Wash. State Legislature v. Inslee

Decision Date10 November 2021
Docket NumberNO. 98835-8,98835-8
Citation498 P.3d 496
Parties WASHINGTON STATE LEGISLATURE, Respondent, v. The Honorable Jay INSLEE, in his official capacity as Governor of the State of Washington, Appellant.
CourtWashington Supreme Court

Alicia O. Young, Office of the Attorney General, P.O. Box 40100, Olympia, WA, 98504-0100, Tera Marie Heintz, Office of the Attorney General, 1125 Washington Street Se Box 40100, Olympia, WA, 98504-0001, for Appellant.

Jeffrey Todd Even, Office of the Attorney General, P.O. Box 40100, 1125 Washington St. Se Olympia, WA, 98504-0100, Zachary Pekelis Jones, Pacifica Law Group, 1191 2nd Ave. Ste. 2000, Seattle, WA, 98101-3404, Lauryn Kay Fraas, Office of the Attorney General, 800 Fifth Ave. Ste. 2000, Seattle, WA, 98104-3188, for Respondent.


¶ 1 Washington's constitution permits the governor to veto whole bills, "entire section[s]" of bills, and "appropriation items." WASH. CONST. art. III, § 12. In this case, we are asked to determine whether Governor Inslee exceeded this constitutional authority when he vetoed a single sentence that appeared seven times in various portions of section 220 of ESHB 1160,1 the 2019 transportation appropriations bill. Section 220 appropriated moneys to the Washington State Department of Transportation (WSDOT) for public transportation-related grants. The vetoed sentence (the "fuel type condition") barred WSDOT from considering vehicle fuel type as a factor in the grant selection process.

¶ 2 Governor Inslee argues that the fuel type condition constituted a complete "appropriation item" and that such complete appropriation items are subject to gubernatorial veto. In the alternative, he argues that the fuel type condition violated article II, section 19 ’s single subject and subject-in-title requirements and article II, section 37 ’s bar on amendment without setting forth the amended statute in full. The legislature counters that the fuel type condition did not constitute a complete appropriation item and, hence, that it was not subject to gubernatorial veto; it also argues that the fuel type condition complied with article II, sections 19 and 37. The trial court entered summary judgment orders in favor of the legislature.

¶ 3 Like all cases involving the veto power, "[t]he importance of the case before us is that it deals directly with one of the cardinal and fundamental principles of the American constitutional system, both state and federal: the separation of powers doctrine." Wash. State Motorcycle Dealers Ass'n v. State , 111 Wash.2d 667, 674, 763 P.2d 442 (1988). It requires this court to step into its "historical, constitutional role" to "delineate and maintain the proper constitutional balance between the coordinate branches of our State government with respect to the veto." Wash. State Legislature v. Lowry , 131 Wash.2d 309, 313, 931 P.2d 885 (1997). And it requires us to embrace our duty, as the judiciary, to " "say what the law is," even when that interpretation serves as a check on the activities of another branch." In re Salary of Juvenile Dir. , 87 Wash.2d 232, 241, 552 P.2d 163 (1976) (citations omitted) (quoting United States v. Nixon , 418 U.S. 683, 703, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974) (quoting Marbury v. Madison , 5 U.S. (1 Cranch) 137, 176, 2 L. Ed. 60 (1803) )).

¶ 4 We now affirm.


¶ 5 In 2019, the Washington Legislature passed ESHB 1160, titled "AN ACT Relating to transportation funding and appropriations." In section 220, the legislature appropriated moneys to WSDOT to issue transportation-related grants, subject to a number of "conditions and limitations." Section 220 first lists six accounts and the amount of moneys appropriated from each. In the 15 numbered paragraphs that follow, the bill specifies that certain amounts of the total appropriation must be used "solely" for nine specific grant programs. ESHB 1160. With regard to seven of those nine grant programs, the bill mandates that "Fuel type may not be a factor in the grant selection process." LAWS OF 2019, ch. 416, § 220; ESHB 1160, § 220(1)(a), (b), (2), (3)(a), (5)(a), (7), (9) (the "fuel type condition"). Governor Inslee vetoed this fuel type condition each of the seven times it appeared.

¶ 6 ESHB 1160, as enacted by the legislature and partially vetoed by the governor, became effective May 21, 2019. The legislature filed a declaratory judgment action seeking declarations that the governor's vetoes exceeded his veto authority under article III, section 12 of the Washington Constitution and that the legislature's inclusion of those fuel type conditions in section 220 complied with the Washington Constitution. Clerk's Papers (CP) at 1 (Compl. for Declaratory J.). The governor responded that his veto was valid and constitutional, and counterclaimed that even if his veto was invalid, the court should still strike the fuel type condition because it violates article II, sections 19 and 37 of the state constitution. CP at 9-10 (Answer to Compl. for Declaratory J.).

¶ 7 On cross motions for summary judgment, the superior court ruled for the legislature. CP at 187 (Order Granting Legislature's Mot. for Summ. J. & Denying Governor's Mot. for Summ. J.). It concluded that the vetoes exceeded the governor's article III, section 12 authority because the fuel type condition was not a complete "separate appropriation item[ ]." Verbatim Report of Proceedings (Jun. 19, 2020) (VRP) at 28. It also concluded that the fuel type condition did not violate article II, sections 19 and 37 because it was "not substantive legislation or law and does not directly conflict with existing statutes." Id. at 28-29. Governor Inslee appealed directly to this court, and we retained the case for decision.


¶ 8 We review a trial court's orders on summary judgment de novo. Enter. Leasing, Inc. v. City of Tacoma , 139 Wash.2d 546, 551, 988 P.2d 961 (1999). "Where, as here, the parties do not dispute the material facts, this Court will affirm an order on summary judgment if the moving party is entitled to judgment as a matter of law." Id. at 551-52, 988 P.2d 961. This case raises issues of constitutional interpretation, which we also review de novo. State v. MacDonald , 183 Wash.2d 1, 8, 346 P.3d 748 (2015).


¶ 9 The state constitution empowers the governor to veto whole bills, "entire section[s]" of bills, and "appropriation items." WASH. CONST. art. III, § 12. It is clear that the sentence "Fuel type may not be a factor in the grant selection process" does not comprise a whole bill or an "entire section" of a bill. Id. As a result, the governor's veto of this sentence is valid only if the sentence comprised a whole "appropriation item." Id.

¶ 10 We have observed that "[t]here is no more difficult and controversial aspect of relations between our branches of government than the Governor's use of the veto." Lowry , 131 Wash.2d at 312, 931 P.2d 885. Because of the magnitude of the interests at stake, "[t]he [Washington] Supreme Court must not abdicate its constitutional duty to act as an impartial referee of constitutional disputes between the legislative and executive branches of government in cases involving the gubernatorial veto." Id . at 330-31, 931 P.2d 885. We begin with a brief overview of the constitutional history of the gubernatorial veto power in our state.

A. The history of the constitutional veto power shows a clear intent to carefully limit this extraordinary power

¶ 11 Since the 1889 adoption of the state constitution, article III, section 12 has granted the governor the power to veto entire bills, subject to override by a two-thirds majority of the legislature.2 In addition to this general veto power, the constitution has also granted the governor a "partial veto" power, which permits him or her to veto smaller portions of bills, subject to the same two-thirds legislative override. The original text of the 1889 Washington State Constitution article III, section 12 read, in relevant part:

If any bill presented to the Governor contain several sections or items , he may object to one or more sections or items while approving other portions of the bill.

(Emphasis added.)

¶ 12 This partial veto power serves two important purposes. First, it "is designed to permit the Governor to disentangle issues so they will be considered on their individual merits," consistent with the other constitutional checks on legislative "logrolling." Lowry , 131 Wash.2d at 316-17, 931 P.2d 885 (citing Stephen Masciocchi, The Item Veto Power in Washington , 64 WASH. L. REV 891, 892-93 & n.13 (1989) ). Second, the item veto in particular permits the governor to "excise unneeded ‘pork barrel’ programs or projects from an appropriations bill" to "achieve fiscal constraint and to advance statewide rather than parochial fiscal interests." Id . at 316, 931 P.2d 885.

¶ 13 When the governor exercises this veto power, he or she acts in a limited legislative capacity. Wash. State Grange v. Locke , 153 Wash.2d 475, 486-87, 105 P.3d 9 (2005) (citing Hallin v. Trent , 94 Wash.2d 671, 677, 619 P.2d 357 (1980) ; Wash. Ass'n of Apt. Ass'ns v. Evans , 88 Wash.2d 563, 565, 564 P.2d 788 (1977) ). This has led to conflicts between the legislature and the executive over the scope of the veto power. In "the 1950s, 1960s, and early 1970s, governors increasingly vetoed items that were less than entire sections of nonappropriation bills"—sometimes excising portions as small as clauses within sentences.3 Id. (citing Motorcycle Dealers , 111 Wash.2d at 671-72, 763 P.2d 442 ). This practice "resulted in part from the decisions of this court in Cascade Tel. Co. v. State Tax Comm'n, 176 Wash. 616, 30 P.2d 976 (1934) (holding that a section in the original Const. art. 3, § 12 would be construed to mean any portion of a bill with separate,...

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