I Developments in Washington's Law of Law-Making - Gonzaga ...

GONZAGA LAW REVIEW
[Vol. 44:3
legislative history in a manner not briefed by either party. Some commentators have
proposed restrictions on judicial notice of legislative history, such as requiring the
court to give notice that it plans to consider it and allowing the parties to brief the
matter. 15 ' Other commentators have proposed allowing broad use of legislative
history, but subject to a legislatively imposed hierarchy of significance., 5 2 But in
addition to increased use in statutory construction cases, courts and litigants may seek
to go behind the wall in discovery disputes and constitutional litigation.
A. The Enrolled Bill Doctrine: Chinks in the Wall?
Like separation of powers, the enrolled bill doctrine is not directly stated in the
text of the constitution but is nonetheless an important constitutional principle of the
lawmaking process. The enrolled bill doctrine permits the court to consider
legislative history in order to interpret an ambiguous statute, but the court is otherwise
prohibited from considering "the method, the procedure, the means, or the manner"
by which the legislation was enacted. 153 This "wall" forces the court to focus on the
legislative end product rather than the process by which it is reached. 154 Assuming
that the end product satisfies substantive and procedural constitutional standards, it is
not the role of the court to consider internal legislative procedures any more than it
would be for the legislature to inquire about the processes by which the state supreme
court arrives at its opinions: "Just as the legislature may not go beyond the decree of
the court when a decision is fair on its face, the judiciary will not look beyond the
final record of the legislature when an enactment is facially valid, even when the
proceedings are challenged as unconstitutional."' 155 For similar reasons, the court
declares that it must also enforce the "negative corollary" of the enrolled bill doctrine
by refusing to consider the proceedings behind bills that are not enacted.1 5 6
bill report, which describes current law, with the summary section, which describes how the bill
proposes to change the law. Further, prior to correction, the court appeared baffled that the bill report
would change to reflect different versions of the bill. Id. In State v. Hirschfelder, No. 36804-8-11,
2009 Wash. App. LEXIS 114, at *25 & n. 13 (Jan. 13, 2009), the court declared that it does not 'turm
to the comments of a single legislator to establish legislative history,' nor [does the court] rely on the
public's comments before the legislative committees," yet it relied on the "summary of testimony"
portion of legislative bill reports, which are summaries prepared by legislative staff of precisely such
comments.
151. Bridges & Melchiori, supra note 148.
152. Talmadge, A New Approach, supra note 148, at 208-09.
153. State ex re. Bugge v. Martin, 232 P.2d 833, 836-37 (Wash. 1951); see Brown v. Owen,
No. 81287-0, 2009 WL 564432, at *7 (Wash. Mar. 5, 2009) (citing cases and discussing roots of
doctrine in separation of powers principles); see also Law of Law-Making, supra note 8, at 456;
OriginalActs, supra note 146, at 65-68.
154. See OriginalActs, supra note 146, at 65-68 (citing cases).
155. Brown v. Owen, 2009 WL 564432, at *7.
156. Id. at *8 (refusing to review parliamentary ruling that bill failed for want of