Does the Minnesota Governor have the power to sign or veto a proposed constitutional amendment that the legislature has passed and wants to send to the voters?

Plain-English summary

Governor Arne Carlson asked the Attorney General whether the Minnesota Constitution requires that legislatively proposed constitutional amendments be presented to the governor for signature or veto. The text of Article IX, § 1 said amendments are proposed by a majority of each house of the legislature and "submitted to the people for their approval or rejection at a general election." It made no mention of the governor. But Article IV, § 23 (the general presentment clause) said "Every bill passed in conformity to the rules of each house... shall be presented to the governor."

The AG concluded the governor cannot veto a proposed constitutional amendment. Three reasons.

First, the U.S. Supreme Court's 1798 Hollingsworth v. Virginia opinion held that the federal presentment clause does not apply to congressional proposals of constitutional amendments. The federal and Minnesota presentment clauses are textually similar. Minnesota law had relied on Hollingsworth in 1922 and 1946 opinions reaching the same conclusion. The federal D.C. Circuit in 1982 reaffirmed this in Consumer Energy Council.

Second, the Minnesota Supreme Court's reasoning in State ex rel. Gardner v. Holm, 241 Minn. 125, 62 N.W.2d 52 (1954), showed that "not all acts of the legislature must be submitted to the governor." There, the legislature's setting of judicial salaries under Art. VI, § 6 was held not subject to gubernatorial approval. The court drew a "vital distinction between the exercise of the lawmaking function and the exercise of those other functions delegated to the legislature which are not strictly speaking lawmaking." Proposing a constitutional amendment falls in the second category.

Third, the majority of out-of-state authorities reach the same conclusion. The AG cited an opinion of the Maine justices in 1970 and AG opinions from Arkansas (1993), Nebraska (1987), and Pennsylvania (1984). The opinion acknowledged that Montana's Supreme Court reads its similar presentment clause more strictly to require presentment, but characterized Montana as a minority position.

The AG then addressed a follow-up question. If the legislature bundles a proposed constitutional amendment together with ordinary legislation or appropriations in a single bill, what happens if the governor vetoes the bill? The AG answered: the veto is effective as to the ordinary legislation and the appropriations, but the proposed constitutional amendment still goes to the voters. Wass v. Anderson (1977) had held that proposing a constitutional amendment is not by itself a "subject" within the single-subject rule, so bundling is allowed. But that does not give the legislature a way to immunize ordinary legislation from veto by attaching an amendment. The veto cuts through the ordinary parts and leaves the amendment intact.

Currency note

This opinion was issued in 1994. 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.

Historical context: what the AG concluded

The constitutional question was old and well settled at the federal level. Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798), held that the presentment clause in Art. I, § 7 of the U.S. Constitution does not reach proposals of constitutional amendments by Congress. The Court reasoned that "the negative of the president applies only to ordinary cases of legislation; he has nothing to do with the proposition or adoption of amendments to the Constitution." The D.C. Circuit reaffirmed this in Consumer Energy Council of America v. F.E.R.C., 673 F.2d 425 (D.C. Cir. 1982).

The Minnesota AG had previously addressed the state-law version twice, in 1922 and 1946. Both prior opinions concluded that constitutional amendments are not subject to governor's approval or veto. The 1994 opinion confirmed and updated that position.

The Minnesota Supreme Court had not directly resolved the question, but its reasoning in State ex rel. Gardner v. Holm, 241 Minn. 125, 62 N.W.2d 52 (1954), pointed strongly in the AG's direction. In Gardner, the court held that the legislature's joint-session selection of regents and its setting of judicial salaries under Art. VI, § 6 were not subject to gubernatorial veto. The court drew a clear line: lawmaking acts are presented to the governor for veto, but acts in which the legislature exercises non-lawmaking functions assigned to it by other constitutional provisions are not. The AG read the proposing of constitutional amendments under Art. IX, § 1 as a non-lawmaking function.

The opinion also surveyed peer-state authority. The Maine justices in Opinion of the Justices, 261 A.2d 53 (Me. 1970), concluded that presentment language similar to Minnesota's does not reach amendments. Arkansas, Nebraska, and Pennsylvania AGs reached the same conclusion. Montana's Supreme Court was the outlier, reading its presentment clause strictly. The AG sided with the majority view.

The follow-up question (effect of a veto when the bill bundles an amendment with ordinary legislation) is practically important. The legislature might be tempted to attach favored legislation to an amendment proposal in the hope of insulating the legislation from the veto. The AG cut that off: the governor retains veto authority over the ordinary parts of the bill, including line-item veto of appropriations. The vetoed parts do not become law unless the legislature overrides. The proposed amendment, separately, still goes to the voters.

The opinion footnotes the practical observation that bills proposing amendments had generally been presented to and approved by the governor in past practice. The AG was clear that this practice was a courtesy, not a constitutional requirement. The governor's approval or disapproval would have no bearing on whether the amendment goes to the people.

Common questions

Q: If the governor vetoes a bill that contains a proposed constitutional amendment, do the voters still see the amendment on the ballot?
A: Yes, under the AG's reading. The veto cuts the ordinary legislation but leaves the amendment proposal in place. The Secretary of State would publish the amendment with the next general election ballot under Minn. Stat. § 3.20.

Q: Could the legislature override a governor's veto on the bundled bill if the governor purports to veto the entire thing including the amendment portion?
A: The AG's analysis suggests the amendment portion was never the governor's to veto. So an override would relate only to the ordinary legislation. The amendment proceeds independently.

Q: Does the governor have any role in proposed constitutional amendments?
A: As a matter of practice and political position, yes, the governor can speak publicly for or against a proposed amendment, campaign during the ratification election, and influence public opinion. But the governor has no formal legal role in the process between legislative proposal and voter ratification.

Q: What about Article IV, § 24 (orders, resolutions, and votes requiring concurrence of both houses)?
A: The opinion addresses this language. It concluded that even § 24's presentment requirement does not extend to constitutional amendments, on the same reasoning that Gardner v. Holm used to distinguish legislative-function from non-legislative-function exercises.

Q: Has the Minnesota Supreme Court since directly resolved this question?
A: The opinion notes there is no Minnesota court case directly on point. Anyone applying this opinion today should check whether the question has since been litigated. As a practical matter, the AG's position has guided practice and no governor has tried to enforce a veto over a proposed amendment.

Q: Where can voters find proposed amendments before they go to the ballot?
A: Under Art. IX, § 1, proposed amendments must be "published with the laws passed at the same session." In modern practice, the Secretary of State publishes ballot questions ahead of the election. The Office of the Revisor of Statutes maintains constitutional text.

Background and statutory framework

Article IX, § 1 of the Minnesota Constitution provides the amendment process: "A majority of the members elected to each house of the legislature may propose amendments to this constitution. Proposed amendments shall be published with the laws passed at the same session and submitted to the people for their approval or rejection at a general election. If a majority of all the electors voting at the election vote to ratify an amendment, it becomes a part of this constitution. If two or more amendments are submitted at the same time, voters shall vote for or against each separately."

Article IV, § 23 is the general presentment clause: "Every bill passed in conformity to the rules of each house and the joint rules of the two houses shall be presented to the governor. If he approves a bill, he shall sign it..."

Article IV, § 24 covers orders, resolutions, and votes: "Each order, resolution or vote requiring the concurrence of the two houses except such as relate to the business or adjournment of the legislature shall be presented to the governor and is subject to his veto as prescribed in case of a bill."

The U.S. Constitution's analogous provision is Art. I, § 7. Hollingsworth (1798) construed it not to reach amendments.

The opinion is signed by Chief Deputy Attorney General John R. Tunheim on behalf of AG Hubert H. Humphrey III.

Citations and references

Constitutional and statutory:
- Minn. Const. art. IV, §§ 17, 23, 24
- Minn. Const. art. V, §§ 4, 5
- Minn. Const. art. IX, § 1
- U.S. Const. art. I, § 7
- Minn. Stat. § 3.20 (1992)

Cases:
- Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798)
- Consumer Energy Council of America v. F.E.R.C., 673 F.2d 425 (D.C. Cir. 1982)
- Opinion of the Justices, 261 A.2d 53 (Me. 1970)
- State ex rel. Gardner v. Holm, 241 Minn. 125, 62 N.W.2d 52 (1954)
- State ex rel. Peterson v. Quinlivan, 198 Minn. 65, 268 N.W. 858
- Wass v. Anderson, 312 Minn. 394, 252 N.W.2d 131 (1977)

Other AG opinions referenced:
- Op. Atty. Gen. 86a, November 12, 1946
- Op. Atty. Gen. 213-c, April 1, 1922
- Op. Atty. Gen. 213-c, March 10, 1947
- Op. (Arkansas) Atty. Gen. 93-068, March 19, 1993
- Op. (Nebraska) Atty. Gen. 87072, May 12, 1987
- Op. (Pennsylvania) Atty. Gen. 84-3, December 28, 1984

Source

• Landing page: https://www.ag.state.mn.us/Office/Opinions/
• Original PDF: https://www.ag.state.mn.us/Office/Opinions/213c-19940309.pdf

Original opinion text

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

GOVERNOR: LEGISLATION: CONSTITUTIONAL AMENDMENTS: Amendments proposed by legislative action are not subject to gubernatorial approval or veto. Minn. Const. art. IV, §§ 23, 24; art. IX, § 1.

213-C
(Cr. Ref. 86-a)
March 9, 1994

The Honorable Arne H. Carlson
130 State Capitol
75 Constitution Avenue
St. Paul, MN 55155

Dear Governor Carlson:

In your letter to our office you ask substantially the following questions:

QUESTION I

Must proposed amendments to the Minnesota Constitution be presented to the governor for signature or veto?

OPINION

We answer your question in the negative. Minn. Const. art. IX, § 1, provides:

A majority of the members elected to each house of the legislature may propose amendments to this constitution. Proposed amendments shall be published with the laws passed at the same session and submitted to the people for their approval or rejection at a general election. If a majority of all the electors voting at the election vote to ratify an amendment, it becomes a part of this constitution. If two or more amendments are submitted at the same time, voters shall vote for or against each separately.

The plain wording of this section indicates that amendments may be proposed by "a majority of the members elected to each house" and submitted to the "people" for approval. This provision makes no mention of the governor. However, as you note, Minn. Const. art. IV, § 23, provides in part:

Every bill passed in conformity to the rules of each house and the joint rules of the two houses shall be presented to the governor. If he approves a bill, he shall sign it, deposit it in the office of the secretary of state and notify the house in which it originated of that fact. If he vetoes a bill, he shall return it with his objections to the house in which it originated. His objections shall be entered in the journal.... Any bill not returned by the governor within three days (Sundays excepted) after it is presented to him becomes a law as if he had signed it, unless the legislature by adjournment within that time prevents its return. Any bill passed during the last three days of a session may be presented to the governor during the three days following the day of final adjournment and becomes law if the governor signs and deposits it in the office of the secretary of state within 14 days after the adjournment of the legislature. Any bill passed during the last three days of the session which is not signed and deposited within 14 days after adjournment does not become a law.

If a bill presented to the governor contains several items of appropriation of money, he may veto one or more of the items while approving the bill.

Section 24 provides:

Each order, resolution or vote requiring the concurrence of the two houses except such as relate to the business or adjournment of the legislature shall be presented to the governor and is subject to his veto as prescribed in case of a bill.

You are concerned with the issue of whether one or both of these "presentment" clauses applies so as to require that proposed constitutional amendments per se be presented to the governor and subjected to gubernatorial approval or veto. While we are not aware of any Minnesota court case directly on point, our office has previously considered the question and concluded that proposed constitutional amendments are not subject to approval or veto by the governor. See, e.g., Ops. Atty. Gen. 86a, November 12, 1946; 213-c, April 1, 1922, and March 10, 1947 (copies attached). As pointed out in the 1946 opinion, the U.S. Supreme Court in 1798 determined that constitutional amendments proposed by Congress are not subject to presidential veto, despite language of Article 1, Section 7, in the U.S. Constitution which is similar to that contained in Article IV, Sections 23 and 24, of the Minnesota Constitution quoted above. Rather "the negative of the president applies only to ordinary cases of legislation; he has nothing to do with the proposition or adoption of amendments to the Constitution." See Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378, 380 (1798); See also Consumer Energy Council of America v. F.E.R.C., 673 F.2d 425 (D.C. Cir. 1982). The majority of authorities in other states also appear to conclude that presentment language such as that contained in our constitution does not apply to constitutional amendments proposed by the legislature for approval by vote of the people. See, e.g., Opinion of the Justices, 261 A.2d 53 (Me. 1970); Op. (Arkansas) Atty. Gen. 93-068, March 19, 1993; Op. (Nebraska) Atty. Gen. 87072, May 12, 1987; Op. (Pennsylvania) Atty. Gen. 84-3, December 28, 1984.

There is a case to the contrary in which the Supreme Court of Montana held presentment language similar to that in our constitution to be unambiguous and mandatory, subject only to the exceptions contained in the presentment section for such things as adjournment and internal business matters of the two houses. Consequently, the court invalidated a purported amendment proposal which had not been presented to the governor. As noted above, however, that result appears to be in the minority. Furthermore, in an analogous situation, our Supreme Court declined to hold the presentment language unambiguous and all-inclusive. In State ex rel. Gardner v. Holm, 241 Minn. 125, 62 N.W.2d 52 (1954) the court held that action of the "legislature" in fixing judicial salaries in accordance with Article VI, Section 6 of the Minnesota Constitution, was not subject to approval or veto by the governor. While acknowledging the broad implications of the presentment provisions of the constitution, the court concluded nonetheless:

[I]t is clear that not all acts of the legislature must be submitted to the governor. As an example, regents of the University of Minnesota are appointed pursuant to R.S. 1851, c. 28. State ex rel. Peterson v. Quinlivan, 198 Minn. 65, 268 N.W. 858. The selection of regents must be made by the vote of the joint session of the legislature, but the governor has no control over such selection.

It is also clear that there is a vital distinction between the exercise of the lawmaking function and the exercise of those other functions delegated to the legislature which are not strictly speaking lawmaking....

That the framers of our constitution did not intend to grant to the governor a veto over all acts of the legislature is apparent from an examination of art. 5, § 4, dealing with the powers and duties of the governor. With respect to the veto power, this section reads:

"... He [the governor] shall have a negative upon all laws passed by the legislature, under such rules and limitations as are in this Constitution prescribed." (Italics supplied.)

Implicit in this language is an exception in those cases where the constitution itself provides that the legislature, quite aside from the exercise of the lawmaking function, shall act without the concurrence of the governor. That, it appears to us, is the situation here.

Id. at 131, 62 N.W.2d at 56-57.

We believe that similar reasoning would be applied in the case of proposed constitutional amendments. For the foregoing reasons, we conclude that proposed amendments to the constitution are not required, as a matter of law, to be presented to the governor nor are they subject to his approval or veto.

QUESTION II

In the case of a proposed constitutional amendment which is part of a larger bill containing statutory changes and/or appropriations what is the effect of a governor's veto of that bill?

OPINION

In our opinion, a veto of a bill containing a proposed constitutional amendment together with matters of ordinary legislation would be effective as to the legislation contained in the bill and the provisions so vetoed would not become law unless the veto were overridden. However, as noted in response to Question I above, the veto would not affect the proposed constitutional amendment which must be voted upon at the next general election in accordance with Minn. Const. art. IX, § 1, and Minn. Stat. § 3.20 (1992).

In Wass v. Anderson, 312 Minn. 394, 252 N.W.2d 131 (1977), our Supreme Court addressed a claim that a proposal for a constitutional amendment was a "subject" in and of itself and thus could not be contained in a bill with other legislative action without violating the "single subject" rule. There the court said:

Plaintiffs concede that the constitution imposes no requirement as to the form a proposed constitutional amendment must take. That it might be preferable for the legislature to propose amendments separately rather than to include them in bills containing other provisions is a matter addressed to legislative discretion and not judicially cognizable.

Id. at 399, 252 N.W.2d at 135. Thus, it seems clear that a constitutional amendment may legitimately be proposed by the legislature in the context of a "bill" which also contains ordinary legislation.

We see no reason, however, that the inclusion of a proposed constitutional amendment should, in any manner, interfere with the constitutional authority of the governor to approve or veto either the bill itself or items of appropriations therein to the extent that it contains ordinary legislation. Minn. Const. art. IV, § 23, clearly gives the governor authority to veto bills and items of appropriation contained within bills. While we conclude above that a constitutional amendment proposed by the members of the legislature is to be presented to the people for adoption without respect to gubernatorial action, the rationale and authorities supporting that result also clearly recognize the authority of the governor to review and approve or veto ordinary legislation which is not to be presented to the people for approval. Indeed, we can conceive of no rational basis upon which to conclude the constitutional drafters would have intended to permit the legislature to insulate general legislation from exposure to veto simply by including it in a bill containing an amendment proposal.

Consequently, we conclude that the governor retains authority to review and approve or veto a bill containing general legislation presented by the legislature as well as items of appropriation, where appropriate, notwithstanding that the bill may also contain a proposed amendment. The effect of that action would be that the legislation contained in the vetoed bill or the vetoed appropriation items would not become law unless the veto is overridden in accordance with Article IV, Section 23, of the Constitution, but the proposed amendment will be presented for a vote of the people and, if approved by them, become part of the Constitution.

Very truly yours,

HUBERT H. HUMPHREY III
Attorney General

JOHN R. TUNHEIM
Chief Deputy Attorney General