 L . Ed . 2d 1131
(1949) (Vinson, C.J ., dissenting) ("The danger is that if the Court does not temper its
doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of
Rights into a suicide pact.") .
" See Higains v. Prater , 91 Ky. 6, 14 S.W . 910 (1890) (allowing imposition of a state tax
for the benefit of a non-common school even though the constitutional provision in
question stated that "any sum which may be hereafter raised in the state by taxation, or
otherwise, for purposes of education, shall be held inviolate, for the purpose of
sustaining a system of common schools."); see also Stone v. Pryor, 103 Ky. 645, 45
S.W . 1136 (1898) ("In construing this provision of the constitution . . . . the purpose
should be to ascertain the intent of the framers of the constitution and the people who
adopted it . . . . The object of construction, as applied to a constitutional provision, is to
give effect to the intent of the people adopting it. In arriving at this intent, we should look
to the history of the times, and examine the state of things existing when the
constitution was framed and adopted. And it is competent for us to look at
contemporary interpretation . . . ") (Waddle, J ., dissenting) ; In re Opinion of Judges of
Court of Appeals , 79 Ky. 621 (1881) ("it must be borne in mind that the constitution is to
be construed as a frame of government, and its interpretation result, if possible, in a
consistent whole") .
" Supra n .13 at 1178-81 .
. . . in the amount of $2 million for the acquisition of New Orleans or West Florida.""
More recently, the Supreme Judicial Court of Massachusetts was presented with the
propriety of similar unappropriated spending, this time by the judicial branch . In
O'Coins v. Treasurer of the County of Worcester ,'9 the court stated that a judge may
order unappropriated funds to be spent so that he may carry out the duties imposed
upon him by the constitution .2° In holding that the appropriations section of that state's
constitution was subservient to other constitutionally required mandates, the court noted
that "[i]t is not essential that there have been a prior appropriation to cover the
expenditure ."2' This holding is consistent with other jurisdictions that have been
presented with similar questions .
As shown above, a non-absolutist interpretation of the appropriations
clause is not novel in the least. And just as in the context of the First Amendment, we
are not confined to literalism when to so interpret would neither comport with the
purpose of the clause or its history, or the legitimate ends of government.
Constitutional interpretation must be upon the whole of the document, tempered by the
accumulation of historical occurrences and the wisdom gained from those accounts .
And what that history has taught is that -- to sustain the welfare of the people -- there
must be some practical application .
_Id . at 1248.
19 287 N.E .2d 608 (Mass. 1972) .
21
_Id. at 611-12 .
'-' Id. at 612.
'-2 Esc
., Morgan County Comm'n v. Powell , 293 So . 2d 830, 849 (Ala . 1974) ; Carroll v.
Tate , 274 A.2d 193, 197 (Pa. 1971) .
12
11
This is not to say that the Governor may infringe upon what is
constitutionally delegated to the legislative branch of government at will. Rather, such
an allowance only arises on the heels of failure of the General Assembly to either
appropriate funds that are necessary for the executive branch to faithfully execute the
laws23 or even to pass a statute that sets forth what shall happen in the event that
necessary appropriations are not made . What the Governor did here was not an
encroachment upon the appropriations power of the legislature in violation of separation
of powers ; the violation of separation of powers occurred when the legislature
encroached upon the functions of the executive by failing to appropriate funds
necessary for the Governor to perform his constitutional obligations . The response by
the Governor in adopting a spending plan was the only rational option .
So the principle by which the Governor may spend unappropriated funds
- those which are required by the constitution but may not be properly deemed
constitutional appropriations - is in the performance of his constitutional obligation to
see that the laws are faithfully executed. This result is consistent with the purpose,
history, and spirit of the appropriations clause; fulfillment of separation of powers
principles by not allowing the legislature to handcuff the other branches of government ;
and the role of government in promoting the advancement of a representative republic
to secure the liberty of the people .
So that leaves me in agreement with the majority's destination for the
most part, but disagreeing with its path . I agree that statutes directing payment of a
specific sum are properly considered appropriations pursuant to Section 230 of the
Constitution of Kentucky . I also agree that funding required by the Supremacy Clause
21
KY CONST . § 81 .
13
may be deemed appropriations pursuant to Section 230 . However, when it comes to
the constitutional sections I would go further and allow an executive spending plan .
The Governor clearly can spend to satisfy those constitutional sections that require any
spending because the General Assembly failed in its express duty to do so. As for the
constitutional sections that call for a determinable amount of funding, the Governor is
restricted to the determined amount. And as for the constitutional sections that require
undetermined funding, the Governor may spend whatever he deems appropriate,
subject to Section 2 of the Constitution of Kentucky. In coming to an appropriate
amount of funding for these uses, the Governor may look to prior legislative budgets.
However, contrary to the majority's contention, I find no authority that would require him
to so look to or be constrained by prior budgets. Obviously, spending consistent with
prior appropriations is not arbitrary or in violation of Section 2 .
Neither the majority nor I would adhere to a strict absolutist interpretation
of Section 230 . Therefore, our disagreement is only a matter of degree . Under the
majority view, the people of the Commonwealth will not be protected by the Kentucky
State Police, and more objectionably, the ballot box will be shut . In other words, the
General Assembly could prevent elections by refusing to pay the cost. By the majority
opinion, this unreasonable result will come to pass the next time the General Assembly
fails to enact appropriations . A more reasonable construction of Section 230 would
protect the legislative authority to enact appropriations, while at the same time
recognizing that the people's business must continue when the General Assembly
defaults in its constitutional duty to pass appropriations . Such an interpretation would
also permit two additional sources of executive spending.
First, it is important to recognize that the power to fund what is required by
the constitution includes the power to fund the necessary incidentals to those
functions . For instance, Section 74 states, among other things, that the Governor
shall receive compensation for his services . But included are necessary and proper
expenditures to effectuate the Governor's services, such as secretaries, advisors, state
police, etc. Similar common sense extensions have been recognized by this Court. For
example, in Kentucky Human Rights Commission v. Pendennis we held that implicit in
the power to make determinations was the power to investigate . Such expenditures
would not be allowed by the majority.
Second, the Governor always retains the right to meet genuine
emergencies, whether the General Assembly appropriates money for that purpose or
not .26 To some, this may seem to abrogate the powers of the legislature even when it
is not derelict in its constitutional duties to appropriate for legitimate purposes . Let me
attempt to assuage those fears. Genuine emergencies are exceedingly rare.
Destruction of a bridge by an earthquake would be a genuine emergency that
government must be able to confront with or without legislative appropriations for that
purpose. But responding to exceptionally high traffic on a bridge would not be such an
emergency. Astonishingly, the majority has specifically overruled Miller v.
Quertermous , which allowed the Governor to respond to colossal and immediate
emergencies . Section 230 cannot mean that in such a genuine emergency the
M'Culloch v. Maryland, 17 U .S . (4 Wheat .) 316, 4 L. Ed. 579 (1819) (allowing
establishment of National Bank even though it was not an enumerated power because
it was an appropriate means of exercising an expressly enumerated power) .
25
153 S.W.3d 784, 788-89 (Ky. 2004) . See also Strong v. Chandler, 70 S.W.3d 405
(Ky. 2002) .
26 See Miller v. Quertermous, 304 Ky . 733, 202 S .W .2d 389 (1947) .
15
24
Governor may only call the legislature back into special session, but be otherwise
impotent . Such an interpretation has the very real potential to lead to a cataclysmic
result .
In sum, I would allow the executive to spend in furtherance of five
categories . First, spending should be allowed to effectuate statutes that call for a
specified sum of money to be spent . Second, there should be spending in furtherance
of the federal Supremacy Clause. Third, spending to fulfill constitutional mandates
should be permitted . Fourth, there should be a common-sense extension for necessary
incidentals . And finally, the executive should have the power to meet genuine
emergencies that threaten the welfare of citizens of the Commonwealth .
Those who believe that this opinion allows too great an encroachment
upon power constitutionally assigned to the legislature should be reminded that there
are two remedies. The General Assembly may act in accordance with what is
contemplated by the constitution and the electorate and appropriate money to operate
the government. In the alternative, it may enact statutes that outline how the
government is to operate when the legislature is unable to pass appropriations bills .
The power to appropriate money is a power properly belonging to the legislature .
However, if it does not fulfill its constitutional duty, others must.
RENDERED : MAY 19, 2005
TO BE PUBLISHED
2005-SC-0046-TG
rufurhv
ERNIE FLETCHER, IN HIS OFFICIAL
CAPACITY AS GOVERNOR OF
KENTUCKY ; AND ROBBIE RUDOLPH, IN
HIS OFFICIAL CAPACITY AS
SECRETARY OF THE FINANCE AND
ADMINISTRATION CABINET
V.
TRANSFER FROM COURT OF APPEALS
2005-CA-108
FRANKLIN CIRCUIT COURT NO. 04-CI-719
COMMONWEALTH OF KENTUCKY,
OFFICE OF THE ATTORNEY GENERAL EX
REL. GREGORY D. STUMBO ; COMMON
CAUSE OF KENTUCKY, A NON-PROFIT,
NON-PARTISAN ORGANIZATION, BY ITS
CHAIRMAN RICHARD V. BELILES, AS A
KENTUCKY TAXPAYER; STEVE NUNN,
REPRESENTATIVE ; JIM WAYNE,
REPRESENTATIVE ; HARRY MOBERLY,
JR., IN HIS OFFICIAL CAPACITY AS
MEMBER OF THE HOUSE OF
REPRESENTATIVES OF THE
COMMONWEALTH OF KENTUCKY; JOE
BARROWS, IN HIS OFFICIAL CAPACITY
AS MEMBER OF THE HOUSE OF
REPRESENTATIVES OF THE
COMMONWEALTH OF KENTUCKY; JIM
CALLAHAN, IN HIS OFFICIAL CAPACITY
AS MEMBER OF THE HOUSE OF
REPRESENTATIVES OF THE
COMMONWEALTH OF KENTUCKY; DAVID
L. WILLIAMS, IN HIS CAPACITY AS
PRESIDENT OF THE SENATE OF THE
COMMONWEALTH OF KENTUCKY; JODY
RICHARDS, IN HIS CAPACITY AS
APPELLANTS
SPEAKER OF THE HOUSE OF
REPRESENTATIVES OF THE
COMMONWEALTH OF KENTUCKY;
KENTUCKY RETIREMENT SYSTEMS,
BOARD OF TRUSTEES; AND
COMMONWEALTH OF KENTUCKY,
DEPARTMENT OF THE TREASURY EX
REL. JONATHAN MILLER
AND
2005-SC-0049-TG
STEVE NUNN ; AND JIM WAYNE
V.
APPELLEES
APPELLANTS
TRANSFER FROM COURT OF APPEALS
2005-CA-109
FRANKLIN CIRCUIT COURT NO. 04-CI-719
COMMONWEALTH OF KENTUCKY EX
REL . GOVERNOR ERNIE FLETCHER;
ROBBIE RUDOLPH, COMMONWEALTH
OF KENTUCKY, SECRETARY OF
FINANCE & ADMINISTRATION ;
GREGORY D. STUMBO,
COMMONWEALTH OF KENTUCKY,
ATTORNEY GENERAL; JONATHAN
MILLER, COMMONWEALTH OF
KENTUCKY, STATE TREASURER ;
DAVID WILLIAMS, COMMONWEALTH
OF KENTUCKY, SENATE PRESIDENT ;
JODY RICHARDS, COMMONWEALTH
OF KENTUCKY, HOUSE SPEAKER;
COMMON CAUSE OF KENTUCKY AND
RICHARD BELILES ; KENTUCKY
EMPLOYEES RETIREMENT SYSTEMS,
BOARD OF TRUSTEES; HARRY
MOBERLY, REPRESENTATIVE, IN HIS
OFFICIAL CAPACITY ; JIM CALLAHAN,
REPRESENTATIVE, IN HIS OFFICIAL
CAPACITY ; AND JOE BARROWS,
REPRESENTATIVE, IN HIS OFFICIAL
CAPACITY
APPELLEES
AND
2005-SC-0050-TG
COMMONWEALTH OF KENTUCKY,
DEPARTMENT OF THE TREASURY,
ACTING THROUGH THE TREASURER
OF THE COMMONWEALTH, JONATHAN
MILLER
V
APPELLANT
TRANSFER FROM COURT OF APPEALS
2005-CA-107
FRANKLIN CIRCUIT COURT NO . 04-CI-719
COMMONWEALTH OF KENTUCKY,
OFFICE OF ATTORNEY GENERAL EX
REL . GREGORY D . STUMBO ;
COMMONWEALTH OF KENTUCKY,
OFFICE OF THE GOVERNOR EX REL.
ERNI E FLETCHER; COMMONWEALTH
OF KENTUCKY, FINANCE AND
ADMINISTRATION CABINET EX REL .
ROBBIE RUDOLPH ; DAVID WILLIAMS,
IN HIS OFFICIAL CAPACITY AS
PRESIDENT OF THE SENATE ; JODY
RICHARDS, IN HIS OFFICIAL CAPACITY
AS SPEAKER OF THE HOUSE OF
REPRESENTATIVES ; STEVE NUNN,
REPRESENTATIVE ; JIM WAYNE,
REPRESENTATIVE ; COMMON CAUSE
OF KENTUCKY AND RICHARD BELILES ;
KENTUCKY RETIREMENT SYSTEMS,
BOARD OF TRUSTEES ; HARRY
MOBERLY, REPRESENTATIVE ; JIM
CALLAHAN, REPRESENTATIVE; AND
JOE BARROWS, REPRESENTATIVE
OPINION BY JUSTICE KELLER
CONCURRING IN PART AND DISSENTING IN PART
APPELLEES
While I concur in the majority opinion insofar as it reads Section 230 of the
Kentucky Constitution as strictly limiting expenditures from the state treasury to
instances where appropriations have been made by law, I must respectfully dissent
because the majority opinion construes so-called federal mandates and state statutory
and constitutional directives to implement programs by passing further legislation as
"appropriations" sufficient to allow payment from the state treasury .
The majority opinion cites a variety of federal statutory schemes that allegedly
require the states, including Kentucky, to spend money,' describing these as "federal
mandates." The majority opinion claims that it does not directly address the issue of
federal mandates, but it nonetheless claims that the Supremacy Clause of the United
States Constitution could require that any such mandate be funded regardless of
Section 230 of the Kentucky Constitution. But any actual mandate that the states enact
a regulatory scheme, and thus spend money, is unconstitutional . As the United States
Supreme Court noted in New York v. United States , 2 "the Framers explicitly chose a
Constitution that confers upon Congress the power to regulate individuals, not States . '3
In New York, the Court was faced with the question of the constitutionality of
parts of a federal regulatory scheme aimed at controlling low-level radioactive waste.
The Court upheld the provisions pairing the right to choose whether to comply with an
incentive to comply . The Court noted that conditions may be attached to the receipt of
' See, e.g . , 29 U .S .C . § 651 et seq. (Occupational Safety and Health Act of
1970); 30 U .S .C . § 1201 et seq. (Surface Mining Control and Reclamation Act of 1977) ;
33 U .S .C. § 1251 et seq. (Clean Water Act); 42 U.S .C . § 6901 et seq. (Resource
Conservation and Recovery Act of 1976) ; 42 U .S .C. § 7401 et seq. (Clean Air Act).
2 505 U .S . 144, 112 S.Ct . 2408 (1992).
3 Id . at 166, 112 S.Ct. at 2423 .
federal fund s .4 The Court also noted : "[W]here Congress has the authority to regulate
private activity under the Commerce Clause, we have recognized Congress's power to
offer States the choice of regulating that activity according to federal standards or
having state law pre-empted by federal regulation .,,5 The Court cited, either directly or
by citing to cases addressing the statutes, the Surface Mining Control and Reclamation
Act, the Occupational Safety and Health Act of 1970, the Resource Conservation and
Recovery Act of 1976, the Clean Water Act-all of which the majority opinion in the
present case cites and describes as federal mandates-as examples of this second
'
type of allowable incentive programs, or "program[s] of cooperative federalism. , 6 In
upholding these incentive approaches, the Court observed that compliance by the
states was voluntary :
By either of these methods, as by any other
permissible method of encouraging a State to conform to
federal policy choices, the residents of the State retain the
ultimate decision as to whether or not the State will comply.
If a State's citizens view federal policy as sufficiently contrary
to local interests, they may elect to decline a federal grant. If
state residents would prefer their government to devote its
attention and resources to problems other than those
deemed important by Congress, they may choose to have
the Federal Government rather than the State bear the
expense of a federally mandated regulatory program, and
they may continue to supplement that program to the extent
state law is not pre-empted . Where Congress encourages
state regulation rather than compelling it, state governments
remain responsive to the local electorate's preferences ; state
4 Id . at 167, 112 S .Ct at 2423 .
5 Id . at 167, 112 S.Ct. at 2424 .
6 Id . (quoting Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452
U .S ., 264, 289, 101 S .Ct. 2352, 2366 (1981)) .
officials remain accountable to the people.'
The Court distinguished between the true "incentive" provisions of the scheme
and the outright commands to regulate when it addressed the provisions requiring the
states either to take ownership of radioactive waste or to regulate according to the
instructions of Congress . The Court declared those provisions unconstitutional as
violating the Tenth Amendment, noting succinctly: "The Federal Government may not
compel the States to enact or administer a federal regulatory program ."8
The Court revisited the issue of federal mandates in Printz v. United States9
when addressing provisions of the Brady Handgun Violence Prevention Act that
imposed requirements on state law enforcement officers. Again the Court struck down
the provisions, stating "the Federal Government may not compel the States to
implement, by legislation or executive action, federal regulatory programs."'° The Court
concluded by expanding its holding in New York:
We held in New York that Congress cannot compel the
States to enact or enforce a federal regulatory program.
Today we hold that Congress cannot circumvent that
prohibition by conscripting the State's officers directly. The
Federal Government may neither issue directives requiring
the States to address particular problems, nor command the
States' officers, or those of their political subdivisions, to
administer or enforce a federal regulatory program. It
matters not whether policymaking is involved, and no caseId . at 168, 112 S .Ct. at 2424 (emphasis added); see also _id . 167, 112 S .Ct. at
2424 . ("This is not to say that Congress lacks the ability to encourage a State to
regulate in a particular way, or that Congress may not hold out incentives to the States
as a method of influencing a State's policy choices. Our cases have identified a variety
of methods, short of outright coercion, by which Congress may urge a State to adopt a
legislative program consistent with federal interests .").
8 Id . at 188, 112 S .Ct., at 2435.
9
521 U .S . 898, 117 S.Ct . 2365 (1997).
10 Id . at 925, 117 S .Ct. at 2380.
by-case weighing of the burdens or benefits is necessary;
such commands are fundamentally incompatible with our
constitutional system of dual sovereignty ."
While the full effect of these cases is unknown at this time, 12 surely a "mandate"
from the federal government that requires a state to spend money from its treasury is
the sort of improper impingement on state sovereignty that the Court rejected in New
York and Printz. And as the Court noted in New York, many so-called "mandates,"
including those cited in the majority opinion in this case, are actually just incentive
programs that allow voluntary compliance by the states. By failing to pass a budget or
to enact separate appropriations to fund participation in those programs, the General
Assembly is choosing, albeit by default, not to participate . There is no federal
requirement, operating through the Supremacy Clause or otherwise, that requires an
expenditure of state funds for these programs. And there is little question that if actual
federal mandates do exist, they are not binding, and certainly do not supersede Section
230 of the Kentucky Constitution, because they are unconstitutional as a violation of the
Tenth Amendment .
The majority also claims that there are a variety of Kentucky statutory and
constitutional provisions that contain or constitute appropriations independent of the
appropriations normally found in the biennial budget bill, but, in my opinion, there is
simply no support for such a reading in the text. For example, the majority finds an
" Id . at 935, 117 S .Ct at 2384 .
12
See Vicki C . Jackson, Federalism and the Uses and Limits of Law: Printz and
Principle, 111 HARV. L. REV . 2180, 2205-06 (1998) ("The breadth of Printz's effect on
other federal statutes is unclear, although a small number of statutes are clearly invalid
under Printz ."); see also Printz , 521 U .S. at 936, 117 S.Ct. at 2385 (O'Connor, J.,
concurring) ("[T]he Court appropriately refrains from deciding whether other purely
inherent appropriation in KRS 18A.15(2), which provides that "[a]ppropriations shall be
made from the general expenditure fund to the cabinet to meet the estimated pro rata
share of the cost of administering the provisions of this chapter . . . ." But the language
"appropriations shall be made" does not constitute an appropriation, i.e, the "setting
aside [of] a sum of money for a public purpose" ; 13 rather, it is a command for
appropriations to be made in the future, e.g, in a budget bill . This language is not
sufficient to meet the requirements of Section 230, which allows payment only after an
appropriation by law has been made .
As an example of this type of inherent appropriation in the Constitution, the
majority points to Section 254, which provides that "[t]he Commonwealth shall maintain
control of the discipline, and provide for all supplies, and for the sanitary conditions of
the convicts . . . ." But again, the provision contains no setting aside of money for this
purpose and no command that the state make a payment. Section 254 only contains
the command that the Commonwealth shall maintain discipline of and provide for the
needs of prisoners . While there is little doubt that governments have some implied
powers, 14 such implications must fail in the face of express constitutional and statutory
provisions to the contrary . Were Section 245 of the Kentucky Constitution to exist in a
vacuum, then the requirement that the Commonwealth provide for prisoners would
ministerial reporting requirements imposed by Congress on state and local authorities
pursuant to its Commerce Clause powers are similarly invalid .") .
13
BLACK'S LAW DICTIONARY 110 (8th ed . 2004) ; see also BRYAN A. GARNER, A
DICTIONARY OF MODERN LEGAL USAGE 71 (2d ed . 1995) (defining "appropriation" in part
as "a public body's act of voting a sum of money for any of various public purposes") .
14 THE
FEDERALIST No. 44, at 290 (J. Madison) (Robert Scigliano ed . 2000) ("No
axiom is more clearly established in law, or in reason, than that wherever the end is
required, the means are authorized ; wherever a general power to do a thing is given,
every particular power necessary for doing it is included .").
surely imply the means to do so, i .e., the power to pay for guards, supplies, etc. But we
must read Section 245, and the various other similar provisions cited by the majority, in
light of Section 230, which eliminates any implied power to spend money from the state
treasury absent an express "appropriation made by law . " 1 5
The majority also cites Section 183, which provides for the establishment and
maintenance of public schools : "The General Assembly shall, by appropriate legislation ,
provide for an efficient system of common schools throughout the State . . .
."16
The
majority interprets this as sufficient to constitute an appropriation for the purposes of
Section 230, but this section simply does not direct that costs of establishing and
maintaining the public schools be paid . In fact, the very language of Section 183
implies that the means for establishing and maintaining the public schools, which
presumably includes payment for services, supplies, et cetera, are to be provided
through other legislative action of the General Assembly. Again, this is a command to
the General Assembly to do something; it is clearly not an appropriation . Reading an
"appropriation" into this language contradicts the clear command of Section 230 that
"[n]o money shall be drawn from the State Treasury, except in pursuance of
appropriations made by law. . . ."
By requiring that spending be allowed for those constitutional and statutory
provisions at the level previously provided for in the expired biennial budget, the
majority, in effect, reads into these statutory and constitutional provisions a holdover
provision analogous to the continuation budget statutory scheme that was in place from
15
KY. CONST.
16
(Emphasis added .)
§ 230 .
1918 until 1983 when it was repealed by the General Assembly." But the statutory
holdover provisions were repealed, and there is no actual constitutional provision
applicable to the constitutional provisions that command certain programs to be
enacted . This is most troubling because if the majority opinion is correct in inferring
such a holdover capacity, then how can the General Assembly ever decrease the
spending for such programs if a holdover provision is an inherent aspect of those
constitutional provisions that impose a duty on the General Assembly? Either the
command to make the expenditure is there, or it is not. And either the command to
maintain spending levels at their previous level is there, or it is not. In the case of
provisions like Sections 183 and 254, neither command is present .
This is not to say that these are the only statutory and constitutional provisions
that require an end without providing for appropriations to supply that end . I simply offer
these provisions as examples of the overreaching in the majority opinion . Section 230's
command that "[n]o money shall be drawn from the State Treasury, except in pursuance
of appropriations made by law" is a limitation on any implied powers that the Governor
or the General Assembly might try to justify with reference to other sections of the
Constitution .
Upholding the Constitution, be it State or Federal, is not merely the responsibility
of the Judiciary; it is the duty of all three branches to carry out those fundamental
mandates . Where the Constitution commands the General Assembly to do something,
e .g., °[i]t shall be the duty of the General Assembly to provide by law, as soon as
practicable, for the establishment and maintenance of an institution or institutions for the
" See KRS 45.120 (repealed 1983 by 1982 Ky. Acts, ch . 450, § 79).
-1 0-
detention, correction, instruction and reformation of all persons under the age of
eighteen years, convicted of such felonies and such misdemeanors as may be
designated by law, 08 it is the General Assembly's duty to follow that command by
enacting positive law, including laws that appropriate funding, if necessary, for carryingout its enactments . It is not the prerogative of the Executive to pick up the slack by
following the command in the General Assembly's stead, and it is especially not the
Judiciary's prerogative to order the General Assembly to follow the command .' 9
Admittedly, our Constitution contains various checks and balances among the
three branches . For example, the Judiciary has the power to review and hold void
unconstitutional laws ; the General Assembly has the power to impeach civil officers ;
and the Governor has the power to veto legislation and to convene the General
Assembly for special sessions . But our Constitution contains explicit separation of
powers provisions .2° As such, the power to remedy a failure by one branch of
government to perform a duty explicitly assigned to it by our Constitution rarely lies in
one of the other branches. Instead, the remedy for such a failure to act lies in the
1$ KY. CONST. § 252 .
See THE FEDERALIST No . 78, at 465 (Alexander Hamilton) (Clinton Rossiter ed .,
("Whoever attentively considers the different departments of power must perceive
that, in a government in which they are separated from each other, the judiciary, from
the nature of its functions, will always be the least dangerous to the political rights of the
Constitution; because it will be least in a capacity to annoy or injure them . . . . The
judiciary . . . has no influence over either the sword or the purse .").
2°
See KY. CONST. § 27 ("The powers of the government of the Commonwealth of
Kentucky shall be divided into three distinct departments, and each of them be confined
to a separate body of magistracy, to wit: Those which are legislative, to one ; those
which are executive, to another; and those which are judicial, to another ."); id . § 28 ("No
person or collection of persons, being of one of those departments, shall exercise any
power properly belonging to either of the others, except in the instances hereinafter
expressly directed or permitted .").
1961)
'9
people themselves . If the various legislators are faced with the prospect of closing the
schooIS21 or of closing the prisons ,22 along with the attendant impact of those closings
on their constituencies, all due to a lack of funding caused by the failure to enact a
budget or to enact appropriations, I believe that they will carry out the duties imposed on
them by those constitutional provisions . If I am wrong and the legislators do not pay
heed to those duties, then their constituents will likely exact a steep price at the polls at
the next election . It is the people from whom all the power of this Commonwealth
derives, and in the end they are the ultimate check on each branch of our government .
Scott, J ., joins this opinion, concurring in part and dissenting in part .
21
See KY. CONST . § 183 (requiring that "[t]he General Assembly shall,
appropriate legislation , provide for an efficient system of common schools throughout
the State," (emphasis added), without directing that costs of establishing and running
those schools be paid).
22
See KY. CONST. § 254 (requiring that "[t]he Commonwealth shall maintain
control of the discipline, and provide for all supplies, and for the sanitary conditions of
the convicts" without providing for payment of those expenses) .
23
KY. CONST. § 4 ("All power is inherent in the people, and all free governments
are founded on their authority and instituted for their peace, safety, happiness, and the
protection of property. For the advancement of these ends, they have at all times an
inalienable and indefeasible right to alter, reform or abolish their government in such a
manner as they may deem proper.") .
- 1 2-
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