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. 6838

March 1, 1995

CONSTITUTIONAL LAW:

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

GOVERNOR:

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

The veto of section 630 of 1994 PA 291 was not a valid exercise of the gubernatorial line item veto power. Thus, section 630 remains in effect.

Honorable Bob Emerson

State Representative

The Capitol

Lansing, Michigan

You have asked what effect the Governor's veto of section 630 of 1994 PA 291, the Department of Social Services (DSS) appropriation act, has on the housing component of the DSS' state emergency relief program.

Section 101 of 1994 PA 291 appropriates $35,325,600 for "State emergency relief." Section 630 of that act states in full:

For purposes of determining housing affordability eligibility for state emergency relief, a group is considered to have sufficient income to meet ongoing housing expenses if their [sic] total housing obligation does not exceed 75% of their [sic] total net income.

Before signing the act into law, the Governor vetoed several sections, including section 630. In his veto message of July 13, 1994, the Governor explained that his action:

1. Vetoes the liberalization of eligibility for housing related emergency relief assistance, Section 630, reducing the appropriation by $2,000,000, $1,500,000 general fund/general purpose, because this one-time assistance will encourage public assistance recipients to obtain housing that they cannot afford on a continuing basis.

The Governor's power to veto line items is contained in Const 1963, art 5, Sec. 19, which states, in pertinent part, that "[t]he governor may disapprove any distinct item or items appropriating moneys in any appropriation bill." An item appropriating moneys is "an indivisible sum of money which is set apart for a stated purpose." OAG, 1989-1990, No 6557, pp 1, 4 (January 12, 1989). Section 630 of 1994 PA 291 does not identify a sum of money for a stated purpose. Further, it does not appropriate a sum of money for the housing component of the state emergency relief program. Instead, section 630 imposes a condition or restriction upon the line item appropriation in section 101 for the housing component of the state emergency relief program. OAG, 1985-1986, No 6399, pp 402, 409 (November 13, 1986), observed that "[t]he veto power of the Governor does not extend to disapproving provisions imposing conditions or restrictions upon items of appropriations."

As you note in your inquiry, the Supreme Court has discussed the predecessor to Const 1963, art 5, Sec. 19, i.e., Const 1908, art 5, Sec. 37. In interpreting the current section, the appellate courts have relied on cases construing the prior provision. See, International Union v Michigan, 194 Mich App 489, 504; 491 NW2d 855, 440 Mich 858; 486 NW2d 686 (1992).

In Wood v State Administrative Bd, 255 Mich 220; 238 NW 16 (1931) , the Court addressed whether the Governor could reduce specific line items through the veto power. It held that, under the constitutional provision, the Governor could only "approve or disapprove" an item, but could not "reduce an item in amount." 255 Mich at 225. The Court, therefore, concluded that "the action of the governor in reducing the items, being without warrant of constitutional power, was a complete nullity and did not affect the bill in any way, either as an approval or disapproval of any such items." 255 Mich at 226.

It is my opinion, therefore, that the veto of section 630 of 1994 PA 291 was not a valid exercise of the gubernatorial line item veto power. Thus, section 630 remains in effect.

Frank J. Kelley

Attorney General