Clocks and Courts: Enrolled Bills and Extrinsive Evidence
Joe Gerth has an interesting article on the issues raised by the Kentucky General Assembly’s recent decision to unplug its clocks and enroll several laws that had—allegedly—been passed after the constitutionally mandated April 15 deadline (Ky. Const. s 42). However, the article is a little vague as to details relevant to lawyers so I decided to dig deeper.
The article discusses an issue precedent to the constitutional controversy (actually more an expectancy of a controversy than a perfected one): the question of whether a court can even inquire into the legitimacy of a enrolled bill. For years, Kentucky courts had followed the common law principle known as the “enrolled bill rule,” which, as stated in the case of Lafferty* v. Huffman, 35 S.W. 123 (1893), held that a bill "properly enrolled, signed by the presiding officers of both houses, and approved by the governor, will be presumed to have been enacted … in the manner prescribed by the constitution and cannot be impeached.” The rule was based on both the separation of powers between the branches and on the practical understanding of the possibility of errors by clerks and staff in the preparation of legislative records, especially in the more frantic hours of a session. The courts, in Justice Hazelrigg’s expressive words, didn’t want to cause the “superstructure” [of the] law thus built up [to] fall” due to nitpicking of an imperfect legislative record.
However as Hazelrigg’s pen begat the typewriter, and the typewriter begat the computer, the commonsense justification for the rule waned and many state courts shifted away from an absolute presumption of validity towards a rule that only gave prima facie presumption that an enrolled bill was valid, allowing extrinsive evidence (say, I don’t know, real-time, date-stamped real-time video) to rebut the presumption. That was the rule adopted in 1980 that Gerth alludes to in his CJ piece. In D&W Auto Supply v. Department of Revenue, 602 S.W.2d 420, the court examined a litter law that, among other things, assessed a tax to fund its purposes. Unfortunately, the law, while properly enrolled, clearly failed to meet the constitutional absolute majority required for money bills (See “Two Guides to the Kentucky General Assembly: With Apologies to Niccolò Machiavelli and ABC's Children's Programming Division” ).
The enrolled bill rule stood in the way of righting an obvious violation of a constitutional provision and the Kentucky Supreme Court, in an unanimous opinion by Justice Stephens, overruled Lafferty and adopted the “extrinsic evidence rule," noting that “It is clear to us that the major premise of the Lafferty decision, the poor record-keeping of the legislature, has disappeared. Modern equipment and technology are the rule in record-keeping by our General Assembly. Tape recorders, electric typewriters, duplicating machines, recording equipment, printing presses, computers, electronic voting machines, and the like remove all doubts and fears as to the ability of the General Assembly to keep accurate and readily accessible records.” Id at 424.
Turning to the balance of powers rationale, the court rejected the premise that “the equality of the branches … requires that we shut our eyes to the constitutional failings and other errors of our copartners in government.” Channeling Justice Marshall, the court noted its duty under the Kentucky constitution (and I’m paraphrasing) to say what the law is. The court, in essence, adopted 1 Sutherland, Statutes and Statutory Construction s. 15.06 (4th ed. 1972; s. 15.6 in current 6th ed.) as the law of Kentucky.
It’s hard to tell yet whether anybody’s ox was gored by the laws enrolled in the wee hours of April 16 (allegedly). However, if they have a grievance that finds its way into the courts, the law (as well as the video records of KET) may be on their side.
* The case was styled from the name of William T. Lafferty, a town official of Berry, Ky., who the court released from an injunction barring him from issuing liquor licenses. In 1908, he was named dean of the new UK law school, where he soon was producing licenses of a different vintage.
LEFT: William T. Lafferty; RIGHT: Lafferty Hall, the building that the UK college of law moved into in the 1930s. It now houses the anthropology department.