STATE OF MISSISSIPPI JIM HOOD ATTORNEY GENERAL ‘OPINIONS DIVISION June 26, 2009 The Honorable Cecil Brown Mississippi House of Representatives Post Office Box 1018 Jackson MS 39215 Re: Authority to Spend Funds after June 30, 2009 Dear Representative Brown: In your letter requesting an official-opinion from our-officé, 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 Legisiature by that time.” RESPONSE 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. 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. {550 HIGH STREET - POST OFFICE BOX 220- JACKSON, MISSISSIPP? 39205.0220, "TELEPHONE (003) 350-9800 - PACSIMILE (601) 356-2085The Honorable Cecil Brown June 26, 2009 Page 2 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. 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.’ Consequently, these agencies may only expend funds sufficient to carry out these specific federally mandated programs or orders. 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. 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 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 ‘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). 550 HIGH STREET . POST OFFICE BOX 220. JACKSON, MISSISSIPPI 36206-0220 ‘TELEPHONE (601) 359-2600 - FACSIMILE (601) 365-2085The Honorable Cecil Brown June 26, 2009 Page 3 authorized to be drawn from the treasury.” Miss. Const. art. 4, § 63; see Miss. Const. art, 4, §§ 68, 69. 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: Under all constitutional governments recognizing three distinct and independent magistracies, the control of the purse strings of government isa legislative function. Indeed, itis 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. 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. Colbert v. State, 39 So. 65, 66-67 (Miss. 1905). 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 580 HIGH STREET POST OFFICE BOX 720 JACKSON, mISSISSIPe1 392050220 ‘TELEPHONE (604) 369-9600 - FACSRNLE (601) 959.2205,