Elmhurst Convalescent Center, Inc. v. Bates ( 1975 )

This case involves a determination of the extent of the governor's item veto power with respect to bills making an appropriation of money. The General Assembly has traditionally included some substantive provisions in appropriation bills. In recent years, the number and extent of substantive provisions in appropriation bills have increased.

There is of course a limit of the extent to which the General Assembly can go in including substantive provisions in appropriation bills in light of the requirement of Section15(D), Article II, Ohio Constitution, that "no bill contain more than one subject."

Although the Governor has no item veto with respect to substantive provisions included in a bill not making an appropriation of money, where the General Assembly elects to include substantive provisions in a bill making an appropriation of money, the Governor's veto power extends to the items of the substantive provisions as well as to the items making appropriations. The item veto pursuant to Section 16, ArticleII, Ohio Constitution, extends to "any item or items in any bill making an appropriation of money," not merely to items of appropriation. (Emphasis added.)

An "item" subject to an item veto need not necessarily be a complete paragraph or even a complete sentence. Under proper circumstances, a single clause, a single phrase, or even a single word may constitute an "item" subject to the item veto. This is necessarily true for otherwise the General Assembly by clever structuring of language of a provision could deny the item veto power to the governor which would exist if separate items so cleverly connected were separately stated. As indicated in State, ex rel. Brown, v. Ferguson (1972), 32 Ohio St.2d 245, the General Assembly cannot by any device deny the governor the power of item veto of any item in a bill making an appropriation of money.

Although the Supreme Court in Brown indicated that an item is something separate and distinct in subject and purpose from other provisions in the bill, "subject" and "purpose" here have a narrow import, since a bill may contain only one "subject" in any event.

The Supreme Court in Brown also indicated that the test of whether language in a bill constitutes an item subject to veto is whether both the language vetoed and the remainder of the provisions from which such language is severed can each stand alone, that is whether they are severable so that each can stand independently of the other.

This determination, of necessity, must be made in the first instance by the Governor. The General Assembly, by the requisite three-fifths vote, may override the veto either because it feels the item not to be properly severable or because it feels the item should be enacted in any event. Once the Governor has made his determination, and the legislative process is complete, and the veto is allowed to stand, the courts should exercise great caution in "second-guessing" the governor as to whether the language vetoed constitutes a separate item subject to veto.

It is only where the governor has abused his discretion and the language vetoed clearly does not constitute a separate item subject to item veto that the courts should interfere in the legislative process and declare language vetoed to be law notwithstanding the attempted veto. In this case, we must give great weight to Governor Gilligan's determination that the vetoed language was subject to the item veto. In cases of doubt or uncertainty, the governor's determination should be allowed to stand.

Even accepting plaintiffs' contentions, the most that can be said is that it is unclear whether the language vetoed by Governor Gilligan was properly subject to the item veto. In such a situation, this court must defer to Governor Gilligan's determination. However, as expressed in the majority opinion, in this case, we conclude that Governor Gilligan correctly determined that the language vetoed was subject to the item veto.