Thursday, June 17, 2004

Fletcher can spend, or can he?

Suit seeks clarity, but state shutdown possible

By Charles Wolfe
The Associated Press

FRANKFORT - Gov. Ernie Fletcher will not try to use an "executive spending plan" - his substitute for an enacted budget - to suspend laws that would disrupt the running of government, his lawyers said Wednesday.

If true, that might blunt the force of a lawsuit by Attorney General Greg Stumbo to test the limits of Fletcher's powers.

The lawsuit in Franklin County Circuit Court did not claim Fletcher could not spend state money in the absence of a budget.

Instead, Stumbo asked a judge to declare that the Kentucky Constitution does not permit a spending plan to be used for something governors and the General Assembly routinely do each biennium through the budget law - suspend statutes that would otherwise limit their powers.

The citizens group Common Cause has asked to intervene in the case to raise the argument Stumbo avoided - that the constitution forbids state money to be spent without an appropriation by the General Assembly. That also raised the specter of a state government shutdown.

Fletcher and Stumbo opposed allowing Common Cause into the case. Judge Roger Crittenden did not rule on the request Wednesday.

The legislature adjourned in April without passing a budget because of deep political divisions between the Senate, controlled by Fletcher's fellow Republicans, and the Democrat-controlled House. The current budget expires at midnight June 30.

The precedent for state spending by executive order was set by then-Gov. Paul Patton after the 2002 General Assembly failed to pass a budget.

Fletcher has not yet issued his order but could do so as early as next week. "The word 'suspend' will not be in that order," one of his attorneys, Sheryl Snyder of Louisville, said in a hearing in Franklin County Circuit Court.

Assistant Deputy Attorney General Pierce Whites said the Fletcher camp was engaging in "artful syntax." Whites said Fletcher has publicly stated his intention to suspend statutes.

Snyder and John Roach, the governor's general counsel, said in interviews after Wednesday's hearing that Fletcher could accomplish much of his purpose by simply directing the flow of money. They said they found that past budgets suspended many statutes for convenience or out of caution, not out of necessity.

However, one law routinely suspended in the past caps the number of full-time state employees at 33,000. The administration claims the work force currently stands at nearly 36,000, implying possible layoffs if Stumbo were to win in court. Whites insists the number is lower.

Meanwhile, an attorney for Senate President David Williams, who also is a defendant in the case, told the judge that the attorney general's assertion about suspension of statutes "is not quite as simple as he says or as painless as he says."

The attorney, Paul Salamanca, said a statute - not only the constitution - forbids the spending of unappropriated state money.

If that statute were not suspended, "it would be impossible to spend the first penny from the treasury" for even essential government operations, such as the Kentucky State Police and prisons, Salamanca said.

If Stumbo gets his way, Salamanca said, "The KSP has to park its cars and we have to open the doors to Eddyville."

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