November 2006

The Board's Work

by Lindsay Thompson

Summer Roundup — Yakima, June 9; Port Angeles, July 21

Yakima

The Board’s summer meetings tend to be a combination of planning for the Bar year to start in September, and clearing the deck of the waning one. Newly elected governors start coming to meetings. Presidents-elect start telling presidents, “Get your own coffee.”

The Yakima meeting was a busy one, yoked as it was with the Access to Justice and Bar Leaders’ conferences. The Big Institutional Item was the election of next year’s WSBA president, and it turned out to be an easy choice. 2007 is eastern Washington’s turn in the presidential rotation, and Governor Stan Bastian was the only person who said he wanted to take a swing at it. So he won unanimously. Winning unopposed is always more fun, I’ve found.

It was time to elect the Young Lawyers Division member of the Board, to succeed Katie O’Sullivan next. The BOG interviewed two candidates, and elected Jason Vail to the three-year term. Speaking of the YLD, its leaders gave the Board their annual report, full of awards and public-service work. John Brangwin, another eastern Washington member, takes over as its president in September.

The Court Rules and Procedures Committee, which is in charge of revising and amending all the court rules (duh), presented the Board with some ideas on changing the rule about unpublished appellate opinions not being citable or having precedential value in Washington. The trouble is, some of the online services report them. So they are there to be widely seen, but not used. Opinion was divided and the discussion was long. The Board asked the committee to come back in July with something more precise. Committee chair David Swartling also asked the Board to consider a task force to look at the kudzu-like proliferation of local court rules in Washington. The Board so created.

More reports: CLE Director Mark Sideman got a big round of applause for another in a string of annual reports on what appears a highly enterprising and successful management of WSBA’s CLE program. Treasurer Mark Johnson and President-elect Ellen Conedera Dial talked about some financial effects of WSBA’s end-of-the-year move to new digs. Several luminaries brought the Board some American Bar Association resolutions, seeking WSBA support for them at the next ABA House of Delegates meeting. They were intended to start some commitment toward creating a “civil Gideon” right to counsel for basic needs: shelter, sustenance, safety and health, and child custody.

Former WSBA President Ron Ward, Northwest Justice Project’s Deborah Perluss, Equal Justice Coalition’s Scott Smith, and ABA President Michael Greco made a persuasive case, and the Board voted to support the resolutions.

Then the Board made some appointments and accepted a committee recommendation to file an amicus brief in Ehsani, et al. v. McCullough. There was a discussion about what to do about President-elect-elect Bastian’s last year on the BOG. Some suggested he just serve it out and be president-elect (which he will become when President-elect Dial becomes president and President Taylor becomes immediate past-president, is that all clear?). Others thought the two jobs would be too much work. As more and more governors have run for president before their BOG terms were over, there has been some unhappiness with the number of governors who have to be elected by the BOG to serve out short bits of full terms. So they decided to just move Bastian’s seat from one election class to another and run it for a three-year term this August.

Port Angeles

The Board went to Port Angeles, President Taylor’s longtime home, in July. They added a day to the meeting for a planning session. I wasn’t there, but heard it was a forward-looking sort of affair.

In a new agenda item, Governors’ Open Forum, there was a sort of Quaker meeting where the govs talked about nonagenda stuff that had been on their minds. A little thinking out of the box is a good thing. One agenda item got moved into the time slot, resulting in the Board voting to cosponsor a good government website designed to educate the public on what goes into electing Washington judges. A variety of law and groups like the League of Women Voters are behind it, so as to keep it neutral and nonpartisan.

WSBA ABA delegate J.D. Smith, who is always a smart dresser, brought the Board another ABA resolution, this one intended to endorse diversity efforts in law schools to keep up with demographic realities in America. He made a good case and the BOG voted to support it.

Reports: Former WSBA governor Bill Hyslop updated the Board on the work of the Committee on Public Defense, which has a big plate of tasks trying to improve that system. General Counsel Bob Welden came in with the annual Keller licensing fee deduction report. Under a U.S. Supreme Court decision, mandatory bars have to tot up how much they spend on political activities like lobbying, prorate it, and give members an opt-out for that sum. Depending on how long you’ve been in practice, the deduction will be between 60 cents and $3.80. The Board also adopted some tighter policies on member data protection to give us all more choices on how much mail, and e-mail, we get.

Court Rules and Procedures Committee Chair David Swartling and staff liaison Doug Ende brought up some rules to change. First up was the question of what, if anything, to do about unpublished appellate opinions. The federal courts will be moving to allow citation of them in 2007. The idea presented was to allow them to be cited if they’d be citable in the states they come from, but to leave Washington’s unpublished cases officially unpublished. At first there seemed to be some division of opinion about the matter, but Judge Christine Quinn-Brintnall, chief judge of the Court of Appeals, Division II, pretty much drove a stake through the heart of the matter with a series of cogent reasons why the idea sucked. Among them — lawyers having to keep up with thousands of extra opinions a year; old unpublished ones being brought up and used in ways the panel wouldn’t have intended if they had known it would be cited; and the fact that different panels could reach opposite conclusions on the same facts, something incomplete databases of old unpublished cases might not reveal. So the Board went with the limited recommendation, which will go to the Supreme Court.

CR 45 underwent some significant changes to track federal law and deal with subpoena notices. CrR 4.8 made some changes to subpoenaing things in criminal cases to even up the playing field. A bunch of other rules had typos and errors corrected. The Supreme Court will decide which ones to publish for comment, and you can see the full text then.

Next year, Swartling said, the committee will look at the evidence and infraction rules, time issues, e-discovery, and where to put the juvenile rules in the revision cycles. Swartling won an ovation and a gift for three challenging years chairing the committee, and another from staff for completing 15 years as editor of the WSBA Civil Procedure Deskbook.

After a presentation by Treasurer Mark Johnson, the BOG approved next year’s budget, with expenses, penciling out about $18 million. Amicus Brief Committee Chair Bertha Fitzer gave the Board the committee’s recommendation that WSBA file an amicus brief in a marvelously convoluted case about a lawyer who invested in a property with his client, then died. The committee felt the process should be two-staged — that the BOG first vote to do an amicus brief on grounds that the solution, which is not apparent, should come from the Supreme Court; if that passed, the committee would go away and come back with a solution to put in the brief. Former WSBA Governor Steve Tubbs, of Vancouver, urged the Board not to. There was a good bit of skepticism on the Board about voting to file a brief before knowing what it would be trying to do, and in the end they voted not to.

Another issue came up — what to do, if anything, about a local prosecutorial practice of cutting people charging or sentencing breaks in return for contributions to favored charities. Should the WSBA ask the Rules of Professional Conduct Committee for an opinion? Others said the prosecutors were thinking about drafting some legislation, so maybe we should wait. Well, WAPA Liaison Ed Holm said, it’s turning out to be harder than anyone thought because it impinges on all aspects of criminal law and sentencing. So the Board voted to go ahead and ask the RPC Committee to ponder the matter.

Meeting line-up: La Conner, December 8-9; Tumwater, January 11-12; Bellevue, March 2-3; Longview, April 20-21; Wenatchee, June 1; Quincy, July 27-28; and Seattle, September 13-14.

Meetings are open to members. Come watch.  

Lindsay Thompson is Bar News editor and can be reached at barnewseditor@wsba.org.