Colorado General Assembly v. Lamm, 84SA79

• Citation: 704 P.2d 1371
• Case Date: August 26, 1985
• Court: Supreme Court of Colorado

Page 1371

704 P.2d 1371

The COLORADO GENERAL ASSEMBLY, Plaintiff-Appellee, v. The Honorable Richard D. LAMM, Governor, Defendant-Appellant.

No. 84SA79.

Supreme Court of Colorado,

En Banc.

Aug. 26, 1985.

Rehearing Denied Sept. 23, 1985.

Welborn, Dufford, Brown & Tooley, Philip G. Dufford, Gregory A. Ruegsegger, Douglas G. Brown, Rebecca C. Lennahan, William A. Hobbs, Margaret C. Makar, Denver, for plaintiff-appellee.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Denver, for defendant-appellant.

LOHR, Justice.

This case requires us to determine the constitutional validity of the governor's vetoes of certain provisions in the general appropriation bill for fiscal year 1982 and in a supplemental appropriation bill for fiscal year 1981. We also are presented with the question of the constitutionality of the portions of the bills purportedly vetoed. The district court determined that the vetoes, which deleted legislative specifications of the revenue sources from which funding for certain appropriations was to be derived, did not relate to entire "items" and so were not within the scope of the governor's power under section 11 of Article IV of the Colorado Constitution to veto "distinct items" in an appropriation bill. The district court also ruled that the restrictions on revenue sources for appropriations did not violate separation of powers principles by impermissibly intruding on the administrative functions of the executive, but were enacted in valid exercise of the general assembly's plenary power over appropriations. We affirm the district court judgment sustaining the legislative enactments and invalidating the challenged vetoes.

I.

In 1982, the General Assembly of the State of Colorado enacted House Bill No. 1284 (the 1982 long bill) appropriating money to provide for the payment of the ordinary operating costs of the executive, legislative, and judicial departments of the state for the fiscal year beginning July 1, 1982.

Ch. 1, Sec. 1, 1982 Colo.Sess.Laws 1. The 1982 long bill consisted of a lengthy and detailed list of authorized expenditures for the various operating costs of the three branches of government, together with a designation of the amount of each authorized expenditure to be derived from the general fund, cash funds, and federal funds. Cash funds, to which this appeal relates, are revenues obtained from all non-general fund sources and all nondirect federal fund sources. 1982 long bill, section 2(e). They include, for example, moneys received by a state agency as a result of its activities, such as performance of services for third parties and sale of licenses and permits

In a number of instances in the 1982 long bill, the legislature particularized the source or sources from which cash fund appropriations were to be obtained. For instance, in appropriating $14,916,537 for family health services to be provided by the department of health, the legislature specified that $1,730,863 was to come from cash funds and, in turn, listed five sources of those cash funds and designated the respective amount to be obtained from each source. In some appropriations, cash funds represented only a portion of the total moneys designated for a specified purpose; amounts to be derived from the general fund, federal funds, or both, were also specified.

On May 6, 1982, Hon. Richard D. Lamm, the Governor of the State of Colorado, approved the 1982 long bill with some exceptions. The governor purported to veto certain portions of the 1982 long bill designating the sources from which cash funding was to be obtained. See Appendix. In his May 6 veto message to the Colorado House of Representatives explaining his actions with respect to the 1982 long bill, the governor took the position that by designating the sources for cash funding the legislature was attempting to administer the appropriations and thus was impairing executive flexibility to determine the sources of cash to be utilized to meet the cash funds appropriations.

In 1982, the Colorado General Assembly also enacted House Bill No. 1261 (the 1981 supplemental appropriation bill) to accomplish certain changes in appropriations previously adopted for fiscal year 1981. Ch. 2, sec. 1, 1982 Colo.Sess.Laws 96. One such change was the reduction from $4,505,659 to $2,493,125 of the amount of cash funds to be obtained from the highway users tax fund for application toward various appropriations for the division of accounts and control in the department of administration. The governor purportedly vetoed this change by lining through the entire sentence that identified the source of cash funds for this appropriation as the highway users tax fund. See Appendix. In his April 2, 1982, veto message to the house of representatives, the governor explained that a higher limit on cash funds to be supplied from the highway users tax fund was justified.

The house of representatives attempted unsuccessfully to override the governor's veto of one portion of the 1982 long bill and the veto of the part of the 1981 supplemental appropriation bill at issue here. See Colo. Const. art. IV, §§ 11, 12. The general assembly did not seek to override any of the other vetoes at issue in this litigation.

In November of 1982, the Colorado General Assembly brought suit in Denver District Court seeking a declaratory judgment that the governor's vetoes of certain provisions of the 1982 long bill and the 1981 supplemental appropriation bill were invalid because they did not encompass complete "items" and therefore were not within the power of the governor to disapprove "distinct items" in an appropriation bill. See Colo. Const. art. IV, § 12. The defendants, including the governor, moved to dismiss the complaint on several grounds, including failure of the general assembly to obtain the governor's approval of the legislative resolution authorizing the lawsuit as allegedly required by section 39 of Article V of the Colorado Constitution, failure of the general assembly to override the governor's

vetoes, absence of any justiciable issues, invalidity of the legislative designations of cash fund sources as violative of the doctrine of separation of powers established by Article III of the Colorado Constitution, invalidity of such designations as substantive legislation improperly included in an appropriation bill in contravention of section 32 of Article V of the Colorado Constitution, and validity of the challenged vetoes as proper item vetoes under Article IV, section 12, of the state constitution. ¹ The general assembly later moved for summary judgment

The district court held a hearing and denied the motion to dismiss to the extent that it was based on failure to obtain the governor's approval of the resolution authorizing the lawsuit, failure of the legislature to override the vetoes, and absence of justiciable issues, and reserved ruling on the motion to the extent that it was based on other grounds. Thereafter, on January 17, 1984, the district court granted partial summary judgment for the general assembly, ruling that the challenged vetoes did not relate to entire items and so were not within the governor's constitutional veto power under section 12 of Article IV of the Colorado Constitution, that the designation of cash fund sources for appropriations was within the legislature's authority and did not violate separation of powers requirements, and that the other grounds for dismissal reserved for decision in the previous

ruling on the governor's motion to dismiss were not meritorious. ²

The governor appealed to this court and now asserts three grounds for reversal. First, he contends that the legislature lacks standing to challenge the vetoes, and that in any event such challenges are not justiciable. Next, the governor argues that the legislative conditions specifying the sources of cash funding for appropriations are unconstitutional, both because they violate the separation of powers doctrine by intruding on the executive's authority to administer appropriations and because they are contrary to the constitutional mandate that provisions of substantive law not be included in an appropriation bill. Finally, the governor urges that the vetoes are effective because they are within the scope of his item veto power under section 12 of Article IV of the Colorado Constitution. Moreover, the governor takes the position that we should initially determine the constitutionality of the legislative specifications of cash funding sources and should not reach the issue of the validity of the vetoes unless we first find the challenged specifications constitutionally sufficient. We first address the questions of standing and justiciability, then consider the sequence in which the other issues should be determined, and lastly proceed to resolve them.

II.

The governor asserts that the general assembly lacks standing to challenge the vetoes at issue here. The principal bases ³ for this position are two. First, the legislature sustained the vetoes by failing to repass the measures over the governor's vetoes. Second, the veto power is a legislative power and represents a constitutionally-created exception to the general assembly's legislative power; therefore, the general assembly has no legal interest entitled to protection with respect to the governor's exercise of the veto power. Additionally, the governor asserts that the question of veto validity is a political question and is not justiciable. We reject all these arguments.

In Colorado General Assembly v. Lamm, 700 P.2d 508 (Colo.1985), we considered the standing of the general assembly to challenge transfers of funds from the departments of the executive branch of government for which they were appropriated to other executive departments. The general assembly took the position that the transfers infringed upon its power of appropriation in contravention of Article III of the...