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Washington State Legislature v. Lowry

February 27, 1997


Appeal from Superior Court of Thurston County. Docket No: 94-2-02725-2. Date filed: 06/27/95. Judge signing: Hon. Wm. T. McPhee.

Authored by Philip A. Talmadge. Concurring: Barbara Durham, James M. Dolliver, Charles Z. Smith, Richard P. Guy, Charles W. Johnson. Dissenting: Barbara A. Madsen, Gerry L. Alexander, Richard B. Sanders.

The opinion of the court was delivered by: Talmadge


TALMADGE, J. -- Governor Mike Lowry vetoed portions of bills enacted in the 1994 session of the Legislature. Rather than overriding the vetoes, the Legislature filed a declaratory judgment action in the Thurston County Superior Court seeking to invalidate them. The Legislature asked the court to establish limiting parameters of the Governor's veto authority under article III, section 12 of the Washington Constitution.

There is no more difficult and controversial aspect of relations between our branches of government than the Governor's use of the veto. Historically, Legislatures and Governors have sought to gain political advantage, the Legislature by carefully drafting legislation to avoid vetoes, and the Governor, by vetoing all or parts of bills.

Pursuant to our historical, constitutional role, we intervene in this controversy to uphold both the power of the Legislature to write legislation as it may choose, and the power of the Governor to exercise the general and line item veto. In this opinion, we seek to delineate and maintain the proper constitutional balance between the coordinate branches of our State government with respect to the veto. ISSUES

1. Does the veto power of the Governor extend to portions of legislation not formally denominated as sections by the Legislature?

2. Does the veto power of the Governor extend to provisions in appropriations bill that condition how specific sums of money may be spent?

3. Does the veto power of the Governor extend to provisions in appropriations bills that condition how money may be spent, but do not reference a specific sum of money?

4. Does the veto power of the Governor extend to provisions in appropriations bills reducing expenditures?


In the 1994 legislative session, the Legislature enacted various bills that Governor Lowry vetoed at least in part. The Legislature did not override the Governor's veto by two-third votes of both houses, as authorized by article III, section 12 of the constitution. Instead, the Legislature commenced a declaratory judgment action against the Governor in the Thurston County Superior Court, contesting the validity of the vetoes under article III, section 12.

The vetoes at issue fall into three broad categories. The first relates to the Governor's veto of subsections of legislation, each of which repealed an entire act or section of an act. *fn1 While the Legislature designated these repealers as "subsections," the Governor contended the subsections were, in fact, sections of a bill to which his veto power extended. With respect to ch. 143, Laws of 1994, for example, sec. 513 of the legislation contains 103 numbered subsections, each repealing an entire legislative act or section of an act.

The second broad category pertains to the Governor's vetoes of language conditioning how an agency may spend an appropriation. *fn2 However, there are two subsets of such budget provisos *fn3 before us. "Dollar provisos" are subsections of appropriations bills conditioning the appropriation to an agency on compliance with legislative direction that certain funds be spent or not be spent, or the agency take or not take certain action. For example, sec. 135 of Laws of 1994, 1st Sp. Sess., ch. 6, appropriates $41,497,000 to the Department of General Administration, but requires in sec. 135(9) that $171,000 of the general appropriation be spent only for the purpose of a statewide co-location program.

The second type, "nondollar provisos," makes no reference to a specific dollar amount. For example, in Laws of 1994, ch. 303, sec. 5, the Legislature appropriated $145,609,000 to the Washington State Patrol Field Operations Bureau, but conditioned the appropriation by stating in sec. 5(4) only commissioned officers may be issued motor vehicles by the Washington State Patrol. This nondollar proviso makes no reference whatsoever to a monetary amount associated with the use of the vehicles.

Finally, the Governor vetoed sections of a transportation appropriations bill where the Legislature reduced an appropriation, but conditioned the reduction on certain actions. *fn4 In Laws of 1994, ch. 303, sec. 5, the Legislature reduced the appropriation to the State Patrol Highway account by more than $2 million, but established a new proviso setting the maximum amount that could be spent on breathalyzers and established accounting procedures for the federal funds received by the Patrol for providing security at a national legislative conference. The Governor vetoed the reduction, but left the new provisos intact.

The trial court, the Honorable Wm. Thomas McPhee, granted summary judgment on May 1, 1995, declaring the Governor's vetoes of subsections invalid. The trial court, however, determined the Governor's vetoes of appropriations bill provisos were valid and the appropriations were not affected by the vetoes. Likewise, the trial court ruled the Governor's vetoes of appropriations reductions were valid and did not alter the provisos to such appropriations that remained. Both parties appealed and we granted direct review. RAP 4.2(a).


The Washington Constitution confers upon the Governor general veto authority over legislation and a distinct veto power over "appropriation items":

If any bill presented to the governor contain several sections or appropriation items, he may object to one or more sections or appropriation items . . . Provided, That he may not object to less than an entire section, except that if the section contain one or more appropriation items he may object to any such appropriation item or items. Wash. Const., art. III, sec. 12 (amend. 62). Under the general veto power, the Governor may veto a whole bill or a section of a bill. Additionally, the Governor's constitutional veto power, traditionally described as the line item veto power, also extends to "appropriation items."

Washington's Constitution has contained a broad veto power for the Governor since statehood. *fn5 The Governor's veto extended to full bills, sections of bills and items in bills. Const. 1889, art. III, sec. 12 ("one or more sections or items"). The scope of article III, section 12, as originally adopted, was limited by the 62nd Amendment in 1974. The item veto power of the Governor was limited to appropriations items, restricting a practice, initiated by Governor Rosellini and used by Governor Evans, to veto items in nonappropriations bills. See, e.g., Washington Ass'n of Apartment Ass'ns, Inc. v. Evans, 88 Wash. 2d 563, 564 P.2d 788 (1977); State ex rel. Ruoff v. Rosellini, 55 Wash. 2d 554, 348 P.2d 971 (1960).

The general purpose of the appropriations item or line item veto is two-fold. First, it gives the Executive, who is elected statewide rather than from a particular district, the power to achieve fiscal constraint and to advance statewide rather than parochial fiscal interests; the Governor can excise unneeded "pork barrel" programs or projects from an appropriations bill so as to restrain public expenditures. This purpose of the line item veto is consistent with the requirement in the Budget and Accounting Act, RCW 43.88, that the Governor submit and the Legislature enact a balanced biennial operating budget. See Karcher v. Kean, 97 N.J. 483, 507, 479 A.2d 403 (1984) ("The constitutional line-item veto power serves the governmental need to have a balanced budget in place at the start of the fiscal year"). See also Stephen Masciocchi, The Item Veto Power in Washington, 64 Wash. L. Rev. 891, 892-93 (1989).

Second, a line item veto is designed to permit the Governor to disentangle issues so they will be considered on their individual merits. This policy is consistent with the constitutional framers' evident fear of legislative logrolling and the other checks on such logrolling placed in the Washington Constitution. Masciocchi, 64 Wash. L. Rev. at 892-93 n.13.

Despite the policy purposes underlying the veto power, courts, legislators, and Governors have had significant difficulties defining a "section" and "appropriation item." We attempt here, in the Court's constitutional role as interpreter of the Washington Constitution, to set forth operating guidelines.


The Legislature argues Governor Lowry may veto only complete sections of a bill, and the Legislature has sole discretion to designate sections, citing Washington State Motorcycle Dealers Ass'n v. State, 111 Wash. 2d 667, 763 P.2d 442 (1988) (Motorcycle Dealers). The Governor asserts the vetoed provisions constitute entire de facto sections even though they fall under subsection headings. The trial court agreed with the Legislature.

The checkered history of the use of gubernatorial vetoes over sections of legislation substantially demonstrates the creativity of both the legislative and executive branches of government. At one extreme, in Washington Ass'n of Apartment Ass'ns, Inc., 88 Wash. 2d 563, 564 P.2d 788, this Court confronted a creative exercise of the gubernatorial veto power when Governor Evans vetoed provisions of the 1973 Residential Landlord Tenant Act in such a way as to completely rewrite portions of the legislation. We held article III, section 12 prohibits use of the veto power to reach a new or different result than the Legislature intended. A Governor could use the veto power only to prevent an act or a part of an act from becoming law. See generally Timothy P. Burke, The Partial Veto Power: Legislation by the Governor, 49 Wash. L. Rev. 603 (1974).

At the opposite end of the spectrum, in Fain v. Chapman, 94 Wash. 2d 684, 619 P.2d 353 (1980), the Legislature enacted legislation containing numerous separately identifiable subjects as a single legislative section. The plain purpose of the "section" designation was to circumvent a veto. We held whether a vetoed portion of legislation constitutes a section under article III, section 12 was a question of law to be decided by the courts, and although the sections drafted by the Legislature are entitled to considerable weight, they are not dispositive of the courts' consideration of the Governor's constitutional veto power. We upheld Governor Ray's veto of a portion of legislation, which, in creating certain judicial positions, purported to address how the positions would be filled. See Heidi A. Irvin, Note, Washington's Partial Veto Power: Judicial Construction of Article III, Section 12, 10 U. Puget Sound L. Rev. 699 (1987). See also Cascade Tel. Co. v. Tax Comm'n, 176 Wash. 616, 619, 30 P.2d 976 (1934) (meaning of "section" not limited by the "artificial construction of the legislative measure").

Finally, in Motorcycle Dealers, we considered the validity of the Governor's vetoes of certain portions of an act the Legislature had denominated as subsections, as well as entire sections of the bill. After recounting the history of Governors' increasing use of the item veto, the Court discussed Senate Joint Resolution 140, adopted by the people as the 62nd Amendment to the Washington Constitution in 1974 to resolve competing contentions about the proper use of the item veto:

The amendment wrought three things. First, it limited use of the item veto to appropriation bills. Second, it added a new express prohibition against partially vetoing anything less than "an entire section" (italics ours) of a nonappropriation bill. And third, it provided the Legislature with authority to reconvene itself into extraordinary session within 45 days of adjournment to override vetoes.

Motorcycle Dealers, 111 Wash. 2d at 673. We ultimately held the veto applied only to "entire sections of nonappropriation bills, not portions of sections." Id. We overruled Fain and held whatever the Legislature deems to be a section will be held to be a section by the courts for purposes of article III, section 12. The trial court below followed the Motorcycle Dealers approach and held that a legislative designation of a section is dispositive of whether a section in a bill is a section to which the Governor's veto power under article III, section 12 applies.

The Dissent argues the majority opinion effectively overrules the Motorcycle Dealers case, Dissent at 4, and asserts the majority opinion adopts the "separate subject test" for gubernatorial vetoes. Neither contention is correct.

The Court in Motorcycle Dealers, however, was not confronted with a case of legislative manipulation of the designation of sections in a bill to forestall exercise of the gubernatorial veto. Here, the Legislature drafted sec. 513 of the Laws of 1994, ch. 143 to include 103 numbered subsections. Each subsection repealed an entire existing act or section of our code. The Governor vetoed two subsections of sec. 513 which repealed full sections of other enactments. It is difficult to understand how the repeal of an entire section of the Revised Code of Washington can escape the Governor's section veto power simply because the Legislature designated the repeal a "subsection" of a larger section of a bill. Each of the "subsections" of sec. 513 was previously a "section" of a bill.

The legislative drafting to evade the gubernatorial veto in this case is easier to detect than in Fain, where the Legislature chose to place numerous substantive provisions in a single section of a bill. An imaginative legislator can include a variety of popular and unpopular provisions that normally would appear in separate sections of the larger piece of legislation in a single section so as to circumvent the gubernatorial veto. If the Court does not perceive and correct such attempted action, the Governor is left with the Hobson's choice of vetoing the entire legislation (the other more than 100 RCW sections repealed by sec. 513 were obviously acceptable to the Governor) or letting the entire legislation become law.

Motorcycle Dealers should not be read to compel this Court to refrain from any involvement with the Governor and the Legislature over the veto power. the so-called bright-line rule advocated by the Dissent stating the courts defer absolutely to the Legislature on the designation of a section will not end the tension between the branches over the veto power. Obviously, Motorcycle Dealers did not put the issue to rest, as the present case attests.

We decline to abandon our constitutional responsibility to referee disputes between the branches. If the Court withdraws from the fray, the delicate constitutional balance the Framers erected and the people amended between the executive and legislative branches with respect to the veto power is upset. If this Court declines to exercise its constitutional responsibility to define a "section" to which the Governor's veto applies, it entrusts the sectional veto to the sole discretion of the Legislature, a result the Framers clearly did not intend. Our constitution condones neither artful legislative drafting nor crafty gubernatorial vetoes. We must carry out our mandate as the Supreme Court of Washington to decide whether legislative designation of sections is true to the spirit of the constitution.

Only rarely, and reluctantly, as Motorcycles Dealers mandates, will we be drawn into the controversy between the Governor and the Legislature over the definition of a section. We defer to the Legislature's designation of a section in a bill just as we defer to the Legislature's finding of facts. CLEAN v. State of Washington, 130 Wash. 2d 782, 928 P.2d 1054 (1996); City of Tacoma v. Luvene, 118 Wash. 2d 826, 851, 827 P.2d 1374 (1992); State ex rel. Hamilton v. Martin, 173 Wash. 249, 257, 23 P.2d 1 (1933). The Legislature's designation of a section is conclusive unless it is obviously designed to circumvent the Governor's veto power and is "a palpable attempt at dissimulation." State ex rel. Martin, 173 Wash. at 257. But where, as here, we discern legislative drafting that so alters the natural sequences and divisions of a bill to circumvent the Governor's veto power, we reserve the right to strike down such maneuvers. Similarly, if a Governor manipulates the veto power as in Washington Ass'n of Apartment Ass'ns, Inc., we will also intervene to forestall such conduct. *fn6

We expressly decline to offer bright-line definitions of legislative or gubernatorial manipulation. Such definitions, rather than constraining, are more likely to provide guidelines for evasion should the Legislature or the Governor be so inclined. Our rare and reluctant involvement will be to ensure that neither the Legislature nor the Governor will so conduct its affairs -- the Legislature in bill drafting and the Governor in exercising the veto -- that the coordinate branch of ...

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