AGO 1973 No. 8 - Mar 6 1973
LEGISLATURE ‑- ADJOURNMENT ‑- REFERENDUM ‑- EFFECTIVE DATE OF ACTS SUBJECT TO REFERENDUM
Under Article II, § 41 (Amendment 26) of the Washington Constitution an act of the legislature which is subject to referendum does not take effect until ninety days after the final adjournment, sinedie, of the session at which it was enacted; a temporary adjournment of each of the two houses with the consent of the other for a set time period agreed to between them under Article II, § 11 of the Constitution will not cause this time period thereby to begin to run as to bills subject to referendum which have theretofore been enacted.
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March 6, 1973
Honorable Arthur C. Brown
State Representative, First District
Olympia, Washington 98504
Cite as: AGO 1973 No. 8
This is written in response to your recent request for our opinion on a question which we paraphrase as follows:
If, during either a regular or special session of the legislature, the House of Representatives and Senate each adjourn with the consent of the other for a set period of time agreed to between them under Article II, § 11 of the state Constitution, but do not adjourn the session, sinedie, will such action cause the ninety-day time period set forth in Article II, § 41 (Amendment 26) of the Constitution with respect to the effective date of acts which are subject to referendum thereby to begin to run as to such bills as have theretofore been enacted?
We answer this question in the negative for the reasons set forth in the following analysis.
[[Orig. Op. Page 2]]
As you know, our state Constitution currently provides for biennial regular sessions of the legislature in each odd-numbered year, together with such special sessions as may be called by the governor. See, Wash. Const., Article II, § 12 and Article III, § 7. While allregular sessions are limited in duration to sixty days by the first of these two sections, it is now settled that this durational limitation is inapplicable tospecial sessions. See,State ex rel. Distilled Spirits Inc. v. Kinnear, 80 Wn.2d 175, 492 P.2d 1012 (1972), in which the state supreme court on this basis upheld the constitutionality of chapter 299, Laws of 1971, Ex. Sess., even though this act was passed several hours after midnight of the 60th day of the 1971 special session.
As a consequence of this decision we understand that some thought is currently being given to the concept of a "continuing legislature"; i.e., a special session convened by the governor which would thereafter remain in session for an extended, and perhaps even indefinite, period of time ‑ subject only to such temporary adjournments of the two houses as are permitted by the following provisions of Article II, § 11 of the Constitution:
". . . 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."
What is here visualized, apparently, is that if either or both houses desire to adjourn formore than three days without adjourning the session itself,1/ each will reciprocally grant its consent to the adjournment of the other through the passage of some form of concurrent resolution in which will be spelled out, among other things, the agreed upon duration of the respective adjournments. In the light of such proposals, however, you have directed our attention to the provisions of Article II, § 41 (Amendment 26) of the Constitution which read as follows:
"No act, law, or bill subject to referendum shall take effect until ninety days after the adjournment of the session at [[Orig. Op. Page 3]] which it was enacted. No act, law or bill approved by a majority of the electors voting thereon shall be amended or repealed by the legislature within a period of two years following such enactment: Provided, That any such act, law or bill may be amended within two years after such enactment at any regular or special session of the legislature by a vote of two-thirds of all the members elected to each house with full compliance with section 12, Article III, of the Washington Constitution, and no amendatory law adopted in accordance with this provision shall be subject to referendum. But such enactment may be amended or repealed at any general regular or special election by direct vote of the people thereon. These provisions supersede the provisions of subsection (c) of section 1 of this article as amended by the seventh amendment to the Constitution of this state." (Emphasis supplied.)
The issue raised by your question is whether the underscored phrase "adjournment of the session" refers only to an adjournment of the session,sinedie, at its ultimate conclusion or whether it can be construed to refer, as well, to such temporary adjournments as might take place during the session ‑ either by the independent action of the two houses for a period of less than three days or by the concurrent action of both houses for a longer period of time in accordance with Article II, § 11, supra.
Insofar as is here material, Article II, § 41 (Amendment 26),supra, is identical to subsection (c) of the 7th Amendment to the state Constitution which was adopted in 1912 to provide for the initiative and referendum. And this provision, in turn, was closely patterned after Article II, § 31 of the original, 1889, state Constitution which provided that:
"No law, except appropriation bills, shall take effect until ninety days after the adjournment of the session at which it was enacted, unless in case of an emergency (which emergency must be expressed in the preamble or in the body of the act) the legislature shall otherwise direct by a vote of two-thirds of [[Orig. Op. Page 4]] all the members elected to each house; said vote to be taken by yeas and nays and entered on the journals."
The purpose of such provisions, which are to be found in the constitutions of many other states as well,2/ is twofold. First, it is generally stated that such provisions (particularly in states not having the referendum in their constitutions) are designed to give the people a sufficient period of time to become acquainted with new laws passed by their legislatures before they take effect. See, 50 Am.Jur., Statutes, § 496, and cases cited. Secondly, where the postponement is tied to the referendum as is presently the case in Washington, its purpose obviously is also that of affording persons opposed to a bill against which a referendum may be brought3/ a reasonable time following adjournment of the session in which to seek and collect their required voters' signatures.4/
Bearing the second of these two purposes in mind, we think it highly significant to note the precision with which the [[Orig. Op. Page 5]] framers of the 7th Amendment expressed themselves in subsection (d) thereof ‑ immediately following the subsection containing the language with which we are presently dealing. Here, in setting the time schedule for the filing of referendum petitions, they said:
". . . Referendum petitions against measures passed by the legislature shall be filed with the secretary of state not later than ninety days afterthe final adjournment of the session of the legislature which passed the measure on which the referendum is demanded. . . ."5/ (Emphasis supplied.)
Obviously there can be no question as to the meaning of this provision. Irrespective of when a measure subject to referendum may have been passed, its opponents are to have ninety days following the final adjournment of the session at which it was passed to obtain their referendum signatures and file their referendum petitions. In view of this it would seem most unlikely that the framers of this constitutional amendment would have used the phrase "adjournment of the session" in subsection (c) in any other sense, for we simply cannot believe that they would have intended to permit an act subject to referendum to become effective at some time prior to the deadline for the filing of these petitions.
In all probability the only reason that the word "final" did not also appear in subsection (c) of the 7th Amendment (and thus is not now present in Article II, § 41,supra) is that this provision was taken from the original text of Article II, § 31 of the Constitution of 1889,supra. There was, however, no need to use the full phrase "final adjournment" in order to clarify the meaning of this section for it had already been construed by the court to mean just that. See,In re Boyce, 25 Wash. 612, 66 Pac. 54 (1901), in which the court, relying upon Article II, § 31,supra, held that where the legislature had enacted a law abolishing the death penalty on March 8, 1901, and then adjourned,sinedie, on March 14, 1901, the act did not become effective until June 12, 1901.6/ It is particularly interesting to note in this [[Orig. Op. Page 6]] case that March 8, 1901, was a Friday while March 14, the day of adjournment, was the following Thursday. In between these two dates both houses adjourned for a weekend commencing at 2:00 p.m., on Saturday the 9th and ending at noon on Monday the 11th, but only the ultimate,sinedie, adjournment of Thursday the 14th was viewed as being of significance in terms of the effective date of the act in question.
Although we are not immediately aware of any past instances where both houses of the legislature, utilizing Article II, § 11, supra, have adjourned for more than three days (each with the consent of the other), it is, as you know, common practice for both houses temporarily to adjourn, independently but concurrently, for shorter periods of time as in theBoyce situation,supra. Yet never has it been suggested that one of these customary "weekend" adjournments is sufficient to cause the ninety-day time period with which we are here concerned to begin running. Instead, it appears uniformly and consistently to have been understood throughout our state's history that this time period only begins to run from the day of final adjournment,sinedie, of the session itself. See, in addition toIn re Boyce,supra, the more recent case of Longview Co. v. Lynn, 6 Wn.2d 507, 527, 108 P.2d 365 (1940), where the Washington court was concerned with the effective date of a certain act relating to municipal bonds that had been passed by an extraordinary session of the legislature which had convened on November 9, 1925, and adjournedsinedie on January 7, 1926. In holding that the act in question, being subject to referendum under Article II, § 1 (Amendment 7),supra, did not become effective until April 7, 1926, the court stated its reasoning as follows:
"A law becomes effective ninety days after the adjournment of the session of the legislature at which it was enacted, from which rule, of course, appropriation bills and emergency acts are excepted. . . ."
Moreover, this view is wholly consistent with all pertinent decisions from other jurisdictions which our research has disclosed. As indicated above, our state is by no means unique in having a provision such as we are here considering in our state Constitution. However, although we have reviewed a long list of cases from these counterpart jurisdictions involving the application of such provisions, we have found [[Orig. Op. Page 7]] none which have treated the phrase "adjournment of the session" as meaning anything other than a final adjournment ending a session of the legislature. And, as indicated by the New Hampshire court in the early case of In re Soldiers' Voting Bill, 45 N.H. 607 (1864), a temporary adjournment of one or even both houses of a legislature is manifestly not such an adjournment.
In this case, which dealt with the analogous time period for gubernatorial approval or veto of a bill such as that provided for in Article III, § 12 of our own Constitution,7/ the court in considering whether a particular bill had become law without the governor's signature, described its applicable constitutional provisions and then construed them as follows:
"The constitution provides, in articles 19 and 36, against any adjournment of the house or senate during the session for more than two days at any one time. It could not have been expected that any such adjournment would or could operate to defeat the return of any bill within the time there specified, that the governor might wish to veto. Although, in the case before us, both houses adjourned for the same time, yet it often happens, and may at any time happen, that one house will adjourn for a day or two, while the other is in session. Now a bill must be returned to the house in which it originated, and if it should be held that it must be returned to that house while in session, then an adjournment of that house over one day would prevent the return of the bill during that day as much as an adjournment of both houses; and [[Orig. Op. Page 8]] if it had been intended to provide against such an adjournment for a day, or two days at the longest, the constitutional provision should have been that the bill should be returned in five days to the house in which it originated, unless that house shall prevent it by an adjournment. But no such provision was made. The only adjournment that was to prevent the return of the bill, was an adjournment of the legislature; that is, of 'both houses of the general court,' and not of either house alone. The language used would seem to be sufficiently indicative of the intention of the framers of the constitution in this matter. Their opinion was, most evidently, that an adjournment of either house for a time not exceeding two days, whether the house adjourned for the same time or not, was not to prevent such return of any bill, but that it was only the final adjournment of the legislature, of both houses, for the session that could have had that effect. We concur with them in that opinion. Monday, August 22d, is therefore to be reckoned as one of the five days specified."
The critical point, it seems to us, is that a temporary adjournment until a date certain ‑ even of both houses under a concurrent resolution ‑ simply does not constitute an adjournment of the legislative session as such. The session, whether it is a regular biennial session or a special session called by the governor, continues in being; its standing committees continue to possess the capacity to function;8/ and its organizational structure, etc., continue to exist. Even more importantly, perhaps, a temporarily adjourned house and senate may, upon reconvening, simply take up where they [[Orig. Op. Page 9]] left off in considering such bills as are before them, whereas once a session has ended it is necessary to have all measures considered but not enacted at that session reintroduced if an ensuing new session desires to continue working on them. See, AGO 65-66 Nos. 10 [[to Robert M. Schaefer, Speaker of the House on March 3, 1965]]and 12 [[to Robert C. Bailey, State Senator and Marshall A. Neill, State Senator on March 5, 1965]].
Our answer to your question, as above paraphrased, must therefore be in the negative. Only an adjournment of a legislative session, sinedie, will cause the time period referred to in Article II, § 41 (Amendment 26), supra, to begin to run as to bills subject to referendum which have been passed at that session. Thereafter, the constitutionally prescribed deadline for the filing of referendum petitions against any such bills will not arrive until the end of this period; i.e., ninety days after thefinal adjournment of the session of the legislature which passed the measure on which referendum is demanded. Accord, subsection (d) of Amendment 7,supra.
We trust the foregoing will be of assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/In which case they could only reconvene in response to another call from the governor.
2/See, 50 Am.Jur., Statutes, § 496, and 82 C.J.S., Statutes, § 404.
3/Subsection (b) of the 7th Amendment (Article II, § 1 (b)) spells out the criteria for determining whether or not an act is subject to referendum as follows:
"The second power reserved by the people is the referendum, and it may be ordered on any act, bill, law, or any part thereof passed by the legislature, except such laws as may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions, . . ."
Although it is common practice for the legislature expressly to so characterize some of its bills by the addition of an "emergency clause," such a declaration is by no means binding upon the courts. See, e.g.,State ex rel. Humiston v. Meyers, 61 Wn.2d 772, 380 P.2d 735 (1963).
4/See, Wash. Const., Article II, § 1A (Amendment 30) for the current signature requirements relating to referendum petitions.
5/Accord, § 7, chapter 138, Laws of 1913, the essence of which (including the words final adjournment) remains in effect today as RCW 29.79.020.
6/On which date it was repealed by a subsequently called special session.
7/". . . 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, . . ."
8/Compare the status of a standing committee with that of a legislative interim committee as described in State ex rel. Hamblen v. Yelle, 29 Wn.2d 68, 185 P.2d 723 (1947).