The Legislative Research Council’s draft Issue Memorandum on Special Sessions notes that we restrict the scope of a Special Session to ensure that the public knows and can guide what the Legislature is going to do:
The requirement that a legislature only act upon the subject matter of the call is the most litigated special session issue. The reason for requiring the purpose of the special session be announced is for public notice and to be a check upon legislative action. Moreover, some court decisions indicate that a legislature may not formally investigate matters outside of the subject matter to be addressed at a special session [Brigid Hoffman, Legislative Research Council, draft Issue Memorandum: “Special Sessions Revisited,” presented to Executive Board 2021.08.31].
This paragraph cites a 1935 Kentucky case in which the court voided a statutory clause enacted in the 1934 Special Session relating to teaching certificates because the Governor’s official proclamation for the Special Session did not include language that encompassed teaching certificates:
Section 80 of the Constitution authorizes the Governor to convene the General Assembly on extraordinary occasions, but provides:
“When he shall convene the general assembly it shall be by proclamation, stating the subjects to be considered, and no other shall be considered.“
The purpose of this provision is to give notice to the public of the subjects to be considered, in order that persons interested may be present if they desire, and also it is a check upon legislative action, that no matters outside the proclamation shall be acted on [Richmond v. Lay, 261 Ky. 138, 87 S.W.2d 134 (Ky. Ct. App. 1935)].
That principle of giving the public sufficient notice of the Legislature’s intended scope of action gets me thinking about hoghousing, South Dakota’s cherished Legislative process of passing carcass bills with no content other than a vague subject while legislators negotiate specific provisions in secret caucus meetings or even grab an existing bill and rewrite it into a new bill with only the most ridiculously tenuous relationship to its originally stated subject. The Legislature has rules allowing concerned members to delay hoghoused bills by one Legislative day if they can muster a one-fifth vote, but the rules do not require such a delay. Furthermore, the rules do not allow such a hoghouse delay on the final day allowed for action on a bill or more than twice on one bill in each house. Legislators can thus hoghouse any bill on the spot, without public notice.
Hoghousing can thus shut out opportunities for public testimony at committee hearings—pass an empty carcass bill through House committee, House, and Senate committee; hoghouse it in the Senate; pass it and kick it back to the House for same-day concurrence.
But such swift passage of hoghoused bills, according to the case law cited in this new Issue Memorandum on Special Session, would deny the public notice and infringe on our right and duty to check Legislative action. If the Legislature passes hoghouse bills, especially with hoghouses carried out on the final chamber floor, without giving the public an opportunity to read and comment on those drastic changes, citizens could have grounds to challenge such laws in court.