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2002 FINAL STATELEGISLATIVE PROGRAM
TO: Board of Governors FROM: Barbara Kerr Howe RE: Dealing with Legislative Issues DATE: August 29, 1996 This memo is a response to the questions that have been raised concerning the MSBA Legislative Process. It is intended to supplement materials on the MSBA process for dealing with legislative issues with special emphasis on the handling of items about which the membership may be divided. Background information on the MSBA legislative process (Bylaws Provisions, Standing Rules and Administrative Procedures) are included as pages vi-viii of the 1997 Preliminary State Legislative Program. It is important to recognize that the MSBA legislative process is a dynamic undertaking, intended to confront issues of significance to the legal profession as they arise, to initiate legislative action to address problems in the justice system, and to discontinue involvement on issues that are no longer suitable for active MSBA involvement. The issues contained in the State Legislative Program, may be rearranged according to the following categories: 1) CORE ISSUES with a high degree of membership support on both the importance of MSBA involvement and the position of the Association; 2) MIDDLE RANGE ISSUES which are important to the proper functioning of the legal system, but have disagreement over the proposed solutions, and; 3) CONTROVERSIAL ISSUES in which a segment of the membership disagrees with both the propriety of MSBA involvement and the position adopted by the MSBA Board of Governors. CORE ISSUES Some items are central to the purpose of the legislative programs of organized bars throughout the country. These CORE ISSUES are cited in membership surveys, mentioned in focus groups and the media, and rarely disputed when bar association governing bodies adopt appropriate legislative positions. This group of issues and positions includes: opposing taxes on lawyer commissions and increases in attorney admission and renewal fees; protecting the judiciary’s regulatory oversight of the legal profession; supporting adequate funding of the court system, and; defending the integrity of the judicial selection process. On these CORE ISSUES there is wide acceptance within the MSBA as to the importance of Association involvement and the positions on specific pieces of legislation. Unless there is an indication that a segment of the membership disagrees with the MSBA’s handling of a CORE ISSUE, it is assumed that the Association should maintain its present position. MIDDLE RANGE ISSUES There are some issues which most lawyers agree are appropriate for bar association involvement, but unlike CORE ISSUES, there is disagreement over general approaches to solutions or specific positions on legislation to address these topics. The establishment of a Family Court or Family Division within the court structure, the use of cameras in courtrooms, the appropriate application of alternative dispute resolution programs, and the judicial disabilities process are examples of these MIDDLE RANGE ISSUES. Most lawyers agree that it is the business of bar associations to help mold court structures, to assist in the design of court procedures and to fine-tune methods for evaluating and disciplining judges. The debate on the MIDDLE RANGE ISSUES is over the appropriate method of confronting these topics. In order to build a consensus on solutions to these problems, the MSBA routinely consults its sections and committees for advice. Often issues cross jurisdictional lines where two or more sections may claim that a particular item falls within their area of interest. The normal method of addressing this dilemma is to jointly refer the issue to the competing sections well in advance of the legislative session so that the issue may be hashed out in a deliberative manner. As the General Assembly session draws near, efforts are undertaken to arrive at an acceptable solution. On some issues this approach has worked. The Sections of Delivery of Legal Services, Estate and Trust Law, and Health Law were key players in the successful effort to pass the Durable Power of Attorney for Health Care Decisions Law. At times, however, a solution is elusive. Despite our efforts, the Section of Family and Juvenile Law and the Section of Judicial Administration have not agreed on how to best handle family-related cases within the court system. CONTROVERSIAL ISSUES On some issues, there is heated debate within legal circles on whether or not bar associations should take an active role in the formulation of public policy. These CONTROVERSIAL ISSUES involve topics which concern a large number of attorneys in adversarial settings on a routine basis. The criminal defense bar abhors mandatory sentences and forfeiture laws while prosecutors press for tougher sanctions for offenders. The plaintiffs bar defends full public access to the tort system, while lawyers who represent corporations seek ways to limit their clients’ expenses. Court reformers push for the elimination of contested circuit court elections, while spokespersons for groups that historically have been under-represented in the judiciary defend the process as a necessary curb on majority control of the judicial appointment process. CONTROVERSIAL ISSUES for bar associations usually involve two aggressive groups of attorneys who have diametrically opposed views of what the law should be. Often these groups have roughly the same amount of influence in the General Assembly on a particular issue. Under these circumstances, involvement by a bar association on one side or the other is sometimes critical, enabling one of the factions (with the more reasonable position for lawyers and the public) to gain an advantage in the quest of its legislative objective. In order to prevent this from occurring, the other faction seeks to keep the bar association out of the conflict. CONTROVERSIAL ISSUES provide a true test of a bar association’s mettle in the face of sometimes stinging criticism from the affected members. In order to protect itself from criticism from within its membership that the decision making-process is slanted, the MSBA Committee on Laws gives interested parties numerous opportunities to state their case as to why or why not the Association should be involved in an issue and what, if any, the position should be. Once opinions are stated and written materials are distributed, the Committee on Laws uses a three-question test before recommending a course of action: 1) "Is it good law?"; 2) "Is it good for the public?"; and, 3) "Is it good for lawyers?". If the answer to all these questions is "Yes," then the Committee on Laws normally makes a recommendation to the Board of Governors in support of a proposal. In some cases the Board of Governors repeats this process before adopting a formal position on behalf of the Association. Once a decision by the Board of Governors is made, the issue is given to the staff for implementation. In light of our recent past, we are considering adding a fourth question: 4) "Is it good for the MSBA?" * * * * There are some issues that clearly fall outside the realm of bar association involvement. Legislation dealing with state personnel policy, local liquor licensing, education spending and bond bills for construction projects are just a few of the myriad of bills that do not concern organized bar interests. Many other issues such as abortion, welfare, economic development, transportation policy may have individual lawyers who fervently desire MSBA involvement, but are not included in the Association legislative program unless they are shown to have an impact on the practice of law or the functioning of the justice system. Then there are those issues that routinely involve many lawyers and the courts that may be appropriate for MSBA action, but which the Association has chosen to avoid. Examples of these issues are gun control, correctional policies, most family issues, land use policies and most health care issues. Bills concerning these items are referred to MSBA sections and committees for review and possible action by these groups. It is important to recognize that the MSBA legislative process has been designed to encourage a free flow of information between sections and committees, local and specialty bars and the Board of Governors, while maintaining a strict process for the adoption of an Association-wide position. Sections in particular, are seen as a fertile source of new ideas for the development of legislative initiatives. Sections have autonomy in taking stances on bills that fall within their area of expertise. Unlike some other state bar associations, the MSBA does not require Board of Governors approval before sections may adopt a section position on legislative proposals, so long as it does not conflict with a policy or position of the Board of Governors. In most cases the Board of Governors seeks the views of one or more sections on particular issues before it adopts a formal position on a specific piece of legislation. The MSBA Committee on Laws meeting held in August, the first substantive meeting of the 1996-1997 Board of Governors in September, and the Local and Specialty Bar Conference in September are all part of the MSBA’s legislative process. It is important that the MSBA conduct a full and complete discussion of controversial issues on these occasions. I encourage all of you to participate in this process.
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