AGO 88-8.

Case Date:November 28, 1988
Colorado Attorney General Opinions 1988. AGO 88-8. November 28, 1988Department of Law Attorney General Opinion FORMAL OPINION of DUANE WOODARD Attorney General Opinion No. 88-8 AG Alpha No. EX AD AGAQU Honorable Roy R. Romer Executive Chambers 136 State Capitol Denver, Colorado 80203-1792 RE: Governor's request for legal advice concerning the constitutionality of conditions and limitations contained in the 1988 Long Bill headnotes and footnotes.Dear Governor Romer: I am writing in response to your memorandum dated August 24, 1988 requesting a legal opinion on the constitutionality of certain headnotes and footnotes attached to House Bill 1356, the 1988 general appropriations bill (the "1988 Long Bill"). You ask me to provide some definitive guidance on the question: to what extent may the Colorado General Assembly employ provisions of the 1988 Long Bill to restrict executive expenditure of appropriations? QUESTION PRESENTED AND CONCLUSION Whether the 1988 Long Bill contains legislative conditions which are unconstitutional because they intrude upon the executive sphere or violate the constitutional requirement that the Long Bill contain only appropriations? Yes. ANALYSIS Passage of the 1988 Long Bill -- nature of the controversy. In preparing this opinion I have relied upon the published version of the 1988 Long Bill as well as your description of the circumstances surrounding passage of the budget. You have also provided me a copy of your veto message to the house of representatives dated June 23, 1988. In May of this year, the Colorado General Assembly adopted the 1988 Long Bill and forwarded it to you for approval. In addition to making line item appropriations for the expenses of state government during the 1988-89 fiscal year, the 1988 Long Bill contains several pages of narrative headnotes and some 159 distinct footnotes, plus a capital construction budget with an additional eight footnotes. On June 23, 1988 you wrote the house of representatives stating that you had approved the 1988 Long Bill as a whole, but that you had vetoed one item and commented on several provisions which you believed to present substantial constitutional problems. You identified those provisions presenting constitutional problems by bracketing them, but did not line them out or otherwise attempt to veto those provisions separately from the related line item appropriation. Subsequently, the speaker of the house of representatives and the president of the senate announced their position that your veto, and the accompanying message, were not filed in conformance with the requirements of the Colorado Constitution. They directed that your veto be treated as having no legal effect and that your message not be published as part of the Session Laws. 1988 Colo. Sess. Laws 120. In October, the chairman of the joint budget committee wrote all department executive directors to inform them that the joint budget committee believes all headnotes and footnotes should be followed by the executive branch. This ongoing controversy led you to write me requesting legal advice on the constitutionality of various limitations and conditions on appropriations. The sheer multitude of headnotes and footnotes presents a practical problem of how to address these multifaceted issues within a limited amount of space. You have not specified any particular conditions about which you request legal advice, but you have provided a copy of the 1988 Long Bill and your veto message specifying the bracketed conditions. I understand that you seek guidance on the general legal principles which apply to this controversy. Therefore, my opinion will focus on selected examples of the 1988 Long Bill provisions which illustrate my analysis.(fn1) Introduction to recent litigation over the separation of powers between legislative and executive branches. In the past fifteen years the Colorado Supreme Court has had several opportunities to address the respective constitutional powers of the legislative and executive branches, particularly with respect to implementation of the annual general appropriations bill. In its decisions resolving disputes between the two branches, the court has delineated several broad principles of constitutional law. In each instance, however, the court has emphasized that issues of separation of powers fall in a twilight area and decisions must be made based upon the circumstances of each specific case. In the absence of any bright line test to decide separation of powers controversies, the legislative and executive branches have been unable by themselves to reach a mutually acceptable compromise on the extent of their respective powers over such matters as: the proper content of Long Bill footnotes; ongoing administration of line item appropriations; executive transfer of funds between appropriations; and legislative participation in administrative decision-making. Several significant court decisions are referred to throughout my opinion, and are set out below in chronological order for convenient reference. In the opinion they will be referred to in the abbreviated form indicated: MacManus v. Love, 179 Colo. 218, 499 P.2d 609 (1972) ("MacManus"); Anderson v. Lamm, 195 Colo. 437, 579 P.2d 620 (1978) ("Anderson"); Colorado General Assembly v. Lamm, 700 P.2d 508 (Colo. 1985) ("General Assembly I"); Colorado General Assembly v. Lamm, 704 P.2d 1371 (Colo. 1985) ("General Assembly II"); and Colorado General Assembly v. Lamm, 738 P.2d 1156 (Colo. 1987) ("General Assembly III"). The Colorado Constitution separates the legislative power to enact policy from the executive power to administer. Article III of the Colorado Constitution (fn2)...

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