Thursday, July 15, 2004

Judge says he won't make Fletcher convene session

By Charles Wolfe
The Associated Press

FRANKFORT - A judge Wednesday rejected a request by three state legislators to order Gov. Ernie Fletcher to call the General Assembly back into session to pass a budget.

The Fletcher administration argued that such an order would violate the constitutional doctrine that the three branches of government are to have separate, unique powers.

Franklin County Circuit Judge Roger Crittenden agreed. "It's a political thicket this court is not ready to jump into," Crittenden said at a hearing.

Three members of the Kentucky House, as part of a lawsuit testing the governor's power to run state government on a "spending plan" instead of a budget, contend Fletcher has a duty to call a special legislative session if state money is to continue being spent.

The General Assembly failed to pass a budget before adjourning its regular session on April 13. The Senate and House have been at an impasse over taxation.

In weighing the injunction request, Crittenden said he had to consider what would happen if the General Assembly were called back to Frankfort and immediately adjourned - something Fletcher would be powerless to prevent.

The judge said that would put him in the position of having to order the Legislature back again, "which I am not prepared to do at the present time."

The Kentucky Constitution gives the governor sole authority to call a special session of the General Assembly and to set the agenda. But adjournment is strictly up to the legislators.

The last budget expired when the fiscal year ended on June 30. Fletcher implemented his own spending plan to run state government through Sept. 30, the end of the first quarter of the new fiscal year.

Crittenden upheld Fletcher's plan last month. But he said Fletcher could not undertake projects or programs not previously authorized by the Legislature and that spending could not exceed "the last level the Legislature approved ... in its last, regularly approved budget," which was passed in 2003.

On Wednesday, Crittenden said he wanted to "correct my order" to specify that spending on any program area - not just overall spending - could not exceed previous appropriations. Fletcher's plan would steer more money to education.

Fletcher's general counsel, John Roach, said he believed Crittenden was talking about a year's worth of spending, not a quarterly rate of spending. He said the administration expects to have an enacted budget in less than a year, making the issue moot.

"I don't think there's going to be any change in the spending plan," Roach said.

During the hearing, the administration argued that no judge can compel a governor to take an inherently political and discretionary action.

But that's what was sought by the House members - Reps. Charles Geveden of Wickliffe, Jim Wayne of Louisville and Steve Nunn of Glasgow. Geveden and Wayne are Democrats. Nunn is a Republican who lost to Fletcher in the 2003 gubernatorial primary.

The legislators' attorney, Philip Shepherd, said the governor's power to call a special session was discretionary "up until the time the budget expired" on June 30. That "converts it from a discretionary act into a mandatory duty," Shepherd said at the hearing.

"The Legislature must be given an opportunity to perform its constitutional duty," Shepherd said.

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