February 20, 1975
Mr. Joe Barnett
State Representative
State Capitol Building
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 75-30
Consent Calendar Procedure
Dear Representative Barnett:
You have asked whether the consent calendar procedure used by the South Dakota Senate is valid and if it is valid, should the results of the voting for the consent calendar be duplicated for each individual bill or resolution in the senate journal?
The joint rules of the senate and house for the fiftieth (1975) session provide:
CHAPTER 10. CONSENT CALENDAR
10-1. Each standing committee may report an uncontested bill or resolution out of committee with the recommendation that it be placed on the consent calendar. The secretary of the senate and the chief clerk of the house of representatives shall provide to each committee chairman appropriate forms for such report. As used in this rule, "uncontested bill or resolution" means a bill or resolution, except a revenue measure, which: (a) receives a do-pass or do-pass-as-amended recommendation from the committee to which it is referred, by unanimous vote of the members present provided a quorum is present; and, (b) has no opposition expressed by any person present at the committee meeting with respect to the final version of the bill as approved by the committee.
10-2. Following the report of the committee and the adoption of committee amendments, if any, all bills or resolutions certified by the committee chairman as uncontested bills or resolutions shall be placed by the secretary of the senate or the chief clerk of the house of representatives, on the consent calendar, and shall be known as consent calendar bills or resolutions. Upon objection of any member to the placement or retention of any bill or resolution on the consent calendar, such bill or resolution shall cease to be a consent calendar bill or resolution and shall be placed on the house calendar for second reading on the following legislative day.
No consent calendar bill or resolution shall be considered for adoption until the legislative day following the day of its placement on the consent calendar.
10-3. The calendar committee in each house shall have the authority to hold consent calendar bills and resolutions until such time as at least ten consent calendar bills and resolutions have accumulated, they shall be placed on the consent calendar for second reading, provided that during the last ten days of the legislative session, no bills or resolutions shall be placed on the consent calendar in the house of origin.
10-4. Bills and resolutions on the consent calendar are not debatable, except that the president of the senate or the speaker of the house of representatives shall allow a reasonable time for questions from the floor and shall permit the proponents of such bills or resolutions to answer such questions. Immediately prior to voting on the first bill or resolution on the consent calendar, the president of the senate or the speaker of the house of representatives shall call to the attention of the members the fact that the next roll call will be the roll call on the first bill or resolution on the consent calendar and will be duplicated for each succeeding bill or resolution.
10-5. The consent calendar shall be considered as the last order of business on the daily order of business.
The foregoing procedure eliminates the time-consuming roll call which otherwise would be taken for each bill.
Section 13 of article III of the South Dakota Constitution provides:
Each house shall keep a journal of its proceedings and publish the same from time to time, except such parts as require secrecy, and the yeas and nays of members on any question shall be taken at the desire of one-sixth of those present and entered upon the journal.
Section 18 of article III of the South Dakota Constitution provides:
The enacting clause of a law shall be: "Be it enacted by the Legislature of the State of South Dakota" and no law shall be passed unless by assent of a majority of all the members elected to each house of the Legislature. And the question upon the final passage shall be taken upon its last reading, and the yeas and nays shall be entered upon the journal.
In Minnehaha County v. State Board of Equalization, 84 S.D. 640, 176 N.W. 2d 56 (1970), the Supreme Court held that as a general rule the enrolled bill is conclusive evidence of due enactment. However, the court went on to hold that when the constitutution prescribes that a specific journal entry be made, then the courts may look to the journals to determine whether the constitutional requirements were met. The court apparently will not look beyond the enrolled bills and journals.
It may be argued that voting on all of the bills violates the prohibition against more than one subject in one bill. See South Dakota Constitution, article III, §21. There is no prohibition against voting on several bills at once. The "one subject rule" is designed to prevent unrelated provisions from being surreptitiously passed and to prevent unpopular riders from being "log-rolled" along with otherwise acceptable legislation. However, that evil does not exist with the consent calendar. The body is not required to accept or reject the package as a whole. Anyone legislator may have any bill removed from the consent calendar for any reason and voted upon separately. A measure cannot be surreptitiously enacted unless all one hundred five members fail to read and take notice of the bills on the consent calendar.
Another argument against voting on all of the bills at once is the public's right to know how each legislator voted on each issue. South Dakota Constitution, article III, §18. There is no prohibition against casting the same vote for several bills. As long as the journals reflect each legislator's vote on each bill, the public can see how their legislator voted and the requisite constitutional disclosure has been made.
Based on the foregoing, it is my opinion that if the journal has a separate entry of the votes for each individual consent calendar bill, it does not matter whether the senate votes for the bills separately or together. A separate roll call vote is not necessary, but the results of the roll call should be duplicated on the journal for each individual bill or joint resolution on the consent calendar.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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