The Unseen Part of Passing New Laws

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By Chris Micheli

There is an important part of the legislative process that occurs out of public sight and is generally not known or understood in the California legislative process. After the two houses of the Legislature pass a bill, but before the passed bill reaches the Governor’s Desk, a bill goes through a very important process — engrossing and enrolling. Engrossing also occurs after each amendment to a bill.

When a bill has been amended, only the engrossing process takes place. However, after a bill passes both houses of the Legislature, then engrossing occurs first and is followed by enrolling. These are two separate and distinct activities. As mentioned, engrossing can occur even before a bill has passed either floor of the Legislature. Enrolling, on the other hand, only occurs after a bill has passed both houses.

Engrossing

In the “engrossing” stage, there is a comparison of the printed bill to assure its likeliness to the original bill and that the bill’s amendments were properly inserted into the measure. After being proofread by staff to assure the amendments were done properly, the bill is “correctly engrossed” and is, therefore, in proper form. The official proofreading also follows Second Reading and/or the adoption of any amendments to the bill.

Enrolling

In the “enrolling” stage, as explained by the Assembly Chief Clerk, an “enrolled bill” is one that has passed both houses of the Legislature and has been ordered enrolled. In enrollment, the bill is proofread for accuracy and then delivered to the Governor for final action. The enrolled version of the bill contains the complete text of the bill with dates of passage, as well as certification by the Senate Secretary and Assembly Chief Clerk.

Enrollment concludes when the bill has been presented to the Governor and resolutions are filed with the Secretary of State. An enrolled bill that has been approved by the Governor contains the signatures of the Governor, Secretary of the Senate, and the Chief Clerk of the Assembly certifying the bill’s authenticity. That signed bill becomes the chaptered version.

Both the Assembly and Senate have a nonpartisan unit responsible for proofreading all forms of measures. These Units also prepare and deliver bills to the Governor for consideration. Both the Assembly and Senate have an Engrossing and Enrolling Clerk and each house engrosses its own bills.

During this engrossment process, the Engrossing and Enrolling Clerk is authorized to make technical corrections and changes in the printed bill and may also send “queries” to the Legislative Counsel Bureau when, in his or her professional estimation, there is a drafting error in the text of, or amendments to, a bill.

The Formal Process

After a bill has passed both houses, the bill is returned to the house of origin. If the bill has not been amended by the other house, it is immediately sent to the Engrossing and Enrolling office of the Assembly Chief Clerk’s Office (if it is an Assembly bill) or to the Committee on Rules in the Senate (if it is a Senate bill), to be enrolled. If, however, the other house has amended the bill, then the amendments must first be concurred in before the bill may be sent to enrollment.

After enrollment and signature by the Secretary of the Senate and the Chief Clerk of the Assembly, or their designees, constitutional amendments, as well as concurrent and joint resolutions, are filed with the office of the Secretary of State. Thereafter, the time of filing is reported to the house of origin, and the record is entered in the Daily Journal. These measures are not acted upon by the Governor.

In addition, enrollment is the final legislative action taken on a bill before it is presented to the Governor. When the enrolled bill is delivered to the Governor, it is endorsed by the Private Secretary of the Governor or by some other individual designated by the Governor, whose identity the Governor must make known to the Speaker and the President pro Tempore.

The Engrossing and Enrolling Clerk will engross and enroll all bills that come to his or her hands for that purpose, in compliance with the provisions of Section 9503 of the Government Code, and in the order of time in which the bill has been acted upon by the Assembly or Senate.

In the Assembly, after final passage by both houses, any Assembly bill not amended by the Senate shall be ordered by the Speaker to be enrolled, as provided in Sections 9508 and 9509 of the Government Code. The Chief Clerk reports both the day and hour each enrolled bill is presented to the Governor, which report is entered in the Daily Journal.

Under the Joint Rules of the Assembly and Senate, after a bill has passed both houses it is printed in enrolled form, omitting symbols indicating amendments, and is compared by the Engrossing and Enrolling Clerk and the proper committee of the house where it originated to determine that it is in the form approved by the houses.

Enrolled Bill Rule

In general, the judicial branch is loath to review the record keeping practices of the Legislature to determine the validity of statutes. This limitation on judicial inquiry is known as the “Enrolled Bill Rule” and this legal doctrine holds that, if an act of the Legislature is “properly enrolled, authenticated and filed,” then it is presumed that “all of the steps required for its passage were properly taken,” and “even the journal of the Legislature is not available to impeach it.”

The reasoning behind this judicial limitation is that the judicial branch should not impinge on the constitutionally enumerated power of the legislative branch to govern its internal affairs. Despite some critics of this legal principle, as recently as 2009, courts have concluded that this Rule is still “in full effect in California.”

Chris Micheli is a Principal at the Sacramento governmental relations firm of Aprea & Micheli, Inc. He is an Adjunct Professor in the Capital Lawyering Program at McGeorge School of Law.

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