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The Honorable Cecil Brown

Office of the Attorney GeneralJune 26, 2009

2009 WL 2184235 (Miss.A.G.)
Office of the Attorney General
State of Mississippi
*1 Opinion No. 2009-00399
*1 June 26, 2009

Re: Authority to Spend Funds after June 30, 2009

 
*1 The Honorable Cecil Brown
*1 Mississippi House of Representatives
*1 Post Office Box 1018
*1 Jackson MS 39215
Dear Representative Brown:
*1 In your letter requesting an official opinion from our office, you posit the following question: “Please render your Official Opinion as to the ability of the various state agencies and branches of government to operate and expend funds after July 1, 2009, if no appropriation bill is passed by the Legislature by that time.”
 
RESPONSE
 
*1 The Office of Governor has no authority to unilaterally declare an emergency and seek to keep all government offices open by executive order. However, the duties mandated by the people to all three branches of government as set forth in our state constitution must be carried out, even if the legislature is prevented from, fails or refuses to appropriate funds.
*1 There are four exceptions to the exclusive legislative right of appropriation: (1) offices and agencies expressly mentioned in the constitution; (2) agencies responsible for carrying out duties of government expressly mentioned in the constitution; (3) agencies responsible for administering funds, trusts or bonds for which the Legislature has authorized continuous funding; and (4) agencies responsible for administering federally mandated programs or federal court ordered functions. However, those offices or agencies in (1) and (2) may only expend such funds as are necessary to carry out the core functions of that office and in no case may the amount expended exceed the amount appropriated for the previous year for that same payment period.
*1 Agencies which are not expressly mentioned in the constitution, but perform duties expressly mandated in the constitution may expend such funds as are necessary to comply with that constitutional mandate. For example, the Department of Mental Health, although not expressly mentioned in the constitution, performs the constitutionally mandated duty to care for the insane.
*1 Agencies which are not expressly mentioned in the constitution and are not responsible for carrying out an express duty mentioned in the constitution, but which are responsible for administering a federally mandated program or duty required pursuant to a federal court order, may only expend such funds as are necessary to comply with the federal mandate or court order. For example, the Department of Human Services (DHS) and the Department of Public Safety (DPS) are not mentioned in the constitution, nor are their duties expressly stated in the constitution for which these agencies are responsible; however, the DHS is responsible for operating the training schools in a certain manner pursuant to court order and the DPS is responsible for accepting federally mandated Motor Voter registration forms.1 Consequently, these agencies may only expend funds sufficient to carry out these specific federally mandated programs or orders.
*2 Offices or agencies in charge of funds, trusts or bonds for which the Legislature has previously authorized continuous funding may expend funds from the Treasury. For example, bonded indebtedness must be paid, as well as benefits paid by the Public Employees Retirement System, the State and School Employees Insurance Fund, and the Workers Compensation Commission.
*2 Of course, the failure of an appropriation does not eliminate any state agency, its duties or authority to operate. Only the agency's ability to spend money is affected.
 
ANALYSIS
 
*2 A review of the relevant law instructs that the power to appropriate funds from the State Treasury resides with the Legislature. Article 1, Section 1 of the Mississippi Constitution divides the powers of government “into three distinct departments, and each of them confided to a separate magistracy, to-wit: those which are legislative to one, those which are judicial to another, and those which are executive to another.” In strong terms, our constitution further provides that “[n]o person or collection of persons, being one or belonging to one of these departments, shall exercise any power properly belonging to either of the others.” Miss. Const. art. 1, § 2. The constitution specifically recognizes in the Legislature the power of the purse: “No appropriation bill shall be passed by the Legislature which does not fix definitely the maximum sum thereby authorized to be drawn from the treasury.” Miss. Const. art. 4, § 63; see Miss. Const. art. 4, §§ 68, 69.
*2 The Mississippi Supreme Court has held emphatically that the power of the purse is exercised by the Legislature, with such “supreme prerogative” embedded in our constitutional, democratic system of checks and balances:
*2 Under all constitutional governments recognizing three distinct and independent magistracies, the control of the purse strings of government is a legislative function. Indeed, it is the supreme legislative prerogative, indispensable to the independence and integrity of the Legislature, and not to be surrendered or abridged, save by the Constitution itself, without disturbing the balance of the system and endangering the liberties of the people.
 
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*2 Legislative control over the treasury, which we recognize as the supreme legislative prerogative, involves the necessity of legislative appropriation in order to the payment of moneys out of the treasury. This is a fundamental principle of constitutional law. It is written in express terms or by necessary implication in the Constitutions of all free states. . . . When we consider . . . the jealous and wise restrictions imposed by the Constitution upon legislative power in the matter of the appropriation of public moneys, we are constrained to believe that the Constitution regards the Legislature as the sole repository of power to make appropriations of moneys to be paid out of the state treasury. We can no more infer the possibility of an appropriation by executive action of moneys for the payment of public debts than we could the levying of taxes by executive action for the same purpose. If the one may be inferred, the other may also; and thus the entire constitutional scheme for legislative control over the public revenues be subverted.
*3 Colbert v. State, 39 So. 65, 66-67 (Miss. 1905).
*3 The power to appropriate, however, derives from the constitution, which does not confine itself to that purpose alone. Mississippi's constitution establishes co-equal branches that exercise their own constitutional authority in accordance with our balanced system of government. No power of any co-equal branch can be exercised in such a manner as to establish the superiority of one branch over the others. The constitution, its mandates, and the structure of our civil government and society created by the constitution cannot be frustrated through the power to appropriate or the failure to exercise such power.2
*3 While the Legislature may have its “supreme prerogative,” the constitution remains the supreme law of the land, and its faithful execution may not be stymied by a lack of appropriations. The constitution provides for certain departments, offices and functions of government. These constitutionally mandated entities must perform their duty, and they maintain discretion to exercise their core authorities. These constitutional offices and functions cannot be allowed to atrophy. The Mississippi Supreme Court has directly spoken to this issue in the context of a recalcitrant county board of supervisors that would not provide the courts proper facilities:
*3 The same Constitutional requirement for our courts to exist obviously carries with it the duty on the part of the Legislative branch to provide sufficient funds and facilities for them to operate independently and effectively. Any holding otherwise would emasculate the constitutional mandate for three separate and co-equal branches of government by reducing courts to supplicants only of the Legislature.
*3 Of course, courts very largely are supplicants of the Legislative branch, with that branch providing the funds and facilities for courts to operate. And, it is not what judges individually or collectively think they should receive which controls, but what the Legislature in its wisdom decides. This discretionary authority of the Legislature is wide indeed, but it does not cover quite all the spectrum. If it fails to fulfill a constitutional obligation to enable the judicial branch to operate independently and effectively, then it has violated its Constitutional mandate, and the Judicial branch has the authority as well as the duty to see that courts do not atrophy. No court created by the Constitution is required to accept conditions which prevent it operating independently and effectively. Such court also has the duty under our governmental system to protect its own integrity. It likewise has the inherent authority as part of a separate and co-equal branch to make such orders to insure that independence and integrity.
*3 No court should ever usurp the authority of the Legislature to furnish what funds and facilities it deems proper except in cases of absolute necessity. On the other hand, if the Legislative branch fails in its constitutional mandate to furnish the absolute essentials required for the operation of an independent and effective court, then no court affected thereby should fail to act. It is the absolute duty of a court in such latter circumstances to act, and act promptly.
*4 Hosford v. State, 525 So. 2d 789, 797-98 (Miss. 1988) (emphasis added). Facing an invidious situation, the Mississippi Supreme Court recognized the constitutionally inherent authority of a co-equal department to protect itself from dereliction.
*4 With the present budget dispute, this State faces an unprecedented challenge that implicates the integrity of each constitutional department and office. Other State's have faced such a morass, and from those jurisdictions, one judicial decision stands out for its well-reasoned and principled approach: Fletcher v. Commonwealth of Kentucky, 163 S.W.3d 852 (Ky. 2005). In Fletcher, the Kentucky Supreme Court faced the issue of “whether the Governor of the Commonwealth of Kentucky may order money drawn from the state treasury to fund the operations of the executive department of government if the General Assembly fails to appropriate funds for that purpose.” 163 S.W.3d at 856.
*4 After considering relevant constitutional provisions, statutes and case law, the Kentucky Supreme Court reached three conclusions: First, the General Assembly possesses the explicit constitutional authority to appropriate money from the State Treasury. Fletcher, 163 S.W.3d at 863-64. In reaching this conclusion, the Kentucky Supreme Court relied upon the constitutionally mandated separation of powers and the authority over appropriations constitutionally vested in the General Assembly. Id. at 860-65. However, the Kentucky Supreme Court recognized the superiority of the State's constitution, as well as federal law, in holding that “in the absence of a specific appropriation, or a statutory, constitutional or federal mandate . . ., the unambiguous language of Section 230 prohibits withdrawal of funds from the state treasury.” Id. at 864-65 (emphasis added).
*4 Second, constitutional mandates, statutes that mandate expenditures on a continuing basis, and federal mandates must be implemented/funded. Id. at 865-68. The Kentucky Supreme Court noted that the constitution was the supreme law of the land to which all branches of government are subordinate. Id. at 865. “[C]onstitutional provisions are mandatory and never directory.” Id. at 866 (citation omitted). Thus, provisions mandating compensation for services rendered, i.e. the Governor's salary, must be paid. Id. Equally, the Court found that those “constitutional mandates that can only be implemented by the expenditure of funds from the treasury” must also be paid. Id. The Kentucky Supreme Court reasoned as follows:
*4 The General Assembly cannot prevent the implementation of constitutional mandates by simply withholding its appropriations power. In the absence of appropriations by the General Assembly, the Treasurer must fund these constitutional mandates at no more than existing levels until the General Assembly provides otherwise.
*4 Id. at 867.
*4 In addition to constitutional mandates, the Kentucky Supreme Court recognized that some statutes “can be interpreted as self-executing appropriations.” Id. at 866. “Where the General Assembly has mandated that specific expenditures be made on a continuing basis, or has authorized a bonded indebtedness which must be paid, such is, in fact, an appropriation.” Id. at 865. Unlike constitutional mandates, however, the existence of a statute that can only be implemented if funded does not mandate an appropriation. In other words, the legislature may chose to “effectively eliminate” a statutory obligation by not providing funding. The Court observed that the General Assembly had the discretion to reduce or eliminate public funding as a means of “effectively eliminat[ing] the efficacy of existing statutes.” Id. The Kentucky Supreme Court concluded that “[o]nly those statutes specifically mandating that payments or contributions be made can be interpreted as self-executing appropriations.” Id. at 866. Similar to constitutional mandates, however, the Court determined that pursuant to the Supremacy Clause of the United States Constitution “programs or requirements established by federal law that require the expenditure of state funds”must be funded by the Treasurer. Id. at 867-68
*5 In determining that the General Assembly held the power to appropriate but for certain exceptions, the Kentucky Supreme Court rejected several arguments put forward by the Governor to show that he possessed “the inherent power to order the appropriations necessary to prevent the imminent collapse of governmental services.” Fletcher, 163 S.W.3d at 869. As a source of his alleged inherent power, the Governor cited that the supreme executive power of the State was constitutionally vested in the Governor. Id. The Court, however, aptly noted that such constitutional provision only vested in the Governor executive authority, while in a different provision the constitution vested legislative authority in the Generally Assembly, not the Governor. Id.
*5 The Governor also argued that his constitutional mandate to “take care that the laws be faithfully executed” provided him authority to craft an executive budget. The Court rejected this argument with simple logic:
*5 The Governor asserts that he cannot faithfully execute the law enacted by the General Assembly without the funds necessary to do so. However, as noted earlier in this opinion, the mere existence of a law does not mean that it must be implemented if doing so requires the expenditure of unappropriated funds.
*5 Id. The Kentucky Supreme Court then quoted from Justice Black's opinion in Youngstown Sheet & Tube Co. v. Sawyer: “The Constitution limits [the Executive's] functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the [Executive] is to execute.” Fletcher, 163 S.W.3d at 869 (quoting Youngstown, 343 U.S. 579, 587-88 (1952)). The Kentucky high court concluded that “[t]he Governor has no constitutional authority to exercise legislative power even when the General Assembly has failed to so.” Fletcher at 869.
*5 Likewise, the Kentucky Supreme Court found no constitutional support for the notion that the Governor possessed authority to expend unappropriated funds to provide essential services during emergencies. Id. Specifically, the Court “reject[ed] the proposition that a Governor can unilaterally declare an emergency and spend unappropriated funds to resolve it.” Id. at 871. The Court held that “[t]he Governor possesses no ‘emergency’ or ‘inherent’ powers to appropriate money from the state treasury that the General Assembly, for whatever reason, has not appropriated. Nor does the Court of Justice have the power to confer such authority.” Id.
*5 Third, the judiciary should not inject itself or be injected into the details of the political process, including the budgeting process. Id. at 860. The political realm would encompass determinations of what constitutes essential functions of government. “What constitutes an essential service depends largely on political, social and economic considerations, not legal ones.” Id. Thus, the Kentucky Supreme Court indicated that it would not involve itself in normal budget disputes, except that the issue before them was “whether the Governor has any constitutional authority . . . to unilaterally order any appropriations from the treasury.” Id. Because the central issue was one of constitutional magnitude, the Court felt compelled to engage.
*6 In conclusion, the Kentucky Supreme Court reiterated the importance of the separation of powers:
*6 Some truths are so basic that, like the air around us, they are easily overlooked. . . . But the Constitution protects us from our own best intentions: It divides power . . . among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.
 
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*6 When the General Assembly declines to exercise its appropriations power, that power does not flow over the “high wall” erected by [the separation of powers] to another department of government.
*6 Fletcher at 872 (internal citation omitted). The lessons drawn from Fletcher are the same as those presented by our own constitution and precedent from the Mississippi Supreme Court. The power to appropriate can not be circumvented, but such power can only be trumped by our constitution or the federal constitution or appropriation otherwise provided for in a self-appropriating statute.3
*6 Colbert v. State, 39 So. 65 (Miss. 1905), recognizes the power to appropriate as the supreme prerogative of the legislature, and this can not be legitimately challenged. However, the force of Mississippi's constitution as our organic law is self evident, and the inherent authority of co-equal branches to protect their integrity was ably reasoned in Hosford v. State, 525 So. 2d 789 (Miss. 1988). As evidenced in Fletcher, these constitutional powers are not in conflict. The Mississippi Constitution divides the government into three branches. Further, in specific instances the constitution disperses authority within branches among various constitutional offices or entities, e.g. the House of Representatives, the Senate, the Governor, the Lieutenant Governor, the Secretary of State and the Attorney General. Each constitutional office is provided constitutional authority and mandatory duties, including the inherent authority to protect its integrity.
*6 Just as the Legislature may not frustrate the judiciary's constitutional authority by withholding all funds, neither may another constitutional officer, say the Governor, use the absence of a legislatively enacted budget as authority to dictate his will or priorities onto the judiciary. The very constitutional authority that insulates a constitutional officer from legislative frustration also insulates that constitutional officer from frustration by any other constitutional officer, including the Governor. Therefore, while no constitutional office or entity may usurp the power to appropriate vested in the Legislature, it is the Attorney General's opinion that each constitutional office or entity may obtain warrants from the State Fiscal Officer, to be paid from the Treasury, for lawful expenses necessary to carry out the constitutional mandates of that office, as well as the mandates of federal law.4
*7 In exercising such constitutional authority, the Attorney General urges and cautions the various constitutional offices5 to respect the constitutional prerogative of the Legislature to appropriate public funds. In this regard, each constitutional office must act responsibly and limit the drawing of warrants for support only of those essential functions necessary to fulfill their constitutional mandate and to uphold the constitutional integrity of each respective office.6 While the determination of essential functions may, in the first instance, present a political question, there may also arise issues of constitutional dimension over which the judiciary would exert its supreme prerogative of judicial review. We reiterate that the failure of an appropriation does not do away with any agency, duty or function of state government. All that may be affected is the ability of those state agencies to spend or obligate funds. In following this Opinion, the State Fiscal Officer and Treasurer will, of course, enjoy such immunity for their actions as provided by law.
Sincerely yours,
*7 Jim Hood
*7 Attorney General

Footnotes

Unfortunately, there does not appear to be a constitutional requirement for the Highway Patrol, c.f., Fletcher v. Commonwealth of Kentucky, 163 S.W.3d 852 (Ky. 2005)(Lambert, concurring in part and dissenting in part).
At the extreme, it would be folly to argue that the Legislature's failure to exercise its power to appropriate should be allowed to overcome the State, the constitution or the constitutional offices created thereby. As one court has observed, “The office of the Attorney General is a continuing one. Sovereignty never dies. The State always lives[.]” Kirby v. State, 125 N.Y.S. 742 (N.Y. Ct. Cl. 1910).
The Mississippi Supreme Court has recognized constitutional mandates contained in both individual provisions and in provisions taken together. St. Louis & S. R. Ry. Co. v. Benton County, 96 so. 689, 690 (Miss. 1923) (“The language relied on in section 206 of the Constitution is not a limitation on the power of the Legislature, but is an admonition, injunction or command to the Legislature to make sufficient appropriation to maintain the public schools in each county for this length of time.”); Miller v. State ex rel. Russell, 94 So. 706, 708 (Miss. 1923) (“It is our opinion that, when section 206 is viewed in the light reflected from sections 201 and 205, it may be reasonably construed to mean that the Legislature was commanded to provide for a common school term of “not less than four months,” and that sufficient funds be appropriated out of the state treasury to maintain such school for the period of four months, and that the public funds appropriated for that purpose must be distributed in proportion to the number of educable children, or upon a per capita basis, and not otherwise.”). Likewise, our high court has noted the existence of “self-appropriating statutes.” See, e.g., Tatum v. Wheeless, 178 so. 95 (Miss. 1938) (finding that the Mississippi Unemployment Compensation Law was “not a fund for the general purposes of running the state government, or providing for the expense of operating the state government. The fund here created is not to be placed in the state treasury-it is a trust fund to be held and applied for the benefit of a class of employees”).
For example, before Medicaid benefits can stop being paid due to lack of an appropriation, proper notice must be provided to Medicaid beneficiaries. See Vinson v. Barbour, Temporary Restraining Order, Civil Action No. 3:04-CV-784WS (S.D.Miss. Nov. 4, 2004). Other agencies which may be required by federal law to make certain expenditures include the Department of Corrections and the Department of Employment Security.
Some examples of state agencies or offices which have constitutionally essential functions include, but are not limited to: the Treasurer, the Auditor, the Secretary of State, the Governor, the Attorney General, the Board and Department of Education, IHL, the Department of Mental Health, Tax Commission, the Commission on Judicial Performance, the Levee Boards, the State Librarian, the Department of Corrections, etc.
A look at how the above opinion applies to 2 state agencies may prove helpful. Section 25-11-101 et seq. establishes a retirement system and places it under the management of the Board of Trustees of the Public Employees' Retirement System (“PERS”). Article 14, Section 272A of the Mississippi Constitution of 1890 provides that all assets, proceeds or income of PERS are held in trust by the PERS Board of Trustees for the purpose of providing benefits, refunds and administrative expenses for the beneficiaries of the trust. Thus, PERS is an agency with some constitutionally essential functions. Section 25-11-101 contemplates that an appropriation from the trust fund is necessary for the payment of administrative expenses. However, no appropriation is required for the payment of retirement allowances and benefits. Upon meeting the requirements for benefits, PERS members, retirees and their beneficiaries are entitled to receive retirement allowances and other benefits payable in accordance with Section 25-11-101 et seq. In order to meet these constitutional and statutory obligations in the absence of an appropriation for administrative expenses, the PERS Board of Trustees may request warrants from the State Fiscal Officer in amounts necessary to pay expenses relating thereto.
In contrast, the PERS Board of Trustees acts as the primary administrator of the deferred compensation program established in Section 25-14-1 et seq. The deferred compensation program and the PERS Board of Trustees' duties relating thereto are purely statutory in nature and, in the absence of an appropriation therefore, there is no authority for a warrant to be issued to pay expenses associated with this program.
Another office or agency named in the constitution is the Attorney General. This office's constitutional functions include, among others, the duty to represent the state in all litigation, both civil and criminal, to advise the sovereign and to protect the state treasury. Capitol Stages, Inc. v. State ex rel. Hewitt, 128 So. 759, 762-63 (Miss. 1930). Therefore, under the above rules, the Attorney General may obtain warrants from the State Fiscal Officer to pay those expenses. However, the Attorney General has also been given duties that are purely statutory and for which no provision is made in the constitution. Examples include the Division of Victim Compensation and the Domestic Violence Unit's training program. Expenses for these divisions cannot be paid without a legislative appropriation.
2009 WL 2184235 (Miss.A.G.)
End of Document