Lawyers defending Governor Napolitano’s line-item vetoes to the fiscal 2004 budget hope state Supreme Court statements made in a similar case will weigh in the governor’s favor and the court will decide not to rule in a special action case scheduled for arguments next month.

The Democrat governor has asked the court to decline jurisdiction in the case because the Republican legislative leaders who challenged her authority to line-item veto 13 budget items had no legal standing to do so.

A response brief filed with the court Aug. 15 (the full text of which is on page 17) also seeks to prevent referral of the case to a lower court and cites court statements made in Rios v. Symington (1992), where the court addressed the legal standing of Sen. Pete Rios, who challenged line-item vetoes by Governor Fife Symington, and whether the court should be involved in future appropriations disputes between the Legislature and the executive branch.

Despite its reservations, the court took the case brought by Mr. Rios, who ironically was represented by Ms. Napolitano, a private attorney at the time, and rendered, in effect, a split decision, upholding some of Mr. Symington’s vetoes and overturning others.

In the case where Republican legislative leaders sued Ms. Napolitano on July 16, the governor’s brief states, “The court should decline jurisdiction because neither it nor any lower court should afford relief in these circumstances.”

The brief cites a footnote in Rios v. Symington, where the court raised a “potential” issue with Mr. Rios’s legal standing to sue Mr. Symington.

“We note that the governor and the other respondents have not challenged Sen. Rios’s standing to bring this action,” the court wrote in a footnote. “Therefore we do not address any potential standing issues.”

In a later case (Sears v. Hull), the court overturned a Superior Court ruling that had given legal standing to a man and wife who sued Governor Jane Hull over a long-standing Indian gaming contract issue.

Ms. Napolitano’s attorneys are using that decision to challenge the legal standing of House Speaker Jake Flake, Senate President Ken Bennett, House Majority Leader Eddie Farnsworth and Senate Majority Leader Tim Bee to sue the governor over her line-item vetoes, which they contend unconstitutionally stepped on the Legislature’s authority to appropriate funds.

’Lack Standing To Sue’

The governor’s response to the suit says the legislators “lack standing to sue.”

The Republican’s lawsuit does not directly address the legal standing of the four legislators to bring the action, but states: “Through her item vetoes, the governor proceeded in excess of her constitutional authority, causing irreparable injury to the constitutional authority of the Legislature.”

The Napolitano response states: “The Legislature did not authorize this lawsuit; nor did the petitioners or any other legislator ever attempt to override the governor’s vetoes.”

Although the Legislature did not attempt to override Mr. Symington’s line-item vetoes in the Rios case, the court accepted jurisdiction. But in doing so, warned it might not take such a case again.

“It would be a serious mistake to interpret our acceptance of jurisdiction in this cause as a general willingness to thrust the court into the political arena and referee on a [regular] basis the assertions of the power of the executive and legislative branches in the appropriations act,” the court wrote. “Future attempts to invoke this court’s jurisdiction on similar grounds will be viewed with great circumspection.”

In their special action, attorneys for the Republican leaders say they recognize the court’s admonition about future such cases.

“But this case’s issues extend far beyond those in Rios,” they wrote. The lawsuit alleges Ms. Napolitano’s line-item vetoes were an attempt to increase spending beyond what was approved by the Legislature. The suit also alleges she reallocated funds to programs she prefers and altered legislative policy that had no impact on the budget.

The Rios case, the Republicans state in their suit, did not “sanction such usurpation of the Legislature’s lawmaking and spending authority, nor has the court decided these issues of great public importance.”

“The governor’s actions were unconstitutional,” the Republicans allege.

Governor: Delay Could Create Funding Problems

Ms. Napolitano’s response said that if the court decides to rule in her case, the decision would run counter to the statement made in the Rios decision and would threaten to regularly inject the court into the “political arena” to “referee” budget disputes.

The governor also maintains that the Republican leaders let four weeks pass between her vetoes and the filing of the lawsuit against her and, depending on whether the court rules in the case, the delay could create big problems with funding of seven state agencies named in the suit.

“If this court were to find any of the governor’s vetoes improper, a significant portion of the allocated funds will already have been spent or committed . . .the agencies will need not only to make cuts the Legislature attempted, but also reduce other expenditures in order to compensate for funds already expended,” Ms. Napolitano’s attorneys wrote.

In her brief, the governor also argues that her line-item vetoes should be upheld in accordance with the court’s previous rulings that upheld some of Mr. Symington’s budget vetoes, which were made to five transfers of special funds into the general fund in a special legislative session to balance the 1991-92 budget.

Republican Leaders Have Until August 25 To Reply

The Republican leaders say Ms. Napolitano’s budget vetoes created $33 million in spending above the Legislature’s fiscal 2004 appropriations, and their suit asks the state Supreme Court to decide whether she has the authority to veto only a part of an appropriation and substitute terms of her own choosing, use the line-item veto to appropriate more funds, and veto policy measures or legislative directives that are not related to the budget.

The Republicans have until August 25 to reply to the governor’s brief, and oral arguments as to whether the court should accept the case or send it to a lower court are scheduled for Sept. 9.

The governor is represented by Scott Bales and Kimberly Demarchi of Lewis and Roca and Tim Nelson and Nicole Davis of her legal staff.

The Republicans are represented by John Bouma, Andrew Halaby, Danielle Malody and Jeffrey Warren, all of Snell and Wilmer. —