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

MIKE COX, ATTORNEY GENERAL

LEGISLATURE:

CONST 1963, ART 4, 33:

STATUTES:

Legislature's recall of enrolled bills

Senate Bill 393, which provides for urban high school academies, has become law pursuant to Const 1963, art 4, 33, and should be assigned a public act number by the Secretary of State.

Opinion No. 7139

October 2, 2003

Honorable Jim Howell
State Representative
The Capitol
Lansing, MI

You have asked whether Senate Bill 393, which provides for urban high school academies, has become law pursuant to Const 1963, art 4, 33.

Senate Bill 393 (SB 393) was enrolled on August 13, 2003,1 and presented to the Governor for her approval on September 8, 2003, at 5:00 p.m.2  On September 18, 2003, the Senate requested that the bill be returned to the Senate.3  The Governor granted the Senate's request on that same date and returned the bill to that body (without objections), where a motion was made to vacate the enrollment and the motion prevailed.4  On September 23, 2003, the House of Representatives approved a motion to send a letter to the Senate agreeing with the Senate's request that the Governor return SB 393.5  Neither the Senate nor the House Journal entries reveal any other action taken by the House of Representatives regarding the return of SB 393.

The constitutional provision that governs your inquiry is Const 1963, art 4, 33, which provides in its entirety:

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 Michigan Supreme Court has considered whether and how bills passed by both houses of the Legislature and presented to the Governor for approval can be recalled from the Governor. In Anderson v Atwood, 273 Mich 316, 319-320; 262 NW 922 (1935), the Court quoted with approval the following "well settled rule":

"Constitutional provisions regulating the presentation, approval, and veto of bills by the executive are mandatory, and the procedure as thus established cannot be enlarged, curtailed, changed, or qualified, by the legislative body." 59 C. J. p. 575.

"In the absence of a constitutional restriction the legislature may, by concurrent action of both houses, recall a bill which has been presented to the governor; but such recall will not have the effect of making the bill operative as a law, or affect the validity of the measure as finally passed and approved by the executive. The recall is effective if a bill is willingly returned upon request supported by the concurrent action of the two houses, although the request is not by means of a joint resolution; but after a bill has been passed in the legal and constitutional form by both houses of the legislature, and transmitted to the governor for his signature, neither branch of the legislature can, without the consent of the other, recall the bill for the purpose of further legislative action thereon." 59 C. J. p. 578. [Emphasis added.]

The Court in Anderson had under review Const 1908, art 5, 36, a predecessor provision to Const 1963, art 4, 33, but the constitutional language relevant to your question is not materially different between the two provisions. Const 1908, art 5, 36, provided, in relevant part:

If he approve, he shall sign it; if not, he shall return it with his objections to the house in which it originated, which shall enter the objections at large upon its journal and reconsider it. . . . If any bill be not returned by the governor within 10 days, Sundays excepted, after it has been presented to him, it shall become a law in like manner as if he had signed it, unless the legislature, by adjournment, prevents its return, in which case it shall not become a law.

The corresponding language of Const 1963, art 4, 33, provides:

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. . . . 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.

Neither provision specifically addresses the return of a bill upon a request by both houses of the Legislature and neither provision includes a "constitutional restriction" on the power of the Legislature to recall bills that have been presented to the Governor. There being no material difference between the constitutional language governing the Anderson case, and the constitutional language now in effect, Anderson remains controlling law.6

Indeed, the well-settled rule of Anderson is consistent with the advice this office has provided over the past 25 years relating to the effect to be given legislative requests to return enrolled bills. As succinctly stated in Letter Opinion of the Attorney General to Senator Patrick H. McCollough, dated December 6, 1977, then Attorney General Frank J. Kelley concluded:

The request by the legislature to return an enrolled bill once it has been presented to the Governor for signature must be a joint or concurrent action of both houses; a request for return of the bill by either house independently of the other is ineffective. Even if the [G]overnor returns a bill upon the request of a single house, that house is not able to vacate the action of enrollment.

A similar conclusion was reached in the following opinions: Letter Opinion of the Attorney General to Senators Fred Dillingham and John Kelly, dated May 20, 1993; Letter Opinion of the Attorney General to Senators Arthur Miller, Jr. and John D. Cherry, dated May 5, 1992; and Informational Letter from Chief Assistant Attorney General Stanley D. Steinborn to Deputy Secretary of State Phillip T. Frangos, dated June 9, 1993 (citing cases from other jurisdictions).8

One basis for this rule was explained in Opinion of the Justices, 54 Del 164; 174 A2d 818, 819 (1961), quoted in Letter Opinion to Senators Dillingham and Kelly at p 2:

Any bill or joint resolution requires for passage the concurrence of a majority of all the members elected to each House. . . . The delivery of the bill to the Governor is based upon the joint action of the two houses. If any subsequent legislative action can lawfully be taken to affect the status of the bill in the Governor's hands . . . it must likewise be joint action. In our opinion one house has no such power of recall, even with the Governor's consent.

In order to determine whether SB 393 has become law, it is necessary to examine whether SB 393 was recalled by concurrent action of the House of Representatives and the Senate within the 14-day period afforded the Governor for vetoing a bill under the last sentence of Const 1963, art 4, 33. As explained by the Address to the People, the Governor "shall have 14 days in which to consider a bill . . . . 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 14-day period is measured "in hours and minutes from the time of presentation" to the Governor. Const 1963, art 4,  33 (first sentence).9

SB 393 was presented to the Governor on September 8, 2003, at 5:00 p.m. The 14-day period afforded for consideration, measured in hours and minutes, therefore expired on September 22, 2003 at 5:00 p.m. While the Senate had acted to recall the bill within that 14-day period (on September 18, 2003), the House did not. Its action concurring in the request to recall SB 393 was not taken until September 23, 2003. In the absence of concurrent action by both houses of the Legislature within the 14-day period, SB 393 was not effectively recalled and "further legislative action thereon" was not authorized. Anderson, 273 Mich at 320. As concluded in Letter Opinion to Senators Dillingham and Kelly, one house of the Legislature may not vacate the enrollment of a bill. In the absence of a return of the bill with objections, SB 393 therefore became law by operation of the last sentence of art 4, 33.

It is my opinion, therefore, that Senate Bill 393, which provides for urban high school academies, has become law pursuant to Const 1963, art 4, 33, and should be assigned a public act number by the Secretary of State.

MIKE COX
Attorney General

Att. 1
Att. 2
Att. 3
Att. 4

12003 Journal of the Senate 1589 (No. 71, August 13, 2003). SB 393 was given immediate effect. Id

22003 Journal of the Senate 1608 (No. 72, September 16, 2003).

32003 Journal of the Senate 1636 (No. 74, September 18, 2003).

42003 Journal of the Senate 1660 (No. 74, September 18, 2003).

52003 Journal of the House 1692 (No. 65, September 23, 2003).

6For the updated sections of American Jurisprudence 2d and Corpus Juris Secundum evidencing that the settled rule stated in Anderson remains the rule today, see 73 Am Jur 2d Statutes, 32-37, and 82 CJS Statutes 43-46, p 70. For one exception, see In re King v Cuomo, 81 NY2d 247; 597 NYS2d 918; 613 NE2d 950 (1993).

7A copy of the December 6, 1977, Letter Opinion is attached as Appendix A.

8Copies of each of these letters are attached as Appendices B, C, and D, respectively.

9The 14-day period afforded the Governor to consider a bill represents a change from the 1908 Constitution. For a discussion explaining this change and the reasons for the addition of the language requiring that the 14-day period be measured in "hours and minutes," see 1 Official Record, Constitutional Convention 1961, pp 1717-1721.