Redmond v. Ray

RAWLINGS, Justice

(dissenting).

Being unable to agree with the majority’s ultimate reasoning in Division III or the result reached, I respectfully dissent. It is also to me apparent the majority draws an erroneous conclusion fraught with calcul-ably troublesome futuristic problems. I would therefore reverse and in so doing hold the legislature’s May 20th intra-session adjournment triggered art. Ill, § 16’s pocket veto clause.

I. Preliminarily, I have no quarrel with the substance of the majority’s Division I and II or the three principal federal cases, Okanogan, Methow, etc., Tribes v. United States, 279 U.S. 655, 49 S.Ct. 463, 73 L.Ed. 894 (1929) (The Pocket Veto Case); Wright v. United States, 302 U.S. 583, 58 S.Ct. 395, 82 L.Ed. 439 (1938); and Kennedy v. Sampson, 167 U.S.App.D.C. 192, 511 F.2d 430 (1974). The Iowa Constitution, even more clearly than its federal counterpart, limits return-preventing adjournments to those which are final or sine die. This is because our framers specifically limited use of the pocket veto to “[a]ny bill submitted * * during the last three days of a session”. I also agree that those are calendar not session or legislative days.

*860II. On the other hand, I take issue with the majority’s application of those general rules to the instant uncontroverted facts. In brief, the May 20th adjournment is easily distinguishable from Wright, Kennedy v. Sampson, and almost every supportively cited state court decision in one critical aspect: When the adjournment ended June 13th, legislative business did not resume and such was never really intended.

As The Pocket Veto Case observes, 279 U S. at 680, 49 S.Ct. at 467, the determinative question is not what label to give this adjournment but whether it is one which prevents return of a vetoed bill to the legislature. And as amplified by Wright and Kennedy v. Sampson, an adjournment prevents return only if the reason for such return — legislative reconsideration — is no longer possible. Wright, 302 U.S. at 596-597, 58 S.Ct. at 401; Kennedy v. Sampson, 167 U.S.App.D.C. at 201-203, 511 F.2d at 439-441.

Normally, reconsideration is possible until final adjournment and the wording of art. Ill, § 16 reflects that understanding. But here reconsideration was hardly possible after May 20th. On that date the legislature completed its business, disbanded and went home. As a practical matter, the June 13th meeting was never meant to be other than a ceremonial finish.

Closest on point is The Pocket Veto Case. There the House adjourned sine die on July 3, 1926, eight days after presentation, but the Senate adjourned to November 10th, sat as a court of impeachment during the interim, then reconvened and immediately adjourned sine die. Yet there was no question that July 3rd was the congressional, session’s final adjournment for purposes of the veto issue. 279 U.S. at 672 & n. 1, 49 S.Ct. at 464. In contrast, the intra-session adjournment in Kennedy v. Sampson was merely a Christmas recess, followed by months of active and official congressional business.

The majority bridges this sizeable gap between Kennedy v. Sampson and our case by concluding that nothing prevented the legislature from conducting business on June 13th and for several days thereafter, thus enabling it to reconsider SF 7. From a strictly legal viewpoint this may be true. Realistically, however, such an extension of the legislative session is burdened with difficult obstacles such as producing, perhaps on very short notice, a quorum in both houses. In sum total, I am persuaded no reconsideration-enabling extension was intended when SCR 27 was adopted. Consequently, we should hold the May 20th intra-session adjournment prevented return of SF 7 and thereby triggered the pocket veto clause.

III. Even if I were convinced a last minute recall of the legislative troops for a June 13th reconsideration and override vote was both intended and possible, it is to me self-evident the spirit of art. III, § 16, requires the same result.

As the majority properly observes, Iowa’s Constitution scrupulously safeguards the right of our legislative branch to reconsider vetoed bills. Nevertheless, it is just as important to our constitutional framework that time granted the executive be not truncated. This is especially true under Iowa’s version of the pocket veto which serves an additional purpose, not contemplated by the federal framers, therefore not considered by federal courts. The majority recognizes art. Ill, § 16 grants the Governor an additional twenty-seven days consideration right when the pocket veto clause is triggered, but fails to give it substance. I find it instantly controlling.

As evidenced by the majority’s quotation of the 1857 constitutional debates, the involved time extension’s purpose is not open to conjecture. The Governor is thereby provided sufficient opportunity to digest the flood of legislation passed during a session’s closing days in order to intelligently approve or veto. This problem, prompting the framers’ concern, has survived passage of time. Stipulated evidence reveals that in an average recent year more than a third of the bills passed were presented to the Governor during the session’s last three days. In 1977 it was even worse: 113 of the 165 bills passed were presented after May 18th.

*861Of course, these eleventh hour enactments also pose a problem for the legislature, because history has proven it is physically impossible to put all enacted bills into final, official form for presentation to the Governor before sine die adjournment. Due to the fact our Constitution provides no remedy for this, legislative problem a device such as SCR 27 has become necessary in order to extend the legislature’s official life beyond close of official business until all clerical tasks are completed. Surely the legislature’s authority to employ such a device or its desirability is not open to question. But SCR 27, as interpreted by the legislative staff and plaintiffs, serves to preclude intended and purposeful application of the pocket veto clause. Therefore, it stands in unacceptable derogation of the separation of powers and in my view cannot be tolerated.

Pertinent portions of SCR 27 are set forth in the majority opinion and need not be here repeated. The majority also describes the confusion as to what was said versus what was meant and done. However, my problem with plaintiffs’ interpretation of SCR 27 and what was done is that the legislature thereby gained reconsideration rights over a bill which its staff could not prepare in time for gubernatorial submission before the last three business days. Yet SP 7 is among the very bills about which the framers were concerned when the thirty day amendment to art. Ill, § 16, was adopted.

If plaintiffs’ interpretation of SCR 27 is accorded constitutional approval, then in-tra-session adjournments may be so abused as to completely abrogate the pocket veto clause.1 Illustratively, there is no way to distinguish between SCR 27 and a similar resolution which would direct presentation of all bills on a certain date and provides for sine die adjournment four days later.

IY. Furthermore, it is no answer that political realities make such legislative abuses unlikely. Iowa’s Constitution is the foundation of its government and our courts must keep it flexible enough to withstand the pressures of time and political aberration. Concerned with the delicate balancing act required by the veto power another court has aptly cautioned:

“Within the constitutional scheme, there is large leeway, through mutual arrangement and understanding, for the President and Congress to accommodate each other’s needs and interests. But the veto provisions of the Constitution were also designed to apply in eras of hostility, coolness, partisan tactics, or simple lack of concern.” Eber Bros. Wine & Liquor Corporation v. United States, 837 F.2d 624, 629, 167 Ct.Cl. 665, 673 (1964).

I do not mean to hereby impugn in any way the motives of plaintiffs, the Sixty-Seventh General Assembly, or its clerical staff. At the Governor’s request the legislature attempted to find a better solution to its clerical backlog than clock-stopping. Obviously, these internal problems are for the legislature to remedy as it alone sees fit, but this must be done in a manner respectful of the veto power’s boundaries. The SCR 27 intra-session adjournment existed for one and only one intended purpose: completion of staff operations after official legislative business was finished. It cannot be properly used, unintentionally or otherwise, to accomplish in staff offices *862what legislators failed to do on their respective house floors: pass SF 7 early enough in the session to ensure presentation, return and reconsideration before session’s end.

Because SCR 27, as interpreted and effectuated by the legislature and approved by the majority, indirectly but significantly infringed upon powers reserved to the Governor pursuant to art. Ill § 16,1 conclude the May 20th intra-session adjournment prevented return of SF 7 thereby triggering the pocket veto clause. Trial court’s determination that the veto of SF 7 was invalid as untimely should not be allowed to stand.

LeGRAND, REES and REYNOLDSON, JJ., join this dissent.

. The present case is a prime example of the prudential limits beyond which otherwise valuable federal precedent should not be stretched in construing our Constitution. The virtually complete abrogation of pocket vetoes suggested by Kennedy v. Sampson and urged by commentators is simply not appropriate in Iowa. We have a duty to interpret our veto clause and give effect to its relatively unique verbiage. Cf. State v. Longbine, 263 N.W.2d 527, 529 (Iowa 1978) (McCormick, J., concurring specially); In Interest of Johnson, 257 N.W.2d 47, 49 (Iowa 1977) (McCormick, J., concurring spe-daily); Chicago Title Ins. Co. v. Huff, 256 N.W.2d 17, 23 (Iowa 1977). See generally A. Howard, State Courts and Constitutional Rights in the Day of the Burger Court, 62 Va.L.Rev. 873, 874-879 (1976). I would have no objection to a device, be it a permanent statute or an annual resolution, which in fact permitted legislative reconsideration over any and all vetoed bills, as long as it respected the constitutional mandate that the Governor have adequate time to consider any last minute flood of legislation. Because SCR 27 carries no such protections I cannot approve it.