See you in court: the balance of power between governors and legislatures sometimes gets out of whack.

• Author: Jones, Rich

During the past two years, legislatures and governors in several states have squared off in court. The issue? Separation of powers.

Arizona, New York, Iowa, Colorado and Wisconsin legislatures challenged their governors in the past two years over such issues as the item veto, appropriating federal funds and negotiating compacts. The rulings have so far favored the legislative branch 3-2.

Conflict between the two branches is a built-in feature of American government. Our nation's founders created a system that divides authority among the legislature, governor and courts to eliminate concentrated power in one place. But separation of powers is not absolute, and the conflicts that arise are usually resolved through the political process. Recently they have evolved into legal confrontations.

AN ARIZONA EXAMPLE

In June 2003, the Arizona Legislature passed the general appropriations bill for FY 2004 that contained line items entitled "Jump sum reduction" for five state agencies.

The effect was to give the governor discretion over $4.7 million in cuts contained in these agencies' budgets. The governor vetoed the lump sum reduction lines, eliminating the budget cuts and, in effect, increasing the amounts appropriated by the Legislature.

The Legislature adjourned sine die without attempting to override the vetoes. But the Senate president, the House speaker and the majority leaders from each chamber filed suit in the Arizona Supreme Court challenging the governor's use of the line item veto.

In December, the court ruled that the legislators lacked standing to bring the case and let the governor's vetoes stand.

"We stayed out of it," Arizona Chief Justice Charles E Jones told the House Judiciary Committee in 2004. "It was strictly a political issue, an issue that should have been resolved by the branches."

But Jim Drake, rules attorney for the House, says the court neglected to consider examples of previous court cases. The decision leaves open the question of what the Legislature can do to enforce limits on the governor's line-item veto power, he says.

NEW YORK'S STRUGGLE

The New York Legislature has been sparring with the governor over the budget process and their respective powers for the past six years. Two cases currently ready for oral argument before the state's highest court may more clearly define these powers.

The Legislature's role in budget preparation was significantly changed by a 1927 amendment to the constitution which gave the executive a strong role in the initiation of the state's budget. The amendment contains a "nonalteration" provision that states that the Legislature can alter appropriation bills only by striking or reducing an appropriation or proposing a new and different expenditure. However, the Legislature has challenged, in both cases, gubernatorial efforts to use the executive's appropriation-proposing authority to change or invalidate existing state laws.

The Legislature amended three of the governor's bills in the 1999 budget that did not involve appropriations, but contained policy directives relating to appropriations. Governor George Pataki used the item veto to remove the amendments. Assembly Speaker Sheldon Silver went to court arguing that the item veto only applies to appropriations.

In 2001, the governor's budget contained language that would have circumvented existing laws. In passing the budget, law-makers deleted or revised this language. Pataki sued the...