*1
In re Advisory an
liam J. JANKLOW Concerning the Further In
Opinion Dakota
terpretation of South Consti 4.
tution Article Section
No. 21535. of South Dakota.
Supreme Court May 2000. Received
Request
Original Proceeding Aug.
Decided 2000. *2 IV, §
cerning provisions Article
4 of the
South Dakota
Constitution as
relates to
delivery
gubernatorial
vetoes.
In
Janklow,
27,
1,
In Re
624, 625,
we
a request
found
for an
advisory opinion on the time limits in this
same section constituted a “solemn occa-
warranting
sion”
issuance of the opinion.
We reach a like conclusion here.
IV, §
Article
in perti-
part:
nent
session,
Whenever the
is in
presented
bill
to the
Governor
signature shall become law when the
signs
Governor
the bill or fails to veto
the bill within five days
presentation.
A
vetoed bill shall be returned
Legislature together
to the
objections
with
his
within five
presentation if
is in ses-
sion
Leg-
or
of the
islature from a
...
recess
Whenever a bill has
been
the Governor and the
adjourned or recessed within
five
presentation,
the bill shall become
law when
signs
the bill or
fails to veto it within fifteen
such
or recess.
Janklow,
In
c) “adjourned
presented.
plain language
or recessed”
of the first
paragraph gives
days
the Governor five
d) “adjournment”
it;
presentation
from the
of a bill to veto
Constitution,
IV,
2. Because the
otherwise,
it becomes law whether
4,§
requires delivery of a veto mes-
signs
Governor
it or not. To veto the
sage and bill to the
when
Legislature,
the Governor must return it to the Legis-
and how
the Governor deliver veto
days
lature within
of
“if
presentation
five
messages
Legislature
and bills to the
Legislature
or upon
is
session
during
adjournments,
recesses and
Legislature
from a re-
weekends,
night,
during
over
national
two, however,
cess.” Under
if
holidays,
during
day
and
the fifteen
has
or re-
final legislative day?
break before the
within
presen-
cessed”
five
of a bill’s
Constitution,
3. Because the
tation,
fifteen
after
4,§
requires delivery of a veto mes-
“adjournment
or recess” to veto the
sage
Legislature,
and bill to the
who
bill or
becomes law whether the Gover-
message
should receive the veto
and
signs
nor
it or not. The use of the term
satisfy
bill from the Governor to
paragraphs
“recess”
both
one and two
requirement during recesses and ad-
leads to obvious
precise
confusion over the
journments,
weekends,
night,
over
number of
the Governor has to veto a
holidays,
national
and
'
Legislature adjourns
bill if the
or recesses
break
before the
Governor,
presenting
it to
if
e.g.,
legislative day?
Legislature presents
of Review
Standard
with bill and then recesses for more than
“
days,
five
but
than
less
fifteen
must
‘When words in a
consti
immediately
the Governor return the bill
provision
unambigu
tutional
are clear and
when
reconvenes or can
ous,
natural,
they
given
are to be
their
the Governor wait until the fifteenth
meaning
usual
and are to be understood in
after the recess?
in which they
popularly
the sense
are
em
”
5,
ployed.’
1999
27 at
Ambiguities
SD
589
Clarification of
Walker,
(quoting
at 626
v.
Poppen
in Article
4
(S.D.1994)).
238, 242
520 N.W.2d
Howev
Some of the
confusion Article
er,
provision
a constitutional
ambiguous
is
IV, § 4 can be alleviated with a careful
language
reasonably
when
capable
its
is
of
reading
paragraphs
of its first
two
and
being understood in more than one sense.
provisions
with resort to other
of the con-
105, 6,
Schaefers,
v.
See Zoss
impacting
meaning
stitution
on the
of
(statute
ambiguous
598 N.W.2d
is
terms such as “in session” and “recess.”
reasonably
capable
being
of
Club,
Volk,
See South Dakota Auto.
Inc. v.
sense);
than
understood more
State
(S.D.1981) (in
305 N.W.2d
con-
(N.D.
Hagerty,
v.
580 N.W.2d
struing
provision
constitutional
the court
1998)(in interpreting constitutional
sec
instrument,
give regard
must
to the whole
tions,
apply general principles
courts
must seek to harmonize
provi-
the various
construction);
statutory
Hagerty,
sions,
must, if possible, give
and
effect to
(ambiguity
N.W.2d at 145
exists when
all the provisions).
good arguments can made for
con
be
two
Pursuant
trary positions
meaning
about the
of lan
South Dakota Consti-
constitution).
III,
7,§
guage
state
tution Article
“12
must convene at
o’clock m.” on “the
continue
long
thereafter as
as the re-
January.”
Tuesday
second
Under Arti-
can reasonably
cesses
be said to
tak-
III,
6, “regular
session[s]”
cle
odd-
a proper
legislative
en for
purpose.
years
numbered
then continue for a
Adjournment
both houses
the leg-
forty legislative days
not to exceed
which
islature
express provision
with the
Sundays, holidays
legislative
exclude
the adjournment
only
until a speci-
“[R]egular
recesses.
even-
session[s]”
operate
date does not
to dissolve
fied
may not
years
thirty-five
numbered
exceed
legislature,
but it con-
which,
legislative days
again, exclude Sun-
recess,
added).
stitutes a
(emphasis
days, holidays
recesses.
prescribe
The constitution itself does not
Meaning
Paragraph
One
*4
the duration or hours of a “legislative
IY, §
4
However,
day.”
it is generally held that a
Applying
foregoing
the
“legislative day
only by
be terminated
principles
yields
§
to Article
4
certain
adjournment
an
dispersing
or some actual
conclusions responsive your inquiry.
It is
of the assembled membership amounting
apparent
that the first
of
paragraph
§
the
thing.”
to the same
81A CJS States
(1977).1
provision is
While authorities
devoted to executive action on
appear to refer
to
legislative days
breaks between
as both
the
is “in session.”
(see id,.),
“adjournments” or
legislative
“recesses”
the Since the
“sessions”
defined
appropriate
more
term this context is a
the constitution are the alternating thirty-
explained
“recess.” As
81A CJS States
forty day
five and
beginning
sessions
(1977):
§ 50
January
year,
of each
the term “in ses
interlocutory
A recess
sion”
is
and not final in
refers
to these annual sessions.2
character,
Further,
and marks an interval of
because the
gener
term “recess”
suspension
only during
of business
a
ally refers to interlocutory and not final
sitting and
not
equivalent
is
the
of an adjournments
session,
legislative
a
adjournment or
sitting
dissolution of the
paragraph
the term “recess” in
one refers
A
operates
which
is taken.
recess
the Legislature’s daily
periodic
to
or other
assembly
pur-
to continue the
in session
recesses during the course of a session.
original
suant to its
convocation but with
reasoning
[¶ 9.] Under this
and this
an
interposition of
interval
in its
holding
Court’s
program parliamentary business dur- ¶ 7, 626-27, 589 N.W.2d at ing which the the Governor membership must remain has five within call of the calendar from the date of presiding officers and permitted disperse, presentation prevent are not to of a to veto it and so that bill they may bill, becoming remain available to be called it from law. To veto the resumption parliamenta- to order for Governor must return it to the ry business when the agreed on within Legis the five calendar “if the for recess has expired. However, lature Leg is session.” if the single legislative One islature these five may session recesses interrupted by may validly thereby recesses and and prevents the Governor from qualified general by by 1. This rule is operation rule that session terminates law legislative the end of a midnight day, cannot be on the last act that an on by stopping extended devices such as midnight which the vote was taken after States, Territories, clock. See 72 Am.Jur.2d stopping void. The device of the clock does (1974): Dependencies § not affect this result. leg- Where the constitution that a IV, 4, operation any, § 2. The if designated islative session is not to exceed a regard legislative special beyond to sessions is by number of unless extended scope inquiry concurrence of two-thirds of the members of the Governor’s and is not house, analyzed of each it has been held that the here. bill, longer period vetoed a “after session.” id. timely a return of the See making may timely § make a re- through the Governor still While 4.16 went substantial evo- reconvening Legisla- of the “upon turn becoming before Article lution Thus, might from that one ture” provision recess. each draft of the retained this a where the Governor envision scenario concept and a further review of the Revi- the fifth midnight has until on sion Commission Minutes and Documents presentation Legisla- to veto a but the fails to reveal criticism of it or intent ture has recessed the time Gov- it. change authority. ernor’s exercise of his veto It 11.] follows from above [¶ prevents the recess the Governor Since terms or recessed” and “ad- timely return of the vetoed making from journment or recess” two of bill, paragraph permits IV, Legislature’s 4 refer to the the bill to return adjournment or at the recess close of i.e., recess, on the typically session or what re- legislative day next of the session. to as its sine die. ferred See (5th Dictionary Black’s Law ed Meaning Paragraph Two 1979)(“sine “[a] die” defined as final ad- *5 journment”). interpretation, this Under interpretation para the Legislature presents the Gover- § 4 graph presents complex two of a more adjourns nor with a bill and then die sine problem duplicitous because of its use of days presentation, within five of its the Nevertheless, the term “recess.” it is no Governor has fifteen after the ad- that, one, in paragraph table contrast with journment thereby to it and prevent veto two makes no reference to ex paragraph becoming law. frc?m Legisla action on while the ecutive Conclusions Rather, para ture is in session. the entire graph is addressed to executive action on a upon foregoing, 12.] Based the we an- [¶ “adjourned Legislature bill after the you questions swer the have as terminology or The use of the recessed.” First, regard your follows. with to first conjunction with the term “recess” “ad question, para- the term “in session” journed” in that suggests this context IV, § 4 graph one of Article of the South paragraph contemplates executive action regular Dakota Constitution means the adjournment after the recess or of a forty a thirty-five day legisla- course of or legislative session. a conclusion in Such tive session. The term “recess” drafting history accord with the paragraph the Legislature’s same means IV, 27 at 4. See daily other periodic during or recesses (if at 626 a term in constitu course of a session. The terms unclear, may tion is the Court look to the “adjournment” para- or recessed” and drafting body). originally intent of the As IV, § 4 graph two of Article mean the proposed, upon 4 was based Legislature’s final at § 4.16 of Article IV of the Model State a close of session. Constitution. See Official Documents of Second, regard with to Commission, the Constitutional Revision your question two and the means the Gov Commission Document No. Executive (Au messages ernor must use to deliver veto pp. 47-48 Department —Article recesses, 1970). adjournments, during and bills In a gust memo to the Consti weekends, night, during' over national holi concerning tutional Revision Commission during the fifteen break proposal specifically pointed was out legislative day, the final there is no 4.16 of the model document would before necessity delivery. a for such As mentioned provide for shorter for the Gover above, if “during during operates nor to act on bills session” and for a recess a prevent making to the Governor from the “How” or “Means” the Governor must timely fact, return of a vetoed delivery. use for In opin- 13 of the IV, § permits the Gover- ion necessity “there is no for such timely make a return nor to of the bill delivery.” In this I respect, would simply “upon reconvening Legislature advise that the “means” all appro- includes delivery from recess.” As for [the] electronic, priate delivery, including fac- weekends, night, during over national holi- simile transmission and the more custom- break, or ary or traditional delivery. means of Legislature must stand in recess It is obvious that the these intervals order to bring pre- can not shorten the Governor’s time frame ceding legislative day to an end. Accord- delivery or service their actions or ingly, paragraph again one would allow a Accordingly, inactions. all other questions return to be made need not be addressed or answered at this from such recess. fact, In time. it could be hazardous to do Third, regard your [¶ to ques- 14.] so in view the fact that it is impossible concerning tion three who should receive to possible envision all scenarios that could veto message order regard arise with to the return of vetoed satisfy requirement bills. § 4 that vetoed bills be returned to “the Richard Sabers W. Legislature,” has itself as- Justice Richard W. Sabers signed responsibility secretary to “the house, of the senate or chief clerk of the
whichever was the house of origin[.]” See only
SDCL 2-7-20.2. The exception is for
bills to the such deny
time as to the Governor his full five
days to consider them and return any ve-
toed
to the Legislature
before its
Robert A. Amundson
Justice Robert A. Amundson Konenkamp K.
John Konenkamp
Justice John K.
David Gilbertson
Justice David Gilbertson
SABERS, dissenting. Justice majority not answered portion of question relating TWO