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AGLO 1973 No. 36 - March 13, 1973
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Slade Gorton | 1969-1980 | Attorney General of Washington

COURTS ‑- SUPREME ‑- JUDGES ‑- LOBBYING ‑- INITIATIVE 276

Definition of "lobbying" by a state court judge under §§ 16 and 19 on Initiative 276; registration and reporting requirements.

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                                                                  March 13, 1973

Honorable W. L. Brown, Jr.
Judge, Department Eight
The Superior Court, State of Washington
Tacoma, Washington                                                                                                               Cite as:  AGLO 1973 No. 36

Dear Judge Brown:

            This is written in response to your recent request for an opinion responding to a question with respect to lobbying under Initiative No. 276 which we paraphrase as follows:

            May a state court judge contact a member of the legislature concerning legislation affecting the judicial branch of state government without registering as a lobbyist or reporting this contact when the contact is made outside of normal working hours and the judge will be receiving no compensation or reimbursement from any source for his services or expenses involved in making that contact?

            We answer this question in the manner set forth in our analysis.

                                                                     ANALYSIS

            Chapter II of Initiative 276, encompassing §§ 15-20, is entitled "Lobbyist Reporting."  In general, the provisions of this chapter relate to all "persons" who engage in "lobbying" as that term is defined in § 2 (16) of the initiative; i.e.,

            "(16) 'Lobby' and 'lobbying' each mean attempting to influence the passage or defeat of any legislation by the legislature of the State of Washington, or the adoption or rejection of any rule, standard, rate or other legislative enactment of any state agency under the state Administrative Procedure Acts, chap. 34.04 R.C.W. and chap. 28B.19 R.C.W."  [[chapter 34.04 RCW and chapter 28B.19 RCW]].

             [[Orig. Op. Page 2]]

            The word "person" is defined in § 2 (19) to include:

            ". . . an individual, partnership, joint venture, public or private corporation, association, federal, state or local governmental entity or agency however constituted, candidate, committee, political committee, political party, executive committee thereof, or any other organization or group of persons, however organized."

            The term "lobbyist" is defined in § 2 (17) as follows:

            "'Lobbyist' includes any person who shall lobby either in his own or another's behalf."

            In determining what persons and activities are included within the various definitions set out above, it is equally important to identify those persons and activities which are expressly excluded from this portion of the initiative.  Section 16 exempts specific persons and activities in varying degrees from both the registration and the reporting requirements of §§ 15-20 as follows:

            "Exemption from Registration.  The following persons and activities shall be exempt from registration and reporting under Sections 15, 17, 19, and 20 of this act:

            "(1) Persons who limit their lobbying activities to appearance before public sessions of committees of the legislature, or public hearings of state agencies.

            "(2) News or feature reporting activities and editorial comment by working members of the press, radio, or television and the publication or dissemination thereof by a newspaper, book publisher, regularly published periodical, radio station, or television station.

            "(3) Lobbying without compensation or other consideration:  PROVIDED, such person makes no expenditure for or on behalf of any member of the legislature or elected official or public officer or employee of the State of Washington on connection with such lobbying.  Any person exempt under this subsection (3) may at his option register and  [[Orig. Op. Page 3]] report under this act.

            "(4) The Governor.

            "(5) The Lieutenant Governor.

            "(6) Except as provided by Section 19 (1), members of the legislature.

            "(7) Except as provided by Section 19 (1), persons employed by the legislature for the purpose of aiding in the preparation and enactment of legislation.

            "(8) Except as provided by Section 19 elected state officers, state officers appointed by the Governor subject to confirmation by the Senate, and employees of any state agency."

            Finally to be noted before turning to your specific question is § 19 of the initiative which reads, in material part, as follows:

            "(2) Unless expressly authorized by law, no state funds shall be used directly or indirectly for lobbying:  PROVIDED, this shall not prevent state officers or employees from communicating with a member of the legislature on the request of that member; or communicating to the legislature, through the proper official channels, requests for legislative action or appropriations which are deemed necessary for the efficient conduct of the public business or actually made in the proper performance of their official duties: PROVIDED FURTHER, that this subsection shall not apply to the legislative branch.

            "(3) Each state agency which expends state funds for lobbying pursuant to an express authorization by law or whose officers or employees communicate to members of the legislature on request of any member or communicate to the legislature requests for legislation or appropriations shall file with the commission quarterly statements providing the following information  [[Orig. Op. Page 4]] for the quarter just completed:

            "(a) The name of the agency filing the statement;

            "(b) The name, title, and job description and salary of each employee engaged in such legislative activity, a general description of the nature of his legislative activities, and the proportionate amount of his time spent on such activities.

            "(c) In the case of any communications to a member of the legislature in response to a request from the member, the name of the member making the request and the nature and subject of the request.

            "The statements shall be in the form and the manner prescribed by the commission and shall be filed within thirty days after the end of the quarter covered by the report."1/

             Unquestionably, a judge of a state court of record is both a "person," as defined in § 2 (19), supra, and an elected state officer for the purposes of § 16 (8) and § 19.  For the purposes of your question we will assume that the described contact between such an officer and a legislator "concerning legislation affecting the judicial branch of government" would constitute "lobbying" as defined in § 2 (16),supra.  In addition, we will also assume that in describing this contact as being one made "outside of normal working hours" and for no compensation, you intend to impart the idea that the judge in question is acting in an unofficial capacity at no public or other expense.

            If this is so ‑ i.e., no compensation or other consideration of any kind is received and the individual  [[Orig. Op. Page 5]] in question, even though a state officer, is not acting as such in making the particular contact ‑ then it follows that the activity in question is wholly exempt from either the reporting or registration requirements of the initiative.  Simply stated, we do not believe that merely because an individual is a state officer or employee he must in all instances be regarded as acting as such when communicating his thoughts on pending legislation to a member of the legislature.

            On the other hand, if a state court judge or other state officer or employee in thus "lobbying" purports in any respect to speak in his official capacity and not as a private citizen, he will, of course, then be governed by the provisions of § 19,supra, and thereby be required to comply with its reporting requirements and its restrictions upon the scope of permissible contacts with members of the legislature.

            It is hoped that the foregoing explanation of this matter will be of some assistance to you.

Very truly yours,

SLADE GORTON
Attorney General


PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/Subsection (1) of § 19, omitted above, pertains solely to legislators and employees of the legislature itself.

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