Legislature sues Governor Inslee for unconstitutional vetoes

By JASON MERCIER  | 
Aug 29, 2019
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Though we thought last session was far behind us, the Legislature announced a lawsuit today arguing Governor Inslee violated the constitution when issuing several partial vetoes of the 2019-21 transportation budget. According to a legislative press release, the “Senate Facilities & Operations Committee, along with the House Executive Rules Committee, voted unanimously to file suit against Inslee to challenge these single-sentence vetoes.”

The Governor acknowledged what he did was very unusual (see veto message on page 202):  

“While my veto authority is generally limited to subsections or appropriation items in an appropriation bill, in this very rare and unusual circumstance I have no choice but to veto a single sentence in several subsections to prevent a constitutional violation and to prevent a forced violation of state law.”

As reported by Jerry Cornfield when the questionable vetoes were issued:

“Inslee’s top advisers could not cite another example of a governor vetoing a single sentence in a budget bill…”

In a follow up article earlier this week Cornfield wrote:

“Since Inslee acted May 21, attorneys for the Democratic and Republican caucuses have been researching whether the two-term governor crossed a constitutional line separating his veto authority from their legislating turf. Leaders in each of the four caucuses have called the veto ‘troubling’ and ‘concerning.’”

Washington’s current veto restriction language was adopted by voters via a constitutional amendment in 1974. According to the arguments in the 1974 Voter’s Guide:

“Help Rid Your State of One-Man Lawmaking – Washington is the only state in the nation in which the Governor exercises practically unlimited power to remove portions of laws passed by the Legislature . . .  SJR 140 will prevent one person from changing behind the closed doors of his office bills which are the product of an open hearing process, accessible and visible to all citizens.”

As a result of this 1974 constitutional amendment, Washington’s veto restriction now says (emphasis added):

“If any bill presented to the governor contain several sections or appropriation items, he may object to one or more sections or appropriation items while approving other portions of the bill: 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.

This is not the first time the Legislature has sued a Governor for issuing a questionable veto. Governor Lowry was sued in 1994 (court upheld veto) and Governor Locke was sued in 1997 (court invalidated veto).

The state Supreme Court said in these prior cases:

“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.”

Earlier this year the Building Industry Association of Washington (BIAW) also sued Governor Inslee alleging an unconstitutional veto in a different bill. According to BIAW:

“The Governor violated the constitution by vetoing a small portion of a bill, specifically a subsection. Although the Governor has the authority to veto parts of bills passed by the legislature, he must veto an entire section rather than veto a single item or line.”

The constitution is clear that the only options for vetoes are sectional or appropriations. The Governor may not veto a word or sentence within a section. The outcome of the Legislature’s lawsuit against Governor Inslee will have a big impact on future legislative deal making. If this precedent is allowed to stand, a Governor could fundamentally alter a tightly crafted proviso returning the state to the “One-Man Lawmaking” the 1974 constitutional amendment tried to avoid.