(Rep. Christopher Kurka peruses the Alaska Constitution for the answer, 8/19/21)
Question: According to Alaska's Constitution, how long can the state house or state senate go without conducting business?
Answer: Either house may stand in adjournment for up to 3 days. (1)
Alaska’s State Constitution, and the United States Constitution, each provide the same strict limit on the amount of time one body of the legislature may choose not to conduct business (adjourn) without first obtaining the consent of the other body.
The legislature goes into session each year on the 3rd Tuesday in January. (2) Absent unusual or special circumstances (e.g. a natural disaster), state law only permits the Alaska Legislature to meet and conduct business for 90 days. (3) When the legislature is in session it is expected to meet daily, excepting Sundays. (4) Again, state law only gives them 90 days each year, and the expectation is that they are going to need most all of those days in order to complete their work.
While provision is made to allow the house or senate to take a vote and choose not to conduct business for up to three days, neither body is permitted to go more than three days without conducting business, or to use their unwillingness to conduct business for more than three days as leverage against the other body, against individual legislators, against the public, or against the governor.
The Alaska Legislature is exactly like the United States Congress in this regard. Without first obtaining consent from the senate, the state house is only permitted to adjourn for up to three days at a time. In like manner, the state senate is limited to the same three days off without first obtaining the consent of the state house. This requirement is spelled out in both the Alaska Constitution and the Uniform Rules of the Alaska Legislature.
When the house votes not to conduct any further business until the following day, that is counted as adjourning for one day. For example, if the house votes on Monday not to conduct any further business until Tuesday, that is counted as standing in adjournment for one day. If the house votes on Monday not to conduct any further business until Wednesday, that is counted as standing in adjournment for two days; from Monday to Tuesday, and also from Tuesday to Wednesday. The Alaska Constitution states “Neither house may adjourn or recess for longer than three days unless the other concurs.” (5) While an adjournment from Monday to Thursday is permitted by the Constitution, an adjournment from Monday to Friday is not permitted.
In calculating the number of days, the clock starts on the day the house votes to stand in adjournment. Also, Sundays are not a day on which the legislature normally conducts business and are not counted. This requires the house to meet at least twice a week, or every third day, unless the third day falls on a Sunday.
During the original debate on this portion of Alaska’s Constitution, there was concern that three days was too long to allow a house not to meet, and an amendment was voted on to tighten the limit from three days down to one day. (6) When that amendment failed, a concern was raised that the legislature might abuse the three day limit by adjourning for three days and then gaveling back in and adjourning for three more days. It was declared at the time that a more restrictive limit was unnecessary because the public (“the newspapers”) would never allow such a scenario to take place. (7)
The three-day limit is not a limit the legislature imposed on itself, but a limit that was imposed on legislators by the people through the Constitution. The limit serves the dual-purpose of ensuring that legislators will regularly meet and conduct business during the legislative session, and also ensuring that neither the house nor the senate can threaten to prevent the legislature from conducting business for several days at a time. The one exception to the three-day limit is the extremely rare instance where consent is given by the other body through a concurrent resolution passed by both the house and senate. The latter is usually only seen during a special session where both bodies are waiting on some action by a third party, as when the legislature is awaiting guidance from the federal government on how federal funds may be spent.
The legislature is considered active and continuously able to conduct business throughout the 90-day legislative session. If a motion is made to adjourn for a day, the uniform rules prescribe that the body will reconvene at 10am the following day. If a motion is made to adjourn for two days, the uniform rules prescribe that the body will reconvene at 10am on the second day. If the motion is made to adjourn for three days, the uniform rules prescribe that the body will reconvene at 10am on the third day. It is not possible for a legislator to make a motion to adjourn for four days, unless the third day happens to fall on a Sunday.
Prior to statehood, the Organic Act of 1912 limited the legislature to meeting only during odd-numbered years, and only for 60 days. While the Alaska Constitutional Convention left open the possibility of longer sessions, it was expected that, after the transition from territory to statehood was complete, the legislature would limit itself to a 60-day session during odd-numbered years, and a 30-day session during even-numbered years. Even if special circumstances led to a longer session during an even-numbered year, it was expected that the legislature would never meet for more than 60 days in a single year. This was the context when the delegates to Alaska’s Constitutional Convention chose to maintain the same 3-day limit found in the U.S. Constitution, and in the constitutions of many other states.
Why do we not count Sundays?
Sundays are considered “dies non” (a day which does not count for legal purposes). (8)
This was the standard established by Congress long before Alaska Statehood, and is alluded to in the Uniform Rules, the Rules of Congress, the U.S. Constitution and the Alaska Constitution.
The Uniform Rules of the Alaska Legislature:
“Each house shall convene daily, except Sunday, at 10:00am, unless otherwise ordered by a majority vote of the members present.”(Uniform Rule 13) (9)
The Alaska Constitution also excepts Sundays:
“A bill becomes law if, while the legislature is in session, the governor neither signs nor vetoes it within fifteen days, Sundays excepted, after its delivery to him. If the legislature is not in session and the governor neither signs nor vetoes a bill within twenty days, Sundays excepted, after its delivery to him, the bill becomes law.” (emphasis added) (10)
We also see this reflected in Article I, Section 7 of the U.S. Constitution when counting the number of days the president has to veto a bill:
“If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law…” (11)
Congress excludes Sundays as well:
“The consent of both Houses is required even when the adjournment is sought by only one House. In calculating the three days, either the day of adjourning or the day of meeting (excluding Sundays) must be taken into the count.” (12)
Why do we count the day of the adjournment as the first day?
The Alaska Constitution limits a motion to adjourn to three days:
“Neither house may adjourn or recess for longer than three days unless the other concurs.” (13)
This language from the Alaska Constitution is incorporated into the Uniform Rules:
“Neither house may adjourn or recess for longer than three days unless the other concurs. Adoption of a concurrent resolution by a majority vote of the full membership of each house constitutes concurrence.” (Uniform Rule 52) (14)
This language was not chosen in a vacuum. Long before it appeared in either the Alaska Constitution or the Uniform Rules, it first appeared in the U.S. Constitution:
“Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days…” (Art. I, Sec. 5, U.S. Constitution) (15)
Likewise, the meaning of the phrase “more than three days” in the U.S. Constitution was established in Congress long before Alaska’s constitution was written:
“The House of Representatives in adjourning for not more than three days must take into the count either the day of adjourning or the day of the meeting, but not Sundays.” (16)
“In calculating the three days, either the day of adjourning or the day of meeting (excluding Sundays) must be taken into the count. Thus, the House can adjourn by motion from Thursday to Monday, or from Friday to Tuesday, because Sunday is a dies non. However, it cannot, for example, adjourn from Monday to Friday without the Senate’s assent.” (17)
On the issue of how long a house can stand in adjournment, the delegates to Alaska’s Constitutional Convention chose to adopt language that is virtually identical to the language found in the U.S. Constitution. The concerns raised at the convention were not that the limit might need to be relaxed from that used in Congress, but that it might need to be even more restrictive. The current restriction was allowed to remain in place only after it was argued that attempts by the legislature to adjourn for a period longer than three days, for example through perpetually scheduling “non-working” or “technical” sessions, would not be tolerated by the public and therefore would not take place anyway.
Even so, some Alaska legislators have attempted to circumvent the 3-day limit by redefining the phrase “not longer than three days” to include any schedule that includes a meeting on the fifth day. To accommodate this, the attorneys employed by the legislature have done their best to provide a rationale for this more expansive definition. (18)
Under this interpretation, neither the first or the last day of adjournment is to be counted as one of the three days. While the creativity of the legislature’s legal staff to try and support this interpretation is noteworthy, this type of definition immediately breaks down upon closer examination.
First, it fails to recognize the practice codified in Congress, as well as in various portions of the U.S. and Alaska Constitutions, and the Uniform Rules, that Sunday is dias non.
When Sunday is likewise not to be counted, this interpretation yields the rather embarrassing calculation that an adjournment at 10:30am on Wednesday to 10:30pm on Monday (a period of five and a half days) still meets the requirement of being “not longer than three days”.
It also fails to maintain the common meaning of words. If a motion is made on Monday morning to adjourn for one day, the expectation is that business will resume again on Tuesday morning. However, under the more expansive interpretation we are to count neither the first day nor the last day, yielding the unexpected result that a motion to adjourn for one day on Monday morning means not resuming business until Wednesday morning.
Under the historic calculation, since either the first or the last day must be counted, the legislature meets at least every third day (excepting Sunday). This means that, excepting Sunday, you will never have a recess that involves more than four calendar days, and there will never be a calendar week where the house meets only one time. While it is possible, depending on the time a motion is made, that the period of recess could be longer than 72 hours, even under the historic calculation (for example, an adjournment could take place from 11am on Friday to noon on Monday), there would never be a situation where the legislature is in recess for four full 24-hour periods of time. After all, four, 24-hour periods of time would be “longer than three days” under any definition. And yet, under the more expansive interpretation pushed by some legislators, the legislature could be in recess for nearly five full 24-hour periods, six if we aren’t counting Sunday. And under such an interpretation there could be a calendar week where the house met only once without ever being in recess for “longer than three days”. Such a practice is an abuse of math and fails to honor the public trust, just as it fails to honor the Constitution.
For additional background commentary, see Alaska’s Constitution; A Citizen’s Guide by Gordon Harrison. (19)
(1) Rule 52, Uniform Rules of the Alaska Legislature (http://akleg.gov/docs/pdf/uniform_rules.pdf#page=48).
(2) Legislative sessions begin on the third Tuesday in January, at 1pm. See AS 24.05.090 (http://www.akleg.gov/basis/statutes.asp#24.05.090).
(3) The 90-day limit in state law is found in AS 24.05.150 (http://www.akleg.gov/basis/statutes.asp#24.05.150).
The Alaska Constitution also contains an older, more generous, limit of 120 days per year, with the option of a one-time, 10-day extension. This is found in Art. II, Sec. 8, of the Alaska Constitution (http://akleg.gov/docs/pdf/AK_Const_layout.pdf#page=14).
(4) Rule 13, Uniform Rules of the Alaska Legislature (http://akleg.gov/docs/pdf/uniform_rules.pdf#page=25).
(5) Art. II, Sec. 10, Alaska Constitution (http://akleg.gov/docs/pdf/AK_Const_layout.pdf#page=14).
(6) Page 1680, Alaska Constitutional Convention Debates (http://www.akleg.gov/pdf/billfiles/ConstitutionalConvention/Proceedings/Proceedings%20-%20Complete.pdf#page=1680).
(7) Page 1682, Alaska Constitutional Convention Debates (http://www.akleg.gov/pdf/billfiles/ConstitutionalConvention/Proceedings/Proceedings%20-%20Complete.pdf#page=1682).
(8) Dias non, Lexico (https://www.lexico.com/definition/dies_non).
(9) Rule 13, Uniform Rules of the Alaska Legislature (http://akleg.gov/docs/pdf/uniform_rules.pdf#page=25).
(10) Art. II, Sec. 17, Alaska Constitution (http://akleg.gov/docs/pdf/AK_Const_layout.pdf#page=15).
(11) Art. I, § 7, U.S. Constitution, Heritage Guide to the Constitution (https://www.heritage.org/constitution/#!/articles/1/essays/32/pocket-veto).
(12) House Practice: A Guide to the Rules, Precedents and Procedures of the House, Chapter 1. Adjournment (https://www.govinfo.gov/content/pkg/GPO-HPRACTICE-112/html/GPO-HPRACTICE-112-2.htm).
(13) Art. II, Sec. 10, Alaska Constitution (http://akleg.gov/docs/pdf/AK_Const_layout.pdf#page=14).
(14) Rule 52, Uniform Rules of the Alaska Legislature (http://akleg.gov/docs/pdf/uniform_rules.pdf#page=48).
(15) Art. I, § 5, U.S. Constitution, Heritage Guide to the Constitution (https://www.heritage.org/constitution/#!/articles/1/essays/24/adjournment).
(16) Sec. 84, U.S. Constitution and the Rules of the House of Representatives (https://www.govinfo.gov/content/pkg/HMAN-116/pdf/HMAN-116.pdf#page=53).
(17) House Practice: A Guide to the Rules, Precedents and Procedures of the House, Chapter 1. Adjournment (https://www.govinfo.gov/content/pkg/GPO-HPRACTICE-112/html/GPO-HPRACTICE-112-2.htm).
(18) Leg Legal Memo dated June 1, 2017 (https://drive.google.com/file/d/14DBzj9SBAEtiM2-iIB2179fX0G0K5Pxe/view?usp=sharing).
(19) Alaska’s Constitution; A Citizen’s Guide by Gordon Harrison (http://w3.legis.state.ak.us/docs/pdf/citizens_guide.pdf#page=68).