More on Line Item Vetoes

For those of you really, really interested in every aspect of the Arizona Supreme Court's decision in Bennett v. Napolitano, in this post I discussed the Court's comment that these lump-sum reductions were a new and unlikely-to-be-repeated legislative tactic, thus supporting the Court's reluctance to decide the dispute. I noted that Gov. Hull had used her line-item veto power several times in striking similar appropriations that attempted to reduce overall spending. Two lawyers familiar with the case have noted that there are some differences in how the Hull and Napolitano vetoes operated that might, or might not, be significant.

Eight of Hull's similar line-item vetoes involved attempted reductions passed in a subsequent special session from previously-appropriated sums, while the Napolitano vetoes involved positive appropriations and lump-sum reductions in the same bill. The Court had previously approved the governor's use of the line-item veto in that former situation (the subsequent reduction of a previously-approved appropriation) a decade ago in a case called Rios v. Symington.

However, one Hull line-item veto of a lump-sum reduction did occur during the same legislative session in 2002, where the legislature appropriated a series of sums for ADOT, but then tried to reduce that overall amount by the lump-sum reduction technique. It's not clear from the record if that one particular veto involved a reduction in a different appropriations bill, even if passed during the same session, or the kind of now-you-see-it, now-you-don't legerdemain where the reduction is put into the exact same bill as in Bennett.

Putting the reduction in the same bill, as opposed to the next bill passed by the same legislature in the same session, may or may not have dispositive significance. We're unlikely to find out, because the legislature needs to come up with a new set of budget tactics anyway. But there may be enough factual difference, even if those differences don't seem determinative to you or to me, to make the Court's statement in ¶35 of the opinion that "the manner of formatting these reductions" may have been a first-time event indeed accurate. You may have to split the hairs pretty fine to uphold that particular dictum, but hey, we lawyers do that every day (and appellate judges get to do it twice a day, minimum).