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

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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).
2008/09] WASHINGTON'S LAW OF LAW-MAKING supreme court with a case of first impression under article II, section 17, 74 Washington's speech or debate clause. In that case, the litigants sought to go behind the "wall" by seeking documents produced during legislative deliberations on the 2005 budget and expenditure limit. 1 75 Because the state supreme court used 2006 curative legislation to resolve the underlyin 6 dispute, the court declined to reach the remaining statutory or constitutional issues. At the superior court level, however, Judge Allendoerfer of the Snohomish County Superior Court ruled that article 1U, section 17's speech or debate clause does 77 indeed protect internal legislative deliberations' While Farm Bureau was before the superior court, plaintiffs requested, through use of discovery rules, that the legislature produce various documents relating to budget and revenue legislation and the state expenditure limit.178 The legislature provided some documents, such as bill files, but declined to provide other documents, such as internal e-mails among legislators and staff, on the ground that article II, section 17 rendered these documents privileged for purposes of CR 26.179 Plaintiffs disputed both that the speech or debate clause provided any privilege at all and that a privilege, if it existed, extended to these documents. 180 Judge Allendoerfer concluded that under article 1U, section 17, legislators are not answerable to the judicial branch of government about their deliberative processes, subject to several restrictions, most of which tailored the privilege to focus on the internal, deliberative aspects of the legislative process, as opposed to "political" or administrative actions of legislators.18 2 He reasoned that the privilege exists to protect the independence and integrity of the legislative process, not just legislators individually. 83 The superior court relied' 8 4 upon the identically 174. See Law of Law-Making, supra note 8, at 485-89; see also Steven F. Hueffier, The Neglected Value of the Legislative Privilege in State Legislatures, 45 WM. & MARYL. REv. 221, 221, 236, 238-39 (2004). 175. Fann Bureau v. Gregoire, 174 P.3d at 1148 n.20, 1149; Plaintiffs' Motion to Compel Discovery at 2-4, Wash. State Farm Bureau Fed'n v. Gregoire (Snohomish County Super. Ct. Jan. 5, 2006) (No. 05-2-10166-9). 176. Farm Bureau v. Gregoire, 174 P.3dat 1149 n.22. 177. Transcript of Court's Oral Decision at 2-3, Wash. State Farm Bureau Fed'n v. Gregoire (Snohomish County Super. Ct. Jan. 13,2006) (No. 05-2-10166-9). 178. Plaintiffs' Motion to Compel Discovery, supra note 175, at 3-5. 179. id at 4-5. Defendants' Response to Motion to Compel Discovery at 2-3, Wash. State Farm Bureau Fed'n v. Gregoire (Snohomish County Super. Ct. Jan. 10, 2006) (No. 05-2-10166-9). 180. Plaintiffs' Reply to Defendants' Response to Motion to Compel Discovery at 3-7, Wash. State Farm Bureau Fed'n v. Gregoire (Snohomish County Super. Ct. Jan. 12,2006) (No. 05-2-10166- 9). 18 1. Judge Allendoerfer also ruled that an executive privilege based on the separation of powers doctrine provides an equivalent protection for internal deliberations of the executive branch. Transcript of Court's Oral Decision, supra note 177, at 6-7. 182. Id at 2-5 (for example, actions of legislators in their capacity as members of the state Expenditure Limit Committee). 183. Id at5.
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