Ohio line-item veto

The Ohio Constitution provides that:

The governor may disapprove any item or items in any bill making an appropriation of money and the item or items, so disapproved, shall be void, unless repassed in the manner prescribed by this section for the repassage of a bill.

Ohio Const. Art. II, § 16.

Veto of the Heartbeat Bill in HB 493

The heartbeat provision itself is not an "appropriation", but was added to a larger bill that contains unrelated appropriations. The heartbeat provision was added to HB 493, which then passed the Ohio House and Senate as amended, but was subsequently stricken by Governor Kasich in a line-item veto with his statement here. The stricken language is shown here.

The veto raises the question as to whether the heartbeat provision qualifies as an "item ... in [a] bill making an appropriation of money." Oh. Const. Art. II, § 16 (emphasis added).

Precedent that line-item veto was invalid

The leading precedent that a line-item veto of a non-appropriations "item" in an appropriations bill is invalid is Alaska Legislative Council v. Knowles, in which the Alaska Supreme Court invalidated line-item vetoes by the Alaska Governor by reasoning as follows:

Reducing an item lessens its amount; striking it lessens its amount to nothing. This implies that an 'item' must include a sum of money. Likewise, a passage that does not include a 'sum of money dedicated to a particular purpose' is not an 'item' which the governor can strike or reduce. Therefore, a veto that does not delete or reduce the amount of money appropriated is not a valid exercise of the power article II, section 15 grants.

Though Knowles II involved the governor's veto of language restricting a monetary appropriation under the item veto power, rather than the veto of a non-monetary appropriation under the general power to veto an entire bill as presented by this case, its understanding of article II appropriations is instructive. We now explicitly adopt Knowles II's exclusively monetary characterization of article II appropriations items and hold that the governor's appropriations veto applies only to monetary appropriations.

State Legislative Council v. Knowles, 86 P.3d 891, 895 (Alaska 2004). This decision was based on a prior decision by the same name in 2001:

Applying the "item" definition here, we conclude that the language struck from the ASMI appropriations is not an "item." It does not appropriate a sum of money dedicated to a stated purpose. By striking this language, the governor was not vetoing by striking or reducing, but rather editing the ASMI appropriations. Upholding these vetoes would give the governor the power to spend appropriated monies without observing limitations enacted by the legislature. This would permit a de facto re-appropriation. Granting that power here would not advance the anti-logrolling and budget-balancing purposes underlying the item veto, because these vetoes did not reduce the amount of the ASMI appropriations.

Our conclusion in Part III.C.3 -- that these passages cannot constitutionally be part of appropriation bills -- does not alter our analysis of the "item" issue. Even if these passages did not violate the confinement clause, they would not be "items" subject to the item veto.

We therefore hold that the governor did not validly exercise the item veto power when he struck this language from the three ASMI appropriations.

Alaska Legislative Council v. Knowles, 21 P.3d 367, 374-75 (Alaska 2001) (emphasis added).

The provision in the Alaska Constitution authorizing a line-item veto is similar to that in Ohio. The Alaska provision states:

The governor may veto bills passed by the legislature. He may, by veto, strike or reduce items in appropriation bills. He shall return any vetoed bill, with a statement of his objections, to the house of origin.

Alaska Const. art. II, § 15.

Ohio precedent on invalidating line-item vetoes

The Ohio Supreme Court has invalidated a veto by the Governor that failed to comply with this provision. In State ex rel. Akron Educ. Ass'n v. Essex, the Ohio Supreme Court held that:

Respondents maintain that Am. Sub. S. B. No. 170 is a "bill making an appropriation of money" because Section 3 of the bill does so. Section 3 of the bill provides:

"In addition to the payments to county boards of education under Section 3317.11 of the Revised Code and the additional $ 3.00 per pupil per year payment required by Am. Sub. H. B. 155 of the 111th General Assembly, the Department of Education shall pay each such board in fiscal year 1975-1976 and in fiscal year 1976-1977, an amount in each of such years equal to $ 3.00 times the total number of pupils under the board's supervision certified under Section 3317.03 of the Revised Code for all the local school districts within the limits of the county district.

"Payment made under this section shall be made in the same manner and from the same source as payments made pursuant to Section 3317.11 of the Revised Code from appropriation 207-501 made in Am. Sub. H. B. 155 of the 111th General Assembly." (Emphasis added.)

Examination of the foregoing Section 3 of Am. Sub. S. B. No. 170 reveals respondents' contention that such section "appropriates money" to be without merit. The emphasized portion of Section 3 of the bill clearly indicates that the source of the funds to be expended, pursuant to Am. Sub. S. B. No. 170, is Am. Sub. H. B. 155.

We conclude, therefore, that Am. Sub. S. B. No. 170 is not an appropriation bill, for it simply does not anywhere by its terms appropriate money.

Accordingly, since Am. Sub. S. B. No. 170 is not an appropriation bill, the Governor's exercise of the item veto power conferred upon him by Section 16, Article II of the Ohio Constitution, under the facts of this case, is unauthorized by law, and is hereby declared to be null and void.

In order to disapprove the specific portions of Am. Sub. S. B. No. 170 to which he apparently objected, the Governor's only recourse under the circumstances herein presented was to veto the entire bill pursuant to Section 16, Article II. This he did not choose to do.

Both relators and respondents assert that in the event the Governor's exercise of the item veto power is declared null and void herein, Am. Sub. S. B. No. 170 is now effective in its entirety. We agree. ...

State ex rel. Akron Educ. Ass'n v. Essex, 47 Ohio St. 2d 47, 50-51, 351 N.E.2d 118, 120 (1976).

What is an appropriation?

As explained in State ex rel. LetOhioVote.org v. Brunner:

An appropriation is "an authorization granted by the general assembly to make expenditures and to incur obligations for specific purposes." R.C. 131.01(F). Similarly, in State ex rel. Akron Edn. Assn. v. Essex (1976), 47 Ohio St.2d 47, 49, 1 O.O.3d 28, 351 N.E.2d 118, we explained that the ordinary and common meaning of the phrase "appropriation bill" is a "measure before a legislative body which authorizes 'the expenditure of public moneys and stipulating the amount, manner, and purpose of the various items of expenditure.'" Id. at 49, quoting Webster's New International Dictionary (2d Ed.). See also Black's Law Dictionary (9th Ed.2009) 117-118 (defining "appropriation" to mean "[a] legislative body's act of setting aside a sum of money for a public purpose").

The VLT provisions of H.B. 1 are not themselves appropriations for state expenses because they do not set aside a sum of money for a public purpose; neither R.C. 3770.03 nor 3770.21 as amended by H.B. 1 makes expenditures or incurs obligations. Rather, they authorize the State Lottery Commission to operate VLT games and to promulgate rules relating to the commission's operation of VLT games, specify that the provisions of R.C. Chapter 2915 criminalizing gambling activities are inapplicable, bar political subdivisions from assessing new license or excise taxes on VLT licensees, and purport to vest this court with exclusive, original jurisdiction over any claim that the provisions are unconstitutional.

LetOhioVote.org v. Brunner, 2009-Ohio-4900, ¶¶ 28-29, 123 Ohio St. 3d 322, 329-30, 916 N.E.2d 462, 471-72.

Standing issue

The Ohio Supreme Court has held that:

"Ordinarily a person is not authorized to attack the constitutionality of a statute, where his private rights have suffered no interference or impairment, but as a matter of public policy a citizen does have such an interest in his government as to give him capacity to maintain a proper action to enforce the performance of a public duty affecting himself and citizens generally."

State ex rel. OATLA v. Sheward, 86 Ohio St.3d 451 (1999).

The Ohio Supreme Court continued to explain that:

"Where a public right, as distinguished from a purely private right, is involved, a citizen need not show any special interest therein, but he may maintain a proper action predicated on his citizenship relation to such public right. This doctrine has been steadily adhered to by this court over the years."

Id. at 150-151, 54 O.O. at 393, 122 N.E.2d at 107 (emphasis added).