D & M HEALTHCARE, INC. v. Kernan

Attorneys for Appellants Attorneys for Appellees

Peter J. Rusthoven Karl L. Mulvaney

J. Michael Grubbs Nana Quay-Smith

Stanley C. Fickle Rafael A. Sanchez

Deborah Pollack-Milgate Indianapolis,

Indiana

Mark J. Crandley

Thomas F. Shea Jon B. Laramore

Indianapolis, Indiana Counsel to Governor

Indianapolis, Indiana

Steve Carter

Attorney General of Indiana

Gary Damon Secrest

Chief Counsel

Frances H. Barrow

Deputy Attorney General

Indianapolis, Indiana

____________________________________________________________________________

__

In the

Indiana Supreme Court

_________________________________

No. 49S05-0310-CV-437

D & M Healthcare, inc., et al.,

Appellants (Plaintiffs below),

v.

Joseph E. Kernan, in his official

capacity as Governor of the

State of Indiana, et al.,

Appellees (Defendants below).

_________________________________

Appeal from the Marion Superior Court, No. 49D06-0205-PL-000846

The Honorable Thomas J. Carroll, Judge

_________________________________

On Petition To Transfer from the Indiana Court of Appeals, No. 49A05-0301-

CV-26

_________________________________

December 17, 2003

Boehm, Justice.

House Enrolled Act 1866 as passed by the 2001 General Assembly would

prohibit the Family and Social Services Administration (“FSSA”) from

adopting rules that would reduce reimbursements to nursing facilities. The

bill was passed by both houses but the Governor vetoed it and delivered the

bill back to the House after the legislative session had adjourned. The

Plaintiffs are several nursing home facilities who seek a declaratory

judgment that House Enrolled Act 1866 became law despite the Governor’s

veto. The Plaintiffs claim that the Governor’s veto, subsequently

sustained by a vote of 85-1, was ineffective because the Governor’s veto

message was delivered six months before the Indiana Constitution calls for

it to be returned to the legislature. The trial court entered a judgment

in favor of the Defendants but the Court of Appeals reversed, agreeing with

the Plaintiffs that the Governor’s attempted veto did not prevent the bill

from becoming law. This Court granted transfer.

For the reasons explained in Part II, we conclude there was no

violation of the constitution. But the short answer to the Plaintiffs’

claim is set forth in Part I. In summary, if there is any irregularity, it

is not a matter the courts have any business entertaining because any

departure from prescribed procedure was wholly trivial and provides no

basis to invalidate the Governor’s veto.

Why We Are Not Recusing

The parties cite a number of bills over the past twenty years that,

like the bill involved in this case, were also vetoed and returned by

Governors Orr, Bayh, and O’Bannon before the next legislative session.

Among these is a bill providing a raise in pay for all state judges and

legislators.[1] The issue presented in this case is therefore of intense

interest to both judges and legislators.

This important legislation was long overdue. Unlike many government

employees, legislators, judges, and elected executive officers receive no

annual salary review. Even if the veto had been overridden, judicial and

legislative salaries would not have kept up with inflation since the last

pay adjustment. The State has failed to address judicial pay since 1995,

with the last adjustment in 1997. This is particularly egregious because

judges participate in the state medical plan and bear the costs shifted by

the State to its employees in recent years, but do not receive the

compensating allowance given to executive branch employees. As a result,

judges have not only seen declines since 1995 in real income measured by

cost of living, and they now have their net dollars reduced as well.

Legislators have other employment and executive officers typically serve

for a period of time and return to the private sector. Most judges, on the

other hand, are full-time career government employees. Many are principal

breadwinners and are dependent on their salaries to provide for their

families and educate their children.

Acting in our capacity as leaders of the judicial branch, members of

this Court have attempted to persuade the legislature that it should

frequently revise judicial pay. Indeed, we have specifically contended

that the State should place legislative, executive, and judicial salaries

on a regular system of review to reflect inflation without the large,

irregular, and sometimes long-delayed increases generated by sporadic

individual legislation. We have also argued to both executive and

legislative officers that failure to have predictable, modest pay

adjustments costs the State substantially in financial terms through high

turnover and early retirement and also in efficiency through loss of

morale. We even spoke directly to Governor O’Bannon in favor of the 2001

legislative and judicial pay bill. Therefore, although we have expressed

no view on the validity of the veto, we have expressed positions in public

on the desirability of vetoed legislation that we assume would be affected

by the ruling on this case.

Our personal financial interests and expressed views would normally

preclude participation in this case. Yet we must address this claim

because there is no one else to do it. United States v. Will, 449 U.S.

200, 211-16 (1980) (because every judge had an interest in the outcome of

the case involving judicial salaries, the “Rule of Necessity” required that

they not recuse themselves); Evans v. Gore, 253 U.S. 245, 246-48 (1920)

(taxation of judicial salaries), overruled on other grounds, United States

v. Hatter, 532 U.S. 557 (2001); Bd. of Trs. of Pub. Employees’ Ret. Fund v.

Hill, 472 N.E.2d 204, 206 (Ind. 1985) (judicial pension); Chairman of Bd.

of Trs. of Employees’ Ret. Sys. v. Waldron, 401 A.2d 172, 173-75 (Md. 1979)

(judicial pension); Nellius v. Stiftel, 402 A.2d 359, 361-62 (Del. 1978)

(judicial salary); Schwab v. Ariyoshi, 555 P.2d 1329, 1331 (Haw. 1976)

(judicial salary). Despite our view that this legislation is important to

the State, we cannot simply decree our own policies. Rather, we are

obliged to address this claim, like any other, based on our best assessment

of the applicable law. We conclude that we must sustain the Governor’s

veto.

Factual Background

The relevant facts are few and simply stated. On April 29, 2001, the

House passed House Enrolled Act 1866 in the form previously passed by the

Senate after it was recommended by a Conference Committee composed of

members of both houses. The General Assembly adjourned that day. The

Clerk of the House of Representatives presented the bill to Governor

O’Bannon on May 4, 2001. Seven days later, on May 11, the Governor vetoed

and delivered the bill to the House. His veto and veto message were

reported in the House and Senate Journals on that date. The House was not

in session on May 11 and first reconvened on November 20, 2001, the

“Organization Day” for the 2002 session. The initial meeting day of the

2002 session was January 7, 2002. On March 14, 2002, the House voted 85-1

to sustain the Governor’s veto.

Article V, Section 14 of the Indiana Constitution reads in relevant

part:

(a) Every bill which shall have passed the General Assembly shall be

presented to the Governor. The Governor shall have seven days after

the day of presentment to act upon such bill as follows:

* * *

(2) He may veto it:

* * *

(D) In the event of a veto after final adjournment of a session

of the General Assembly, such bill shall be returned by the Governor

to the House in which it originated on the first day that the General

Assembly is in session after such adjournment . . . . If such bill is

not so returned, it shall be a law notwithstanding such veto.

Ind. Const. Art. V, § 14(a)(2)(D).

I. Plaintiffs Cite No Cognizable Harm

At some point in the prehistory of the common law, courts formulated

the eminently practical doctrine now sometimes colloquially referred to as

“de minimis” but formally stated as “de minimis non curat lex.” Freely

translated from the Latin, it proclaims that the law does not redress

trifles.[2] In contemporary American vernacular, it is the courts’ way of

saying “So what?” If there is no “what,” the courts do not provide relief

to ordinary litigants and certainly do not interfere with the operations of

the other branches of government. This doctrine is relevant here.

Plaintiffs cite no practical consequences of the Governor’s delivery of the

vetoed bill before the first day the legislature reconvened, rather than on

that date. And it is obvious there were none. The bill was “returned” and

ready for legislative action at the first moment the General Assembly could

consider it. No wheel of the machinery of government was slowed and no

change in the bill’s status was effected by its delivery on May 11 rather

than on November 20. To the extent there was any effect of the allegedly

premature delivery, it was to expand by a few hours on November 20 the time

the legislature had to consider the matter. In short, there is no

substance to the Plaintiffs’ claim.

The de minimis doctrine is closely related to the idea of substantial

performance, which teaches that minor irregularities that do not affect the

finished product do not provide the basis for a lawsuit. Max L. Veech &

Charles R. Moon, De Minimis Non Curat Lex, 45 Mich. L. Rev. 537, 549

(1947). One may view these doctrines as denying legal intervention where

no significant injury is inflicted, at least for unintentional wrongs, or

as denying legal intervention where the process complained of is out of

specification but in the end produces the same result that would have

emerged from strict conformance. Hessel v. O’Hearn, 977 F.2d 299, 303-04

(7th Cir. 1992). Plaintiffs’ complaint about the Governor’s veto in this

case suffers from both defects. No harm whatsoever was inflicted on the

legislative process. And delivery before rather than “on” the first day

achieved everything necessary for the process to work.

Plaintiffs make much of the fact that the language on which they rely

is found in the Indiana Constitution. But common sense has driven our

constitution from the earliest time.[3] It was the order of the day in

1816 and 1851 when that document was framed, and in 1970 when it was

amended to include the provision at issue here. The de minimis maxim was

early developed as a tool for the interpretation of documents. As one

leading authority put it, “it is a rule of reason, a substantive rule that

may be applied in all courts and to all types of issues.” Veech & Moon,

supra, at 542. The Supreme Court of the United States explained that the

doctrine “is part of the established background of legal principles against

which all enactments are adopted, and which all enactments are deemed to

accept.” Wis. Dep’t of Revenue v. William Wrigley, Jr., Co., 505 U.S. 214,

231 (1992).[4] Thus, “from the earliest Roman times” it has invariably

been the case, “[w]hether the court be applying a constitutional, statutory

or common law rule of law, it has felt empowered to interpret that rule

with the aid of de minimis non curat lex.” Veech & Moon, supra, at 543.

The doctrine was well recognized before Indiana became a state. Ware v.

Hylton, 3 U.S. (1 Dall.) 199, 268 (1796) (“De minimis non curat lex, is an

old law maxim.”); Hill’s Lessee v. West, 4 Yeates 142, 156 (Pa. 1804);

Roberts v. Todd, 2 Ky. (Sneed) 187, 187 (Ky. 1802). And James Madison

early invoked it as to constitutional issues: “the best that can now be

done, may be to apply to the Constn. the maxim of the law, de minimis non

curat.” Letter from James Madison to Edward Livingston (July 10, 1822),

reprinted in 5 The Founders’ Constitution 105 (Philip B. Kurland & Ralph

Lerner eds.,1987).

In applying the maxim, by far the most significant factor is the

purpose behind the phrase to be interpreted. Veech & Moon, supra, at 545.

This was recognized by then Chief Justice Holmes of the Massachusetts

Supreme Court in ruling on a challenge to the use of voting machines based

on the explicit requirement in the Massachusetts Constitution that

representatives be chosen by “written vote.” In re House Bill 1291, 60

N.E. 129, 130 (Mass. 1901). Over a century ago, this common sense approach

prevailed over formalism. Election by voting machines was constitutional

because the machines served the purpose and form of written votes, though

not literally compliant. Id. Similarly, the Supreme Court of Nebraska

upheld constitutional amendments even though the procedures used to enact

the amendments did not follow the letter of the state constitutional

requirement that proposed constitutional amendments be published regularly

in newspapers. State ex rel. Thompson v. Winnett, 110 N.W. 1113, 1115-17

(Neb. 1907). Because there was substantial compliance with the

constitution, albeit incomplete compliance, the Supreme Court of Nebraska

upheld the amendments. Id. at 1116.

Here we think it obvious, for the reasons explained in detail in Part

II, that the purpose of the language at issue here is to assure that the

legislature have the earliest possible opportunity to consider, and, if it

so chooses, to override a veto. The Governor’s veto message here fully met

that objective, and no one has suggested any nefarious consequence arising

from the procedure followed by the Governor in making clear his rejection

of the bill. Section 14 is also designed to provide a bright line for the

time to veto a bill, after which a returned veto is ineffective. The issue

is not what “on” a given date means. We agree that the constitution sets a

bright line and requires that the governor deliver the veto by that date or

forego the privilege. Rather, the issue is what it means to say that the

bill is or is not “returned” on that date. For the reasons explained in

Part II, we think a veto message delivered before the legislature

reconvenes is “returned” on that date. We think no one would argue that a

statute of limitations requiring a suit to be filed “on” a given date would

bar a claim filed before that date. Just as a suit filed before a

specified date is “filed on” that date, so also was the Governor’s veto

“returned on” the first day of the legislative session. In short, the

constitution surely provides a bright line for governors to execute their

veto power. The issue is whether that line is a deadline or a point in

time.

Long ago, modern observers recognized as a “vice of the law” its

“tendency to attribute undue importance to form as opposed to substance,

and to exalt the immaterial to the level of the material.” Salmond,

Jurisprudence § 10, at 25 (6th ed. 1920). Plaintiffs’ theory in this case

takes that vice to new pinnacles and disregards the many practical and

sound cases from this Court and others recognizing that immaterial

variances from prescribed procedures have no legal fallout. See, e.g.,

Ind. State Highway Comm’n v. Morris, 528 N.E.2d 468, 470-71 (Ind. 1988)

(plaintiff who sent notice of claim to the State Highway Commission but not

to the Attorney General as required by the Tort Claims Act substantially

complied with the statute); Porter v. State, 271 Ind. 180, 200-01, 391

N.E.2d 801, 816 (1979) (minor irregularities in jury selection did not

constitute reversible error where there had been substantial compliance

with the statute), overruled on other grounds, Fleener v. State, 274 Ind.

473, 412 N.E.2d 778 (1980). In fact, as explained in Part II.E,

Plaintiffs’ proposed reading of the constitution not only solves no

problems; it raises new ones. Because the Governor’s veto substantially

conformed to the constitutionally prescribed process, the veto was properly

returned to the legislature. Because the House of Representatives then

sustained the veto by a vote of 85-1, the bill did not become law.

II. The Constitution Was Not Violated

A. The Meaning of “Is Not So Returned” in Section 14

Plaintiffs argue that Section 14 is unambiguous. The constitution

says that if a bill “is not so returned” by the governor “on” the first day

of the next session, it becomes law. Thus, to veto a bill after the

General Assembly has adjourned, the bill must be “returned” on that

date.[5] The constitution also says that if a bill “is not so returned” it

“shall become law.” Plaintiffs contend the meaning of this constitutional

provision is clear and unequivocal and therefore its plain meaning must be

given effect. Plaintiffs further argue that the governor’s veto power

“‘must be strictly construed’” because it is a “‘restriction upon the

legislative branch of the government and is in derogation of the general

plan of government for the separation of powers.’” (Br. of Appellants at

10 (quoting Hendricks v. State ex rel. N.W. Ind. Crime Comm’n, Inc., 245

Ind. 43, 52, 196 N.E.2d 66, 70 (1964)).)

We do not agree that the provision is as clear as Plaintiffs contend.

Plaintiffs, quoting Webster's Collegiate Dictionary 990 (1977), argue that

“return” should be given its ordinary meaning, and that is “to send back.”

The State responds that there is an ambiguity in Section 14 that derives

solely from its text, and if vetoed bills must be “returned” on the first

day, that is what occurred here. As the Governor puts it, the “physical

return of the veto allowed the ‘return’ to be accomplished (completed) on

the first day of the next session. It is undisputed that the vetoed bill,

with the Governor’s objections, was physically present on the first day of

the next session in the house of origin as required by Art. V, § 14.”

(Pet. to Transfer at 5.) As the Governor argues, if a veto is returned

before a given date, in one sense it remains returned at all times after

that. This nicety turns on whether “is returned” is a verb (the equivalent

of “to be returned”) or a description of its status (it shall be a returned

bill on this date). In sum, although the Plaintiffs’ reading of the text

is certainly plausible, it is not the only permissible one.

The history of Section 14 also suggests that “shall be returned . . .

on the first day” and “is not so returned” are not as clear as Plaintiffs

claim. Section 14 was amended in 1972 to address a number of problems in

the 1851 constitutional provision for the veto of legislative bills.

Before the 1972 amendment, Section 14 provided that a bill became law

unless the governor vetoed and returned it to the house of origin within

three days of its presentment. If the General Assembly was adjourned, the

governor was to file the bill and his veto with the Secretary of State, who

would then return it to the assembly “at its next session.” The 1851

provision prohibited the presentment of bills within two days of the

General Assembly’s final adjournment. The principal concern over these

provisions arose from the practice of the “pocket veto” that had developed

over time. In several cases, a governor had simply done nothing with a

bill passed shortly before a recess or adjournment. The result was to

stymie the constitutional process by preventing the Secretary of State from

presenting the bill to the legislature. On the last day of 1968, the Court

of Appeals held this practice invalid, but expressly stated that its

holding would not apply retroactively to earlier legislation. State ex

rel. Mass Transp. Auth. of Greater Indianapolis v. Ind. Revenue Bd., 144

Ind. App. 63, 73, 242 N.E.2d 642, 648 (1968). The result was that the

pocket veto in that case failed and any future attempts by governors to

pocket veto bills would be unsuccessful. This Court, by a 2-2 vote, denied

transfer. State ex rel. Mass Transp. Auth. of Greater Indianapolis v. Ind.

Revenue Bd., 251 Ind. 607, 244 N.E.2d 111 (1969). As a result of that

case, Section 14 became a focus of attention. The current version became

part of the constitution in 1972, with immaterial changes in 1990. It was

designed to deal with several issues in the veto process. Specifically,

the amendment was designed to abolish the “pocket veto” by imposing a short

deadline for the governor to act.[6] To do this, the amendment extended

the time for post-adjournment veto from five to seven days, required a

vetoed bill to be returned to the legislature by the governor rather than

the Secretary of State, and required that the bill be returned on the first

day of the legislature’s next session rather than at some indefinite time

“at its next session.” If these steps are not taken, the constitution

provides that the bill becomes law.

This constitutional provision was first passed by the 1969 General

Assembly and was approved by the voters in 1972. In 1969, when the

language was drafted, the Indiana constitutional provision dealing with

gubernatorial vetoes was, as today, in Article V, Section 14. It provided:

If any bill shall not be returned by the governor within three days

(Sundays excepted) after it shall have been presented to him, it shall

be a law, without his signature, unless the general adjournment shall

prevent its return; in which case it shall be a law, unless the

governor, within five days next after such adjournment, shall file

such bill, with his objections thereto, in the office of the secretary

of state; who shall lay the same before the general assembly, at its

next session, in like manner as if it has been returned by the

governor. But no bill shall be presented to the governor within two

days next previous to the final adjournment of the general assembly.

Ind. Code Ann. Const. Art V, § 14 (West 1999) (Historical Notes) (emphasis

added).

As the italicized phrase shows, the constitution itself assumed that

if the General Assembly was not in session, that circumstance “prevented”

the governor from “returning” a veto. The reason adjournment “prevented” a

“return” is found in the history of the operation of the legislature. In

1969, there was far less permanent staff of the sort that had become common

by the 1980s. Justin E. Walsh, The Centennial History of the Indiana

General Assembly, 1816-1978, at 533-35, 607-08 (1987). The Legislative

Sessions and Procedures Act, Ind. Code § 2-2.1-1 (1998), was first passed

in 1971, and the Legislative Council was first created in 1967, Ind. Code

Ann. § 2-5-1.1-1 (West 2000) (Historical and Statutory Notes). Indeed,

there was no Legislative Services Agency until 1978. Ind. Code Ann. § 2-5-

1.1-7 (West 2000) (Historical and Statutory Notes). In 1971, pursuant to a

constitutional amendment approved by the voters in 1970 allowing the

General Assembly to fix the length and frequency of its sessions, the

General Assembly first began meeting annually rather than in the biennial

sessions called for by the 1851 Constitution. Ind. Const. Art. IV, § 9;

Ind. Code Ann. §§ 2-2.1-1-2, -3 (West 2000) (Historical and Statutory

Notes); Ind. Chamber of Commerce, Here Is Your Indiana Government 1997-

1998, at 28-29, 53 (28th ed. 1997). At the same time, the Legislative

Services Agency assumed a greater role and the legislature provided for a

year-round staff. Walsh, supra. This change is reflected in both the

House and Senate Standing Rules and Orders of 1969 and 1971. In 1969,

neither body’s Rules and Orders mention the possibility of filing bills

before session, but in 1971 both provide for that possibility. All of

these changes occurred, however, after the amendment to Section 14 was

drafted and first passed by the 1969 legislative session.

In light of this history, and the practices of the day at the time

Section 14 was written, we think it clear that the 1851 provision for

gubernatorial veto, still in effect in 1969, reflected an assumption of a

citizen legislature that did not meet in the even-numbered years and truly

disbanded to return to everyday life in the twenty months between the

biennial sessions called for in Article IV, Section 9 as it read from 1851

until 1970. The concept of “session day” had been adopted in recognition

of the reality that the legislature could not conduct its affairs in sixty-

one calendar days, and interim recesses were prevalent in addition to

adjournment until the next session. Under this regime, if neither branch

was in session, the assumption of the drafters of the 1851 Constitution and

the mindset of the 1969 legislature was that the General Assembly was not

in business. As a result, there was no one to whom the governor could

“return” a vetoed bill. The provision in Section 14 that the bill be

“returned on” the first day of the next session was seen as requiring that

it be “returned” at the earliest possible date that a return could be

accomplished. Under current legislative procedures there is of course a

window of time between the adjournment and the first day of the next

session when the legislative staff is open for business and a physical

delivery is possible. But at the time it was written, Section 14 was seen

as both setting a deadline and requiring that the vetoed bill be available

at the earliest possible date to allow the legislature to override it.

Plaintiffs make the point that the constitutional framers have chosen their

words carefully. When they intend an event to occur on a specific date,

they use the word “on,” and when they intend to create a deadline, they use

the words “by” or “before.” Given the practice at the time, however, the

language that Plaintiffs contend is unambiguous is in fact quite unclear as

to its intended result, if, as was not thought possible in 1969, a bill was

physically delivered before a new session was convened.

B. The Practice of the Executive and Legislative Branches Under

Section 14

The clarity Plaintiffs claim is called into question by at least two

decades of practice by both governors and the legislature. The State

argues that the Governor and General Assembly’s actions indicate their

understanding of the constitution and reflect the practice of at least

three governors and the legislature dating at least to 1982. In addition

to the pay bill discussed above, a variety of other laws are claimed to

have been vetoed by the same process and could be resuscitated by the

Plaintiffs’ success here.[7] Plaintiffs respond, and we agree, that past

practice of the governor and the General Assembly cannot validate an

unconstitutional process. They note that Mass Transportation so held in

condemning the “pocket veto” that was the subject of that case. The pocket

veto, however, involved a practice that arguably directly contravened the

constitutional requirement that the governor face the veto issue and take

responsibility for it by signing a veto and returning the bill.

Accountability and visibility of the governor’s torpedo are plainly

legitimate objectives of the framers. Here we have an entirely different

issue. We are faced with interpretation of a provision that is susceptible

to different readings. No one advances any policy that was frustrated by

the practice of physical delivery during adjournment, producing a bill that

“is returned” at all times after delivery, including on the first day of

the next session. The actions of both governors and the General Assembly,

rather than “flouting” the constitution, may be taken simply to evidence

their understanding of the constitutional requirement over some two

decades, with no suggestion from either branch or by any court that the

practice was questionable.[8]

Both sides cite the practice of prior governors and legislatures as

an aid to the construction of Section 14. The Governor and the Attorney

General argue that past veto messages show a consistent pattern that

reflects the understanding of governors and legislators over at least

twenty years that the procedure followed with respect to House Enrolled Act

1866 conformed to the constitution. In all of these cases, the “Messages

After Adjournment” section of the journals reflects veto messages, and in

most cases the message bears a date within ten days after adjournment and

before the next session. A few are undated. The fact that the messages

appear in the “Messages After Adjournment” section of the old session,

rather than in the journal for the new session, suggests that the messages

were indeed received by the legislature before the new session convened,

but this is merely an inference. Similarly, some of these messages stated

that the governor was “vetoing” and “returning” the bill on the date of the

message, which also suggests delivery on that date. But, that also is

inconclusive as to the timing of delivery of the vetoes. In other cases,

the message stated simply that “I have vetoed” the bill, and said nothing

about its delivery.[9]

Plaintiffs point out that in some instances the veto message appears

in the journal for the first day of the ensuing session, and contend that

this shows the legislature received some messages on the first day of

reconvening. From this, they argue that there has been no consistent

practice of delivering veto messages before the first day of the following

session. This argument seems to proceed from a fallacious premise. The

journal entries of veto messages in the ensuing session in most cases

appear on the date of the override vote, not the date the governor

delivered the veto message. The entries do not purport to establish that

the messages were delivered on the first day, and it is clear that in many

cases the entries were not the date of delivery.[10] It is true that in

the instances the Plaintiffs cite the veto message appears on the first

day. But in almost all of those cases, the first day was also the day the

bill was subject to an override vote.

The veto messages appear in various formulations. Although it is

clear from the journal entries when the governor signed each message, and

some recite that the return is concurrent with the veto, we are directed to

no independent evidence of the date on which the message was delivered to

the legislature. As a result, although it is clear that a substantial

number of these bills, and perhaps all, were vetoed by the procedure used

to veto House Enrolled Act 1866, in several instances we are unable to

determine with confidence whether the veto is or is not in that category,

and in some it seems likely the bills were delivered on the first day.

Nevertheless, it is clear that for many years, beginning within a decade of

the effective date of the current Section 14, at least some vetoes were

delivered before the next session without objection by the legislature.

The State contends that this history demonstrates that the practice of

delivery before the first day is consistent with the constitution. There

is certainly support for the view that legislative or executive practice

can build a patina on the constitutional framework. Youngstown Sheet &

Tube Co. v. Sawyer, 343 U.S. 579, 610-11 (1952) (“[A] systematic, unbroken,

executive practice, long pursued to the knowledge of Congress and never

before questioned . . . may be treated as a gloss on ‘executive Power’

vested in the President . . . .”); United States v. Midwest Oil Co., 236

U.S. 459, 474 (1915) (noting that a president’s “long-continued practice,

known to and acquiesced in by Congress” creates “a presumption” that the

practice is a proper exercise of the president’s power); Lutz v. Arnold,

208 Ind. 480, 508, 193 N.E. 840, 851 (1935) (“In determining whether the

Legislature had the constitutional right to enact certain legislation, the

Legislature’s interpretation of its power is entitled to great weight, and

especially where acquiesced in for a long period of time.”). Regardless of

whether the message was delivered before the first day in every case, the

constant delivery of vetoes before the first day is a salient fact here and

evidences approval of the practice over most of the life of current Section

14.

The State also notes that Section 14 was amended in 1990 without

change in the language at issue here. For at least several years before

1990, governors had begun the practice of physical delivery of vetoed bills

before the onset of a new session. See Appendix A. Though there may be no

consistent practice of delivery “early” or waiting for the first day of

session, either was deemed acceptable by the governor and acted upon by the

General Assembly without protest. Amendment of a constitutional provision

without change to eliminate current practice has been cited as one factor

suggesting that the interpretation is permissible. Ratliff v. Cohn, 693

N.E.2d 530, 539-40 (Ind. 1998). Like prior practice, a subsequent

amendment does not justify disregard of the constitution, but a subsequent

amendment without change in language that has been construed in practice

suggests satisfaction with the governors’ and the General Assembly’s view

of how the provision applies. That is the case with Section 14.

C. The “Legislative History” of the Amendment

We are directed to no helpful comments from the unknown author of

Section 14 and no legislative history. In addition to relying on the text

of Section 14, Plaintiffs direct us to a 1970 Report of the Constitutional

Revision Commission prepared by the Legislative Council explaining the 1972

amendment. Plaintiffs point out that the Commission, in describing the

amendment, stated that it “requires the Governor to return to the General

Assembly on its first day in session a bill vetoed during a recess or

adjournment . . . .” Ind. Legislative Council, Report of the

Constitutional Revision Commission 10 (1970). The Court of Appeals relied

heavily on this report for its conclusion that the “drafters” intended not

merely to impose a deadline for vetoes, but also to require a return on a

specific date. D & M Healthcare, Inc. v. O’Bannon, 793 N.E.2d 241, 245

(Ind. Ct. App. 2003). On its face, the text of the Report would appear to

suggest the view that the 1972 Amendment to Section 14 was intended to

provide a specific date, not a deadline, for the return of a veto. The

Report did not address the issue whether physical delivery before the first

day created a “returned” bill. The quoted phrase is simply a description

of the amendment in the course of a discussion of the issue.

The Court of Appeals apparently accepted Plaintiffs’ assertion that

the Commission was the author of the constitutional language in question.

But the Report does not have the status of an authoritative commentary on

this constitutional amendment. Nor is it a report from the proposer of the

revision to Section 14. The Commission’s project to study the Indiana

Constitution and recommend changes began in 1967 and the Commission

ultimately recommended twenty constitutional amendments between 1967 and

1969. Report, supra, at 1. At the time the Commission submitted its 1970

report, the amendment to Section 14 had already been passed by the 1969

General Assembly, Indiana House Journal at 1980 (1969), and required

passage by the General Assembly to be elected in November 1970 before it

would be submitted to the voters in 1972 pursuant to Article XVI, Section 1

of the Constitution. In the 1970 Report that Plaintiffs cite, the

amendment to Article V, Section 14 was expressly excluded from those

identified as recommended by the Commission. The Commission specifically

noted in its introduction to the 1970 Report that the 1969 General Assembly

had already approved nine of the Commission’s “proposals.” In a footnote,

the Commission added: “A tenth amendment, also approved, was submitted by

an individual legislator and resulted from the court decision nullifying

the use of the pocket veto. The ruling was issued after the Commission had

concluded its report.” Report, supra, at 1. This footnote plainly refers

to the amendment that became current Section 14 and disclaims the

Commission’s parentage of it. If there were any doubt on this point, it is

removed by a review of the 1969 Report, which was the Commission’s first

official document and lists a number of recommended amendments. None of

these affected Section 14. See Constitutional Revision Comm’n, Biennial

Report to the Indiana General Assembly 1-4 (1969). Thus, although the

Report may approach the status of an official commentary on the

Commission’s recommendations for constitutional amendments pending at the

time, the Commission’s description of Section 14 is at most a

contemporaneous account of the amendment to Section 14, which did not

originate with the Commission.

Plaintiffs also cite a portion of the Report that described the

question resolved by the then-pending amendment to Section 14 as:

If the legislative sessions amendment [(then an amendment pending to

prevent recesses during session)] is approved, the General Assembly

could schedule recesses of one week or more during the session. How

would this affect the time limits? Should the Governor return vetoed

legislation during a recess or wait until the first day in session?

Report, supra, at 11. Once again, the Commission did not address the

effect of a delivery of a bill before the first day and did not directly

answer the question it posed. Rather, it simply made clear that a bill

“can be killed only through exercise of the veto.” Report, supra, at 11.

It did not address the mechanics of how a veto is delivered other than in

its passing description of the amendment.

We think the Commission’s observations on Section 14 are shaped by the

same mindset that generated the choice of language for Section 14. The

Commission’s references to “recess” in context are to recesses “for a week

or more” within a session, as well as to adjournment between sessions.

Because the pre-1972 Constitution required the veto in three days from

presentation, a recess during session would be problematic without the

amendment to Section 14. The amendment was to make clear that a pocket

veto would not be effective during a recess. In sum, the Commission’s

observations on the amendment to Section 14, which was not among its

proposals, are little more than a recitation of the language of the then-

pending amendment viewed through the lens of the then-current understanding

of when a “return” could first be accomplished, and addressing issues

different from the one presented here.

Finally, Plaintiffs cite a pamphlet given to voters describing the

amendment to Section 14. The reason given for the amendment was that “No

specific time of return is prescribed [in the 1851 Constitution], . . . and

it is unclear when it should be returned and, further, what the effect of

failure to return such legislation would be; would it be killed or could it

be acted upon at a later time, if returned?” Ind. Legislative Council,

Five Questions for Hoosier Voters 10 (1972). Plaintiffs argue that this

statement, along with the language of the amendment, told voters that the

amendment was to set a date certain upon which a governor has to return a

vetoed bill. But all this pamphlet says is that the amendment (1) sets a

deadline for exercising the veto, and (2) makes clear that a governor could

not veto by failing to return a bill as governors had in the past through

the pocket veto. Questions for Voters, supra, at 9-11. It does not state

that a governor must return a vetoed bill on a date certain.

D. The Function of Section 14

Because the language of Section 14 does not clearly resolve the

question before us, it is appropriate to look to the purpose of the

provision to illuminate its meaning. This proposition applies to

constitutional provisions as well as statutes. Ind. Gaming Comm’n v.

Moseley, 643 N.E.2d 296, 298 (Ind. 1994); Eakin v. State ex rel. Capital

Improvement Bd. of Managers of Marion County, 474 N.E.2d 62, 64-65 (Ind.

1985); Tarlton v. Peggs, 18 Ind. 24, 25 (1862) (construing Art. V, § 14);

State ex rel. Mass Transp. Auth. of Greater Indianapolis v. Ind. Revenue

Bd., 144 Ind. App. 63, 71, 242 N.E.2d 642, 647 (1968) (same), trans.

denied. Both sides argue that the purposes of Section 14 are furthered by

the construction they urge. All agree that one principal goal of the 1972

amendment was to provide a date certain by which the governor must act or a

bill became law without his signature. The pocket veto was thus to become

a relic of the past. And it seems equally clear that the Section was

intended to require the governor to act on a timetable that permitted the

legislature to respond to a veto during adjournment at the first

opportunity, i.e., on the first day of the next session. But Plaintiffs

identify no good reason why the constitution or its framers would wish to

prohibit a physical delivery of a veto before it is due. The use of

“returned on” simply reflects the then-current understanding that that date

was not only the desired deadline, but also the first opportunity to

complete a “return” of a bill to a branch of government that floated into

and out of existence from time to time. So viewed, the returned status is

accomplished only when the entity to whom return is required is present to

receive it. This construction does no violence to the framers’ objectives,

is consistent with the text, gives due respect to views of the other

branches, and is eminently practical.

E. Problems with the Plaintiffs’ View

To some it seems to defy common sense that major consequences attach

to the Governor’s having, as his counsel put it, “sent his homework in

early.” And, as explained in Part I, even if the veto was prematurely

delivered, that would not invalidate the veto. Physical delivery before a

bill is required to be “returned” contravenes no identified policy. But

there are also practical consequences to the Plaintiffs’ view that lead us

to conclude that it cannot have been the intended result of the language

chosen by the drafters of Section 14. The State points to the at best

awkward and perhaps disastrous situations created by the Plaintiffs’

proposed construction of Section 14. If a “return” cannot be effected

until November, laws having passed in the spring at the end of a usual

legislative session, which frequently purport to be in effect as of July 1,

will be in an uncertain status for several months. Plaintiffs contend that

uncertainty is inherent in the veto process because an override is

possible. But the legislature has addressed the effective date of vetoed

bills. A veto announced and physically delivered to the legislature before

the effective date makes clear that the law will not be effective unless

and until the veto is overridden. Ind. Code § 1-1-3.1-3(d) (1998); H.E.A.

1866 § 22, 112th Gen. Assem., 1st Reg. Sess. (Ind. 2001). By contrast, if

the Plaintiffs are correct and a veto cannot be completed until the next

session, the effective date of many bills will pass before that time.

Anyone affected by the law would be left in a period of several months of

uncertainty as to the lawfulness of actions taken in the interim period

between the law’s purported effective date and the first day of the next

session.

Conclusion

We agree that the Plaintiffs’ literal reading of Section 14 is

permissible and perhaps even persuasive if taken in isolation. But there

remains ambiguity in the language of Section 14. Both the legislative and

executive branches have treated numerous interim vetoes as effective as

long as they were delivered before the next session. We see no practical

reason for the construction the Plaintiffs urge, and significant

disadvantages to it. We conclude that Section 14 places a deadline for

physical delivery, but permits that to be done at any time, so long as the

result is a returned veto on the first day of the next session.

Accordingly, we hold that the Governor’s veto of House Enrolled Act 1866

was valid. Because the House then sustained the veto, the bill did not

become law. The Plaintiffs requested that the trial court enjoin the

implementation and enforcement of the rules adopted by FSSA as conflicting

with House Enrolled Act 1866. Because we conclude that House Enrolled Act

1866 did not become law, the rules are not subject to the flaw on which the

Plaintiffs rely. The judgment of the trial court is affirmed.

DICKSON and RUCKER, JJ., concur, and SHEPARD, C.J., concurs with separate

opinion.

SULLIVAN, J., is not participating

Appendix A

In every case, the veto message appears first in the “Messages After

Adjournment” section of the preceding legislative session. In most

instances, the veto message is accompanied by a date; where it is not and a

date for the veto is found elsewhere, that is listed in parentheses under

the veto message date. Indices for each session are reproduced in a

separate volume from the journals, but each journal also contains an index.

In some cases, neither of the indices reflects action on the vetoed bill.

Where action is shown, except as noted below, the veto message appears in

the journal of the next session on the date of the vote to sustain or

override the veto. Where the vote was to override the Governor’s veto,

that is indicated by (O) and the listing of the two dates on which both

houses voted to override the Governor’s veto. If one house voted to

sustain the veto, there typically is no action by the other.

Despite the appearance of the constitutional mandate found in Article V,

Section 14(a)(2)(D) (“The bill must be reconsidered and voted upon within

the time set out in Clause (C)”; Clause (C) requires a vote “before the

final adjournment of the next regular session”), in some cases the vote did

not occur in the next session and perhaps never occurred.

102nd Gen. Assem., 1st Reg. and Spec. Sess. (Ind. 1981)

Commenced Nov. 18, 1980

Adjourned Apr. 30, 1981

Spec. Sess. May 27 – 29, 1981

Vetoed Bill Veto Message Date Veto Message in Journal for

New Session

S.E.A. 1 May 1, 1981 Feb. 15, 1982

H.E.A. 1579 May 1, 1981 Mar. 20, 19911

S.E.A. 485 May 4, 1981 Feb. 15, 1982

S.E.A. 239 May 5, 1981 Feb. 15, 1982

H.E.A. 1583 May 6, 1981 Mar. 20, 19911

102nd Gen. Assem., 2nd Reg. Sess. (Ind. 1982)

Commenced Nov. 17, 1981

Adjourned Feb. 20, 1982

Vetoed Bill Veto Message Date Veto Message in Journal for

New Session

S.E.A. 442 Feb. 25, 1982 Jan. 28, 1983

H.E.A. 1353 Feb. 25, 1982 Mar. 20, 19911

S.E.A. 363 Feb. 26, 1982 Jan. 28, 1983

S.E.A. 413 Feb. 26, 1982 Jan. 28, 1983

103rd Gen. Assem., 1st Reg. and Spec. Sess. (Ind. 1983)

Commenced Nov. 16, 1982

Adjourned Apr. 15, 1983

Spec. Sess. Dec. 6 – 16, 1982

Vetoed Bill Veto Message Date Veto Message in Journal for

New Session

S.E.A. 449 Apr. 22, 1983 Feb. 2, 1984

H.E.A. 1595 Apr. 22, 1983 Mar. 20, 19911

103rd Gen. Assem., 2nd Reg. Sess. (Ind. 1984)

Commenced Nov. 22, 1983

Adjourned Mar. 1, 1984

Vetoed Bill Veto Message Date Veto Message in Journal for

New Session

H.E.A. 1297 Mar. 2, 1984 Mar. 28, 1985

104th Gen. Assem., 1st Reg. Sess. (Ind. 1985)

Commenced Nov. 20, 1984

Reconvened Jan. 7, 1995

Adjourned Apr. 15, 1985

Vetoed Bill Veto Message Date Veto Message in Journal for

New Session

S.E.A. 3162 Feb. 5, 1986

S.E.A. 4172 Feb. 21, 1986

H.E.A. 16352 Jan. 24, 1986; Feb. 5, 1986

(O)

H.E.A. 16812 Mar. 5, 1986

104th Gen. Assem., 2nd Reg. Sess. (Ind. 1986)

Commenced Nov. 19, 1985

Reconvened Jan. 7, 1986

Adjourned Mar. 5, 1986

Vetoed Bill Veto Message Date Veto Message in Journal for

New Session

S.E.A. 384 Mar. 6, 1986 Feb. 17, 1987

(1986 House Journal at 559)

105th Gen. Assem., 1st Reg. and Spec. Sess. (Ind. 1987)

Commenced Nov. 18, 1986

Reconvened Jan. 6, 1987

Adjourned Apr. 29, 1987

Spec. Sess. Apr. 30, 1987 (one day)

Vetoed Bill Veto Message Date Veto Message in Journal for

New Session

S.E.A. 375 May 4, 1987 Feb. 19, 1988

(1987 House Journal at 1073)

105th Gen. Assem., 2nd Reg. Sess. (Ind. 1988)

Commenced Nov. 17, 1987

Reconvened Jan. 4, 1988

Adjourned Feb. 29, 1988

Vetoed Bill Veto Message Date Veto Message in Journal for

New Session

S.E.A. 170 Mar. 2, 1988 Feb. 23, 1989; Mar. 7, 1989

(O)

(1988 House Journal at 645)

S.E.A. 139 Mar. 7, 1988 (Same) Feb. 23, 1989

106th Gen. Assem., 1st Reg. and Spec. Sess. (Ind. 1989)

Commenced Nov. 22, 1988

Reconvened Jan. 4, 1989

Adjourned Apr. 29, 1989

Spec. Sess. May 2 – May 4, 1989

Vetoed Bill Veto Message Date Veto Message in Journal for

New Session

H.E.A. 1606 May 5, 1989 Mar. 20, 19911

S.E.A. 441 May 6, 1989 Jan. 18, 1990; Mar. 5, 1990

(O in Senate; Sust. in House)

S.E.A. 386 May 6, 1989 Mar. 8, 1990

H.E.A. 1655 May 6, 1989 Mar. 20, 19911

H.E.A. 1963 May 6, 1989 Mar. 20, 19911

H.E.A. 1870 May 9, 1989 Mar. 20, 19911

H.E.A. 1769 May 10, 1989 Mar. 20, 19911

H.E.A. 1930 May 10, 1989 Mar. 8, 1990

106th Gen. Assem., 2nd Reg. Sess. (Ind. 1990)

Commenced Nov. 21, 1989

Reconvened Jan. 3, 1990

Adjourned Mar. 13, 1990

Vetoed Bill Veto Message Date Veto Message in Journal for

New Session

S.E.A. 108 Mar. 15, 1990 Jan. 17, 1991; June 13, 1991

(O in Senate; Sust. in House)

H.E.A. 1355 Mar. 20, 1990 Nov. 20, 1990 (Both houses)

(O)

H.E.A. 1373 Mar. 20, 1990 Mar. 20, 1991

107th Gen. Assem., 1st Reg. and Spec. Sess. (Ind. 1991)

Commenced Nov. 20, 1990

Reconvened Jan. 7, 1991

Adjourned Apr. 30, 1991

Spec. Sess. May 13 – 23, 1991

Spec. Sess. May 23 – June 14, 1991

Vetoed Bill Veto Message Date Veto Message in Journal for

New Session

H.E.A. 1235 May 1, 1991 Action not found

107th Gen. Assem., 2nd Reg. Sess. (Ind. 1992)

Commenced Nov. 19, 1991

Reconvened Jan. 6, 1992

Adjourned Feb. 14, 1992

Vetoed Bill Veto Message Date Veto Message in Journal for

New Session

S.E.A. 116 Feb. 21, 1992 Jan. 22, 1993; Apr. 29, 1993

(O)

S.E.A. 76 Feb. 28, 1992 Jan. 22, 1993; Apr. 29, 1993

(O in Senate; Sust. in House)

108th Gen. Assem., 1st Reg. and Spec. Sess. (Ind. 1993)

Commenced Nov. 17, 1992

Reconvened Jan. 5, 1993

Adjourned Apr. 29, 1993

Spec. Sess. June 9 – 30, 1993

Vetoed Bill Veto Message Date Veto Message in Journal for

New Session

H.E.A. 1804 May 5, 1993 Not acted on in 1994 (See 1994

Index at 178)

109th Gen. Assem., 1st Reg. Sess. (Ind. 1995)

Commenced Nov. 22, 1994

Reconvened Jan. 4, 1995

Adjourned Apr. 29, 1995

Vetoed Bill Veto Message Date Veto Message in Journal for

New Session

S.E.A. 443 May 5, 1995 Nov. 21, 1995

H.E.A. 1766 May 8, 1995 Feb. 15, 1996; Feb. 21, 1996 (O)

S.E.A. 250 May 10, 1995 Nov. 21, 1995

S.E.A. 360 May 10, 1995 Nov. 21, 1995; Jan. 30, 1996

(O)

S.E.A. 563 May 10, 1995 Nov. 21, 1995

H.E.A. 1152 May 10, 1995 Jan. 25, 1996; Feb. 29, 1996

(O in House; Sust. in Senate)

H.E.A. 1063 May 12, 1995 Action not found

109th Gen. Assem., 2nd Reg. Sess. (Ind. 1996)

Commenced Nov. 21, 1995

Reconvened Jan. 8, 1996

Adjourned Mar. 8, 1996

Vetoed Bill Veto Message Date Veto Message in Journal for

New Session

S.E.A. 269 Mar. 12, 1996 Jan. 16, 1997; Jan. 23, 1997

(O in Senate; Sust. by House)

H.E.A. 1299 Mar. 14, 1996 Jan. 21, 1997

S.E.A. 106 Mar. 19, 1996 Feb. 11, 1997; Feb. 13, 1997

(O)

S.E.A. 234 Mar. 21, 1996 Feb. 13, 1997

H.E.A. 1042 Mar. 21, 1996 Jan. 21, 1997; Jan. 30, 1997

(O)

H.E.A. 1280 Mar. 21, 1996 Jan. 21, 1997; Jan. 30, 1997

(O)

110th Gen. Assem., 1st Reg. and Spec. Sess. (Ind. 1997)

Commenced Nov. 19, 1996

Reconvened Jan. 7, 1997

Adjourned Apr. 29, 1997

Spec. Sess. May 14 – 29, 1997

Vetoed Bill Veto Message Date Veto Message in Journal for

New Session

H.E.A. 11603 May 12, 1997 Jan. 12, 1998; Jan. 22,

1998 (O)

(1997 House Journal at 3ss)

H.E.A. 11773 May 2, 1997 Jan. 12, 1998

(Same at 2ss)

H.E.A. 15833 May 13, 1997 Feb. 17, 1998

(Same at 3ss)

H.E.A.18453 May 13, 1997 Jan. 12, 1998

(Same at 3ss)

(These four bills are not listed in the House “Messages After Adjournment”

but are listed in the 1996 Senate Journal “Messages After Adjournment.”)

110th Gen. Assem., 2nd Reg. Sess. (Ind. 1998)

Commenced Nov. 18, 1997

Reconvened Jan. 6, 1998

Adjourned Feb. 27, 1998

Vetoed Bill Veto Message Date Veto Message in Journal for

New Session

S.E.A. 185 Mar. 13, 1998 Apr. 6, 1999

(1999 Index at 283)

H.E.A. 1136 Mar. 13, 1998 Jan. 14, 1999; Jan. 21, 1999

(O)

111th Gen. Assem., 1st Reg. Sess. (Ind. 1999)

Commenced Nov. 17, 1998

Reconvened Jan. 6, 1999

Adjourned Apr. 29, 1999

Vetoed Bill Veto Message Date Veto Message in Journal for

New Session

S.E.A. 343 May 13, 1999 Mar. 2, 2000

111th Gen. Assem., 2nd Reg. Sess. (Ind. 2000)

Commenced Nov. 16, 1999

Reconvened Jan. 10, 2000

Adjourned Mar. 3, 2000

Vetoed Bill Date of Veto Message Veto Message in Journal for

New Session

H.E.A. 1231 Mar. 7, 2000 Action not found

S.E.A. 442 Mar. 15, 2000 Feb. 8, 2001 (O); House action

not found

S.E.A. 408 Mar. 15, 2000 Feb. 19, 2001 (O); House

action not found

H.E.A. 1397 Mar. 15, 2000 Action not found

H.E.A. 1278 Mar. 15, 2000 Action not found

H.E.A. 1214 Mar. 15, 2000 Action not found

H.E.A. 1150 Mar. 15, 2000 Jan. 16, 2001; Jan. 23, 2001

(O)

H.E.A. 1130 Mar. 15, 2000 Action not found

H.E.A. 1124 Mar. 15, 2000 Action not found

H.E.A. 1102 Mar. 15, 2000 Action not found

H.E.A. 1073 Mar. 15, 2000 Action not found

112th Gen. Assem., 1st Reg. Sess. (Ind. 2001)

Commenced Nov. 21, 2000

Reconvened Jan. 8, 2001

Adjourned Apr. 29, 2001

Vetoed Bill Date of Veto Message Veto Message in Journal for

New Session

H.E.A. 1207 May 3, 2001 Mar. 13, 2002; Mar. 14, 2002 (O)

H.E.A. 1599 May 3, 2001 Mar. 14, 2002 (Both houses) (O)

H.E.A. 1908 May 3, 2001 Mar. 13, 2002; Mar. 14, 2002 (O)

H.E.A. 1083 May 10, 2001 Mar. 13, 2002

S.E.A. 308 May 11, 2001 Mar. 7, 2002; Mar. 14, 2002

(O by Senate; Sust. by House)

S.E.A. 337 May 11, 2001 Nov. 20, 2001; Mar. 13, 2002

(O by Senate; Sust. by House)

S.E.A. 373 May 11, 2001 Nov. 20, 2001; Mar. 13, 2002

(O)

S.E.A. 471 May 11, 2001 Mar. 7, 2002; Mar. 14, 2002

(O by Senate; Sust. by House)

H.E.A. 2001 May 11, 2001 Mar. 13, 2002; Mar. 14, 2002

(O by House; Sust. by Senate)

112th Gen. Assem., 2nd Reg. and Spec. Sess. (Ind. 2002)

Commenced Nov. 20, 2001

Reconvened Jan. 7, 2002

Adjourned Mar. 14, 2002

Spec. Sess. May 14 – June 2, 2002

Vetoed Bill Date of Veto Message Veto Message in Journal for

New Session

S.E.A. 233 Mar. 20, 2002 May 14, 2002 (O); (No action

by House,

see 2003 Index at 314)

S.E.A. 459 Mar. 20, 2002 May 14, 2002 (O) (Same)

H.E.A. 10834 Mar. 21, 2002 (Same)

H.E.A. 12024 Mar. 21, 2002 (Same)

S.E.A. 152 Mar. 27, 2002 May 14, 2002 (O) (Same)

S.E.A. 19 Mar. 28, 2002 May 14, 2002 (O) (Same)

S.E.A. 154 Mar. 28, 2002 May 14, 2002 (O) (Same)

S.E.A. 217 Mar. 28, 2002 May 14, 2002; June 22, 2002

(O)

S.E.A. 506 Mar. 28, 2002 May 14, 2002

H.E.A. 10653 Mar. 28, 2002 June 22, 2002; June 23,

2002 (O)

H.E.A. 12584 Mar. 28, 2002 (Same)

Shepard, Chief Justice, concurring.

Connected as it is to the vetoed pay bill, this appeal has been a

painful experience. Judges and prosecutors and their families have now

gone seven years without so much as a cost-of-living adjustment, even as

social workers, teachers, university professors, prison guards, and state

employees generally have received several such adjustments. This

differential treatment has been ruinous to the state’s judiciary. Passing

through the cloud of this calamity to decide this appeal on the basis of

our best judgment about the law, however, is the job we have chosen and

been chosen to do. While I place more value on the available legislative

history than Justice Boehm does, in the end, I have decided he is right

about what is the correct decision in this case.

-----------------------

[1] H.E.A. 1856, 112th Gen. Assem., 1st Reg. Sess. (Ind. 2001).

[2] Various treatises substitute “does not regard,” “is not concerned

with,” and “cares not for” for our choice of “does not redress” which is

less literal, but we think more to the point.

[3] The 1816 Constitution “emphasized a set of broad principles rather than

technical specifics that the drafters . . . felt the organic act should

include.” William P. McLauchlan, The Indiana State Constitution: A

Reference Guide 2 (1996). “The frontier democrats who dominated the first

Constitutional Convention countered the risk that reactionary elements

might fashion a non-majoritarian government by adopting measures to

guarantee popular participation and protect scrutiny of public affairs.”

Price v. State, 622 N.E.2d 954, 961-62 (Ind. 1993). The delegates borrowed

from other state constitutions, but “they generally borrowed only those

features which promoted political inclusion, eschewing the elitist

provisions favored by territorial federalists . . . .” Id. at 962 n.10.

In 1850, when the constitution was revised, again “populist, anti-

government Jacksonian Democrats” largely dominated the revisions. Id. at

962. As documented in Part II, the 1970 amendments were designed to

address several abuses, notably the “pocket veto,” that had arisen from the

literal compliance with the requirements for a veto in the 1851

Constitution.

[4] For this proposition, the Supreme Court cited cases from a variety of

contexts: Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 618

(1992) (de minimis effects in the United States would not confer

jurisdiction under the Foreign Sovereign Immunities Act of 1706, 28 U.S.C.

§ 1602 et seq., calling for an exception to immunity when the effect is a

direct and foreseeable result in this country); Hudson v. McMillian, 503

U.S. 1, 9-10 (1992) (intentionally inflicted minor injuries may be de

minimis violations of the Eight Amendment); Ingraham v. Wright, 430 U.S.

651, 674 (1977) (minor restraints of liberty do not violate the Fourteenth

Amendment); Abbott Labs. v. Portland Retail Druggists Ass’n, 425 U.S. 1, 18

(1976) (occasional sales at lower prices in emergency situations do not

establish a violation of the Robinson-Patman Act); Indus. Ass’n of San

Francisco v. United States, 268 U.S. 64, 84 (1925) (“few and widely

separated instances” of interference with sales did not establish a

conspiracy to restrain trade).

[5] Plaintiffs also contend that when there is doubt as to a law’s

enactment, it is resolved in favor of enactment. The 1972 amendment

“reflects this pro-enactment perspective” because whenever the Governor

fails to act, the bill becomes law. We find no authority for this

contention, and we do not see Section 14 as biased in favor of either the

legislature or the Governor if the two disagree. Rather, it seeks clarity

as to the procedures to be used.

[6] Plaintiffs’ principal brief asserts that the purpose of the 1972

amendment could not have been to stop the practice of pocket vetoes, as the

State contends, because Section 14 already prohibited them. They

apparently abandon that contention on transfer to this Court. In any event,

their contention that “Mass Transportation . . . plainly shows such vetoes

were prohibited by the pre-1972 amendment version of article V, section

14,” (Br. of Appellants at 13), misses the mark. There would have been no

need for the Mass Transportation decision had it been clear before 1968

that Section 14 did not allow pocket vetoes. As the 1970 Constitutional

Revision Commission Report noted, “the amendment resulted from a judicial

decision nullifying the use of the pocket veto (in the Mass Transportation

Authority case).” Ind. Legislative Council, Report of the Constitutional

Revision Commission 10 (1970).

[7] According to the Senate and House Journals, in 82 instances since 1981,

the veto message appeared to have been returned in the window of time after

adjournment and before the ensuing session. We have not researched earlier

periods and we have not examined the underlying documentation. The bills

and relevant Senate and House Journal entries are listed in Appendix A.

[8] Plaintiffs also argue that allowing the “early return” of bills “would

frustrate the purposes of Indiana law requiring the House and Senate to

maintain public journals of all action on legislation.” (Br. of Appellants

at 16.) Plaintiffs rely on the doctrine that “the contents of such

journals are dispositive as to legislative events,” and suggest that in the

absence of a record showing the Governor’s veto and its return on the first

day of the General Assembly’s next session, that it did not occur. (Id. at

16-17.) The Governor’s veto was in fact recorded in the House Journal.

Indiana House Journal at 1329 (2001) (“Messages After Adjournment”). Thus,

this argument has no merit.

[9] The veto message for House Enrolled Act 1866 at issue in this case was

dated May 11, 2001, and read: “I hereby veto House Enrolled Act 1866 and

return it to the House of Representatives for further action.” Indiana

House Journal at 1330 (2001). In some cases, the veto message, dated in

that window of time, read, for example: “I return herewith House Enrolled

Act 1729, which I have vetoed this 6th day of April, 1983.” Indiana House

Journal at 875 (1983). In others, the message, also so dated, read: “I

hereby veto Senate Enrolled Act 116 and return it herewith . . . .”

Indiana Senate Journal at 537 (1992).

[10] For example, in the case of Senate Bill 239, Governor Orr’s 1981

message read: “I return herewith Senate Bill 239, which I have vetoed this

5th day of May, 1981.” Indiana Senate Journal at 850 (1981). That message

appears in both the “Messages After Adjournment” section of the 1981

session and the Senate Journal for the date on which override was

considered, which was February 15, 1982, the twentieth, not the first, day

of the following session. Indiana Senate Journal at 353 (1982). But

because the bill was not considered on the first day, the message does not

appear on that date. The inference seems clear that the bill was in fact

received by the legislature some time on or before the first day, and a

fair reading of Governor Orr’s message is that it was delivered on “this

5th day of May, 1981,” long before the next session convened. For an

example of a similar entry in Governor Bayh’s administration, see House

Journal for March 8, 1990, (the 29th day) where the veto message for House

Enrolled Act 1930, dated May 10, 1989, appears. Indiana House Journal at

670 (1990). Journal entries in Governor Bowen’s administration, unlike

those in later years, are accompanied by a “Statement” from the Secretary

of the Senate that the vetoed bills “have been returned to the Senate and

received by me.” The statement is filed as an entry for the first session

day, but is undated and does not say when the “return” or “receipt”

occurred, only that it happened at some time (“have been”) before the

statement. See, e.g., Indiana Senate Journal at 7 (1974). These are in

contrast to earlier practice under the pre-1972 version of Section 14. At

that time, the Secretary of State delivered the message transmitting the

governor’s veto and it appears to have been done on the opening day of the

ensuing session. Indiana Senate Journal at 15 (1972).

1 Although these bills were vetoed in 1981, the legislature did not act on

them until 1991. On Mar. 20, 1991, the “Clerk identified seventeen House

bills, dating back to 1981, which had passed the House and Senate, had been

vetoed by the Governor and returned to the House but which had not been

presented to the House for reconsideration, within the meaning of Article

5, Section 14 of the Constitution.” Indiana House Journal at 649-56

(1991). The Speaker then handed down the seventeen bills for

reconsideration and the House voted on them.

2 In these instances, the governor’s veto message is undated as it appears

in the House and Senate Journals, although the messages were contained in a

list of “Messages After Adjournment.”

3 These veto messages were recorded twice – once on the first day of the

following special session and once in the next legislative session on the

listed date where a vote was then taken to sustain or override the

governor’s veto.

4 In these instances, the governor’s veto message appeared on the first day

of the special session without a vote taken on that date. The indices do

not reflect a subsequent vote.