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Breen has new question on SB1

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Illinois

* I told you Sunday that Attorney General Lisa Madigan had replied to an inquiry from the two Republican Legislative leaders about the actual effective date of SB1. AG Madigan replied that the effective date would be the date that the governor’s AV is overridden or the date that the governor certifies that the GA has accepted his recommendations for change.

But Rep. Peter Breen (R-Lombard), an attorney and the new HGOP floor leader, has more questions…

August 15, 2017

House Republican Colleagues
Illinois State Capitol
Springfield, Illinois

Re: Attorney General Opinion Letter Regarding Senate Bill 1, 100th General Assembly

Dear Colleague:

As you know, Leader Jim Durkin and Leader Designee Bill Brady recently requested a formal legal opinion regarding the effective date of Senate Bill 1, in light of the Democrats’ decision to delay presentment to the Governor for two months. The Leaders requested that clarification due to concerns that SB 1 might not be effective until June 1, 2018, because it did not pass out of the Senate until July 31, 2017. See, e.g., Bill Status, SB 1, http://www.ilga.gov (“7/31/2017 | Senate | Passed Both Houses”).

As explained in the Leaders’ letter, a July 31, 2017, passage date would mean that SB 1 was not passed with the required three-fifths majority it would need to become effective immediately. Instead, it would be effective next year, on June 1, 2018. See Illinois Const. art. IV § 9 & 10; 5 ILCS 75/2 (Effective Date of Laws Act). The current passage date requirement of our state constitution was put in place by the General Assembly and our voters in 1994, to ensure that the General Assembly finishes its work by May 31 and does not remain in session year-round.

The Attorney General’s answer to the Leaders’ request, however, raises additional concerns about the validity of the process employed in passing SB 1. Specifically, in addressing attempted veto overrides, the Attorney General assumes that SB 1 passed out of both houses on May 31, 2017. If accurate, that definition of “passage” would appear to conflict with the definition in the Illinois State Constitution’s presentment clause, which requires the legislature to advance passed legislation to the governor’s desk in an expeditious manner, within 30 days. Illinois Const. art. IV § 9(a); 5 ILCS 75/2 (Effective Date of Laws Act).

The Attorney General correctly assesses that, when the General Assembly approves a motion to override a veto, the vote is not a new legislative action but instead “a reaffirmation of the bill’s original language.” AG Opinion at 8. Her opinion also notes that there are four actions typically considered “final” legislative action in the caselaw, and a motion to reconsider is not traditionally included on that list. Because of this, she concludes that “the final legislative action is deemed to have occurred when the bill was passed by the General Assembly initially.” Id. at 9. In this instance, the Attorney General concluded “the point at which Senate Bill 1 passed . . . was May 31, 2017.” Id. at 10.

However, the Attorney General’s opinion does not squarely address the impact of the motion to reconsider on SB 1. A motion to reconsider acts against a vote in favor of a bill, such that the vote is “prevented . . . from having any legal effect.” Ceresa v. City of Peru, 133 Ill. App. 2d 748, 753 (3d Dist. 1971). And of course, none of us would consider a bill “passed” (and on the clock for submission to the governor) while still under a motion to reconsider, as was SB1 on May 31 of this year. See, e.g., Senate Rules 7-15. Reconsideration. (“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.”).

Because of this, the Attorney General’s opinion raises as many questions as it answers, and what the opinion highlights, at the very least, is the lack of controlling Illinois Supreme Court or Appellate Court caselaw to guide the General Assembly on the effective date question before us.

Certainly, it is an abuse of the legislative process to use a motion to reconsider in order to circumvent the 30-day presentment requirement of our state Constitution. And a bill can’t be said to have passed a chamber, or to be ready for presentment to the governor, when it’s held up by a motion to reconsider. It’s also hard to argue on these facts that SB 1’s passage is in accord with the Constitution’s command that our General Assembly finish its business by May 31, especially when our own legislative information system, ilga.gov, says that SB 1 was “passed” on July 31, not May 31.

To sum up, a bill that is “passed” must be presented to the governor within 30 days. A bill subject to a motion to reconsider cannot “pass” out of the Senate or House, until the motion is resolved. A bill that is not “passed” by May 31 is not immediately effective, unless the General Assembly provides an immediate effective date in the bill, approved by supermajorities of both House and Senate. The motion to reconsider the Senate concurrence vote on SB 1 was not resolved until July 31, and the bill did not pass out of the Senate until that date. SB 1 was made ready for action by the governor on July 31.

The simple fact remains that no one can be confident that SB 1 would be immediately effective, if the governor’s veto is overriden. There is no controlling caselaw on point. But there is a coherent, thoughtful legal argument that the effective date of the bill would be June 1, 2018, well after our school districts’ educational funds would run dry.

With all due respect to the Attorney General and our Democrat colleagues, it would be irresponsible for us to proceed with SB 1, when we can’t be entirely certain that the bill would get our kids the money they need to sustain their schools this year.

Sincerely,

Peter Breen
House Republican Floor Leader

* It’s an interesting question. I’m not sure if the courts will take it up, but the Constitution is pretty clear and gives the judicial branch authority…

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.

posted by Rich Miller
Wednesday, Aug 16, 17 @ 9:26 am

Comments

===With all due respect to the Attorney General and our Democrat colleagues,===

Gee whiz, you’d think a lawyer as smart as Peter Breen could easily distinguish between a noun and an adverb. I mean, that’s junior high level English grammar. If he doesn’t know basic English usage, why should we trust his legal acumen?

Comment by 47th Ward Wednesday, Aug 16, 17 @ 9:33 am
It is an interesting question and an interesting legal argument that has a basis in precedent. I’m not sure this can just be brushed aside. Like everything else in Illinois, it’s outcome could be deferred to the court system. Oy.

Comment by A guy Wednesday, Aug 16, 17 @ 9:33 am
Sorry, between a noun and an adjective.

Comment by 47th Ward Wednesday, Aug 16, 17 @ 9:33 am
It is nice of Breen to continue stonewalling so kids don’t get their money. While he is stonewalling, perhaps his attorneys and staff would like to review Article IV, Section 8 of the Illinois Constitution. See the very last provision. Did both leaders sign and verify the bill?

SECTION 8. PASSAGE OF BILLS
(a) The enacting clause of the laws of this State shall
be: “Be it enacted by the People of the State of Illinois,
represented in the General Assembly.”
(b) The General Assembly shall enact laws only by bill.
Bills may originate in either house, but may be amended or
rejected by the other.
(c) No bill shall become a law without the concurrence
of a majority of the members elected to each house. Final
passage of a bill shall be by record vote. In the Senate at
the request of two members, and in the House at the request
of five members, a record vote may be taken on any other
occasion. A record vote is a vote by yeas and nays entered on
the journal.
(d) A bill shall be read by title on three different
days in each house. A bill and each amendment thereto shall
be reproduced and placed on the desk of each member before
final passage.
Bills, except bills for appropriations and for the
codification, revision or rearrangement of laws, shall be
confined to one subject. Appropriation bills shall be limited
to the subject of appropriations.
A bill expressly amending a law shall set forth
completely the sections amended.
The Speaker of the House of Representatives and the
President of the Senate shall sign each bill that passes both
houses to certify that the procedural requirements for
passage have been met.
(Source: Illinois Constitution.)

Comment by 360 Degree TurnAround Wednesday, Aug 16, 17 @ 9:33 am
First, the veto needs to be overridden. If t is, the presumption (not always correct) is that the bill is lawful.

Then someone with standing needs to actually file suit. Personally, I think that would be a dumb move on the part of the ILGOP. Do they really want to own a delay in school funding?

If the court were to take it up, my gut says they would look at the number of votes on the override and deem it effective immediately m

Comment by RNUG Wednesday, Aug 16, 17 @ 9:40 am
If this went to Court, the Supreme Court would say that the onus is on the Governor to file a court petition to force the GA to send him a bill within 30 days. However, the language about judicially enforceable specifically means that waiting longer than 30 days does not kill the bill, it just gives the Governor the right to go to court to have the bill sent to him.

Comment by Fax Machine Wednesday, Aug 16, 17 @ 9:40 am
I mean the onus is on the Governor to file after the 30 days (or perhaps on day 30)

Comment by Fax Machine Wednesday, Aug 16, 17 @ 9:41 am
There’s risk either way. They need to strike a deal.

Comment by A guy Wednesday, Aug 16, 17 @ 9:41 am
Leaving aside the deference that courts might accord legislative rules, the full constitutional section reads,

“SECTION 9. VETO PROCEDURE
(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. If the Governor approves the bill, he shall sign it and it shall become law.”

The requirement is judicially enforceable. That is the only thing the constitution allows. Here, the bill has been sent to the governor. There is nothing for the court to enforce. The question is moot.

Comment by Bigtwich Wednesday, Aug 16, 17 @ 9:44 am
Here are the options.

Override, get schools open and staying open.

Vote, have it fail, have Rauner’s AV be the reason that schools can’t stay open.

Write a letter to that.

===Democrat colleagues===

That Breen, total class.

To the argument, where was that 31+ days ago?

Breen waits until August 15th for these “questions”?

Weren’t they relevant in the 31st day?

Comment by Oswego Willy Wednesday, Aug 16, 17 @ 9:45 am
All these arguments are being made by HGOP & SGOP only after they come up in CapFax comment sections - interesting…

Comment by Fax Machine Wednesday, Aug 16, 17 @ 9:46 am
Hum we know Breen is “expert” of telling people how do deal with the health care decision, but it seems to matter what counts as “passed” or “passes”. When the member files a motion to reconsider action is frozen. Period. Maybe Breen flunked his Roberts Rules or order class tsk tsk.

Comment by Annonin' Wednesday, Aug 16, 17 @ 9:58 am
RNUG summed it up quite nicely. This is just a sideshow. If Breen wants to show his legal prowess, than let him and other GOP members vote for the override.

The time to act would have been prior to the bill being sent, not after. Now get back to work and do your job.

Comment by Norseman Wednesday, Aug 16, 17 @ 9:59 am
Gee whiz, you’d think a commenter as smart as 47th Ward could easily distinguish between an adjective and adverb.

Comment by Trump2020 Wednesday, Aug 16, 17 @ 10:01 am
As Bigtwitch said, the question became moot when the bill was presented to the Governor. The Governor needed to file suit before the bill reached he him. Then he had a case.

Going forward, have all motions to reconsider automatically lapse after 28 days if no vote is taken. If you cannot negotiate changes in 4 weeks with a deadline, more time won’t help.

Comment by Last Bull Moose Wednesday, Aug 16, 17 @ 10:05 am
==Gee whiz, you’d think a commenter as smart as 47th Ward could easily distinguish between an adjective and adverb.===

Comment by A guy Wednesday, Aug 16, 17 @ 10:11 am
2020, he’s not the one using the name of a five letter word not allowed north of the Mason-Dixon Line.

Comment by Glengarry Wednesday, Aug 16, 17 @ 10:11 am
Trump2020, love the handle. Always good to know who I’m speaking with.

FTR, I corrected my mistake. Now it’s your turn.

Comment by 47th Ward Wednesday, Aug 16, 17 @ 10:11 am
Speak for yourself on that one.

Comment by A guy Wednesday, Aug 16, 17 @ 10:12 am
Any excuse to write a “Sincerely,Peter Breen
House Republican Floor Leader” letter.

Comment by Michelle Flaherty Wednesday, Aug 16, 17 @ 10:25 am
Ms. Flaherty, I would direct you to what it says above that.

Comment by A guy Wednesday, Aug 16, 17 @ 10:29 am
47th - Don’t you mean “whom I’m speaking with”?

Comment by morninstar Wednesday, Aug 16, 17 @ 10:48 am
All I’m reading is that the GOPs are saying that by placing SB0001 under reconsideration and holding it past 11:59:59pm on May 31, it was Cullerton who created the 3/5 supermajority issue, rather than Rauner having created it by his AV.

IMHO, this is inside baseball of the silliest kind. If some schools can’t open or can’t make it to January (when a simple majority will suffice to pass something), I doubt the parents will want to get into those kind weeds about who is to blame.

It would be nice if our legislators would do what we sent them to do, rather than spend all their time and energy on positioning for re-election.

Comment by Harry Wednesday, Aug 16, 17 @ 10:49 am
I am asking our legislature to vote for what is best for all of students. Please do not vote to destroy public education. Thank you.

Comment by Mama Wednesday, Aug 16, 17 @ 10:49 am
The Constitution is clear that the 30-day requirement is judicially enforceable. The question is why didn’t the Governor and the BTIA file a judicial action to enforce it? No court is going to take that issue up on its own motion.

Comment by GA Watcher Wednesday, Aug 16, 17 @ 11:10 am
Where was Peter Breen when Gov. Rauner was signing PA 98-1175? That bill was passed by the Senate and then held more than 30 days so that Quinn wouldn’t veto it on his way out of office. Rauner was happy with this maneuver then. Maybe Breen should’ve warned him.

Comment by Anonymous Wednesday, Aug 16, 17 @ 11:19 am
Why do constitutional questions only arise with important bills you oppose? Why not bring this up when naming the state pie?

Comment by Jibba Wednesday, Aug 16, 17 @ 1:26 pm
Funny thing happened on the way to the Capitol, The Rule of Law showed up. “Rules ? we don’t need no stinking rules” …” rules are for fools”

Comment by NorthsideNoMore Thursday, Aug 17, 17 @ 9:27 am