County’s Hands Tied on Excessive Forest Clearing

July 9, 2008

RCW 82.02.020 is an example of the ways in which the stong hand of special interest lobbies in Olympia affect folks in Washington. This law says in pertinent part that

no county, city, town, or other municipal corporation shall impose any tax, fee, or charge, either direct or indirect, on the construction or reconstruction of residential buildings, commercial buildings, industrial buildings, or on any other building or building space or appurtenance thereto, or on the development, subdivision, classification, or reclassification of land.

Meanwhile King County adopted its Clearing and Grading Critical Areas Ordinance in 2004 pursuant to the Growth Management Act (RCW 36.70A.060(2)) which required it to adopt regulations to protect its critical assets. Generally speaking the ordinance prohibited clearing more than 50% of rural lots with a number of qualifications and exceptions.

Before adopting this regulation the County undertook a number of studies and consulted with experts to verify that excessive clearing had negative impacts on stream health, wildlife, and critical aquifer recharge areas in the County.

The ordinance was challenged by a property rights groups that contended that the blanket prohibition against clearing was an improper indirect charge under RCW 82.02.020.

The County said that this was not a tax but a justified regulation, presenting 24 journal articles and several experts who identified the harm sought to be avoided and vouched for the efficacy of the regulation in terms of avoiding the harm.

The trial court sided with the County but the Court of Appeals did not. In Citizens Alliance for Property Rights v. Ron Sims

the court held that the bar against excessive clearing was prohibited by statute. The decision seems quite sound to me, relying on well established pro-development case law. Without disregarding precedent, the court could do little else. (Personally I would like to see the court start whittling away at the existing law.)

What is important here, I believe is that local decision regarding the environment, urban sprawl, habitat, and water issues are fairly commonly thwarted by the state legislature which in turn is rather shockingly influenced by special interests, particularly the building industry which pushed through the legislation giving developers a preferred tax status.


The B.I.A.W. and the Coming Judicial Election

April 2, 2008
For the last several years the Building Industry Association of Washington has probably been the most powerful lobby in Washington. This was reported in November 2003 by this newspaper and it remains true today. The Seattle P.I. which seems to be keeping tabs on this group, noted Monday that B.I.A.W.’s March newsletter contains a venomous, hate-filled diatribe against ecology minded people, apparently linking them all together with eco-terrorists and a viscous attack against the governor. There is a link to newsletter in the P.I. editorial.I will write quite a bit about this later but for now I want to call attention to a couple of things that I will later describe more fully. The B.I.A.W is extremely political and closely, but not directly, aligned with the Republican Party. For example the number one agenda item for B.I.A.W. this year is the election of Dino Rossi. The second most important item is the judicial election of three State Supreme Court members. The B.I.A.W. is looking particularly closely at the seat occupied by Justice Mary Fairhurst. It said that the two issues that it is considering in connection with this election are property rights and public disclosure.Public disclosure? I had been unaware of any interest by B.I.A.W. in public disclosure law. The B.I.A.W was hugely involved with the legislature and public disclosure law was nowhere on its list of topics. It did not publicly advocate for to the legislature for changes in the public disclosure law, where ordinarily these changes would be made. After thinking about this a while, I have a theory: to some degree this “issue” might be staged.In late December last year the Court published an opinion called Soter v. Cowles Publishing Company. The case received publicity, particularly on the East side of the state. It involved the routine matter of interpreting the Public Disclosure Act and the scope of a well recognized legal privilege. The case was brought by the Spokane-Review to try to force a school district to divulge privileged papers relating to a wrongful death lawsuit that had been settled. The Court’s holding said in essence that if newspapers wanted this right they would have to go to the legislature to get the law changed, an apparently conservative holding.

Charles Johnson is a highly respected jurist, generally regarded as one of the conservative justices on the Court and he is running for re-election as well. He wrote a strident sounding dissent in Soter and according to the Olympian actually issued a press release about his dissent at the time that he announced that he was running for reelection. (Justice Fairhurst voted with the majority in the opinion and appears not to have issued a press release.)

Justice Charles Johnson is likely to be supported by the B.I.A.W. because of his conservatism. Justice Fairhurst is likely to be targeted. She wrote the dissent in Anderson v. King County, arguing that it was unconstitutional to withhold the right to marriage from gays. As you recall this was a 5 to 4 decision with Justice Johnson voting with the narrow majority.

I do not see how the interpretation of the public disclosure law is a legitimate judicial campaign issue, as the law was made by the legislature, but if the B.I.A.W. pursues this, it does serve a number of interests. Putting aside the oddity of conservatives arguing that the courts ought to be expanding the scope of legislation, this would put them on the side of the media, a highly desired ally. While I am not aware of any doctrinal chasm between Justices Fairhurst and Johnson on this matter of legislative interpretation, the Soter case could be spun to make them appear to be on opposite sides of an important issue, so the B.I.A.W. could at once bolster Justice Johnson’s candidacy while attacking Justice Fairhurst. This sounds like it might be a politically adept move, but I still need to find out how this issue is anything but a red herring, mere manipulation to try to get a political result. If the B.I.A.W pursues this, I guess I will find out.


Washington State: Haven for Special Interests

March 30, 2008
It is my impression that Washington, more than perhaps any other state, is led by special interests. My impression is based in part at least on my law practice which focuses on real estate and business, so my awareness of this influence is pretty much confined to those areas.Let me give you a few examples of what has given me the impression that special interests are more influential here than most other places.
Perhaps my most shocking moment practicing law occurred when, during oral argument before the State Supreme Court, a representative of the insurance industry pointed to the justices and told them that his people were closely looking at how each one of them voted on this case and the insurance industry would be heard from come election time. (I am paraphrasing here but this message was loud and clear.) I thought that this was a truly shocking insult to the integrity of the court, but the justices said nothing.
In the area of construction law Washington is I believe the most repressive with respect to consumer rights. Did you know that if a building or bridge collapses six years after it is permitted, there is absolutely no recourse against anyone in the construction industry, including builders, suppliers, architects, engineers, even surveyors and anyone one else claiming to be in the industry? Condominium owners have no recourse if their building collapses four years after it was permitted (although this is a little murky). In Washington, at least with respect to being able to enforce warranties and representations, all the talk about the useful life of structures is bogus. After six years (four for condos) no one is responsible.This is the result of Washington’s statute of repose, which is jokingly said to have received that name named because people had to be asleep for the legislature to get the law through.
Other states have statutes of repose. These were pushed through state legislatures by an unprecedented lobbying effort on the part of the insurance and building industries in the 1960’s. Washington’s four year statute for condos and six years for absolutely everything else is extremely rare among the states and may be the shortest of any state. If you buy a new condo you should know that you are stuck if anything (however disastrous) goes wrong four years after the permit was granted, which is ofter about two or so years after it is filled.
To give you a sense of the influence of the building lobby, in Washington say a school building collapses six years after completion and kills a child whose watch stops for no good reason. There would be no recourse against anyone in the construction industry but the parents could sue the watch manufacturer for the cost of the watch. Personal property here has a twelve year (or the useful life of the product) statute of repose.
Perhaps the best indicator of the exalted state of special interests here is that when three sitting justices of our State Supreme Court announced last week that they were seeking reelection, the newspaper interviewed not a law professor or someone who practices before the court, but a representative of B.I.A.W., the building industry lobby.

Government Transparency

March 19, 2008

Seattle City Councilmember Nick Licata wrote and cosponsored a bill that amazingly enough required lobbyists for the first time to have to register before undertaking to lobby City government. This is his description of that process:

 

LOBBYIST REGISTRATION ORDINANCE

This Monday, March 17, 2008, the Council unanimously passed Council Bill 116154, the lobbyist registration ordinance. I developed this ordinance, and sponsored it, along with co-sponsors Tim Burgess, Richard Conlin, Jean Godden, and Tom Rasmussen.

 

PURPOSE/BACKGROUND

The purpose of the ordinance is to provide greater transparency in government, protect public confidence in government, preserve the integrity of the legislative process, and enable the public to see who is being paid to lobby elected officials. Seattle does not have a lobbyist registration ordinance, unlike every other major city on the West Coast: Portland, San Francisco, Oakland, San Jose, Sacramento, Los Angeles and San Diego all have lobbyist registration ordinances.

For a number of years I believed this needed to be rectified. I started working on such legislation in 2002 and testified before the Seattle Ethics and Elections Commission (SEEC) at that time on a prior version. Years before that another version had been brought before them but it was abandoned because a provision to track grassroots lobbying campaigns might discourage citizen groups in communicating with elected officials. I ran into the same problem in 2002 and in 2007 as well, when some citizen activists thought the legislation was too broad and should be narrowed.

In 2007 I began with a new draft and held a briefing in August in my Public Safety Committee. The following month I hosted a brown bag discussion at City Hall with over 2,000 invitations sent out. Representatives from Washington State, King County and Portland talked about their programs. That fall I met and had discussions with individual citizen activists, and communicated with members of the League of Women Voters and other groups, and gave presentations before Municipal League and other community groups.

As a result over a dozen versions of the ordinance were produced to meet most of the concerns that were raised. Although I felt at times that as each one was addressed the most serious shortcoming of the legislation, a new one would be identified as a must change. Because of the budget period beginning in the fall, I had to put off the ordinance to this year.

But in late 2007, during my term as Council President, I began having the sign-in sheets to the Council offices posted on the Council*s website. Many meetings between Councilmembers and City departments take place in the Council offices, so this allowed the public to see when city departments were meeting with Councilmembers.

I began January with a version that incorporated most of the recommendations, including dropping the grassroots lobbying section, and met again with SEEC. The much amended ordinance was passed by the Culture, Civil Rights, Health and Personnel Committee on February 27, 2008, and I believe now reflects the best practices for lobbyist registration ordinances. Laws in Portland, San Francisco, Los Angeles, San Diego, San Francisco, Denver, Sacramento, Austin, Madison, New York, and Columbus were reviewed in developing this proposal.

SUMMARY OF ORDINANCE

The ordinance requires lobbyists to register if they meet two conditions: 1) they are paid, and 2) they lobby at least four days during a quarter. This is the standard used by Washington State.Lobbying constitutes communication with Councilmembers, the Mayor, and their staff in an attempt to influence them to develop, propose, adopt or reject legislation. The ordinance requires disclosure of who is lobbying, who is paying them to lobby, and the subject and specific legislation they are lobbying on.

The Seattle Ethics and ElectionsCommission will be responsible for administration and enforcement. The reporting requirements are designed to be reasonable, and to use forms similar to those used by the State Public Disclosure Commission. The ordinance will go into effect in 180 days, or 30 days after SEEC adopts rules, whichever comes first. This is to allow sufficient time for implementation.

The ordinance requires the registration of public employees who are specifically employed to lobby, or lobbyists who are retained by an agency of government. Other public employees are exempted. This standard was based on the King County ordinance. Persons who limit lobbying to public sessions are also exempt, as are collective bargaining activities by labor organizations.

IN PURSUIT OF THE PERFECT

I thought writing this legislation should be fairly straight forward since both King County and Washington State have similar laws on the books and we adopted most of their features, recognizing that there were differences between them. In fact in reviewing other municipal lobbying legislation, there is considerable variation in exemptions, definitions, applications, and enforcement. It is difficult to say which is best.

Some reviewers of my legislation, like the Chamber of Commerce, suggested the ordinance be narrowed so as to not include lobbying *on behalf of others*; this could exempt, for example, developers who lobby for themselves (e.g. Industrial Lands, Downtown rezone, would have exempted many of the people lobbying.) I did not include this proposed change.

Others, like the SEEC, wanted employees of other government agencies to register as lobbyists rather than just their designated lobbyists, and some citizen activists wanted city employees to register as well. There was no support for either recommendation on the Council, I think for practical reasons. Elected representatives are paid to communicate with all types of government employees including those from other government bodies. Each communication, including emails, could conceivably have to be listed if someone felt it was influencing legislation. The amount of paper work generated could be staggering. I think that is the reason we have not found other municipal lobbying laws including those provisions.

It*s also noteworthy that among the 48 criteria the Center for Public Integrity used in determining that Washington State had the best state lobbyist registration law in the USA, they made no mention of requiring other governments or employees of a government to register.

My goal has been to get an ordinance passed so that at least Seattle would be on a par with other major west coast cities. This ordinance will accomplish that goal. Once it is up and running and we see how it works in practice, we can examine improvements. Ethics and Elections is required to issue an annual report to the City Council on the effectiveness of the ordinance. This will give us the tool we need to see how it works, and what to look at in the future.