February 2007

Justice in Jeopardy: Where We Started and Where We Have Yet to Go!

by M. Janice Michels, WSBA Executive Director

In late 2004, a group of judge and lawyer leaders, concerned citizens, and state and local government principals under the able leadership of past WSBA President Wayne Blair issued a seminal report about the status of funding of Washington’s trial courts. The report began by defining the problems in delivering justice in Washington, documenting what adequate funding meant, examining funding alternatives to the current local funding structure in Washington, and explicitly stating the principles on which future funding recommendations were based. The report concluded that the current funding structure and level of funding was fatally flawed to the point that put getting “Justice” in Washington “in Jeopardy.”

There were several documented problems with trial court operations. There were far too few judges to manage the cases filed. Local government-funding constraints have forced courts to choose between critical courtroom staffing, or seeking solutions for families in crisis or those who are chemically dependent. An assessment of the legal service needs of the indigent demonstrated that more than 90 percent of persons with legal problems which threatened housing, health, and/or custody were deserted by a justice system they could not access. Another study of public criminal defense found that Gideon’s promise of the right to counsel for persons charged with criminal acts was a broken trust. The public criminal-defense system in Washington was inadequately funded by nearly 50 percent, suffering convoluted accountability, constrained local revenues, and uninformed contracting provisions.

The moniker “Justice in Jeopardy” became the banner of the judiciary, the WSBA, Access to Justice/Equal Justice Coalition, and the public-defense community to call on the state to assume a fair share of funding for the trial courts and the operations of the courts, defense, and civil access for all. The 2005 passage of the filing-fee increase infused some new revenue into the courts for these critical needs. The state Office of Public Defense, which had been coordinating appellate defense, arose to the need for a state agency to assess, improve, and conduct pilot tests about the benefits to the courts of adequately funded criminal-defense services. The Legislature also created a judicial branch state agency to oversee state funding for civil legal services — the Office of Civil Legal Aid (OCLA). In 2006, the state added general-fund dollars to criminal defense, parent representation in dependencies, and civil legal services.

As those concerned with the adequate funding of the trial courts congratulated the Legislature for the steps taken in 2005 and 2006, the Office of Public Defense has begun to demonstrate the overall system improvements resulting from adequate defense services in their pilots. The Office of Civil Legal Aid agency has become a focal point for civil legal-service needs in the trial courts, and the Trial Court Improvement Account created by revenue from the filing-fee increase has allowed local courts to identify and fund their most crucial improvement needs. The state has begun to recognize its fair-share obligation to help fund the trial courts.

The steps are laudatory and significant, and the progress cannot be allowed to stagnate. In 2007, the Legislature may focus on state salaries, education, and transportation — clearly among their obligations — but such systems become less meaningful if the justice system remains in jeopardy. The enormity of the funding need may have been approached with 2005 funding-fee increase and some General Fund contributions in 2006, but we still have very serious jeopardy. Many dependents are without advocates; persons charged with crimes are still represented by overburdened public defenders with caseloads that allow less than 45 minutes per case start to finish; civil cases give up on public courts when the time to trial is extended unreasonably by the demands of criminal time-to-trial requirements; and 90 percent of the civil legal needs of low-income people still go unmet.

Clichés abound about the principles of “equal justice for all,” “equal protection under the law,” the constitutional right to counsel, and the importance of the rule of law. But these principles remain threatened. The courts cannot be expected to support themselves through fees and fines; local government cannot bear the total burden of providing state-mandated defense, interpreters, civil commitment representation, and juror- and criminal-witness costs. The steps taken in the 2005 and 2006 legislative sessions are commendable, but the new state contributions represent only a small portion of the documented need.

In 2007, a budget year and a long session, we must keep our fervor high. The combined group requests for court operations, public defense, and civil legal needs are admittedly mighty, but when government does not adequately fund the judicial branch, the risk of increasing erosion to the promises of our Constitution is heightened. Trial courts must be funded adequately to guarantee that all civil matters have access, due process is respected, case law develops in the public arena, and a fair and impartial judiciary is maintained. Only then can we assure our family, friends, and children that the rule of law will govern their interactions with strangers in predictable and proportionate ways.

Budget choices aren’t easy, and carrying the banner of adequate funding of the trial courts is not for the easily discouraged. Every person familiar with the pivotal importance of our justice system needs to take his or her turn as a champion of adequate funding of the trial courts. The jeopardy of our future justice system is simply too great to risk. 

WSBA Executive Director Jan Michels can be reached at janm@wsba.org.