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In re Karcher

Decided: May 11, 1983.

IN THE MATTER OF ALAN J. KARCHER, INDIVIDUALLY AND AS SPEAKER OF THE GENERAL ASSEMBLY OF THE STATE OF NEW JERSEY, AND CARMEN A. ORECHIO, INDIVIDUALLY AND AS PRESIDENT OF THE SENATE OF THE STATE OF NEW JERSEY, APPELLANTS,
v.
THOMAS H. KEAN, GOVERNOR OF THE STATE OF NEW JERSEY, RESPONDENT



On appeal from the Final Decision of the Governor of the State of New Jersey deleting certain language from Senate Bill No. 1600.

Matthews, Antell and Francis. The opinion of the court was delivered by Matthews, P.J.A.D.

Matthews

[190 NJSuper Page 200] This is an appeal from the action of Thomas H. Kean, Governor of the State, deleting certain appropriations from and reducing other appropriations in Senate Bill 1600 (ultimately L. 1982, c. 49). Appellants claim that this action was in excess of

his line-item veto power granted by N.J. Const. (1947), Art. V, § I, par. 15.

Senate Bill 1600 represented the proposed financial plan for the State of New Jersey for the fiscal year 1983. It was adopted by both houses of the State Legislature on June 28, 1982 and was then sent to the Governor to permit him to review and either sign it as passed by the Legislature or return it to the Legislature with deletions made under the power granted to him in the Constitution.

Governor Kean signed Senate Bill 1600 into law on June 30, 1982. He indicated in his message to the Senate that he did so reluctantly, since in his opinion it did not meet the financial needs of the State. He stated that he considered vetoing the entire budget, but "[i]nstead I have employed my line item veto authority to bring the budget into balance and create an adequate surplus." Governor Kean appended a statement of the items in the bill to which he objected, as required by N.J. Const. (1947), Art. V, § I, par. 15. He vetoed certain items which he felt violated the State Constitution by authorizing a Senate subcommittee to share responsibility traditionally assigned to the executive branch. He also vetoed some other expenditures in order to increase the general fund.

Although the Legislature can override the Governor's veto upon a two-thirds vote in both houses, N.J. Const. (1947), Art. V, § I, par. 15, neither house attempted to do so. Instead, appellants filed this appeal on August 13, 1982. Appellants do not challenge all of the reductions made by the Governor, but challenge a number of the changes he made as being in excess of the constitutional authority vested in him.

N.J. Const. (1947), Art. VIII, § II, par. 2*fn1 establishes the general framework of the form and content of the general

appropriations act adopted annually by the Legislature and the Governor, and is, consequently, the source of the general budgetary principles relevant here: (1) the withdrawal of any money from the State Treasury can only be done pursuant to legislative authorization accomplished by statute; (2) the State must annually adopt a single balanced budget covering the whole of the State's fiscal year, and (3) the general appropriations act must be limited to items of appropriation of money and such language conditions, provisos or directives reasonably connected with the disbursement of a particular item of appropriation of money. This third and last requirement stems not only from the provisions of Art. VIII, § II, par. 2, but also from N.J. Const. (1947), Art. IV, § VII, par. 4, which provides in pertinent part:

To avoid improper influences which may result from intermixing in one and the same act such things as have no proper relation to each other, every law shall embrace but one object, and that object shall be expressed in the title.

When the Governor received Senate Bill 1600 as adopted by both houses of the Legislature, since it contained items of appropriation, the provisions of N.J. Const. (1947), Art. V, § I, par. 15,*fn2 became relevant to his consideration of the bill.

The inclusion of the line-item veto power in the Constitution is in furtherance of several constitutional goals. It permits the Governor to reduce or to delete items of appropriation, thus enabling him to bring authorized expenditures in line with anticipated revenues.

The exercise of the line-item veto power also gives the Governor power to shape governmental policy. Under N.J.S.A. 52:9H-1 and 52:27B-20, the Governor is required annually to "formulate his budget recommendations" and to transmit to the Legislature a budget message which "shall embody the proposed complete financial program of the State Government for the next ensuing fiscal year" and the "purposes to which the recommended appropriations and permissions to spend shall apply. . . ." N.J.S.A. 52:27B-20. The line-item veto power thus gives the Governor an additional and constitutionally sanctioned opportunity to establish governmental priorities by reducing and deleting appropriations he determines do not comport, for budgetary, policy or other reasons, with his view of the direction State government should take.

The line-item power also "eliminates excessive, improper, or unconstitutional appropriations without endangering the safety of appropriations essential to the conduct of state business." Sidney Goldmann and Bertram C. Bland, "The Governor's Veto Power" (Monograph), 2 Proceedings of the 1947 Constitutional Convention 1418, 1428.

In his veto statement appended to Senate Bill 1600, Governor Kean summarized his reasons for reducing and deleting some items of appropriation:

My veto recommendations are predicated on two issues. First, a budget totalling $6.2 billion must have an adequate surplus. Second I feel it is inappropriate for the Legislature to increase the spending levels I initially

recommended, and to fund new programs, in a budget that doesn't provide adequately for essential State services.

With respect to his deletions of language in the bill, he said:

In addition to various specific dollar appropriations in the budget, the Legislature has inserted certain language and provisions into Senate Bill No. 1600 to direct the manner in which the Chief Executive is to execute some of his responsibilities. Some of these legislatively imposed provisos and conditions are integrally and permissibly tied to specific items of appropriation. Other provisions, however, place broad restrictions on the way in which the Executive Branch administers particular areas of the State government on a day-to-day basis and, in some cases, authorize a Legislative Subcommittee to share responsibility with the Executive in matters traditionally and inherently assigned to the Executive Branch.

I

All of the issues in this appeal involve claims that the Governor exceeded his power to veto individual "items of appropriation of money" while giving his approval to the general appropriations bill.

The Governor's power to veto individual items contained in bills while approving the remainder of the bill applies solely to "items of appropriation of money." The provision dealing with his general power of approval over bills, N.J. Const. (1947), Art. V, § I, par. 14(b),*fn3 speaks in terms of an entire bill. Art. V, § I, par. 15 is therefore an exception to the general rule that the Governor must approve or veto a bill in its entirety.

An item may at times be included in an appropriations bill which actually is not an item of appropriation of money. In such a case, it appears to be a reasonable inference supported by cases in states having constitutional provisions similar to N.J.

Const. (1947), Art. V, § I, par. 15, that the Governor cannot veto such an item, even if it is unconstitutional. The protection against this type of abuse is found in the single-item clause, N.J. Const. (1947), Art. IV, § VII, par. 4, rather than in a line-item veto of an item of appropriation.

The "state Constitution is not a grant but a limitation of power [,]" Gangemi v. Berry, 25 N.J. 1, 7 (1957). The State Legislature is the repository for the reserved powers of the people, and the Governor's veto is a limitation on that power. General Assembly of State of New Jersey v. Byrne, 90 N.J. 376, 384 (1982); the Legislature is free to act except as limited by the State Constitution, Smith v. Penta, 81 N.J. 65, 74 (1979). Thus, the veto power should be interpreted to limit the power of the Legislature only to the extent that such power is explicitly granted to the Governor.

The veto power has been described as "a qualified and destructive legislative power. . . ." Welden v. Ray, 229 N.W. 2d 706, 711 (Iowa Sup.Ct.1975), citing State ex rel. Teachers and Officers of Industrial Institute and College v. Holder, 76 Miss. 158, 23 So. 643, 645 (Miss.Sup.Ct.1898); see, also, Brown v. Firestone, 382 So. 2d 654, 664 (Fla.Sup.Ct.1980); Cenarrusa v. Andrus, 99 Idaho 404, 582 P. 2d 1082, 1091-1092 (Sup.Ct.1978). To the extent that this power is legislative, N.J. Const. (1947), Art. III, par. I applies:

The powers of government shall be divided among three distinct branches, the legislative, executive and judicial. No person or persons belonging to or constituting one branch shall exercise any of the powers properly belonging to either of the others, except as expressly provided in this Constitution.

Accordingly, the veto power should be construed narrowly with the result that the exercise of the line-item veto must be strictly limited to "items of appropriation of money." An implied extension of the item veto to allow the Governor to eliminate items which are not items of appropriation of money simply because they happened to appear in an appropriations bill, is totally inconsistent with the view that his powers over the Legislature are limited to those expressly granted.

Thus, it becomes necessary to determine what are items of appropriation of money to which the partial veto does extend. In Brown v. Honiss, 74 N.J.L. 501, 521 (E. & A. 1906), the following definition was given:

Webster's definition of "appropriation," so far as here pertinent, is: "The act of setting apart or assigning to a particular use or person in exclusion of all others; application to a special use or purpose, as of money to carry out some object."

The meaning of "items of appropriation of money" was also described in State ex rel. Stephan v. Carlin, 230 Kan. 252, 631 P. 2d 668, 672 (Sup.Ct.1981), as items which involve "the designation of specific sums of money which the Legislature authorizes may be spent for specific purposes." Id. An item is not an item of appropriation of money unless it authorizes the spending or disbursement from the treasury of money for a specific purpose. Id.

The approach which the Idaho Supreme Court took to determine which items are subject to a partial veto for appropriations bills in Cenarrusa v. Andrus, 582 P. 2d at 1090, limits the application of the partial veto to items of appropriation even though the Idaho constitution provides that the governor has a line-item veto over "any item or items of any bill making appropriations of money embracing distinct items." Id. at 1088. Although the language of the provision appears to relate to any items contained in appropriations bills, the Idaho court limited its operation to items of appropriation of money. Id. at 1090. The court said this meant that only items which actually dedicated sums of money to a specific purpose were subject to the veto. Id. at 1090-1091. Therefore, an item of legislation might appear in an appropriations bill but not be subject to the partial veto.

In Jessen Associates, Inc. v. Bullock, 531 S.W. 2d 593 (Tex.Sup.Ct.1976), a case in which the governor's veto was improperly used to delete items which were not "items of appropriation of money" from a bill, the sole source of the governor's partial veto power was contained in a provision similar to ours: "If any bill presented to the Governor contains several items of appropriation he may object to one or more of such items . . ." Id. at 598.

The Texas court held that the item vetoed must be an item of appropriation of money; the veto would have no effect if the item "is merely language qualifying an appropriation, or directing its uses." Id. See also Opinion of the Justices, 306 A.2d 720, 723 (Del.Sup.Ct.1973) [Veto power providing that "(t)he Governor shall have power to disapprove of any item or items of any bill making appropriations of money . . ." was held to create a partial veto of items actually appropriating money, which did not extend to items imposing conditions thereon]; Patterson v. Dempsey, 152 Conn. 431, 207 A.2d 739, 746 (Sup.Ct.Err.1965) [power to veto extends only to the "item or items of appropriation," even though approval of the bill as an entirety may involve some sections which are not items of appropriation]; Brown v. Firestone, 382 So. 2d at 668 [the governor may "either veto an entire bill, or in the case of a general appropriations bill, he may veto any specific appropriation"]; State ex rel. Stephan v. Carlin, 230 Kan. 252, 631 P. 2d 668, 672 (1981).

The Governor argues, assuming arguendo the correctness of appellants' position that a governor may not use his line-item veto power to strike a language qualification or condition attached to an appropriation without vetoing the appropriation, that principle, nonetheless, must be modified by the rule that the Legislature may not, under the guise of imposing a qualification upon an appropriation, violate other constitutional principles (e.g. separation of powers). Brown v. Wright, 231 Ga. 686, 203 S.E. 2d 487, 491 (Sup.Ct.1974); State ex rel. Meyer v. State Bd. of Equal. & Assess., 185 Neb. 490, 176 N.W. 2d 920, 926 (Sup.Ct.1970); Welden v. Ray, 229 N.W. 2d at 710. See Smith v. Penta, 81 N.J. 65, 74 (1979) (the Legislature is free to act except as limited by the State Constitution). Thus, the Governor contends, the Legislature "cannot do indirectly through the means of line-item appropriations and conditions what is impermissible for it to do directly." Bd. of Regents of Higher Education v. Judge, 168 Mont. 433, 543 P. 2d 1323, 1333 (Sup.Ct.1975).

When he signed Senate Bill 1600 into law, the Governor objected to the inclusion in the act of language which he found to violate several constitutional principles, including the doctrine of separation of powers, the doctrine of bicameralism, the single-object clause and the prohibition against amending permanent law by reference only to its title. Invoking "his own constitutional duty not to enforce unconstitutional enactments," the Governor expressed his intention not to honor the constitutionally objectionable language provisions by identifying such language in his veto statement and deleting it.

II

Appellants challenge the deletion of §§ 35 and 36 on page 173 of Senate Bill 1600, and the deletion of § 47 on page 175 of that bill.*fn4

The Governor wrote in his statement of items that §§ 34 through 41 sought "to involve members of the Legislature, in particular the Subcommittee on Personnel of the Joint Appropriations Committee, in decisions concerning the employment and compensation of individual State Employees." He objected to Section 47 on the basis that it created an "unworkable rule" by requiring that all unclassified employees making salaries over $15,000 be eliminated before allowing the number of classified employees to be reduced. He believed that:

These sections severely impair needed administrative flexibility and infringe upon the prerogative of the executive branch, in violation of the principle of separation of powers expressed in Article III of the State Constitution, to make the specific management entailed in the execution of the laws. A serious constitutional infirmity is also presented by the attempt to delegate asserted legislative authority to a subcommittee without concurrence of the full legislative body.

The language paragraphs in Senate Bill 1600 with which we are concerned here would have infringed unconstitutionally upon the Governor's day-to-day administration of government. The excessive intrusions permitted by some of the deleted paragraphs impede the Governor's duty to execute the law, and result in an impermissible arrogation of power to the Legislature.

The provisions of the appropriations act rejected by the Governor requiring prior approval of Executive Branch actions by a legislative subcommittee violate the doctrine of bicameralism as well as the doctrine of separation of powers. Bicameralism is a restraint on legislative power embodied in the State Constitution vesting the legislative power in a two-house legislative body and requiring that all bills must be adopted by a majority of each house. N.J. Const. (1947), Art. IV, § I, par. 1; Art. IV, § IV, par. 6. These constitutional provisions are impugned by the language in the ...


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