By Charles Wolfe
The Associated Press

FRANKFORT - The increasing likelihood that Gov. Ernie Fletcher will be running state government on his own spending plan in the absence of an enacted budget has Attorney General Greg Stumbo eager to go to court.

Assuming he gets there, Stumbo could find himself trying to finesse his way through a political mine field.

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The attorney general would like the lead role in a landmark constitutional court case. He does not, however, want to be blamed if state government is shut down. The Fletcher administration will not allow him to have the one without risk of the other.

Stumbo correctly states that the idea of government money being spent by gubernatorial order, not by budget appropriation, raises serious constitutional questions: Is it legal? If so, to what extent? Could the spending plan be used to suspend or otherwise circumvent statutes?

The questions were left unanswered in 2002, the only other time a polarized Senate and House failed to pass a budget.

Then-Gov. Paul Patton drew up a spending plan. A suit was filed, not by the attorney general but by the state treasurer, Jonathan Miller.

Patton's nemesis, Republican Senate President David Williams, joined in the suit. He said Miller's suit was "collusive" and intended to achieve a judge's blessing for Patton's spending plan.

No blessing resulted. No ruling of any kind, for that matter. The suit was still pending in Franklin County Circuit Court when the General Assembly finally passed a budget in 2003, so it was dismissed as moot. The limits, if any, of the governor's power remained an open question.

Stumbo wants to go back to court but does not want to go alone. Earlier this month, he invited other constitutional officers, the legislative leaders and Fletcher himself to join him in making "an amicable request for a declaration of rights" from the circuit court.

Not surprisingly, the administration declined. Fletcher instead tossed the bomb back to Stumbo. In a letter to Stumbo, Fletcher's general counsel, John Roach, asked the attorney general to issue a public opinion spelling out his legal position.

"I can assure you," Roach wrote, "that the governor would be interested in your opinion as to which government operations and programs are essential and which ones you believe should be shut down or suspended."

Fletcher followed up on that point last week. Asked if he feared a court would order state government to shut down, the governor said: "That's always a possibility." He added that whoever had filed the suit would have an obligation to give the court an opinion about what was essential or nonessential.

Stumbo took the temporary out last week. He said in a letter to Fletcher that he would hold off on his lawsuit until at least June 1, "based upon my belief that both you and the General Assembly are working in good faith toward resolution of the budget impasse."