Attorneys for Appellants Attorneys for Appellees
Peter J. Rusthoven Karl L. Mulvaney
J. Michael Grubbs Nana Quay-Smith
Stanley C. Fickle Rafael A. Sanchez
Deborah Pollack-Milgate Indianapolis,
Indiana
Mark J. Crandley
Thomas F. Shea Jon B. Laramore
Indianapolis, Indiana Counsel to Governor
Indianapolis, Indiana
Steve Carter
Attorney General of Indiana
Gary Damon Secrest
Chief Counsel
Frances H. Barrow
Deputy Attorney General
Indianapolis, Indiana
____________________________________________________________________________
__
In the
Indiana Supreme Court
_________________________________
No. 49S05-0310-CV-437
D & M Healthcare, inc., et al.,
Appellants (Plaintiffs below),
v.
Joseph E. Kernan, in his official
capacity as Governor of the
State of Indiana, et al.,
Appellees (Defendants below).
_________________________________
Appeal from the Marion Superior Court, No. 49D06-0205-PL-000846
The Honorable Thomas J. Carroll, Judge
_________________________________
On Petition To Transfer from the Indiana Court of Appeals, No. 49A05-0301-
CV-26
_________________________________
December 17, 2003
Boehm, Justice.
House Enrolled Act 1866 as passed by the 2001 General Assembly would
prohibit the Family and Social Services Administration (“FSSA”) from
adopting rules that would reduce reimbursements to nursing facilities. The
bill was passed by both houses but the Governor vetoed it and delivered the
bill back to the House after the legislative session had adjourned. The
Plaintiffs are several nursing home facilities who seek a declaratory
judgment that House Enrolled Act 1866 became law despite the Governor’s
veto. The Plaintiffs claim that the Governor’s veto, subsequently
sustained by a vote of 85-1, was ineffective because the Governor’s veto
message was delivered six months before the Indiana Constitution calls for
it to be returned to the legislature. The trial court entered a judgment
in favor of the Defendants but the Court of Appeals reversed, agreeing with
the Plaintiffs that the Governor’s attempted veto did not prevent the bill
from becoming law. This Court granted transfer.
For the reasons explained in Part II, we conclude there was no
violation of the constitution. But the short answer to the Plaintiffs’
claim is set forth in Part I. In summary, if there is any irregularity, it
is not a matter the courts have any business entertaining because any
departure from prescribed procedure was wholly trivial and provides no
basis to invalidate the Governor’s veto.
Why We Are Not Recusing
The parties cite a number of bills over the past twenty years that,
like the bill involved in this case, were also vetoed and returned by
Governors Orr, Bayh, and O’Bannon before the next legislative session.
Among these is a bill providing a raise in pay for all state judges and
legislators.[1] The issue presented in this case is therefore of intense
interest to both judges and legislators.
This important legislation was long overdue. Unlike many government
employees, legislators, judges, and elected executive officers receive no
annual salary review. Even if the veto had been overridden, judicial and
legislative salaries would not have kept up with inflation since the last
pay adjustment. The State has failed to address judicial pay since 1995,
with the last adjustment in 1997. This is particularly egregious because
judges participate in the state medical plan and bear the costs shifted by
the State to its employees in recent years, but do not receive the
compensating allowance given to executive branch employees. As a result,
judges have not only seen declines since 1995 in real income measured by
cost of living, and they now have their net dollars reduced as well.
Legislators have other employment and executive officers typically serve
for a period of time and return to the private sector. Most judges, on the
other hand, are full-time career government employees. Many are principal
breadwinners and are dependent on their salaries to provide for their
families and educate their children.
Acting in our capacity as leaders of the judicial branch, members of
this Court have attempted to persuade the legislature that it should
frequently revise judicial pay. Indeed, we have specifically contended
that the State should place legislative, executive, and judicial salaries
on a regular system of review to reflect inflation without the large,
irregular, and sometimes long-delayed increases generated by sporadic
individual legislation. We have also argued to both executive and
legislative officers that failure to have predictable, modest pay
adjustments costs the State substantially in financial terms through high
turnover and early retirement and also in efficiency through loss of
morale. We even spoke directly to Governor O’Bannon in favor of the 2001
legislative and judicial pay bill. Therefore, although we have expressed
no view on the validity of the veto, we have expressed positions in public
on the desirability of vetoed legislation that we assume would be affected
by the ruling on this case.
Our personal financial interests and expressed views would normally
preclude participation in this case. Yet we must address this claim
because there is no one else to do it. United States v. Will, 449 U.S.
200, 211-16 (1980) (because every judge had an interest in the outcome of
the case involving judicial salaries, the “Rule of Necessity” required that
they not recuse themselves); Evans v. Gore, 253 U.S. 245, 246-48 (1920)
(taxation of judicial salaries), overruled on other grounds, United States
v. Hatter, 532 U.S. 557 (2001); Bd. of Trs. of Pub. Employees’ Ret. Fund v.
Hill, 472 N.E.2d 204, 206 (Ind. 1985) (judicial pension); Chairman of Bd.
of Trs. of Employees’ Ret. Sys. v. Waldron, 401 A.2d 172, 173-75 (Md. 1979)
(judicial pension); Nellius v. Stiftel, 402 A.2d 359, 361-62 (Del. 1978)
(judicial salary); Schwab v. Ariyoshi, 555 P.2d 1329, 1331 (Haw. 1976)
(judicial salary). Despite our view that this legislation is important to
the State, we cannot simply decree our own policies. Rather, we are
obliged to address this claim, like any other, based on our best assessment
of the applicable law. We conclude that we must sustain the Governor’s
veto.
Factual Background
The relevant facts are few and simply stated. On April 29, 2001, the
House passed House Enrolled Act 1866 in the form previously passed by the
Senate after it was recommended by a Conference Committee composed of
members of both houses. The General Assembly adjourned that day. The
Clerk of the House of Representatives presented the bill to Governor
O’Bannon on May 4, 2001. Seven days later, on May 11, the Governor vetoed
and delivered the bill to the House. His veto and veto message were
reported in the House and Senate Journals on that date. The House was not
in session on May 11 and first reconvened on November 20, 2001, the
“Organization Day” for the 2002 session. The initial meeting day of the
2002 session was January 7, 2002. On March 14, 2002, the House voted 85-1
to sustain the Governor’s veto.
Article V, Section 14 of the Indiana Constitution reads in relevant
part:
(a) Every bill which shall have passed the General Assembly shall be
presented to the Governor. The Governor shall have seven days after
the day of presentment to act upon such bill as follows:
* * *
(2) He may veto it:
* * *
(D) In the event of a veto after final adjournment of a session
of the General Assembly, such bill shall be returned by the Governor
to the House in which it originated on the first day that the General
Assembly is in session after such adjournment . . . . If such bill is
not so returned, it shall be a law notwithstanding such veto.
Ind. Const. Art. V, § 14(a)(2)(D).
I. Plaintiffs Cite No Cognizable Harm
At some point in the prehistory of the common law, courts formulated
the eminently practical doctrine now sometimes colloquially referred to as
“de minimis” but formally stated as “de minimis non curat lex.” Freely
translated from the Latin, it proclaims that the law does not redress
trifles.[2] In contemporary American vernacular, it is the courts’ way of
saying “So what?” If there is no “what,” the courts do not provide relief
to ordinary litigants and certainly do not interfere with the operations of
the other branches of government. This doctrine is relevant here.
Plaintiffs cite no practical consequences of the Governor’s delivery of the
vetoed bill before the first day the legislature reconvened, rather than on
that date. And it is obvious there were none. The bill was “returned” and
ready for legislative action at the first moment the General Assembly could
consider it. No wheel of the machinery of government was slowed and no
change in the bill’s status was effected by its delivery on May 11 rather
than on November 20. To the extent there was any effect of the allegedly
premature delivery, it was to expand by a few hours on November 20 the time
the legislature had to consider the matter. In short, there is no
substance to the Plaintiffs’ claim.
The de minimis doctrine is closely related to the idea of substantial
performance, which teaches that minor irregularities that do not affect the
finished product do not provide the basis for a lawsuit. Max L. Veech &
Charles R. Moon, De Minimis Non Curat Lex, 45 Mich. L. Rev. 537, 549
(1947). One may view these doctrines as denying legal intervention where
no significant injury is inflicted, at least for unintentional wrongs, or
as denying legal intervention where the process complained of is out of
specification but in the end produces the same result that would have
emerged from strict conformance. Hessel v. O’Hearn, 977 F.2d 299, 303-04
(7th Cir. 1992). Plaintiffs’ complaint about the Governor’s veto in this
case suffers from both defects. No harm whatsoever was inflicted on the
legislative process. And delivery before rather than “on” the first day
achieved everything necessary for the process to work.
Plaintiffs make much of the fact that the language on which they rely
is found in the Indiana Constitution. But common sense has driven our
constitution from the earliest time.[3] It was the order of the day in
1816 and 1851 when that document was framed, and in 1970 when it was
amended to include the provision at issue here. The de minimis maxim was
early developed as a tool for the interpretation of documents. As one
leading authority put it, “it is a rule of reason, a substantive rule that
may be applied in all courts and to all types of issues.” Veech & Moon,
supra, at 542. The Supreme Court of the United States explained that the
doctrine “is part of the established background of legal principles against
which all enactments are adopted, and which all enactments are deemed to
accept.” Wis. Dep’t of Revenue v. William Wrigley, Jr., Co., 505 U.S. 214,
231 (1992).[4] Thus, “from the earliest Roman times” it has invariably
been the case, “[w]hether the court be applying a constitutional, statutory
or common law rule of law, it has felt empowered to interpret that rule
with the aid of de minimis non curat lex.” Veech & Moon, supra, at 543.
The doctrine was well recognized before Indiana became a state. Ware v.
Hylton, 3 U.S. (1 Dall.) 199, 268 (1796) (“De minimis non curat lex, is an
old law maxim.”); Hill’s Lessee v. West, 4 Yeates 142, 156 (Pa. 1804);
Roberts v. Todd, 2 Ky. (Sneed) 187, 187 (Ky. 1802). And James Madison
early invoked it as to constitutional issues: “the best that can now be
done, may be to apply to the Constn. the maxim of the law, de minimis non
curat.” Letter from James Madison to Edward Livingston (July 10, 1822),
reprinted in 5 The Founders’ Constitution 105 (Philip B. Kurland & Ralph
Lerner eds.,1987).
In applying the maxim, by far the most significant factor is the
purpose behind the phrase to be interpreted. Veech & Moon, supra, at 545.
This was recognized by then Chief Justice Holmes of the Massachusetts
Supreme Court in ruling on a challenge to the use of voting machines based
on the explicit requirement in the Massachusetts Constitution that
representatives be chosen by “written vote.” In re House Bill 1291, 60
N.E. 129, 130 (Mass. 1901). Over a century ago, this common sense approach
prevailed over formalism. Election by voting machines was constitutional
because the machines served the purpose and form of written votes, though
not literally compliant. Id. Similarly, the Supreme Court of Nebraska
upheld constitutional amendments even though the procedures used to enact
the amendments did not follow the letter of the state constitutional
requirement that proposed constitutional amendments be published regularly
in newspapers. State ex rel. Thompson v. Winnett, 110 N.W. 1113, 1115-17
(Neb. 1907). Because there was substantial compliance with the
constitution, albeit incomplete compliance, the Supreme Court of Nebraska
upheld the amendments. Id. at 1116.
Here we think it obvious, for the reasons explained in detail in Part
II, that the purpose of the language at issue here is to assure that the
legislature have the earliest possible opportunity to consider, and, if it
so chooses, to override a veto. The Governor’s veto message here fully met
that objective, and no one has suggested any nefarious consequence arising
from the procedure followed by the Governor in making clear his rejection
of the bill. Section 14 is also designed to provide a bright line for the
time to veto a bill, after which a returned veto is ineffective. The issue
is not what “on” a given date means. We agree that the constitution sets a
bright line and requires that the governor deliver the veto by that date or
forego the privilege. Rather, the issue is what it means to say that the
bill is or is not “returned” on that date. For the reasons explained in
Part II, we think a veto message delivered before the legislature
reconvenes is “returned” on that date. We think no one would argue that a
statute of limitations requiring a suit to be filed “on” a given date would
bar a claim filed before that date. Just as a suit filed before a
specified date is “filed on” that date, so also was the Governor’s veto
“returned on” the first day of the legislative session. In short, the
constitution surely provides a bright line for governors to execute their
veto power. The issue is whether that line is a deadline or a point in
time.
Long ago, modern observers recognized as a “vice of the law” its
“tendency to attribute undue importance to form as opposed to substance,
and to exalt the immaterial to the level of the material.” Salmond,
Jurisprudence § 10, at 25 (6th ed. 1920). Plaintiffs’ theory in this case
takes that vice to new pinnacles and disregards the many practical and
sound cases from this Court and others recognizing that immaterial
variances from prescribed procedures have no legal fallout. See, e.g.,
Ind. State Highway Comm’n v. Morris, 528 N.E.2d 468, 470-71 (Ind. 1988)
(plaintiff who sent notice of claim to the State Highway Commission but not
to the Attorney General as required by the Tort Claims Act substantially
complied with the statute); Porter v. State, 271 Ind. 180, 200-01, 391
N.E.2d 801, 816 (1979) (minor irregularities in jury selection did not
constitute reversible error where there had been substantial compliance
with the statute), overruled on other grounds, Fleener v. State, 274 Ind.
473, 412 N.E.2d 778 (1980). In fact, as explained in Part II.E,
Plaintiffs’ proposed reading of the constitution not only solves no
problems; it raises new ones. Because the Governor’s veto substantially
conformed to the constitutionally prescribed process, the veto was properly
returned to the legislature. Because the House of Representatives then
sustained the veto by a vote of 85-1, the bill did not become law.
II. The Constitution Was Not Violated
A. The Meaning of “Is Not So Returned” in Section 14
Plaintiffs argue that Section 14 is unambiguous. The constitution
says that if a bill “is not so returned” by the governor “on” the first day
of the next session, it becomes law. Thus, to veto a bill after the
General Assembly has adjourned, the bill must be “returned” on that
date.[5] The constitution also says that if a bill “is not so returned” it
“shall become law.” Plaintiffs contend the meaning of this constitutional
provision is clear and unequivocal and therefore its plain meaning must be
given effect. Plaintiffs further argue that the governor’s veto power
“‘must be strictly construed’” because it is a “‘restriction upon the
legislative branch of the government and is in derogation of the general
plan of government for the separation of powers.’” (Br. of Appellants at
10 (quoting Hendricks v. State ex rel. N.W. Ind. Crime Comm’n, Inc., 245
Ind. 43, 52, 196 N.E.2d 66, 70 (1964)).)
We do not agree that the provision is as clear as Plaintiffs contend.
Plaintiffs, quoting Webster's Collegiate Dictionary 990 (1977), argue that
“return” should be given its ordinary meaning, and that is “to send back.”
The State responds that there is an ambiguity in Section 14 that derives
solely from its text, and if vetoed bills must be “returned” on the first
day, that is what occurred here. As the Governor puts it, the “physical
return of the veto allowed the ‘return’ to be accomplished (completed) on
the first day of the next session. It is undisputed that the vetoed bill,
with the Governor’s objections, was physically present on the first day of
the next session in the house of origin as required by Art. V, § 14.”
(Pet. to Transfer at 5.) As the Governor argues, if a veto is returned
before a given date, in one sense it remains returned at all times after
that. This nicety turns on whether “is returned” is a verb (the equivalent
of “to be returned”) or a description of its status (it shall be a returned
bill on this date). In sum, although the Plaintiffs’ reading of the text
is certainly plausible, it is not the only permissible one.
The history of Section 14 also suggests that “shall be returned . . .
on the first day” and “is not so returned” are not as clear as Plaintiffs
claim. Section 14 was amended in 1972 to address a number of problems in
the 1851 constitutional provision for the veto of legislative bills.
Before the 1972 amendment, Section 14 provided that a bill became law
unless the governor vetoed and returned it to the house of origin within
three days of its presentment. If the General Assembly was adjourned, the
governor was to file the bill and his veto with the Secretary of State, who
would then return it to the assembly “at its next session.” The 1851
provision prohibited the presentment of bills within two days of the
General Assembly’s final adjournment. The principal concern over these
provisions arose from the practice of the “pocket veto” that had developed
over time. In several cases, a governor had simply done nothing with a
bill passed shortly before a recess or adjournment. The result was to
stymie the constitutional process by preventing the Secretary of State from
presenting the bill to the legislature. On the last day of 1968, the Court
of Appeals held this practice invalid, but expressly stated that its
holding would not apply retroactively to earlier legislation. State ex
rel. Mass Transp. Auth. of Greater Indianapolis v. Ind. Revenue Bd., 144
Ind. App. 63, 73, 242 N.E.2d 642, 648 (1968). The result was that the
pocket veto in that case failed and any future attempts by governors to
pocket veto bills would be unsuccessful. This Court, by a 2-2 vote, denied
transfer. State ex rel. Mass Transp. Auth. of Greater Indianapolis v. Ind.
Revenue Bd., 251 Ind. 607, 244 N.E.2d 111 (1969). As a result of that
case, Section 14 became a focus of attention. The current version became
part of the constitution in 1972, with immaterial changes in 1990. It was
designed to deal with several issues in the veto process. Specifically,
the amendment was designed to abolish the “pocket veto” by imposing a short
deadline for the governor to act.[6] To do this, the amendment extended
the time for post-adjournment veto from five to seven days, required a
vetoed bill to be returned to the legislature by the governor rather than
the Secretary of State, and required that the bill be returned on the first
day of the legislature’s next session rather than at some indefinite time
“at its next session.” If these steps are not taken, the constitution
provides that the bill becomes law.
This constitutional provision was first passed by the 1969 General
Assembly and was approved by the voters in 1972. In 1969, when the
language was drafted, the Indiana constitutional provision dealing with
gubernatorial vetoes was, as today, in Article V, Section 14. It provided:
If any bill shall not be returned by the governor within three days
(Sundays excepted) after it shall have been presented to him, it shall
be a law, without his signature, unless the general adjournment shall
prevent its return; in which case it shall be a law, unless the
governor, within five days next after such adjournment, shall file
such bill, with his objections thereto, in the office of the secretary
of state; who shall lay the same before the general assembly, at its
next session, in like manner as if it has been returned by the
governor. But no bill shall be presented to the governor within two
days next previous to the final adjournment of the general assembly.
Ind. Code Ann. Const. Art V, § 14 (West 1999) (Historical Notes) (emphasis
added).
As the italicized phrase shows, the constitution itself assumed that
if the General Assembly was not in session, that circumstance “prevented”
the governor from “returning” a veto. The reason adjournment “prevented” a
“return” is found in the history of the operation of the legislature. In
1969, there was far less permanent staff of the sort that had become common
by the 1980s. Justin E. Walsh, The Centennial History of the Indiana
General Assembly, 1816-1978, at 533-35, 607-08 (1987). The Legislative
Sessions and Procedures Act, Ind. Code § 2-2.1-1 (1998), was first passed
in 1971, and the Legislative Council was first created in 1967, Ind. Code
Ann. § 2-5-1.1-1 (West 2000) (Historical and Statutory Notes). Indeed,
there was no Legislative Services Agency until 1978. Ind. Code Ann. § 2-5-
1.1-7 (West 2000) (Historical and Statutory Notes). In 1971, pursuant to a
constitutional amendment approved by the voters in 1970 allowing the
General Assembly to fix the length and frequency of its sessions, the
General Assembly first began meeting annually rather than in the biennial
sessions called for by the 1851 Constitution. Ind. Const. Art. IV, § 9;
Ind. Code Ann. §§ 2-2.1-1-2, -3 (West 2000) (Historical and Statutory
Notes); Ind. Chamber of Commerce, Here Is Your Indiana Government 1997-
1998, at 28-29, 53 (28th ed. 1997). At the same time, the Legislative
Services Agency assumed a greater role and the legislature provided for a
year-round staff. Walsh, supra. This change is reflected in both the
House and Senate Standing Rules and Orders of 1969 and 1971. In 1969,
neither body’s Rules and Orders mention the possibility of filing bills
before session, but in 1971 both provide for that possibility. All of
these changes occurred, however, after the amendment to Section 14 was
drafted and first passed by the 1969 legislative session.
In light of this history, and the practices of the day at the time
Section 14 was written, we think it clear that the 1851 provision for
gubernatorial veto, still in effect in 1969, reflected an assumption of a
citizen legislature that did not meet in the even-numbered years and truly
disbanded to return to everyday life in the twenty months between the
biennial sessions called for in Article IV, Section 9 as it read from 1851
until 1970. The concept of “session day” had been adopted in recognition
of the reality that the legislature could not conduct its affairs in sixty-
one calendar days, and interim recesses were prevalent in addition to
adjournment until the next session. Under this regime, if neither branch
was in session, the assumption of the drafters of the 1851 Constitution and
the mindset of the 1969 legislature was that the General Assembly was not
in business. As a result, there was no one to whom the governor could
“return” a vetoed bill. The provision in Section 14 that the bill be
“returned on” the first day of the next session was seen as requiring that
it be “returned” at the earliest possible date that a return could be
accomplished. Under current legislative procedures there is of course a
window of time between the adjournment and the first day of the next
session when the legislative staff is open for business and a physical
delivery is possible. But at the time it was written, Section 14 was seen
as both setting a deadline and requiring that the vetoed bill be available
at the earliest possible date to allow the legislature to override it.
Plaintiffs make the point that the constitutional framers have chosen their
words carefully. When they intend an event to occur on a specific date,
they use the word “on,” and when they intend to create a deadline, they use
the words “by” or “before.” Given the practice at the time, however, the
language that Plaintiffs contend is unambiguous is in fact quite unclear as
to its intended result, if, as was not thought possible in 1969, a bill was
physically delivered before a new session was convened.
B. The Practice of the Executive and Legislative Branches Under
Section 14
The clarity Plaintiffs claim is called into question by at least two
decades of practice by both governors and the legislature. The State
argues that the Governor and General Assembly’s actions indicate their
understanding of the constitution and reflect the practice of at least
three governors and the legislature dating at least to 1982. In addition
to the pay bill discussed above, a variety of other laws are claimed to
have been vetoed by the same process and could be resuscitated by the
Plaintiffs’ success here.[7] Plaintiffs respond, and we agree, that past
practice of the governor and the General Assembly cannot validate an
unconstitutional process. They note that Mass Transportation so held in
condemning the “pocket veto” that was the subject of that case. The pocket
veto, however, involved a practice that arguably directly contravened the
constitutional requirement that the governor face the veto issue and take
responsibility for it by signing a veto and returning the bill.
Accountability and visibility of the governor’s torpedo are plainly
legitimate objectives of the framers. Here we have an entirely different
issue. We are faced with interpretation of a provision that is susceptible
to different readings. No one advances any policy that was frustrated by
the practice of physical delivery during adjournment, producing a bill that
“is returned” at all times after delivery, including on the first day of
the next session. The actions of both governors and the General Assembly,
rather than “flouting” the constitution, may be taken simply to evidence
their understanding of the constitutional requirement over some two
decades, with no suggestion from either branch or by any court that the
practice was questionable.[8]
Both sides cite the practice of prior governors and legislatures as
an aid to the construction of Section 14. The Governor and the Attorney
General argue that past veto messages show a consistent pattern that
reflects the understanding of governors and legislators over at least
twenty years that the procedure followed with respect to House Enrolled Act
1866 conformed to the constitution. In all of these cases, the “Messages
After Adjournment” section of the journals reflects veto messages, and in
most cases the message bears a date within ten days after adjournment and
before the next session. A few are undated. The fact that the messages
appear in the “Messages After Adjournment” section of the old session,
rather than in the journal for the new session, suggests that the messages
were indeed received by the legislature before the new session convened,
but this is merely an inference. Similarly, some of these messages stated
that the governor was “vetoing” and “returning” the bill on the date of the
message, which also suggests delivery on that date. But, that also is
inconclusive as to the timing of delivery of the vetoes. In other cases,
the message stated simply that “I have vetoed” the bill, and said nothing
about its delivery.[9]
Plaintiffs point out that in some instances the veto message appears
in the journal for the first day of the ensuing session, and contend that
this shows the legislature received some messages on the first day of
reconvening. From this, they argue that there has been no consistent
practice of delivering veto messages before the first day of the following
session. This argument seems to proceed from a fallacious premise. The
journal entries of veto messages in the ensuing session in most cases
appear on the date of the override vote, not the date the governor
delivered the veto message. The entries do not purport to establish that
the messages were delivered on the first day, and it is clear that in many
cases the entries were not the date of delivery.[10] It is true that in
the instances the Plaintiffs cite the veto message appears on the first
day. But in almost all of those cases, the first day was also the day the
bill was subject to an override vote.
The veto messages appear in various formulations. Although it is
clear from the journal entries when the governor signed each message, and
some recite that the return is concurrent with the veto, we are directed to
no independent evidence of the date on which the message was delivered to
the legislature. As a result, although it is clear that a substantial
number of these bills, and perhaps all, were vetoed by the procedure used
to veto House Enrolled Act 1866, in several instances we are unable to
determine with confidence whether the veto is or is not in that category,
and in some it seems likely the bills were delivered on the first day.
Nevertheless, it is clear that for many years, beginning within a decade of
the effective date of the current Section 14, at least some vetoes were
delivered before the next session without objection by the legislature.
The State contends that this history demonstrates that the practice of
delivery before the first day is consistent with the constitution. There
is certainly support for the view that legislative or executive practice
can build a patina on the constitutional framework. Youngstown Sheet &
Tube Co. v. Sawyer, 343 U.S. 579, 610-11 (1952) (“[A] systematic, unbroken,
executive practice, long pursued to the knowledge of Congress and never
before questioned . . . may be treated as a gloss on ‘executive Power’
vested in the President . . . .”); United States v. Midwest Oil Co., 236
U.S. 459, 474 (1915) (noting that a president’s “long-continued practice,
known to and acquiesced in by Congress” creates “a presumption” that the
practice is a proper exercise of the president’s power); Lutz v. Arnold,
208 Ind. 480, 508, 193 N.E. 840, 851 (1935) (“In determining whether the
Legislature had the constitutional right to enact certain legislation, the
Legislature’s interpretation of its power is entitled to great weight, and
especially where acquiesced in for a long period of time.”). Regardless of
whether the message was delivered before the first day in every case, the
constant delivery of vetoes before the first day is a salient fact here and
evidences approval of the practice over most of the life of current Section
14.
The State also notes that Section 14 was amended in 1990 without
change in the language at issue here. For at least several years before
1990, governors had begun the practice of physical delivery of vetoed bills
before the onset of a new session. See Appendix A. Though there may be no
consistent practice of delivery “early” or waiting for the first day of
session, either was deemed acceptable by the governor and acted upon by the
General Assembly without protest. Amendment of a constitutional provision
without change to eliminate current practice has been cited as one factor
suggesting that the interpretation is permissible. Ratliff v. Cohn, 693
N.E.2d 530, 539-40 (Ind. 1998). Like prior practice, a subsequent
amendment does not justify disregard of the constitution, but a subsequent
amendment without change in language that has been construed in practice
suggests satisfaction with the governors’ and the General Assembly’s view
of how the provision applies. That is the case with Section 14.
C. The “Legislative History” of the Amendment
We are directed to no helpful comments from the unknown author of
Section 14 and no legislative history. In addition to relying on the text
of Section 14, Plaintiffs direct us to a 1970 Report of the Constitutional
Revision Commission prepared by the Legislative Council explaining the 1972
amendment. Plaintiffs point out that the Commission, in describing the
amendment, stated that it “requires the Governor to return to the General
Assembly on its first day in session a bill vetoed during a recess or
adjournment . . . .” Ind. Legislative Council, Report of the
Constitutional Revision Commission 10 (1970). The Court of Appeals relied
heavily on this report for its conclusion that the “drafters” intended not
merely to impose a deadline for vetoes, but also to require a return on a
specific date. D & M Healthcare, Inc. v. O’Bannon, 793 N.E.2d 241, 245
(Ind. Ct. App. 2003). On its face, the text of the Report would appear to
suggest the view that the 1972 Amendment to Section 14 was intended to
provide a specific date, not a deadline, for the return of a veto. The
Report did not address the issue whether physical delivery before the first
day created a “returned” bill. The quoted phrase is simply a description
of the amendment in the course of a discussion of the issue.
The Court of Appeals apparently accepted Plaintiffs’ assertion that
the Commission was the author of the constitutional language in question.
But the Report does not have the status of an authoritative commentary on
this constitutional amendment. Nor is it a report from the proposer of the
revision to Section 14. The Commission’s project to study the Indiana
Constitution and recommend changes began in 1967 and the Commission
ultimately recommended twenty constitutional amendments between 1967 and
1969. Report, supra, at 1. At the time the Commission submitted its 1970
report, the amendment to Section 14 had already been passed by the 1969
General Assembly, Indiana House Journal at 1980 (1969), and required
passage by the General Assembly to be elected in November 1970 before it
would be submitted to the voters in 1972 pursuant to Article XVI, Section 1
of the Constitution. In the 1970 Report that Plaintiffs cite, the
amendment to Article V, Section 14 was expressly excluded from those
identified as recommended by the Commission. The Commission specifically
noted in its introduction to the 1970 Report that the 1969 General Assembly
had already approved nine of the Commission’s “proposals.” In a footnote,
the Commission added: “A tenth amendment, also approved, was submitted by
an individual legislator and resulted from the court decision nullifying
the use of the pocket veto. The ruling was issued after the Commission had
concluded its report.” Report, supra, at 1. This footnote plainly refers
to the amendment that became current Section 14 and disclaims the
Commission’s parentage of it. If there were any doubt on this point, it is
removed by a review of the 1969 Report, which was the Commission’s first
official document and lists a number of recommended amendments. None of
these affected Section 14. See Constitutional Revision Comm’n, Biennial
Report to the Indiana General Assembly 1-4 (1969). Thus, although the
Report may approach the status of an official commentary on the
Commission’s recommendations for constitutional amendments pending at the
time, the Commission’s description of Section 14 is at most a
contemporaneous account of the amendment to Section 14, which did not
originate with the Commission.
Plaintiffs also cite a portion of the Report that described the
question resolved by the then-pending amendment to Section 14 as:
If the legislative sessions amendment [(then an amendment pending to
prevent recesses during session)] is approved, the General Assembly
could schedule recesses of one week or more during the session. How
would this affect the time limits? Should the Governor return vetoed
legislation during a recess or wait until the first day in session?
Report, supra, at 11. Once again, the Commission did not address the
effect of a delivery of a bill before the first day and did not directly
answer the question it posed. Rather, it simply made clear that a bill
“can be killed only through exercise of the veto.” Report, supra, at 11.
It did not address the mechanics of how a veto is delivered other than in
its passing description of the amendment.
We think the Commission’s observations on Section 14 are shaped by the
same mindset that generated the choice of language for Section 14. The
Commission’s references to “recess” in context are to recesses “for a week
or more” within a session, as well as to adjournment between sessions.
Because the pre-1972 Constitution required the veto in three days from
presentation, a recess during session would be problematic without the
amendment to Section 14. The amendment was to make clear that a pocket
veto would not be effective during a recess. In sum, the Commission’s
observations on the amendment to Section 14, which was not among its
proposals, are little more than a recitation of the language of the then-
pending amendment viewed through the lens of the then-current understanding
of when a “return” could first be accomplished, and addressing issues
different from the one presented here.
Finally, Plaintiffs cite a pamphlet given to voters describing the
amendment to Section 14. The reason given for the amendment was that “No
specific time of return is prescribed [in the 1851 Constitution], . . . and
it is unclear when it should be returned and, further, what the effect of
failure to return such legislation would be; would it be killed or could it
be acted upon at a later time, if returned?” Ind. Legislative Council,
Five Questions for Hoosier Voters 10 (1972). Plaintiffs argue that this
statement, along with the language of the amendment, told voters that the
amendment was to set a date certain upon which a governor has to return a
vetoed bill. But all this pamphlet says is that the amendment (1) sets a
deadline for exercising the veto, and (2) makes clear that a governor could
not veto by failing to return a bill as governors had in the past through
the pocket veto. Questions for Voters, supra, at 9-11. It does not state
that a governor must return a vetoed bill on a date certain.
D. The Function of Section 14
Because the language of Section 14 does not clearly resolve the
question before us, it is appropriate to look to the purpose of the
provision to illuminate its meaning. This proposition applies to
constitutional provisions as well as statutes. Ind. Gaming Comm’n v.
Moseley, 643 N.E.2d 296, 298 (Ind. 1994); Eakin v. State ex rel. Capital
Improvement Bd. of Managers of Marion County, 474 N.E.2d 62, 64-65 (Ind.
1985); Tarlton v. Peggs, 18 Ind. 24, 25 (1862) (construing Art. V, § 14);
State ex rel. Mass Transp. Auth. of Greater Indianapolis v. Ind. Revenue
Bd., 144 Ind. App. 63, 71, 242 N.E.2d 642, 647 (1968) (same), trans.
denied. Both sides argue that the purposes of Section 14 are furthered by
the construction they urge. All agree that one principal goal of the 1972
amendment was to provide a date certain by which the governor must act or a
bill became law without his signature. The pocket veto was thus to become
a relic of the past. And it seems equally clear that the Section was
intended to require the governor to act on a timetable that permitted the
legislature to respond to a veto during adjournment at the first
opportunity, i.e., on the first day of the next session. But Plaintiffs
identify no good reason why the constitution or its framers would wish to
prohibit a physical delivery of a veto before it is due. The use of
“returned on” simply reflects the then-current understanding that that date
was not only the desired deadline, but also the first opportunity to
complete a “return” of a bill to a branch of government that floated into
and out of existence from time to time. So viewed, the returned status is
accomplished only when the entity to whom return is required is present to
receive it. This construction does no violence to the framers’ objectives,
is consistent with the text, gives due respect to views of the other
branches, and is eminently practical.
E. Problems with the Plaintiffs’ View
To some it seems to defy common sense that major consequences attach
to the Governor’s having, as his counsel put it, “sent his homework in
early.” And, as explained in Part I, even if the veto was prematurely
delivered, that would not invalidate the veto. Physical delivery before a
bill is required to be “returned” contravenes no identified policy. But
there are also practical consequences to the Plaintiffs’ view that lead us
to conclude that it cannot have been the intended result of the language
chosen by the drafters of Section 14. The State points to the at best
awkward and perhaps disastrous situations created by the Plaintiffs’
proposed construction of Section 14. If a “return” cannot be effected
until November, laws having passed in the spring at the end of a usual
legislative session, which frequently purport to be in effect as of July 1,
will be in an uncertain status for several months. Plaintiffs contend that
uncertainty is inherent in the veto process because an override is
possible. But the legislature has addressed the effective date of vetoed
bills. A veto announced and physically delivered to the legislature before
the effective date makes clear that the law will not be effective unless
and until the veto is overridden. Ind. Code § 1-1-3.1-3(d) (1998); H.E.A.
1866 § 22, 112th Gen. Assem., 1st Reg. Sess. (Ind. 2001). By contrast, if
the Plaintiffs are correct and a veto cannot be completed until the next
session, the effective date of many bills will pass before that time.
Anyone affected by the law would be left in a period of several months of
uncertainty as to the lawfulness of actions taken in the interim period
between the law’s purported effective date and the first day of the next
session.
Conclusion
We agree that the Plaintiffs’ literal reading of Section 14 is
permissible and perhaps even persuasive if taken in isolation. But there
remains ambiguity in the language of Section 14. Both the legislative and
executive branches have treated numerous interim vetoes as effective as
long as they were delivered before the next session. We see no practical
reason for the construction the Plaintiffs urge, and significant
disadvantages to it. We conclude that Section 14 places a deadline for
physical delivery, but permits that to be done at any time, so long as the
result is a returned veto on the first day of the next session.
Accordingly, we hold that the Governor’s veto of House Enrolled Act 1866
was valid. Because the House then sustained the veto, the bill did not
become law. The Plaintiffs requested that the trial court enjoin the
implementation and enforcement of the rules adopted by FSSA as conflicting
with House Enrolled Act 1866. Because we conclude that House Enrolled Act
1866 did not become law, the rules are not subject to the flaw on which the
Plaintiffs rely. The judgment of the trial court is affirmed.
DICKSON and RUCKER, JJ., concur, and SHEPARD, C.J., concurs with separate
opinion.
SULLIVAN, J., is not participating
Appendix A
In every case, the veto message appears first in the “Messages After
Adjournment” section of the preceding legislative session. In most
instances, the veto message is accompanied by a date; where it is not and a
date for the veto is found elsewhere, that is listed in parentheses under
the veto message date. Indices for each session are reproduced in a
separate volume from the journals, but each journal also contains an index.
In some cases, neither of the indices reflects action on the vetoed bill.
Where action is shown, except as noted below, the veto message appears in
the journal of the next session on the date of the vote to sustain or
override the veto. Where the vote was to override the Governor’s veto,
that is indicated by (O) and the listing of the two dates on which both
houses voted to override the Governor’s veto. If one house voted to
sustain the veto, there typically is no action by the other.
Despite the appearance of the constitutional mandate found in Article V,
Section 14(a)(2)(D) (“The bill must be reconsidered and voted upon within
the time set out in Clause (C)”; Clause (C) requires a vote “before the
final adjournment of the next regular session”), in some cases the vote did
not occur in the next session and perhaps never occurred.
102nd Gen. Assem., 1st Reg. and Spec. Sess. (Ind. 1981)
Commenced Nov. 18, 1980
Adjourned Apr. 30, 1981
Spec. Sess. May 27 – 29, 1981
Vetoed Bill Veto Message Date Veto Message in Journal for
New Session
S.E.A. 1 May 1, 1981 Feb. 15, 1982
H.E.A. 1579 May 1, 1981 Mar. 20, 19911
S.E.A. 485 May 4, 1981 Feb. 15, 1982
S.E.A. 239 May 5, 1981 Feb. 15, 1982
H.E.A. 1583 May 6, 1981 Mar. 20, 19911
102nd Gen. Assem., 2nd Reg. Sess. (Ind. 1982)
Commenced Nov. 17, 1981
Adjourned Feb. 20, 1982
Vetoed Bill Veto Message Date Veto Message in Journal for
New Session
S.E.A. 442 Feb. 25, 1982 Jan. 28, 1983
H.E.A. 1353 Feb. 25, 1982 Mar. 20, 19911
S.E.A. 363 Feb. 26, 1982 Jan. 28, 1983
S.E.A. 413 Feb. 26, 1982 Jan. 28, 1983
103rd Gen. Assem., 1st Reg. and Spec. Sess. (Ind. 1983)
Commenced Nov. 16, 1982
Adjourned Apr. 15, 1983
Spec. Sess. Dec. 6 – 16, 1982
Vetoed Bill Veto Message Date Veto Message in Journal for
New Session
S.E.A. 449 Apr. 22, 1983 Feb. 2, 1984
H.E.A. 1595 Apr. 22, 1983 Mar. 20, 19911
103rd Gen. Assem., 2nd Reg. Sess. (Ind. 1984)
Commenced Nov. 22, 1983
Adjourned Mar. 1, 1984
Vetoed Bill Veto Message Date Veto Message in Journal for
New Session
H.E.A. 1297 Mar. 2, 1984 Mar. 28, 1985
104th Gen. Assem., 1st Reg. Sess. (Ind. 1985)
Commenced Nov. 20, 1984
Reconvened Jan. 7, 1995
Adjourned Apr. 15, 1985
Vetoed Bill Veto Message Date Veto Message in Journal for
New Session
S.E.A. 3162 Feb. 5, 1986
S.E.A. 4172 Feb. 21, 1986
H.E.A. 16352 Jan. 24, 1986; Feb. 5, 1986
(O)
H.E.A. 16812 Mar. 5, 1986
104th Gen. Assem., 2nd Reg. Sess. (Ind. 1986)
Commenced Nov. 19, 1985
Reconvened Jan. 7, 1986
Adjourned Mar. 5, 1986
Vetoed Bill Veto Message Date Veto Message in Journal for
New Session
S.E.A. 384 Mar. 6, 1986 Feb. 17, 1987
(1986 House Journal at 559)
105th Gen. Assem., 1st Reg. and Spec. Sess. (Ind. 1987)
Commenced Nov. 18, 1986
Reconvened Jan. 6, 1987
Adjourned Apr. 29, 1987
Spec. Sess. Apr. 30, 1987 (one day)
Vetoed Bill Veto Message Date Veto Message in Journal for
New Session
S.E.A. 375 May 4, 1987 Feb. 19, 1988
(1987 House Journal at 1073)
105th Gen. Assem., 2nd Reg. Sess. (Ind. 1988)
Commenced Nov. 17, 1987
Reconvened Jan. 4, 1988
Adjourned Feb. 29, 1988
Vetoed Bill Veto Message Date Veto Message in Journal for
New Session
S.E.A. 170 Mar. 2, 1988 Feb. 23, 1989; Mar. 7, 1989
(O)
(1988 House Journal at 645)
S.E.A. 139 Mar. 7, 1988 (Same) Feb. 23, 1989
106th Gen. Assem., 1st Reg. and Spec. Sess. (Ind. 1989)
Commenced Nov. 22, 1988
Reconvened Jan. 4, 1989
Adjourned Apr. 29, 1989
Spec. Sess. May 2 – May 4, 1989
Vetoed Bill Veto Message Date Veto Message in Journal for
New Session
H.E.A. 1606 May 5, 1989 Mar. 20, 19911
S.E.A. 441 May 6, 1989 Jan. 18, 1990; Mar. 5, 1990
(O in Senate; Sust. in House)
S.E.A. 386 May 6, 1989 Mar. 8, 1990
H.E.A. 1655 May 6, 1989 Mar. 20, 19911
H.E.A. 1963 May 6, 1989 Mar. 20, 19911
H.E.A. 1870 May 9, 1989 Mar. 20, 19911
H.E.A. 1769 May 10, 1989 Mar. 20, 19911
H.E.A. 1930 May 10, 1989 Mar. 8, 1990
106th Gen. Assem., 2nd Reg. Sess. (Ind. 1990)
Commenced Nov. 21, 1989
Reconvened Jan. 3, 1990
Adjourned Mar. 13, 1990
Vetoed Bill Veto Message Date Veto Message in Journal for
New Session
S.E.A. 108 Mar. 15, 1990 Jan. 17, 1991; June 13, 1991
(O in Senate; Sust. in House)
H.E.A. 1355 Mar. 20, 1990 Nov. 20, 1990 (Both houses)
(O)
H.E.A. 1373 Mar. 20, 1990 Mar. 20, 1991
107th Gen. Assem., 1st Reg. and Spec. Sess. (Ind. 1991)
Commenced Nov. 20, 1990
Reconvened Jan. 7, 1991
Adjourned Apr. 30, 1991
Spec. Sess. May 13 – 23, 1991
Spec. Sess. May 23 – June 14, 1991
Vetoed Bill Veto Message Date Veto Message in Journal for
New Session
H.E.A. 1235 May 1, 1991 Action not found
107th Gen. Assem., 2nd Reg. Sess. (Ind. 1992)
Commenced Nov. 19, 1991
Reconvened Jan. 6, 1992
Adjourned Feb. 14, 1992
Vetoed Bill Veto Message Date Veto Message in Journal for
New Session
S.E.A. 116 Feb. 21, 1992 Jan. 22, 1993; Apr. 29, 1993
(O)
S.E.A. 76 Feb. 28, 1992 Jan. 22, 1993; Apr. 29, 1993
(O in Senate; Sust. in House)
108th Gen. Assem., 1st Reg. and Spec. Sess. (Ind. 1993)
Commenced Nov. 17, 1992
Reconvened Jan. 5, 1993
Adjourned Apr. 29, 1993
Spec. Sess. June 9 – 30, 1993
Vetoed Bill Veto Message Date Veto Message in Journal for
New Session
H.E.A. 1804 May 5, 1993 Not acted on in 1994 (See 1994
Index at 178)
109th Gen. Assem., 1st Reg. Sess. (Ind. 1995)
Commenced Nov. 22, 1994
Reconvened Jan. 4, 1995
Adjourned Apr. 29, 1995
Vetoed Bill Veto Message Date Veto Message in Journal for
New Session
S.E.A. 443 May 5, 1995 Nov. 21, 1995
H.E.A. 1766 May 8, 1995 Feb. 15, 1996; Feb. 21, 1996 (O)
S.E.A. 250 May 10, 1995 Nov. 21, 1995
S.E.A. 360 May 10, 1995 Nov. 21, 1995; Jan. 30, 1996
(O)
S.E.A. 563 May 10, 1995 Nov. 21, 1995
H.E.A. 1152 May 10, 1995 Jan. 25, 1996; Feb. 29, 1996
(O in House; Sust. in Senate)
H.E.A. 1063 May 12, 1995 Action not found
109th Gen. Assem., 2nd Reg. Sess. (Ind. 1996)
Commenced Nov. 21, 1995
Reconvened Jan. 8, 1996
Adjourned Mar. 8, 1996
Vetoed Bill Veto Message Date Veto Message in Journal for
New Session
S.E.A. 269 Mar. 12, 1996 Jan. 16, 1997; Jan. 23, 1997
(O in Senate; Sust. by House)
H.E.A. 1299 Mar. 14, 1996 Jan. 21, 1997
S.E.A. 106 Mar. 19, 1996 Feb. 11, 1997; Feb. 13, 1997
(O)
S.E.A. 234 Mar. 21, 1996 Feb. 13, 1997
H.E.A. 1042 Mar. 21, 1996 Jan. 21, 1997; Jan. 30, 1997
(O)
H.E.A. 1280 Mar. 21, 1996 Jan. 21, 1997; Jan. 30, 1997
(O)
110th Gen. Assem., 1st Reg. and Spec. Sess. (Ind. 1997)
Commenced Nov. 19, 1996
Reconvened Jan. 7, 1997
Adjourned Apr. 29, 1997
Spec. Sess. May 14 – 29, 1997
Vetoed Bill Veto Message Date Veto Message in Journal for
New Session
H.E.A. 11603 May 12, 1997 Jan. 12, 1998; Jan. 22,
1998 (O)
(1997 House Journal at 3ss)
H.E.A. 11773 May 2, 1997 Jan. 12, 1998
(Same at 2ss)
H.E.A. 15833 May 13, 1997 Feb. 17, 1998
(Same at 3ss)
H.E.A.18453 May 13, 1997 Jan. 12, 1998
(Same at 3ss)
(These four bills are not listed in the House “Messages After Adjournment”
but are listed in the 1996 Senate Journal “Messages After Adjournment.”)
110th Gen. Assem., 2nd Reg. Sess. (Ind. 1998)
Commenced Nov. 18, 1997
Reconvened Jan. 6, 1998
Adjourned Feb. 27, 1998
Vetoed Bill Veto Message Date Veto Message in Journal for
New Session
S.E.A. 185 Mar. 13, 1998 Apr. 6, 1999
(1999 Index at 283)
H.E.A. 1136 Mar. 13, 1998 Jan. 14, 1999; Jan. 21, 1999
(O)
111th Gen. Assem., 1st Reg. Sess. (Ind. 1999)
Commenced Nov. 17, 1998
Reconvened Jan. 6, 1999
Adjourned Apr. 29, 1999
Vetoed Bill Veto Message Date Veto Message in Journal for
New Session
S.E.A. 343 May 13, 1999 Mar. 2, 2000
111th Gen. Assem., 2nd Reg. Sess. (Ind. 2000)
Commenced Nov. 16, 1999
Reconvened Jan. 10, 2000
Adjourned Mar. 3, 2000
Vetoed Bill Date of Veto Message Veto Message in Journal for
New Session
H.E.A. 1231 Mar. 7, 2000 Action not found
S.E.A. 442 Mar. 15, 2000 Feb. 8, 2001 (O); House action
not found
S.E.A. 408 Mar. 15, 2000 Feb. 19, 2001 (O); House
action not found
H.E.A. 1397 Mar. 15, 2000 Action not found
H.E.A. 1278 Mar. 15, 2000 Action not found
H.E.A. 1214 Mar. 15, 2000 Action not found
H.E.A. 1150 Mar. 15, 2000 Jan. 16, 2001; Jan. 23, 2001
(O)
H.E.A. 1130 Mar. 15, 2000 Action not found
H.E.A. 1124 Mar. 15, 2000 Action not found
H.E.A. 1102 Mar. 15, 2000 Action not found
H.E.A. 1073 Mar. 15, 2000 Action not found
112th Gen. Assem., 1st Reg. Sess. (Ind. 2001)
Commenced Nov. 21, 2000
Reconvened Jan. 8, 2001
Adjourned Apr. 29, 2001
Vetoed Bill Date of Veto Message Veto Message in Journal for
New Session
H.E.A. 1207 May 3, 2001 Mar. 13, 2002; Mar. 14, 2002 (O)
H.E.A. 1599 May 3, 2001 Mar. 14, 2002 (Both houses) (O)
H.E.A. 1908 May 3, 2001 Mar. 13, 2002; Mar. 14, 2002 (O)
H.E.A. 1083 May 10, 2001 Mar. 13, 2002
S.E.A. 308 May 11, 2001 Mar. 7, 2002; Mar. 14, 2002
(O by Senate; Sust. by House)
S.E.A. 337 May 11, 2001 Nov. 20, 2001; Mar. 13, 2002
(O by Senate; Sust. by House)
S.E.A. 373 May 11, 2001 Nov. 20, 2001; Mar. 13, 2002
(O)
S.E.A. 471 May 11, 2001 Mar. 7, 2002; Mar. 14, 2002
(O by Senate; Sust. by House)
H.E.A. 2001 May 11, 2001 Mar. 13, 2002; Mar. 14, 2002
(O by House; Sust. by Senate)
112th Gen. Assem., 2nd Reg. and Spec. Sess. (Ind. 2002)
Commenced Nov. 20, 2001
Reconvened Jan. 7, 2002
Adjourned Mar. 14, 2002
Spec. Sess. May 14 – June 2, 2002
Vetoed Bill Date of Veto Message Veto Message in Journal for
New Session
S.E.A. 233 Mar. 20, 2002 May 14, 2002 (O); (No action
by House,
see 2003 Index at 314)
S.E.A. 459 Mar. 20, 2002 May 14, 2002 (O) (Same)
H.E.A. 10834 Mar. 21, 2002 (Same)
H.E.A. 12024 Mar. 21, 2002 (Same)
S.E.A. 152 Mar. 27, 2002 May 14, 2002 (O) (Same)
S.E.A. 19 Mar. 28, 2002 May 14, 2002 (O) (Same)
S.E.A. 154 Mar. 28, 2002 May 14, 2002 (O) (Same)
S.E.A. 217 Mar. 28, 2002 May 14, 2002; June 22, 2002
(O)
S.E.A. 506 Mar. 28, 2002 May 14, 2002
H.E.A. 10653 Mar. 28, 2002 June 22, 2002; June 23,
2002 (O)
H.E.A. 12584 Mar. 28, 2002 (Same)
Shepard, Chief Justice, concurring.
Connected as it is to the vetoed pay bill, this appeal has been a
painful experience. Judges and prosecutors and their families have now
gone seven years without so much as a cost-of-living adjustment, even as
social workers, teachers, university professors, prison guards, and state
employees generally have received several such adjustments. This
differential treatment has been ruinous to the state’s judiciary. Passing
through the cloud of this calamity to decide this appeal on the basis of
our best judgment about the law, however, is the job we have chosen and
been chosen to do. While I place more value on the available legislative
history than Justice Boehm does, in the end, I have decided he is right
about what is the correct decision in this case.
-----------------------
[1] H.E.A. 1856, 112th Gen. Assem., 1st Reg. Sess. (Ind. 2001).
[2] Various treatises substitute “does not regard,” “is not concerned
with,” and “cares not for” for our choice of “does not redress” which is
less literal, but we think more to the point.
[3] The 1816 Constitution “emphasized a set of broad principles rather than
technical specifics that the drafters . . . felt the organic act should
include.” William P. McLauchlan, The Indiana State Constitution: A
Reference Guide 2 (1996). “The frontier democrats who dominated the first
Constitutional Convention countered the risk that reactionary elements
might fashion a non-majoritarian government by adopting measures to
guarantee popular participation and protect scrutiny of public affairs.”
Price v. State, 622 N.E.2d 954, 961-62 (Ind. 1993). The delegates borrowed
from other state constitutions, but “they generally borrowed only those
features which promoted political inclusion, eschewing the elitist
provisions favored by territorial federalists . . . .” Id. at 962 n.10.
In 1850, when the constitution was revised, again “populist, anti-
government Jacksonian Democrats” largely dominated the revisions. Id. at
962. As documented in Part II, the 1970 amendments were designed to
address several abuses, notably the “pocket veto,” that had arisen from the
literal compliance with the requirements for a veto in the 1851
Constitution.
[4] For this proposition, the Supreme Court cited cases from a variety of
contexts: Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 618
(1992) (de minimis effects in the United States would not confer
jurisdiction under the Foreign Sovereign Immunities Act of 1706, 28 U.S.C.
§ 1602 et seq., calling for an exception to immunity when the effect is a
direct and foreseeable result in this country); Hudson v. McMillian, 503
U.S. 1, 9-10 (1992) (intentionally inflicted minor injuries may be de
minimis violations of the Eight Amendment); Ingraham v. Wright, 430 U.S.
651, 674 (1977) (minor restraints of liberty do not violate the Fourteenth
Amendment); Abbott Labs. v. Portland Retail Druggists Ass’n, 425 U.S. 1, 18
(1976) (occasional sales at lower prices in emergency situations do not
establish a violation of the Robinson-Patman Act); Indus. Ass’n of San
Francisco v. United States, 268 U.S. 64, 84 (1925) (“few and widely
separated instances” of interference with sales did not establish a
conspiracy to restrain trade).
[5] Plaintiffs also contend that when there is doubt as to a law’s
enactment, it is resolved in favor of enactment. The 1972 amendment
“reflects this pro-enactment perspective” because whenever the Governor
fails to act, the bill becomes law. We find no authority for this
contention, and we do not see Section 14 as biased in favor of either the
legislature or the Governor if the two disagree. Rather, it seeks clarity
as to the procedures to be used.
[6] Plaintiffs’ principal brief asserts that the purpose of the 1972
amendment could not have been to stop the practice of pocket vetoes, as the
State contends, because Section 14 already prohibited them. They
apparently abandon that contention on transfer to this Court. In any event,
their contention that “Mass Transportation . . . plainly shows such vetoes
were prohibited by the pre-1972 amendment version of article V, section
14,” (Br. of Appellants at 13), misses the mark. There would have been no
need for the Mass Transportation decision had it been clear before 1968
that Section 14 did not allow pocket vetoes. As the 1970 Constitutional
Revision Commission Report noted, “the amendment resulted from a judicial
decision nullifying the use of the pocket veto (in the Mass Transportation
Authority case).” Ind. Legislative Council, Report of the Constitutional
Revision Commission 10 (1970).
[7] According to the Senate and House Journals, in 82 instances since 1981,
the veto message appeared to have been returned in the window of time after
adjournment and before the ensuing session. We have not researched earlier
periods and we have not examined the underlying documentation. The bills
and relevant Senate and House Journal entries are listed in Appendix A.
[8] Plaintiffs also argue that allowing the “early return” of bills “would
frustrate the purposes of Indiana law requiring the House and Senate to
maintain public journals of all action on legislation.” (Br. of Appellants
at 16.) Plaintiffs rely on the doctrine that “the contents of such
journals are dispositive as to legislative events,” and suggest that in the
absence of a record showing the Governor’s veto and its return on the first
day of the General Assembly’s next session, that it did not occur. (Id. at
16-17.) The Governor’s veto was in fact recorded in the House Journal.
Indiana House Journal at 1329 (2001) (“Messages After Adjournment”). Thus,
this argument has no merit.
[9] The veto message for House Enrolled Act 1866 at issue in this case was
dated May 11, 2001, and read: “I hereby veto House Enrolled Act 1866 and
return it to the House of Representatives for further action.” Indiana
House Journal at 1330 (2001). In some cases, the veto message, dated in
that window of time, read, for example: “I return herewith House Enrolled
Act 1729, which I have vetoed this 6th day of April, 1983.” Indiana House
Journal at 875 (1983). In others, the message, also so dated, read: “I
hereby veto Senate Enrolled Act 116 and return it herewith . . . .”
Indiana Senate Journal at 537 (1992).
[10] For example, in the case of Senate Bill 239, Governor Orr’s 1981
message read: “I return herewith Senate Bill 239, which I have vetoed this
5th day of May, 1981.” Indiana Senate Journal at 850 (1981). That message
appears in both the “Messages After Adjournment” section of the 1981
session and the Senate Journal for the date on which override was
considered, which was February 15, 1982, the twentieth, not the first, day
of the following session. Indiana Senate Journal at 353 (1982). But
because the bill was not considered on the first day, the message does not
appear on that date. The inference seems clear that the bill was in fact
received by the legislature some time on or before the first day, and a
fair reading of Governor Orr’s message is that it was delivered on “this
5th day of May, 1981,” long before the next session convened. For an
example of a similar entry in Governor Bayh’s administration, see House
Journal for March 8, 1990, (the 29th day) where the veto message for House
Enrolled Act 1930, dated May 10, 1989, appears. Indiana House Journal at
670 (1990). Journal entries in Governor Bowen’s administration, unlike
those in later years, are accompanied by a “Statement” from the Secretary
of the Senate that the vetoed bills “have been returned to the Senate and
received by me.” The statement is filed as an entry for the first session
day, but is undated and does not say when the “return” or “receipt”
occurred, only that it happened at some time (“have been”) before the
statement. See, e.g., Indiana Senate Journal at 7 (1974). These are in
contrast to earlier practice under the pre-1972 version of Section 14. At
that time, the Secretary of State delivered the message transmitting the
governor’s veto and it appears to have been done on the opening day of the
ensuing session. Indiana Senate Journal at 15 (1972).
1 Although these bills were vetoed in 1981, the legislature did not act on
them until 1991. On Mar. 20, 1991, the “Clerk identified seventeen House
bills, dating back to 1981, which had passed the House and Senate, had been
vetoed by the Governor and returned to the House but which had not been
presented to the House for reconsideration, within the meaning of Article
5, Section 14 of the Constitution.” Indiana House Journal at 649-56
(1991). The Speaker then handed down the seventeen bills for
reconsideration and the House voted on them.
2 In these instances, the governor’s veto message is undated as it appears
in the House and Senate Journals, although the messages were contained in a
list of “Messages After Adjournment.”
3 These veto messages were recorded twice – once on the first day of the
following special session and once in the next legislative session on the
listed date where a vote was then taken to sustain or override the
governor’s veto.
4 In these instances, the governor’s veto message appeared on the first day
of the special session without a vote taken on that date. The indices do
not reflect a subsequent vote.