January 9, 2006

ATTORNEY GENERAL OPINION NO. 2006- 3

The Honorable John M. Faber, Chairman

Joint Committee on Information Technology

State Representative, 120th District

State Capitol, Room 181-W

Topeka, Kansas 66612-1504

Re:	Kansas Constitution--Legislative--Laws Enacted Only by Bill; All Bills Passed Presented to the Governor; Separation of Powers Doctrine

Synopsis:	Statutorily requiring executive and judicial branch agencies to obtain approval of a legislative committee before expending previously appropriated moneys on certain types of information technology projects would run afoul of the Separation of Powers Doctrine and the Presentment Clause. However, the Legislature may place limitations on specific expenditures through appropriations and through enactment of substantive laws. Cited herein: K.S.A. 12-340; Kan. Const., Art. 2, § 14.

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Dear Representative Faber:

On behalf of the Joint Committee on Information Technology, you request our opinion regarding the constitutionality of statutorily requiring executive and judicial branch agencies to seek approval from the Joint Committee prior to expending moneys on certain information technology projects. You indicate that the Committee has reviewed Attorney General Opinion No. 81-83, which concluded that such a requirement would violate the separation of powers doctrine, and ask whether there has been any modification to the doctrine since issuance of Opinion No. 81-83 that would render the Opinion invalid. The Committee specifically requests that we address whether the separation of powers doctrine remains intact in light of the Kansas Supreme Court's decision in Montoy v. State.1

In Attorney General Opinion No. 81-83, then Attorney General Stephan was asked to opine on a proposal being considered by the Senate Committee on Ways and Means to require state agencies in the executive branch to seek approval of a legislative committee prior to entering into certain property leases. Having determined that the constitutional principle raised by the proposal was the separation of powers doctrine, Attorney General Stephan explained the history and purpose of the doctrine. Essentially, "[t]he separation of powers doctrine was designed to avoid a dangerous concentration of power and to allow the respective powers to be assigned to the department most fitted to exercise them."2 He then applied the general principles established by the Court to guide its review of statutes challenged under the separation of powers doctrine and concluded that a statute giving the legislature a "coercive influence" over a purely executive function traditionally exercised by the executive branch constituted significant interference by the legislative branch over the executive branch and was therefore in violation of the doctrine.

Subsequent cases and opinions have reached the same conclusion regarding similar legislative proposals and enactments. In 1984, the Kansas Supreme Court struck down the provisions in the Rules and Regulations Filing Act that allowed the Legislature to adopt, modify or revoke administrative rules and regulations by concurrent resolutions without presentment to the Governor as an unconstitutional usurpation of executive powers by the Legislature.3 Also in 1984, Attorney General Stephan opined that while the Legislature may refuse to appropriate moneys to provide funds for a particular lease of office space already entered into by a state agency and may, through an appropriation or substantive legislation, direct that no appropriated moneys be used for such purpose, it may not proscribe an agency from entering into any lease for office space without the prior approval of a legislatively dominated committee.4 In 1991, Attorney General Opinion No. 91-12 concluded that statutes authorizing the Legislature to disapprove and revoke executive branch water transfer decisions by the adoption of concurrent resolution violated the separation of powers doctrine. In 1998, the Court struck down a provision in the Consolidation Act5 that gave the Legislature the right to reject or veto the Consolidation Plan for Kansas City, Kansas and Wyandotte County.6

In two instances, the opposite conclusion was reached. However, each of these situations involved significantly different facts. In Manhattan Buildings, Inc. v. Hurley,7 the Kansas Supreme Court upheld a statute providing that no appropriated moneys or other funds of any state agency could be expended for the lease of a particular building. Attorney General Stephan pointed out the distinction between this case and those cited above.

"In the Manhattan Buildings, Inc. case, the legislature reviewed a particular long-term lease that had been entered into by the Secretary of Administration. The legislature determined that the specific lease was not conducive to the best interests of the state. Thus, the legislature withheld funding for that particular lease. Thus, as the court said the legislature could do in an appropriations bill, the legislature expressed its direction as to a particular expenditure. See, e.g., Manhattan Buildings, Inc. v. Hurley, supra, 231 Kan. at 31. In that case, however, it was the legislature itself that took action. It did not attempt to allow a committee thereof to make a determination on behalf of the entire legislative body. Moreover, the legislature did not attempt to thrust itself or any of its committees into a position of participating prospectively in the executive department function of entering into lease agreements. In short, the legislature did not attempt to expand its role from one of legislative oversight to one of shared administration.

"In this case, however, the legislature has no specific, executed lease of office space . . . to review, as no such lease has been entered into. Moreover, the legislature has not expressed its direction as to a particular expenditure. Instead, it has attempted to allow an entity under the control of its leadership [the state finance council] to approve or disapprove of an executive agency action. Unlike the situation in Manhattan Buildings, Inc., the legislature has attempted to expand its role from one of appropriate legislative oversight to one of shared administration. Rather than reviewing action already taken by an executive agency, the legislature is attempting to inject a controlling influence on prospective action by the executive department. This, in our judgment, may not be done under the separation of powers doctrine, and constitutes a significant interference by the legislative department with a function essentially executive in nature."8

In Attorney General Opinion No. 90-43, Attorney General Stephan found that a bill requiring agencies to submit proposed purchases of data processing equipment or programs to the Joint Committee on Governmental Technology prior to entering into a contract for such did not violate the separation of powers doctrine as it did not require the Committee's prior approval for such purchases.

We have located no cases or decisions that would cause us to alter the conclusions reached in Attorney General Opinion No. 81-83.

You specifically ask that we address whether the separation of powers doctrine remains intact subsequent to the Kansas Supreme Court's decision in Montoy v. State.9 The Montoy Court analyzed its authority to render a decision and fashion an enforceable remedy in that case. In doing so, it did not overrule or disavow the separation of powers doctrine, but rather applied the doctrine to its own actions. While there may be disagreement over the conclusions reached by the Court in Montoy, we do not believe the decision can be used as a basis to claim that the separation of powers doctrine no longer exists in our State's system of government, or that it has been substantially modified.

Even were we to find that the Court, in Montoy or elsewhere, has altered the way in which we are to analyze statutes under the separation of powers doctrine, the fact remains that each of the above-listed cases were decided based not only on that doctrine, but also on Article 2, Section 14(a) of the Kansas Constitution, the Presentment Clause: "[E]very bill shall be signed by the presiding officers and presented to the governor." As stated in Stephan v. Kansas House of Representatives, "[o]nce the legislature has delegated by law a function to the executive, it may only revoke that authority by proper enactment of another law in accordance with the provisions of art. 2, § 14 of our state constitution."10 Thus, once the Legislature has appropriated to judicial or executive branch agencies funds that may properly be expended for information technology projects, it may not require those agencies to obtain an additional approval from a legislative body before exercising the delegated authority. If the Legislature desires to remove or block the authority to expend appropriated funds for a particular purpose, it must do so pursuant to a bill that is passed by both houses and presented to the Governor in accordance with Article 2, Section 14 of the Kansas Constitution.

In conclusion, statutorily requiring executive and judicial branch agencies to obtain approval of a legislative committee before expending previously appropriated moneys on certain types of information technology projects would run afoul of the Separation of Powers Doctrine and the Presentment Clause. However, the Legislature may place limitations on specific expenditures through appropriations and through enactment of substantive laws.

Sincerely,

Phill Kline

Attorney General

Julene L. Miller

Deputy Attorney General

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