March 2001

The Board's Work

by Mark A. Panitch
Bar News Editor

Our January Board’s Work column reported that Governor Victoria Vreeland seconded the motion to support the posthumous admission of Takuji Yamashita to the Washington State Bar. In fact, Governor Vreeland made the motion, and has been among the most active supporters of the Yamashita admission. We regret the error. Readers can find more about Takuji Yamashita on page 22 of this issue.

The Board of Governors (BOG) met February 9 and 10 in Gig Harbor. After months of discussion and debate over adding a "minority" seat to the board, the governors have agreed to create two new at-large seats for "underrepresented" groups. Several BOG members voiced uncertainty about who constitutes a member of an underrepresented group. Nominees for the seats will be considered from ethnic minorities and other underrepresented groups that have fought for years for representation on the BOG.

Over the past months, BOG members have debated the need for a dedicated minority seat, and last September voted to create one. However, at the December and January meetings, WSBA General Counsel Robert Welden opined that dedicated "racial minority" seats would violate several constitutional requirements.

Governor William Hyslop (Spokane) urged the Board to put the matter over to allow members to review it. Governor S. Brooke Taylor (Port Angeles) agreed that the matter was unripe, suggesting that the BOG should hear from the minority bars. "This may be the most significant thing I deal with on the board, and I don’t think that putting it off will cause any harm." However, several others, including Governors Lucy Isaki (Seattle) and Jenny Durkan (Seattle), argued that the BOG has been debating the issue for over a year and was ready to vote for a minority seat at the last meeting. "The longer we wait, the longer it will take us to diversify," Governor Durkan warned.

A motion to create the two new seats was made by Governor Lindsay Thompson (Seattle), who told the BOG that "circumstances allow us to do something really remarkable." The vote in favor of adding the new seats was 8-0, with Governors Hyslop and Osborne abstaining. Bar News will carry an extended article on this important event next month.

Robert Boruchowitz, president of the Washington Defender Association, updated the board on the status of the public defense system in Washington. He referred to his presentation as a "report from the trenches." He reported that since every county is responsible for establishing its own public defender program at the trial court level, there are as many systems as there are counties. Despite the fact that public defense standards were written in 1984 and counties were required to adopt standards in 1989 (RCW 10.10.030), there are still counties without clear standards. He noted that Chelan County had only adopted standards in early February. Part of the problem is lack of funds, with state dollars going to support the appellate defense program, and counties required to support public defense at the trial level. Nevertheless, "standards have made an enormous difference."

He also noted that:

• With three-strikes and two-strikes cases now coming before the courts, "we are chock full of status offenses."
• Many courts around the state routinely deny counsel to defendants "by asking defendants to waive counsel and plead guilty." Most of these cases are in district and municipal courts, and most defendants are among those least able to withstand pressure from the bench.
• The biggest problem is simply that public defenders’ caseloads are too high and pay is too low. Flat-fee contracts — which are favored by local government — are a disincentive to try cases and hire needed experts and investigators.
• Recent proposals in King County and elsewhere to reduce standard-range sentences for many drug offenses and divert many cases from jail to treatment would be far less expensive, possibly saving millions of dollars. He cited two examples of harsh sentences — 21 months for a first-offense sale with an additional 24-month "enhancement" if the sale occurred within 1,000 feet of a school.

In other business, President Jan Eric Peterson reported that the discipline backlog has finally been conquered, but at the price of having a record number of formal cases open. He anticipates that the Oregon and Idaho Bars will have reciprocity programs in place by late summer.

Governor Ken Davidson (Kirkland), BOG liaison to the King County Drug Law Study Group, urged the board to take a more formal role in the process. Governor Thompson, reporting his own experience as a deputy prosecutor, said: "The system rewards a high body count. There’s no time to build cases against people doing really serious damage." Governor Isaki moved that the BOG go on record as supporting "King County Bar Association efforts to explore treatment alternatives to confinement for [minor] drug crimes." The vote in favor was unanimous.

By unanimous voice vote, the BOG agreed to support HR 4570, a bill that would repeal tax treatment of emotional damage awards in employment cases as gross income. Governor Davidson urged the BOG to write to Representative Jennifer Dunn (R-Bellevue), asking her to co-sponsor the bill. He noted that it is supported by both plaintiffs and defense bars because the current law makes it overly difficult to settle cases.

By unanimous voice vote, the BOG went on record in opposition to plans by the state Department of Corrections to close prison law libraries.

WSBA legislative advocates John Fattorini and Gail Stone reported that amendments to the Trust and Estate Dispute Resolution Act (TEDRA), supported by the WSBA, passed the Senate Judiciary Committee and are now on the floor awaiting a vote, but may be in trouble due to sudden opposition by King County Commissioner Stephen Gaddis.

They also reported that the Board for Judicial Administration is still supporting legislation to allow elected judges from any court in the state to sit as judges pro tem in any other court in the state. WSBA Court Improvement Committee Chair Kirk Johns is working with the Board for Judicial Administration to craft legislation that the WSBA can support.

In addition to her duties as WSBA Board of Governors liaison, Lisa KauzLoric acts as "tour guide" in Port Townsend.

Back to table of contents >>