June 2004

A Profound and Grave Crisis
The pursuit of blind, affordable justice

by David Savage, WSBA President

In November 1, 2001, the Washington State Supreme Court established the Task Force on Civil Equal Justice Funding. The task force was charged with the daunting task of identifying solutions to the persistent problem of inadequate funding for the programs that provide civil legal services for the low-income and vulnerable people of Washington.

The task force undertook a sophisticated analysis aided by Washington State University's Social and Economic Sciences Research Center and Portland State University's Department of Sociology. In September 2003, it completed the assessment phase of its work and published the Washington State Civil Legal Needs Study. The task force is now challenged with the difficult task of proposing solutions.

The Civil Legal Needs Study documents the profound and grave crisis in the civil justice system in Washington. More than 85 percent of the more than one million annual civil legal problems experienced by low-income and/or vulnerable people of this state go unmet. This burden is felt disproportionately by women and children.

Washington's nationally recognized equal-justice network, including lawyer pro bono, local bar, law school, and specialty clinical programs, together with staffed programs such as Columbia Legal Services and the Northwest Justice Project, have valiantly sought to address these needs — despite a persistent reduction in their funding that began a decade ago and continues unabated. Columbia Legal Services and Northwest Justice Project have reduced staff capacity by 18 advocates since 1999. By the end of this year, Columbia Legal Services will have reduced its statewide staffing by another 49 positions.

It is no surprise to those of us who know Ada Shen Jaffe, director of Columbia Legal Services, and Jim Bamberger, Columbia's assistant director, that they have given themselves termination notices effective at the end of this year, departing from the corporate model of responding to revenue cuts by slashing jobs at the lowest level. Their self-sacrifice, coupled with the dramatic reduction in Columbia's staff, will dramatically curtail Columbia's ability to assist those most in need of civil legal help. Despite the fact that the many partners in Washington's strong equal-justice network are stepping up to the challenge posed by these changes, they cannot provide a comprehensive solution.

While we regularly pledge ourselves to "justice for all," it is a sad irony that we have yet to acknowledge that this core democratic principle requires public funding for the basic civil legal needs of those who would otherwise be without access to our civil-justice system. Certainly, this civic obligation is no less important than the maintenance of our streets and highways, and yet it garners only a fraction of the public concern that the other does.

A number of efforts were made this past legislative session to address this need. Once again, most were unsuccessful. However, a bright spot — $1.9 million in funding for civil legal justice — was the product of the courageous and tireless work of Senators Adam Kline and Stephen Johnson; Representative Patricia Lantz; U.S. Attorney John McKay, Western District of Washington; King County Prosecuting Attorney Norm Maleng; Michael McKay, Seattle attorney and Legal Services Corporation1 board member; and Jeff Sullivan, Chief Criminal Deputy, U.S. Attorney, Western District of Washington. Also critical to this success were the efforts of Chief Justice Gerry Alexander and the other judicial leaders of our appellate, superior, and district courts, as well as those of the WSBA and the other local and specialty bar associations across the state.

Given the immensity of unmet civil legal needs, it goes without saying that this hard-won funding falls woefully short of the mark. Neither these funds nor the IOLTA monies preserved by the pro bono defense provided by Maureen Hart of the Washington State Attorney General's Office and Perkins Coie attorneys David Burman, Nick Gellert, and Katie O'Sullivan (a firm contribution estimated at well over $1 million) will do more than marginally maintain the status quo, a circumstance in which the unmet civil legal needs of our state's poorest and most vulnerable continue to outstrip the resources required to address them.

A disturbing companion phenomenon is Washington's failure to provide for the defense of the needy charged with a criminal offense. This failure was shamefully highlighted in a recent Seattle Times series written by Ken Armstrong with respect to the failure of the public-defender system in Grant County. The series describes both capable and committed but hopelessly overworked public defenders laboring in the criminal, juvenile, and dependency courts of this state, and a few self-serving attorneys who have preyed upon this distressed system to their own economic advantage. Unfortunately, in both cases the constitutional rights and liberties of the clients are at risk.

While the WSBA and the Washington Defender Association recommend that public defenders in the criminal system carry no more than 150 felony cases per year, it is not uncommon in some counties for caseloads to approach 200. Clearly, even the most dedicated public defender can do only a marginal job for his or her clients while laboring under such a load.

This crisis in the criminal justice system is the subject of a Blue Ribbon Panel on Criminal Defense assembled by the WSBA in the spring of 2003. The panel is co-chaired by retired Justice Robert Utter and Marc Boman, a former King County chief criminal prosecutor who currently practices law at Perkins Coie. The panel's report was delivered to the Board of Governors at their May meeting this year.

It should be an embarrassment to us all — lawyers and nonlawyers alike — that Washington ranks at the very bottom in state funding of its trial courts. This state funds less than 11 percent of the costs of operating our superior courts, a calculation which includes the expense of indigent criminal defense representation. A collateral consequence of this embarrassing circumstance is that our counties, which fund approximately 80 percent of our superior courts' budgets and almost 100 percent of the district courts' budgets, often find themselves in competition with one another for the scarce state support for civil and criminal judicial needs.

To address this crisis, the Washington State Supreme Court and the Board for Judicial Administration commissioned the Court Funding Task Force, chaired by Wayne Blair, a distinguished past president of the WSBA. The mission of this task force is to bring about "stable, adequate, long-term funding of Washington courts in order to provide equal justice throughout the state." Wisely, the needs of the public-defender system have been recognized as a component of necessary court funding. The task force is expected to report its findings to the Board for Judicial Administration later this year. Do not be surprised if it reports a court-funding shortfall on the order of $100 million or more.

While the people of this state through their Legislature must step forward and assume responsibility for these critical legal needs, our membership cannot stand idly by. We must make a contribution. It is an overworked complaint that we lawyers are not held in the high regard we believe we once were by the public we serve. Addressing these unmet legal needs and repairing our image and self-esteem are missions that take us down the same path. Though the Board of Governors recently adopted a revision to RPC 6.1 recommending that lawyers contribute 30 pro bono hours annually, it is only an aspirational goal. (The Oregon Bar Association has an annual aspirational goal of 80 hours of pro bono service. The American Bar Association urges lawyers to provide a minimum of 50 hours of pro bono service annually.)

It may also be time for us to consider making a financial contribution. While I am convinced that any thoughtful analysis must conclude that meeting the legal needs of the indigent and the vulnerable is an obligation that must be publicly funded, we would certainly do ourselves no harm by contributing. With an active membership of more than 24,000, a voluntary financial contribution by each lawyer equal to the value of one hour at his/her hourly rate could raise in excess of $4 million annually in support of equal justice. It would certainly give us the high ground in any discussion with our Legislature, and it would serve as concrete evidence of our commitment to ensure a democratic system that delivers on its promise to provide justice for all.

As you know, I have made diversity, inclusion, and enhanced relevance of the WSBA to its members the centerpiece of my term. It would be an empty accomplishment, however, if in our effort to achieve diversity we neglected to bring the full benefit of that change to the public we serve. On occasion, doing so will mean that we must provide our services without compensation and/or underwrite a portion of the cost of legal services for the needy and the vulnerable. It is a small price to pay for our exclusive privilege to practice law.

Not only must justice be blind to race, creed, color, sex, national origin, and sexual orientation, it must not carry a prohibitive price tag. A bit of selfless civic commitment on our part will do a great deal to restore the luster to our public image.

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Dave Savage may be reached at savage2@imsblaw.com or 509-332-3502.

NOTES
1 Legal Services Corporation (LSC) is a private, nonprofit corporation established by Congress in 1974 to seek to ensure equal access to justice under the law for all Americans. For more information, visit the LSC website at www.lsc.gov.

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