For the third time since she took office in 2003, Governor Napolitano is facing the specter of a lawsuit alleging that she stepped outside the constitutional bounds of her office.
In response to what Republican lawmakers say was an unconstitutional use of line-item veto powers, the Legislature approved by a party-line vote Feb. 2 — 18-10 in the Senate, 37-18 in the House — a motion to proceed with a lawsuit against the Democrat governor.
“This is a direct assault on the Legislature, on the power of the Legislature… and it must be addressed as such,” House Majority Leader Steve Tully, R-11, said.
Republicans allege her veto of a provision in a bill that gave state employees a pay raise was illegal because the subject of the veto was a policy matter, not an appropriation of money.
Republican leaders opted not to attempt an override of the veto, saying it was not legal so they had no reason to follow the constitutional steps to overturn it.
Democrats said the lawsuit will be a waste of taxpayer dollars since there was no override attempt made.
“We’re doing something that’s going to stall, make things go slower, get [us] farther from a solution,” Rep. Jack Brown, D-5, said.
The motions — the House and Senate authorized the speaker and president, respectively, to represent the chamber in court — were made in response to a 2003 attempt by four Republican leaders to challenge Ms. Napolitano’s use of the line-item veto powers after she struck several measures out of the fiscal 2004 budget. The Supreme Court refused to hear the case, saying the Republican leaders had no standing to sue because the Legislature had not authorized the court action, nor had it attempted to override the veto.
Also in 2003, the Supreme Court refused to hear a challenge to a gubernatorial executive order barring job discrimination in state agencies based on sexual orientation. The challenge was brought by a conservative watchdog group and a trio of Republican lawmakers.
The line-item-vetoed portion of H2661 (Laws 2006, Chapter 1) removed future new employees making more than about $48,000 from the state merit system, making them similar to employees in the private sector who don’t get tenure and can be fired for any reason.
Because most state workers with higher salaries are political appointees, the provision would have only affected approximately 200 new hires.
The state Constitution limits the governor’s line-item veto powers to bills that make appropriations. Article 5, Section 7 of the constitution reads, “If any bill presented to the Governor contains several items of appropriations of money, he may object to one or more of such items, while approving other portions of the bill.”
Speaker of the House Jim Weiers called the veto “as unconstitutional and improper as you can get” in a Jan. 31 Republican caucus.
In her Jan. 30 veto message, Ms. Napolitano said that, while not a direct appropriation of money, the vetoed clause would have had a cost to the state.
“Because of differences in the way exempt and nonexempt employees accrue annual leave,” she wrote, “this change would have posed additional costs to the state unrelated to state employee salaries. Such costs are unwarranted. The current merit system has served Arizona well and I see no reason to exempt future employees at or above [the $48,000 pay grade].”
In a Feb. 1 press conference, the governor said Republicans could try to “disguise” appropriations in legislation like what she vetoed, but, “In my view, it’s not even a close question.”
Legislative Democrats say they trust Ms. Napolitano’s judgment and believe the veto was appropriate, both in how it was applied and what it removed.
“I think she knows what she’s doing,” said House Assistant Minority Leader Linda Lopez, D-29. “She’s an attorney herself, she’s been the attorney general of this state — I think she’s probably got a pretty good handle on what all of this entails.”
Even though the bill passed both chambers last month with bipartisan support, Democrats who had previously voted in favor of the bill voted against proceeding with a lawsuit.
“I did vote for that bill; I didn’t like the [vetoed provision], however I felt the other [parts] were worth it and I was willing to go ahead and hold my nose and vote in favor of it,” Ms. Lopez said. “But, in terms of the line-item veto, I’m actually glad she did that, because I was uncomfortable with that provision before.”
Sen. Thayer Verschoor, R-22, said there was no reason for the two parties to be split on the issue.
“This should be a bipartisan issue,” he said on the floor Feb. 2. “If we don’t go forward, we give the governor broad, sweeping powers. We’re defending the Constitution of the state.”
Other Republicans echoed Mr. Verschoor, saying the ramifications of the governor’s interpretation of her line-item veto power are far reaching and chilling.
“This is a very dangerous precedent,” Sen. Dean Martin, R-6, said in a Jan. 31 caucus. “If it stands, she would line-item veto any bill.”