Oregon Advisory Opinions January 01, 1982: OP 8086

Advisory Opinion Text

No. 8086 January 12, 1982 The Honorable Paul Hanneman State Representative QUESTION PRESENTED

Can the Governor revoke a proclamation calling the legisla­ture into special session by issu­ing a second proclamation be­fore the time the legislature is otherwise to convene?

ANSWER GIVEN

Yes.

DISCUSSION

The Governor has issued a proc­lamation directing the legislature to convene in special session on January 11, 1982. The Governor has since decided to postpone the special session by one week, to Jan­uary 18, 1982. We are asked wheth­er the Governor can revoke his ear­lier call and issue a second one di­recting the legislature to convene on the latter date.

The power of the Governor to convene the legislature is granted by Or Const Art V, sec 12. It pro­vides:

"He may on extraordinary occasions convene the Legislative Assembly by procla­mation, and shall state to both houses when assembled, the purpose for which they shall have been convened."

We find no Oregon authority directly applicable to the question presented. We thus look to the deci­sions of courts from other states construing similar provisions of their respective state constitutions. We find four such decisions. Three hold that a proclamation calling the legislature into special session can be revoked by proclamation issued before the date the legislature is to meet. Advisory Opinion to the Governor, 96 S2d 413 (Fla 1957); In re Opinion of the Justices, 136 Me 531, 12 A2d 418 (1940); People ex rel Tennant v. Parker, 3 Neb 409 (1872). One case holds such revoca­tion to be impossible. Royster v. Brock, 258 Ky 146, 79 SW2d 707 (1935). Tennant and Royster, both decided by bare majorities of their respective courts in the face of strong dissents, state numerous arguments on both sides of the question.

We conclude that the Governor can revoke a proclamation calling the legislature into special session, by issuing a second proclamation before the time the legislature is to meet. In reaching this conclusion, we are most persuaded by the fol­lowing argument:

". . . To convene is 'to cause to assemble/ Whether he will cause the General Assembly to assemble is left entirely with the Gover­nor. The power is conferred not for the benefit of the members of the General As­sembly, but for the benefit of the people. Today the Governor may be of the opinion that there exists an emergency justifying the call, and issues his proclamation. Before the time fixed for the convening arrives the emergency may no longer exist. In the circumstances, no question of implied power is presented. The General Assembly not having convened, and no rights having been acquired under the call, the Governor is still in control of the entire situation. There being no necessity for a special session, he decides that he will not cause the General Assembly to assemble. He then issues a proclamation rescinding the call. The effect is simply to withdraw the General Assem­bly's authority to convene before any action is taken under the call." Royster v. Brock, supra at 712 (Clay, C.J., dissenting).

The Governor probably could accomplish the desired postpone­ment of the January, 1982, special session by issuing a proclamation, before the legislature is to convene on January 11, 1982, amending the earlier proclamation as to the date for convening. Contra, In re Opin­ion of the Justices, supra at 420. Clearly, however, the Governor could accomplish that result, as he has done, by issuing a proclamation expressly revoking the prior procla­mation and calling the legislature to convene on the date he now fa­vors.

DAVE FROHNMAYER

Attorney General

DF:MR

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