Thirteenth Guam Legislature v. Bordallo

• Decision Date: 14 February 1977
• Docket Number: Civ. No. 76-038 WHO.
• Citation: 430 F. Supp. 405
• Parties: THIRTEENTH GUAM LEGISLATURE et al., Plaintiffs, v. Ricardo J. BORDALLO, the Governor of Guam, et al., Defendants.
• Court: U.S. District Court — District of Guam

430 F. Supp. 405

THIRTEENTH GUAM LEGISLATURE et al., Plaintiffs, v. Ricardo J. BORDALLO, the Governor of Guam, et al., Defendants.

Civ. No. 76-038 WHO.

District Court of Guam.

February 14, 1977.

James S. Brooks, Brooks & Klitzkie, P. C., J. Bradley Klemm, Klemm & Dear, Agana, Guam, for plaintiffs.

Charles H. Troutman, III, Atty. Gen., Government of Guam, Agana, Guam, for defendants.

OPINION AND ORDER

ORRICK, District Judge.

The Guamanian Legislature and several citizens employed by the government brought this suit for declaratory and injunctive relief to challenge the manner in which the Governor of Guam has applied his item veto power to the budget for the fiscal year ending June 30, 1977 (FY 1977). They contend that the Governor exceeded his executive function and assumed a creative role properly reserved to the Legislature by (1) in effect providing for nine government agencies for FY 1977 the budgetary sums appropriated for the fiscal year ending June 30, 1976 (FY 1976), after he had reduced to zero the FY 1977 appropriations for these departments; (2) reducing the amount of certain appropriations while not vetoing the items in toto; (3) reducing to zero the appropriations for the offices of Governor and Lieutenant Governor, which are departments specifically created by the Organic Act of Guam, 48 U.S.C. § 1422 (the Act); and (4) vetoing specific words, phrases, and conditions of appropriations.

Plaintiffs moved to restrain the Governor from reinstating legislative appropriations for FY 1976 and to require disbursement of the 1977 appropriations as proposed by the Legislature. Pursuant to Rule 65 of the Federal Rules of Civil Procedure, by order of this Court issued August 10, 1976, the hearing on the merits was advanced and consolidated with the hearing on the preliminary injunction.

For the reasons set forth below, the motion for an injunction is granted.

I.

On June 15, 1976, the Governor of Guam was presented with two appropriations bills for FY 1977. Substitute Bill 790, now Public Law 13-148, appropriated funds for the Territorial Highway Fund; Substitute Bill 791, now Public Law 13-149, appropriated funds for the executive and judicial branches of government. Dissatisfied with the legislative appropriations in these bills, the Governor reduced appropriations for nine government departments to zero. Included among these departments were the offices of the Governor and Lieutenant Governor, which are specifically created by the Act. Invoking the provisions of 48 U.S.C. § 1423j(b), which provides for the automatic reappropriation of the prior year's funds in the event the legislature fails to pass necessary appropriations bills for the current fiscal year, the Governor continued to finance expenditures for these nine departments based on the appropriations made for the preceding year. Since the Legislature had intended to scale down appropriations for these departments with its 1977 budget, the net effect of the Governor's actions was to maintain spending at $1,581,656 above the amount authorized by the Legislature for these departments for FY 1977.

In reviewing the two appropriations bills the Governor also deleted specific words and phrases which imposed conditions on the appropriations such as the reversion of sums to a general fund (P.L. 13-148, section 3, part 3) and the regulation of salary step increases for public employees (P.L. 13-148, section 1, part 6). Finally in reviewing the appropriation bills, in several instances the Governor scaled down, without eliminating in toto, sums appropriated for personal benefits under Substitute Bill 790 and for the University of Guam under Substitute Bill 791.

This Court holds that the Governor may not, by vetoing appropriations to government departments, reinstate the previous year's appropriations; nor may he selectively veto words, phrases, and conditions in a bill containing several items of appropriation. On the other hand, he is authorized to reduce, without eliminating, items of appropriation; similarly, he may properly veto to zero appropriations for Governor and Lieutenant Governor.

II.

While this decision is grounded primarily on analysis of Guam's veto provisions and case law construing similar statutes, it was not made without reference to the historical evolution of the veto power. This development both provides a context in which to examine the present problem and suggests the permissible bounds within which the power may operate.

A.

The concept of veto¹ power has its genesis in the ancient Roman constitutional scheme. As early as 494 B.C.,² tribunes of the plebeians were given intercessio, the right to veto any magisterial act, including the bringing of a bill before the assembly.³ Magistrates of equal or higher rank could likewise intercede against the acts of fellow magistrates.⁴

The use of the veto power can, in fact, be seen as an essential element of the Roman system of checks and balances. Rather than dividing the government into branches, the Romans granted political officials extensive authority but subjected their exercise of this power to veto by a colleague, higher official, or tribune of the plebs.⁵ Despite the strength of the veto power,⁶ however, it remained a decisively negative tool — it could not be used to compel affirmative action.⁷

In England, prior to the Norman conquest, legislative power resided in the King in Council.⁸ During the Middle Ages, this power gradually shifted to Parliament,⁹ and by the last years of Edward III's reign, most legislation originated in Parliament.¹⁰ While kings to the end of the Middle Ages sometimes modified statutes or ordinances in approving them, they did not attempt drastic revisions; moreover, Commons in 1414 secured the right to act on the amendments.¹¹

Despite the abandonment of the crown's creative legislative role, monarchs continued to use the veto to reject altogether bills passed by both houses of Parliament.¹² Coupled with this power was the notion that bills could not become acts or statutes unless approved by the king.¹³ Refusals were commonplace early in Parliament's evolution; often the king or queen in person would exercise the veto by reciting the customary phrase, "Le Roy s'avisera."¹⁴

Gradually, the veto power fell into disuse. William III exercised it only three times, each time to the displeasure of Parliament. Queen Anne, who exercised the veto once in 1707, was the last monarch to invoke it.¹⁵

In the American colonies, legislation was generally subject to two forms of absolute veto. First, the governor could refuse to assent to a bill.¹⁶ Furthermore, the crown could veto colonial legislation even after the governor had given his assent.¹⁷ Apparently, the king felt less hesitant to exercise his absolute veto abroad than to wield it at home. The Declaration of Independence rues the monarch's refusal to "Assent to Laws, the most wholesome and necessary for the public good."¹⁸

It thus comes as no surprise that Alexander Hamilton, in his defense of the proposed Constitution, was careful to distinguish the "absolute negative" available to the British monarch from the "qualified negative" of the President,¹⁹ whose veto may be overridden. Hamilton noted the long disuse of the power in England but emphasized that it was no less real than ever. He attributed reluctance of the crown to invoke the power to the development of alternative techniques of control (through influence-wielding or gaining parliamentary support) less repugnant to the country.²⁰

According to Article I, Section 7, Clause 2 of the Constitution, "Every bill²¹ which shall have passed the House of Representatives and the Senate" is to be presented to the President. The presidential veto may be overridden by a two-thirds vote of each House of Congress. Despite the availability of the override, the power of the veto is extensive, as attested by the fact that not one bill was passed over the presidential veto during the first fifty years of the republic.²²

Woodrow Wilson termed the veto the "most formidable prerogative" of the President²³ and determined that "the President is no greater than his prerogative of veto makes him; he is, in other words, powerful rather as a branch of the legislature than as the titular head of the Executive."²⁴

While the veto power may be seen as allowing the executive to intrude on the legislative branch, thus doing violence to the concept of separation of powers, both Woodrow Wilson and his earlier counterpart Alexander Hamilton suggested that the veto was necessary as a defense against unwarranted incursions by an all-powerful legislative branch. Hamilton suggested that the veto power was both theoretically and realistically necessary to preserve the separation of powers, to remedy the "insufficiency of a mere parchment delineation of the boundaries" of the executive and legislative branches, as well as to prevent enactment of improper laws.²⁵ Wilson noted the steady increase of legislative power at the expense of executive power, indicating that the veto is an essential defensive tool.²⁶

This emphasis on the self-defensive aspect of the veto underscores the idea that the veto is only a negative power. Were it capable of creative as well as destructive use, there would be no question that the executive would be able to usurp the legislative function and irreparably undermine rather than preserve the integrity of the separation of powers.

B.

The Constitution does not grant the President the power to veto parts of bills. This omission of an item veto power has been repeatedly criticized as forcing the President to choose between approving appropriations bills which contain unnecessary items of expenditure and vetoing otherwise laudable or necessary legislation.²⁷

The first such criticisms appeared around the time of the Civil War, when Congress began to add riders to appropriations bills.²⁸ Reflecting the dissatisfaction with the limitations of the...