"original Acts," "meager Offspring," and Titles in a Bill's Family Tree: a Legislative Drafter's Perspective on City Offircrest v. Jensen

• Jurisdiction: Washington,United States
• Citation: Vol. 31 No. 03
• Publication year: 2007

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 31, No. 1FALL 2007

"Original Acts," "Meager Offspring," and Titles in a Bill's Family Tree: A Legislative Drafter's Perspective on City of Fircrest v. Jensen

Kristen L. Fraser(fn*)

I. Introduction

Many Americans research their ancestry to determine whether their pedigrees reveal titled forebears. After the state Supreme Court's ruling in City ofFircrest v. Jensen(fn1)lawyers in Washington may be undertaking a similar genealogical effort-combing through old session laws in the hope that a bill's legislative ancestors might provide a title to legitimize an act disputed in the present day.

In Fircrest, a four-justice plurality of the state Supreme Court wrongly voted to revive the St. Paul(fn2) rule, under which the title of an "original act" may be used to determine whether a subsequent "amendatory act" complies with the subject-in-title(fn3) requirement of Article II, section 19 of the state constitution.(fn4) Although five justices voted to overrule St. Paul, the Fircrest plurality's holding eliminates the requirement that an amendatory bill carry on its face a substantive statement of its subject matter, in disregard of judicial precedent, legislative practices, and the constitutional purposes of the subject-in-title rule.

This Article takes a closer look at the "dark and bloody ground"(fn5) of Fircrest from the perspective of a legislative drafter, and discusses several flaws in the Fircrest plurality's approach. First, by focusing on the title of an "original act," the plurality's resurrection of the St. Paul analysis conflicts with legislative use and implementation of Article II, section 19. Second, Fircrest and St. Paul thwart the purposes of the subject-in-title rule by undercutting the constitutional requirement of a subject matter declaration. Third, to compound the plurality's error in resurrecting St. Paul, none of the court's opinions fully understood the evolution of the statutes before the court-a review of the statutes' legislative history demonstrates that the plurality relied on the title of an "original act" that was not, in fact, within the challenged act's direct legislative "ancestry," thus revealing the futility of the "original act" analysis.

Litigants who quarrel with a statute's substance are increasingly likely to raise procedural challenges to the law-making actions through which the statute was enacted.(fn6) Given this trend and the prominence of the St. Paul analysis in the lead Fircrest opinion,(fn7) courts will undoubtedly encounter "original act" arguments in future litigation. To promote legislative intent, the purposes of the subject-in-title rule, and public understanding of the law, the court should reject the St. Paul reasoning used by the Fircrest plurality. The legislature is the branch of government that must interpret and apply the title-subject rule in performing its own constitutional duties. This Article argues, from the perspective of a drafter in the legislative branch, that the court should acknowledge legislative practices, expressly overrule Fircrest and St. Paul, and follow its more numerous decisions that consider exclusively the adequacy of the title actually placed before the legislature and the public in the legislation at issue.(fn8)

II. Background

A. Article II, Section 19: The Washington State Constitution's Title/Subject Rule

1. Judicial Treatment of the Subject-in-Title Rule

Article II, section 19 of the Washington Constitution establishes subject and title requirements for legislation: "No bill shall embrace more than one subject, and that shall be expressed in the title."(fn9). The title/subject rule contains two separate but related procedural restrictions on the law-making power. The single-subject rule prohibits legislation from having more than one subject.(fn10). The subject-in-title rule, on which this Article focuses, requires that a bill's subject be expressed in its title.(fn11). According to a statehood-era commentator, taken together, these two aspects of the title/subject requirement have three purposes:1.To prevent hodge-podge or logrolling legislation; 2. To prevent surprise or fraud upon the legislature by means of provisions in bills of which the titles gave no intimation, and which might therefore be overlooked and very carelessly and unintentionally adopted; and 3. To fairly apprise the people, through such publication of legislative proceedings as is usually made, of the subjects of legislation, in order that they may have opportunity of being heard thereon by petition or otherwise, if they so desire. (fn12) The single-subject rule serves the first of these purposes,(fn13) and the sub-ject-in-title rule promotes the latter two objectives.(fn14)

Briefly, the subject-in-title rule requires that a bill's title contain a declaration of its subject matter.(fn15) Unlike many other state constitutions,(fn16) Washington's constitution does not include an express "clear title" requirement. Instead, Article II, section 19 directs that a bill's title give notice of the bill's subject matter either by indicating the scope and purpose of the law to an inquiring mind or by giving enough notice to lead to an inquiry into the body of the act.(fn17) All that is necessary are a "few well-chosen words, suggestive of the general subject stated."(fn18) An elaborate statement of the subject is not necessary(fn19) so long as a legislator or member of the public, "by a mere glance at a few catchwords in the title, [would] be apprised of what the act treats, without further search."(fn20) "A very meager expression will be sufficient, but some expression there must be."(fn21) In other words, the bill title must disclose the bill's subject but need not detail the contents.(fn22) For example, "AN ACT Relating to liquor sales" need not declare in its title whether it reimposes Prohibition or expands state liquor store hours to Sundays, so long as the bill relates to liquor sales and does not include provisions relating to, for example, toxic waste or farm animals.

In determining whether a bill's title satisfies the constitutional requirements, Washington courts recognize two types of titles: general titles, which are liberally construed to embrace all provisions fairly within the subject matter statement,(fn23) and restrictive titles, which carve out a particular part or branch of a subject and for which provisions of the bill not fairly within the title will not be given force.(fn24) With the exception of St. Paul and its "meager offspring,"(fn25) courts do not draw other types of distinctions among titles, such as the contrast made by the Fircrest plurality between "original" and "amendatory" titles.(fn26)

2. The Title/Subject Rule in the Legislature

The constitution assigns to the legislature the role of directly implementing Article II, section 19. Hence, the legislature alone may draft bill titles.(fn27). The judicial role in implementing Article II, section 19's application to bill titles arises through interpretation only, not through any original drafting power.(fn28). Limited solely by the constitution, the legislator who drafts a bill has complete control over the initial way in which the subject matter statement in the bill title is written(fn29). and any number of legislative policy, parliamentary, and political objectives may affect the way in which a legislator exercises this drafting power.(fn30).

Throughout the legislative process, a bill's title consists of two parts: the substantive subject matter statement(fn31). preceding the first semicolon,(fn32). and the optional "ministerial"(fn33). portion thereafter. For example, the complete title of Chapter 330, Laws of 2006 (Engrossed Senate Bill 6661) is:AN ACT Relating to establishing the Washington beer commission; amending RCW 66.44.800, 15.04.200, 42.17.31907, 42.56.380, and 43.23.033; reenacting and amending RCW 66.28.010; adding a new section to chapter 66.12 RCW; adding a new chapter to Title 15 RCW; providing an effective date; and providing an expiration date.(fn34). In this example, the subject matter statement is "establishing the Washington beer commission," and the remainder of the title is deemed ministerial.

For parliamentary purposes, treatment of the substantive subject matter statement differs somewhat in the Senate and the House of Representatives. In the House, a bill's subject matter statement is fixed once the bill is introduced-House rules expressly prohibit amendment of the subject matter statement in the title.(fn35) Senate rules authorize parliamentary challenges to a bill's title and do not prohibit amendment of the title to better reflect the bill's contents.(fn36) Permitting substantive title amendments promotes notice and disclosure of a bill's subject at all stages in the legislative process, given that the precise issue addressed by a bill may change throughout the legislative process.(fn37) The enrolled bill doctrine, which prevents courts from scrutinizing the procedures by which a bill was passed if the act is fair on its face, prohibits judicial scrutiny of the legislature's choice to amend a bill title's subject matter statement.(fn38)

The ministerial portion of the bill title is drafted according to legislative custom rather than constitutional requirements.(fn39) The portion of a bill title after the...