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North Dakota lawsuit puts spotlight on gubernatorial line-item veto

by Jon Davis ~ January 2018 ~ Stateline Midwest »
North Dakota legislators sued Gov. Doug Burgum in December, alleging he overstepped his line-item veto authority by deleting words or phrases in ways that changed legislative intent. The state’s Supreme Court agreed to hear the case, and gave the governor’s office until Jan. 16 to file a response.
“This is all about setting a precedent and division of powers,” state House Majority Leader Al Carlson says.
“He cannot pass laws. If we allow him to change legislation and change intent, then we’ll have a future problem.”
The lawsuit asks the court to determine the legal effect of the partial vetoes, including the current status of each affected bill. At issue are the vetoes issued less than a week after the Legislature’s April 27 adjournment. The nonpartisan Legislative Council, which is the Legislature’s research arm, said Burgum altered legislation on spending bills at least four times, including deleting a three-word phrase forbidding a university from cutting “any portion of” a nursing program.
In an opinion dated June 19, 2017, North Dakota Attorney General Wayne Stenehjem said the governor can veto parts of an appropriations bill that are related to vetoed appropriations, as long as the bill can still stand as workable legislation. But he said the governor can’t veto conditions or restrictions on an appropriation without vetoing the appropriation itself.
By that reasoning, Stenehjem said the governor’s vetoes of some sections of the North Dakota University System’s appropriations bill were “not effective.” He also said Burgum was not authorized to veto some language in the State Water Commission’s and Department of University and School Lands’ appropriations.
In the 1979 case State ex. rel. Link v. Olson, a state court ruled that the governor cannot use the line-item veto to strike conditions of an appropriation without also vetoing the appropriation itself, nor can the governor use it to strike individual words or letters.
“In several sections, [Gov. Burgum] took out language and changed the meaning of the legislation, but didn’t change the money,” Carlson says. “Basically, he changed the meaning of the legislation; there’s a big difference between ‘shall’ and ‘shall not.’”
According to The Council of State Governments’ “The Book of the States,” most states in the Midwest give governors line-item veto power over appropriations bills only. Indiana is one of five U.S. states where the governor has no line-item veto authority at all. In contrast, this gubernatorial power extends to all bills in Illinois, while Wisconsin’s governor has one of the nation’s broadest line-item veto powers: the so-called “partial veto” (considered to be broader than a regular line-item veto).
Created by a constitutional amendment referendum in 1930, the “partial veto” gives the governor power to approve appropriation bills “in whole or in part.” The state’s nonpartisan Legislative Reference Bureau says this power was stretched over time to include vetoes of individual digits and letters, the ability to edit the text to change its meaning, reducing appropriations amounts by crossing out one figure and writing in another, and altering the direction of an appropriations.
But within the last 28 years, Wisconsin voters have twice trimmed the partial veto. In 1990, they approved a constitutional amendment (60.5 percent to 39.5 percent) forbidding the creation of new words by vetoing individual letters. And in 2008, they approved an amendment (70.6 percent to 29.4 percent) barring the creation of a new sentence by combining parts of two or more sentences, thus eliminating the so-called “Frankenstein Veto.”

 

Capital Closeup is an ongoing series of articles focusing on institutional issues in state governments and legislatures.