Kansas Attorney General Opinion 2012-001

January 18, 2012
ATTORNEY GENERAL OPINION NO. 2012- 1
The Honorable Bill Feuerborn
State Representative, Fifth District
1600 Park Road
Garnett, Kansas 66032
Re: 	Constitution of the State of Kansas—Legislative—Approval of Bills;
Vetoes; Governor’s Line-item Veto Power
Synopsis: 	The Governor’s use of the line-item veto to excise the questioned proviso
within Section 175 of 2011 Senate Substitute for House Bill 2014 does not
exceed the authority granted to the Governor under Article 2, Section
14(b) of the Constitution of the State of Kansas. 	Cited herein: 	Kan.
Const., Art. 2, Section 14; K.S.A. 45-307; L. 2011, Ch. 118.
* 	* 	*
Dear Representative Feuerborn:
As Representative for the Fifth District, you ask for 	our opinion on whether the
Governor’s line-item veto of a portion of Section 175 of 2011 Senate Substitute for
House Bill 2014 1 exceeds the authority granted to the Governor under Article 2, Section
14(b) of the Constitution of the State of Kansas. The bill was enrolled and presented to
the Governor on May 20, 2011. 2 The Governor approved the bill on June 1, 2011,
except for the line-item veto of Sections 26, 108(e), 108(f) & 115(a); and portions of
Sections 111(a), 143(a), and 175. 3 The bill, absent these provisions, took effect on
June 9, 2011. 4
Section 175 of 2011 Senate Substitute for House Bill 2014 states:
1 L. 2011, Ch. 118, also known as the Omnibus Appropriations Act of 2011.
2 2011 Journal of the House 1668.
3 2011 Journal of the House 1662.
4 L. 2011, Ch. 118, Section 175; Kan. Reg., Vol. 30, No. 23, 755, 849 (June 9, 2011).

Representative Bill Feuerborn
Page 2
Sec.175. (a) On July 1, 2011, of the amount of each appropriation or
reappropriation for a state agency that is budgeted for state operations for
the fiscal year ending June 30, 2012, made by this or other appropriation
act of the 2011 regular session of the legislature from the state general
fund, the sum equal to $5,900,000 which is not exempt, is hereby lapsed
in accordance with this subsection: Provided, That the following are
exempt from and shall not be reduced by such lapsing provision: (1) Any
item of appropriation or reappropriation for fiscal year 2012 from the state
general fund for any state agency for the provision of programmatic
services, (2) any item of appropriation or reappropriation for fiscal year
2012 from the state general fund for the legislature or any agency of the
legislative branch of state government, (3) any item of appropriation or
reappropriation for fiscal year 2012 from the state general fund for the
judicial branch or any agency of the judicial branch of state government,
(4) any item of appropriation or reappropriation for fiscal year 2012 from
the state general fund for the department of transportation, (5) any item of
appropriation or reappropriation for fiscal year 2012 from the state general
fund for any state school aid program, (6) any item of appropriation or
reappropriation for fiscal year 2012 from the state general fund for human
services caseloads for the department of social and rehabilitation services,
the 	division 	of 	health 	care 	finance 	of 	the 	department 	of 	health 	and
environment, the juvenile justice authority or the department on aging, (7)
any item of appropriation or reappropriation for debt service for contractual
bond obligations, including any transfer from the state general fund to the
school district capital improvements fund for distribution to school districts
pursuant to K.S.A. 75-2319, and amendments thereto, and (8) any item of
appropriation 	or 	reappropriation 	for 	employer 	contributions 	for 	the
employers who are eligible employers as specified in subsections (1), (2)
and (3) of K.S.A. 74-4931, and amendments thereto, under the Kansas
public employees retirement system pursuant to K.S.A. 74-4939, and
amendments thereto: Provided further, That the aggregate amount lapsed
in each account of the state general fund of the state agency under this
section shall be the amount in the account budgeted for state operations
which bears the same relation to $5,900,000 as the aggregate amount
budgeted for state operations from the state general fund for the state
agency 	in 	the 	Governor’s 	Budget 	Report 	for 	FY 	2012 	bears 	to 	the
aggregate amount budgeted for state operations from the state general
fund for all state agencies in the Governor’s Budget Report for FY 2012:
And provided further, That the director of the budget, after consultation
with the director of legislative research, shall determine the amount to be
lapsed under this subsection from each account of the state general fund
of each state agency and shall certify such amount to the director of
accounts and reports: And provided further, That, at the same time that
such certification is made by the director of the budget to the director of
accounts and reports under this subsection, the director of the budget

Representative Bill Feuerborn
Page 3
shall deliver a copy of such certification to the director of the legislative
research department.5
Simply put, Section 175 was intended to implement an across-the-board reduction of
$5.9 million for savings to administrative activities excluding programmatic services,
human services caseloads, local school state aid programs, the Judicial Branch, the
Legislative Branch, the Department of Transportation, and debt service.
Your question requires an analysis of what the governor is authorized or permitted by
the Constitution of the State of Kansas to veto. 	Article 2, Section 14(b) of the
Constitution of the State of Kansas 6 grants the governor authority in certain, limited
circumstances to veto less than an entire legislative enactment. It provides, in pertinent
part:
If 	any 	bill 	presented 	to 	the 	governor 	contains 	several 	items 	of
appropriation of money, one or more of such items may be disapproved by
the governor while the other portion of the bill is approved by the governor.
In State v. French, 133 Kan. 579 (1931), the Kansas Supreme Court held that “the veto
power of the executive under our system of government is not inherent in such officer
as a legislative function, but is a power confided in him by the supreme authority of the
state; 	and 	in 	exercising 	this 	function, 	while 	he 	is 	not 	confined 	to 	rules 	of 	strict
construction, he nevertheless must look to the Constitution for the authority to exercise
such power.”7
It is generally understood that the purpose underlying the so-called “line-item” veto
power 	is 	threefold: 	"the 	rejection 	of 	legislative 	logrolling; 	the 	imposition 	of 	fiscal
restrictions on the legislature; and the strengthening of the governor's role in budgetary
matters. In other words, the item veto may be said to be at the confluence of the policies
underlying the single-subject rule, the balanced budget requirement, and the executive
budget."8
In this case the Governor disapproved of a specific proviso within Section 175 and
provided a veto message as required by law. 	The pertinent line-item veto message is
as follows:
5
Emphasis added to show the language stricken by the Governor’s line-item veto.
6
K.S.A. 45-307 also provides, in pertinent part: 	“If any enrolled bill presented to the governor contains
more than one item of appropriation of money, the governor may disapprove one or more of such items,
while approving the other portion of the bill.”
7
Emphasis added.
8
Richard Briffault, The Item Veto in State Courts, 66 Temp. L. Rev. 1171, 1177 (1993). See also
Washington State Legislature v. Lowry, 931 P.2d 885, 889-90 (1997); State ex rel. Coll v. Carruthers, 759
P.2d 1380, 1383 (N.M. 1988); Attorney General Opinion 2002-47.

Representative Bill Feuerborn
Page 4
Across-the-Board Reduction
That portion of Section 175 that reads as follows has been line-item
vetoed: ‘‘Provided further, That the aggregate amount lapsed in each
account of the state general fund of the state agency under this section
shall be the amount in the account budgeted for state operations which
bears the same relation to $5,900,000 as the aggregate amount budgeted
for state operations from the state general fund for the state agency in the
Governor’s Budget Report for FY 2012 bears to the aggregate amount
budgeted for state operations from the state general fund for all state
agencies in the Governor’s Budget Report for FY 2012:’’
My administration remains committed to right-sizing the state budget and
reducing the likelihood of allotments by maintaining a responsible ending
balance. While I fully intend to make these reductions, I must have the
flexibility to impose them where I believe they can be made without
harming key services. The $5.9 million reduction is left intact with this veto
and the certification of reductions will be made as provided for in the bill.
These reductions, however, should not be made on a pro-rata basis, so I
have vetoed this proviso. 9
There is no contention that this proviso is general legislation or an independent
statement 	of 	substantive 	law, 	which 	would 	be 	inappropriate 	to 	include 	in 	an
appropriations bill. 10 We will assume, therefore, that it was properly included by the
legislature in this bill. 	Nor is there before us any dispute that the lapse of an
appropriation, which reduces the amount of money to be expended, constitutes an item
of appropriation. 	We will assume, therefore, that a lapse of an appropriation is the
same as an appropriation itself from a constitutional perspective. 11 Therefore, the
precise question before us is whether this particular budget proviso, which directs the
manner in which a $5.9 million lapse in appropriation is to be implemented, is an “item
of appropriation” within the meaning of Article 2, Section 14(b), of the Constitution of the
State of Kansas.
We begin our analysis where you did because, as you note, this office addressed the
application of Article 2, Section 14(b) of the Kansas Constitution on at least two prior
occasions 	in 	opinions 	that 	defined 	the 	term 	“items 	of 	appropriation 	of 	money”
narrowly. 12 However, those two opinions predate State v. Carlin,13 the 1981 case in
9 2011 Journal of the House 1664.
10See State v. Carlin, 230 Kan. 252, 258 (1981).
11 The Kansas Supreme Court clarified in Carlin that a lapse may lawfully be included in an appropriations
bill.
12
Attorney General Opinion No. 81-82 (governor cannot line-item veto appropriation bill provision effecting
a transfer of money within the treasury or imposing conditions, limitations or qualifications on an
appropriation or constituting an independent statement of substantive law); Attorney General Opinion No.
76-168 (governor cannot line-item veto appropriation bill provision approving of statewide television
system).

Representative Bill Feuerborn
Page 5
which the Kansas Supreme Court provided guidance on this constitutional provision. In
describing items that may properly be included in appropriation bills, the Kansas
Supreme Court held that "[A]ppropriation bills may direct the amounts of money which
may be spent, and for what purposes; they may express the legislature's direction as to
expenditures; they may transfer funds from one account to another; they may direct that
prior unexpended appropriations lapse".14
Because Attorney General Opinion No. 76-168 and Attorney General Opinion 81-82
were issued before the Kansas Supreme Court clarified the meaning of Article 2,
Section 14(b) of the Kansas Constitution, we find those Opinions less persuasive than
the more recent Attorney General Opinion on this subject. 	Attorney General Opinion
2002-47, which examined Article 2, Section 14(b) of the Kansas Constitution, was
issued after to the Carlin decision. 15 It analyzed the two prior Attorney General
Opinions’ conclusion that the term “items of appropriation of money” should be narrowly
construed and determined that, in light of Carlin, an “item of appropriation of money”
should be more broadly construed and requires a fact specific case-by-case analysis to
balance 	the 	legislative 	and 	executive 	constitutional 	powers. 16 Important 	to 	this
conclusion is the acknowledgement of the prominent role of the Governor in the State's
budgeting process and the lack of a universal definition or agreement as to what the
lines of authority are. 	Ultimately, Attorney General Stovall concluded that if a provision
can lawfully be included in an appropriations bill and is indeed a separable item not
closely linked to a single appropriation, then it is subject to line-item veto.17
With these rules in mind, we note that the Governor’s line item veto of the questioned
proviso in Section 175 of 2011 Senate Substitute for House Bill 2014 appears to
comport with the constitutional requirements set forth in Attorney General Opinion 2002-
47. In this case, the Governor did not attempt to veto just a word, phrase or sentence of
13State v. Carlin, 230 Kan. 252 (1981). The issue in Carlin was whether the Governor could line-item veto
two sections amending school finance statutes in an appropriation act. The court held that the
amendatory statutes were not items of appropriation and, further, were not permitted to be included within
an appropriation act and could not be item vetoed. 	The court determined that the statutes were not
matters permitted within an appropriation bill as appropriation bills may not include "subjects wholly
foreign and unrelated to their primary purpose: Authorizing the expenditure of specific sums of money for
specific purposes."
14
230 Kan. at 258. Emphasis added.
15
Attorney General Opinion 2002-47 (The veto before Attorney General Stovall was of a subsection to
prohibit the expenditure of moneys, other than donations, appropriated from the treasury for FY 2003 to
reinforce the capitol dome).
16
We would call attention to this passage from Attorney General Opinion 2002-47, which we believe
properly describes the state of the law after State v. Carlin: “Because there is no conclusive authority in
this State that expenditure restrictions and limitations are not to be considered ‘items of appropriation of
money’ for purposes of the Article 2, Section 14(b) of the Kansas Constitution, we believe that, should the
issue reach them, the Kansas appellate courts would also undertake a more critical and comprehensive
review of this issue, taking into account all the case law and scholarly studies, much of which postdates
the decision in Carlin.
17
Attorney General Opinion 2002-47 concluded: 	“[W]e believe that the Kansas appellate courts would
find persuasive the cases that, in balancing the executive and legislative powers, have held that if a
provision can lawfully be included in an appropriations bill and is indeed a separable item not closely
linked to a single appropriation, then it is subject to line-item veto.”

Representative Bill Feuerborn
Page 6
that section but instead vetoed a stand-alone subsection that is separable from the
remainder of Section 175. 	The proviso is not attached to a single appropriation but to
an across-the-board reduction of $5.9 million for savings to administrative activities with
specific exclusions. The practical effect of the line-item veto is that the legislative intent
of $5.9 million savings is still accomplished while the prominent role of the governor in
the budget process is preserved. 	For all of these reasons, it appears to us that the
Governor’s 	line 	item 	veto 	in 	question 	here 	complies 	fully 	with 	the 	constitutional
requirements previously identified.
The question remains, however, whether the line item veto in question here must be
distinguished from the line item veto reviewed by Attorney General Stovall in Attorney
General Opinion 2002-47 because the line-item veto before us leaves the underlying
lapse intact while the line-item veto before Attorney General Stovall eliminated entirely
the underlying prohibition on funding. 	On this point, which has not been squarely
addressed 	by 	the 	Kansas 	appellate 	courts, 	we 	find 	persuasive 	the 	reasoning 	in
Washington State Legislature v. Lowry,18 where the Supreme Court of the State of
Washington explained its position as follows 19 :
"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. Thus, so long as the Legislature drafts budget
bills as lump sum appropriations to agencies conditioned by provisos as
we have defined them here, the Governor's appropriations item veto
power extends to each such proviso. (FN8. 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 'appropriations item' may be a
sentence, phrase, letter, digit, or anything less than the whole proviso.)" 20
18 931 P.2d 885 (1997). We believe that the overall approach of Attorney General Opinion 2002-47 is to
suggest, based upon the Supreme Court’s opinion in Carlin, that the Kansas appellate courts are inclined
to consider the evolving authorities from other states that have wrestled with this question regarding line-
item veto powers. Therefore, looking to the similar experience of Washington state seems a reasonable
approach.
19 The Washington Constitution confers upon the Governor general veto authority over legislation and a
distinct veto power over “appropriation items”: 	“…If any bill presented to the governor contain several
sections or appropriation items, he may object to one or more sections or appropriation items: 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….” 	Wash. Const., Art. III,
Section 12 (amend.62).
20Id. at 893.

Representative Bill Feuerborn
Page 7
Like the matter before the Washington Supreme Court, Section 175 of 2011 Senate
Substitute for House Bill 2014 is in the nature of a “lump sum appropriation” that is
conditioned by several provisos. 	It requires a $5.9 million reduction for savings to
administrative activities with specific exclusions but, because of the provisos, did not
have the effect of reducing any single fund or account by $5.9 million. 	Rather, Section
175 is conditioned by, inter alia, the vetoed proviso that the reduction be across-the-
board. 	The vetoed proviso had the practical effect of imposing numerous individual
lapses upon specific agency accounts; added together, those individual lapses were to
total the $5.9 million lump-sum amount. 	In a very real sense, the vetoed proviso had
the effect of transforming the single lump-sum lapse into numerous smaller lapses. The
fact that the syntax of the bill did not set forth, item-by-item, the specific dollar amount
by which each account was to be reduced had the vetoed proviso gone into effect does
not render the effect of that provision on any individual account any less specific. 	We
conclude, therefore, that the vetoed proviso was itself legislative language constituting
“the designation of specific sums of money which the legislature authorizes may be
spent for specific purposes.”21 That is the definition of “items of appropriation of money”
as recognized by the Kansas Supreme Court.
For the reasons set forth above, we conclude that the vetoed provision is an “item of
appropriation of money” within the meaning of Article 2, Section 14(b). 	Therefore, it is
our opinion that the Governor’s use of the line-item veto to excise the questioned
proviso within Section 175 of 2011 Senate Substitute for House Bill 2014 does not
exceed the authority granted to the Governor under Article 2, Section 14(b) of the
Constitution of the State of Kansas.
Sincerely,
Derek Schmidt
Attorney General
Athena Andaya
Deputy Attorney General
DS:AA:ke
21 State v. Carlin, 230 Kan. 242, 256.