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DEL.ICIO.USAn invitation to a lawsuit: Does the governor have the power to play Lazarus with legislation?
The Atlanta Journal-Constitution
Tom Stubbs is a Decatur attorney who is also chairman of the State Bar’s advisory committee on legislation. Which means he spends a deal of time reading laws-to-be, and presumably, the state Constitution.
He sent the note below out to members of his committee — and copied us, with the caveat that his observations were personal, and not official.
Stubbs admits the following may not be the Pelican Brief, but he questions whether Gov. Sonny Perdue has the constitutional authority to resurrect a bill he has already vetoed. And he predicts that some anti-tax group might think it has sufficient grounds to test the issue.
Here’s the note:
I have to admit that I am mystified by the governor’s sleight-of-hand with respect to his rescission of the veto.
Under what authority may the Governor “un-veto” a bill? The governor vetoed the legislation on April 19. There is no question that he vetoed the bill.
Article 3, Section 5, Paragraph 13, and Article 5, Section 2, Paragraph 4, of the Georgia Constitution outline the procedures for a veto. The latter section succinctly states that the “governor may veto, approve or take no action on any such bill or resolution.”
Nowhere in either section (or anywhere else I can find) does it say the governor can “un-veto” a bill. The former section explains the procedures that are to be followed once a veto is made, and none of those procedures include an option for the governor to “take it back.”
Moreover, the impropriety of the “un-veto” is shown by how it has no parameters in the Constitution or statute.
When is the latest he can un-veto? Can he do it while the Legislature is trying to override the veto? Afterwards? Two years later?
If the governor can pluck this power from thin air, then there are no limits to how it can be applied.
I presume the governor is hanging his hat on the issue that was obliquely mentioned at the end of the last session when the House voted to override the veto.
The governor indicated that he had not transmitted his veto to the House, while the House stated, as I recall, that whether a message, bill or other such thing has been received is determined by the House receiving it.
Thus, the House went forward with its vote. In that regard, the governor is required under Article 3, Section 5, Paragraph 13, to transmit the reasons for his veto to the house originating the bill within 60 days of an adjournment (if the Legislature adjourns sooner than three days after the veto).
The Constitution does not say what happens if the governor fails to transmit his reasons. It certainly does not say that the veto is undone. Presumably, the provision simply would give the Legislature the right to compel transmission of the vetoed bill to the Legislature so they could attempt to override it.
The closest case I can find relates to [state Supreme Court] Justice [Robert] Benham’s hometown, Solomon v Commissioners of Cartersville, 41 Ga. 157 (1870).
In that case, the governor signed a bill after the deadline for signing a bill into law (after the General Assembly adjourned).
The Court held that the bill did not become law even though the governor signed it.
The signature was ineffective because it was too late and the governor had no authority to sign the legislation into law once the deadline passed.
By reverse implication, once a bill is vetoed, it is dead and I do not see where the Constitution gives the governor authority to bring the bill back to life.
If the Governor has no authority to “un-veto” a bill, then none of the bill should become law.
A taxpayer or other person may have a claim to prevent any of the other provisions of the supplemental appropriations — such as the funds for indigent defense — from being implemented.
I would not put it past a number of the taxpayer groups who supported the property tax provision to bring an action along these lines. I am probably crazy, but I think this is fishy and I don’t think the last shoe has necessarily dropped.
Comments
Commenting is now closed for this entry.
By Georgia Taxpayers United
May 10, 2007 9:09 AM | Link to this
Mr. Stubbs,
You are not crazy. Indeed, your thesis is well grounded.
We are aware of several prominent lawyers (Democrats and Republicans) who will pursue litigation.
Success in the courtroom will surely equate to success at the ballot box in November 2008 and more importantly, November 2010.
Sorry Governor, you blew it this time!
By Capitol Hack
May 10, 2007 9:59 AM | Link to this
Of course the Governor doesn’t have the right to “unveto” a bill. Just like he can’t “unsign” a bill after it’s been signed. This crowd down at the Capitol has been playing schoolyard rules for long enough. You can’t just make this stuff up as you go along. It’s time for someone to remind them that it’s not enough just to be making laws, you have to follow the laws too!
By Glenn
May 10, 2007 10:04 AM | Link to this
Amen - we are a society of laws and we are about to be reminded of that fact in a Superior Court; very soon.
PS. I told you so on Monday!
By Georgia Democrat
May 10, 2007 10:09 AM | Link to this
Can you hear Chief Justice Sears, Justice Hunstein and the others laughing out loud right now eagerly awaiting this lawsuit to prove what a fool Sonny is!
Even Justice Melton will be on board in this unanimous ruling!
By Craig
May 10, 2007 10:14 AM | Link to this
Strict constructionists….where are you? Someone find one of those evil ‘activist’ judges to let Sonny get his way.
By Debbie
May 10, 2007 11:04 AM | Link to this
Who would have thought that elected Republicans were against a tax cut? The Governor and State Sentors need to seriously rethink this.
Glenn Richardson and the House are the heroes now. Go Glenn, Go
Speaker Glenn Richardson
PRESS RELEASE
FOR IMMEDIATE RELEASE: Contact: Clelia Davis
Tuesday, May 8, 2007 (404) 656-5020
clelia.davis@house.ga.gov
House of Representatives Still Believes $142 Million Should Be Returned to the Taxpayers
ATLANTA - Governor Sonny Perdue announced today that while he will not call the General Assembly back into a special session, he will line-item veto the $142 million tax refund voted on unanimously by the House and Senate.
“We are pleased Governor Perdue is not costing the state additional money by calling us back for a special session, but the House has fought very hard for this tax refund and it’s disappointing he has decided to veto it and that the Lieutenant Governor supports that decision,” Speaker of the House Glenn Richardson said. “Sometimes friends disagree, but the House will not compromise when it comes to defending the taxpayers of Georgia.”
Although the $142 million vetoed by the Governor goes into the state’s reserve fund, the government can still spend that money next year. Any amount of money in the reserves over 4 percent of the state’s annual budget is eligible to be spent by the state at any time.
“The House still believes that if we can’t all agree on how to spend the money, the best thing to do is to return it to the people who sent it to us,” said Richardson. “We would rather have it go back to the taxpayers than be hoarded for the government to spend another day.
“As elected representatives of the people of Georgia, the House and the Senate made a unanimous promise on April 13 to return $142 million to our constituents. The House feels strongly that we ought to honor that promise.” said Majority Leader Jerry Keen
The state’s reserve fund currently has $792 million, the highest in Georgia’s history. Because that amount is at least 4 percent of the state’s budget, the $142 million sent to the reserve fund by Governor Perdue’s veto is simply waiting to spent by state government next year.
By ARBY
May 10, 2007 11:05 AM | Link to this
Can we please just end this session? The session is still going. It began as a repulsive mess and its an leaking puss on us. Put a period on the darn thing already!
By Tom Paine
May 10, 2007 11:14 AM | Link to this
The mystical “un-veto” is the kind of malarky you get when the law is viewed more as guidelines rather than rules. I’m an attorney but I’ve been a Republican my whole life. Our system of government is a delicate system of checks and balances. However, rather than viewing our system in this light, these “Republicans” look at the system as a plaything to be whacked at and manipulated without any regard as to consequence. The only thing that saves us from even more damage is their Three Stooges act playing out before our very eyes. The long-term damage to our government and our system of justice inflicted by these guys will be felt for years to come, but, on the bright side, the entertainment in the here-and-now is, well, quite entertaining.
By Craig
May 10, 2007 12:12 PM | Link to this
I’m sorry Debbie. A token tax return that would actually cost the counties to return and add up to no more than $50 to only a certain number of taxpayers is nothing more than pandering. If it truly was a tax cut and meaningful reform, why not return the money to ALL who pay into the system from the income tax? Why only reward a few with a token amount that actually burdens the counties? None are heroes in this. One side wants to buy my vote with $50 and the other wants to hold on to my overpayment.
By Georgia Taxpayers
May 10, 2007 12:23 PM | Link to this
Craig,
$50 to you or me is in all reality not a lot BUT in the aggregate, $142,000,000 of surplus revenue in the hands of pork loving legislators is criminal.
We don’t trust any legislator who does not respect the value of our hard earned money!
Whatever the surplus, $10 or $50; it should be returned to the rightful owner - period!
By Sam Sludge
May 10, 2007 12:34 PM | Link to this
Buzz Guys,
As a part-time Baptist back bencher, I assume the Lazarus reference is biblical in intention……
However, Gov. Funny Sonny thinks Lazarus refers to that old gal Emma…..(original founder of DFACS) who said: “give me your tired, poor, hungry masses, yearning…”
Now Sunshine wants to give the $142 mil. to a different group of huddled yearning masses……legislators!
See you in Court Sunshine!
By Debbie
May 10, 2007 12:46 PM | Link to this
Craig, if you go to Walmart and over pay for goods, will you let them keep the over payment because it is a small amount or will you want a refund?
The tax payers of this state want a REFUND. If the government keeps it they will find a way to spend it.
Give us our refund!!!!!!!!!
By HB
May 10, 2007 1:20 PM | Link to this
Tom Paine, you are absolutely correct about the lack of respect shown for the law and our system of government. We shouldn’t be surpised, though. The Speaker showed how he intended to “lead” on his very first day with the introduction of committee hawks, ensuring that all committees will do his bidding. It’s truly disgraceful.
By Ed Holcombe
May 10, 2007 1:37 PM | Link to this
Memo to Governor:
Before everybody rushes off half-cocked to the nearest Superior Court, wouldn’t it be prudent for the State Attorney General to first issue an advisory opinion of the constitutionality of the Governor’s “un-veto?”
Hold up a second, Baker’s a Democrat -
OK - Superior Courts in Fulton and DeKalb are hostile to us -
Then - wait, Leah’s a Democrat as are most of the Supremes and hell, Melton acts like a Democrat -
Oh well, so our little joke just won’t pass -
Hey Governor - we better call a Special Session.
By Craig
May 10, 2007 4:32 PM | Link to this
I have no problem with the refund except that in order to make it show up to begin with they had to select a smaller pool of recipients. Debbie, I’d want the money but would want it to go to EVERYONE who paid in. What of the rest of the Georgians who contributed to that surplus? I guess you have no problem robbing them to get your $50? If it is a true refund then ALL who paid into the surplus would get it. But let’s be honest here. That won’t happen because if ALL were given their money back, we’d be dealing with change. So they design something so that the refund appears larger but only goes to a smaller amount. In other words - designed to pander. So Debbie and GA Taxpayers - would you rather everyone get their due refund or do you want excess than you deserve only because you own property? Sounds like some Democratic type of earned income credit or something to me.
By Debbie
May 11, 2007 8:13 AM | Link to this
I could care less how it is returned to the tax payers, as long as it is returned and the government doesn’t keep it. I don’t care if it is through state income tax, sales tax or property tax refund.
By Tom
May 11, 2007 8:26 AM | Link to this
Do you care if it costs more for the counties to return it than taxpayers will be getting back? That cost to the counties is also taxpayer money - money that is being spent inefficiently. The point of a tax refund is to save taxpayers money, not cost them money. If we are going to have a tax refund, let’s have one that make fiscal (and common) sense.
By Capitol Hack
May 11, 2007 9:38 AM | Link to this
What many people don’t realize is that this “tax refund” was an ill-conceived, last minute ploy to get a very flawed supplemental budget passed in the 11th hour of the session. Look, this is no conservative budget. A true fiscal conservative meets the real needs and puts the rest away for a rainy day, and only when it’s apparent that there’s a surplus, return it to the taxpayers.
This crowd had a brain fart and decided on a whim that enhancing the Roy Barnes homeowner tax refund (which was already in the budget, BTW) would be a good way to resolve the embarrassing budget mess that they had put themselves in. Simultaneously, they ignored some of the needs that everyone agrees should have been funded, like daily operations for prosecuting attorneys and literacy programs. Leadership told the membership, “Don’t worry, we’ll fix that in Fiscal Affairs” (by moving other money around). That was irresponsible. The Governor was right, this was a bad budget all around, and the tax cut was nothing more than a gimmick.
I’m amazed at the fickleness - or limited attention span - of conservative constitutents. One minute the Lt Gov is a hero for standing up to “porkbarrel spending” in the House, the next minute the Speaker is a “hero” for his brain fart tax refund idea. Did anyone notice that all that “pork” they cut out of the supplemental budget was just rolled forward into the FY08 budget?? Is that conservative hero behavior? Are you so gullible?
Look, if we really have a “surplus”, why does our state patrol close at night? Why do our kids rank at or near the bottom in education? Why does our transportation system creak on the verge of collapse? Why are people dying in state mental institutions? Why is our infant mortality rate so high? Why can’t we fund Peachcare? Why are we talking about taking healthcare away from children (the Richardson plan)?
As a home-owning taxpayer, I’ll be glad to accept any amount of property tax refund when the State of Georgia adequately funds basic law enforcement, transportation, health and education. In the meantime, I expect conservatives to act like conservatives and budget responsibly.
By me
May 11, 2007 2:26 PM | Link to this
CapitolHack, great post…I agree wholeheartedly.
By Oliver B.
May 11, 2007 3:25 PM | Link to this
This “NEW LEADERSHIP CROWD” down at tha Gold Dome is more than I care to say grace over and paticular that slim gentleman in ROOM 203 of The State Capitol. I am old enough to have been in school when World War II started so I have been at the switch a while. I have not just been siting there sleep all this time.
I would like for someone to tell me what in the h* is this word “UN-VETO” means as it relates to a Bill that has passed by both bodies of the State Legislature. As one reader so clearly stated the Options His Honor Sonny has and none of them had the option of “UN-VETO”. Webster has the following words that mention Veto: Veto,Vetoed,Vetoes,Vetoing, but nothing on Un-Vetoing.
Maybe Sonny can tell us unlearned where on Earth did he find this word and we might get credit for creating a “new” word for Mr. Webster. Could it be that he has been exercising too much and is somewhat rundown. Tell him to take a few days off and go down to Okaywoods and do some fishing. I think that would do him a lot of good!
Oh I also saw where he said that “Bushy” critics should keep quiet. Tell him that he has been passed over as a Vice Presidental candidate, so sorry!
By MrLiberty
May 11, 2007 4:25 PM | Link to this
With a president that makes up the law as he goes along, why should we be surprised at a Governor who does the same. They are both republicans, so Sonny probably feels he gets the “party of god” dispensation special, though I would not put it past a democrat to do the same.
One has to wonder how the general populace continues to respect the government enough not to settle their problems with it between elections.
If this trend continues, it is certainly only a matter of time before this state and this country look more like Nazi Germany than the free country we once were.
By Of course he shouldn't but he will
May 13, 2007 12:38 PM | Link to this
There is no such thing as an “un-veto”. But will any elected Georgia Democrats or Republicans truly hold him acountable on this? Is there any elected official out there willing to make a very public stand on this??? If there isn’t, no matter what groups fight it, nothing will really change in the end.