AGO 88-8.
Case Date | November 28, 1988 |
Court | Colorado |
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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