Opinion of the Court by Justice COOPER.
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 seq. 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 oddnumbered 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-numbered-year 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
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 121A.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.
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 48.100(1) 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 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
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:
The Public Services Continuation Plan proposed to appropriate exactly $20,739,752,600 to the executive department for its operations during fiscal year 2004-05 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,
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 HeraldLeader 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
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, 276, 124 S.Ct. 1769, 1776, 158 L.Ed.2d 546 (2004). See, e.g., Philpot 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. Goodloe, 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 any appropriations from the treasury.
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:
Section 28 provides:
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.
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, 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.g., 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
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 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 Com'n ex rel. Prather v. Brown ["L.R.C. v. Brown"], 664 S.W.2d 907 (Ky.1984), that:
Id. at 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—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,
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.
Hugo Black, A Constitutional Faith 45 (1969), referring, of course, to the First Amendment of the United States Constitution. That simple textual interpretation mirrors 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).
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:
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
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 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. . . .").
Joseph Story, 2 Commentaries on the Constitution of the United States § 1348 (3d ed. 1858).
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
V. STATUTORY, CONSTITUTIONAL AND FEDERAL MANDATES.
KRS 41.110 provides:
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, 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 bill. E.g., 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, 108 Cal.App.4th 197, 133 Cal.Rptr.2d 691, 699-700 (2002), reversed in part on other grounds by White v. Davis, 30 Cal.4th 528, 133 Cal.Rptr.2d 648, 68 P.3d 74 (2003).
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 121A.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
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:
There are other constitutional mandates that can only be implemented by the expenditure of funds from the treasury. These are:
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 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. E.g., 29 U.S.C. § 651, et seq. (Occupational Safety and
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.
VI. 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 "quasi-continuation budget."
From 1918 until 1983, there existed statutory authority for a continuation budget in Kentucky, subject to substantial executive department leeway, viz:
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.").
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. Sterling 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
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 of the Commonwealth of 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 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 II, Sections 1 and 3 of the United States Constitution. As Justice Black wrote in the lead opinion in the Youngstown case:
Youngstown, 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 Treasurer should endorse the warrant as bearing five percent interest from the date of its presentation. The
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.
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
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:
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 appropriated. Cf. Brown v. Barkley, 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
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 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 employees
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.
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.
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.
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 provisions
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.
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
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
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,
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 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.
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.
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.
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 laws
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 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
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.
Second, the Governor always retains the right to meet genuine emergencies, whether the General Assembly appropriates money for that purpose or not.
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.
Opinion by Justice KELLER, concurring in part and dissenting in part.
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 socalled 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,
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 federal funds.
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."
The Court revisited the issue of federal mandates in Printz v. United States
While the full effect of these cases is unknown at this time,
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 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";
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
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...."
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 1918 until 1983 when it was repealed by the General Assembly.
This is not to say that these are the only statutory and constitutional provisions that
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 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,"
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.
SCOTT, J., joins this opinion, concurring in part and dissenting in part.