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Burns, Adams say Brewer’s vetoes violate Arizona Constitution

Legislative leaders say the governor exceeded her constitutional authority in some of her line-item vetoes of budget bills this month, but they decided against taking the matter to court.

Gov. Jan Brewer said she “absolutely” stands by her action, adding she didn’t give much thought to the lawmakers’ statement that she doesn’t have authority to line-item veto items that don’t have to do with appropriations.

In a letter, Senate President Bob Burns and House Speaker Kirk Adams warned Brewer that they are giving her a pass only this time.

“Normally we would be compelled to initiate litigation, as we have in the past, to stop constitutionally unauthorized gubernatorial vetoes,” the two leaders said.

They were “acquiescing” to the governor’s action because of the economic woes the state is facing, but they added, “We are unlikely to do so again.”

The precipitous drop in state revenues has created historic deficits amounting to billions of dollars, a problem that policymakers have failed to resolve to date.

Burns and Adams said they decided against seeking legal redress because they did not want to divert attention or dollars from the state’s fiscal crisis.

But Brewer should not view their decision as “creating any precedent for similar issues in the future,” the legislative leaders said.

Article 5, Section 7 of the state Constitution gives the governor line-item veto power, stating that the governor may veto “items of appropriations of money… while approving other portions of the bill.”

The two legislative leaders said House and Senate legal counsel as well as attorneys from the Legislative Council agree that some of Brewer’s line-items were “policy determinations made by the Legislature [and] not items of appropriation” that are subject to the governor’s veto authority.

The lawmakers did not cite specific line-item vetoes that they thought were unconstitutional, but the Arizona Capitol Times has learned that they referred to the veto on page 35 of H2006, the main appropriations bill, and several items in H2011, which deals with education.

Section 13 of H2006 showed legislative intent regarding the use of federal stabilization money. More specifically, it stated that appropriations made to schools would be reduced by $472 million if Arizona received federal stimulus dollars, and that same amount of federal money would be disbursed to school districts and charter schools to make up for the funding reduction.

One portion of this section reads in part: “As soon as possible after the effective date of this act, the department of education shall reduce by the amount specified in subsection A of this section the amount of basic state aid and additional state aid funding that otherwise would be apportioned to school districts and not for profit charter schools for fiscal year 2009-2010 pursuant to section 15-973, Arizona Revised Statutes.”

Brewer line-item vetoed “for fiscal year 2009-2010,” apparently an attempt to have the ability to use the federal funds over the course of a few years instead of only in one fiscal year.

Accordingly, the rest of the line-item vetoes that Burns and Adams think were unconstitutional are in H2011. They included:

The vetoed section on Page 97: “The portion of the primary tax rate to fund desegregation programs as provided in this section shall not be included in the computation of additional state aid for education as prescribed in section 15 972.”

The vetoed section on Page 106: “The portion of the primary tax rate to fund career ladder programs as provided in this section shall not be included in the computation of additional state aid for education as prescribed in section 15 972.

The vetoed section on Page 108: “The portion of the primary tax rate to fund the difference between the transportation revenue control limit and the transportation support level of a school district as provided in this section shall not be included in the computation of additional state aid for education as prescribed in section 15 972.”

And finally, Section 79: “Notwithstanding section 15-901, subsection B, paragraph 2, Arizona Revised Statutes, as amended by this act, or any other law, for fiscal year 2009 2010 for purposes of computing the base support level pursuant to section 15-943, Arizona Revised Statutes, the department of education shall assume that the base level amount defined in section 15-901, subsection B, paragraph 2, Arizona Revised Statutes, for fiscal year 2009 2010 is three thousand two hundred one dollars eighty-nine cents.”

As far as Burns and Adams are concerned, Brewer exceeded her constitutional power because in the case of H2006, for example, a fiscal year is “clearly not an item of appropriation,” according to sources familiar with the legislative leaders’ action.

Had the Legislature sued, it wouldn’t be the first time that lawmakers would challenge a governor’s action in court.

Indeed, both branches of government have been consistently zealous in guarding their constitutional powers against either’s encroachment, and the Supreme Court has at times been called to become the arbiter of where these boundaries lie.

In 2006, the Legislature sued then-Gov. Janet Napolitano before the Arizona Supreme Court when she used a line-item veto for a portion of an employee pay raise bill passed by the Legislature. Napolitano had struck a section of H2661 that would have excluded about 200 future government employees from the state’s merit system.

The court agreed with the Legislature, saying the section in question was not subject to the governor’s veto power.

In its decision, the court rejected Napolitano’s argument that the issue was a political question and the Legislature was attempting to transform a political dispute into a constitutional question.

The court fleshed out what the term “appropriation” in the state Constitution means.

Citing a previous case, the court said appropriation is the “the setting aside from the public revenue of a certain sum of money for a specified object, in such manner that the executive officers of the government are authorized to use that money, and no more, for that object, and no other.”

The court further said no specific language is necessary to make an appropriation. The test is whether “the people have expressed an intention that the money in question be paid,” the court said.

The court said the setting aside of a certain sum of public revenue can occur in two ways. One is that the Legislature can authorize spending from the general fund, and two, the Legislature can authorize payments of “ascertainable amounts from a special fund.”

“In this case, Section 5, even when considered in conjunction with other statutes, does not set aside a defined amount of public revenue from any specific funding source,” the court said, concluding that the section was not subject to the governor’s item veto power.

- Reporters Christian Palmer and Jeremy Duda contributed to this article.

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