Washington State Legislature v. Lowry

• Decision Date: 27 February 1997
• Docket Number: No. 63055-1,63055-1
• Citation: 931 P.2d 885,131 Wn.2d 309
• Court: Washington Supreme Court
• Parties: The WASHINGTON STATE LEGISLATURE; Sid Snyder; and Brian Ebersole, Appellants, v. Mike LOWRY, Governor of the State of Washington; State of Washington, Respondents.

Page 309

131 Wn.2d 309

931 P.2d 885

The WASHINGTON STATE LEGISLATURE; Sid Snyder; and Brian Ebersole, Appellants, v. Mike LOWRY, Governor of the State of Washington; State of Washington, Respondents.

No. 63055-1.

Supreme Court of Washington En Banc.

Argued March 5, 1996.

Decided Feb. 27, 1997.

Vandeberg & Johnson, Elvin J. Vandeberg, Clifford D. Foster, Jr., Jamie L. Siegel, Attorney at Law, Tacoma, for appellants.

Christine Gregoire, Attorney General, Maureen Hart, Solicitor General, Olympia, for respondents.

TALMADGE, Justice.

Governor Mike Lowry vetoed portions of bills enacted in the 1994 session of the Legislature. Rather than overriding the vetoes, the Legislature filed a declaratory judgment action in the Thurston County Superior Court seeking to invalidate them. The Legislature asked the court to establish limiting parameters of the Governor's veto authority under article III, section 12 of the Washington Constitution.

There is no more difficult and controversial aspect of relations between our branches of government than the Governor's use of the veto. Historically, Legislatures and Governors have sought to gain political advantage, the Legislature by carefully drafting legislation to avoid vetoes, and the Governor, by vetoing all or parts of bills.

Pursuant to our historical, constitutional role, we intervene in this controversy to uphold both the power of the Legislature to write legislation as it may choose, and the power of the Governor to exercise the general and line item veto. In this opinion, we seek to delineate and maintain the proper constitutional balance between the coordinate branches of our State government with respect to the veto.

ISSUES

1. Does the veto power of the Governor extend to portions of legislation not formally denominated as sections by the Legislature?

2. Does the veto power of the Governor extend to provisions in appropriations bill that condition how specific sums of money may be spent?

3. Does the veto power of the Governor extend to provisions in appropriations bills that condition how money may be spent, but do not reference a specific sum of money?

4. Does the veto power of the Governor extend to provisions in appropriations bills reducing expenditures?

FACTS

In the 1994 legislative session, the Legislature enacted various bills that Governor Lowry vetoed at least in part. The Legislature did not override the Governor's veto by two-third votes of both houses, as authorized by article III, section 12 of the constitution. Instead, the Legislature commenced a declaratory judgment action against the Governor in the Thurston County Superior Court, contesting the validity of the vetoes under article III, section 12.

The vetoes at issue fall into three broad categories. The first relates to the Governor's veto of subsections of legislation each of which repealed an entire act or section of an act. ¹ While the Legislature designated these repealers as "subsections," the Governor contended the subsections were, in fact, sections of a bill to which his veto power extended. With respect to ch. 143, Laws of 1994, for example, § 513 of the legislation contains 103 numbered subsections, each repealing an entire legislative act or section of an act.

The second broad category pertains to the Governor's vetoes of language conditioning how an agency may spend an appropriation. ² However, there are two subsets of such budget provisos ³ before us. "Dollar provisos" are subsections of appropriations bills conditioning the appropriation to an agency on compliance with legislative direction that certain funds be spent or not be spent, or the agency take or not take certain action. For example, § 135 of Laws of 1994, 1st Sp. Sess., ch. 6, appropriates $41,497,000 to the Department of General Administration, but requires in § 135(9) that $171,000 of the general appropriation be spent only for the purpose of a statewide co-location program.

The second type, "nondollar provisos," makes no reference to a specific dollar amount. For example, in Laws of 1994, ch. 303, § 5, the Legislature appropriated $145,609,000 to the Washington State Patrol Field Operations Bureau, but conditioned the appropriation by stating in § 5(4) only commissioned officers may be issued motor vehicles by the Washington State Patrol. This nondollar proviso makes no reference whatsoever to a monetary amount associated with the use of the vehicles.

Finally, the Governor vetoed sections of a transportation appropriations bill where the Legislature reduced an appropriation, but conditioned the reduction on certain actions. ⁴ In Laws of 1994, ch. 303, § 5, the Legislature reduced the appropriation to the State Patrol Highway account by more than $2 million, but established a new proviso setting the maximum amount that could be spent on breathalyzers and established accounting procedures for the federal funds received by the Patrol for providing security at a national legislative conference. The Governor vetoed the reduction, but left the new provisos intact.

The trial court, the Honorable Wm. Thomas McPhee, granted summary judgment on May 1, 1995, declaring the Governor's vetoes of subsections invalid. The trial court, however, determined the Governor's vetoes of appropriations bill provisos were valid and the appropriations were not affected by the vetoes. Likewise, the trial court ruled the Governor's vetoes of appropriations reductions were valid and did not alter the provisos to such appropriations that remained. Both parties appealed and we granted direct review. RAP 4.2(a).

ANALYSIS

The Washington Constitution confers upon the Governor general veto authority over legislation and a distinct veto power over "appropriation items":

If any bill presented to the governor contain several sections or appropriation items, he may object to one or more sections or appropriation items ... Provided, That he may not object to less than an entire section, except that if the section contain one or more appropriation items he may object to any such appropriation item or items.

WASH. CONST., art. III, § 12 (amend.62). Under the general veto power, the Governor may veto a whole bill or a section of a bill. Additionally, the Governor's constitutional veto power, traditionally described as the line item veto power, also extends to "appropriation items."

Washington's Constitution has contained a broad veto power for the Governor since statehood. ⁵ The Governor's veto extended to full bills, sections of bills and items in bills. CONST. 1889, art. III, § 12 ("one or more sections or items"). The scope of article III, section 12, as originally adopted, was limited by the 62nd Amendment in 1974. The item veto power of the Governor was limited to appropriations items, restricting a practice, initiated by Governor Rosellini and used by Governor Evans, to veto items in nonappropriations bills. See, e.g., Washington Ass'n of Apartment Associations, Inc. v. Evans, 88 Wash.2d 563, 564 P.2d 788 (1977); State ex rel. Ruoff v. Rosellini, 55 Wash.2d 554, 348 P.2d 971 (1960).

The general purpose of the appropriations item or line item veto is two-fold. First, it gives the Executive, who is elected statewide rather than from a particular district, the power to achieve fiscal constraint and to advance statewide rather than parochial fiscal interests; the Governor can excise unneeded "pork barrel" programs or projects from an appropriations bill so as to restrain public expenditures. This purpose of the line item veto is consistent with the requirement in the Budget and Accounting Act, RCW 43.88, that the Governor submit and the Legislature enact a balanced biennial operating budget. See Karcher v. Kean, 97 N.J. 483, 507, 479 A.2d 403 (1984) ("The constitutional line-item veto power serves the governmental need to have a balanced budget in place at the start of the fiscal year"). See also Stephen Masciocchi, The Item Veto Power in Washington, 64 WASH. L. REV . 891, 892-93 (1989).

Second, a line item veto is designed to permit the Governor to disentangle issues so they will be considered on their individual merits. This policy is consistent with the constitutional framers' evident fear of legislative logrolling and the other checks on such logrolling placed in the Washington Constitution. Masciocchi, 64 WASH. L. REV . at 892-93 n. 13.

Despite the policy purposes underlying the veto power, courts, legislators, and Governors have had significant difficulties defining a "section" and "appropriation item." We attempt here, in the Court's constitutional role as interpreter of the Washington Constitution, to set forth operating guidelines.

A. SECTION VETOES

The Legislature argues Governor Lowry may veto only complete sections of a bill, and the Legislature has sole discretion to designate sections, citing Washington State Motorcycle Dealers Ass'n v. State, 111 Wash.2d 667, 763 P.2d 442 (1988) (Motorcycle Dealers ). The Governor asserts the vetoed provisions constitute entire de facto sections even though they fall under subsection headings. The trial court agreed with the Legislature.

The checkered history of the use of gubernatorial vetoes over sections of legislation substantially demonstrates the creativity of both the legislative and executive branches of government. At one extreme, in Washington Ass'n of Apartment Ass'ns, Inc. v. Evans, 88 Wash.2d 563, 564 P.2d 788, this Court confronted a creative exercise of the gubernatorial veto power when Governor Evans vetoed provisions of the 1973 Residential Landlord Tenant Act in such a way as to completely rewrite portions of the legislation. We held article III, section 12 prohibits use of the veto power to reach a new or different result than the Legislature intended. A Governor could use the veto power only to prevent an act or a part of an act from becoming law. See generally Timothy P. Burke, The Partial Veto Power: Legislation by the Governor, 49 WASH. L. REV . 603 (197...