Rush v. Ray

Decision Date13 February 1985
Docket NumberNo. 83-1191,83-1191
Citation362 N.W.2d 479
PartiesRobert R. RUSH, State Senator and Member of the 68th General Assembly of Iowa, Appellant, v. Robert D. RAY, Governor, State of Iowa, Appellee.
CourtIowa Supreme Court

James M. Redmond and Faith O'Reilly of Babich, Bennett & Nickerson, Des Moines, for appellant.

Edgar H. Bittle and Edward W. Remsburg of Ahlers, Cooney, Dorweiler, Haynie, Smith & Allbee, Des Moines, for appellee.

Considered en banc.

SCHULTZ, Justice.

In this appeal a legislator challenges the legality of the Governor's action exercising his item veto power. The basic issue is whether use of the governor's item veto power to eliminate a provision in an appropriation bill which prohibits the expenditure or transfer of appropriated funds from one department of state government to another is proper. The trial court held that such a veto is proper. We conclude such a provision is a qualification or limitation on the appropriation, rather than an item, and reverse.

During the 68th session of the Iowa General Assembly, the legislature enacted five appropriation bills for specific purposes. The bills in question are senate files 471, 497 and 2241 and house files 764 and 2580. Each bill contains a provision that either provided "notwithstanding section eight point thirty-nine (8.39) of the Code, funds appropriated by this Act shall not be subject to transfer or expenditure for any purpose other than the purposes specified" or recited a phrase similar in language and content.

Governor Robert D. Ray exercised his item veto power to excise the quoted and similar phrases from each act. The legislature did not override the Governor's item vetoes. We find it unnecessary to set out details concerning each specific bill or give the Governor's message concerning the reasons for the individual vetoes. Our opinion concerning the wisdom of either the original enactments or the vetoes does not enter into our judicial evaluation of the legality of the Governor's action.

The constitutional provision which gives the governor item veto authority provides in pertinent part:

The governor may approve appropriation bills in whole or in part and may disapprove any item of an appropriation bill; and the part approved shall become a law. Any item of an appropriation bill disapproved by the governor shall be returned, ... Any such item of an appropriation bill may be enacted into law notwithstanding the governor's objections, in the same manner as provided for other bills.

Iowa Const. art. III, § 16 (1857, amended 1968).

On September 18, 1980, Robert Rush, a state senator, filed an action in district court against the Governor challenging the vetoes. Earlier, on appeal, we reversed the dismissal of the action on mootness grounds because of its public importance. Rush v. Ray, 332 N.W.2d 325 (Iowa 1983). Following remand, the parties moved for summary judgment. The district court granted the Governor's motion and denied appellant's motion; this ruling is the subject of the appeal.

Appellant asserts that the vetoed portions of these five acts are provisos or limitations, not items; thus, they were not subject to the governor's item veto power. On the other hand, the Governor asserts that the language stricken from the five appropriation bills constituted distinct, severable "items" within the meaning of article III, section 16 of the Iowa Constitution, that could be removed from the appropriation bills by the use of the item veto.

We have twice passed on the legality of the governor's exercise of the item veto power. On each occasion, we discussed whether the vetoed portion of the legislative bill was a condition or qualification of the appropriation, not subject to veto, or an item, properly deleted. Welden v. Ray, 229 N.W.2d 706, 710 (Iowa 1975); State ex rel. Turner v. Iowa State Highway Commission, 186 N.W.2d 141, 151 (Iowa 1971). In these cases we have extensively discussed the history and phraseology of our constitutional item veto provision and decisions from other jurisdictions interpreting and construing similar language and provisions. We need not repeat these discussions at length, but consider only the general principles announced.

The problem presented in Turner arose when the legislature appropriated funds to the primary road fund, and the governor vetoed a portion of the bill that additionally prohibited removing certain established offices from their present location. 186 N.W.2d at 143. When this item veto was challenged, we upheld the veto. We established certain principles to be used in interpreting the term "item" and distinguished items, which are subject to veto, from provisos or conditions inseparably connected to an appropriation, which are not subject to veto. We approved another court's statement that an "item" is "something that may be taken out of a bill without affecting its other purposes and provisions. It is something that can be lifted bodily from it rather than cut out. No damage can be done to the surrounding legislative tissue, nor should any scar tissue result therefrom." Id. at 151 (quoting Commonwealth v. Dodson, 176 Va. 281, 290, 11 S.E.2d 120, 124 (1940)). While we did not provide a specific definition of those provisos or conditions which are not subject to veto, we did quote the following language: "It follows conclusively that where the veto power is attempted to be exercised to object to ... language qualifying an appropriation or directing the method of its uses, he exceeds the constitutional authority vested in him...." Id. 186 N.W.2d at 150 (quoting Fulmore v. Lane, 104 Tex. 499, 512, 140 S.W. 405, 412 (1911) ). While we surmised that the legislature may have intended to make the challenged language a limitation or proviso on the expenditure of funds, we held the act as drawn and enacted did not restrict the use of the appropriated funds for the purposes and uses referred to in the deleted language. We held the deleted language was an item rather than a qualification.

When the governor's authority to exercise his item veto power was challenged in Welden, we reached a different result than in Turner, holding that the attempted vetoes by the governor were beyond the scope of his constitutional power. 229 N.W.2d at 715 (two justices dissenting). The vetoed items in the appropriation bills provided limitations on how the money appropriated for each department was to be spent. Specifically, these provisions included limitations on the number of employees in a department, limitations on the percent of the appropriation that could be used for salaries, prohibition against construction of buildings, prohibition against spending beyond budget, and elimination of matching fund grants if the federal funds were discontinued--with the further provision that unused state matching funds would revert to the general fund. We held that these clauses were lawful qualifications upon the respective appropriations rather than separate, severable provisions.

In Welden we again approved the use of the severability test announced in Turner, 186 N.W.2d at 151, to determine whether language constitutes an item. Welden, 229 N.W.2d at 714. We further discussed and explained the nature of the governor's role in the separation of powers and the prohibition against using the veto to destroy the remaining legislative provision by altering the legislative intent. We quoted a law review article with approval as follows:

It is obvious that the item veto power does not contemplate striking out conditions and restrictions alone as items, for that would be affirmative legislation, whereas the governor's veto power is a strictly negative power, not a creative power.

Id. at 713 (quoting Note, Item Veto Amendment to the Iowa Constitution, 18 Drake L.Rev. 245, 249-50 (1969)). We also quoted a New Mexico ruling that stated:

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.... 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 sentences.

Id. at 711 (quoting State ex rel. Sego v. Kirkpatrick, 86 N.M. 359, 365, 524 P.2d 975, 981 (1974)). Additionally, we referred to language from a Virginia case as follows:

We think it plain that the veto power does not carry with it power to strike out conditions or restrictions. That would be legislation. Plainly, money devoted to one purpose can not be used for another, and it is equally plain that power to impose conditions before it can become available is legislation.

Id. at 712 (quoting Commonwealth v. Dodson, 176 Va. 281, 296, 11 S.E.2d 120, 127 (1940)). The message of these cases and others reviewed in Welden is that the governor's power is a negative one that does not allow him to legislate by striking qualifications in a manner which distorts legislative intent. Thus, he cannot strike a provision that would divert money appropriated by the legislature for one purpose so that it may be used for another. Finally, we held in Welden that the governor's veto of a legislatively-imposed qualification upon an appropriation must also include a veto of the appropriation. Id. at 713.

In the present case the trial court determined that the vetoed portion of each appropriation bill did not change the basic purpose of the legislation; thus, the provision is properly considered a severable item rather than a legislatively-imposed condition. We agree with appellant's contention that "the effect of this veto was to make money from the treasury available for purposes not authorized by the legislation as it was originally written, contrary to the clear...

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