October 4, 2010
ST. JOHN'S WELL CHILD AND FAMILY CENTER ET AL., PETITIONERS,
ARNOLD SCHWARZENEGGER AS GOVERNOR, ETC., ET AL., RESPONDENTS;
DARRELL STEINBERG, INDIVIDUALLY AND AS PRESIDENT PRO TEMPORE, ETC., ET AL., INTERVENERS.
Ct. App. 1/2 No. A125750.
The opinion of the court was delivered by: George, C. J.
Filed 10/04/2010 (this opn. follows companion case, S183411, also filed 10/4/10)
We granted review in this original writ proceeding to address the propriety of the Governor's use of the so-called "line-item veto" under the asserted authority of article IV, section 10, subdivision (e) of the California Constitution, to further reduce funding that already had been reduced by the Legislature in its midyear adjustments to the Budget Act of 2009. The Court of Appeal, First Appellate District, Division Two, denied the requested writ of mandate and upheld the Governor's action. Upon review, we agree with that court's disposition of the matter. Because the Court of Appeal's decision (by Kline, P.J., with Lambden & Richman, JJ., concurring) persuasively sets forth and analyzes the issues presented by this case, we adopt substantial parts of it as our own, as modified below to fully reflect our views and to address the arguments that differ from those advanced in the appellate court.*fn1
Although the current economic downturn affects all Californians, many persons are particularly vulnerable because they receive essential health and welfare assistance from agencies dependent upon state tax revenues. In this setting, government must choose between and among equally needy groups, knowing that many of those groups not fully funded may be devastated.
In the context of the constitutionally prescribed budget process, the power to appropriate public funds belongs exclusively to the Legislature. With respect to a bill containing appropriations, the Governor has three options: (1) to sign the bill, (2) to veto the measure in its entirety (Cal. Const., art. IV, § 10, subd. (a)), or (3) to "reduce or eliminate one or more items of appropriation" (id., subd. (e) (hereafter article IV, section 10(e)), italics added). The question posed by this case is whether the Governor exceeded his limited powers under article IV, section 10(e), by using his line-item authority to further reduce funding levels set forth in midyear reductions that the Legislature had made to the Budget Act of 2009 (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 1, approved by Governor, Feb. 20, 2009) (hereafter 2009 Budget Act), thereby imposing a reduction of appropriated sums greater than the reduction made by the Legislature.
Petitioners include St. John's Well Child and Family Center, a nonprofit network of five community health centers and six school-based clinics in medically underserved areas of Los Angeles County, and other entities and individuals located throughout the state whose programs and lives will be drastically affected by the further reductions here at issue.*fn2
Respondents are Arnold Schwarzenegger, the Governor of the State of California, and John Chiang, who, as the Controller of the State of California, is responsible for the administration of the state's finances, including disbursement of funds appropriated by law.*fn3 The Controller does not take a position on the merits of this litigation.
Interveners are Darrell Steinberg, in his official capacity as President pro Tempore of the California State Senate, and in his personal capacity as a resident and taxpayer of Sacramento County, and John Pérez, in his official capacity as Speaker of the California Assembly. Several amici curiae have filed briefs supporting the various parties.*fn4
Petitioners and interveners contend that the action taken by the Governor exceeded constitutional limits, because the individual budget cuts he made were not imposed on "items of appropriation" (art. IV, § 10(e)) that could be individually vetoed or reduced. They further contend that, in taking this action, the Governor purported to exercise authority belonging solely to the Legislature, in violation of article III, section 3 of the California Constitution.
Petitioners and interveners sought original relief in the Court of Appeal (pursuant to Cal. Const., art. VI, § 10; Code Civ. Proc., §§ 387, 1085; & Cal. Rules of Court, rule 8.485 et seq.) to enjoin the Controller from enforcing or taking any steps to enforce the Governor's actions concerning certain provisions of Assembly Bill No. 1 (2009-2010 4th Ex. Sess.) (hereafter Assembly Bill 4X 1), as revised by the Governor's line-item reduction of funding with regard to those provisions. (See Assem. Bill 4X 1, as amended by Sen., July 23, 2009, and approved by Governor, July 28, 2009 [with certain deletions, revisions, and reductions (hereafter Governor's July 28 Message)], enacted as Stats. 2009, 4th Ex. Sess. 2009-2010, ch. 1 (hereafter revised 2009 Budget Act).) Because of the importance and urgency of the issues presented, the Court of Appeal exercised its original jurisdiction (Legislature v. Eu (1991) 54 Cal.3d 492, 500; Raven v. Deukmejian (1990) 52 Cal.3d 336, 340; see also Planned Parenthood Affiliates v. Van de Kamp (1986) 181 Cal.App.3d 245, 262-265), issued an order to show cause, and held argument. That court thereafter issued a decision denying the petition for a writ of mandate.*fn5 As noted above, we agree with most of the analysis of the Court of Appeal and with the conclusion it reached, and thus we shall deny the petition for a writ of mandate.
On February 20, 2009, the Governor signed into law the 2009 Budget Act, which set forth various appropriations of state funds for the 2009-2010 fiscal year. Thereafter, California's economy worsened; the revenue assumptions upon which the 2009 Budget Act was based proved to be far too optimistic, and the state's overall cash-flow positions continued to deteriorate. The Governor, pursuant to California Constitution, article IV, section 10, subdivision (f) proclaimed a fiscal crisis,*fn6 and the Legislature assembled in special session to address the fiscal emergency. Following months of negotiations, the Legislature passed Assembly Bill 4X 1 on July 23, 2009. The final revised budget package enacted as Assembly Bill 4X 1 consisted of 547 pages, set forth in 583 sections, and represented an effort to address more than $24 billion in budget shortfalls, including $15.6 billion in cuts, nearly $4 billion in additional revenues, more than $2 billion in borrowing, approximately $1.5 billion in fund shifts, and more than $1 billion in deferrals and other adjustments.
On July 28, 2009, the Governor exercised his line-item authority to reduce or eliminate several items contained in Assembly Bill 4X 1, and then signed the measure into law. (Rev. 2009 Budget Act.) The Governor eliminated numerous separate line items contained in various sections of Assembly Bill 4X 1. The effect of these reductions was to further decrease the total amount appropriated in the 2009 Budget Act by more than $488 million. Many of the items reduced by the Governor already had been reduced by the Legislature in Assembly Bill 4X 1 from the amounts appropriated in the 2009 Budget Act. The Governor's signing message explained that his cuts to the spending bill were for the most part designed "to increase the reserve and to reduce the state's structural deficit." (Governor's July 28 Message [concerning Assem. Bill 4X 1, §§ 18.00, 18.10, 18.20, 18.40]; see also id. [same, concerning §§ 17.50, 18.50].)
This original mandamus proceeding by petitioners and interveners followed,*fn7 challenging the Governor's use of line-item reductions with respect to seven sections of Assembly Bill 4X 1 -- specifically, section 568 and sections 570 through 575.*fn8 The Governor's actions affected those seven sections of Assembly Bill 4X 1 in the following manner:
Section 17.50 further reduced the general fund appropriation for the State Department of Aging by $6,160,000;
Section 18.00, subdivision (a) further reduced the general fund appropriation for local assistance of the Medi-Cal program by $60,569,000, and section 18.00, subdivision (e) eliminated funding for community clinic programs;
Section 18.10 further reduced funding for various programs administered by the Office of AIDS by $52,133,000, further reduced funding for the Domestic Violence Program by $16,337,000,*fn9 further reduced funding for the Adolescent Family Life Program by $9,000,000, and further reduced funding for the Black Infant Health Program by $3,003,000;
Section 18.20 further reduced funding for the Healthy Families Program by $50,000,000;
Section 18.30 further reduced funding for the Regional Center Purchase of Services for children up to the age of five years by $50,000,000;
Section 18.40 further reduced funding for the Caregiver Resource Centers by $4,082,000; and
Section 18.50 further reduced funding for the In-Home Supportive Services program by $37,555,000.
The question presented by this case as a matter of first impression is whether, after the Legislature has made midyear reductions to appropriations that originally appeared in the 2009 Budget Act, the Governor's line-item power encompasses the authority to make further reductions. Although this particular issue is novel, we find guidance in our decision in Harbor v. Deukmejian (1987) 43 Cal.3d 1078 (Harbor), in which we extensively described the constitutional framework within which a Governor exercises his or her line-item authority.
"The California Constitution declares that the legislative power of the state is vested in the Legislature (art. IV, § 1) and the executive power [is vested] in the Governor (art. [V], § 1). Unless permitted by the Constitution, the Governor may not exercise legislative powers. (Art. III, § 3.) He may veto a bill 'by returning it with any objections to the house of origin,' and it will become law only if 'each house then passes the bill by rollcall vote . . . two thirds of the membership concurring. . . .' [Art. IV, § 10, subd. (a).] If the Governor fails to act within a certain period of time, the measure becomes law without his signature. (Art. IV, § 10, subd. [(b)].) The Governor's veto power is more extensive with regard to appropriations. He may 'reduce or eliminate one or more items of appropriation while approving other portions of a bill.' Such items may be passed over his veto in the same manner as vetoed bills. (Art. IV, § 10, subd. [(e)].)" (Harbor, supra, 43 Cal.3d at p. 1084, italics added.)*fn10
Our decision in Harbor, agreeing with the petitioners in that case, observed: "[I]n vetoing legislation, the Governor acts in a legislative capacity, and . . . in order to preserve the system of checks and balances upon which our government is founded, he may exercise legislative power only in the manner expressly authorized by the Constitution." (Harbor, supra, 43 Cal.3d at p. 1084.) Because the Constitution authorizes the Governor only "to veto a 'bill' or to reduce or eliminate 'items of appropriation[,]' the Governor may not veto part of a bill which is not an 'item of appropriation.' " (Ibid.)
After tracking the historical development of the veto power from its origins in Rome, where the tribune of plebeians had the power to disapprove measures recommended by the senate, we explained in Harbor that "[t]he word, 'veto' means 'I forbid' in Latin. Then, as now, the effect of the veto was negative, frustrating an act without substituting anything in its place." (Harbor, supra, 43 Cal.3d at p. 1085, citing Zinn, The Veto Power of the President (1951) 12 F.R.D. 209.) After evolving in the United States as "an integral part of the system of checks and balances" (Harbor, at p. 1085), the veto power at the federal level has been circumscribed by the limitation that the President may approve or reject a bill in its entirety, but may not select portions of a bill for disapproval. "As a much-quoted early case commented, 'the executive, in every republican form of government, has only a qualified and destructive legislative function, and never creative legislative power.' (State v. Holder (1898) 23 So. 643, 645.)" (Harbor, at p. 1086.) Significantly, although "the rule prohibiting selective exercise of the veto is unyielding in the federal system, most states have provided an exception for items of appropriation." (Ibid.; see Thirteenth Guam Legislature v. Bordallo (D. Guam 1977) 430 F.Supp. 405, 410.)
"In California, the Constitution of 1849 included a gubernatorial veto provision similar to that contained in the United States Constitution. (Cal. Const. of 1849, art. IV, § 17 . . . .) The Constitution of 1879 added the item veto power, allowing the Governor to 'object to one or more items' of appropriation in a bill which contained several 'items of appropriation.' (Cal. Const. of 1879, art. IV, § 16.) By constitutional initiative in 1922, the Governor was empowered not only to eliminate 'items of appropriation' but to reduce them, while approving other portions of a bill. (Art. IV, § 10, subd. ([e]).) The 1922 amendment also directed the Governor to submit a budget to the Legislature containing his recommendation for state expenditures. (Art. IV, § 12, subd. (a).)" (Harbor, supra, 43 Cal.3d at p. 1086, italics added.)
The ballot argument in favor of the 1922 constitutional initiative that empowered the Governor to exercise line-item authority to reduce an item of appropriation stated in relevant part: "The budget system will save the taxpayer money, because all state appropriations will be handled in a business way, duplications prevented and extravagance avoided. The proposed measure will also enable the Governor to reduce an appropriation to meet the financial condition of the treasury, which under our present system he cannot do. Frequently a worthy measure is vetoed because the legislature passes a bill carrying an appropriation for which sufficient funds are not available. Under present conditions the Governor is compelled to veto the act, no matter how meritorious, because of the excessive appropriation, whereas, if he had the power given by the proposed constitutional amendment, he could approve the bill with a modified appropriation to meet the condition of the treasury." (Ballot Pamp., Gen. Elec. (Nov. 7, 1922) argument in favor of Prop. 12, pp. 78-79, italics added.)
Neither the so-called "item veto," nor the "line-item veto" allowing the Governor to eliminate or reduce items of appropriation, confers the power to selectively veto general legislation. (Harbor, supra, 43 Cal.3d at p. 1087; Lukens v. Nye (1909) 156 Cal. 498, 501-503.) The Governor has no authority to veto part of a bill that is not an "item of appropriation." (Harbor, at pp. 1084-1085, 1088-1089.) "[A]rticle III, section 3 provides that one branch of government may not exercise the powers granted to another 'except as permitted by this Constitution.' Case law, commentators, and historians have long recognized that in exercising the veto the Governor acts in a legislative capacity. [Citations.] . . . [¶] It follows that in exercising the power of the veto the Governor may act only as permitted by the Constitution. That authority is to veto a 'bill' (art. IV, § 10, subd. (a)) or to 'reduce or eliminate one or more items of appropriation' (id., subd. ([e]).)" (Harbor, supra, 43 Cal.3d at pp. 1088-1089.)
The dispositive issue, then, is whether the funding in question -- specified in the seven sections of Assembly Bill 4X 1 that the Governor further reduced -- encompassed "items of appropriation" (Cal. Const., art. IV, § 10(e)) as to which the Governor could exercise his line-item authority.
Petitioners and interveners contend that, because the items at issue in Assembly Bill 4X 1 reduced the amounts previously appropriated in the 2009 Budget Act, these items were not "appropriations." They maintain that a "reduction" cannot be an "appropriation," and observe that there are no instances in which a California governor previously has exercised line-item authority in this manner.
Subsequent to the passage of the 1922 constitutional amendment empowering the Governor to exercise line-item authority, we addressed in two significant decisions the question of what constitutes an "item of appropriation" subject to the Governor's line-item power. (Harbor, supra, 43 Cal.3d 1078; Wood v. Riley (1923) 192 Cal. 293.) We review these cases for guidance.
Wood v. Riley, supra, 192 Cal. 293, was decided in 1923, shortly after the Constitution was amended to allow the Governor to use line-item authority to reduce as well as to eliminate "items of appropriation." That case involved the Legislature's action of adding to a budget bill a proviso requiring the Controller to transfer to the state Department of Education, as an additional administrative allotment for the department, 1 percent of the appropriations that had been set aside for salaries and support of several teachers' colleges and special schools. (Wood v. Riley, at pp. 294-296.) The Governor vetoed this set-aside proviso. (Id., at p. 296.) The Director of Education sought to enforce the proviso, notwithstanding the Governor's disapproval, arguing that the Governor had attempted to veto part of a sentence in an appropriation bill that did not appropriate money, but that simply provided for a transfer, as a matter of bookkeeping, of a percentage of funds already appropriated. (Id., at p. 297; see Harbor, supra, 43 Cal.3d at p. 1091, fn. 13.) We upheld the exercise of the veto, finding that although the set-aside proviso took no new money from the state treasury, the proviso nevertheless constituted "a specific setting aside of an amount, not exceeding a definite fixed sum, for the payment of certain particular claims or demands. . . . It appears in no other light than as amounting to an item of appropriation in that it adds an additional amount to the funds already provided for the administration of the office of the director of education through the sums appropriated for the use of the state board of education and the superintendent of public instruction. This court has held that 'by a specific appropriation' was understood 'an Act by which a named sum of money has been set apart in the treasury and devoted to the payment of a particular claim or demand[.] . . . The proviso, therefore, appears to fill all the requirements of a distinct item of appropriation of so much of a definite sum of money as may be required for a designated purpose connected with the state government." (Wood v. Riley, supra, 192 Cal. at pp. 303-304, italics added.)
This court also was persuaded that the Legislature had sought to insulate from the veto an additional appropriation for the "general administrative office" within the department -- something the Legislature would have had no authority to do had it directly appropriated funds for that office. (Wood v. Riley, supra, 192 Cal. at pp. 304-305.) We explained: "It is very clear that the situation presented is that no appropriation having been recommended by the Governor, or included in the proposed budget bill, for the payment of the 'salaries and support of the general administrative office of the division of normal and special schools,' other than the general provisions for the support of the state board of education and the state superintendent of schools, the legislature attempted, by the inclusion of the proviso in the bill, to make such additional appropriation for such purpose under the guise of an administrative allotment. Therefore, looked at in the light of what it was intended to accomplish, and what it would have accomplished if allowed to stand, one cannot escape the conviction that it worked an appropriation. It added a specific amount to the allowance already made for the use of the state board of education and the state superintendent of schools." (Ibid.) We concluded the Legislature could not "by indirection, defeat the purpose of the constitutional amendment giving the Governor power to control the expenditures of the state, when it could not accomplish that purpose directly or by an express provision in appropriation bills." (Id., at p. 305.) In other words, we determined in Wood v. Riley that a provision that took no additional funds from the state treasury nevertheless constituted an "appropriation" under the newly adopted constitutional provision -- and hence that this provision was subject to the Governor's proper exercise of his line-item authority.
Harbor, supra, 43 Cal.3d 1078, involved the Legislature's enactment of a budget for the 1984-1985 fiscal year. One item in the proposed budget was an appropriation of more than $1.5 billion for aid to families with dependent children (AFDC). Ten days later, the Legislature passed a trailer bill containing 71 sections enacting, amending, and repealing numerous provisions in various codes. (Sen. Bill No. 1379 (1983-1984 Reg. Sess.), enacted as Stats. 1984, ch. 268, p. 1302.) The trailer bill was to become operative only in the event the Budget Act of 1984 (1984 Budget Act) also was enacted. (Stats. 1984, ch. 268, § 70, p. 1407.) Among the trailer bill's provisions was section 45.5 (Stats. 1984, ch. 268, § 45.5, p. 1383 (hereafter section 45.5)), amending the Welfare and Institutions Code to allow AFDC benefits to be paid under certain circumstances from the date a benefits application was made, rather than from when the application was processed. (Harbor, at pp. 1082-1083.) In approving the 1984 Budget Act, the Governor reduced by more than $9 million the item containing the AFDC allotment. Two days later, he approved the trailer bill, but purported to veto section 45.5 relating to the timing of the benefits payments. (Harbor, at pp. 1082-1083.)
On review, we held that the Governor's purported veto of section 45.5 of the trailer bill, relating to timing of the benefits, was unauthorized, because this provision was not an "item of appropriation," and hence the Governor could not selectively veto the item without vetoing the entire bill. (Harbor, supra, 43 Cal.3d at pp. 1090-1091.)*fn11 In making the determination that section 45.5 was not an "item of appropriation," we recognized that "[t]he term has been defined in various ways. Wood v. Riley, supra, 192 Cal. 293, 303, defines it as 'a specific setting aside of an amount, not exceeding a definite sum, for the payment of certain particular claims or demands . . . not otherwise expressly provided for in the appropriation bill.' It 'adds an additional amount to the funds already provided.' In Bengzon [v. Secretary of Justice (1937) 299 U.S. 410] the term was described as a bill whose 'primary and specific aim . . . is to make appropriations of money from the public treasury.' (299 U.S. 410 at p. 413.) Other cases employ somewhat different definitions (e.g., Jessen Associates, Inc. v. Bullock (Tex. 1975) 531 S.W.2d 593, 599 ['setting aside or dedicating of funds for a specified purpose']; Commonwealth v. Dodson (1940) 176 Va. 281 [11 S.E.2d 120, 127] ['an indivisible sum of money dedicated to a stated purpose'])." (Harbor, supra, 43 Cal.3d at p. 1089.)
We determined that the provision at issue did not qualify "as an item of appropriation under any of these definitions. It does not set aside money for the payment of any claim and makes no appropriation from the public treasury, nor does it add any additional amount to funds already provided for. Its effect is substantive. Like thousands of other statutes, it directs that a department of government act in a particular manner with regard to certain matters. Although as is common with countless other measures, the direction contained therein will require the expenditure of funds from the treasury, this does not transform a substantive measure to an item of appropriation. We agree with petitioners that section 45.5 only expresses the Legislature's intention that the AFDC appropriation, whatever its amount, must be used to provide benefits to recipients from the date of application under certain circumstances." (Harbor, supra, 43 Cal.3d at pp. 1089-1090.)
We proceeded to reject the Governor's complaint that the Legislature had attempted to separate the appropriation and its purpose into discrete measures in order to evade a veto of the entire indivisible measure. (Harbor, supra, 43 Cal.3d at pp. 1090-1091.) We observed: "Both were specified in the  Budget Act, that is, over $1.5 billion was appropriated for the purpose of funding AFDC. The Governor is bound by this 'purpose' as set forth in the budget. If the Legislature chooses to budget by a lump sum appropriation, [the Governor] may eliminate or reduce the amount available for the purpose as set forth therein. Here, the Governor not only reduced the 'item of appropriation' as set forth in the budget, but he divided it into its supposed component parts, assigned a purpose and amount to the part he disapproved, reduced the total by that amount, and attempted to veto a portion of a substantive bill which he claims contains the 'subject of the appropriation.' We are aware of no authority that even remotely supports the attempted exercise of the veto in this manner." (Id., at pp. 1090-1091.)
Finally, we concluded that even the Legislature's attempt to avoid the Governor's veto did not provide a sufficient basis to conclude that section 45.5 was not an "item of appropriation." We found that no definition of the term "item of appropriation" as used in the Constitution -- including the use of that term in Wood v. Riley, supra, 192 Cal. 293 -- could "reasonably embrace a provision like section 45.5, which does not set aside a sum of money to be paid from the public treasury." (Harbor, supra, 43 Cal.3d at p. 1092.) We explained that the circumstance that "in Wood the term 'item of appropriation' was construed in such a way as to facilitate the Governor's power to veto a portion of the budget bill which could reasonably be encompassed within the meaning of that term does not provide authority for holding . . . that the Governor may veto part of a general bill -- a power denied him by the Constitution -- in order to foil an alleged legislative attempt to evade the veto." (Id., at p. 1092.)*fn12
As in the situation presented in Wood v. Riley, supra, 192 Cal. 293, and unlike that before the court in Harbor, supra, 43 Cal.3d 1078, the challenged items presented to the Governor in Assembly Bill 4X 1 each "appear to fill all the requirements of a distinct item of appropriation of so much of a definite sum of money as may be required for a designated purpose connected with the state government." (Wood v. Riley, at p. 304, italics added.) Assembly Bill 4X 1 "set aside a sum of money to be paid from the public treasury" (Harbor, at p. 1092), albeit a sum smaller than that initially appropriated in the 2009 Budget Act.
Petitioners, interveners, and their amici curiae insist that only an increase in spending authority can constitute an appropriation. They emphasize that none of the definitions of "item of appropriation" contained in the cases refer to a decrease in the spending authorized by a previously enacted budget, and they maintain that such a reduction may not be deemed an item of appropriation. They further argue that because the 2009 Budget Act already had set aside sums of money to be paid by the treasury for specific purposes, those items and the sections of Assembly Bill 4X 1 that proposed only reductions to existing, previously enacted appropriations did not satisfy the requirement of money set aside for a particular purpose. The argument, in other words, is that a reduction in a set-aside cannot itself be considered a set-aside or an appropriation. We disagree.
The cases do not require, as petitioners and interveners suggest, that solely items that add amounts to funds already provided can constitute "items of appropriation." We concluded that Governor Deukmejian's claim failed in Harbor because section 45.5 of the trailer bill did not qualify "as an item of appropriation under any of [the] definitions" we reviewed. (Harbor, supra, 43 Cal.3d at p. 1089, italics added.) We observed that the provision "does not set aside money for the payment of any claim and makes no appropriation from the public treasury, nor does it add any additional amount to funds already provided for. Its effect is substantive." (Ibid., italics added.) Furthermore, unlike section 45.5 at issue in Harbor, which did not refer to any sum of money, much less a definite or ascertainable sum, the Assembly Bill 4X 1 items here at issue specified definite amounts by which the original appropriations would be reduced.
Whether spending authority is increased or decreased, it still fundamentally remains spending authority. Although described as reductions in specified items and sections, each of the provisions at issue in Assembly Bill 4X 1 nevertheless directs the "specific setting aside of an amount, not exceeding a definite fixed sum, for the payment of certain particular claims or demands." (Wood v. Riley, supra, 192 Cal. at p. 303; see Harbor, supra, 43 Cal.3d at p. 1092.) The items in Assembly Bill 4X 1 that were eliminated or further reduced by the Governor's exercise of line-item authority capped the spending authority at an amount less than that set forth in the 2009 Budget Act. The Controller could not thereafter disburse, nor could the recipients of the funds thereafter draw upon, any amount larger than that set aside by the Legislature for the specified purposes. (Wood v. Riley, at p. 303 [once enacted, an appropriation " 'cannot be thereafter increased except by further legislative appropriation' "], citing, among other authority, Stratton v. Green (1872) 45 Cal. 149, 151.)
There is no substantive difference between a Governor's reduction of an item of appropriation in the original 2009 Budget Act, to which interveners and petitioners raise no objection, and a Governor's reduction of that same item in a subsequent amendment to the 2009 Budget Act -- that is, Assembly Bill 4X 1. Both actions involve changes in authorized spending.
Interveners insist in their reply brief that the Governor was entitled, in essence, to only one bite at the budget apple. They concede that although he "had the authority to reduce or eliminate each of the items of appropriation at issue here when they were first passed in February, 2009," he nevertheless did not possess that same authority a few months later with regard to "the legislative reductions made in July." We discern no reason why the Governor should have the power to reduce items of appropriation when first enacted, and yet not retain that same power when the Legislature, in response to changed circumstances, sees fit to amend those same appropriations. In both instances, the Governor holds constitutionally granted authority to reduce the allocation of state expenditures.*fn13
Adoption of the view advanced by petitioners, interveners, and their amici curiae that the legislative provisions at issue were not "items of appropriation" would permit the Legislature, in a single bill, to selectively make multiple reductions in previous appropriations, leaving the Governor only the power to veto the entire bill -- a limitation that the 1922 amendment to article IV of the California Constitution specifically was designed to eliminate. (See ante, at p. 12.) Indeed, as we earlier observed, that amendment was promoted in order to permit the Governor to "reduce an appropriation to meet the financial needs of the treasury" (Ballot Pamp., Gen. Elec. (Nov. 7, 1922) argument in favor of Prop. 12, p. 79, italics added), and we are unaware of any evidence or authority suggesting that the drafters of that measure and the voters who enacted article IV, section 10(e) intended that the Governor should be precluded from exercising such line-item authority in order to further reduce authorized funding following a legislative act that itself reduced such funding in response to an ongoing and mounting fiscal crisis. Moreover, if spending reductions are not considered to be items of appropriation (and hence are not subject to a two-thirds vote requirement), a simple legislative majority would be able to overturn a two-thirds vote on the annual budget act. We decline to construe the phrase "items of appropriation" in such a manner.*fn14
Our determination that the challenged actions concerned authorized reductions of "items of appropriation" is further supported by the structure and content of Assembly Bill 4X 1 itself.
We begin with the observation that this bill constitutes an amendment to the 2009 Budget Act. (See People v. Kelly (2010) 47 Cal.4th 1008, 1027 ["an amendment includes a legislative act that changes an existing . . . statute by taking away from it"] (Kelly); Planned Parenthood Affiliates v. Swoap (1985) 173 Cal.App.3d 1187, 1199 [an amendment is a legislative act changing prior or existing law by adding or taking from it some particular provision].) As noted above, this extensive and multi-itemed budget bill contains hundreds of sections, some of which increased spending over what was appropriated in the 2009 Budget Act.*fn15 In many other respects, Assembly Bill 4X 1 decreased numerous appropriations made in the 2009 Budget Act.
The lengthy title of Assembly Bill 4X 1 describes the measure as follows: "An act to amend and supplement the Budget Act of 2009 . . . by amending Items [there follows a list of more than 350 items by number] of, by adding Items [there follows a list of more than 100 items by number] to, and by repealing Items [there follows a list of more than 40 items by number] of . . . that act, and by amending Sections [there follows a list of 10 sections] of, by adding Sections [there follows a list of 21 sections, including sections 17.50, and 18.00 through 18.50, here at issue] to, and by repealing Section 24.65 of, that act, relating to the State Budget, making an appropriation therefor, and declaring the urgency thereof, to take effect immediately." (Assem. Bill 4X 1, italics added.) The last section of the bill recites that the "act is an urgency statute" that "makes revisions in appropriations for the support of the government of the State of California and for several public purposes for the 2009-10 fiscal year." (Assem. Bill 4X 1, § 583, italics added.) Hence, both by title and by express statement, Assembly Bill 4X 1 declares that it amends the 2009 Budget Act by making appropriations. Moreover, the Legislative Counsel's Digest for Assembly Bill 4X 1 denominates it as "Budget Act of 2009: revisions," and includes the legend "Appropriation: yes." (Italics added.)*fn16
On their face, Assembly Bill 4X 1 and the Legislative Counsel's Digest set forth therein lead us to conclude that the Legislature contemplated that multiple budget items identified in the measure constitute items of appropriation. We hold that the content and structure of Assembly Bill 4X 1 support a determination that the provisions at issue are items of appropriation subject to reduction or elimination by the Governor's use of his line-item authority.
After the Governor exercised his line-item authority, the Legislative Counsel issued an opinion, cited by interveners, concluding that "an item or section of a bill that proposes only to make a reduction in an existing item of appropriation previously enacted in the Budget Act of 2009 is not itself an item of appropriation" and therefore, "in vetoing items of sections of [Assembly Bill 4X 1] that proposed only reductions to existing appropriations enacted by the Budget Act of 2009, the Governor exceeded his 'line-item' veto authority." (Ops. Cal. Legis. Counsel, No. 0920928 (Aug. 5, 2009) Governor's Line-Item Veto Authority: Reductions to Existing Appropriations, pp. 1, 4.)*fn17
Although "an opinion of the Legislative Counsel is entitled to respect, its weight depends on the reasons given in its support." (Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 238.) Indeed, quite recently, in Kelly, supra, 47 Cal.4th 1008, we found unpersuasive the analysis put forth by the Legislative Counsel relating to the legislation at issue in that case. (Id., at p. 1043, fn. 60.) We come to a similar conclusion in the present case.
Opinions of the Legislative Counsel ordinarily are "prepared to assist the Legislature in its consideration of pending legislation" (California Assn. of Psychology Providers v. Rank (1990) 51 Cal.3d 1, 17), and therefore such opinions often shed light on legislative intent. Like the Legislative Counsel's opinion at issue in Kelly, however, the opinion at issue in the present case was not prepared in order to assist in the consideration of pending legislation -- it was rendered, instead, after the legislation was enacted, and it addressed possible future litigation arising from that legislation.*fn18 Insofar as the opinion expresses a view concerning the constitutionality of the Governor's exercise of authority with regard to Assembly Bill 4X 1, it is entitled to no more weight than the views of the parties. Legislative intent -- that is, whether the Legislature intended that the items at issue be subject to the Governor's power -- is irrelevant to our present inquiry focused upon the constitutional scope of that power.
In the Court of Appeal, petitioners argued that the language employed by the Legislature in Assembly Bill 4X 1, to effectuate reductions in prior appropriations, differentiates between those provisions that "amended" sections of the 2009 Budget Act and those provisions (here at issue) that merely "added" sections to that act. Petitioners asserted in the court below that items in the former category are "arguably expose[d] . . . to the [G]governor's line-item power" but that "no such authority exists . . . with respect to" to the latter category of items -- those here at issue.
In response, the Court of Appeal observed: "In essence, petitioners argue that the Legislature may do by indirection that which it cannot do directly, that is, it may insulate certain items of appropriation from the Governor's line-item veto power by the language used, whereas other items having the identical effect of reducing the sums appropriated in the 2009 Budget Act would be subject to that power. This, the Legislature may not do. (See Wood v. Riley, supra, 192 Cal. at pp. 304-305.) As amici curiae former Governors observe: 'If by simple wordsmithing the legislative branch can create an omnibus spending bill limiting the Governor's oversight only to veto of the entire bill, then the budgetary process is reduced to a game of 'chicken' daring a [G]governor to bring state government to a halt through a veto.' [¶] Whether identified in Assembly Bill 4X 1 as amendments of, revisions to, or additions to the 2009 Budget Act, it is clear that every provision of Assembly Bill 4X 1 changed a section of the 2009 Budget Act. . . . Consequently, the sections that were 'added' -- like those that expressly 'amended' the 2009 Budget Act -- reenacted those provisions and were subject to the line-item veto or reduction by the Governor. (See also People v. Western Fruit Growers (1943) 22 Cal.2d 494, 501.)"
In their briefing in this court, petitioners and interveners contend that the Court of Appeal, in reaching its decision, incorrectly relied upon the "reenactment rule" of article IV, section 9 of the California Constitution.*fn19 The purpose of this rule, they argue, is merely to "prevent the title of a subsequent act from being made a cloak or artifice to distract attention from the substance of the act and to protect legislators and the public from being entrapped by misleading titles . . . ." (Estate of Henry (1944) 64 Cal.App.2d 76, 82.)*fn20
Petitioners and interveners contend that when the reenactment rule is considered together with Government Code section 9605,*fn21 the present effect of the rule is that, by changing only the amount of the appropriation in the provisions of Assembly Bill 4X 1 at issue, the Legislature did not re-enact the corresponding items of appropriation contained in the 2009 Budget Act but merely reduced the "amount" of those appropriations. Petitioners further insist there exists "a distinction between the setting aside of an amount, and the authorization to spend that amount . . . ."
We disagree. As we have explained, the purpose "of Government Code section 9605 is to avoid an implied repeal and reenactment of unchanged portions of an amended statute, ensuring that the unchanged portion operates without interruption." (In re Lance W. (1985) 37 Cal.3d 873, 895, italics added.) As applied in this case, section 9605 simply makes clear that the changes made by Assembly Bill 4X 1 in July 2009 did not impliedly repeal any authorization of funds contained in the 2009 Budget Act not specifically affected by Assembly Bill 4X 1.
Moreover, the Legislature's allocation of funds -- the setting aside of money for a particular purpose -- is fundamentally indivisible in concept from the designation of the amount thereof. The act of setting aside funds acquires significance only in the context of the designated amount set aside. The "spending authority" granted by a proposed "item of appropriation" is the combination of a setting aside of a designated sum -- and no more -- for a particular purpose. Petitioners do not, for example, contend that a similar distinction existed between "the setting aside of an amount" and "the authorization to spend" when the 2009 Budget Act originally was passed.
Accordingly, we conclude that the arguments advanced by petitioners and interveners supply no basis upon which to question our conclusion that the provisions of Assembly Bill 4X 1 at issue in this case constitute items of appropriation subject to reduction or elimination by the Governor's use of his line-item authority.*fn22
Interveners' contention that the amounts designated by the items of Assembly Bill 4X 1 at issue should not be reducible by the Governor is based in part upon a separation-of-powers theory, also advanced by amici curiae SEIU California State Council et al. This claim is premised upon (1) the absence in California's Constitution of explicit gubernatorial authority to increase or decrease the size of spending cuts made by the Legislature in response to a declaration of fiscal emergency, and (2) language in Harbor, supra, 43 Cal.3d 1078, emphasizing that, as interveners put it, "the power to veto, reduce or eliminate is not the power to create or increase." Specifically, interveners cite our observations in Harbor that "[t]he word 'veto' means 'I forbid' in Latin" and that "the effect of the veto [is] negative, frustrating an act without substituting anything in its place." (Id., at p. 1085.)
In the view of interveners, when undertaking the challenged line-item reductions, "the Governor sought to use his power to increase what the Legislature had done. The Legislature had made a policy determination regarding how much state spending had to be cut in response to the fiscal crisis and where those spending cuts were to be made. The Governor, however, disagreed with the Legislature's policy determinations. He wanted to make more cuts in order to keep a larger budget reserve." According to interveners, the Governor's preference for a larger budget reserve is a policy determination belonging to the legislative, not the executive, branch.
The determination whether the items in Assembly Bill 4X 1 at issue constitute appropriations cannot be made by characterizing the Governor's use of line-item authority as "increasing" the Legislature's reductions and then categorizing that act as impermissibly affirmative or "creative." Treating the exercise of line-item authority as an increase in the reduction, rather than as a decrease in the appropriation is as arbitrary as differentiating between the description of a glass of water as half full and a description of the same vessel as half empty. By increasing the Legislature's reduction, the Governor decreases the size of the appropriation. What matters is not whether the Governor's act is seen as being affirmative or negative, but rather its purpose and practical effect.
The difference of opinion between the Legislature and the Governor underlying these budget cuts was not whether the amount of particular items of appropriation enacted in the 2009 Budget Act needed to be reduced, but the magnitude of the necessary reductions. What mattered in the end were the amounts set aside for particular purposes; the Legislature sought greater appropriations than did the Governor. Although the Governor's exercise of line-item authority may be said to have "increased" the reductions made by the Legislature as to the items at issue, the most significant effect of the Governor's actions, and their purpose, was to further reduce the amounts set aside by the Legislature. The Governor's wielding of line-item authority was therefore quintessentially negative; it lowered the cap on the spending authority for specified purposes, providing precisely the type of check on the Legislature intended by the constitutional initiative that adopted the line-item provision, which empowered the Governor "to reduce an appropriation to meet the financial condition of the treasury. . . ." (Ballot Pamp., Gen. Elec. (Nov. 7, 1922) argument in favor of Prop. 12, p. 79.)
Interveners' separation-of-powers argument thus begs the question. True, the Governor's challenged acts were legislative in nature and, "[a]s an executive officer, [the Governor] is forbidden to exercise any legislative power or function except as . . . the Constitution expressly provide[s]." (Lukens v. Nye, supra, 156 Cal. at p. 501, italics added.) Thus, the question before us is not whether the gubernatorial act at issue was legislative in nature, but whether it was constitutionally authorized. As we earlier explained, the act undertaken by the Governor was authorized by the opening sentence of article IV, section 10(e) of our Constitution: "The Governor may reduce or eliminate one or more items of appropriation while approving other portions of a bill." (Italics added.)
Similarly, as discussed above, we conclude there is no persuasive reason to hold that the Governor is prevented from exercising line-item authority with respect to changes that the Legislature has made to items of appropriation. As emphasized above, the power to "reduce an appropriation to meet the financial condition of the treasury" was bestowed upon the Governor by the people of California in 1922 through constitutional amendment. When, as in the situation presented by the matter now before us, the Legislature finds it necessary to change its appropriations in light of worsened fiscal circumstances, the public's interest in fiscal responsibility is arguably even greater, and there is no indication that those who drafted and enacted article IV, section 10(e) would not have intended the Governor to maintain this same power over state expenditures under these circumstances.
Interveners assert that the foregoing analysis would permit the Governor to "eliminate" a reduction to a previously enacted appropriation, thereby allowing more spending than the Legislature authorized -- a result that, they maintain, would not constitute use of the "veto" as a "negative" check on the Legislature, but the opposite.*fn23 We need not address this issue or related issues, because they are not presented by the case before us. We note, however, that the Governor's line-item power does not give him the last word. The Legislature retains the ability to override the Governor's reduction of items of appropriation in the same manner as other bills, by separately reconsidering and passing them by a two-thirds majority of each house. (Cal. Const., art. IV, § 10, subds. (a), (e).)*fn24
Article IV, section 10 (e) grants the Governor the limited legislative authority to eliminate or reduce "items of appropriation." For the reasons set forth in this opinion, we conclude that the budget reductions here at issue were "items of appropriation" within the meaning of that constitutional provision, and that therefore the Governor's exercise of line-item authority to reduce those appropriations, while approving other portions of Assembly Bill 4X 1, was consistent with his constitutional powers.
The judgment rendered by the Court of Appeal, denying the petition for writ of mandate, is affirmed.
WE CONCUR: KENNARD, J., BAXTER, J., CHIN, J., MORENO, J., CORRIGAN, J.,*fn25 RYLAARSDAM, J.
Review Granted XXX 182 Cal.App.4th 590