June 2005

Court Funding Glad Tidings And the Long Legislative Road Ahead

by Ron Ward, WSBA President

The Triumph. It is my happy task to report glad tidings from the 2005 session of the Washington State Legislature, regarding legislation passed which will begin the long journey that will hopefully culminate in providing adequate, stable, and long-term funding of the justice system in our state.

In my December 2004 Bar News column, “Justice in Jeopardy,” I articulated the history and the substance of a long-standing justice-system funding deficit in Washington that has produced a crisis in trial court operations, indigent dependent representation, civil legal aid, and indigent public criminal defense. I noted that the annual deficit gap between what various areas of the justice system receive and what they need to perform effective delivery of court services amounts to $214 million annually.

After an unstinting, all-out effort by judges, lawyers, lobbyists, legislators, the Board of Judicial Administration’s (BJA) Court Funding Task Force, and the Governor, we have something to build on. The following is from an April 26, 2005, letter from BJA Co-Chairs Chief Justice Gerry Alexander and Superior Court Judge Deborah Fleck outlining details of the fruits of the legislative session.1

Colleagues:
We are writing to give you the good news about the Board for Judicial Administration’s Justice in Jeopardy efforts this session flowing from the Trial Court Funding Task Force’s recommendations. As you know, our mission is to achieve adequate, stable and long-term funding of the trial courts.

We undertook nothing less than the most significant reform effort of Washington’s judicial branch since statehood, an initiative that many said was impossible to launch in this era of state and local government fiscal crisis.

Yet working together in an effective coalition, the judiciary, the bar and the civil equal justice community — together with the counties and the cities — convinced the Washington State Legislature that the state must step up to help fund its trial courts, indigent defense, parents dependency representation and civil legal services for the indigent. Remarkably, in this first phase of an effort that will span several biennia, all of our bills passed out of at least one house of the legislature with bipartisan, unanimous or near unanimous support.

Here is the final “scorecard” for the 2005 “Justice in Jeopardy” package:

Court Operations: Engrossed Second Substitute Senate Bill 5454 begins the important structural change central to achieving adequate and stable funding for the trial courts: it requires that 25 percent in this biennium, less one million dollars, and then 50 percent in subsequent biennia, of the state’s share of the new user fees, be provided to the local government to pay a part of the district and elected municipal court judges’ salaries. It also requires that local governments establish trial court improvement accounts funded with an equal sum. Next biennium, this payment amounts to roughly 25 percent of the district and qualifying municipal court judges’ salaries for which the state is paying.

These accounts are intended to let each locality test new innovations, efficiencies and pilot projects to improve the way courts serve their local communities. To keep the stream of funding for these accounts alive through upcoming years, courts will want to consider carefully whether to fund permanent positions for judicial officers, or court staff which would eliminate the accounts from a practical standpoint.

In future years, we will be asking the state to pay 50 percent of the functions on our list that are mandated by statute or the constitution such as jury and interpreter costs, “making the record” (court reporters or recording devices), indigent defense, etc. Again, we will be seeking 50 percent of those future court savings to be placed in the Trial Court Improvement Accounts.

This bill will generate $12.7 million to the state PSEA [Public Safety and Education Account] account, $17.7 million to counties’ and $2.1 million to the cities’ general funds per biennium through increased filing fees and Clerks’ Office ministerial fees. The state’s share of these funds will be placed in a separate state account. After contribution to the limited jurisdiction court judges’ salaries, the balance of the revenue will be distributed to civil equal justice, parent dependency representation and indigent defense.

Parental Dependency Representation. In the 2005-2007 biennium, $5 million has been allocated from the new account to provide adequate representation to parents in dependency and termination actions. The goal is to have the state assume 100 percent of this responsibility historically borne by the counties. Pilot projects in Pierce and Benton/Franklin Counties have shown that adequate funding coupled with caseload and other standards greatly improves the system by enabling more reunifications and by a reduction of continuances, thereby resolving the permanent placement for these vulnerable children earlier.

Indigent Defense. Second Substitute House Bill 1542 passed both houses of the legislature. It was designed to provide a state “down payment” of $25 million on woefully inadequate criminal indigent defense funding, albeit with “null and void” language if funding wasn’t provided. Although major funding was not provided, $1.3 million was allocated in the 2005-2007 biennium to the Washington State Office of Public Defense to provide intensive training to new public defenders, to give legal and expert services to those public defenders, particularly in isolated areas around the state, and to work with public defenders as they enter into appropriate contracts with local government. There is $1 million to fund a pilot project as well. In future years, we will be seeking additional state funding for this major responsibility currently borne entirely by the counties.

Civil Equal Justice. The budget contains $3 million for civil equal justice funding in the upcoming biennium. In addition, the legislature passed Substitute House Bill 1747 to establish a state Office of Civil Legal Aid (OCLA) under the judicial branch, similar to the state Office of Public Defense. After the Supreme Court’s Task Force on Civil Equal Justice Funding published the Civil Legal Needs Study, support has increased dramatically in recognition that real justice does not exist in a system unless we all have access to the courts.

Documenting that 87 percent of the one million low-income and vulnerable people in Washington have legal needs that go unmet each year in such critical areas as housing and domestic violence, the Civil Legal Needs Study put a face to the injustices the poor and vulnerable experience in our state. As you are well aware, when unrepresented people come into our trial courts, the system slows as we try to process their requests. Through direct legal services (lawyers) and through various programs providing practical legal advice and information, the efficiency of our courts will be increased and justice will be more secure.

Benefits to the Counties/Cities. The counties and cities are major beneficiaries of our work. In your continuing efforts to improve the courts at the local level, you will be able to cite the direct benefits to the counties of the Justice in Jeopardy package when submitting your budgets.

Through these efforts of the judicial branch of government, local government has gained perhaps one of the most significant fiscal benefits from the state legislature in their history: almost $20 million to the local general funds from the user fee increases and a state contribution that will equal roughly 25 percent of the cost of district and qualifying municipal court judges’ salaries. In addition, for the first time other than the pilot projects, the state will contribute $5 million to the cost of parent representation in dependency and termination of parental rights cases and will also fund a pilot project to address the significant indigent defense problems existing in many counties.

Support. First, real credit goes to legislators from around the state — they listened and then acted responsibly to provide crucial funding for the trial courts, indigent defense, parent representation and civil equal justice. We also want to acknowledge our legislative liaisons in the Justice in Jeopardy coalition for their fine efforts in shepherding our bills and budget requests through the legislature: Jeff Hall, Executive Director of BJA, Martha Harden from the SCJA, Melanie Stewart from the DMCJA, Pam Daniels from the WSACC, Gail Stone from the WSBA, Sandy Swarthout from the Equal Justice Coalition, Sophia Byrd from WSAC, Tammy Fellin from AWC and Joanne Moore, Director of OPD.

We want to thank you for your invaluable help in contacting your legislators and county commissioners or council members, attending pre-session legislative dinners, and contacting your local newspapers. With E2SSB 5454, we had the full support of the counties through their associations, as well as the support from the Association of Washington Business and the Collectors’ Association, all of which was critical to our success. We appreciate the coverage by the print media both in editorials and in articles.

Ron Ward, President of the WSBA, and John Cary, President of the King County Bar Association, both co-chaired Task Force Work Groups and also maintained a constant drumbeat through their monthly columns, advising the bar of the need and of our efforts. We have had the professional guidance and support of the Administrative Office of the Courts and particularly appreciate the efforts of Janet McLane, our Court Administrator, and Mary McQueen, our past Court Administrator. We are deeply indebted to Wayne Blair who selflessly contributed hundreds and hundreds of hours to the Task Force effort as well as the approximately 100 people who diligently worked over two years to gather information, analyze data and develop recommendations.

The more we have reflected on the Task Force recommendations, the more firmly convinced we are that we have developed the best approach in the nation. In time, we expect the state to assume a share of the funding responsibility for those items mandated by statute or the constitution. Unlike the fate of our neighboring state courts to the south which sought full state funding, these items are unlikely to be cut by the Legislature. Paradoxically of course, these are the very items that local government would also be least likely to cut either, leaving the courts’ administrative expenses still vulnerable at the local level. That is where our Trial Court Improvement Accounts will help — they are intended to be used to improve court operations, allowing each locality to test new innovations, efficiencies and pilot projects.

Consistent with the BJA’s goal of “speaking with one voice” to increase our effectiveness, we have involved other judicial branch partners in this effort, including the bar and the equal justice community, to our joint benefit in areas of indigent defense, dependency representation and civil equal justice.

The report, Justice in Jeopardy: The Court Funding Crisis in Washington State, charts a sound course to provide adequate and stable funding for our trial courts. You can view the report on the courts’ website, www.courts.wa.gov (click on “Boards and Commissions”). BJA has created the Court Funding Implementation Committee, co-chaired by us with Wayne Blair as vice-chair, to pursue full implementation of these critical improvements to funding the trial courts over several biennia. We will keep you advised on the progress and we will be calling on you as we continue the implementation process.

Sincerely,
Gerry L. Alexander, Chair
Deborah Fleck, Member-chair
Board for Judicial Administration

Well, there you have it. All of us in the justice community should pause for a well-earned sweet moment to savor this accomplishment. Just a moment. There is an enormous amount of work still to do. It is worth every iota of our effort. Let’s get to it.

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 206-624-8844 or rrw@admiralty.com. If you would like to write a letter to the editor on this topic, please e-mail it to comm@wsba.org or tradelaw@hotmail.com, or mail it to WSBA Bar News, Attn: Letters to the Editor, 2101 Fourth Ave., Ste. 400, Seattle, WA. 98191-2330.

NOTES
1  Board of Judicial Administration, “Justice in Jeopardy,” Chief Justice Gerry Alexander, Honorable Deborah Fleck.