December 2002

On the Brink: Legal Services and the Courts

by Dick Manning, WSBA President

The Apartment: Judy and Her Three Children

Judy was a single parent living in an apartment with her three children. She struggled to support her family on her modest income, to keep food on the table, and to provide her children with basic necessities. Because of her modest income, she received the benefit of Section 8 federal housing assistance.

Not long ago, while she was getting her children ready for school, she heard the sound of water gushing, followed by the stench of raw sewage. A sanitary pipe had ruptured and was spreading its contents around her apartment. She left repeated messages for the landlord asking for assistance. None was forthcoming. She gathered her children, some clothing and personal items for the next couple of days (that's all she could afford), and moved into a cheap hotel. To compound her anxiety and loss of her family's meager possessions, when she contacted the Federal Housing Authority (FHA) to explain her problem, she was advised that she was in danger of losing her federal subsidy. She and the children were now homeless, and would soon be out on the street.

There is some real-life drama here. To the rescue came CLEAR, a program of the Northwest Justice Project (NJP). NJP is one of many partner organizations including pro bono and specialty provider organizations, Columbia Legal Services, law school clinical programs, law libraries and other equal-justice entities that, together, form a statewide, coordinated civil equal-justice delivery system in Washington. NJP receives federal funds from the Legal Services Corporation. It also maintains the statewide CLEAR (Coordinated Legal Education Assistance and Referral) system as well as several staffed field-service offices in key areas around the state. Those offices provide civil legal services for the poorest and most vulnerable people in Washington. Due to inadequate resources, the existing delivery system has the capacity to serve only a fraction of the people in need.

But back to Judy and her children. CLEAR intervened with FHA and helped Judy and her children obtain a new Section 8 subsidy voucher and emergency assistance for temporary alternative housing; the housing authority supervisor kept the office open late so Judy could obtain the benefits of this emergency assistance. CLEAR was also able to assisted her in finding counsel to seek restitution from the recalcitrant landlord who had failed to remedy the contamination caused by the ruptured sewage pipe.

The foregoing is a true story and just one example of the many thousands of clients assisted by our civil equal-justice delivery system, which is supported with federal, state, IOLTA and private-sector funding. The grim fact is that in 2003 there is a good chance that if the same catastrophe were to befall Judy and her children again, they would be on the street, and this time there would be no legal assistance.

Recently, the largest legal-messenger service in King County sent a notice to its subscribers that they could expect to wait anywhere from two to 10 weeks after their pleadings were filed in a district court in South King County before the pleadings were docketed. The court is drastically understaffed because of county budget restraints. The county has announced it will close two district courts before the end of this year because there simply isn't the revenue to support them. In King County, the law-and-justice budget consumes approximately 70 percent of all general-fund revenue. The counties are charged with the responsibility of providing the entire financial support of the district courts and all but one-half of superior court judges' salaries. The counties are not to blame for the crisis thrust upon them.

Judge Gordon Godfrey is the Washington State Superior Court Judges' Association guru on mandates thrust upon our courts by the Legislature and our voters. Far from adequately funded, Washington ranks 50th among all 50 states in its financial support of its state courts. Judge Godfrey has assembled a scholarly collection of data which indicates, for example, that criminal-justice costs have increased 85 percent between 1989 and 1996, yet funding only increased to cover 18.5 percent of these increased costs. And that is only for the criminal justice system. Mental health and domestic violence are just a few of the additional tasks imposed on the courts with little or no funding.

In the 2002 legislative session, the Legislature faced a $1.2 billion dollar shortfall in revenue. This resulted in a drastic cutback in services of all kinds. One victim was funding for civil legal services for poor and vulnerable people — a 20 percent reduction (nearly a million dollars) compared to 1999 levels. The state cuts are being compounded by a steep decline in IOLTA funds; the decline is a result of the current economic downturn and declining interest rates. The loss of state and IOLTA funding has exacerbated a pattern of reductions and stagnant federal funding over many years. The Legal Foundation of Washington (which administers IOLTA) has recently had to eliminate funding for nine programs, including volunteer legal services in Grays Harbor, Jefferson, Okanogan and Whitman counties — and these are programs where a dollar is leveraged to the maximum: the lawyer services are donated pro bono in those counties. This coming year, the Legislature faces a projected record revenue shortfall of $2.9 billion —more than twice as much as the current year's deficit. The civil equal-justice delivery system's infrastructure — particularly the staffed field-service programs such as NJP and Columbia Legal Services — has never been in greater peril in the history of this state. These staffed services provide much of the coordination and framework for an efficient and effective statewide delivery system. The erosion and loss of this infrastructure will put us right back where we were before President Nixon signed into law the bill that established the Legal Services Corporation in 1973.

Similarly, the district and superior courts are facing crises in varying parts of the state. The demands of the public for more services as it votes to reduce sources of revenue (such as license fees and taxes) will result in terrible hardships for poor people and for the courts.

There is no voice to speak out for a person like Judy and her family, cast out of their home by raw sewage; and there is no political voice for the courts. The Washington State Supreme Court's Task Force on Civil Equal Justice Funding has recommended raising the superior court filing fee to $200 as an emergency interim measure to restore some funding for civil legal services for poor and vulnerable people, and possibly to provide some financial assistance to the courts. As this column goes to press, this proposal has not been vetted by the Board of Judicial Administration, various judicial associations, county officials associations, trial lawyers, and other stakeholders. Although the proposal does not provide a total answer, it would at least bring legal-services funding back to 1999 levels. Given the size of the budget hole that legislators must fill this year, every potential solution is on the table, including a sales tax on professional services or an increase in the B&O tax.

So I am asking you: What should we do? What voice can we give to Judy and other poor people, and what voice can we give to the courts that are so strapped? At this time, an increase in the filing fee seems to be a viable option, but I recognize that any increase can have an adverse effect on access to the courts for some. Are there realistic and politically viable alternatives we can put forward and support? What are they? What would you do?

Dick Manning can be contacted at jmb@seanet.com; fax 206-624-3865; phone 206-623-6302.