The Journal Entry Rule The middle of the continuum is represented by the "journal entry rule."95 This rule allows a court to consider an evidence appearing in the legislative journals to help determine the validity of a statute which has been challenged on constitutional grounds,96 with the enrolled bill being considered only prima facie valid. One state that follows the journal entry is Florida. In a 1983 case,97 a Florida drug trafficking statute was challenged on the grounds that it had not been properly read before passage as required by Article 3, Section 7. The trial court had considered extrinsic evidence (voice recordings of the legislative proceedings and transcripts generated from those recordings) to contradict the journals. The journals indicated that both houses of the legislature had properly read the bills before their enactment.98 In continuing to follow the journal entry rule, the Florida Supreme Court held that the legislative jour 95 It should be noted that there are different formulations of this rule. In Singer, Statutes and Statutory Construction, the journal entry rule is defined as the reverse of the conclusive presumption rule (i.e., "if constitutional compliance with mandatory provisions is not set forth in the journal there is a conclusive presumption that the proper proceedings were not followed and the presumption is against the validity of the act"); Ibid., p. 616. This is a minority position (see cases cited therein). For purposes of this article, the "journal entry rule" means that where a statute is challenged on constitutional grounds, the court may look to the journal to determine compliance with the constitutional provision. 96 A further point of clarification is necessary to distinguish the "affirmative contradiction rule" (Ibid., pp. 614-15). This rule "requires that validity be given to the enrolled bill unless there affirmatively appears in the journals of the legislature a statement that there has not been compliance with one or more of the constitutional requirements" (Ibid., p. 614). "It generally results, as does the conclusive presumption rule, in sustaining every statute" (Ibid.). The main weakness of this rule is that "as a practical matter it would be remarkable for the journal to recite affirmatively that the bill was not read or a vote was not taken or that any required procedural step was not carried out" (Ibid.). So the main distinction, and an important distinction, between the affirmative contradiction rule and the journal entry rule is that only the journal entry rule allows a court to consider evidence of "defects in legislative procedure which appear negatively in the journal. That is, the journal may fail to show that the bill was read a second time or it may fail to show that a proper vote was recorded" (Ibid.). For an application of the affirmative contradiction rule, see Jensen v. Matheson, 583 P.2d 77 (Utah 1978). 97 State v. Kaufman, 430 So.2d 904 (1983). Rhode Island also follows the journal entry rule. See State Terminal Corp. v. General Scrap Iron Inc., 107 R.I. 24, 264 A.2d 334 (1970). See also Elizabeth Hunter Cobb, "Judicial Review of the Legislative Enactment Process: Louisiana's Journal Entry Rule'," Louisiana Law Review 41 (Summer 1981): 1187-1200. 98430 So.2d at 905. nals were the only evidence "superior in dignity" to enrolled bills.99 The rationale for the court's holding, and the basis of the journal entry rule, is that the legislative journals are considered to be "public records" because the constitution mandates that they be kept.100 Under this view, the journals are at least as reliable as the enrolled bill as evidence of what procedure the legislature actually followed, or did not follow, in enacting legislation. Indeed, in Florida, if there is a conflict between an act and the journal, the journal controls. 101 The court did list some specific exceptions where extrinsic evidence might be used to impeach the journals: 102 for example, where "clear and legally sufficient allegations of fraud are presented" 103 or when it is alleged that actions were taken by a legislature after it ceased to be a duly constituted legislature. 104 Absent a challenge based on circumstances like these, the legislative journals are the only evidence that can be used to overcome the presumption of constitutionality afforded to enrolled bills in states which, like Florida, follow the journal entry rule. The Extrinsic Evidence Rule At the right end of the continuum is the "extrinsic evidence rule." This rule "accords the enrolled bill a prima facie presumption of validity but permits an attack by clear, satisfactory and convincing evidence establishing that the constitutional requirements have not been met."105 This rule was adopted by the Supreme Court of Kentucky in 1980,106 in a challenge based on Section 46 of the Kentucky Constitution. Although the journals indicated, and all parties conceded, that only 48 votes in a 100-member house were cast in favor of a bill containing an appropriation, Section 46 sets out certain procedures, including: "Any act or resolution for the appropriation of money or the creation of debt shall, on its final passage, receive the votes of a majority of all members elected to each house."107 99430 So.2d at 906. 100 See Florida, Constitution, Article 3, Section 4(c). 103 Ibid. See Jackson Lumber Co. v. Walton County, 95 Fla. This case gave the Supreme Court of Kentucky the chance it apparently was looking for to reexamine, and abandon, the enrolled bill rule which had been in effect there since 1896.108 Before abandoning the enrolled bill rule, the court examined the four historical bases of the doctrine and the criticisms of the rule. A major argument the court advanced in favor of adopting the extrinsic evidence rule was that it is the "sworn duty of the courts under Section 26 of the Kentucky Constitution to see that violations of the constitution . . . are brought to light and corrected." The court stated, "[t]o countenance an artificial rule of law that silences our voices when confronted with violations of our constitution is not acceptable to this court." The court concluded that the extrinsic evidence rule is "a more reasonable rule," and one that will best allow the court to fulfill its obligation to "support the Constitution of the Commonwealth."109 108 The rule was announced in Lafferty v. Huffman, 99 Ky. 80, 35 S.W. 123 (1896). 109602 S.W.2d at 424. Kentucky, Constitution, Section 26 provides: To guard against transgression of the high powers we have delegated, We Declare that everything in this Bill of Rights is excepted out of the general powers of government, and shall forever remain inviolate; and all laws contrary thereto, or contrary to this Constitution, shall be void. Discussion Notes 1. Is the enrolled bill rule akin to the "political question" doctrine? See generally, Nat Stern, "The Political Question Doctrine in State Courts," South Carolina Law Review 35 (Spring 1984): 405. 2. With respect to other state constitutional restrictions on legislative procedure, see Chapter 9, section B. 3. A lengthy debate in the 1872-1873 Pennsylvania Constitutional Convention concerning the question of judicial enforceability of legislative procedure requirements in the state Constitution was illuminating, but inconclusive. The Legislation Committee had recommended the inclusion of the following provision in the legislative article: Any bill passed in disregard of the provisions and directions prescribed in this article shall be void and of no effect; and when the validity of any law passed by Conclusion It should now be obvious, from this brief review, that there is a wide range of judicial attitudes toward enforcing state constitutional restrictions on legislative procedure.110 Litigants seeking an adjudication of a statute's invalidity on the basis of procedural defects are not neutral, good-government watchdogs seeking enforcement of the state constitution as an abstract value. They are, rather, directly affected by, and opposed to, the challenged statute's substantive outcome and are seeking a procedural "handle" to avoid its consequences. They appear to be seeking a judicial windfall after losing in the legislature. This may be what leads to judicial ambivalence about enforcing constitutional restrictions on legislative procedure. The question still remains whether, in the absence of legislative adherence and executive enforcement (which may be common with respect to controversial statutes), courts should enforce apparently mandatory requirements of the written constitution. These are basic questions of justiciability and the judicial function in constitutional interpretation and enforcement. 110 Justice Hans. A. Linde of Oregon has noted: "When a law is promulgated without compliance with the rules of legitimate lawmaking, is it not a law? Remarkably, we have no coherent national doctrine on this fundamental question." Hans A. Linde, "Due Process of Lawmaking," Nebraska Law Review 55 (1976): 242. the Legislature is questioned in any court 2 Debates of the Convention to Amend the Constitution of Pennsylvania, 1872-1873, at 758. A debate followed, during which the delegates fully discussed the pros and cons of judicial enforcement, together with alternatives, such as enforcement by the executive branch. Ibid. at 758-97. At the conclusion of the debate, the Convention simply voted not to accept the recommended language. Ibid. at 797. G. Mandatory or Directory Provisions Reread the provision of the South Carolina Constitution, Article I, Section 23, on page 180. Arnett v. Sullivan 279 Ky. 720, 132 S.W.2d 76 (1939) THOMAS, Justice. The regular 1938 session of our General Assembly by chapter 20 of the acts for that session, duly submitted to the voters of the commonwealth for their ratification or rejection at the regular November 1939 election an amendment to our Constitution. The contemplated amendment made it the imperative duty of the General Assembly to "provide by law for assistance to the aged, to the blind, and to dependent children, and for other assistance in cooperation with the Federal Government under the Social Security Act and acts amendatory thereto," and which was done pursuant to the provisions of section 256 of our Constitution. Its next section (257) says: "Before an amendment shall be submitted to a vote, the secretary of state shall cause such proposed amendment, and the time that the same is to be voted upon, to be published at least ninety days before the vote is to be taken thereon in such manner as may be prescribed by law." (Our emphasis.) At the first session after the adoption of our present constitution the general assembly enacted section 1459 of our present statutes, designed to carry into effect the two constitutional provisions embodied in its sections 256 and 257. A part of the section of the statutes dealing with the publication of the submitted amendment says: "Such publication shall be made so that the last publications shall be at least ninety days preceding the election at which said amendment is to be voted on, as provided in Const. secs. 256 and 257." The regular election at which the proposed amendment should be submitted to the people was and is the regular election day in November, 1939, but the appellant, Charles D. Arnett, Secretary of State, for the Commonwealth of Kentucky, did not advertise or publish its submission until August 26, 1939, which, according to our calculation, left but 73 days intervening between the publication and the election day, and being 17 days less than the constitutional requirement. The only argument made in brief of counsel for appellants for a reversal of the judgment is, that the language in section 257 requiring the publication of the submission to be "at least ninety days before the vote is to be taken thereon" and the corresponding language in section 1459, is directory and not mandatory. In support of that argument numerous cases from this and some from other courts are cited dealing with the rule applicable to the interpretation of statutes which counsel seek to apply to constitutional provisions; but which all courts, so far as we are aware, have uniformly declined to adopt-all of them declaring that the rule permitting courts to adopt directory or mandatory interpretations with reference to statutes is much more restricted or altogether lacking than when applied to constitutional provisions, as will be seen from this language taken from the text of volume 11 in the very recent work of American Jurisprudence, on page 686, section 69: "The analogous rules distinguishing mandatory and directory statutes are of little value in this connection and are rarely applied in passing upon the provisions of a Constitution." That excerpt is but a reiteration of the substance of the rule as stated by all authoritative texts writers and courts, including Mr. Cooley in Volume I, of the 8th Edition of his celebrated treatise on Constitutional Limitations. On page 160 of the vol ume referred to the text says: "There are some cases, however, where the doctrine of the directory statutes has been applied to constitutional provisions, but they are so plainly at variance with the weight of authority upon the precise points considered that we feel warranted in saying that the judicial decisions as they now stand do not sanction the application." The learned author continues through following pages to fortify that statement by citing opinions of various courts, including that of some of the few ones adopting departures in some instance from the general rule-that all constitutional provisions are mandatory and none of them directory. Illustrating the holding of the latter class of constitutional interpretations the author cites cases wherein the involved constitutional provision required that an act pending before the legislature should be read "distinctly" the required number of times before it could be voted on by the legislative body, and the courts held that the word "distinctly" was more of a directory command than mandatory, since it necessarily was "addressed to the judgment of the legislative body, whose decision as to what reading is sufficiently distinct to be a compliance cannot be subject to review." An enumeration (even without excerpts) of text authorities and judicial opinions of various courts of last resort in this country, approving the mandatory character of constitutional provisions would extend this opinion far beyond due limits, to avoid which we will not undertake the task but will content ourselves by saying that with few exceptions, and only where the provision under consideration was of such a nature as to scarcely present the question, the rule is declared that constitutional provisions are mandatory and never directory. This court is in complete accord therewith.... In fact, we have been cited to no domestic case, nor have we been able to find one, of contrary holding. All of the cases except the Speer case involved other constitutional requirements and limitations than the submission of constitutional amendments to a vote of the people for ratification or rejection, but in that case the identical question here involved was the only one submitted to and determined by the court.... We in that case, as expressing our adopted rule, approved this excerpt from the Varney opinion supra [86 Ky. 596, 6 S.W. 459]: "By the term 'directory' it is meant that the statute gives directions which ought to be followed; but the power given is not so limited by the directions that it cannot be exercised without following the directions given. In other words, if the directions given by the statute to accomplish a given end are violated, but the given end is in fact accomplished, without affecting the real merits of the case, then the statute is to be regarded as directory merely. Should this rule of construction be applied to the con stitution of the state? We think not. The constitution of the state was adopted by the people of the state as the fundamental law of the state. This fundamental law was designed by the people adopting it to be restrictive upon the powers of the several departments of government created by it. It was intended by the people that all departments of the state government should shape their conduct by this fundamental law. Its every section was, doubtless, regarded by the people adopting it as of vital importance, and worthy to become a part and parcel of a constitutional form of government, by which the governors as well as the governed were to be governed. Its every mandate was intended to be paramount authority to all persons holding official trusts, in whatever department of government, and to the sovereign people themselves. No mere unessential matters were intended to be ingrafted in it; but each section and each article was solemnly weighed and considered, and found to be essential to the form of constitutional government adopted. Wherever the language used is prohibitory it was intended to be a positive and unequivocal negation." That same rule was expressly approved in the Bosworth opinion and all of which is in complete accord with the universally established rule for the interpretation of constitutional provisions. To sustain the contention of counsel for appellants would not only require us to expressly overrule our former emphatically established position, but would also require us to depart from what we conceive to be the only logical one that should be approved by us, even in the absence of any precedent whatever, and though the question was one of first impression, either in this jurisdiction or in others. Appellant's counsel in their brief admit that the Speers case presented "a duplicate situation" to the instant one. They also admit that this court in that opinion went "extendedly and elaborately" into the question, and that "unless this court is persuaded to overrule the Speers case, supra, the judgment of the lower court must be affirmed." So that, there is no effort to differentiate the Speers case from the instant one. However, in order to induce us to recant from our holding in that case counsel has this to say: "At the time section 257 was adopted perhaps the ninety day provision of the Constitution was essential and necessary due to the sparsely settled rural communities of the State, the difficulty of communication and the infrequency of publication of newspapers and the slowness of their delivery. However, under conditions existing at present, communication between the people is swift and easy, newspapers reach the rural districts on the day they are published and they are published daily, while at the time the Constitution was adopted containing the provisions supra, communication was difficult and tedious, newspapers were usually published weekly and in many cases did not reach the rural communities for many days after their publication. People had no opportunity to discuss the merits of a Constitutional amendment such as they now have. Telephone as a means of communication was not widely used. Roads were in very bad condition; automobiles were not in practical use; travel from one point to another was limited; radios were unheard of; and it can readily be seen that publication of the amendments was at that time about the only means of informing the voters of the proposed amendments to the Constitution. Today conditions are entirely different and a publication of a few days prior to an election would give to the people as much opportunity to discuss the amendment and inform themselves as to its merits as would have been given by the provision requiring publication ninety days prior to the election at the time the Constitution was adopted." The argument is unconvincing, either from a logical or precedent standpoint. It is then insisted that the 73 days publication made in this case by the Secretary of State was and is a "substantial" compliance with the mandatory requirement of section 257 of the Constitution, and section 1459 of our Statutes, although both of them employ the emphatic language that the publication should be made "at least ninety days before the vote is to be taken," &c. Even if opinions dealing with the interpretation of statutes only were available in support of that position they would not apply, as we have seen, to the instant case wherein a constitutional instead of a statutory requirement is involved. We stated above that to follow the argument of counsel for appellants and to hold that the language of the Constitution here involved was only directory would conflict with the only logical conclusion that could be reached by the courts, even in the absence of the teachings of text writers, and the almost universal determinations of courts. It requires but little comment to sustain that statement. Written constitutions in governments adopting them, charter the course to be followed by all agencies and departments operating under them, as well as the people composing the government. Human nature is such that many individuals, whether in or out of office, would if unrestrained, through selfish, ambitious or other motives, pursue a course destructive to orderly government Discussion Notes 1. Have we seen other contexts in which changes over time have supported changed state constitutional interpretation, even the overruling of precedent? If so, why is that argument not available in the Arnett case? 2. Is the view of the content of state constitutions presented in the Arnett case an accurate one? wherein justice as near as humanly possible should prevail. The purpose of constitutional restraint is to guarantee as far as possible that such action on the part of those so inclined should be prevented, and that the highway to be traveled under such forms of government is that mapped out by its constitution. To hold that its provisions are directory and not mandatory would enable the class of individuals (public or private) to whittle away such necessary constitutional restraints and barriers bit by bit until the constitution itself would be reduced to a state of disintegration and final annihilation, and the government would then be reduced to the condition of a ship without a rudder. There should be no such undermining. If a particular constitution contains provisions not adaptable to changed present conditions there is always found in it means and methods by which it may be amended, and no court should approve any other method of amendment than the one or ones so prescribed. However, there is a vast difference between "substantial" compliance and no compliance at all. If the attempt at compliance in this case had been made as much as ninety days before the election at which the submitted amendment was to be approved or rejected by a vote of the people-but not in the exact method pointed out by either the constitutional or statutory sections supra-we would then be called upon to determine whether or not a substantial compliance had been made. But in this case the effort at compliance (substantial or literal) was never taken by the Secretary of State within the minimum period, and therefore, there has been no "substantial compliance" with its provisions in the respect here involved. It follows, therefore, that the argument of substantial compliance has no relevancy upon the legal issue, even if applicable in the determination of constitutional questions. Further elaboration of the question would serve no purpose other than to more convincingly confirm the correctness of the universal rule referred to, and which is, that constitutions should never be amended or disregarded either by public officials (including courts) or private individuals, except in the manner pointed out in the constitution itself, since its provisions are always mandatory and never directory. Wherefore, for the reason stated, the judgment is affirmed. 3. The Arnett court, in 1939, held that state constitutional provisions are always mandatory, noting that "we have been cited to no domestic case, nor have we been able to find one, of contrary holding." Consider the following 1923 Pennsylvania decision. |