Kansas Attorney General Opinion 1992-086

ROBERT T. STEPHAN
ATTORNEY GENERAL
June 30, 1992
ATTORNEY GENERAL OPINION NO. 92-86
The Honorable Bob Vancrum
State Representative, Twenty-Ninth District
9004 W. 104th Street
Overland Park, Kansas 66212
Re: State Departments; Public Officers and
Employees--State General Fund Appropriations,
Demand Transfers and Expenditures--Omnibus
Reconciliation Spending Limit Bill; Compliance With
Statutory Spending Limits
Synopsis: 1992 House Bill No. 3215, the omnibus
reconciliation spending limit bill, suspends by
implication the spending limit provisions of K.S.A.
1991 Supp. 75-6701 et seq. Even if the
provisions are not suspended, any inconsistency
between the two raises political questions only,
over which a court would refuse to exercise
jurisdiction. Cited herein: K.S.A. 1991 Supp.
75-6701; 75-6702; 75-6703; 75-6704; Kan. Const.,
art. 2, § 16.
Dear Representative Vancrum:
As representative for the twenty-ninth district you request
our opinion regarding compliance of 1992 House Bill No. 3215,
the omnibus reconciliation spending limit bill, with spending
limit legislation found at K.S.A. 1991 Supp. 75-6701 et
seq.

K.S.A. 1991 Supp. 75-6702 requires that the last bill of each
session be the "omnibus reconciliation spending limit bill."
It provides that during the 1992 session there must be a
budgeted ending balance equal to at least 1% of the total
authorized expenditures (excluding amounts transferred to the
state cash operating reserve fund).
The second spending limit found in the act is contained in
K.S.A. 1991 Supp. 75-6703, which establishes the state cash
operating reserve fund. This section requires that beginning
with the 1992 regular session,
"the legislature shall include in the
omnibus reconciliation spending limit bill
for such session, provisions to transfer
moneys from the state general fund to the
state cash reserve fund on the first day
of the ensuing fiscal year in an amount
equal to not less than 5% of the total
authorized expenditures and demand
transfers from the state general fund for
such year, but excluding the amount
transferred to the state cash operating
reserve fund under this section."
Subsection (d) then allows money to be transferred back to the
general fund during the year under certain circumstances.
The final spending limit in the act is contained in K.S.A.
1991 Supp. 75-6704 which generally requires the director of
the budget to monitor and report on the status of the general
fund and reserve fund. If the director anticipates an
unencumbered ending balance of less than $100,000,000, she
reports this to the governor, who may then issue proportionate
across the board cuts.
According to your letter, you believe these spending
limitations may have been violated in two manners in 1992
House Bill No. 3215. First you point out that you understand
the ending balance for 1993 is projected to be $285 million
(Richard Ryan, director, legislative research department,
projects an ending balance of $298.2 million), but that $193
million of this is money already committed for school aid by
fiscal year 1994. You question whether the $193 million is
properly included in the ending balance because it is arguably
encumbered. Assuming that the $193 million is not includable
in the ending balance, the 1% and 5% reserves mandated by
K.S.A. 75-6703 plus 75-6704 have not been met. Secondly, you

point out that House Bill No. 3215 does not appear to be in
compliance with K.S.A. 1991 Supp. 75-6703, because the bill
does not contain an express provision transferring the
mandated 5% to the reserve fund.
Properly enacted appropriations bills have the same force and
effect as other legislative enactments. See State ex rel.
Stephan v. Carlin, 230 Kan. 252 (1981).
It is within the legislative branch's exclusive authority to
"make, amend or repeal laws." State ex rel. Stephan v.
Kansas House of Representatives, 236 Kan. 45, 59 (1984).
Matters such as the size of the state's expenditures and
spending limits are examples of legislative authority. Thus,
it is within the legislature's power to amend or repeal any
statutory spending limit. Although article 2, section 16 of
the Kansas constitution generally requires an express
amendment, courts commonly find that there has been a repeal
by implication when statutes are inconsistent. In Richards
v. Etzen, 231 Kan. 704, 707 (1982), the court said,
"It is a settled rule of statutory
construction that where an irreconcilable
conflict exits between statutes, the
latest enactment will be held to
supersede, repeal or supplant the earlier
by implication. Thus, the later enactment
must prevail." (Citation omitted.)
Because House Bill No. 3215 is a later enactment that may
conflict with K.S.A. 1991 Supp. 75-6703 by omitting the 5%
appropriation to the reserve fund, we believe that if a court
found such conflict, the court would hold that House Bill No.
3215 impliedly repeals or supplants K.S.A. 75-6703, possibly
holding that it suspends the 5% requirement for one year.
In any event, while it is true that the Attorney General may
bring a quo warranto action against the legislature to prevent
it from acting in an unlawful manner, (see State ex rel.
Stephan v. Kansas House of Representatives, supra), there
are court imposed limits to such actions. Courts generally
refuse to exercise their authority when they believe that a
question is a "political question." In Leek v. Theis, 217
Kan. 784, Syl. 1 18 (1975), the court described this
doctrine:
"Prominent on the surface of any case held
to involve a political question is found a

textually demonstrable constitutional
commitment of the issue to a coordinate
political department; or lack of
judicially discoverable and manageable
standards for resolving it; or the
impossibility of a court's undertaking
independent resolution without expressing
lack of the respect due coordinate
branches of government; or an unusual need
for unquestioning adherence to a political
decision already made; or the potentiality
of embarrassment from multifarious
pronouncements by various departments on
one question."
We note that the issues raised here all concern budgetary
matters which would generally be solely within the
legislature's province so long as the legislature did not
violate some other constitutional rule in making the
appropriations. You question whether the $193 million is
properly included within the ending balance. Certainly the
spirit of the legislation requiring a certain minimum ending
balance is to insure that the state can pay its bills, and if
money included in the ending balance is committed for the
succeeding year, the spirit of the requirement is ignored. As
noted above, however, the legislature can amend, suspend or
repeal these limitations by subsequent enactments. In
essence, therefore, you question the legislature's judgment in
doing so. "The wisdom and expediency of the actions [of a
legislative body] . . . do not constitute a judicial question
but rather a political question over which the judiciary has
no jurisdiction over the subject matter." Alisen v.
Craig, 1 Kan.App.2d 301, 307-08 (1977).
In Outagamic County v. Smith, 155 N.W.2d 634 (Wis.
1968), the Wisconsin Supreme Court refused to review a
legislative decision absent a constitutional question, saying:
"This Court will not interfere with the
conduct of legislative affairs in the
absence of a constitutional mandate to do
so or unless either its procedure or end
result constitutes a deprivation of
constitutionally guaranteed rights. Short
of such deprivations which give this Court
jurisdiction, recourse against legislative
errors, nonfeasance, or questionable
procedure is by political action only."

We believe that the question of whether the $193 million is
properly included in the ending balance is purely a political
question. If the legislature erred in answering this
question, the only recourse is by political action.
We also believe that the omission of an appropriation of 5% of
total budgeted expenditures to the operating reserve fund is
primarily a political question.
Only one question of constitutional magnitude remains:
Article 2, section 16 of the Kansas constitution limits bills
other than appropriation bills to "one subject."
Appropriation bills may contain multiple appropriation items,
but may not contain subjects unrelated to appropriations.
State ex rel., Stephan v. Carlin, 230 Kan. 252, Syl. I 3
(1981). The Kansas Supreme Court described what may be
included in an appropriation bill without violating the "one
subject" limit:
"Appropriation bills may direct the
amounts of money which may be spent, and
for what purposes; they may express the
legislature's direction as to
expenditures; they may transfer funds from
one account to another; they may direct
that prior unexpended appropriations
lapse. State v. Carlin, 230 Kan. at
258.
We believe that a decision to repeal or suspend the mandated
5% appropriation to the relief fund is an item properly
included in an appropriation bill -- it is a direction as to
the amount of money to be spent. The one subject rule has not
been violated.
In conclusion, 1992 House Bill No. 3215 may violate the spirit
of the spending limits found at K.S.A. 1991 Supp. 75-6701 et
seq. However, in our opinion House Bill No. 3215 suspends
by implication the provisions of K.S.A. 1991 Supp. 75-6701
et seq. Even if this were not the case, any violations of
the statutory spending limits raise political questions only,

and we could not successfully challenge such violations as we
see no questions of constitutional magnitude arising from such
a violation.
Very truly yours,
Robert T. Stephan
Attorney General of Kansas
Steve Phillips
Assistant Attorney General
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