Does an Illinois gubernatorial nomination pending less than 60 session days expire when the Senate adjourns sine die?

Plain-English summary

Illinois Comptroller Topinka asked the Attorney General whether gubernatorial nominees who had been pending in the Illinois Senate, but unconfirmed, when the 96th General Assembly adjourned sine die on January 11, 2011, lost their nominations and their authority to draw salary or expense reimbursements. The Senate President's office had taken the position that all unfinished business expired with the adjournment, including pending gubernatorial nominations.

The AG read the Illinois Constitution and disagreed. Article V, section 9(a) provides that "[a]ny nomination not acted upon by the Senate within 60 session days after the receipt thereof shall be deemed to have received the advice and consent of the Senate." The text says "60 session days." It does not say "60 session days within the same session" or "60 session days within the same General Assembly." The Constitution's drafters knew how to impose a same-session limitation, because they did exactly that in art. V, § 9(c) (no person rejected by the Senate "shall, except at the Senate's request, be nominated again for that office at the same session") and in art. V, § 11 (executive reorganization deadline tied to a particular annual session). The absence of similar language in § 9(a) was deliberate.

Reading § 9(a) to limit "session days" to days in the same session would rewrite the provision to say "within 60 session days, at the same session." Established canons of construction prohibit adding such an unwritten limitation. The plain-language conclusion: a nomination pending less than 60 session days does not expire when the Senate adjourns sine die. It carries over to the next biennial session.

The AG also cited the constitutional debates as backup. Delegates Perona, Orlando, and Young discussed exactly this scenario in the Sixth Constitutional Convention. Delegate Young's answer was clear: "if they adjourned before sixty days had elapsed, it would simply mean that the appointment would carry over." Delegate Orlando initially said the automatic confirmation would apply, but corrected himself after Young clarified.

The AG also drew on Michigan's parallel constitutional provision (art. V, § 6 of the Michigan Constitution of 1963), which has nearly identical language and which Illinois borrowed from. The Michigan Attorney General had concluded in 1983 that a Michigan Senate could exercise its advice-and-consent role across legislative sessions when the 60-session-day clock had not run. The AG found that analysis equally applicable in Illinois.

The AG rejected the Senate President's invocation of "contemporaneous and practical construction." That doctrine grants deference to long-standing legislative practice when a constitutional provision is ambiguous. But it has no force when the language is plain. Section 9(a) is not ambiguous, so practice cannot override text.

The AG noted that the Colorado Attorney General's 1987 opinion (the Senate President had cited it) used different constitutional language without "session days," so Colorado's reading provided no useful guidance for Illinois.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What's automatic confirmation?
A: Section 9(a)'s rule that any gubernatorial nomination not acted upon by the Senate within 60 session days "shall be deemed to have received the advice and consent of the Senate." It exists to prevent the Senate from indefinitely sitting on a nomination. The Sixth Constitutional Convention's Committee on the Executive cited it as a guard against tactics that had proved troublesome in other states (it was modeled on Michigan's 1963 provision).

Q: What's a "session day" exactly?
A: A day in which the Senate is in session. The text uses "session days" rather than "calendar days" precisely because the Constitution distinguishes the two and uses "calendar days" elsewhere (e.g., art. IV, §§ 9(a)-(c) and art. V, § 11). The 60-session-day clock runs only when the Senate is in session.

Q: Why does the Senate President's office think the nominations expired?
A: The argument was that unfinished business doesn't carry over from one Senate to the next. There's some support for that idea in legislative practice generally, but the AG noted that the Illinois Supreme Court in Schweicker v. Husser had described senatorial advice and consent as an executive function rather than a legislative one. And the Michigan Supreme Court in Attorney General ex rel Dust v. Oakman had treated advice and consent as an executive function specifically not subject to the standard "no carry-over of legislative business" rule. The opinion adopted that reasoning for Illinois.

Q: Did the AG resolve the salary question Topinka asked about?
A: Indirectly. The Senate President's office had questioned the authority of the former nominees to continue to draw salary or expense reimbursements. By concluding that the nominations had not expired, the AG implicitly affirmed that the appointees retained their gubernatorial nominations and the rights that flowed from them, subject to whatever the appointment statute provided about service before confirmation.

Q: What about the doctrine of contemporaneous and practical construction?
A: It's a real doctrine in Illinois law: when a constitutional provision is ambiguous, sustained legislative or executive practice can inform its meaning. But State v. Illinois Central R.R. Co. (1910) held that the doctrine has no force when the constitutional language is plain. Section 9(a)'s text is plain, so the Senate's prior treatment of nominations cannot override it.

Q: How does this compare to the federal recess-appointment situation?
A: Federal practice is different. The U.S. Constitution provides for recess appointments and treats Senate advice and consent under different rules. The Illinois opinion is grounded in the specific text of Illinois's 1970 Constitution. Federal cases on similar questions (like NLRB v. Noel Canning) don't directly apply.

Q: Could the Senate just leave nominations alone forever?
A: No. The 60-session-day clock keeps running across sessions. If the Senate refuses to vote, the nomination eventually goes through automatically. The AG's interpretation preserves the bargain the Constitution struck: the Governor gets to nominate; the Senate has 60 session days to act; failing action is treated as consent.

Background and statutory framework

Article V, § 9 of the Illinois Constitution of 1970 governs gubernatorial appointment power. Subsection 9(a) sets the appointment-and-confirmation framework with the 60-session-day automatic-confirmation rule. Subsection 9(b) handles recess appointments. Subsection 9(c) restricts re-nomination of rejected candidates "at the same session" or appointment "during a recess of that Senate."

The 60-session-day rule was a new feature of the 1970 Constitution, modeled on Michigan's 1963 Constitution. The drafters' goal, as recorded in the Sixth Constitutional Convention proceedings, was to prevent the Senate from indefinitely delaying confirmation votes. The drafters considered that 60 session days would normally fit within a single session, since they understood (correctly, per the 1925 and 1974 prior AG opinions) that Illinois sessions typically ran longer. But they did not write a same-session limitation into the text.

The 1969 Annotation by Braden and Cohn, used as a reference by the Committee on the Executive, described the Michigan provision as "a really new idea... ingenious." Michigan's Attorney General's 1983 opinion (No. 6120) interpreted the Michigan version to allow the 60-day clock to extend into a new session, and the Illinois opinion adopted that interpretation for the Illinois version.

The "contemporaneous and practical construction" doctrine in Illinois constitutional law gives deference to long-standing interpretive practice, but only when text is ambiguous. State v. Illinois Central R.R. Co. (1910) is the leading articulation. The AG's analysis treats the text as plain and therefore not subject to the doctrine.

Citations and references

Constitution:
- Ill. Const. 1970, art. V, § 9 (gubernatorial appointments)
- Ill. Const. 1970, art. V, § 11 (executive reorganization)

Cases:
- Schweicker v. Husser, 44 Ill. App. 566 (1892), aff'd, 146 Ill. 399 (1893) (Senate advice and consent is executive, not legislative)
- State v. Illinois Central R.R. Co., 246 Ill. 188 (1910) (contemporaneous construction doesn't apply when text is plain)
- Attorney General ex rel Dust v Oakman, 126 Mich 717 (1901) (Michigan Senate's advice-and-consent role is executive)
- People ex rel. Birkett v. Dockery, 235 Ill. 2d 73 (2009) (canons against adding unwritten limitations)

Source

• Index page: https://illinoisattorneygeneral.gov/opinions/
• Original PDF: https://illinoisattorneygeneral.gov/dA/f9a2d9dc02/2011%2011-001%20CONSTITUTION%20Affect%20of%20Senate%20Sine%20Die%20Adjournment%20Pending%20Gubernatorial%20Nominations.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS

Lisa Madigan
ATTORNEY GENERAL

January 25, 2011

FILE NO. 11-001

CONSTITUTION:
Affect of Senate's Sine Die
Adjournment on Pending
Gubernatorial Nominations

The Honorable Judy Baar Topinka
Illinois State Comptroller
201 Capitol
Springfield, Illinois 62706

Dear Comptroller Topinka:

You have inquired whether gubernatorial nominations subject to the
advice and consent of the Senate that have been pending less than 60 session days when the
Senate adjourns a session sine die expire with the adjournment. For the reasons stated below, it
is my opinion that a gubernatorial nomination subject to the advice and consent of the Senate
that has been pending less than 60 session days when the Senate adjourns a session sine die does
not expire with the adjournment. Rather, the nomination carries over into the new biennial
session.

BACKGROUND

You have provided us with a copy of the letter that you received from the Office
of the Senate President, dated January 14, 2011 (Senate Letter), indicating that, when the 96th
General Assembly adjourned sine die on January 11, 2011, "all unfinished business before the
Senate expired, including all pending gubernatorial nominations." The Senate Letter also states
that "the Senate of the 97th General Assembly is without authority to act upon a gubernatorial
nomination pending before the previous Senate as that body no longer exists" and that it is
"unaware of any legal authority permitting the former nominees to continue to draw a salary or
receive expense reimbursements, especially since none of these persons are serving pursuant to a
gubernatorial nomination pending before the Senate of the 97th General Assembly." Enclosed
with the Senate Letter is a listing of gubernatorial nominees whose nominations have allegedly
expired.

ANALYSIS

Article V, section 9, of the Illinois Constitution of 1970 sets out the Governor's
appointment powers and provides:

(a) The Governor shall nominate and, by and with the
advice and consent of the Senate, a majority of the members
elected concurring by record vote, shall appoint all officers whose
election or appointment is not otherwise provided for. Any
nomination not acted upon by the Senate within 60 session days
after the receipt thereof shall be deemed to have received the
advice and consent of the Senate. The General Assembly shall
have no power to elect or appoint officers of the Executive Branch.

(b) If, during a recess of the Senate, there is a vacancy in
an office filled by appointment by the Governor by and with the
advice and consent of the Senate, the Governor shall make a
temporary appointment until the next meeting of the Senate, when
he shall make a nomination to fill such office.

(c) No person rejected by the Senate for an office shall,
except at the Senate's request, be nominated again for that office at
the same session or be appointed to that office during a recess of
that Senate. (Emphasis added.)

The rules of statutory construction apply to the construction of constitutional
provisions. People v. Purcell, 201 Ill. 2d 542, 549 (2002); Goodman v. Ward, 397 Ill. App. 3d
875, 877 (2009). Accordingly, interpretation of a constitutional provision begins with the
language of the provision. Committee for Educational Rights v. Edgar, 174 Ill. 2d 1, 13 (1996).
If the language is unambiguous, it will be given effect without resort to other aids for
construction. Committee for Educational Rights, 174 Ill. 2d at 13. Only if the meaning of a
provision is not clear from its language is it appropriate to consult the debates of the delegates to
the constitutional convention to ascertain the meaning they attached to the provision. Committee
for Educational Rights, 174 Ill. 2d at 13; Kalodimos v. Village of Morton Grove, 103 Ill. 2d 483,
493 (1984). Further, each provision should be evaluated as a whole and construed in connection
with every other section. Eden Retirement Center, Inc. v. Department of Revenue, 213 Ill. 2d
273, 291 (2004), citing Paris v. Feder, 179 Ill. 2d 173, 177 (1997).

In this case, the constitutional language is plain, and, accordingly, it is
unnecessary to resort to any extrinsic interpretative aids. The reference to "60 session days" in
subsection 9(a) can mean only one thing: that the 60 days at issue must be days in which the
Senate is in "session." The qualifier "session" is needed to make clear that these are not
"calendar days," a term used elsewhere in the Constitution. See, e.g., Ill. Const. 1970, art. IV,
§§9(a), (b), (c); art. V, §11. The language of article V, subsection 9(a), however, does not
require that the "session" days fall within the same biennial General Assembly. The delegates
knew how to impose a same-session limitation, as they did just two paragraphs later in
subsection 9(c), and again in article V, section 11, addressing the gubernatorial reorganization of
executive agencies:

If the General Assembly is in annual session and if the Executive
Order is delivered on or before April 1, the General Assembly shall
consider the Executive Order at that annual session. If the General
Assembly is not in annual session or if the Executive Order is
delivered after April 1, the General Assembly shall consider the
Executive Order at its next annual session, in which case the
Executive Order shall be deemed to have been delivered on the
first day of that annual session. (Emphasis added.)

To read subsection 9(a) to do what section 11 and subsection 9(c) do
expressly, i.e., limit "session days" to days in the same session, would be to rewrite subsection
9(a) to say "within 60 session days, at the same session." Implying such an unwritten limitation
in subsection 9(a), when the delegates declined to include it expressly, would defy well-established canons of construction, which prohibit the addition of exceptions, limitations, or
conditions to a provision's plain language. People ex rel. Birkett v. Dockery, 235 Ill. 2d 73, 81
(2009), citing In re Michelle J., 209 Ill. 2d 428, 437 (2004). Consequently, a nomination does
not expire when the Senate adjourns sine die. Rather, under such circumstances, a nomination
not acted upon prior to the expiration of 60 session days carries over into the new biennial
session.

Because the language is plain, there is no need to resort to the constitutional
debates for further interpretative guidance. These debates, however, are consistent with
subsection 9(a)'s plain language. When asked "what would happen if the legislature would
adjourn its session prior to the expiration of the sixty days?" the following exchange among
Delegates Perona, Orlando, and Young occurred:

MR. PERONA: Mr. President, Mr. Orlando, what would
happen if the legislature would adjourn its session prior to the
expiration of the sixty days?

MR. ORLANDO: The automatic confirmation principle
would apply.

MR. PERONA: But the sixty days would not have passed.

MR. ORLANDO: You are talking about an adjournment
by the legislature without taking action on the governor's nominee?

MR. PERONA: Right.

MR. ORLANDO: By failure to take the action there would
be a confirmation.

MR. PERONA: But sixty session days would not have
expired, though, and that's the only wording that I can see that
would cause it to become an automatic confirmation.

MR. ORLANDO: Perhaps I am unclear on that. I will call
on Mr. Young to answer that.

MR. YOUNG: In answer to the question of what would
happen if they adjourned before sixty days had elapsed, it would
simply mean that the appointment would carry over. It would not
be an automatic confirmation; but it is our understanding from the
former members of the legislature that the average session is in the
neighborhood of seventy-seven days, and so we felt that there
would not be much of a chance, if any, that the legislature would
adjourn prior to sixty session days.

MR. ORLANDO: I stand corrected on my comment here,
and it was my impression otherwise, ladies and gentlemen.

(Emphasis added.) Remarks of Delegates Perona, Orlando, and
Young, 3 Record of Proceedings, Sixth Illinois Constitutional
Convention 1323.

Based on this exchange, it was the clear intent of the delegates that if 60 session days had not
expired and the Senate had adjourned, the nomination would carry over from one biennial
session to the next biennial session.

The Senate President's office suggests that the quoted discussion refers to the fact
that the 1970 Constitution would now permit the legislature to conduct two annual sessions
within the same General Assembly and that, prior to the 1970 Constitution, the legislature only
had one annual session, which typically ran 77 days. Under the Illinois Constitution of 1870, the
General Assembly session was for a two-year term. See Ill. Const. 1870, art. IV, §§2, 9. Prior to
the 1970 Constitution, the General Assembly was already permitted to conduct two annual
sessions within the same General Assembly. Although there seemed to be a misconception that
the Constitution required a regular session to adjourn sine die prior to July 1 of the year in which
it convened, in opinion No. F-1700, issued October 19, 1966 (1966 Ill. Att'y Gen. Op. 186), this
office specifically addressed whether any provision of the Constitution would prevent a General
Assembly from recessing to a time in the second year of the biennium and enacting further
legislation. The opinion concluded that nothing in the Constitution would prevent a General
Assembly from recessing or adjourning to a time in the second year of the biennium, as long as
the General Assembly does not adjourn sine die in the odd-numbered year in which it convenes.
Subsequent to the issuance of that opinion, the Senate did in fact meet in the second year of the
biennium for the 75th and 76th General Assemblies. Thus, while historic custom for the Senate
might have been to meet only January through June of the odd-numbered year, the practice
immediately prior to and during the constitutional convention was to hold annual sessions in each
year of the biennium. The delegates to the constitutional convention were aware of the Attorney
General opinion and the history of this issue. See 4 Record of Proceedings, Sixth Illinois
Constitutional Convention 2684-88. Accordingly, the facts do not support the conclusion that
the delegates' discussions of the effect of adjournment on the 60-day confirmation period could
have referred only to an adjournment between the annual sessions of a biennium.

Further, when the constitutional convention's Committee on the Executive offered
Proposal Number 1 (see 6 Record of Proceedings, Sixth Illinois Constitutional Convention 386-87), which became article V, section 9, of the Constitution, the Committee also submitted an
Explanation and Commentary, which provides insight into the inclusion of the 60-session-days
sentence in subsection 9(a):

The last sentence establishes a rule of automatic confirmation
when the Senate has delayed, for a clearly excessive period of time,
in acting formally upon a nomination submitted by the Governor.
Such delay has not been a problem in Illinois in the past, but it
seems desirable to guard against the appearance in this state of a
tactic which has already proved troublesome in other states.

Additionally, one of the reference materials used by the Committee on the
Executive was The Illinois Constitution: An Annotated and Comparative Analysis (the
Constitution Annotations). In discussing how other State constitutions address the Senate's role
with respect to the Governor's appointment power, the authors note that the 1963 Michigan
Constitution included a new provision requiring the Senate to act within 60 session days after the
date of the appointment. The Michigan provision conferred automatic confirmation on
nominees absent legislative action within 60 session days. Additionally, Michigan's provision is
substantially similar to the language of article V, section 9, of the Illinois Constitution. This
provision was considered a new idea at the time.

In opinion No. 6120, issued January 13, 1983 (1983-84 Mich. Att'y Gen. Op. 7),
the Michigan Attorney General was asked, among other things, whether a Governor could make
an appointment if less than 60 session days were available before the end of the Senate's term for
the Senate to exercise its advice and consent responsibility. In reaching his conclusion that the
60 session days extend into a new session of the legislature, whether part of the same legislature
or of the ensuing legislature, the Michigan Attorney General stated:

It is axiomatic that the constitutional authorities of the
Governor to make appointments to public office and the Senate to
provide advice and consent must be equally respected in light of
the constitutional scheme of government reflected in Const 1963,
art 5, §§ 3 and 7. The separation of powers required by Const
1963, art 3, § 2 must be observed. Wood v State Administrative
Board, 255 Mich 220; 238 NW 16 (1931).

The authority of the Senate to exercise its advice and
consent power conferred by Const 1963, art 5, § 7 is not afforded
full meaning in the context of appointments submitted to it by the
Governor less than 60 session days before final adjournment of a
Legislature unless its authority to act within the ensuing
Legislature is confirmed. The intent of the people expressed in
Const 1963, art 5, § 6 would be frustrated if, as here, the chief
executive submits appointments only a few days before final
adjournment and the Senate was precluded from a full exercise of
its constitutional advice and consent role. Similarly, the will of the
people would be thwarted if the appointments by a Governor were
to be placed in jeopardy because the Senate was unable to act
before the final adjournment of the Legislature even though 60
session days to act on the appointment had not elapsed.

Such potential results are avoided if the provisions of Const
1963, art 5, § 6 are construed so as to provide the Senate with the
full period of 60 session days to consider an appointment after it is
submitted, regardless of the fact that a portion of the time span for
senatorial advice and consent extends into a new session of the
Legislature, whether part of the same Legislature or of the ensuing
Legislature.

While Const 1963, art 4, § 13 does not carry over
"legislative business" from a regular session in an even numbered
year to a regular session in an odd numbered year, in Attorney
General ex rel Dust v Oakman, 126 Mich 717; 86 NW 151 (1901),
the Supreme Court recognized that the Senate is performing an
executive and not a legislative function when it exercises its advice
and consent power over gubernatorial appointments. It follows
that legislative "business," as used in Const 1963, art 4, § 13, does
not include the Senate's authority to reject appointments pursuant
to Const 1963, art 5, § 6.

The Michigan Attorney General's analysis and the policy reasons behind his opinion are equally
applicable to the Illinois Constitution's provisions.

Similarly, the last sentence of article V, subsection 9(a), of the Illinois
Constitution of 1970 provides that "[t]he General Assembly shall have no power to elect or
appoint officers of the Executive Branch." Based on this language, it is clear that the
appointment of executive officers is not a legislative function. See generally Schweicker v.
Husser, 44 Ill. App. 566, 572 (1892), aff'd, 146 Ill. 399 (1893) ("It has never been supposed that
the appointment by the executive of the United States, or of a State, of an officer to whose
appointment the consent of the Senate is necessary, is a legislative act by either the executive or
the Senate").

The Senate President's office also suggests that the Illinois Supreme Court has
long provided great deference to a uniform, continued, and contemporaneous construction of the
Constitution given by the legislature and that the Senate's construction of article V, section 9, as
evidenced by its conduct, that of the Governor, and that of other appointing bodies, is entitled to
great deference. This concept is commonly referred to as the doctrine of contemporaneous and
practical construction. It is well established, however, that where there is no ambiguity in a
statute, the doctrine of contemporaneous and practical construction is without force. State v.
Illinois Central R.R. Co., 246 Ill. 188, 289-91 (1910). As discussed above, the language of
article V, subsection 9(a), is plain; there is no ambiguity in the constitutional language.
Accordingly, the doctrine of contemporaneous and practical construction does not apply here.

CONCLUSION

Based on the language of article V, subsection 9(a), of the Constitution, it is my
opinion that the term "session days" as used in subsection 9(a) extends beyond the biennial
session. Additionally, while the clear language of the Constitution makes it unnecessary to
review the history of the provision and the debates of the delegates, both the history and the
debates further support this conclusion. Accordingly, a nomination pending prior to the
expiration of 60 session days when the Senate adjourns a session sine die does not expire with
the adjournment. Rather, the nomination carries over into the new biennial session.

Very truly yours,

LISA MADIGAN
ATTORNEY GENERAL