July 15, 2004

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 vetoes of §§ 4-1.02, 4-1.04 a., 4-1.04 b.3.f., and 4-1.06 b. of HB 5001.  Based on legal advice, it is my opinion that each of these purported vetoes 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 these purported vetoes for the reasons set forth in this letter.

Section 4-1.02

Section 4-1.02 sets forth the process for the Governor to follow to reduce expenditures in the event of a revenue shortfall.

The constitutional issue presented here is almost identical to the issue that arose last year with the attempted veto of § 4-1.04 of HB 1400.  Like the section in question, § 4-1.04 set forth the process for the Governor to follow to reduce expenditures in the event of a revenue shortfall.¹  You will recall that it was my opinion that the attempted veto of § 4-1.04 was constitutionally defective, and that I was constrained not to publish it.

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 § 4-1.02 as a whole constitutes a condition on all of the appropriations in HB 5001 that may be reduced in the event of a revenue shortfall.  The first sentence of § 4-0.01 (the preamble to all of Part 4 of HB 5001) states that "[e]ach appropriating act of the General Assembly shall be subject to the following provisions and conditions, unless specifically exempt elsewhere in this act" (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 § 4-1.02.

Accordingly, because the portion of House Bill 5001 covered under the purported veto of § 4-1.02 constitutes less than an item in contravention of Article V, Section 6, I am duty-bound not to publish it.

§ 4-1.04 a. and § 4-1.04 b.3.f.

These two sections prohibit the Governor from administratively establishing and transferring funds for any program that he has vetoed.

House Bill 5001 has provisions permitting the Governor within certain limitations to transfer funds from an appropriation and use it for some other purpose (§ 4-1.03 Appropriation Transfers). Such authority potentially could result in the reduction of almost any appropriation in order to fund the other purpose.  As a result, such authority conditions and is intertwined with all such appropriations.

Sections 4-1.04 a. and 4-1.04 b.3.f. merely add an additional specific restriction to this process, which prohibits reductions in appropriated programs to fund programs that have been vetoed.  Like the process as a whole, this part of it conditions and is intertwined with most of the appropriations in HB 5001. ² In Commonwealth v. Dodson, 176 Va. 281 (1940), in determining whether a portion of the budget bill that was vetoed by the Governor constituted an item, the Supreme Court said that "if it be tied up with other budget provisions, then under the terms of the Constitution it can not be eliminated."

Accordingly, because the portions of House Bill 5001 covered under the purported vetoes of §§ 4-1.04 a. and 4-1.04 b.3.f. constitute less than an item in contravention of Article V, Section 6, I am duty-bound not to publish them.

§ 4-1.06 b.

Section 4-1.06 b. permits the Comptroller to authorize the disbursement of up to $3 million against appropriations of a subsequent fiscal year, when an emergency arises or when July 1 falls on a weekend. ³

Such disbursement potentially could be used to fund almost any of the appropriations in HB 5001. As such it conditions and is intertwined with such appropriations. Accordingly, for reasons previously stated, the portion of House Bill 5001 covered under the purported veto of § 4-1.06 b. constitutes less than an item in contravention of Article V, Section 6, and I am duty-bound not to publish it.

Sincerely,

Bruce F. Jamerson

cc: Members, General Assembly of Virginia

Footnotes:

¹ Although the veto was drawn to § 4-1.04 in its entirety, because HB 1400 dealt with an interim budget, its practical effect, if valid, would have been to strike only the new language added in the enrolled bill at the 2003 Session, and the law would have reverted to the "old language" which comprised most of this section. Such is not the case for § 4-1.02, which is all "new language." This fact is largely irrelevant to the legal analysis, but, if anything, makes a more compelling case for the conclusion that follows.

² These two sections, like § 4-1.02, and all of the purported vetoes discussed herein, are prefaced by the first sentence of § 4-0.01 (the preamble to all of Part 4 of HB 5001) stating that "[e]ach appropriating act of the General Assembly shall be subject to the following provisions and conditions, unless specifically exempt elsewhere in this act" (emphasis added).

³ This section permits the disbursement "provided that the Auditor of Public Accounts provides written concurrence." The explanation for this veto complains only about this one phrase, claiming that it "raises an important constitutional issue regarding separation of powers." The rationale for this veto (as well as the rationale for the other vetoes) is irrelevant to whether the veto constitutes an item under the Constitution. In addition, as I advised you last year, even if less than an item may be vetoed if the veto strikes only the unconstitutional phrase and nothing more, the veto here encompasses far more than the portion contended to raise constitutional issues. The same is true with the other vetoes and their rationale.