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Wednesday, April 21, 2010 - 11:54am

Attorney General: Looks Like Budget Is Illegal

The Attorney General Thurbert Baker says it looks like the FY 2011 state budget that has cleared both floors of the house and senate is illegal.

House Minority Leader Dubose Porter challenged the way Republican lawmakers put in tax exemptions without including in the bill how much they’d cost. He brought this to the attorney general’s attention and received a letter in response today.

"The process that happened on that bill is wrong. It violates the statutes and law of Georgia. It's been confirmed by the attorney general and if we don't fix it, we're subject to challenge," says Porter.

Porter says though he’s not planning on suing, the state’s vulnerable to a lawsuit.

House Speaker David Ralston says he declines comment until he reads Baker’s response.

A lengthy excerpt of Thurbert Baker's response follows:

In your letter of April 19, 2010, you have asked for my opinion "regarding the impact of the same on the adoption of HB 948, the General Appropriations Act, passed by the House of Representatives on April 14,2010." You contend that HB 1055 did not meet the legal requirements for a fiscal note provided in the Georgia Code and that the General Appropriations Act is likewise invalid.

As you note in your letter, O.C.G.A. $ 28-5-42(a)(l) provides that "[a]ny bill having a significant impact on the anticipated revenue or expenditure level of any . . . state agency must be introduced no later than the twentieth day of any session." That subsection also provides that the sponsor must request a fiscal note on such bills "by November 1 of the year preceding the annual convening of the General Assembly in which the bill is to be introduced . . . ." If a fiscal note is not requested by November 1 of the preceding year, neither the House nor the Senate may consider the bill unless there is a waiver by the committee of purview, and even then only if the bill in question was introduced "not later than the twentieth day" of the legislative session. O.C.G.A. g 28-5-a2(a)(2).

Finally, you note that O.C.G.A. $ 28-5-42(b) plainly states that a bill otherwise subject to the provisions of O.C.G.A. ç 28-5-42(aXl) introduced after the twentieth day of the session "shall not be considered or acted upon in any manner by either the Senate or the House of Representatives."

On its face, and accepting the facts set forth in your letter as accurate and complete, it would appear that the General Assembly has not strictly adhered to the procedures imposed on itself by statute. Clearly, the General Assembly had a reason for originally adopting these procedures and that reason seems to have been thwarted by the process you have described. Just as clearly, the General Assembly could amend the statutes here to change these procedures but to my knowledge it has not done so as of this date.

The apparent failure of the General Assembly to adhere to laws generally applicable here raises significant legal questions that could result in challenges to the process engaged by the legislature. The ultimate question, however, is whether a court would determine there exists a substantive remedy for the failure to follow the procedural requirements established by O.C.G.A. $$ 28-5-42 and 28-5-44 and the impact such a challenge might have on HB 948 if HB 1055 is ultimately signed into law.