Virtual File - Item

Text: May 26, 2017

Ms. Kimberly Slay Holmes
General Counsel to Governor Mark Dayton
130 State Capitol
75 Rev. Dr. Martin Luther King Jr. Blvd
St. Paul, MN 55155

Dear Ms. Holmes:

I thank you for your correspondence dated May 26, 2017. You raise the following issues:
1. How many days does the Governor have to veto bills that were passed during the
last three days of the "special session" that ended on May 26, 2017 at
approximately 3 :45 a.m.?
2. Does the Governor have 14 days to veto bills that were received after the
legislative adjourn[ment] Sine Die on May 26, 2017 at approximately 3:45 a.m.,
during a "special session"?
3. Please confirm that the Governor can only line item veto items of appropriations
and not reductions.

You indicate that, as to the first two questions, you believe that the most cautious approach is to
act within three days of the bills being presented and have so advised the Governor. We agree
that this approach is prudent. As to the third question, you believe that the Governor can only
line-item veto items of appropriation and not items of reduction. We agree with this conclusion.

I. Background
As you know, the Legislature passed some bills near the end of the regular legislative
session that adjourned on May 22. My understanding is that some of these bills have yet to be
presented to the Governor. Following adjournment of the regular legislative session, a special
session began at 12:01 a.m. on May 23. During the special session, the Legislature passed
several more bills before adjourning sine die.
II. Bills Passed During The Special Session
Although the Legislature adjourned on calendar day May 26, the House and Senate
Journals reflect that each chamber adjourned on May 25, which was the fourth legislative day of
the special session. A legislative day runs from 7:00 a.m. until 7:00 a.m. the following calendar
day. Minn. Stat. § 3.012 (2016). The Legislature immediately adjourned after being called into
session on May 23, and the activity that occurred throughout the calendar day on May 23
occurred over two legislative days. Similarly, while the Legislature adjourned on calendar day
May 26; it was still considered May 25 for purposes of legislative days. Regardless of whether
legislative or calendar days are used, all bills passed during the special session were passed
within the last three days of the session.

Previous correspondence from this Office to prior governors has addressed the timing for
acting on bills passed at the end of a session that adjourned sine die. See, e.g., Mem. from K.
Eiden, Off. of Att'y Gen. to K. Yanisch, Off. of Gov. (May 14, 2003) (copy enclosed). The
Minnesota Constitution provides that "[a]ny bill passed during the last three days of a session
may be presented to the governor during the three days following the day of final adjournment
and becomes law if the governor signs and deposits it in the office of the secretary of state within
14 days after the adjournment of the legislature. Any bill passed during the last three days of the
session which is not signed and deposited within 14 days after adjournment does not become a
law." Minn. Const. art. IV, § 23. Because the bills passed during the special session this year
were passed during the last three days of a session that adjourned sine die, a persuasive argument
can be made that the Governor has 14 days after the date of presentment to sign each bill, but
there is no judicial authority directly on point. As you have advised the Governor, and given the
absence of caselaw, acting within three days of presentment eliminates any question or potential
challenge, such as that which occurred in Johnson v. Carlson, 507 N.W.2d 232 (Minn. 1993).
III. Other Bills Received After Adjournment of the Special Session
The timing for acting on bills passed during the regular session but presented after the
conclusion of the special session presents a closer question. Only a "final adjournment" triggers
the 14-day time period. Minn. Const. art. IV, § 23. Previous correspondence from this Office to
prior governors advised that the final adjournment that triggers the end-of-session presentment
and veto procedures is the sine die adjournment, which usually occurs in the second, even-numbered,
year of the biennium but may also occur at the end of a special session. See Mem.
from K. Eiden to K. Yanisch; Mem. from K. Raschke, Off. of Att'y Gen., to D. Drewry, Off. of
Gov. (May 10, 1999) (copies enclosed). An interim adjournment in an odd-numbered year to a
date certain in the next year is not considered a final adjournment for veto purposes. State v.
Hoppe, 215 N.W.2d 797, 392-94 (Minn. 1974).

The House and Senate Journals reflect that, on May 22, each chamber adjourned only
until February 20, 2018. The May 22 adjournment therefore was not a final adjournment within
the meaning of the constitution and would not trigger the 14-day time period for the Governor to
act. Again, my understanding is that none of the bills passed during the regular session have yet
been presented to the Governor. This therefore raises the question of whether the May 25 sine
die adjournment applies to bills passed during the last three days of the regular legislative
session. The constitution provides that the 14-day period applies to "[a]ny bill passed during the
last three days of a session" that is presented within three days after the day of final adjournment.
Minn. Const. art. IV, § 23. The most likely reading of "a session" is that it generally refers to the
end of the second year of the two-year biennium session (which typically occurs in even-numbered
years) and that the 14-day period does not apply. See Hoppe, 215 N.W.2d at 805
(holding that bill passed during last three days of odd-numbered year session that adjourned to a
fixed date was not subject to pocket veto). No caselaw has addressed whether the
commencement of a special session immediately after the end of a regular session alters this
analysis. As you have indicated, acting within three days eliminates any question or potential
challenge like that which occurred in Johnson. 1
IV. Items of Reduction
You believe that the Governor can only line-item veto items of appropriation and cannot
line-item veto items of reduction. This is consistent with this Office has previously advised the
Governor's Office. Mem. from K. Raschke to D. Drewry. We are not aware of any changes in
the law that would affect this analysis. The Minnesota Constitution gives the Governor the
authority to line-item veto only an "item[] of appropriation of money." Minn. Const. art. IV,
§ 23. Courts have narrowly construed this provision, and defined an "item of appropriation" as a
separate and identifiable sum of money appropriated from the general fund dedicated to a
specific purpose." Inter Faculty Org. v. Carlson, 478 N.W.2d 192, 194-97 (Minn. 1991); see
also Johnson v. Carlson, 507 N.W.2d 232 (Minn. 1993) (discussing what constitutes an
appropriation). Further, not every legislative directive that entails an expenditure of funds
necessarily constitutes an appropriation. US. Fire Ins. Co. v. Minn. Zoological Bd.,
307 N.W.2d 490 (Minn. 1981); Butler v. Hatfield, 152 N.W.2d 484 (Minn. 1967). As previously
advised, it therefore appears that an item of appropriation must be a grant of spending authority
and not a restriction or removal of such authority. At least one district court has held that this
does not include the authority to line-item veto items of reductions. Kahn v. Carlson, Ramsey
Cnty. No. C8-95-10131 (Minn. Dist. Ct. Jan. 26, 1996) (copy attached). Therefore, the law
appears to support your position.

I thank you again for your correspondence.

Very truly yours,
CHRISTIE B. ELLER
Deputy Attorney General
(651) 757-1440 (Voice)
(651) 297-1235 (Fax)

Enclosure:
Memo from Kristine Eiden to Karen Yanisch (May 14, 2003) (w/o Attachments)
Memo from Kenneth Raschke to Diane Drewry (May 10, 1999)
Kahn v. Carlson
1 When counting the three days, Sundays are excluded but holidays are not. Minn. Const.
art. IV, § 23.