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Bob Ferguson

AGLO 1971 No. 73 -
Attorney General Slade Gorton

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                                                                   May 13, 1971
Honorable Daniel J. Evans
Governor, State of Washington
Legislative Building
Olympia, Washington 98501                                                             Cite as:  AGLO 1971 No. 73 (not official)
Dear Governor Evans:
            On the evening of May 10, 1971, during the 60th consecutive day of the 1971 legislature's first extraordinary session, it is reported that several bills (including the major 1971-73 appropriations act and related revenue measures, together with bills relating to workmen's compensation and pensions) were passed by one or the other of the two houses during a period of approximately four hours occurring after 12 o'clock midnight, following which it adjourned sine die ‑ although the observable clocks located in each of the two chambers showed it to be only 11:55 P.M. at the time of passage of these measures.  You have asked for our advice regarding the legal consequences of this reported factual situation.
            The pertinent provisions of our state constitution relating to this matter are as follows:
            Article II, § 12:
            "The first legislature shall meet on the first Wednesday after the first Monday in November, A.D., 1889.  The second legislature shall meet on the first Wednesday after the first Monday in January, A.D., 1891, and sessions of the legislature shall be held biennially thereafter, unless specially convened by the governor, but the times of meeting of subsequent sessions may be changed by the legislature.  After the first legislature the sessions shall not be more than sixty days."  (Emphasis supplied.)
            Article III, § 7:
            "He [the governor] may, on extraordinary occasions, convene the legislature by proclamation, in which shall be stated the purposes for which the legislature is convened."
             [[Orig. Op. Page 2]]
            Following the completion of the legislature's regular biennial 1971 session which adjourned on March 11, 1971, you issued a proclamation under the latter of these two sections reconvening it into an immediate special session.  This session commenced at 12 o'clock noon on the following day ‑ Friday, March 12.  Thereafter, subject only to several one or two day recesses over weekends, the legislature remained in session until it adjourned as above indicated.
            In view of these circumstances, we have little doubt that the constitutional validity of one or more of the bills which were passed during the closing few hours of the session will be challenged in the courts.  When this occurs, it will be our responsibility to appear in defense of these measures and to assert all reasonable legal arguments available to us in their defense.  In the meantime, however, we fully understand your need for prompt legal guidance in order to assist you in determining whether to approve (in whole or in part) or disapprove these bills as provided for in Article III, § 12 of the constitution (relating to the veto power), or to reconvene the legislature once more for the purpose of again acting upon the critical subjects which were covered by the bills.  Our task, in responding to this request, is thus largely one of evaluating the constitutional issues ‑ and related defenses which would appear to be available to us ‑ if and when litigation occurs.
            Obviously, the threshold question which would have to be considered by the court in determining the effect to be given to any bills which may have been passed by either or both houses of the legislature after 12 o'clock midnight on May 10, 1971, is whether the sixty-day limit set forth in Article II, § 12, supra, applies only to regular biennial legislative sessions, or to extraordinary sessions called under Article III, § 7, as well.  As we pointed out in our opinion to you of March 9, 1969, copy enclosed, this is a question which has not yet been determined by our state supreme court ‑ and, moreover, it is a question upon which previous opinions of this office have been "split."  In this most recent opinion on the subject, the readily apparent absence of any expression of distinction between regular and extraordinary sessions within the critical "time limit" sentence of Article II, § 12, persuaded us that the better reasoned conclusion would be that the sixty-day limitation does apply to all sessions of the legislature and not merely to its regular, biennial sessions.  However, it nevertheless remains open to the possibility that in a proper case, our state supreme court might hold otherwise.
             [[Orig. Op. Page 3]]
            Next, it is to be noted that even if (as we believe) the court were to hold that extraordinary sessions as well as regular sessions are governed by this time limitation, certain additional judgments would have to be made by it ‑ assuming that in spite of various previous rulings to be discussed below it were to reach these issues.  The first such judgment would be whether the sixty-day limitation of Article II, § 12, supra, denotes sixty consecutive calendar days, or merely a total of sixty working days (exclusive, for example, of Sundays or other days during which both houses were in recess).
            By way of evaluation, we may initially note that there appear to be decided cases from other jurisdictions going both ways on this issue.  See, 82 C.J.S., Statutes, § 13, and cases cited therein; also, 1 Sutherland, Statutory Construction, § 406.  However, as with the first issue discussed above, none of the cases cited are decisions of the Washington supreme court ‑ nor have any such decisions been found.  Thus, the argument that those days are not to be counted when the legislature was in recess during the subject session likewise remains available ‑ although we must candidly recognize the impact of an early opinion of this office and resulting legislative practice in this area.  We have reference to AGO 1909-10, page 66, copy enclosed.  In this opinion we contrasted the limiting language of Article II, § 12, supra, with that of Article III, § 12, dealing with the governor's veto power, and said:
            "The section of the constitution under consideration does not mention Sundays, but in sec. 12, art. 3, providing for the governor's veto of bills, it is provided that 'if any bill shall not be returned by the governor within five days, Sundays excepted,' and after the adjournment of the legislature 'within ten days next after adjournment, Sundays excepted.'  Now, if it had been the intention of the constitutional convention that Sundays or recesses should be excepted, it certainly would have so stated.  As they provided in one section that Sundays were to be excepted, this shows clearly that they did not intend to except Sundays in the section where they did not so provide."
             [[Orig. Op. Page 4]]
            For this reason, we then concluded that the sixty-day limitation on the length of legislative sessions provided for in Article II, § 12 had reference to consecutive days rather than merely to working days.  A review of the journals of all legislative sessions held since that time reveals that there has been consistent legislative adherence to this construction of the constitution, and we would therefore have to express substantial doubt as to whether our court could now be persuaded to disagree on this issue.
            Somewhat related, but nevertheless distinguishable from this issue is that of when the time period for a legislative session should be deemed to begin and end.  Until it convenes in response to a gubernatorial proclamation under Article III, § 7, supra, it seems evident that an extraordinary legislative session cannot be regarded as having commenced.  Logically, therefore, the hour of convening should be looked upon as critical in relationship to any constitutionally prescribed deadline hour for adjournment.  If this be true ‑ and we have found no cases which would dicate a contrary view on the part of our court ‑ it should then follow that even if the sixty consecutive day rule is applied the deadline for adjournment of a session convening at 12 o'clock noon on March 12, 1971, would not have arrived until 12 o'clock noon on May 11, 1971.  Certainly, the legislature could not have fully utilized all of the days (i.e., twenty-four hour periods) alloted to it until that time.
            Lastly, and perhaps most importantly, it appears from our research that in any defense of the validity of those measures to which you have referred in your request there would be available to us a principle of law commonly referred to as the enrolled bill doctrine.  In this state, as in many other jurisdictions, this doctrine has for years been applied by the court in a manner resulting in a preservation of the validity of any duly enacted legislative measure which appears "fair upon its face" to have been enacted in conformity with the procedures specified in the constitution.  The rationale for this rule was explained by Judge Hoyt (who had previously served as the president of our state constitutional convention), speaking for the court in State ex rel. Reed v. Jones, 6 Wash. 452, 34 Pac. 201 (1893), as follows:
            ". . . Upon principle, then, in view of the division into departments under our form of government, each of equal authority, one department cannot rightfully go behind the  [[Orig. Op. Page 5]] final record certified to it or to the public from either of the other departments.  And the judicial department is no more justified in going behind the final act of the legislature to see if it has obeyed every mandatory provision of the constitution than has the legislature to go back of the final record made by the courts to see whether or not they have complied with all constitutional requirements."  (p. 464.)
            Other more recent cases in which the enrolled bill doctrine has been applied include State ex rel. Dunbar v. State Board, 140 Wash. 433, 249 Pac. 996 (1926); Morrow v. Henneford, 182 Wash. 625, 47 P.2d 1016 (1935); State ex rel. Bugge v. Martin, 38 Wn.2d 834, 232 P.2d 833 (1951); Roehl v. Public Utility District No. 1, 43 Wn.2d 214, 261 P.2d 92 (1953); Derby Club, Inc. v. Becket, 41 Wn.2d 869, 252 P.2d 259 (1953); and State ex rel. Toll Bridge v. Yelle, 61 Wn.2d 28, 377 P.2d 466 (1962).  Moreover, while most of these cases dealt with other asserted procedural violations by the legislature than that of tardiness in adjournment,1/ one of them, Morrow v. Henneford, supra, is squarely in point with regard to the constitutional issue under consideration in this opinion.
            In this case, the court was confronted with a challenge to the constitutionality of Title III, chapter 180, Laws of 1935, by which our state retail sales tax was first imposed.  Among the arguments which were made against the validity of this act was one which was premised upon a factual assertion that the act had been passed by the legislature at some time after March 14, 1935, the sixtieth day of the regular biennial legislative session of that year.  However the court, quoting extensively from both State ex rel. Reed v. Jones, supra, and State ex rel. Dunbar v. State Board, supra, rejected this argument, saying:
            "The appellant contends that the act before us was passed by the legislature subsequent to the expiration of the sixty-day period to which sessions of the legislature are limited by the state consititution.  The act  [[Orig. Op. Page 6]] comes before us fair upon its face.  Its passage on the 14th day of March, 1935, being within the sixty-day period, is duly certified by the presiding officers of the two houses of the legislature.  It is not permitted to us to look beyond this certification for the purpose of ascertaining whether all the steps enjoined by the constitution for the passage of laws were followed by legislature.  . . ."  (182 Wash. 634.)
            We recognize that this concept of judicial restraint has received some criticism since the rendition of this 1935 decision, particularly, in a dissenting opinion by the late Justice Schwellenbach in Roehl v. Public Utility District No. 1, supra, at p. 247.  However, neither the rule, nor its application to the case of an assertedly tardy legislature, has yet in fact been overruled in this state ‑ although we note that it has been rejected elsewhere in a few cases of this type.  See, 1 Sutherland, Statutory Construction, § 406 (footnote 3).  Aside from the very negative view expressed in the foregoing dissenting opinion of a single judge,2/ the most that has been suggested by the court is that, as alluded to in our opinion to you of May 9, 1969, supra,
            ". . . there may be occasions when the court will not be bound thereby."
            See, State ex rel. Toll Bridge v. Yelle, supra, at p. 51; also, Power, Inc. v. Huntley, 39 Wn.2d 191, 235 P.2d 173 (1951); and Derby Club, Inc. v. Becket, supra (concurring opinion).  In the Power case, it is true that this assertion of reluctance to be routinely bound by the enrolled bill doctrine was enunciated in the 1951 Power case in terms referring in part to legislative "clock stopping."  However,  [[Orig. Op. Page 7]] as acknowledged by the court, this issue was not in fact before the court in that case.3/   In addition, it is to be noted that during this same year, the court gave at least some degree of lip service to the doctrine in State ex rel. Daschbach v. Meyers, 38 Wn.2d 330, 229 P.2d 506 (1951).
            Here, the court expressly left open the question of whether the validity and constitutionality of measures passed after the sixtieth day of a session is directly affected thereby.  The action had been brought against the secretary of state by certain prospective filers of a referendum4/ against an act claimed to have been passed on the sixty-first day of the 1951 regular session.  Since a referendum could not be filed in any event until after the governor had acted on the measure under Article III, § 12 of the constitution, and since he had so acted with respect to the particular measure well within the ten-day limit specified therein, the court concluded that the relators had in no way been prejudiced, in terms of the time available to them for circulating their referendum petitions, by a  [[Orig. Op. Page 8]] tardiness on the part of the legislature in concluding the business of its regular session.  However in addition to stating this reason for its dismissal of the action, the court also said, significantly, that:
            "There is still another reason why the writ should not issue.  The legislature and this court are co-ordinate branches of our state government, and we cannot interfere with the legislature in its legislative processes, but are limited to a consideration of the constitutionality and interpretation of its acts."  (38 Wn.2d 332.)
            Two other cases from about the same era should be noted before closing:  State ex rel. Hamblen v. Yelle, 29 Wn.2d 68, 185 P.2d 723 (1947), and State ex rel. Robinson v. Fluent, 30 Wn.2d 194, 191 P.2d 241 (1948).  Speaking of Article II, § 12 of the constitution, supra, the court in Fluent, referring to its ruling a year earlier in Yelle, expressed itself as follows:
            "The constitutional provision (Art. II, § 12) that, after the first legislature, the sessions shall not be more than sixty days, is a limitation upon the power of enacting laws and is in no sense a limitation upon the function of investigation.  That it is not a limitation upon the function of investigation, we held in State ex rel. Hamblen v. Yelle, supra.  . . ."
             [[Orig. Op. Page 9]]
            However this statement was made solely by way of contrasting the legislature's law-making functions with its interim functions of research and investigation,5/ and not in the context of determining the constitutionality of any act of an assertedly late‑adjourning legislature.
            Thus in summary, we may advise you that, in our judgment, there will be a substantial set of legal arguments available to us when and if any of the bills to which you have referred are challenged in court.  Three of these arguments (as outlined above) will go to the basic issue of whether the legislative session which enacted these bills actually ran beyond any constitutionally prescribed time limit, while the fourth and final one ‑ the enrolled bill doctrine ‑ appears still to be a viable rule of judicial restraint against any inquiry in this respect beyond the record face of these measures.
            Of this doctrine we believe it fitting, in closing, to reiterate certain observations which were expressed a number of years ago by this office in AGO 1945-46, p. 109 [[1945-46 OAG 109 to State Auditor on April 4, 1945]].  Dealing, specifically, with the issue of legislative pay for any periods of a session beyond the prescribed sixty days, we said:
            "(1) The well known and almost universal practice of the courts of abstaining from questioning the constitutionality of acts of the legislature enacted after the expiration of a constitutional time limit upon legislative sessions does not derive from any disposition by the courts to close their eyes to actualities; they have not winked at the legislative fiction of stopping the clocks, nor condoned the practice.  They have refrained from questioning the constitutionality of such acts only because of principles inherent in our tri-partite theory of government, which require and exercise of comity between the three departments of government, the legislative, the  [[Orig. Op. Page 10]] executive and the judicial.  The courts properly conceive that they are bound by the records made by the legislative department of government, and that there would be a governmental and a practical impropriety in the courts seeking to go behind those records and questioning steps in the legislative process.  . . .

            "(2) If the courts are bound by the legislative record, so are other departments of the government, and the executive and administrative officers, including the state auditor.  . . .
            "(3) If the judiciary and the executive and administrative departments and officers of the government are bound by the legislative record, so are the legislative department and all the members of the legislature.  The legislative fiction of stopping the clocks is double edged and cuts both ways.  It cannot be adopted for one legislative purpose and disavowed for another."  (Emphasis supplied.)
            In view of all of the foregoing, it is to be seen that there is no possibility, based solely on previous decisions, of predicting with certainty what the attitude of the current members of our supreme court will be if any of the subject measures are properly challenged.  What we have attempted herein to do is, as stated at the outset, simply to analyze and outline for you the various legal arguments which can be made in support of these measures.  Based thereon, our conclusion is that the bills to which you have referred are defensible.
            We trust the foregoing will be of assistance to you.
Very truly yours,
Philip H. Austin
Deputy Attorney General
                                                         ***   FOOTNOTES   ***
1/Primarily, these cases involved Article II, § 38 of the constitution providing:
            "No amendment to any bill shall be allowed which shall change the scope and object of the bill."
2/"I believe that State ex rel. Reed v. Jones, 6 Wash. 452, 34 Pac. 201, and all kindred cases should be overruled, in order that the judiciary may be restored to its proper place and exercise its functions as a co-ordinate branch of the government."
            See, also, a case note appearing in 29 Wash. L. Rev. p. 91, wherein it was hypothesized that as many as four members of the supreme court ‑ as of 1953 ‑ were opposed to the rule.  From our reading of the cases noted, we would somewhat question this head count.  In addition, it is to be noted that none of the four judges in question remain on the court today.
3/See, 39 Wn.2d at pp. 203-204.  This case involved an act of the 1951 legislature which had been attacked on both Article II, § 19 "double subject" and Article II, § 38 "scope and object" grounds.  The court held the act to be unconstitutional under the first of these two sections and then went on to comment upon the second issue as follows:
            "Respondents assert that chapter 10 is unconstitutional for the further reason that the legislature flagrantly violated Art. II, § 38, of the constitution, which reads as follows:
            "'No amendment to any bill shall be allowed which shall change the scope and object of the bill.'
            "Appellants do not deny that this constitutional provision was violated.  Their position, briefly stated, is:  'So what?  There isn't anything the court can do about it because, under its repeated decisions, there is no way it can know what happened.'
            "That is the position always taken in argument when a question (not now before us) is raised concerning the validity of legislation enacted in a regular session after the sixtieth day.  Art. II, § 12.  It may or may not be, as argued, that the limitations of Art. II, §§ 12 and 38, are binding only upon the legislative conscience, and that the courts must perpetually remain in ignorance of what everybody else in the state knows.  We refrain from any consideration of this further constitutional question urged upon us by the respondents, and of the 'So what' answer of the appellants, as being unnecessary to the disposition of the present appeal."
            This, obviously, did not constitute any sort of a holding that the enrolled bill doctrine is no longer to be applied in an Article II, § 12 situation.  In addition, it is interesting to note that the court's reference to this constitutional provision was expressed only in terms of a regular session.
4/See, Washington constitution, Article II, § 1 (Amendment 7).
5/Those two cases involved, respectively, the validity of the Legislative Council, as created by chapter 36, Laws of 1947, and the Joint Legislative Fact-Finding Committee on un-American activities (Laws of 1947, p. 1378).