If there is no budget by June 30th, will Virginia’s public schools shut down? Part II

Yesterday, the House Appropriations Committee heard a report from David Rosenberg and Mark Vucci, Senior Attorneys with Legislative Services, regarding what power the Governor would have in the event of a failure on the part of the legislative branch to produce a budget by June 30.

I believe they presented the case most to the advantage of the legislative branch – indicating that the Governor would have no power to spend funds.  Among the “Key Take Aways” was the statement, “In the absence of an appropriations law, the Governor could declare an emergency but moneys will not be available to address the emergency conditions.”

I’m a bit skeptical of this view.  Should the Governor declare an emergency and keep the jails in operation and keep the State Police on duty to protect public safety, would the Supreme Court rule against him?  I think not.

They also offered a very narrow interpretation of Article 10, Section 7, presenting a view that the ”two years and  six months” has already expired.  I’m thinking that this will be subject to the interpretation of the courts.

The one thing that they said that I know to be true is that if a budget is not produced we will be in uncharted waters.

Equally sobering was the assessment from Secretary of Finance Richard D. Brown when he was asked how failure to produce a budget might affect Virginia’s bond rating:   “If we go past June 30^th it puts us in a different posture with them [bond rating agencies].  If we go past June 30^th it will change the perspective from which they view Virginia.”

All this talk of uncharted waters leads me to reject Santayana’s “Those who cannot remember the past are condemned to repeat it.” in favor of Allen Ginsberg’s “There is nothing to be learned from history anymore.  We’re in science fiction now.”

If there is no budget by June 30, will Virginia’s public schools shut down?

“If there is no budget by June 30, will Virginia’s public schools shut down?” This is the $7 billion dollar a year question. To my knowledge we will be entering uncharted territory.   If a budget is not adopted by July 1, the Governor has said publicly that he will not allow the government to shut down.  His authority to keep the government going will surely be questioned.  I can't find much in the Constitution of Virginia to grant the Governor spending authority beyond December 11, 2014.  However, Code provisions appear to empower the Governor.

The period of July 1 through December 11^st is covered by Article X, Section 7:

No money shall be paid out of the State treasury except in pursuance of appropriations made by law; and no such appropriation shall be made which is payable more than two years and six months after the end of the session of the General Assembly at which the law is enacted authorizing the same.

This passage is certainly subject to interpretation.  If the budget bill references two years, is the Constitutional language relevant?  If so,  when does the 30 month span begin?  Delegate Bob Marshall, who is an astute scholar of the Virginia Constitution, asserts that it begins on June 11, 2012, when the General Assembly last amended and the Governor signed the biennial budget bill.   Could this provision, intended to allow the payment of invoices still outstanding, be used to fund the government at the level established by the 2012-14 biennial budget until December 11?

If a 2014-2016 budget is not enacted prior to December 11, our focus shifts to other portions of the law.  The second sentence in Article V, Section 7 reads as follows:

The Governor shall be commander-in-chief of the armed forces of the Commonwealth and shall have power to embody such forces to repel invasion, suppress insurrection, and enforce the execution of the laws.

This section of the Code of Virginia is also relevant (§ 44-146.17.): 

(7) Whenever, in the opinion of the Governor, the safety and welfare of the people of the Commonwealth require the exercise of emergency measures due to a threatened or actual disaster, he may declare a state of emergency to exist;

Up to this time conventional wisdom has been that his power would allow the Governor to keep governmental operations related to public safety in operation, such as police protection and continued operation of the jails.  However, the cessation of services such as foster care, support services to the disabled, public hospitals, public education, and road repairs are just a few examples of what could be viewed as an emergency. 

Would the Governor cite "the execution of laws," and, for example, say that the Standards of Quality are laws enabling him to keep the schools running under the funding level of the previous budget?  Would he declare a state of emergency?  In either case, the Attorney General will likely be asked to weigh in, and this would then head to court, as members of the legislative branch would assert that only funds which are appropriated can be spent.

If the court were to side with the Governor, the ruling could take the pressure off of future legislatures to produce budgets on time.  If the court were to side with the legislature, we'd have at least a partial shutdown.  I'm sure the courts would specify that the operation of jails and law enforcement would continue.

The specter of this issue appearing before the court would certainly put great pressure on the General Assembly to act.  We would be in a Constitutional crisis, and the court's ruling might alter the balance of power between the three branches of government.  It would be extremely unwise for the legislature to sit back and take this risk.

School boards could try to keep things going in the short-run with local funding - this may be easier for Alexandria compared with Lee County.  Local governments can pass a budget without having all the cash on hand, and the decisions regarding appropriations obviously will affect the ability of the school board to keep schools going.

We should keep our ears to the ground on this, but if anybody other than a Virginia Supreme Court justice tells you with certainty that they know what will happen, should this issue come their way, take it with a grain of salt.