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AGO 1995 No. 12 - October 04, 1995
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Christine Gregoire | 1993-2004 | Attorney General of Washington

VETO - LEGISLATURE - GOVERNOR - AUTHORITY OF LEGISLATURE TO CONSIDER OVERRIDE OF VETO AT NEXT REGULAR SESSION, WHEN A SPECIAL SESSION HAS BEEN HELD SINCE THE VETO OCCURRED

When the governor vetoes a bill after the legislature has adjourned, and transmits the vetoed bill to the secretary of state for delivery to the legislature at its next session pursuant to the constitution, and the legislature next meets in a special session, the legislature may choose to act on overriding the veto during the special session, but its failure to consider an override during the special session does not preclude taking the matter up at the next ensuing regular legislative session.


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                                                                 October 4, 1995

The HonorableDan McDonald
Washington State Senator
P. O. Box 40482
Olympia, WA  98504-0482                

                                                                                                Cite as:  AGO 1995 No. 12

Dear Senator McDonald:

            You requested an opinion on the following question, noting the urgent need for an answer in light of a possible call for a special session of the legislature in the near future:

            When an act passed by the legislature is vetoed by the governor under article 3, section 12 of the state constitution, and is returned with his objections to the secretary of state as is provided for therein, is the power of the legislature to override the veto dependent upon that power being exercised before adjournment of the very next session of the legislature subsequent to the veto action, including a special session called for some purpose or purposes other than consideration of the vetoed bill in question?

                                                               BRIEF ANSWER

            We conclude that the legislature is not constitutionally required to override a vetoed bill in a special session convened pursuant to article 3, section 7 of the Washington Constitution.  The legislature can reconsider a vetoed bill for the purposes of overriding the veto at least as late as the next ensuing regular session of the legislature.  This is our considered opinion after examining the evident intent of the original text of the Washington Constitution, which intent we find unchanged by subsequent amendments.  We note, however, that there are no Washington court cases which address the meaning of "next session" as that phrase is used in article 3, section 12, of the Washington Constitution, or which address the time frame in which the legislature may act to reconsider a vetoed bill.

                                                                    ANALYSIS

Previous Opinions

            Your question is closely related to the questions answered in two Attorney General Letter Opinions written in 1975.[1]  In AGLO 1975 No. 26, the governor had returned one or more vetoed bills to the legislature just before the adjournment of the 1975 regular session, and Representative Irving Newhouse asked if the legislature was required to exercise its override power before the end of the regular session, or could wait to do so in a special session expected to begin soon after.  AGLO 1975 No. 26 concluded that the legislature was not constitutionally required to override during the regular session, reasoning from the absence of any specific constitutional time limit on an override action.

            Only a few days later, the office issued AGLO 1975 No. 34, also addressed to Representative Newhouse, in which we partially reconsidered and expanded upon the reasoning of AGLO 1975 No. 26.  In the second opinion, we cautiously reaffirmed our view that the legislature is not limited to taking override action in the same session in which the vetoed bill is returned to the legislature, but noted the existence of case law in other states to the contrary, and recommended, as a more prudent course of action, that the legislature re-pass questionable legislation to avoid unnecessarily confronting a constitutional question.

            Your question differs from the 1975 situation in that the earlier opinions deal with a vetoed bill returned to the legislature during the session in which it had been passed, while your current question is about a bill vetoed after the end of the session and, as required by the constitution in such cases (article 3, section 12), transmitted by the governor to the secretary of state.  Furthermore, although the critical constitutional language on veto overrides dates from the original 1889 constitution, the section relating to the frequency of legislative sessions (article 2, section 12) has been amended since our 1975 opinions were written.

1889 Constitution

            We begin our analysis by examining the context of the phrase "next session" in the original text of the Washington Constitution.  The exercise of the veto power, and of the legislative override of a veto, was set forth as follows in the original 1889 constitution:

            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 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 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 ten 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 like manner as if it had been returned by the governor.  If any bill presented to the governor contain several sections or items, he may object to one or more sections or items while approving other portions of the bill.  In such case he shall append to the bill, at the time of signing it, a statement of the section, or sections; item or items to which he objects and the reasons therefor, and the section or sections or sections, item or items so objected to, shall not take effect unless passed over the governor's objections, as hereinbefore provided.

Wash. Const. art. 3, § 12 (1889 version).  [Emphasis added.]

            The effect of this language is to set up a number of possible courses for a bill.  First, the governor can sign the bill, in which case it becomes law.  Second, the governor can veto the bill in its entirety, in which case the bill does not become law unless the legislature overrides the veto by a two-thirds majority in each house.  Third, the governor can allow the bill to become law without his signature, simply by allowing the specified time to pass without signing or vetoing it.  Fourth, if the "general adjournment" of the legislature occurs before the expiration of the time allowed for the governor to act on bills, and the governor vetoes the bill, the bill is transmitted to the secretary of state, and then delivered to the legislature "at its next session."  In such a case, the legislature has the opportunity to override at its "next session" (the meaning of that term being at the heart of your question).  Fifth, either during or after the legislative session, the governor can exercise a partial veto, which is subject to override in the same manner as a bill vetoed in its entirety.

            The foregoing language contains nothing explicitly defining the effect of a post-adjournment veto, but the words clearly imply that (1) the governor can veto a bill after the legislature adjourns; (2) if the governor does so, the bill does not become law; but (3) the "next session" of the legislature will have the chance to enact the bill by overriding the veto.  Other than to direct the secretary of state to "lay the same before the legislature at its next session in like manner as if it had been returned by the governor," the constitution does not precisely define the options available to the legislature upon such an occurrence, including the amount of time which could pass before the legislature acts to override the veto.

            The phrase "next session" does have some context as of 1889, however.  The original version of article 2, section 12, after specifying that the first legislature would meet in November 1889 and the second legislature in January 1891, provided that "sessions of the legislature shall be held biennially thereafter, unlessspecially convened by the governor." [Emphasis added.]  Article 3, section 7 provided 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."  From this language, it seems clear that extra sessions of the legislature were expected to be convened relatively rarely[2] and, perhaps more significantly, that they would be convened on "extraordinary occasions" by proclamation of the governor which would state limited purposes for which the legislature would be convened.  Debate among the delegates to the constitutional convention on proposed amendments to this section further evinces the intent that such "extraordinary sessions" be limited in nature.  An amendment to section 7 was proposed to state that the legislature "shall have no power when so convened to act upon any other matter not so stated in proclamation".  Journal of the Washington State Constitution Convention - 1889, pp. 566-67 (Beverly P. Rosenow, ed. 1962).  Opponents of the unsuccessful amendment argued that "important matters might come up between the date of the Governor's call and the meeting of the Legislature," and therefore this strict limitation should be rejected.  There is nothing in the debate, so far as we have been able to ascertain, that the framers of the Washington Constitution intended these extraordinary sessions to be more expansive by requiring that vetoes be considered at an extraordinary session.[3]   

            The infrequency and the unusual nature of extra sessions indicates that the framers of the constitution probably were not contemplating such extraordinary sessions when they provided that the secretary of state would lay a vetoed bill before the legislature "at its next session."[4]  Thus, we would read the phrase "next session" as defined in the 1889 constitution to mean the nextconstitutionally established session occurring in January of the next odd-numbered year after the veto occurs.  This would ordinarily have been almost two years after the veto, and would have meant that the "next session" was actually equivalent to the "next legislature," as a general election would have occurred before the "next session" convened.         

Amendment 62 - 1974

            In 1974, the people approved an amendment to article 3, section 12 of the state constitution, revising the veto power of the governor in several ways.  The change which received the most public attention (judging from the voters' pamphlet statements) was a revision of the governor's partial veto power, replacing the original "section or item" language with language limiting the governor to the veto of whole sections of a bill except for an "item" veto in appropriation bills.  These changes are not relevant to our discussion here.

            The 1974 amendment did, however, also add the following proviso to the sentence concerning veto overrides:

            Provided, That within forty-five days next after the adjournment, Sundays excepted, the legislature may, upon petition by a two-thirds majority or more of the membership of each house, reconvene in extraordinary session, not to exceed five days duration, solely to reconsider any bills vetoed.

[Emphasis in the original.]  Thus, for the first time, the legislature had the option of calling itself into extraordinary session for the specific purpose of voting to override vetoes.[5]  It is worth noting that the 1974 amendment made no other changes to the 1889 scheme:  (1) it did not change the original language referring to the "next session"; (2) it did notrequire that the legislature have a special session for overrides, merely permitted it, and required a super-majority just to convene the legislature for this purpose; (3) it did not impose any explicit time limits on veto overrides.

            From what Amendment 62 did as well as from what it did not do, we conclude that the authority of the legislature to take up a veto and override it at the "next session" as defined in the original constitution was left unchanged by the 1974 amendment.  The legislature was simply granted the additional option of calling itself into extraordinary session for the specific purpose of reconsidering vetoed bills.  There is nothing in the current language of article 3, section 12, to indicate that the legislature, by failing to exercise its power to convene an extraordinary session for this purpose, loses the opportunity to take up the vetoed bills at its "next session" as defined in the constitution.[6]

Amendment 68 - 1979

            Although article 3, section 12 has not been amended since 1974, a 1979 amendment extensively rewrote article 2, section 12, concerning the frequency and duration of legislative sessions.  In place of the 1889 language providing for a session in January 1891 and every two years thereafter, the 1979 amendment provided for an annual "regular" session of the legislature (with a duration of 105 days in odd-numbered years and 60 days in even-numbered years).  It also provided for "special" sessions of up to 30 days duration, which could either be convened by (1) proclamation of the governor pursuant to article 3, section 7 (language left unchanged by the 1979 amendment), or (2) the affirmative vote of two-thirds of the membership of each house.

            Amendment 68 also clarified the extent to which special sessions are limited to a specific agenda.  The current language provides that if a special session is convened by the governor's proclamation, the specification of purpose by the governor "shall be considered by the legislature but shall not be mandatory."  By contrast, if the legislature calls itself into session by resolution, the constitution now provides that such a session "shall consider only measures germane to the purpose or purposes expressed in the resolution, unless by resolution adopted during the session upon the affirmative vote in each house of two-thirds of the members elected or appointed thereto, an additional purpose or purposes are expressed."

            Amendment 68 left untouched the constitutional language concerning vetoes and veto overrides.  We conclude therefore that neither Amendment 62 nor Amendment 68 operated to change the original constitutional scheme, which allowed the legislature to consider veto overrides at its "next session."  The "special session" language in Amendment 68 underscores a theme present in the original constitution:  that "extraordinary" and "special" sessions of the legislature are typically convened for specific limited purposes.  Unless the override of vetoes is one of the specific purposes for the extra session, we find no intent to require the legislature, in addition to taking up the stated business of its extra session (which in some cases might be a truly emergent matter), to take up the matter of overriding pending vetoes, or forever lose the chance to do so.[7]  In the absence of clear language to the contrary, the legislature should be able to determine its own agenda during extraordinary session, and to make its own orderly arrangements for the consideration of vetoes at the time which best suits the circumstance.[8]

Conclusion and Final Note of Caution

            For the reasons stated above, we would follow the reasoning of the two 1975 opinions and conclude that the legislature is not required to override 1995 vetoes at any special session of the legislature which might be called before the beginning of the 1996 regular session.  If the governor calls a special session, the legislature has the constitutional power to act on veto overrides during such a session, but would not be precluded from waiting until the 1996 regular session to take up the vetoed bills.  Having said so, we should reiterate some of the points made in AGLO 1975 No. 34.  We cannot guarantee our analysis would not be challenged in the courts.[9]  The legislature could insulate itself from constitutional challenge by, instead of overriding a 1995 veto, re-passing the same (or similar) legislation in the 1996 session.  Such a bill would, of course, go to the governor for approval or veto.  If vetoed in whole or in part, the 1996 session of the legislature would have the opportunity to override the veto without raising any of the constitutional questions presented by directly overriding a 1995 veto in 1996 with an intervening special session.

            We trust the foregoing will be of assistance to you.

                                                                        Sincerely,

                                                                        JAMES K. PHARRIS
                                                                        Senior Assistant Attorney General
                                                                        (360) 664-3027


    [1]  Attorney General Letter Opinions were issued between 1975 and 1983 to denote a type of opinion which this office considered official but which were not personally approved by the attorney general or published as formal Attorney General Opinions.  The AGLO designation is no longer used.  It is current policy to follow the reasoning of an AGLO previously issued unless changes in the law have rendered it obsolete, or there are compelling reasons for reconsideration.

    [2]  It appears that in the first fifty years of statehood, extraordinary sessions of the legislature were convened only four times:  in 1901, 1909, 1920, and 1933.

    [3]  We reviewed contemporary newspaper reports of the Constitutional debate, but there was no reported discussion on the "next session" issue. 

    [4] We understand that the secretary of state's practice, extending back as far as the memory of current employees, has been to transmit vetoed bills to the legislature as soon as it comes back into session following the veto, whether the next session is a regular or special session.  This seems consistent with the constitution, which probably assigned this task to the secretary of state as the only officer (at the time of statehood) who maintained a permanent office at the state capital (the clerks and other officers of the legislature served only during the legislative session at the time).  As soon as the legislature returns to Olympia for business, it seems appropriate for the secretary of state to transmit any pending vetoed bills to the legislature.  In any case, although the legislature is not required to take its override action during a special session, we do not mean to imply that the legislature isprecluded from doing so, if it chooses.

    [5]  To our knowledge the legislature has never used this language to convene itself.

    [6]  We do not reach the questions whether, assuming the legislaturedid convene itself in extraordinary session to act on overrides, the legislature would be required to vote on all bills vetoed by the governor, or would be precluded from taking override actions at a later session on vetoes not considered in the extraordinary session.

    [7]           The enactment of Amendment 68 does raise an additional question about legislative veto overrides under current law, however:  should "next session" as used in article 3, section 12 now be interpreted to mean the next "regular" (i.e.annual) session of the legislature, instead of the next [biennial] session envisioned by the original constitution?  AGLO 1975 No. 26 implied that there might be no time limit on veto overrides, raising the possibility that the legislature could override a veto years or decades after the governor acted.  AGLO 1975 No. 34 cautions that the courts would not likely adopt such an expansive reasoning.  We do not try to decide here whether the legislature has an outer time limit beyond the next regular session, or what it is.

    [8]  Our reasoning on this point is consistent with that of the Attorney General of Connecticut, who decided on an analogous point that a special session of the legislature was not required to act on pending nominations to public office.  Letter to Dalila Soto, Sept. 20, 1979 (1979 WL 42226, Conn. A.G.).

    [9]  As we pointed out in AGLO 1975 No. 34, the only court which has ever considered language like that under discussion here is the Indiana supreme court inWoessner v. Bullick, 176 Ind. 166, 93 N.E. 1057 (1911).  In that case, the governor had vetoed a bill after the end of the 1907 session of the Indiana legislature and, because of constitutional language essentially the same as our own, had transmitted it to the secretary of state to be re-transmitted to the legislature at its next session.  A short special session was held in 1908, during which the secretary of state neglected to transmit the pending vetoed bill to the legislature.  The veto was then overridden in the 1909 session.  A taxpayer action was brought to declare the override unconstitutional, and was ultimately successful.  All parties appeared to concede (contrary to the analysis above) that "next session" included any extraordinary convening of the legislature as well as the regular biennial meeting, but the minority thought that the legislature was excused from acting because of the secretary of state's failure to deliver the vetoed bill during the 1908 special session, while the majority held that the 1908 session was the only one at which an override vote could have been taken.  We would join AGLO 1975 No. 34 in doubting that the analysis of theWoessner case would be followed today, but it remains the only appellate decision on the point you have raised.  The Indiana Constitution no longer reads like our Constitution on this point.

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