January 2002

A Roadmap to the WSBA Legislative Process

by Gail Stone
WSBA Director of Legislative Affairs

While the Washington State Legislature meets only a few months each year, the legislative process is a year-round endeavor. The bulk of the work that goes into a successful legislative proposal is done well in advance of the legislative opening day in January. For the Washington State Bar Association, that work is done by sections and committees. What follows is a roadmap for those sections and committees that seek to solve a statutory problem whose solution lies with the Legislature.

The WSBA bylaws provide that the WSBA may "[m]aintain a legislative presence to inform members of new and proposed laws and to inform public officials about bar positions and concerns." WSBA bylaws I.B.17. The bylaws further provide that the WSBA will not "[t]ake positions on political or social issues which do not relate to or affect the practice of law or the administration of justice." WSBA bylaws I.C.2.

In furtherance of those bylaws, the Board of Governors (BOG) adopted a Legislation and Court Rule Comment Policy. Sections and committees, as entities of the WSBA, are bound by the policy. Sections and committees may take positions independently of the BOG, but only under the conditions outlined in the policy.

What does this mean for sections? If you wish to take a public position, whether you are proposing legislation or responding to others' proposals, you need to notify the WSBA Department of Legislative Affairs so it can advise the BOG. It is often the case that sections or committees will take positions on legislation upon which the BOG is silent, but it is critical for the credibility of the WSBA and its members that our public voice be coordinated. Although rarely exercised, the BOG retains authority to prohibit sections from advocating legislative positions. From time to time, sections propose legislation that has unintended consequences for other WSBA sections. For those reasons, sections and committees wishing to propose legislation must send their proposals to the BOG through the Legislative Committee.

The Legislative Committee serves as the vetting ground for legislative proposals to be presented to the BOG. The committee is composed of up to 33 WSBA members selected to reflect the perspective and interests of the bar as a whole. The membership of the committee includes, as much as possible, all practice areas, all geographic areas, differing sizes of law firms, and other forms of diversity present in our profession.

The Legislative Committee does not propose legislation of its own. Rather, the committee reviews all legislative proposals emanating from WSBA sections or committees. If the Legislative Committee receives a proposal from an individual member of the Bar, it is referred to the appropriate section(s) for substantive comment and recommendation. Proposed legislation is typically sent out for comment to any other WSBA section or organization that might be affected by it. This is done so that the Legislative Committee's review process can be as thorough as possible, identifying and debating any potential points of controversy that might arise during the legislative session. The Bar's legislative success over the years has been due in no small measure to its reputation for the kind of thorough debate that the Legislative Committee process requires.

The committee meets from September through November, and presents its legislative recommendations to the BOG for action in December. Keith Baldwin is the 2001-2002 chair; Michele Radosevich serves as vice chair. The names and contact information for committee members may be found on the WSBA Web site at www.wsba.org/lawyers/groups/legislative/.

The WSBA maintains a full-time office in Olympia to coordinate WSBA and judicial interests in the governmental and legislative arena. In addition, the activities of the WSBA Legislative Committee are coordinated by the Department of Legislative Affairs. The department is staffed by Gail Stone, director of legislative affairs, and Diane Froslie, support staff. John Fattorini, who recently retired after 23 years as the WSBA's lobbyist, will return in February as an advisor for the 2002 session.

During the legislative session, the time and resources of the WSBA legislative team are primarily devoted to BOG-approved legislation, but we also monitor and respond to other legislation that affects the practice of law and the administration of justice.

When the Legislature is in session, Gail Stone and John Fattorini may be contacted at 1001 Eastside St. SE, Suite A, Olympia, WA 98501; 360-943-9977; or legis@wsba.org. When the Legislature is not in session, contact Gail Stone at the WSBA, 2101 Fourth Ave., Fourth Fl., Seattle, WA 98121; 206-733-5925; or gails@wsba.org.

WSBA-sponsored legislation begins as an idea tossed around by members of a section or committee. Seeing that idea through to legislative enactment requires a lot of groundwork in advance of presentation to the Legislative Committee and ultimately to the Legislature. What follows is a general timeline for the development of WSBA legislation. Keep in mind that it is common for major legislative proposals to take more than a year to develop into the final proposal that is introduced in Olympia.

The Legislature convenes each year on the second Monday in January. It meets for 105 days in odd-numbered years and 60 days in even-numbered years. The Legislature can meet even longer in special session by call of the governor. For WSBA sections and committees who wish to propose legislation, the work begins at least 11 months prior to January.

February — We ask for a heads up. At the beginning of each legislative session, the Department of Legislative Affairs sends a letter to all WSBA section and committee chairs, asking whether their section or committee is considering offering any legislative proposals for the following year. We ask that you let us know the general idea of your proposal by February 28, as well as the name of a contact person.

Why are we asking you to let us know what you're working on? One of the responsibilities of the Department of Legislative Affairs is to know which other constituent groups, legislators or WSBA sections might be affected by your proposal and are thus likely to have an interest in your bill — meaning they are likely to weigh in on your bill during the legislative session. If you inform us in advance, we can advise you about these potentially interested groups, and help you decide whether and when to involve them as you develop your proposal over the next few months. The legislative process is constructed so as to be deliberative and slow to change the law. Controversy about a bill can bump it off the tracks at any point during the process. The more concerns are ironed out ahead of time, the better chance your bill will have when it's introduced in the Legislature.

June — We need your specific proposal. The WSBA Legislative Committee begins meeting in early September. The Department of Legislative Affairs needs to have your draft legislative proposal by June 1, so we can distribute it to the committee for review.

Why do we need your proposal in June for a September committee meeting? To allow time for groups that may be affected by your proposal to review and make comments so that you have time to address potential issues before taking your proposal to the Legislative Committee. Preparation for the session includes getting your bill draft to the Code Reviser's Office, which requires lead time. Finally, the committee may raise questions or concerns that you will want to take back to your members. In such cases the committee may postpone action until a later meeting. If you don't get your proposal to us until September or October, you risk delaying BOG action on your bill for that year.

September-December — The Legislative Committee takes up your proposal. Sections present their proposals to the committee, which makes its recommendations to the BOG at the December BOG meeting. Sections also present their proposals at that meeting. Barring extraordinary circumstances, the BOG will not consider sponsorship of legislative proposals after its December meeting.

January-April — Into the sausage factory. If the BOG has voted to sponsor your legislation, the Department of Legislative Affairs shepherds it through the legislative process, from finding sponsors to requesting hearings, and responding to legislators' questions and concerns. Things move fast once the session starts; we need to be able to reach you at a moment's notice with information about the status of your legislation. We may need you to respond to or negotiate an issue raised in a committee hearing. Your section or committee will be well-served to have an internal process for quickly making decisions about proposed changes to your legislation. The most successful sections select a legislative chair or point person who can develop a familiarity with the legislative process, legislators and related interest groups.

In contrast to the slow, deliberative process of developing legislation, the process for responding to legislation is often conducted at breakneck speed. This can be a challenge for a profession that, quite rightly, prides itself on highly deliberative problem-solving.

Sections may be asked to respond to legislation in two ways. First, legislators, interest groups or other WSBA sections may be developing legislation. They may seek the full participation of a WSBA section or committee throughout the process of developing their legislation. Or they may instead seek a section's comment on or endorsement of a final legislative proposal. Remember that a section or committee's public endorsement of someone else's legislation constitutes a public position for purposes of the Legislation and Court Rule Comment Policy, requiring a 75 percent vote of the governing body of the section or committee.

The Department of Legislative Affairs asks that you let us know when your section is participating in these activities. This allows us to advise you of effective strategies, potential pitfalls, and other information that you may want to consider.

The second way sections may be asked to respond to legislation comes from the Department of Legislative Affairs. Each legislative session, hundreds of bills are introduced. We review every one of them, looking for bills that may affect the practice of law or the administration of justice. When we identify such bills, we send them to the appropriate sections for review.

So what exactly are we asking sections to do with these bills? We rely on sections to tell us whether a bill is of such import to the practice of law that the BOG — or the section — should weigh in publicly. When we send these bills out we usually have no information other than the language of the bill itself. There are not yet any bill reports or other legislative documentation explaining the genesis of the bill, or even what problem it is trying to address.

Timing is the greatest challenge for sections wishing to recommend that the WSBA or a WSBA section weigh in on a bill. The comment policy applies here as well, and the legislative process moves quickly. There may be only a matter of days from the introduction of a bill until it is scheduled for public hearing. For every one of the steps in the legislative process, there is a deadline by which a bill must move to the next step, or it is dead for the year. To weigh in effectively, the WSBA and its sections must be timely. As a practical matter, if a section wishes to take a position on a bill that the Department of Legislative Affairs has referred to them, we need to know immediately. If you wait too long, you may miss the opportunity to weigh in most effectively.

As practitioners, you may see a problem that can best — or only — be solved by statutory changes. The WSBA serves its members and the public by helping sections navigate the legislative process to achieve that solution.

The Board of Governors, the Executive Director, the Legislative Committee, or the Legislative Representative are authorized to refer legislative proposals or proposed court rule changes to Sections or Committees of the Washington State Bar Association for their consideration; and Sections and Committees are authorized to appear before the Legislature or a committee of the Legislature, or to comment on any proposed rule change pursuant to Supreme Court General Rule 9(f), upon the following conditions:

1. The Section or Committee will not take a position unless that position is the opinion and position of at least 75 percent of the total membership of the governing body of the Section or Committee.

2. The Section or Committee shall not advocate a position in opposition to a legislative or rule proposal or position of the Board of Governors without prior written notice to the Board.

3. The Executive Director, the Board of Governors, the Legislative Committee, and the Legislative Representative shall, as appropriate, be advised on an ongoing basis of decisions, positions and actions of the Section or Committee.

4. The Sections or Committees shall represent to the Legislature or to the Chief Justice that their views and opinions are those of the Section or Committee only, and not the official position of the Washington State Bar Association unless the Section or Committee has the written approval of the Board of Governors to represent the Association.

5. The Section or Committee representatives shall cease to advocate the position of the Section or Committee if requested to do so by the Executive Director, the Board of Governors, the President of the Bar, or, in the case of comment on legislative proposals, the Legislative Committee or the Legislative Representative.

Adopted as amended 1/16/93

---

Prior to working for the WSBA, Gail Stone worked as a policy analyst in the state Legislature. She was previously in private practice, focusing on family law.