By Charles Wolfe
The Associated Press

FRANKFORT - The state Court of Appeals on Friday refused to order Gov. Ernie Fletcher to call the General Assembly back to the Capitol to pass a budget.

A three-judge panel, ruling in an appeal by three legislators, said the Kentucky Constitution gives the governor total discretion about ordering a special legislative session.

The legislators - Reps. Charles Geveden of Wickliffe, Steve Nunn of Glasgow and Jim Wayne of Louisville - argued that the constitution also prohibits the spending of state money without an appropriation.

Fletcher has been using his own "spending plan" to run state government since the fiscal year began July 1. The General Assembly adjourned in April without passing a new budget, thanks to an impasse between the Republican-controlled Senate and Democrat-controlled House over a tax plan Fletcher proposed.

The appeals court agreed that the absence of a budget "has raised serious questions" but that "the situation does not require us to jettison settled and basic constitutional principles."

The three legislators are among a host of people and organizations who have intervened in a lawsuit by Attorney General Greg Stumbo to challenge the constitutionality of Fletcher's "public services continuation plan."

Stumbo's challenge was limited to the issue of whether Fletcher could use a spending plan to suspend statutes - something done regularly by the General Assembly through its biennial budget law. Stumbo did not challenge the spending of unappropriated money, but many of the interveners did.

The General Assembly is not scheduled to meet again until January. Only the governor can call it into extraordinary session. Geveden, Nunn and Wayne contended that Fletcher had a duty to do that once the last budget expired June 30. A Franklin County Circuit Court judge ruled against them, leading to the appeal.

The trio "contend, in effect, that they have a right to be called into extraordinary session because that is a necessary step in ending what they characterize as the executive branch's unlawful expenditure of unappropriated state funds," the appeals court said in an opinion by Judge William L. Knopf of Louisville.

"We do not agree that (the constitution) implies or necessitates an exception to the separation of powers doctrine that would permit a court to interfere with the governor's exercise of this discretion," Knopf wrote, joined by Judge R.W. Dyche III of London

In a concurring opinion, Judge Rick A. Johnson of Mayfield contended that the governor's exercise of a discretionary political power was not even subject to court review.

Phillip Shepherd, an attorney for the three House members, said the group had not decided whether to try to press ahead to the Kentucky Supreme Court.

"We're disappointed but we recognize this is a unique question," Shepherd, of Frankfort, said in a telephone interview. "We're traveling in uncharted waters constitutionally."