The timing of the Governor’s veto of the transportation bill challenged by Sen. David Williams. He has a strong argument.

By LawReader Senior Editor Stan Billingsley                        April 29, 2008

 We have previously analyzed this veto and concluded that Section 88 of the Ky. Constitution disposed of this issue.  Sen. Williams makes a strong argument which convinces us we should have studied Section 88 a little closer.

We relied on the portion of Section 88 which states the governor may veto a bill:

“Every bill which shall have passed the two Houses shall be presented to the Governor. If he approve, he shall sign it; but if not, he shall return it with his objection”s (i.e. veto it)  …
 This section goes on to say: “If any bill shall not be returned by the Governor within ten days (Sundays excepted) after it shall have been presented to him..”
The legislature adjourned on April 15th.   The bill was not “presented” to the Governor until the l6th.  Then under legal procedures for counting periods of limitation you start your counting of days with the next day. See: Lewis, Secretary of State, v. Cozine, 234 Ky. 781 (KY, 1930)

That means that day one of the 10 day time period would have been April l7th. (with Sundays excluded), and therefore the governor’s veto on April 25th, would have been on the last day of the ten day veto period.
 However in a interview with Sen. Williams he brought to our attention additional wording in Section 88 which upon close examination supports the conclusion that the bill became law and the veto is invalid.  

We have not found any case law in Kentucky applying directly on point with this question, and therefore the courts may reach a different conclusion,  however we find the reading given to Section 88 by Senator Williams to be overwhelmingly persuasive.

That additional language in Section 88 states:
 “it shall be a law in like manner as if he had signed it, unless the General Assembly, by their adjournment, prevent its return, in which case it shall be a law, unless disapproved by him within ten days after the adjournment, in which case his veto message shall be spread upon the register kept by the Secretary of State.”
 

Any veto made within ten days after the adjournment of the General Assembly is therefore sent to the Secretary of State since the General Assembly is then not in session.
Let’s break this down into its components parts. 
 This says the bill if unsigned, will become law, unless the general assembly by their adjournment prevents its return.  Note the General Assembly adjourned on April 15th.
 

Therefore the ten day period “after adjournment” in which the Governor has the right to veto a bill started running on April l6th.  Then counting forward (excluding Sundays) we find that the 10th. and last day for the issuance of a veto expired on Saturday April 26th.  (This leaves out April 20th. which was a Sunday).
 The first provision for a veto period starts with the PRESENTMENT of the bill to the Governor. The language of Section 88 then sets another time period in the event the General Assembly has prevented the Governor from returning the bill due to the adjournment of the General Assembly.
 

We restate the distinction. There is one time period running from the presentment of the bill, and the other time period starts, and supersedes the first time period, with the act of adjournment.  The first time period would end on Monday April 28th. the day the Governor vetoed the bill.   The second time period began at the time of the adjournment and ended on Sat. April 26th.  Under the adjournment time period, the transportation bill became law at midnight on Saturday April 26th.
 The reason there are two different time periods in which a veto can be issued is that some bills are passed early in the session, and others are passed at the last minute.  Therefore, the Constitution recognizes the need for two different starting times for veto periods, but each are for 10 days.
 

The act of presentment is not required or possible after the official adjournment of the General Assembly.  The act of the adjournment sets up a different time period for the commencement of the ten day veto period.
 There is yet another wrinkle to this issue which may have to be resolved by the Courts.
When did the General Assembly adjourn?
 

Section 42 of the Constitution states:
 “nor shall a session of the General Assembly continue beyond sixty legislative days nor shall it extend beyond April 15..”
 

While the Constitution declares that the General Assembly ends on April l5th. the press reports that the clocks were stopped a few minutes before midnight while additional legislation was formalized.  Then the General Assembly adjourned, presumably after midnight.. 
 The courts have ruled that they will generally rely on the official journal of the House and Senate to determine when the legislature adjourned and on which day official acts occurred.  However, they have also said if this issue is raised, then they will receive “extrinsic evidence” as to the actual time an “official act” occurred.  The Courier-Journal wrote that the act of turning the clocks back was recorded by KET television. That would seem to provide a whole lot of extrinsic evidence as to whether or not the legislature adjourned on the l5th. or the l6th.
 

If this time period was actually carried over to April l6th. and the adjournment  then occurred on the l6th., then the time period in which Gov. Beshear had to veto the transportation bill was Monday April 28th  and his veto would be upheld.
 We believe it is very unlikely that the courts would ever rule that by stopping the clocks the General Assembly was able to perform an official act after midnight on the l5th. Therefore the General Assembly will be found to have adjourned automatically and legally even if not by formal action, upon the stroke of midnight on April l5th.
 

Such a ruling would be cheered by any opponents of the two or three bills that are alleged to have been enrolled after midnight, since it would declare them void.  But such a ruling would be the death knell of the Governor’s veto action of the transportation bill, since it most likely means the time in which he had to veto the bill began to toll on the l6th. and became law two days before the attempted veto.
 ***
Footnote:  An Attorney General’s Opinion  24 supports the 10 day veto period after an adjournment as being separate from the intial 10 day veto period otherwise mentioned in Section 88.  See:

  

 

1980-91 Ky. Op. Attn. Gen 2-152, Ky. OAG 80-204 1980 WL 10319 


 

 

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