Fletcher v. Commonwealth

al; Miller, Jonathan Commonwealth FLETCHER, Ernie in His Kentucky, Official Treasurer; Ca of State David pacity Kentucky; as Governor of and Williams, Commonwealth of Ken Rudolph, in Robbie His Official tucky, President; Jody Ca Senate Rich pacity Secretary as ards, of Finance and Kentucky, Commonwealth of Cabinet, Appellants, Administration Speaker; House Common Cause of Kentucky Beliles; and Richard Ken v. tucky Employees Systems, Retirement Kentucky, COMMONWEALTH of Of Trustees; Harry Moberly, Board of Attorney fice of General ex rel. Representative, Capaci in His Official Gregory Stumbo; D. Common Cause ty; Callahan, Representative, Jim Kentucky, Non-Profit, of Non-Par Capacity; His Official and Joe Bar Organization, by tisan Its Chairman rows, Representative, in His Official Beliles, Kentucky Richard V. as Capacity, Appellees, Taxpayer; Nunn, Representa Steve tive; Wayne, Representative; Jim Harry Moberly, Jr., in His Official Ca Kentucky, Depart Commonwealth Of pacity as Member of House of Treasury, Acting Through ment of the Representatives of Common Commonwealth, the Treasurer of the Kentucky; Barrows, wealth of Joe Miller, Appellant, Jonathan Capacity

His Official as Member of v. Representatives the House of of the Kentucky, Commonwealth of Office of Kentucky; Commonwealth of Jim Gregory Attorney Ex rel. D. Callahan, Capacity His Official as Stumbo; Kentucky, Commonwealth of Representa Member House of Office of the ex rel. Ernie Governor tives of the Commonwealth of Ken Fletcher; Commonwealth of Ken Williams, tucky; David L. in His Ca tucky, Finance and Administration pacity as President Senate of Rudolph; Cabinet ex rel. Robbie Kentucky; Commonwealth Williams, Capac David in His Official Jody Richards, Capacity in His as ity Senate; Jody as President of the Speaker Representa House Richards, Capacity in His Official tives of Commonwealth of Ken Speaker Representa House of tucky; Kentucky Systems, Retirement tives; Nunn, Representative; Steve Trustees; Board and Common Wayne, Representative; Jim Common Kentucky, Department wealth Kentucky Cause of and Richard Be Treasury Miller, ex rel. Jonathan liles; Kentucky Systems, Retirement Appellees, Trustees; Harry Moberly, Board of Representative; Callahan, Repre Jim Nunn; Wayne, Steve and Jim sentative; Barrows, Represen and Joe Appellants, tative, Appellees. 2005-SC-0046-TG, No. 2005-SC- Kentucky 0049-TG, Commonwealth Of ex rel. 2005-SC-0050-TG. Fletcher; Governor Ernie Robbie Ru Kentucky. Court Supreme dolph, Kentucky, Commonwealth of May Secretary of Finance & Administra tion; Gregory Stumbo, D. Common Kentucky, Attorney

wealth of Gener (2005- Nunn; Wayne and Jim

lants Steve SC-0049-TG). Rice, Reed, Hale, Courtney L.

David J. Louisville, Vice, & Coun- Weitkamp, Schell of Ken- Appellant Commonwealth sel Treasury, Acting Department of the tucky, of the Common- Through the Treasurer (2005-SC-0050- wealth, Miller Jonathan TG). Johnstone, the Attor- Office of David

C. Jones, General, Robert S. Assistant ney General, Attorney Attorney Office of the General, Whites, Butler Assistant Pierce General, M. Attorney Gra- Deputy Janet General, ham, Attorney Office of Assistant General, Appellate Divi- Attorney Criminal Frankfort, sion, for Appellee Counsel Kentucky, of Office of Commonwealth rel. D. Attorney Gregory General ex Stum- (2005-SC-0046-TG, 2005-SC-0049-TG bo 2005-SC-0050-TG). Beliles, Prospect, Counsel for Richard V. A Kentucky, Common Cause of Appellee Non-Profit, Organization, Non-Partisan Beliles, as a by Its Chairman Richard V. (2005-SC-0046-TG, Kentucky Taxpayer and 2005-SC-0050- 2005-SC-0049-TG TG). Roach, Governor, John C. Office Baker, Glasgow, Phillip J. Walter A. Frankfort, Holliday Hopkins, Sheryl M. G. Frankfort, Appel- for Shepherd, Counsel Snyder, Kaplan, David Seth Patrick Jason Nunn, Representative; and Jim lees Steve LLC, Renzelmann, Frost, Brown, Todd, (2005-SC-0046-TG Representative Wayne, Louisville, Ernie Appellants Counsel for 2005-SC-0050-TG). Fletcher, Capacity in His Official as Gover- Kentucky; Rudolph, nor of and Robbie Cetrulo, Lexington Donald P. Financial Capacity Secretary His Official as Firkins, Center, Assis- Lexington, Timothy Finance and Administration Cabinet General, Gillig, S. Attorney tant John (2005-SC-0046-TG); Appellees for Frankfort, Harry Appellees for Counsel Kentucky of ex Gover- Commonwealth rel. Jr.; Barrows; Moberly, and Jim Cal- Joe Fletcher; Rudolph, nor Ernie and Robbie lahan, as Capacities Mem- Their Official Kentucky, Secretary of of Commonwealth of Representatives of bers of House (2005-SC-0049- & Administration Finance Jody Kentucky; the Commonwealth 2005-SC-0050-TG). TG and Richards, Capacity Speaker of in His Baker, of the Com- Phillip Representatives House Glasgow, Walter A. J. (2005-SC-0046- Kentucky Shepherd, Frankfort, Appel- Counsel for monwealth TG, 2005-SC-0049-TG and 2005-SC- pay revenues sufficient to the debts and 0050-TG). expenses government. See generally Prop. Bldg. Comm’n, Dalton v. State & Hatter, Frankfort, Harland C. Em- Paul 347-51 (Ky.1957); S.W.2d State Salamanca, manuel Lexington, Counsel Budget Lebus, Ky. 700, Comm’n Williams, Appellee David L. Capaci- His (1932). S.W.2d 965 statutory The first ty as President of the Senate of the Com- provisions describing a budgeting process (2005-SC-0046- Kentucky monwealth of compiled were enacted in 1918 and at KS TG, 2005-SC-0049-TG and 2005-SC- Acts, ch. seq. et 12. The 0050-TG). present version, Chapter KRS is a Ann Allen, Lizabeth Tully, James D. comprehensive that describes the scheme Stoll, Park, LLP, Keenon & Lexington, J. process enacting preparing “bud- Kentucky Eric Wampler, Sys- Retirement get bill” revenues tems, West, Frankfort, Perimeter Park appropriated Commonwealth are for the for Appellee Kentucky Counsel Retire- operation departments gov- three (2005- Systems, ment Board Trustees ernment during ensuing biennium. SC-0046-TG, 2005-SC-0049-TG and 48.300(1). provisions budget of a KRS All 2005-SC-0050-TG). expire bill conclusion of the second the year fiscal the of biennium. KRS Hale, Jr., David J. Ridley M. Sandidge, 48.310(1). budget If a bill is enacted at an Reed, Weitkamp, Vice, Louisville, Schell & session, extraordinary Ky. § Const. its Counsel Appellee for Commonwealth of provisions “July year on the expire of Kentucky, Department Treasury ex year which regu- the next even-numbered (2005-SC-0046-TG rel. Jonathan Miller 48.310(1). place.” lar session KRS takes 2005-SC-0049-TG). Assembly Prior to the General met regular only sixty for legislative session Opinion of the Court Justice legislative days years. in even-numbered COOPER. (un- (unamended), §§ Const. presented The issue this appeal is amended). Necessarily, budget the bill for whether the Governor the Common- the next biennium was during enacted may wealth of Kentucky money order those sessions. Sections 36 and were drawn from the treasury state to fund the regu- amended 2000 to add an additional operations department the executive thirty days lar session of legislative odd- government if the General Assembly fails (as amended). years. numbered Id. How- to appropriate funds for that purpose. ever, because existing budget all bills ex- The issue arose when the General Assem- on pire July years, 1 of even-numbered the bly adjourned 14, 2004, April sine die on Assembly General has continued to ad- adopting without an department executive budget sixty-day during dress issues the budget bill for the 2004-06 biennium. even-numbered-year On sessions. three constitutions, e.g., Unlike some state a ten-year period, occasions within the Const, IV, 12(c), Cal. art. the Constitu- adjourned Assembly sixty-day General Kentucky tion of not require does a state regular enacting session without an execu- does, however, “budget.” It require department budget tive bill for the next any budget such occasion, 1994, balanced. That consti- biennium. On the first tutional requirement derives from Sections Governor Jones reconvened the General 49, 50, together Assembly extraordinary session, authorize into an require the Assembly during to raise which the members resolved their reject financing of the public budget enacted a intentions differences and bill regular During its 2003 the 2008 election. 1994-96 biennium. session, thirty-day session, Republi- At the regular for the 2002-04 bien budget bill enacted a can-controlled Senate and the Democratic- cam not fund election that did nium Representatives controlled House dead- ex paign fund and ratified Governor’s appropriate locked on whether funds Spending under the Executive penditures campaign election fund created Plan, The Franklin pro tunc. Cir nunc Act, Financing Public KRS Campaign the declaration of cuit Court dismissed 121A.020, adjourned April die sine on generally Paul rights action as moot. See 15, 2002, budget enacting without bill for Salamanca, Constitutionality E. judicial depart- either executive Plan, L.Ky. J. Spending Executive April ments for 2002-04 biennium. On (2003-04). 152-58 17, Governor Patton reconvened the Gen- regular extraordinary eral into an ses- At the 2004 session of Gen- Assembly, Republican-controlled purpose negotiating sion for the sole eral budget prevailed, bill. Recalcitrance how- Democratic-controlled Senate ever, again adjourned Representatives and the General House of dead- locked, time on 2004 exec- special May session on without whether the in- enacting budget either bill should budget department bill for utive departments government. proposed other two clude taxation measures new On March Republican Governor Fletcher. On promulgat June Governor Patton session), 60-day (day 44 of the ed an Spending “Executive Plan” and au passed budget House bill that substan- Secretary the thorized of the Finance and budget tially the recommenda- amended Administration Cabinet to issue warrants pursuant submitted the Governor tion against treasury implement the to 48.110(6). 48.100(1) On March to KRS plan “and to the assist Court Justice 10, budget the House’s version of the bill may necessary to implement lawful ex officially arrived at the Senate. On March penditures for operation.” its Exec. Order 11, proposed the unveiled his Governor No.2002-727, 6, essence, para. In4.1 the (day measures. On March 29 new taxation adopted Governor his own de executive 58), passed its the version Senate partment budget and appropria ordered bill, many of the Gover- budget restoring treasury tions from the state to fund it. recommendations adding original nor’s The a petition Treasurer filed in the tax proposals. the Governor’s Conference Franklin Circuit Court for a declaration and, on negotiations April failed committee 418.040, rights, to con KRS determine the 14, 60), (day stitutionality the Spending Executive enacting adjourned without an sine die Dept. Treasury the rel. Ky. Plan. ex budget for the department bill executive Cabinet, Ky. Miller v. and Admin. Fin. 2004-06 biennium. (Franklin Court, No. 02-CI-00855 Circuit 2002). 26, However, and Patton be- legisla filed Unlike Governors Jones June him, not recon- tive all fore Governor Fletcher did potential deadlock dissolved when Assembly into extraordi- gubernatorial their candidates announced vene General 27, 2002, promul- against treasuiy to fund that June Justice warrants On Chief plan. efficacy gated implementing spending plan constitutional order an order judicial depart- us. Const. expenses is not before But see cover July issued discussed ment from and after infra. nary session purpose for the of further On June Governor Fletcher budget negotiations. during promulgated 2004-650, When asked Executive Order argument oral whether adopting the Governor department executive budget should have called an extraordinary ses- he denominated a “Public Services sion so that the General Continuation Plan.” The could Order noted that: attempt differences, resolve its the at- Through adoption Bill House torney for the President of the Senate appro- has made responded that an extraordinary session priations for the use of the Judicial would Instead, have been “futile.” $234,648,400, Branch totaling and in he, Governor announced that like Gover- House Bill 397 for Legislative him, nor Patton before would formulate his $40,731,400, Branch totaling leaving own department executive spending plan, $20,739,752,600in previously estimated 1.e., his own budget. revenues identified for use the Exec- Branch, utive as modified the Con- 27, 2004, May On the Attorney General Forecasting Group sensus estimates of filed this action the Franklin Gircuit 8, 2004, June operation and func- against Governor, Court the Treasur- tion of the Executive Branch of govern- er, and the Secretary of the Finance and ment. Administration seeking Cabinet to pre- The Public Services Continuation Plan clude anticipated suspension of 153 proposed appropriate exactly existing statutes in the Governor’s execu- $20,739,752,600 to the depart- executive spending plan. tive parties, Other includ- operations ment for its during year fiscal ing Senate, the President of the 2004-05 Secretary and authorized the Speaker of the House of Representatives, the Finance and Administration Cabinet to legislators, individual representatives of against issue warrants treasury the state employees, state and the Board of Trus- to obtain those as needed. tees of Kentucky Employees Retire- On October the Governor issued System, ment to assert limita- intervened proclamation convening the General As- tions on the Governor’s suspend sembly session, into-extraordinary only but statutes or to spend unappropriated funds. to consider “the compensation, health in- Common Cause of Kentucky, an unincor- surance benefits and retirement benefits of porated self-styled “non-profit, non-parti- active public employees, and retired organization san which advocates ethics making appropriation an therefor.” The and constitutional in Kentucky,” law inter- Assembly General resolved those issues vened chairman, on the relation of its but Section 80 of the Constitution preclud- “Kentucky taxpayer,” self-described seek- it considering any ed from other unre- ing injunction against an the Governor to budget solved issues. preclude him “from implementing any spending plan which money would draw On December the Franklin Cir- from Treasury the State appropri- without cuit Court declared the Public Services ations made Legislature” in contra- Continuation Plan unconstitutional au- but vention of Section 230 of the 30, Constitution thorized its continuation until June Kentucky. 2005,2 which, after legislative “absent ac- doubt, However, 2. permitted No the circuit court opin- as will be noted later in this ion, temporary continuation of expediency justify judicial executive does not spending plan expediency. for reasons of sanction of an unconstitutional act. The bet-

859 expectation that tion, a reasonable expended shall public there] no funds be subject ..., would be Treasury complaining party with the same the State Hughes, exception again.”’ funds demonstrated to those to the same action specific for limited (quoting essential ser at 830 In re Commerce S.W.2d Cir.1988)). Quertermous (6th previously 291, approved Co., vices Oil 847 F.2d 733, Quertermous, 304 Ky. prongs. v. [Miller satisfies both present case (1947)].” 13, January On S.W.2d a ten- three occasions within On 2005, Secretary Governor and the Assembly con year the General period, the Finance Administration Cabinet partisan itself into a deadlock volved 74.02, transfer, appealed. granted CR We adjourned an enacting sine die without schedule, expedited briefing ordered an bill. After department budget executive arguments set oral March occasions, such the two most recent 8, 2005, during of its On March the course their respective governors promulgated session, thirty-day regular legislative budgets own and ordered an Assembly enacted both execu treasury in accordance drawn from the budget tive bill for the 2004- department occasion, On each lawsuits therewith. 06 biennium and tax had bill. As it done constitutionality were filed test session, in its 2003 occasion, each those actions. On Gen also all department ratified executive ac de eral enacted executive pursuant tions taken to the Public Services budget partment gov bill and ratified Plan, pro Continuation nunc tunc. actions the issue could be ernor’s before finally resolved the Court Justice. I. MOOTNESS. partisan no assurance that similar Having suggest for the Governor Counsel brinkmanship not recur in the General will argument ed at appeal oral resulting gubernatori Assembly, future should now be dismissed moot because ally budgets, promulgated we conclude the Public Services Continuation Plan no capable repetition, yet that this issue is longer exists and the General review, evading and will address merits. expen has ratified the appropriations and Burlington R. v. See Northern Co. Bhd. of department ditures executive Way Employees, 481 U.S. Maint. of However, plan. under that a well-known n. 436 n. S.Ct. exception mootness doctrine occurs (1987) (“Because these same L.Ed.2d “capable yet when an issue is of repetition, find reasonably likely them parties Lexington review.” evading Herald- dispute the issues again selves over Co., Leader Inc. Meigs, 660 S.W.2d such petition, raised this and because (Ky.1983) (quoting 661 Neb. Press Ass’n v. quickly by disputes typically are resolved Stuart, 539, 546, 2791, 427 U.S. 96 S.Ct. action, controversy .. .(cid:127) is legislative this 2797, (1976)); 49 L.Ed.2d 683 see also capable repetition yet one that is evad Commonwealth, 24, Woods v. 142 S.W.3d review.”). ing Hughes, (Ky.2004); 31 Commonwealth v. 828, (Ky.1994). A two-part 873 830 S.W.2d QUESTION. II. POLITICAL governs test application excep “(1) sug 'challenged tion: is action too The President the Senate budget a oc fully litigated prior gests that when deadlock short duration to be (2) curs, supervise the Governor’s expiration to its a court can [is cessation or stay judg- pending appeal. ter course would have been to ment 860

expenditures item-by-item on an basis tutes an essential service depends largely they ensure that do not exceed the political, consti on social and economic consider- exception tutional ations, for “essential services” not legal Vaughn ones. v. Knopf, allegedly Querter created in v. 566, Miller 895 (Ky.1995) S.W.2d 567 (declaring mous, Ky. 733, 202 S.W.2d 389 the requiring statute circuit court over- (1947). The responds Governor that bud sight of budget sheriffs unconstitutional: matters, getary including determinations “In acting on these budget annual re- not, of what services are or essential se, are quests, judges would, per inject- nonjusticiable political questions ed into the political side of the executive should be reserved to depart offices.”). the other branch government. ments of case, however, The issue in this is not efficacy necessity particular of a or “political The question” doctrine is appropriation, but whether the Governor grounded primarily separation in the any authority has constitutional deter- Carr, powers. 186, 210, Baker v. 369 U.S. mine or what are essential services to uni- 691, 706, (1962). 82 S.Ct. 7 L.Ed.2d 663 laterally any appropriations order doctrine, judicial Under this depart the treasury. ment should not in the interfere exercise Deciding in any whether matter has department another of a discretion that measure been committed Consti- committed textually demonstrable tution government, to another branch of provision of the Constitution to the other or whether the action of that branch department, McCormack, Powell v. exceeds authority whatever has been 486, 518, 1944, U.S. 1962, 89 S.Ct. committed, is itself a exercise in delicate (1969), L.Ed.2d 491 or seek to resolve an constitutional interpretation, is a re- issue for it judicially lacks discover sponsibility of as this Court ultimate standards, able manageable Vieth v. interpreter of the Constitution. Jubelirer, 276, 541 U.S. 124 S.Ct. 1769, 1776, (2004). See, 158 L.Ed.2d 546 Haviland,

e.g., reject The Philpot courts cannot as “no law suit” 880 S.W.2d (determination a bona (Ky.1994) controversy to whether of what fide is a “reasonable time” some action “political” within which to denominated ex- report a legislative authority. bill out of a ceeds constitutional committee under Section 46 purely Constitution is a Baker, 369 U.S. at 82 S.Ct. at issue); Dalton, legislative 304 S.W.2d at presented by issue this case (wisdom levy taxes, of fiscal policy, issue, one; is a constitutional not political and appropriation of revenue is outside the thus, justiciable. it is v. Council Rose Cf. purview judicial authority); Lakes v. Educ., Inc., Better 790 S.W.2d Goodloe, 242 S.W. (“To (Ky.1989) allow (1922) (“The statute, expediency aof (or, fact, Executive) point public whether or not the weal demands its decide whether its actions constitution- are enactment, political questions, which unthinkable.”) al literally legislative address themselves to the de III. SEPARATION OF POWERS. ”). partment government of the .... We Section 27 of the of Constitution Ken- agree judicial with the Governor that the tucky provides: department inject should neither itself nor injected be into the details executive The of powers government department budget process. What Kentucky consti- Commonwealth of shall be di-

861 There at the convention. departments, being present vided into three distinct dissent when sepa- be to a was discussion and and each of them confined much but, offered, to Those body magistracy, rate of wit: was when the article one; legislative, known, are to those which of respect author was executive, another; and which are to name of Kentucky for the Jeffer- great judicial, to another. those which at through, it and it was son carried once adopted. provides: Section 28 person persons No or collection of Sinking v. 104 George, Fund Comm’rs of being departments, of one of those shall (Du (1898) Relie, 260, 779, Ky. 47 785 S.W. any power properly belonging exercise Johnson, J., Rouse dissenting). See also v. others, except to either of the (1930) 745, 473, 28 752 Ky. 34 S.W.2d 2 directed expressly instances hereinafter Garrett, (Willis, J., v. dissenting); Sibert permitted. 455, (1922); Ky. 246 S.W. Pur forceful “unusually Section 28’s com- Mann, 407,; 48 S.W. Ky. nell v. mand,” Parte Public Ac- Ex Auditor (1899) (Du Relie, J., of dissent S.W. counts, (Ky.1980), 609 S.W.2d has Snyder Robert M. Ire ing); Sheryl G. & no States counterpart United Con- land, Separation Governmental of reputed have stitution. It been Ken Powers Under Constitution of penned Thomas Jefferson.3 tucky: Legal Analysis and A Historical of When Mr. Jefferson returned Brown, 165, 206 L.R.C. L.J. v. France, federal constitution had (1984-85). and, appoint- adopted; having been been separation powers is not Though the state, secretary per- ed he obtained forcefully enunciated the United for go mission to to Monticello some Constitution, principal drafter States Breckinridge George months. John clearly intended that that document there, him a paid Nicholas visit and in- “If separation. there would be strict Kentucky formed about to him was Constitution, principle there in our herself, frame a for constitution any free more sa indeed in Constitution Virginia permit was about Kentucky another, sepa that which cred than it is separate independent to become a judicial legislative, rates the executive and told them there state. He was Madison, Speech on powers.” James constitution, danger in the federal be- Representatives, Floor of the House powers cause defining the clause of Congress in 1 Annals June departments was not Supreme 581. The United States Court sufficiently that the first guarded, and consistently allayed pur has Jefferson’s thing to provided Ken- E.g., Spendthrift ported Plaut fears. tucky to confine constitution should be Farm, Inc., 115 S.Ct. U.S. judiciary powers, to its and the legis- (“[T]he (1995) 1447, 1463, 131 L.Ed.2d 328 lative Mr. and executive theirs. Jef- separation powers is a struc doctrine of provision, the form the ferson drew device, ... safeguard prophylactic tural gave it to and Breckin- Nicholas high and clear distinc establishing walls and it was taken Nicholas to ridge; vague Danville, tions low distinc because walls the convention met in the judicially tions not be defensible and there will presented, Breckinridge — only Judge authority Du Relle’s dis- Judge cited authorities cite Du Relie to no Purnell, Georgeand following account of Jefferson's role. Later sents in infra. 862 conflict.”);

heat of Immigra interbranch branch of government one into the pow- Chadha, tion and Naturalization Serv. v. of ers functions the others. 919, 951, 2764, 2784, 462 U.S. 103 S.Ct. 77 (1983), (“The L.Ed.2d 317 Constitution view, has been our in interpreting [I]t sought delegated to powers divide of 28, 27 separation "Sections government the new federal into three de powers of doctrine fundamental to legislative, fined categories, executive and Kentucky’s tri-partite system of govern-

judicial, assure, possible, to as nearly as “strictly ment must be construed.” that each Branch of would confine its assigned responsibility. itself to hydraulic pressure

The inherent within precedents by The established this court each separate Branches exceed retaining been uniform in goals have the outer of its power, limits even to ac by out separation set the framers. The complish objectives, desirable must be re of set in powers doctrine is the concrete sisted.”); v. Fitzgerald, Nixon 457 U.S. history legal precedent. 731, 760-761, 102 S.Ct. 73 912, Id. at 914. See also Diemer v. Com (1982) (“The L.Ed.2d purpose 349 essential monwealth, 861, (Ky.1990) 864 S.W.2d separation powers is to allow for (“Kentucky sep is a strict adherent to the independent functioning coequal of each doctrine.”); Sibert, of powers aration branch of government assigned within its (“The S.W. at 458 was to purpose have sphere of responsibility, risk of free from operate respec each of them to so in their control, interference, or intimidation spheres. tive as to checks to the create branches.”); Youngstown other Sheet & operations prevent and to others 588-89, Sawyer, 579, Tube Co. v. 343 U.S. formation one of an department oli (1952) 867, 72 S.Ct. 96 L.Ed. 1153 garchy through absorption of powers (only Congress authority has to authorize others.”). belonging to the use; seizure of private property public consequently, the President his exceeded anticipated by “except” As clause powers seizing executive mills to steel Section the Constitution does articulate avert a nationwide shut-down labor un exceptions separation some to the strict strike). ion powers. For example, the Governor’s veto power, Ky. § legislative Const. is a Likewise, predecessor we and our court Meredith, Ky. function. Arnett v. interpreted have Sections 27 and 28 to (1938). power S.W.2d separation mandate a powers. strict try impeachments, Senate Rejecting an argument that the provisions § judicial is a Const. function. And the liberally should be construed the mod- powers, Ky. Chief Justice’s administrative ern era permit. some en- legislative 110(5)(b), Const. are executive functions. Snyder croachment powers, on executive & Further, Ireland, 206-07, while the at can supra, we noted law, delegate Legislative power Com’n Prath- to make it can Research ex rel. Brown”], er v. delegates Brown v. a law that [“L.R.C. make S.W.2d 907 (Ky.1984),that: fact state of things determine some upon which the law makes its own action present explic-

Our constitution contains which, long law hand, depend as the establishes provisions it on the one —so policies governing separation among mandate three standards exer Brown, delegation. branches oth- cise of that L.R.C. v. government, and on the hand, 915; Turner, prohibit er specifically incursion S.W.2d Bloemer

863 (1939). con- is no room for 832, 387, “There 391 construction: Ky. 137 S.W.2d See of the Gen., outside struction of a Constitution Attorney Trustees v. 132 Bd. of themselves, they unambiguous 770, if words (Ky.2003), a de S.W.3d 781-85 ” Drake, 517, 195 Ky. .... 302 “nondelegation Button v. discussion of the doc tailed (1946). 66, the General As S.W.2d 68 authority trine.” The of delegation a sembly to make limited to of the framers the Constitution When has, occasion, department executive on ambigu- language use that is no sense to or expenditures been extended of excess to ous, it function court not a of this is Ford, funds. v. emergency Hopkins 534 meaning language construe 792, (Ky.1976); Common S.W.2d 795-96 of the Con- something that framers Johnson, ex v. 292 wealth rel. Meredith say, hold that stitution did not or to (1942). 288, 409, 412 In Ky. 166 S.W.2d something says while the Constitution fact, anticipates KRS 48.150 the bud special no definitely unequivocally, get appropriate depart will funds to each lan- importance to be attached to its is government to meet unexpected ment of guage. However, or contingencies emergencies. Hatcher, 712, 137 Ky. Harrod 281 v. proper delegation absence of a of (1940). 405, Pardue 407 See also S.W.2d another, authority by one to department 110, 75, Miller, v. S.W.2d exception specific a articulated the Con (1947)(“The ... a interpret rule to basic is stitution, itself, 28 has Section erected what provision according to constitutional wall,” Plaut, at “high 514 U.S. have been might was said and not what precludes S.Ct. which exercise ”). un- applies .... That rule said department power one of vested sole of the ambiguous of Section 230 words of the ly either others. Kentucky, Constitution of viz: of separation powers The doctrine money No shall be drawn from adopted promote ... was not to efficien- Treasury, except pursuance State cy preclude exercise but of arbi- .... law trary power. was purpose consistently pro- We have held that friction, but, by avoid means of the inev- exactly says. what it Com- vision means itable friction incident to the distribution Collins, Armstrong rel. v. monwealth ex governmental powers among of the (“It (Ky.1986) is clear 709 S.W.2d departments, people three to save the raising that the of the dollar—the autocracy. necessary expenditure money States,

Myers v. United 272 U.S. one which operate state —is (1926) (Bran 71 L.Ed. 160 S.Ct. authority legislative within the déis, J., dissenting). government. The Constitution branch of so and we states Commonwealth APPROPRIATIONS POWER. IV. Brown, stated.”); L.R.C. have so v. simply “Congress I believe (“The pro- budget, at 925 S.W.2d Congress make no law” means shall for the vides the revenue Commonwealth make no shall law. that revenue and which determines how Black, fundamentally legisla- A spent, Faith 45 shall Hugo Constitutional Oates, 314 course, matter.”); Ferguson (1969), referring, tive the First (“[T]he purpose (Ky.1958) S.W.2d Amendment the United States Constitu- expen- prevent was to simple interpretation [Section 230] That textual tion. money without diture the State’s primary mirrors the rule constitutional 864 (internal Legislature.”) debts,

consent of the cita- expenses, and engage- and other omitted). tion quotation of the government, ments it is highly that proper, congress possess should the I, 9, Article Section 7 of the Clause power any decide how and when mon- United States Constitution contains word- ey be applied purposes. should for these 230, ing almost identical to that of Section otherwise, If were it executive the would and the Supreme United States Court has possess an unbounded over the consistently that given provision its literal nation; public purse of might the meaning. v. Soap Cincinnati Co. United States, apply moneyed all its resources at 301 his U.S. 57 S.Ct. (1937) (“It pleasure. The power 81 L.Ed. 1122 to control and simply means di- money that no can rect the paid appropriations, be of constitutes out the a Treasury it salutary unless has been useful appropriated upon most check by an Congress.”); act of v. Reeside Walk- profusion extravagance, as well as er, (11 How.) 272, 52 U.S. 13 L.Ed. corrupt upon public pecu- influence and (1850) (“However money may much be .... lation time, in Treasury at any the a one Story, 2 on Joseph Commentaries the Con- dollar of it be can used in of payment the (3d the stitution United States any thing not previously thus sanc- 1858). ed. tioned.”). purpose Its is to vest Con- govern- It is an axiom of American gress, government the that branch legislature purse ment that the holds the most representative people, strings. The federal and most state power to people’s determine how the mon- constitutions, example, require ey will spent. Mgmt. Pers. Office of budget in the originate House of Richmond, 414, 427-28, 496 U.S. 110 S.Ct. Representatives, the arm (“But (1990) 110 L.Ed.2d 387 representative populace. most of the the Clause has a more fundamental and This is traditionally viewed as the means comprehensive purpose .... It is to as- the representatives peo- of the sure that public funds will be spent accord- ple hold their ing powerful most check and the letter of the judgments difficult upon by Congress balance the executive branch. reached as to common good according and not to the individual Ireland, Snyder & supra, at 225. agents favor of Government or the individ- Governor asserts Section pleas litigants.”); ual Soap Cincinnati applies only if the General (“The Co., U.S. S.Ct. at has enacted a As noted at budget bill. that, provision of the Constitution ... ‘No opinion, provision outset of this is no there Money Treasury, shall be drawn from the (cid:127) Kentucky the Constitution of requiring Consequence but Appropriations budget enact a Law,’ General was intended as restric- purely statutory require tion bill. Such is upon authority of disbursing ”). Since preexisted Executive .... ment. Section 230 department statutory scheme, the Framers could not The object apparent upon slight- apply only have intended for the Section regular- est examination. It is to secure when the enacts bud ity, punctuality, fidelity, in the dis- that, get Accordingly, hold bill. we public all money. bursements As a specific appropriation, absence of or a people, the taxes raised from the as well sources, constitutional, arising statutory, federal man revenues from other discharge below, applied unambiguous to be discussed date as upon the State prohibits the with- Administration Cabinet language Section (“The Treasurer.”); five 45A.275 first KRS treasury. drawal of funds from state ($500,000) any hundred thousand dollars STATUTORY, against V. CONSTITUTIONAL Kentucky judgment court

AND FEDERAL MANDATES. awarding damages on Commonwealth provisions of claim under the contract provides: KRS 41.110 to a neces- 45A.240 45A.270 shall be KRS public money shall No be withdrawn payment sary governmental expense any Treasury from the other purpose Ad- approved by the Finance and shall be than that for which withdrawal by paid Cabinet and the State ministration approp- unless it proposed, nor has been judg- Appropriations Treasurer. these by Assembly or is a riated the General appropriations.”); ments shall be continued fund, revolving of a has been part 61.565(1) (“Each employer participat- KRS in to provided allotted as 48.010 KRS System in Retirement ing the State Police 48.800, only then on warrant of the in the employer participating ... and each the Finance and Cabinet. Administration Kentucky Employees System Retirement provisions of this not section do annually respec- ... shall contribute the apply to of from state withdrawals funds ”). .... are system tive retirement There depository redepos- banks for immediate they substantially are less others —but it in depository other state or to banks instances, legion. than In those the Gen- security funds in trust for of held the neces- already eral has the bond holders. Davis, v. sary appropriations. White the Where has mandat- General Cal.Rptr.2d 699- Cal.App.4th specific ed that on a expenditures be made (2002), part other reversed on basis, continuing or has a bond- authorized Davis, 30 Cal.4th grounds White v. paid, ed indebtedness which must be such (2003). Cal.Rptr.2d 68 P.3d 74 is, fact, Otherwise, appropriation. an However, mere of a the existence Assembly has delegated not implemented only can if statute that be its constitutional of appropriation an appropriation. does mandate funded department. the executive It has even permitted General “[T]he expenditure surplus forbidden the mo- through the reduction or elimination of general nies funds. KRS road effectively eliminate the appropriation, 48.710(8). 48.700(8); KRS ” efficacy .... existing statutes Com appro- There statutes that mandate Collins, Armstrong ex monwealth rel. priations budget in the of a even absence fact, In 709 S.W.2d the State 18A.015(2) E.g., (“Appropria- bill. KRS to fund the election Senate’s refusal tions shall made from ex- general be in KRS campaign fund established penditure fund to the to meet the cabinet 121A.020 was the immediate cause of rata share cost of pro estimated of the budget negotia collapse of session’s chap- administering provisions of this mere Obviously, tions. existence (“All ”); .... 44.100 nec- ter KRS amounts 121A.020 not a mandate to fund KRS was essary pay operation awards cost of it. against assessed the board [of claims] A similar occurred in the fed agencies all other cabinets or of the Com- crisis in 1980 when it became paid general government monwealth out eral shall Commonwealth, Congress pass warrants would not upon apparent fund of secretary budget budget Finance and or a continuation drawn federal plan Governor, beginning before October ernment he shall receive year. next fiscal Former United States the same compensation which the Gover- Attorney Benjamin R. Civiletti nor would received have had he been opined, interpreting when 31 U.S.C. office.”); employed in the duties his Act,” “Anti-Deficiency (“All Section 96 officers mentioned officer, precludes any employee paid Section 95 shall be for their ser- making or authorizing otherwise.”); by salary, vices and not expenditure funds, unappropriated (“The compensation Section 98 that: Attorney Commonwealth’s shall be [Statutory authority to incur obligations salary percentage and such of fines and in advance of ... may may law, by forfeitures as be fixed and inferred, ordinarily be the ab- salary such be 'uniform in shall so far as appropriations, from!the kind of sence^ paid the same shall be out of the State authority, standing ...-bifoad, 'catjegorical Treasury, not to of and exceed the sum alone, that for appears, example, often ”); per five hundred annum .... dollars the organic governmental statutes of (“In Section 106 counties or cities hav- agencies. ing population seventy-five of thousand (1980) Op. 5 2 Legal Off. (quot- Counsel more, or respective Clerks (1981)). ed in Op. Atty. 43 297 Gen. (except Courts thereof Clerk of the agree. We Only specifically those statutes Court), Marshals, City the Sheriffs mandating payments or contributions Jailers, paid and the shall be out of the interpreted be can be as self-execut- by salary by Treasury, State to be fixed ing appropriations. A appropri- mandated law, of the salaries said officers and ation cannot be inferred from the mere their deputies necessary and office ex- existence of an statute. unfunded penses not to seventy-five per exceed contrast, In provi “constitutional centum of the fees collected by said mandatory sions are and never directory.” officers, respectively, paid and into Sullivan, Arnett v. 279 132 Treasury.”); (1939). provisions S.W.2d 78 Certain (“All justices judges Section 120 and of our payments Constitution mandate for shall paid adequate compensation be rendered, viz: services which shall fixed As- be (“The Section 42 members of the Gen- sembly. compensation All and neces- eral Assembly severally shall receive sary expenses of the Court of Justice Treasury compensation the State Treasury. shall paid be out the State ”); for their .... services compensation justice judge of a (“The Section 74 Governor and Lieu- term.”); during shall not be reduced his tenant Governor shall stated times and performance receive for the of the duties (“The Section public salaries of of- of their offices respective compensation changed during ficers shall not be law.”); be fixed they terms for which were elected (“The Section President of the Sen-

ate shall receive for his services the shall, compensation same which for other There are constitutional only period, Speaker implemented same be allowed to the mandates that can be Representatives, expenditure the House of and the funds from the trea during sury. gov- time he administers the These are: (“Each detention, correction, instruction House of the Gener- Section daily age Assembly publish persons shall of all under keep al reformation ”); .... felo- journal proceedings years, convicted of such eighteen (“The may be and such misdemeanors Assembly nies- Section General institution shall designated law. Said provide by monthly law investi- shall for ”); as the of Reform.’ gations into the accounts of the Treasur- be known ‘House Accounts er and Auditor of Public (“The shall Commonwealth Section (“The

Section General discipline, maintain control provide by registration law shall the sani- supplies, for all and for provide persons of all to vote cities entitled ”). .... tary conditions the convicts having towns of five population statutes, are crea- unfunded Unlike ”); more thousand or .... may tures of the General who (“The Section not, choose to fund them or these constitu- provide depriv- shall suitable means mandates must implemented. tional who, any person ing procure of office is, in matters Kentucky “The Constitution election, or ... his nomination has been law, supreme this Com- of state the law of any guilty money, unlawful use of or legisla- to which all acts of the monwealth value, thing guilty other or has been ture, judiciary any government the fraud, intimidation, any bribery, or Kuprion v. Fitz- agent subordinate.” ....”); corrupt practice other 679, (Ky.1994). 681 gerald, 888 S.W.2d (“The Assembly 183 Section General Assembly the prevent The General cannot shall, by appropriate legislation, provide mandates implementation constitutional system for' an efficient of common by simply withholding appropriations State.”); throughout schools power. In absence of (“The Assembly 220 Section General Assembly, the Treasurer by the General provide for maintaining orga- shall an mandates must fund these constitutional ”); militia .... nized existing until the Gen- no more than levels (“The 221 equip- Section organization, Assembly provides otherwise. eral discipline ment and militia shall of the nearly conform as practicable as Finally, parties there are what the regulations for the government of in this case have referred to as “federal States.”); armies of the United ie., mandates,” requirements programs or (“The Assembly 223 Section General require federal law that established for provide safekeeping shall con expenditure of state funds. While arms, records, public military relics and stitutionality currently of such mandates is of Ken- banners Commonwealth States, doubt, Printz v. 521 U.S. in United tucky.”); 2365, 2380, 117 S.Ct. 138 L.Ed.2d (“The 244a States, Section General (1997); New York v. United 914 may be prescribe shall such laws as 188, 2435, 144, 2408, 120 505 U.S. S.Ct. necessary for the granting paying (1992), is not before L.Ed.2d issue persons annuity pension.”); old state, we us. Nor do decide whether (“It benefits, duty opt can having accepted shall federal Section voluntary participation provide by law out of an otherwise General program. E.g., ... for the and mainte- in a federal U.S.C. establishment 651, Safety § seq. (Occupational nance of an or institutions et institution 1970); Health Act § year year U.S.C. et until an appropriation has (Surface seq. Mining Control and Recla- been provided made as chapter this § n 1977); mation Act of 33 U.S.C. et and has any become effective. If such (Clean seq. Act); 42 § Water U.S.C. appropriation for the fiscal year next (Resource et seq., Conservation and preceding Recov- is applicable alike for ordi- ery 1976); Act of seq. nary U.S.C. et recurring expenses, extraordinary (Clean Act). Air simply We hold that to expenses, capital outlays, the Exec- Supremacy extent Clause of Department utive and Ad- for Finance Const, Constitution, United States U.S. pro- ministration shall what determine VI, art. requires cl. compliance portion with thereof under shall be deemed any mandate, valid federal it must be provisions fund- of this section have ed the Treasurer notwithstanding appropriated ordinary Sec- been recur- tion 230 of the Constitution of Kentucky. ring expenses by for the Each year. appropri- next fiscal

However, absent a statutory, constitu- appropri- ation or proportion each tional, mandate, or valid federal Section ation that is continued under this section precludes the withdrawal of funds shall be budget included from the treasury state except pursuant to expenditure by available for allot- specific appropriation by the General ments provided chapter. Assembly. repealed KRS 45.120. The statute was VI. CONTINUATION BUDGET. Acts, July effective 1983. 1982 ch. that, Attorney posits 450, § interpret repeal 79. We as a constitutional, addition statutory, and specific rejection legislative of the solution mandates, federal ought the Governor to proffered by Attorney General. Cf. be able to look immediately preced to the Youngstown Sawyer, Sheet & Tube Co. v. ing biennial budget “guide” as a for addi 343 U.S. at (finding S.Ct. at 866 no ie., tional appropriations, “quasi- a kind of Congressional authority for President’s continuation budget.” because, seizure of partially steel mills the Taft-Hartley “[w]hen Act was under From 1918 until there existed stat- in Congress rejected consideration utory authority for a continuation budget an amendment which would have author- Kentucky, subject to substantial execu- governmental ized such seizures cases of department tive leeway, viz: emergency.”). If the General fails to make 48.310(1) an appropriation any Thus, year fiscal we are left with KRS (“No any purpose required to be provision budget executed of a branch bill shall laws, provisions of existing or if the beyond year Gov- be effective the second fiscal enactment.”) ernor vetoes an appropriation essential from the of its and the date carrying any out of purpose, such principle legislature ancient that each is a an appropriation equal in amount to the free independent body and cannot con- made, appropriation or deemed to have trol except by the conduct of its successor section, been made under this for that acts in binding the form of contracts. Bd. purpose year Gen., for the preced- fiscal next Attorney Trustees v. 132 S.W.3d ing, any 789; exclusive such at City Sterling King, Mt. for extraordinary expenses (1907); capital Ky. 104 S.W. & Swift (7 outlays, Bush) 37, shall be deemed to City have been Co. v. Newport, 70 (1870). made and shall continue available from 41 presently There no au- exists thority budget opinion Black in the lead for a continuation in Ken- tice wrote case; Youngstown tucky. Constitution, of our

In the framework to see that power the President’s GOVERNOR’S VIL faithfully are laws executed refutes CONSTITUTIONAL a lawmaker. The idea he is to be POWERS. functions in the Constitution limits his The Governor asserts that when recommending lawmaking process fails to exercise vetoing of laws he wise and the thinks appropriations power opera to fund the he And the laws thinks bad. Constitu- (the tions of department, the executive he nor equivocal tion is neither silent about Governor) inherent possesses power who shall make laws which Presi- order appropriations necessary pre is to The first dent execute. section of collapse governmen vent the imminent says legislative first that “All article tal services. He cites Sections 69 and 81 granted shall be Powers herein vested of the Constitution as the source of that Congress States.” United power. 587-88, Youngstown, at 343 U.S. S.Ct. States, Myers at 867. See also v. United provides; Section 69 “The ex- supreme J., (Holmes, 272 U.S. at 85 S.Ct. ecutive of the Commonwealth shall (“The dissenting) duty of the President Magistrate, be vested in a Chief who shall duty see that be executed is a the laws styled ‘Governor Common- ’ beyond that does the laws re- go not Kentucky.” provision only wealth of That him more than quire Congress to achieve vests powers, the Governor with executive power.”). fit to his sees leave within just as Section vests.the General As- authority to Governor has no constitutional sembly legislative powers with and Section legislative even powers exercise when the judicial vests the Court of Justice with do has failed to so. powers. Manifestly, Section 69 does legislative vest the powers, Governor with VIII. ALLEGED EMERGENCY specifically reserved Sections POWERS. solely legislative 28 and 29 to the depart- opinions The Governor also cites the ment. provides: 81 “He Section shall take Querter in predecessor our court Miller v. faithfully care that the laws be executed.” mous, (1947), Ky. 304 202 389 S.W.2d The Governor asserts that he cannot faith- Newman, Ky. and Rhea v. 153 156 fully the enacted execute laws the Gen- (1913), proposition S.W. 154 for the that he necessary eral the funds without may expend funds -unappropriated pro However, to do so. as noted in earlier emergencies. during vide essential services opinion, of a the mere existence law does easily distinguish We Rhea because the if implemented mean that it must be fact, had, ap in in funds that case been doing requires expenditure unap- so the n Assembly. the General propriated propriated ex rel. funds. Commonwealth money in simply There was insufficient the Collins, Armstrong v. 709 at 441. S.W.2d when treasury to the warrant it was pay powers statute, Acts, The same Constitutional A ch. submitted. that, 72, § duties in provided described Sections and 81 are such circum stance, granted to President of the should endorse the United Treasurer II, bearing percent Article five interest States Sections and 3 warrant presentation. from the date of its The United States Constitution. As Jus- whether, issue was considering the extent ed public purposes, is on hand. An indebtedness, of other state that endorse unexpected and unanticipated emergen- ment would violate Section 49 of the Con cy requiring more than emotional ges- stitution, which authorizes the General As tures confronts us. sembly to contract debts to meet casual Thus, Id. at 391-92. the court inferred an deficits, requires that but such debts not intent on part General Rhea, $500,000. exceed maximum of to provide the additional funds for the S.W. at 155. The nothing case had to do operation of the institutions from the fact

with Section 230. it already appropriated had what it Quertermous did have do with Sec- believed to be sufficient funds for their tion but has regarded been as an operation, and from the fact surplus that a There, anomaly, at best. the General As- funds was on treasury hand suffi- sembly made what it believed to be suffi- pay cient to for their operation. continued cient appropriations for the maintenance opinion justified can partially o!f prisons, state correctional institutions the constitutional mandates of Sections 252 children, and mental institutions. Un- partially and 254 and explained by expedi- fortunately, with the elimination of the ency (though there is no explanation why price system control during effect the Commissioner of Welfare did not ask II, World War living cost of rose unex- extraordinary Governor to call an ses- pectedly and appropriated funds sion of the General to obtain a proved pay insufficient to necessary, proper legislative appropriation of the nec- ordinary and recurring expenses of those funds, essary process that would have institutions. The Commissioner of Wel- required litigate less time than it took to fare sued the State Treasurer and the through the issue appellate the trial and Commissioner of Finance for funds neces- courts). sary operation to continue the of the insti- years later, Attorney Nine Noting tutions. appropriated sued the Commissioner of Finance for (the funds would expire May on operate funds needed to his office in ex opinion 16, 1947), May was rendered on appropriated by cess of those and that there was a surplus substantial Assembly, Quertermous. citing Ferguson Quertermous, treasury, S.W.2d Oates, Recogniz S.W.2d at 519-20. 390, the court ordered the Treasurer ing the impropriety fundamental of a court pay necessary the funds operate directing payment order of unappropriated institutions. Id. at 392. provide funds to depart executive justified in assuming We that the ment additional legislature funds that the Legislature fully was cognizant of its unnecessary, had deemed the court in Fer obligation to appropriation make such Quertermous guson expressly limited for the care of these institutions and facts. court’s action was “[T]he inmates.' The intention so to care for ‘brought by about an necessity inexorable them is appropriation evidenced coupled with an inescapable responsibility,’ made. The fact that an unanticipated and the case should not be considered as rising cost living later shows esti- precedent except erroneous, comparable under condi mate to be way oper- no Ferguson, tions.” destroy intention, ates to 314 S.W.2d at 520. In proper fact, Quertermous nor any way justifiable despite could it in court’s obvi grounds great good for criticism. A un- ous intentions when faced seem with funds, facts, touched surplus public ingly collect- pri- insoluble the decision was encroachment an unconstitutional ma facie judicial departments the executive are consistent with [E]mergency powers legislative depart of the powers on the their control only when free un justify Good intentions do

ment. in the Execu- than lodged elsewhere Coleman, acts. Dishman v. constitutional them. exercises tive who (1932) 504, 239, 50 S.W.2d (State personally held liable Treasurer defects, and inconven- delays all its With “even unappropriated funds expenditure no tech- iences, have discovered men doing thought officer he was though the govern- free long preserving nique for commonwealth, and was best for the what- under that the Executive be except ment Attorney the concurrence Gen had law, that the law be made time.”4). eral deliberations. parliamentary that a reject proposition We 649-50, 343 U.S. at Youngstown, unilaterally can declare an emer Governor (Jack- 875-76, 877, 72 S.Ct. at gency spend unappropriated funds to J., son, concurring). in his it. As Justice Jackson said resolve possesses no The Governor concurring opinion Youngs in the famous powers ap “emergency” or “inherent” town case: treasury money from the state propriate lastly grounds The Solicitor Assembly, for whatever that the General nebulous, upon of the seizure support reason, Brown appropriated. has not Cf. grant- powers expressly inherent never (Ky.1982) Barkley, 628 S.W.2d have to the office ed but said to accrued for those (“Practically speaking, except preced- from the customs and claims of specifically by him upon conferred ing plea is for a administrations. The Constitution, powers, like Governor’s] [the resulting power to deal with a crisis or officers created of the executive those emergency according an to the necessi- only what the General Const. Sec. case, the unarticulated as- ties him.”). Nor give chooses to necessity sumption being that knows no the Court of Justice have does law. Quert authority. Miller v. to confer such extent it holds is overruled to the ermous however, appeal, that we declare interpreted otherwise. or can be ne- powers of inherent ex existence emergency asks us cessitate meet OF STATUTES. IX. SUSPENSION wise, many what think would be do noted, Attorney As earlier forefathers

although something it is prevent this action to General initiated They emergencies knew what omitted. of 153 anticipated suspension Governor’s were, they engender pressures knew the Among the statutes knew, too, statutes. action, how for authoritative actually claim appeal to this were parties ready usurpa- they pretext afford Continua suspended in the Public Services they may suspect tion. also We (number 18A.010(2) tion Plan were KRS emergency powers suspected that would 33,000); KRS limited to employees state emergencies. to kindle tend spend- of the executive ultimate ratifications noted that the General 4. Dishman appropriate pay power ing promulgated by to funds to Governors Patton plans had the Treasurer, against Fletcher, at judgment id. respectively. Assembly’s similar to the General solution (automatic 18A.S55(1) government, in- and the courts have tradi- pay annual 5% deviating tionally invalidated measures employees); creases for all state KRS n (allocation may appear that The result Local from form. 42.4585 Government Funds); to given partisans “formalistic” case Economic Assistance KRS issue, 61.565(2) of the measure at because such (delegation authority to Ken- typically product Systems Board of Trus- measures are tucky Retirement necessity. But the perceived contribution the era’s employer tees to determine us from our own protects Constitution necessary adequately rates to fund ... power It divides System). Retirement best intentions: Kentucky Employees among government precise- branches pro our Section 15 of Constitution temptation ly may so that we resist the power suspend laws shall be vides: “No in one location as' power to concentrate by the General exercised unless to the crisis of the expedient an solution authority.” provision Since this is or its .day. Rights, the Bill of the Governor part of States, 505 if New York v. United U.S. pos statutes even he suspend could not 187, 112S.Ct. at 2434. “emergency” powers or “inherent” sessed 69 and 81. Const. under Sections man There is no constitutional (“To guard against transgression § 26 Assembly enact a date delegated, high powers which we have bill, provid budget and there is no statute Bill everything Declare that this We it fails to do so. ing for alternative when general pow out of Rights excepted dooms hand-wringing much Despite .'...”). suspension Thé ers of day forecasting by parties some of the anti by a is also of statutes Governor prospect this action at the we would duty to “take thetical to the constitutional what it unam hold that Section 230 means faithfully executed.” care that the laws be says, prerogative it not our biguously fortiori, suspen A Ky. Const. or enact statutes. amend the Constitution any by the Governor’s sion of statutes declines When the General un Plan was Public Services Continuation power, exercise invalid ab initio. constitutional and “high wall” does not flow over However, represent- parties depart neither to another by Section 28 erected Board of employees5 nor the ing state government. ment of Re- Kentucky Employees Trustees gov- powers The separation System presently seek remedial tirement not make each branch com- ernment did suspensions from the of KRS relief It left each pletely autonomous. 18A.355(1) 61.565(2), admitting and KRS measure, others on the dependent some during resolved that those issues were _Obviously, the President cannot se- of the General extraordinary session laws, if full execution' of the Con- cure Assembly. adequate him means gress denies to may be defeat- doing so. Full execution X. CONCLUSION. ... declines to Congress ed because that, indispensable appropriation make the like the truths are so basic Some adequate If ... means are denied us, easily .... they are over- air around President, lie with the fault will con- Much of the Constitution is looked. his performs Congress. our President forth the form of setting cerned with argument. litigation prior to oral parties permitted to withdraw 5. Those were LAMBERT, Justice if, by Chief duty, Opinion with the Ml constitutional in dissenting part. concurring part in and provided and instruments means pre- limitations Congress and within the is the most purse of the power it, his endeavors scribed he uses best of in our Consti- potent assignment power of the the faithM execution to secure upon tution; the resources provides for it laws enacted. respect In this all others subsist.1 which akin to freedom purse of the power 291-92, at 84 at 47 S.Ct. Myers, U.S. Amend- by the First speech protected of J., (Brandéis, legisla- If the dissenting). ment, of all the most fundamental which is funds department appropriate fails to tive at the speech of rights freedom because the executive operate deemed sufficient to all other constitutional means services, department at desired level of example, For rights are exercised.2 must serve the department the executive depends religion exercise one’s right it can it is citizenry as best with what Likewise, freely. upon right speak citizenry If the deems those ser- given. war, society’s imprisoning of making insufficient, it will exercise its own vices miscreants, adjudicating cases power constitutional ballot. —the name but a controversies —to few—cannot §§ 70. Const. of resources performed be without use Accordingly, por we affirm that judicial the executive and reach judg tion of the Franklin Circuit Court’s by way legislative appropria- branches ment that declares the Public Services potency, tions. And because of its Plan unconstitutional insofar Continuation has the abili- power purse to withhold the requires expenditure as it from the trea untamed, ty, bring the other branches if than sury unappropriated funds other by depriving to their knees constitutional, and pursuant statutory, carry out their of essential funds to them mandates; that por federal and reverse constitutional mandates. judg tion of the Franklin Circuit Court’s That is what this case is about: unappropriated ment that authorizes ex in articulated Sec- power purse penditures specific for other “limited and Kentucky. of the Constitution of tion 230 Querter- previously approved services says money shall “[n]o Section 230 mous.” Treasury, except from the State drawn law.” pursuance GRAVES, JOHNSTONE, and 230 is at the heart But while Section WINTERSHEIMER, JJ„ concur. case, only it is not the constitutional necessary proper implicated section LAMBERT, C.J., part concurs in example, separation For resolution. by separate opinion. in part dissents play in a provisions3 are also powers KELLER, J., ways, not least of part concurs in number of different appropria- to use the by separate opinion, potential with which is the part dissents SCOTT, J., clause to control the executive joining opinion. tions ("Therein (James security Republic, lies 1. The Federalist No. ed.1961) Madison) (Clinton (calling govern- very Rossiter foundation of constitutional purse complete "the most ment.”). weapon”). and effectual §§ 27 and 28. 3. KY CONST. 353, 365, E.g., Jonge Oregon, 299 U.S. De (1937) 57 S.Ct. 81 L.Ed. 874

judicial government. branches of Prac- late certain categories expression con- tically, Kentuckian, for everyday what sistent with the Constitution.”9 government is at stake is itself. .Without If applied quasi-ab- one Justice Black’s held, funds elections cannot be the Ken- views, defamation, against solutist all laws tucky cannot upon State Police be called harassment, violence, sexual threats of and protect, serve and reading, there will be no obscenity, regulating and all laws cam- writing, or arithmetic in public instruction paigns, corporate reporting, attorney ad- schools, will shut down. vertisements and other commercial speech horribles, merely parade This is not few) (just to name a would be stricken but a consequence real and natural from the books as violative of the First omitted funding. agrees Amendment. But no one with that. Therefore, the of Justice Black on .views majority begins analysis the First Amendment have little to do with citing Justice analysis Only our of Section 230. if the Hugo Black for proposition “ majority adopted an absolutist view of Sec- ‘Congress shall make no law’ means Con- not, tion which it does would the gress shall no Applying make law.” Black quotation persuasive Justice have simple analysis language of Section effect. majority asserts that a constitu- Thus, tional section precisely says. majority means what it tips while its hat to But majority what the fails to acknowledge an absolute standard it retreats when that is that relatively agrees retreat, no one with Jus- standard becomes untenable. In issue, certainly tice Black on this no majority cleverly holds that when state other Justice the United States spending, Su- statutes mandate or when the preme Supremacy Court the entire twentieth or federal requires Clause10 twenty-first agrees.4 centuries spending, And even or when other constitutional sec- require Justice Black himself cannot be appropriation considered tions so de facto made, in the dispensing absolutist truest sense5 because with And Section 230. upheld he burning the criminalization of to a certain I agree. extent Let me first flag,6 against picketing,7 the American laws set out the agree with which I situations prohibitions wearing on an armband to and then disagree. those with which I protest First, Perhaps the Vietnam War.8 Justice there types are two of statutes. services, O’Connor said it “The protections pay best: One tells the treasurer to Amendment, afforded the First howev- the other tells the treasurer how much er, absolute, are not long pay Only we have for services. the latter kind of recognized government may that the regu- truly appropria- statute can be deemed an Gey, Against Vegetable 4. Steven The Case Post-Modem 7. NLRB v. Fruit & Packers & Ware housemen, Censorship Theory, 145 U. Pa. L.Rev. 193 U.S. 84 S.Ct. (1996). (1964) (Black, J., concurring). L.Ed.2d 129 SMOLLA, Dist., Indep. Cmty. 8. Tinker v. See RODNEY FREE SPEECH IN Des Moines Sch. 503, 517, SOCIETY, (1992); AN OPEN see also Pa 393 U.S. 89 S.Ct. 21 L.Ed.2d Note, (1969). Stembridge, Adjusting tricia R. Absolut ism: First Amendment Protection (2000). Black, 343, 360, Fringe, Virginia 80 B.U.L.Rev. 907 9. See 538 U.S. 1536, 1548, (2003). S.Ct. 155 L.Ed.2d 535 York, 6. Street v. New 394 U.S. VI, (1969). S.Ct. L.Ed.2d 572 10. U.S. CONST. art. cl. 2. spending of constitutional thusly: types are four majority opinion states it tion. The First, that re- there are those mandating “Only specifically those statutes sections. meet a Assembly to be made the General payments quire that or contributions An self-executing appro- spending. as standard of interpreted can be constitutional A can- priations. appropriation example mandated of this is Section shall, Assembly not be inferred from the mere existence General states that “[t]he words, the an unfunded statute.” In other for an legislation, provide by appropriate payment for a to the statute that calls common schools system of $50 efficient dog-catcher appropriation, is an but This section re- throughout the State.” merely dog-catch- statute that calls for by As- further action the General quires er to is not. paid as to the sembly gives guidance no funding. A second required amount analysis agree majority’s

I also with the not call of constitutional section does type Supremacy It of the federal Clause. Assembly anything, to do for the General ... Supremacy states that Clause “[t]he funding. amount of requires some but any federal man- requires compliance with militia, is an dealing with the Section pursuance dates made United It that that example type. of this states Constitution, notwithstanding Sec- States nearly conform as as “the militia shall tion 230 of the Constitution Ken- the ... armies of the United practicable to tucky. ... the Treasurer must fund such not call for This section does States.” It couldn’t have said bet- mandates.” been Assembly and does by action the General ter. fund- give guidance required not as to the However, disagree analysis I with the requires ing. type A third is one funding by various constitutional required Assembly a determin- provide explaining disagree- sections. Before funding, such as amount of Section able pause agree ment I to note that while I for with salaries 120. Section 120 deals result, disagree I strenuously with the calls justices judges, specifically but And, reasoning to that result. as with the Assembly even by for action the General life, reasoning aspects most Fi- the amount is determinable. though case, In important. particularly this it is not call for nally, are those that do there important accepts when one because anything, to do notion that 230 is not to be read Section require a determinable by their terms absolute, an trump-all-other-sections-of- funding. example An amount of fashion, analysis leads the-Constitution 96, which states that type “[a]ll is Section Now, ultimate expansive to a more result. 95 shall be mentioned Section officers disagreement. by salary, and not for their services paid majority says that all constitutional The otherwise.” funding are de facto dealing sections with type of constitutional appro- Only the fourth “In the absence appropriations. appro- truly regarded can be Assembly, the section priations by the General only one that meets priation. It is the must fund these constitutional Treasurer ap- of a constitutional requirements existing at no more than levels both mandates i.e., that the General propriation, oth- provides until the General anything more and Aside, now, required to do from the utter is not erwise.” money spent to be limit that the amount of authority spending lack of such other levels,” is determinable. are a number of the Treasurer “existing there sections types of constitutional Essentially, there three problems otherwise. they because honestly either re- not all sections can be interpreted quire further action the General Assem- as “appropriations law.” An ab- bly they provide guid- do not sufficient interpretation solute of Section 230 would funding required. ance as to how much require disregard plain language of numerous other constitutional sections effect, In majority interprets all of specifically require action the Gen- these sections to appropriations, be thus Assembly. Disjoining eral part the latter creating inconsistency a vast with absolut- (“provide Section 183 for an efficient ism. But majority the fails to acknowl- schools”) system of common from its be- edge among clear differences varying (“The shall, ginning General types of agree constitutional sections. I appropriate legislation, provide”) is to dis- majority with the that some constitutional says. allow mean it Section 183 to what sections can properly interpreted as comply The with responsibility to Section appropriations, falling thus within the lan- Assembly,11 squarely 183 is on the General guage However, of Section 230. I dis- self-executing provision. and it is not a agree with lumping together them all as instance, So, one and the same. agree majority’s For however I with the while outcome, desirable the it can cannot be said conclusion that the Governor execute appropriation Section 183 is an requirements be- of the law as enunciated (some) requires statutes, cause it to in General federal mandates made take gen- further action and the amount is in compliance of the United States Consti- erally Clause, within its discretion. A simple by way Supremacy tution of the (some) hypothetical is illustrative. When a catch- Kentucky provi- constitutional sions, er gives sign the curve-ball to the'pitcher, disagree I that all constitutional sec- it is not a It signal curve ball. is a for a appropriations tions can be to be deemed curve Similarly, ball. when the my constitu- without In legerdemain. intellectual gives tion the “appropriation sign” majority view the presented has weak Assembly, General it appropria- is not an rationale for allowing spending executive education, tion. It a signal appropriation. for an things such and its ratio- Only type the fourth nale spending constitutional sec- would not allow for elections tion, as discussed Kentucky above and of which there or the State Police. Neverthe- few, less, similar, is an appropriation. other rationale achieve al- more expansive, proper beit result with Furthermore, majority’s analy- what the fidelity to principle comprehensive sis of constitutional sections leaves behind constitutional construction. the curtain is revealing, glosses because it require Analogous over the sections that action in history situations and oth- Assembly. Telling Dorothy jurisdictions provide ample authority er pay no attention to the man for unappropriated spending. behind executive change history curtain did not the fact that appropriations Oz had The clause token, no By suggest resident wizard. the same does not that it was intended as a glossing legislature over the constitutional sections as much as it was that require responsibility further action intended to ensure fiscal change accountability.12 Story does not the fact that Justice noted Sidak, Educ., Inc., Gregory 11. See Rose v. Council 12. See J. Better The President's Pow (1989), Purse, (Ky.1989). 1989 Duke L.J. 1162 er 790 S.W.2d 186 history meaning for a discussion of the clause. logical of such ex- extension “apparent upon slightest stitution. this was government. destruction of idea would be regularity, It to secure amination. fidelity, the disburse- punctuality, ink on the was Constitution When Obviously, money.”13 of the public ments of the Conven barely dry, the President upon the Story commenting was Justice first President of United tion and the consti- appropriations clause in the federal States, spent unap George Washington, tution, 230 of but it is clear that Section Whisky suppress propriated funds Kentucky’s is derived from its Constitution years later President Rebellion.17 Nine Furthermore, counterpart.14 federal perhaps the most Thomas Jefferson made question presented has been considered purchase and controversial important jurisdictions, in limited circum- other history: nation’s the Louisiana our nascent given appropriations power stances the has territory Territory. purchased this He a way compelling to other interests when though France for million “even $15 language to its literal strict adherence authorization from only he had received It has separation powers. would violate of of million Congress ... in the amount $2 not a said that the constitution is been of Orleans or West acquisition for the New pact,15 interpreted and must be suicide Supreme recently, Florida.”18 More the of the en- purpose supporting further its pre of Massachusetts was Judicial Court a Al- representative republic.16 durance of unap propriety the of similar sented with lowing Assembly to control judi by time the spending, this propriated way appropriations the executive of the cial In O’Coins v. Treasurer branch. of purpose clause strikes at the heart of the Worcester,19 court stated County of separation powers, of of especially Ken- judge may unappropriated that a order may carry tucky overwhelmingly where it ex- so that he out spent funds constit imposed upon him the pressed Sections 27 and 28 of the Con- the duties (1898) ("In Pryor, Ky. Story, 13. J. Commentaries the Constitu- 103 45 S.W. 1136 on constitution, (1833) § construing provision tion of the United States at 486 of the (R. eds.1987). Rotunda & J. Nowak purpose should be to ascertain the ... of constitution and intent of the framers Const, VIII, (appropria- 14. KY of 1792 at object people adopted it .... The of who appropriations tions clause follows the federal construction, applied to a constitutional verbatim). clause provision, give to the intent of the is to effect intent, arriving people adopting In at this it. See, e.g., Chicago, 15. Terminiello v. 337 U.S. times, history we should look (1949) L.Ed. 69 S.Ct. things existing state of when examine the C.J., (Vinson, ("The dissenting) danger is that adopted. And it constitution was framed and temper does its doctrinaire if the Court not contemporary competent for us to look at wisdom, logic practical with a little it will J., (Waddle, ”) dissenting); interpretation ... Rights Bill into a convert the constitutional of Appeals, Opinion Judges Court In re of of of pact."). suicide (1881) ("it Ky. in mind must be borne is to be construed as that the constitution Prater, Higgins 16. See 14 S.W. 910 interpretation government, and frame of (1890) (allowing imposition a state tax for whole"). result, possible, if in a consistent of a non-common school even the benefit though provision ques- the constitutional Supra at 1178-81. n. 13 may "any be here- tion stated that sum which taxation, in the state or other- after raised 18. Id. at 1248. education, wise, purposes be held shall inviolate, sustaining sys- purpose (1972). schools.”); Mass. 287 N.E.2d also Stone v. 19. 362 tem of common see by failing ution.20 In holding appropria appropriate executive necessary tions section that state’s constitution for the per- funds Governor to constitutionally was subservient to other obligations. form his constitutional mandates, required the court noted that response by adopting the Governor in is not essential that there have been a “[i]t spending plan only op- was the rational prior appropriation expendit to cover the tion. holding ure.”21 This is consistent with principle by which the So Governor jurisdictions present other that have been may spend unappropriated funds —those questions.22 ed with similar required by which are the constitution but above, As shown a non-absolutist inter- may properly not be deemed constitutional

pretation of the appropriations clause is appropriations performance in the —is just not novel in the least. And as in the obligation his constitutional to see that the Amendment, context of the First arewe faithfully laws are executed. This result is not confined to literalism when so inter- purpose, history, consistent with pret comport would neither pur- with the clause; fulfill- spirit pose history, of the clause or its or the powers principles separation ment of government. legitimate ends Constitu- to handcuff the allowing legislature upon interpretation tional must be government; other and the branches document, tempered by whole of the the in the ad- promoting role of accumulation of historical occurrences and to representative republic vancement aof gained the wisdom those accounts. liberty people. secure And that history taught what has is that— that in agreement So leaves me with people to sustain the welfare of the —’there majority’s part, destination for the most practical application. must be some that disagreeing path. agree but with its I say not that This is to the Governor directing payment specific of a statutes constitutionally may infringe upon what is appropria- are properly sum considered delegated legislative gov- branch pursuant tions to Section 230 the Con- Rather, ernment at will. such an allow- agree that Kentucky. stitution of I also only ance arises on the heels of failure of funding required by Supremacy Clause appropri- to the General either may pursuant to appropriations be deemed necessary ate funds that are for the exec- However, it comes to Section 230. when faithfully utive branch to execute the I fur- go the constitutional sections would laws23 or even to pass statute that sets spending plan. ther and an executive allow forth in the event that happen what shall spend satisfy can clearly The Governor necessary appropriations are not made. require that those constitutional sections here was not an What the Governor did any spending because the General Assem- upon encroachment bly duty in to do so. As express failed power legislature violation of for sections that call for the constitutional sep- separation powers; the violation funding, amount of a determinable legis- aration of occurred when the powers is restricted to the determined upon lature encroached the functions of Governor Tate, Carroll v. 442 Pa. A.2d 20. Id. at 611-12. (1971). Id. at 21. 612. §81. 23.KY CONST. Powell, E.g., Morgan County Comm’n v. (1974); 292 Ala. 293 So.2d states, instance, among oth For amount. And as for the constitutional sec- Section require funding, tions that undetermined that the shall receive things, er Governor may spend whatever he Governor But includ for his services. compensation subject 2 of appropriate, deems to Section necessary proper expenditures ed Kentucky. coming the Constitution of In services, such to effectuate the Governor’s appropriate funding to an amount of for advisors, secretaries, etc. police, state uses, may prior these the Governor look to extensions have common sense Similar However, contrary to legislative budgets. For exam recognized by been this Court. contention, majority’s I find no author- Kentucky Rights Human Commis ple, ity require him to look to or would so implicit sion v. Pendennis we held by prior budgets. be constrained Obvious- power to make determinations was ly, spending prior appro- consistent with investigate.25 expenditures Such not priations arbitrary violation majority. allowed would be Section 2. Second, always retains the the Governor majority Neither the nor I would adhere genuine emergencies, wheth- right to meet interpretation to a strict absolutist of Sec- Assembly appropriates er the General Therefore, disagreement tion 230. our some, money purpose or not.26 To only degree. a matter of Under the ma- may abrogate powers seem to view, jority the people of the Common- legislature even when it is not derelict protected by wealth will not be the Ken- to appropriate in its constitutional duties Police, tucky objectionably, State more legitimate purposes. attempt Let me the ballot box will shut. In other words, assuage emergen- those fears. Genuine pre- could exceedingly rare. Destruction of by refusing pay vent elections the cost. cies are By majority opinion, bridge by earthquake this unreasonable would be a to pass emergency result will come the next time the that must genuine government appropria- General fails to enact legisla- to confront or without be with .able tions. A more reasonable construction of purpose. for that But tive protect legislative Section 230 would the on exceptionally high to traffic responding authority appropriations, to enact while at bridge emergency. not be such an would recognizing peo- the same time that the majority specifically Astonishingly, the has ple’s must continue business when Quertermous, which overruled Miller v. defaults its constitu- respond allowed the Governor to to colos- duty pass appropriations. tional to Such emergencies. Section sal and immediate interpretation permit an would also two a genuine 230 cannot mean that in such spending. additional sources of executive may only call the emergency the Governor session, legislature special back into but be First, it important recognize to that impotent. interpreta- an otherwise Such power required by to fund what is to a very potential tion has the real lead power constitution includes the to fund the cataclysmic necessary incidentals to those functions.24 result. (4 Wheat.) (Ky.2004). Maryland, 788-89 See

24. M’Culloch v. 17 U.S. 25. 153 S.W.3d Chandler, (1819) (Ky. Strong 70 S.W.3d 405 (allowing also 4 L.Ed. 579 establish though even was not ment of National Bank it 2002). ap power an an enumerated because it was Quertermons, propriate exercising expressly means of 26. See Miller v. (1947). power). S.W.2d 389 enumerated sum, majority opinion In I construes so- would allow executive because spend categories. furtherance of five state called mandates and statuto- federal First, spending should be allowed to effec- ry imple- and constitutional directives to specified tuate statutes that call for a sum legisla- further programs by passing ment Second, money spent. to be there to. “appropriations” tion as sufficient allow spending should be in furtherance of the treasury. payment the state Third, Supremacy spend- federal Clause. variety majority opinion The cites ing to fulfill constitutional mandates should statutory allegedly federal schemes Fourth, permitted. there should be a states, including Kentucky, to require the necessary in- common-sense extension describing these as “federal spend money,1 finally, cidentals. And executive majority opinion mandates.” The claims power genuine should have to meet directly that it address the issue does emergencies that threaten the welfare of mandates, it nonetheless of federal but citizens Commonwealth. Supremacy claims that the Clause opinion that this al- Those who believe require could United States Constitution great upon pow- lows too an encroachment regard funded any such mandate be constitutionally assigned legisla- er to the Kentucky Consti less of Section 230 of ture should be there are reminded that the any tution. But actual mandate two remedies. The General scheme, and thus regulatory states enact a may act in accordance what is con- with As the spend money, is unconstitutional. templated by the constitution and the noted in Supreme United States Court money to appropriate oper- electorate and States,2 New York v. “the Framers United alternative, In it government. ate the explicitly chose a that confers Constitution may enact statutes that outline how the indi upon Congress power regulate operate legisla- is to when the viduals, not States.”3 pass appropriations ture is unable to bills. appropriate money pow- York, is a In New the Court was faced with properly belonging legislature. er question constitutionality' However, if it does not fulfill its constitu- parts regulatory of a federal scheme aimed (cid:127) duty, tional others must. controlling low-level radioactive waste. pairing upheld provisions The Court KELLER, Opinion by Justice with right comply to choose whether to part. in concurring part dissenting noted comply. an incentive to The Court attached to the majority opinion may I concur in the that conditions While The Court also receipt it of the Ken- of federal funds.4 insofar as reads Section 230 Congress has the authori tucky strictly limiting “[WJhere as ex- noted: Constitution activity treasury ty regulate private in- under penditures from the state to to Clause, recognized we have stances where have been Commerce law, respectfully Congress’s power I must dissent to offer States 144, 1. See, e.g., seq. (Occupa § et 2. 505 U.S. S.Ct. 120 L.Ed.2d 29 U.S.C. 112 1970); (1992). Safety tional and Health Act of (Surface seq. Mining § et Con U.S.C. 1977); trol and Reclamation Act of 33 U.S.C. 3. at 112 S.Ct. at 2423. Id. (Clean Act); seq. § 1251 et Water U.S.C. (Resource seq. § 6901 et Conservation S.Ct at 2423. 4. Id. 1976); Recovery Act of 42 U.S.C. 7401 et (Clean Act). seq. Air Congress Where en- regulating activity according pre-empted. not choice rather than having courages regulation to federal standards or state law state regulation.”5 it, federal The pre-empted compelling governments state remain cited, to directly by citing Court either or pref- to the local electorate’s responsive statutes, addressing cases the Surface erences; accounta- state officials remain Act, Mining Control and Reclamation people.7 ble to the Safety Act of Occupational and Health distinguished Court between The and Re the Resource Conservation of the scheme provisions true “incentive” Act— covery Act of the Clean Water regulate outright and the commands majority opinion all of which the provisions requiring it addressed the when present cites case and describes as federal ownership of ra- the states either to take examples second mandates —as of this regulate according dioactive waste or to type programs, incentive allowable or Congress. The the instructions of Court “program[s] cooperative federalism.”6 provisions declared those unconstitutional In upholding approaches, these incentive Amendment, violating noting as the Tenth that compliance the Court observed succinctly: may “The Federal Government voluntary: states was compel not to enact or adminis- States methods, By any either these regulatory program.”8 ter a federal permissible encouraging other method of The Court revisited the issue federal a policy State to conform to federal mandates Printz v. United States9 choices, the residents the State retain Brady addressing provisions when the ultimate decision as to whether or that im- Handgun Prevention Act Violence If comply. not the State will a State’s posed requirements on state law enforce- policy citizens view federal as sufficient- struck Again ment officers. the Court interests, ly contrary they may to local provisions, stating down the “the Federal grant. elect to decline a federal If state may compel Government States prefer residents would their ac- implement, by legislation or executive to devote its attention and resources to tion, regulatory programs.”10 federal problems other than those deemed im- by expanding holding Court concluded portant by Congress, they may choose in New York: to have the Federal rather Government than the expense Congress State bear the held New York that We federally regulatory program, compel mandated cannot to enact States they may supplement regulatory program. a federal continue enforce program Today Congress cannot extent state law we hold influencing policy 5. Id. at S.Ct. at method of State’s variety have choices. Our identified cases methods, coercion, by outright short of (quoting Virginia 6. Id. Hodel v. Min Surface Congress may urge adopt a State to a Assn., Inc., U.S., which 264, ing & Reclamation legislative program in- consistent with federal 289, 101 S.Ct. 69 L.Ed.2d 1 terests."). (1981)). 188, at 8. Id. at 112 S.Ct. 2435. 168, 7. Id. at 112 S.Ct. 2408 112 S.Ct. at 2424 167, added); (emphasis see also id. at 898, 2365, 9. U.S. S.Ct. 138 L.Ed.2d ("This say S.Ct. at is not to that Con- 914(1997). gress ability encourage a State to lacks the to regulate particular way, Congress in a or that may S.Ct. at 2380. not hold out incentives to the States as a 10. Id. exist, they binding, certainly are not prohibition circumvent that con- directly. supersede do not Section 230 of the Ken- scripting the State’s officers Constitution, they tucky are un- may neither because The Federal Government constitutional as a violation Tenth requiring directives issue States Amendment. particular problems, address nor com- officers, mand the or those of States’ that are a claims there majority also subdivisions, political their to adminis- statutory consti- variety Kentucky ter or enforce a federal regulatory or consti- that contain provisions tutional program. pol- It matters not whether ap- independent of appropriations tute involved, icymaking case-by- is and no in the biennial normally found propriations weighing case of the burdens or bene- but, there is bill, my opinion, budget necessary; fits is such commands are reading in the such a simply support no for fundamentally incompatible our with an majority finds example, text. For system constitutional of dual sover- 18A.15(2), inherent KRS appropriation eignty.11 shall provides “[ajppropriations which expenditure general be made from the While the full effect of these is cases to meet the estimated fund the cabinet time,12 this, surely unknown at a “mandate” administering pro rata share of the cost of requires from the federal ” .... But provisions chapter of this spend money treasury state shall be language “appropriations improper impingement the sort of on state an appropria- constitute made” does not sovereignty rejected in that the Court New tion, i.e., a sum of “setting aside [of] York and Printz. And as the Court noted rather, it money public purpose”;13 for a York, “mandates;” many in New so-called to be appropriations is a command for opin- including majority those cited future, budget in a bill. e.g., case, actually just ion in this are incentive language to meet the This is not sufficient voluntary programs compliance that allow requirements of which allows Section budget By failing pass the states. payment only appropriation an. after separate or to to fund enact law has been made. programs, in those the Gen- participation choosing, eral albeit de- example type'-of As an of this inherent fault, no fed- participate. Constitution, not to There is in the the ma- appropriation requirement, operating through eral jority points provides to Section otherwise, that re- maintain Supremacy Clause shall “[t]he Commonwealth all quires expenditure discipline, provide of state funds control of the sanitary conditions of programs. ques- supplies, these And there is little and for the ” again, provision .... But tion that if actual federal mandates do the convicts by Congress porting requirements imposed on 11. Id. at 117 S.Ct at 2384. pursuant to its state and local authorities Jackson, C. Federalism and the 12. See Vicki similarly powers inval Commerce Clause Principle, Uses and Limits Law: Printz id.”). (1998) 111 HARV. L. REV. 2205-06 (“The breadth of s effect on other feder Printz (8th LAW DICTIONARY 110 13.BLACK'S unclear, although num al statutes is small GARNER, ed.2004); A. A see also BRYAN clearly invalid under ber of statutes are MODERN LEGAL USAGE DICTIONARYOF Printz, Printz.")', 521 U.S. at see also ed.1995) (2d (defining “appropriation” in (O’Connor, J., concurring) S.Ct. at 2385 voting part public body's "a act of a sum ("[T]he appropriately Court from de refrains purposes”). money any public for of various ciding purely re whether other ministerial Assembly. setting money this action of the General contains no aside of for tive Again, no this is a command to the General purpose and command that the state clearly not something; to do it is payment. only con- make Section appropriation. Reading “appropria- an that tains the command the Common- language contradicts the tion” into discipline pro- shall maintain of and wealth that clear command of Section 230 “[n]o prisoners. vide for the needs of While from the money be drawn State shall governments there is little doubt that have Treasury, appropri- except pursuance implied powers,14 some such implications ations made law....” must fail in the face of express constitu- statutory provisions tional and to the con- By requiring spending that be allowed trary. Kentucky Section 245 Were statutory pro- for those constitutional and vacuum, to exist in a Constitution then the for previously provided visions at the level requirement pro- that the Commonwealth majori- expired budget, biennial the prisoners surely imply vide for would effect, ty, statutory reads into these and i.e., so, power means to do for pay provisions provi- constitutional a holdover guards, supplies, etc. But we must read analogous budget sion to the continuation Section and the various other similar statutory place scheme that was in provisions majority, light cited repealed by 1918 until 1983 when it was any implied Section which eliminates Assembly.17 statutory But spend money from the state trea- provisions repealed, holdover were sury express absent an “appropriation no actual provision there is constitutional law.”15 applicable provisions to the constitutional that programs command certain to be en- majority also cites Section troubling acted. This is most because if provides which for the establishment and majority opinion inferring is correct in public maintenance of schools: “The Gen- capacity, such a then can the holdover how Assembly shall, eral by appropriate legis- ever decrease lation, provide for an system efficient spending programs for such if a holdover common schools throughout provision aspect is an inherent of those State....”16 The majority interprets this provisions impose constitutional as sufficient to constitute an appropriation duty Assembly? on the General Either purposes of Section but this expenditure the command to make the is simply section does not direct that costs of there, or it is not. And either the com- establishing maintaining public spending mand to maintain levels at their fact, paid. very schools be In lan- there, previous is or it is not. In the level guage implies of Section 183 provisions case like Sections 183 establishing maintaining means for present. neither command is schools, public presumably includes services, cetera, payment for supplies, say only et This not to that these are the provided through legisla- statutory are to be other provisions constitutional (J. 14. THE FEDERALIST No. § at 290 Mad 15. KY. CONST. 230. ison) 2000) (Robert ("No Scigliano ed. axi law, clearly om is more established in or in added.) (Emphasis reason, than that wherever the end is re authorized; quired, the means wherever a (repealed 17. See KRS 45.120 general power thing given, every to do a Acts, 450, 79). ch. particular power necessary doing it is included.’').

require an for if providing ap- mg appropriate funding, end without laws neces- propriations supply simply sary, carrying-out to that end. I for its enactments. It is offer provisions examples prerogative these as of the not the of the Executive to overreaching majority opinion. pick up by following in the the the Sec- slack com- stead, money Assembly’s tion 230’s command that shall mand in the General “[n]o Judiciary’s be Treasury, except especially preroga- drawn the State it is not the pursuance Assembly of tive to order the General to law” is a any implied powers limitation on followthe command.19 that the Governor or the General Assem- contains Admittedly, our Constitution bly might try to justify with reference to among the various and balances checks other sections of the Constitution. example, three Judicia- branches. For Constitution,

Upholding the and hold void ry power be it State has the to review Federal, laws; or merely responsibility is not Assem- unconstitutional General officers; Judiciary; duty bly impeach of the it is the all civil power three has the to carry branches to out those to veto power fundamental and the Governor has the mandates. As- legislation Where Constitution com- and to convene the General mands sembly to do some- for But our Con- special sessions. thing, e.g., duty separation “[i]t shall be of the stitution explicit contains law, such, General to provide by powers provisions.20 power As practicable, soon as for remedy gov- the establishment to a one branch of failure duty explicitly maintenance of an institution or insti- as- perform ernment to detention, correction, signed rarely tutions for the in- to lies byit our Constitution Instead, struction and reformation of all persons one of the other branches. age eighteen years, remedy under the convicted for a failure to act lies such legisla- people of such felonies and such misdemeanors as If the various themselves. law,”18 may closing designated by prospect be it is the tors are faced with Assembly’s duty closing prisons,22 General to follow that schools21 or of law, by enacting positive command includ- of those along impact with the attendant § persons, being 18. KY. CONST. 252. or collection of one of those departments, any power prop- shall exercise (Al- 19. See THE FEDERALIST No. at 465 others, except erly belonging to either of the Hamilton) (Clinton ed., exander Rossiter expressly directed in the instances hereinafter 1961) (“Whoever attentively the dif- considers permitted.”). or departments perceive ferent must that, they sepa- ain in which (requiring § See KY. CONST. other, judiciary, rated from each from the shall, by appropriate "[t]he functions, always nature of its be the will least legislation, provide system of for an efficient dangerous tution; political rights of the Consti- State,” (em- throughout the common schools capacity because it be will least in added), directing phasis that costs of without annoy injure judiciary .... The .. . them establishing running be those schools has influence over either sword or the no paid). purse.”). ("The § powers 20. See KY. CONST. (requiring § 22. See KY. CONST. government of the Commonwealth of Ken- control Commonwealth shall maintain "[t]he tucky shall be divided three distinct de- into supplies, discipline, provide all partments, and each them confined to sanitaiy and for the of the con- conditions wit; separate body magistracy, to Those payment providing victs” without of those one; legislative, which are those which are expenses). executive, another; and those which are another.”); ("No judicial, person id. constituencies, closings on their all due to funding

a lack of caused the failure to budget appropriations, or to enact

enact they carry

I out the believe will duties

imposed on them constitutional those If I am and the

provisions. wrong legisla- duties, pay

tors do not heed to those then likely steep

their constituents will exact a It

price polls at the the next election. people from whom all the of this derives,23

Commonwealth the end

they are the ultimate check on each branch government.

of our

SCOTT, J., joins opinion, concurring part dissenting part. BREWER, Repre

Leona as Personal

sentative of the Estate of Edward

Rose, Deceased, Appellant, COMPANY,

NATIONAL INDEMNITY Corporation, al.,

a Nebraska et

Appellees.

No. 2004-SC-000270-CL.

Supreme Kentucky. Court of

May ends, ("All power they have at times an inalien- 23. KY. CONST. is inherent these all alter, governments people, right in the and all free reform or able and indefeasible authority founded on their and instituted in such a manner abolish their peace, safety, happiness, protec- their and the they may proper."). deem property. tion of For the advancement of

Case Details

Case Name: Fletcher v. Commonwealth

Court Name: Kentucky Supreme Court

Date Published: May 19, 2005

Citation: 163 S.W.3d 852

Docket Number: 2005-SC-0046-TG, 2005-SC-0049-TG, 2005-SC-0050-TG

Court Abbreviation: Ky.