2008 Bills Vetoed by the Governor - SB

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March 13, 2008

The Honorable Dennis Daugaard
President of the Senate
State Capitol
Pierre, SD 57501-5070

Dear Mr. President and Members of the Senate:

I herewith return Senate Bill 203, and pursuant to Article IV, Section 4, of the South Dakota Constitution, I exercise a LINE ITEM VETO on the same.

Senate Bill 203 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."

I hereby exercise the line item veto and delete Sections 38 and 39 of the enrolled bill, which are lines 23 and 24 of page 29 and lines 1-4 of page 30 of the Senate Appropriations engrossed bill. They read:

Section 38. No money appropriated for state aid to education in subdivision (2) of section 11 of this Act may be expended for any other purpose without specific legislative authorization.

Section 39. No money appropriated for state aid to special education in subdivision (3) of section 11 of this Act may be expended for any purpose without specific legislative authorization.

These sections would prohibit the expenditure of $45 million for special education, violate the South Dakota Constitution, and conflict with existing law.

Section 39 omits one very important word that would prohibit the Department of Education from spending any money appropriated for state aid to special education.

During testimony, the voiced intention was that state aid dollars could not be transferred/expended for any "other" purpose than that which was intended through the general appropriations act. That is what was written in Section 38.

Section 39 omitted the word "other" and now says the dollars for special education "may not be spent for any purpose without legislative authorization." Therefore, unless my veto is sustained, we will have a shortfall of $45,127,372 in the State Aid to Special Education budget because by this new law those dollars cannot be spent for any purpose without legislative authority.

Secondly, S.D. Const. Art. XII, ยง 2 allows the General Appropriations Bill to "embrace nothing but appropriations."

The South Dakota Supreme Court has interpreted this provision to prohibit including substantive

legislation in the appropriations bill in this manner attempted in Senate
Bill 203. 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, 582 N.W.2d 386, 392 (1998); See also Duxbury, McKellips and Symens v. Harding, 490 N. W. 2d 740, 1992 (1992); Apa v. Butler, 2001 SD 147, 638 N.W.2d 57(2001).

Finally, if these two sections were to become law, they would conflict with existing law.

SDCL 4-8A-8 reads:

Moneys appropriated on a program basis by the General Appropriation Act may be transferred between program accounts within or between programs within departments and bureaus ...only at the written request of a governing body, department secretary, or bureau commissioner, or designee, in accordance with procedures established by the Bureau of Finance and Management and only upon written approval of the Bureau of Finance and Management..

Therefore, if SDCL 4-8A-8 allows moneys to be transferred in the general appropriations act, but Sections 38 and 39 prohibit it, which law should be followed, the codified law or the new directions in Senate Bill 203?

Because Sections 38 and 39 exceed what is allowed by the South Dakota Constitution and subsequent court decisions, they would also conflict with existing law and would prohibit the expenditure of $45 million for special education, I respectfully LINE ITEM VETO Senate Bill 203 and also respectfully request that you concur with my action.

Respectfully submitted,
M. Michael Rounds
Governor

MMR:ls

cc:    The Honorable Thomas J. Deadrick
    The Honorable Chris Nelson