GOP lawmakers to challenge Napolitano's use of veto power
Associated Press
Feb. 1, 2006

Saying the stakes for their branch of government could hardly be higher, Republican legislators are gearing to mount a legal challenge to Democratic Gov. Janet Napolitano's latest line-item veto.

If allowed to stand, Napolitano's erasure of a provision in a bill giving state employees a pay raise would let Napolitano or a successor use the line-item veto power to reject virtually any part of a piece of legislation, not just specific appropriations in spending bills, Republicans said Wednesday.

"At a certain point you wonder why we're even down here when she can take bills and do as she wishes with them," said Sen. Jim Waring, R-Phoenix. "It's frustrating to me. I'm voting on the whole thing."

The expected legal confrontation, which could take months to produce a court ruling, comes amid increasingly sore relations between Napolitano and GOP lawmakers over English Language Learning programs and other issues.

Besides giving governors the power to veto an entire bill, the Arizona Constitution authorizes governors to use a line-item veto to disapprove of one or more appropriations in a bill otherwise allowed to become law.

Both types of veto are subject to override by two-thirds votes of both the House and Senate, but the Legislature's partisan makeup and other political considerations make override attempts extremely rare.

The provision vetoed Monday would have exempted certain categories of newly hired state employees from civil service protections. Napolitano, whose political allies include public employee unions, opposed that provision and said she could veto it because differences in vacation allotments for exempt and nonexempt employees meant the provision carried a discernible pricetag for the state.

"I think I'm right," she said when asked Wednesday about the veto. "You can disguise it, but it is an appropriation."

She declined to discuss hypotheticals, such as whether she could line-item veto a crime bill provision to raise mandatory sentences, thereby increasing the state's prison costs.

"We take it one bill at a time," she said. "In my view, in this instance it was not even a close question."

Tim Nelson, Napolitano's chief counsel, said the vetoed provision clearly was an appropriation under legal criteria adopted by the Arizona Supreme Court early in the last century. The test is whether the provision authorizes the state to spend a certain amount of money for a specific purpose, he said.

Under that test, it doesn't matter that the provision doesn't state a dollar figure for additional expenses tied to vacation time for affected employees, Nelson said. "The Supreme Court has said there's no magic language required."

Republicans contend Napolitano's view of her power clearly crossed the constitutional line.

"I think that's a stretch myself," said Sen. Robert Blendu, R-Litchfield Park. "If that holds up, where is the line then?"

Added Blendu: "It's a legitimate issue. We have three branches of government for a very specific purpose -- for our checks and balances."

It's not clear whether the Legislature will try to override, but Republicans are preparing a motion which, if approved by the House and Senate, would authorize GOP leaders to go to court to challenge the line-item veto.

That step is a direct response to a rebuff that the state Supreme Court dealt Republican legislative leaders who sued to challenge Napolitano's 2003 line-item vetoes of certain spending reductions and other budget provisions. One of the reasons the justices cited for not deciding the challenge - an outcome that effectively upheld Napolitano's line-item vetoes - was that the legislative leaders who sued couldn't do so as individual legislators.

Meanwhile, at least one legislative Democrat said Republicans should back off.

The contemplated challenge is premature and would be a waste of tax dollars, said Sen. Richard Miranda of Phoenix. "We need to explore all avenues before we take drastic measures like hiring counsel."


On the Net:

Napolitano veto letter: ses%20Si gning%20Letter.pdf

Arizona Supreme Court ruling in 2003 case: