A different approach for California’s enrolled bill rule

California law, image by Vitalii Vodolazskyi

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

The Enrolled Bill Rule is based upon the separation of powers doctrine. 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.

This legal doctrine holds that, if an act of the Legislature is “properly enrolled, authenticated, and filed,” then it is presumed by the judicial branch of government 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 now a minority of states, including California, this presumption is a conclusive one. Based upon the California Constitution’s enumerated separation of powers doctrine set forth in Article III, Section 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 its constitutional lawmaking duty.

The EBR is utilized by the judiciary to limit its inquiry into whether statutes were properly enacted. Basically, the EBR 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 legal claim that the procedural requirements were allegedly not properly followed.

However, from my perspective and now a majority of states, the EBR should not preclude all judicial review of an enacted bill. While the judicial branch 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.

Nonetheless, such an absolute deference should not be the standard utilized in California going forward. Legislative enactments should, in fact, be subject to judicial review, rather than be immune from such review.

A number of courts in other states 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. The Court ruled that the presumption could be overcome in some instances:

“We believe that a more reasonable rule is the one which Professor Sutherland describes as the “extrinsic evidence” rule. I Sutherland, 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.”

Almost 100 years ago, the California Supreme Court ruled in Taylor v. Legislature 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.” Moreover, as recently as 2009, courts in this state have concluded that the EBR is still “in full effect in California.”

California’s Enrolled Bill Rule was described by this 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. 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.

With that background, I make the following proposal for consideration by the California judiciary:

The California Constitution, in Article IV, Section 1, vests the legislative power of the State in its Legislature. This inherent and plenary lawmaking power includes the authority to adopt any necessary procedural requirements for enacting statutes, as set forth in Article IV, Section 7(a). As a result, the Legislature, at each biennial session, adopts Assembly Rules, Senate Rules, and Joint Rules.

The Enrolled Bill Rule is based upon the separation of powers doctrine….However, the EBR should not be used anymore to prevent a challenge that constitutional provisions or state statutes were allegedly violated when the Legislature enacted a bill.

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

This distinction can be easily drawn by the judiciary in a future decision. In other words, under this proposal, legal challenges that are based upon an alleged violation of the state Constitution or the Government Code would be subject to judicial review. However, under my proposed approach, compliance with the “internal rules” of the Legislature (i.e., the Joint Rules, Assembly Rules, and Senate Rules) would not be subject to judicial review.

This proposal is rooted in Article IV, Section 7(a) which provides the Legislature with authority to adopt its own rules for its internal proceedings. 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 internal rules should be subject to the EBR so that a court would be precluded from entertaining a legal challenge against an enacted statute based upon an alleged violation of the Legislature’s internal rules.

For example, if a legal challenge to an enacted bill were based upon one house (or even both houses) not complying with a 4-day Daily File notice (which is provided in the Joint Rules), then such a legal challenge would be subject to the EBR and should be rejected by the courts. Again, this is due to the fact that the judiciary would be violating the separation of powers doctrine as the Legislature has explicit constitutional authority to adopt its internal rules.

However, the EBR should not be used anymore to prevent a challenge that constitutional provisions or state statutes were allegedly violated when the Legislature enacted a bill. For example, if the 72-hour in print rule (as adopted by the voters in Prop. 54 that amended Article IV, Section 8(b)(2) of the state Constitution) were allegedly violated, then the state’s courts should entertain such a legal challenge because it would be based upon a potential violation of the California Constitution.

This distinction between the procedural rules embodied in the state 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. By adopting this approach to the EBR, there would be a check by the judiciary that the Legislature had complied with its constitutional and statutory requirements when enacting a new law.


Want to see more stories like this? Sign up for The Roundup, the free daily newsletter about California politics from the editors of Capitol Weekly. Stay up to date on the news you need to know.

Sign up below, then look for a confirmation email in your inbox.


Support for Capitol Weekly is Provided by: