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AGLO 1975 No. 64 - July 21, 1975
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Slade Gorton | 1969-1980 | Attorney General of Washington

OFFICES AND OFFICERS ‑- STATE ‑- GOVERNOR ‑- LEGISLATURE ‑- POWER OF GOVERNOR TO RECALL LEGISLATURE DURING RECESS

When, during a special session of the legislature which has been convened by the governor under Article III, § 7 of the Washington constitution, a concurrent resolution is adopted by which both houses adjourn until a date certain, each with the consent of the other, the governor has the legal authority to convene another special session to be held during the period of such adjournment.

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                                                                    July 21, 1975

Honorable Daniel J. Evans
Governor of the State of Washington
Legislative Building
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1975 No. 64

Dear Governor Evans:

            This is written in response to your request for our opinion on a question which we paraphrase as follows:

            When, during a special session of the legislature which has been convened by the governor under Article III, § 7 of the Washington constitution, a concurrent resolution is adopted by which both houses adjourn until a date certain, each with the consent of the other, does the governor have the legal authority to convene another special session to be held during the period of such adjournment?

            We answer this question in the affirmative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            Article III, § 7 of the Washington constitution provides that the governor,

            ". . . may, on extraordinary occasions, convene the legislature by proclamation, in which shall be stated the purposes for which the legislature is convened."

            Once so convened, however, the legislature may consider and act upon other matters than those specified in the governor's proclamation.  State v. Fair, 35 Wash. 127, 76 Pac. 731 (1904).

            Article II, § 11 of the constitution provides that:

            ". . .  Neither house shall adjourn for more than three days, nor to any place other than that in which they may be sitting, without the consent of the other."  (Emphasis supplied.)

            Conversely, each housewith the consent of the other may recess, or adjourn, until a date certain which is more than three days in the future ‑ without causing the session itself to be at an end.

             [[Orig. Op. Page 2]]   Such action has now been taken by the Washington legislature.  Pursuant to a gubernatorial proclamation in accordance with Article III, § 7, supra, the second extraordinary session of the 44th legislature was convened at 9:00 a.m., on July 18, 1975.  Thereafter, on July 20, 1975, a concurrent resolution was passed by the Senate, and on July 21, 1975, by the House of Representatives, whereby each house adjourned, with the consent of the other, until September 5, 1975.  In view of this action you have now asked whether, in the exercise of your constitutional authority under Article III, § 7 of the constitution, you may convene another special session of the legislature to be held during the period of its present adjournment.

            In responding we must, at the outset, advise you that this is a question which has never before been answered by the courts of our state.  Thus, while we believe that an affirmative answer can be supported on the basis of certain decisions from other jurisdictions which we will note below, the possibility of a contrary ruling by our own state supreme court must be acknowledged in the event that you should act in accordance with this opinion and the validity of your action should later be challenged in court.

            In 1956 the supreme court of Florida, pursuant to its constitutional authority to render advisory opinions,1/ was asked the following question by that state's governor:

            "'. . . should an extraordinary occasion arise, does the Governor have the power and authority to convene the legislature in special session by virtue of Section 8, Article IV, of the State Constitution?'"

            The court's answer to this quesion, as expressed in Advisory Opinion to the Governor, 88 So.2d 131, 132 (1956), was as follows:

            ". . . as so interpreted by us, the answer to your first question is yes.  Section 8, Article IV, of the Constitution, was designed to enable the Governor to invite and request needed legislative action to meet public emergencies during periods when the Legislature is not in regular session under Section 2, Article III, of the Constitution.  If a recess of an extraordinary session  [[Orig. Op. Page 3]] called under Section 3, Article VII, of the Constitution, could preclude a call for a special session under Section 8, Article IV, it is obvious that both the Governor and the Legislature would thereby be incapacitated to deal with a public emergency requiring legislative action, should one arise during such recess.  Obviously such a result was not intended by the framers of the Constitution and the people who approved it."

            Similarly, in an earlier advisory opinion written to the governor of Alabama by the supreme court of that state, In re Opinions of the Justices, No. 10, 222 Ala. 353, 132 So. 311 (1931), it was said:

            "Section 122 of the Constitution authorizes the Governor to convene the Legislature into an extra or special term, and section 76 proscribes the order of business and certain limitations on the Legislature during said special session and also limits the period of said special session.  Therefore, should there be a lengthy recess of the regular term and an emergency or necessity should arise, there is no reason why the Governor cannot convene the Legislature into a special session during the recess of said regular term."

            Accord,In re Opinions of the Justices, No. 74, 249 Ala. 153, 37 So.2d 391 (1947).  Likewise, the supreme court of still another state, Maine, has expressed this same view to its governor in an advisory opinion,In re Question and Answer, 137 Ma. 337, 14 A.2d 11 (1940), in which the Maine court summarily expressed an affirmative answer to the following question:

            "When an extraordinary occasion arises, has the Governor the power and authority to convene the Legislature in special session during a recess of a special session previously called by him?"

            In addition, our research has disclosed two other cases which would appear to lend support to an affirmative answer to your present question.  Most recently, inWalker et al. v. Dunn et al., Tenn., 498 S.W.2d 102 (1972), the supreme court of that state held it to be constitutionally  [[Orig. Op. Page 4]] permissible for a special legislative session to be convened during a recess occurring in a regular session under a constitutional provision2/ stating that the legislature

            ". . . shall be convened at other times by the Governor as provided in Article III, § 9, or by the presiding officers of both Houses at the written request of two-thirds of the members of each House. . . ."

            Addressing itself to the question on the basis of this constitutional language, the Tennessee court said:

            "The language of the Section does not suggest that the phrase 'at other times' means exclusively times when the General Assembly is not in session, although the phrase includes times when it is not in session.  Thus, the reconvening of the General Assembly after a recess or adjournment pursuant to Section 8 is comprehended by the phrase 'at other times'.  The reconvening of the General Assembly in this case, therefore, was in compliance with the requirements of Article II, § 8, of our Constitution."

            And finally, although it is not clear from its reported opinion whether the governor's call for a special session occurred during a recess in a regular session or merely before its final adjournment, the Wisconsin supreme court recently had occasion to express itself similarly in State ex rel. Groppi v. Leslie, 44 Wis.2d 282, 171 N.W.2d 192 (1969).  Addressing itself to a provision of the Wisconsin constitution which is quite similar to our own Article III, § 7, supra, the court, at 171 N.W.2d 200 said:

            "The constitution does not limit the power of the governor to call special sessions only when the legislature is not in session.  The purpose of a special session is to accomplish a special purpose for which it has convened.  To deny the governor the power to call a special session while the legislature is in general session  [[Orig. Op. Page 5]] would in effect deny the governor the right to call the legislature into session to give priority consideration to those items he claims are of immediate statewide concern.  This power of the governor is a part of the checks and balances in our tripartite form of government."

            In placing reliance on these several decisions by the supreme courts of some five of our sister states, it must be acknowledged that four of the rulings we have cited were merely advisory opinions and thus, in all probability, were not extensively briefed or argued within the context of an ordinary, adversary proceeding.  Moreover, even inWalker v. Dunn, supra, and Groppi v. Leslie, supra, where the actual validity of legislative action taken during a questioned special session was at issue, that issue appears to have been secondary to other questions to which the Tennessee and Wisconsin courts, respectively, devoted considerably greater attention.  Thirdly, there is the potentially distinguishing factor that in some of the states involved in the above cases the subjects which may be acted upon by a special legislative session can, constitutionally, be limited by the governor ‑ unlike the situation in our own state under State v. Fair,supra.

            On the other hand, having given due recognition to each of the foregoing potential "weaknesses" in this line of cases from other states, we may conclude this opinion to you on a somewhat more positive note.  So far as we have been able to discern, there are as yet no decided cases from any other states in which a contrary, or negative, answer to the question has been expressed by an appellate court.  In no case have we found such a court holding, for example, that a particular law or other measure passed by a special legislative session was invalid because of a lack of power upon the part of the governor to have called that session during a recess in either a regular or a previously convened special session of the legislature.  Nor, by the same token, has our research disclosed a single instance in which a legislature has attempted to disregard a governor's call for a special session under such circumstances and has had its action sustained by the courts of the state involved.

            Accordingly, in summary, while recognizing again that the question still remains open in our own state, it is our opinion that the cases which we have discussed above do, uniformally, support an affirmative answer to your question.  On the basis of those cases, therefore, we so answer that question.  If you elect to proceed accordingly during the current period of legislative adjournment, it is our opinion  [[Orig. Op. Page 6]] that any law or other measures passed by the legislature in response to its recall by you during such period will be legally defensible against any attack which is based upon a challenge to the validity of the legislative session thus called.

            We trust that the foregoing will be of some assistance to you.

Sincerely,

SLADE GORTON
Attorney General

                                                         ***   FOOTNOTES   ***

1/A power not possessed by the Washington court.

2/Tenn. Const., Article II, § 8.

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