July 17, 2006
The Honorable Timothy M. Kaine
Governor of Virginia
Patrick Henry Building
1111 East Broad Street
Richmond, Virginia 23219
Dear Governor Kaine:
I write to you in my capacity as Keeper of the Rolls
of the Commonwealth regarding the communication of your purported vetoes of §§
4 -1.02, 4 -1.06 b., and 4 -6.01 b. of House Bill 5002, 2006 Special Session
I. Based on legal advice, it is my opinion that each of these purported
vetoes does not constitute an item as required by Article V, Section 6 of the
Constitution of Virginia. As a result, it is my duty not to publish these
purported vetoes for the reasons set forth in this letter.[1]
§ 4 -1.02
Section 4 -1.02 sets forth the process for the Governor to follow
to reduce expenditures in the event of a revenue shortfall.
In Brault v. Holleman, 217 Va.
441 (1976), the Supreme Court of Virginia stated as follows:
Where a condition is attached to an appropriation, the
condition must be observed. The Governor cannot veto the appropriation without
also disapproving the condition; correspondingly, he cannot veto the condition
without also disapproving the appropriation.
In light of these requirements, it is clear that § 4
-1.02 as a whole constitutes a condition on all of the appropriations in House
Bill 5002 that may be reduced in the event of a revenue shortfall. The
first sentence of § 4 -0.01 (the preamble to all of Part 4 of House Bill 5002)
states that "[e]ach appropriating act of the General Assembly shall be subject
to the following provisions and conditions, unless specifically exempt
elsewhere in this act" (emphasis added). All of the appropriations
are conditional: (i) on revenues being sufficient; and (ii) if the revenues are
insufficient, on the Governor withholding allocations in conformity with the
procedures set forth in § 4 -1.02.
The Honorable Timothy M. Kaine
July 17, 2006
Page Two
Accordingly, because the portion of House Bill 5002
covered under the purported veto of § 4 -1.02 constitutes less than an item in
contravention of Article V, Section 6, I am duty-bound not to publish it.
§ 4 -1.06 b.
Section 4 -1.06 b. permits the Comptroller to authorize the
disbursement of up to $3 million against appropriations of a subsequent fiscal
year, when an emergency arises or when July 1 falls on a weekend.
Such disbursement potentially could be used to fund almost
any of the appropriations in House Bill 5002. As such it conditions and
is intertwined with such appropriations. Accordingly, for reasons previously
stated, the portion of House Bill 5002 covered under the purported veto of § 4
-1.06 b. constitutes less than an item in contravention of Article V, Section
6, and I am duty-bound not to publish it.
§ 4 -6.01 b.
Section 4 -6.01 b., in conformity with § 2.2-201 of the Code
of Virginia, mainly establishes the salaries of the Governor's Chief of Staff
and Cabinet Secretaries at specific amounts. The appropriations for these
salaries are rolled up in various items throughout the budget bill according to
the substantive secretariat involved. Therefore it is clear that the
purported veto of this section does not abolish these positions or take away
the appropriation for their salaries. Accordingly, in striking the
specified salaries the purported veto attempts to strike a condition on the
various aforementioned appropriations, namely the condition that the salaries
for the positions in question be paid at a specific amount. The official
veto explanation's (i) assertion that the concern is about a different aspect
of this section, and (ii) pledge to pay the positions at the specified
amounts is of no moment, because what the purported veto would strike is the
legal requirement that the salaries be paid as specified.
Accordingly, for reasons previously stated, the portion of
House Bill 5002 covered under the purported veto of § 4 -6.01 b. constitutes
less than an item in contravention of Article V, Section 6, and I am duty-bound
not to publish it.
Sincerely,
Bruce F. Jamerson
cc: Members, General
Assembly of Virginia
[1] As you may know, sections §§ 4 -1.02 and 4 -1.06
b. are the same provisions that Governor Warner attempted to veto in
2004. I could not enroll his purported vetoes of these sections in 2004
for the same reasons set forth in this letter. Governor Warner did not
attempt to veto § 4 -6.01 b.