Washington State Legislature v. Lowry

131 Wash. 2d 309

Opinions

Talmadge, J.

Governor Mike Lowry vetoed portions of bills enacted in the 1994 session of the Legislature. Rather than overriding the vetoes, the Legislature filed a declaratory judgment action in the Thurston County Superior Court seeking to invalidate them. The Legislature asked the court to establish limiting parameters of the Governor’s veto authority under article III, section 12 of the Washington Constitution.

There is no more difficult and controversial aspect of relations between our branches of government than the Governor’s use of the veto. Historically, Legislatures and Governors have sought to gain political advantage, the Legislature by carefully drafting legislation to avoid vetoes, and the Governor, by vetoing all or parts of bills.

Pursuant to our historical, constitutional role, we intervene in this controversy to uphold both the power of the Legislature to write legislation as it may choose, and the power of the Governor to exercise the general and line item veto. In this opinion, we seek to delineate and maintain the proper constitutional balance between the coordinate branches of our State government with respect to the veto.

ISSUES

1. Does the veto power of the Governor extend to portions of legislation not formally denominated as sections by the Legislature?

2. Does the veto power of the Governor extend to provisions in appropriations bills that condition how specific sums of money may be spent?

3. Does the veto power of the Governor extend to provisions in appropriations bills that condition how money may be spent, but do not reference a specific sum of money?

4. Does the veto power of the Governor extend to provisions in appropriations bills reducing expenditures?

FACTS

In the 1994 legislative session, the Legislature enacted various bills that Governor Lowry vetoed at least in part. The Legislature did not override the Governor’s veto by two-third votes of both houses, as authorized by article III, section 12 of the Constitution. Instead, the Legislature commenced a declaratory judgment action against the Governor in the Thurston County Superior Court, contesting the validity of the vetoes under article III, section 12.

The vetoes at issue fall into three broad categories. The first relates to the Governor’s veto of subsections of legislation, each of which repealed an entire act or section of an act.¹ While the Legislature designated these repealers as "subsections,” the Governor contended the subsections were, in fact, sections of a bill to which his veto power extended. With respect to ch. 143, Laws of 1994, for example, § 513 of the legislation contains 103 numbered subsections, each repealing an entire legislative act or section of an act.

The second broad category pertains to the Governor’s vetoes of language conditioning how an agency may spend an appropriation.² However, there are two subsets of such budget provisos³ before us. "Dollar provisos” are subsections of appropriations bills conditioning the appropriation to an agency on compliance with legislative direction that certain funds be spent or not be spent, or the agency take or not take certain action. For example, § 135 of Laws of 1994, 1st Spec. Sess., ch. 6, appropriates $41,497,000 to the Department of General Administration, but requires in § 135(9) that $171,000 of the general appropriation be spent only for the purpose of a statewide co-location program.

The second type, "nondollar provisos,” makes no reference to a specific dollar amount. For example, in Laws of 1994, ch. 303, § 5, the Legislature appropriated $145,609,000 to the Washington State Patrol Field Operations Bureau, but conditioned the appropriation by stating in § 5(4) only commissioned officers may be issued motor vehicles by the Washington State Patrol. This nondollar proviso makes no reference whatsoever to a monetary amount associated with the use of the vehicles.

Finally, the Governor vetoed sections of a transportation appropriations bill where the Legislature reduced an appropriation, but conditioned the reduction on certain actions.⁴ In Laws of 1994, ch. 303, § 5, the Legislature reduced the appropriation to the State Patrol Highway account by more than $2 million, but established a new proviso setting the maximum amount that could be spent on breathalyzers and established accounting procedures for the federal funds received by the Patrol for providing security at a national legislative conference. The Governor vetoed the reduction, but left the new provisos intact.

The trial court, the Honorable Wm. Thomas McPhee, granted summary judgment on May 1, 1995, declaring the Governor’s vetoes of subsections invalid. The trial court, however, determined the Governor’s vetoes of appropriations bill provisos were valid and the appropriations were not affected by the vetoes. Likewise, the trial court ruled the Governor’s vetoes of appropriations reductions were valid and did not alter the provisos to such appropriations that remained. Both parties appealed and we granted direct review. RAP 4.2(a).

ANALYSIS

The Washington Constitution confers upon the Governor general veto authority over legislation and a distinct veto power over "appropriation items”:

If any bill presented to the governor contain several sections or appropriation items, he may object to one or more sections or appropriation items . . . Provided, That he may not object to less than an entire section, except that if the section contain one or more appropriation items he may object to any such appropriation item or items.

Wash. Const, art. Ill, § 12 (amend. 62). Under the general veto power, the Governor may veto a whole bill or a section of a bill. Additionally, the Governor’s constitutional veto power, traditionally described as the line item veto power, also extends to "appropriation items.”

Washington’s Constitution has contained a broad veto power for the Governor since statehood.⁵ The Governor’s veto extended to full bills, sections of bills and items in bills. Const. 1889, art. Ill, § 12 ("one or more sections or items”). The scope of article III, section 12, as originally adopted, was limited by the 62nd Amendment in 1974. The item veto power of the Governor was limited to appropriations items, restricting a practice, initiated by Governor Rosellini and used by Governor Evans, to veto items in nonappropriations bills. See, e.g., Washington Ass’n of Apartment Ass’ns v. Evans, 88 Wn.2d 563, 564 P.2d 788 (1977); State ex rel. Ruoff v. Rosellini, 55 Wn.2d 554, 348 P.2d 971 (1960).

The general purpose of the appropriations item or line item veto is twofold. First, it gives the Executive, who is elected statewide rather than from a particular district, the power to achieve fiscal constraint and to advance statewide rather than parochial fiscal interests; the Governor can excise unneeded "pork barrel” programs or projects from an appropriations bill so as to restrain public expenditures. This purpose of the line item veto is consistent with the requirement in the Budget and Accounting Act, RCW 43.88, that the Governor submit and the Legislature enact a balanced biennial operating budget. See Karcher v. Kean, 97 N.J. 483, 507, 479 A.2d 403 (1984) ("The constitutional line-item veto power serves the governmental need to have a balanced budget in place at the start of the fiscal year”). See also Stephen Masciocchi, The Item Veto Power in Washington, 64 Wash. L. Rev. 891, 892-93 (1989).

Second, a line item veto is designed to permit the Governor to disentangle issues so they will be considered on their individual merits. This policy is consistent with the constitutional framers’ evident fear of legislative logrolling and the other checks on such logrolling placed in the Washington Constitution. Masciocchi, 64 Wash. L. Rev. at 892-93 n.13.

Despite the policy purposes underlying the veto power, courts, legislators, and Governors have had significant difficulties defining "section” and "appropriation item.” We attempt here, in the Court’s constitutional role as interpreter of the Washington Constitution, to set forth operating guidelines.

A. SECTION VETOES

The Legislature argues Governor Lowry may veto only complete sections of a bill, and the Legislature has sole discretion to designate sections, citing Washington State Motorcycle Dealers Ass’n v. State, 111 Wn.2d 667, 763 P.2d 442 (1988) (Motorcycle Dealers). The Governor asserts the vetoed provisions constitute entire de facto sections even though they fall under subsection headings. The trial court agreed with the Legislature.

The checkered history of the use of gubernatorial vetoes over sections of legislation substantially demonstrates the creativity of both the legislative and executive branches of government. At one extreme, in Washington Ass’n of Apartment Ass’ns, 88 Wn.2d 563, this Court confronted a creative exercise of the gubernatorial veto power when Governor Evans vetoed provisions of the 1973 Residential Landlord Tenant Act in such a way as to completely rewrite portions of the legislation. We held article III, section 12 prohibits use of the veto power to reach a new or different result than the Legislature intended. A Governor could use the veto power only to prevent an act or a part of an act from becoming law. See generally Timothy P. Burke, The Partial Veto Power: Legislation by the Governor, 49 Wash. L. Rev. 603 (1974).

At the opposite end of the spectrum, in Fain v. Chapman, 94 Wn.2d 684, 619 P.2d 353 (1980), the Legislature enacted legislation containing numerous separately identifiable subjects as a single legislative section. The plain purpose of the "section” designation was to circumvent a veto. We held whether a vetoed portion of legislation constitutes a section under article III, section 12 was a question of law to be decided by the courts, and although the sections drafted by the Legislature are entitled to considerable weight, they are not dispositive of the courts’ consideration of the Governor’s constitutional veto power. We upheld Governor Ray’s veto of a portion of legislation, which, in creating certain judicial positions, purported to address how the positions would be filled. See Heidi A. Irvin, Note, Washington’s Partial Veto Power: Judicial Construction of Article III, Section 12, 10 U. Puget Sound L. Rev. 699 (1987). See also Cascade Tel. Co. v. Tax Comm’n, 176 Wash. 616, 619, 30 P.2d 976 (1934) (meaning of "section” not limited by the "artificial construction of the legislative measure”).

Finally, in Motorcycle Dealers, we considered the validity of the Governor’s vetoes of certain portions of an act the Legislature had denominated as subsections, as well as entire sections of the bill. After recounting the history of Governors’ increasing use of the item veto, the Court discussed Senate Joint Resolution 140, adopted by the people as the 62nd Amendment to the Washington Constitution in 1974 to resolve competing contentions about the proper use of the item veto:

The amendment wrought three things. First, it limited use of the item veto to appropriation bills. Second, it added a new express prohibition against partially vetoing anything less than "an entire section” (italics ours) of a nonappropriation bill. And third, it provided the Legislature with authority to reconvene itself into extraordinary session within 45 days of adjournment to override vetoes.

Motorcycle Dealers, 111 Wn.2d at 673. We ultimately held the veto applied only to "entire sections of nonappropriation bills, not portions of sections.” Id. We overruled Fain and held whatever the Legislature deems to be a section will be held to be a section by the courts for purposes of article III, section 12. The trial court below followed the Motorcycle Dealers approach and held that a legislative designation of a section is dispositive of whether a section in a bill is a section to which the Governor’s veto power under article III, section 12 applies.

The dissent argues the majority opinion effectively overrules the Motorcycle Dealers case, Dissent at 336-37, and asserts the majority opinion adopts the "separate subject test” for gubernatorial vetoes. Neither contention is correct.

The Court in Motorcycle Dealers, however, was not confronted with a case of legislative manipulation of the designation of sections in a bill to forestall exercise of the gubernatorial veto. Here, the Legislature drafted § 513 of the Laws of 1994, ch. 143 to include 103 numbered subsections. Each subsection repealed an entire existing act or section of our code. The Governor vetoed two subsections of § 513 which repealed full sections of other enactments. It is difficult to understand how the repeal of an entire section of the Revised Code of Washington can escape the Governor’s section veto power simply because the Legislature designated the repeal a "subsection” of a larger section of a bill. Each of the "subsections” of § 513 was previously a "section” of a bill.

The legislative drafting to evade the gubernatorial veto in this case is easier to detect than in Fain, where the Legislature chose to place numerous substantive provisions in a single section of a bill. An imaginative legislator can include a variety of popular and unpopular provisions that normally would appear in separate sections of the larger piece of legislation in a single section so as to circumvent the gubernatorial veto. If the Court does not perceive and correct such attempted action, the Governor is left with the Hobson’s choice of vetoing the entire legislation (the other more than 100 RCW sections repealed by § 513 were obviously acceptable to the Governor) or letting the entire legislation become law.

Motorcycle Dealers should not be read to compel this Court to refrain from any involvement with the Governor and the Legislature over the veto power. The so-called bright-line rule advocated by the dissent stating the courts defer absolutely to the Legislature on the designation of a section will not end the tension between the branches over the veto power. Obviously, Motorcycle Dealers did not put the issue to rest, as the present case attests.

We decline to abandon our constitutional responsibility to referee disputes between the branches. If the Court withdraws from the fray, the delicate constitutional balance the Framers erected and the people amended between the executive and legislative branches with respect to the veto power is upset. If this Court declines to exercise its constitutional responsibility to define a "section” to which the Governor’s veto applies, it entrusts the sectional veto to the sole discretion of the Legislature, a result the Framers clearly did not intend. Our constitution condones neither artful legislative drafting nor crafty gubernatorial vetoes. We must carry out our mandate as the Supreme Court of Washington to decide whether legislative designation of sections is true to the spirit of the constitution.

Only rarely, and reluctantly, as Motorcycles Dealers mandates, will we be drawn into the controversy between the Governor and the Legislature over the definition of a section. We defer to the Legislature’s designation of a section in a bill just as we defer to the Legislature’s finding of facts. CLEAN v. State of Wash., 130 Wn.2d 782, 928 P.2d 1054 (1996); City of Tacoma v. Luvene, 118 Wn.2d 826, 851, 827 P.2d 1374 (1992); State ex rel. Hamilton v. Martin, 173 Wash. 249, 257, 23 P.2d 1 (1933). The Legislature’s designation of a section is conclusive unless it is obviously designed to circumvent the Governor’s veto power and is "a palpable attempt at dissimulation.” State ex rel. Hamilton, 173 Wash. at 257. But where, as here, we discern legislative drafting that so alters the natural sequences and divisions of a bill to circumvent the Governor’s veto power, we reserve the right to strike down such maneuvers. Similarly, if a Governor manipulates the veto power as in Washington Ass’n of Apartment Ass’ns, we will also intervene to forestall such conduct.⁶

We expressly decline to offer bright-line definitions of legislative or gubernatorial manipulation. Such definitions, rather than constraining, are more likely to provide guidelines for evasion should the Legislature or the Governor be so inclined. Our rare and reluctant involvement will be to ensure that neither the Legislature nor the Governor will so conduct its affairs — the Legislature in bill drafting and the Governor in exercising the veto — that the coordinate branch of government is substantially deprived of the fair opportunity to exercise its constitutional prerogatives as to legislation.

We uphold Governor Lowry’s veto of the subsections here because the 103 "subsections” of a single section of the 1994 legislation involved repeal of whole sections of the Revised Code of Washington and were de facto "sections” of legislation to which the veto applies. Moreover, in the other bill, the subsection containing the repealer of a section of a bill also constituted a de facto "section” to which the veto applies.

B. VETOES OF APPROPRIATIONS ITEMS

1. Definition of an "Appropriations Item”

In drafting appropriations bills, the Legislature historically has made lump-sum appropriations to agencies, but has used both provisos and appropriations to express policy determinations or further refine an appropriation to specific programs within an agency. The Legislature has not employed a true programmatic or line item budget. The Legislature has chosen to make general agency appropriations with provisos for policy or specific agency programs in budget bills, rather than setting out more specific programmatic appropriations where each program in the budget is found in a separate section of a budget bill. Masciocchi, 64 Wash. L. Rev. at 895-96, 910-11. We must decide if such budget provisos are constitutional "appropriations items” subject to veto.

Article III, section 12 confers upon the Governor the power to veto appropriation items, to exercise a true line item veto, reviewing individual programs. By its very specific language, article III, section 12 envisions appropriation items as something less than an entire section of an appropriations bill.

Under this Court’s analysis in Ruoff, virtually any component of an appropriations bill was subject to the veto as an appropriation item.⁷ Relying on Ruoff, Washington governors began to veto sentences and phrases in general legislation that did not contain appropriations, often altering the meaning of substantive legislation. Masciocchi, 64 Wash. L. Rev. at 894. This Court ended such practices for nonappropriations bills in Washington Ass’n of Apartment Ass’ns.

The intent of S.J.R. 140, enacted in 1974 as the 62nd Amendment to the Washington Constitution, was to restore the veto power of the Governor to what it was understood to be prior to Ruoff. Senate Journal, 43d Legis., 3d Ex. Sess. 89 (1974). Plainly, at that time, the Governor had a line item veto and an "item” was something less than a full section of a bill. We reject the dissent’s unconventional notion that the 62nd Amendment repealed the Governor’s line item veto. Dissent at 341.

The Legislature argues the Governor’s line item veto power extends only to dollar amounts contained in an appropriations bill because language in an appropriations bill conditioning expenditure of funds does not constitute an "appropriations item.” Br. of Appellant at 22-29. The Governor argues veto of appropriations items can occur without any consequence to the overall expenditure of the agency. Br. of Resp’t at 21-23. We disagree with both approaches.

The Legislature’s view of an "appropriations item” is too narrow, and would eviscerate the Governor’s line item veto power. The Governor’s line item veto is designed to restrain unnecessary expenditures, and to allow the Governor, whose perspective is statewide as opposed to district-specific, to avoid pork barrel projects and advance the best interests of the State. On the other hand, while the Governor’s view of an "appropriations item” is closer to our analysis of an "appropriations item” under article III, section 12, the Governor misreads the consequences of a line item veto of a budget proviso, giving too little deference to the Legislature’s direction of how money may be spent.

Because the purpose of the Governor’s "line item” veto is to excise line items in appropriations bills, we should give effect to such a purpose. The Legislature frustrates such a purpose, however, if it drafts budget bills as lump sum appropriations to agencies. The only feature of modern legislative bill drafting in Washington that resembles the traditional budget line item is the budget proviso.

Consequently, we hold that any budget proviso with a fiscal purpose contained in an omnibus appropriations hill is an "appropriations item” under article III, section 12. Thus, so long as the Legislature drafts budget bills as lump sum appropriations to agencies conditioned by provisos as we have defined them here, the Governor’s appropriations item veto power extends to each such proviso.⁸

2. Effect of Veto of Dollar Provisos

Where the Legislature provides that the money appropriated may be used solely for a particular purpose, if the Governor vetoes such proviso language, the overall agency appropriation is reduced by the amount referenced in the proviso. For example, in Laws of 1994,1st Ex. Sess., ch. 6, § 135, the Legislature appropriated $41,497,000 to the Department of General Administration, but conditioned the overall appropriation in § 135(9) on $171,000 being expended "solely” on a statewide collocation program. Governor Lowry vetoed § 135(9). By vetoing § 135(9), the Governor reduced the overall agency appropriation by $171,000.

Not all provisos are so clear. For example, in Laws of 1994, 1st Spec. Sess., ch. 6, § 610(5)(a), the Legislature conditioned an appropriation to the Higher Education Coordinating Board for financial aid and grant programs as follows:

$95,039,000 is provided solely for the state need grant program. Of this amount, a maximum of $249,000 may be expended to establish postsecondary education resources centers through the early intervention scholarship program to the extent that an equal amount of federal matching funds are also provided. The board shall, to the best of its ability, rank and serve students eligible for the state need grant and the early intervention scholarship program in order from the lowest family income to the highest family income.

The Legislature conditioned the appropriation to the Higher Education Coordinating Board on a maximum dollar figure that could be expended by the Board. If the Governor vetoes this proviso language, as Governor Lowry did, the overall appropriation to the agency ought not be reduced by a sum of $249,000 because it is unclear how much of the $249,000 might be expended by the Board in the biennium for the referenced purpose. The Board may spend nothing or up to $249,000. The Legislature limited the amount that could be used for this purpose. When the Governor vetoes such a subsection in an appropriations bill, the veto does not automatically reduce the appropriation to the agency by a sum certain because the proposed expenditure is not for a sum certain, although the agency may not exceed the specified legislative cap on spending.⁹

Thus, the Governor’s veto of a dollar proviso reduces the appropriation to the agency only when the Legislature expressly states the money may be used solely for the purpose set forth in the proviso. We look to the specific language in the appropriations bill to determine whether the Governor’s veto of the proviso should result in a reduction in the overall appropriation to the agency.

3. Effect of Veto of Nondollar Provisos

The more difficult questions are whether nondollar budget provisos constitute "appropriations items” under article III, section 12, and the effect of the Governor’s veto of such provisos. Nondollar provisos condition an agency appropriation on the agency’s taking or not taking certain action. For' example, the Legislature appropriated $145,609,000 to the Washington State Patrol for field operations. Laws op 1994, ch. 303, § 5. In section 5(4) of the legislation, the Legislature conditioned the appropriation as follows: "only commissioned officers and commercial vehicle enforcement officers involved directly and primarily in traffic enforcement activities will be assigned vehicles by the Washington state patrol.”

Provisos in appropriations bill that do not have a specific dollar amount are very common. At their best, such nondollar provisos are a legitimate expression of the Legislature’s oversight function over agencies and programs. At their worst, such provisos are legislative micromanagement of agencies or a device to revive substantive legislation that perished during a legislative session. For example, in Laws of 1994, ch. 303, § 2(2), the Legislature conditioned an appropriation to the Traffic Safety Commission as follows:

It is the intent of the legislature that the responsibilities of and appropriation to the Washington traffic safety commission be transferred to the Washington state patrol as of July 1, 1994. The appropriations in this section represent funding necessary to operate the agency for fiscal year 1994 only.

Similarly, in Laws of 1994, ch. 303, § 7(3), the Legislature conditioned a $63,525 million appropriation to the State Patrol’s support services bureau:

It is the intent of the legislature that: (a) There be no cadet classes during the 1993-95 biennium; and (b) the chief of the Washington state patrol shall maintain the current field force level of seven hundred troopers and sergeants through management reductions.

The Legislature argues these nondollar provisos are not "appropriations items,” basing this contention largely on a Senate floor colloquy between sponsors of a 1974 constitutional amendment adopted by the people as article III, section 12:

Senator Grant: "[I]t is our intent, the intent of the sponsors of this measure, that he could not veto less than an entire section, a proviso that was less than an entire section, except for the appropriations amount.”

Senator Dore: "When referring to appropriation item in the bill you are talking about a dollar amount.”

Senator Grant: "That is correct, Senator.”

Senate Journal, 43d Legis., 3d Ex. Sess. 116 (1974). The intent of legislative sponsors of a measure is noteworthy, but not conclusive as to our interpretation of the plain language of a measure. Chrysler Corp. v. Brown, 441 U.S. 281, 311, 99 S. Ct. 1705, 1722, 60 L. Ed. 2d 208 (1979) ("The remarks of a single legislator, even the sponsor, are not controlling in analyzing legislative history.”); Spokane County Health Dist. v. Brockett, 120 Wn.2d 140, 154-55, 839 P.2d 324 (1992) ("a legislator’s comments from the floor are not necessarily indicative of legislative intent”); North Coast Air Servs., Ltd. v. Grumman Corp., 111 Wn.2d 315, 325-26, 759 P.2d 405 (1988) (legislative colloquy not conclusive as to legislative intent).

Nondollar provisos must be "appropriations items” under the constitution, as the rationale for application of the line item veto to dollar provisos applies with equal force to nondollar provisos. This interpretation is consistent with the real purpose of such provisos and the tenor of our constitution. In any event, these nondollar provisos are intimately connected to the expenditure of funds by executive agencies and cannot be viewed in isolation from such expenditures. Our general case law on statutory provisos requires such an interpretation.¹⁰

For example, in State v. Wright, 84 Wn.2d 645, 652, 529 P.2d 453 (1974), we reaffirmed a long-standing rule for the interpretation of statutory provisos:

[A] proviso in a statute must be construed in the light of the body of the statute, and in such a manner as to carry out the legislature’s intent as manifested by the entire act and laws in pari materia therewith. Provisos operate as limitations upon or exceptions to the general terms of the statute to which they are appended and as such, generally, should be strictly construed with any doubt to be resolved in favor of the general provisions, rather than the exceptions.

(Citation omitted). See Garvey v. St. Elizabeth Hosp., 103 Wn.2d 756, 697 P.2d 248 (1985); Pfeifer v. City of Bellingham, 112 Wn.2d 562, 772 P.2d 1018 (1989). Reading nondollar budget provisos in pari materia with the appropriations they reference compels the conclusion they are "appropriations items.”

Our constitution also evidences a clear policy that bills should pertain to single subjects and should not be encumbered by "riders” containing divergent subjects, as is the practice in Congress; our Framers vigorously opposed legislative logrolling. Washington Fed’n of State Employees v. State, 127 Wn.2d 544, 566-67, 901 P.2d 1028 (1995) (Talmadge, J., concurring in part/dissenting in part).¹¹ To treat nondollar provisos as something other than appropriations items to which the line veto does not extend only encourages legislative logrolling, forestalls treatment of policy issues on their individual merits, and ultimately undercuts the benefits of the line item veto.

If the only alternatives for the Governor are vetoing a nondollar proviso (and the attendant veto of the whole agency or program appropriation it conditions) or allowing the proviso to remain, the Governor very likely will not exercise the veto. The salutary effect of the line item veto to compel fiscal responsibility is lost. For instance, it is unlikely the Governor would risk the biennial appropriation for the State Patrol’s field operations over a disagreement with the Legislature about the officers’ use of vehicles, even if the legislative proviso is fundamentally unwise. Moreover, it is difficult to imagine a Legislature would ever intend to eliminate the entire biennial appropriation for an agency simply because the Governor vetoes a nondollar amount proviso in an appropriations bill.¹²

The Legislature’s suggested approach defeats sound public policy from the point of view of both the legislative and executive branches of government, and would encourage legislators to weave substantive policy provisions and fiscal measures into appropriations bills, thereby legitimizing Byzantine bill drafting in appropriations measures. To the extent we immunize nonappropriations provisos in appropriations bills from the Governor’s veto, the Legislature will try to slip substantive law provisos into appropriations bills to derive political advantage against the executive, thereby upsetting the constitutional framework of checks and balances. Nondollar budgetary provisos carry significant policy implications and should be addressed individually, on the merits, as substantive legislation; policy should be made in a formal bill subject to the normal legislative process.¹³ The Governor’s line item veto should extend to nondollar provisos in appropriations bills.¹⁴

This interpretation is consistent with that of other state constitutions. Rios v. Symington, 172 Ariz. 3, 833 P.2d 20 (1992); State ex rel. Coll v. Carruthers, 107 N.M. 439, 759 P.2d 1380 (1988); Karcher v. Kean, 97 N.J. 483, 479 A.2d 403 (1984).

In summary, the Constitution did not limit the Governor’s choice either to veto the entire field operations budget of the Washington State Patrol or to allow the entire section to become law. We hold nondollar provisos are "appropriations items” for purposes of the Governor’s line item veto. We hold the Governor may veto a nondol-lar proviso in an appropriations bill without diminishing the overall agency appropriation.¹⁵

C. REDUCTIONS IN APPROPRIATIONS

Where the Legislature reduces an appropriation and enacts new budget provisos for the appropriation supplementing previously enacted provisos, the Governor’s veto of the reduction in the appropriation does not require the deletion of the new conditions, as the Legislature contends.

The new conditions relate to the entire appropriation made during the prior legislative session and must be read in pari materia with that overall appropriation as affected by the Governor’s veto. The Governor is a part of the legislative process and a veto renders a legislative action as if it had not occurred. Hallin v. Trent, 94 Wn.2d 671, 619 P.2d 357 (1980); State Employees Ass’n v. Cleary, 86 Wn.2d 124, 126, 542 P.2d 1249 (1975). The Legislature does not offer any reason why the Governor must veto the new provisos that are unrelated to the reduction. Forcing the Governor to do so would effectively transform the item veto into a section veto. Accordingly, we hold the Governor’s vetoes of appropriation reductions are valid and do not affect budgetary provisos enacted by the Legislature with respect to the overall section in the appropriations bill.

CONCLUSION

The Supreme Court must not abdicate its constitutional duty to act as an impartial referee of constitutional disputes between the legislative and executive branches of government in cases involving the gubernatorial veto. We should be steadfast in exerting a limited, and cautiously exercised, judicial responsibility with respect to the veto power to make sure neither the Legislature nor the Governor takes unfair advantage, and the balance our constitution envisions endures.

Lost in the discussion of the Governor’s line item veto by the parties in this case is the fact the Legislature has a ready constitutional remedy if it is aggrieved by the Governor’s action. The Legislature has the final say on the Governor’s veto. Indeed, after the passage of the 62nd Amendment, the Legislature can even call itself into session to consider gubernatorial vetoes. Though the Legislature has reluctantly exercised this power to override a veto in the past, we should be loathe to limit the Governor’s line item veto power when this constitutional remedy is available to the Legislature.¹⁶

In conclusion, we reverse the trial court order on summary judgment and uphold the Governor’s veto of the sections of the bills in this case that were improperly designated as subsections. We affirm the trial court’s order with respect to the Governor’s veto of dollar and nondollar appropriations bill provisos and reductions of expenditures in appropriations bills. We modify the trial court’s order as to provisos that condition agency expenditures on use of funds "solely” for purposes detailed in a proviso. We remand this case to the Thurston County Superior Court for entry of an order consistent with this opinion.

Durham, C.J., and Dolliver, Guy, and Johnson, JJ., concur.

Smith, J., concurs in the result.

1 Laws op 1994, ch. 143, § 513(28); Laws op 1994, ch. 143, § 513(50); Laws of 1994, ch. 249, § 16(2).

2 Laws of 1994, ch. 303, § 2(2), § 5(4), § 7(1>(3), § 29(2); Laws op 1994,1st Spec. Sess., ch. 6, § 122(10), § 122(12), § 132(3), § 135(9), § 145(15), § 204(4)(h), § 228(19), § 303(8)(b), § 305(1), § 311(5), § 610(5)(a); Laws op 1994, 1st Spec. Sess., ch. 7, § 919(8).

3 legislators commonly refer to language in appropriations bills conditioning the expenditure of funds by an agency as "budget provisos.” We use that terminology here.

4 Laws of 1994, ch. 303, § 2; Laws of 1994, ch. 303, § 5; Laws of 1994, ch. 303, § 6.

5 The territorial Constitution of 1878 permitted vetoes only of entire bills. Const. 1878, art. VII, § 7.

6 With respect to vetoes, we have indicated the desirability of elevating substance above form. In Washington Fed’n of State Employees, Council 28 v. State, 101 Wn.2d 536, 544, 682 P.2d 869 (1984), we upheld a gubernatorial veto of isolated references in sections of a bill "as a ministerial act” deleting obviously obsolete references.

7 Cf. State ex rel. Wisconsin Senate v. Thompson, 144 Wis.2d 429, 424 N.W.2d 385 (1988) (Governor’s item veto extended to sections, subsections, paragraphs, sentences, words, parts of words, letters, digits, and punctuation marks so long as remaining language was workable).

8 The budget provisos to which the Governor’s line item veto extends include full provisos to an appropriations bill, that is, full subsections of the section of an appropriations bill. We do not believe an "appropriations item” may be a sentence, phrase, letter, digit, or anything less than the whole proviso.

9 The Legislature can even conflate the "solely” and “up to” language. In Laws of 1994, ch. 303, § 29(2), the Legislature provided "up to $5,000,000 solely for the necessary infrastructure to support the development of a horse racing facility approved by the horse racing commission.” Governor Lowry vetoed this subsection.

10 The Legislature is deemed to be familiar with our rules of interpretation for statutory provisos in legislating. State v. Ritchie, 126 Wn.2d 388, 894 P.2d 1308 (1995) (Legislature is presumed to be aware of judicial construction of statutes).

11 When the Legislature places a proviso in an appropriations section not containing a specific dollar amount, it may do so at the peril of having the proviso invalidated. Such a proviso often has all the characteristics of substantive legislation. We have repeatedly indicated the Legislature may not abolish or adopt substantive law in an appropriations bill. Wash. Const, art. II, § 19; Inlandboatmen’s Union of the Pac. v. Department of Transp., 119 Wn.2d 697, 836 P.2d 823 (1992); Flanders v. Morris, 88 Wn.2d 183, 558 P.2d 769 (1977); State ex rel. Wash. Toll Bridge Auth. v. Yelle, 61 Wn.2d 28, 377 P.2d 466 (1962); State ex rel. Wash. Toll Bridge Auth. v. Yelle, 54 Wn.2d 545, 342 P.2d 588 (1959).

12 "[I]f through the appropriation process, the Legislature were able to compel the Governor either to accept general legislation or to risk forfeiture of appropriations for a department of government, the careful balance of powers . . . would be destroyed, and the fundamental principle of separation of powers . . . would be substantially undermined.” Opinion of the Justices, 384 Mass. 828, 832, 428 N.E.2d 117, 120 (1981).

13 As the Florida Supreme Court aptly put it:

"Our state constitution demands that each bill dealing with substantive matters be scrutinized separately through a comprehensive process which will ensure that all considerations prompting legislative action are fully aired. Provisions on substantive topics should not be ensconced in an appropriations bill in order to logroll or to circumvent the legislative process normally applicable to such action.”

Brown v. Firestone, 382 So. 2d 654, 664 (Fla. 1980).

14 The Congressional practice of attaching so-called limitation riders on federal appropriations bills to establish Congressional policy direction has come under greater scrutiny and criticism as an inappropriate vehicle for substantive policymaking. Neal E. Devins, Regulation of Government Agencies Through Limitation Riders, Duke L. J. 456 (1987); Jacques B. LeBoeuf, Limitations on the Use of Appropriations Riders by Congress to Effectuate Substantive Policy Changes, 19 Hastings Const. L. Q. 457 (1992).

15 Other jurisdictions that have considered this question in the context of a governor’s line item veto authority to eliminate specific appropriation items without reducing by a like amount the total appropriation in which the item appeared include Reardon v. Riley, 10 Cal. 2d 531, 76 P.2d 101 (1938); Green v. Rawls, 122 So. 2d 10 (Fla. 1960); Opinion of the Justices, 384 Mass. 828, 428 N.E.2d 117, 120 (1981); Karcher v. Kean, 97 N.J. 483, 479 A.2d 403 (1984); State ex. rel. Brotherton v. Blankenship, 158 W. Va. 390, 214 S.E.2d 467 (1975).

16 We stated in Washington Fed’n of State Employees, Council 28, 101 Wn.2d at 547:

"The Governor is free to veto 'one or more sections or appropriation items’, without judicial review. The 'check’, as it has always been, will be the Legislature’s two-thirds override. While it may be argued it is difficult for the Legislature to obtain the two-thirds concurrence to call itself into a special veto session or override a veto, these constitutional arrangements are for the people to determine, not this court. If these arrangements become unsatisfactory or subjected to abuse, the people are capable of making desired changes. See Const, art. 3 [sic], § 12 (amend. 62).”

See also Masciocchi, 64 Wash. L. Rev. at 909-10.