Timothy S. Pestka and Rudy M. Chavez
(“Appellants”) appealed the Cole County Circuit Court’s decision denying their
request to enjoin the enforcement of HB 150, which the Missouri General
Assembly passed during the veto session in September 2015.[1] Appellants contend that the senate lacked
authority to override the governor’s veto during the session because the
general assembly can only take up a bill in the September veto session if the
governor returned the bill on or after the fifth day before the end of the
regular legislative session.[2]
I. Facts and Holding
On April
21, 2015, the Missouri General Assembly passed HB 150, a bill that changed
Missouri’s unemployment benefits compensation statutes.[3] On May 5, 2015, more than five days before
the general assembly adjourned sine die,
the governor vetoed the bill and the Missouri House of Representatives voted to
override the governor’s veto.[4] On May 15, 2015, the Missouri Senate then
adjourned without taking any action to reconsider the bill or to override the
governor’s veto.[5] On September 16, 2015, the senate reconvened
for a veto session on an unrelated bill, and in doing so, held a veto session
for HB 150, pursuant to article III, section 32 of the Missouri Constitution.[6] In this session, the senate voted to override
the governor’s veto, and on October 16, 2015, most of the changes to the
unemployment benefits compensation statutes described under the new bill went
into effect.[7]
Appellants
filed a declaratory judgment action to declare HB 150 unconstitutional and
requested an injunction to prevent the bill from being enforced.[8] Appellants argued that the senate’s September
2015 veto vote was untimely, as it was not done in accordance to the procedure
set out in article III, section 32.[9] They contended that this provision “reserves
consideration of only those bills vetoed within five days of, or after, the
regular legislative session’s adjournment during a September veto session.”[10] Therefore, they argued “because HB 150 was
vetoed prior to the last five days of the regular legislative session[,] . . .
the senate has to vote to override the governor’s veto prior to the end of the
regular legislative session for the veto to be valid.”[11] In contrast, the state argued “the senate
acted well within its plenary power, and HB 150 was enacted validly because
article III, section 32 contains no language that limits or prohibits the
senate from taking this action.”[12]
The circuit
court found for the state, holding that the senate’s September vote on the bill
was not in violation of article III, section 32.[13] In doing so, the court determined that this
provision does not limit what bills can be considered during the veto session
and determined that there is no requirement that a vetoed bill must be
reconsidered before the end of the regular legislative session.[14] Here, the Supreme Court of Missouri reversed
the decision of the circuit court, holding that “the senate lacked authority to
vote to override the governor’s veto during the September 2015 veto session
because only bills returned by the governor on or after the fifth day before
the end of the regular legislative session can be taken up during a September
veto session for the veto to be valid.”[15]
II. Legal Background
As adopted in the Missouri Constitution
in 1945, article III, section 32 stated:
Every
bill presented to the governor and returned with his objections shall stand as
reconsidered in the house to which it is returned. The objections of the governor shall be
entered upon the journal and the house shall proceed at its convenience to consider
the question pending, which shall be in this form: ‘Shall the bill pass, the
objections of the governor thereto notwithstanding?’ The vote upon this question shall be taken by
yeas and nays and if two-thirds of the elected members of the house vote in the
affirmative the presiding officer of that house shall certify that fact on the
roll, attesting the same by his signature, and send the bill with the
objections of the governor to the other house, in which like proceedings shall
be had in relation thereto. The bill
thus certified shall be deposited in the office of the secretary of state as an
authentic act and shall become a law.[16]
In this initial version of the provision, any bill vetoed by
the governor at any time could be reconsidered by the legislature without any
temporal restrictions.[17] However, in 1970, article III, section 32 was
amended to enact different veto procedures depending on when the bill was
vetoed and the year in which the governor’s veto took place.[18] This amendment stripped the legislature of
its power to reconsider bills at its convenience, while retaining the
requirement that the bill must be sent to the other house for “like
proceedings” following the initial vote.[19]
Again in
1972, article III, section 32 was amended, this time to expand the window for
reconsideration to include not only bills vetoed after adjournment, but also
bills vetoed on or after the fifth day before the end of the regular
legislative session.[20]
Finally, in
1988, article III, section 32 was amended to its present form, which states:
Every
bill presented to the governor and returned with his objections shall stand as
reconsidered in the house to which it is returned. If the governor returns any bill with his
objections on or after the fifth day before the last day upon which a session
of the general assembly may consider bills, the general assembly shall
automatically reconvene on the first Wednesday following the second Monday in
September for a period not to exceed ten calendar days for the sole purpose of
considering bills returned by the governor. The objections of the governor shall be
entered upon the journal and the house shall proceed to consider the question
pending, which shall be in this form: ‘Shall the bill pass, the objections of
the governor thereto notwithstanding?’ The
vote upon this question shall be taken by yeas and nays and if two-thirds of
the elected members of the house vote in the affirmative the presiding officer
of that house shall certify that fact on the roll, attesting the same by his
signature, and send the bill with the objections of the governor to the other
house, in which like proceedings shall be had in relation thereto. The bill thus certified shall be deposited in
the office of the secretary of state as an authentic act and shall become a
law.[21]
This amendment eliminated “the odd-even-numbered year
distinction and the automatic convening of a September veto session each year
after the governor vetoes bills on or after the fifth day before the last day
of the regular legislative session.”[22]
III. Instant Decision
In the
instant case, in reversing the circuit court’s decision, the Supreme Court of
Missouri held that “the senate lacked authority to reconsider HB 150 during the
September 2015 veto session.”[23] The court further noted that “[t]he senate’s
override of the governor’s veto of HB 150 was untimely, causing HB 150 not to
be passed ‘the objections of the governor thereto notwithstanding.’”[24] As such, HB 150 was not passed over the
governor’s veto, and none of its provisions became law.[25]
In reaching
this conclusion, the court stressed that the plain language of article III,
section 32 demonstrates that a veto session is not triggered unless and until a
bill is returned by the governor on or after the fifth day before the end of
the regular legislative session.[26] Here, the amendments to article III, section
32 since 1945 demonstrate the intent to confine a September veto session to
only late-vetoed bills.[27] Further, there is no dispute that HB 150 was
not a late-vetoed bill.[28] Therefore, the senate had two days before the
end of the regular legislative session to act after the house of representatives
vetoed the bill.[29]
The court
also noted that if the veto session’s scope is not confined to late-vetoed
bills, then “the legislature could ostensibly address any vetoed bills during
the General Assembly’s entire session or during the governor’s term in office,
which could span several years.”[30]
This was
not a unanimous decision, however, as Judge Mary R. Russell filed a dissenting
opinion, stating that “HB 150 is valid and enforceable because the General
Assembly followed the procedures required by the Missouri Constitution for
passing a bill over the governor’s objections.”[31] Judge Russell believed the majority opinion
read into the text of article III, section 32 limitations on the plenary power
of the legislature that are not within the actual language of the section.[32]
Further, she stated that the majority’s
“reading departs from settled precedent of this Court construing constitutional
provisions in favor of the plenary power of the legislature and upholding
legislative acts unless they clearly and undoubtedly violate constitutional
limitations.”[33]
IV. Comment
In
interpreting this constitutional provision, the court looked to the people’s
intent, through their subsequent ratifications of amendments to this provision
over the years. In doing so, the court
determined that the citizens of Missouri wished to restrict the legislature’s
power regarding which bills it can reconsider and when the reconsideration can
occur. As such, the court believed that
the subsequent amendments enacted by the people of Missouri have made a clear
distinction between regular bills returned by the governor and late-vetoed
bills.
While
perhaps not as clear a distinction as the court leads us to believe it is in
its decisive opinion, it does appear a distinction was contemplated through the
legislative history of the constitutional provision. In comparing the first draft of the bill with
its form today, it becomes apparent that the provision has been revised to
incorporate temporal restrictions for the general assembly in overriding a
governor’s veto of a bill. As such, the distinction between regularly
vetoed bills and late-vetoed bills becomes one of significant importance if the
legislature fails to follow the proper procedures, as demonstrated here.
Although
the dissent argues the majority reads into the provision restrictions that are
not there, and that the majority improperly restricts the legislature’s plenary
power, the majority explains that there is not a single prior instance in which
the legislature has attempted to override the governor’s veto as they tried to
do here. As such, the legislature does not appear
to possess any apparent clear-cut plenary power, as the dissent argues it has. Therefore, it seems the majority made a
logical and well-reasoned interpretation of article III, section 32 of the
Missouri Constitution in reversing the circuit court’s decision.
- Ethan Duckworth
[1] Pestka v. State, No. SC
95369, 2016 WL 4036758, at *1 (Mo. July 26, 2016).
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id. at *2.
[11] Id.
[12] Id.
[13] Id. at *1.
[14] Id.
[15] Id.
[16] Mo. Const. art. III, § 32 (amended 1970).
[17] Id.; see also Pestka, 2016
WL 4036758, at *3.
[18] Mo. Const. art. III, § 32 (amended 1972).
[19] Id.; see also Pestka, 2016
WL 4036758, at *3.
[20] Mo. Const. art. III, § 32 (amended 1988).
[21] Mo. Const. art. III, § 32.
[22] Pestka, 2016 WL 4036758, at *4.
[23] Id. at *6.
[24] Id.
[25] Id.
[26] Id. at *5.
[27] Id.
[28] Id. at *6.
[29] Id.
[30] Id.
[31] Id. at *7 (Russell, J., dissenting).
[32] Id.
[33] Id.
