STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6684

June 11, 1991

CONSTITUTIONAL LAW.

Const 1963, art 5, Sec. 19--line item veto by Governor of provisions of appropriation bills

GOVERNOR:

Line item veto of provisions of appropriation bills

The gubernatorial veto of the various individual line items containing affirmative appropriations for stated purposes in section 101 of Enrolled 1991 SB 51 is valid under Const1963, art 5, Sec. 19.

The gubernatorial veto of section 402(1)(d), (2), (3), and (4) of Enrolled 1991 SB 51 is invalid under Const1963, art 5, Sec. 19.

The gubernatorial vetoes of sections 404, 411, 412 and 421 of Enrolled 1991 SB 51 are valid under Const1963, art 5, Sec. 19.

Honorable D.J. Jacobetti

State Representative

State Capitol

Lansing, MI 48909

You have asked whether the Governor's veto of certain individual line items in Enrolled 1991 SB 51 (hereinafter SB 51) is contrary to Const1963, art 5, Sec. 19. SB 51 which became 1991 PA 1 on February 22, 1991, makes supplemental appropriations to state departments for the 1991 fiscal year. The Governor vetoed certain individual line items in Sec. 101 and several paragraphs set forth in Secs. 402(1)(d), (2), (3), and (4), 404, 411, 412 and 421, and approved the remainder of the appropriations bill.

You also ask what parts of 1984 PA 431, Sec. 371, MCL 18.1371; MSA 3.516(371), were ruled unconstitutional by OAG, 1989-1990, No 6607, p 269 (December 5, 1989).

FIRST QUESTION--INITIAL DISCUSSION

A review of SB 51 reveals that the Governor vetoed numerous individual line items. Illustrative of such vetoes are:

Policy planning and evaluation .. $10,200

Personnel ....................... $41,400

These line items contained affirmative appropriations of the respective designated sums of money for the purposes stated. The Governor also vetoed a number of individual line items reducing previously enacted appropriations. For example, the Governor vetoed the following individual lines:

In Const1963, art 5, Sec. 19, the people provided that the Governor may veto "any distinct item or items appropriating moneys in any appropriations bill."

OAG, 1985-1986, No 6399, p 402 (November 13, 1986), concerned gubernatorial vetoes of individual line items and sections in appropriations bills. It reviewed the constitutional history of Const1963, art 5, Sec. 19, and concluded at p 409:

That opinion also concluded:

VETO OF INDIVIDUAL LINE ITEMS

Applying these conclusions to your question and using the Department of Agriculture appropriation as an illustration, each is an individual line item appropriation setting aside a definite sum of money for a specific purpose. Therefore, each is a line item appropriating money subject to the Governor's Const1963, art 5, Sec. 19 veto authority. The Governor has drawn lines through these line items and initialled them, manifesting his intent to veto them. It is, therefore, my opinion that the exercise of the gubernatorial veto power over these affirmative individual line item appropriations comports with Const1963, art 5, Sec. 19, and the vetoes are valid.

VETO OF EXPENDITURE REDUCTIONS

The question of the Governor's authority to veto individual line items reducing previously enacted appropriations is presently before the Michigan Court of Appeals in DeGrow v Governor of Michigan, No. 132007. Under the long established policy of this office, no opinion will be issued regarding the Governor's authority to veto expenditure reductions in previously enacted appropriations.

VETO OF PORTIONS OF SECTION 402

The Governor also vetoed SB 51, Secs. 402(1)(d), (2), (3), and (4), 404, 411, 412 and 421. They apply to the Department of Corrections. Section 402 was vetoed in part while Secs. 404, 411, 412 and 421 were vetoed in their entirety.

SB 51, Sec. 402 provides:

The underscored portions of Sec. 402 are the subsections vetoed by the Governor.

Subsection 402(1) identifies the sum of $2,175,000 for prison rehabilitation and education included in the appropriation in Sec. 101 of SB 51 and refers to the following individual line item appropriation made in Sec. 101:

This specific line item appropriation in Sec. 101 was not vetoed by the Governor nor was subsection (1)(a), (b) and (c) of Sec. 402 vetoed.

While the recitation of the sum of $2,175,000 in Sec. 402(1) and again in (1)(a) look like the Legislature appropriated that sum three times, there is no reason to believe that the Legislature in passing SB 51 intended to make three separate appropriations for the same purpose. Rather the reference to that sum in Sec. 402(1) and 402(1)(a), serves, in part, to identify the particular appropriation in Sec. 101 to which the conditions enumerated in subsections (1)(d), (2), (3) and (4) are to apply. Further, Sec. 402(1)(b) does set aside the sum of $311,200.00 from the appropriation of $2,175,000 made in Sec. 101 for the purpose of college academic and vocational programs for prisoners in certain prisons and camps program. Similarly, subsection (c) of Sec. 402(1) appropriates $115,000.00 from the $2,175,000 made Sec. 101 for similar education programs for certain other prisoners. Both subsections (b) and (c), therefore, set aside certain sums of state money for the stated purposes and constitute items of appropriation subject to veto by the Governor as line item appropriations stated in paragraph form.

The Governor, however, chose only to veto Sec. 402(1)(d), (2), (3) and (4). These subsections do not set aside state money for a stated purpose. Rather, they state conditions upon the appropriation of $2,175,000 made for the PREP program in Sec. 101 and the appropriations made therefrom in subsections (1)(b) and (c) of Sec. 402 for the programs marked for the receipt of state money in each subsection.

OAG, 1985-1986, No 6399, supra, at 409, concluded that the Governor may not veto provisions imposing conditions upon items of appropriations approved in signing the appropriations bill.

By signing SB 51, the Governor approved the appropriations of $2,175,000 for prisoner rehabilitation education program (PREP) made in Sec. 101 and the appropriation therefrom of the sum of $311,200 for designated prisons and camps education programs and the sum of $115,000 for education programs in a certain other prison in Sec. 402(1)(b) and (c) respectively. He may not veto the conditions upon these appropriations in the absence of vetoing the line item appropriations appearing as individual line items or in paragraph form. State v Bond, 495 SW2d 385, 392 (MO1973) (En Banc); Fairfield v Foster, 25 AZ 146; 214 P 319, 322 (Ariz, 1923); Welden v Ray, 229 NW2d 706, 713 (Iowa, 1975); State v Olson, 286 NW2d 262, 270-271 (NDak, 1979).

It should be noted that where a condition applies to more than one line item appropriation, the veto of a condition is authorized and effective only to the extent that the condition affects a line item appropriation which has itself been vetoed. The condition may not be vetoed and remains in full force and effect as to those affected line item appropriations or paragraphs not vetoed.

It is my opinion, therefore, that the vetoes of Sec. 402(1)(d), (2), (3) and (4) of SB 51 are invalid under Const1963, art 5, Sec. 19.

VETO OF SECTION 404

The Governor also vetoed Sec. 404 in its entirety. As enacted by the Legislature, it provides:

A plain reading of this section, composed of two subsections, reveals that unlike Sec. 402(1)(a), (b), and (c), neither subsection identifies the appropriation in Sec. 101 by dollar amount but refers to the appropriation as "the prisoner education tutor program." This is a reference to the following line item appropriation in Sec. 101:

The Governor vetoed this line item. The Governor also vetoed both subsections (1) and (2) of Sec. 404, which imposed certain duties upon the Department of Corrections to train tutors, to pay them in accord with a certain pay them in accord with a certain pay scale, and to require reporting about the allocation of funds for the program to legislative subcommittees and fiscal agencies.

Applying the same reasoning employed in analyzing the attempted veto of Sec. 402(1)(d), (2), (3) and (4), it is my opinion that the Governor's veto of the conditions in Sec. 404 upon the line item vetoed in Sec. 101 is in accord with Const1963, art 5, Sec. 19.

VETO OF SECTION 411

The Governor also vetoed Sec. 411 of SB 51, which provides:

Section 411(1) identifies the appropriation made in Sec. 101 in the sum of $337,200 for the PPROMIS project and specifies that these moneys be used for initial development and implementation of that program. Subsection 2 imposes a duty upon the Department of Corrections to make progress reports to certain legislative subcommittees and to the legislative agencies.

The Governor vetoed the following individual line item appropriation in Sec. 101:

Section 411(1) does not appropriate moneys for the PPROMIS program but, rather, identifies the appropriation in Sec. 101 and imposes along with subsection (2) conditions upon expenditures from that appropriation. Therefore, it is my opinion that the vetoes of Sec. 411(1) and (2), are in accord with Const1963, art 5, Sec. 19, because of the veto of the individual line item appropriation of $337,200.00 for that program in Sec. 101.

VETO OF SECTION 412

The Governor also vetoed Sec. 412 of SB 51, which provides:

Section 412(1) identifies a line item appropriation in Sec. 101, but in the sum of $998,700.00, made for the specialized probation case load project and imposes conditions as to agent utilization, number of probation units and their location upon expenditures from those appropriated state funds. The reference is obviously to:

The Governor vetoed this line item appropriation in Sec. 101. The identification sum in Sec. 412(1), misstated as $998,700, is not an item of appropriation.

Because the individual line item appropriation of $988,700 in Sec. 101 was vetoed, for the reasons previously stated, the veto of Sec. 412(1) is a valid exercise of the gubernatorial veto authority under Const1963, art 5, Sec. 19.

In subsection 2 of Sec. 412, the Legislature has set aside the sum of $393,600 as included in the line item appropriation Sec. 101 for additional probation units to serve additional offenders in other parts of the state. There is no line item in Sec. 101 under FIELD SUPERVISION in that precise amount and it must be concluded that the Legislature has set aside the sum of $393,600 from the line item appropriation of $988,700 for specialized probation services referred to in Sec. 101 discussed above. Setting aside the sum of $393,600.00 for that purpose constitutes a line item of appropriation in paragraph form and is subject to the veto authority of the Governor under Const1963, art 5, Sec. 19. Therefore, the veto of Sec. 412(2) by the Governor is valid.

Subsection (3) and (4) of Sec. 412 impose conditions of cooperative planning and purchase of services upon the appropriations made in Sec. 101 and Sec. 412(2) for specialized probation services. Because the Governor vetoed the line item appropriation in Sec. 101 and the appropriation in Sec. 412(2), the vetoes of the conditions upon these appropriations in Sec. 412(3) and (4), for the reasons previously stated, are valid under Const1963, art 5, Sec. 19.

It is my opinion, therefore, that the veto of Sec. 412 of SB 51 is valid under Const1963, art 5, Sec. 19.

VETO OF SECTION 421

Finally, the Governor vetoed Sec. 421 of SB 51. In subsection (1) of Sec. 421, the Legislature identifies the appropriations in section 101 for the office of community corrections in the sum of $100,000.00 for the expansion of local community-based programs for nonviolent felony offenders and authorizes the office of community corrections to issue a request for quotation for contracting by qualified vendors.

It is noted that Sec. 101 of SB 51 contains the following line item appropriation:

This individual line item appropriation was vetoed by the Governor.

In subsection (2) of Sec. 421, the Department of Corrections is required to file progress reports with certain legislative appropriations subcommittees on a quarterly basis.

Section 421(1) and (2) do not contain an appropriation but rather impose conditions upon the expenditures authorized in 101 in the line item appropriation of $100,000.00 for public education and training program in the Office of Community Corrections. Employing the same reasoning previously used in this opinion, it is my opinion that the veto of Sec. 421, because it vetoes the conditions upon a line item appropriation vetoed in Sec. 101, is in accord with Const1963, art 5, Sec. 19.

SUMMARY OF ANSWER TO FIRST QUESTION

By way of summary, it is my opinion, in answer to your first question, that:

1. The gubernatorial veto of the various individual line items containing affirmative appropriations for stated purposes in Sec. 101 of SB 51 is valid under Const1963, art 5, Sec. 19.

2. The gubernatorial veto of Section 402(1)(d), (2), (3), and (4) of SB 51, because they are conditions on an appropriation, is invalid under Const1963, art 5, Sec. 19.

3. The gubernatorial vetoes of Secs. 404, 411, 412 and 421 of SB 51 are valid under Const1963, art 5, Sec. 19.

SECOND QUESTION

Your second question asks what parts of section 371 of the Management and Budget Act, 1984 PA 431, MCL 18.1371; MSA 3.516(371), are valid in light of OAG, 1989-1990, No 6607, p 269 (December 5, 1989). That opinion dealt with legislation concerning expenditure reductions by executive branch officials. Thus, it would be inappropriate to comment on that opinion while Dodak v State Administrative Board, Ingham County Circuit Court No. 91-68942-CZ, is pending. Once that litigation is concluded, you may wish to renew your request.

Frank J. Kelley

Attorney General