‘The fundamental question is — does the governor have the legal right under our Constitution to line-item veto things that are not an appropriation≠’— Senate President Ken Bennett

The Arizona Supreme Court will consider whether Governor Napolitano exceeded her authority when she used a line-item veto for a portion of an employee pay raise bill passed by the Legislature.
The lawsuit filed by the 47th Legislature in March is in response to Ms. Napolitano’s deletion of a section of H2661, an employee pay-raise bill that would have excluded about 200 future government employees from the state’s merit system.
Thomas Crouch, attorney for the Legislature, argued before the court on June 27 that Ms. Napolitano unlawfully used the line-item veto power to negate a substantive policy — not to block a specified appropriation.
By using a veto to stop what the Republicans consider policy, Ms. Napolitano unfairly limited the lawmaking authority of the Legislature and ran counter to the state Constitution, he said.
“The injury to the legislative body is an injury to the right to pass legislation by a majority vote,” he told the five Supreme Court justices.
The lawsuit was an example of the Republicans “playing politics,” said Ms. Napolitano’s attorney Paul Eckstein, adding that the Arizona Supreme Court should consider to “stay out of the fray” because the Legislature had not even attempted to override the veto.
“They are the ones who are required to exhaust all of the political remedies,” he said.
State law requires the Legislature to reach a two-thirds majority vote in both the House and Senate to override a governor’s veto.
Mr. Eckstein also said that what was vetoed by Ms. Napolitano qualifies as an appropriation based on a Supreme Court decision reached in Rios v. Symington, a 1992 lawsuit where then-Senate President Pete Rios brought a line-item veto suit against Republican Gov. Fife Symington.
Because the scratched portion of H2661 would alter the way about 200 future employees would accrue vacation time and possibly add greater expense to the state, the effects were “calculable” and therefore an appropriation, Mr. Eckstein said.
The vetoed provision would have affected employees hired or appointed after Dec. 31, 2006, and was limited to those set to earn annual salaries between approximately $49,000 and $85,000.
The remaining portions of the bill, which appropriated $51.7 million in the current fiscal year and $169 million for the next fiscal year for employee pay raises, were signed into law on Jan. 30.
The Supreme Court granted each side 20 minutes to argue their positions but did not state when a decision would be reached.
Ms. Napolitano was not at the proceeding.
Senate President: Question is legal, not political
Outside the courtroom, Senate President Ken Bennett, R-1, attacked the position taken by Ms. Napolitano’s lawyer that the conflict concerning the override was “political” in nature and demanded a likewise solution instead of seeking a legal ruling.
After consulting with Democratic leaders it became apparent an override would be “fruitless” since it would result in a party-line vote and also leave the question of the balance of power between the Legislature and executive branch unanswered, said Mr. Bennett.
“The fundamental question is — does the governor have the legal right under our Constitution to line-item veto things that are not an appropriation≠” he asked. “That is a legal question. It is not a political question. It cannot; should not have to be resolved by political means such as an override.”
House Speaker Jim Weiers, R-10, said that he examined case history regarding the line-item veto prior to filing the suit and was surprised to learn that Ms. Napolitano served as legal counsel to Mr. Rios in his suit against Fife Symington.
“Many arguments during the presentation were identical to the exact same made by Napolitano as the attorney when she was representing Rios,” he said. “It’s odd that she can understand constitutionality as a practicing attorney, but somehow forgets it as a sitting governor.”
The lawsuit was filed as a special action and the Supreme Court’s decision to hear the matter was discretionary. The court declined to hear Bennett v. Napolitano, another line-item veto case in 2003, after it ruled the four individual lawmakers could not sue on behalf of the Legislature.
On Feb. 2, the House and Senate voted on party lines, 37-18 and 18-10 respectively, to authorize Mr. Weiers and Mr. Bennett to sue the governor for her use of the line-item veto on H2661.
There is no word on when the court will rule.