Judge shoots down Schweitzer's line-item vetoes

HELENA — A Helena judge said Monday that Gov. Brian Schweitzer's vetoes of some local infrastructure spending were unconstitutional.

Schweitzer responded by calling the decision "a sad day for Montana" by restricting the ability of the governor to intervene in legislative spending. Schweitzer said a decision whether to appeal would come later.

Six local governments sued the Democratic governor last year to undo the governor's vetoes of funding for their bridge and water projects. The local governments argued that Schweitzer exceeded his line-item veto authority when he struck down their projects, allowing the money to flow to other projects.

District Judge Jeffrey Sherlock said in a Monday order that the move did not reduce state spending since it was just allocated to other projects on a waiting list. He said the vetoes went beyond the constitutional line-item veto power given the governor.

"In this case, if the governor were actually taking a certain dollar amount out of the appropriation allocated to a certain infrastructure project and reducing the total appropriation by that amount, such would be permissible," the judge wrote. "Here, since the amount of the total appropriation has stayed the same, but its allocation has been shifted from what the legislature enacted, the result is an impermissible modification of the legislature's appropriation power."

The lawsuit was filed by Carbon, Fergus, Madison and Sweet Grass counties, along with the city of Roundup and the town of Sheridan.

Schweitzer has said he vetoed the $750,000 wastewater project in Sheridan, a $700,000 bridge in Madison County, $275,000 for a bridge in Fergus County, and a $405,000 bridge in Carbon County in part because legislators for those areas, all Republicans, didn't support the spending bill for the Treasure State Endowment Program.

Schweitzer has said he rejected a $500,000 water project in Roundup because that city had access to other revenue sources, such as coal board funding, that were not available to other counties. The governor also said he vetoed about $155,000 for a bridge in Sweet Grass County because there was not enough need since the county identified an alternative route within close proximity.

Schweitzer said he disagreed with the judge's opinion that the move did not reduce spending, although the money would flow to other projects on the TSEP priority list. He argued the Montana Constitution provides the authority on appropriations.

"If a bill that spends money is not an appropriations bill, then I don't know what is," Schweitzer said.

The governor said the lawsuit advocates a system where lawmakers can lobby to place spending into a bill, vote against the bill in the name of fiscal conservatism, then turn around and attend the ribbon cutting back home for project funded by the spending.

"The only thing one can conclude is the counties would like the legislature to be run like Congress," Schweitzer said.

State lawyers had argued at a hearing last month that the governor's vetoes were within his authority to strike line-item appropriations. The attorney general's office said the legislature opened the door to line-item vetoes when it itemized appropriations for prioritization.

The judge disagreed. Sherlock said the veto did not satisfy the historical purposes of the line-item veto to either reduce spending or to prevent the "logrolling" together of unpopular spending projects inside one large bill to unite a coalition of minorities to ensure passage.

"Not only did the veto not reduce any particular item in the appropriation, it did not reduce the amount of the appropriation nor did it prevent 'logrolling,' and it re-arranged the legislature's priority of funding of the infrastructure projects mentioned above," the judge decided.