* From the two GOP leaders…

Dear Attorney General Madigan:

In our capacities as the Senate Leader Designee and House Republican Leader, we are requesting a formal legal opinion from your office. As you know, Governor Bruce Rauner recently issued an amendatory veto of the 100th General Assembly’s Senate Bill 1, known as the Evidence-Based Funding for Student Success Act. As a result, the General Assembly faces the immediate prospect of a vote either to accept the Governor’s amendatory veto or to override it.

For the reasons explained below, we are concerned that an outright vote to override the Governor’s amendatory veto of SB1 may result in a law that cannot constitutionally become effective until June 1, 2018. We are therefore requesting an official legal opinion on the following two questions:

1. If the General Assembly votes to override the Governor’s amendatory veto of SB1, what will be the effective date of the bill under Article IV, Section 10 of the Illinois Constitution, given that the General Assembly chose not to pass SB1 until July 31, 2017?

2. If the General Assembly votes to accept the specific recommendations made by the Governor’s amendatory veto of SB1, what will be the effective date of the bill under Article IV, Section 10 of the Illinois Constitution?

Background:

By way of background, the General Assembly initially voted on Senate Bill 1 on May 31, 2017, with the House voting 60 to 52 and the Senate voting 35-22 to concur in two House amendments. However, Senator Donne Trotter on that same day filed a motion to reconsider in the Senate, which prevented SB1 from being passed out of that chamber and delayed starting the 30-day clock provided in Article IV, Section 9(a) of the Illinois Constitution for presentment to the Governor.

Sixty-one days later, Senator Trotter on July 31, 2017, withdrew his motion to reconsider. As a result, on the same day, SB1 passed both houses of the General Assembly and was sent to the Governor.

The Governor issued an amendatory veto of SB1 on August 1, 2017, pursuant to his power under Article IV, Section 9(e) of the Illinois Constitution. That amendatory veto revised several provisions of SB1.

Following the Governor’s action, the Senate, as the legislative body in which SB1 originated, placed the amendatory veto on its calendar on August 1, 2017. Pursuant to Article IV, Sections 9(c) and (e) of the Illinois Constitution, the Senate now has 15 calendar days, or until August 17, 2017, in which to either accept the Governor’s amendatory veto or attempt to override the veto outright. If either vote is successful, the House will then be required to take up the same issue within the 15 calendar days following that vote.

Interaction with the Effective Date of Laws Provision:

We raise the two questions listed above to understand the interaction of these procedures with another provision of the Illinois Constitution, Article IV, Section 10. That section is entitled “Effective Date of Laws” and provides in relevant part that “A bill passed after May 31 shall not become effective prior to June 1 of the next calendar year unless the General Assembly by the vote of three-fifths of the members elected to each house provides for an earlier effective date.”

Determining the date on which a bill is “passed” for purposes of determining the date on which it takes effect is governed by another statute and Illinois Supreme Court cases. These authorities distinguish between the effective date of a bill that becomes law following a vote to override a governor’s veto and a vote to adopt a governor’s recommendations made in an amendatory veto.

The law states that “[f]or purposes of determining the effective dates of laws, a bill is ‘passed’ at the time of its final legislative action prior to presentation to the Governor pursuant to paragraph (a) of Section 9 of Article IV of the Constitution.” That statute codifies longstanding Illinois Supreme Court precedent defining “the time when a bill is passed as the time of the last legislative act necessary so that the bill would become law upon its acceptance by the Governor without further action by the legislature.”

In the context of a vote to override a governor’s veto, courts have held that passage, or the “last legislative act necessary,” occurs at the time of initial passage prior to presentment to the governor, not upon the legislature’s vote to override. As one court explained, “[t]he override procedure can be distinguished from the procedures . . . which deal with the initial consideration and passage of a bill by the legislature.” Because “the action of the legislature in voting to override a veto culminates in the bill becoming law,” override is “no more an element of final ‘passage’ than the Governor’s signature. . . . the action of the legislature in overriding the Governor’s veto is not part of the ‘passage’ of a bill, as that term is used in [Article IV,] section 10” of the Illinois Constitution.

Based on this law, it appears that if the General Assembly votes to override the Governor’s veto of SB1 outright, the law will have been “passed” for purposes of determining its effective date as of July 31, 2017. That is the date on which the final legislative action prior to presentation to the Governor occurred. Based on that date, SB1 appears to require a three-fifths majority in both houses of the General Assembly to become effective before June 1, 2018. The House of Representatives vote of 60 to 52 provides just over 50% of the 118 members elected, and the Senate’s 35 to 22 vote provides just 59% of the 59 members elected. Both are less than the three-fifths constitutionally required for SB1 to become effective prior to June 1, 2018, and the veto override vote itself appears not to count for purposes of calculating that percentage.

An amendatory veto, however, appears to have a different passage date and therefore a different vote for purposes of calculating the three-fifths requirement. The Illinois Supreme Court has held “that a bill that is the subject of an amendatory veto under article IV, section 9(e), of the Illinois Constitution of 1970 is not ‘passed’ for purposes of determining its effective date until the final vote approving the Governor’s recommended changes is taken in the General Assembly.” That decision also cited a number of Illinois Attorney General Opinions reaching the same conclusion. This is because “[a] bill changed upon the Governor’s specific recommendation is no longer the same bill as initially ‘passed’ by the General Assembly[,] and the ‘final legislative action’ would not simply be a reaffirmation of the bill’s original language as in the situation involving an override of a non-amendatorily vetoed bill.”

Under an amendatory veto, then, the passage date depends on the date that the second house of the General Assembly adopts the Governor’s recommendations. In the case of SB1, that would be the date that the House of Representatives votes following the acceptance of SB1 by the Senate. In turn, so long as those votes meet the required three-fifths majority, the bill would be effective immediately by its own terms upon becoming law. In that instance, the evidence-based funding model in SB1 would be available to allow schools to open this fall.

Conclusion:

In conclusion, we are concerned that the General Assembly may jeopardize the date on which SB1 may constitutionally become effective if the General Assembly pursues an outright veto override motion. It appears that the decision to delay SB1’s passage until July 31, 2017, may prevent the General Assembly from making an SB1 veto effective before June 1, 2018. If that is the case, the evidence-based funding formula established by SB1 may only be used this August to distribute school funding to schools across the state if the legislature adopts the Governor’s amendatory veto by a three-fifths vote.

Please feel free to contact either … if you wish to discuss this request.

Sincerely,

Senate Republican Leader Designee Bill Brady

House Republican Leader Jim Durkin

OK, so the analysis is right except maybe for the highlighted text and whatever relates to that text.

* Where they may go wrong is claiming that the withdrawal of a motion to reconsider a vote is “legislative action.” I talked to some folks about this first, and from what I’ve been able to discern, “legislative action” is understood to be action that requires a vote. If you click here for the Senate rules, several things are deemed to be legislative action. The Senate President can set and even change deadline dates for those actions. Withdrawing a motion does not require any vote at all and the submission deadlines are set by rule and can only be changed if they change the rules.

So, withdrawing a motion is not an action, a lot like officially transmitting a bill to the governor is not considered an action.

So the last “legislative action” on SB1 was in May. At least, that’s how I look at it. We’ll see how the attorney general views this. Her office declined comment yesterday.

…Adding… From comments…

If the motion to reconsider is something that could delay the effective date of an Act that doesn’t get a 3/5 vote, wouldn’t immediate effect on any Bill that doesn’t get 3/5 be able to be scuttled by someone who opposes it (just by filing the motion and letting it sit past 5/31)?

That’s correct and no court is going to allow that.