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ITEM VETO AUTHORITY

This memorandum addresses limitations on the authority of the Governor to exercise a partial veto.

CONSTITUTIONAL AUTHORITY TO VETO ITEMS

The authority of the Governor to partially veto legislation is found in Section 9 of Article V of the Constitution of
North Dakota (adopted June 11, 1996), which provides, in part:
Every bill passed by the legislative assembly must be presented to the governor for the governor's
signature. If the governor signs the bill, it becomes law. The governor may veto a bill passed by the
legislative assembly. The governor may veto items in an appropriation bill. Portions of the bill
not vetoed become law. (emphasis added)

NORTH DAKOTA CASE LAW

The North Dakota Supreme Court decision in State ex rel. Link v. Olson, 286 N.W.2d 262 (1979) (hereafter
Link), is the state's only court case specifically addressing the power of the Governor to partially veto legislation.
Although the constitutional authority to exercise the partial veto was revised in 1996, the legislative history of the
amendment indicates the veto procedure under the revised Article V was intended to be very similar to the replaced
Article V. 1 Moreover, the key analysis in Link--whether the vetoed provision constituted an "item or items or part or
parts" of an appropriation bill which could be vetoed--remains relevant under the current constitutional language.
Because the 1979 language is broader, any restriction on the use of the partial veto under that language should be
applicable to partial vetoes under the current language.

In 1979, the 46th Legislative Assembly enacted Senate Bill No. 2460. The bill included the creation of a new
office under the Lieutenant Governor in Section 1 of the bill; the repeal of an existing state office in Section 20; and
an appropriation clause to fund the new office in Section 21. The Governor vetoed the section of the bill creating
the new state office. He issued an Executive Order essentially moving the duties of the vetoed office to new positions
in his office, rather than the Lieutenant Governor's, and funded those positions with the appropriations in Senate
Bill No. 2460. The Governor asked the Attorney General for an opinion regarding the validity of the Executive Order.
The Attorney General issued opinion 79-134, which in part opined the Governor's partial veto of Senate Bill No. 2460
defeated the legislative purpose behind the bill at issue and amounted to an inappropriate legislative action by the
executive branch.

In the opinion, the Attorney General cited to case law from several states as support and explanation for the
position the Governor's veto of Section 1 of Senate Bill No. 2460 was invalid. Many state appellate courts have held
a partial veto may not strike conditions or restrictions on the use of appropriated funds because doing so constitutes
legislating. For example, the opinion notes "inherent in the power to appropriate is the power to specify how the
money should be spent." 2 Similarly, the power to exercise a partial veto is "not the power to enact or create new
legislation by selective deletions." 3 Rather, the state constitution delegates all legislative power to the legislative
branch, except for the power reserved to the people to initiate ballot measures. 4

In response to the Attorney General opinion, the Governor filed a petition with the North Dakota Supreme Court.
The resultant case, Link, was the first time the court had an opportunity to interpret the extent of the governor's
partial veto power under the 1979 constitutional provision, and the court looked to case law regarding similar veto
provisions from other states for guidance. The court noted a trend limiting governors' authority to veto substantive
items or parts in appropriation bills. Several states authorize the vetoes only if the appropriation related to the vetoed
items or parts also are vetoed and the items or parts are so separate and distinct that removing them does not
affect the bill's primary purpose. 5 The corollary to this general rule is governors "may not veto conditions or
restrictions on appropriations without vetoing the appropriation itself, as this would distort the legislature's intent." 6

1In 1979, the constitutional provision granting the Governor veto authority provided, "The governor shall have power to
disapprove of any item or items or part or parts of any bill making appropriations of money or property embracing distinct items,
and the part or parts of the bill approved shall be the law, and the item or items and part or parts disapproved shall be void,
unless enacted in the following manner"
2N.D.A.G. Opinion 79-134 (citing Welden v. Ray, 229 N.W.2d 706, 710 (Iowa 1975)).
3Id. (citing Sego v. Kirkpatrick, 524 P.2d 975 (N.M. 1974)).
4N.D.A.G. Opinion 79-134.
5As part of this review of other states, the court contrasted North Dakota's position on partial vetoes with Wisconsin's, which

authorizes partial vetoes to effectuate changes in legislative purpose. The Link court said "Wisconsin's partial veto provision is
not worded like North Dakota's, and [Wisconsin's] interpretation would allow the governor to use his veto power to, in essence,
legislate."
6Link v. Olson, 286 N.W.2d 262, 270 (N.D. 1979).

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As the court noted, distorting the legislative intent is "in effect creat[ing] legislation inconsistent with that enacted by
the Legislature, by the careful striking of words, phrases, clauses or sentences." 7

The Link court agreed with the cases it cited and held the:
"Governor, in exercising his partial veto power, may only veto items or parts in appropriation bills
that are related to the vetoed appropriation and are so separate and distinct that, after removing
them, the bill can stand as workable legislation which comports with the fundamental purpose the
legislature intended to effect when the whole was enacted. He may not veto conditions or
restrictions on appropriations without vetoing the appropriation itself." (emphasis added) 8

The court further held the veto of the section of Senate Bill No. 2460 creating the new state office was not authorized
because the vetoed section was not a separate and distinct provision that could be removed without affecting the
other provisions of the bill and without this provision the remaining bill is not workable legislation. As a result, the
court held the primary purpose of the bill--to create a new state office--would be destroyed if the veto were upheld.

Based on the decision in Link, the following principles limit the Governor's authority to exercise a partial veto:
1. The partial veto authority granted to the Governor does not permit the Governor to legislate by striking
words, phrases, clauses, or sentences to create legislation inconsistent with that enacted by the Legislative
Assembly.
2. The partial veto authority of the Governor is limited to the vetoing of items in an appropriation bill related to
a vetoed appropriation. The Governor may not veto conditions or restrictions on an appropriation without
vetoing the appropriation itself.
3. The vetoed item must be so separate and distinct that, if vetoed, the bill remains a workable piece of
legislation that comports with the purpose the Legislative Assembly intended to achieve when the entire bill
was enacted.

NORTH DAKOTA ATTORNEY GENERAL OPINIONS

In addition to the 1979 opinion, the Attorney General has issued two opinions interpreting the partial veto
authority of the Governor--one in 1993 and another in 2001. The 1993 opinion, Attorney General Opinion 93-F-05,
considered whether the Governor had authority to veto portions of Section 4 of 1993 House Bill No. 1002 which
placed conditions on the use of funds appropriated to the Department of Human Services. The appropriation itself
was not vetoed. The Attorney General issued the opinion in light of the state constitution as it read in 1993, which
was substantively the same as the version in effect in 1979. 9

Although the Governor vetoed a single section of the 1993 appropriation bill, the Attorney General's analysis
initially focused on the first sentence of the vetoed section and then separately focused on the remaining sentences
of the section. The Attorney General concluded the veto was valid only as it related to the first sentence of the
section and invalid as it related to the remainder of the section. The veto of the first sentence passed legal muster,
according to the Attorney General, because it did "not condition or restrict the expenditure of the appropriation
provided for in [the bill]." 10 The Attorney General agreed with the Link holding that "the line item veto may not be
used to veto a condition on an appropriation unless the appropriation is also vetoed." 11 Additionally, the Attorney
General summarily determined the first sentence was a separate and distinct provision that could be removed
without changing the Legislative Assembly's fundamental purpose for enacting House Bill No. 1002 or leaving an
unworkable piece of legislation.

Contrarily, the Attorney General concluded the Governor's veto of the remainder of the section exceeded
constitutional authority because the remainder was "a condition or restriction on the appropriation" of funds.
Specifically, the remainder of the section required appropriated funds to be spent according to priorities adopted by
the Legislative Assembly unless the priorities were changed by the Budget Section. The Attorney General

7Id. at 269 (N.D. 1979) (quoting Sego v. Kirkpatrick 524 P.2d 975, 891 (N.M. 1974)).
8Id. at 270-1 (N.D. 1979).
9The partial veto provision in 1993 was found in Section 10 of Article V of the Constitution of North Dakota. It authorized the

Governor to veto "an item or items, or part or parts of any bill making appropriations of money or property embracing distinct
items, and the part or parts of the bill approved shall be the law, and the item or items, and part or parts disapproved shall be
void, unless enacted in the following manner"
10N.D.A.G. Opinion 93-05, p. 19.
11Id.

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determined the remainder of the section could be vetoed only if the Governor also vetoed the appropriation to which
it was connected. As the appropriation was not vetoed, the partial veto was null.

The Attorney General also said eliminating the remainder of the section after the first sentence would leave a
"meaningless" piece of legislation. The Attorney General said the specified procedure for changing the priorities for
spending the appropriated funds was "not separate and distinct" from the priorities themselves. In fact, the
procedures for changing the priorities were specifically referenced in the sentence codifying the priorities.

The Attorney General analyzed the Governor's partial veto authority again in 2001. The 2001 Attorney General
Opinion is the only opinion to address the partial veto authority after the 1996 amendments to the section of the
constitution regarding that authority. The constitutional language examined in the opinion remains in effect today.

Attorney General Opinion 2001-F-04 considered whether the Governor may exercise partial veto authority to
veto a section of an appropriation bill which does not deal with an appropriation. The section the Governor vetoed
did "not make an appropriation of money or property, or contain conditions or restrictions on appropriations." Link
and the previous Attorney General opinions did not address this particular issue.

In the opinion, the Attorney General concluded the Governor had the authority to veto the relevant section of the
appropriation bill because the plain language of Section 9 of Article V of the Constitution of North Dakota grants the
Governor the authority to veto a section of an appropriation bill and does not prohibit the Governor from vetoing
substantive or nonappropriation items in an appropriation bill. However, vetoes of nonappropriation items still must
comply with the requirements in Link. The Attorney General summed up the three conditions that must be satisfied
for partial vetoes of nonappropriation items to be valid as follows: 12
1. The vetoed material must be severable from the material that was not vetoed.
2. The remaining material must remain a workable piece of legislation.
3. The deletion must not change the fundamental purpose of the legislature in enacting the legislation.

The Attorney General summarily concluded the partial veto at issue did not violate any of those conditions.

CASE LAW FROM OTHER STATES

As the court in Link noted, North Dakota's limited legal precedent regarding partial vetoes makes a review of
other states' case law instructive. Each state constitution addresses the scope of the governor's veto authority.
Courts strictly construe those constitutional provisions to ensure the executive does not upend the balance of power
among the three branches of government. 13 Courts generally hold governors may not legislate by veto, and any
doubt over the extent of governors' partial veto power should be resolved in favor of restricting that power. 14

Most state court rulings on partial veto authority support the holdings in Link. In particular, the majority of courts
that interpret language similar to our constitution's partial veto provision hold a partial veto may not alter the
legislature's purpose behind the relevant bill and the vetoed item must be distinct and severable from the remaining
portions of the bill. These courts, like the Link court, have invalidated governors' attempts to veto conditions or
restrictions on appropriations while keeping the appropriations intact. 15 Analogously, the courts also prohibit

12N.D.A.G. 2001-F-04, p. 3.
13See e.g., Ranks v. Vilsack, 684 N.W.2d 193 (Iowa 2004); and Drummond v. Beasley, 503 S.E.2d 455, 464 (S.C. 1998).
14See e.g., Ranks v. Vilsack, 684 N.W.2d 193, 202 (Iowa 2004)("the item veto power is to be construed narrowly, and any doubt

over the extent of the power 'should be resolved in favor of the traditional separation of governmental powers and the restricted
nature of the veto.'"); Alaska Legislative Council v. Knowles, 21 P.3d 367, 371 (Alaska 2001)(governor may not rewrite
appropriation bills except by striking or reducing items); Barbour v. Delta Correctional Facility Authority, 871 So.2d 703, 711
(Miss. 2004)(governor cannot create new legislation); Wood v. State Administrative Bd., 238 N.W. 16, 17-18 (Mich. 1931); and
see generally Jubelirer v. Rendell, 953 A.2d 514, 531 (Pa. 2008).
15See e.g., State v. Martinez, 340 P.3d 597 (N.M. 2014)(invalidating veto of language regarding use of appropriated funds when

appropriation itself was not vetoed); Homan v. Branstad, 812 N.W.2d 623 (Iowa 2012)(invaliding veto of a definition because
the definition was a condition and integral part of an appropriation, and "when the legislature makes a specific appropriation
for a specific purpose, the Governor can veto the appropriation as an item, but cannot veto the purpose and use the
appropriation for a different purpose."); Alaska Legislative Council v. Knowles, 21 P.3d 367 (Alaska 2001)(invalidating veto of
language that imposed a condition on an appropriation when governor did not also veto the appropriation, because the veto
constituted a "de facto re-appropriation"); Florida Senate v. Harris, 750 So.2d 626, 629 (Fla. 1999); Drummond v. Beasley,
503 S.E.2d 455, 463 (S.C. 1998); and Welden v. Ray, 229 N.W.2d 706, 713 (1975)("if the Governor desires to veto a
legislatively-imposed qualification upon an appropriation, he must veto the accompanying appropriation as well.")
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governors from striking words or phrases to create legislation that is inconsistent with what the legislatures
intended. 16

Many state courts have defined an "item" for purposes of analyzing partial vetoes. For example, the Minnesota
Supreme Court held an item of appropriation of money "is a separate and identifiable sum of money appropriated
from the general fund dedicated to a specific purpose." Inter Faculty Organization v. Carlson, 478 N.W.2d 192, 195
(Minn. 1991). In Virginia, the Court in Commonwealth v. Dodson, 176 Va. 281, 11 S.E.2d 120, 127 (Va. 1940) held
"[a]n item in an appropriation bill is an indivisible sum of money dedicated to a stated purpose." 17 Our courts have
not specifically defined the term "item" in this context. The 2001 North Dakota Attorney General opinion indicates
the Governor may veto substantive items not connected to an appropriation if those items are included in an
appropriations bill. However, any partial veto of an item that relates to an appropriation must include a veto of the
appropriated funds so the entire "item" is vetoed. Striking words or phrases that constitute only part of an item--
such as a condition or restriction on the use of appropriated funds--renders a veto invalid.

RECENT USE OF PARTIAL VETO AUTHORITY

Several of the vetoes executed after the 2017 Legislative Assembly adjourned appear to violate the partial veto
authority granted to the Governor under the state constitution. Many of the partial vetoes attempt to eliminate
conditions or restrictions on appropriations, strike language that is not separate and distinct from the rest of the bill,
change the legislative purpose of appropriations bills, and, in effect, legislate from the executive branch. For
example, the Governor's veto of Section 6 of Senate Bill No. 2003 is an improper exercise of the partial veto authority
under the standards set by Link and opinions of the Attorney General. The Legislative Assembly appropriates funds
for the operation and maintenance of the institutions under the control of the State Board of Higher Education
including the building, renovation, maintenance, and operation of facilities. Section 6 of Senate Bill No. 2003 created
conditions for the institutions to meet when expending funds appropriated for such purposes. Even though the
provisions of the bill appropriating the funds are found in different sections of the bill, the provisions are inextricably
intertwined with the conditions found in Section 6. 18 The purpose of the conditions was to prevent institutions from
building unnecessary facilities necessitating further appropriations, require the institutions to manage their deferred
maintenance costs, and ensure there will be adequate funds in the future to maintain campus facilities. Nothing in
the bill suggests the Legislative Assembly would have appropriated the same dollar amounts to the institutions had
the conditions in Section 6 not been in place.

As a result, based on well-established case law in North Dakota and around the country, as well as opinions by
North Dakota Attorneys General, the Governor may not veto Section 6 without vetoing the accompanying
appropriations for capital projects in Senate Bill No. 2003. However, the Governor did not veto the appropriations.
Instead, the Governor undermined the Legislative Assembly's purpose in appropriating funds for capital projects
and attempted to create modified legislation without conditions requiring judicious use of the appropriated capital
project funds. Similarly, the vetoes of items in Section 12 of Senate Bill No. 2013, Section 12 of Senate Bill No. 2018,
and Section 5 of House Bill No. 1020 attempt to legislate by eliminating conditions on appropriated funds and under
the reasoning clearly set out in Link would be invalid and ineffective. Furthermore, the veto of items in Sections 18
and 39 of Senate Bill No. 2003 and a portion of a sentence in House Bill No. 1020 changes the intent of those
sections and creates legislation inconsistent with the intent of the Legislative Assembly.

16See e.g., State v. Martinez, 340 P.3d 597, 603 (N.M. 2014); Barbour v. Delta Correctional Facility Authority, 871 So.2d 703,
711 (Miss. 2004)("executive branch of government through a governor's use of a partial veto may not thwart or sabotage the
legislative intent"); Drummond v. Beasley, 503 S.E.2d 455, 463 (S.C. 1998)(governor "may not distort, frustrate or defeat the
legislative purpose by a veto of proper legislative conditions, restrictions, limitations or contingencies placed upon an
appropriation and permit the appropriation to stand. [To do so] he would create new law, and this power is vested in the
Legislature and not the Governor."); Rush v. Ray, 362 N.W.2d 479, 482 (Iowa 1985)("the governor's veto power is a negative
one that does not allow him to legislate by striking qualifications in a manner which distorts legislative intent."); and In re Opinion
of the Justices, 294 Mass. 616, 621, 2 N.E.2d 789, 791 (1936).
17See also Alaska Legislative Council v. Knowles, 21 P.3d 367, 371 (Alaska 2001)("item" is "a sum of money dedicated to a

particular purpose").
18See Homan v. Branstad, 812 N.W.2d 623 (Iowa 2012)(governor's veto of a statutory definition in one section of a bill was

invalid because the vetoed language was an implicit condition placed on an appropriation in another section of the bill).
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