June 4, 2008
The Honorable Timothy M. Kaine
Governor of Virginia
Patrick Henry Building, 3rd Floor
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 veto of § 4-6.01 b.
of HB 30.[1] Based on legal advice, it is my opinion that this purported
veto does not comport with 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.
Article V, Section 6 of the Constitution of Virginia
permits the Governor to veto any item or items of an appropriation bill.
In Brault v. Holleman, 217 Va. 441 (1976), the Supreme Court of
Virginia in defining an "item" stated as follows:
In the constitutional sense, an item of an appropriation
bill is an indivisible sum of money dedicated to a stated purpose; the term
refers to something which may be eliminated from the bill without affecting the
enactment's other purposes or provisions.
While the Governor is empowered to veto any particular
item or items of an appropriation bill, he must, for his veto to be valid,
strike down the whole of an item; he cannot disapprove part of an item and
approve the remainder. And this rule prevents the Governor from reducing the
amount of an appropriation which by itself constitutes an item.
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.
Section 2.2-201 of the Code
of Virginia, mainly establishes salaries of the Governor's Chief of Staff and
Cabinet Secretaries at a specific amount. 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
Governor's veto does not abolish these positions or take away the appropriation
for their salaries. (The Governor admits in his explanation for this
purported veto that the "positions listed in this item will continue to be
paid. . . " ). Accordingly, in striking the specified salaries the
Governor attempts to veto a condition on the various appropriations, namely the
condition that the salaries for the positions in question be paid at a specific
amount. The Governor's assertion in his explanation that he is concerned
about a different aspect of this section and his pledge to pay the positions at
the specified amounts is of no moment, because what he has vetoed is the legal
requirement that the salaries be paid as specified.
As stated above in Brault:
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.
Accordingly, the portion of HB 30 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 will recall, this section is the same
section that you purportedly vetoed in 2006. For the same reasons that I
advised you of at that time, which are the same reasons set forth in this
letter, I was unable to publish that veto.