Fletcher v. Com., No. 2005-SC-0046-TG.

• Decision Date: 19 May 2005
• Docket Number: No. 2005-SC-0050-TG.,No. 2005-SC-0046-TG.,No. 2005-SC-0049-TG.
• Citation: 163 S.W.3d 852
• Parties: Ernie FLETCHER, in His Official Capacity as Governor of Kentucky; and Robbie Rudolph, in His Official Capacity as Secretary of the Finance and Administration Cabinet, Appellants, v. COMMONWEALTH of Kentucky, Office of the Attorney General ex rel. Gregory D. Stumbo; Common Cause of Kentucky, a Non-Profit, Non-Partisan Organization, by Its Chairman Richard V. Beliles, as a Kentucky Taxpayer; Steve Nunn, Representative; Jim Wayne, Representative; Harry Moberly, Jr., in His Official Capacity as Member of the House of Representatives of the Commonwealth of Kentucky; Joe Barrows, in His Official Capacity as Member of the House of Representatives of the Commonwealth of Kentucky; Jim Callahan, in His Official Capacity as Member of the House of Representatives of the Commonwealth of Kentucky; David L. Williams, in His Capacity as President of the Senate of the Commonwealth of Kentucky; Jody Richards, in His Capacity as Speaker of the House of Representatives of the Commonwealth of Kentucky; Kentucky Retirement Systems, Board of Trustees; and Commonwealth of Kentucky, Department of the Treasury ex rel. Jonathan Miller, Appellees, and Steve Nunn; and Jim Wayne, Appellants, v. Commonwealth Of Kentucky ex rel. Governor Ernie Fletcher; Robbie Rudolph, Commonwealth of Kentucky, Secretary of Finance & Administration; Gregory D. Stumbo, Commonwealth of Kentucky, Attorney General; Jonathan Miller, Commonwealth of Kentucky, State Treasurer; David Williams, Commonwealth of Kentucky, Senate President; Jody Richards, Commonwealth of Kentucky, House Speaker; Common Cause of Kentucky and Richard Beliles; Kentucky Employees Retirement Systems, Board of Trustees; Harry Moberly, Representative, in His Official Capacity; Jim Callahan, Representative, in His Official Capacity; and Joe Barrows, Representative, in His Official Capacity, Appellees, and Commonwealth Of Kentucky, Department of the Treasury, Acting Through the Treasurer of the Commonwealth, Jonathan Miller, Appellant, v. Commonwealth of Kentucky, Office of Attorney General Ex rel. Gregory D. Stumbo; Commonwealth of Kentucky, Office of the Governor ex rel. Ernie Fletcher; Commonwealth of Kentucky, Finance and Administration Cabinet ex rel. Robbie Rudolph; David Williams, in His Official Capacity as President of the Senate; Jody Richards, in His Official Capacity as Speaker of the House of Representatives; Steve Nunn, Representative; Jim Wayne, Representative; Common Cause of Kentucky and Richard Beliles; Kentucky Retirement Systems, Board of Trustees; Harry Moberly, Representative; Jim Callahan, Representative; and Joe Barrows, Representative, Appellees.
• Court: United States State Supreme Court — District of Kentucky

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163 S.W.3d 852 Ernie FLETCHER, in His Official Capacity as Governor of Kentucky; and Robbie Rudolph, in His Official Capacity as Secretary of the Finance and Administration Cabinet, Appellants,
v.
COMMONWEALTH of Kentucky, Office of the Attorney General ex rel. Gregory D. Stumbo; Common Cause of Kentucky, a Non-Profit, Non-Partisan Organization, by Its Chairman Richard V. Beliles, as a Kentucky Taxpayer; Steve Nunn, Representative; Jim Wayne, Representative; Harry Moberly, Jr., in His Official Capacity as Member of the House of Representatives of the Commonwealth of Kentucky; Joe Barrows, in His Official Capacity as Member of the House of Representatives of the Commonwealth of Kentucky; Jim Callahan, in His Official Capacity as Member of the House of Representatives of the Commonwealth of Kentucky; David L. Williams, in His Capacity as President of the Senate of the Commonwealth of Kentucky; Jody Richards, in His Capacity as Speaker of the House of Representatives of the Commonwealth of Kentucky; Kentucky Retirement Systems, Board of Trustees; and Commonwealth of Kentucky, Department of the Treasury ex rel. Jonathan Miller, Appellees, and
Steve Nunn; and Jim Wayne, Appellants,
v.
Commonwealth Of Kentucky ex rel. Governor Ernie Fletcher; Robbie Rudolph, Commonwealth of Kentucky, Secretary of Finance & Administration; Gregory D. Stumbo, Commonwealth of Kentucky, Attorney General; Jonathan Miller, Commonwealth of Kentucky, State Treasurer; David Williams, Commonwealth of Kentucky, Senate President; Jody Richards, Commonwealth of Kentucky, House Speaker; Common Cause of Kentucky and Richard Beliles; Kentucky Employees Retirement Systems, Board of Trustees; Harry Moberly, Representative, in His Official Capacity; Jim Callahan, Representative, in His Official Capacity; and Joe Barrows, Representative, in His Official Capacity, Appellees, and
Commonwealth Of Kentucky, Department of the Treasury, Acting Through the Treasurer of the Commonwealth, Jonathan Miller, Appellant,
v.
Commonwealth of Kentucky, Office of Attorney General Ex rel. Gregory D. Stumbo; Commonwealth of Kentucky, Office of the Governor ex rel. Ernie Fletcher; Commonwealth of Kentucky, Finance and Administration Cabinet ex rel. Robbie Rudolph; David Williams, in His Official Capacity as President of the Senate; Jody Richards, in His Official Capacity as Speaker of the House of Representatives; Steve Nunn, Representative; Jim Wayne, Representative; Common Cause of Kentucky and Richard Beliles; Kentucky Retirement Systems, Board of Trustees; Harry Moberly, Representative; Jim Callahan, Representative; and Joe Barrows, Representative, Appellees. No. 2005-SC-0046-TG. No. 2005-SC-0049-TG. No. 2005-SC-0050-TG. Supreme Court of Kentucky. May 19, 2005.

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John C. Roach, Office of the Governor, Frankfort, M. Holliday Hopkins, Sheryl G. Snyder, David Seth Kaplan, Jason Patrick Renzelmann, Frost, Brown, Todd, LLC, Louisville, Counsel for Appellants Ernie Fletcher, in His Official Capacity as Governor of Kentucky; and Robbie Rudolph, in His Official Capacity as Secretary of the Finance and Administration Cabinet (2005-SC-0046-TG); and for Appellees Commonwealth of Kentucky ex rel. Governor Ernie Fletcher; and Robbie Rudolph, Commonwealth of Kentucky, Secretary of Finance & Administration (2005-SC-0049-TG and 2005-SC-0050-TG).

Walter A. Baker, Glasgow, Phillip J. Shepherd, Frankfort, Counsel for Appellants Steve Nunn; and Jim Wayne (2005-SC-0049-TG).

David J. Hale, Courtney L. Rice, Reed, Weitkamp, Schell & Vice, Louisville, Counsel for Appellant Commonwealth of Kentucky, Department of the Treasury, Acting Through the Treasurer of the Commonwealth, Jonathan Miller (2005-SC-0050-TG).

C. David Johnstone, Office of the Attorney General, Robert S. Jones, Assistant Attorney General, Office of the Attorney General, Pierce Butler Whites, Assistant Deputy Attorney General, Janet M. Graham, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee Commonwealth of Kentucky, Office of the Attorney General ex rel. Gregory D. Stumbo (2005-SC-0046-TG, 2005-SC-0049-TG and 2005-SC-0050-TG).

Richard V. Beliles, Prospect, Counsel for Appellee Common Cause of Kentucky, A Non-Profit, Non-Partisan Organization, by Its Chairman Richard V. Beliles, as a Kentucky Taxpayer (2005-SC-0046-TG, 2005-SC-0049-TG and 2005-SC-0050-TG).

Walter A. Baker, Glasgow, Phillip J. Shepherd, Frankfort, Counsel for Appellees Steve Nunn, Representative; and Jim Wayne, Representative (2005-SC-0046-TG and 2005-SC-0050-TG).

Donald P. Cetrulo, Lexington Financial Center, Lexington, Timothy Firkins, Assistant Attorney General, John S. Gillig, Frankfort, Counsel for Appellees Harry Moberly, Jr.; Joe Barrows; and Jim Callahan, in Their Official Capacities as Members of the House of Representatives of the Commonwealth of Kentucky; and Jody Richards, in His Capacity as Speaker of the House of Representatives of the Commonwealth of Kentucky (2005-SC-0046-TG,

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2005-SC-0049-TG and 2005-SC-0050-TG).

Harland C. Hatter, Frankfort, Paul Emmanuel Salamanca, Lexington, Counsel for Appellee David L. Williams, in His Capacity as President of the Senate of the Commonwealth of Kentucky (2005-SC-0046-TG, 2005-SC-0049-TG and 2005-SC-0050-TG).

Lizabeth Ann Tully, James D. Allen, Stoll, Keenon & Park, LLP, Lexington, J. Eric Wampler, Kentucky Retirement Systems, Perimeter Park West, Frankfort, Counsel for Appellee Kentucky Retirement Systems, Board of Trustees (2005-SC-0046-TG, 2005-SC-0049-TG and 2005-SC-0050-TG).

David J. Hale, Ridley M. Sandidge, Jr., Reed, Weitkamp, Schell & Vice, Louisville, Counsel for Appellee Commonwealth of Kentucky, Department of the Treasury ex rel. Jonathan Miller (2005-SC-0046-TG and 2005-SC-0049-TG).

Opinion of the Court by Justice COOPER.

The issue presented by this appeal is whether the Governor of the Commonwealth of Kentucky may order money drawn from the state treasury to fund the operations of the executive department of government if the General Assembly fails to appropriate funds for that purpose. The issue arose when the General Assembly adjourned sine die on April 14, 2004, without adopting an executive department budget bill for the 2004-06 biennium.

Unlike some state constitutions, e.g., Cal. Const. art. IV, § 12(c), the Constitution of Kentucky does not require a state "budget." It does, however, require that any such budget be balanced. That constitutional requirement derives from Sections 49, 50, and 171, which together authorize and require the General Assembly to raise revenues sufficient to pay the debts and expenses of government. See generally Dalton v. State Prop. & Bldg. Comm'n, 304 S.W.2d 342, 347-51 (Ky.1957); State Budget Comm'n v. Lebus, 244 Ky. 700, 51 S.W.2d 965 (1932). The first statutory provisions describing a budgeting process were enacted in 1918 and compiled at KS § 1992, et seq. 1918 Ky. Acts, ch. 12. The present version, KRS Chapter 48, is a comprehensive scheme that describes the process for preparing and enacting a "budget bill" by which the revenues of the Commonwealth are appropriated for the operation of the three departments of government during the ensuing biennium. KRS 48.300(1). All provisions of a budget bill expire at the conclusion of the second fiscal year of the biennium. KRS 48.310(1). If a budget bill is enacted at an extraordinary session, Ky. Const. § 80, its provisions expire on "July 1 of the year in which the next even-numbered year regular session takes place." KRS 48.310(1).

Prior to 2001, the General Assembly met in regular legislative session only for sixty legislative days in even-numbered years. Ky. Const. §§ 36 (unamended), 42 (unamended). Necessarily, the budget bill for the next biennium was enacted during those sessions. Sections 36 and 42 were amended in 2000 to add an additional regular session of thirty legislative days in oddnumbered years. Id. (as amended). However, because all existing budget bills expire on July 1 of even-numbered years, the General Assembly has continued to address budget issues during the sixty-day even-numbered-year sessions. On three occasions within a ten-year period, the General Assembly adjourned its sixty-day regular session without enacting an executive department budget bill for the next biennium. On the first occasion, 1994, Governor Jones reconvened the General Assembly into an extraordinary session, during which the members resolved their

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differences and enacted a budget bill for the 1994-96 biennium.

At the 2002 regular session, the Republican-controlled Senate and the Democratic-controlled House of Representatives deadlocked on whether to appropriate funds for the election campaign fund created by the Public Financing Campaign Act, KRS 121A.020, and adjourned sine die on April 15, 2002, without enacting a budget bill for either the executive or judicial departments for the 2002-04 biennium. On April 17, Governor Patton reconvened the General Assembly into an extraordinary session for the sole purpose of negotiating a budget bill. Recalcitrance prevailed, however, and the General Assembly adjourned the special session on May 1, 2002, without enacting a budget bill for either of the other two departments of government.

On June 26, Governor Patton promulgated an "Executive Spending Plan" and authorized the Secretary of the Finance and Administration Cabinet to issue warrants against the treasury to implement that plan "and to assist the Court of Justice as may be necessary to implement lawful expenditures for its operation." Exec. Order No.2002-727, para. 6, at 4.¹ In essence, the Governor adopted his own executive department budget and ordered appropriations from the state treasury to fund it. The Treasurer filed a petition in the Franklin Circuit Court for a declaration of rights, KRS 418.040, to determine the...