The Iowa Supreme Court held an unusual evening session on February 21 to hear oral arguments in Governor Terry Branstad’s appeal of a district court ruling that declared two of his line-item vetoes illegal.

Danny Homan, president of the AFSCME labor union’s chapter in Iowa, and five Democrats in the Iowa legislature filed the appeal last August. Iowa Workforce Development proceeded with closing 36 field offices during the summer and fall of 2011. District Court Judge Brad McCall ruled in December that Branstad acted improperly when he vetoed language defining an Iowa Workforce Development “field office” and language stating, “the department shall not reduce the number of field offices below the number of field offices being operated as of January 1, 2009.” Bleeding Heartland summarized the key points in his decision here.

PDF files of briefs filed by both sides are available on the Iowa Supreme Court’s website: click here for Branstad’s appellant brief, here for the response from attorneys representing the plaintiffs, and here for the reply by Branstad’s attorneys.

The governor’s attorneys argue that Iowa’s constitution gives the governor broad line-item veto authority.

Article III, Section 16 of the Iowa Constitution provides that the “governor may approve appropriation bills in whole or in part, and may disapprove any item of an appropriation bill.” (emphasis added). Unlike Virginia, there is no prohibition on vetoing items that are interrelated with others. And unlike Minnesota, the veto is not limited to items that appropriate money. If a provision is an “item,” it may be stricken.

Branstad’s appeal relies heavily on the 1971 case Turner v. Iowa State Highway Commission.

Like here, several legislators disagreed with Governor Ray’s veto. And like here, they asked the courts to intervene in the political dispute. The legislators argued that the office-closure provision was a “condition” on the Highway Commission appropriation and therefore not itself an “item” under the Iowa Constitution. Id. at 148-49. If Governor Ray disagreed with the office-closure provision-the legislators appeared to argue-he had to veto the Highway Commission appropriation as well.Id.

Not so, said this Court in a unanimous opinion. “The legislature may have intended to make [the office-closure provision] a condition, limitation or proviso on the expenditure of funds,” but it failed to draft the bill that way. Id. at 153. The office-closure provision did not contain any conditional or limitation “language” or “phraseology.” Id.at150. As such, it was a separate “item” subject to veto. Id.

Thus, the “judicial message” to the legislature was this: “[I]f it expects judicial intervention to be available when the Governor attempts to excise limitations or qualifications on appropriations through an item veto, the legislature must provide the court with clear language establishing the necessary legal foundation.” Brent R. Appel, Item Veto Litigation in Iowa: Marking the Boundaries Between Legislative and Executive Power, 41 Drake L. Rev. 1,19 (1992) (emphasis added) (hereinafter, “Appel”). In other words, if the legislature wants to condition or limit an appropriation, it must “expressly” say so. Id. at 20.

Branstad’s attorneys argue further that

If the legislature wants to create a condition, it can do so simply by expressly (1) identifying the appropriation and (2) stating how that appropriation is limited or conditioned.

The office-closure provision does neither. It states:

The department shall not reduce the number of field offices below the number of field offices being operated as of January 1,2009.

(App. 16). There is no mention of an appropriation and thus no express limitation or condition on an appropriation. Under Turner, this policy provision is a separate item subject to veto. […]

From the beginning, there has been no question what this case is really about: The closure of Workforce Development field offices. Plaintiffs disagree with it, but they do not have the numbers in the General Assembly to override the Governor’s veto, or the legal authority to prevent it. The office-closure provision does not expressly limit or condition an appropriation, and is thus a separate item.

Attorneys representing the plaintiffs responded,

The item veto power hinges on the definition of “item.” In Turner v. Iowa State Highway Comm ‘n, this Court acknowledged that the governor may constitutionally item veto nearly any item in an appropriation bill regardless of it being a monetary allocation. 186 N.W.2d 141, 149 (Iowa

1971). Consequently, as stated by this Court in Rants, “[t]his broad definition of an item requires a difficult calculation to ensure a proper balance between the executive and legislative branches.” 684 N.W.2d at 205. In effort to ensure that balance, this Court has held that “the Governor may not selectively strike words and phrasesfrom ‘conditions inextricably linked to an appropriation,’ and, on the other hand, the legislature may not block [an] item veto by attaching ‘unrelated riders’ to an appropriation.” Id. (quoting Welsh v. Branstad, 470 N.W.2d 644, 649 (Iowa 1991)). This court defined “condition” and “rider” in Colton v. Branstad, 372 N.W.2d 184, 189, 191 (Iowa 1985). A condition is “a provision in a bill that limits the use to which an appropriation may be put”, while a rider is “an unrelated substantive piece of legislation incorporated in the appropriation bill.” Id […]

In defending his improper veto, Appellant continues to rely on Turner, the first item veto case decided in Iowa. Turner v. Iowa State Highway Comm., 186 N.W.2d 141 (Iowa 1971). His heavy reliance ignores the Iowa cases that have come since, the cases that have continued to shape the item veto discussion. As shown in his district court brief, oral argument, and again in his appellant brief, Appellant fails to acknowledge the difference between Turner and the case at hand. Under Welden, a condition may be item vetoed only if the accompanying appropriated money is also vetoed. Welden v. Ray, 229 N.W.2d 706 (Iowa 1975).

District Court Judge McCall ruled one of Branstad’s disputed line-item vetoes constitutional. That language language attempted to prevent Iowa Workforce Development from using funds for the National Career Readiness Certificate program. The plaintiffs are asking the Iowa Supreme Court to overturn that portion of the district court ruling, while Branstad is seeking to have that portion affirmed.

Dar Danielson covered last night’s oral arguments for Radio Iowa.

Richard Sapp presented the governor’s case and told the justices that the veto was legal because the governor created an alternative to the “brick and mortar” field offices. He says the definition of what constituted a field office was not clearly laid out by the legislature in the bill, and said a definition has been the test since the first challenge of the item veto.

“Since 1971 the legislature has been on notice of what it must write if it intends to make something a condition,” Sapp said. […]

Justice Thomas Waterman asked Hedberg about the purpose of the item veto. “The intent of the framers of the item veto amendment was to give the governor more control over the budget than he’d have without it?,” Waterman asked Hedberg, who replied yes. “And wouldn’t you undermine that if you construed the item veto power so narrowly that he couldn’t strike out a policy provision that would tie his hands on ways to save money, ” Waterman asked.

Hedberg replied, “The item veto as I understand it was to prevent pork barrel politics is that fair enough? But I think in this case the governor vetoed the barrel and kept the pork for himself, that’s the problem. And I think that’s why you have got to veto the money. Because now you can take that $8.6-million and use it, distort it.”

The Iowa Supreme Court will rule on the case later this year. Even if the justices uphold the lower-court ruling, it’s hard to see Iowa Workforce Development reopening any of the 36 shuttered offices. The language Branstad may have improperly vetoed would have kept the offices open only through the 2012 fiscal year, which ends on June 30.

Branstad appointed four of the seven current Iowa Supreme Court justices. He named Chief Justice Mark Cady to the court in 1998, and he named Thomas Waterman, Ed Mansfield, and Bruce Zager last year.

UPDATE: From Jeff Eckhoff’s story in the Des Moines Register:

“Since 1971, the Legislature has been aware of what it needs to write,” Sapp said. “The question is why they didn’t do that in this case.”

Justice David Wiggins, sitting before a courtroom packed with legislators, seemed to jokingly dismiss Sapp’s argument that any straying from the court’s 1971 decision in a similar case would require judges to mysteriously divine the intent of politicians.

“We’re here all the time trying to figure out what the Legislature said,” Wiggins responded. “That’s why we exist.”

AFSCME attorney Mark Hedberg argued that the limiting language in the bill was limiting enough.

Sections stricken by Branstad included definitions requiring that “field offices” have employees, rather than provide mere electronic access, and a sentence that Workforce Development “shall not reduce the number of field offices below the number of field offices being operated as of Jan. 1, 2009.”

The tie to Jan. 1, 2009, comes two sentences after the bill’s section setting aside $8.67 million for field offices. The meaning is obvious, Hedberg argued: “If we’re going to give you $8.6 million, here’s how we want it spent.”

However, Chief Justice Mark Cady noted that the paragraph was missing more blatant “provided that” language that would have placed a clearer condition on the money: “Shouldn’t we have a standard requiring the Legislature to use that type of language if it’s available?”