The judicial branch of government is generally reluctant to review the record-keeping practices of the Legislature that is used to determine the validity of statutes. This limitation on judicial inquiry is known as the enrolled bill rule. It’s a legal doctrine that holds that if an act in the Legislature is “properly enrolled, authenticated, and filed,” then it is presumed that all of the required and necessary steps for passage of legislation were in fact properly taken by the Legislature. Interestingly, the courts have generally said even the Daily Journal of the Assembly and Senate can’t be utilized to impeach that authentication process. More on that later.
The rule comes from the enumerated separation of powers doctrine in Article III, Section 3 of the California Constitution. While there has been some criticism of this legal principle, the courts have ruled as recently as 2009 that the enrolled bill rule is still in full force and effect in California.
As far as I can tell, the enrolled bill rule dates back to 1866, in the case of Sherman v. Story. In its decision, the Court refused to consider any uncontradicted legislative journals as well as oral testimony that alleged that certain proposed amendments that were rejected by the California Assembly, we mistakenly incorporated into the final version of the bill that passed the State Senate. In 1901, in the case of County of Yolo v. Colgan, the Court rejected a claim based on an entry in the Senate Daily Journal that noted the bill did not have enough votes to pass. Despite the bill in question not having the necessary 21 votes, the Court ruled that the separation of powers doctrine vested the powers to determine whether or not the appropriate formalities of passing a bill had been complied with in the Legislature. In Planned Parenthood Affiliates v. Swoap in 1985, the matter at hand was a section of the budget bill, Section 33.35 to be precise, was removed in conference committee. However, in the final signed version of the budget bill Section 33.35 was included by mistake. Its inclusion was challenged but because of the enrolled bill rule, the Court determined that it lacked the power to strike the erroneously included section.
There is one narrow exception to the enrolled bill rule. That exception is found in the Levin decision. Basically, the Levin decision stated that the exception to the enrolled bill rule applies when there is a procedural defect in the adoption of local charter amendments that could be evidenced on the face of the resolution that was adopted by the Legislature.
You can find the transcript of the audio in today’s blog post here.