Imágenes de páginas
PDF
EPUB

government, was held to be an expression of policy unrelated to budget matters and thus subject to veto. (12) The appropriation for higher education directed the attorney general and the administrator of the state's student loan program to use all legal means to collect defaulted loans. The court held the provision to be a policy directive wholly unrelated to the expenditure of money and properly vetoed. 51

A legislative attempt to circumvent a governor's veto by means of a two-step process was sidetracked in a 1977 Massachusetts ruling. 52 Under previous rulings, the court had determined that the governor's power to "disapprove or reduce items or parts of items in any bill appropriating money" did not permit him to eliminate a condition or restriction on an appropriation so as to enact the item of appropriation free of the restriction. The situation before the court presented a unique set of circumstances. The annual general appropriation provided funds for the state's medical assistance program without restriction. A subsequent supplemental appropriation attempted to add a restriction against the use of the funds to pay for abortions. The supplemental bill added no new money to the medical assistance program. It simply continued the prior appropriation. It was therefore argued that the Governor could not veto the restriction alone. The court, however, construed the supplemental bill as enacting a superceding appropriation with a restriction, and that the effect of the governor's veto was to reinstate the original restrictionless appropriation. The court then chastised the legislature:

Each new item sets apart from the public revenue a certain sum of money for a specified object, in such manner that the executive officers of the government are authorized to use that money, and no more, for that object and for no other. It is therefore an appropriation. Opinion of the Justices, 323 Mass. 764, 766 (1948). See Opinion of the Justices, 300 Mass. 630, 635-636 (1938); Opinion of the Justices, 297 Mass. 577, 580-581 (1937). Except as we have pointed out with respect to item 11202000, each new item is a separable fiscal unit, not related to any other item in the present bill. The Legislature cannot narrow the Governor's power to disapprove such an item by stating it in words and phrases rather than in figures. State ex rel. Sego v. Kirkpatrick, 86 N.M. 359, 369–370 (1974). State ex rel. Brown v. Ferguson, 32 Ohio St. 2d 245, 252 (1972).

If the Governor could not veto such a new item, the way would be open for evasion of the item veto by a two-step process. The Legislature could first make a noncontroversial appropriation. Once that was enacted, it could then insert the controversial restriction as a separate section in an essential supplementary appropriation bill. The very vice of "logrolling" against which the item veto is a safeguard would be reintroduced. See Bengzon v. Secretary of Justice, 299 U.S. 410, 415 (1937),53

In conclusion, it merits re-emphasis to note that the "qualification" cases herein reviewed should not be read in isolation from the other issues covered in this paper. They are all facets of the ongoing struggle between the political branches of the states, and the manner in which an issue is framed in litigation may simply reflect a legal strategy geared to the perceived jurisprudence of a particular jurisdiction. That is, it may have been more prudent in the circumstances to argue that an item is not an appropriation rather than to contest whether a condition is involved. The caveat,

51 Compare the treatment of similar vetoes in State ex rel. Sego v. Kirkpatrick, 86 N.M. 359, 524 P. 975 (1974).

[blocks in formation]

therefore, as with all areas of this subject, is against easy generalization.

Application of item veto to substantive provisions

The courts are divided on the issue of whether substantive provisions of appropriation bills are subject to a governor's item veto. The U.S. Supreme Court has held that the item veto provision in the Philippines Organic Act did not authorize the Governor-General to veto a section of a retirement gratuity law which provided that justices of the peace could receive benefits under that law.54 The Court concluded that even if the bill could be characterized as an appropriation measure despite the fact that only one of its twelve sections appropriated funds, the veto power does not apply to "some general provision of law which happens to be put into an appropriation bill.55 To permit such a section to be item vetoed "would result in the enactment of a general law in an emasculated form not intended by the legislature. "56 Furthermore, according to the Court, the object of an item veto provision "is to safeguard the public treasury against the pernicious effect of . . . 'logrolling'," and this purpose can be achieved without extending the veto power to substantive provisions.57 In denying the governor authority to veto substantive language in appropriation measures, other courts have also focused on the purpose of the item veto. The Mississippi supreme court found that the item veto would be useful in guarding "against the evils of omnibus appropriation bills," but to extend the veto power to substantive provisions would lead to “a condition of things never contemplated, and appalling in its possible consequences." "58 In holding that the governor could not veto two sections of an appropriation bill, which sections directed the transportation commissioner to ensure the continuance of public transportation facilities, the Connecticut supreme court noted that to curb the practice of log-rolling, the governor "may . . . control the amount of expenditure, but not the purpose.'

1959

In other jurisdictions, however, the courts have upheld item vetoes of substantive provisions in appropriation acts. The governor's power in this regard has been construed very broadly by the Wisconsin supreme court in a series of decisions on the item veto. In upholding an item veto of a legislative amendment to the provision of the executive budget bill imposing levy limits on municipal governments, the Wisconsin court asserted that "the partial veto power may be utilized to veto any portion of a bill, whether the portion itself is an item of appropriation or not, even if the result effectuates a change in legislative policy, as long as the portion vetoed is separable and the remaining provisions constitute a complete and workable law." 60 Thus, in Wisconsin, although the item

54 Bengzon v. Secretary of Justice of the Philippine Islands, 299 U.S. 410 (1937).

55 299 U.S. at 414-15.

56 Id. at 414.

57 Id. at 415.

58 State v. Holder, 76 Miss. 158 (1898).

59 Caldwell v. Meskill, 164 Conn. 299, 307, 320 A.2d 788 (1973). See also Black & White Taxicab Co. v. Standard Oil Co., 25 Ariz. 381, 218 P. 139 (1923); Patterson v. Dempsey, 152 Conn. 431, 207 A.2d 739 (1965); Cenarrusa v. Andrus, 99 Ida. 404, 582 P.2d 1082 (1978); State ex rel. Wiseman v. Oklahoma Board of Corrections, 614 P. 2d 551 (1978); Jessen Associates, Inc. v. Bullock, 531 S.W. 2d 593 (Tex. 1975); Fumore v. Lane, 104 Tex. 499, 140 S. W. 405 (1911).

60 State ex rel. Sundby v. Adamany, 71 Wis. 2d 118, 130, 237 N.W. 2d 910, 916 (1975).

veto is applicable only to appropriation measures, the part which the governor disapproves need not itself appropriate funds.61 The governor's power has been interpreted liberally in other states. In finding that the governor could disapprove 77 sections of "general legislation" in the state's annual appropriation bill, the supreme judicial court of Massachusetts concluded that "for purposes of his veto power. . . the governor may treat as an 'item' any separable provision attached to the general appropriation bill. 62 The Massachusetts court reasoned that log-rolling could not be prevented unless the item veto power extended to substantive provisions. Furthermore, to bar item vetoes of substantive language would violate the doctrine of separation of powers. "To maintain a constitutional balance . . ., the gubernatorial partial veto power must extend to any separable provisions contained in a general appropriation bill." 63 Furthermore, the legislature cannot, by means of "skillful drafting," convert a substantive section of an appropriation bill into a mere condition to avoid the governor's veto.64 The Washington supreme court also found "no merit in the contention that only an item in an appropriations bill" is subject to the item veto. 65

Does the item veto power include the power to reduce?

Under the majority view, the authority of a governor to exercise an item veto does not include the right to reduce the amount appropriated by the legislature for one or more items. 66 It has been held that the governor cannot reduce by lowering the amount appropriated, 67 by eliminating all funding for a department except the salary of the department head, 68 or by striking out the words "per annum" after the appropriated amount since, under the facts, this had the effect of disapproving half the sum appropriated. 69 Under an extension of the majority view's reasoning, because the governor's item veto authority does not include the power to

61 State ex rel. Wisconsin Telephone Co. v. Henry, 218 Wis. 302, 313-14, 260 N.W. 486, 491-92 (1935). See also State ex rel. Martin v. Zimmerman, 233 Wis. 442, 289 N.W. 662 (1940).

62 Opinion of the Justice to the House of Representatives, 384 Mass. 820, 824-25, 425 N.E. 2d 750 (1981).

63 Id., 384 Mass. at 826.

64 Opinion of the Justice to the House of Representatives, 384 Mass. 828, 836 (1981).

65 State ex rel. Ruoff v. Rosellini, 55 Wash. 2d 554, 556, 348 P.2d 971, 973 (1960); Cascade Tel. Co. v. State Tax Commission, 176 Wash. 616, 30 P.2d 976 (1934). Other cases holding that the item veto power applies to substantive provisions in appropriation bills include State ex rel. Turner v. Iowa State Highway Commission 186 N.W. 2d 141 (Iowa 1971); State ex rel. Sego v. Kirkpatrick, 86 N.M. 359 (1974); State ex rel. Brown v. Ferguson, 32 Ohio St. 2d 245 (1972); Commonwealth v. Barnett, 199 Pa. 161, 173, 48 A. 976 (1901). Where the legislature violates a constitutional ban on the inclusion of substantive legislation in an appropriation bill, the courts may be particularly inclined to uphold vetoes of the substantive provisions. See Caldwell v. Meskill, 164 Conn. 299, 306 n.6, 320 A.2d 788 (1973); Henry v. Edwards, 346 So.2d 153 (La. 1977).

66 Fairfield v. Foster, 25 Ariz. 146, 214 P. 319 (1923); Stong v. People, 74 Colo. 283, 220 P. 999 (1923); Wheeler v. Gallet, 43 Ida. 175, 249 P. 1067 (1926); Fergus v. Russel, 270 Ill. 304, 110 N.E. 130 (1915); Nowell v. Harrington, 122 Md. 487, 89 A. 1098 (1914); Wood v. State Administrative Board, 255 Mich. 220, 238 N.W. 16 (1931); Mills v. Porter, 69 Mont. 325, 222 P. 428 (1924); Peebly v. Childers, 95 Okla. 40, 217 P. 1049 (1923); Fulmore v. Lane, 104 Tex. 499, 140 S.W. 405 (1911); Brault v. Holleman, 217 Va. 441, 230 S.E. 2d 238 (1976).

67 Wheeler v. Gallet, 43 Ida. 175, 249 P. 1067 (1926); Wood v. State Administrative Board, 255 Mich. 220, 238 N.W. 16 (1931); Mills v. Porter, 69 Mont. 325, 222 P. 428 (1924) (governor cannot reduce appropriations to comply with balanced budget requirement); Peebly v. Childers, 95 Okla. 40, 217 P. 1049 (1923).

68 State ex rel. Brotherton v. Blankenship, 157 W.Va. 100, 207 S.E. 2d 421 (1973).

69 Fergus v. Russel, 270 Ill. 304, 110 N.E. 130 (1915). See also Fulmore v. Lane, 104 Tex. 499, 140 S.W. 405 (1911).

reduce funding levels, he may not be granted this power indirectly by legislation which makes the expenditure of appropriated funds subject to the governor's approval.70

Some of the decisions denying the governor the power to reduce turn on legalistic interpretations of "item" or "part" in state constitutional provisions.71 Other cases rest on broader considerations, such as the separation of powers, the role of the legislature in the appropriations process, and the nature of the item veto power. The Illinois supreme court explained the issues as follows:

[The governor] may disapprove of [an appropriation] for the reason that, in his judgment, no appropriation should be made for such a purpose, or for the reason that the amount appropriated is too large, or for any other reason satisfactory to him, but he has not the right to disapprove of a certain portion of an item appropriated, and approve of the remainder, and thus perform a function which belongs exclusively to the legislative branch-that of using the discretion necessary to determine the amount which should be appropriated for any particular object. . . . The constitution contemplates that the governor shall approve or disapprove of an item in toto. . . .72

The cases have recognized the "grave danger" of allowing the governor to infringe on the legislature's prerogative of determining the amount to be appropriated. 73 The rationale in other decisions holding that the governor cannot reduce an appropriated sum is that such action is, in effect, a prohibited veto of a part of an item.74

In holding that the governor could not reduce the salary appropriated for a state official, the Colorado supreme court concluded that the governor "certainly has no power to veto a portion of a separate, distinct and indivisible item... Such a power is legislative, [and] its exercise is forbidden unless expressly directed or permitted by the constitution. . . ." 75

Not following the majority view are decisions in states in which the constitutional provision makes clear that the item veto includes the power to reduce appropriated sums.76 Furthermore, under a minority view, it has been held that a governor can exercise his item veto to reduce funding levels even where the constitution does not specifically confer this authority. Although it has generally not been followed in other jurisdictions, in Commonwealth ex rel. Elkin v. Barnett," the Pennsylvania supreme court held that the governor could reduce the legislature's appropriation for schools. The court concluded that "item" and "part" were used

70 State ex rel. Hudson v. Carter, 167 Okla. 32, 27 P. 2d 617 (1933); State ex rel. Crable v. Carter, 187 Okla. 421, 103 P. 2d 518 (1940).

71 The cases consider the question of whether "part" is broader than "item," and whether a governor can veto "part" of an appropriation by reducing the amount. Wheeler v. Gallet, 43 Ida. 175, 249 P. 1067 (1926). Compare Blanch v. Cordero, 180 F. 2d 856 (1st Cir. 1950) (Organic Act of Puerto Rico authorizes reduction of salaries of government officers and employees) with Fitzsimmons v. Leon, 141 F. 2d 886 (1st Cir. 1944) (Organic Act of Puerto Rico does not allow reduction of salary of official where appropriation is in amount fixed by prior statute).

72 Fergus v. Russel, 270 III. 304, 110 N.E. 130 (1915). See also Mills v. Porter, 69 Mont. 325, 222 P. 428 (1924).

73 Mills v. Porter, 69 Mont. 325, 334, 222 P. 428 (1924).

74 Wheeler v. Gallet, 43 Ida. 175, 249 P. 1067 (1926); Fergus v. Russel, 270 Ill. 304, 110 N.E. 130 (1915); Peebly v. Childers, 95 Okla. 40, 217 P. 1049 (1923). See also Nowell v. Harrington, 122 Md. 487, 89 A. 1098 (1914); State ex rel. Jamison v. Forsyth, 21 Wyo. 359, 133 P. 521 (1913).

75 Stong v. People, 74 Colo. 283, 292, 220 P. 999 (1923).

76 Reardon v. Riley, 10 Cal. 2d 531, 76 P. 2d 101 (1938); People ex rel. Illinois Federation of Teachers v. Lindberg, 60 Ill. 2d 266, 326 N.E. 2d 749 (1975); 207 S.E. 2d 421 (1973).

77 199 Pa. 161, 48 A. 976 (1901).

interchangeably in the state constitutional provision, and that the governor could disapprove of part of an appropriation by reducing the amount. However, the court may have been motivated by the fact that the legislature had violated constitutional restrictions on omnibus bills, and thus had prevented the governor from vetoing certain items. 78

The item veto-a negative power?

Almost all the state courts that have considered the issue have held that the item veto is essentially a negative power.79 "Affirmative" uses of the item veto have generally been held unconstitutional, the courts noting that lawmaking is a function vested in the legislature, not the governor. Thus, a governor is prohibited from exercising his veto "creatively" by making selective deletions in bills submitted to him. He cannot strike out words, phrases, or sentences in a manner which would distort the legislature's intent in passing the measure. This rule has been applied to bar attempted item vetoes of language in bills expressing the legislative purpose as well as to item vetoes of conditions and limitations.80 The New Mexico supreme court stated the rule simply in Sego v. Kirkpatrick:

The power of partial veto is the power to disapprove. This is a negative power, or a power to delete or destroy a part or item, and is not a positive power, or a power to alter, enlarge or increase the effect of the remaining parts or items. It is not the power to enact or create new legislation by selective delegations. 81

In adopting a strict construction of the governor's item veto power, the state courts have recognized, explicitly or implicitly, the separation of powers implications of the governor's partial veto.82 In holding that the governor could not strike directory or purpose language while allowing the appropriation itself to stand, the Missouri supreme court in State ex rel. Cason v. Bond 83 took “cognizance of the fact that when the Governor takes part in appropriations procedures, he is participating in the legislative process and the language conferring such authority is to be strictly construed." One court concluded that it "would be monstrous" to uphold cre

78 See also Karcher v. Kean, 97 N.J. 483, 479 A. 2d 403 (1984), upholding use of item veto to reduce appropriations for particular highway project without corresponding reduction in total appropriation in the bill.

19 Brown v. Firestone, 382 So. 2d 654 (Fla. 1980); Cenarrusa v. Andrus, 99 Ida. 404, 582 P. 2d 1082 (1978); Wood v. State Administrative Board, 255 Mich. 220, 238 N.W. 16 (1931); Brown v. Morris, 290 S.W. 2d 160 (Mo. 1956); Washington Assoc. of Apartment Assos. v. Evans, 88 Wash. 2d 563, 564 P. 2d 788 (1977).

80 Bengzon v. Secretary of Justice of the Philippine Islands, 299 U.S. 410 (1937) (construing Philippine Organic Act); Fitzsimmons v. Leon, 141 F. 2d 886 (1st Cir. 1944) (construing Organic Act of Puerto Rico); Fairfield v. Foster, 25 Ariz. 146, 214 P. 319 (1923); Black and White Taxicab Co. v. Standard Oil Co., 25 Ariz. 381, 218 P. 139 (1923); Fergus v. Russel, 270 Ill. 304, 110 N.E. 130 (1915); Attorney General v. Administative Justice of Boston Municipal Court, Dept. of Trial Court, 384 Mass. 511, 427 N.E. 2d 735 (1981); In re Opinion of the Justice, 294 Mass. 616, 2 N.E. 2d 789 [1936]; Wood v. State Administrative Board, 255 Mich. 220, 238 N.W. 16 (1931); Miller v. Walley, 122 Miss. 521, 84 So. 466 (1920); State ex rel. Cason v. Bond, 495 S.W. 2d 385 (Mo. 1973); Mills v. Porter, 69 Mont. 325, 222 P. 428 (1924); State ex rel. Sego v. Kirkpatrick, 86 N.M. 359, 524 P. 975 (1974); State ex rel. Ruoff v. Rosellini, 55 Wash. 2d 554, 348 P. 2d 971 (1960); Cascade Tel. Co. v. State Tax Commission, 176 Wash. 616, 30 P. 2d 976 (1934); Spokane Grain & Fuel Co. v. Lyttaker, 59 Wash. 76, 109 P. 316 (1910).

81 86 N.M. 359, 524 P. 2d 975, 981 (1974).

82 Caldwell v. Meskill, 164 Conn. 299, 320 A. 2d 788 (1973); Welden v. Ray, 229 N.W. 2d 706 (Ia. 1985); In re Opinion of the Justices, 294 Mass. 616, 2 N.E. 2d 789 (1936); Brown v. Morris, 290 S.W. 2d 160 (Mo. 1956); State ex rel. Sego v. Kirkpatrick, 86 N.M. 359, 524 P. 2d 975 (1974). 83 495 S.W. 2d 385 (Mo. 1973).

« AnteriorContinuar »