Mississippi Advisory Opinions June 13, 2016: AGO 2016-00203 (June 13, 2016)

Advisory Opinion Text

AUTH: Chuck Rubisoff

RQNM: Honorable Delbert Hosemann

SUBJ: Secretary of State

SBCD: 171

TEXT: Honorable Delbert Hosemann

Secretary of State

Post Office Box 136

Jackson, MS 39205

Re : Effects of Senate Bill 2362 (2016) on nine funds administered by the Secretary of State

Dear Secretary Hosemann:

Attorney General Hood is in receipt of your request for an official opinion, and has assigned it to me for research and reply. Your request lists nine funds which are currently administered by the Secretary of State, and you ask about the effects of SB 2916, the FY2017 appropriation for the Secretary of State and SB 2362.

Issues Presented and Brief Responses

1. Is the Public Trust Tidelands Fund an exempt trust fund under SB 2362?

Response: Yes. The Public Trust Tidelands Fund is an exempt trust fund and is not abolished by SB 2362.

2. Is the Public Trust Tidelands Assessment Fund an exempt trust fund under SB 2362?

Response: Yes. The Public Trust Tidelands Assessment Fund is an exempt trust fund and is not abolished by SB 2362.

3. Is the Preneed Contract Loss Recovery Fund subject to the provisions of SB 2362?

Response: The Preneed Contract Loss Recovery Fund is not statutorily designated as a "trust fund." If the Preneed Contract Loss Recovery Fund does not contain fees, assessments or other revenues charged for the support of the Office of the Secretary of State, the fund is not abolished by SB 2362.

4. Is the Point Cadet Lease Fund exempt from the provisions of SB 2362 and may the State Treasurer distribute funds pursuant to the terms of the Compromise and Settlement Agreement?

Response: If no funds in the Point Cadet Lease Fund are used for the support of the Office of the Secretary of State, the fund is not abolished by SB 2362. Deposits and disbursements should continue as set forth in the Compromise and Settlement Agreement approved by court order.

5. Is the Mississippi Autism Board Fund captured by SB 2362? Should revenue continue to be deposited into the Mississippi Autism Board Fund? May Mississippi Autism Board Funds be used to pay the Board's administrative costs in fiscal year 2017?

Response: If the Mississippi Autism Board Fund does not contain fees, assessments or other revenues charged for the support of the Office of the Secretary of State, the fund is not abolished by SB 2362. Section 73-75-11 authorizes funds therein to be used for the expenses of the Mississippi Autism Board, and was not amended or repealed by SB 2362.

6. Does authority exist for the Office of the Secretary of State to pay counties under Miss. Code Ann. Section 23-15-5 for election related costs?

Response: Absent funds in the Elections Support Fund and absent funds and spending authority in the Secretary of State's FY 2017 appropriation, we see no authority for payments to be made to the counties for election expenses described in Section 23-15-5.

7. As a result of the Secretary of State’s appropriation allowing only expenditures for the support and maintenance of the Office of the Secretary of State, does the Secretary have authority to reimburse counties for any unpaid taxes as provided in Section 29-1-95?

Response: The amounts payable to local taxing authorities for reimbursement of unpaid taxes and amounts payable as redemption fees to the county tax collectors and chancery clerks are paid from the Treasury, not from the "Land Records Maintenance Fund" established in Section 29-1-95. Such payments, certified in the manner required in Section 29-1-95, will continue to be made from the State Treasury from and after the effective date of July 1, 2016.

8. Can the Office of the Secretary of State continue to make disbursements to counties under Section 23-15-169.7?

Response: Amendments in SB 2362 to Section 23-15-169.7 redirect revenues for the Help Mississippi Vote Fund to the State General Fund. The Secretary of State will remain authorized to make disbursements under Section 23-15-169.7 to the extent that any funds are available.

9. Will fees collected pursuant to Miss. Code Ann. Section 7-3-59 continue to be deposited into a special fund in the State Treasury and used to pay debt service?

Response: No. Fees collected under Section 7-3-59 will be deposited into the State General Fund. Chapter 309 of the Laws of 2006 requires the State Treasurer to make these bond payments "from any funds in the State Treasury not otherwise appropriated." In addition, Section 7-9-39 authorizes and directs the State Treasurer to impound or set aside sufficient funds to pay all State bonds and interest thereon.

Applicable Law and Analysis

At the outset, it is important to understand that in MS AG Op., Brown (June 26, 2009) the Attorney General addressed the funding of State government on after July 1, 2009, in the event the Legislature failed to pass appropriation bills prior to that time. This office recognized the Legislature’s exclusive power to appropriate funds but also recognized four exceptions to that power. At least one of these exceptions, i.e., agencies responsible for administering funds, trusts or bonds for which the Legislature has authorized continuous funding, is relevant to our analysis below. Previously, the expenditure of these special funds was generally not subject to limitations in appropriation bills because the expenditures were primarily for objects other than the general support of agencies. As such, these funds were considered to be “non-budgeted” by the Department of Finance and Administration.

Succinctly stated, the basic analysis of the effects of SB 2362 is as follows:

1. All State agencies are prohibited from charging another agency a fee, with the exception of education-related agencies.

2. Sixteen designated agencies will be general fund agencies. Any fees, assessments or other revenues charged for the support of these agencies are deposited in the State General Fund. Any special fund or depository established for the deposit of such fees, assessments or revenues shall be abolished and the balance transferred to the State General Fund. The basic analysis set forth above is subject to exceptions which may arise from existing or reenacted statutory provisions.

3. If a special fund account maintained by one of the sixteen agencies is a trust fund account, the account is not abolished and the balance is not transferred to the State General Fund.

4. If a special fund account maintained by one of the sixteen agencies is not a trust fund account, and the special fund account was established to receive fees, assessments or other revenues charged for the support of one of the sixteen designated agencies, then the special fund account shall be abolished and the balance transferred to the State General Fund. The general statement in Section 3 of SB 2362 abolishing an unnamed, unspecified group of funds does not affect funds which were specifically reenacted by the Legislature in SB 2362.

5. If a special fund account maintained by one of the sixteen agencies is not a trust fund account and the special fund account was established to receive monies other than fees, assessments or other revenues charged for the support of one of the sixteen designated agencies, then the special fund account will not be abolished and the balance will not be transferred to the State General Fund.

The basic analysis set forth above is subject to exceptions which may arise from existing or reenacted statutory provisions.

Senate Bill 2362 of the 2016 Regular Session, entitled the “Mississippi Transparency and Simplification Act of 2016," is effective from and after July 1, 2016. Our analysis will largely focus on the relevant sections of SB 2362 and applicable rules of statutory construction. The general analysis set forth above is subject to other exceptions which may arise from existing or reenacted statutory provisions.

Section 2 of SB 2362 provides that “[f]rom and after July 1, 2016, no state agency shall charge another state agency a fee, assessment, rent, audit fee, personnel fee or other charge for services or resources received...”.

Section 3 of SB 2362 identifies sixteen State agencies, including the Office of the Secretary of State, whose expenses will hereinafter be defrayed by appropriation from the State General Fund. We understand that, prior to the effective date of SB 2362, the expenses of these sixteen State agencies were defrayed, in part or in whole, by appropriation of special funds.

Section 3 of SB 2362 provides that any fees, assessments or other revenues charged for the support of these sixteen agencies shall be deposited into the State General Fund and any special fund, i.e., “account,” or depository established in the State Treasury for the deposit of such fees, assessments, or revenues shall be abolished. Remaining balances in these accounts or depositories will be transferred to the State General Fund. Further, this section provides that expenses previously paid from these accounts or depositories will be paid from the General Fund Account. Section 3 of SB 2362 does not specifically identify by name or number the accounts and depositories to be abolished.

In addition, Section 3 of SB 2362 expressly provides that its provisions “...shall not apply to any trust fund account that is maintained by...” any of the sixteen agencies. Therefore, any trust funds maintained by the sixteen agencies are not abolished under Section 3 of SB 2362 and will continue as otherwise authorized by existing laws. Non-trust fund accounts must be examined individually to determine whether the abolishment and transfer provisions in Section 3 of SB 2362 are applicable. Section 3 of SB 2362 reads, in relevant part, as follows:

(1) From and after July 1, 2016, the expenses of the following enumerated state agencies shall be defrayed by appropriation of the Legislature from the State General Fund: the State Fire Marshal, the State Fire Academy, the Office of Secretary of State, the Mississippi Public Service Commission, the Mississippi Department of Information Technology Services, the State Personnel Board, the Mississippi Department of Insurance, the Mississippi Law Enforcement Officers' Minimum Standards Board; the Mississippi Tort Claims Board; the Mississippi Gaming Commission; the Mississippi Oil and Gas Board; the Mississippi Department of Revenue - License Tag; the Office of the State Public Defender; the Mississippi Workers' Compensation Commission; the Office of Attorney General; and the Mississippi Department of Finance and Administration. Beginning July 1, 2016, any fees, assessments or other revenues charged for the support of the above-named state agencies shall be deposited into the State General Fund, and any special fund or depository established within the State Treasury for the deposit of such fees, assessments or revenues shall be abolished and the balance transferred to the State General Fund. Expenses heretofore drawn from such special funds or other depositories shall be drawn from the agencies General Fund Account.

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(3) The provisions of this section shall not apply to any trust fund account that is maintained by any above-named agency.

(4) The provisions of this section shall not prohibit any of the above-named agencies from maintaining clearing accounts in approved depositories.

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The fundamental rules of statutory construction can largely be found in Buckel v. Chaney , 47 So.3d 148 (Miss. 2010), which states:

The most fundamental rule of statutory construction is the plain meaning rule, which provides that if a statute is not ambiguous, then this Court must apply the statute according to its terms.” Likewise, “[i]t is a well-settled rule of statutory construction that ‘when two statutes pertain to the same subject, they must be read together in light of legislative intent.’ ” Furthermore, under the rules of statutory construction, “repeal of statutes by implication is not favored.” Statutes “on the same subject, although in apparent conflict, should if possible be construed in harmony with each other to give effect to each.” Moreover, “all statutes in pari materia are taken into consideration, and a legislative intent [is] deduced from a consideration as a whole.” (Citations omitted; emphasis added).

The rules of statutory interpretation also require that “[i]f possible, courts should construe statutes so as to render them constitutional rather than unconstitutional ....” City of Jackson v. Rebuild America, Inc ., 77 So.3d 1105, 1119 (Miss. App. 2011); MS AG Op. Cantrell (October 1, 2013). Further, statutes are presumed constitutional and are to be construed in a manner which will render them constitutional. Frazier v. State by and through Pittman , 504 So.2d 675 (Miss.1987).

We will address your questions in the order in which they are presented in accordance with the plain meaning of the language of SB 2362 and the other applicable rules of statutory construction under Mississippi law.

1. Public Trust Tidelands Fund

Is the Public Trust Tidelands Fund an exempt trust fund under SB 2362?

Yes. Mississippi Code Section 29-15-9 creates in the State Treasury “a special fund to be known as the Public Trust Tidelands Fund” to be administered by the Secretary of State as “trustee.”

SB 2362 does not amend Section 29-15-9, which establishes this trust fund. Trust fund accounts are expressly exempt from the provisions of SB 2362. Therefore, applying he plain language of SB 2362, we are of the opinion that the Public Trust Tidelands Fund is not abolished by SB 2362 and deposits should continue into this fund in fiscal year 2017 and thereafter as authorized by law.

2. Public Trust Tidelands Assessment Fund

Is the Public Trust Tidelands Assessment Fund an exempt trust fund under SB 2362?

Yes. The Public Trust Tidelands Assessment Fund is created pursuant to Section 29-15-10, which states specifically that “the fund shall be administered by the Secretary of State, as trustee.” The purpose of the fund is to ensure monies collected from the public trust tidelands assessments are used for preserving tidelands within certain counties.

Trust fund accounts are expressly exempt from the provisions of Section 3 of SB 2362. Therefore, applying the plain language of SB 2362, we are of the opinion that the Public Trust Tidelands Fund is not abolished under SB 2362 and deposits will continue into this fund in fiscal year 2017 and thereafter as authorized by law.

3. Preneed Contract Loss Recovery Fund

Is the Preneed Contract Loss Recovery Fund subject to the provisions of SB 2362?

This fund is created by Section 75-63-81 to reimburse the beneficiaries of preneed funeral contracts who have suffered financial loss as a result of fraud or insolvency of a registered Mississippi preneed provider. You state that these funds are not used for the support of the Office of the Secretary of State. In addition, we note that Section 75-63-81 was not specifically amended by SB 2362.

Only special fund accounts containing “fees, assessments or other revenues charged for the support” of an agency are subject to the abolishment and transfer provisions of Section 3 of SB 2362. If the Preneed Contract Loss Recovery Fund does not contain fees, assessments or other revenues charged for the support of the Office of the Secretary of State, then applying the plain language of SB 2362, it is our opinion that this fund is not abolished by SB 2362. Deposits will continue into this fund in fiscal year 2017 and thereafter as authorized by law.

4. Point Cadet Lease Fund

Is the Point Cadet Lease Fund exempt from the provisions of SB 2362 and may the State Treasurer distribute funds pursuant to the terms of the Compromise and Settlement Agreement?

Your letter states that the Point Cadet Lease Fund was created by a settlement agreement dated August 15, 2002, and approved by the Chancery Court of Harrison County, Second Judicial District. Pursuant to the settlement agreement, the fund is collected by the Secretary of State, and distributions are made by the State Treasurer, upon the direction of the Secretary of State, to the Institutions of Higher Learning, the City of Biloxi, and the Point Cadet Lease Fund. You state that no monies deposited into the fund are used for the support of the Office of the Secretary of State.

As noted above, only special fund accounts containing “fees, assessments or other revenues charged for the support” of an agency are subject to the abolishment and transfer provisions of Section 3 of SB 2362. Therefore, applying the plain language of SB 2362, if no such funds are used for the support of the Office of the Secretary of State, we are of the opinion that the Point Cadet Lease Fund is not abolished by SB 2362. Deposits and disbursements should continue as set forth in the Compromise and Settlement Agreement approved by court order. In any event, any amendments thereto may require court approval.

5. Mississippi Autism Board Fund

Is the Mississippi Autism Board Fund captured by SB 2362? Should revenue continue to be deposited into the Fund? May Mississippi Autism Board Funds be used to pay the Board’s administrative costs in fiscal year 2017?

A special fund is required by Miss. Code Ann. Section 73-75-11 for the deposit of funds collected to pay the expenses of the Mississippi Autism Board. The Board is assigned to the Office of the Secretary of State for administrative and ministerial purposes. You state that funds contained in the Mississippi Autism Board Fund are not used for the support of the Office of the Secretary of State. Rather, these funds are used for the support of the Mississippi Autism Board. You further state that the Secretary of State’s appropriation bill provides only for expenditures from the General Fund appropriation and not from special funds.

Section 73-75-11 states, in part:

(2) The board [Mississippi Autism Board] shall receive and account for all funds received and shall keep such funds in a separate fund. Funds collected under the provisions of this chapter shall be used solely for the expenses of the board and to administer the provisions of this chapter, which may include full or partial financing of continuing education programs promulgated by the board under this chapter. Such funds shall be subject to audit by the Auditor of the State of Mississippi. (Emphasis added).

The Mississippi Autism Board Fund does not contain fees, assessments or other revenues charged for the support of the Office of the Secretary of State. Further, this statute was not amended by SB 2362. Thus, applying the plain language of SB 2362, it is our opinion that this fund is not abolished by SB 2362. Deposits should continue into this fund in fiscal year 2017 and thereafter as authorized by law. With regard to payment of the Mississippi Autism Board’s administrative costs, Section 73-75-11 authorizes funds collected to be used for the expenses of the Board and to administer its duties under the chapter.

6. Election Support Fund

Does authority exist for the Office of the Secretary of State to pay counties under Miss. Code Ann. Section 23-15-5 for election related costs?

Mississippi Code Section 23-15-5 creates the “Elections Support Fund” into which fees imposed on limited liability companies under Section 79-29-1203 shall be deposited. Section 23-15-5 provides that the expenditure of these funds are under the direction of the Secretary of State, with fifty percent (50%) of the monies directed to be distributed to counties for conducting elections and the remaining fifty percent (50%) allocated to the Secretary of State to maintain, upgrade or equip the Statewide Elections Management System.

SB 2362, Section 45, reenacts the existing provisions of Section 23-15-5 without changes, and adds the following provisions:

(3) From and after July 1, 2016, the expenses of this agency shall be defrayed by appropriation from the State General Fund and all user charges and fees authorized under this section shall be deposited into the State General Fund as authorized by law.

(4) From and after July 1, 2016, no state agency shall charge another state agency a fee, assessment, rent or other charge for services or resources received by authority of this section. (Emphasis added)

Reading the plain language of the amended statute as a whole, deposits of fees from limited liability companies will continue to be made into the Elections Support Fund through June 30, 2016. The Secretary of State’s obligation to make payments to the counties from the Elections Support Fund during FY 2016 remains unchanged. From and after July 1, 2016, deposits of fees from limited liability companies will be made into the State General Fund. The Elections Support Fund is not abolished.

7. Land Records Maintenance Fund

As a result of the Secretary’s appropriation allowing only expenditures for the support and maintenance of the Office of the Secretary of State, does the Secretary have authority to reimburse counties for any unpaid taxes as provided in Section 29-1-95?

Section 29-1-95 provides a mechanism for the State to reimburse local taxing authorities for unpaid taxes on lands sold to the State for taxes. Once such lands are sold by the State and the purchase money is deposited into the Treasury, the Secretary of State certifies to the Department of Finance and Administration and the Treasurer the amount of fees and costs allowed to the county tax collector and chancery clerk under Section 25-7-21 for redemptions. Thereafter, the Department of Finance and Administration issues warrants to the county tax collector and chancery clerk for payment of same. A similar process is followed in order to pay the local taxing authorities for the unpaid taxes. The balance leftover, after paying the fees and taxes authorized, is required to be deposited into the “Land Records Maintenance Fund.” This fund is administered by the Secretary of State to maintain the State’s land records.

SB 2362, Section 47, reenacts the existing provisions of Section 29-1-95 without changes, and adds the following provisions:

(4) From and after July 1, 2016, the expenses of this agency shall be defrayed by appropriation from the State General Fund and all user charges and fees authorized under this section shall be deposited into the State General Fund as authorized by law.

(5) From and after July 1, 2016, no state agency shall charge another state agency a fee, assessment, rent or other charge for services or resources received by authority of this section. (Emphasis added)

The amendment requires all “user charges and fees” authorized under Section 29-1-95 to be deposited in the General Fund from and after July 1, 2016. However, we find no “user charges or fees” collected under Section 29-1-95. The only “fee” referred to therein relates to a fee to be paid to the county tax collector and chancery clerk, not a user charge or fee collected by the Secretary of State from those officers. The amounts payable to local taxing authorities for reimbursement of unpaid taxes and amounts payable as redemption fees to the county tax collectors and chancery clerks are paid from the Treasury, not from the “Land Records Maintenance Fund” established in Section 29-1-95. Such payments, certified in the manner required in Section 29-1-95, will continue to be made from the State Treasury from and after the effective date of July 1, 2016.

Help Mississippi Vote Fund 8.

Can the Office of the Secretary of State continue to make disbursements to counties under Section 23-15-169.7?

Mississippi Code Section 23-15-169.7 establishes the Help Mississippi Vote Fund and authorizes the Secretary of State to expend monies therein to support the State's maintenance of efforts as required by the federal mandates of the Help America Vote Act of 2002. Fees collected pursuant to Section 7-3-59 serve as the source of funding for the Help Mississippi Vote Fund and the County Voting Systems Assistance Bond Sinking Fund, created in Section 3 of Chapter 309, Laws of 2006.

SB 2362, Section 46, reenacts the existing provisions of Section 23-15-169.7, and adds the following provisions:

(4) From and after July 1, 2016, the expenses of this agency shall be defrayed by appropriation from the State General Fund and all user charges and fees authorized under this section shall be deposited into the State General Fund as authorized by law.

(5) From and after July 1, 2016, no state agency shall charge another state agency a fee, assessment, rent or other charge for services or resources received by authority of this section. (Emphasis added)

As with the Land Records Maintenance Fund discussed above, the amendment requires all “user charges and fees authorized’ in 23-15-169.7 to be deposited into the General Fund after July 1, 2016.

The amendment to 23-15-169.7 alters the provisions such that, after July 1, 2016, the fees collected under Section 7-3-59 shall be deposited into the State General Fund. The Fund will not be abolished, however. Therefore, it is the opinion of this office that the amendments to Sections 23-15-169.7 redirect revenues for the Help Mississippi Vote Fund to the State General Fund. The Secretary of State will remain authorized to make disbursements under Section 23-15-169.7 to the extent that funds are available.

9. Bond Fund

Will fees collected pursuant to Miss. Code Ann. Section 7-3-59 continue to be deposited into a special fund in the State Treasury and used to pay debt service?

Chapter 309 of the Laws of 2006 (HB 562, 2006 Regular Session) authorized the issuance of State general obligation bonds to assist counties in purchasing and distributing voting systems and devices. It also created the County Voting Systems

Assistance Bond Sinking Fund into which deposits of fees under Section 7-3-59 are made. Pursuant to this chapter, principal and interest payments on the outstanding bonds are to made from this bond sinking fund.

Section 44 of SB 2362 amends Section 7-3-59 by adding the following provisions:

(4) From and after July 1, 2016, the expenses of this agency shall be defrayed by appropriation from the State General Fund and all user charges and fees authorized under this section shall be deposited into the State General Fund as authorized by law.

5) From and after July 1, 2016, no state agency shall charge another state agency a fee, assessment, rent or other charge for services or resources received by authority of this section.

A conflict or ambiguity will exist within Section 7-3-59 between the reenacted language directing remittances into the County Voting Systems Assistance Bond Sinking Fund and subsection (4) directing “all user charges and fees authorized under this section” to be deposited in the State General Fund. This conflict is resolved by harmonizing and giving effect to both provisions, i.e., remittances will continue to be made into the County Voting Systems Assistance Bond Sinking Fund through June 30, 2016 and, from and after July 1, 2016, deposits will be made into the State General Fund.

Regarding repayment of the bonds, Section 9 of Chapter 309 of the Laws of 2006 contains, in part, the following language:

If the funds available in the bond sinking fund and any funds appropriated by the Legislature for such purpose are insufficient to pay the principal of and the interest upon such bonds as they become due, then the deficiency shall be paid by the State Treasurer from any funds in the State Treasury not otherwise appropriated.

If funds are not available in the County Voting Systems Assistance Bond Sinking Fund to pay debt service on the bonds, Chapter 309 requires the State Treasurer to make these bond payments “from any funds in the State Treasury not otherwise appropriated.”

In addition, Section 7-9-39 is applicable to all State general obligation bonds and it authorizes and directs the State Treasurer to impound or set aside sufficient funds to pay all State bonds and interest thereon.

Please let us know if this office can be of further assistance.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

Chuck Rubisoff, Assistant Attorney General

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Notes:

SB 2362 consists of seventy-two (72) sections and one hundred eighty-four (184) pages of text. Section 1 contains the title and Section 72 the effective date. Sections 2 and 3 contain new language. Sections 4 through 70 amend existing Mississippi Code sections by largely reenacting provisions of existing law and adding two subsections. The language in these two subsections is almost identical in each instance and reads as follows:

“From and after July 1, 2016, the expenses of this agency shall be defrayed by appropriation from the State General Fund and all user charges and fees authorized under this section shall be deposited into the State General Fund as authorized by law.

From and after July 1, 2016, no state agency shall charge another state agency a fee, assessment, rent or other charge for services or resources received by authority of this section.”

Section 71 inter alia reenacts existing provisions of Section 99-19-73 specifying recipients of numerous criminal fees and assessments while deleting all individual monetary amounts and adding “total” assessments to be directed to the “General Fund.”

Section 2 exempts certain transactions between state agencies and the Board of Trustees of the State Institutions of Higher Learning, public universities, the Mississippi Community College Board, public community colleges, and the State Department of Education from the general prohibition therein.

“Special funds” are defined for purposes of the State budget process as “...all revenues and/or income other than appropriations from the State General Fund, which are received, collected by, or available for the support of or expenditure by any ...[agency]...” and includes “...revolving funds and all funds received from the United States Government by any...[agency]...”. See Miss. Code Ann. Sec. 27-103-103.

A special fund account is generally referred to as a “fund.” A special fund account is assigned a name and fund number for accounting purposes, consistent with the legal authority under which the account is established.

Section 61 of the Mississippi Constitution requires that “no law shall be revived or amended by reference to its title only, but the section or sections, as amended or revived, shall be inserted at length. Questions have been raised as to whether SB 2362 violates this constitutional provision. We do not address this issue herein and are constrained to follow the presumption of validity afforded all statutes, including SB 2362, and to interpret same in a constitutional manner. The question of the constitutionality of SB 2362 can only be determined by a court of competent jurisdiction.

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