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In re Application of Reilly

December 09, 2003

IN RE APPLICATION OF CHARLES V. REILLY, ROBERT A HUTTON AND SEAN REILLY TO CONTEST THE VALIDITY OF THE ENACTMENT OF ASSEMBLY BILL 3359 (P.L. 2001, C. 364)


Before Judges Skillman, Wells and Fisher.

The opinion of the court was delivered by: Skillman, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 30, 2003

On application for declaration that chapter 364 of the Laws of 2001 is void.

Three citizens of New Jersey brought this action pursuant to N.J.S.A. 1:7-1 to -7 for a declaration that chapter 364 of the Laws of 2001, subsequently codified as N.J.S.A. 18A:36-34, is void because it was not enacted in the manner required by the New Jersey Constitution.*fn1 The applicants contend that chapter 364 is void because the Governor conditionally vetoed a substantially similar bill in the same legislative session and the Legislature did not adopt the changes recommended in the Governor's veto message or override the veto by the two-thirds votes of both houses required by the Constitution. We conclude that a bill passed by simple majorities of both houses of the Legislature and signed by the Governor is a valid law, even though a bill with the same or similar language was conditionally vetoed in the same legislative session and the Legislature did not concur with the Governor's recommended changes in the bill or override the veto by two-thirds votes of both houses. Accordingly, we reject this challenge to the manner of enactment of chapter 364.

In the 209th session of the Legislature, both houses passed Assembly bill A-2351, which required a school district to obtain written parental consent before conducting any survey, assessment or evaluation of a student which reveals information concerning certain sensitive topics, such as sexual behavior and attitudes. On January 16, 2001, Governor Whitman conditionally vetoed this bill. The details of the bill, the objections to the bill expressed in Governor Whitman's conditional veto message and the changes she recommended do not need to be described because they are irrelevant to the constitutional issue presented by this case.

The Legislature did not adopt amendments to A-2351 to meet Governor Whitman's objections or override her conditional veto by two-thirds votes of both houses. Instead, later in the same legislative session, Assembly bill A-3359 was introduced and subsequently passed by both houses. A-3359 was the same as A-2351, except that it omitted seven words included in the earlier bill.

By the time A-3359 passed both houses, Governor Whitman had resigned from office and Donald DeFrancesco had taken her place as Acting Governor. On January 7, 2002, Acting Governor DeFrancesco signed A-3359 and it became chapter 364 of the Laws of 2001.

This action was subsequently brought to have chapter 364 declared void and to enjoin its enforcement by executive officials on the ground that it was not enacted in conformity with the New Jersey Constitution. The Attorney General has appeared in defense of the law. There is no dispute concerning the relevant facts.

The challenge to chapter 364 is based on Article V, Section I, subparagraphs 14(e) and (f), of the Constitution, which state in pertinent part:

(e) Upon receiving from the Governor a bill returned by him with his objections, the house in which it originated shall... proceed to reconsider it. If, upon reconsideration,... two-thirds of all the members of the house of origin agree to pass the bill, it shall be sent, together with the objections of the Governor, to the other house; and if, upon reconsideration, it is approved by two-thirds of all the members of the house, it shall become a law....

(f) The Governor, in returning with his objections a bill for reconsideration at any... session of the Legislature, may recommend that an amendment or amendments specified by him be made in the bill, and in such case the Legislature may amend and re-enact the bill. If a bill be so amended and re-enacted, it shall be presented again to the Governor, but shall become a law only if he shall sign it within 10 days after presentation....

The applicants contend that, under these constitutional provisions, the only way a bill that a governor has conditionally vetoed can become law in the same legislative session is by two-thirds votes of both houses of the Legislature overriding the veto or by amendment and reenactment of the bill in conformity with the changes recommended by the Governor. Based on this interpretation, the applicants argue that chapter 364 was not validly enacted because the Legislature passed A-3359 by simple majority votes of both houses without adopting the changes Governor Whitman recommended in conditionally vetoing A-2351, which was substantially the same bill. We reject this argument and hold that the provisions of Article V, Section I, subparagraphs 14(e) and (f), governing a legislative override of a gubernatorial veto or legislative acceptance of the recommendations contained in a conditional veto, do not circumscribe the constitutionally prescribed procedure for the enactment of legislation by simple majority votes of both houses of the Legislature and concurrence of the Governor.

Article IV, Section IV, paragraph 6 of the Constitution provides that any bill may be passed by"a majority [vote] of all the members of each body personally present and agreeing thereto," and Article V, section I, subparagraph 14(b)(1), provides that"[a] passed bill presented to the Governor shall become law... if the Governor approves and signs it within the period allowed for his consideration." The Constitution does not contain any prohibition against enacting a bill into law in accordance with these basic provisions simply because the Governor has vetoed or conditionally vetoed another bill containing the same or similar language in the same legislative session. Moreover, such a significant limitation upon the power of the people's elected representative to enact a law should not be read into the Constitution by implication. See In re McGlynn, 58 N.J. Super. 1, 21 (App. Div. 1959). If the ...


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