May 7, 2003

The Honorable Mark R. Warner

Governor of Virginia

State Capitol

Richmond, Virginia 23219

Dear Governor Warner:

I write to you in my capacity as Keeper of the Rolls of the Commonwealth regarding the communication of your purported veto of § 4-1.04 of House Bill 1400 on May 1, 2003.

Based upon legal advice, it is my opinion that the portion of House Bill 1400 covered by this purported veto does not constitute an item as required by Article V, Section 6 of the Constitution of Virginia. As a result it is my duty not to publish this purported veto for the reasons set forth in this letter.

In Brault v. Holleman, 217 Va. 441 (1976), the Supreme Court of Virginia stated as follows:

Where a condition is attached to an appropriation, the condition must be observed. The Governor cannot veto the appropriation without also disapproving the condition; correspondingly, he cannot veto the condition without also disapproving the appropriation.

In light of these requirements, it is clear that § 4-1.04 as a whole constitutes a condition on all of the appropriations in HB 1400 that may be reduced in the event of a revenue shortfall. The first sentence of the section states that "[e]ach appropriating act of the General Assembly shall be construed as subject to the provisions and conditions contained in this section" (emphasis added). All of the appropriations are conditional: (i) on revenues being sufficient; and, (ii) if the revenues are insufficient, on the Governor withholding allocations in conformity with the procedures set forth in the section.

I am aware that the Supreme Court of Virginia indicated in Commonwealth v. Dodson, 176 Va. 281 (1940), that, in certain circumstances, where the provision of a budget bill that is vetoed would otherwise be unconstitutional, a veto of less than an item may be upheld by a court. However, your purported veto of § 4-1.04 does not fall within the ambit of such circumstances.

The Honorable Mark R. Warner

May 7, 2003

Page Two

Even if the concerns that you expressed in regard to subdivision a 4 c of § 4-1.04 were determined to be valid from a constitutional perspective, the practical effect of this purported veto would be to strike all of the several portions of new language added to this section of Chapter 899 of the 2002 Acts of Assembly in the enrolled version of House Bill 1400 (the enrolled version is identical to the re-enrolled version).¹ In this regard, you do not allude to any constitutional concern with any of the "new language" that would be stricken except the provisions of subsection c. As Keeper of the Rolls of the Commonwealth I cannot create multiple or new vetoes, nor can I limit the applicability of a veto to less than all the provisions to which it is drawn. Therefore, I cannot even consider the constitutional concern you expressed regarding subsection c.

Accordingly, because the portion of House Bill 1400 covered under your purported veto of § 4-1.04 constitutes less than an item in contravention of Article V, Section 6, I am duty-bound not to publish it.

Sincerely,

Bruce F. Jamerson

cc:Members, General Assembly of Virginia

¹The portions of this section that were added during the 2003 Session (i) make it clear that the Governor may withhold nongeneral fund appropriations in balancing the budget; (ii) require the Governor's budget reduction plan to identify budget reductions by program and appropriation item; (iii) require all budget reduction proposals submitted to the Governor or his staff to be forwarded to the Chairmen of the House Appropriations and Senate Finance Committees within five calendar days of the submission; (iv) require the State Comptroller to report to the Governor within five business days at the close of each fiscal year actual individual income tax, corporate income tax, and sales and use tax revenues for the fiscal year; (v) require the Governor, under certain circumstances and based on the report of year-end revenues prepared by the State Comptroller, to prepare a written reestimate of general fund revenues for the current and the next biennium and to report the same to the chairmen; and (vi) prohibit the Governor from cutting more than fifteen percent of the total amount appropriated to any program.