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

GONZAGA LAW REVIEW
[Vol. 44:3
bill took effect retroactively. 166 Division I concluded that the title was "restrictive ' 167
because the phrase "to enhance benefit and tax equity" did "not suggest a bill that
might embrace any and all manner of changes to the unemployment insurance
system." ' 168 Division I also reasoned that the title did not provide "fair notice,"
because the phrase in question did not alert employees-"a group particularly
affected by EHB 3278"-that legislators had decided to change the good-cause quit
criteria. 6 9
From a legislative perspective, Division I's Batey ruling attached a troublesome
significance to the legislature's use of a striking amendment as a mechanism by
which to enact legislation.' As in Patrice v. Murphy, the court could presumably
have found a subject-in-title violation under a standard restrictive title analysis
without relying on legislative history.' 7 1 However, Division I's use of legislative
history in a constitutional analysis conflicts with the enrolled bill doctrine.1 72
B. The Speech or Debate Clause: What Goes Through the Wall?
In addition to the substantive disputes about tax and expenditure limitations,
Washington State Farm Bureau Federation v. Gregoire 173 also presented the state
166. Id. Presumably, once aware of the issues raised by the litigation relatively late in the
session, the legislature sought a bill with an appropriate title to achieve the necessary statutory cure,
and it selected EHB 3278 as having a broad title that related to unemployment insurance.
167. See Law of Law-Making, supra note 8, at 463-68 (discussing general/restrictive title
analysis); Original Acts, supra note 146, at 40 & nn.23-24 (citing cases for general/restrictive
analysis).
168. Batey, 154 P.3d at270.
169. Id.
170. Cf State v. Hirschfelder, No. 36804-8-11, 2009 Wash. App. LEXIS 114, at *27 (Jan. 13,
2009) (oddly, using "rider" to describe an amendment). "Rider" is a somewhat pejorative term and
relates to the Congress' ability to add provisions to a bill that do not relate to the bill's underlying
subject matter. The United States Senate's reference page says that "rider" is an "informal term for a
nongermane amendment to a bill or an amendment to an appropriation bill that changes the
permanent law governing a program funded by the bill." Definition of Rider,
http://www.senate.gov/reference/glossaryterm/rider.htm (last visited April 23, 2009). Congress does
not have a single-subject or subject-in-title requirement; in Washington, of course, if the amendment
were truly nongermane, it would violate article II, section 19 (title/subject rule) or article 11, section
38 (scope and object rule) or both. For this reason, "rider" is not part of Washington's legislative
lexicon. Cf Flanders v. Morris, 558 P.2d 769, 772-74 (Wash. 1977) (rejecting under art. I1, secs. 19
and 37 a legislative attempt to use a budget appropriations bill to amend permanent law governing a
program funded by the bill).
171. Patrice v. Murphy, 966 P.2d 1271, 1274-75 (Wash. 1998) (holding that provisions
relating to interpreters did not fit within title "relating to court costs"); see Law of Law-Making, supra
note 8, at 458 (opining that legislative history unnecessary to Patrice conclusion).
172. See Original Acts, supra note 153, at 65-68 (opining that use of legislative history in
constitutional analysis flouts enrolled bill doctrine; court should analyze final legislative product).
173. 174 P.3d 1142 (Wash. 2007).