tions of money." "199 In that same year, a Missouri court examined the validity of five sections of an appropriation bill in which the governor had struck certain language regarding the purpose of appropriation items. He did not veto or reduce the appropriated sums. The court held that he exceeded his constitutional authority by striking the legislative purpose.200

A year later, in New Mexico, the court upheld two occasions on which the governor deleted language but the court rejected five of his vetoes because they represented valid legislative conditions and limitations. Again the judiciary probed for a test that would balance legislative and executive interests:

The Legislative may not properly abridge that power [of item veto] by subtle drafting of conditions, limitations or restrictions upon appropriations, and the Governor may not properly distort legislative appropriations or arrogate unto himself the power of making appropriations by carefully striking words, phrases or sentences from an item or part of an appropriation.201

The power of partial veto is the power to disapprove. This is a negative power, or a power to delete or destroy a part of an 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 deletions. . . . Thus, a partial veto must be so exercised that it eliminates or destroys the whole of an item or part and does not distort the legislative intent, and in effect create legislation inconsistent with that enacted by the Legislature, by the careful striking of words, phrases, clauses, or conditions.202

State courts continued to pound away at the condition/appropriation issue. In 1975 a West Virginia court held that the governor was empowered to veto unauthorized amendments (nonmonetary amounts) which the legislature had added to its own budget. The court concluded that the constitutional phrase "items or part of items" refers to more than fiscal units; the governor's power extends to conditions and restrictions. But the governor could not delete conditions to the point where he had an appropriation without the purpose enunciated by the legislature. 203

Two other decisions in 1975 focused on the governor's authority to strike conditions. In Ohio the courts upheld the governor's veto of a proviso in an appropriation bill, treating the proviso as an "item." 204 But a court in Iowa held that the governor could not item veto qualifications on appropriations without also vetoing the appropriation. The qualifications in this case were not separate, severable provisions. The court cautioned that some qualifications might not be within the legislative domain and would invade the governor's power. 205 Elsewhere in the opinion the court stressed the need for executive-legislative balance: "The legislative device of a lump-sum appropriation with subdivisions unconstitutionally invades the item-veto authority of a governor, just as the gubernatorial device of the veto of a qualification on an appropriation unconstitutionally invades the lawmaking authority of a legislative." 206

203 State ex rel. Brother v. Blankenship, 214 S.E. 2d 467, 484 (W.Va. 1975). 204 Elmhurst Convalescent Center, Inc. v. Bates, 348 N.E. 2d 151 (Ohio 1975). 205 Welden v. Ray, 229 N.W. 2d 706, 710 (Iowa 1975).

206 Id. at 714.

Five other cases in the 1970's explored the application of item vetoes to conditions and qualifications. In one case the governor of Florida had vetoed a proviso in an appropriation bill. Without deciding the constitutionality of his item veto, the court held in 1976 that the proviso violated the state constitution's requirement regarding the issuance of state bonds.207 In 1976 a Virginia court denied petitioners' claim that the governor's item veto was invalid because the funds disapproved were "tied up" as part of a unified transit system. Petitioners argued that the various funds were part of one package and that the legislature had appropriated the various funds on the condition that the system be implemented as a single and integrated unit. The court held that the vetoed funds constituted an "item" and could be vetoed by the governor.208

A Louisiana court in 1977 ruled that the governor could not veto a condition without also vetoing the appropriation. The inadequacy of this general formula was underscored when the court noted that "inappropriate provisions" inserted by the legislature in an appropriation bill are "items" subject to the governor's item-veto authority. Free-standing provisions, unconnected to an appropriation, can be vetoed.209 The test of "appropriateness" appears to invite additional litigation by interested parties. In 1978 the Idaho courts declared that the governor was without authority to veto conditions in an appropriation bill.210 A year later the North Dakota courts ruled that the governor may not item veto a section that leaves the remainder of the bill incomplete and unworkable.211

The cases on conditions and severability continued to pile up in the 1980s. In 1980 the Washington judiciary upheld the governor's veto of approximately forty-five words of a section, which the court decided constituted a discrete subject, even though the constitution states that the governor "may not object to less than an entire section." The court noted that the definition of "section" is a judicial, not a legislative, question.212

The Florida governor's veto of conditions led to a 1968 constitutional amendment which prohibited the governor from vetoing any qualification or restriction without also vetoing the appropriation item related to it. The constitutional amendment was not self-executing, however; interpretations would be needed for "qualifications" and "restrictions." A case decided in 1980 concerned six provisions vetoed by the governor. The court upheld some of the vetoes by interpreting a few qualifications as specific appropriations subject to item veto. It struck down other item vetoes because they were qualifications and restrictions barred by the constitution. Still other provisions were declared invalid because they violated various statutes or other constitutional provisions. The court voiced its weariness, and wariness, of adjudicating disputes over the item. veto: "We close with the admonition that it would be a serious mistake to interpret our acceptance of jurisdiction in this cause as a general willingness to thrust the Court into the political arena and

207 Division of Bond Finance v. Smathers, 337 So. 2d 805 (Fla. 1976).

208 Brault v. Holleman, 230 S.E. 2d 238 (Va. 1976).

209 Henry v. Edwards, 346 So. 2d 153 (La. 1977).

210 Cenarrusa v. Andrus, 99 Idaho 404 (1978).

211 State ex rel. v. Olson, 286 N.W. 2d 262 (N.D. 1979).

212 Fain v. Chapman, 619 P.2d 353 (Wash. 1980).

referee on a biennial basis the assertions of power of the executive and legislative branches in relation to the appropriations act." 213 But the court's difficulty in defining "appropriate" and "inappropriate" qualifications and restrictions may simply encourage future litigation.

A 1980 case in Washington demonstrates the leverage of an item veto in strengthening the governor. The legislature had passed legislation which anticipated elections to fill new judicial positions. By striking a key section, an action which the court upheld, the governor was able to use his appointing power to fill the "vacancies." The court satisfied itself that the veto "was used destructively without affecting the basic legislation." 214 A dissenting judge said "it now seems to be impossible for the legislature ever to require the initial election of judges. This can hardly be what the framers of the constitution contemplated." 215

Four decisions in 1981 analyzed other aspects of the striking of conditions, language, and provisos. The Massachusetts courts allowed the governor to treat as an "item" any separable provision attached to the general appropriation bill.216 Of course this begs the question of what is "separable." In that same year the Massachusetts judiciary ruled that the governor may disapprove certain restrictive words and phrases imposed upon an appropriation without disapproving or reducing the appropriation item. While upholding five such item vetoes, the court declared one invalid because the restrictions were inseparable from the item.217 A third Massachusetts case decided that the governor could veto certain provisions in an appropriation bill because they were not considered conditions or restrictions on appropriated funds. The provisions were "separable" items subject to veto.218 These decisions put the courts in the position of reviewing each new item veto of language in an appropriation bill to determine questions of separability.

In a Washington case in 1981, the governor chose to veto an entire sentence rather than strike the word "not," which he considered an obvious drafting error committed by the legislature. He doubted his constitutional authority to correct the sentence by deleting a word. 219

Finally, a complex New Jersey case in 1984 offered a broad interpretation of the governor's use of line-item veto power, including the striking of conditions. The state constitution supports a broad construction because it allows the governor to object "in whole or in part" to any item.220

Nonappropriation bills

It is a misconception to believe that the governor can control state spending simply by invoking his item-veto authority on appropriation bills. State governments employ a number of different

213 Brown v. Firestone, 382 So.2d 654, 671 (Fla. 1980).

214 Hallin v. Trent, 619 P.2d 357, 360 (Wash. 1980). 215 Id. at 363.

216 Opinion of the Justices, 384 Mass. 820 (1981).

217 Opinion of the Justices, 384 Mass. 828 (1981).

218 Attorney General v. Administrative Justice, 384 Mass. 511 (1981). 219 State v. Brasel, 623 P.2d 696 (Wash. 1981).

220 Karcher v. Kean, 479 A.2d 403 (N.J. 1984).

funds to finance local activities, many of them falling outside the customary appropriation bill. The availability of such funds, and the legislature's potential of creating new ones, weakens the governor's item-veto power.

A case in Montana in 1975 illustrates the variety of state funding practices. The court noted that in previous rulings it had limited the scope of "appropriation" to the general fund, which covered the basic operating costs of the state. But as a result of statutory changes as well as the 1972 Montana constitution, the court found it necessary to reexamine the definition of appropriation. The court now extended appropriation to cover the general fund, the earmarked revenue fund, and most of the federal and private revenue fund. Excluded from this new definition of appropriation were six funds: the sinking fund, the federal and private grant clearance fund, bond proceeds and the insurance clearance fund, revolving funds, trust and legacy funds, and agency funds.221

In 1977 a court in Alaska held that the governor's exercise of item veto to disapprove a general obligation bond authorization was unconstitutional since a bond authorization is not an "appropriation." 222 A dissenting judge concluded that the debate at the constitutional convention on the item veto "sheds little light on the subject." The judge said that it was "apparent that the delegates never foresaw the problems" involved in defining "appropriation' or understood interactions between the debt financing provision and the governor's veto.223

In upholding the governor's item veto, a New Jersey court denied that a previous statute was either self-executing or that it constituted an appropriation. The item concerned revenues from the transfer inheritance tax. The court refused to treat transfer inheritance tax receipts as "a separate fund not subject to constitutional strictures or appropriations." 224

The linkage between the item veto and funding mechanisms also came up in other New Jersey cases. In one, several municipalities and counties complained that the governor's item vetoes in the general appropriation bill deprived them of the disbursement of state revenues that had been authorized by previous statutes. The court upheld the governor's right to item veto non-appropriations. The court noted that the purpose of a general appropriation bill was to remedy the piecemeal system of state financing that had given counties automatic access to dedicated revenues. 225 The court also pointed out that statutes calling for the disbursements of tax revenues, such as through the sales and use tax, the transfer inheritance tax, the bus franchise replacement tax, and the expenditure of state funds for county highways, "do not constitute legislative appropriations in and of themselves." 226

Three years later a New Jersey court ruled that the governor could not use his item veto against a nonappropriation item, even when he regards the section to be unconstitutional. It is for the ju

diciary to declare such matter unconstitutional, which the court did in this case. However, the court said that his line-item veto power extended to a bill dealing with the distribution of franchise and gross receipts taxes. Appellants claimed that the apportionment formula for these receipts did not constitute an item of appropriation, but the court said that the tax revenues were state appropriations subject to the governor's item-veto power.227 A year later, the New Jersey judiciary again ruled that item vetoes could be used to reduce the amount of state aid to the municipalities from the utilities franchise and gross receipts taxes.228

These intricacies of state financing illustrate how legislatures can blunt the governor's item-veto by funding activities indirectly. In 1970 a Montana court said that the legislature may not pass an appropriation bill that contains a separate section which restricts the distribution of appropriated funds. Such a device would impair the governor's line-item veto power.229 Two years later a court in Ohio ruled that the governor's item veto extended to a section that did not contain a specific appropriation. Instead, it was a reimbursement procedure to compensate legal counsel. The legislature had funded an activity indirectly that could have been covered directly through an appropriation.230 In 1975 an Illinois court decided a case involving three teachers' pension plans that the teachers' union claimed were compulsory in nature and therefore immune from the governor's power to veto or reduce items. The court rejected this claim.231

In two decisions in 1977 and 1981, the Massachusetts courts protected the scope of the governor's item veto. In the first case, the legislature in effect neutralized the item-veto power by resorting to a two-step process: enacting a noncontroversial appropriation and then later enacting a controversial restriction on the appropriation. The court allowed the governor to item veto the latter, even though it was not technically an appropriation.232 In the second decision, the court determined that a proposed legislative scheme, requiring an executive officer to submit to the legislature for its approval certain changes in benefit programs, would unconstitutionally infringe on the governor's item-veto power. The procedure attempted to circumvent the governor's office. 233

Many decisions were handed down to limit the use of item vetoes. In 1973 the West Virginia judiciary said that the governor had no authority to reduce to zero the funds for state schools. His action violated the constitution's requirement for a system of free schools. 234 In that same year a Connecticut court held invalid a governor's veto of two sections of an appropriation bill because the vetoed sections were not items of appropriation. One of the sections relied on a revolving fund which did not depend on further appropriations.235 In 1975 a Texas court held that the governor may not

227 In re Karcher, 462 A.2d 1273, 1284-85 (N.J. 1983). 228 Karcher v. Kean, 479 A. 2d 404, 409 (N.J. 1984).

229 Helena v. Omholt, 155 Mont. 212 (1970).

230 State ex rel. Brown v. Ferguson, 32 Ohio St.2d 245 (1972).

231 People ex rel. I.F.T. v. Lindberg, 60 Ill.2d 266 (1975).

232 Opinion of the Justices, 373 Mass. 911 (1977).

233 Opinion of the Justices, 384 Mass. 840 (1981).

234 State ex rel. Brotherton v. Blankenship, 207 S.E.2d 421 (W.Va. 1973). 235 Caldwell v. Meskill, 164 Conn. 299 (1973).