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. 6629

April 27, 1990

CONSTITUTIONAL LAW:

Const 1963, art 4, Sec. 33

LEGISLATURE:

Override of gubernatorial failure to approve

Pursuant to Const 1963, art 4, Sec. 33, the Legislature may not, in its 1990 regular session, reconsider 1989 Enrolled HB 4876 to override the gubernatorial failure to approve the enrolled bill where the Legislature adjourned its 1989 regular session sine die during the fourteen day period the Governor had to consider whether to approve Enrolled HB 4876.

Honorable Michael J. Griffin

State Representative

The Capitol

Lansing, MI

You have requested my opinion as to whether the Legislature may, in its 1990 regular session, reconsider 1989 Enrolled HB 4876 to override the gubernatorial failure to approve the enrolled bill where the Legislature adjourned its 1989 regular session sine die during the fourteen day period the Governor had to consider whether to approve Enrolled HB 4876.

After enactment by the Legislature, 1989 HB 4876 was ordered to be enrolled by the House on December 13, 1989. 1989 Journal of the House 3071 (No 118, December 13, 1989). It was presented to the Governor for his approval on December 19, 1989. 1989 Journal of the House 3093 (No 119, December 28, 1989). The 1989 Legislature adjourned its 1989 regular session sine die on December 28, 1989. 1989 Journal of the House 3113 (No 119, December 28, 1989); 1989 Journal of the Senate 2693 (No 81, December 28, 1989).

For the reasons stated in his letter dated January 2, 1990, addressed to the House, the Governor declined to approve the 1989 Enrolled HB 4876.

Your question must be analyzed in the light of Const 1963, art 4, Sec. 33, which provides:

Every bill passed by the legislature shall be presented to the governor before it becomes law, and the governor shall have 14 days measured in hours and minutes from the time of presentation in which to consider it. If he approves, he shall within that time sign and file it with the secretary of state and it shall become law. If he does not approve, and the legislature has within that time finally adjourned the session at which the bill was passed, it shall not become law. If he disapproves, and the legislature continues the session at which the bill was passed, he shall return it within such 14-day period with his objections, to the house in which it 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. The vote of each house shall be entered in the journal with the votes and names of the members voting thereon. If any bill is not returned by the governor within such 14-day period, the legislature continuing in session, it shall become law as if he had signed it. [Emphasis added.]

The extent of the gubernatorial power of the Governor to veto enrolled bills was delineated by the court in Wood v. State Administrative Board, 255 Mich 220; 238 NW 16 (1931). The power is legislative in nature and may be exercised by the executive only through constitutional grant of the people. Id, 255 Mich at 224. It applies to all bills passed by the Legislature "except in the single instance of where the [L]egislature, by adjournment, prevents an essential of veto, return of the bill to the originating house."' Id, 255 Mich at 229. Where the Legislature adjourns sine die during the time the Governor has to exercise the power to veto legislation, the legislation may become law only if approved and signed by the Governor. Id. In such instance, by withholding approval, the Governor may exercise a power similar to the veto power by means of a "pocket veto."' Id. Where the Governor has not approved an enrolled bill submitted for his approval and the Legislature adjourns sine die during the time for approval, "the bill cannot be made law without being re-introduced, re-enacted, and approved by the executive or passed over his veto, as an original bill."' Id.

This analysis by the Court was made in the context of the predecessor provision, Const 1908, art 5, Sec. 36. The people have re-enacted Const 1908, art 5, Sec. 36 as Const 1963, art 4, Sec. 33 without substantial change. In the Address to the People, 2 Official Record, Constitutional Convention 1961, p 3375, the framers of Const 1963, art 4, Sec. 33, adopted the following comment:

This is a revision of Sec. 36, Article V, of the present [1908] constitution to clarify and change existing language regarding the executive veto. It provides as follows: (1) The governor shall have 14 days in which to consider a bill; and his 14-day period for consideration and approval will not be affected by whether or not the legislature adjourns its session. (2) If during that period he signs the bill, it becomes law. (3) If during that period he does not sign the bill, and the legislature has adjourned its session, the bill does not become law. (4) If during that period he does not approve, he must send it back to the house of origin, if the legislature is still in session, for consideration of his veto. (5) If during that period he neither approves nor returns the bill with a veto message, the legislature continuing in session, it becomes a law as if he had signed it.

The time for consideration by the governor has been extended from 10 to 14 days in accordance with testimony by former governors that some additional time is desirable.

The two-thirds vote of the legislature to override the governor's veto is retained. [Emphasis added.]

Because the Legislature finally adjourned its 1989 regular session during the constitutional period in which the Governor could consider 1989 Enrolled HB 4876, the adjournment sine die served to prevent the constitutional exercise of an essential element of the gubernatorial veto power, the return of the bill to the Legislature. Under the constitutional framework set forth in Const 1963, art 4, Sec. 33, and in light of the controlling decision in Wood, 1989 Enrolled HB 4876 could only become law if the Governor approved and signed it. The Governor not only declined to approve and sign it, he stated the reasons for his disapproval in his veto message to the House of January 2, 1990. Although denominated as a "veto,"' the simple fact of the Governor's act was to withhold, for the stated reasons, his approval of the enrolled bill. Thus, 1989 Enrolled HB 4876 may become law only by being re-introduced as an original bill, re-enacted, and either approved by the Governor or passed over a veto made by the Governor while the Legislature is still in session.

If the Legislature desires to retain its authority to over-ride gubernatorial vetoes of enrolled bills, it may wish to heed the advice proferred by Delegate Hutchinson speaking for the Committee on the Executive Branch on Committee Proposal No 70, which was ratified by the people as Const 1963, art 4, Sec. 33:

I might say that the legislature of Michigan many, many, many years ago devised a procedure whereby the likelihood of pocket vetoes are largely nonexistent in Michigan because the legislature, in order to avoid the possibility of pocket vetoes, instead of adjourning finally its session -- adjourning sine die -- the legislature by its rules usually takes what it calls a short adjournment. That adjournment under its present rules I believe is 34 days. After the work of all of the session is completed, the legislature adjourns for 34 days. During that 34 day period, the secretary of the senate and the clerk of the house are able to submit to the governor in a fashion that to some extent I suppose is for the accommodation of the governor in his work load. That is, they don't present all of these bills all at once. They feed them in to the governor in a kind of a work load state so that the governor won't feel unnecessarily swamped. And over this 34 day period the governor has this constitutional time in which to consider these bills. Then the governor will have approved or he will have vetoed all the bills. The legislature then comes back to consider his vetoes, after which they adjourn the session sine die, -- without day -- and finally adjourns. So in that kind of an arrangement, the legislature has worked itself around and figured a way around the possibility of pocket vetoes. Nevertheless, constitutionally, just as the president of the United States has the right of a pocket veto, thus does the governor of Michigan now have the right of a pocket veto. This new proposal will permit the governor to have a pocket veto if the legislature has adjourned before the time has expired during which the governor may consider any bill. ...

1 Official Record, Constitutional Convention 1961, p 1719,

It is my opinion, therefore, that the Legislature is without authority, in its 1990 regular session, to reconsider 1989 Enrolled HB 4876 to override the gubernatorial failure to approve the enrolled bill where the Legislature adjourned its 1989 regular session sine die during the fourteen day period the Governor had to consider whether to approve Enrolled HB 4876.

Frank J. Kelley

Attorney General