December 2004

Justice in Jeopardy

Rendering the Service of Ensuring Adequate, Independent, Stable Court Funding

by Ron Ward, WSBA President

Numbers ...

50 — Washington’s ranking, dead last, among all 50 states in America with regard to the percentage of funding from the General Fund apportioned by the state government to the operation of the trial courts.

10.6 — The percentage Washington state pays of total judicial and legal service costs.

40 — The average percentage all other states in the U.S. pay of total judicial and legal service costs.

.3 — Of 1 percent. The percentage set aside from the Washington state budget to fund all levels of the courts.

85 — The percentage of total judicial and legal service costs in Washington borne by counties, the highest percentage for counties in all states in the country.

204 — Million dollars, the annual deficit gap between what Washington courts and the justice system receive, and what they need to perform effective delivery of court services to Washington’s public.

The Court Funding Task Force

A now nearly two-year intense effort to find ways to improve and stabilize trial-court and justice-system funding in Washington, via the work of a task force inspired by King County Superior Court Judge Deborah Fleck (immediate past president of the Washington Superior Court Judges’ Association), and created by the Board for Judicial Administration (BJA) under the leadership of Chief Justice Gerry Alexander, has nearly completed the first phase of its work. Issuance of the final report of the BJA Court Funding Task Force, chaired by Washington legal system stalwart Wayne Blair, is expected within the next month.

The Court Funding Task Force report will constitute the foundation for what is anticipated to be a long and arduous public-education campaign and a multiyear, multiple-legislative-biennium process to achieve adequate, independent, stable funding for Washington trial courts and to provide equal justice throughout the state.

The Current Status of Funding for the Washington Justice System

The sad, abysmal truth about funding of the Washington justice system has been documented in court studies for decades. Currently, Washington ranks 50th out of the 50 states in this country in state government contribution from the General Fund to funding for judicial and legal services, including prosecution and indigent defense. In a state that prides itself on the progressive nature of its society, this is not something Washington citizens and Washington lawyers can be proud of.

The imbalance has disproportionately affected counties. More than 85 percent of total judicial and legal service costs in Washington are borne by counties, the highest percentage for counties in all states. The state pays just 10.6 percent of total judicial and legal service costs, and sets aside just three-tenths of one percent of the state budget to fund all levels of the courts, the law library, and the Administrative Office of the Courts. THREE-TENTHS OF ONE PERCENT! The current budget crisis has brought both counties and courts to the breaking point.

The annual deficit gap between what various areas of the justice system receive and what they need to perform effective delivery of court services is as follows:

Trial Courts
$53.8 million annual deficit

Indigent Dependent Representation
$13.8 million annual deficit

Civil Legal Aid
$18.3 million annual deficit1

Indigent Public Criminal Defense
$118.1 million annual deficit

The Human Impact

Lest I be misunderstood, I hasten to add that those who ascribe current problems of the justice system merely to a lack of money either fail to appreciate the problem or are practicing purposeful avoidance of understanding. Just a few short years ago in Washington, state coffers held a multi-billion-dollar surplus. All of the problems of the justice system were existent then and they were not addressed. Inevitably those problems have evolved in some respects to a near-catastrophic state. Evidence the recent unconstitutional and disheartening problems in indigent criminal defense, which became the grist for statewide and national media attention. Note the report of the Supreme Court’s Civil Legal Needs Study (funded by the Supreme Court out if its own budget, when the gravity of the legal services problem became apparent, and it could find the money for the study nowhere else), which convincingly documented the fact that one million poor people in Washington with civil legal causes of action go unserved every year. (A link to the report can be found on the WSBA website at www.wsba.org.) We cannot allow the point to be reached where we are forced to shut down family court services, which have a demonstrated ability to provide effective early intervention via counseling and other modalities that salvage families. Without these services, family pathology festers and the problems ultimately explode. Those problems manifest themselves societally in increased DSHS and criminal docket caseloads, where there are constitutional mandates that we pay for them out of taxes. The ultimate beneficiary is the prison-building industry. The ultimate victims are all of us.

The “Lack of Efficiency” and “User Fee” Myths

We are witnessing an increasingly systemic inability of the court system to perform effective delivery of court services. King County closed two district courts, eliminated nearly 70 court positions, and considered cutting the entire District Court Probation Department during budget deliberations at the end of 2002. The department was only temporarily bailed out late in 2003 by talks between the county and municipalities, after it became apparent that the system was in near extremis. Courts across the state have also laid off court staff, considered closing for certain hours during the week, and looked at other budget-cutting measures to respond to state and county deficits. At the same time, these courts are expected to handle increasing caseloads with new and innovative ways of resolving disputes.

This situation cannot be explained simply by stating that the courts need to achieve greater “efficiency.” “Efficiencies” implemented have gone beyond the bone and in some respects are into the bone marrow of the system. As an example of the disproportionality, while criminal-justice costs account for an average of 70 percent of county budgets (costs for jails, courts, prosecution, public defense, and law enforcement), the amount dedicated to the trial courts seldom totals more than six percent of a local budget. The unfortunate fact is that the necessary funding needs of the justice system have effectively been ignored, except when another unfunded mandate has been thrust on its already overburdened shoulders. This is not just a question of money; it is a question of priority and of the primacy of our values as a society. The courts maintain societal rationality, stability, and order. In a state, national, and global society increasingly devoid of all three, it is abundantly clear that we need to rethink and reorder both our priorities and our values vis-à-vis the justice system.

Some clamor that the answer is increasing “user fees” in the system and dedicating the revenues received wholly to the court system. I respectfully disagree. User fees necessarily can constitute only a small facet of what has to be a multifaceted approach to the problem. They are emphatically not the solution, for a number of reasons. First, they are regressive. Second, this approach has been tried in Oregon — our sister state to the south — and it has miserably failed to alleviate the court-funding crisis there. Third, even quadrupling the amounts charged for complaints, motions, etc., would not begin to address the magnitude of the funding problem. Fourth, increasing these fees exacerbates the access-to-justice problem for poor people, and inevitably for the middle class. The fact that even the middle class is being priced out of the legal-services market has been largely overlooked. Finally and most importantly, the purpose of courts is not to dispense revenue, it is to dispense justice. Confusing the two creates an insoluble conflict and is an ominous danger to our government system of checks and balances.

The 2005 Legislative Session in Washington State

As I noted above, the court-funding effort will be a multiyear, multiple-legislative-biennium process. This process will commence in the 2005 session of the Washington Legislature, with legislation being pursued in three primary areas. A short synopsis follows.

Trial Courts. Proposed legislation will include increasing the jury fee and state assumption of half the cost of jury fees; state assumption of half of district court and elected municipal court judges’ salaries; establishment of a trial-court improvement account; and an increase in filing fees.

Indigent Criminal Defense. The package will include proposals for full funding of parent representation in dependencies; state money for training defense counsel; resource attorneys at the Office of Public Defense to provide technical assistance to counties in contracting with defense counsel; and state funds to each county for improving compliance with defense standards.

Civil Legal Aid. Legislative submittals will encompass transferring administration and oversight to a new Office of Civil Legal Aid within the judicial branch, as well as additional funding to address the needs found in the Supreme Court’s Civil Legal Needs Study.

What We Can Do

The legal profession in Washington not only can, but also must, do more than we ever have before.

As noted, budget resources are squeezed in every aspect of the justice system: trial courts, access to justice, and civil and criminal justice. As also noted, remedying this will require a long, careful, well-thought-out, and strategically planned and executed legislative strategy, involving coordination among — and, more importantly, COMMITMENT from — ALL elements of the justice system.

Judges

Judges are the leaders of the justice system. We must continue to support them as a separate, independent, co-equal branch of government, with every resource we have at our disposal. However, success in this endeavor will not be obtained without the full and complete involvement of judges. These are your trial and appellate courts under fiscal and other siege. Again, you are the leaders of the justice system. You have to ask yourselves: What am I prepared to do? There is no room for a culture of passivity. There are few lawyers in the Legislature. But every judge in this state is no more than one degree removed from every legislator in their own communities. Nothing in the canons precludes judges from educating legislators and the community about the needs and role of the justice system and the crucial imperative to maintain the independence of the judiciary. If you have not been active heretofore, now is the time that we need you to give of yourselves to the education of your communities and the legislature, in a manner that transcends any like effort the judiciary has ever made in this state before. The Superior Court Judges’ Association has developed a strategy for its members toward the accomplishment of this end, and I commend you. I also extend plaudits to the members of the judicial ranks who have given so unstintingly of their time and resources in doing the investigation and fashioning the possible solutions that are articulated in the soon-to-be issued final report of the BJA’s Court Funding Task Force.

Make no mistake about it. When judges speak, people listen. We need you to speak now, and to continue to speak. We of the Washington State Bar Association will be right there with you, to ensure that we achieve permanent, independent, stable funding for the justice system.

Lawyers

This is the quintessential area for lawyers to shine as leaders in rendering service to our clients, to the profession, and to the public.

We can do this by becoming the chief spokespersons in our communities all over the state for the achievement of adequate, independent court funding and for the perpetuation of true access to justice. We can do this before local organizations, in our offices, in mailings to our clients, in our civic endeavors, in our PTA meetings, with other parents participating in our kids’ soccer games, and in other social and recreational pursuits. Justice in Jeopardy speakers’ packets are available.2 They include a model speech, draft speaking points, audience handouts, a court funding “Did you know?” fact sheet, and current news articles documenting the court-funding crisis. We can do this by educating and re-educating our clients on the crucial role that the courts and the justice system play in our American way of life.

We can lobby to improve compensation and benefits for judges. They cannot effectively do this for themselves. The fact is that judicial salaries and retirement benefits are demonstrably less than adequate. Washington state ranks near the bottom in retirement benefits for judges. There are no golden parachutes for the judiciary.

What judges make may seem like a lot of money to most people. Despite the fact that their compensation is now set by a commission, increases remain relatively static, given a number of considerations, including, but emphatically not limited to, the cost of living and increasingly burdensome dockets. If one looks at the magnitude and the gravity of the decisions judges must make on a day-to-day basis involving property, liberty, and even life and death, a compelling argument can be made that their responsibilities grossly exceed those of the average corporate executive. Yet there is no comparison in the manner in which we reward those executives vis-à-vis the manner in which judges are paid and compensated. What is required is not stock options or independent wealth, but some standard of reasonably proportionate equity. In an improving economy, the alternative is the continued loss of judges to the more lucrative private sector of alternate dispute resolution. This is not because they do not want to render public service, but because they have the same limits with regard to workload and the same obligations as all the rest of us in terms of family obligations, emergencies, and imperatives. At some point for any human being, service alone may no longer suffice. Judges are no exception. We must continue to have the absolute crème de la crème sitting in judgment in our courts, if we wish to maintain the stability, order, and service of our system. Again, this is a question of our priorities and the primacy of our societal values.

We can acquaint ourselves and get involved personally with the legislators who represent our communities, for the purpose of educating them about the justice system, and about the importance and appropriate priority adequate court funding should have in the legislative process.

Let’s Get It Done

The Washington State Constitution mandates sufficient taxing authority and implementation to sustain the general welfare, stability, and order. This certainly includes a mandate for adequate funding of Washington’s justice system. Let’s come together and get it done.

The question is not whether we can; it is whether we will. We can and we will, because working together, there is nothing we cannot change for the better.

Ron Ward may be reached at rrw@admiralty.com or 206-624-8844.

NOTES
1 The total unmet funding need for civil legal services is $28.1 million, of which $18.3 million has been identified as attributable to legal needs for which assistance is authorized using state funds.

2 Please contact Wendy Ferrell with the BJA’s Court Funding Public Education Committee at 360-705-5331 or wendy.ferrell@courts.wa.gov. 50.

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