Washington Gov. Jay Inslee uses a red pen to veto sections of the state capital budget, May 21, 2019, at the Capitol in Olympia. (AP Photo/Ted S. Warren, file)

Washington Gov. Jay Inslee uses a red pen to veto sections of the state capital budget, May 21, 2019, at the Capitol in Olympia. (AP Photo/Ted S. Warren, file)

Supreme Court considers whether Inslee’s veto went too far

Lawmakers contend he exceeded his authority. The governor argues what he did was legal and necessary.

OLYMPIA — State Supreme Court justices wrestled Tuesday with whether Gov. Jay Inslee crossed a constitutional line in 2019 when he vetoed single sentences in the transportation budget.

Lawmakers sued the governor, contending he exceeded his authority and trespassed onto their legislating turf in excising a sentence pertaining to grant funding for transit services.

A year ago, a Thurston County judge invalidated the vetoes, concluding those actions exceeded the veto powers accorded Inslee as the state’s chief executive.

On Tuesday, Alicia Young, a deputy solicitor general representing Inslee, argued that the move, while unusual, was a legal and necessary response to legislators’ improper “manipulation” of the budgeting process. Those lines made substantive changes in law that would not otherwise pass as stand-alone legislation, which is not allowed under the state constitution, she said.

“Framers (of the state constitution) authorized the line-item veto to prevent harmful effects of legislative log-rolling in appropriation bills and this case demonstrates exactly why,” she said.

But Jeffrey Even, a deputy solicitor general representing the Legislature, countered that the targeted sentence was direction for how certain grant funds are distributed and not a new policy or change in law. If the governor wanted it out, he needed to remove each subsection in which the disputed line appears, he said.

This isn’t the first time the state’s highest court got pulled into a fray between the legislative and executive branches.

In 1977, the state Supreme Court found Gov. Dan Evans went too far when he vetoed provisions of the Residential Landlord Tenant Act and effectively rewrote the bill. In that case, the suit was brought by an association of apartment owners.

The Legislature sued Gov. Mike Lowry regarding the way he vetoed some budget provisions in 1994, and lawmakers sued Gov. Gary Locke over his use of the red pen on portions of a bill in 1997.

In the Lowry case, the majority discussed handling of vetoes within appropriation bills. Budget bills contain two types of provisos — “dollar provisos,” which the court defined as subsections conditioning the appropriation to an agency on compliance with legislative direction, and “non-dollar provisos” which make no reference to a specific dollar amount.

Both can be vetoed, the majority ruled.

However, an often cited footnote appears to have clouded the issue.

It says the governor’s line item veto extends to “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.”

On Tuesday, attorneys for lawmakers and for the governor cited the Lowry case as backing their respective interpretation on parameters on each branch’s power.

In the budget, lawmakers included the line, “Fuel type may not be a factor in the grant selection process.” They said this would ensure transit agencies that are unable to make the transition to zero-emission vehicles right away are not shut out from getting some of the roughly $200 million in grants offered through the state’s public transportation program.

That line is what got cut. Young argued it is a “non-dollar proviso” that can be vetoed under Lowry, as it affects an appropriation item.

Secondly, she said, the sentence amended existing law by changing the rules for the grant selection process. To comport with the state constitution, a separate bill needed to be passed.

Justice Debra Stevens questioned Young on whether this wasn’t simply a policy fight, asking what would have happened had the Legislature written that fuel type must be considered as a factor.

“The governor wouldn’t veto it,” Young said, adding that “it would be a non-dollar proviso that the governor could veto.”

Stevens and Justice Barbara Madsen also pressed Young on what appeared to be an argument to expand the governor’s power to legislate, because under her argument, Inslee could veto every proviso in a budget, leaving only raw sums for every agency.

Young said vetoing every proviso is a theoretical possibility but not likely. Also, she reminded justices that lawmakers have the final say as they retain the power to override any veto.

When Even had his turn, his toughest questioning came from Justice Sheryl Gordon McCloud. She wanted to know if lawmakers wanted the court to revisit the Lowry decision because it clearly allowed vetoing of non-dollar provisos.

“I think your arguments under Lowry have to fail and you must be arguing to overturn Lowry,” McCloud said.

Even repeatedly said no, stressing Lowry offered a “very workable standard for the Legislature and governor” on what constitutes a provision in a budget that could be subject to veto.

This may not be the last time the Legislature takes Inslee to court. Lawmakers passed a new two-year budget in April containing the same contested line regarding fuel factor.

Also this session, Inslee vetoed portions of a carbon pricing bill and a low carbon fuel standard bill that linked their implementation to passage of a new transportation funding package. Lawmakers objected to both of those vetoes and may pursue legal action.

Reporter Jerry Cornfield: jcornfield@heraldnet.com; @dospueblos

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