Attorney General: Honorable Nancy Wyman, Comptroller, Formal Opinion 2009-008, Attorney General State of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

September, 2009

The Honorable Nancy Wyman

Comptroller

55 Elm Street

Hartford, CT  06106

 

Dear Ms. Wyman:

 

   This letter responds to your request for a formal legal opinion as to whether Article Fourth, § 16, of the Connecticut constitution permits a Governor to veto individual line items in an appropriations bill, while permitting the rest of the bill to become law without her signature.

   This issue arose in connection with the recently adopted budget bill, Emergency Certified Bill 6802, An Act Concerning Expenditures and Revenue for the Biennium Ending June 30, 2011. The Governor initially sent a letter on September 1st to the Secretary of the State, purporting to veto twenty budget line items in this legislation but declining to sign the bill. On Friday, September 4, 2009, I apprised the Governor in writing that she had no constitutional authority to exercise a line item veto unless she first signed the bill. On September 8th, the Governor announced that she disagreed with my legal analysis, but she would nevertheless allow the entire legislation to become law without her signature.

   The Governor could have vetoed the $8.3 million in line items by signing the bill.  To dispel any potential remaining doubt or confusion, the Governor’s decision to forego signing the bill makes any document purporting to exercise the line item veto, including the September 1 letter to the Secretary, null and void.

   You state in your letter of September 9 that this sequence of events, including the Governor’s statement that she disagrees with my conclusion, has created confusion, and because this issue may arise again in the future, you have requested my formal opinion. I am responding to your request for formal legal guidance to avoid future uncertainty concerning the scope and limitations of the Governor’s line item veto authority.

   I conclude that the Governor may impose a line item veto on individual items in a bill only if she signs it.  If the Governor declines to sign it, the bill as passed by the legislature becomes law in its entirety, and any attempted veto of selected sections is null and void.

   As always, under Article Fourth, §§ 15 and 16, of the Connecticut constitution, a Governor’s permissible options in acting on an appropriations bill are to: (1) sign the entire bill; (2) veto the entire bill; (3) sign the bill and veto selected line items within it or (4) do nothing and permit the entire bill to become law within five days.  Vetoing line items without signing the bill is not permitted by the Connecticut constitution.

   When the Governor is presented with any legislative bill that has passed both houses of the General Assembly, her powers and duties are set forth in Article Fourth, § 15, of the Connecticut constitution. In pertinent part, section 15 provides that:

If the governor shall approve a bill, he shall sign and transmit it to the secretary of the state, but if he shall disapprove, he shall transmit it to the secretary with his objections. . . . In case the governor shall not transmit the bill to the secretary, either with his approval or with his objections, within five calendar days, Sundays and legal holidays excepted, after the same shall have been presented to him, it shall be a law at the expiration of that period.

 

   Conn. Const. Art. Fourth, § 15. As the Connecticut Supreme Court has interpreted this section, “[t]he governor . . . has three choices: he may disapprove a bill, in which case it is returned to the legislature; he may approve a bill, in which case it becomes a law; or he may do nothing, whereupon the bill becomes a law at the expiration of the five day period.” Caldwell v. Meskill, 164 Conn. 299, 313 (1973). Although this section permits the Governor to veto a bill, it “confers no power to veto any bill except as an entirety.” Id. at 305.

   If a bill is an appropriations bill, Article Fourth, § 16, provides the Governor with a fourth choice:  a partial veto. Specifically, it authorizes her to “disapprove of any item or items of any bill making appropriations of money embracing distinct items while at the same time approving the remainder of the bill.” Conn. Const. Art. IV, § 16.  In its entirely, Article Fourth, § 16, states that:

The governor shall have power to disapprove of any item or items of any bill making appropriations of money embracing distinct items while at the same time approving the remainder of the bill, and the part or parts of the bill so approved shall become effective and the item or items of appropriations so disapproved shall not take effect unless the same are separately reconsidered and repassed in accordance with the rules and limitations prescribed for the passage of bills over the executive veto. In all cases in which the governor shall exercise the right of disapproval hereby conferred he shall append to the bill at the time of signing it a statement of the item or items disapproved, together with his reasons for such disapproval, and transmit the bill and such appended statement to the secretary of state. If the general assembly be then in session he shall forthwith cause a copy of such statement to be delivered to the house in which the bill originated for reconsideration of the disapproved items in conformity with the rules prescribed for legislative action in respect to bills which have received executive disapproval.

 

   Conn. Const. Art. IV, § 16 (emphasis added).

   In construing Article Fourth, § 16, like all provisions of the Connecticut constitution, six factors must be considered, as applicable: “(1) the text of the operative constitutional provision; (2) holdings and dicta of this court and the Appellate Court; (3) persuasive and relevant federal precedent; (4) persuasive sister state decisions; (5) the history of the operative constitutional provision, including the historical constitutional setting and the debates of the framers; and (6) contemporary economic and sociological considerations, including relevant public policies.” Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 157 (2008). “Fundamental principles of constitutional interpretation require that effect must be given to every part of and each word in our constitution.” Sheff v. O’Neill, 238 Conn. 1, 28 (1996)(internal quotation and bracket omitted).

   Looking first at the text of § 16, the first line states that “the governor shall have power to disapprove of any item or items of any bill making appropriations of money embracing distinct items while at the same time approving the remainder of the bill.Conn. Const. Art. IV, § 16 (emphasis added). As discussed above, when the Governor approves a bill, § 15 provides that she must sign and transmit it to the Secretary of the State.  Thus, to comply with the requirement in § 16 that she “approv[e] the remainder of the bill,” the Governor must sign it, even as she vetoes individual line items. No other means of accomplishing a partial veto is provided by the constitutional text.

   The conclusion that the Governor must sign an appropriation bill to disapprove individual line items is buttressed -- indeed confirmed -- by the second sentence of § 16, which states that “[i]n all cases in which the governor shall exercise the right of disapproval hereby conferred he shall append to the bill at the time of signing it a statement of the item or items disapproved, together with his reasons for such disapproval, and transmit the bill and such appended statement to the secretary of the state.” Conn. Const. Art. IV, § 16 (emphasis added).   One basic principle of statutory and constitutional construction is that language must be interpreted “as an entirety, giving effect, if possible, to each sentence, clause or phrase in such a manner that none is treated as insignificant and unnecessary.”  Patterson v. Dempsey, 152 Conn. 431, 441 (1965).  The inescapable conclusion is that the phrase “at the time of signing it” was included purposefully, and evidences the framers’ intent that the Governor must sign the bill, as a legal predicate to the disapproval of individual line items.

   Connecticut case law supports this conclusion. Although the Connecticut courts have not considered this precise question, the Connecticut Supreme Court has construed Article Fourth, §§ 15 and 16, in Patterson v. Dempsey, 152 Conn. 431 (1965), and Caldwell v. Meskill, 164 Conn. 299 (1973). In Patterson, the Court considered whether the Governor had the authority to disapprove sections of an appropriations bill that were general legislation and not distinct items of appropriation. At the time, prior to the adoption of the Connecticut constitution of 1965, the section that is now Article Fourth § 16 was labeled Article Fourth, § 15.  In concluding that the Governor had no power to disapprove the sections of general legislation, the Court examined the constitutional text of § 15 and determined that the power that it granted was limited to disapproval of items of appropriation. As the Court emphasized, “[t]he governor’s power of partial veto is only that conferred by the provisions of § 15 of article fourth of the constitution.” Patterson, 152 Conn. at 437 (emphasis added), citing Bengzon v. Secretary of Justice, 299 U.S. 410, 413 (1937). “In other words, if the action of the governor in disapproving [the general legislation sections of the bill] was legal, it could be so only because that action was authorized by § 15 of article fourth of the constitution.” Id. at 437-438. Similarly, a Governor’s action in disapproving portions of a budget act must be authorized by § 16. This provision is the sole source of the Governor’s partial veto authority.

   In Caldwell v. Meskill, 164 Conn. 299 (1973), our state Supreme Court reached the same conclusion. In Caldwell, the Governor sought to disapprove portions of a bill, but it was unclear whether those portions concerned “appropriations.” He issued a veto message stating that if his partial veto were successfully challenged, then his action should be considered a veto of the entire bill. The Court concluded that the disapproved portions of the bill were not appropriations and then considered whether the “conditional veto” was constitutional. In concluding that it was not, the Court emphasized, as it had in Patterson, that “[w]hatever power the governor has partially to veto any bill is derived solely from article fourth, § 16, of the constitution.” Id. at 305.  Because the text of the constitution grants the Governor no power to qualify or condition his approval or disapproval of legislation, the Court concluded that the Governor’s conditional veto was unconstitutional and void.

   Similarly, the Governor’s power to partially veto an item of appropriation is contained solely and completely in Article Fourth, § 16. That section does not authorize the Governor to partially veto items of appropriation without signing and thereby approving the rest of the bill. A Governor’s attempt to veto parts of the bill without signing it would be legally null and void. The text of the constitution compels this conclusion and there is nothing in the constitutional history of the text that suggests any contrary intent. See Joint Standing Committee and House Committee on Constitutional Amendments, pp. 1-3 (Feb. 20, 1923); Proceedings of the 1965 Connecticut Constitutional Convention, pt. 3, pp. 975 – 984 (Oct. 18, 1965).  When faced with a similar question, the Supreme Court concluded that “a veto exercised in excess of constitutional authority is an ineffective nullity” and “void.” Caldwell, 164 Conn. at 315-316.

   To summarize, as discussed above, Article Fourth, §§15 and 16, permit the Governor four options: to (1) approve and sign the entire bill; (2) veto the entire bill; (3) disapprove individual line items while signing the bill; or (4) do nothing, permitting the entire bill to become law after five calendar days. A partial veto without signing and approving the remainder of the bill is not an option. If the Governor were to attempt such a partial veto, but leave the bill unsigned, the entire bill would become law after the five day period had passed and the attempted partial veto would be null, void and nugatory and without effect.

   In the case of the recently adopted budget bill, the Governor chose to allow the bill to take effect in its entirety without her signature after five calendar days as permitted by Article Fourth, § 15.1  Because the bill was presented to the Governor on Tuesday, September 1, 2009, and Tuesday, Sunday, and the Labor Day holiday did not count as calendar days, the bill properly became law in its entirety on Wednesday, September 9, 2009.

   I trust this responds to your question.

   Very truly yours,


   RICHARD BLUMENTHAL


1 The five day period is calculated by excluding the day on which the bill is presented to the Governor, as well as Sundays and holidays. See 1977 Conn. AG Lexis 31 * 4 (April 27, 1977). The term “day” is construed to mean any time until midnight. Id. 


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