Request By:
Honorable Joseph W. Prather
President Pro Tempore of the Senate
Capitol Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear
This is in response to your letter of April 14 in which you, on behalf of the General Assembly, request an opinion concerning the following:
"As President Pro Tempore of the Kentucky Senate, I hereby formally request an opinion of your office regarding the constitutionality of the alleged veto of Senate Bill 103 by Governor John Y. Brown, Jr. I am submitting with this request an affidavit of the Clerk of the State Senate, Marjorie K. Wagoner, which sets forth the chronology of events surrounding the governor's actions with respect to Senate Bill 103."
You also present a copy of S.B. 103 containing the Governor's signature, indicating that it is vetoed. Also attached is a sheet signed by the Clerk indicating the time of the receipt of the bill together with a sheet signed by the Clerk indicating the time that the Governor's veto message was received.
Briefly, the facts presented are that the Clerk of the Senate was present in her Third Floor office on April 12, 1982, for the purpose of receiving messages from the Governor. At 11:56 p.m., a representative of the Governor's Office delivered to her an attested copy of S.B. 103 containing the signature of the Governor below a notation dated April 12, 1982, indicating that the bill was vetoed. Upon receipt of the bill the Clerk signed a receipt and entered thereon the time as being 11:56 p.m. The Clerk further states that at the time of receipt of S.B. 103 there was no message explaining why the legislation had been vetoed. The Clerk further stated that at 12:04 a.m., on April 13, 1982, an employee of the Governor delivered a typed veto message signed by the Governor, bearing the date of April 12, 1982, and she thereupon signed a second receipt with the notation of the time as being 12:04 a.m. The Clerk also states that prior to the reception of S.B. 103 and the veto message relating thereto, she had verified the exact time of day and had synchronized her watch to reflect such time. We will assume, without verification, that midnight, April 12, was the deadline for the Governor to exercise his veto power.
We initially refer to the case of Cammack v. Harris, 234 Ky. 846, 29 S.W.2d 567 (1930), involving the validity of Governor Sampson's veto of an act of the 1930 legislature. The Court pointed out that the exercise of a Governor's veto is essentially legislative in nature and that such action of the Governor with respect to the veto of a bill, is entitled to as much consideration and to the same presumption of validity as to constitutionality as is the action of the legislative bodies in originally passing the bill. The Court further declared that since no method of procedure is given under the terms of Section 88 of the Constitution, it is for the courts to determine when the provisions have been complied with, based upon the factual conditions. Further, the Court declared that it was not inclined to establish a fixed rule of procedure, preferring rather to decide each case as it may arise according to the particular circumstances. The Court did declare that the date of the Governor's message of disapproval was immaterial since it remained under his control until it was officially returned, either to the House before final adjournment or delivered to the Secretary of State after adjourning.
We next turn to the case of Arnett v. Meredith, 275 Ky. 223, 121 S.W.2d 36, 19 A.L.R. 1183 (1938). This case involved the Governor's veto of a bill which was not accompanied by a veto message as required by Section 88 of the Constitution. Again the Court pointed out that the exercise of the veto power was essentially a legislative function and the constitutional provision authorizing the Governor to veto a bill must be exercised in the manner prescribed in the Constitution. As you know, Section 88 of the Constitution provides that if the Governor approves a bill, he shall sign it; if not, he shall return it with his objections to the house in which it originated. Referring to Cooley's Constitutional Limitations, the Court quoted the following therefrom:
"'A constitutional provision requiring the governor, if he desires to effect the veto of a bill, to file the bill, with his objections thereto, in the office of the Secretary of State, within a prescribed period after the adjournment of the legislature, is mandatory, in respect to both the time and the manner of exercising the power.'" (Emphasis added.)
The Court also referred to a West Virginia case, styled Capito v. Topping, 65 W.Va. 587, 64 S.E. 845, from which it quoted the following excerpt:
"'So they [such constitutional provisions] necessarily stand on a much higher plane than mere statutes, and the courts as a rule do not feel warranted in upholding deviations from them in respect to the manner and time of the performances of acts prescribed or required by them.'"
* * *
"'Tested by its terms, the clause under consideration [the one conferring the veto power] may be said to be in mandatory form, though form is not always conclusive. * * * If the Governor desires to veto a bill after the adjournment of the Legislature, it must be filed with his objections, 'in the office of the Secretary of State within five days after such adjournment, or become a law.' * * * Unlike many other provisions [the section of the constitution conferring veto power on the governor] , it does not stop with the prescription of the affirmative act, leaving the consequence of failure to inference. It declares the sequence.'"
The Court, in discussing Section 88 of the Constitution with respect to veto power, declared, and we quote:
"As a consequence, courts and texts also announce the rule to be that the mere expression of the fact of disapproval of an act by the Governor -- with no reasons or objections accompanying such disapproval, or veto, as grounds therefor -- will be ineffectual and amount to no veto at all, and which in turn allows the act to become a law of the land as if no such unaccompanied (with reasons or objections) veto had been made."
As can be seen from the above case law, the Governor's reasons or objections for vetoing a particular bill must accompany his veto to be effective and must be filed with the proper officers and within the time frame prescribed in Section 88. The Governor is, of course, entitled to ten full days following the receipt of a bill during the session in which to approve or disapprove it. Thus, since a veto is not consummated until it, together with the Governor's objection, is delivered to the Clerk of the Senate when it is still in session, the fact that the veto message concerning S.B. 103 was allegedly not received until 12:04 a.m. on April 13, would indicate that the veto was not consummated within the ten-day time period prescribed by the Constitution, in spite of the fact that the vetoed bill was received at 11:56 p.m., April 12, which was within the required time frame.
Even though it would appear, based on the alleged facts presented in an affidavit of the Clerk of the Senate, that the veto was not received within the constitutional time frame and would, as a consequence, be invalid, nevertheless, as pointed out in the Cammack case, it is ultimately for the courts to determine this issue, based on the particular circumstances, keeping in mind the rule of presumed validity with respect to the actions of the Governor as with the acts of the legislature itself. This is particularly true in view of the possibility that the time recorded by the Clerk could be in error or could be challenged as additional evidence might reveal.
Therefore, should the legislature desire to be absolutely certain that S.B. 103 will become law, then it should override the Governor's veto as authorized by Section 88 of the Constitution.