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Challenging the Enrolled Bill Rule: A Proposed Middle Ground for California
Wednesday, January 12, 2022

Should the Enrolled Bill Rule (EBR) serve as an absolute bar to legal challenges to enacted statutes in California? Before we address this question, what is the Enrolled Bill Rule?

In general, the judicial branch of government is loath to review the record keeping practices of the legislative branch of government to determine whether statutes were properly enacted. This limitation on judicial inquiry is known as the “Enrolled Bill Rule” and it dates back to the 19th Century.[1] This legal doctrine holds that, if an act of the Legislature is “properly enrolled, authenticated, and filed,” then it is presumed that “all of the steps required for its passage were properly taken,” and “even the journal of the Legislature is not available to impeach it.”[2]nand this legal doctrine holds that, if an act of the Legislature is “properly enrolled, authenticated and filed,” then it is presumed that “all of the steps required for its passage were properly taken,” and “even the journal of the Legislature is not available to impeach it.”

In a number of states, including California, that presumption is a conclusive one. Based upon the California Constitution’s enumerated separation of powers doctrine[3], the reasoning behind this limitation is that the judicial branch does not want to infringe on the constitutionally enumerated power of the legislative branch to govern its internal affairs and engage in lawmaking.

The EBR is utilized by the judiciary to limit inquiry into whether statutes were properly enacted. Basically, it means that the courts presume that the required procedural rules for the proper enactment of a statute have been complied with by the legislature. Specifically, the doctrine precludes judicial review of an enrolled bill in a claim that the procedural requirements were properly followed.

However, the EBR should not preclude all judicial review of an enacted bill. While the judiciary has traditionally upheld its role as the final arbiter of what a statute means or how it should be interpreted, the judicial branch of the federal and state governments has traditionally deferred to the legislative branch of government in determining whether a bill has been properly enacted into a statute. However, such absolute deference should not be the standard. Legislative enactments should, in fact, be subject to judicial review, rather than be immune from it.

The EBR, applied absolutely, provides too much deference to the legislative branch of government and does not comport with the constitutional doctrine of separation of powers among three, co-equal branches of government. At least for California purposes, the EBR principle should be limited in its application as explained later in this article.

Where Did the Enrolled Bill Rule Originate?

The EBR came from England and the view that the English Parliament was supreme. In this regard, an Act of Parliament was immune from attack on the basis that the legislative process was not followed, whether due to unintentional actions or even to fraud. Specifically, the EBR principle comes from The Prince's Case. “The case involved a challenge to the grant of the Duchy of Cornwall by charter made by authority of Parliament. Coke CJ decided that it was an Act of Parliament, having been assented to by King, Lords and Commons, and therefore had the full force and authority of an Act of Parliament.”

'If an Act of Parliament be penned by assent of the King, and of the Lords Spiritual and Temporal, and of the Commons, or, it is enacted by authority of Parliament, it is a good Act…there are a good many statutes which are indicted quod dominus Rex statuit: yet if they be entered in the Parliament roll, and always allowed for Acts of Parliament, it shall be intended that it was by authority of Parliament…'

Thereafter, the EBR derives from the Bill of Rights 1688, Article 9, which provides that “debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.” In essence, the view was that the Parliament was sovereign and therefore supreme, and the English Parliament essentially enjoyed unfettered discretion to create laws. Because no other body than Parliament can create Acts or override existing Acts, the EBR precludes courts from examining what might have happened during the legislative process.

The EBR was restated by Lord Campbell in Edinburgh & Dalkeith Railway Co v Wauchope. In that case, it was complained that the passage of a private bill was defective because proper notice had not been given. The House of Lords rejected the notion that the validity of an Act could be questioned.

How Has the Enrolled Bill Rule Been Viewed at the Federal Level?

In the United States, the EBR was adopted by the U.S. Supreme Court in Field v. Clark143 U.S. 649 (1892). In effect, the court ruled that the enrolled bill signed by the presiding officers of the two houses of Congress was the best evidence of what had been passed, being on balance better evidence than the journals of the respective houses, so the enrolled bill should not be called into question.

 The EBR as applied in this country means that the courts should generally assume that the rules of procedure in enacting a legislative measure were properly followed by the lawmaking body. “If a legislative document is authenticated in regular form by the appropriate officials, the court treats that document as properly adopted.” Unites States v. Thomas (7th Circ. 1986), cert. denied, 107 S.Ct. 187 (1986), citing Field v. Clark (1892) 143 U.S. 649, 12 S.Ct. 495

An enrolled bill, thus attested, is conclusive evidence that it was passed by Congress. The enrollment itself is the record, which is conclusive as to what the statute is. United States v. Farmer, 583 F.3d 131, 151-152 (2d Cir. N.Y. 2009)

Fewer than 20 states follow the rule which conclusively presumes the validity of a bill that has been passed by the legislature and signed by the legislative officers. See I C. Sands, Sutherland Statutory Construction § 15.03 et seq. (4th ed. 1972);82 C.J.S. Statutes § 83 (1953); 72 Am.Jur.2d Statutes § 90 (1974); and 4 ALR2d 978 (1949).

With regard to current judicial perspectives on the EBR, in 2007[4] a federal appellate court addressed a challenge that the House of Representatives had passed a version of a federal bill that was not identical to the version passed by the Senate. The court cited the decision of the United States Supreme Court in Marshall Field & Co. v. Clark[5] in which the court established the enrolled bill rule and refused to consider evidence in the Congressional journals that the bills actually passed by the two houses of Congress differed from the enrolled bill.

The Supreme Court in the Clark case reasoned that the "respect due to coequal and independent departments requires the judicial department" to accept "all bills authenticated in the manner stated," rather than that state or national acts "should at any and all times be liable to be put in issue and impeached by the journals, loose papers of the legislature, and parole evidence."[6]

Given that precedent, the court in OneSimpleLoan cited the EBR for the principle that, if a legislative document is authenticated in regular form by the appropriate officials, the courts treat that document as properly adopted, and that "it is for the Supreme Court rather than a court of inferior jurisdiction to determine whether the venerable enrolled bill rule requires revision"[7]

How Has the Enrolled Bill Rule Been Viewed in the States?

 A number of courts over the years has questioned whether the EBR should be rigidly applied, including the Supreme Court of Kentucky in D&W Auto Supply v. Dept. of Revenue.[8] The Court ruled that the presumption could be overcome.

“We believe that a more reasonable rule is the one which Professor Sutherland describes as the "extrinsic evidence" rule. I Sutherland, supra, at § 15.06. Other jurisdictions have embraced this rule, which we hereby adopt as the law of this case and future cases. Under this approach there is a prima facie presumption that an enrolled bill is valid, but such presumption may be overcome by clear, satisfactory and convincing evidence establishing that constitutional requirements have not been met.”[9]

Similarly, the Pennsylvania Supreme Court ruled that, “When a law has been passed and approved and certified in due form, it is not part of the duty of the judiciary to go behind the law as duly certified to inquire into the observance of form in its passage.” Consumer Party of Pa. v. Commonwealth[10]Moreover, the Court said “it would be a serious dereliction … to deliberately ignore a clear constitutional violation.”[11]

How Has the Enrolled Bill Rule Been Viewed in California?

Almost 100 years ago, the California Supreme Court ruled in Taylor v. Legislature[12] that "a statute, properly enrolled and authenticated, conclusively establishes not only the contents of the law but the due performance of all steps requisite to its passage by the legislature. This is the general law and has long been the rule of decision in this state."[13] Like elsewhere, the judicial branch in California has been hesitant to delve into the record keeping practices of the Legislature to determine whether bills complied with the legislative process.

In recent years, some legal critics, mostly outside of California, have begun to question the continuation of the EBR as a guiding principle in the constitutional review of legislative measures.[14] However, as recently as 2009, courts in this state have concluded that the EBR is still “in full effect in California.”[15]

This EBR was described by the state’s highest court in 1927 as having "long been the rule of decision in this state," in that the rule was first articulated by the California Supreme Court in Sherman v. Story.[16] In that 1866 decision, the court refused to consider uncontradicted legislative journals and oral testimony alleging that certain proposed amendments that were rejected in the Assembly were nonetheless, and apparently mistakenly, incorporated into an act by the enrolling clerk of the State Senate.

Later, in County of Yolo v. Colgan[17], the California Supreme Court rejected a claim that, based on an entry in the Senate Daily Journal, a statute had not received the requisite number of votes for passage and was thus invalid; in so ruling, the court cited the separation of powers doctrine, concluding that "while the constitution has prescribed the formalities to be observed in the passage of bills and the creation of statutes, the power to determine whether these formalities have been complied with is necessarily vested in the legislature itself, since, if it were not, it would be powerless to enact a statute.”[18]

In other instances, California courts have opined that, since the Legislature is vested with the exclusive authority to determine whether the formalities for enactment of a statute have been fulfilled, it follows that a court cannot retry, as a question of fact, the Legislature's determinations. "The authority and duty to ascertain the facts which ought to control legislative action are, from the necessity of the case, devolved by the constitution upon those to whom it has given the power to legislate, and their decision that the facts exist is conclusive upon the courts, in the absence of an explicit provision in the constitution giving the judiciary the right to review such action."[19]

In addition, in Planned Parenthood Affiliates v. Swoap[20], a conference committee on the annual Budget Bill proposed to each house a version of the Budget Bill that excluded a provision, Section 33.35, and the conference committee proposal was approved by the Senate and Assembly and duly enacted into law. Notwithstanding the discovery that, due to staff error, Section 33.35 had not, in fact, been removed from the Budget Bill, the court ruled that it lacked the power to strike the section from the enacted Budget Bill.

Citing the "salutary principle [that] has long been established in California that the judicial branch may not go behind the record evidence of a statute," the court ruled that because Section 33.35 received the necessary approval of each house of the Legislature and was "duly enrolled and approved by the Governor," it could not be impeached by extrinsic evidence.[21]

Nonetheless, the California courts have identified one exception to the EBR. That exception was discussed at length in People ex rel. Levin v. County of Santa Clara[22], a case in which a defect in the local adoption of charter amendments was evidenced by a recitation on the face of a resolution adopted by the Legislature addressing that local enactment. In Levin, the court cited the general principle that, "when an act of the Legislature is valid on its face, properly enrolled, authenticated and filed, it is conclusively presumed that all of the steps required for its passage have been properly taken; even the journal of the Legislature is not available to impeach it."[23]

The appellate court then engaged in a discussion of case law and treatises reviewing the scope of the EBR, concluding: "Thus the holding is that if irregularity in the proceedings by the local authorities appears on the face of the legislative resolution, the approval by the Legislature is not conclusive, as it would be, if it was not revealed by the resolution."[24] In Levin, the court deemed this exception to the EBR to apply for the reason that the procedural defect in the local adoption of charter amendments was evidenced on the face of the resolution adopted by the Legislature.

The California Legislature has argued successfully that the EBR serves as an absolute bar to judicial review. Calling it a “foundational doctrine of separation of powers,” the Legislature has successfully argued that the “doctrine is reflected in the long-standing enrolled bill rule.”[25] The Senate argued that the EBR is “defined in well-established case law” and that it should “continue to govern relations between the legislative and judicial branches with respect to matters of legislative procedure.”[26]

In the CTA v. FTB case, the issue presented to the trial court was determining when the Legislature complied with the requirements of the California Constitution[27] in enacting Senate Bill XI 28. The CTA requested the court to refer to entries in the Senate Daily Journal, as well as other forms of extrinsic evidence in the bill’s legislative history, in order to determine whether SB XI 28 should be invalidated.

On the other hand, the State Senate argued that, “under California law the enrolled bill rule unequivocally provides that a judicial determination, based on extrinsic evidence, that the Legislature failed to satisfy constitutional procedural prerequisites, as to a bill that was passed by the Legislature, authenticated, and enacted, violates the separation of powers doctrine.” [28] As a result, the court was precluded from even “entertaining a challenge to the validity of the bill.”29

A Proposal for Judicial Consideration in California

The California Constitution vests the legislative power of the State in its Legislature. 30 This inherent and plenary lawmaking power includes the authority to adopt any necessary procedural requirements for enacting statutes. 31 The Legislature, at each biennial session, adopts Assembly Rules, Senate Rules, and Joint Rules.

While California courts have historically applied the EBR to bar the use of extrinsic evidence to determine that the Legislature failed to satisfy the constitutional requirements for enacting a statute, going forward, there should be a distinction between constitutional challenges and those based on the Legislature’s internal rules.

The distinction can be easily drawn by the judiciary. Challenges that are based upon an alleged violation of the state Constitution or the Government Code would be subject to judicial review under this proposed approach. However, compliance with the “internal rules” of the Legislature (Joint Rules, Assembly Rules, and Senate Rules) would not be subject to review.

Article IV, Section 7(a) provides the Legislature with authority to adopt its own rules for internal procedures. These include the Joint Rules of the Assembly and Senate, the Assembly Rules, the Senate Rules, and even individual committee rules. Alleged violations of these rules should be subject to the EBR so that a court would be precluded from entertaining such a legal challenge.

For example, if a legal challenge were based upon one house (or even both houses) not complying with a 4-day Daily File notice (provided in the Assembly and Senate Rules), then such a challenge would be subject to the EBR and be rejected by the courts as violating the separation of power doctrine as the Legislature has explicit constitutional authority to adopt its internal rules.

However, the EBR would not be used anymore to prevent a challenge that other constitutional provisions or state statutes were violated when the Legislature passed a bill. For example, if the 72-hour in print rule were allegedly violated, then the state’s courts could entertain such a legal challenge.

This distinction between the procedural rules embodied in the Constitution and statutes versus those contained in the internal rules of the Legislature is a clear line that can be easily discerned by both potential litigants as well as the judicial branch of state government.

  1.  Field v. Clark (1892) 143 U.S. 649, 672, 675.

  2. People ex rel. Levin v. County of Santa Clara (1951) 37 Cal.2d 335, 337. Planned Parenthood Affiliates v. Swoop (1985) 173 Cal.App.3d 1187, 1195 (judicial inquiry concerning act of Legislature is only permitted where an irregularity in legislative proceedings appears on the face of the challenged measure).

  3.  See Article III, Section 3 of the California Constitution.

  4.  OneSimpleLoan v. United States Sec'y of Educ. (2nd Cir. 2007) 496 F.3d 197.

  5. (1892) 143 U.S. 649.

  6.  Id. at 672-675.

  7.  496 F.3d l97, at 203.

  8.  (1980) 602 S.W.2d 420

  9. Id.

  10.  507 A.2d 323 (1986).

  11. Id.

  12.  (1927) 201 Cal. 327, 332.

  13. Id.

  14.  Ittai Bar-Siman-Tov, Legislative Supremacy in the United States? Rethinking the “Enrolled Bill” Doctrine (2009) 97 Geo.L.J. 323, 331. David Sandler, Forget What You Learned in Civics Class: The Enrolled Bill Rule and Why It’s Time to Override Field v. Clark (2007) 41 Colum.L.J. & Soc. Probs. 213-221-222.

  15. California Taxpayers Association v. California Franchise Tax Board (Superior Court, Sacramento County, 2009, No. 34-2009-800001698), Final Ruling on Petition for Writ of Mandate, Filed May 20, 2009, p. 11.

  16.  (1866) 30 Cal. 253.

  17.  (1901) 132 Cal. 265, 274-275.

  18.  Id.

  19. Stevenson v. Colgan (1891) 91 Cal. 649, 652.

  20.  (1985) 173 Cal.App.3d 1187.

  21.  Id.

  22.  (1951) 37 Cal.2d 335.

  23.  Id.

  24.  Id.

  25.  Brief of the California State Senate in California Taxpayers Association v. California Franchise Tax Board.

  26.  Id.

  27. See Art. IV, Sec. 8(b).

  28. Amicus brief by State Senate.

  29.  Id.

  30. Cal. Const., art. IV, § 1.

  31. Cal. Const., art. IV, § 7(a).

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