Washington's Partial Veto Power: Judicial Construction of Article Iii, Section 12

• Jurisdiction: Washington,United States
• Citation: Vol. 10 No. 03
• Publication year: 1987

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 10, No. 3SPRING 1987

NOTES

Washington's Partial Veto Power: Judicial Construction of Article III, Section 12

Heidi A. Irvin

I. Introduction

The power of the governor to veto(fn1) legislation is a legislative power.(fn2) Article III, section 12 of the Washington Constitution grants the governor the power to veto not only entire bills, but parts of bills.(fn3) In this respect, Washington is like most other states.(fn4) However, the provisions of article III, section 12, both before and after amendment in 1974,(fn5) go beyond those of other states(fn6) by allowing the governor to partially veto bills that are not appropriation bills, subject to an override by two-thirds of the legislature.(fn7)

The effect of article III, section 12 is to allow the governor, with certain limitations, to legislate with only one-third of the votes in the legislature.(fn8) Thus, any judicial interpretation of the language in article III, section 12 can greatly alter the governor's power to legislate. Although the situation calls for judicial restraint, the Washington Supreme Court has not, until recently, shown an inclination to carefully interpret the language of article III, section 12. The court has used two different subjective tests to determine the constitutional validity of partial vetoes. Both tests created uncertainty in the legislative process and produced confusing results. In 1984, the court abandoned the affirmative-negative test,(fn9) and the court may soon have a chance to abandon the separate subject test(fn10) for section vetoes.

This Note recommends that the separate subject test be abandoned like the affirmative-negative test before it. In the alternative, the Constitution should be amended to remove any perceived need for a subjective judicial test. As a last-choice solution to the problem of uncertainty and inefficiency in the legislative process, the legislature should use its override powers more extensively.

II. Article III, Section 12 and the 62nd Amendment

Since 1889, when Washington's Constitution went into effect, the governor has had the authority to veto any entire bill passed by the legislature.(fn11) The framers also provided the legislature with the power to override the governor's veto.(fn12) Provisions for a gubernatorial veto of whole bills and a legislative override are standard in state constitutions. What distinguishes the Washington Constitution from other state constitutions, from 1889 to the present, is the provision in article III, section 12 allowing the governor to veto portions of non-appropriation bills. Most states only allow their governor to veto "parts" or "items" of appropriation bills. Before its amendment in 1974, article III, section 12 provided in part:If any bill presented to the governor contain several sections or items, he may object to one or more sections or items while approving other portions of the bill. In such a case he shall append to the bill, at the time of signing it, a statement of the section, or sections; item or items to which he objects and the reasons therefor, and the section or sections, item or items so objected to, shall not take effect unless passed over the governor's objection, as hereinbefore provided.

This partial veto provision gave the governor tremendous legislative power by enabling the governor to substantially alter legislation. In the early 1970's, legislators voiced their objections to the scope of the governor's partial veto power.(fn13) In 1974, a staff member of the Washington House of Representatives recommended an amendment to article III, section 12 that would have eliminated the section veto power altogether and further, would have restricted the item veto power to appropriation items.(fn14) Such an amendment would have given Washington's governor the same partial veto power as most other states allow.(fn15)

Instead of the proposed amendment, the voters, in 1974, approved Senate Joint Resolution No. 140, which became the 62nd amendment. The amendment did not eliminate the section veto, but it restricted the section veto to "entire" sections. In addition, the amendment restricted item vetoes to "appropriation" items. The partial veto portion of article III, section 12 as amended provides:If any bill presented to the governor contain several sections or appropriation items, he may object to one or more sections or appropriation items while approving other portions of the bill: Provided, That he may not object to less than an entire section, except that if the section contains one or more appropriation items he may object to any such appropriation item or items.

The third change made by the 62nd amendment was to give the legislature additional override powers. If the governor vetoes a bill or any part of one after the legislature adjourns, the 62nd amendment authorizes the legislature to reconvene in an extraordinary session within forty-five days after adjournmerit to reconsider any vetoes.(fn16)

Both before and after the 1974 amendment, the extent of the governor's partial veto powers under article III, section 12 has repeatedly caused concern, especially among state legislators, that the Washington governor has too much legislative power. Even Washington governors have recognized possible problems with the veto provision. In 1917, Governor Ernest Lister wrote in a letter:I feel that this provision is wise, in that it enables the Governor to hold a strong check on legislation . . . . I have often felt that the power could be broadened to good advantage, giving the Governor power to veto portions of a section or to reduce appropriation items. It is possible, however, that so doing would be to place too much power in the hands of the Chief Executive.(fn17)

Interpretations by the Washington Supreme Court of the words in article III, section 12 necessarily affect the balance of power between the legislature and the governor. Knowing this, the court has a duty to discern the intent embodied in the language and to make decisions accordingly. For the court to make decisions based on how it thinks the legislative power ought to be allocated is judicial policymaking. The Washington Supreme Court has not always recognized this distinction, but its recent abandonment of the affirmative-negative test indicates that the court has reassessed its role in partial veto cases.

III. Judicial Construction of the Partial Veto Power

Court challenges to specific partial vetoes began as early as 1910(fn18) and continue to occur today.(fn19) The Washington Supreme Court has evaluated the constitutionality of partial vetoes both in terms of the express restraints in the constitution and in terms of restraints the court found to be necessarily implied. The tests developed by the court have been difficult to apply. Further, they have not enhanced predictability or efficiency in the legislative process. Changes in the partial veto power found in the express language of the 62nd amendment eliminate the need for semantic tests of validity, at least for the section veto power.(fn20) One such test, the affirmative-negative test, has recently been abolished. The court should do the same with its separate subject test for determining what a "section" is.

A. The Affirmative-Negative Test

1. Historical Background

Later cases credit Spokane Grain and Fuel Co. v. Lyttaker(fn21) with establishing the affirmative-negative test in Washington. Under this test, the governor may only exercise the partial veto power in a negative or destructive manner. The power may not be used in an affirmative or creative way.(fn22) In other words, the power should be used to prevent some provision from becoming law, but not to add a new or different result from what the legislature intended.(fn23)

This test has been applied in several states and is based on notions of separation of powers.(fn24) Courts using the test often reason that because all affirmative power to legislate is granted to the legislature, what remains for the governor is only the power to delete or destroy. The governor does not have the power to change the legislature's intent.(fn25)

Washington courts have produced confusing results when applying the affirmative-negative test to partial veto disputes. Members of the Washington Supreme Court, moreover, have quite often disagreed among themselves on whether a partial veto was an "affirmative" or "negative" exercise of the partial veto power.

For example, in Cascade Telephone Co. v. Tax Commission(fn26) a split court in 1934 upheld the partial veto of an excise tax bill covering business activities. The vetoed portion allowed certain classes of taxed businesses, such as telephone companies, to pass the tax burden on to the ultimate consumer. Without the vetoed portion of the legislation, these companies could not reimburse themselves for the tax paid.(fn27) According to the majority of the court, "[t]he Governor's act in vetoing this separable item, or section, was purely negative."(fn28) Justice Steinert, along with another dissenting judge, found the exercise of the partial veto power in this instance "affirmative, because it actually [created] a result different from that intended, and arrived at, by the Legislature."(fn29)

The court next considered the partial veto power in 1960 in State ex rel. Ruoff v. Rosellini.(fn30) That case arose...