In 1931 Walter Dodd noted that there were a number of state constitutional provisions that the courts simply would not enforce. Walter Dodd, “Judicially Non-Enforceable Provisions of Constitutions," University of Pennsylvania Law Review 80 (November 1931): 54. Read the following materials with this idea in mind.

D & W Auto Supply v. Department of Revenue 602 S.W.2d 420 (Ky. 1980)

STEPHENS, Justice.

The ultimate question to be decided on this appeal is the constitutionality of KRS 224.905-.970, commonly called the "Litter Control Act," which was enacted by the 1978 regular session of the Kentucky General Assembly. In arriving at our decision we must, perforce, reconsider the validity of a long line of decisions of this court which created and nurtured the so-called "enrolled bill" doctrine.

The Act in question is essentially an anti-littering statute. Its stated purposes are to consolidate and promote statewide programs for the reduction of litter and littering; to recover and recycle waste materials; to establish publicity as well as educational and motivational campaigns to build and sustain public awareness of the litter problem; and to create a litterfree ethic among Kentuckians. KRS 224.905, 224.930. The Kentucky Department for Natural Resources and Environmental Protection is given the responsibility of administering the Act. KRS 224.915.

To fund the efforts of state government in carrying out the purposes and mandates of this enactment,

The Act was initially introduced in the Kentucky House of Representatives and, as it wound its way through the legislative process, was known and identified as House Bill 253. It appears conclusively in the record that when House Bill 253 came before that body for final action, it "passed" by a vote of 48 "ayes" and 43 "nays."

Appellants make several arguments in challenging the validity of the Act: (1) The Act is unconstitutional because it did not receive a majority of 51 votes in the House, as is mandated by section 46 of the Kentucky Constitution for an appropriations bill....

Section 46 of the Kentucky Constitution sets out certain procedures that the legislature must follow before a bill can be considered for final passage. In addition, that section mandates that no bill shall become law unless "it receives the votes of at least two-fifths of the members elected to each House, and a majority of the members voting," with the following exception: "Any act or resolution for the appropriation of money or the creation of debt shall, on its final passage, receive the votes of a majority of all the members elected to each house." Kentucky Constitution sec. 46 (emphasis added).

It is conceded by all parties and clearly established by the record that the Litter Control Act, HB 253 of the 1978 regular session of the Kentucky General Assembly, received only 48 votes on its final passage in the House of Representatives. Since there are 100 members of that House, if the Act is an appropriation, its passage did not comply with a clear constitutional mandate.

It is not seriously argued by the appellees that KRS 224.905-.970 does not contain an appropriation....

Under both the legislative definition and the judicial definition, it is clear that the Litter Control Act is an appropriation act and falls within the aegis of section 46 of the Kentucky Constitution.

At this point, logic suggests that the decision of this Court is obvious, viz, since the Act makes an appropriation and since it received less than 51 votes in the House, it is violative of the Kentucky Constitution. However, we are immediately confronted with the huge stumbling block of what is described as the "enrolled bill" doctrine.

HB 253 was signed by the presiding officers of the House of Representatives, and was certified by the Clerk of the House as conforming with all House procedural rules and, in effect, as conforming with all constitutional requirements. Under the enrolled bill doctrine as it now exists in Kentucky, a court may not look behind such a bill, enrolled and certified by the appropriate officers, to determine if there are any defects.

From every point of reason, therefore, we are convinced that the enrolled bill, when attested by the presiding officers as the law requires, must be accepted by the courts as the very bill adopted by the legislature, and that its mode of enactment was in conformity to all constitutional requirements. When so authenticated, it imports absolute verity, and is unimpeached by the [legislative] journals. Lafferty v. Huffman, 99 Ky. 80, 35 S.W. 123, 126 (1896).

Thus spake Judge Hazelrigg in enunciating the enrolled bill doctrine.

Section 46 of the Kentucky Constitution requires that the final vote on a bill be taken by "yeas" and "nays." In Lafferty, passage of the law in question violated this provision, yet the bill was properly enrolled and approved by the governor. In declining to look behind the law to determine the propriety of its enactment, the court enunciated three reasons for adopting the enrolled bill rule. First, the court was reluctant to scrutinize the processes of the legislature, an equal branch of government. Second, reasons of convenience prevailed, which discouraged requiring the legislature to preserve its records and anticipated considerable complex litigation if the court ruled otherwise. Third, the court acknowledged the poor record-keeping abilities of the General Assembly and expressed a preference for accepting the final bill as enrolled, rather than opening up the records of the legislature. Since 1896, this court has concurred in the

reasoning applied in Lafferty, regardless of what procedural or constitutional defects have been alleged and proved.

Kentucky is not alone in adherence to the enrolled bill doctrine. At least 19 of our sister states follow the rule which conclusively presumes the validity of a bill passed by the legislature and signed by the legislative officers. See I C. Sands, Sutherland Statutory Construction sec. 15.03 et seq. (4th ed. 1972); 82 C.J.S. Statutes sec. 83 (1953); 72 Am.Jur.2d Statutes sec. 90 (1974); and 4 ALR2d 978 (1949).

Nowhere has the rule been adopted without reason, or as the result of judicial whim. There are four historical bases for the doctrine. (1) An enrolled bill was a "record" and, as such, was not subject to attack at common law. (2) Since the legislature is one of the three branches of government, the courts, being coequal, must indulge in every presumption that legislative acts are valid. (3) When the rule was originally formulated, record-keeping of the legislatures was so inadequate that a balancing of equities required that the final act, the enrolled bill, be given efficacy. (4) There were theories of convenience as expressed by the Kentucky court in Lafferty.

The rule is not unanimous in the several states, however, and it has not been without its critics. From an examination of cases and treatises, we can summarize the criticism as follows: (1) Artificial presumptions, especially conclusive ones, are not favored. (2) Such a rule frequently (as in the present case) produces results which do not accord with facts or constitutional provisions. (3) The rule is conducive to fraud, forgery, corruption and other wrongdoings. (4) Modern automatic and electronic record-keeping devices now used by legislatures remove one of the original reasons for the rule. (5) The rule disregards the primary obligation of the courts to seek the truth and to provide a remedy for a wrong committed by any branch of government.

In light of these considerations, we are convinced that the time has come to re-examine the enrolled bill doctrine.2

This court is not unmindful of the admonition of the doctrine of stare decisis. The maxim is "Stare decisis et non quieta movere," which simply suggests that we stand by precedents and not disturb settled points of law. Yet, this rule is not inflexible, nor is it of such a nature as to require perpetuation of error or illogic. As we stated in Daniel's Adm'r v. Hoofnel, 287

2The 1980 General Assembly made its own examination of the doctrine, and enacted legislation providing for review of an enrolled bill in the limited situation where the language of the bill as enrolled differs materially from the language of the bill as passed by the legislature. House Bill 84.

Ky. 834, 155 S.W.2d 469, 471-72 (1941) (citations omitted):

The force of the rule depends upon the nature of the question to be decided and the extent of the disturbance of rights and practices which a change in the interpretation of the law or the course of judicial opinions may create. Cogent considerations are whether there is clear error and urgent reasons 'for neither justice nor wisdom requires a court to go from one doubtful rule to another,' and whether or not the evils of the principle that has been followed will be more injurious than can possibly result from a change. Certainly, when a theory supporting a rule of law is not grounded on facts, or upon sound logic, or is unjust, or has been discredited by actual experience, it should be discarded, and with it the rule it supports.

It is clear to us that the major premise of the Lafferty decision, the poor record-keeping of the legislature, has disappeared. Modern equipment and technology are the rule in record-keeping by our General Assembly. Tape recorders, electric typewriters, duplicating machines, recording equipment, printing presses, computers, electronic voting machines, and the like remove all doubts and fears as to the ability of the General Assembly to keep accurate and readily accessible records.

It is also apparent that the "convenience" rule is not appropriate in today's modern and developing judicial philosophy. The fact that the number and complexity of lawsuits may increase is not persuasive if one is mindful that the overriding purpose of our judicial system is to discover the truth and see that justice is done. The existence of difficulties and complexities should not deter this pursuit and we reject any doctrine or presumption that so provides.

Lastly, we address the premise that the equality of the various branches of government requires that we shut our eyes to constitutional failings and other errors of our coparceners in government. We simply do not agree. Section 26 of the Kentucky Constitution provides that any law contrary to the constitution is "void." The proper exercise of judicial authority requires us to recognize any law which is unconstitutional and to declare it void. Without belaboring the point, we believe that under section 228 of the Kentucky Constitution it is our obligation to "support... the Constitution of this Commonwealth." We are sworn to see that violations of the constitution-by any person, corporation, state agency or branch of government-are brought to light and corrected. To countenance an artificial rule of law that silences our voices when confronted with violations of our constitution is not acceptable to this court.

We believe that a more reasonable rule is the one which Professor Sutherland describes as the "extrinsic evidence" rule. I Sutherland, supra, at sec. 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.

We therefore overrule Lafferty v. Huffman and all other cases following the so-called enrolled bill doctrine, to the extent that there is no longer a conclusive presumption that an enrolled bill is valid. With regard to the present case, we declare KRS 224.905-.970, the "Litter Control Act," void as violative of section 46 of the Kentucky Constitution.

Robert F. Williams,

"State Constitutional Limits on Legislative Procedure: Legislative Compliance and Judicial Enforcement"

Publius: The Journal of Federalism

17 (Winter 1987): 106-12.

Reprinted in University of Pittsburgh Law Review 48 (Spring 1987): 797

1987 CSF Associates, Philadelphia. Reprinted by permission of Publius.

Judicial Approaches to Enforcing State Constitutional Restrictions on Legislative Procedure

State courts have developed a surprisingly wide range of approaches to enforcing restrictions on legislative procedure under circumstances where an act does not carry "its death warrant in its hand." Even within single jurisdictions, one can detect inconsistent doctrines and a lack of continuity over time. These widely varying judicial doctrines reflect what are essentially political decisions, made in the context of adjudicating actual controversies, about the extent of judicial enforcement of state constitutional norms.

The range of approaches can be viewed as a continuum. At one end of the continuum is the "enrolled bill rule".... This is marked by judicial passivity and

complete deference to the legislative enactment.71 At the other end is the "extrinsic evidence rule," characterized by judicial activism and recognition of the written constitution as a binding source of law.72 In between these two extremes are three intermediate approaches to judicial enforcement. All of these have been developed by the courts as they have been called on by litigants to interpret and enforce state constitutional restrictions on legislative procedure....

The Enrolled Bill Rule

The enrolled bill rule is also referred to as the "conclusive presumption rule" because when it is operative, it prevents any evidence, other than the final enrolled bill itself, from being produced to show constitutional violations occurring during the process of enactment.73 In his 1977 commentary on the revised Texas Constitution, George Braden asserted that the enrolled bill rule was the majority view.74 The most common argument advanced in favor of the rule is the separation of powers doctrine.75 Because the legislature is a coordinate branch of government, the argument contends that the courts should not question the validity of its certified (enrolled) acts by going behind them to determine compliance with constitutional limitations. Another argument relies on the need for finality with respect to the validity of statutes, and the need for citizens to rely on such finality. These arguments inevitably leave it to the legislature itself to determine whether there has been compliance with limitation contained in the state constitution....

Braden advocates the enrolled bill rule. ... He states, "In any event, the members are fully capable of enforcing the rule, and it is their sole responsibility to do so under the enrolled bill doctrine.”77 Texas

71Norman J. Singer, Statutes and Statutory Construction, Vol. 1 (4th ed.; Wilmette, Ill.: Callaghan and Co., 1985), pp. 609-611.

72Ibid., pp. 617-618.

73Ibid., p. 609. This approach was adopted by the U.S. Supreme Court in 1892. See Field v. Clark, 143 U.S. 649, 669-680 (1892). There are, of course, relatively few procedural challenges to federal statutes. See supra notes 1 and 2, and accompanying text. For an exploration of the English antecedents of the enrolled bill rule, see William H. Lloyd, "Pylkinton's Case and Its Successors," University of Pennsylvania Law Review 69 (November 1920): 20-34.

74 George D. Braden, The Constitution of the State of Texas, An Annotated and Comparative Analysis (Austin: Texas Advisory Commission on Intergovernmental Relations, 1977), Vol. 1, p. 121.

75Singer, Statutes and Statutory Construction, p. 609. 77 Braden, The Constitution, p. 162.

continues to follow the enrolled bill rule, which has been in effect in civil cases78 since Williams v. Taylor in 1892.79 The court in Williams refused to invalidate a statute even though the legislative journals showed that the bill had not been reported out of committee within three days of final adjournment, in violation of Article 3, Section 32 of the Texas Constitution.

The Supreme Court of Washington recently reaffirmed the enrolled bill rule in Citizens Council Against Crime v. Bjork80 In continuing to apply the rule, the Court cited earlier Washington precedents81 and also stated:

An additional reason of public policy which supports the [enrolled bill] doctrine is that it is necessary in order that people may rely upon the statutes as setting forth the laws which have been enacted by the legislature. If the enrolled bill were not taken as conclusive evidence that it was regularly and constitutionally enacted, Judge John P. Hoyt (who had served as President of the Constitutional Convention) said, it would be practically impossible for the courts even to determine what was the law, and would render it absolutely impossible for the average citizen to ascertain that of which he must at his peril take notice.82

The end result of the "finality argument" is that people have laws that they can rely on; but they have no guarantee that those laws were enacted constitutionally. Furthermore, as the experience of states which follow the "journal entry rule" or "extrinsic evidence rule" shows, the unfavorable consequences that Judge Hoyt foresaw have not come to pass.

The "Slightly Modified" Enrolled Bill Rule

If the enrolled bill rule is placed at the far left of the continuum, the current rule in New Mexico can be placed only a short step to the right of it. After observing the enrolled bill rule since 1915, the New

78 Interestingly, the Texas Court of Criminal Appeals had followed the "journal entry rule” (discussed in notes 95-104, and accompanying text), until 1971. In Maldonado v. State, 473 S.W.2d 26 (Tex. Crim. App. 1971) the Court of Criminal Appeals brought itself in line with the Supreme Court of Texas in adopting the enrolled bill rule and held, “We will not look behind the engrossed [enrolled] bill to see if the Governor issued a proclamation including the subject matter of the enacted legislation" (as required by Article 3, Section 40 of the Texas Constitution), 473 S.W.2d at 28. 7983 Tex. 667, 19 S.W. 156 (1892).

8084 Wash. 2d 891, 529 P.2d 1072 (1975).

81See, e.g., Roehl v. P.U.D. No. 1 of Chelan County, 43 Wash. 2d 214, 261 P.2d 92 (1953).

8284 Wash.2d at 898, n. 1, 529 P.2d at 1076, n. 1 (citation omitted).

Mexico Supreme Court carved out a narrow exception in 1974.83 The court struck down the statutes in question, enacted after the sixtieth calendar day of the legislative session in violation of Article 4, Section 5 of the New Mexico Constitution. The justices held that courts may examine "the question of whether or not the act or bill purportedly passed by the Legislature within the constitutional time limitation was in truth and in fact passed within that limitation." The court explicitly held that its decision was to be prospective only, and only applicable to alleged violations of Article 4, Section 5 where “[T]he conclusive legal presumption that ordinarily attaches to enrolled bills simply would not attach."84

Acknowledging the separation of powers clause in the New Mexico Constitution,85 and disclaiming any intention of “even suggesting to the Legislature how it should conduct its affairs," the court concluded that "[i]t is nevertheless our function to say what the law is and what the Constitution means." The court clearly stated that it did "not intend to herald the complete demise of the enrolled bill rule."86

The court's arguments as to why it should look behind the enrolled bill to determine compliance with Article 4, Section 5 are persuasive. It noted that "[t]here is not the slightest doubt that the legislators are duty bound to comply with this constitutional directive.”87 Of course, legislators are duty bound to comply with all constitutional directives. The New Mexico court still seems to leave the enrolled bill rule in place for challenges asserting that a bill "was altered or amended during its passage so as to change its original purpose."88 A violation of this or other provisions would arguably be as unconstitutional as if it had been passed after the constitutionally allotted time for the legislative session had come to an end. Why the court considered only violations of Article 4, Section 5 to be egregious enough to warrant an exception to the enrolled bill rule remains unexplained. All the arguments advanced in support of this exception seem equally applicable to abolishing the enrolled bill rule altogether.

The Modified

Enrolled Bill Rule

On another step to the right of the continuum lies the "modified enrolled bill rule" adopted by the

83 Dillon v. King, 87 N.M. 79, 529 P.2d 745 (1974) (overruling Earnest, Trav. Auditor v. Sargent, Auditor, 20 N.M. 427, 150 P. 1018, 1915).

8487 N.M. at 85-86, 529 P.2d at 751-752.

85 New Mexico, Constitution, Article 3, Section 1.
8687 N.M. at 85-86, 529 P.2d at 751-752.
87N.M. at 85, 529 P.2d at 751.

88 New Mexico, Constitution, Article 4, Section 15.

Supreme Court of South Dakota in 1936.89 Under this rule, the enrolled bill is conclusive evidence of proper enactment except when an alleged violation concerns a provision for which the constitution specifically requires that a journal entry be made. Only under these narrow circumstances will the court look to the journals to determine whether a challenged act was passed improperly.

The court's latest consideration of the rule came in 1974.90 One of the alleged improprieties was that the bill was not "read twice, by number and title once when introduced, and once upon final passage" as required by Article 3, Section 17. The court held that "[t]he modified enrolled bill rule precluded plaintiffs from introducing evidence of the legislature's failure to comply with the requirements of Article 3, Section 17, because a journal entry noting compliance with that section is not expressly required by the Constitution."91 Even though the journals showed that the bill never got a first reading, the journals did not lack any of the required entries on the day the bill was considered and passed. Therefore, the court held that the enrolled bill became conclusive proof of its proper enactment.

The weakness of the modified enrolled bill rule was exposed by Justice Frank Henderson in his dissenting opinion. That is, the rule effectively insulates even intentional violations of the constitution from judicial review, even if the violation appears on the face of the journals, unless the violation occurs with respect to one of the limited exceptions where a specific journal entry is required by the constitution. Henderson favored adoption of the "journal entry rule"92 In support of his view, Henderson cited Article 3, Section 13, which mandates that "each house shall keep a journal of its proceedings." He also cited the rules apparently followed by the neighboring states of Minnesota and Michigan.93 He concluded that, "making laws is the State Legislature's business, but protecting the Constitution is this Court's business. Viewing an enrolled bill as conclusive and blessing it as legal is to forsake, oftentimes, the truth."94

89 The rule was enunciated in Barnsdall Refining Corporation v. Welsh, 64 S.D. 647, 269 N.W. 853 (1936). The rule is discussed in Marion R. Smyser, "Constitutional Limitations on the Enactment of Statutes in South Dakota," South Dakota Law Review 25 (Winter 1980): 33-35.

90 Independent Community Bankers Assoc. v. South Dakota, 346 N.W.2d 737 (S.D. 1984). Ohio recently adopted the modified enrolled bill rule in a thoughtful opinion. Hoover v. Bd. of County Commissioners, 19 Ohio St.3d 1, 482 N.E.2d 575 (1985).

91346 N.W.2d at 743 (emphasis added).

92346 N.W.2d at 743, 748. The "journal entry rule" is discussed more fully in notes 95-104, and accompanying text. 93 Bull v. King, 205 Minn. 427, 286 N. W. 311 (1939); McClellan v. Stein, 229 Mich. 203, 201 N.W. 209 (1924). 94346 N.W.2d at 749.