[ Previous Page] [ Home Page ]
The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 6102 August 31, 1982 CONSTITUTIONAL LAW: Const 1963, art. 4, Sec. 33--vote needed to override veto of bill amending initiated law LEGISLATURE: Vote needed to override veto of bill amending initiated law A vote of two-thirds of the membership elected to and serving in each house of the Legislature is needed to override the gubernatorial veto of a bill amending a law initiated by the people. Honorable Robert Vander Laan State Senator The Capitol Lansing, Michigan You have requested my opinion as to the number of votes which must be cast in each house of the Legislature in order to override the gubernatorial veto of a bill purporting to amend a law enacted through the initiative process. Your question relates to a bill, SB 618, (1) to amend the 1976 PA Initiated Law, MCLA 445.571 et seq; MSA 18.1206(11) et seq, which was approved by both houses of the Legislature and transmitted to the Governor. SB 618 was passed by vote of three-fourths of the members elected to and serving in each house of the Legislature. (2) 1976 PA Initiated Law, supra, was approved by vote of the people on November 2, 1976 and became effective December 3, 1978. (3) It requires, inter alia, that a deposit be imposed upon specified beverage containers to be refunded upon return of the container. Const 1963, art 2, Sec. 9 limits the authority of the Legislature to amend an initiated measure: 'No law initiated or adopted by the people shall be subject to the veto power of the governor, and no law adopted by the people at the polls under the initiative provisions of this section shall be amended or repealed, except by a vote of the electors unless otherwise provided in the initiative measure or by three-fourths of the members elected to and serving in each house of the legislature.' (4) Const 1963, art 4, Sec. 33 sets forth the general legislative authority to override a gubernatorial veto once the bill has been disapproved and returned, with the Governor's objections, to the house in which the bill originated. 'That house shall enter such objections in full in its journal and reconsider the bill. If two-thirds of the members elected to and serving in that house pass the bill notwithstanding the objections of the governor, it shall be sent with the objections to the other house for reconsideration. The bill shall become law if passed by two-thirds of the members elected to and serving in that house.' In view of the unique constitutional requirement that three-fourths of the members elected to and serving in each house approve an amendment to an initiated measure, you ask if a different number of votes is required to override the veto of such a measure. Your question has never been addressed in a reported Michigan case. However, an analogous issue was decided by the Supreme Court of Nebraska. In Sandberg v Nebraska, 188 Neb 335; 196 NW2d 501 (1972), the court considered a taxpayer suit challenging the constitutionality of a statute increasing the tax on cigarettes and appropriating the revenue to fund certain public building construction projects. Under the Nebraska constitution, a law could not be given immediate effect except upon the vote of two-thirds of all the members elected to each house of the Legislature. A bill was passed by two-thirds vote and given immediate effect. However, the bill was vetoed by the Governor. The Nebraska Constitution also contained a general requirement that, upon reconsideration, three-fifths of the members elected to each house must approve a bill to override a gubernatorial veto. The issue before the court was whether a vote of at least three-fifths but less than two-thirds could override the veto and permit the bill to take immediate effect. A review of the journals of the Nebraska constitutional convention disclosed that the convention had considered, but rejected, a clause expressly requiring that the vote necessary to override a veto could not be less than that required on its original passage in each house. After citing that constitutional history, the court refused to require a two-thirds vote to override the veto and give the bill immediate effect. Instead, the court ruled that the language of the general veto provision, section 15, controlled: 'The wording of section 15 is clear and unambiguous. To read into it the interpretation contended for by the appellant would require us to amend the Constitution. This we refuse to do. We therefore, hold that a legislative bill passed with an emergency clause, vetoed by the Governor, is within the ambit of Article IV, section 15, Constitution of Nebraska, and requires only a three-fifths vote to override the veto.' Sandberg v Nebraska, supra, 188 Neb 335, 344-345; 196 NW2d 501, 507. It is also noteworthy that language like that which was rejected by the Nebraska constitutional convention has been adopted in other states. For example, Ohio Const, art II, Sec. 16 provides with regard to overriding a gubernatorial veto: 'In no case shall a bill be repassed by a smaller vote than is required by the constitution on its original passage.' Alaska Const, art II, Sec. 16 provides: 'Bills to raise revenues and appropriation bills or items, although vetoed, become law by affirmative vote of three-fourths of the membership of the legislature. Other vetoed bills become law by affirmative vote of two-thirds of the membership of the legislature. . . .' In Jones v Winters, 365 P2d 357 (Okla, 1961), the court upheld a constitutional clause requiring a three-fourths vote to override the veto of an emergency measure, while the veto of a general measure could be overriden by a two-thirds vote. In Michigan, neither Const 1963 nor the constitutional convention debates on Committee Proposal No. 70 disclose any intention on the part of the framers to impose a special voting requirement to override the veto of an amendment to an initiated measure. The power of gubernatorial veto was reviewed in Wood v State Administrative Board, 255 Mich 220, 224, 225; 238 NW 16, 18 (1931). The court concluded that the veto power does not include authority for the Governor to reduce specific items in an appropriation bill. The court noted that the veto power is an exception to the general separation of government into three distinct branches and is not to be extended by interpretation: 'The veto power is a legislative function, although it is not affirmative and creative, but is strictly negative and destructive. It cannot be exercised by the executive except through constitutional grant. By Constitution, art 4, Sec. 1, in harmony with American political theory, the State government is divided into the three historic departments, the legislative, executive, and judicial, . . .' This historical and constitutional division of the powers of government forbids the extension, otherwise than by explicit language or necessary implication, of the powers of one department to another. The language of section 37 (5) must be read with all intendments against enlargement beyond its plain words. And if it were ambiguous, the doubt should be resolved in favor of the traditional separation of governmental powers and the restricted nature of the veto.' Those principles may be applied to your question. Const 1963, art 4, Sec. 33 is clear and unambiguous as to the number of votes required to override a gubernatorial veto. To conclude that more than a two-thirds vote of the members elected to and serving in each house is required to override the gubernatorial veto of SB 618 would involve reading language into the constitution tending to expand the Governor's participation in the legislative process. No basis for such expansion is to be found in Const 1963. It is my opinion, therefore, the Const 1963 requires a vote of two-thirds of the membership elected to and serving in each house in order to override the gubernatorial vote of SB 618, amending 1976 PA Initiated Law, supra. Frank J. Kelley Attorney General (1)
(2)
SJ 1982, No 48, pp 1097-1098; HJ 1982, No 69, pp 1382-1383.(3)
1976 PA Initiated Law was amended, prior to its effective date, by 1977 PA 270.(4)
1976 PA Initiated Law, supra, does not contain a provision authorizing amendments by less than a three-fourths vote of the members elected and serving in each house of the Legislature.(5)
Const 1908, art 5, Sec. 37 is the predecessor provision to Const 1963, art 4, Sec. 33.
[ Previous Page] [ Home Page ]