WA State Bar Association v State :: 125 Wn2d 901
Category: Separation of Powers
Comes now the Supreme Court to consider the all-important doctrine of separation of powers. The same justices who have liberally legislated from the bench now guard jealously against the Legislature’s intrusion into their domain: the administration of the Bar. According to Justice Anderson, who wrote the majority decision, the issue before the court is:
Is legislation which directly and unavoidably conflicts with a court rule governing Bar Association powers and responsibilities constitutional?
The way the issue is framed one would almost have to agree with the court and answer in the negative. However, the real issue before the court is whether the legislature was exercising their proper authority by regulating the employment practices of a public employer. Clearly, by law and Constitution, legislating employment practices within the government bodies is the domain of the legislature. The mere fact that these employees are employed by the judicial branch does not remove employment practices from legislative jurisdiction.
If the issue would have been framed properly it would have been closer to this:
Does legislative regulation of employment practices and collective bargaining agreements within the Bar Association violate the separation of powers doctrine?
Form a strict constructionist perspective, one would have to answer “no.” The legislature was clearly acting within its constitutional authority. In his dissent, Justice Dolliver pointed out that the Bar is already subject to various state employment statutes, which are legislative and administered by executive agencies. Furthermore, the Bar “is treated as a public employer for the purpose of state employment programs, such as the Public Employees’ Retirement System . . . ” [at 911].
This legislation did not change the face nor the practice of law. Thus it does not violate the separation of powers doctrine. The fact that it conflicted with a published rule of the court only gave evidence that the court had overstepped its bounds by establishing a rule that was clearly ultra vires, or out of its jurisdiction.
Rating the Usual Suspects:
| pass | Daniels, Spencer | |
| pass | Dolliver, James | |
| pass | Gregoire, Christine | |
| pass | Heath, Richard | |
| pass | Madsen, Barbara | |
| pass | Smith, Charles | |
| fail | Anderson, James | |
| fail | Atkins, Linda White | |
| fail | DeVore, Cameron | |
| fail | Durham, Barbara | |
| fail | Guy, Richard | |
| fail | Johnson, Charles | |
| fail | Kopta, Gregory J | |
| fail | Rummage, Stephen | |
| fail | Utter, Robert |