A primer: Getting a bill back from the governor’s desk

Once a bill has been passed by both houses of the California Legislature, the bill is sent to the governor’s desk. In order for the governor to act on a bill, it must be “presented” to the governor for final consideration. This means the governor must have the actual bill before him or her in order to either sign or veto the measure.

But once or twice during each legislative session, an interesting question arises, prompting lawsuits: Can the Legislature withdraw a bill from the governor’s desk if the governor has not yet acted on the legislation?

But the Assembly Chief Clerk quickly retrieved AB 60 from the governor’s desk, after the Assembly unanimously approved a motion by the bill’s author to withdraw the bill from enrollment…

While the courts have generally ruled that the Legislature may do so, does this action apply even when the official records of the Legislature reflect that the bill was “presented” to the governor?

And what happens if the governor doesn’t want to give the bill back?

Let’s get into the weeds: We’ll explore these questions and propose a statute to address the retrieval process. Let us begin with a review of the main appellate court decision on this topic — De Asis v. Department of Motor Vehicles (2003).

The De Asis Decision
This appellate court case, which was written by then-Presiding Justice Arthur Scotland, followed the passage in the 2001-02 legislative session of AB 60 (Cedillo), which dealt with unlawful immigrants obtaining a California driver’s license.

Amid widespread media scrutiny, AB 60 was properly passed by both houses of the Legislature and was presented to the governor on Oct. 2, 2001.

But the Assembly Chief Clerk quickly retrieved AB 60 from the governor’s desk, after the Assembly unanimously approved a motion by the bill’s author to withdraw the bill from enrollment and place it on the Assembly’s inactive file.

The plaintiff in this case claimed that AB 60 had actually become law without the governor’s signature because, after the measure was presented to the governor on Oct. 2, he failed to act on the measure within the specified time limit that the governor is granted at the end of the legislative session. A governor has three options: sign, veto or let legislation become law without a signature.

The trial court in this case rejected the plaintiff’s arguments, as did the appellate court.

The appeals court said “the governor acquiesced in the retrieval of Assembly Bill No. 60…” — Appeals Court

In this case, the appellate court ruled that the “Legislature and the governor acquiesce[d] in the retrieval of a bill after enrollment but before expiration of the 30-day time period allotted to the governor to deliberate on the bill,” and that “courts will not interfere with that decision.”

In addition, the appellate court held that, “since such retrieval deprives the governor of the full period in which to deliberate on the bill, it cannot become law without the governor’s signature because the bill has not been presented to the governor within the meaning of Article IV, Section 10 of California’s Constitution.”

As the appellate court explained, “The complaint alleges that the retrieval of Assembly Bill No. 60 from the governor was ineffectual because the Chief Clerk of the Assembly lacked the authority to do so. It follows, the complaint claims, that when the governor failed to act upon the bill in the 30-day time period allotted by the Constitution, it automatically became law.”

But the appeals court said “the governor acquiesced in the retrieval of Assembly Bill No. 60,” and then opined that, “Therefore, we are not concerned with whether the Legislature can compel the governor to allow retrieval of a bill that has been sent to him and, if so, the circumstances in which, or the formalities by which, the Legislature could do so.” This is the essence of the legislative proposal set forth at the end of this article.

“A bill is not presented to the governor unless it is in the physical possession of the governor for a period of time, not more than 30 days…” — Appeals Court

As the legislative branch also agreed to the bill being retrieved from the governor’s desk, the court noted, “both parties to the lawmaking function acquiesced in the retrieval of the bill, neither of them asserts that retrieval was ineffective or that presentation to the governor was complete, and neither of them maintains that Assembly Bill No. 60 became law by the passage of time.”

Here the court ruled that a private person’s claim could not overcome the shared views of the two branches of state government. But what might happen if the other two branches did not share the same view on a bill’s retrieval?

Finally, the appellate court explained that “a bill is not presented to the governor unless it is in the physical possession of the governor for a period of time, not more than 30 days, necessary to permit the governor to deliberate on the bill (the presentation period). “

Discussion of a Bill Retrieval
Because the Legislature is vested with the exclusive authority to determine whether the formalities for enactment of a statute have been fulfilled, it would follow that a court cannot retry the Legislature’s determinations. This is due to the fact that the lawmaking power of a statute is vested in the Legislature, and California courts have repeatedly upheld the application of the Enrolled Bill Rule in this state.

When the Chief Clerk of the Assembly or the Secretary of the Senate retrieves a bill from the governor, he or she thereby curtails the presentation period required by the Constitution. If the Legislature determines retrieval was inappropriate, it can direct the Chief Clerk or Senate Secretary to promptly fulfill the presentation requirement by returning the bill to the governor with the full period for review of the bill.

However, what would happen if the governor does not “acquiesce” in the Legislature’s bill retrieval request?

The courts in such cases should not second-guess that determination. A bill is not presented to the governor unless it is in the physical possession of the governor for a period of time, not more than 12 days or 30 days (depending on the time of the Session that the bill reaches the governor’s desk), necessary to permit the governor to deliberate on the bill.

The governor’s act of returning the bill to the Legislature ends the time for deliberation and the bill itself is put beyond the governor’s possession. The Legislature should be able to retrieve a bill after it has been presented to the Governor. 

In the De Asis case, the appellate court noted several times in its opinion that the Legislature and the governor acquiesced in the retrieval of AB 60 after enrollment, but before expiration of the 30-day time period allotted to the governor to deliberate on the bill. In this instance, the court held that the judiciary will not interfere with that decision.

However, what would happen if the governor does not “acquiesce” in the Legislature’s bill retrieval request? Could the Legislature still demand the bill be returned? Should both houses be required to request a bill be returned, or only the house of origin (which is the current practice)?

The court in the De Asis case stated, “Therefore, we are not concerned with whether the Legislature can compel the governor to allow retrieval of a bill that has been sent to him and, if so, the circumstances in which, or the formalities by which, the Legislature could do so.” It left this question open for a future dispute. 

As the appellate court described, “By these actions, the Legislature necessarily determined that the retrieval of the bill by the Chief Clerk was proper and effectual. It is not competent for a court to retry that determination as a question of fact…. Because the Constitution does not expressly prohibit the retrieval of a bill once it has been sent to the Governor, and since the Governor and the Legislature acquiesced in the retrieval of Assembly Bill No. 60, we should not hold that the retrieval was ineffectual.”

Suggested Statute
As a result of the De Asis decision, the following proposed statute could be added to the Government Code as Section 9508.5:

“All bills shall be enrolled immediately following their final passage. An enrolled copy of every bill shall be printed and examined to ascertain that it is a true and accurate copy of the bill as it was passed by both houses of the Legislature.

“The bill shall then be authenticated by the signature of the Secretary of the Senate or a designee, and the Chief Clerk of the Assembly or a designee, and transmitted to the Governor or Secretary of State, as the case may be. If, at any time prior to the expiration of the period specified in Section 9516, the Chief Clerk of the Assembly if an Assembly Bill or the Secretary of the Senate if a Senate Bill, shall retrieve the bill pending before the Governor at the direction of the Assembly or Senate, as the case may be.

“The governor shall immediately return the bill to the Assembly or Senate as requested by the Chief Clerk of the Assembly or Secretary of the Senate.”

This statute would provide a specific avenue for retrieval of a bill that has been passed by both houses of the Legislature, regardless of whether both branches of government acquiesce in its retrieval. As such, under this proposed statute, the Legislature would be free to withdraw a bill from the governor’s desk for whatever purpose, so long as the governor has not yet acted upon the bill.
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Editor’s Note: Chris Micheli is an attorney and legislative advocate for the Sacramento governmental relations firm of Aprea & Micheli. He received his B.A. in Political Science-Public Service from the University of California, Davis (1989) and his J.D. from the University of the Pacific, McGeorge School of Law (1992). He serves as a Lecturer at UC Davis King Hall School of Law.