Interrogatories of Governor Regarding Certain Bills of Fifty-First General Assembly, In re, FIFTY-FIRST

• Decision Date: 10 April 1978
• Docket Number: No. 27939,FIFTY-FIRST,27939
• Parties: In re INTERROGATORIES OF the GOVERNOR REGARDING CERTAIN BILLS OFGENERAL ASSEMBLY.
• Court: Colorado Supreme Court

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578 P.2d 200 195 Colo. 198 In re INTERROGATORIES OF the GOVERNOR REGARDING CERTAIN
BILLS OF FIFTY-FIRST GENERAL ASSEMBLY. No. 27939. Supreme Court of Colorado,En Banc. April 10, 1978.
Rehearing Denied May 8, 1978.

[195 Colo. 200]

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J. D. MacFarlane, Atty. Gen., David W. Robbins, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Mary J. Mullarkey, First Asst. Atty. Gen., Joel W. Cantrick, Asst. Atty. Gen., Denver, for the Governor.

Banta & Eason, Richard L. Eason, Stephen G. Everall, Eugene M. Sprague, Englewood, for Committee on Legal Services of the General Assembly.

GROVES, Justice.

His Excellency, Richard D. Lamm, Governor of the State of Colorado, addressed three interrogatories to this court pursuant to Colorado Constitution Article VI, Section 3. These relate to nine bills which were enacted by the first regular session of the Fifty-First General Assembly of Colorado. ¹ The interrogatories read:

"1. Were S.B. 115, S.B. 575, S.B. 580, S.B. 582, H.B. 1121, H.B. 1381, H.B. 1535, H.B. 1589 and H.B. 1646 duly enacted by the fifty-first General Assembly when the Senate failed to take a vote by ayes and noes of the Senators then present in the chamber upon concurrence in a House amendment and/or upon adoption of the report of a committee of conference and/or upon final passage, as more particularly shown for each bill by the attached stipulation of facts and accompanying exhibits?

"2. Were the bills enumerated in question No. 1 (except S.B. 580) vetoed by Governor Lamm and were the twenty-four bills referred to in the attached stipulation of facts vetoed by Governors Love and McNichols, given that in each such case the following procedure occurred:

"(1) each bill was presented to the Governor and the General Assembly by its adjournment prevented return of the bill to it within ten days, and

"(2) each bill was disapproved by the Governor within thirty days after adjournment and was filed with the office of the Secretary of State more than thirty days after adjournment?

"3. Was S.B. 580 vetoed by the Governor when it was presented to the Governor and partially disapproved within ten days thereafter, not returned to the General Assembly prior to adjournment, and filed with the office of the Secretary of State after adjournment?"

[195 Colo. 201] A Stipulation of Facts executed by the Governor and by Senator Ralph A. Cole,

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acting for The Committee on Legal Services of the General Assembly, was filed with the interrogatories.

S.B. 580 will be discussed separately later in this opinion. Of the remaining eight bills, following action thereon by the General Assembly, one was delivered to the Governor on June 15, 1977, a second on June 16, 1977 and the other six on June 20, 1977. This session of the General Assembly adjourned sine die on June 22, 1977. The Governor did not return any of the bills to either house of the General Assembly. The Governor vetoed seven of the bills on July 15, 1977 and made a public announcement of his vetoes thereof on July 18, 1977. He vetoed the eighth bill on July 19, 1977 and on the same day made a public announcement of that fact. On July 27, 1977 he delivered each of the eight bills to the Secretary of State and on August 2 and 9, 1977 he delivered his veto letters, viz., his statement of objections to the bills, to the Secretary of State.

It thus appears that: prior to the taking of any formal action by the Governor as to the eight bills, the General Assembly adjourned sine die ; this adjournment was less than ten days from the time the bills were presented to the Governor; within 30 days after such adjournment the Governor vetoed the bills and made public announcement thereof; and the Governor did not file the bills with his objections in the office of the Secretary of State within 30 days of the adjournment.

The Colorado Constitution, Article IV, Section 11 provides:

"Every bill passed by the general assembly shall, before it becomes a law, be presented to the governor. If he approve, he shall sign it, and thereupon it shall become a law; but if he do not approve, he shall return it, with his objections, to the house in which it originated, which house shall enter the objections at large upon its journal, and proceed to reconsider the bill. If then two-thirds of the members elected agree to pass the same, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and if approved by two-thirds of the members elected to that house, it shall become a law, notwithstanding the objections of the governor. In all such cases the vote of each house shall be determined by ayes and noes, to be entered upon the journal. If any bill shall not be returned by the governor within ten days after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the general assembly shall by their adjournment prevent its return, in which case it shall be filed with his objections in the office of the secretary of state, within thirty days after such adjournment, or else become a law."

In his first interrogatory, the Governor has inquired as to whether the nine bills were duly enacted by the General Assembly; and in that connection the Attorney General has argued on behalf of the Governor that they were not duly enacted. We conclude that they were duly enacted, but the [195 Colo. 202] discussion of this question will be found later in this opinion.

I

We first address ourselves to the first question submitted in the Governor's second interrogatory, namely, Were the purported vetoes of the eight bills valid? Our answer is in the negative. Without the required filing of the bills and objections with the Secretary of State within the 30-day period following adjournment, the Governor's actions had no effect and the bills became law.

The argument submitted on behalf of the Governor is to the following effect:

The United States Constitution permits the President to exercise a "pocket veto" as to bills presented to him within ten days prior to adjournment of the Congress. U.S.Const. Art. I, § 7(2). During the days of the Territory of Colorado, the territorial governor had a similar power of "pocket veto" as to bills presented to him by the legislative assembly of the territory. 12 U.S.Stat. at L., p. 700. When our Colorado Constitution was

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adopted its provisions (above quoted) abolished the "pocket veto", by which through the executive's inaction bills fail to become law without any explanation by the executive.

It follows, that the reason in the Colorado Constitution for the 30-day filing with the Secretary of State of the vetoed bill and the objections thereto is to make the Governor publicly accountable by giving to the people a statement of the reason for his disapproval of the bill. "The essence of the post-adjournment veto power then is gubernatorial action plus public announcement thereof." If the Governor within 30 days following adjournment makes a public announcement of his objections to a bill which he has vetoed, the only remaining purpose of the "provision requiring filing of a disapproved bill in the office of the secretary of state is to memorialize the evidence of the governor's actions." Under the circumstances here, the filings more than 30 days after adjournment should not render the disapprovals invalid. There was substantial compliance with the constitutional requirements.

We do not agree with the second paragraph of the foregoing paraphrased argument.

A similar constitutional provision was under consideration in Capito v. Topping, 65 W.Va. 587, 64 S.E. 845 (1909). We quote a portion of that opinion, written for a unanimous court by Judge Poffenbarger:

"Constitutional provisions are organic. They are adopted with the highest degree of solemnity. They are intended to remain unalterable except by the great body of the people, and are incapable of alteration without great trouble and expense. They are the framework of the state as a civil institution, giving cast and color to all its legislation, jurisprudence, institutions, and social and commercial life by confining the Legislature, the executive, and judiciary within prescribed limits. All the great potential, dominating, [195 Colo. 203] creative, destroying and guiding forces of the state are brought within their control so far as they apply. Thus, to the extent of their duration, they define and limit the policy of the state more rigidly and unalterably than the sails and rudder of the ship, when set govern and control its course. . . . We are aware of no decision authorizing the view that a constitutional clause, dealing with matters so high and vital in character as the executive power of veto, and the making of laws, and having form and terms so emphatic, is merely directory."

We realize that at times constitutions must be interpreted in the light of changing times and circumstances, nevertheless, under the circumstances of this case, the views of Judge Poffenbarger are applicable. Our constitutional provision is perfectly plain and emphatic. It states that, if the adjournment of the General Assembly prevents the return of the bill, "it shall be filed (by the Governor) with his objections in the office of the secretary of state, within thirty days after such adjournment or else become a law." (emphasis added).

The Attorney General argues rather persuasively that the purpose of the constitutional provisions has been accomplished by the public announcements of the vetoes and the reasons therefor. Here the mandatory constitutional language leaves no room for the type of functional interpretation sought by the Governor. See Croissant v. De Soto Improvement Co., 87 Fla. 530, 101 So. 37 (1924); In re Opinion to Governor, 44 R.I. 275, 117 A. 97 (1922); State v. Junkin, 79 Neb. 532, 113 N.W. 256 (1907); and State v. Norton, 21 N.D. 473, 131 N.W. 257 (1911).

II

The stipulation contains a statement to...