April 21, 2023
TO THE MISSISSIPPI HOUSE OF REPRESENTATIVES:
GOVERNOR’S PARTIAL VETO MESSAGE FOR HOUSE BILL 603
I am returning House Bill
603: “AN ACT TO DIRECT THE STATE TREASURER TO TRANSFER CERTAIN AMOUNTS FROM THE
CAPITAL EXPENSE FUND TO THE 2023 LOCAL IMPROVEMENTS PROJECTS FUND, THE 2022 IHL
CAPITAL IMPROVEMENTS FUND, THE 2022 COMMUNITY AND JUNIOR COLLEGES CAPITAL
IMPROVEMENTS FUND, THE 2022 STATE AGENCIES CAPITAL IMPROVEMENTS FUND, THE 2022
DEPARTMENT OF FINANCE AND ADMINISTRATION STATEWIDE REPAIR AND RENOVATION FUND,
THE ACE FUND, THE MISSISSIPPI SITE DEVELOPMENT GRANT FUND, THE ECONOMIC
DEVELOPMENT HIGHWAY FUND, THE MISSISSIPPI INDUSTRY INCENTIVE FINANCING
REVOLVING FUND, THE ANIMAL DISEASE RESPONSE FUND, THE ECONOMIC
DEVELOPMENT AND INFRASTRUCTURE FUND, THE MISSISSIPPI MAJOR ECONOMIC IMPACT
AUTHORITY FUND, THE CEF - DPS HEADQUARTERS BUILDING FUND, THE DESOTO COUNTY
INFRASTRUCTURE IMPROVEMENTS FUND, THE DESOTO COUNTY INFRASTRUCTURE IMPROVEMENTS
FUND, AND THE 2023 DECLARATION OF INDEPENDENCE CENTER FOR THE STUDY OF AMERICAN
FREEDOM FUND; TO DIRECT THE STATE FISCAL OFFICER TO TRANSFER A CERTAIN AMOUNT
FROM THE 2022 LOCAL IMPROVEMENTS PROJECTS FUND TO THE 2023 LOCAL IMPROVEMENTS
PROJECTS FUND, AND TRANSFER A CERTAIN AMOUNT FROM THE 2022 LOCAL IMPROVEMENTS
PROJECTS FUND TO THE CAPITAL EXPENSE FUND; TO DIRECT THE STATE FISCAL OFFICER
TO TRANSFER CERTAIN AMOUNTS FROM THE STATE GENERAL FUND TO THE MEMA HAZARD
MITIGATION FUND, AND THE MARCH 2023 STORM HOUSING MISSION FUND; TO DIRECT THE
STATE FISCAL OFFICER TO TRANSFER A CERTAIN AMOUNT FROM THE CORONAVIRUS STATE
FISCAL RECOVERY FUND TO THE CORONAVIRUS STATE FISCAL RECOVERY LOST REVENUE
FUND; TO DIRECT THE STATE FISCAL OFFICER TO TRANSFER A CERTAIN AMOUNT FROM THE
2022 STATE AGENCIES CAPITAL IMPROVEMENTS FUND TO THE MISSISSIPPI MILITARY
DEPARTMENT READINESS CENTERS FUND; TO DIRECT THE STATE FISCAL OFFICER TO
TRANSFER A CERTAIN AMOUNT FROM THE GULF COAST RESTORATION FUND TO THE 2023
GULFPORT COMMERCE CORRIDOR FUND; TO AMEND SECTION 29-17-6, MISSISSIPPI CODE OF
1972, TO DELETE THE 2022 PROJECT FOR THE MILITARY DEPARTMENT FROM THE 2022
STATE AGENCIES CAPITAL IMPROVEMENTS FUND; TO CREATE THE FOLLOWING NEW SPECIAL
FUNDS IN THE STATE TREASURY: THE 2023 LOCAL IMPROVEMENTS PROJECTS FUND, THE
2023 MISSISSIPPI MILITARY DEPARTMENT READINESS CENTERS FUND, THE MARCH 2023
STORM HOUSING MISSION FUND, THE ANIMAL DISEASE RESPONSE FUND, THE 2023 DESOTO
COUNTY INFRASTRUCTURE IMPROVEMENTS FUND, THE 2023 LAFAYETTE COUNTY
INFRASTRUCTURE IMPROVEMENTS FUND, THE 2023 GULFPORT COMMERCE CORRIDOR FUND, AND
THE 2023 DECLARATION OF INDEPENDENCE CENTER FOR THE STUDY OF AMERICAN FREEDOM
FUND; TO DIRECT THE STATE FISCAL OFFICER TO MAKE DISBURSEMENTS FROM THE 2022
IHL CAPITAL IMPROVEMENTS FUND, THE 2022 COMMUNITY AND JUNIOR COLLEGES CAPITAL
IMPROVEMENTS FUND AND THE 2022 STATE AGENCIES CAPITAL IMPROVEMENTS FUND FOR
CERTAIN PROJECTS; TO DIRECT THE STATE FISCAL OFFICER TO MAKE DISBURSEMENTS FROM
THE 2022 DEPARTMENT OF FINANCE AND ADMINISTRATION STATEWIDE REPAIR AND
RENOVATION FUND TO PAY THE COSTS OF CERTAIN INFRASTRUCTURE IMPROVEMENTS,
GENERAL REPAIRS AND RENOVATIONS; TO DIRECT THE STATE FISCAL OFFICER TO MAKE DISBURSEMENTS
FROM THE 2023 LOCAL IMPROVEMENTS PROJECTS FUND FOR CERTAIN PROJECTS; TO
AUTHORIZE THE STATE TREASURER TO BORROW FUNDS FROM THE WORKING
CASH-STABILIZATION RESERVE FUND TO OFFSET TEMPORARY CASH FLOW DEFICIENCIES IN
THE GF OBLIGATIONS FUND; TO AMEND SECTION 17-23-21, MISSISSIPPI CODE OF 1972,
TO PROVIDE THAT UPON THE REQUEST OF THE COMMISSIONER OF INSURANCE, THE STATE
FISCAL OFFICER SHALL TRANSFER THE REQUESTED AMOUNTS FROM THE ANNUAL FIRE FUND
TO THE RURAL FIRE TRUCK FUND, THE SUPPLEMENTARY RURAL FIRE TRUCK FUND, THE
MUNICIPAL FIRE PROTECTION FUND AND/OR THE COUNTY VOLUNTEER FIRE DEPARTMENT
FUND; TO AMEND SECTION 39-5-145, MISSISSIPPI CODE OF 1972, TO INCREASE THE
MAXIMUM AMOUNT OF FUNDS IN THE MISSISSIPPI COMMUNITY HERITAGE PRESERVATION
GRANT FUND THAT MAY BE ALLOCATED FOR CERTAIN TYPES OF PROJECTS; TO REVISE THE
PURPOSES FOR WHICH MONIES IN THE MISSISSIPPI COMMUNITY HERITAGE PRESERVATION
GRANT FUND MAY BE USED; TO AMEND SECTION 57-1-601, MISSISSIPPI CODE OF 1972, TO
REVISE CERTAIN PROVISIONS REGARDING GRANTS MADE UNDER THIS SECTION; TO AMEND
SECTION 1, CHAPTER 480, LAWS OF 2021, TO REVISE THE PURPOSES FOR WHICH THE PROCEEDS
OF BONDS AUTHORIZED TO BE ISSUED FOR THE UNIVERSITY OF SOUTHERN MISSISSIPPI MAY
BE USED; AND FOR RELATED PURPOSES” partly approved and partly not approved
pursuant to Article 4, Section 73 of the Mississippi Constitution of 1890 as an
“exercise of the authority endowed the office of the Governor by the people of
Mississippi in our Constitution.” Governor
Reeves v. Representative Gunn and
Representative White, 307 So.3d 436, 439-442 (Miss. 2020).
Article 4, Section 72 of the Mississippi
Constitution of 1890 (“Constitution”), commonly referred to as the Presentment
Clause, prescribes the exclusive method for a bill to become law. The
Clause is modeled after the Presentment Clause in the United States
Constitution, a clause adopted by the Framers to clearly spell out the
procedures for adopting laws and prevent factions from attempting to depart
from this constitutional law-making process. Specifically, upon
presentment to the Governor of a bill that has been passed by both legislative
chambers, the Governor may (a) sign the bill within 5 days of presentment, and
it becomes law; (b) return the bill without signature, and such bill will
become law as if he had signed it; or (c) return the bill with his objections
(veto) to the chamber of origin, and such bill will become law if it is
subsequently passed by each chamber upon a two-thirds vote. Additionally,
if the Governor is unable to return a bill by the 5th legislative day after presentment
due to the adjournment of the Legislature, the Governor may return the bill
with or without his signature, or with his objections within 15 days of
presentment.
The Constitution authorizes only four
types of bills: revenue bills, appropriations bills, general bills and local
and private (special) bills. Revenue bills generate money to fund the
operation of state government and require passage on a 3/5th vote of each legislative
chamber. Appropriations bills fix the maximum sum of money that may be
drawn from the state treasury for a particular use, and such use may be
conditioned by the authorizing legislation. General bills create laws of
general application--that is they (a) operate equally upon all persons in a
particular class or in a like situation, (b) are reasonable and (c) are based
upon a real distinction. Local and private bills create laws affecting
only a single person, group of people or geographic area of the state, and either
grant a unique benefit or power not available under a general law or absolve a
legal responsibility.
In addition, the Constitution imposes
several other limitations on the legislative process including the
following: (a) Article 4, Section 67 prohibits the introduction of any
new bill during the last three days of a legislative session; (b) Article
4, Section 68 prohibits the passage of any appropriations or revenue bill
during the last five days of a legislative session; and (c) Article 4, Section
69 prohibits the engrafting of any other type of legislation onto an
appropriations bill. Such prohibition on engrafting forecloses all
arguments that a general law has been amended by implication through the
adoption of an appropriations bill. In the words of the United States
Supreme Court: “[w]ithout such an assurance, every appropriations measure would
be pregnant with prospects of altering substantive legislation, repealing by
implication any prior statute which might prohibit the expenditure. . . . [and]
lead to the absurd result of requiring Members to review exhaustively the
background of every authorization before voting on an appropriation. . .
.” TVA v. Hill, 437 U.S.
153, 190 (1978).
With this
Constitutional framework in mind, it appears that House Bill 603 has not been
lawfully presented to the Governor. Despite
its drafters’ use of words such as “spend,” “pay,” “used,” “expended,”
“disbursed,” and “transfer(red),” as opposed to “appropriated,” House Bill 603
indisputably fixes the maximum sum of money that may be drawn from the state
treasury for hundreds of particular uses. Thus, House Bill 603 is an appropriations
bill. One need look no further than
Section 28 of the bill--appropriating more than $370 million to various
entities to fund more than 350 separate and distinct projects across the
state--to confirm this reality. In Reeves
v. Gunn, the Mississippi Supreme Court rejected arguments that
attempted to elevate form over substance and held that when a bill appropriates
monies to multiple distinct and separate entities, each appropriation is
separate and subject to the Governor’s line item veto authority as an “exercise
of the authority endowed the office of the Governor by the people of
Mississippi in [Article 4, Section 73 of] our Constitution.” 307 So.3d
436, 439-442 (Miss. 2020). The
Mississippi Supreme Court further reasoned, the removal of any such separate
and distinct appropriation would not affect any other appropriation in the
bill, as such appropriation could be taken from the bill without affecting the
others, which could be separated into different parts complete in themselves. Id.
Because House Bill 603 plainly is an
appropriations bill, Article 4, Section 68 of the Constitution prohibits its
passage during the final five days of the 2023 Regular Legislative
Session. The final Conference Report for HB 603 was adopted by both the
House and Senate on Saturday, April 1, 2023. Assuming both chambers are
afforded the benefit of the extension of the 2023 Regular Legislative Session
pursuant to House Concurrent Resolution 61, the 2023 Legislative Session stood
Sine Die at 12:00 midnight, Wednesday, April 5, 2023—just four legislative days
after passage of HB 603. Thus, the passage of HB 603 violates Article 4,
Section 68 of the Constitution.
Additionally, multiple pieces of general
legislation have been engrafted onto House Bill 603, an appropriations
bill. By way of example, HB 603 creates multiple funds within the State
Treasury, transfers state funds between accounts within the State Treasury, and
amends various general statutes. Thus, HB 603 also violates Article 4, Section
69 of the Constitution.
The presence of these Constitutional
defects calls into serious question whether House Bill 603 has been lawfully
presented to the Governor. Despite these questions, questions that can only be
finally resolved by the Mississippi Supreme Court, HB 603 contains a number of critical
provisions. Specifically, HB 603 provides
$6.5 million to MEMA’s disaster trust fund and an additional $7 million to fund
MEMA’s emergency temporary housing mission both critical to facilitate the
state’s disaster recovery efforts in the wake of the deadly March 24th
tornadoes. Additionally, HB 603
appropriates $4 million to the Declaration of Independence Center for the Study
of American Freedom to promote scholarly research and civic education by
exploring the principles of freedom expressed in our country’s founding
documents. I can think of few more worthy expenditures of state funds than to
support classes, activities and internships that advance students’
understanding of American freedom at both the secondary and post-secondary
level of education.
Finally, HB 603 provides funding for much-needed capital improvement/repair
projects at various state entities, and to MDAs various industry incentive
programs.
Mindful of the need for much of the funding authorized
by House Bill 603 and preserving the legal arguments raised in this Message, I
will choose to treat HB 603 as a properly presented appropriations bill. In treating HB 603 as such, I fully
understand that given the opportunity, the Mississippi Supreme Court may opine
that this bill has not been properly presented to the Governor.
Article 4, Section 73 of the Constitution
states: “The Governor may veto parts of any appropriation bill, and approve
parts of the same, and the portions approved shall be law.”
I am vetoing Section 28(m) (Lines 859-861)
providing a $1,000,000 appropriation to the City of Jackson, Mississippi to pay
costs associated with renovations and upgrades for the Jackson Planetarium.
I am also vetoing Section 28(bz) (Lines 1076-1079)
providing a $500,000 appropriation to the City of Greenville, Mississippi to
pay costs associated with repairs and renovations to Frisby Park, Greenville
Municipal, Maude Bryan Park and Rounds Park.
I am also vetoing Section 28(gv) (Lines 1531-1535)
providing a $500,000 appropriation to the Mississippi Development Authority for
the purpose of providing funding to WISPR Systems in Batesville, Mississippi,
for research and development to expand its current small Unmanned Aircraft
Systems (sUAS) manufacturing capabilities in Mississippi.
I am also vetoing Section
28(hv) (Lines 1627-1630) providing a $300,000 appropriation to the Mississippi
Department of Finance and Administration to pay costs associated with the
program established under Section 3 of House Bill No. 419, 2023 Regular
Session.
I am also vetoing Section 28(jl) (Lines 1761-1763)
providing a $600,000 appropriation to Greene County to assist in paying costs
associated with the rehabilitation and repair of the Greene County Rural Events
Center.
Finally, I am vetoing Section 28(kp) (Lines
1852-1854) providing a $1,000,000 appropriation to the City of Jackson,
Mississippi to assist in paying costs associated with repairs, renovations and
upgrades to the Jackson Planetarium.
The removal of these separate,
distinct and complete appropriations does not affect any other appropriations
in House Bill 603. See Reeves,
307 So.3d at 442.
Respectfully submitted,
TATE REEVES
GOVERNOR