I Developments in Washington's Law of Law-Making - Gonzaga ...

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GONZAGA LAW REVIEW [Vol. 44:3 worded constitutional provisions of Wisconsin 185 (from which Washington's article II, section 17 was drawn' 86) and Arizona; 87 specifically, court decisions in both states support a legislative privilege under the speech or debate clause.' 88 On the other hand, in Fossos v. Matheson, Judge Mary Yu of the King County Superior Court summarily rejected the argument that the speech or debate clause in article II, section 17 creates a legislative privilege, though this decision was later superseded by a ruling that the attorney-client privilege protected certain communications between assistant attorneys general and legislative staff. 189 Thus, there is no reported opinion that resolves the question either way. Given apparent trends in litigation, however, it seems likely that the state supreme court will eventually be called upon to address the issue. Staff confidentiality is required by legislative employment policies and expectations.19 0 In addition, of course, legislative staff who are attorneys are bound to preserve client confidences under the Rules of Professional Conduct.' 91 The same 184. Id at2. 185. WIs.CONST. art. IV,§ 15. 186. UTTER & SPiTZER, supra note 21, at 60. 187. ARIZ. CONST. art. lV, pt.2,§7. 188. State v. Beno, 341 N.W.2d 668, 674-75 (Wis. 1984); Steiger v. Superior Court, 536 P.2d 689, 691 (Ariz. 1975); Arizona Indep. Redistricting Comm'n v. Fields, 75 P.3d 1088, 1094-95 (Ariz. Ct. App. 2003). 189. See Fossos v. Matheson, No. 80506-7 (Wash. Sup. Ct., Nov. 29, 2007) (dismissing motion for discretionary review and granting motion for voluntary withdrawal of review); Fossos v. Matheson, No. 61637-4-1, 2009 WL 1110889, at *3-4 (Wash. Ct. App. Div. I April 27, 2009) (affirming trial court's ruling that attorney-client privilege protected the communications in question). 190. Memorandum from the House Office of Program Research, at 1 (Jan. 14, 2003) ("Staff vigorously guard confidentiality and members can be assured that confidential matters will not be disclosed"); Memorandum from the Wash. State Senate Committee Services, at 1 (Nov. 2000) ("SCS staff should assume that information relating to matters of policy, if not publicly available, is confidential . . . . We are expected to maintain the confidentiality of all policy matters under development for Senators."); Legislative Ethics Board, Advisory Opinion No. 1 (Mar. 13, 1998) (advising that unauthorized disclosure of draft legislation and other confidential information is a violation of state ethics laws). 191. The Rules of Professional Conduct adopted by the Washington State Supreme Court, however, are written to govern a more traditional attorney-client relationship, and it is not entirely clear how they apply in the legislative arena. For example, the conflict of interest requirements in the RPC prohibit an attorney from representing clients with opposing interests, but nonpartisan staffers are expected to prepare legislation on a confidential basis for legislators of both parties, with the result that individual staffers fiequently draft legislation for members with opposing, even hostile, intents and purposes. Given the court's claimed exclusive power to regulate the practice of law and the separation of powers principles that permit the legislature to hire staff of its choosing and dictate employment responsibilities, application of the RPC to attorneys who work for the legislature presents an interesting separation of powers question. See Marcello, supra note 4, at 2457-63 (comparison with model rules); Robert J. Marchant, Representing Representatives: Ethical Considerations for the Legislatures Attorneys, 6 N.Y.U. J. LEGis. & PuB. PoL'Y 439, 462-65 (2002-
2008/091 WASHINGTON'S LAW OF LAW-MAKING principles that support attorney-client confidentiality support providing advice on a confidential basis to legislators: sound decision-making through frank communication.' 92 In addition, the confidentiality of draft legislation permits legislators to experiment with ideas that do not yet have a popular following. 193 Therefore, if and when the state supreme court addresses the issue of confidentiality within the legislative process, the court must consider the principles of legislative independence that are at stake. V. THE ELEPHANTAS ROPE: JUDICIAL INTERPRETATION OF DRAFTING RESTRICTIONS: ARTICLE HI, SECTION 19194 The representative democracy created by Washington's constitution deliberately places a number of procedural fetters on the process of enacting legislation. 95 This constitutional "rope" does not restrain the subject matter of legislation but rather the "method, the procedure, the means, or the manner" '1 96 through which the legislature enacts it. Although this article does not attempt to quantify trends in litigation in Washington, it is apparent that Washington is facing more procedural challenges to legislation than in previous decades. 1 97 As these challenges proliferate, so will legislative attempts to cure the underlying disputes. These cases represent another point of intersection between the legislative and the judicial powers. Recently, the courts have decided to uphold the curative legislation instead of addressing the procedural questions. A. What is a Bills itle? In City of Fircrest v. Jensen, 1 98 a divided state supreme court upset several conventional legislative beliefs concerning bill titles. The fragmented ruling conflicts not only with the court's more recent and better-reasoned cases, but also with legislative practices and procedures and legislative drafters' understanding of the 03) (viewing legislature as client to avoid conflicts). 192. See Chaimov, supra note 6, at 190-91. 193. Id at 191; see also WAsH. REV. CODE 1.08.027 (Code Reviser's drafting services are confidential). 194. Two recent law review articles discuss the requirements of article Hl, section 19: Original Acts, supra note 146, at 37-43; Dustin Buehler, Washington's Title Match: The Single- Subject and Subject-in-Ttle Rules of Article II, Section 19 of the Washington State Constitution, 81 WASH. L. REv. 595, 597-609 (2006). 195. E.g., Clayton, supra note 26, at 68-69; Law of Law-Making, supra note 8, at 449-52. 196. State ex rel. Bugge v. Martin, 232 P2d 833, 836-37 (Wash. 1951). 197. See, e.g., Michael D. Gilbert, Single Subject Rules and the Legislative Process, 67 U. Prrr. L. REV. 803, 818-20 (2005) (quantifying increases in single-subject litigation). 198. City of Fircrest v. Jensen, 143 P.3d 776 (Wash. 2006), cert. denied, 549 U.S. 1254 (2007).
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