The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL



CONSTITUTIONAL LAW:

GOVERNOR:

Application of gubernatorial line-item veto granted by Const 1963, art 5, 19


The Governor's veto of sections 6(4)(x), 6(4)(y) and 20d(c) of 1997 Enrolled HB 4310 amending the State School Aid Act of 1979 is a valid exercise of the gubernatorial veto authority granted by Const 1963, art 5, 19, and is, therefore, effective.

The Governor's attempted veto of the first two sentences of section 6(4) of 1997 Enrolled HB 4310 amending the State School Aid Act of 1979 is an invalid exercise of the gubernatorial veto authority granted by Const 1963, art 5, 19, and is, therefore, ineffective.


Opinion No. 6955

September 19, 1997


Honorable Ken DeBeaussaert
State Senator
The Capitol
Lansing, MI 48913

Honorable Bill Bullard, Jr.
State Senator
The Capitol
Lansing, MI 48913

Honorable Pat Gagliardi
State Representative
The Capitol
Lansing, MI 48913

Honorable Thomas H. Kelly
State Representative
The Capitol
Lansing, MI 48913


You have each asked whether the Governor's veto of portions of 1997 Enrolled HB 4310, which amends provisions of the State School Aid Act of 1979, MCL 388.1601 et seq; MSA 15.1919 (901) et seq, was a valid exercise of the gubernatorial veto authority granted by Const 1963, art 5, 19.

A. The "Line Item" Veto

Const 1963, art 5, 19, authorizes the Governor to disapprove distinct items in appropriation bills. It states:

The governor may disapprove any distinct item or items appropriating moneys in any appropriation bill. The part or parts approved shall become law, and the item or items disapproved shall be void unless re-passed according to the method prescribed for the passage of other bills over the executive veto.

This gubernatorial veto power must be narrowly construed. As explained in OAG, 1981-1982, No 5852, p 43, 44 (February 23, 1981):

The law is well settled that the Governor's veto power is a power which must be narrowly construed. In Wood v State Administrative Board, 255 Mich 220, 224-225; 238 NW 16, 18 (1931), the Supreme Court discussed the veto power of the Governor and stated:

"The veto power is a legislative function, although it is not affirmative and creative, but is strictly negative and destructive. It cannot be exercised by the executive except through constitutional grant . . . . "

Thus, in Wood v State Administrative Board, supra, the Supreme Court held that the Governor may not reduce specific items in an appropriations bill because the constitution did not specifically confer upon the Governor the power to modify a bill but merely the power to approve or disapprove. Also, in OAG, 1952-1954, No 1775, p 333 (May 3, 1954), the Attorney General concluded that Const 1908, art 5, 37 (the predecessor of Const 1963, art 5, 19) did not confer upon the Governor the power to veto conditions attached by the Legislature to items in an appropriations bill in that while the Governor had the power to veto a specific appropriation, the Governor could not strike language qualifying an appropriation or directing the methods of its use.

Thus, it is clear that the veto power of the Governor is a limited power which may not be extended beyond the explicit grant of authority in the Constitution.

How then may one identify "distinct item or items appropriating moneys" as distinguished from conditions, restrictions or methods? OAG, 1981-1982, No 5852, supra, pp 45-46, and cases cited in that opinion are instructive. The opinion continues:

However, Const 1963, art 5, 19 empowers the Governor to disapprove only distinct items appropriating monies in any appropriation bill. The Governor is not empowered to approve part of an item of appropriation while disapproving on another part of that same item of appropriation . . . .

In Commonwealth v Dodson, 176 Va 281, 290; 11 SE2d 120, 124 (1940), the Virginia Supreme Court reviewed gubernatorial vetoes of portions of an appropriation act. The vetoed portions did not actually set aside funds but rather established conditions for use of the funds. The court invalidated the vetoes, and held that an item is an indivisible sum of money dedicated to a stated purpose and observed:

"That term, [item] as used in the Constitution, refers to something which may be taken out of a bill without affecting its other purposes or provisions. It is something which can be lifted bodily from it rather than cut out. No damage can be done to the surrounding legislative tissue, nor should any scar tissue result therefrom." [Emphasis added.]

Similarly, in Bengzon v Secretary of Justice of the Phillipine Islands, 299 US 410, 414; 57 S Ct 252, 254; 81 L Ed 312, 314 (1937), the Supreme Court of the United States invalidated a veto of a non appropriating provision of an act. The court held:

"It follows conclusively that where the veto power is attempted to be exercised to object to a paragraph or portion of a bill other than an item or items, or to language qualifying an appropriation or directing the method of its uses, he exceeds the constitutional authority vested in him, and his objection to such paragraph, or portion of a bill, or language qualifying an appropriation, or directing the method of its use, becomes non-effective."

It has also been held that an item contains the subject and the amount of the appropriation. Commonwealth ex rel Attorney General to the Use of School District of Patton v Barnett, 199 Pa 161; 48 A 976 (1901). See also, Fulmore v Lane, 104 Tex 499; 140 SW 405 (1911). In these cases the courts were considering constitutional provisions similar to const 1963, art 5, 19. The essence of these decisions is that the Governor may not use the limited veto power to change the basic provisions of legislation. To allow the Governor to do so would be to confer upon that office an "affirmative and creative" legislative function rather than a "strictly negative and destructive" function. Wood v State Administrative Board, supra, 255 Mich 220, 224; 238 NW 16, 18.


B. The State School Aid Act of 1979

The State School Aid Act of 1979, 1979 PA 94 (the Act), is an appropriations act, assigned a compiler's number, and annually amended to make appropriations for a fiscal year. The Act is entitled:

AN ACT to make appropriations to aid in the support of the public schools and the intermediate school districts of the state; to make appropriations for certain other purposes relating to education; to provide for the disbursement of the appropriations; to supplement the school aid fund by the levy and collection of certain taxes; to prescribe the powers and duties of certain state departments, the state board of education, and certain other boards and officials; to prescribe penalties; and to repeal certain acts and parts of acts.

The Act not only appropriates a maximum sum of monies from the state school aid fund and the general fund but also establishes the formulae by which each district's entitlement to funds is to be determined, as well as conditions and restrictions for the receipt and use of the funds. "The State School Aid Act was created to determine the manner in which state monies are disbursed to local school districts and the manner in which those funds may be used by the districts." Holland-West Ottawa-Saugatuck Consortium v Holland Education Ass'n, 199 Mich App 245, 249; 501 NW2d 261 (1993).

Section 11(1) of the Act, as amended by the provisions of Enrolled HB 4310, appropriates:

[F]or the public schools of this state and certain other state purposes relating to education from the state school aid fund established by section 11 of article IX of the state constitution of 1963 the sum of $8,770,000,000.00, and from the general fund the sum of $378,935,400.00, for the fiscal year ending September 30, 1998. In addition, available federal funds are appropriated for 1997-98.

As section 11(2) of the Act states in part:

The appropriations under this section shall be allocated as provided in this act.

Section 20(1)(2) of the Act establishes a basic foundation allowance of $5,462.00 per membership pupil and allocates from the appropriation made by section 11 an amount not to exceed $8,003,943,500.00 "to guarantee each district a foundation allowance per membership pupil."

Section 20(3) of the Act continues at length with the formulae by which a district's actual entitlement to funds is calculated. Essential to that calculation is the definition and determination of "membership."

Prior to amendment by Enrolled HB 4310, section 6(4) provided in part:

(4) "Membership", except as otherwise provided in this act, means . . . the average number of full-time equated pupils in grades K to 12 actually enrolled and in regular daily attendance in a district, public school academy, university school, or intermediate district on the pupil membership count day for the current school year and on the supplemental count day for the immediately preceding school year, as determined by the department and calculated by adding the number of pupils registered for attendance plus pupils received by transfer and minus pupils lost as defined by rules promulgated by the state board, and as corrected by a subsequent department audit, plus the final audited count from the supplemental count day for the immediately preceding school year, and dividing that sum by 2.

Enrolled HB 4310 amended the above-quoted text to provide:

(4) "Membership", except as otherwise provided in this act, means for a district, public school academy, university school, or intermediate district the sum of the product of .6 times the number of full-time equated pupils in grades K to 12 actually enrolled and in regular daily attendance on the pupil membership count day for the current school year, plus the product of .4 times the final audited count from the supplemental count day for the immediately preceding school year, as determined by the department and calculated by adding the number of pupils registered for attendance plus pupils received by transfer and minus pupils lost as defined by rules promulgated by the state board, and as corrected by a subsequent department audit.

C. Veto of Sections 6(4)(x) and 6(4)(y)

Notwithstanding the definition of "membership" set forth in the first paragraph of section 6(4), Enrolled HB 4310 further provides that in making the calculation of membership, the following provisions, as applicable, apply:

(x) If a district is located wholly on an island and has less than 5.00 full-time equated pupils in membership, the district's membership shall be considered to be 5.00 full-time equated pupils.

(y) If a district is located wholly on an island and the district's membership for 1996-97 was at least 80 but less than 100 full-time equated pupils, the district's membership for 1997-98 shall be considered to be 90 full-time equated pupils or the district's actual 1997-98 membership, whichever is greater.

These two subsections, which apply to certain island school districts, were the subject of the Governor's "line-item" veto.

The State School Aid Act of 1979 establishes a basic foundation allowance that is paid to each school district per membership pupil. Section 20. In each of subsections (x) and (y), the Legislature has determined how memberships for these island districts will be recalculated regardless of, perhaps, the district's actual full-time equated pupil count.

These two subsections, if implemented, augment the amounts to be distributed to three identifiable school districts, by amounts that are clearly ascertainable. The provisions are discrete and have a purpose distinct from the formulary distribution required by sections 6(4) and 20. The text of these subsections can, as the court in Commonwealth v Dodson, supra, observed, "be taken out of a bill without affecting its other purposes and provisions." It can be lifted bodily from the bill without damaging "the surrounding legislative tissue." Being distinct items of appropriation, these subsections are subject to the gubernatorial veto authority granted by Const 1963, art 5,  19. Accordingly, the Governor's vetoes of sections 6(4)(x) and 6(4)(y) are valid and, therefore, effective.

D. Veto of Section 20d(c)

Enrolled House Bill 4310 enacts section 20d(c) and would provide as follows:

(c) For a district that levied more than 43 mills for school operating purposes in the 1993-94 state fiscal year; that had combined state and local revenue per membership pupil in the 1993-94 state fiscal year of less than $5,500.00; that included the pupils attending an intermediate district center program operated by the district in the district's 1993-94 membership; and that submits a request to the department not later than September 1, 1997 for recalculation under this subdivision, the district's foundation allowance for 1997-98 shall be based on a recalculation of the district's 1994-95 foundation allowance, using both of the following adjustments:

(i) The district's combined state and local revenue per membership pupil in the 1993-94 state fiscal year shall be reduced by an amount equal to the product of the district's gross membership allowance under former section 21 for 1993-94 times the number of nonresident full-time equated pupils attending the intermediate district center program operated by the district in 1993-94 who were counted in the district's 1993-94 membership.

(ii) The district's 1993-94 membership shall be reduced by the number of nonresident full-time equated pupils attending the intermediate district center program operated by the district in 1993-94 who were counted in the district's 1993-94 membership.

This provision is similar in effect to the provisions contained in section 6(4)(x) and 6(4)(y). Section 20d(c), if implemented, would provide additional funding to a single ascertainable school district. Being a distinct item of appropriation, this section is subject to the gubernatorial veto authority granted by Const 1963, art 5,  19. Accordingly, the Governor's veto of section 20d(c) is valid and, therefore, effective.

E. Veto of Section 6(4)

The Governor, with his August 1, 1997, veto message, returned Enrolled HB 4310, after striking the first two sentences of section 6(4) preceding subsection (4)(a). However, the stricken parts of section 6(4) appropriate no money. Instead, these stricken sentences define "membership," a parameter to be utilized in determining the foundation allowance to which each school district is entitled. The attempted veto strikes no distinct item of appropriation. The Governor cannot, in exercising the line-item veto authority, change an essential element of the Act.

If the veto of section 6(4) were sustained, there would be no express legislative definition of "membership" for fiscal year 1997-98. The veto of this definitional section cannot have the effect of reinstating the former text of section 6(4). See, Letter Opinion of the Attorney General to Senator Dan L. DeGrow and Representative James G. O'Neill, Jr., dated December 3, 1991 (an attachment to OAG 1991-1992, No 6707, pp 102, 114-116). Nor has the Legislature delegated to the executive branch the authority to craft an alternative definition of the term "membership." The Governor's veto power cannot be exercised in a fashion to creatively delegate legislative authority to the executive branch of state government. Such an interpretation of the Michigan Constitution, as applied to the instant facts, would grant to the Governor a "creative" veto power, as opposed to a"destructive" veto power.

Thus, striking the two sentences at issue would leave the State School Aid Act of 1979 without an operative definition of membership. The removal of this definition would significantly affect the Act's other purposes and provisions. The legislative mandate governing the entitlement of each qualified school district, i.e., its express instruction as to how each district's entitlement shall be quantified, cannot be eviscerated from the Act without leaving scar tissue. Every Michigan school district would be impacted. The removal of these sentences, if sustained, would be totally destructive of the Legislature's authority "to determine the manner in which state monies are disbursed to local school districts." Holland-West Ottawa-Saugatuck Consortium, supra. Not being distinct items of appropriation, the first two sentences of section 6(4) are not subject to the gubernatorial veto authority granted by Const 1963, art 5, 19. Accordingly, the Governor's veto of the first two sentences in section 6(4) is invalid and, therefore, ineffective.

F. Summary
It is my opinion, therefore, that the Governor's veto of sections 6(4)(x), 6(4)(y) and 20d(c) of 1997 Enrolled HB 4310 amending the State School Aid Act of 1979 is a valid exercise of the gubernatorial veto authority granted by Const 1963, art 5, 19, and is, therefore, effective.

It is my further opinion that the Governor's attempted veto of the first two sentences of section 6(4) of 1997 Enrolled HB 4310 amending the State School Aid Act of 1979 is an invalid exercise of the gubernatorial veto authority granted by Const 1963, art 5, 19, and is, therefore, ineffective.


FRANK J. KELLEY
Attorney General