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AGLO 1971 No. 126 -
Attorney General Slade Gorton

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                                                               November 10, 1971
Honorable Thomas A. Swayze, Jr.
Chairman, Legislative Council
Legislative Building
Olympia, Washington 98504
                                                                                          Cite as:  AGLO 1971 No. 126 (not official)
Dear Sir:
            This is written in response to your recent letter requesting our opinion on the following question:
            "'Would there be a constitutional prohibition against the Legislature adopting a rule which stated that only committee chairmen or the respective party leadership could request title only legislation?'"
            Article II, § 9 of our state constitution provides that each house of the legislature may determine the rules of its own proceedings.  Therefore, clearly, a rule such as you have described would have to be adopted, independently, by each house to govern its own proceedings ‑ although, of course, assuming that each house thus acts independently, there would be no constitutional impediment to the adoption of this rule as a joint rule.
            Next to be noted are the several provisions of Article II which detail the procedures which must be followed by the legislature in enacting any bill into law.  As stated in AGO 65-66 No. 12 [[to Robert C. Bailey, State Senator and Marshall A. Neill, State Senator on March 5, 1965]], procedurally speaking the valid enactment of any bill will depend upon the legislature's compliance with the following constitutional provisions:
            Article II, § 18:
            "The style of the laws of the state shall be:  'Be it enacted by the Legislature of the State of Washington.'  And no laws shall be enacted except by bill."
            Article II, § 19:
            "No bill shall embrace more than one subject, and that shall be expressed in the title."
             [[Orig. Op. Page 2]]
            Article II, § 20:
            "Any bill may originate in either house of the legislature, and a bill passed by one house may be amended in the other."
            Article II, § 22:
            "No bill shall become a law unless on its final passage the vote be taken by yeas and nays, the names of the members voting for and against the same be entered on the journal of each house, and a majority of the members elected to each house be recorded thereon as voting in its favor."
            Article II, § 32:
            "No bill shall become a law until the same shall have been signed by the presiding officer of each of the two houses in open session, and under such rules as the legislature shall prescribe."
            Article III, § 12, which requires in part that:
            "Every act which shall have passed the legislature shall be, before it becomes a law, presented to the governor.  . . ."
            We find nothing in any of these procedural requirements which would preclude either or both houses of the legislature from adopting a procedural rule such as you have in mind.
            We are, nevertheless, very dubious about this proposed rule from another constitutional standpoint; namely, that of "equal protection of the laws" under Amendment 14 to the United States Constitution and Article I, § 12 of our own state constitution.  As you know, the United States Supreme Court, in the legislative redistricting cases, has held that "equal protection" requires both houses of a bicameral state legislature to be apportioned on the basis of population so that each inhabitant of a state will have, quantitatively speaking, the same proportionate representation in the legislature as does every other inhabitant without regard to where he happens to reside.  See, AGO 1970 No. 28 [[to James A. Andersen, State Senator and Stewart Bledsoe, State Representative on December 22, 1970]], copy enclosed, for a detailed discussion of  [[Orig. Op. Page 3]] this constitutional principle.  Although our research has disclosed no cases squarely in point, one can easily postulate an argument that this constitutionally required equality of representation goes not only to the act of voting upon the various bills which are before a particular house but, as well, to participation in every aspect of the legislative process including the initial introduction of those bills.
            Most certainly, a rule which would purport to allow the introduction of bills, generally, only by committee chairmen or caucus leaders, would be highly suspect from a constitutional equal protection standpoint ‑ in the same manner as would a rule allowing bills, generally, only to be introduced by legislators serving their second or later terms of office; or (most obviously) by legislators who have law degrees or some other particular training or background.  And yet, in a somewhat more limited sense because it would apply solely to "title only" bills, this is precisely the same sort of classification as would be effectuated by the rule which you have described.

            Furthermore, while it might be suggested in "defense" of such a rule that our courts might be unwilling to involve themselves in the constitutionality of an internal rule of one or both houses of the legislature, we would hesitate, in the face of the judicial attitudes which have precipitated our redistricting cases, to predict such judicial restraint ‑ particularly if the action to challenge the validity of the rule were brought by "injured" members of the legislature itself.
            We do not necessarily suggest that a court would invalidate a given act of the legislature because the bill from which it emanated was introduced by "title only" pursuant to a rule as you have here asked us to consider.  Accord, 82 C.J.S., Statutes, § 9, and cases cited, holding that malapportionment does not offset the power of a legislature to enact valid legislation.  However, should such a rule be directly challenged, either by members of the legislature excluded from the special privilege conferred or by their constituents, we believe it more likely than not that the rule would be held invalid as a denial of equal protection.1/
             [[Orig. Op. Page 4]]
            We trust the foregoing will be of assistance to you.
Very truly yours,
Philip H. Austin
Deputy Attorney General
                                                         ***   FOOTNOTES   ***
1/We do not mean to suggest, by this conclusion, that there is nothing which the legislature can do, by rule, to limit the use of title only bills.  So long as all members are treated equally, there would most certainly be no constitutional barrier against a rule which would, for example, allow title bills to be introduced only during the first five days of a session, or allow only one "title only" bill per member during an entire session.