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Legislative Council v. Knowles (4/20/2001) sp-5395
Alaska Legislative Council v. Knowles (4/20/2001) sp-5395
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
ALASKA LEGISLATIVE COUNCIL, )
) Supreme Court Nos. S-8842/8851
Appellant/ )
Cross-Appellee, ) Superior Court No.
) 1JU-97-2063 CI
v. )
)
GOVERNOR TONY KNOWLES, in his ) O P I N I O N
official capacity as Governor )
for the State of Alaska, and ) [No. 5395 - April 20, 2001]
MARK BOYER, in his official )
capacity as Commissioner of )
Administration for the State )
of Alaska, )
)
Appellees/ )
Cross-Appellants. )
______________________________)
Appeal from the Superior Court of the State of
Alaska, First Judicial District, Juneau,
Thomas M. Jahnke, Judge.
Appearances: Pamela Finley, Legislative
Affairs Agency, Juneau, for Appellant/Cross-Appellee. James L.
Baldwin and John B. Gaguine, Assistant Attorneys General, and Bruce
M. Botelho, Attorney General, Juneau, for Appellees/Cross-
Appellants.
Before: Matthews, Chief Justice, Eastaugh,
Fabe, Bryner, and Carpeneti, Justices.
EASTAUGH, Justice.
BRYNER, Justice, with whom CARPENETI, Justice,
joins, dissenting in part.
CARPENETI, Justice, dissenting in part.
I. INTRODUCTION
Governor Tony Knowles, invoking the governor's
constitutionally granted power to veto "items" in appropriation
bills, struck descriptive language from five appropriations the
Alaska legislature enacted in 1997. Were the vetoes
constitutionally invalid, as the superior court declared, either
because the vetoed passages were not "items" or because the
governor did not adequately explain his vetoes? [Fn. 1] And if the
vetoes were invalid, were the struck passages nonetheless invalid,
as the superior court held, because they violated the
constitution's requirement that appropriation bills be confined to
appropriations? [Fn. 2] Applying our independent judgment to these
constitutional issues, we conclude that three of the five passages
violated the confinement clause and that the four vetoes which have
been challenged on the grounds that the struck passages were not
"items" are invalid on that basis.
II. FACTS AND PROCEEDINGS
Among the appropriation bills the Alaska legislature
enacted in 1997 were chapters 98 and 100. [Fn. 3] In July 1997
Governor Tony Knowles signed these two appropriation bills into
law, but only after invoking the governor's item veto power and
striking out specific parts of them. [Fn. 4] Five of these vetoes,
relating to three subjects, are challenged here. Appendix A
contains the relevant appropriations and shows the vetoed words in
strikeout form.
In October 1997 the Alaska Legislative Council sued
Governor Knowles and Commissioner of Administration Mark Boyer
(collectively "the governor") seeking a declaration that the vetoes
were invalid. Counterclaiming, the governor asserted that the
vetoed language violated the Alaska Constitution's confinement
clause. [Fn. 5] Both parties moved for summary judgment.
In a well-reasoned opinion, the superior court held that:
(1) four of the vetoes were invalid exercises of the item veto
power because the vetoed language was not an "item" (the court not
reaching the "item" issue as to the fifth appropriation); (2) one
veto was invalid because the governor did not sufficiently explain
his objections; (3) despite the invalidity of the five vetoes, all
five vetoed passages were nonetheless invalid because they violated
the constitution's "confinement clause" requirement that
appropriation bills be confined to appropriations; and (4) the
invalid passages were severable from the remainder of their bills.
[Fn. 6]
Both sides appeal. [Fn. 7]
III. DISCUSSION
A. Standard of Review
These appeals raise constitutional issues of law which we
decide by applying our independent judgment. [Fn. 8] In doing so
we will adopt "'a reasonable and practical interpretation in
accordance with common sense' based upon 'the plain meaning and
purpose of the provision and the intent of the framers.'" [Fn. 9]
Moreover, because these are questions of law, we will consider
precedent, reason, and policy. [Fn. 10]
B. Mootness
The governor argues that the issues relating to the
validity of his vetoes are moot because the fiscal year at issue is
now over. But we agree with the council that we should consider
these issues under the public interest exception to the mootness
doctrine. [Fn. 11] Appropriations are enacted every year and are
often spent before any dispute can reach this court. [Fn. 12]
Further, the public interest is directly affected by disputes about
the constitutional provisions implicated here. [Fn. 13] We
therefore reach the merits of these appeals.
There is a second mootness issue. In Part III.C.3, we
hold that the vetoed language in the three Alaska Seafood Marketing
Institute (ASMI) appropriations violated the confinement clause.
This holding technically moots any question about the validity of
those vetoes. And our conclusions in Parts III.C.1 and III.E.1 --
that four of the struck passages were not "items" -- also moot the
dispute about the adequacy of the governor's statements of
objections for those passages. But again, the public interest
exception to the mootness doctrine prompts us to consider these
issues.
C. The Alaska Seafood Marketing Institute Appropriations
The legislature enacted three appropriations for ASMI.
[Fn. 14] Each contained identical language which made the
appropriation "[c]ontingent on [ASMI] having no employees who are
located outside Alaska whose positions are classified at more than
Range 21 on the state salary schedule under AS 39.27.011 . . . ."
[Fn. 15] The governor struck this language from the three ASMI
appropriations.
Although it held that the governor adequately explained
his objections, the superior court held that the attempt to veto
"the contingency language" in the ASMI appropriations was "illegal
and of no effect," reasoning that "the item veto power encompasses
only the power to reduce or strike sums of money." It nonetheless
struck the disputed language because its inclusion violated the
confinement clause.
The council argues that these vetoes are invalid, because
the vetoed language was not an "item" within the meaning of the
Alaska Constitution, and also because the governor failed to
adequately state his objections to the vetoed language, contrary to
the constitution. The governor responds that the vetoes were valid
and that, in any event, the vetoed language is invalid because its
inclusion in appropriation bills violated the confinement clause.
1. Is the vetoed language an "item"?
Article II, section 15 of the Alaska Constitution gives
the governor power to exercise two different types of vetoes. Its
first sentence confers the general power to veto a bill. [Fn. 16]
Its second sentence confers the power, "by veto, [to] strike or
reduce items in appropriation bills." [Fn. 17] At issue here is
this power to "strike or reduce items" by exercising the item veto
while approving other parts of the same bill.
The question is whether the item veto power permits the
governor to strike from an appropriation bill descriptive language
that does not specify the amount appropriated. The superior court
held that it does not. It held that "the item veto power
encompasses only the power to reduce or strike sums of money." We
agree.
Our analysis focuses on the meaning of "item." We have
never addressed what "item" means in context of the item veto
power. Our constitution does not define the term.
Based on the language of our constitution, the historical
purposes of the item veto, and the pertinent public policy
considerations, we now define "item" as "a sum of money dedicated
to a particular purpose."
Our analysis begins with the Alaska Constitution. It
gives the legislature the power to legislate and appropriate. It
gives the governor the power to influence the state's budget by
requiring him or her to submit a proposed budget and general
appropriation bill to the legislature and by striking or reducing
items appropriated by the legislature. The governor's item veto
power is thus one of limitation. The governor can delete and take
away, but the constitution does not give the governor power to add
to or divert for other purposes the appropriations enacted by the
legislature.
This approach is consistent with our earlier discussion
of the governor's budgetary power. In Thomas v. Rosen we noted
that Alaska's constitutional convention delegates intended to
"create a strong executive branch with 'a strong control on the
purse strings' of the state." But this control gives the governor
no appropriation power. The item veto permits the governor only to
tighten or close the state's purse strings, not to loosen them or
to divert funds for a use the legislature did not approve. The
governor's power to control the purse strings is fully realized by
recognizing the governor's constitutionally defined -- and limited
-- role in the appropriations process.
The council argues that the governor's item veto power is
negative. We agree. True, striking out language might be
characterized as an act of positive creation to some extent; in the
broadest sense a new bill results. But such characterizations are
semantic. Our constitution does not give the governor the power to
rewrite appropriation bills except by striking or reducing items,
and if the constitutional delegates had intended to give the
governor the power to add or divert, they easily could have done
so.
The council also argues that the item veto power is an
executive exercise of legislative power, and therefore should be
strictly construed. Professor Briffault reasons that such
arguments fail to recognize the difference between the item veto
and the traditional veto. However the item veto power is
characterized, we conclude that it was intended only to limit the
legislature's appropriation power, not to grant the executive a
quasi-legislative appropriation power permitting appropriations the
legislature never enacted.
The definition we adopt here also seems most consistent
with the words of our constitution. First, the power expressly
applies to "items in appropriation bills." The word "item" conveys
a notion of unity between two essential elements of an
appropriation: the amount and the purpose. Altering the purpose of
the appropriation by striking descriptive words interferes with
that unity because the result is no longer the item the legislature
enacted. In comparison, striking the amount is the equivalent of
a complete veto of a particular appropriation. And reducing the
amount is a result the constitution expressly permits.
Second, the governor may either "strike" or "reduce" an
item. Reduction implies diminution. This suggests that an item
reduction must have a quantitative effect, implying that reduction
must affect the appropriation's amount. It seems unlikely that the
constitutional drafters intended the word "item" to have two widely
divergent meanings, one incorporating the essential element of
amount and the other not, depending on whether a governor chooses
to reduce or strike. We therefore think that "item" was intended
to include the element of amount.
Third, the phrase "strike or reduce" also implies a
greater/lesser relationship between these two forms of exercising
the item veto power. Reducing an item appears to be a lesser form
of striking an item. This implies that these two forms are
qualitatively similar and have equivalent effects, i.e., they
diminish the amount appropriated. Reducing an item lessens its
amount; striking it lessens its amount to nothing. This implies
that an "item" must include a sum of money. Likewise, a passage
that does not include a "sum of money dedicated to a particular
purpose" is not an "item" which the governor can strike or reduce.
Therefore, a veto that does not delete or reduce the amount of
money appropriated is not a valid exercise of the power article II,
section 15 grants.
The historical purposes of the item, or partial, veto
also support our analysis. It originated as a reform measure to
prevent legislators from "logrolling" when they enact appropriation
bills which necessarily address many subjects and need not be
confined to a single subject, and to give governors some ability to
limit state expenditures. These purposes seem most directed at the
amount of an appropriation. Permitting a governor to strike
descriptive language would not limit expenditures or help balance
a budget. And, although striking language that is only descriptive
might reduce logrolling, doing so would only alter purpose, not
amount. For reasons discussed below, this could result in an
appropriation at odds with what the legislature passed.
Finally, public policy disfavors a reading of "item" that
would permit the executive branch to substantively alter the
legislature's appropriation bills, effectively resulting in
appropriations passed without the protections our constitution
contemplates.
Other states with the item veto have announced a range of
judicial definitions. Professor Richard Briffault considers these
definitions to reflect three general approaches, which he describes
as (1) favoring the legislature, (2) balancing legislative and
executive prerogatives, or (3) favoring the executive. The
governor urges us to adopt an approach favoring the executive; the
council asks us to adopt an approach favoring the legislature. The
superior court adopted an approach generally favoring the
legislature. As Professor Briffault recognizes, however, item veto
decisions "resist easy classification," and his three-approach
categorization risks "enormous oversimplification." This case does
not require us to adopt any of these approaches.
Many courts have defined "item" in a way that makes the
amount of an appropriation an essential part of the item. They
reason that the item veto power is a "negative" power, limiting the
governor's authority to create new legislation through the creative
use of item vetoes. As one court held:
The power of partial veto is the power to
disapprove. This is a negative power, or a power to delete or
destroy a part or item, and is not a positive power, or a power to
alter, enlarge or increase the effect of the remaining parts or
items. . . . Thus, a partial veto must be so exercised that it
eliminates or destroys the whole of an item or part and does not
distort the legislative intent, and in effect create legislation
inconsistent with that enacted by the Legislature, by the careful
striking of words, phrases, clauses or sentences.[]
A few states define "item" as something less than a
coupling of a sum and a purpose. An example is found in State ex
rel. Wisconsin Senate v. Thompson. The Wisconsin Supreme Court
there held that "the governor may, in the exercise of his partial
veto authority over appropriation bills, veto individual words,
letters and digits . . . as long as what remains after veto is a
complete, entire, and workable law." No other state seems to have
followed Wisconsin's lead, although the Washington Supreme Court
held in Washington State Legislature v. Lowry that "[t]he
Governor's line item veto should extend to nondollar provisos in
appropriations bills."
A few courts prefer to focus on the circumstances of the
particular appropriation provision at issue. As in Colorado
General Assembly v. Lamm, these courts determine that whether there
is an "item" subject to the item veto power is "best accomplished
on a case-by-case basis."
Each general approach has benefits and drawbacks. An
approach more favorable to the executive would certainly advance
the item veto's historic purposes. But our definition of "item" --
"a sum of money dedicated to a particular purpose" -- does not
prevent the governor from using the item veto for those purposes.
We are therefore not persuaded by Professor Briffault's suggestion
that this result may erode the item veto's anti-logrolling
function.
Courts upholding gubernatorial item vetoes have sometimes
done so by invoking confinement clause policies in defining an
"item." Doing so seems problematic. First, it allows the governor
to exercise the item veto not because the struck passage is an item
of appropriation, but because it is not, i.e., because the struck
language violates the requirement that appropriation bills "be
confined to appropriations." Second, allowing the governor to veto
language because the governor thinks it violates the confinement
clause would confer on the chief executive an amendatory power
Alaska's constitution does not grant. We are therefore unpersuaded
by cases relying on this rationale. Lowry, on which the governor
bases much of his argument, is among these cases. An assertion
that a bill violates the confinement clause should be resolved by
debate squarely focusing on that issue, rather than by allowing the
confinement clause to be used to enhance a gubernatorial power
having different historical origins.
Applying the "item" definition here, we conclude that the
language struck from the ASMI appropriations is not an "item." It
does not appropriate a sum of money dedicated to a stated purpose.
By striking this language, the governor was not vetoing by striking
or reducing, but rather editing the ASMI appropriations. Upholding
these vetoes would give the governor the power to spend
appropriated monies without observing limitations enacted by the
legislature. This would permit a de facto re-appropriation.
Granting that power here would not advance the anti-logrolling and
budget-balancing purposes underlying the item veto, because these
vetoes did not reduce the amount of the ASMI appropriations.
Our conclusion in Part III.C.3 -- that these passages
cannot constitutionally be part of appropriation bills -- does not
alter our analysis of the "item" issue. Even if these passages did
not violate the confinement clause, they would not be "items"
subject to the item veto.
We therefore hold that the governor did not validly
exercise the item veto power when he struck this language from the
three ASMI appropriations.
2. Did the governor deliver a constitutionally
adequate statement of objections to the vetoed ASMI language in
chapter 100?
The governor must return "any vetoed bill, with a
statement of his objections, to the house of origin." We have
never decided what the governor must do to satisfy the "statement
of objections" requirement.
The three ASMI appropriations became parts of chapters 98
and 100. The veto message concerning what became chapter 98
stated: "In taking final action on the FY98 operating budget, I
followed a long-standing gubernatorial tradition of vetoing intent
language because it is not appropriate in an appropriations bill."
That message also stated:
I also vetoed language which purported to make
the appropriation for ASMI conditional on having no upper level
employees located outside the state because it violates the
constitutional limits placed on appropriation bills. To prevent
any unnecessary impediment to marketing efforts Outside during the
current salmon crisis, fish processors, fishers, and the ASMI board
urged me to veto this as a prudent exception to the general rule of
having state jobs located in Alaska.[]
The governor's veto message concerning what became the chapter 100
ASMI appropriations contained the same general "intent" objection
first quoted above, but did not include a separate explanation of
the sort set out in the quotation indented above.
The council argues that although the governor adequately
stated his objections to the language he struck from the ASMI
appropriation in chapter 98, his objection to the identical
language in the two ASMI appropriations in chapter 100 was
inadequate, invalidating those vetoes. The superior court held
that the legislature had adequate notice of the reasons for the
governor's chapter 100 ASMI vetoes because it received both the
governor's chapter 100 objection and the more complete chapter 98
objections at "literally the same minute."
The council objects to this "adequate notice" theory. It
argues that the governor should be required to give the legislature
specific notice of the objections to each bill to avoid constant
questions about the sufficiency of notice. The council also argues
that a governor might provide unclear objections for purposes of
delay and making untimely any attempt to override the veto. The
governor asserts that the legislature's argument elevates form over
substance, because the vetoes in this case were submitted at "the
same minute."
The requirement that the governor explain the reasons for
a veto serves at least two principal functions. It allows the
legislature to determine what it must do to avoid incurring another
veto. And it forces the governor to reveal his or her reasoning,
"so that both the Legislature and the people might know whether or
not he was motivated by conscientious convictions in recording his
disapproval."
We need not decide whether receipt of the explanation for
the chapter 98 veto gave "adequate notice" of the governor's
objections to chapter 100, because we hold that the governor's
"intent" objection for chapter 100 was itself sufficient.
We accept for discussion's sake the council's argument
that the governor's chapter 100 "intent" objection would have been
clearer if it had disclosed whether the governor would also
consider language which validly conditioned an appropriation to be
invalid intent language.
But in our view such a detailed disclosure is not
necessary. And attempting to distinguish between an objection
which asserts a facially valid ground for veto, and an identical
objection which arguably mischaracterizes the struck appropriation
language, would create complex and case-by-case interpretive
disputes. Subjecting the substantive adequacy of each objection to
judicial scrutiny would be unavoidably time-consuming. Judicial
involvement would be unlikely to generate bright-line distinctions
that would provide guidance useful in avoiding future disputes and
litigation. And ultimately such disputes are inherently political
because they implicate the appropriations and budgetary powers of
the legislature and the executive, and the political relationship
between those branches of government. The judiciary has no special
competence to settle these types of inherently political disputes.
We also think the purposes underlying the statement-of-objections
requirement do not demand case-by-case judicial review. The
legislature, through knowledge accumulated in dealing with the
governor, is capable of interpreting the sufficiency of an
objection, and is thus able to decide whether to enact an amended
appropriation or to seek a veto override. It is no less able than
the judiciary to compare the governor's words and the struck
language to decide for itself whether the governor was motivated by
"conscientious convictions." And the ultimate arbiter of that
question is the electorate.
The best way to resolve such disputes is to apply the
"minimum of coherence" standard when reviewing gubernatorial
objections. The Colorado Supreme Court adopted this approach in
Romer v. Colorado General Assembly, and we adopt it here for
Alaska. Under this approach, courts look to see whether the
objection makes comprehensible reference to the provision being
vetoed, and do not attempt to evaluate the reasoning underlying the
objection. In the words of the Colorado Supreme Court, "[t]o
disallow a veto for the complete absence of reasons is to establish
an objective standard -- one with which meddlesome courts cannot
tamper."
The governor's chapter 100 "intent" objection meets the
minimum-of-coherence standard. The language struck from chapter
100 can be fairly characterized as "intent" language, and the
objection clearly refers to the vetoed passages. We therefore
conclude that the objection is constitutionally adequate.
3. Does the vetoed language in the ASMI appropriations
violate the constitution's confinement clause?
We next consider the governor's argument that the
legislature violated the confinement clause by including the vetoed
language in the three ASMI appropriations. Our constitution
provides that "[b]ills for appropriations shall be confined to
appropriations." We have never delineated the boundaries of this
requirement.
The confinement clause prevents the legislature from
enacting substantive policy outside the public eye. The process
for enacting substantive bills gives meaningful opportunity for
public notice and comment. Article II, section 14 of the Alaska
Constitution requires three readings of a substantive bill, on
three separate days, "'to ensure that the legislature knows what it
is passing' and to ensure an opportunity for the expression of
public opinion and due deliberation." This opportunity may be
stifled if substantive provisions are attached to appropriation
bills in the form of conditions. Unlike other legislation,
appropriations are not subject to the single-subject requirement of
article II, section 13 -- a requirement meant to avoid logrolling.
Allowing substantive enactments in an appropriation bill may also
be problematic because appropriation bills are frequently a product
of a free conference committee and, as such, must be voted on in
their entirety and cannot be amended on the floor. Consequently,
as the superior court noted, the confinement clause prevents a
legislator seeking to advance unpopular legislation from burying it
in a popular appropriation measure. Strict enforcement of
constitutional limits helps ensure that the public will be fully
informed of proposed legislation.
The superior court here applied a confinement clause test
first articulated in 1983 by the superior court, Judge Walter L.
Carpeneti presiding, in Alaska State Legislature v. Hammond. The
superior court there addressed, among other issues, claims that
eleven appropriations violated the confinement clause. The
superior court wrote that to satisfy the confinement clause,
the qualifying language must be the minimum
necessary to explain the Legislature's intent regarding how the
money appropriated is to be spent. It must not administer the
program of expenditures. It must not enact law or amend existing
law. It must not extend beyond the life of the appropriation.
Finally, the language must be germane, that is appropriate, to an
appropriations bill.[]
We find the authority the superior court cited in Hammond
persuasive, and we approve the five-part Hammond formulation as a
non-exclusive test for deciding whether an appropriation violates
the confinement clause. We further elaborate on this test before
applying it.
The council suggests that the "minimum necessary"
language is best understood simply as a requirement that
"appropriation language explain how, when, or on what the money is
to be spent. Therefore, this part of the test is better expressed
as simply requiring the language to explain the legislature's
purpose regarding the appropriation." We agree generally with the
first of these propositions, but we believe that this factor is
better stated in terms of what it permits rather than what it
requires. This factor limits the legislature's ability to include
in an appropriation bill legislation cloaked as a "description."
The council suggests that the Hammond formulation quoted
above is deficient because an appropriation should be able to
change existing law on the subject of appropriations. The council
argues that the confinement clause is not violated when the
legislature amends a prior appropriation in an appropriation act.
We believe that this is an accurate statement of law. But the
Hammond formulation would not seem to preclude this practice in any
event, because the new appropriation bill would amend only a prior
appropriation, not an "existing law."
The council proposes additional illumination of the
prohibition on enacting or amending substantive law. The council
characterizes case law from other states as generally dictating
that an appropriation for a statutory program may not include
provisions changing the requirements of that program, even
temporarily for the purposes of that appropriation. The council
cites three Florida cases in support. Chiles v. Milligan
considered appropriation language that would have taken money to be
awarded under the statutory education funding formula and adjusted
it according to the ratio of classroom salaries to total salaries.
The court struck this language as an enactment of new law. In a
subsequent but similarly named case, Chiles v. Milligan, the court
struck down appropriation language that would have allowed
education funds to be used for purposes other than those specified
by statute. But in Department of Education v. School Board of
Collier County, the court upheld an appropriation provision that
increased funds for all schools except those with a millage value
per student of more than twenty percent of the statewide average;
the court reasoned that the appropriated money was in addition to
the standard education funding and therefore did not amend existing
law.
We agree with the council's assertion that the
differences between such cases reflect the tension between a desire
to prevent legislatures from using appropriation bills to make
programmatic changes (even for a year) and the realization that
legislatures do not have to fund or fully fund any program (except,
possibly, constitutionally mandated programs), and in fact may
choose to fund programs that are subject to conditions or
contingencies.
With regard to the germaneness requirement, the council's
brief usefully discusses cases from other jurisdictions concerning
what their confinement clauses permit and prohibit. The council
lists the following conditions and contingencies that state courts
have upheld as sufficiently "related" or "germane" to the money
appropriated: (1) limits on amounts that could be spent at an
individual facility; (2) limits on the number of employees for
which the money could be spent; (3) a prohibition against using the
money for new construction; (4) a requirement related to federal
funds; (5) a provision making an appropriation for driver education
contingent on the enactment of a tax on drivers' licenses; and (6)
a requirement that funds for contracted work be spent only if a
state laboratory could not perform the work.
On the other hand, the council notes that courts have
struck down these provisions because they were not sufficiently
connected with the expenditures: (1) a requirement that the money
not be spent for trade delegations unless there was nonpartisan
executive council representation; (2) a requirement that the inmate
population at a specified facility be reduced; (3) a provision
conditioning a department of health appropriation on the department
relinquishing federal money to a private family planning council;
(4) a requirement for giving notice of prisoners' escapes and
transfers; and (5) a prohibition against electioneering by district
attorneys in a certain parish.
The council characterizes the differences between these
cases as follows:
In general it appears that courts will uphold
conditions that could (albeit with some effort) be written as
purposes, e.g., which facilities, which employee positions, which
buildings or types of buildings, the money could be spent on. This
would be true even if the conditions were written in the negative,
e.g., "money from this appropriation may not be used to fund
employee contracts;" "money from this appropriation may not be used
to fund new construction." See Welden v. Ray, 229 N.W.2d 706, 710
(Iowa 1975). It also appears that contingencies will be upheld if
they relate to the receipt or nonreceipt of specific funds, e.g.,
federal funds, matching funds, the tax intended to fund the
expenditure, or relate to the occurrence or nonoccurrence of
something that would make the expenditure desirable . . . .
However, contingencies that relate to things other than the need
for or use of the money or the need for the activity, seem more
vulnerable to being found insufficiently "connected" to the
appropriation.
We agree with the council's characterizations of the limits on the
legislature's appropriation power. We do so not to predict the
outcome of future disputes or to minimize the importance of the
Hammond factors when analyzing a confinement clause dispute, but
because the legislative council, speaking for the legislature, has
usefully given examples of appropriation provisions which it
regards as unconstitutional.
In approaching confinement clause disputes, we assume
that an act of the legislature is constitutional. The burden of
showing unconstitutionality is on the party challenging the
enactment; doubtful cases should be resolved in favor of
constitutionality.
With this background, we now apply the five Hammond
factors to the vetoed language in the ASMI provisions.
a. Intent
The vetoed language required ASMI to move upper level
employees to locations in Alaska in order for ASMI to carry forward
monies from appropriations in prior years. These three ASMI
appropriations did not themselves appropriate monies for upper
level staffing. Rather, they addressed the "marketing [of] Alaska
seafood products." The vetoed language therefore expressed the
legislature's intent about how other ASMI appropriations were to be
spent, not its intent about how these appropriations were to be
used.
b. Administering the program
The vetoed language did not specify how these three
appropriations were to be used, and instead addressed staffing
funded under separate appropriations. This language effectively
administered ASMI's program because it limited the executive's
exercise of discretion in staffing and locating executive-branch
offices whose operations were funded by separate appropriations.
Because this language did not specify how these three
appropriations were to be spent, we do not need to decide here
whether, as the council argues, the appropriation power gives the
legislature authority to decide where executive-branch personnel
will be located. Likewise, we need not decide whether, as the
governor asserts, the appointment of executive officers is an
executive function, and whether the geographic location of
particular levels of state officials is the type of "close
supervision" of state government that is essentially executive in
character.
c. Germaneness
The council argues that the vetoed language is germane to
marketing seafood. The governor argues that it is not, because
employee location does not relate to ASMI's statutory duties. We
conclude that the vetoed language is not sufficiently germane
because these three appropriations do not fund staffing at any
location affected by the struck language. These appropriations
were for purchasing contractual services, expenditures unrelated to
encouraging "local hire." The superior court correctly observed
that separate appropriations funded state employee positions. The
vetoed language therefore is not germane to these three
appropriations. Given the absence of any direct relationship, it
is insufficient that the language arguably has some general
relationship -- because it generally concerns ASMI and the
performance of ASMI's duties -- to the ASMI appropriations in
chapters 98 and 100.
d. New substantive law
The superior court found the vetoed language
objectionable because it addressed an issue of substantive law,
local hire, that the legislature has repeatedly addressed with
substantive legislation. We agree that this language has the
effect of creating a "mini-local hire law." According to the
legislature's drafting manual, "an appropriation bill may not
contain substantive provisions." Permitting it to enact
substantive policy in one appropriation bill by imposing conditions
on another appropriation bill would reduce the public scrutiny and
debate which accompany policy making, and could encourage
logrolling and free-riders to achieve results not politically
attainable in non-appropriation bills.
The council argues that the legislature could have
accomplished the same result with line-item appropriations and that
the legislature followed the equivalent of that process. But we
think that the process followed here was not equivalent. Line-item
appropriations would have been subject to item vetoes, and would
have required the legislature to give individualized consideration
to each ASMI budget item. The legislature did not follow that
course. The vetoed language here substantively affected the use of
other appropriations, and cannot be considered merely a condition
attached to the chapter 98 and 100 appropriations. In reaching
beyond these appropriations, the struck language created new
substantive law.
e. Life of the appropriations
These appropriations did not state whether the out-of-
state staffing limitation expired with the fiscal year. And the
vetoed language does not direct how these appropriations were to be
spent. It was instead intended to limit other appropriations. It
is therefore unclear whether the life of the staffing limitation
actually extended beyond the duration of the ASMI appropriations in
chapters 98 and 100.
f. ASMI conclusion
Regardless of whether the vetoed language was to extend
beyond the life of these three ASMI appropriations, it violates the
other four Hammond factors. We therefore conclude that including
the vetoed language in the chapter 98 and 100 ASMI appropriations
violated the confinement clause. The superior court correctly
reached the same conclusion.
D. Community Residential Center Appropriation
The legislature appropriated funds to the Department of
Corrections for "new community residential centers" (CRCs). This
appropriation included the following passage: "This appropriation
is for new CRC beds, not owned or controlled by municipalities, to
provide space in institutions for violent felons. All beds will
meet department standards for Community Residential Centers.
Contracts will be competitively bid." The governor vetoed all
three sentences in this passage.
1. Was the struck CRC language an "item"?
Having decided that the veto of this passage was invalid
because the governor's veto explanation was inadequate, the
superior court did not decide whether the struck passage was an
"item." The council only tangentially suggests that it was not an
item. The governor does not appear to address the issue on appeal.
Our discussion of the item veto in Part III.C.1, in
context of the ASMI appropriations, clearly indicates that the
language struck from the CRC appropriation was not an "item."
2. Was the governor's statement of objectionsadequate?
The governor's veto message for chapter 98 stated: "In
taking final action on the FY98 operating budget, I followed a
long-standing gubernatorial tradition of vetoing intent language
because it is not appropriate in an appropriations bill." Does
this objection adequately explain this veto?
The superior court held that it did not. The court
reasoned that the governor's general "intent" objection could not
be said to cover the vetoed CRC language because the vetoed passage
"clearly was not intent language," and no other explanation
arguably applied.
For reasons discussed above in Part III.C.2, this is the
type of interpretation that courts should avoid when considering
the constitutional sufficiency of a statement of objections. The
reviewing court should simply determine whether the objection makes
comprehensible reference to the provision being vetoed, and should
not attempt to evaluate the reasoning underlying the objection.
The governor's "intent" objection meets this minimum-of-
coherence standard. The struck language can permissibly be
characterized as merely expressing the legislature's intent. The
governor's explanation for vetoing the CRC language is therefore
constitutionally adequate.
3. Did the language struck from the CRC appropriation
violate the confinement clause?
Applying the Hammond factors and the presumption of
constitutionality discussed in Part III.C.3, we next determine
whether including the struck passage violated the confinement
clause.
Some of the factors seem to be in relative balance. The
qualifying language in the first sentence is the "minimum necessary
to explain the Legislature's intent" about how the money is to be
spent. The second sentence also describes how the money is to be
spent, but can be read to specify standards; the third specifies
procedures and does not describe what the money is for. These two
sentences can be read to administer the program or to impose
substantive requirements better addressed in a substantive bill.
Likewise, the first sentence is clearly germane and appropriate to
an appropriation bill, the second may be, and the third is not.
None of the vetoed language seems to extend beyond the life of the
appropriation. Therefore, the first, second, and fifth Hammond
factors are in balance and the fourth favors finding no violation.
Further, the struck language does not clearly offend the
third Hammond factor (no enactment of new law or amendment of
existing law). The governor argues that because the words "not
owned or controlled by municipalities" prevented the department
from using this appropriation to contract with municipalities to
provide CRC space, they substantively changed existing law, which
allowed the commissioner to contract with municipalities. The
council responds that AS 33.30.031(a) allows for use of public or
private facilities, and that a decision to fund one type of
facility over the other does not enact new law. We agree with the
council. Alaska Statute 33.30.031 authorizes the commissioner to
contract with municipalities. But it does not require the
commissioner to put municipalities on footing equal with private
enterprise as potential providers of new CRC bed space. The
appropriation therefore does not preclude the commissioner from
fulfilling the department's statutory mandate. Instead, it
specifies the type of CRC space the money covers.
We conclude that the CRC appropriation does not violate
the confinement clause.
4. Does the vetoed language in the CRC appropriation
violate the principle of separation of powers?
The Alaska Constitution provides that "[t]he executive
power of the State is vested in the governor." The governor argues
that the vetoed language violates this provision and thus the
principle of governmental separation of powers because it
eliminates the department's discretion to contract with public
agencies to provide CRC space. The council argues that the policy
decision to fund privately owned CRCs rather than publicly owned
CRCs was a legitimate exercise of legislative power. We agree with
the council. We held above that this language does not preclude
the department from fulfilling its statutory mandate. Instead,
this language embodies a permissible policy decision on how to
spend the CRC money. It therefore does not violate the separation-
of-powers principle.
E. Valdez Therapeutic Treatment Program Appropriation
The governor vetoed language in a bill appropriating
funds to the Department of Corrections for a therapeutic treatment
community program in Valdez. The vetoed language refers to the
efficiency of the program, apparently without legal effect.
1. Is the vetoed language an "item"?
Applying the standard discussed in Part III.C.1, we first
consider whether the vetoed language is an "item." The council
argues that it is not, because it directed the appropriation's use.
Alternatively, we think this language may be read simply to
describe the program. Either way, the vetoed language is not an
"item" because it does not appropriate any sum of money to a
particular purpose. The veto was therefore invalid.
2. Was the governor's statement of objections
adequate?
The council argues that the governor's veto explanation
is inadequate. This appropriation was part of what became chapter
100. The question is whether the governor's general "intent"
objection adequately explained his veto, the same question
discussed in Part III.D.2 in context of the CRC appropriation.
Applying the minimum-of-coherence standard described there, we
conclude that it did. The vetoed passage can be characterized as
intent language and the governor's objection coherently refers to
the vetoed provision.
3. Does the vetoed language in the treatment program
appropriation violate the confinement clause?
This bill appropriated $400,000 for an inmate program in
Valdez "where cost per inmate day (exclusive of treatment costs)
will not exceed the statewide average cost per inmate day for
correctional institutions." The governor struck the quoted
language. Did including the vetoed language violate the
confinement clause? The correct answer is not obvious, primarily
because it is not clear what effect, if any, this language has. It
is unclear whether it conditions the way the Valdez facility was to
be run or simply describes the program. The former reading would
violate the confinement clause; the latter would not.
Despite this ambiguity, we conclude that this language
does not violate the confinement clause. Because one permissible
reading of the language is constitutional, and because we think it
preferable to choose the reading that avoids unconstitutionality,
we conclude that this language is descriptive and non-binding. We
therefore hold that its inclusion did not violate the confinement
clause.
4. Does the vetoed language in the treatment program
appropriation violate the principle of separation of powers?
The governor contends that the vetoed treatment program
language impermissibly interferes with the administration's
discretion in managing the program and therefore violates article
III, section 1 of the Alaska Constitution and the separation-of-
powers principle. The council counters that there is "little
point" to this language, but that it is a legitimate attempt to
minimize costs.
We concluded above that this language did not violate the
confinement clause because it could be read as a description of the
program. The same reasoning applies here. Because this language
can permissibly be read not to direct the executive branch to take
any action, it does not interfere with executive discretion. We
therefore conclude that this language does not violate the
principle of separation of powers.
F. Other Issues
The council contends that if an appropriation is
unconstitutional because it violates the confinement clause, the
violative language is not severable. Accepting that contention
would inevitably require us to invalidate an entire appropriation
item if we found it contained language violating the confinement
clause. If we were to routinely invalidate an entire appropriation
whenever a part violates the confinement clause, we would chill
potentially meritorious lawsuits seeking to litigate confinement
clause issues. We decline to create such a disincentive. We
conclude that after the offending language is removed from the ASMI
appropriations, the remaining language is independent and complete.
We therefore presume that the legislature would have enacted the
valid parts without the invalid parts.
The parties also dispute whether the vetoed ASMI language
violated the principle of separation of powers. Given our
conclusion that this language must be struck because it violated
the confinement clause, it is unnecessary for us to reach the
separation-of-powers issue as to the ASMI appropriations.
IV. CONCLUSION
As to the three ASMI appropriations, the language the
governor struck was not subject to a valid exercise of the item
veto power. Nonetheless, the disputed language must be struck from
these appropriations because its inclusion violated the confinement
clause. We therefore agree with the result the superior court
reached with respect to these appropriations.
As to the new community residential centers (CRC)
appropriation, we hold that including the disputed language did not
violate the confinement clause. We also conclude that the
governor's statement of objections was constitutionally sufficient.
Ordinarily these two conclusions would require a remand to the
superior court to resolve the issue which the court left undecided
as to this appropriation, namely, whether the disputed language was
an item subject to an item veto. But because we have indicated
based on the briefing in this case relating to the other
appropriations that the disputed language was not an item subject
to line-item veto, and because this issue is moot, it is sufficient
merely to VACATE the judgment of the superior court insofar as it
relates to the CRC appropriation.
As to the Valdez therapeutic treatment program
appropriation, we hold that the disputed language was not subject
to the item veto and that including the disputed language did not
violate the confinement clause. We therefore REVERSE the result
reached by the superior court with respect to this appropriation.
BRYNER, Justice, with whom CARPENETI, Justice, joins, dissenting in
part.
I join in all parts of the opinion except its conclusion
that the confinement clause allowed the legislature to include
language in the Valdez Therapeutic Treatment Program appropriation
that was merely descriptive. I would hold that the disputed
language violates the confinement clause, even though it is merely
descriptive. Because this language is wholly superfluous, it
violates Hammond's necessity factor; as a superfluous and
ineffectual appendage, its presence necessarily prevented the
appropriation measure from being confined to an appropriation. Nor
should this descriptive appendage be excused on the ground that it
is "apparently without legal effect." [Fn. 1] Its presence is
almost as damaging as if it were binding. The governor and other
executive branch officials have no way of knowing whether
gratuitous language like this is mandatory or descriptive. They
must choose between guessing that the language means nothing, at
the risk of being wrong, or challenging the language in court to
find out what it means. Either way, the language creates a problem
by constraining executive branch action. By holding that the
legislature is free to include superfluous descriptions in
appropriation measures without violating the confinement clause,
the court's opinion allows it to do so routinely in the hope that
the executive branch will mistake the language as directory and
follow it.
CARPENETI, Justice, dissenting in part.
I agree with all parts of the court's opinion except two
dealing with the confinement clause. Under the same test that the
court applies to conclude that the ASMI appropriations violated the
confinement clause, I believe that the struck language in the
appropriations for both the Valdez Therapeutic Treatment Program
and Community Residential Center also violated the confinement
clause. I join Justice Bryner's dissent concerning the former. As
he persuasively shows, even merely descriptive language can cause
mischief in the balance of powers between the legislature and the
executive.
In my view, the struck language concerning the CRC
appropriation is at least equally objectionable: In limiting the
expenditures to facilities "not owned or controlled by
municipalities," the legislature prevented the department from
using this appropriation to contract with municipalities to provide
CRC space. This language substantively changed the existing law
that allowed the commissioner to contract with municipalities. [Fn.
1] The struck language therefore inappropriately interfered with
the discretion previously granted to the executive branch by
substantive law.
The court says there is no confinement clause violation
because, while AS 33.30.031 authorizes the commissioner to contract
with municipalities, "it does not require the commissioner to put
municipalities on footing equal with private enterprise as
potential providers of new CRC bed space." (Slip Op. at 36,
emphasis in original.) With respect, I do not believe that is the
issue. The issue is whether the language amends existing law, and
I believe it does: For purposes of this appropriation only, it
repeals AS 33.30.031(e), which otherwise gives the commissioner the
power to contract with municipalities. The language purports to
take away from the commissioner a power she clearly enjoys under AS
33.30.031(e). Thus, it violates the confinement clause. I would
affirm the superior court's holding to that effect.
FOOTNOTES
Footnote 1:
See Alaska Const. art. II, sec. 15 ("The governor may veto
bills
passed by the legislature. He may, by veto, strike or reduce items
in appropriation bills. He shall return any vetoed bill, with a
statement of his objections, to the house of origin.").
Footnote 2:
See Alaska Const. art. II, sec. 13 ("Bills for appropriations
shall be confined to appropriations.").
Footnote 3:
See chs. 98, 100, SLA 1997.
Footnote 4:
See Alaska Const. art. II, sec. 15.
Footnote 5:
See Alaska Const. art. II, sec. 13. The parties later agreed
to
treat the governor's counterclaims as defenses, to avoid the
question of legislative immunity.
Footnote 6:
As to other vetoes not at issue in these appeals, the superior
court held that the council's challenges were moot, because the
appropriated money had already been spent.
Footnote 7:
We commend all counsel for the quality of their briefs and
oral arguments.
Footnote 8:
See Cook v. Botelho, 921 P.2d 1126, 1128 (Alaska 1996).
Footnote 9:
Id. at 1128-29 (quoting Arco Alaska, Inc. v. State, 824 P.2d
708, 710 (Alaska 1992)).
Footnote 10:
See Langdon v. Champion, 752 P.2d 999, 1001 (Alaska 1988).
Footnote 11:
See Kodiak Seafood Processors Ass'n v. State, 900 P.2d 1191,
1196 (Alaska 1995). The public interest exception requires us to
consider: (1) the possibility of recurrence or repetition of the
issue; (2) the danger that mootness would repeatedly circumvent
[Fn. 18]review of the issue; and (3) the importance of the issue to
the public interest. See id. at 1196.
Footnote 12:
See Thomas v. Rosen, 569 P.2d 793, 795 (Alaska 1977) ("[A]
challenge to an item veto may not come within sufficient time to
fully litigate the matter . . . .").
Footnote 13:
Cf. Fordice v. Bryan, 651 So. 2d 998, 1001 (Miss. 1995)
("[P]ublic policy and the magnitude of the importance of these
issues require[] this Court to review the Governor's actions with
respect to the . . . appropriations bills as such actions may
continue to be repeated and forever escape review . . . .").
Footnote 14:
See ch. 98, sec. 6, SLA 1997; ch. 100, sec.sec. 47, 70, SLA
1997.
Section 70 of chapter 100 amends section 6 of chapter 98.
Footnote 15:
Ch. 98, sec. 6, SLA 1997; ch. 100, sec.sec. 47, 70, SLA 1997.
The
state salary schedule specifies twenty-six ranges, labeled five to
thirty. See AS 39.27.011(a). In 1997 a Range 21 Step A employee
was to be paid $4,155 monthly, subject to cost-of-living
adjustments. See AS 39.27.011(a), (e), (f) (1996).
Footnote 16:
Alaska Const. art. II, sec. 15 ("The governor may veto bills
passed by the legislature. He may, by veto, strike or reduce items
in appropriation bills. He shall return any vetoed bill, with a
statement of his objections, to the house of origin.").
Footnote 17:
Id.
Footnote 18:
The Uniform Rules of the Alaska State Legislature state that
"[a]n item in an appropriation bill includes a line item, an
allocation, and an appropriation." Uniform Rules Alaska State
Legislature R. 42(c) (1998). But this definition does not address
what constitutes an "item" in the context of the item veto power.
FOOTNOTES (Bryner Dissent)
Footnote 1:
Slip Op. at 38.
FOOTNOTES (Carpeneti Dissent)
Footnote 1:
AS 33.30.031 provides in relevant part:
(a) The commissioner shall determine the
availability of state correctional facilities . . . . If the
commissioner determines that suitable state correctional facilities
are not available, the commissioner may enter into an agreement
with a public or private agency to provide necessary facilities. .
. .
. . . .
(e) The commissioner may enter into an
agreement with . . . a municipality of this state . . . to provide
a correctional facility . . . .
