November 1999 

External Trends Affecting the Practice of Law in Washington State:
State Legislative Impacts

I beseech your Majesty, let me have Justice, and I will then trust the law.

Lady Elizabeth Hoby Russell to King James I, 1602

Washington has seen an historical shift from case law to statute law. As more legal issues have become the subject of statutory regulation, and as statutory schemes themselves have become more detailed and sophisticated, the legislature has had an increasing impact on both substantive areas of law and on the ways in which law is practiced.

The growth in statute law has several components. Changes in the legislature’s administration have contributed to the increase in legislation. Prior to 1970 the legislature met only biannually, in odd-numbered years. In 1970, Governor Evans called the legislature into special session. The legislature has met annually since then, with the exception of 1978. In 1978, Governor Ray declined to call a special session. By then, legislators expected to meet every year. For example, in 1977 the legislature passed a comprehensive revision of the juvenile justice statutes. As is often the case in sweeping legislation, some unanticipated problems became apparent in its implementation. Legislators expected to be able to solve those problems during the 1978 special session. When Governor Ray refused to call a special session in 1978, those problems persisted through another year, with devastating political consequences for some legislators. In 1979 the legislature asked the citizenry to amend the Washington State Constitution to require the legislature to convene annually, and the citizens agreed.

Whatever their party or political philosophy, people run for the legislature because they believe their government and its laws can be improved. A legislature in session is therefore a legislature creating and amending statutes.

In recent years, computerization has had a significant impact on the legislative process. The availability of e-mail has led to an exponential increase in constituent contact with legislators. People who would never have written a letter will send e-mail. People who would have written a letter to only their representatives and senator can now, with the touch of a button, send their message to all 147 legislators. Interest groups can communicate with their members faster, and with more timely information. Well-coordinated phone and e-mail campaigns can inundate a legislator’s office and create pressure on legislators to react.

So how does constituent contact affect the practice of law? Citizens are looking increasingly to the legislature for resolution of their specific legal situation. When a court case does not turn out the way they think it should have, or when attorneys tell them their case should not be pursued because it has insufficient basis in the law, individuals often turn to their legislators to get the relief they seek. Legislators serve their constituents and want to help constituents find solutions to their problems. Legislators’ greatest power to effect change is in the legislative arena. They naturally look for legislative solutions to the problems constituents bring to them, even when the best solution lies elsewhere and even when legislation is the wrong solution. There is an adage in appellate practice: "Bad facts make bad law." The same can be true of the legislative process. Compelling stories do not necessarily make the best law.

Washington state’s part-time citizen legislature is, for most legislators, no longer part time. The business of the state has become increasingly more complex and sophisticated, requiring legislators to spend far more time on legislative work during the off season than was necessary even 20 years ago. More and more legislators have no outside employment, allowing them to dedicate full time to developing legislative proposals. The result is more legislation.

Finally, the system makes it difficult for attorneys to serve in the legislature. Very few practices can be organized in a way that allows the practitioner to walk away from it entirely for three to five months each year. Out of 147 members of the 1999-2000 legislature, only 11 are attorneys. The legislature reflects the views of the public; the public’s current perception of the legal profession is skeptical at best. Educating the public and legislators about the role of the legal profession and the courts is increasingly imperative as the number of attorney-legislators declines.

An activist legislature results in constantly shifting statutory sands. The interim — the months during which the legislature is not in session — provides time to bring all the stakeholders together on an issue, analyze the problem and possible solutions, and fully develop legislative proposals. The legislative session, however, runs at a breakneck pace. When a bill is introduced, people (including legislators) who were not previously at the table have an opportunity to offer their own analyses of the problem, as well as their own solutions. Proponents and opponents line up their arguments, their witnesses and their political allies. Those who refuse to bend often watch their bills die. Legislation moves through the process on the ebb and flow of compromise. Sometimes compromises are made in order to enact legislation with the explicit expectation that "we’ll fix it next year." And sometimes legislation has effects that no one anticipated.

The comprehensive 1998 revisions to Washington’s laws on driving under the influence provide an example of what can happen. One relatively uncontroversial provision required that anyone arrested for DUI appear before a magistrate within one judicial day. In practice, this turned out to be impractical for some smaller jurisdictions that have criminal calendars only one or two days per week. So, in 1999, the legislature unanimously passed a bill changing the statute to allow local courts to adopt rules providing for appearances on the next practicable day. But the 1998 provision was in effect from January 1 through July 25, 1999, leaving some courts technically out of compliance with state law and exposing some of their DUI cases to challenge.

The sheer volume of the Revised Code of Washington, combined with the constant pressure to solve social problems with legislation, can result in conflicting legislation. New laws are passed, some of them without reference to related or conflicting statutes. Either the conflict went unrecognized during the legislative process, or the proponents did not see their legislation as being in conflict with existing law. In either case, practitioners can be faced with litigation, or coming back to the legislature to resolve statutory conflicts. For example, RCW 9.92.064, last amended in 1982, provides that a suspended sentence must terminate no later than when the original sentence would have elapsed. RCW 9.95.210, last amended in 1996, provides that when granting probation, a court may suspend a sentence for two years or for the term of the original sentence, whichever is longer. The conflict between these statutes is now being litigated.

Even without statutory conflicts, the opportunities for attorney malpractice are legion, simply by virtue of the amount of legislation enacted each year. In 1999 Governor Locke signed into law 398 pieces of legislation, affecting roughly 2,688 sections of the RCW. That number is not unusual; in 1991, Governor Gardner signed 381 bills into law, affecting 3,724 sections of the RCW. The effective date of most legislation is 90 days after the legislature adjourns. It can take far longer than that for the infrastructure supporting the legislation to gear up. The new laws must be fully analyzed, forms must be reviewed and edited, attorneys and judges must be educated, and procedures and court rules must be amended to reflect statutory changes.

The legislature controls court funding; funding drives the administration of justice.

In our system of checks and balances on the three branches of government, the power of the purse is the legislature’s check on the judiciary. In his State of the Judiciary address to the 1999 Legislature, Washington State Supreme Court Chief Justice Richard Guy said, "There is a wonderful song in the play and movie ‘Cabaret’ that ‘Money makes the world go around.’ While money may indeed make the world go around, the lack of money can also make the world stop. The trial courts are under-funded, and the criminal justice system is overwhelming the trial courts’ ability to deal responsibly with civil justice." He noted, "Protracted and delayed justice is making civil justice no longer available. Our courts will become criminal courts almost exclusively."

The ever-increasing amount of crime legislation is not the only factor in this dynamic. The legislature has to balance the funding needs of courts with the funding needs of schools, transportation and health care, along with scores of other needs. Crime legislation therefore does not always come with an increase in state funding that covers the cost. Recent DUI legislation provides an example of how this can affect the implementation of the statutes. As the penalties for driving under the influence have increased, more defendants are asking for jury trials. Jury trials cost time and money (including court staff, prosecutors’ and defense attorneys’ time), and can result in increased docket backlog. Court budgets cannot absorb all these costs. Everyone in the system knows this. Thus, more defendants ask for jury trials and more of their cases are pled down. Those that go to trial tie up resources that might otherwise be available for civil cases. The expectations of legislators and citizens are frustrated by the practical realities of limited resources.

The Becca Bill and its progeny provide another example of how the legislature’s funding decisions affect the practice of law. Commissioner Royce Moe of Spokane County Superior Court describes the four-year evolution of Becca implementation in his county. The legislature passed the Becca Bill in 1995 without an appropriation of state funding. Spokane County’s court was able to absorb most of the costs of Becca implementation during the first biennium, as it took some time for schools and courts to get the truancy petition system in place. In the next biennium, the court saw a 29 percent increase in the number of truancy petitions, but the legislature appropriated only $3 million for Becca programs statewide. The court struggled along. Finally, just last year the legislature fully funded the Becca Bill. The Spokane County courts, along with the schools, have now been able to create a solid program that is achieving the goals of the bill. The court has hired nine additional court personnel over the past four years dedicated entirely to Becca cases. They include a court commissioner, prosecutor, defense counsel and probation officers. The number of truancy petitions is increasing every year. Ten percent of Spokane County’s juvenile detention population is now Becca-related.

But in 1999, the state cut its Becca funding from $14 million to $8 million statewide. Commissioner Moe points out that his county will see a 58 percent cut in state Becca funds beginning in July 1999. The state budget cut may reflect last November’s Referendum 49, enacted by the people to create revenue for criminal justice. Although the legislature passed a bill this year clarifying that counties may use Referendum 49 funds for Becca cases, which are civil, Commissioner Moe notes that county commissioners and the citizens who passed Referendum 49 may disagree. The court’s Becca infrastructure may be at risk in the short term, and its future is far from certain.

The criminal justice system is indeed overwhelming the public civil justice system. In response, lawyers are forced to change how they practice civil law. As Justice Guy points out, "Private judging supplements, and in some cases, supplants, the judiciary. Cost, time, selection of a judge, and certainty of trial date are some of the reasons private judging has become popular." Mediation and arbitration are increasingly becoming the first choice in dispute resolution, rather than an alternative. The dispute resolution method determines how attorneys prepare and present cases, so this shift away from the civil trial bench is having a profound effect on the practice of law and on the expectations of clients.

The diminishing availability of a public civil court system affects who can expect civil justice. Private alternatives to the courts are financially unavailable to hundreds of thousands of Washingtonians. The Bar has an ethical stake in making civil access to justice a meaningful part of people’s lives.

Legislators, too, are asked to step up to the problem. The growth in administrative law — a less formal, less costly process — has been, in part, a legislative response to an overwhelmed civil justice system. Administrative law has also grown as a result of more and more legislative policy enactments, whose details are delegated to the rule-making process. The legislature instituted the mandatory arbitration system in 1979, and plays an active role in its continuing evolution. It is important to keep in mind that the bench and bar are only two of many voices raised in the legislative debate on issues affecting the practice of law.

The courts regulate the practice of law, but the legislature is increasingly willing to step into the province of the courts, where courts and the legal profession are perceived as overly self-protective. This year saw a nearly unprecedented move by the legislature to remove a sitting judge. The Commission on Judicial Conduct had recommended to the Supreme Court that the court suspend the judge for four months. While the case was pending before the Supreme Court, the Senate passed a resolution providing that the House and Senate Judiciary Committees should consider whether the legislature should remove the judge pursuant to Article IV, Section 9 of the State Constitution. In the end, the final version of the senate resolution provides that Judiciary Committees will meet within two weeks of the release of the Supreme Court’s opinion in order to review the matter. Only once before, in 1891, has the legislature invoked Article IV, Section 9 to attempt to remove a sitting judge.

Conversely, the legislature has historically looked to the Bar for expertise and advice in certain areas of the law. In areas such as probate, corporations, real property and electronic communications law, the legislature trusts the Bar’s process for developing legislation. The legislature respects the Bar’s leadership on uniform legislation, such as the Uniform Commercial Code, as well as the Bar’s commitment to protect the public. Like other state bar associations, most dramatically California, the WSBA’s past trouble spots with individual legislators have typically occurred when the Bar has taken strong positions on social policy.

The Washington state House and Senate each have approximately 30 attorneys on staff. Two-thirds of these attorneys serve as counsel to the legislative committees and are nonpartisan. Every committee has at least one (and most have at least two) staff counsel. In addition, each of the four caucuses employs between two and five attorneys as partisan policy analysts, speakers’ attorneys or caucus counsel. The House and Senate administration employ one and four attorneys, respectively. The Code Reviser’s office, which is responsible for the official text and editing of the RCWs and WACs, employs nine attorneys to respond to legislators’ requests for bill drafts.

Legislation may be drafted by committee staff, caucus staff or by the Code Reviser. Less than half of all legislative proposals are drafted by committee staff. A smaller percentage is drafted by caucus staff (few of whom are attorneys), and the remainder is drafted by the Code Reviser. These three groups play very different roles in the legislative process.

Committee counsel work with legislators to develop legislation. The role of committee counsel includes advising legislators of the full spectrum of policy impacts of a particular proposal; researching historical opposition and support for similar proposals, constitutionality, and court interpretation of existing related statutes; and drafting legislation. These permanent, nonpartisan staff attorneys are precluded from advising members about the political advantages and disadvantages of a particular bill and are prohibited from advocating a particular political viewpoint. Their work with legislators is confidential, and it often happens that the same committee counsel will be working simultaneously with two different legislators, going in opposite policy directions on the same issue. They are, however, available for as much or as little legal counsel as a legislator wants to hear on the impacts, benefits and costs of a piece of legislation. Depending on the working relationship of any particular legislator and counsel, the opinion of committee counsel can have a significant influence on legislative proposals.

Some legislators use the services of committee staff extensively while others use them not at all. Legislators may take their proposals directly to the Code Reviser for drafting into bill form.

The Code Reviser’s role in the legislative drafting process is typically much narrower than that of committee counsel. The Code Reviser is a technician. The Code Reviser’s drafting attorneys do not analyze policy, but rather limit their advice to questions of constitutionality. They point out when other statutory sections are in conflict, and note similar technical flaws. When interest groups and individuals come to legislators with proposals to change the law, legislators take those proposals in their most general form to the Code Reviser. The legislator then receives a draft of his or her proposed bill. Whether or not the legislator hears about the full effects, and the pros and cons, depends upon whom the legislator seeks out for an opinion.

Finally, each of the four caucuses employs policy analysts to assist legislators in developing legislation, and in making policy as well as political strategy decisions. Some of these analysts are attorneys, most of whom are assigned to issues in the Judiciary and Corrections Committees.

As it formulates its long-range plan, the WSBA would be well served to factor in the significant effects of the legislature on the practice of law. As representatives of the public whom we all serve, the legislature shapes the legal system with policy changes and funding decisions. In turn, the Bar offers its expertise to the legislative process of improving the law. The symbiosis of this relationship is vital to the long-term interests of the Bar.

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