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 Opinion No. 6746 January 13, 1993 APPROPRIATIONS: Legislative infringement upon gubernatorial line item veto power CONSTITUTIONAL LAW: Legislative infringement upon gubernatorial line item veto power GOVERNOR: Legislative infringement upon gubernatorial line item veto power The money appropriated for environmental laboratory purposes in section 102 of 1992 PA 165 may be expended, regardless of the gubernatorial veto of line item appropriations in section 103 of the same statute, since section 210 of that statute is void as an unconstitutional infringement upon the gubernatorial line item veto power conferred by Const1963, art 5, Sec. 19. Honorable D.J. Jacobetti State Representative The Capitol Lansing, MI You have asked whether monies appropriated in section 102 of 1992 PA 165 may be expended in light of the gubernatorial veto of line item appropriations in section 103 of the same statute. Section 210 of Enrolled HB 5523, which became 1992 PA 165, provides: Any appropriation in section 102 shall not be expended, shall not be allotted, and shall lapse to the general fund, if any appropriation in section 103 is vetoed by the Governor. The Legislature enacted Enrolled HB 5523 to make appropriations for the Department of Natural Resources for the fiscal year ending September 30, 1993. The Governor approved HB 5523 on July 17, 1992, but vetoed the following line items in section 103: STATE PARKS Site development-state park Marquette county .. $ 50,000 Day-in-the-park--6.0 FTE positions .............. 529,000 --------- ECREATION Local government assistance-grant program ..... $ 400,000 RANTS Northern Michigan olympic training center ..... $ 250,000 Great Lakes shorelands grants .................... 15,000 Personnel grants-641 ............................ 385,700 Planning grants-641 ............................. 599,800 Groundwater compliance grants .................... 60,900 Forest improvement district grants .............. 137,500 Rivers partners grants .......................... 200,000 Section 102 of Enrolled HB 5523 provides: ENVIRONMENTAL RESPONSE Environmental laboratory .. $ 390,000 This line item appropriation for an environmental laboratory was not vetoed by the Governor. Enrolled HB 5523 was filed with the Secretary of State on July 17, 1992, and became effective as 1992 PA 165. In Const1963, art 5, Sec. 19, the people have provided that the Governor may veto "any distinct item or items appropriating moneys in any appropriations bill." The exercise of this power may not be abridged by the Legislature. Wood v State Administrative Board, 255 Mich 220, 229; 238 NW 16 (1931). Nor may it be circumvented by the use of language. OAG, 1985-1986, No 6399, p 402, 409 (November 13, 1986). It is important first to recall the historic impetus behind the grant of the line item veto power. This authority first appeared in the Michigan Constitution of 1908 as art 5, Sec. 37, and represented a response to " 'pork-barrel' tactics in legislation which prevented a scientific approach to the problems of public finance." Harold M. Dorr, "The Executive Veto in Michigan," 20 MichHistMag 91, 95-96 (1936). The United States Supreme Court commented on the purpose of such provisions in state constitutions in Bengzon v Secretary of Justice of the Philippine Islands, 299 US 410, 415; 57 SCt 252; 81 LEd 312 (1937), as follows: Their object is to safeguard the public treasury against the pernicious effect of what is called "log-rolling"--by which, in order to secure the requisite majority to carry necessary and proper items of appropriation, unnecessary or even indefensible items are sometimes included. As was noted in OAG, 1985-1986, No 6399, p 402, 408 (November 13, 1986): Constitutional provisions permitting the Governor to disapprove one or more line items contained in an appropriation bill while approving other portions of the bill are intended to reserve to the Governor the right to object to the expenditure of money for a specified purpose and amount, without the need to include within the veto other expenditures which meet his approval. 82 CJS, Statutes, Sec. 54, p 86. The authority of the Governor to exercise the line item veto, however, is a limited one. Although conferred by the Constitution, the Governor's veto power is, in essence, a legislative function. Stadle v Battle Creek Twp, 346 Mich 64, 69; 77 NW2d 329 (1956). For this reason, the courts have held that doubts regarding the scope of the Governor's line item veto authority are to be resolved in favor of the traditional separation of powers. Thus, the Governor's authority under Const1963, art 5, Sec. 19, extends only to distinct items of appropriation, i.e., items containing the subject and amount of an appropriation. See, OAG, 1985-1986, No 6399, supra, pp 408-411 and the authorities cited therein. "The veto power of the Governor does not extend to disapproving provisions imposing conditions or restrictions upon items of appropriations." Id, at 409. However, if the Governor vetoes a line item appropriation, then the Governor may also veto the conditions attached to that line item appropriation. OAG, 1991-1992, No 6684, p 46 (June 11, 1991). The Legislature unmistakably intended that none of the monies appropriated in section 102 for environmental laboratory purposes were to be expended unless the Governor refrained from exercising his authority to veto any of the line items appropriated in section 103. Thus, the question becomes whether the Legislature may validly make an appropriation subject to such a restriction on the Governor's line item veto authority. While the authority of the Legislature to attach conditions to appropriations is well-established, that authority extends only to such conditions as are within the power of the Legislature. Weinberg v Regents of the University of Michigan, 97 Mich 246, 254; 56 NW 605 (1893), and Bd of Agriculture v Auditor General, 226 Mich 417, 425; 197 NW 160 (1924). The Legislature may not condition an appropriation upon a restriction which invades the constitutional rights and powers of a separate branch of government or which is otherwise unconstitutional. Civil Service Comm'n v Auditor General, 302 Mich 673, 685-686; 5 NW2d 536 (1942). Although the issue does not appear to have been directly addressed by the courts in Michigan, a number of courts in other states have held that, in order for a legislatively-imposed condition to be valid, it must be reasonably related to the line item or items which it purports to restrict. The controlling standard has been stated by the Florida Supreme Court as follows: Appropriations may constitutionally be made contingent upon matters or events reasonably related to the subject of the appropriation, but may not be made to depend upon entirely unrelated events. For example, an appropriation to a university might be contingent upon the registration of a minimum number of students who could benefit from the appropriation or contingent upon the state revenues reaching a certain level. There is no constitutional impediment to an appropriation being made contingent upon another bill, reasonably related to the appropriation and where there is a direct and relative interdependence between them, becoming law. [ Emphasis added.] In re Opinion to the Governor, 239 So2d 1, 9 (Fla, 1970). Accord, also, Colton v Branstad, 372 NW2d 184, 189-190 (Iowa, 1985), and Henry v Edwards, 346 So2d 153, 158 (La, 1977). See also, State v Carruthers, 107 NM 439; 759 P2d 1380, 1385 (1988). In Opinion of the Justices, 411 Mass 1201; 582 NE2d 504, 509-510 (1991), the Supreme Judicial Court of Massachusetts considered the effect of a provision in an appropriations act which was very similar to section 210 of 1992 PA 165. The appropriations act considered by the Massachusetts court contained a section which purported to appropriate monies for the office of Commissioner of Banks and certain other positions in that office: "[[S]ubject however to the condition that sections 270 to 273 inclusive of this act take effect pursuant to the provisions of this act. No funds authorized under this item shall be expended unless said sections are enacted into law pursuant to the provisions of this act. It is the intent of the General Court that the enactment of said sections operate as a condition to the expenditure of any funds authorized under this item]." Sections 270 to 273 dealt with a fund operated by a private corporation which was regulated by the Commissioner of Banks. The Governor had vetoed both the above-quoted language and sections 270 and 271 of the appropriations bill. The question presented to the Massachusetts court was whether, in light of the Governor's vetoes, the appropriation of $7,044,355 for the office of the Commissioner of Banks could be given effect. Because the line item veto authority of the Massachusetts Governor did not extend to lawful conditions upon appropriations, it was necessary for the court to address the question whether the restriction imposed by the Legislature was a lawful condition upon an appropriation. The court concluded that it was not: The changes and requirements that would have been compelled by Secs. 270 and 271 were unrelated to the legislative purpose in appropriating $7,044,355 for the office of the Commissioner of Banks. Sections 270 and 271 were directed at the Central Fund, not the office of the Commissioner of Banks. They did not have impact on the legislative purpose, use, or amount of the appropriation, nor did they impose a condition or restriction directly related to the use of the appropriated funds.... Id, at 510. [ Emphasis added.] Thus, the court concluded, the restriction which the Legislature had attempted to impose was not a valid condition upon the appropriation and was subject to the Governor's veto authority under Massachusetts law. Applying these principles to 1992 PA 165, the condition contained in 1992 PA 165, section 210, attempting to restrict the effectiveness of the appropriation contained in section 102, bears no reasonable relationship to the environmental laboratory activities for which the monies in section 102 were appropriated. Moreover, it is apparent that the vetoed items in section 103, as referenced in section 210, also have no reasonable relationship to the item of appropriation in section 102. Each of these items represents a separate and distinct sum of money, and each is dedicated to a purpose essentially unrelated to the environmental laboratory line item in section 102. (1) Indeed, it is evident that the sole purpose for the imposition of this condition or restriction can only be an attempt to force the Governor to forgo the exercise of his line item veto authority and to accept all the items of appropriation in section 103. If the condition in section 210 were found to be valid, then the Legislature could easily condition the effectiveness of every line item in an appropriation bill upon the non-veto of any line items in the appropriation bill, thereby entirely defeating the Governor's constitutional line item veto authority. It follows that section 210 of 1992 PA 165 is a direct infringement upon the line item veto authority granted to the Governor by Const1963, art 5, Sec. 19, and is, therefore, unconstitutional and unenforceable. Full effect may be given to the appropriation contained in 1992 PA 165, section 102, by severing section 210. OAG, 1989-1990, No 6603, pp 229, 236 (October 9, 1989). It is my opinion, therefore, that the money appropriated for environmental laboratory purposes in section 102 of 1992 PA 165 may be expended, regardless of the gubernatorial veto of line item appropriations in section 103 of the same statute, since section 210 of that statute is void as an unconstitutional infringement upon the gubernatorial line item veto power conferred by Const1963, art 5, Sec. 19. Frank J. Kelley Attorney General (1 In approving HB 5523, which became 1992 PA 165, the Governor also vetoed sections 602, 703, 706 and 1804)