RENDERED: SEPTEMBER 22, 2016 

TO BE PUBLISHED 

,Supfrrntr Cluti of 7/fit 

2016-SC-000272-TG 

(2016-CA-000738-MR) 

I AT E idok Ratio/414041 0c 

COMMONWEALTH OF KENTUCKY, EX REL. 

ANDY BESHEAR, ATTORNEY GENERAL 

ON APPEAL FROM FRANKLIN CIRCUIT COURT 

V. HONORABLE THOMAS D. WINGATE, JUDGE 

NO. 16-CI-00389 

COMMONWEALTH OF KENTUCKY OFFICE OF THE 

GOVERNOR, EX REL. MATTHEW BEVIN, IN HIS OFFICIAL 

CAPACITY AS GOVERNOR; COMMONWEALTH OF 

KENTUCKY FINANCE AND ADMINISTRATION CABINET, EX 

REL. WILLIAM M. LANDRUM, IN HIS OFFICIAL CAPACITY AS 

SECRETARY; COMMONWEALTH OF KENTUCKY OFFICE OF 

THE STATE BUDGET DIRECTOR, EX REL. JOHN CHILTON, 

IN HIS OFFICIAL CAPACITY AS STATE BUDGET DIRECTOR; 

COMMONWEALTH OF KENTUCKY DEPARTMENT OF THE 

TREASURY, EX REL. ALLISON BALL, IN HER OFFICIAL 

CAPACITY AS TREASURER; JIM WAYNE, IN HIS OFFICIAL 

CAPACITY AS STATE REPRESENTATIVE; DARRYL OWENS, 

IN HIS OFFICIAL CAPACITY AS STATE REPRESENTATIVE; 

MARY LOU MARZIAN, IN HER OFFICIAL CAPACITY AS STATE 

REPRESENTATIVE 

APPELLANT 

APPELLEES 

AND 2016-SC-000273-TG 

(2016-CA-000745-MR) 

JIM WAYNE, IN HIS OFFICIAL CAPACITY AS STATE 

REPRESENTATIVE; MARY LOU MARZIAN, IN HER 

OFFICIAL CAPACITY AS STATE REPRESENTATIVE; 

DARRYL OWENS, IN HIS OFFICIAL CAPACITY AS 

STATE REPRESENTATIVE APPELLANTS 
ON APPEAL FROM FRANKLIN CIRCUIT COURT 

V. HONORABLE THOMAS D. WINGATE, JUDGE 

NO. 16-CI-00389 

COMMONWEALTH OF KENTUCKY OFFICE OF THE 

GOVERNOR, EX REL. MATTHEW BEVIN, IN HIS OFFICIAL 

CAPACITY AS GOVERNOR; COMMONWEALTH OF 

KENTUCKY FINANCE AND ADMINISTRATION CABINET, 

EX REL. WILLIAM M. LANDRUM, IN HIS OFFICIAL 

CAPACITY AS SECRETARY; COMMONWEALTH OF 

KENTUCKY OFFICE OF THE STATE BUDGET DIRECTOR, 

EX REL. JOHN CHILTON, IN HIS OFFICIAL CAPACITY AS 

STATE BUDGET DIRECTOR; COMMONWEALTH OF 

KENTUCKY DEPARTMENT OF THE TREASURY, EX REL. 

ALLISON BALL, IN HER OFFICIAL CAPACITY AS 

TREASURER; COMMONWEALTH OF KENTUCKY, EX REL. 

ANDY BESHEAR, ATTORNEY GENERAL APPELLEES 

OPINION OF THE COURT BY JUSTICE NOBLE 

REVERSING AND REMANDING 

This case presents two questions. First, does the Attorney General or an 

individual member of the General Assembly have standing to challenge the 

Governor's actions as violating a statute or the constitution? The Court 

concludes that the Attorney General has standing but that the individual 

legislators in this case do not. Second, may the Governor reduce the amount of 

money made available to a state university under a legislative appropriation 

whether by revising the university's allotment under KRS 48.620(1), by 

withholding the allotment to the extent the university has adequate trust and 

agency funds under KRS 45.253(4), or by otherwise requiring a state university 

not to spend appropriated funds? This Court concludes that the Governor does 

not have that authority. The judgment of the Franklin Circuit Court is thus 

reversed. 

2 
I. Background 

Upon taking office in 2016, Governor Matt Bevin ordered an across-theboard 4.5% budget reduction for the executive branch in the fourth quarter of 

the 2015-2016 fiscal year. This reduction extended to the state's nine 

institutions of higher education, which consist of several universities and the 

community college system (collectively, "the Universities"). 

The Universities' reductions were delineated in a letter to the Secretary of 

the Finance and Administration Cabinet and the State Budget Director 

directing that their fourth-quarter allotments be reduced. The letter was dated 

March 31, 2016 and stated in relevant part: 

Pursuant to the authority provided to me in KRS 48.620(1), this is 

to certify that the allotments for the following budget units of the 

Executive Branch for April 1, 2016 drawn-downs [sic] by each unit 

under the 2015-2016 Executive Branch budget should be reduced 

by 4.5% of the 2015-2016 allotments: 

■ Eastern Kentucky University 

■ Kentucky State University 

■ Morehead State University 

■ Murray State University 

■ Northern Kentucky University 

■ University of Kentucky 

■ University of Louisville 

■ Western Kentucky University 

■ Kentucky Community and Technical College System 

On April 19, 2016, the Governor sent another letter, again to the 

Secretary of the Finance and Administration Cabinet and the State Budget 

Director. This letter recounted the previous letter's contents and then ordered 

"pursuant to the same statutory authority that the 2015-2016 allotments to 

each ... institution[] should be further revised." As to Kentucky State 

3 
University, the 4.5% reduction was restored. As to the other eight institutions, 

the letter ordered that their budget reductions be amended from 4.5% to 2%. 1 

The Attorney General filed a declaratory-judgment action against the 

Governor, the State Budget Director, the Secretary of the Finance and 

Administration Cabinet, and the State Treasurer challenging this action. 2Three 

members of the House of Representatives joined as intervening plaintiffs. By 

agreed order, the funds at issue were placed in a separate account and were 

"recorded as a disbursement of FY 2016 appropriations but w[ould] not be 

transferred until further order of the Court at which time the funds w[ould] be 

disbursed to the institutions or returned to the Commonwealth's general fund." 

The Governor moved to dismiss the case, claiming both that the Attorney 

General and the legislators lacked standing and that his actions were legal. As 

to the latter claim, he relied primarily on two statutes, KRS 48.620(1), which 

was cited in his letters, and KRS 45.253(4). He claimed that KRS 48.620(1) 

allowed him to reduce the "allotments" to the Universities without changing the 

legislative appropriations. He claimed that KRS 45.253(4) allowed him to 

withhold appropriations until the Universities had spent their trust and agency 

funds (that is, funds generated by tuition, etc.). The statutes combined, he 

1Specifically, it stated: "The allotments ... should be further revised so as to 

restore 2.5% of the 4.5% downward revisions." If read literally, this latter action would 

have had the effect of restoring only .1125% of the Universities' budgets (that is, 2.5% 

of the 4.5% reduction). But it is understood by all involved that this provision changed 

the overall budget reduction from 4.5% to 2%. 

2The Governor's counsel represents the Governor, along with the State Budget 

Director and the Secretary of the Finance and Administration Cabinet. The Treasurer 

is represented by her own counsel. Their positions, however, appear to align in all 

respects, and reference to "the Governor" includes all of the Appellees. 

4 
claimed, gave him "great discretion" in whether to provide the appropriated 

funds. 

The Attorney General disputed that KRS 48.620 gave the Governor such 

broad authority and argued that any such reading of the statute would violate 

the separation-of-powers doctrine and constitute an improper delegation of 

authority by the General Assembly. The Attorney General also claimed that the 

Governor's actions would unlawfully suspend the budget bill and that KRS 

45.253(4) did not apply to the Universities, which had elected to operate under 

KRS Chapter 164A. 

The Franklin Circuit Court concluded that the Attorney General had 

standing to bring the suit, but nevertheless granted summary judgment in the 

Governor's favor on the merits. The court concluded primarily that KRS 

48.620(1) and KRS 45.253(4) delegated the authority "to address budget 

concerns within the executive branch." Specifically, the court concluded that 

these "statutes ... grant [the Governor] the authority to revise downward the 

Universities' allotments." The court also stated: "The Universities ... are under 

the Governor's control as part of the executive branch," at least in the context 

of the budget bill. The court concluded that the Governor's actions did not 

violate Kentucky's strict separation-of-powers doctrine. In this respect, the 

court concluded that the allotment revision was not, in fact, a reduction in the 

appropriation by another name, and was instead an exercise of legislatively 

granted power. Finally, the court concluded that there remained a check on the 

Governor's power, in that the judiciary could "realign[] the balance of power" if 

he "purports to wield divine power over another branch, or even over a division, 

5 
cabinet or program within the executive branch, to the point that funding levels 

reached constitutionally impermissibly low levels." 

The Attorney General and the House members filed notices of appeal and 

a motion to transfer the case from the Court of Appeals to this Court. That 

motion was granted, and thus the appeal is before this Court. 

II. Standing 

Before reaching the merits of this dispute, this Court must address the 

claim that the Attorney General and intervening state representatives lack 

standing to prosecute this action. We answer this question first because if 

neither the Attorney General nor the individual legislators have standing to 

challenge the Governor's actions, then we would be left with a non-justiciable 

cause of action, which would call for dismissal without addressing the merits. 

See, e.g., Lawson v. Office of Att'y Gen., 415 S.W.3d 59, 67 (Ky. 2013) 

("Standing,' of course, in its most basic sense, refers to an integral component 

of the justiciable cause' requirement underlying the trial court's jurisdiction." 

(citing Ky. Const. § 112; Rose v. Council for Better Educ., 790 S.W.2d 186 (Ky. 

1989))). 

A. The Attorney General has standing to seek declaratory and 

injunctive relief to vindicate the public interest against 

alleged unauthorized and unconstitutional actions of the 

Governor. 

To have standing to sue in Kentucky, the basic rule is that the person 

must have a "judicially recognizable interest in the subject matter of the suit." 

E.g., Ashland v. Ashland FOP No. 3, 888 S.W.2d 667, 668 (Ky. 1994). Does the 

6 
Attorney General have such an interest in the Governor's reductions of the 

Universities' budgets? 

At the outset, the Attorney General argues that this Court's holding in 

Commonwealth ex rel. Conway v. Thompson, 300 S.W.3d 152 (Ky. 2009), on the 

issue of the Attorney General's standing to sue other executive branch officials 

for declaratory and injunctive relief, should control outright without need for 

further analysis. In that case, we overruled our prior decision in 

Commonwealth ex rel. Cowan v. Wilkinson, 828 S.W.2d 610 (Ky. 1992), to the 

extent that it required the Attorney General to have a "personal interest" in the 

outcome of the case to have standing. Thompson, 300 S.W.3d at 172-74. In 

doing so, we "state[d] categorically ... that the Attorney General of the 

Commonwealth of Kentucky has standing to seek injunctive relief on behalf of 

the citizens of the Commonwealth." Id. at 172. That was because "the Attorney 

General ha[d] a sufficient personal right in these types of cases by virtue of the 

office and the duties commensurate with that high office." Id. at 173 (emphasis 

added). 

That italicized language, clarifying our holding in Thompson, is indeed 

the key to unlocking the issue of the Attorney General's standing in this case. 

Further analysis, however, is required to determine whether in this case duty 

calls upon the Attorney General (and, thus, confers on him standing) to 

vindicate the public rights of the people of the Commonwealth. As we explain 

below, guided by history and precedent, we conclude that it does. 

As we alluded in Thompson, the Attorney General's standing is dictated 

by the powers and duties of that office. Under the Kentucky Constitution, the 

7 
Attorney General is an elected constitutional officer whose "duties ... shall be 

such as prescribed by law." Ky. Const. § 91; see also id. § 93 ("The duties and 

responsibilities of the[] [constitutional] officers shall be prescribed by law ...."). 

The General Assembly has prescribed the Attorney General's duties and 

responsibilities in KRS 15.020, which in relevant part provides: 

The Attorney General is the chief law officer of the Commonwealth 

of Kentucky ... and shall exercise all common law duties and 

authority pertaining to the office of the Attorney General under the 

common law, except when modified by statutory enactment. ... [H]e 

shall appear for the Commonwealth in all cases in the Supreme 

Court or Court of Appeals wherein the Commonwealth is 

interested, and shall also commence all actions or enter his 

appearance in all cases, hearings, and proceedings in and before 

all other courts, tribunals, or commissions in or out of the state, 

and attend to all litigation and legal business in or out of the state 

required of him by law, or in which the Commonwealth has an 

interest .... 

Whether the Attorney General has the power to bring a given action on 

behalf of the people of the Commonwealth (at least where there is no statute 

governing the subject) turns on whether that action falls under, the "common 

law duties and authority pertaining to the office of the Attorney General under 

the common law," and whether the action is one "in which the Commonwealth 

has an interest." KRS 15.020. 

Historians, scholars, and jurists agree that clearly defining the Attorney 

General's common-law duties is not easily done. See generally Comm. on the 

Office of Att'y Gen., Nat'l Ass'n of Att'ys Gen., Common Law Powers of State 

Attorneys General 13-19 (Jan. 1975) (summarizing historical commentary and 

8 
judicial holdings on the common-law powers of the Attorney General). 3An 

exhaustive definition of the Attorney General's common-law powers and duties 

is not required today. Instead, it suffices to analyze the parameters of that 

office's prerogative to seek, on behalf of the people, injunctive relief against 

other government actors when the Commonwealth has an interest in the case. 

To begin, we reiterate: "It is unquestioned that 'kit common law, [the 

Attorney General] had the power to institute, conduct and maintain suits and 

proceedings for the enforcement of the laws of the state, the preservation of 

order, and the protection of public rights."' Thompson, 300 S.W.3d at 173 

(alterations in original) (quoting Commonwealth ex rel. Hancock v. Paxton, 516 

S.W.2d 865, 867 (Ky. 1974)). Significantly, the Attorney General was 

empowered under the common law to bring any action thought "necessary to 

protect the public interest." Id. (quoting 7 Am. Jur. 2d Attorney General § 6 

(2009)). Indeed, the Attorney General has not only the power to bring suit when 

he believes the public's legal or constitutional interests are under threat, but 

appears to have even the duty to do so. Cf. Wilkinson, 828 S.W.2d at 618 

(Leibson, J., dissenting) ("It is the Attorney General's responsibility to file suit 

to vindicate public rights, as attorney for the people of the State of Kentucky."). 

And, notably, this "broad grant of authority ... includes the power to act to 

enforce the state's statutes." Thompson, 300 S.W.3d at 173 (quoting 7 Am. Jur. 

2d Attorney General § 6 (2009)). 

3This publication is available at 

https: / /www.ncjrs.gov/pdffilesl/Digitization/16297NCJRS.pdf. 

9 
It is widely recognized that the Attorney General's common-law authority 

to represent the interests of the people derives from the broad powers that 

office initially possessed in representing the legal interests of the English 

crown. As one former Attorney General succinctly explained: 

As guardian of royal prerogative, the Attorney General of England 

possessed a broad range of powers. ... [W]hen state governments 

were organized and recognized in this country, there was no 

monarch in whom the government prerogatives were vested. Since 

the essential power of government resided and emanated from the 

people, the prerogatives had to be exercised on their behalf. Just 

as the Attorney General safeguarded royal prerogatives at common 

law, similarly, the official authority, an obligation to protect public 

rights and enforce public duties on behalf of the general public, 

became vested by the states in the Attorney General. And it is this 

obligation inherited from the common law to represent the public 

interest which has shaped and colored the role which the Attorney 

General fulfills today. 

Common Law Powers of State Attorneys General, supra, at 2 (quoting Arthur 

Sills, Proceedings of the Conference of the Nat'l Ass'n of Att'ys Gen. 102 (1967)). 

Based on that widely accepted understanding of the nature of the Attorney 

General's inherited prerogatives, it is clear that the Attorney General has a 

judicially cognizable interest here, namely, in fulfilling his common-law 

obligation to protect public rights and interests by ensuring that our 

government acts legally and constitutionally. 

Our predecessor court long ago recognized and adopted this view of the 

Attorney General's authority. Indeed, that court stated: 

[T]he source of authority of the Attorney General is the people who 

establish the government, and his primary obligation is to the 

people. ... The Attorney General, as chief law officer of this 

Commonwealth, charged with the duty of protecting the interest of 

all the people ... had such a vital interest in this litigation that he 

10 
had a right to intervene at least insofar as the public issues 

advanced in the action were involved. 

Hancock v. Terry Elkhorn Mining Co., 503 S.W.2d 710, 715 (Ky. 1974); accord 

Paxton, 516 S.W.2d at 867 ("But under the democratic form of government now 

prevailing the people are the king, so the Attorney General's duties are to that 

sovereign rather than to the machinery of government." (citation omitted)). Our 

predecessor court made clear that KRS 15.020, "in stating at the outset that 

the Attorney General is the chief law officer of the Commonwealth,' intends 

that in case of a conflict of duties the Attorney General's primary obligation is 

to the Commonwealth, the body politic, rather than to its officers, departments, 

commissions, or agencies." Paxton, 516 S.W.2d at 868. Thus, in addition to the 

unquestioned "right of the Attorney General to appear and be heard in a suit 

brought by someone else in which the constitutionality of a statute is involved," 

id. (citing CR 24.03; KRS 418.075), 4the Court held that the Attorney General's 

"constitutional, statutory and common law powers include the power to initiate 

a suit questioning the constitutionality of a statute," id. 

The holding in Paxton thus leads to an inevitable conclusion: If the 

Attorney General has the power to initiate a suit questioning the 

constitutionality of a statute, he must also have the power to initiate a suit 

questioning the constitutionality or legality of an executive action. There are no 

grounds for treating allegedly unconstitutional executive actions differently 

from allegedly unconstitutional legislative actions. It is certainly in "the interest 

4Not only does the Attorney General have such power, no judgment declaring a 

statute constitutionally infirm may be entered without his having been given notice 

and an opportunity to be heard on the question. KRS 418.075. 

11 
of all the people" that there be no unconstitutional or illegal governmental 

conduct. And standing must be determined at the beginning of an action, not 

retrospectively after the merits have been sorted out. 

A plain reading of Thompson and Paxton and other authorities thus 

establishes that the Attorney General has standing to bring this action 

questioning the authority for and constitutionality of the Governor's actions. 

The Governor, however, argues that the Attorney General's authority and 

standing to bring suit in the public interest should be limited to only those 

cases where there are no identifiable parties with particularized injuries (such 

as the Universities in this case). In support of this position, he cites Johnson v. 

Commonwealth ex rel. Meredith, 165 S.W.2d 820 (Ky. 1942), for the proposition 

that by enacting KRS 12.210, which authorizes state agencies to hire outside 

counsel, the General Assembly acted to limit the Attorney General's commonlaw power. 

This is an overreading of Johnson. That case answered only whether the 

legislature "may withdraw [discrete common-law] powers and assign them to 

others or may authorize the employment of other counsel for the departments 

and officers of the state to perform them." Id. at 829. In other words, Johnson 

signed off on the General Assembly's authority to divest some of the powers of 

the Attorney General (i.e., serving as legal counsel to a given state entity) and 

invest them in another (i.e., private counsel of the entity's choosing). It did not 

hold, as the Governor states, that "when a state agency hires, or can hire, its 

own attorneys pursuant to statutory authority, the Attorney General no longer 

12 
has authority to unilaterally decide to act for that agency." To the contrary, 

Johnson explicitly left that question open: 

As to what extent [KRS 12.210] should be construed as affecting 

the supremacy of the Attorney General as the chief law officer of 

the Commonwealth, or to what extent it deprives him of the power 

and right to represent the Commonwealth as a distinct entity in 

litigation in which any of the departments employing counsel are 

involved, or in any other respect, we express no opinion, for they 

are questions not presented in this suit. 

Id. at 829. Indeed, our predecessor thought it sufficient to express only its 

"opinion that the Act does not deprive the Attorney General of his hereditary 

and statutory prerogatives to the extent or degree that it can be said that he is 

left without substantial duties, responsibilities and rights." Id. KRS 12.210, as 

interpreted by Johnson, is not nearly the limitation on the Attorney General's 

authority as the Governor claims. 

But the "supremacy of the Attorney General as the chief law officer of the 

Commonwealth" is squarely before us here. The simple answer is that 

delegating day-to-day operational powers—in this case, to the Universities' own 

counsel—does not preclude a need for the Attorney General to protect "the 

interest of all the people" when unconstitutional or unlawful conduct is claimed 

either by or toward those universities. The Governor's invitation to so constrain 

the traditional powers and duties of the Attorney General to protect the 

interests of the people of the Commonwealth could result in unconstitutional or 

unlawful conduct that would go unaddressed, against the interest of the 

people, if the Universities and their counsel for political, financial, or other 

reasons chose not to seek redress. 

13 
There is no valid justification for cutting off the "hereditary" prerogative 

of the Attorney General to challenge the legality and constitutionality of a state 

action merely because the state actor has (or could) employ other legal counsel. 

Indeed, the words of our predecessor in Paxton, by extension, ring just as true 

here as they did there: "We think that if the Constitution is threatened by an 

item of legislation [or act of the Executive], the Attorney General may rise to the 

defense of the Constitution by bringing a suit, and is not required to wait until 

someone else sues." 516 S.W.2d at 868. Likewise, the Attorney General must 

defend duly adopted statutory enactments that are not unconstitutional. 

In fact, the soundness of this position becomes even more apparent in 

light of the realities (and costs) to public entities of challenging executive or 

legislative actions. The ongoing functions of such entities and the costs of such 

litigation, in money and political good will, could make a legal challenge 

prohibitive despite whatever disagreement they may have with a Governor's or 

legislature's action. Because the Attorney General is the chief law officer of the 

Commonwealth, he is uniquely suited to challenge the legality and 

constitutionality of an executive or legislative action as a check on an allegedly 

unauthorized exercise of power. Cf. State ex rel. Sorensen v. State Bd. of 

Equalization, 242 N.W. 609, 610 (Neb. 1932) ("[T]he Attorney General has the 

right, in cases where ... the interests of the public are directly concerned, to 

institute suit ... for their protection. The state is not left without redress in its 

own courts, because no private citizen chooses to encounter the difficulty of 

defending it, but has appointed this high public officer, on whom it has cast 

the responsibility, and to whom, therefore, it has given the right of appearing in 

14 
its behalf and invoking the judgment of the court on such questions of public 

moment."); Comment, An Attorney General's Standing before the Supreme Court 

to Attack the Constitutionality of Legislation, 26 U. Chi. L. Rev. 624, 631 (1959) 

("[T]he basic constitutional principle that the judiciary is to serve as a check on 

the legislature would be avoided unless the Attorney General is granted 

standing to present the constitutional question concerning legislation which 

seriously jeopardizes the interests of the government as a whole."). 5 

This view of the authority of the Attorney General is in line with that 

taken by most of our sister jurisdictions. Indeed, the facts of a fairly recent 

case from South Carolina are notably similar to the facts presented here. In 

State ex rel. Condon v. Hodges, 562 S.E2d 623 (S.C. 2002), the South Carolina 

Supreme Court upheld the power of the Attorney General to sue to enjoin the 

Governor from circumventing provisions of an appropriations bill. Noting that 

"[Ole way in which public funds are handled and whether a violation of the 

separation of powers doctrine has occurred are clearly questions in which the 

State has an interest," id. at 627, the South Carolina Supreme Court held that 

"the Attorney General has the authority to sue the Governor when he is 

bringing the action in the name of the State for the purpose of asserting that a 

separation of powers violation has occurred," id. at 628. See also id. ("[T]he 

Attorney General can bring an action against the Governor when it is necessary 

5For a discussion of the Attorney General's role as intra-branch check and 

balance on the Governor, see generally William P. Marshall, Break Up the Presidency? 

Governors, State Attorneys General, and Lessons from the Divided Executive, 115 Yale 

L.J. 2446, 2464-68 (2006). See also id. at 2449-55 (discussing, generally, commonlaw origins of the Office of the Attorney General and the development in most states of 

a "divided executive"). 

15 
for the enforcement of the laws of the State, the preservation of order, and the 

protection of public rights."). 

And courts in numerous other states have reached similar conclusions 

about the powers and duties of the Attorney General. See, e.g., State ex rel. 

Landis v. S.H. Kress & Co., 155 So. 823 (Fl. 1934); People ex rel. Scott v. Illinois 

Racing Bd., 301 N.E.2d 285 (Iii. 1973); Lund ex rel. Wilbur v. Pratt, 308 A.2d 

554 (Me. 1973); Jacobsen v. Parks & Rec. Comm'n, 189 N.E.2d 199 (Mass. 

1963); Att'y Gen. v. Trustees of Boston Elevated R.R. Co., 67 N.E.2d 676 (Mass. 

1946); Fordice v. Bryan, 651 So.2d 998 (Miss. 1995); State ex rel. Douglas v. 

Thone, 286 N.W.2d 249 (Neb. 1979); State ex rel. Meyer v. Peters, 199 N.W.2d 

738 (Neb. 1972); Hetherington v. McHale, 311 A.2d 162 (Pa. 1973); Yett v. Cook, 

218 S.W. 837 (Tex. 1926); Hansen v. Barlow, 456 P.2d 177 (Utah 1969). Of the 

minority of states that have ruled otherwise, their Attorneys General are 

typically invested with no common-law powers. See, e.g., State v. Rankin, 282 

N.E.2d 851 (Ind. 1972); State v. Burning Tree Club, 481 A.2d 785 (Md. 1984). In 

contrast, Kentucky's Attorney General is expressly given such powers by 

statute. 

Finally, we find particularly apt the following comments by Justice Erwin 

of the Florida Supreme Court: 

The Attorney General is elected by the people; he is 

entrusted by them with the common law power to legally represent 

them or some of them in matters deemed by him to affect the 

public interest. He has a discretionary duty under the common law 

rarely modified by statute to protect the public interests of any of 

the people who elected him. 

It is his discretionary duty to choose those legal matters in 

the area of public litigation or quasi-judicial administration in 

16 
which he believes it is his official duty to intervene, except in those 

instances when it is mandated by the legislature for him to 

intervene or to refrain from intervening. If he is mistaken in his 

legal advocacy, the courts and quasi-judicial tribunals always 

retain the power to rule against him and often do on the merits but 

this power does not affect his standing to become a party of 

interest in the cause or proceeding. Regardless of the effectiveness 

of his efforts in particular public legal situations, at least the 

people have the continuing satisfaction of knowing that their 

elected Attorney General has the right to exercise his conscientious 

official discretion to enter into those legal matters deemed by him 

to involve the public interest, even though not expressly authorized 

by statute. The presumption is that he will not enter strictly 

private litigation and a great degree of latitude must of necessity be 

extended to him in the exercise of his right to intervene in behalf of 

public interests. 

State ex rel. Shevin v. Yarborough, 257 So.2d 891, 895 (Fla. 1972) (Erwin, J., 

specially concurring); see also Mundy v. McDonald, 185 N.W. 877, 880 (Mich. 

1921) ("A broad discretion is vested in [the Attorney General] in determining 

what matters may, or may not, be of interest to the people generally."). 

In the end, we are left with only one conclusion: the Attorney General, as 

chief law officer of Kentucky, has broad authority to sue for declaratory and 

injunctive relief against state actors, including the Governor, whose actions the 

Attorney General believes lack legal authority or are unconstitutional. It is that 

power which the Attorney General has invoked to support bringing the present 

action—to wit, the Attorney General seeks to enjoin the Governor's reductions 

of the final quarterly allotments of the Universities' 2015-2016 appropriations 

as exceeding the Governor's statutory and constitutional authority and 

violating the separation-of-powers doctrine. And we must take these allegations 

at face value in undertaking this standing analysis. See City of Louisville v. 

Stock Yards Bank & Tr. Co., 843 S.W.2d 237, 328 (Ky. 1992) ("[I]t is neither the 

17 
province of the trial court nor of this Court to consider whether Appellant may 

be able to prove its allegations or ultimately prevail. On review, this Court will 

confine itself to a determination of whether the matters alleged in the 

complaint establish appellant's standing to bring the action or whether it is 

without a 'substantial interest' in the subject matter of the controversy." 

(citations omitted)). 

The Attorney General, therefore, has standing in this case. 

B. The individual legislators do not have standing. 

The intervening individual legislators claim to have standing in this case 

because the Governor's actions constituted a "grave infringement of their 

fundamental Constitutional [sic] duty to enact a biennial budget on behalf of 

their constituents." As the Governor describes it, they claim, in essence, that 

he has nullified their votes in favor of the budget bill. 

We begin with the legislators' claim that it has been the practice of this 

Court to allow members of the General Assembly to "defend the Kentucky 

Constitution's 'forceful command' that the powers of the Legislative Branch be 

protected from invasion by the Executive Branch." This Court's practice, at 

least in the cases cited by the legislators, has not been nearly so broad as 

claimed. The legislators cite, for example, Fletcher v. Commonwealth, 163 

S.W.3d 852 (Ky. 2005), in which many members of the General Assembly, 

including at least one of the members in this case, intervened to challenge 

gubernatorial action. The question of the legislators' standing, however, was 

not raised in that case. And, as this Court has held, a claimed lack of standing 

18 
is a defense that must be timely raised or else be deemed waived. Harrison v. 

Leach, 323 S.W.3d 702, 708 (Ky. 2010). Thus, while Fletcher may be a factual 

precedent for individual legislators' having intervened in a case, it is not legal 

precedent for their having standing to challenge the Governor's actions. 

As to the legal substance of the claim, unlike the Attorney General, 

individual legislators do not have the role of chief legal officer for the public. 

The individualized role of a legislator is to represent those who have elected 

him or her and to participate in the decision-making that becomes the laws of 

the Commonwealth, including participating in the passage of budget bills. The 

idea that individual legislators have standing to challenge an action by the 

Governor—under the premise of an injury to an interest in a statute being 

carried out properly or the legislators' duty to vote on legislation—is simply too 

attenuated to create a justiciable controversy. A legislator has no individual 

ownership of any enacted piece of legislation and certainly can pass no 

legislation as an individual. Asserting that a governor's disposition of budgeted 

funds is an infringement on their duty to enact a budget is a non sequitur. 

Nonetheless, the legislators claim that this Court has seemed in the past 

to take a "broad[] view of when a public official can go to court to defend the 

prerogatives of office." (Quoting Paul E. Salamanca, The Constitutionality of an 

Executive Spending Plan, 92 Ky. L.J. 149, 200 (2004)). In this context, Professor 

Salamanca discussed Legislative Research Commission v. Brown, 664 S.W.2d 

907 (Ky. 1984), wherein the Legislative Research Commission sued "to validate 

its authority under certain parts of the legislation, and the original defendants, 

the Governor and Attorney General of Kentucky, had by counterclaim called in 

19 
question other parts." Salamanca, supra, at 200. But Brown, like Fletcher, is 

not support for the existence of individual-legislator standing, if only because 

individual legislators were not the plaintiffs in that case. More importantly, 

standing again was not raised in that case, at least not before this Court. See 

id. (noting that "the issue of representative standing was not addressed in the 

Legislative Research Commission court's opinion"). 

Obviously, legislators with a particularized, personal injury have 

standing to seek redress for that injury. Thus, for example, a legislator could 

sue for the loss of salary. See Powell v. McCormack, 395 U.S. 486 (1969). But 

that is not what we have here. Instead, the legislators are claiming some 

nebulous harm to their duties as legislators. 

Individual legislators simply do not have a sufficient personal stake in a 

dispute over the execution or constitutionality of a statute, even when the 

claim is that another branch of government is violating the separation of 

powers. The United States Supreme Court reached the same conclusion when 

members of Congress sought to challenge the constitutionality of the Line Item 

Veto Act in the 1990s. See Raines v. Byrd, 521 U.S. 811, 830 (1997). There the 

Court held that "individual members of Congress do not have a sufficient 

`personal stake' in this dispute and have not alleged a sufficiently concrete 

injury to have established Article III standing." Id. Although Article III does not 

dictate the contours of the law of standing before this state's courts, we 

generally require the same particularized, personal injury when individuals 

seek to bring a claim. 

20 
The individual legislators have not shown that they are representative of 

the entire body of the General Assembly. They "have not been authorized to 

represent their respective Houses ... in this action." Id. at 829. They are not 

numerous enough to demonstrate that they represent a sufficient bloc of votes 

to act on behalf of the whole legislature, as was the case in Coleman v. Miller, 

307 U.S. 433 (1939). Indeed, they constitute only three of one hundred 

members of the House (and no members of the Senate). And, finally, they are 

not presiding officers of either house, whose "unique status" may give them "an 

enhanced capacity to maintain suit to prevent non-legislative disbursements 

from the treasury." Salamanca, supra, at 201. We need not decide today 

whether satisfaction of any of these conditions would suffice to give standing, 

however, as it is clear that the individual legislators in this case have met none 

of them. 

Finally, it must be noted that the legislators did not actually file an 

original complaint in this case. Instead, they permissively intervened under 

Civil Rule 24.02. Whether that intervention was proper has not been argued to 

the Court, and we therefore leave that question for another day. 

C. Conclusion 

As recounted above, the Attorney General is the state's chief legal officer 

and, as such, he has broad powers under statutory and common law to defend 

the public interest. This includes challenging conduct that he believes violates 

the Constitution's strict separation of powers or is otherwise unlawful. For that 

21 
reason, he has standing to bring his claims challenging the Governor's actions 

in this case. 

The individual legislators, on the other hand, do not enjoy such a broad 

power of representing the full Commonwealth. To have standing, they must 

allege some type of particularized injury. They have not done so here. Thus, the 

individual legislators in this case do not have standing to challenge the 

Governor's actions. 

We note, however, that no one has asked that the legislators be 

dismissed from the claim. Instead, the legislators' standing has been 

challenged in the context of a two-pronged attack that depends on the Attorney 

General also not having standing. If both lack standing, then the entire case 

should be dismissed. But the Governor's standing claim is framed as an 

alternative ground for affirming the Franklin Circuit Court's decision, and he 

acknowledges that it would require this court to conclude "that none of the 

parties have standing." (Emphasis added.) Even so, as to justiciability of this 

action, clearly only one plaintiff need have standing for the case to proceed. 

Since the Attorney General does have standing, this case remains a justiciable 

action properly before this Court. And since the Governor has asked only that 

the case—and not the individual parties—be dismissed, and because this is the 

Court of last resort in this matter, the propriety of the legislators participating 

in this case is moot. 

22 
III. Does the Governor have authority to reduce the Universities' fourthquarter allotments or otherwise require them not to spend funds? 

Having addressed standing, we begin our discussion of the merits with a 

brief overview of the budgeting process. That process consists largely of two 

steps: (1) the appropriation of funds and (2) the expenditure of funds. 

The first step consists primarily of the legislative appropriation process, 

as required by the Constitution. By default, the state treasury may not be 

accessed without legislative action, in the form of an appropriation. See Ky. 

Const. § 230 ("No money shall be drawn from the State Treasury, except in 

pursuance of appropriations made by law ...."). As the Governor points out, an 

appropriation sets a ceiling on an expenditure, as it is for "a sum of money not 

in excess of the sum specified." KRS 48.010. Although this is correct, it is only 

half the story. An appropriation is also "an authorization by the General 

Assembly to expend a sum of money." Id. 

The second stage of the budgeting process is the spending of money as 

authorized in the appropriation. Appropriated funds are not usually expended 

all at once. Instead, they are divided into quarterly allotments, to be used over , 

the course of the fiscal year. KRS 48.610. The expenditure of funds itself 

ordinarily occurs though the issuance of warrants to the Treasurer, who then 

writes a check or transfers the money to whomever it is owed. KRS 45.456. But 

the Universities differ from most of state government in that their 

appropriations are made directly available to them. KRS 164A.555. 

There is no question that the Governor has the authority to make budget 

reductions in limited circumstances. Specifically, where there is a budget 

23 
shortfall of 5% or less, the General Assembly has authorized the Governor (and 

the heads of the other branches of government) to reduce appropriations under 

a legislatively prescribed budget-reduction plan. KRS 48.130. 

But that statute does not authorize the Governor's action in this case. 

There was no budget shortfall in the final quarter of the 2015-2016 fiscal year. 

In fact, there was a surplus. Nonetheless, the Governor sought to reduce the 

fourth-quarter allotments so that the funds could possibly be used for other 

future spending. Specifically, he hoped to buttress Kentucky's state pension 

systems. 

The primary question in this case is whether the Governor has authority 

to reduce the Universities' fourth-quarter allotments in this manner and under 

these circumstances, or to otherwise require the Universities not to spend the 

funds. The Governor, as the chief executive of this Commonwealth, has only 

the authority and powers granted to him by the Constitution and the general. 

law. He is the chief executive of the Commonwealth. Ky. Const. § 69. But the 

Governor, like everyone, is bound by the law. Indeed, the Governor has a 

special duty with respect to the law, as he is commanded to "take care that the 

laws be faithfully executed." Ky. Const. § 81. 

Although questions about the constitutional separation of powers have 

been raised in this case, the issue is primarily whether the statutes controlling 

the budgeting process give the Governor the authority that he claims and 

whether his authority with respect to the expenditure of appropriated funds 

has been limited by other statutes. The Governor has identified three possible 

sources for his authority. Two of these are explicitly statutory—KRS 48.620(1) 

24 
and 45.253(4). The third is his general authority over executive branch budget 

units and the power to require those units not to spend appropriated funds. We 

address each in turn. 

We also note that the Attorney General claims the Governor's actions and 

these statutes violate the Constitution's requirement of strict separation of 

powers among the branches of government. See Ky. Const. §§ 27-28. This 

Court, like most, follows "the principle that constitutional adjudication should 

be avoided unless it is strictly necessary for a decision in the case." Trigg v. 

Commonwealth, 460 S.W.3d 322, 330 (Ky. 2015). For that reason, the first 

consideration is whether the Governor has exceeded his authority under the 

statutes rather than whether his actions or the statutes violate the 

Constitution. Only if the statutes give the Governor the authority he claims, or 

do not otherwise limit his authority, would we need to address the 

constitutional question. Given our resolution of the statutory questions in this 

case, we need not specifically address the constitutional question. 

A. The statutory claims 

Before turning to the statutes themselves, it is helpful to examine the 

role of judges when confronted with a statute. We did not enact the law. That is 

the role of the legislature. We do not execute the law. That is the role of the 

executive. Rather, we interpret and apply the law. As Chief Justice John 

Marshall stated: "Courts are the mere instruments of the law, and can will 

nothing. ... Judicial power is never exercised for the purpose of giving effect to 

the will of the Judge; always for the purpose of giving effect to the will of the 

25 
Legislature; or, in other words, to the will of the law." Osborn v. Bank of U.S., 

22 U.S. 738, 866 (1824). Our task, then, is to read the statutes and discern 

their meaning, and nothing more. 

This is not always an easy task. Statutory interpretation can, at times, be 

complex, just as statutes can be complex. We begin, perhaps obviously, with 

the language of the statutes, but we often cannot end there. "Such is the 

character of human language, that no word conveys to the mind, in all 

situations, one single definite idea ...." M'Culloch v. Maryland, 17 U.S. 316, 414 

(1819). We thus resort to an arsenal of interpretive tools, referred to variously 

as canons of construction or rules of interpretation, in an effort to arrive at a 

fair reading of the controlling statutory language. 

1. Revising allotments under KRS 48.620. 

The first question is whether reducing an allotment, without increasing 

other allotments by an equal amount, is a permissible revision of the allotment 

under KRS 48.620(1). This Court concludes that the statute does not give the 

Governor the authority to revise allotments in this way. 

We reach this conclusion after examining the statute in context, both 

that within KRS 48.620(1) itself and that in other provisions of KRS Chapter 

48. When the statute speaks of revising allotments, it refers to the schedule of 

allotments, that is, the timing of the payments throughout the fiscal year. Not 

only does KRS 48.620(1) refer expressly to revising the schedule, other 

provisions of KRS Chapter 48 and the budget bill itself require that the 

allotment conform to the General Assembly's appropriations. The only way for 

26 
this to happen is if the full amount appropriated is included in allotments over 

the year. Moreover, this reading is compelled by an examination of the 

statutory—as opposed to legislative—history of KRS Chapter 48, which shows 

that allotment revision has always been about revising the schedule of 

allotments. 

a. The language of the statute in context requires revision of 

allotments to refer to scheduling, not just the amount, of the 

allotments. 

Again, we begin with the language of the statute: 

Allotments shall be made as provided by the allotment schedule, 

and may be revised upon the written certification of the Governor, 

the Chief Justice, and the Legislative Research Commission for 

their respective branches of government. No revisions of the 

allotment schedule may provide for an allotment or allotments in 

excess of the amount appropriated to that budget unit in a branch 

budget bill, or for expenditure for any other purpose than specified 

in a branch budget bill. 

KRS 48.620(1). Although the statute does not group the words together as a 

single term, it is clear that we are concerned generally with the meaning of an 

allotment revision. 6 

"Allotment" is not a statutorily defined term. Its meaning, however, is 

fairly clear: a "share or portion of a thing that is given to someone or 

something." Black's Law Dictionary (10th ed. 2014). It is "[s]omething allotted," 

and "allot," in turn, means "No parcel out; distribute or apportion" or "Rio 

assign as a portion; allocate." American Heritage Dictionary of the English 

6We note that KRS 48.620(1) starts with the word "allotments," which, as the 

Governor points out, is modified by a clause beginning with the words "may be 

revised." Thus, there is little question that the statute is addressed to "allotment 

revision," and that the Governor claims to have made such a revision. 

27 
Language (5th ed. 2011). In this context, it means a portion of a given 

appropriation. 

Allotments are made on a quarterly basis, rather than the full amount of 

each appropriation being made available at the beginning of the fiscal year. 

This reflects the dual reality that expenses do not arise all at once, and that the 

state is rarely flush with sufficient cash to pay all those expenses at once and 

must instead rely on the revenue stream from taxes. In short, the quarterly 

allotment system is a means of coordinating revenues with expenditures. 

"Revise" means "No alter or edit (a text)." Id. An "act ... of revising" is a 

"revision." Id. 

The Governor reduced the fourth-quarter allotment for the Universities 

by 2%. In a sense, this is a "revision"---in that it is literally an alteration of the 

allotment amount. The Governor claims that his action was allowed by the 

statute, as its only express limits are on revisions that would "provide for an 

allotment or allotments in excess of the amount appropriated to that budget 

unit in a branch budget bill, or for expenditure for any other purpose than 

specified in a branch budget bill." KRS 48.620(1). This, he claims, allows for 

revisions of allotments down—a reduction without a corresponding increase of 

other allotments—under the doctrine of expressio unius (otherwise known as 

the negative-implication canon). In other words, because the statute expressly 

includes a limit on revision, other limits are not included. 

The Attorney General instead claims that the statute is about the timing 

of payments, not in the literal sense of whether the payment should be on the 

first or the fifteenth of a month, but in the sense of in which quarter any given 

28 
penny is allotted. In other words, according to the Attorney General, the power 

to revise an allotment is simply the power to move a penny from one quarter to 

another, either by advancing money to one allotment or putting it off to 

another. The Governor responds that the plain language of KRS 48.620(1) says 

nothing about the revision going to the schedule of allotments because 

"allotments," in the first sentence, are what "may be revised." And the 

allotment is the amount of money available in any given quarter. 

But allotment revision is not the only description of revision in the 

statute. The second sentence of KRS 48.620(1) refers to "revisions of the 

allotment schedule." That sentence cannot be ignored because statutes "must 

be read as a whole and in context with other parts of the law." Lewis v. Jackson 

Energy Co-op. Corp., 189 S.W.3d 87, 92 (Ky. 2005). 

This is the "whole-text canon, which calls on the judicial interpreter to 

consider the entire text, in view of its structure and of the physical and logical 

relation of its many parts." Antonin Scalia lk Bryan A. Garner, Reading Law: 

The Interpretation of Legal Texts 167 (2012). The canon recognizes that discrete 

statutory language falls within a larger context, and that "[c]ontext is a primary 

determinant of meaning." Id. 

And the second sentence of KRS 48.620(1) greatly affects the statute's 

meaning. It literally says that the revision allowed by KRS 48.620 will be to the 

allotment schedule. Given this context, allotment revision in the first sentence 

cannot be read to mean that any change constitutes a permissible revision 

under the statute. Just as the Governor would have us consider the second 

29 
sentence's prohibition on allotments exceeding appropriations, so too must we 

consider its use of "revisions of the allotment schedule." 

With this context in mind, we conclude that revision of an "allotment" in 

KRS 48.620(1) refers to revising the schedule of allotments. Obviously, the 

statute allows a reduction of an allotment. It also allows an increase in an 

allotment. But when an allotment is revised up or down, there must be a 

corresponding revision of at least one other allotment. If the fourth-quarter 

allotment is reduced by 2%, then other allotments must be increased to 

balance the reduction, so that the sum of the quarterly allotments reflects the 

appropriated amount. If the revision is attempted too late, so that the other 

allotments cannot be revised, then revision is not allowed.? 

This allows the allotments to comply with the requirements of KRS 

48.610, which commands: "Allotments shall conform with the appropriations 

in the enacted branch budget bills or other appropriation provisions." This 

reading also allows compliance with the 2014 Executive Branch Budget Bill 

itself, which commands that laillotments within appropriated sums for the 

activities and purposes contained in the enacted Executive Budget shall 

conform to KRS 48.610." 2014 Ky. Acts Ch. 117, Part III, § 4. 8KRS 48.610, of 

7This understanding of the operation of allotments within appropriations is 

also consistent with prior decisions governing the legislative appropriation authority. 

See generally James v. State University, 114 S.W. 767 (Ky. 1908) (suggesting that the 

executive (there the auditor) cannot alter how (and to whom) appropriations are paid 

out so as to make it impractical, through exhaustion of the treasury funds, to pay 

some of them at the end of the budget term); Rhea v. Newman, 156 S.W. 154 (Ky. 

1913) (requiring Treasurer to pay out all appropriated sums despite protestations that 

would result in a deficit). 

8Interestingly, that same provision also commands that "[a]llotments within 

appropriated sums for the activities and purposes contained in the enacted Executive 

30 
course, requires that allotments conform to appropriations, but it also creates 

the "schedule of quarterly allotments of appropriations for each budget unit of 

the branch." KRS 48.610. Allotments can only conform to KRS 48.610 if they 

conform to the quarterly allotment schedule. 

Only by having the full schedule of allotments comport with the 

appropriation can this be accomplished. Under the Governor's proposed 

reading of KRS 48.620(1), it cannot. Not only is KRS 48.610 an additional 

element of context in which KRS 48.620(1) is to be considered, it is a direct 

command that allotments are to conform to the appropriations made by the 

General Assembly. That command cannot be ignored. 

This reasoning carries with it the weight of logic and considers the effect 

of other statutory references to "allotments." It thus offers a sounder basis for 

interpreting the statute than relying on expressio unis as applied to the 

appropriation-maximum qualification in KRS 48.620(1). Although that is 

unquestionably a legitimate principle of statutory interpretation, it should be 

Budget ... may be revised pursuant to KRS 48.605 and this Act." 2014 Ky. Acts Ch. 

117, Part III, § 4. A broad application of the expressio unius canon would suggest that 

KRS 48.620, which is not mentioned as a means by which an allotment may be 

revised, is not applicable to revising allotments under this bill. But that canon "must 

be applied with great caution, since its application depends so much on context." 

Scalia & Garner, supra, at 107. Indeed, it "properly applies only when the unius (or 

technically, unum, the thing specified) can reasonably be thought to be an expression 

of all that shares in the grant or prohibition involved. Common sense often suggests 

when this is or is not so." Id. Nothing in the bill suggests that KRS 48.620 was 

intended not to apply to the 2014 Executive Branch Budget Bill (unlike the one passed 

in 2016, at least with respect to the Universities). Common sense, especially in light of 

how the allotment-revision statute works, as explained in this opinion, suggests that it 

was in effect and could be used to revise allotments. This same limit on expressio 

unius, however, shows why the Governor's reliance on it to read only an upward limit 

to revisions is untenable. 

31 
used cautiously and simply cannot control here as explained in footnote 8. The 

other approach discussed provides a better indication of meaning here. 

b. The meaning of allotment revision throughout the statute's 

history also requires it to be read as referring to the scheduling of 

allotments, and not just amounts. 

The whole-text canon—as applied to the immediate context of the 

statute—is not the only one showing that KRS 48.620(1) allows only revision of 

the schedule of allotments. An examination of the statute's history 9also 

demonstrates that it has always been concerned with revising the allotment 

schedule, rather than reducing a single allotment. 

Thus we apply the fixed-meaning canon. This canon would have words 

"be given the meaning they had when the text was adopted." Scalia 86 Garner, 

supra, at 78. KRS 48.620 was adopted in 1982, and the language at issue in 

subsection (1) has not changed since that time. Thus, it bears the same 

meaning that it had at that time. 

But KRS 48.620 does not exist in a vacuum, nor did it in 1982. Indeed, 

the statutory scheme at issue here has a long history and includes more than 

the provision allowing revision of allotments. Some understanding of the larger 

existing scheme, and how it came to be (in terms of amendments), sheds light 

on what allotment revision in KRS 48.620 meant in 1982 and now. We thus 

9Here, we refer to the history of the statutory language over time in light of 

amendments. This is "quite separate from legislative history," Scalia 86 Garner, supra, 

'at 256, which concerns committee reports, floor speeches, and other instances of 

legislative activity that are not reflected in the language of the statute. Statutory 

history is part of the context of the existing statutory language and is a more reliable 

indicator of the statute's meaning. 

32 
also apply the principle that "[sjtatutes in pari materia are to be interpreted 

together as though they were one law." Scalia & Garner, supra, at 252. 

KRS 48.400 to .810 address general monitoring and revision of the 

budget during the course of the biennium. Included in this scheme is KRS 

48.620 allowing the Governor to revise allotments. It also includes KRS 48.605, 

which allows revisions of allotments at the request of the head of a budget unit. 

Also included in this scheme is express authorization for the Governor to 

reduce an appropriation under certain circumstances. See KRS 48.600. 

Generally speaking, this statute very narrowly and specifically grants the 

Governor the authority to reduce appropriations when there is an estimated or 

actual revenue shortfall in the general fund of 5% or less. KRS 48.600(1). 

Even then, the Governor is not given free rein. Instead, he may reduce 

appropriations only "in accordance with the budget reduction plan included in 

the enacted branch budget bill," id., and no reductions under the plan are 

permitted "in excess of the actual or projected revenue shortfall," 

KRS 48.600(2). And if the shortfall exceeds or is expected to exceed 5%, then 

action can only be taken by the General Assembly. See KRS 48.130(3) ("Any 

revenue shortfall in the general fund or road fund of greater than five percent 

(5%) shall require action by the General Assembly."). 

On its face, the Governor's claim to broad authority under KRS 48.620(1) 

to change the amount of money available to the Universities when there is a 

budget surplus is inconsistent with his needing legislative authorization to do 

the same thing when there is an actual or anticipated budget shortfall under 

KRS 48.600. And when the statutes' history is reviewed, it is evident that they 

33 
are, in fact, very different powers, and that only one has been given to the 

Governor. 

From 1982 to 2009, when faced with budget shortfalls, the Governor 

could not reduce appropriations.' 0Rather, he could reduce allotments under 

those circumstances. See KRS 48.600(1) (1982) (commanding the Governor to 

"make any allotment reductions for the budget units" that were necessary). He 

was also required to "take any steps to revise allotments for [his] respective 

branch[] that [we]re necessary to prevent a cash deficit." Id. 

KRS 48.620, the allotment-revision statute, also existed at that time. Its 

first two sections read much as they do now: 

(1) Allotments shall be made as provided by the allotment 

schedule, and may be revised upon the written certification of 

the Governor, the Chief Justice, and the Legislative Research 

Commission for their respective branches of government. No 

revisions of the allotment schedule may provide for an allotment 

or allotments in excess of the amount appropriated to that 

budget unit in a branch budget bill, or for expenditure for any 

other purpose than specified in a branch budget bill and a 

budget memorandum provided for by KRS 48.300. 

(2) Revisions of allotments under this section shall be reported and 

reviewed as provided by subsection (4) of KRS 48.500. 

KRS 48.620 (1990)." 

But the pre-2009 version included two additional provisions: 

(3) When the actual tax receipts accruing to the general fund or 

road fund, as appropriate, do not permit all the allotments 

provided for by the schedules of allotments of all branches of 

10Before 1982, these matters were handled under a different set of statutes. 

Those were repealed in 1982 and replaced by KRS 48.400 to .810. 

11These provisions essentially read as they did when enacted in 1982. In 1990, 

they were amended slightly to add "branch budget bill" instead of "joint budget 

resolution." And they were later amended to delete the language "and a budget 

memorandum provided for by KRS 48.300" from subsection (1), and to change the 

cross-reference in subsection (2). Otherwise, the language has been stable. 

34 
government, the secretary of the Finance and Administration 

Cabinet shall notify all branches of government and each 

branch shall take appropriate action concerning allotments. 

(4) This subsection shall not apply in the event of a projected or an 

actual deficit in tax receipts of the general or road funds as 

determined by KRS 48.130. 

KRS 48.620 (1982). 12 

These provisions are important indicators of the meaning that allotment 

revision had when the first subsection was originally enacted. Subsection (3) 

required the Finance and Administration Cabinet to give notice when actual tax 

receipts would not permit all of the allotments, and the affected branches of 

government were to take appropriate action, presumably, by revising 

allocations as allowed under subsection (1). 

On its surface, insufficient actual tax receipts sounds like a budget 

deficit, but subsection (4) stated that KRS 48.620 was not to apply in the event 

of a projected or actual deficit. Instead, upon such an occurrence, assuming 

the deficit was less than or equal to 5%, KRS 48.600 went into effect. Again, 

under the version of that statute then in effect, the Governor was allowed to 

make both allocation reductions and allocation revisions. But the two were 

unquestionably different acts, as the former was only allowed in the event of a 

deficit. 

So when was the revision process laid out in KRS 48.620 to be 

implemented? "When the actual tax receipts accruing to the general fund or 

road fund, as appropriate, d[id] not permit all the allotments," KRS 48.620 

12These provisions were not amended until repealed in 2009. 

35 
(1982), but not when there was a projected or actual deficit. What is the 

difference between the two scenarios? An actual deficit is when the state has 

literally run out of money for the year, but still has unpaid expenses. A 

projected deficit is when the state is projected to run out of money before the 

end of the year while still having projected expenses. 

But tax receipts can be insufficient temporarily to pay out an allotted 

amount without there being an expected deficit overall for the year. Just as 

"the Commonwealth does not receive all its anticipated receipts on the first day 

of the fiscal year," Aff. of Kathleen Marshal1 13at 4, it is possible that 

anticipated receipts may not be received on the day they are actually expected 

or simply do not coincide with the timing of an allotment. That is when KRS 

48.620 was set to go into effect. If, for example, actual tax receipts in the first 

quarter were insufficient to pay a full allotment, but the funds were expected to 

be available in the second quarter, then the allotments could be revised to 

reflect the reality of, and expectations about, the state's revenue stream. This 

indicates that revision of allotments, as allowed under subsection (1), was 

about changing the schedule of payments. 

Moreover, the version of KRS 48.600 then in effect demonstrates that a 

reduction of an allotment, which was allowed when there was a deficit, was 

different from a revision of an allotment. Revision of an allotment was also 

allowed when there was a deficit, but short of a deficit, only a revision was 

allowed, not a reduction. 

13Ms. Marshall is an Analyst in the Office of the State Budget Director. 

36 
Under the fixed-meaning canon, the meaning of allotment revision, thus, 

must still refer to changing the schedule of the allotments. If one allotment 

goes down, another must go up, resulting in the same overall appropriated 

amount being allotted over the course of the fiscal year. Revision, in this 

context, differs from reduction, which means a departure down from the 

appropriated amount. Reduction was allowed in 1982 only when there was a 

deficit; the same holds true now. 

The obvious response to this analysis is that subsections (3) and (4) are 

no longer the law, having been repealed in 2009. That, however, does not mean 

that subsection (1)'s meaning was changed. Unquestionably, "a significant 

change in language is presumed to entail a change in meaning." Scalia 86 

Garner, supra, at 256. But the language in subsection (1) was not changed, 

even though the overall statute was amended. Indeed, that subsection (1)'s 

language was left intact suggests that its meaning remained fixed intentionally. 

And, as explained above, as used before 2009, revision of an allotment 

necessarily meant something different from reducing an allotment. Thus, even 

if allotment revision were ambiguous under the current statutes, "it is fair to 

argue that giving an ambiguous term one meaning rather than another would 

cause it to make no sense as used in an earlier-enacted statute ... so that such 

an interpretation should be rejected." Id. at 323. The Governor's proposed 

reading of the statute would not have made sense under the pre-2009 version 

of the statute, even though the language in question has not been changed. For 

that reason, that interpretation must be rejected. 

37 
Still other changes made in 2009 suggest that revision of an allotment 

continues to mean a change in the timing of payments, rather than a reduction. 

KRS 48.600 was amended at that time so that reductions in the event of a 

deficit (now "revenue shortfall") were to be made to appropriations, rather than 

allotments.. And instead of allowing these reductions to be made as "deemed 

necessary" by the head of the branch of government, they are now to be made 

"in accordance with the budget reduction plan included in the enacted branch 

budget bill." At the same time, subsections (3) and (4) of KRS 48.620 were 

repealed. These provisions were no longer necessary to clearly establish the 

difference in when KRS 48.600 and .620 were to be used because the 

reduction-revision distinction was clarified. But that was because the 

distinction between a revision of an allotment and what had been called a 

reduction of an allotment (now a reduction of an appropriation) had been 

clarified. 

In light of this statutory history, it is evident that KRS 48.620(1) has 

always been addressed to revising the schedule of allotments. Nothing in the 

amendments in 2009 suggests that this language means something different 

now. 

2. Withholding allotments when there are trust and agency funds 

under KRS 45.253(4). 

As an alternative, the Governor claims that his action, in substance, was 

permitted by KRS 45.253(4), which allows the Secretary of the Finance and 

Administration Cabinet to "withhold allotment of general fund appropriations 

to the extent trust and agency funds are available." As noted above, the 

38 
Governor presented evidence that the Universities had available adequate trust 

and agency funds to cover the reductions he made, and thus there would be 

nothing unlawful about the Secretary withholding allotment of 2% of the fourth 

quarter's general-fund appropriations. 

The problem with the Governor's position, however, is that the financial 

administration of state universities is governed by KRS 164A.555 to .630. 14 

 And KRS 164A.630(2) states specifically that "[a]ny other provisions of KRS 

Chapter[] ... 45 ... to the contrary notwithstanding, KRS 164A.555 to 164A.630 

shall govern the financial management of higher education." 15Thus, to the 

extent that KRS Chapter 45, including 45.253(4), is inconsistent with KRS 

164A.555 to .630, the latter set of provisions controls. 

The Governor argues that there is no inconsistency and, that to the 

extent there could be one, any conflict should be resolved in favor of reading 

these statutes in harmony if possible. It is unquestionable "that where two 

statutes are in apparent conflict, their inconsistencies should be reconciled if 

possible." Commonwealth v. Martin, 777 S.W.2d 236, 238 (Ky. App. 1989); see 

also Scalia 86 Garner, supra, at 180 ("The provisions of a text should be 

interpreted in a way that renders them compatible, not contradictory."). The 

question is whether the statutes can be read in harmony. 

14Technically speaking, these provisions require the Universities to have opted 

into their governance. KRS 164A.560. The Universities all appear to have done so. 

15That statute includes an exception not applicable to this case: "with the 

exception of KRS 45.990 and 45A.990 having to do with penalties which shall be 

applicable to violations of KRS 164A.555 to 164A.630." 

39 
The Governor notes that the financial-management provisions of Chapter 

164A are about the internal financial management of the Universities, whereas 

KRS 45.253(4) applies to the Finance and Administration Cabinet. Because 

they govern different entities, goes the argument, they cannot be in conflict. 

This is largely correct, as most provisions of KRS 164A.555 to .630 are directed 

to the internal financial management of the Universities. 

But not every provision is. Indeed, the very first provision, KRS 

164A.555, is instead directed at the Finance and Administration Cabinet. It 

states: 

The secretary of the Finance and Administration Cabinet shall 

issue warrants authorizing the Treasurer of the Commonwealth of 

Kentucky to pay to the treasurer of each institution any amounts 

due by virtue of the state appropriations for that institution, or 

transfer the amount due electronically if electronic transfer is 

authorized by statute. The transfer of funds shall be handled in a 

manner to assure a zero (0) balance in the general fund account at 

the university. 

KRS 164A.555. This statute specifically directs the secretary to bypass the 

ordinary process of issuing warrants to the Treasurer to pay expenses on 

behalf of a government body and to instead issue warrants to the Treasurer to 

pay "any amounts due" directly to the Universities. 

The Governor argues that this statute accomplishes only one thing: it 

allows the Universities to pay their own bills, rather than relying on the 

Finance and Administration Cabinet and the Treasurer as each bill comes due. 

It certainly has that effect, but that is not all the statute does. It is a direct 

command to the Secretary of Finance and Administration Cabinet to pay "any 

amounts due by virtue of the state appropriations for that institution." 

40 
KRS 164A.555. The "amounts due by virtue of the state appropriations" is 

exactly that: the amount appropriated—the full amount. 

Again, the Governor disputes that this requires the full amount, and 

argues that "any amounts due" simply "refers to any amount up to the 

appropriated amount." He notes again his argument that an appropriation is 

only a ceiling and that not every penny must be spent. Again, this is true but is 

not the full story. An appropriation is also an authorization for the expenditure 

of funds. 

More importantly, KRS 164A.555 is simply not ambiguous. To the extent 

an amount is authorized by an appropriation, KRS 164A.555 recognizes that 

amount is "due" to the Universities. Although the word "due" has many uses 

and meanings, its relevant meaning here—in the context of an amount of 

money—is "[playable immediately or on demand" or "[o]wed as a debt; owing." 

American Heritage Dictionary of the English Language (5th ed. 2011). Indeed, 

the usage example offered for this latter definition is "the amount still due." Id. 

Although the first use is more common in modern English, see Bryan A. 

Garner, Garner's Dictionary of Legal Usage 300 (3d ed.. 2011), both meanings 

demonstrate that whatever amounts are "due" under the appropriations are 

amounts to which the Universities are entitled, whether immediately or as a 

debt. Either way, the statute orders the Secretary of Finance and 

Administration to issue warrants for those amounts. ("Due" is limited here to 

some extent by the statutes requiring quarterly allotments; in other words, the 

full amount does not become due at the beginning of the fiscal year.) 

41 
And the word "any" further confirms this understanding that the full 

amount must be paid. Although it has multiple senses, the word as used here 

means "every" or "all." See American Heritage Dictionary of the English 

Language (5th ed. 2011) ("Every: Any dog likes meat."); Bryan A. Garner, 

Garner's Modern English Usage 57 (4th ed. 2016) (noting that "any" has six 

uses as an adjective but that Tin affirmative sentences, it means 'every' or 'all' 

... <you are required to produce any documents relating to the issue>"). Thus, 

the statute cannot mean that an amount less than the full appropriation can 

be paid to the Universities. Instead, a warrant for all of the amount or every 

amount due must be issued by the Secretary. Any action less would not 

comport with the directive of KRS 164A.555. 16 

And that the full amount is due is further confirmed by the budget bill 

itself. Specifically, the 2014 Executive Branch Budget Bill commanded "that 

the Executive Branch shall carry out all appropriations and budgetary 

language provisions as contained in the State/Executive Budget." 2014 Ky. 

Acts Ch. 117, Part III, § 27. The only way to do so was to comply with KRS 

164A.555. 

In short, the conflict between KRS 164A.555 and 45.253(4) is 

inescapable. The two cannot be read together without ignoring the plain 

meaning of the language in KRS 164A.555. Because KRS 164A.630(2) 

16The proof in this case included an affidavit from Kathleen Marshall, an 

analyst in the Office of the State Budget Director, stating that the Universities do not 

actually draw their full allotment at the beginning of each quarter, though it is 

ordinarily available to them. Our reading of the statute does not render this practice 

unlawful. As long as the appropriated funds are made available, the statute is 

complied with. 

42 
commands that the provisions of KRS Chapter 164A control over KRS Chapter 

45 if there is a conflict, KRS 164A.555 must control. Thus, the Finance and 

Administration Cabinet cannot withhold the Universities' allotments even if 

they have sufficient trust and agency funds to cover their expenses. 

Any concerns the Governor raises about an appropriation not requiring 

the expenditure of the full amount—of every penny—are alleviated by the fact 

that any funds paid to the Universities on the Secretary's warrant but not 

spent will lapse back to the general fund. See KRS 164A.565(2) (" Any 

uncommitted state general funds remaining after the close of business on the 

last day of the fiscal year shall lapse and be returned to the Treasury of the 

Commonwealth."). 17Thus, it is evident that the Universities, like any other 

state agency with discretion in how it spends money, are not required to 

expend every penny appropriated to them. Nor is that money lost to the state, 

as it is returned if not spent. 

B. The Governor's authority to decline to spend appropriated funds is 

statutorily limited with respect to the Universities. 

The Governor has not explicitly claimed the inherent authority to require 

the Universities not to spend their funds. But this understanding of executive 

power is implicit in his argument. Indeed, he emphasizes in his brief that while 

the power of the purse belongs to the legislature, "administering an 

appropriation and spending money is an executive function." And he claims 

that he has acted within that realm, having "taken the purse of money provided 

17 Funds appropriated for capital construction are excluded from this lapse. 

KRS 164A.565(6). 

43 
by the legislature and h[aving] reasonably decided that the legislature's will can 

be satisfied without spending all of the money in the purse." We recognize that 

the Governor has disclaimed the existence of "unfettered power to withhold 

appropriated money and reduce spending," and instead claimed authority for 

his actions under the statutes addressed above. At the same time, however, he 

claims, under the guise of laying out a limiting principle on his authority, that 

he "may direct budget units to spend less than the full amount of an 

appropriation so long as 'he has determined that such a decision will not 

compromise the achievement of underlying legislative purposes and goals.'" 

(Quoting Opinion of the Justices to the Senate, 376 N.E.2d 1217, 1223 (Mass. 

1978)). The acknowledgement of this limiting principle, however, contains in it 

a suggestion of an authority that does not exist with respect to the Universities. 

The existence and breadth of such an authority generally is not before 

us. Thus we do not address whether the Governor's exercise of such authority 

in other areas of the executive budget might create a constitutional challenge 

as the Attorney General has claimed. Here, the statutory language is clear that 

the legislature has not given the Governor control over the Universities' 

appropriated funds regardless of whether such authority exists in regard to 

other budget units. 

In suggesting that reducing the Universities' allotments has been 

essentially a decision not to spend the money, the Governor relies heavily on 

the notion that an appropriation is a ceiling on spending. There is little 

question that an appropriation does not mandate the expenditure of all the 

funds authorized (unless the appropriation says otherwise). Indeed, the budget 

44 
bill at issue in this case itself notes that "[t]here is appropriated ... the following 

discrete sums, or so much thereof as may be necessary." 2014 Ky. Acts Ch. 

117, Part I, § (1). 

So the question is simple: May the Governor order the Universities not to 

spend their funds? Or, as the trial court suggested, are "[t]he Universities ... 

under the Governor's control as part of the executive branch"? Although the 

Universities are state agencies and are attached to the executive branch for 

budgetary purposes, they are not part of the executive branch in the same 

sense as the program cabinets and boards directly under the Governor's 

control. 

Unlike those cabinets and boards, the Universities' boards are separate 

"bod[ies] corporate, with the usual corporate powers." 18KRS 164.350; see also 

KRS 164.460 (same for the University of Kentucky); KRS 164.830(1) (same for 

the University of Louisville). They are expressly excluded from being part of the 

Department of Education. KRS 164.285. 19In some ways, they are akin to 

municipal or public corporations, having a separate existence from the main 

body of government, although retaining many of the government's 

characteristics, such as immunity from suit. 

18Indeed, the Governor's counsel emphasized at oral argument, albeit in 

discussing the standing question, that the Universities were separate corporations 

from the rest of state government. 

19That statute went so far as to repeal any statute suggesting that the 

Universities are part of the Department of Education: "KRS 156.010 and 64.640 and 

any other statute, to the extent that they provide that the University of Kentucky, 

Eastern Kentucky State University, Western Kentucky State University, Murray State 

University, and Morehead State University shall be included in the Department of 

Education and constitute a division thereof, are hereby repealed." KRS 164.285. 

45 
The Universities' boards have close to plenary power over the operation of 

their respective institutions. For example, they have exclusive control over 

appointments, qualifications, and salaries of faculty and employees. KRS 

164.365(1); KRS 164.220 (UK); KRS 164.830 (U of L). 

And the Universities are all generally given authority to receive and 

spend money from all sources. The Universities other than the University of 

Kentucky and the University of Louisville are given the power to receive and 

spend money under KRS 164.350(1): "Each board may: (a) Receive grants of 

money and expend the same for the use and benefit of the university or college 

...." If they opt to proceed under KRS 165.555 to .630, which the UniverSities 

have done, they may "receive, deposit, collect, retain, invest, disburse, and 

account for all funds received or due from any source including, but not limited 

to, state and federal appropriations." KRS 164A.560(2)(a). This grant of 

authority is even more explicit with respect to the boards of the University of 

Kentucky and University of Louisville, both of which are expressly given the 

authority to receive and spend appropriations and allotments. See KRS 

164.160 (giving UK board power to "receive, hold and administer ... all 

revenues from ... appropriations, [and] allotments"); KRS 164.830(1)(d) (stating 

powers of U of L board include "receipt, retention, and administration ... [of] all 

revenues accruing from ... appropriations, [and] allotments"). 

There are, of course, some limits on how the boards operate. For 

example, certain expenditures must be approved by the Finance and 

Administration Cabinet or the Council on Postsecondary Education. See KRS 

164A.575 (requiring cabinet approval for real property purchases); KRS 

46 
164.020(11)(a) (giving council power to approve certain capital construction 

projects). But that does not otherwise bring the financial decision-making—the 

choice whether to spend funds—back within the purview of the Governor. 

The Governor also has some say with respect to the Universities' boards. 

For example, he gets to appoint most of the members of the boards. See KRS 

164.131(1)(e) (UK); KRS 164.821(1) (U of L); KRS 164.321(1)(a) (other 

universities). And he may remove members for cause. See KRS 63.080(2); KRS 

164.131(1)(d) (UK); KRS 164.821(1)(b) (U of L); KRS 164.321(10) (other 

universities); KRS 164.325 (specifically applying 63.080(2) to boards of 

regents). 

These provisions, however, do not undermine the university boards' 

fundamental independence. A large portion of this independence is financial 

self-control. The authority over the expenditure of funds appropriated to the 

Universities has been statutorily lodged with independent boards that head 

these institutions. Those boards may decline to spend funds appropriated to 

them, in which case the funds will lapse. 20But by giving that authority to the 

boards, the General Assembly has necessarily deprived the Governor of it. We 

thus conclude that the Governor cannot order the boards of the Universities 

not to spend funds appropriated to them. 

The Governor's authority with respect to the boards differs 

fundamentally from his authority with respect to those state entities and 

20Like the rest of state government, the Universities are subject to a lapse 

provision if they do no spend state funds before the end of the fiscal year. See KRS 

164A.565(2) (providing for lapse of "uncommitted state general funds remaining after 

the close of business on the last day of the fiscal year"). 

47 
employees that answer to him, such as the program cabinets and secretaries 

who head those cabinets. In this sense, the Universities are much more like 

private entities. And their authority over spending their money is largely 

independent of the executive branch. 

Indeed, this is likely why the Universities, unlike other government 

entities, are given their own money to be held in their own accounts, rather 

than relying on the Finance and Administration Cabinet's submitting warrants 

to the Treasurer, who would then write checks to third parties owed money by 

the Universities: 

The secretary of the Finance and Administration Cabinet shall 

issue warrants authorizing the Treasurer of the Commonwealth of 

Kentucky to pay to the treasurer of each institution any amounts 

due by virtue of the state appropriations for that institution, or 

transfer the amount due electronically if electronic transfer is 

authorized by statute. The transfer of funds shall be handled in a 

manner to assure a zero (0) balance in the general fund account at 

the university. 

KRS 164A.555. 

This illustrates why the Governor's suggestion that he has simply 

stopped the money from being spent mischaracterizes what he has actually 

done. Rather than ordering the Universities not to spend money, which he 

cannot do, and thereby allowing those funds to lapse back to the General Fund 

at the end of the fiscal year, he has instead effectively intercepted the funds 

before they became available to the Universities. By reducing the final quarterly 

allotment, the Governor has essentially frustrated the overall appropriation by 

the General Assembly. Money that the General Assembly made available to the 

Universities through its appropriations was made unavailable by the 

48 
Governor's actions. Simply put, there is a difference between exercising an 

authority not to spend money once it has been made available and preventing 

the money from being made available to the entity that has the power to decide 

not to spend it. 

Again, this is not to say that every penny appropriated must be spent. As 

the Governor points out, such a legal requirement would be fiscally 

irresponsible. And the budget bill itself recognizes this by authorizing the 

spending of appropriations "or so much thereof as may be necessary." But the 

Governor does not have the power to make that decision for the Universities. 

And if the Governor does not have discretion over whether to spend the 

money because the funds were appropriated for an entity over which he does 

not have control, then the transfer of funds "is a ministerial, mechanical, nondiscretionary act." People ex rel. Bakalis v. Weinberger, 368 F. Supp. 721, 726 

(N.D. Iii. 1973). Indeed, KRS 164A.555, discussed above, further demonstrates 

how this is a ministerial act: it commands the secretary of the Finance and 

Administration Cabinet to issue warrants for the payment of the Universities' 

"any amounts due by virtue of the state appropriations for that institution." 

That statute also necessarily limits the Governor's authority, as he cannot 

legally compel the secretary to act contrary to law. And, again, the budget bill 

itself commanded "that the Executive Branch shall carry out all appropriations 

and budgetary language provisions as contained in the State/Executive 

Budget." 20-14 Ky. Acts Ch. 117, Part III, § 27. This limit makes the Governor's 

conduct with respect to entities over which he has no control purely 

ministerial. 

49 
Consequently, we need not address the constitutionality of the actions 

the Governor claims he is entitled to make, because our statutory analysis 

makes it clear that he does not have the legal authority to take such actions. 

IV. Conclusion 

The Governor's reduction of the allotments of the Universities in this case 

exceeded his statutory authority to revise allotments under KRS 48.620(1) and 

his authority to withhold allotments under KRS 45.253(4). Whatever authority 

he might otherwise have to require a budget unit not to spend appropriated 

funds does not extend to the Universities, which the legislature has made 

independent bodies politic with control aver their own expenditures. We 

therefore do not reach the question of whether his actions were constitutional, 

as the statutes do not give him the authority to act as he proposed. For these 

reasons, the Franklin Circuit Court's order upholding the Governor's actions is 

reversed, and this matter is remanded for further proceedings consistent with 

this opinion. 

All sitting. Minton, C.J.; Cunningham, Hughes, and Keller, JJ., concur. 

Venters, J., dissents by separate opinion. Wright, J., dissents by separate 

opinion in which Venters, J., joins. 

VENTERS, J., DISSENTING: I respectfully disagree with the majority's 

conclusion that the Attorney General has standing to assert the claim his office 

presents in the absence of affected universities. The majority has no express 

constitutional or direct statutory authority to support its conclusion that the 

Attorney General has standing to sue the chief executive to enjoin an executive 

action, and so it bases its opinion on the vague notion that such authority was 

50 
available to attorneys general at common law. As explained below, that notion 

is flat-out wrong. No attorney general in the entire common law history ever 

had that authority, and neither the majority opinion nor the Attorney General 

himself cites even a single common law precedent for such power. 

I agree with the majority's conclusion that Representatives Wayne, 

Owens, and Marzian have no standing, either personally or as proxies for the 

legislative branch of government, to assert claims contesting the Governor's 

executive order to reduce allotments to state-supported universities for the 

final quarter of the 2015-2016 fiscal year. 21I join Justice Wright's dissent and 

I agree with his reasoning that the affected state universities are the proper 

parties to bring the claim. Since the only affected parties with a claim to assert 

have reached an accommodation with the Governor and chosen not to litigate, 

there is no justiciable controversy. The only correct resolution is dismissal of 

the case without addressing the merits. Lawson v. Office of Attorney General, 

415 S.W.3d 59, 67 (Ky. 2013); Rose v. Council for Better Education, 790 S.W.2d 

186 (Ky. 1989); Ky. Const. § 112. 

The doctrines of standing and justiciability prevent interlopers from 

asserting claims that legally belong to others. The doctrines exists because we 

learned long ago in the common law tradition that it is unwise for the courts to 

21The General Assembly as a body politic in its own right needs no standing 

because it need not resort to the courts for help in fending off an encroachment by the 

Governor upon the legislature's rightful powers. The legislative branch has a full 

constitutional quiver of legislative arrows with which to defeat any executive intrusion 

into the legislative prerogative and to cure any distortion of the legislature's will 

caused by such an intrusion. If, rather than using its own constitutional authority to 

reassert its legislative prerogative, the General Assembly also sought a judiciallyimposed remedy, its standing would also have to be properly established. 

51 
litigate claims asserted by those who have no personal interest at stake. That is 

especially true when those who actually have a cognizable claim have declined 

to do so. To have standing to sue, "[a] plaintiff must have a real, direct, present 

and substantial right or interest in the subject matter of the controversy." 

Housing Authority of Louisville v. Service Employees International Union, Local 

557, 885 S.W.2d 692, 695 (Ky. 1994). "In order to have standing to sue, a 

plaintiff need only have a real and substantial interest in the subject matter of 

the litigation, as opposed to a mere expectancy." Rose, 790 S.W.2d at 202. To 

restate the standing concept in more colloquial terms: to have standing to 

assert a claim in court, "you have to have skin in the game." 

Standing to invoke the authority of the courts for redress of an injury is 

acquired in two, and only two, ways. First, as noted above, one who suffers a 

direct and immediate judicially-cognizable injury or has an interest deserving 

of legal protection has standing. Second, the legislature may by statute confer 

standing upon an entity even if it lacks a direct and immediate injury. See Tax 

Ease Lien Investments 1, LLC v. Commonwealth Bank & Trust, 384 S.W.3d 141, 

143 (Ky. 2012) (quoting City of Ashland v. Ashland F.O:P. # 3, Inc., 888 S.W.2d 

667, 668 (Ky. 1994)); In re Pappas Senate Committee, 488 N.W.2d 795, 797 

(Minn. 1992); and Pennsylvania National Mutual Casualty Insurance Co. v. 

PWAB, 715 A.2d 1068, 1071 (Pa. 1998). 

The majority first relies upon our decision in Commonwealth ex rel. 

Conway v. Thompson, 300 S.W.3d 152 (Ky. 2009), as a source for the Attorney 

General's claim of standing in this matter. In Thompson we recognized that the 

attorney general has standing to seek injunctive relief on behalf of the citizens 

52 
to prevent the early release of inmates from prison in derogation of the 

judicially-imposed sentences. Id. at 172. Implicit in that holding was our 

recognition that every single sentence affected by the planned prisoner release 

arose from a case in which the Commonwealth of Kentucky was an actual 

party, and in many instances, was actually represented by the Office of the 

Attorney General. Because the objective of that litigation fell squarely and 

indisputably within the criminal law enforcement interest and duties of the 

attorney general, we concluded that Attorney General Conway had "a sufficient 

personal right in these types of cases by virtue of the office and the duties 

commensurate with that high office." Id. at 173 (emphasis added). 

However, as the majority expressly acknowledges, the claim pressed by 

Attorney General Beshear in this litigation is not one of those "type of cases." 

The claim now asserted falls far beyond the range of the Attorney General's 

criminal law enforcement function. The Thompson case provides no support for 

the Attorney General's stance in this case. The majority then looks to find other 

law supporting the Attorney General's standing in this "type of case," and 

naturally begins with Section 91 of the Kentucky Constitution. 

Section 91 simply provides that the attorney general has whatever 

"duties and responsibilities" have been "prescribed by law." The Attorney 

General, therefore, has no constitutionally-ordained authority that confers 

standing to enjoin the Governor, the Treasurer, or others from implementing 

the budget reduction plan for the state universities. Section 91 supports only 

the specific duties that have been "prescribed by law." Consequently, we look 

53 
to the relevant statutes enacted by the General Assembly addressing the 

matter. 

No statute expressly provides or even obliquely suggests that the 

Attorney General has the authority to sue the Governor to enjoin any executive 

action. The only statute that is even conceivably applicable is the generic 

provision of KRS 15.020 that provides the Attorney General with the obligation 

to "exercise all common law duties and authority pertaining to the office .. . 

under the common law, except where modified by statutory enactment." The 

whole case boils down to whether "under common law" an attorney general had 

the authority to sue the chief executive for perceived violations of the law. 

The majority readily acknowledges that "defining the Attorney General's 

common law duties is not easily done" and I agree. But we need not define all 

the common law duties of an attorney general to sustain Attorney General 

Beshear's claim of standing; rather, we need only find one common law duty 

that authorizes the suit he now asserts. I respectfully submit there are none to 

be found because at common law, suing the executive in the civil courts is 

simply not what attorneys general were empowered to do. See Nat'l Ass'n of 

Att'ys Gen., State Attorneys General Powers and Responsibilities 31 (Emily 

Myers, ed., 3d ed. 2013) (quoting Edwards, The Law Offices of the Crown 27 

(1964)). 

In its search to find common law precedent for the unprecedented, the 

majority looks to Commonwealth of Kentucky ex rel. Hancock v. Paxton, 516 

S.W.2d 865 (Ky. 1974), which held that an attorney general has standing to 

54 
initiate a lawsuit to ascertain the constitutionality of a state statute. 22But that 

is not the question before this Court. Attorney General Beshear does not 

challenge the constitutionality of any statute. 

The salient fact of the Paxton case is that Attorney General Ed Hancock 

never challenged to any degree the legality of an executive action or executive 

authority despite naming as nominal parties the Department of Transportation 

and its commissioner. Although the Paxton decision does not cite a common 

law precedent allowing an attorney general to challenge the constitutionality of 

a statute, the existence of such a precedent would not be surprising given the 

well-documented legal battles, some of which involved actual armed warfare, 

waged over the centuries between the English monarch and the English 

parliament. In any event, Paxton's lack of common law precedent allowing the 

attorney general to challenge the constitutionality of a statute does not logically 

indicate the existence of a power at common law to sue the executive to enjoin 

executive action. 

The Paxton court offers up a weak rationalization for the existence of 

such power and it is based upon a flawed depiction of American political theory 

which the majority adopts. Paxton opines that since the attorneys general 

under the common law of England served the king and therefore lacked the 

authority to sue the sovereign, attorneys general in the democracies of the 

American states in which "the people are king" serve the people, and therefore 

22The challenged statutes authorized special automobile license plates for 

members of the General Assembly and for ham radio operators. 

55 
are not so constrained. That exercise of logic ignores the core of American 

constitutional theory: the people, as an exercise of their natural sovereignty, 

collectively acted to "institute" a government "of the people, by the people, for 

the people," and thus by the constitutional process they transferred their 

sovereignty to the state they created. The king is not sovereign in America, but' 

neither are the people king. 23 

A more obvious contradiction to the Paxton theory is the undeniable fact 

that the people of Kentucky, the "king" as Paxton would have it, have NEVER 

directly or through their chosen representatives in the General Assembly 

granted the Attorney General the power he now asserts. There was no common 

law precedent for an attorney general suing the head of state when the state 

was a royal monarchy and the creation of the American states did not 

manufacture such precedent. 24 

Attorney General Beshear does not challenge the constitutionality of any 

state statute. Instead, he does what no attorney general at common law ever 

had the authority to do: he seeks a court order to enjoin an action of the state's 

chief executive, the Governor, and the state's treasurer, finance secretary, and 

budget director. The Attorney General deserves credit for earnestly 

undertaking a difficult issue that he deeply regards as important and 

23After all, the king enjoyed sovereign immunity, a tribute of sovereignty now 

enjoyed-not by the people, but by the state. 

24Although not strictly an application of this common law restraint, it may be 

recalled by many that U.S. Attorney General Elliot Richardson and Deputy Attorney 

General William Ruckelshaus resigned their respective offices, in part, because they 

expressly lack the authority to challenge the head of state, President Richard Nixon. 

56 
meritorious. I certainly do not suggest that executive authority should not be 

challenged. For a nation and a state founded upon principles of individual 

liberties, challenging the chief executive's authority can be a good thing. 

However, the question before us is not whether the Governor's action should be 

challenged; the question is whether the Attorney General has the authority to 

litigate the budget reduction issue by seeking to enjoin the Governor and the 

other executive officers. By the majority's analysis, the Attorney General's only 

viable claim to standing is that he is exercising a prerogative held by attorneys 

general at common law. The inconvenient fact is that no attorney general at 

common law ever had the authority to challenge the executive. 

The majority also cites Johnson v. Commonwealth ex rel. Meredith, 165 

S.W.2d 820 (Ky. 1942), as supporting the Attorney General's standing. 

Although Johnson lends interesting historical context to the issue at hand, it is 

ultimately inconsequential for two reasons. First, in Johnson as in Paxton, the 

Attorney General challenged the constitutionality of a statute rather than 

seeking to enjoin an executive action. Even more significant, however, is the 

fact that the Attorney General in Johnson had direct, conventional standing 

because he was directly injured by the statute being challenged. The statute 

he challenged expressly "divest[ed] the Attorney General of a major portion of 

his powers and prerogatives" so as to render the office "inoperative." Id. at 824. 

Thus, the Attorney General's standing in Johnson was in no way dependent 

upon the powers and duties of attorneys general at common law. Here, the 

challenged governmental action has no direct effect upon the Attorney General 

or his office that confers standing in the traditional sense. His only source of 

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standing is statutory, specifically KRS 15.020, which requires a common law 

precedent, and that precedent simply does not exist. 

In Commonwealth ex rel. Ferguson v. Gardner, 327 S.W.2d 947, 948 (Ky. 

1959), Attorney General Ferguson sought to intervene in a civil action on behalf 

of a charitable trust. Like the current Attorney General in this case, Attorney 

General Ferguson had no direct or immediate interest in the controversy to 

confer standing, and in the absence of direct statutory authority, he claimed 

the common law power to intervene "predicated on the ancient English doctrine 

that the King, as parens patriae, superintended the administration of charities 

and acted by the attorney general, who was his proper officer in that respect." 

The Court rejected that claim because "the Attorney General . . . failed to show 

that there was any established and recognized law of England to the effect prior 

to 1607" allowing his office to assert a claim in that kind of litigation. Id. at 

949. 25 

Several available sources of legal scholarship trace the common law 

history of the office of attorney general and the development of its powers and 

duties. See Comm. on the Office of Att'y Gen., Nat'l Ass'n of Att'ys Gen., 

Common Law Powers of State Attorneys General (Jan. 1975); Nat'l Ass'n of 

Att'ys Gen., State Attorneys General Powers and Responsibilities (Emily Myers, 

ed., 3d ed. 2013). An authoritative summary can be found in People v. Miner, 2 

25The year 1607 is determinative because Kentucky has expressly adopted all 

of English common law in force prior to 1607, the fourth year of the reign of James I. 

See Aetna Insurance Company v. Commonwealth, 51 S.W. 624, 627-628 (Ky. 1899); 

Ray v. Sweeney, 77 Ky. 1, 9-10 (Ky. 1878); and Lathrop v. Commercial Bank of Scioto, 

38 Ky. 114, 121 (Ky. 1839). After 1607, Kentucky acknowledges the common law of 

Virginia until the 1792 establishment of Kentucky as a sovereign state. 

58 
Lans. 396 (N.Y. App. Div. 1868), which identifies the following common law 

powers: 

Most, if not all, of the colonies appointed attorney-generals, and 

they were understood to be clothed, with nearly all the powers, of 

the attorney-generals of England, and as these powers have never 

been defined we must go back to the common law in order to 

ascertain them. The attorney-general had the power, and it was 

his duty: 

1st. To prosecute all actions, necessary for the protection and 

defense of the property and revenues of the crown. 

2d. By information, to bring certain classes of persons accused of 

crimes and misdemeanors to trial. 

3d. By scire facias, to revoke and annul grants made by the crown 

improperly, or when forfeited by the grantee thereof. 

4th. By information, to recover money or other chattels, or 

damages for wrongs committed on the land, or other possessions of 

the crown. 

5th. By writ of quo warranto, to determine the right of him who 

claims or usurps any office, franchise or liberty, and to vacate the 

charter, or annul the existence of a corporation, for violations of its 

charter, or for omitting to exercise its corporate powers. 

6th. By writ of mandamus, to compel the admission of an officer 

duly chosen to his office, and to compel his restoration when 

illegally ousted. 

7th. By information to chancery, to enforce trusts, and to prevent 

public nuisances, and the abuse of trust powers. 

8th. By proceedings in rem, to recover property to which the crown 

may be entitled, by forfeiture for treason, and property, for which 

there is no other legal owner, such as wrecks, treasure trove, 85c. 

(3 Black. Corn., 256-7, 260 to .266; id., 427 and 428; 4 id., 308, 

312.) 

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9th. And in certain cases, by information in chancery, for the 

protection of the rights of lunatics, and others, who are under the 

protection of the crown. (Mitford's Pl., 24-30, Adams' Equity, 301-

2.) 

Significantly, not listed among these enumerated powers in Miner or in 

any other source I can find is the common law authority to challenge the 

actions of the chief executive. It remains abundantly clear that at common law 

in England and as transplanted in the American colonies, and then in the 

sovereign American states, attorneys general never had the duty or the power 

to sue the executive to enjoin executive actions, and no Kentucky statute has 

subsequently granted that power. 

Historically, the core function of the attorney general at common law was 

to assert the legal interests of the government, particularly the executive head 

of the government, and the office was accorded the powers and duties essential 

to the performance of that function. Certainly, the legislature could modify 

that authority by enacting a statute to vest attorneys general with a plenary 

power to police the executive branch of government and to initiate civil 

litigation as their discretion warrants; but it has not chosen to do so. 

Johnson v. Commonwealth ex rel. Meredith provides a summary of 

common law authority that agrees with the history outlined above. 

The office of Attorney General existed in England from an early 

date. Most of the American colonies established an office of the 

same name, and it was carried into the succeeding state 

governments. Legal historians are not in accord as to just what 

were the powers and prerogatives of the Attorney General in the 

mother country, but they are agreed that he was the chief law 

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officer of the Crown, managing all the king's legal affairs, attending 

to all suits, civil and criminal, in which he was interested, and 

exercising other high duties and prerogatives, some of which were 

quite foreign to the legal. 

165 S.W.2d at 826. The Johnson court acknowledged uncertainty in 

determining the "undefined powers [that] attached to the same office in this 

country," and was only "certain that the Attorney General has been the chief 

law officer of the federal or the state governments with the duty of representing 

the sovereign, national or state in such capacity." Id. 

I respectfully submit that absolutely nothing in the review of the common 

law duties of attorneys general supports the conclusion that the Attorney 

General of Kentucky has the legal authority, i.e., the standing, to assert the 

claims he now asserts against the Governor, the Finance Cabinet Secretary, the 

State Budget Director, and the Treasurer. Indeed, the majority relies upon the 

nebulous notion that "duty calls upon the Attorney General (and, thus, confers 

on him standing) to vindicate the public rights of the people of the 

Commonwealth." 

The majority grants to the office of the Kentucky Attorney General virtual 

carte blanche to challenge any action of every officer of the executive branch of 

government, from the lowest county official to the office of the Governor, 

including the universities themselves, anytime the sitting attorney general 

deems it to be in the "public interest" to do so. Such unprecedented authority 

is an unwise departure from the common law and is totally unsubstantiated by 

any statutory directive. 

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The majority addresses a situation in which none of the aggrieved parties 

with a real interest to protect wish to do so. By cloaking the Attorney General 

with unbridled authority to assert in any action virtually any claim his office 

deems to be of "public interest," even when the affected parties choose not to 

do so, the majority sets a dangerous, disruptive precedent that is contrary to 

centuries of English and American common law tradition. The majority's 

ruling on standing paves the way for the resolution of an injusticiable issue, 

and it opens the gate for future adjudication of political issues best left to be 

resolved within the political branches or by litigation initiated by a party 

seeking redress for a direct and immediate injury. 

WRIGHT, J., DISSENTING: I respectfully dissent. The majority does not 

reference the fact that the state university presidents met with the Governor 

and reached an agreement. The agreement was memorialized that same day in 

a letter signed by eight of the nine presidents. The letter stated that the 

presidents were "prepared to manage reductions in accord with the Governor's 

final offer of 2 percent in the current year if it is determined by the courts to be 

permissible . . . ." What the letter leaves unclear is what, exactly, was left to be 

determined as permissible by the courts. What's more, the universities did not 

file or join a case before the courts to determine what was permissible. 

This language is ambiguous. On the one hand, the presidents could 

have been referring to whether they had the power to spend less funds than 

allocated. On the other, the presidents could have been referring to whether it 

was permissible for the Governor to reduce their already-allocated funds for the 

current fiscal year. The majority does address one of these issues by finding 

62 
that the universities are not required to spend every penny of the money 

provided them under the budget. But this still does not address the ambiguity 

of the letter. 

The trial court relies on the letter's language two different times in its 

opinion and order—stating that "[i]n fact, as the Universities have come to an 

agreement with the Governor" in the first instance and referring to the 

agreement again later in its opinion and order. We do not set aside the trial 

court's findings of fact unless they are clearly erroneous. Lawson v. Loid, 896 

S.W.2d 1, 3 (Ky. 1995). I do not believe that they are. 

The Governor's second letter reducing the allotment for eight of the state 

universities referred to this agreement. The initial reduction of 4.5% was cut to 

2% for the institutions whose presidents signed the letter. Kentucky State—the 

only state school which did not agree that it could reduce its spending—had its 

allotment completely restored. Clearly, the eight presidents who signed the 

letter agreed to the reduction and the one president who did not agree (the 

president of Kentucky State) received the full budgeted amount. There is no 

evidence of record as to whether the presidents had the authority to enter into 

such an agreement—and that is not at issue before this Court. 

The universities did not join the lawsuit and neither party so much as 

deposed their representatives. The Attorney General does say in passing in his 

brief that the trial court erred referring to the agreement as a "fact" in its 

opinion and order. However, the Attorney General does not provide any 

evidence to support his contention that the trial court's finding was clearly 

erroneous and fails to further flesh out the argument. 

63 
On these facts, I would affirm the Franklin Circuit Court's grant of 

summary judgment, as the trial court found that there was an agreement 

between the universities and the Governor, thus rendering all other issues 

moot. 

Venters, J., joins. 

COUNSEL FOR COMMONWEALTH OF KENTUCKY, EX REL. ANDY BESHEAR, 

ATTORNEY GENERAL: 

Andy Beshear, Attorney General of Kentucky 

John Michael Brown, Deputy Attorney General 

La Tasha Arnae Buckner, Executive Director Civil Division 

Mitchel Terence Denham, Assistant Deputy Attorney General 

Joseph Newberg 

Office of the Attorney General 

Capitol Building 

700 Capital Avenue, Suite 118 

Frankfort, Kentucky 40601 

COUNSEL FOR COMMONWEALTH OF KENTUCKY OFFICE OF THE 

GOVERNOR, EX REL. MATTHEW BEVIN, IN HIS OFFICIAL CAPACITY AS 

GOVERNOR; COMMONWEALTH OF KENTUCKY FINANCE AND 

ADMINISTRATION CABINET, EX REL. WILLIAM M. LANDRUM, IN HIS 

OFFICIAL CAPACITY AS SECRETARY; COMMONWEALTH OF KENTUCKY 

OFFICE OF THE STATE BUDGET DIRECTOR, EX REL. JOHN CHILTON, IN 

HIS OFFICIAL CAPACITY AS STATE BUDGET DIRECTOR: 

Michael T. Alexander 

Mark Stephen Pitt 

Stephen Chad Meredith 

Office of the Governor 

700 Capital Avenue, Suite 101 

Frankfort, Kentucky 40601 

64 
COUNSEL FOR COMMONWEALTH OF KENTUCKY DEPARTMENT OF THE 

TREASURY, EX REL. ALLISON BALL, IN HER OFFICIAL CAPACITY AS 

TREASURER: 

Noah Robert Friend 

1050 U.S. Highway 127 South, Suite 100 

Frankfort, Kentucky 40601 

COUNSEL FOR JIM WAYNE, IN HIS OFFICIAL CAPACITY AS STATE 

REPRESENTATIVE; DARRYL OWENS, IN HIS OFFICIAL CAPACITY AS STATE 

REPRESENTATIVE; MARY LOU MARZIAN, IN HER OFFICIAL CAPACITY AS 

STATE REPRESENTATIVE: 

Pierce Butler Whites 

Speaker's Office 

Senior Counsel 

303 Capitol Annex 

Frankfort, Kentucky 40601 

65