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* 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.

posted by Rich Miller
Thursday, Aug 3, 17 @ 11:00 am

Comments

I believe they got this idea from the CapFax comments section in the post about the Governor’s 3/5 v majority mistake on Tuesday.

Comment by Fax Machine Thursday, Aug 3, 17 @ 11:04 am
Trying to dig out of a hole of mistaken legal interpretation by digging deeper.

Comment by Anonymous Thursday, Aug 3, 17 @ 11:08 am
I think the next shoe to drop from the integrated Rauner/IPI/ILGOP message machine is for the legal arm of IPI (Liberty Justice Center) to threaten to go to court on this issue if SB1 is outright overridden.

Comment by Fax Machine Thursday, Aug 3, 17 @ 11:12 am
And the worms squirm.

Comment by wondering Thursday, Aug 3, 17 @ 11:13 am
How does an attorney general overrule a decision made by the supreme court? that is what they are asking.

Comment by 360 Degree TurnAround Thursday, Aug 3, 17 @ 11:13 am
This smells of desperation. If you are winning, this is not what it looks like.

Comment by 360 Degree TurnAround Thursday, Aug 3, 17 @ 11:15 am
Talk about doubling down. I hope Rich is right and the last vote is the last legislative action, because otherwise it would make no sense to me. The bill wasn’t changed after the vote, they literally just held onto it.

Comment by Perrid Thursday, Aug 3, 17 @ 11:15 am
Part of the issue is that the General Assembly’s website itself says that the bill wasn’t “passed” until 7/31

http://www.ilga.gov/legislation/BillStatus.asp?DocNum=1&GAID=14&DocTypeID=SB&LegId=98844&SessionID=91&GA=100

That’s obviously not anything binding, of course.

Comment by Fax Machine Thursday, Aug 3, 17 @ 11:17 am
fax machine that is totally possible, Rich provides the only forum for any discussion of these more difficult problems. This blog and the subscriber based information is often invaluable for any deeper understanding of these legislative issues. I somehow also doubt that the Governor’s office had a very wide ranging discussion of drafts of the AV prior to it being issued that included ISBE staff, Tony Smith the Illinois State Superintendent of Education for example clearly should have been consulted for practical purposes.

Comment by Rod Thursday, Aug 3, 17 @ 11:18 am
This may be more than a passing fly in the ointment. Is there any precedent on this? All of these parliamentary gimmicks of holding bills, etc. were not subject to much scrutiny during times where one party had greater control. But this is somewhat fascinating. Is anyone aware of a time or incident in the past where this was challenged?

Is it inappropriate to ask an appellate or ISC source to weigh in on this? The interpretation doesn’t look way off base (or even a little off base to me) after reading this several times. I’m not a lawyer, but this looks like a reasonable request for review.

Fascinating none the less.

Comment by A guy Thursday, Aug 3, 17 @ 11:18 am
Desperate…but not serious.

Comment by Jibba Thursday, Aug 3, 17 @ 11:21 am
I see this as an attempt to provide cover for Rauner. If experienced legislators need the AG to provide an opinion, he does not seem as ignorant.

My question is whether the motion to reconsider is constitutional. It is used to get around the dates set forth in the State Constitution. That makes it suspect.

Comment by Last Bull Moose Thursday, Aug 3, 17 @ 11:22 am
I can see how withdrawing a motion is an action. What would have happened if he did not remove motion? By removing it an action he allowed it to go forward
In any event is there some type of time frame for the A G to respond? Can they ask for an expedited ruling?

Comment by DuPage Saint Thursday, Aug 3, 17 @ 11:23 am
Other than the definition provided here by Rich as stated, and he cited, it’s hard for me to contemplate how a motion to reconsider is not a legislative action. I have no experience with this on the state level. It’s used a lot differently in the Capitol than at the Municipal level, where those motions almost always result in another vote; and then the final action is taken. But, it would seem that the motion itself is very much a procedure that meets the definition of legislative action. Not sure how the definition could be otherwise be changed.

Hope we’ll see the followup on this.

Comment by A guy Thursday, Aug 3, 17 @ 11:24 am
Both chambers regularly schedule perfunctory session days, with no legislators present and take legislative action on first readings, reading bills on second and holding them, committee reports, etc. All legislative action.

Comment by Captain Ed Smith Thursday, Aug 3, 17 @ 11:26 am
If the passage date was in May, rather than July 31, then they violated the constitutional requirement to present it to the governor within 30 calendar days (Art. IV, Sec. 9(a)).

Comment by Pass with care Thursday, Aug 3, 17 @ 11:28 am
I pointed this out a couple of days ago. The Senate Rules were primarily passed in SR 2 this year. Passed 58-0, with all republicans voting “yes”. More info:

Article IV, Section 6 of the Illinois Constitution.

(d) Each house shall determine the rules of its
proceedings, judge the elections, returns and qualifications
of its members and choose its officers. No member shall be
expelled by either house, except by a vote of two-thirds of
the members elected to that house. A member may be expelled
only once for the same offense. Each house may punish by
imprisonment any person, not a member, guilty of disrespect
to the house by disorderly or contemptuous behavior in its
presence. Imprisonment shall not extend beyond twenty-four
hours at one time unless the person persists in disorderly or
contemptuous behavior.
(Source: Illinois Constitution.)
Senate Rule 7-15

d) When
a motion
to reconsider
is made
within
the time prescribed
by these Senate
Rules,
the Secretary
shall not allow
the bill or other
subject
matter
of the motion
to pass out of the
possession
of the Senate
until after the motion
has
been decided
or withdrawn.
Such a motion
shall be
deemed
rejected
if laid on the table.

Comment by 360 Degree TurnAround Thursday, Aug 3, 17 @ 11:30 am
I must be missing something. Passing a law, any law, after 5/31 requires 3/5 for an immediate effective date. Overriding the veto requires 3/5. So anything the legislature does at this point for immediate effective date requires 3/5. This seems like a desperate convoluted ploy to create pressure to approve the AV. Really weak sauce…unless I’m missing something.

Comment by Chicago Cynic Thursday, Aug 3, 17 @ 11:32 am
Even if these concerns are valid and I am skeptical they are . . .

Couldn’t the ILGA simply change some of the SB1 language in non-consequential ways and call it a new bill?

This issue then becomes moot, right?

Comment by Hamlet's Ghost Thursday, Aug 3, 17 @ 11:33 am
Cynic - the GOPs are claiming that the 3/5 vote for override doesn’t count as a 3/5 vote that gets you an immediate effective date. I’m not sure what case they’re citing though.

Comment by Fax Machine Thursday, Aug 3, 17 @ 11:36 am
The operative word throughout this issue is vote. You don’t pass a bill with a motion. You pass a bill with a vote. The final passage vote took place on May 31st.

How about this GOP? Put some votes on the override and then let us test it in court. My money is that the courts don’t touch it or rules for immediate effective date.

Comment by Norseman Thursday, Aug 3, 17 @ 11:40 am
Another question - when a Bill that both houses concurred on is being held for up to 30 days, can amy actions be taken on it such as a motion to reconsider? Or do they store these “passed” bills in a lockbox? If they can still take an action on a bill I don’t see how it is considered “passed”.

Comment by Fax Machine Thursday, Aug 3, 17 @ 11:41 am
I would love it if the IPI and State GOP were to file a court case to invalidate school funding statewide.

Comment by 360 Degree TurnAround Thursday, Aug 3, 17 @ 11:43 am
Fax Machine, a bill with a “motion to reconsider” filed on it can still be amended. Once a motion is lifted, the bill status changes to “passed both chambers”. The General Assembly can no longer make any changes to it. That is why the Senate Dems wanted to negotiate with the governor while the motion was still on the bill, they could still make the changes the Governor wanted to the bill. But you can’t talk sense to a governor that is so inexperienced.

Comment by 360 Degree TurnAround Thursday, Aug 3, 17 @ 11:46 am
No comment from Lisa as she awaits wording from the Speaker to include in her Opinion. Does anyone believe AG Madigan is about to upset her Dad on this. LOL

Comment by Sue Thursday, Aug 3, 17 @ 11:50 am
Uh Sue, the AG actually has to uphold the Constitution and case/statute laws. That is who she answers to.

Comment by 360 Degree TurnAround Thursday, Aug 3, 17 @ 11:52 am
Sounds and looks like a Hail Mary play to me.

Comment by illini Thursday, Aug 3, 17 @ 11:53 am
The AG is mindful of the fact that if the law were challenged, her office would be defending it in court, so I expect that they will honestly assess & research this issue in preparation for that possibility.

Comment by Fax Machine Thursday, Aug 3, 17 @ 11:56 am
360- and you really don’t think an issue this complex isn’t able to be answered two ways

Comment by Sue Thursday, Aug 3, 17 @ 11:56 am
I suspect this has more to do with the AG’s last name and the governor wanting someone to blame.

Because governing is about pointing fingers.

Comment by Michelle Flaherty Thursday, Aug 3, 17 @ 12:00 pm
OK, probably totally naïve observation, but the last line of SB1 states, “Section 99. Effective date. This Act takes effect upon becoming law.”

It is still a bill, even with the AV, since Rauner didn’t sign it. It will not become law until either the AV is accepted or an override is done, both will require 3/5ths. And, as Norseman pointed out, there are semantics at work here. Therefore, the final FINAL action has not been taken, and the effective date will not start unless the AV is accepted or there is an override.

Let the wet noodle lashings commence…

Comment by Anon221 Thursday, Aug 3, 17 @ 12:03 pm
I expect the IPI to come out with a lawsuit threat because this request is ultimately about planting seeds of doubt in the heads of HGOP members who might be tempted to vote for override as we get closer to August 10 & beyond.

Comment by Fax Machine Thursday, Aug 3, 17 @ 12:04 pm
Sue, with respect. I think lawyers get paid to come up with more than one way to argue a point. This isn’t complex in my mind. The Constitution gives each chamber the ability to set up its rules by which it operates. The Senate did that. They are within their right to hold the bill to negotiate. The bill was voted on, someone objected, then withdrew the objection.

Comment by 360 Degree TurnAround Thursday, Aug 3, 17 @ 12:07 pm
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)?

Comment by titan Thursday, Aug 3, 17 @ 12:20 pm
titan is correct.

Comment by Rich Miller Thursday, Aug 3, 17 @ 12:21 pm
The solution to Titan’s problem would be to adopt a rule that all motions to reconsider die at 11:59 pm on May 31 if not acted upon.

Comment by Fax Machine Thursday, Aug 3, 17 @ 12:25 pm
“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.”

So when the 3/5ths votes to override or adopt, this means they can also as 3/5ths move the effective date.
This seems moot.

Comment by EVanstonian Thursday, Aug 3, 17 @ 12:27 pm
Regardless of if this is all technically kosher, the Spirit of the constitution would have that a bill that takes immediate effect with simple majorities should be on the Governor’s desk no later than June 30th (pass by May 31 & hold for presentment up to 30 days), which did not happen here.

Comment by Fax Machine Thursday, Aug 3, 17 @ 12:35 pm
I’m afraid this will need a new bill. I believe Pass with care was correct when pointing out that the bill was voided after they sat on it for longer than 30 calendar days:

- Pass with care - Thursday, Aug 3, 17 @ 11:28 am:

If the passage date was in May, rather than July 31, then they violated the constitutional requirement to present it to the governor within 30 calendar days (Art. IV, Sec. 9(a)).

Comment by Lucky than Good Thursday, Aug 3, 17 @ 12:41 pm
Grasping desperately at straws to muddy the waters to cover up their own mistake.

Comment by Juvenal Thursday, Aug 3, 17 @ 1:32 pm
Even if it were past 30 days given the fact the governor countered with his AV the bill is still actively being considered.

Comment by Northsider Thursday, Aug 3, 17 @ 1:37 pm
==The operative word throughout this issue is vote. You don’t pass a bill with a motion. You pass a bill with a vote. The final passage vote took place on May 31st.==

No disagreement on this cite. But, a Motion to Reconsider suspends the final outcome of the vote until withdrawn. The case being made I think, is that upon withdrawal of the motion, the previous final action is recorded (retroactively??) on the date of the final action prior to the Motion. So the length of time the Motion remains a valid “freezing” device doesn’t matter?

It’s an odd question. I really do wonder if there’s an precedent on this. If so, I’m sure it wouldn’t be recent.

Comment by A guy Thursday, Aug 3, 17 @ 2:04 pm
I love it when all the armchair constitutional scholars come out of the woodwork….

Comment by Dee Lay Thursday, Aug 3, 17 @ 2:11 pm
Go read section 9(a) of Article 4 Northsider. I am 95% certain that the Illinois Surpreme Court will rule SB1 null and void based on it irregardless of whether the governor signed, vetoed, or AV’ed it.

Comment by Lucky than Good Thursday, Aug 3, 17 @ 2:12 pm
It’s too bad Rauner didn’t know, try to know, listen to those who knows before he blew up our schools and shove our state bonds into junk status.

Rauner repeatedly shows that even after three years, he doesn’t care enough about being governor to find out what it’s about.

Jim Edgar teaches classes on this. Why didn’t Rauner take a couple? He might find out about the budget process, or the powers a governor has.

Even Rauner’s supporters claim that the Illinois Speaker of the House is mkre powerful than a governor. Hmm, classes all around.

Comment by VanillaMan Thursday, Aug 3, 17 @ 2:16 pm
There is a lot of entertaining scenarios out there, i.e. Titan and A guy. What is laughable is someone who wants to come out and say there is a 95% chance of ISOC striking down the law. The only way we would get any real answer to the question is if GOP solons voted to override. So LTG, get to your friendly GOP lawmaker and urge them to do that. Then we can have a nice wager on your certainty that it would be voided.

Comment by Norseman Thursday, Aug 3, 17 @ 2:44 pm
(a) Every bill passed by the General Assembly shall be presented to the Governor within 30 calendar days after its passage. The foregoing requirement shall be judicially enforceable.

Perhaps, the Governor should have requested judicial enforcement on June 30. Seems irrelevant now.

Comment by PragmaticR Thursday, Aug 3, 17 @ 2:48 pm
Norseman, my wager is 7 beverages (of your choice should you win) at your choice of Springfield drinking establishments.

Comment by Lucky than Good Thursday, Aug 3, 17 @ 2:52 pm
Lucky, since I drink pop that would be a real cheap date. How about a Ham Pony at D’Arcy’s?

Comment by Norseman Thursday, Aug 3, 17 @ 4:14 pm
“No comment from Lisa as she awaits wording from the Speaker to include in her Opinion. Does anyone believe AG Madigan is about to upset her Dad on this. LOL”

Whatever the respective flaws of the AG and the Speaker may be, neither of them is stupid, and neither of them is going to do anything that jeopardizes their careers or that could get them disbarred. If you’re going to accuse them of ethics or legal violations, you’d better have evidence to back it up. Grow up.

Comment by Nick Name Thursday, Aug 3, 17 @ 4:31 pm
Norse, I’d buy the pop, even if you want to drink it in Cook County. That doubles my cost. lol.

Comment by A guy Thursday, Aug 3, 17 @ 4:50 pm
Just saw this:

https://youtu.be/zcOD5vWuGGo

Comment by A guy Thursday, Aug 3, 17 @ 4:51 pm
Schrodinger’s cat is simultaneously both alive and dead (quantum superposition)
The effective date due to last legislative action is 5/31 and the official GA passage date is 7/31 (dare I call it legislative superposition?)

I play both a physicist and a lawyer on TV

Comment by PhD Thursday, Aug 3, 17 @ 5:02 pm
Fun, but irrelevant academic discussion if the GOP stays solid on override. Is Durkin going to remove the pressure.

P.S. Breen did a credible job of making an argument, but I’ll stick with final action being the vote.

Comment by Norseman Thursday, Aug 3, 17 @ 5:12 pm
C’mon Norse. If his case is correct, the stakes get higher for everyone, not just Durkin. I’d argue they’re even higher for the Senate Dems.

Comment by A guy Thursday, Aug 3, 17 @ 5:30 pm
Guy, don’t exercise yourself. Not a big deal. 1) The solons aren’t going to vote based upon that argument. They’re locked into their positions unless some negotiated settlement is reached. 2) Should some GOP members become brave enough to override, no court is going to throw school funding into disarray over such a weak argument. Probably cite enrolled bill precedent and end the debate quickly.

If the vote was Tak’n, the law they mak’n.

Comment by Norseman Thursday, Aug 3, 17 @ 5:43 pm
Norse, I’m cooling down from my afternoon Tai Chi. I’m good.

Comment by A guy Thursday, Aug 3, 17 @ 5:45 pm