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Thursday, March 10, 2005

Ind. Law - [Updated] Justices hear case on state spending rule

Some of you constitutional law junkies may recall that I ended a Feb. 25th ILB entry on "Where does the Indiana Constitution say that?" with a discussion of this provision from Art. 10, Sec. 3 of the Indiana Constitution:

"No money shall be drawn from the Treasury, but in pursuance of appropriations made by law."
by writing:
There is no specific constitutional mandate that the General Assembly pass a budget each biennium. But if they don't, government will come to a halt when the appropriated funds run out. Although the circumstances are somewhat different, we saw that at the federal level during the Clinton administration, when non-essential portions of the federal government shut down because of the failure of Congress and the Executive (Newt and Bill) to arrive at agreement.
Earlier, I had quoted from others who said that although nowhere in the Indiana Constitution does it say "The General Assembly shall pass a budget each biennium," the "super-long (and tense) special sessions that we had during budget years (esp. 1993) effectively concluded that the Governor could not do anything other than help preserve the public health and safety if there was no budget in place . . .".

Given this background I was fascinated to see a story in the Louisville Courier Journal today headlined "Justices hear case on state spending rule: Governor's budget power challenged." Some quotes:

FRANKFORT, Ky. -- Kentucky's constitution says the state shall spend "no money" unless lawmakers vote to do so, but a lawyer for Gov. Ernie Fletcher said yesterday that the phrase should not be taken literally.

The lawyer, Sheryl Snyder, told the Kentucky Supreme Court that the constitution's wording on appropriations should not be made "to defeat the ultimate end of government, which is the safety and happiness of the people."

Snyder was making the point as part of an appeal of a ruling in a lawsuit challenging the governor's authority to spend money when lawmakers fail to pass a budget bill, as occurred in 2002 and last year.

Justice William Cooper questioned Snyder's interpretation. "We're dealing with a constitutional provision that says 'no money' -- 'no money' -- shall be drawn. 'Shall,' " Cooper said.

Justice Will Scott echoed that sentiment later, as the other side argued that Fletcher's spending went beyond essential services. The constitution says nothing about essential services, Scott said: "It says, 'No money.'"

[Updated 3/11/05] The Cincinnati Enquirer has an editorial today on the argument before the Kentucky Supreme Court. Some quotes:
Twice in recent years lawmakers have deadlocked over partisan differences, and in the two cases, Democrat Paul Patton and Republican Ernie Fletcher kept state government open by issuing short-term executive spending orders. In December, Franklin County Circuit Judge Roger Crittenden slammed both the lawmakers and Fletcher - the legislature for failing to pass a budget and the governor for spending without an approved budget.

The risk of another budget impasse between majority Senate Republicans and House Democrats remains alive. Kentucky's justices need to reconcile conflicting directives in the state Constitution and resolve this dispute between the different branches of government.

Some lawmakers and even justices in Wednesday's arguments suggested perhaps the governor in such cases should call the legislature's bluff and shut down the government. That's no option, and Kentuckians rightly voiced outrage in previous years when lawmakers deadlocked and put families and state programs at risk. Just because legislators fail to do their duty shouldn't mean the governor must fail his.

Kentucky's Constitution says: "No money shall be drawn from the State Treasury, except in pursuance of appropriations made by law." But elsewhere it requires spending for courts, law enforcement and other state functions. Fletcher's lawyers argue the governor has the power and duty to protect citizens' safety and well being, and that although he could call a special session, in cases when lawmakers can't agree, it would only waste taxpayer dollars.

If there is another impasse, all branches should be clear about their powers and duties. Budget stall-outs every two years only makes it tougher for Kentucky to catch up when the impasses are resolved.

Posted by Marcia Oddi on March 10, 2005 03:57 PM
Posted to Indiana Law