The Kentucky case cited by Attorney General McDonnell

Today in Richmond, Attorney General McDonnell is explaining his views on what happens if there is no budget as of July 1, when the old budget runs out.

Yesterday, he was in Abingdon, and in the Bristol paper's article, McDonnell mentioned that the Kentucky Supreme Court had ruled that Kentucky's governor could not appropriate funds on his own initiative after the Kentucky legislature adjourned in 2004 without a budget.

Here is the case, Fletcher v. Com. The Kentucky constitution contains an interesting prohibition against one branch of government intruding on the prerogatives of another: "No person or collection of persons being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted." This provision was apparently written by Thomas Jefferson:

"When Mr. Jefferson returned from France, the federal constitution had been adopted; and, having been appointed secretary of state, he obtained permission to go to Monticello for some months. John Breckinridge and George Nicholas paid him a visit there, and informed him that Kentucky was about to frame a constitution for herself, and that Virginia was about to permit Kentucky to become a separate and independent state. He told them that there was danger in the federal constitution, because the clause defining the powers of the departments of government was not sufficiently guarded, and that the first thing to be provided,for by the Kentucky constitution should be to confine the judiciary to its powers, and the legislative and executive to theirs. Mr. Jefferson drew the form of the provision, and gave it to Nicholas and Breckinridge; and it was taken by Nicholas to the convention which met at Danville, and there presented, - Breckinridge not being present at the convention. There was much discussion and dissent when the article was offered, but, when its author was made known, the respect of Kentucky for the great name of Jefferson carried it through, and it was at once adopted."

The Virginia Constitution contains a similar provision, Article III, section 1. The Virginia Constitution also contains language which says: "No money shall be paid out of the State treasury except in pursuance of appropriations made by law; and no such appropriation shall be made which is payable more than two years and six months after the end of the session of the General Assembly at which the law is enacted authorizing the same" Article X, section 7.

The Kentucky Supreme Court went on to quote James Madison, as having declared on the floor of the House of Representatives: "If there is a principle in our Constitution, indeed in any free Constitution more sacred than another, it is that which separates the legislative, executive and judicial powers."

The Court also noted the opinion of former U.S. Attorney General Benjamin Civiletti:

"A similar crisis occurred in the federal government in 1980 when it became apparent that Congress would not pass a federal budget or a budget continuation plan before October 1, the beginning of the next fiscal year. Former United States Attorney General Benjamin R. Civiletti opined, when interpreting 31 U .S.C. § 1341, the "Anti-Deficiency Act," which precludes any officer or employee of the government from making or authorizing the expenditure of unappropriated funds, that:

[S]tatutory authority to incur obligations in advance of appropriations . . . may not ordinarily be inferred, in the absence of appropriations, from the kind of broad, categorical authority, standing alone, that often appears, for example, in the organic statutes of governmental agencies. 5 Op. Off. Legal Counsel 1, 2 (1980) (quoted in 43 Op. Atty. Gen. 293, 297 (1981)).

We agree. Only those statutes specifically mandating that payments or contributions be made can be interpreted as self-executing appropriations. A mandated appropriation cannot be inferred from the mere existence of an unfunded statute."

The Kentucky Court concluded: "absent a statutory, constitutional, or valid federal mandate, Section 230 precludes the withdrawal of funds from the state treasury except pursuant to a specific appropriation by the General Assembly," and then undertook an analysis of the Governor's spending plan, to see whether there was some valid mandate that would allow the spending without legislation.

The Court rejected the Governor's argument, "that when the General Assembly fails to exercise its appropriations power to fund the operations of the executive department, he (the Governor) possesses the inherent power to order the appropriations necessary to prevent the imminent collapse of governmental services," concluding that "[i]f the legislative department fails to appropriate funds deemed sufficient to operate the executive department at a desired level of services, the executive department must serve the citizenry as best it can with what it is given."

UPDATE: The formal Attorney General opinion is here.

Coal companies' cert. petition on West Virginia coal severance taxes denied

The WV Record reports here that the U.S. Supreme Court refused to take the case of the coal companies who brought a constitutional challenge to West Virginia's coal severance taxes. A similar challenge has been contemplated in Virginia.

Plethysmograph evidence meets the less rigid standard for admissibility in sentencing hearings

In Billips v. Com., the Virginia Court of Appeals, in an opinion by Judge Clements, joined by Judge Kelsey, with Judge Benton dissenting in part, affirmed the sentence imposed by a sex offender in a Tazewell County case. Judge Benton dissented on the issue of whether the Commonwealth failed to meet its burden of proving the reliability of the expert testimony it presented to show the likelihood that the defendant would want to commit other sex crimes. Judge Clements wrote that this evidence was admissible, based in part on the different standard for admissibility when the judge is hearing evidence on sentencing.

The opinion contains some interesting footnotes.

From Judge Clements:

"In Virginia, our Supreme Court specifically refused to adopt the Frye standard in O’Dell v. Commonwealth, 234 Va. 672, 696, 364 S.E.2d 491, 504 (1988), and acknowledged in John v. Im, 263 Va. 315, 322, 559 S.E.2d 694, 698 (2002), that it had not 'considered the question whether the Daubert analysis employed by the federal courts should be applied in our trial courts to determine the scientific reliability of expert testimony.' Thus, as the Supreme Court noted in John, the Spencer evidentiary standard still governs the admission of scientific evidence in Virginia. Id. at 322 n.3, 559 S.E.2d at 698 n.3."

From Judge Benton, who likened the disputed evidence to evidence from a polygraph:

"After decades of debate, the scientific community still has not agreed on the reliability of polygraphs, despite numerous studies on the question. See United States v. Scheffer, 523 U.S. 303, 309 (1998); see also 4 David L. Faigman, David H. Kaye, Michael J. Saks, & Joseph Sanders, Modern Scientific Evidence §§ 40:20 to 40:118, at 571-655 (2005) (discussing and analyzing the two sides of the continuing polygraph debate in the scientific community). While some studies concluded that polygraphs are highly accurate, others reported 50 and 51% accuracy rates. See Scheffer, 523 U.S. at 309 (citing S. Abrams, The Complete Polygraph Handbook 190-91 (1989); William G. Iacono & David T. Lykken, The Scientific Status of Research on Polygraph Techniques: The Case Against Polygraph Tests, in 1 Modern Scientific Evidence § 14-5.3 (1997)); see also 1 John W. Strong, McCormick on Evidence § 206, at 629 (5th ed. 1999) (summarizing the results of various studies conducted on polygraph reliability). One of the serious, lingering concerns about polygraphs is that an individual can “trick” the machine and receive a negative result despite lying. See Strong, supra (explaining the concern that “‘coaching’ and practicing would become more commonplace if the evidence were generally admissible”). “Although the degree of reliability of polygraph evidence may depend upon a variety of identifiable factors, there is simply no way to know in a particular case whether a polygraph examiner’s conclusion is accurate, because certain doubts and uncertainties plague even the best polygraph exams.” Scheffer, 523 U.S. at 312."

Attorney General McDonnell in Abingdon on Wednesday

I've read that Attorney General McDonnell will be at Virginia Highlands Community College tomorrow afternoon, although the nature of the event is not clear to me.

Perhaps one topic he will address will be the state of the Commonwealth in the absence of a budget. The Washington Post reports here and the Richmond paper reports here that the Attorney General has opined that Governor Kaine has limited power to keep the government running in the absence of appropriations from the legislature, if I understand these articles correctly.

Also of potential interest to a college group is the AG's opinion addressed to President Casteen of U.Va. that the University lacks authority under state procurement laws to include a "living wage" requirement in its contracts with private firms.

Oral argument in only 15% of Fourth Circuit cases?

This ACS post includes excerpts from an article about whether the federal appeals courts are too busy, which notes among other things that oral argument is heard in a smaller fraction of the cases, including as little as 15% in the 4th and 11th Circuits.

That seems like a strange statistic - is it evidence of a decline across all categories of cases, or merely a symptom of the explosion of criminal and prisoner litigation?

It seems to me that in just about every interesting civil case with lawyers on both sides, other than perhaps employment discrimination cases, there is oral argument, even in the Fourth Circuit. Perhaps I am mistaken.