March 17, 2005

The Honorable Matthew J. W. Michels
Speaker of the House
State Capitol Pierre, SD 57501-5070

Dear Speaker Michels and Members of the House:

I herewith return House Bill 1088 and pursuant to Article IV, Section 4 of the South Dakota Constitution, I exercise the LINE ITEM VETO on the same.
House Bill 1088 is, "An Act to appropriate money for the ordinary expenses of the legislative, judicial, and executive departments of the state, the expenses of state institutions, interest on the public debt, and for common schools."

Department of Corrections (DOC), Section 15, I hereby exercise the line item veto and delete lines 30-32 on page 22 of the of the House Appropriations Committee Engrossed version of House Bill 1088.

Section 15, lines 30-32 of House Bill 1088 read as follows:
"The special committee created by chapter 4-8A may release the money appropriated in the above contingency fund when the secretary of the Department of Corrections has received payment for the sale of land purchased pursuant to chapter 59 of the 2004 Session Laws."

The Appropriations Committee added amendment 1088hr to House Bill 1088. The amendment was brought to provide for a contingency fund within the DOC budget that would restore funding to the department once they sold the land that originally would be the site of the construction of the Rapid City Trusty Unit. This was supposed to be the mechanism by which the legislature could mandate that the department sell the land in order to restore the rest of the department's budget to them. The amendment is not an appropriation. It is placing a restriction on funds that are appropriated within the general bill. This change is outside the scope of the general appropriations bill.

The South Dakota Constitution, Article XII, § 2 only allows the General Appropriations Bill to "embrace nothing but appropriations."


Article 12, § 2. Contents of general appropriation bill - Separate appropriation bills.

"The general appropriation bill shall embrace nothing but appropriations for ordinary expenses of the executive, legislative and judicial departments of the state, the current expenses of state institutions, interest on the public debt, and for common schools. All other appropriations shall be made by separate bills, each embracing but one object, and shall require a two-thirds vote of all the members of each branch of the Legislature."

Recent Supreme Court cases have interpreted this section of our Constitution to prohibit amending the appropriations bill in this manner. The decision of South Dakota Ed. Ass'n v. Barnett held:
"[w]hile the Legislature is free to impose conditions and restrictions on appropriated funds within the body of a general appropriations bill, it may not substantively legislate in that bill in a manner that changes, amends or repeals existing law." South Dakota Ed. Ass'n v. Barnett, 1998 SD 84, paragraph 19, 582 N.W.2d 386, 392 (1998); See, also, Duxbury, McKellips and Symens v. Harding, 490 N. W. 2d 740, 1992 SD Lexis 132 (1992); and SEE, generally, for a discussion of valid and invalid appropriation actions, Apa v. Butler, 2001 SD 147, 638 N.W.2d 57(2001).

Section 15 goes beyond allocating funds and clearly puts mandates and restrictions upon them. The decision to change existing law regarding the purchase of this land and ultimately sell it must be subjected to the scrutiny of the regular legislative process. For example, the change proposed by this language in section 15 has the potential for conflicting of existing statutes. HB1280, which passed during the 2003 session allowed for the construction of the Rapid City Trusty Unit. HB1077, which passed during the 2004 session, included the general funds to purchase the land that the trusty unit would be built upon. Finally, HB1052, passed by this legislature this year, rescinded the appropriation of funding for the trusty unit, but not the appropriation for the land. Therefore, how can the legislature mandate through a contingency fund the reversal and requirement to sell this land absent a new law?

CONTINGENCY FUNDS RESTRICTIONS

I hereby exercise the line item veto at page 30, by deleting section 32 of the House Appropriations Committee Engrossed version of House Bill 1088. Section 32 reads as follows:

"All moneys appropriated to contingency funds created by this Act shall be released for expenditure in accordance with chapter 4-8A."

In the same manner that the DOC amendment attempts to put mandates and restrictions upon the sale of a piece of land, amendment 1088ha attempts to link contingency fund expenditures to a process already in place regarding contingency funds in SDCL 4-8A. This amendment also goes beyond the scope of what an appropriation bill should contain in linking existing law to contingency funds appropriated in the general appropriations act. There is absolutely no need for this amendment in this general bill, unless we are assuming that SDCL 4-8A is flawed in some fashion and must be rectified. In any case, the general appropriations act is not the place to be enacting those types of changes.

The decision of South Dakota Ed. Ass'n v. Barnett held:
[w]hile the Legislature is free to impose conditions and restrictions on appropriated funds within the body of a general appropriations bill, it may not substantively legislate in that bill in a manner that changes, amends or repeals existing law. South Dakota Ed. Ass'n v. Barnett, 1998 SD 84, paragraph 19, 582 N.W.2d 386, 392 (1998); Duxbury, McKellips and Symens v. Harding, 490 N. W. 2d 740, 1992 SD Lexis 132 (1992); and SEE, generally for a discussion of valid and invalid appropriation actions, Apa v. Butler, 2001 SD 147, 638 N.W.2d 57(2001).


Based on the foregoing grounds, I respectfully LINE ITEM VETO House Bill 1088.

I respectfully request your concurrence with my action.

Respectfully submitted,
M. Michael Rounds

Cc:    The Honorable Dennis Daugaard
The Honorable Chris Nelson