May 7, 2003
The Honorable Mark R. Warner
Governor of Virginia
State Capitol
Richmond, Virginia 23219
Dear Governor Warner:
I write to you in my capacity as Keeper of the Rolls of the Commonwealth
regarding the communication of your purported veto of § 4-1.04 of House Bill
1400 on May 1, 2003.
Based upon legal advice, it is my opinion that the portion of House Bill 1400
covered by this purported veto 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 this purported veto for the reasons set forth in this
letter.
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 § 4-1.04 as a whole
constitutes a condition on all of the appropriations in HB 1400 that may be reduced
in the event of a revenue shortfall. The first sentence of the section states that
"[e]ach appropriating act of the General Assembly shall be construed as subject
to the provisions and conditions contained in this section" (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 the section.
I am aware that the Supreme Court of Virginia indicated in Commonwealth v.
Dodson, 176 Va. 281 (1940), that, in certain circumstances, where the provision
of a budget bill that is vetoed would otherwise be unconstitutional, a veto of
less than an item may be upheld by a court. However, your purported veto of §
4-1.04 does not fall within the ambit of such circumstances.
The Honorable Mark R. Warner
May 7, 2003
Page Two
Even if the concerns that you expressed in regard to subdivision a 4 c of §
4-1.04 were determined to be valid from a constitutional perspective, the practical
effect of this purported veto would be to strike all of the several portions of
new language added to this section of Chapter 899 of the 2002 Acts of Assembly in the
enrolled version of House Bill 1400 (the enrolled version is identical to the
re-enrolled version).1 In this regard, you do not allude to any constitutional
concern with any of the "new language" that would be stricken except the
provisions of subsection c. As Keeper of the Rolls of the Commonwealth I
cannot create multiple or new vetoes, nor can I limit the applicability of a
veto to less than all the provisions to which it is drawn. Therefore, I cannot
even consider the constitutional concern you expressed regarding subsection c.
Accordingly, because the portion of House Bill 1400 covered under your
purported veto of § 4-1.04 constitutes less than an item in contravention of
Article V, Section 6, I am duty-bound not to publish it.
Sincerely,
Bruce F. Jamerson
cc:Members, General Assembly of Virginia
1The portions of this section that were added during the 2003 Session (i) make
it clear that the Governor may withhold nongeneral fund appropriations in
balancing the budget; (ii) require the Governor's budget reduction plan to
identify budget reductions by program and appropriation item; (iii) require all
budget reduction proposals submitted to the Governor or his staff to be
forwarded to the Chairmen of the House Appropriations and Senate Finance
Committees within five calendar days of the submission; (iv) require the State
Comptroller to report to the Governor within five business days at the close of
each fiscal year actual individual income tax, corporate income tax, and sales
and use tax revenues for the fiscal year; (v) require the Governor, under
certain circumstances and based on the report of year-end revenues prepared by
the State Comptroller, to prepare a written reestimate of general fund revenues
for the current and the next biennium and to report the same to the chairmen;
and (vi) prohibit the Governor from cutting more than fifteen percent of the
total amount appropriated to any program.