Johnson v. Walters

HODGES, Vice Chief Justice.

On the last day of the 1991 regular session of the Oklahoma Legislature, the House of Representatives and the Senate passed enrolled House Bill 1743 (H.B. 1748) and presented it to Governor David Walters. The first two sections of the bill empowered the Legislature to allocate space in the State Capitol Building and relocate various officials. The bill’s third section authorized the sale of surplus water from Sardis Reservoir.

The Governor claimed the bill embraced two separate subjects in violation of the constitutional prohibition against multiple subjects in general legislation (non-appropriation) bills. Rather than vetoing all of the bill, the Governor treated each subject as a separate bill and approved only the third section dealing with Sardis Reservoir.

Also, on the last day of the session, the House and Senate passed enrolled House Bill 1271 (H.B. 1271). That bill was a budget reconciliation measure with a seven-page title and 157 sections requiring over 80 pages of text.

Claiming that this bill embraced general legislation provisions covering multiple subjects, along with appropriations, the Governor vetoed several general legislation sections. These vetoed provisions included sales tax exemptions, restrictions on the use of private prisons, and limits on the personnel powers of the Oklahoma Corporation Commission. In addition, several appropriation sections were vetoed.

*696In this original proceeding, the Speaker of the House of Representatives and the President Pro Tempore of the Senate (the Legislature) claim the Governor’s partial veto of the two bills was beyond his constitutional authority. A writ of prohibition to respondent agencies, boards, commissions, and officers is sought to prevent implementation of all general legislation provisions of both bills. The Attorney General’s office and the Oklahoma Corporation Commission have filed response briefs. Amicus curiae briefs have been filed by the Governor’s Secretary of Energy and the Kiamichi Development Authority. The Legislature has responded to the amicus curiae brief of the Secretary of Energy.

At issue, is the scope of the Governor’s constitutionally conferred veto power. Because this is a matter of great public concern, jurisdiction is assumed. See Phillips v. Oklahoma Tax Comm’n, 577 P.2d 1278 (Okla.1978).

THE GOVERNOR’S VETO POWERS

The Governor’s veto powers are described in sections 11 and 12 of article VI of the Oklahoma Constitution.1 These sections were construed in State ex rel. Wiseman v. Oklahoma Board of Corrections, 614 P.2d 551 (Okla.1978).

Wiseman held that section 11 applies to general legislation bills and bills containing only one item of appropriation. Id. at 555. The Governor must approve or disapprove these bills in toto. See id. Any attempt to qualify the approval is null and the bill does not become law. It is as if the Governor had exercised a “pocket veto.”

Wiseman further held that section 12 operates as an exception to section 11 for bills “making appropriations of money embracing distinct items.” Id. at 556 (quoting section 12). Section 12 grants the Governor the power to line item veto any distinct item of appropriation, provided the item is rejected in toto. Id. at 555-56.

The problem addressed in Wiseman was which section applied when the Governor was presented a bill containing both general legislative provisions and appropriations of money embracing distinct items. There, the Governor attempted to exercise a subject veto over a general legislation provision.

The Wiseman Court held that section 11 applied to the general legislation provisions of the bill and section 12 applied to the provisions making appropriations of money *697embracing distinct items. The result was that all the general legislative provisions failed to become law for lack of gubernatorial approval. The appropriation provisions, however, did not need specific approval from the Governor and became law. Id. at 556-57.

In this dispute, the Legislature has petitioned arguing that the Governor’s line item veto power extends only to appropriations and not to general legislation provisions. By way of defense, the respondent Governor claims the bills violated the one-subject requirement found in sections 56 and 57 of article V of the Oklahoma Constitution.2 He asserts that he should, therefore, be able to divide each bill into separate subjects for him to approve or to veto.

The Governor urges this dispute presents an issue of first impression because the Wiseman Court did not address “whether there was a connection between the one-subject provision ... and the Governor’s veto powers.” However, a review of the decision and the briefs of the parties in Wiseman reveals that a one-subject violation argument was raised. The decision notes that following the application of sections 11 and 12, no issue of one-subject compliance remained because only the appropriation provisions were enacted into law. 614 P.2d at 557. Thus, the Wiseman Court impliedly rejected the approach of applying the one-subject rule before addressing the Governor’s veto powers under sections 11 and 12 of article VI. Today, however, Wiseman’s continued viability must be reassessed in light of the Legislature’s flagrant violations of the one-subject rule along with the purposes and history of that rule.

While sections 11 and 12 of article VI limit the Governor’s veto power, the one-subject rule limits the Legislature’s ability to circumvent that power. “The purpose of the constitutional requirement that but a single subject be included in a legislative bill is to make impossible by logrolling devices the enactment of unpopular legislation by including it with popular legislation on an entirely different subject.” Bond v. Phelps, 200 Okla. 70, 82, 191 P.2d 938, 950 (1948). In addition to the prevention of such omnibus legislation, the rule is also aimed at the undesirable legislative practice of attaching a rider to a bill in order to “veto-proof” the measure. It was intended to “prevent matters foreign to the main objects of a bill from finding their way into such enactment surreptitiously.” In re County Comm’rs, 22 Okla. 435, 438, 98 P. 557, 558 (1908).

These objectionable legislative practices are not new and are not unique to Oklahoma. By the end of the nineteenth century, the one-subject rule had become widely accepted. See note, Enforcing the One-Subject rule: The Case for a Subject Veto, 38 Hastings L.J. 563, 565 (1987). Most states presently have some form of the rule in their constitution. During the same time, the gubernatorial veto power also gained wide acceptance as a limitation on legislative power. Id. at 569.

In theory, the one-subject rule should deter log rolling and other veto-proofing *698attempts. In practice, however, these constitutional violations continue to circumvent the governor’s veto power, as demonstrated by the two bills examined here.

Even a cursory examination of the bills reveals that they combine general legislation provisions which bear no relationship to each other. For example, H.B. 1271 includes the unrelated topics of state employee benefits, coal-fired electric generating plants, the indigent defense system, state travel reimbursement, and officer verification of traffic citations. Such a blatant violation of the one-subject rule cannot be justified by petitioners’ assertion that each provision relates to “state government.”

Wiseman refused to recognize the constitutional limits placed on the Legislature by the one-subject rule before addressing the Governor’s veto powers. Constitutional compliance, however, is required not only from the Governor but from the Legislature as well. The shortcoming of the Wiseman approach was that it did not adequately remedy the Legislature’s continuing practices of log rolling and other attempts at veto-proofing bills. A new approach is required.

The approach suggested by the Governor would allow him to treat each subject in a multi-subject bill as a separate enactment. However, no provision in the Oklahoma Constitution grants that power. Thus, the Governor’s attempt at a partial veto in this matter exceeded his constitutional authority. His suggested approach must therefore be rejected.

Under section 57 of article V, general legislation bills and special appropriation bills are limited to one subject. Section 56 requires a general appropriation bill to embrace nothing but appropriations. These rules limit legislative power and obviously were intended to bind the Legislature. However, it must also be understood that:

while engaged in considering bills which have passed both houses of the Legislature, and which are presented to him for approval or disapproval, the Governor is acting in a legislative capacity and not as an executive; that while exercising this function the Governor is a special agent, with powers limited by the Constitution, and he can only act in the specified mode, and can exercise only the granted powers; if he attempts to exercise them in a different mode, or to exercise powers not given, his act will be wholly ineffectual for any and every purpose.

Peebly v. Childers, 95 Okla. 40, 42, 217 P. 1049, 1051 (1923). Thus, the Governor is also bound by the one-subject rule while acting as a special agent with the limited powers found in sections 11 and 12 of article VI. Therefore, the Governor must enforce the one-subject rule only in a manner consistent with his limited veto powers.

The bills presented to the Governor by the Legislature clearly violated the one-subject rule. H.B. 1271 is a general appropriation bill with general legislation provisions rolled into it. Section 56 requires that “[t]he general appropriation bill shall embrace nothing but appropriations.” The bill also impermissibly combined unrelated topics of general legislation in contravention of the section 57 mandate that “[ejvery act of the legislature shall embrace but one subject.” H.B. 1743 also violated section 57 by combining unrelated general legislation subjects.

These violations of sections 56 and 57 would have required the Governor to treat both bills as unconstitutional under the approach adopted today. However, the Legislature’s possible reliance on Wiseman must be acknowledged. Because Wiseman was the applicable approach at the time these bills were presented to the Governor, today’s decision will be given only prospective effect. Therefore, Wiseman will be applied to this dispute.

APPLICATION OF WISEMAN . TO H.B. 1743

H.B. 1743 contained three sections. Two of the sections dealt with space allocation in the State Capitol Building. These were the object of the Governor’s veto.

The third section authorized the Oklahoma Water Resources Board to sell sur*699plus water from Sardis Reservoir. The section further provided that $3,000,000.00 of the proceeds would be used to develop the Kiamichi River with the remainder to be deposited into the Statewide Water Development Revolving Fund. The Governor approved of this third section of the bill.

The parties agree that all three sections of the bill were general legislation.3 Applying the Wiseman decision, section 11 of article VI requires that general legislation bills be vetoed or approved in toto. Thus, this Governor’s attempt to exercise a partial veto was ineffectual. Under Wiseman, “[a] qualified approval is tantamount to a ‘pocket veto’ and the bill does not become law.” 614 P.2d at 555. Therefore, no part of H.B. 1743 became law.

APPLICATION OF WISEMAN TO H.B. 1271

The same conclusion cannot be reached with regard to H.B. 1271. That bill contained general legislation provisions and appropriations. The Governor disapproved some of both the general legislation provisions and the appropriation items.

Following Wiseman, the general legislation provisions are controlled by section 11 of article VI and the appropriations of money embracing distinct items are controlled by section 12. Id. at 556. Therefore, as with H.B. 1743, all general legislation provisions of H.B. 1271 failed to become law by virtue of the Governor’s attempt at partial approval. But a different result applies to the appropriations.

Section 12 specifically grants the Governor the power to line-item veto provisions making appropriations of money embracing distinct items. He exercised this power by disapproving some of the appropriation sections of H.B. 1271. These vetoed provisions did not become law. The Governor did not veto the remaining appropriation items. Thus, the non-vetoed appropriation items have the force and effect of law because they need no specific approval from the Governor. See Wiseman, 614 P.2d at 557.

CONCLUSION

To summarize, no part of H.B. 1743 became law. All the general legislation provisions of H.B. 1271 also failed to become law. The appropriation sections of H.B. 1271 became law except for those items of appropriation disapproved by the Governor.

Respondents are hereby prohibited from implementing any part of H.B. 1743. They are further prohibited from implementing any part of H.B. 1271 except for those items of appropriation not disapproved by the Governor.

Wiseman failed to adequately curb log rolling and other legislative attempts at veto-proofing bills. It is therefore overruled. That decision was applied to this dispute only because the new approach announced today is to be given prospective effect. In the future, however, when the Governor is presented a bill which violates the one-subject rule, he is required to treat the bill as unconstitutional.

APPLICATION TO ASSUME ORIGINAL JURISDICTION GRANTED; PETITION FOR WRIT OF PROHIBITION GRANTED.

DOOLIN, ALMA WILSON, KAUGER and SUMMERS, JJ., concur. OPALA, C.J., and LAVENDER and HARGRAVE, JJ., concur in part and dissent in part. SIMMS, J., disqualified.

. Section 11 provides:

Every bill which shall have passed the Senate and House of Representatives, and every resolution requiring the assent of both branches of the Legislature, shall, before it becomes a law, be presented to the Governor; if he approve, he shall sign it; if not, he shall return it with his objections to the house in which it shall have originated, who shall enter the objections at large in the Journal and proceed to reconsider it. If, after such reconsideration, two-thirds of the members elected to that house shall agree to pass the bill or joint resolution, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered; and, if approved by two-thirds of the members elected to that house, it shall become a law, notwithstanding the objections of the Governor. In all such cases, the vote in both houses shall be determined by yeas and nays, and the names of the members voting shall be entered on the Journal of each house respectively. If any bill or resolution shall not be returned by the Governor within five days (Sundays excepted) after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the Legislature shall, by their adjournment, prevent its return, in which case it shall not become a law without the approval of the Governor. No bill shall become a law after the final adjournment of the Legislature, unless approved by the Governor within fifteen days after such adjournment.

Section 12 requires:

Every bill passed by the Legislature, making appropriations of money embracing distinct items, shall, before it becomes a law, be presented to the Governor; if he disapproves the bill, or any item, or appropriation therein contained, he shall communicate such disapproval, with his reasons therefor, to the house in which the bill shall have originated, but all items not disapproved shall have the force and effect of law according to the original provisions of the bill. Any item or items so disapproved shall be void, unless repassed by a two-thirds vote, according to the rules and limitations prescribed in the preceding section in reference to other bills: Provided, That this section shall not relieve emergency bills of the requirement of the three-fourths vote.

. Section 56 applies to general appropriation bills and provides:

The general appropriation bill shall embrace nothing but appropriations for the expenses of the executive, legislative, and judicial departments of the State, and for interest on the public debt. The salary of no officer or employee of the State, or any subdivision thereof, shall be increased in such bill, nor shall any appropriation be made therein for any such officer or employee, unless his employment and the amount of his salary, shall have been already provided for by law. All other appropriations shall be made by separate bills, each embracing but one subject.

Section 56 operates as an exception to the following provision found in section 57:

Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title, except general appropriations bills, general revenue bills, and bills adopting a code, digest, or revision of statutes; and no law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revived, amended, extended, or conferred shall be re-enacted and published at length; Provided, That if any subject be embraced in any act contrary to the provisions of this section, such act shall be void only as to so much of the law as may not be expressed in the title thereof.

. This consensus among the parties makes it is unnecessary to address the argument of amicus, Kiamichi Development Authority, that section 3 of H.B. 1743 was an appropriation provision.