Washington State Legislature v. Inslee ( 2021 )

FILE THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
NOVEMBER 10, 2021
IN CLERK’S OFFICE
SUPREME COURT, STATE OF WASHINGTON
NOVEMBER 10, 2021
ERIN L. LENNON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
WASHINGTON STATE LEGISLATURE, NO. 98835-8
Respondent, EN BANC
v. Filed: November 10, 2021
THE HONORABLE JAY INSLEE, in his
official capacity as Governor of the State of
Washington,
Appellant.
GORDON McCLOUD, J.—Washington’s constitution permits the governor
to veto whole bills, “entire section[s]” of bills, and “appropriation items.” WASH.
CONST. art. III, § 12. In this case, we are asked to determine whether Governor
Inslee exceeded this constitutional authority when he vetoed a single sentence that
appeared seven times in various portions of section 220 of ESHB 1160, 1 the 2019
transportation appropriations bill. Section 220 appropriated moneys to the
Washington State Department of Transportation (WSDOT) for public
transportation-related grants. The vetoed sentence (the “fuel type condition”)
1
ENGROSSED SUBSTITUTE H.B. 1160, 66th Leg., Reg. Sess. (Wash. 2019).
No. 98835-8
barred WSDOT from considering vehicle fuel type as a factor in the grant selection
process.
Governor Inslee argues that the fuel type condition constituted a complete
“appropriation item” and that such complete appropriation items are subject to
gubernatorial veto. In the alternative, he argues that the fuel type condition violated
article II, section 19’s single subject and subject-in-title requirements and article II,
section 37’s bar on amendment without setting forth the amended statute in full.
The legislature counters that the fuel type condition did not constitute a complete
appropriation item and, hence, that it was not subject to gubernatorial veto; it also
argues that the fuel type condition complied with article II, sections 19 and 37. The
trial court entered summary judgment orders in favor of the legislature.
Like all cases involving the veto power, “[t]he importance of the case before
us is that it deals directly with one of the cardinal and fundamental principles of the
American constitutional system, both state and federal: the separation of powers
doctrine.” Wash. State Motorcycle Dealers Ass’n v. State, 111 Wn.2d 667, 674,
763 P.2d 442 (1988). It requires this court to step into its “historical, constitutional
role” to “delineate and maintain the proper constitutional balance between the
coordinate branches of our State government with respect to the veto.” Wash. State
Legislature v. Lowry, 131 Wn.2d 309, 313, 931 P.2d 885 (1997). And it requires us
to embrace our duty, as the judiciary, to “‘“say what the law is,”’ even when that
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interpretation serves as a check on the activities of another branch.” In re Salary of
Juvenile Dir., 87 Wn.2d 232, 241, 552 P.2d 163 (1976) (citations omitted) (quoting
United States v. Nixon, 418 U.S. 683, 703, 94 S. Ct. 3090, 41 L. Ed. 2d 1039(quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176, 2 L. Ed. 60 (1803))).
We now affirm.
FACTUAL AND PROCEDURAL HISTORY
In 2019, the Washington Legislature passed ESHB 1160, titled “AN ACT
Relating to transportation funding and appropriations.” In section 220, the
legislature appropriated moneys to WSDOT to issue transportation-related grants,
subject to a number of “conditions and limitations.” Section 220 first lists six
accounts and the amount of moneys appropriated from each. In the 15 numbered
paragraphs that follow, the bill specifies that certain amounts of the total
appropriation must be used “solely” for nine specific grant programs. ESHB 1160.
With regard to seven of those nine grant programs, the bill mandates that “Fuel
type may not be a factor in the grant selection process.” LAWS OF 2019, ch. 416,
§220; ESHB 1160, § 220(1)(a), (b), (2), (3)(a), (5)(a), (7), (9) (the “fuel type
condition”). Governor Inslee vetoed this fuel type condition each of the seven
times it appeared.
ESHB 1160, as enacted by the legislature and partially vetoed by the
governor, became effective May 21, 2019. The legislature filed a declaratory
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judgment action seeking declarations that the governor’s vetoes exceeded his veto
authority under article III, section 12 of the Washington Constitution and that the
legislature’s inclusion of those fuel type conditions in section 220 complied with
the Washington Constitution. Clerk’s Papers (CP) at 1 (Compl. for Declaratory J.).
The governor responded that his veto was valid and constitutional, and
counterclaimed that even if his veto was invalid, the court should still strike the
fuel type condition because it violates article II, sections 19 and 37 of the state
constitution. CP at 9-10 (Answer to Compl. for Declaratory J.).
On cross motions for summary judgment, the superior court ruled for the
legislature. CP at 187 (Order Granting Legislature’s Mot. for Summ. J. & Denying
Governor’s Mot. for Summ. J.). It concluded that the vetoes exceeded the
governor’s article III, section 12 authority because the fuel type condition was not
a complete “separate appropriation item[].” Verbatim Report of Proceedings (Jun.
19, 2020) (VRP) at 28. It also concluded that the fuel type condition did not violate
article II, sections 19 and 37 because it was “not substantive legislation or law and
does not directly conflict with existing statutes.” Id. at 28-29. Governor Inslee
appealed directly to this court, and we retained the case for decision.
STANDARD OF REVIEW
We review a trial court’s orders on summary judgment de novo. Enter.
Leasing, Inc. v. City of Tacoma, 139 Wn.2d 546, 551, 988 P.2d 961 (1999).
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“Where, as here, the parties do not dispute the material facts, this Court will affirm
an order on summary judgment if the moving party is entitled to judgment as a
matter of law.” Id. at 551-52. This case raises issues of constitutional
interpretation, which we also review de novo. State v. MacDonald, 183 Wn.2d 1,
8, 346 P.3d 748 (2015).
ANALYSIS
I. UNDER OUR PRECEDENT, THE GOVERNOR’S VETO OF THE FUEL TYPE
CONDITION EXCEEDED HIS VETO POWER UNDER ARTICLE III, SECTION 12
The state constitution empowers the governor to veto whole bills, “entire
section[s]” of bills, and “appropriation items.” WASH. CONST. art. III, § 12. It is
clear that the sentence “Fuel type may not be a factor in the grant selection
process” does not comprise a whole bill or an “entire section” of a bill. Id. As a
result, the governor’s veto of this sentence is valid only if the sentence comprised a
whole “appropriation item.” Id.
We have observed that “[t]here is no more difficult and controversial aspect
of relations between our branches of government than the Governor’s use of the
veto.” Lowry, 131 Wn.2d at 312. Because of the magnitude of the interests at stake,
“[t]he [Washington] Supreme Court must not abdicate its constitutional duty to act
as an impartial referee of constitutional disputes between the legislative and
executive branches of government in cases involving the gubernatorial veto.” Id. at
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330-31. We begin with a brief overview of the constitutional history of the
gubernatorial veto power in our state.
A. The history of the constitutional veto power shows a clear intent to
carefully limit this extraordinary power
Since the 1889 adoption of the state constitution, article III, section 12 has
granted the governor the power to veto entire bills, subject to override by a two-
thirds majority of the legislature. 2 In addition to this general veto power, the
constitution has also granted the governor a “partial veto” power, which permits
him or her to veto smaller portions of bills, subject to the same two-thirds
legislative override. The original text of the 1889 Washington State Constitution
article III, section 12 read, in relevant part:
If any bill presented to the Governor contain several sections or items, he
may object to one or more sections or items while approving other portions
of the bill.
(Emphasis added.)
2
Article III, section 12 begins, “Every act which shall have passed the legislature
shall be, before it becomes a law, presented to the governor. If he approves, he shall sign
it; but if not, he shall return it, with his objections, to that house in which it shall have
originated, which house shall enter the objections at large upon the journal and proceed to
reconsider. If, after such reconsideration, two-thirds of the members present shall agree to
pass the bill 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 present, it
shall become a law.”
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This partial veto power serves two important purposes. First, it “is designed
to permit the Governor to disentangle issues so they will be considered on their
individual merits,” consistent with the other constitutional checks on legislative
“logrolling.” Lowry, 131 Wn.2d at 316-17 (citing Stephen Masciocchi, The Item
Veto Power in Washington, 64 WASH. L. REV 891, 892-93 & n.13 (1989)). Second,
the item veto in particular permits the governor to “excise unneeded ‘pork barrel’
programs or projects from an appropriations bill” to “achieve fiscal constraint and
to advance statewide rather than parochial fiscal interests.” Id. at 316.
When the governor exercises this veto power, he or she acts in a limited
legislative capacity. Wash. State Grange v. Locke, 153 Wn.2d 475, 486-87, 105
P.3d 9 (2005) (citing Hallin v. Trent, 94 Wn.2d 671, 677, 619 P.2d 357 (1980);
Wash. Ass’n of Apt. Ass’ns v. Evans, 88 Wn.2d 563, 565, 64 P.2d 788 (1977)). This
has led to conflicts between the legislature and the executive over the scope of the
veto power. In “the 1950s, 1960s, and early 1970s, governors increasingly vetoed
items that were less than entire sections of nonappropriation bills”—sometimes
excising portions as small as clauses within sentences. 3 Id. (citing Motorcycle
3
An oft-cited example of this practice is discussed in Apartment Associations, 88
Wn.2d 565. In the events leading up to this case, then-Governor Evans vetoed portions of
the Residential Landlord-Tenant Act of 1973, ch. 59.18 RCW, ranging from full
paragraphs to clauses within sentences. The effect of the vetoes was to “completely
rewrite portions of the legislation” and make the overall bill favor tenants far more
strongly than the original bill had done. Lowry, 131 Wn.2d at 317. Applying the later
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Dealers, 111 Wn.2d at 671-72). This practice “resulted in part from the decisions
of this court in Cascade Tel. Co. v. State Tax Comm’n, 176 Wash. 616, 30 P.2d
976 (1934) (holding that a ‘section’ in the original Const. art. 3, § 12 would be
construed to mean any portion of a bill with separate, distinct and independent
subject matter), and State ex rel. Ruoff v. Rosellini, 55 Wn.2d 554, 348 P.2d 971(1960) (holding that an ‘item’ under original Const. art. 3, § 12 was not limited to
matters in an appropriation bill).” Motorcycle Dealers, 111 Wn.2d at 671.
This “greatly expanded use of the partial veto” led to a constitutional
amendment known as Senate Joint Resolution (SJR) 140. Id. at 672. The
“Statement for” SJR 140 in the voters’ pamphlet made clear that the amendment
was designed to limit the governor’s partial veto power:
Washington is the only state in the nation in which the Governor
exercises practically unlimited power to remove portions from laws passed
by the Legislature. This “item veto” power has been interpreted by recent
Governors to apply to any element of a bill down to a single word.
It empowers our Governors to act in effect as an unseparated third
house of the Legislature to alter measures substantially prior to signing them
into law. This is contrary to the grant of authority allowed our nation[’s]
Presidents under the Federal Constitution—which is to reject entire pieces of
legislation by veto, not to change them.
SJR 140 is a moderate compromise proposal passed with bipartisan
support. It will not completely eliminate this unparalleled power, but limit it
discarded affirmative-negative test, this court held that Governor Evans’ vetoes were
invalid. Apt. Ass’ns, 88 Wn.2d at 573.
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to the veto of sections of bills as well as entire bills, and even provides that
budget bills would still be subject to the item veto.
Id. (quoting SJR 140, Official Voters Pamphlet (General Election 1974)).
SJR 140 passed in 1974 and became the 62d Amendment to the Washington
Constitution. The amendment added language limiting the partial veto power, such
that the relevant portion of the state constitution’s article III, section 12 currently
reads:
If any bill presented to the governor contain several sections or
appropriation items, he may object to one or more sections or appropriation
items while approving other portions of the bill: Provided, That he may not
object to less than an entire section, except that if the section contain one or
more appropriation items he may object to any such appropriation item or
items.
(Most emphasis added.) The amendment also granted the legislature the power to
reconvene after adjournment of the regular session “solely to reconsider any bills
vetoed” and to override any such vetoes by a two-thirds majority. Id. Thus, the
governor currently has the power to veto an entire bill, one or more “entire
section[s]” of a bill, and one or more “appropriation items” within a bill.
Veto-related litigation both before and after the 62d Amendment has mostly
addressed the scope of the “section” veto. Our early, preamendment cases
emphasized that the decision about what constitutes a “section” falls within the
province of the judiciary, not the legislature. E.g., Apt. Ass’ns, 88 Wn.2d at 565-66(discussing Spokane Grain & Fuel Co. v. Lyttaker, 59 Wash. 76, 86, 109 P. 3169
No. 98835-8
(1910), in which court applied “affirmative-negative” test, premised on the idea
that “the veto power must be exercised in a destructive and not a creative manner,”
meaning that a veto that had the effect of “reach[ing] a new or different result from
what the legislature intended” was invalid); Cascade Tel. Co., 176 Wash. at 619
(applying “separate subject” test under which the meaning of “section” was not
“always” limited by the “artificial construction of the legislative measure”; instead,
a “section” constituted any portion of a bill containing separate, distinct, and
independent subject matter).
The judiciary still retains the power to interpret the scope of the
constitution’s veto power. But the 62d Amendment signaled a change in how we
balance the powers of the other two branches. Specifically, we recognized that the
voters’ adoption of the amendment represented a “direct[] and forceful[]” reaction
to restore the balance of power between the executive and legislative branches and
to rein in perceived executive overreach. Motorcycle Dealers, 111 Wn.2d at 675.
The amendment’s text showed this: it “added a new express prohibition against
partially vetoing anything less than ‘an entire section’…of a nonappropriation
bill,” and it limited the item veto to appropriations bills. Id. at 673-74. We
therefore jettisoned the earlier “affirmative-negative” and “separate subject” tests
for evaluating the validity of vetoes on the ground that those tests were
“unworkable and subjective” and that they provided “no standards to predict
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whether a veto will be perceived by the court” as valid or invalid. Wash. Fed’n of
State Emps., AFL-CIO, Council 28 v. State, 101 Wn.2d 536, 546, 682 P.2d 869(1984) (abandoning affirmative-negative test); Motorcycle Dealers, 111 Wn.2d at
677-78 (quoting Wash. Fed’n, 101 Wn.2d at 546) (abandoning separate subject test
as “every bit as vague and uncertain as the affirmative-negative test”). We adopted
a test that was based more on deference to the legislature’s formatting decisions;
we explained, in part, that the older, rejected tests constituted “an intrusion into the
legislative branch, contrary to the separation of powers doctrine, and substitute[d]
judicial judgment for the judgment of the legislative branch.” Wash. Fed’n, 101
Wn.2d at 546 (internal citations omitted).
B. After the 62d Amendment, Lowry and Locke 4 held that we defer to the
legislature’s designation of what constitutes a whole “appropriation
item” subject to gubernatorial veto unless the legislature clearly
attempted to circumvent that veto power
We first interpreted the term “appropriation item” against this historical
backdrop. First, in Lowry, the legislature challenged the governor’s exercise of two
types of partial vetoes: the “section” veto and the “appropriation item” veto. 131
Wn.2d at 313. In that case, the legislature had formatted 103 unrelated repealers as
subsections of one single section of a nonappropriations bill. Id. at 313-14. Then
Governor Lowry then vetoed several of these repealers. Id.
4
Wash. State Legislature v. State, 139 Wn.2d 129, 985 P.2d 353 (1999) (Locke).
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We acknowledged that “‘[t]he Legislature’s designation of a section is
conclusive unless it is obviously designed to circumvent the Governor’s veto
power and is ‘a palpable attempt at dissimulation.’” Id. at 320-21 (quoting State ex
rel. Hamilton v. Martin, 173 Wash. 249, 257, 23 P.2d 1 (1933)). But we ruled that
the legislature had committed just such circumvention and dissimulation by
lumping all of those related repealers into a single section. We therefore declined
to defer to the legislature’s designation of a section and upheld the vetoes. Id. at
321.
At the same time, then Governor Lowry also vetoed several sentences of an
appropriations bill relating to state patrol vehicles, a state educational need grant
program, a statewide collocation program, and other matters. Id. at 313-15. As a
result, we had to determine whether each vetoed sentence constituted an entire
“appropriation item” subject to the constitutional veto power. Id. The Lowry court
answered this question by explaining that “any budget proviso with a fiscal
purpose contained in an omnibus appropriations bill is an ‘appropriation[] item’
under article III, section 12,” but that a veto of “anything less than the whole
proviso” is invalid. 5 Id. at 323 & n.8 (emphasis added).
5
The Lowry court distinguished between two types of budget provisos within
appropriations bills: dollar and nondollar provisos. “Dollar provisos” contain language
“conditioning the appropriation to an agency on compliance with legislative direction that
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In determining the parameters of a “whole proviso,” Lowry said that we start
with the presumption that a “whole proviso” is equivalent to a “full subsection[] of
the section of an appropriations bill.” 6 Id. Applying this rule, the court upheld all
of the challenged appropriation item vetoes. Id. at 331.
We interpreted the scope of the appropriation item veto again, two years
later, in Locke, 139 Wn.2d 129. The Locke court acknowledged that the Lowry
court had not “adequately answer[ed] the question” of “what is a whole proviso?”
(to which the gubernatorial veto power extends)—so the Locke court provided
certain funds be spent or not spent, or the agency take or not take certain action.” Lowry,
131 Wn.2d at 314. “Nondollar provisos” also “condition an agency appropriation on the
agency’s taking or not taking certain action,” but they “make[] no reference whatsoever
to a monetary amount.” Id. at 325, 314. Lowry made clear that the governor can veto both
types of budget provisos but only if the veto encompasses the “whole” appropriation
item. Id. at 314, 323 & n.8.
6
The Lowry court made this statement in a footnote, which reads:
The budget provisos to which the Governor’s line item veto extends include
full provisos to an appropriations bill, that is, full subsections of the section of an
appropriations bill. We do not believe an “appropriation[] item” may be a
sentence, phrase, letter, digit, or anything less than the whole proviso.
131 Wn.2d at 323 n.8. We agree in full with the first sentence of the footnote. It must be
noted, however, that there is some tension between the second sentence of the footnote
and Lowry’s outcome. Specifically, the Lowry court upheld the veto of several single
sentences. Id. at 314 & n.2. Most of those sentences were also “full subsections”—but
one was not. Id. at 324 (upholding veto of single sentence contained within larger
subsection). And the Lowry court referred to the single vetoed sentence that appeared
within a larger paragraph of text as, itself, a “subsection.” Id. We take this opportunity to
clarify Lowry and emphasize that a sentence that is “less than [a] whole proviso” may not
be vetoed as an appropriation item. Id. at 323 n.8.
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further guidance on that subject. Id. at 142. Locke explained that just as this court
begins by deferring to the legislature’s designation of what constitutes an “entire
section” for the purpose of analyzing a section veto, this court must also begin by
deferring to the legislature’s designation of what constitutes a “whole”
“appropriation item” when analyzing an appropriation item veto. Id. at 141
(quoting Lowry, 131 Wn.2d at 320-21).
We again recognized that even though we “generally defer to the
Legislature as to its divisions within legislation, such deference is not absolute.” Id.
(quoting Lowry, 131 Wn.2d at 320-21). If the court determines that the
legislature’s designation of a subsection “‘is obviously designed to circumvent the
Governor’s veto power,’” then we “‘reserve the right to strike down such
maneuvers.’” Id. (quoting Lowry, 131 Wn.2d at 320-21). But only an obvious
attempt to circumvent the veto power will overcome deference to the legislature’s
designation of the scope of a whole appropriation item. Id. 7 Absent such obvious
7
The dissent suggests that this interpretation of Locke is “simply wrong” because
it “defies Lowry” and “elevates dicta” from Lowry’s footnote 8 to the status of a legal
holding. Dissent at 10, 8, 4. To the contrary, our reading is one that harmonizes Lowry
and Locke, paying careful attention to how Locke itself interpreted Lowry. Locke very
clearly applied the Lowry deference analysis to the appropriation item veto in that case,
only proceeding to look more deeply into the “practical impact” of the language once it
determined that “the specter of circumvention” had been sufficiently raised to justify not
deferring to the legislature’s designation. Locke, 139 Wn.2d at 141. In this way, Locke
extended the reasoning of Lowry by quoting, and then explicitly applying, the
presumption of deference to the appropriation item veto context, where Lowry had only
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manipulation, we defer to the legislature’s designation of a “full subsection” of an
appropriations bill as a “single and complete” proviso, “incapable of division.” Id.The Locke court found that the legislature had committed just such
manipulation. The budget bill at issue there 8 appropriated moneys to the
Department of Social and Health Services (DSHS), subject to conditions set forth
in numbered subsections. Subsection (6) concerned childcare assistance; it
provided:
$73,129,000 of the general fund—federal appropriation is provided solely
for child care assistance for low-income families in the WorkFirst program and for
low-income working families as authorized in [EHB] 3901. All child care
assistance provided shall be subject to a monthly copay to be paid by the family
receiving the assistance.
Id. at 134. Subsection (6) was followed by three subparts labeled (a), (b), and (c),
which laid out in detail the monthly childcare assistance copayment schedule. Id. at
134-35. Governor Locke vetoed subparts (a), (b), and (c), but he did not veto the
last sentence of (6).
The Locke court struck down this veto as unconstitutional and based its
decision on two main factors. First, the court looked at the tortured history of the
discussed it in the section veto context. Id.; cf. dissent at 7. And Locke’s extension of that
reasoning was eminently sensible, given the separation of powers issues at play in the
budget context. See infra at 17.
8
LAWS OF 1997, ch. 454, § 204.
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copayment provision. We explained that the provision had had “a life of its own”
before becoming part of subsection (6) of the appropriations bill: it had previously
been inserted into both an appropriations bill and a substantive bill, and the
governor had vetoed it both times. Locke, 139 Wn.2d at 147, 133-35. Given that
history, we found that subsection (6) “raise[d] the specter of [legislative]
circumvention sufficiently to disregard deferring to the Legislature’s designation of
(6) as a single and complete ‘subsection,’ incapable of division.” Id. at 141.
Next, we examined the text of the bill. We explained that “an examination of
the language in question and the operative effect of such language indicates the
nature of the proviso.” Id. at 143. We continued that the final sentence of
subsection (6) preceding the (a), (b), (c) subparts, combined with those three,
immediately following subparts, comprised a “single, whole . . . proviso” because
they all addressed the same specific subject and they all “naturally fit together.” Id.
at 144. We concluded that this language and history showed that the governor had
vetoed only subparts of a single, whole appropriations item. Id. The Locke court
therefore invalidated the veto.
Read together, Lowry and Locke hold that unless the legislature clearly
attempts to circumvent the governor’s veto power, we must presume that a
legislatively designated “full subsection” constitutes a whole, indivisible
appropriation item. We look at the history, text, and form of the legislation at issue
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to decide whether the legislature has attempted such circumvention. And we
consider each of these factors against the backdrop of separation of powers
principles, particularly the fact that the legislature is the branch entrusted with the
power to control appropriations.
C. When interpreting the 62d Amendment, we also consider the fact that
the legislature is the branch entrusted with the power to control
appropriations
We have “expressly” declined to provide “bright-line definitions of
legislative or gubernatorial manipulation.” Lowry, 131 Wn.2d at 321. But we do
know that impermissible manipulation occurs if the legislation “clearly undermines
the powers of a coordinate branch of government.” Eyman v. Wyman, 191 Wn.2d
581, 604, 424 P.3d 1183 (2018) (plurality opinion) (discussing Lowry, 131 Wn.2d
at 320-32).
This is an objective inquiry that requires us to examine the history, form and
“practical impact” of the legislation at issue. Locke, 139 Wn.2d at 140-44; see also,
e.g., Lowry, 131 Wn.2d at 321-28; Eyman, 191 Wn.2d at 602-606 (manipulation
does not require “a subjective, conscious,” or bad-faith attempt by individual
legislators to undermine the executive’s veto power).
It also requires us to examine each of these factors in light of the
foundational constitutional principle of separation of powers, which “ensure[s] that
the fundamental functions of each coordinate branch of government remain
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inviolate.” Carrick v. Locke, 125 Wn.2d 129, 135, 882 P.2d 173 (1994). A
fundamental function of the legislature is “to set policy and to draft and enact
laws.” Hale v. Wellpinit Sch. Dist. No. 49, 165 Wn.2d 494, 506, 198 P.3d 1021(2009); WASH. CONST. art. II, § 1. This means that the legislature holds the
“exclusive power of deciding how, when, and for what purpose public funds
should be used by governmental agencies in carrying on the state’s business.” State
ex rel. Decker v. Yelle, 191 Wash. 397, 400, 71 P.2d 379 (1937) (discussing WASH.
CONST. art. VIII, § 4). This power of the purse undergirds the legislature’s ability
to serve as a check on the power of the executive. Juvenile Dir., 87 Wn.2d at 242-
43 (“Legislative control over appropriations . . . [is an] example[] of direct control
by one branch over another.” (citing U.S. CONST. art. I, §§ 8, 9; WASH. CONST. art.
VIII, § 4; Train v. City of New York, 420 U.S. 35, 95 S. Ct. 839, 43 L. Ed. 2d 1(1975))).
For that reason, judicial deference to the legislature’s decision on how to
format its bills—especially its appropriations bills—best comports with separation
of powers principles. Cf. Eyman, 191 Wn.2d at 596-97 (discussing enrolled bill
doctrine, which is rooted in separation of powers and which prevents judiciary
from inquiring into the process by which a bill was passed once the bill has been
certified by the legislature).
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D. In this case, the governor fails to show a clear legislative attempt to
circumvent the gubernatorial veto power; we therefore defer to the
legislature’s designation of what constitutes a whole appropriation
item in section 220
Here, the legislature argues that it neither circumvented the governor’s veto
power nor manipulated its usual formatting to achieve such impermissible
circumvention. The legislature concludes that we should therefore defer to its
designation of what constitutes a subsection containing the fuel type condition as a
whole, indivisible appropriation item. Resp. Br. of Wash. State Legislature (Resp.
Br.) at 14-15.
The decisions discussed above require us to address that issue by analyzing
the text, history, form, and practical impact of the legislation at issue in the context
of the legislature’s role as guardian of the state’s purse strings. Using that analysis,
we agree with the legislature: the governor has failed to show any legislative
intent to manipulate or circumvent the gubernatorial veto, so we must defer to the
legislature’s designation of what constitutes a single, whole appropriation item.
1. Section 220’s format shows no clear attempt to circumvent the
governor’s veto power
Far from “alter[ing] the natural sequences and divisions of a bill,” the
formatting of section 220 is typical of the manner in which the legislature generally
formats appropriations bills. Lowry, 131 Wn.2d at 320-21. The section begins with
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an appropriation of money from various accounts. ESHB 1160, § 220. The
subsections following, including the subsections containing the fuel type condition,
begin by appropriating money out of the general appropriation and continue by
listing further conditions on that money’s use. For example, section 220(9) reads,
“$2,000,000 of the multimodal transportation account—state appropriation is
provided solely for transit coordination grants. Fuel type may not be a factor in the
grant selection process.”
Section 220’s format differs markedly from the “clever formatting,” Eyman,
191 Wn.2d at 604, that showed legislative manipulation in Lowry. The formatting
in Lowry was exceptional. The legislature placed 103 unrelated repealers into one
section of a nonappropriations bill. That presented the governor with the Hobson’s
choice of vetoing the entire section in order to veto any individual repealer, or
vetoing none at all. Lowry, 131 Wn.2d at 319-20. Governor Inslee faced no such
choice in this case—he could have vetoed each single appropriation with its
associated single fuel type condition.
The governor argues that the legislature could have formatted the bill
differently: it could have placed the fuel type condition in its own designated
subsection and cross-referenced the portions of section 220 to which that condition
applied. The governor continues that the legislature’s failure to structure the bill in
this manner shows that it was attempting to “insulate its policy change from either
20
No. 98835-8
the Governor’s section or appropriation item veto authority.” Governor’s Opening
Br. at 36.
We disagree. This formatting choice did not nullify the governor’s partial
veto power. As stated above, the governor could still have exercised the
appropriation item veto in this case by vetoing a whole appropriation item, i.e., a
full subsection. He could have also vetoed the entire section. And if the fact that
the legislature could have structured a bill differently is enough, the deference
requirement would have no meaning; there is always another way to structure any
given bill. Second-guessing legislative drafting choices that way would violate
separation of powers principles and improperly invade the province of the
legislature. WASH. CONST. art. II, § 1.
2. Section 220’s history shows no clear attempt to circumvent the
governor’s veto power
Section 220’s history also differs markedly from the history of the vetoed
bill portions in Locke. In that case, the childcare copay proviso’s history showed
that the legislature was trying to repackage a twice-vetoed provision into an
“unvetoable” format. That history raised the “specter of circumvention”
sufficiently to convince the court to “disregard deferring to the Legislature’s
designation of (6) as a single and complete ‘subsection,’ incapable of division.”
Locke, 139 Wn.2d at 141.
21
No. 98835-8
By contrast, the fuel type condition in this case had never before been
enacted and had never before been vetoed. Instead, the fuel type condition was
inserted into and deleted from section 220 through a series of complex legislative
compromises that encompassed both ESHB 1160 and the “green grant program”
codified by E2SHB 2042.9 Resp. Br. at 35-37.
In other words, the history of the fuel type condition in this case shows the
normal internal workings of the legislative process. It is not comparable to the
legislature’s impermissible attempt to override the governor’s veto power by
reformatting and reinserting previously vetoed language into new bills. See id.
3. Section 220’s language and operative effect show no clear attempt
to circumvent the governor’s veto power
Turning to the substance of the legislation, we “examin[e] . . . the language
in question and the operative effect of such language.” Locke, 139 Wn.2d at 143.
This examination convinces us that the fuel type condition, in isolation, does not
constitute a whole appropriation item. Id.In Locke, subsection (6) provided:
$73,129,000 of the general fund—federal appropriation is provided
solely for child care assistance for low-income families in the WorkFirst
program and for low-income working families as authorized in [EHB] 3901.
All child care assistance provided shall be subject to a monthly copay to be
paid by the family receiving the assistance.
9
ENGROSSED SECOND SUBSTITUTE H.B. 2042, 66th Leg., Reg. Sess. (Wash.
2019).
22
No. 98835-8
Id. at 134. As discussed above, subsection (6) was followed by three subdivisions
labeled (a), (b), and (c); they provided a detailed monthly copay schedule. Id. at
134-35. We examined the operative effect of the language and determined that the
first sentence of (6) was a “dollar proviso” allocating the $73 million for childcare
assistance. Id. at 141. But the second sentence of (6) and the following
subdivisions (a)-(c) comprised a separate, indivisible, “whole . . . proviso” because
they addressed the same specific subject and “naturally fit together.” Id. at 144.
This court also emphasized the fact that the copayment proviso was “only
tangentially related to the $73 million appropriation, as it establishes criteria poor
families must meet in order to receive disbursements from DSHS out of the
appropriated sum designated in the first sentence of (6) for child care.” 10 Id. at 141-
42. It did not establish prerequisites to the agency appropriation.
By contrast, the fuel type condition in this case relates directly to the
appropriation amount that begins each subsection of section 220 in which the
condition appears. The fuel type condition restricts the way WSDOT can spend
those appropriated funds. This is the opposite of what the copayment proviso
accomplished in Locke. The Locke copayment proviso did not direct the manner in
10
See also Lowry, 131 Wn.2d at 325-26 (upholding vetoes of provisos that were
similarly only tangentially related to any appropriation amount).
23
No. 98835-8
which the agency must expend the appropriated money at all; it related to a
different way of offsetting the cost of childcare. Id. at 144. Thus, following Locke,
the fuel type condition does not stand alone as a “single, whole . . . proviso.” Id.
Instead, it “naturally fit[s] together” with the relevant appropriation amount to
form a single, whole appropriation item that could have been vetoed in its entirety,
each time it appeared—or not at all. Id.
4. We therefore defer to the legislature’s designation of what
constitutes a whole appropriation item in section 220
Separation of powers principles require us to begin with a presumption of
deference to the legislature’s designation of appropriation items. But it is a
fundamental duty of this court to interpret the constitution and to “act as an
impartial referee of constitutional disputes between the legislative and executive
branches of government in cases involving the gubernatorial veto.” Lowry, 131
Wn.2d at 330-31. Thus, when it is clear that the legislature’s method of formatting
legislation undermines the constitutional powers of the coequal executive branch
of government, this court must step in to protect the governor’s veto power. 11 Id.
11
In his veto message, Governor Inslee said the fuel type condition was “contrary
to, and in direct conflict with” existing statutory law governing the criteria WSDOT must
consider in selecting grant recipients and therefore amounted to an indirect amendment in
violation of article II, section 37. CP at 53. The governor appeared to concede that the
fuel type condition comprised less than an entire constitutional “appropriation item.” Id.
at 53-54. But, in this “very rare and unusual circumstance,” Governor Inslee stated he
“ha[d] no choice but to veto a single sentence in several subsections to prevent a
24
No. 98835-8
As Locke instructs, once such manipulation is shown, the court will decline to
defer to the Legislature’s formatting devices and will look deeper to determine the
parameters of whole appropriation items. Id.
The dissent repeatedly mischaracterizes our holding today as one that
somehow erodes or eliminates the constitutional distinction between the section
veto and the appropriation item veto. Dissent at 1, 2, 6, 9. But our holding today
does not, and cannot, do any such thing. Under the constitution, the governor
remains free to veto an “entire section” of a bill. WASH. CONST. art. III, § 12. The
governor also remains free to veto “one or more appropriation items,” id.—which
remain, necessarily, “something less than a full section of a bill.” Lowry, 131
Wn.2d at 322 (emphasis added); cf. dissent at 9. Our holding today simply
reaffirms that under this court’s precedent in Lowry and Locke, the scope of a
whole appropriation item is presumptively a full subsection—not a section—of an
constitutional violation and to prevent a forced violation of state law.” Id. at 54.
However, as the legislature notes, the governor has no power to veto legislation simply
because he believes it to be unconstitutional, unless that legislation falls into a category to
which the veto power extends. Resp. Br. at 25. The parties do not argue that the
governor’s concession has any effect on the issue before this court. We agree. Grange,
153 Wn.2d at 490-91 (citing Cascade Tel. Co., 176 Wash. at 621 (the giving of a reason
by the governor in a veto message is for the information of the legislature only)). Instead,
“the construction of the meaning and scope of a constitutional provision is exclusively a
judicial function.” Phila. II v. Gregoire, 128 Wn.2d 707, 714, 911 P.2d 389 (1996). But if
a budget bill contains impermissible substantive or amendatory law, the constitutional
remedy of a challenge under article II, sections 19 and 37 remains open—and indeed,
Governor Inslee made such a challenge here. See Lowry, 131 Wn.2d at 333 (Madsen, J.,
concurring and dissenting).
25
No. 98835-8
appropriations bill. Pursuant to Locke, that presumption can be overcome upon a
showing that the legislature has impermissibly attempted to circumvent the
governor’s veto power. 139 Wn.2d at 141.
The form and substance of the legislation at issue here do not show such
impermissible legislative manipulation or circumvention of the governor’s veto
power. Section 220’s format does not undermine the governor’s veto power and
the fuel type condition does not stand on its own as a “whole” budget proviso. Nor
did that format prevent the governor from exercising his appropriation item veto: if
he wanted to strike the fuel type condition, he could have vetoed each whole
appropriation (meaning each full subsection) in which that condition appeared.
We therefore affirm the trial court’s grant of summary judgment to the
legislature on this issue.
II. THE FUEL TYPE CONDITION DOES NOT VIOLATE ARTICLE II, SECTION 19
Washington’s constitution restricts legislation to a single subject. WASH.
CONST. art. II, § 19 (“No bill shall embrace more than one subject, and that shall be
expressed in the title.”). This constitutional restriction applies to all legislation,
including appropriations bills. Flanders v. Morris, 88 Wn.2d 183, 188, 558 P.2d
769 (1977). It promotes clarity in legislation and helps prevent logrolling. Id. at
187.
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No. 98835-8
As a result, we have “repeatedly indicated the Legislature may not abolish or
adopt substantive law in a[ nonsubstantive] appropriations bill” because doing so
would undermine both of section 19’s constitutional purposes. 12 Lowry, 131 Wn.2d
at 328 n.11. We have also come to that conclusion because “[a]n appropriation bill
is not a law in its ordinary sense” but “pertain[s] only to the administrative
functions of government,” and so it is an improper vehicle for the passage of
substantive legislation. State ex rel. Blakeslee v. Clausen, 85 Wash. 260, 272, 148
P. 28 (1915).
Governor Inslee argues that the fuel type condition violates article II, section
19, mainly because it constitutes substantive law; specifically, the governor asserts
that the fuel type condition amends RCW 47.66.040(2), which lists the factors that
WSDOT must consider when deciding which multimodal program to fund.
Governor’s Opening Br. at 40.
We disagree. We enforce constitutional subject matter limits on the
legislature’s appropriations power. But we have long recognized that “greater
latitude must be granted the legislature in enacting multi-subject legislation under
12
See, e.g., Inlandboatmen’s Union of Pac. v. Dep’t of Transp., 119 Wn.2d 697,
710, 836 P.2d 823 (1992); Retired Pub. Emps. Council of Wash. v. Charles, 148 Wn.2d
602, 629, 62 P.3d 470 (2003); Locke, 139 Wn.2d at 145; Serv. Emps. Int’l Union, Local 6
v. Superintendent of Pub. Instruction, 104 Wn.2d 344, 705 P.2d 776 (1985); Flanders, 88
Wn.2d at 187-88; State ex rel. Wash. Toll Bridge Auth. v. Yelle, 54 Wn.2d 545, 551, 342
P.2d 588 (1959).
27
No. 98835-8
the appropriations bill title than any other, since the purpose of appropriations bills
is to allocate monies for the State’s multitudinous and disparate needs.” Flanders,
88 Wn.2d at 188. And “allocat[ion of] monies for the State’s . . . needs” is, of
course, a core power of the legislature. WASH. CONST. art. VIII, § 4 (“No moneys
shall ever be paid out of the treasury of this state, or any of its funds, or any of the
funds under its management, except in pursuance of an appropriation by law.”);
State ex rel. Peel v. Clausen, 94 Wash. 166, 173, 162 P. 1 (1917) (noting that under
article VIII, section 4, “no moneys can be paid out without the sanction of the
legislative body”).
In fact, the legislature maintains “exclusive power” over the public fisc.
Decker, 191 Wash. at 400. This includes “‘the right to specify how appropriated
moneys shall be spent.’” Kate Stith, Congress’ Power of the Purse, 97 YALE L. J.
1343, 1353-54 (1988) (quoting RAOUL BERGER, EXECUTIVE PRIVILEGE: A
CONSTITUTIONAL MYTH 113 (1974)); Flanders, 88 Wn.2d at 191 (recognizing that
“in certain instances the legislature must place conditions and limitations on the
expenditures of monies”); accord 1987 Op. Att’y Gen. No. 6, at 12 (“[T]he
Legislature is generally free, when making appropriations in an appropriation act, to
limit the use to which the money appropriated can be put by state agencies and
institutions.”). “All appropriations thus may be conceived of as lump-sum grants
with ‘strings’ attached. These strings, or conditions of expenditure, constitute
28
No. 98835-8
legislative prescriptions that bind the operating arm of government.” Stith, supra,
at 1353-54.
Those “strings” allow the legislature to fulfill its constitutional role and to
check the power of the executive. See Juvenile Dir., 87 Wn.2d at 242-43.
But there is a difference between such “strings,” which the legislature may
include in an appropriations bill, and “substantive law,” which it may not. We have
“decline[d] to adopt a categorical definition of ‘substantive law,’” but the Locke
court surveyed our cases and summarized three nonexclusive factors that “may . . .
indicate substantive law is [impermissibly] present” in an appropriations bill: (1)
“where the policy set forth in the budget has been treated in a separate substantive
bill,” (2) where “its duration extends beyond the two year time period of the
budget,” or (3) where “the policy defines rights or eligibility for services.” 139
Wn.2d at 147. The first Locke factor overlaps with the rule that a provision in an
appropriations bill violates article II, section 19 if it “abolish[es] or amend[s]
existing law.” Flanders, 88 Wn.2d at 188; Serv. Emps. Int’l Union, Local 6, 104
Wn.2d 344, 351, 705 P.2d 776 (1985); see also State ex. rel. Wash. Toll Bridge
Auth. v. Yelle, 54 Wn.2d 545, 551, 342 P.2d 588 (1959).
None of these factors are present here.
The governor begins with the first Locke consideration. He argues that the
fuel type condition violates article II, section 19 because it substantively amends
29
No. 98835-8
RCW 47.66.040(2), which lists the criteria WSDOT must consider when deciding
which multimodal programs and projects to grant-fund. Governor’s Opening Br. at
40. Those mandatory criteria include “federal and state air quality requirements”
and “energy efficiency issues.” RCW 47.66.040(2)(a)-(b). “Fuel type” is absent
from that list of mandatory criteria. Id. The governor contends that fuel type is an
“important component of air quality and energy efficiency,” so the fuel type
condition effectively amends the law to “omit” this consideration. Governor’s
Opening Br. at 41. But he points to no evidence in the record showing that
WSDOT ever considered fuel type within those mandatory criteria. And there
appear to be no WACs or other regulations implementing RCW 47.66.040, much
less any rules or regulations establishing that fuel type has been deemed “relevant
and influential,” as the governor claims. Id. at 43. 13
The governor’s argument assumes that because fuel type could relate to
some of the mandatory criteria listed in a separate, substantive law, the legislature
cannot even mention fuel type in an appropriations bill. But that would mean that
13
As the legislature points out, “[t]he 1993 Legislature”—which first enacted
RCW 47.66.040—“was unlikely to have thought about fuel type at all, given that it was
not until 1997 that the first mass-produced hybrid car came to market.” Resp. Br. at 30
(citing Hiroko Tabuchi, Toyota Aims to Remain King of the Hybrids, N.Y. TIMES, Jan. 6,
2011, https://www.nytimes.com/2011/01/07/business/global/07toyota.html). It appears
WSDOT has dutifully considered “energy efficiency issues” and “air quality
requirements” under RCW 47.66.040(2) for nearly 30 years without ever considering fuel
type.
30
No. 98835-8
the legislature could never enact an exclusive list of mandatory eligibility criteria
for a program because the executive branch could always add new eligibility
criteria—criteria that the legislature never considered—simply by asserting that
such new criteria might relate to existing statutory criteria. Under that view, the
legislature could never condition the expenditure of funds on the executive’s strict
compliance with the terms of a statute.
That cannot be. “‘Administrative rules or regulations cannot amend or
change legislative enactments.’” Dep’t of Ecology v. Campbell & Gwinn, LLC,
146 Wn.2d 1, 19, 43 P.3d 4 (2002) (quoting Dep’t of Ecology v. Theodoratus, 135
Wn.2d 582, 600, 957 P.2d 1241 (1998)). Neither can unpublished administrative
policies and preferences.
The legislature’s view is far more consistent with our precedent regarding
the nature of appropriations bills. It argues that the fuel type condition does not
substantively amend the grant eligibility criteria imposed by RCW 47.66.040(2)
but “merely prohibits an administrative agency from adopting a new [criterion].”
Resp. Br. at 33. We agree: the fuel type condition tells WSDOT how to carry out
its functions under RCW 47.66.040(2) during the 2019-21 biennium. Like other
traditional appropriation conditions, the fuel type condition “pertain[s] only to the
administrative functions of government.” Blakeslee, 85 Wash. at 272. It does not
conflict with the plain text of RCW 47.66.040 or change the way WSDOT has
31
No. 98835-8
considered that statute’s mandatory criteria for nearly 30 years. Cf. Flanders, 88
Wn.2d at 184-85, 189. Nor does it preclude WSDOT from rejecting grant
applications for failure to meet air quality standards or due to insufficient energy
efficiency. It provides only that WSDOT may not consider a new, extratextual
factor when allocating multimodal transportation grants in the 2019-21 biennium.
The governor next addresses the second Locke consideration, whether the
“duration” of the challenged condition necessarily “extends beyond the two-year
time period of the budget.” Locke, 139 Wn.2d at 147. He argues that the
legislature’s decision to include the fuel type condition in section 220(5)(a)
“demonstrates an intent to extend beyond the current biennium.” 14 Governor’s
Opening Br. at 42. And we have certainly held that a provision in an appropriations
bill violates article II, section 19 when it “creates a rule of action, a segment of
substantive law, to be effective far beyond the period of the biennium in which
appropriations can constitutionally have effect.” Wash. Toll Bridge Auth., 54
Wn.2d at 551.
14
The legislature argues that the governor waived argument on the second two
Locke factors since he raised them only on appeal. Resp. Br. at 38, 40. The legislature is
partially incorrect: the governor discussed the first Locke factor in his cross motion for
summary judgment, CP at 87, and he discussed the first two Locke factors at the motion
hearing. VRP at 19-20. As to the third factor, it is part of a constitutional issue that can be
raised for the first time on appeal under RAP 2.5(a)(3). In addition, both parties briefed
the third factor, so this court is well informed.
32
No. 98835-8
But the fuel type condition poses no such problems. First, as discussed
above, the fuel type condition does not constitute “a segment of substantive law.”
Id.The fuel type condition does not extend too far into the future, either. In
Washington Toll Bridge Authority, an appropriations bill designated a new,
permanent source of payment for bonds for a second Lake Washington bridge. But
a different payment source for those bonds had already been specified in a
preexisting substantive statute. Id. at 550. We held that the appropriation bill’s new
designation—which changed the payment source from that specified in the
preexisting statute and which purported to change that payment source for “an
indefinite period,” permanently—violated article II, section 19. Id. But the
governor points to no comparable language extending the fuel type condition
beyond the biennium to which the $77,679,000 appropriation applies in this case.
The condition is completely tied to agency decisions made during that time-limited
biennium. 15
15
Section 220(5)(a) does contain the sentence, “Additionally, when allocating
funding for the 2021-2023 biennium, no more than thirty percent of the total grant
program may directly benefit or support one grantee.” (Emphasis added.) The governor
argues that this sentence attempts to direct activity beyond the biennium. Governor’s
Opening Br. at 43. But this condition addresses only actions by WSDOT during the
2019-21 biennium. Further, the governor did not assign error to this particular sentence;
he argued only that the fuel type condition violated article II, section 19. Id. at 3.
33
No. 98835-8
Finally, the governor turns to the third Locke consideration and argues that
the fuel type condition, “if effective, would define rights or eligibility for these
grant programs.” Governor’s Opening Br. at 43. But as the legislature points out,
Locke’s third substantive law factor is whether a provision “‘define[s] rights or
eligibility for services.’” Resp. Br. at 40 (quoting Locke, 139 Wn.2d at 147(emphasis added)). That factor bars the legislature from enacting an appropriations
bill that includes a substantive provision impacting individuals’ rights to or
eligibility for social assistance programs. Locke, 139 Wn.2d at 147 (copayment
provision in appropriations bill “add[ed] restrictions to public assistance
eligibility”); Flanders, 88 Wn.2d at 185 (appropriations provision defined
eligibility for services where it created an age requirement that did not exist in the
codified welfare statute). But the fuel type condition does not impact anyone’s
eligibility for “services”—it impacts an executive agency’s grant allocation
decision. Nor do the fuel type condition and the grant funding program create any
“rights.” See Retired Pub. Emps. Council, 148 Wn.2d at 631 (provision in
appropriations bill changing state retirement system contribution rates was not
substantive law because state employees “do not have specific pension rights in the
physical system and individual statutes in effect when they began work”). And the
fuel type condition does not “define” anything.
34
No. 98835-8
Thus, the fuel type condition does not “conflict with the general law as
codified.” Flanders, 88 Wn.2d at 191. It does not purport to create law that extends
past the 2019-21 biennium. And it does not “define[] rights or eligibility for
services.” Locke, 139 Wn.2d at 147. While Locke’s “list of indicia of
substantiveness is not exhaustive,” the governor offers no other argument that the
fuel type condition constitutes substantive law. Retired Pub. Emps. Council, 148
Wn.2d at 631.
We therefore conclude that the fuel type condition in ESHB 1160, section
220(1)(a), (b), (2), (3)(a), (5)(a), (7), and (9) complies with article II, section 19.
III. THE FUEL TYPE CONDITION DOES NOT VIOLATE ARTICLE II, SECTION 37
Article II, section 37 provides, “No act shall ever be revised or amended by
mere reference to its title, but the act revised or the section amended shall be set
forth at full length.” The governor argues that the fuel type condition violates this
constitutional provision because it amends RCW 47.66.040 without setting forth
that statute in full. Governor’s Opening Br. at 45-46. We disagree.
Under the two-step framework we apply to article II, section 37 challenges,
an enactment does not impermissibly revise or amend existing law if it (1) is a
“complete act” and (2) does not “render[] erroneous” “a straightforward
determination of the scope of rights or duties under the existing statutes.” Wash.
Educ. Ass’n v. State, 93 Wn.2d 37, 40-41, 604 P.2d 950 (1980) (WEA I) (citing
35
No. 98835-8
Naccarato v. Sullivan, 46 Wn.2d 67, 74, 278 P.2d 641 (1955); Weyerhaeuser v.
King County, 91 Wn.2d 721, 731, 592 P.2d 1108 (1979)). The first step of this
analysis “make[s] sure the effect of new legislation is clear.” El Centro de la Raza
v. State, 192 Wn.2d 103, 129, 428 P.3d 1143 (2018) (plurality opinion) (quoting
Amalg. Transit Union Local 587 v. State, 142 Wn.2d 183, 245, 11 P.3d 762(2000)). The second step ensures that readers need not conduct “a thorough search
of existing laws” “in order to understand [the new provision’s] effect on other
provisions.” Id. at 131-32.
Turning to the first inquiry, the fuel type condition is “complete in itself,”
Amalg., 142 Wn.2d at 246, because “the scope of the rights or duties created or
affected by the legislative action can be determined without referring to any other
statute or enactment.” WEA I, 93 Wn.2d at 40. The fuel type condition neither
creates nor affects any rights. It does impose a duty on WSDOT to refrain from
considering fuel type in the grant selection process for the grant programs to which
it applies. But the scope of that duty is contained within the condition and “can be
determined without referring to any other statute or enactment.” Id.; see also El
Centro, 192 Wn.2d at 129; Citizens for Responsible Wildlife Mgmt. v. State, 149
Wn.2d 622, 642, 71 P.3d 644 (2003) (CRWM); State v. Manussier, 129 Wn.2d 652,
663, 921 P.2d 473 (1996); Wash. Educ. Ass’n v. State, 97 Wn.2d 899, 903, 652
P.2d 1347 (1982) (WEA II); Spokane Grain, 59 Wash. at 82. Because the fuel type
36
No. 98835-8
condition is independent from, and not in conflict with, the mandatory
considerations imposed by RCW 47.66.040, it is not necessary to “search out” that
statute in order to understand the scope of the proscription against consideration of
fuel type in the grant selection process for the 2019-21 biennium. El Centro, 192
Wn.2d at 131.
We turn next to the test’s second prong: would “a straightforward
determination of the scope of rights or duties under the existing statutes be
rendered erroneous by the new enactment?” WEA I, 93 Wn.2d at 41 (citing
Weyerhauser, 91 Wn.2d at 731). This second prong is often more difficult to apply,
because while “‘“[n]early every legislative act of a general nature changes or
modifies some existing statute, either directly or by implication,’” that does not
necessarily mean that the legislation is unconstitutional.” El Centro, 192 Wn.2d at
128 (alteration in original) (quoting CRWM, 149 Wn.2d at 640 (quoting Holzman
v. City of Spokane, 91 Wash. 418, 426, 157 P. 1086 (1916))). See also WEA II, 97
Wn.2d at 906 (“Undoubtedly, modification of existing laws by a complete statute
renders the existing law by itself ‘erroneous’ in a certain sense.”). Thus, the
inquiry under this prong is more a matter of degree than an absolute. CRWM, 149
Wn.2d at 643 (explaining that a new enactment did not “alter preexisting rights or
duties to an impermissible degree”); WEA II, 97 Wn.2d at 906 (explaining that the
37
No. 98835-8
degree to which a new enactment may have failed to disclose its effect on existing
statutes was “not of constitutional magnitude”).
We applied these principles in Washington Education Association. In that
case, a “straightforward reading” of the existing substantive statutes indicated that
school districts had “the power to spend funds, from whatever source, as they
choose on teacher salaries.” WEA I, 93 Wn.2d at 41. But a provision in a 1979
appropriations bill purported to bar school districts from increasing teacher salaries
beyond specific limits “‘from any fund source.’” Id. at 38 (quoting LAWS OF 1979,
1st Ex. Sess., ch. 270, § 100(1)). We concluded that the appropriations provisions
rendered erroneous a straightforward understanding of the school districts’ powers
under the preexisting statutes. Id. at 40; see also El Centro, 192 Wn.2d at 130-31
(statute stating collective bargaining rights were granted “to ‘any county or
municipal corporation, or any political subdivision of the state of Washington,’
except those covered by other collective bargaining laws” failed prong two of the
test because it failed to set forth the “other” collective bargaining laws affected,
thereby requiring “a thorough search of existing laws in order to understand the
[Charter School] Act’s effect on other provisions of chapter 41.56 RCW”).
In contrast, the preexisting statute here lists several criteria that “shall be
considered” by WSDOT “in selecting programs and projects” for funding from the
multimodal transportation account. RCW 47.66.040(2). “Fuel type” is not among
38
No. 98835-8
them. A reader’s straightforward understanding of the duties imposed by RCW
47.66.040 is not rendered erroneous by the fuel type condition because the fuel
type condition does not alter the statute’s criteria or conflict with them. To the
extent that the fuel type condition remains silent on “how it relates to the rest of
[RCW 47.66.040], [that silence is] . . . not of constitutional magnitude.” WEA II,
97 Wn.2d at 906; see also CRWM, 149 Wn.2d at 643.
At most, the fuel type condition “supplements” RCW 47.66.040(2). The
state constitution permits this: “[c]omplete acts” that “supplement prior acts or
sections thereof without repealing them . . . are excepted from section 37.” CRWM,
149 Wn.2d at 642 (citing Naccarato, 46 Wn.2d at 75); Manussier, 129 Wn.2d at
664-65. As discussed above, the mere possibility that fuel type might be one of
numerous conceivable aspects of “energy efficiency issues” or “federal and state
air quality requirements” does not transform fuel type into a mandatory criterion
under the statute.
The goal of article II, section 37 is to “‘protect the members of the
legislature and the public against fraud and deception; not to trammel or hamper
the legislature in the enactment of laws.’” CRWM, 149 Wn.2d at 640(quoting Spokane Grain, 59 Wash. at 82). This goal is especially important in the
appropriations bill context, considering the “must-pass” nature of such omnibus
funding bills as well as the connection between appropriations bills and the
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No. 98835-8
statutorily created programs they fund. See Locke, 139 Wn.2d at 147 n.6 (noting
that “[a]n operating budget bill is essentially a compulsory outcome of any
legislative session”); Flanders, 88 Wn.2d at 188. The fuel type condition complies
with these goals. It is “complete in itself” and its only “impact on existing laws” is
indirect: it bars WSDOT from considering a new, extrastatutory factor in making
multimodal grant determinations during the 2019-21 biennium. Amalg., 142 Wn.2d
at 246.
We hold that the fuel type condition complies with article II, section 37.
CONCLUSION
This case requires the court to exercise two of our most fundamental duties:
to “delineate and maintain the proper constitutional balance between the coordinate
branches of our State government with respect to the veto” and, more broadly, to
interpret the constitution faithfully. Lowry, 131 Wn.2d at 313; Juvenile Dir., 87
Wn.2d at 241.
We hold that the Washington Legislature enacted the fuel type condition
pursuant to its constitutional authority to appropriate funds and to control the
expenditure of those funds. Governor Inslee exceeded his article III, section 12
veto power by striking the fuel type condition, which formed only one part of each
appropriation item in which it appeared. Further, the fuel type condition does not
constitute substantive law smuggled into a budget bill in violation of article II,
40
No. 98835-8
section 19; it is a valid legislative limit on an executive agency’s expenditure of
appropriated funds. And the fuel type condition does not amend any existing law
without setting forth that law in full; it therefore complies with article II, section
37.
We affirm the superior court’s orders on summary judgment in favor of the
legislature.
WE CONCUR:
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Washington State Legislature v. Inslee, No. 98835-8
(Yu, J., dissenting)
No. 98835-8
YU, J. (dissenting) — It is our constitutional duty “to uphold both the
power of the Legislature to write legislation as it may choose, and the power of the
Governor to exercise the general and line item veto.” Wash. State Legislature v.
Lowry, 131 Wn.2d 309, 313, 931 P.2d 885 (1997). To fulfill this duty, we must
address the most “difficult and controversial aspect of relations between our
branches of government.” Id. at 312. The holdings of Lowry did so, and did so
correctly. But dicta from a footnote in Lowry made it necessary for the court to
further refine its analysis of the governor’s line item veto power in Locke. Wash.
State Legislature v. State, 139 Wn.2d 129, 142, 985 P.2d 353 (1999) (Locke)
(discussing “Lowry’s footnote 8,” 131 Wn.2d at 323 n.8). Yet Locke preserved the
explicit, constitutional distinction between the general veto power and the line item
veto power, which the court had clearly recognized in Lowry. CONST. art. III, § 12.
We should continue this line of consistent adjudication in order to fulfill our
“constitutional duty to act as an impartial referee of constitutional disputes between
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Washington State Legislature v. Inslee, No. 98835-8
(Yu, J., dissenting)
the legislative and executive branches.” Lowry, 131 Wn.2d at 330-31. Yet today,
the majority erodes the distinction between general and line item vetoes by
elevating dicta from a footnote in Lowry above our own disposition of that case.
See majority at 12 & n.5, 13 & n.6 (quoting Lowry, 131 Wn.2d at 323 n.8). It does
not acknowledge the significant shift in law effected by its analysis today.
I would continue to apply Lowry’s holdings, rather than its dicta. Therefore,
I would uphold the governor’s veto of the “fuel type condition” in section 220 of
the 2019 transportation appropriations bill. See LAWS OF 2019, ch. 416,
§ 220(1)(a), (b), (2), (3)(a), (5)(a), (7), (9) (“Fuel type may not be a factor in the
grant selection process.”), 201-02 (governor’s partial veto message). The fuel
type condition was a whole, “nondollar budget proviso[ ]” and thus an
“appropriation item” subject to the governor’s line item veto. Lowry, 131 Wn.2d
at 325; CONST. art. III, § 12. Moreover, without the governor’s veto, section 220
of the 2019 transportation appropriations bill would be unconstitutional because
the fuel type condition violated article II, sections 19 and 37. I respectfully dissent.
ANALYSIS
A. The governor’s veto of the fuel type condition was within his article III,
section 12 power to veto appropriation items
Before a bill “becomes a law,” it must be “presented to the governor,” who
may either “sign it” or “return it, with [their] objections” to the legislature. CONST.
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Washington State Legislature v. Inslee, No. 98835-8
(Yu, J., dissenting)
art. III, § 12. The authority to return legislation with objections is commonly
known as the governor’s veto power. The veto power has existed, in some form,
“since statehood.” Lowry, 131 Wn.2d at 316.
The governor has both a “general veto power” (which allows the governor to
veto “a whole bill or a section of a bill”) and a “line item veto power,” which
“extends to ‘appropriation items,’” even if they are “less than an entire section.”
Id. at 315-16; CONST. art. III, § 12. Our precedent has clarified that “appropriation
items” include “budget provisos”—both “‘dollar provisos’” (which “‘condition[ ]
the appropriation to an agency on compliance with legislative direction that certain
funds be spent or not be spent’”) and “‘nondollar provisos’” (which “‘make[ ] no
reference to a specific dollar amount’”). Locke, 139 Wn.2d at 138 (quoting Lowry,
131 Wn.2d at 314). The governor’s veto is subject to override by a two-thirds
majority of the legislature, which may convene an “extraordinary session . . . solely
to reconsider any bills vetoed.” CONST. art. III, § 12.
In this case, the governor vetoed a single sentence, which appeared in
multiple subsections of the 2019 transportation appropriations bill: “Fuel type may
not be a factor in the grant selection process.” LAWS OF 2019, ch. 416, § 220(1)(a),
(b), (2), (3)(a), (5)(a), (7), (9) (boldface and italics omitted), 201. The legislature
did not attempt to override the governor’s veto, choosing instead to file this
declaratory judgment action. The question is whether the fuel type condition
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Washington State Legislature v. Inslee, No. 98835-8
(Yu, J., dissenting)
“comprised a whole ‘appropriation item.’” Majority at 5 (quoting CONST. art. III,
§ 12). I would hold that it did, so the fuel type condition was properly subject to
the governor’s line item veto.
The majority reaches the opposite conclusion, asserting “that a veto of
‘anything less than the whole proviso’ is invalid,” and that “we start with the
presumption that a ‘whole proviso’ is equivalent to a ‘full subsection[ ] of the
section of an appropriations bill.’” Id. at 12-13 (alteration in original) (quoting
Lowry, 131 Wn.2d at 323 n.8). These assertions distort Lowry to the point of
implicitly disavowing it. In doing so, the majority shifts the careful balance
between legislative and executive power set forth by our precedent.
1. The majority’s purported clarification of Lowry is irreconcilable with
Lowry itself
The majority’s analysis in this case elevates dicta from a footnote in Lowry
(footnote 8) above contrary holdings in the body of that opinion. The majority
does this in a lengthy footnote of its own, which purports to “clarify” Lowry:
The Lowry court made this statement [(that “we start with the
presumption that a ‘whole proviso’ is equivalent to a ‘full
subsection[ ] of the section of an appropriations bill’”)] in a footnote,
which reads:
The budget provisos to which the Governor’s line
item veto extends include full provisos to an
appropriations bill, that is, full subsections of the section
of an appropriations bill. We do not believe an
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Washington State Legislature v. Inslee, No. 98835-8
(Yu, J., dissenting)
“appropriation[ ] item” may be a sentence, phrase, letter,
digit, or anything less than the whole proviso.
131 Wn.2d at 323 n.8. We agree in full with the first sentence of the
footnote. It must be noted, however, that there is some tension
between the second sentence of the footnote and Lowry’s outcome.
Specifically, the Lowry court upheld the veto of several single
sentences. Id. at 314 & n.2. Most of those sentences were also “full
subsections”—but one was not. Id. at 324 (upholding veto of single
sentence contained within larger subsection). And the Lowry court
referred to the single vetoed sentence that appeared within a larger
paragraph of text as, itself, a “subsection.” Id. We take this
opportunity to clarify Lowry and emphasize that a sentence that is
“less than [a] whole proviso” may not be vetoed as an appropriation
item. Id. at 323 n.8.
Id. at 13 n.6 (some alterations in original). I cannot agree. Lowry’s footnote 8 is
not merely in “tension” with Lowry’s “outcome”—it is flatly contradicted by the
analysis in the body of the Lowry majority opinion. Id. Thus, by following
footnote 8’s dicta, the majority implicitly disavows Lowry’s holdings.
As the majority acknowledges, Lowry upheld the governor’s “veto of [a]
single sentence contained within [a] larger subsection.” Id.; Lowry, 131 Wn.2d at
324-25 (considering LAWS OF 1994, 1st Spec. Sess., ch. 6, § 610(5)(a)). Yet
footnote 8, as applied by today’s majority, would hold that such a veto was subject
to a “presumption” of invalidity, because a “sentence” that is not designated as a
“full subsection[ ]” is presumptively not a “whole proviso.” Majority at 13; Lowry,
131 Wn.2d at 323 n.8. To overcome this presumption, the governor in Lowry
should have been required to show that “‘[t]he Legislature’s designation of a
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Washington State Legislature v. Inslee, No. 98835-8
(Yu, J., dissenting)
section’” was “‘obviously designed to circumvent the Governor’s veto power.’”
Majority at 12 (alteration in original) (internal quotation marks omitted) (quoting
Lowry, 131 Wn.2d at 320).
But that is not what happened in Lowry. Instead, the court upheld the
governor’s veto of a “single sentence contained within a larger subsection” without
even considering whether there was legislative circumvention, much less
determining that the governor had made such a showing. Id. at 13 n.5; see Lowry,
131 Wn.2d at 324-25. The reason for this apparent inconsistency is that in the
process of elevating Lowry’s footnote 8, the majority takes Lowry’s discussion of
legislative circumvention out of context.
As explained by Lowry, the governor’s constitutional veto power has two
components: a “general veto authority over legislation and a distinct veto power
over ‘appropriation items.’” 131 Wn.2d at 315 (emphasis added) (quoting CONST.
art. III, § 12). The general veto power applies only to “a whole bill or a section of
a bill.” Id. at 315-16. By contrast, the “line item” veto power “also extends to
‘appropriation items.’” Id. at 316 (emphasis added). “By its very specific
language, article III, section 12 envisions appropriation items as something less
than an entire section of an appropriations bill.” Id. at 322 (emphasis added);
CONST. art. III, § 12 (governor “may not object to less than an entire section,
6
Washington State Legislature v. Inslee, No. 98835-8
(Yu, J., dissenting)
except that if the section contain one or more appropriation items [they] may object
to any such appropriation item or items”).
Thus, when Lowry stated that “[t]he Legislature’s designation of a section is
conclusive unless it is obviously designed to circumvent the Governor’s veto
power,” it did so only in the context of the governor’s general veto power, which
allows the governor to veto whole sections. 131 Wn.2d at 320, 317-21.
Legislative circumvention was simply not part of Lowry’s separate discussion of
the line item veto power. Id. at 321-23. Contra majority at 11-14.
Maintaining the distinction between general and line item vetoes is an
important feature of Washington law because a distinctive feature of our state’s
budget legislation is that “[t]he Legislature has not employed a true programmatic
or line item budget.” Lowry, 131 Wn.2d at 321. Instead, “[t]he Legislature has
chosen to make general agency appropriations with provisos for policy or specific
agency programs in budget bills, rather than setting out more specific
programmatic appropriations where each program in the budget is found in a
separate section of a budget bill.” Id. at 321-22. Thus, Lowry did not simply
commit an oversight when it confined its discussion of legislative circumvention to
the general veto power. To the contrary, Lowry took a reasoned approach that
recognized the distinct constitutional role of the governor’s line item veto power:
7
Washington State Legislature v. Inslee, No. 98835-8
(Yu, J., dissenting)
Because the purpose of the Governor’s “line item” veto is to
excise line items in appropriations bills, we should give effect to such
a purpose. The Legislature frustrates such a purpose, however, if it
drafts budget bills as lump sum appropriations to agencies. The only
feature of modern legislative bill drafting in Washington that
resembles the traditional budget line item is the budget proviso.
Consequently, we hold that any budget proviso with a fiscal
purpose contained in an omnibus appropriations bill is an
“appropriations item” under article III, section 12.
Id. at 323.
This analysis was “our own disposition of the case” in Lowry, which should
control over contrary dicta in a footnote that was “‘unnecessary to decide the
case.’” Johnson v. Wash. State Liquor & Cannabis Bd., 197 Wn.2d 605, 618, 486
P.3d 125 (2021) (internal quotation marks omitted) (quoting In re Pers. Restraint
of Domingo, 155 Wn.2d 356, 366, 119 P.3d 816 (2005)). Yet, without explanation,
the majority chooses to follow the footnote. This does not “clarify Lowry.”
Majority at 13 n.6. It defies Lowry, eroding the constitutional distinction between
general vetoes and line item vetoes.
2. The majority’s reliance on the 62d Amendment and Locke is
misplaced
In addition to Lowry’s footnote 8, the majority relies on the 62d Amendment
and Locke to bolster its “deference to the legislature’s formatting decisions” in the
context of line item vetoes. Id. at 11. However, as Lowry explained,
8
Washington State Legislature v. Inslee, No. 98835-8
(Yu, J., dissenting)
The intent of S.J.R. [(Senate Joint Resolution)] 140, enacted in
1974 as the 62nd Amendment to the Washington Constitution, was to
restore the veto power of the Governor to what it was understood to
be prior to [State ex rel.] Ruoff [v. Rosellini, 55 Wn.2d 554, 348 P.2d
971 (1960)]. Plainly, at that time, the Governor had a line item veto
and an “item” was something less than a full section of a bill.
Lowry, 131 Wn.2d at 322 (emphasis added) (citation omitted) (citing SENATE
JOURNAL, 43d Leg., 3d Ex. Sess., at 89 (Wash. 1974)).
Thus, the 62d Amendment required greater deference to the legislature’s
formatting choices in the context of the general veto power. However, Lowry
explicitly “reject[ed] the dissent’s unconventional notion that the 62nd Amendment
repealed the Governor’s line item veto.” Id. (emphasis added). Instead, “[t]he
‘check’, as it has always been, will be the Legislature’s two-thirds override.”
Wash. Fed’n of State Emps., AFL-CIO, Council 28 v. State, 101 Wn.2d 536, 547,
682 P.2d 869 (1984). The legislature did not attempt an override here, but “these
constitutional arrangements are for the people to determine, not this court. If these
arrangements become unsatisfactory or subjected to abuse, the people are capable
of making desired changes.” Id.The majority’s reliance on Locke is also misplaced because its
characterization of that case, like its characterization of Lowry, is inaccurate.
Locke did not eliminate Lowry’s distinction between general and line item vetoes,
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Washington State Legislature v. Inslee, No. 98835-8
(Yu, J., dissenting)
as the majority suggests. See majority at 14 (citing Locke, 139 Wn.2d at 141).
In fact, Locke explained that
Lowry directs that the Governor’s line item veto power is limited to
“whole provisos.” The issue then becomes what is a whole proviso?
Lowry’s footnote 8, although commenting on the issue, does not
adequately answer the question as designating a “full subsection”
can be too easily manipulated by the mere placement of a number or
letter, or artificial division into paragraphs.
139 Wn.2d at 142 (emphasis added) (citation omitted). Thus, Locke reaffirmed
Lowry’s holdings (rather than its footnote 8 dicta) by recognizing that “the
Governor’s line item veto power extends to whole provisos, but the parameters of
such provisos are not necessarily determined by artificial divisions by number or
letter; rather, an examination of the language in question and the operative effect of
such language indicates the nature of the proviso.” Id. at 143 (emphasis added).
Given this context, the majority is simply wrong in its claim that Locke held
“only an obvious attempt to circumvent the veto power will overcome deference to
the legislature’s designation of the scope of a whole appropriation item.” Majority
at 14 (emphasis added). To the contrary, Locke itself “disregard[ed] deferring to
the Legislature’s designation of [the relevant language] as a single and complete
‘subsection,’” noting a “specter of circumvention” but relying on “the practical
impact” of the language. 139 Wn.2d at 141 (emphasis added). To do otherwise
“would encourage legislators to weave substantive policy provisions and fiscal
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Washington State Legislature v. Inslee, No. 98835-8
(Yu, J., dissenting)
measures into appropriations bills, thereby legitimizing Byzantine bill drafting in
appropriations measures.” Lowry, 131 Wn.2d at 329.
If the majority believes that Lowry, as refined by Locke, is so incorrect and
harmful “that it must be rejected, despite the many benefits of adhering to
precedent,” then it should do so explicitly, consistent with principles of stare
decisis. State v. Otton, 185 Wn.2d 673, 678, 374 P.3d 1108 (2016). However, I do
not believe that Lowry and Locke are incorrect or harmful. Instead, I believe that
they are well-reasoned decisions whose proper application has been hindered by
one confusing, contradictory statement of dicta confined to a single footnote.
Therefore, I would continue to apply Lowry’s and Locke’s holdings. I would also
take this opportunity to make it clear that footnote 8 to the Lowry majority opinion
contains misleading dicta, not controlling precedent.
2. The governor acted within his line item veto power to veto the fuel
type condition because it was a whole, nondollar budget proviso
Based on the foregoing, I would hold that the governor did not exceed the
scope of his line item veto power when he vetoed the fuel type condition.
The line item veto extends to any “appropriation item.” CONST. art. III,
§ 12. We do not presume that an appropriation item is the same as a legislatively
designated subsection if the “practical impact” of the language in question is that
of a budget proviso. Locke, 139 Wn.2d at 141. A budget proviso, in turn, is
11
Washington State Legislature v. Inslee, No. 98835-8
(Yu, J., dissenting)
“‘language conditioning how an agency may spend an appropriation.’” Id. at 138
(quoting Lowry, 131 Wn.2d at 314). If the proviso “‘makes no reference to a
specific dollar amount,’” then it is a “‘nondollar’” proviso, but it is still an
appropriation item. Id. (quoting Lowry, 131 Wn.2d at 314).
In my view, the fuel type condition is not merely part of a larger proviso that
“relates directly to the appropriation amount that begins each subsection of section
220 in which the condition appears.” Contra majority at 23. Instead, its restriction
on the grant selection criteria operates as “a discrete condition from the restriction
that funds be used solely for certain grant programs and projects, even though they
appear in the same subsection and may be tangentially related.” Governor’s Reply
Br. at 12.
Therefore, I would hold that in language and operative effect, the fuel type
condition stands alone as a whole, nondollar budget proviso. Thus, it was within
the governor’s constitutional power to veto it.
B. The fuel type condition violated article II, sections 19 and 37
Because I would resolve this case on the basis of the veto power, as
discussed above, I would not reach the question of whether the fuel type condition,
if not vetoed, would be constitutional. However, I must briefly express my
disagreement with the majority’s analysis of the governor’s article II challenges to
the fuel type condition.
12
Washington State Legislature v. Inslee, No. 98835-8
(Yu, J., dissenting)
1. The fuel type condition violated article II, section 19 because it
purported to amend substantive law in an appropriations bill
As the majority correctly recognizes, in accordance with article II, section 19
of the state constitution, “[a]n appropriations bill which ‘defines no rights’
certainly cannot abolish or amend existing law.” Flanders v. Morris, 88 Wn.2d
183, 188, 558 P.2d 769 (1977); see majority at 26-27. It is apparent to me that the
fuel type condition at issue here was an improper attempt to do just that with
respect to RCW 47.66.040(2).
RCW 47.66.040(2) sets forth baseline criteria that the Department of
Transportation “shall” consider “in selecting programs and projects,” including
“federal and state air quality requirements” and “energy efficiency issues.” In
modern transportation, fuel type is so intertwined with both of those considerations
that the fuel type condition would have “precluded consideration of an important
component of air quality and energy efficiency that the [Public Transportation]
Division is otherwise required to consider.” Governor’s Opening Br. at 41.
Yet the majority interprets RCW 47.66.040(2) not in accordance with the
legislature’s intent as expressed by the statute’s plain language but, instead, in
accordance with the state of hybrid car technology from almost 30 years ago. See
majority at 30 & n.13. I cannot join in this analysis. If it were necessary to do so,
I would hold that the fuel type condition violated article II, section 19.
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Washington State Legislature v. Inslee, No. 98835-8
(Yu, J., dissenting)
2. The fuel type condition violated article II, section 37 by amending
RCW 47.66.040 without so much as referencing it
Finally, article II, section 37 provides, “No act shall ever be revised or
amended by mere reference to its title, but the act revised or the section amended
shall be set forth at full length.” The fuel type condition clearly violated this
provision with respect to RCW 47.66.040.
First, it is not possible to determine “the rights or duties under the statute . . .
without referring to another statute.” Black v. Cent. Puget Sound Reg’l Transit
Auth., 195 Wn.2d 198, 205, 457 P.3d 453 (2020). Instead, a person reading the
fuel type condition would also need to independently know about, locate, and read
through RCW 47.66.040 to discover which criteria are permitted or required in the
grant selection process.
Moreover, “‘a straightforward determination of the scope of rights or duties
under the existing statutes [would] be rendered erroneous by’” the fuel type
condition. Id. (alteration in original) (internal quotation marks omitted) (quoting
El Centro de la Raza v. State, 192 Wn.2d 103, 129, 428 P.3d 1143 (2018)
(plurality opinion)). Any person who is aware of modern transportation
technology would certainly conclude that RCW 47.66.040(2) permits (perhaps
even requires) the Department of Transportation to consider fuel type in order to
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Washington State Legislature v. Inslee, No. 98835-8
(Yu, J., dissenting)
fulfill its duty to consider energy efficiency and air quality issues. The fuel type
condition would render this plain reading of RCW 47.66.040 erroneous.
Thus, if it were necessary to reach the governor’s article II challenges to the
fuel type conditions, I would hold that the fuel type condition violated both section
19 and section 37.
CONCLUSION
“We should be steadfast in exerting a limited, and cautiously exercised,
judicial responsibility with respect to the veto power to make sure neither the
Legislature nor the Governor takes unfair advantage, and the balance our
constitution envisions endures.” Lowry, 131 Wn.2d at 331. Therefore, we should
be consistent in our adjudication, and when we must reject our precedent, we
should do so openly and explain why we are doing it. Today, I believe the
majority shifts the balance of power too far in favor of the legislature, and it does
so in a footnote based on dicta from another footnote.
In accordance with the holdings of Lowry and Locke, as well as the plain
language of article III, section 12, I would reverse the trial court and hold that the
governor’s veto of the fuel type condition here was a valid exercise of the
constitutional line item veto power. Thus, I respectfully dissent.
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(Yu, J., dissenting)
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