OFFICES AND OFFICERS ‑- STATE ‑- GOVERNOR ‑- LEGISLATURE ‑- VETO ‑- TIME OF PASSAGE OF BILL OVERRIDING GUBERNATORIAL VETO
The ability of the first extra special session of the 1975 legislature to override a gubernatorial veto of a bill passed by the legislature prior to 1975 is not clear; accordingly, rather than attempting to cause any such previously vetoed bills to become law by a simple veto override, it is suggested that in order to remove any doubts as to the validity of the resulting laws the legislature should, instead, pass those laws again in the ordinary manner.
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March 21, 1975
Honorable Irving Newhouse
State Representative, 15th District
Olympia, Washington 98504 Cite as: AGLO 1975 No. 34
Just prior to the adjournment of the 1975 regular session of the state legislature you asked for our opinion on a question which we paraphrased, in responding, as follows:
"When an act passed by the legislature is vetoed by the governor under Article III, § 12 of the Washington constitution, and is returned with his objections to the house in which it originated as is provided for therein, is the power of the legislature to override the veto dependent upon that power being exercised during the same legislative session so as to preclude it from overriding the veto unless it does so before the end of the session?"
In AGLO 1975 No. 26 [[to Irving Newhouse, State Representative on March 12, 1975, an Informal Opinion AIR-75526]], which was written to you immediately following our receipt of your request, we answered that question in the negative ‑ in effect concluding that the power of the legislature to override a gubernatorial veto is not lost by the failure of the legislature to exercise that power during the same session as the veto itself occurred. In so concluding, however, we assumed from the question you had asked that we were dealing with a situation involving a bill initially passed by the legislature during the particular session then in existence (i.e., the 1975 regular session) and later vetoed by the governor and returned to the legislature during that same session.1/ The issue, as we understood it, was whether [[Orig. Op. Page 2]] the power of the legislature to override the veto was dependent upon that power being exercised before the session was adjourned ‑ even though it had already been announced by the governor that a special session was due to commence on the day following adjournment.
Subsequently, however, it has become apparent that our opinion has been read by many to mean that the current special session of the legislature may similarly override any prior gubernatorial vetoes of bills passed by the legislature in any prior sessions regardless of when such vetoes occurred. In order to set the matter straight, we believe it now necessary to write you again and, in effect, respond to the following clarifying question:
Does AGLO 1975 No. 26 mean that the current special session of the Washington legislature may override any prior gubernatorial vetoes of bills passed by the legislature in any prior sessions regardless of when such vetoes occurred?
We answer this question in the manner set forth in the following analysis.
Insofar as is here material, Article III, § 12 of our state constitution provides that:
"Every act which shall have passed the legislature shall be, before it becomes a law, presented to the governor. If he approves, he shall sign it; but if not, he shall return it, with his objections, to that house in which it shall have originated, which house shall enter the objections at large upon the journal and proceed to reconsider. If, after such reconsideration, two-thirds of the members present shall agree to pass the bill it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and if approved by two-thirds of the members present, it shall become a law; but in all such cases the vote of both houses shall be determined by the yeas and nays, and the names of the members voting for or against the bill shall be entered [[Orig. Op. Page 3]] upon the journal of each house respectively. If any bill shall not be returned by the governor within five days, Sundays excepted, after it shall be presented to him, it shall become a law without his signature, unless the general adjournment shall prevent its return, in which case it shall become a law unless the governor, within twenty days next after the adjournment, Sundays excepted, shall file such bill with his objections thereto, in the office of secretary of state, who shall lay the same before the legislature at its next session in the like manner as if it had been returned by the governor. . . ."
Prior to our issuance of AGLO 1975 No. 26, we of course had only a very limited time in which to conduct any legal research with respect to the question which we understood we were then being asked. We did, however, at that time find what our subsequent, more thorough, search for judicial precedent has disclosed to be the only case at all in point, Woessner v. Bullick, 176 Ind. 166, 93 N.E. 1057 (1911). Nevertheless, we did not believe it necessary to cite that case in our earlier opinion because, as we will now note in discussing it fully, it dealt with an entirely different factual pattern than that which we understood to be involved in your prior question.
Insofar as is material, Article V, § 14 of the Indiana constitution at the time of theWoessner case read the same as does our Article III, § 12,supra. The case itself involved a bill passed by the 1907 regular session of the Indiana legislature which was transmitted to the governor just prior to the adjournment of that session and was then vetoed by him following that adjournment. Like ours, the Indiana constitution stated that in such a case (i.e., where the general adjournment shall prevent its return) the bill, together with the governor's objections thereto, is to be filed in the office of the secretary of state,
". . . who shall lay the same before the legislature at its next session in a like manner as if it had been returned by the governor . . ."
The secretary of state, however, neglected to carry out his responsibilities under this provision, inasmuch as the "next" session of the Indiana legislature was, in fact, [[Orig. Op. Page 4]] a brief special session called by the governor during the fall of 1908 ‑ and the secretary of state apparently had his mind fixed on the nextregular session. Because of this, no action on the bill was taken by the legislature at that special session. Later, however, at its next regular session in the winter of 1909, the legislature did receive the bill and veto message from the secretary of state and promptly responded by overriding the veto. Following this, a taxpayer's action was commenced to enjoin certain actions being taken under the purportedly resulting law on the ground that the bill had been vetoed and the veto had never properly been overridden.
The Indiana supreme court, by a split decision in the case above cited, agreed with the plaintiff and held that the veto override was invalid because any such action was required to be taken at the immediately following legislative session or never ‑ at least as that court read its state constitution. However, it is interesting to note that neither the majority nor the dissenting opinions contained any discussion whatsoever with regard to this issue. Apparently, there was no dispute between the parties as to this point and the only contention which was made by the defendant in support of the validity of the veto override was that the legislature should not be faulted for the failure of the secretary of state to have returned the bill in question to the legislature during its brief, 1908, special session. The majority disagreed with this argument while the dissenters felt it to have merit.
This, as we have above indicated, is the only case of this or any other state which we have been able to find ‑ either before our issuance of AGLO 1975 No. 26 or since then ‑ that is at all in point. We are no more persuaded now than we were when we first discovered the case that it is determinative, or even persuasive, with respect to the question which we thought we were dealing with in that opinion. Accordingly, we now reaffirm the conclusion stated therein insofar as any bills passed by the legislature, and vetoed by the governor, during the recently adjourned 1975 regular session of the Washington legislature are concerned. It is our opinion that the legislature retains the power, during its current special session, to reconsider those bills and either accept the governor's action or pass such bills over his veto.
On the other hand, irrespctive of whether or not we would agree, totally, with the majority decision of the Indiana court in Woessner v. Bullick, supra, we must in any other factual context obviously acknowledge its existence and its possible persuasive value. Accordingly, while we are [[Orig. Op. Page 5]] still not prepared to say with any degree of certainty that bills both passed and vetoed before the 1975 regular session may not now be passed by the current special session over the governor's veto, we would at this time caution that discretion may be the better part of valor. If the legislature has the votes necessary to override a veto it obviously has enough votes to pass the same law again, and to override any ensuing veto as soon as it occurs. Therefore, rather than attempting to cause such previously vetoed bills to become law by a simple veto override, we would suggest that in order to remove any doubts as to the validity of the resulting laws the legislature should, instead, pass those laws again in the ordinary manner and then await, and at an appropriate time react to, any reoccurrence of a gubernatorial veto.
It is hoped that the foregoing will be of some assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/Specifically, we understood that your question related to Senate Bill No. 2011, pertaining to school district holidays.