June 2007
The Justice in Jeopardy Initiative: Celebrating Accomplishments and Setting Goals
by Chief Justice Gerry Alexander and Judge Deborah Fleck
Some might have asked, “What were they thinking?” when, in 2005, we launched the Justice in Jeopardy Initiative. You may recall that was the year the Legislature was facing a $1.6 billion budget deficit. That was also the session immediately following the December 2004 publication of Justice in Jeopardy: The Court Funding Crisis in Washington State, the report of the Trial Court Funding Task Force. This report sought major policy changes by the state accepting new fiscal responsibilities for the trial courts, indigent defense, parent representation in dependency cases, and civil legal aid. Despite these challenging hurdles, by the end of the 2005 session, we were able to report to you that we had taken a solid first step on the path to achieving the goal of adequate, stable, and long-term funding of the trial courts.
A Brief History
Since statehood, the counties and cities have shouldered the bulk of the costs of the trial courts and 100 percent of the cost of indigent defense and parent dependency representation. State funding for civil legal aid has steadily declined and falls far short of the needs chronicled in the 2003 Civil Legal Needs Study. Our goals were to attain adequate funding for fiscally strapped trial courts and to attain stable, long-term funding through a balance between state and local financial support of the trial courts, akin to a balanced investment portfolio, so that justice would no longer depend on the fiscal health of the county in which a case was pending. Historically, the state has contributed just three-tenths of one percent (0.3 percent) of its budget to the entire judicial branch of government, including funding the appellate courts, the Administrative Office of the Courts, and the state law library. The more we have reflected on our approach seeking to balance the funding responsibility between state and local government, the more convinced we are that this approach is the best in the nation.
The Justice in Jeopardy Initiative is the most significant reform effort of the judicial branch since statehood in 1889. We knew the Initiative would take several biennia to achieve. But in that first session in 2005, recognizing the importance to our democracy of maintaining fair and accessible trial courts, the Legislature accepted, for the first time, a share of the responsibility in court operations beyond the constitutional requirement of paying one half of the superior court judges’ salaries plus benefits. The state also accepted a responsibility to contribute to the cost of indigent criminal defense and for funding parent representation in child dependency cases beyond a pilot project they had previously funded. Finally, the state established the Office of Civil Legal Aid under the judicial branch of government and substantially increased civil legal aid funding. Overall, the Legislature contributed almost $20 million to the counties’ general funds and allocated 100 percent of its share of new revenue, some $12.7 million, to funding in the four Justice in Jeopardy categories: court operations, criminal indigent defense, dependency representation, and civil legal aid for the poor. These improvements were funded by increases in civil filing fees and other user fees.
Notwithstanding the private good that accrues to individual court users, the trial courts cannot be funded largely by user fees in meeting their constitutional mandate to resolve disputes between citizens and between citizens and their government. The focus, therefore, has shifted to a more deliberate commitment of state general-fund support for trial courts and related judicial branch operations in recognition of the greater public good served by adequately funding the judicial branch.
Jury Pay Pilot Project
The first step was taken in the 2006 supplemental budget, as the Legislature provided $8.7 million state’s general fund to continue to address the substantial funding needs in the four categories. This was a significant new allocation of funds in a supplemental budget year. In court operations, we received funds to conduct a jury pilot project to assess the impact of low juror pay ($10 in most counties, an amount that hasn’t been increased in almost 50 years) on the ability of our citizens to serve as jurors. The pilot project being conducted in the District and Superior Courts of Franklin and Clark counties and the Des Moines Municipal Court pays jurors $61, an amount that is equivalent to minimum wage. We expect the study will demonstrate that we are able to achieve greater juror turnout and greater diversity in our jury pools by paying more than a token amount for juror service. With juror pay based on minimum wage, we believe that citizens who are making ends meet in low-paying jobs will be able to carry out their civic obligation to serve on juries, just as citizens who work for larger corporations that continue to pay their salaries are able to do. This is the first study in the nation attempting to isolate the factor of juror pay and its impact on low juror turnout nationwide. If the study, which will be completed with another $325,000 in funding in 2007, does reflect that impact, we will seek to increase juror pay throughout the state.
In 2006, the Legislature also filled an annual $400,000 gap created by the loss of federal funds in the civil legal aid budget associated with services to domestic-violence victims, and allocated an additional $4.5 million to parent dependency representation and $3 million in new money for criminal indigent defense.
But we still have a long way to go. Working under the Board for Judicial Administration’s Trial Court Funding Implementation Committee as a clearinghouse, this legislative session we proposed another ambitious agenda of state funding for trial court operations and these court-related services.
Court Operations
For court operations, we focused on two areas. The first is providing interpreter services. Imagine for a moment being in a court in a foreign country where your assets or your liberty is at stake. Consider also that you are not able to fully understand what is being said in a court hearing or trial. Or imagine that the adjudication of your property or your liberty must be delayed time and again, in an effort to provide you with an interpreter. Ensuring accurate interpretation of court proceedings and their prompt adjudication is fundamental to a fair system of justice.
The proposal in 2ESHB 2176 for improving interpreter services was structured to leverage the use of precious public dollars in efficient ways and to provide an incentive to obtain the best level of court interpretation possible. Although this policy bill did not pass, the state has taken another step by contributing $2.0 million to assist courts in developing and implementing language access plans and to pay for interpreter services. $610,000 and $950,000 was appropriated to reimburse courts for a share of the cost of state-certified or state-registered language interpreters and interpreters for persons who are deaf in the first and second years of the biennium. We believe the higher rate of pay through shared state and local funding will encourage interpreters to pass the certified or registered interpreter tests in order to qualify for a higher hourly rate of compensation. We also proposed the use of telephone language lines with certified or registered interpreters for some proceedings and also for out-of-court services such as at court service counters, the translation of the courts’ core website into seven languages, translation of key court forms, and the development of Limited English Proficiency (LEP) plans mandated by federal law. It is estimated that the funding provided will meet between 20 percent and 25 percent of the need for qualified interpreters over the biennium. This funding also enables us to develop and implement language-assistance plans and ensure that appropriately qualified interpreters are used in many more court hearings. The funding this year is a down payment on the cost for these services, which are fundamental to a fair justice system.
The second area of our request for state funding in court operations was for a significant contribution from the state to expand the CASA (Court Appointed Special Advocates) program. State and federal laws mandate the appointment of a guardian ad litem (GAL) for all children in dependency cases involving allegations of neglect or abuse. In 33 counties in Washington, CASA volunteers serve as volunteer guardians ad litem to represent the best interests of these children. Statewide, only about half of the 13,000 children in the dependency system currently have a CASA volunteer to represent their best interests. In 2005, 2,188 CASA volunteers served 7,072 children. Of the remaining 6,000 dependent children, approximately half were represented by a staff GAL, typically with a dangerously high caseload in excess of 100 children per FTE; the other half had no GAL representation at all. Because of prioritization of GAL representation for younger children, most adolescents in dependency do not currently have GAL representation. Despite years of recruitment efforts to grow the number of CASA volunteers to meet the need, the number of CASA volunteers has remained steady for several years, due to the limited capacity of local programs to provide volunteer supervision. As a result, each year CASA programs lose as many volunteers as they train.
$13.6 million in new state funding for the 2007-2009 biennium was requested to develop the capacity of the 31 dependency CASA programs and for expansion to serve the six remaining counties without CASA programs. The Legislature has allocated $6.0 million, which, combined with existing funding, places the state commitment at a total of $7.8 million. The initial priorities for funding will focus on quality: lowering the ratio of volunteers per supervisor and reducing staff GAL caseloads, increasing volunteer recruitment and retention, as well as establishing programs in areas not currently served, and stabilizing the smaller programs.
Civil Legal Aid
With respect to civil legal aid funding, the Office of Civil Legal Aid was granted $5.3 million in additional funding in the 2007 session. The Civil Legal Needs Study (CLNS), published by the Supreme Court’s Task Force on Civil Equal Justice Funding in September 2003, documented that more than three-quarters of all low-income households experience at least one important civil legal problem each year and that, of these, nearly nine in 10 do not get the legal help they need to solve that problem. The CLNS further documented that civil legal needs often relate to fundamental issues such as personal and family safety, shelter, security, and access to essential services. Women and children disproportionately experience civil legal needs, with domestic-violence survivors having the highest number of needs of any demographic group surveyed.
According to the Task Force, it would take an additional $36 million each biennium to address the unmet needs in state-authorized areas of legal assistance identified in the Civil Legal Needs Study. The new funds allocated in this biennium will allow the state-funded civil legal aid system to establish minimum levels of presence in six rural regions1 currently not being effectively served; expand civil legal aid capacity in three regions disproportionately underserved; and establish unified intake, advice, and referral capacity in King County through partnership between the Northwest Justice Project CLEAR system and the King County 211 information and referral system.
Office of Public Defense
The February 2007 issue of Bar News was dedicated to the subject of indigent defense and parent dependency representation. The state Office of Public Defense (OPD) sought $19 million for indigent criminal defense and $17 million for parents’ dependency representation. The indigent criminal defense amount represented a significant percentage of the total amount needed to bring Washington’s jurisdictions up to WSBA public-defense standards. The Legislature appropriated $7.1 million in increased funds for the biennium — far short of the amount needed, but enough to allow the counties and cities to make substantial progress through OPD’s RCW 10.101 program for improving public defense. Washington State OPD will also continue its state-funded ongoing programs assisting the counties with public-defense administration, providing training and resource attorneys to trial-level public defenders, and conducting pilot programs to improve public defense.
The amount sought for OPD’s Parents Representation Program would bring adequately resourced, effective counsel to all indigent parents involved in dependency and termination cases in Washington. Over the past six years, OPD’s new representation model for parents’ representation in these cases has been declared a success by four independent evaluations. The program meets the intent of our laws, allowing more parents success in working to change their lives and consequently safely reuniting with their children. $6.5 million was appropriated by the Legislature this year, which will allow significant expansion of the program to a number of new counties. The upcoming challenge is to obtain sufficient funding to complete the statewide expansion in a timely way, so all poor parents in these cases are afforded adequately resourced representation.
Ensuring the Promise
The State of the Judiciary speeches in 2005 and 2007 were devoted to identifying these pressing financial needs of Washington’s trial courts — to demonstrating just how a lack of adequate, stable, and long-term funding jeopardizes the promise of justice for all. The Legislature has again stepped up in 2007 with a total of $26.8 million in additional economic support of the trial courts. But to fulfill the responsibility of the judicial branch of government to provide a fair and accessible forum for the resolution of civil disputes and criminal charges, much more needs to be accomplished. We are developing the plan and the timeline to achieve funding for the trial courts in Washington that will secure our ability to fulfill that responsibility — to ensure that this branch of government is able to truly ensure the promise of fair and accessible justice for all.
Gerry Alexander is chief justice of the Washington State Supreme Court and co-chair of the Court Funding Implementation Committee of the Board for Judicial Administration. Deborah Fleck is judge of the King County Superior Court and co-chair of the Court Funding Implementation Committee of the Board for Judicial Administration.
NOTES
1. The regions targeted for new commitments of civil legal aid resources are: Ferry, Stevens, and Pend Oreille counties; Whitman, Asotin, and Garfield counties; Grant and Adams counties; Clallam and Jefferson counties; Grays Harbor and Pacific counties; and Cowlitz and Wahkiakum counties. Regions targeted for improvements to existing service delivery capacity include: Benton and Franklin counties; Yakima and Kittitas counties; Clark and Skamania counties; and Thurston, Mason, and Lewis counties.
