September 2005
Making Good on Gideon’s Promise
by Rep. Pat Lantz and Rep. Jay Rodne • Washington State House of Representatives
From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.1
The Promise of Gideon
It has been more than 40 years since the U.S. Supreme Court took up the case of Clarence Gideon by considering his handwritten plea for court-appointed counsel because he was too poor to hire an attorney. From such humble beginnings became enshrined a fundamental promise of our constitutional scheme: that the right of an indigent criminal defendant to have the assistance of counsel is guaranteed by the Sixth and Fourteenth Amendments to the U.S. Constitution. Thereafter, in Strickland v. Washington, the Court expanded its holding in Gideon by concluding that the right to assistance of counsel embodied in the Sixth Amendment included the right to effective assistance of counsel.2
In the ensuing four decades, states have done much to implement both the spirit and intent of Gideon’s promise. To be sure, progress has been made. In Washington, for example, the House and Senate passed legislation in 1989 requiring counties to adopt standards for the delivery of public-defense services in the important areas such as attorney training, supervision, compensation, case-load limits, and attorney qualifications.3
However, as recently as 2004, more than half of Washington’s counties had yet to establish objective performance criteria and oversight mechanisms for the delivery of public-defense services.4 As a result, some have claimed that Washington is failing in its constitutional obligation to provide for effective -assistance of counsel for indigent criminal defendants.5 Indeed, one of Washington’s counties, Grant County, has recently been sued based on allegations that the county has “regularly and systematically depriv[ed] accused felons of their constitutional right to effective representation.”6
Clearly, much work remains to be done.
The 2005 Legislative Session: Working to Fulfill Gideon’s Promise
In 2002, the Board for Judicial Administration convened the Court Funding Task Force (Task Force), composed of judges, legislators, members of the Bar, and other interested stakeholders, to undertake a comprehensive review of trial-court funding issues. The goal of the Task Force, which was to focus exclusively on the issue of trial-court funding, was to define funding shortfalls and develop strategies for long-term funding stability, particularly in the area of criminal indigent-defense services.7
In December 2004, the Task Force released its report entitled “Justice in Jeopardy: The Court Funding Crisis in Washington State.” Included among the sobering findings set forth in the report were the following8:
• Washington ranks 50th in the nation in terms of trial-court costs and indigent-defense costs paid by the state versus costs paid by local governments.
• Local governments shoulder approximately 90 percent of the cost of trial-court funding.
• Washington state provides no funds for trial-court indigent-defense services or costs associated with the operation of district and municipal courts.
The Task Force identified three critical areas where the lack of adequate funding was impeding the delivery of trial court services: trial-court operations, indigent-criminal defense, and civil legal services. Ultimately, the Task Force concluded that an additional $204 million per year would be required to adequately fund the state’s trial courts in these areas.9
Perhaps most significantly, the Task Force concluded that the state should participate more equitably in the funding of trial-court operations and the provision of criminal indigent defense services by funding approximately 50 percent of such costs in partnership with local governments.10
Largely in response to the Task Force’s conclusions and recommendations, the Legislature enacted significant legislation during the 2005 session to address the inadequacies in trial-court funding and funding for criminal indigent-defense services.
House Bill 1542
Washington’s statute concerning indigent defense services declares that: “. . . effective legal representation should be provided for indigent persons and persons who are indigent and able to contribute, consistent with the constitutional requirements of fairness, equal protection, and due process in all cases where the right to counsel attaches.”11
Traditionally, the funding of trial-level indigent defense services has been a local responsibility. There are various models that local jurisdictions have used to provide public-defense services. Some jurisdictions provide indigent-defense services through their own public-defense agencies. Others contract with private nonprofit agencies or law firms. Still others assign counsel on a case-by-case basis from lists of available attorneys.
The standards for public-defense services set forth in RCW 10.101.030 have served as guidelines for local jurisdictions in evaluating criminal indigent services. The local service-delivery standards include:
• Compensation, duties, training, qualifications, supervision, monitoring, and evaluation of counsel.
• Caseload limits.
• Expert witness fees and other costs
• Administrative costs and support services.
• Limitations on private practice.
• Substitution of attorneys or assignment of contracts.
• Client complaints.
• Cause for termination of contracts or removal of attorneys.
• Nondiscrimination.
A determination of indigence is made for any person requesting counsel in a criminal, juvenile, involuntary commitment, dependency, or other cases in which the right to counsel applies. RCW 10.101.010(1) defines an indigent person as someone who:
• Receives public assistance in one of several enumerated forms; or
• Has been involuntarily committed to a public mental-health facility; or
• Has an income of 125 percent or less of the federal poverty level; or
• Has insufficient available funds to retain counsel.
HB 1542, which passed the House and Senate with overwhelming bipartisan support, and which was signed into law by Governor Gregoire on April 22, 2005, established an important mechanism for providing state funding of local indigent-defense services. HB 1542 took effect on July 24, 2005.
Under HB 1542, the Washington Office of Public Defense (OPD)12 is responsible for disbursing appropriated funds to eligible cities and counties for public-defense services. Local jurisdiction applicants will have to report financial and caseload information on public-defense services. Individuals and entities that contract with local jurisdictions to provide public-defense services must report to the local jurisdiction the hours they have billed for nonpublic-defense legal services.
Significantly, if a local jurisdiction receives funds from OPD, it must document that it is meeting the standards of the Washington State Bar Association or making “appreciable demonstrable improvements” in services, including:
• The service delivery standards which cities and counties are required to adopt, and for which the Washington State Bar Association standards should serve as a guideline.
• Requiring training for public defense attorney.
• With respect to counties only, requiring specified enhanced training and experience for attorneys handling first- or second-degree murder cases, persistent offender cases, or any class-A felony.
• Requiring contracts to address compensation for extraordinary cases.
• Funding for the costs of expert witnesses and investigators.
If OPD determines that a local jurisdiction has not substantially complied with these requirements, it may terminate funding. A determination to terminate funding can be appealed to the OPD Advisory Committee, where the decision is final.
Under HB 1542, distribution of the total available appropriated funds by OPD is as follows: 90 percent of the total goes to eligible counties; 10 percent of the total goes to no more than five eligible cities as determined by the OPD based on grant applications — six percent of which is divided equally among the eligible counties; and 94 percent of which is distributed as follows: 50 percent pro rata, based on county population; and 50 percent pro rata, based on county criminal filings.
Senate Bill 5454
A critical finding of the Task Force was that local jurisdictions alone are unable to meet the financial responsibility of adequately funding our state’s trial courts and thus increased state funding for trial court operations, particularly in the area of criminal indigent-defense services, is essential.
The funding for superior, district, and municipal courts comes primarily from local jurisdictions. Washington’s contribution to the operation of trial courts consists of the constitutionally required payment of one-half of superior court judges’ salaries, all of the superior court judges’ benefits, and approximately one-third of the cost of operating juvenile courts. The state’s indirect contributions include funding to develop and maintain the judicial information system.
Local jurisdictions collect various fees from users of the trial court system and are required to transfer 46 percent of a portion of those fees to the state treasurer for deposit into the public safety and education account. No fee is collected from parties filing counterclaims, cross-claims, and third-party claims in civil actions.
In Senate Bill 5454, which passed the House and Senate with bipartisan support and was signed into law by Governor Gregoire on May 13, 2005, the Legislature created a dedicated revenue source to meet the state’s obligations in the areas of indigent criminal defense, indigent civil legal services, and trial-court improvement. For example:
Fee increases
District court civil filing fees were increased from $31 to $43, and superior court civil filing fees increased from $110 to $200. Counterclaims, cross-claims, and third-party claims will be assessed the same filing fee as the fee for initiating the action. A new $43 fee is assessed against a criminal defendant upon conviction or plea of guilty in a court of limited jurisdiction. Jury fee demand charges in district and superior courts are increased. There are also other smaller increased fees.
Increased funding for county law libraries
The portion of each superior court civil filing fee distributed to county law libraries is increased from $12 to $17. The portion of each district court civil filing fee distributed to county law libraries is increased from $6 to $7. The filing fees which now must be paid for counterclaims, cross-claims, and third-party claims are subject to the law library fee division requirement.
Equal justice funding
The increase in fees generated by this act will be deposited into the equal-justice subaccount, which is created as a subaccount of the public safety and education account. The funds in the subaccount must be appropriated only for the following purposes:
• $2.3 million for criminal indigent defense assistance and enhancement at the trial-court level, $1 million of which is provided solely for a criminal indigent-defense pilot program;
• $5 million for representation of parents in dependency and termination proceedings;
• $3 million for civil legal representation of indigent persons; and
• $2.4 million for contribution to district court and elected municipal court judges’ salaries.
The revenue from fee increases is deemed to be complete reimbursement from the state for its share of benefits paid to the superior court judges prior to the effective date of the bill (July 24, 2005), and the state must not be liable for benefits for prior periods.
For the 2005-2007 fiscal biennium, the state must appropriate 25 percent of the revenues to the equal-justice subaccount, less one million dollars, to the administrator for the courts for the purpose of contributing to district and elected municipal court judges’ salaries.
For the 2007-2009 fiscal biennium and subsequent fiscal biennia, one-half of the revenues to the equal-justice subaccount shall be appropriated to the administrator for the courts for salaries of district court and elected municipal court judges.
The administrator for the courts will develop a distribution formula for these funds which does not differentiate between district and elected municipal court judges. A city may qualify for contribution to municipal court judges’ salaries if the judge is elected and if the city compensates the judge by payment of between 95 percent and 100 percent of a district court judge’s salary, or by a pro rata share of that amount for a part-time judge.
Trial court improvement accounts
All cities, towns, and counties for which the state contributes to district or municipal court judges’ salaries are required to create trial-court improvement accounts. An amount equal to 100 percent of the state’s contribution to the judges’ salaries must be deposited into the trial-court improvement account. Funds in the account must be appropriated by the legislative authority of each county, city, or town, and must be used to fund improvements to court staffing, programs, facilities, and services.
Conclusion
Significant progress was made during the 2005 legislative session to “make good” on the promise of Gideon v. Wainwright. Despite such progress, formidable challenges remain, particularly in the area of securing increased state funding for trial-court operations in an effort to provide relief to the beleaguered budgets of local jurisdictions.
Constitutional requirements do not necessarily lend themselves to utilitarian cost-benefit analyses. Democracy, especially our constitutional democracy premised on the rule of law and the rights of the individual, comes at a price.
In an era of increasing violence and anarchy on the international scene, we would do well to remain vigilant in safeguarding our constitutional liberties here at home. In this regard, although the passage of HB 1542 and SB 5454 were small steps, they were important steps nonetheless. The challenge now will be to complete the process of transforming Washington’s trial court system to ensure that it is truly accessible to all.
Representative Jay Rodne represents the 5th Legislative District (eastern King County) in the Washington State House of Representatives. Rep. Rodne currently sits on the House Transportation, Higher Education, and Judiciary committees. In addition to serving as the assistant ranking member on the House Judiciary Committee, Rep. Rodne was also elected to the leadership position of assistant floor leader for the House Republican Caucus. Rep. Rodne attended Gonzaga University School of Law, where he obtained his J.D. degree cum laude in 1997. Since 1999, Jay has been in private practice, concentrating in the areas of insurance defense and business and commercial litigation.
Representative Patricia Lantz is in her fifth term representing the 26th Legislative District (parts of Pierce and Kitsap counties) in the Washington State House of Representatives. Rep. Lantz is chair of the Judiciary Committee and serves on the Capital Budget and Healthcare committees. Rep. Lantz’s legislative priorities include education, economic prosperity, environmental quality and protection, transportation fairness for the West Sound, and equal justice. She attended Stanford University and received a J.D. from the University of Puget Sound School of Law.
NOTES
1 Gideon v. Wainwright, 372 U.S. 335, 344 (1963).
2 Strickland v. Washington, 466 U.S. 668 (1984).
3 See RCW 10.101.030.
4 See The Unfulfilled Promise of Gideon: Washington’s Flawed System of Defense for the Poor (American Civil Liberties Union of Washington), March 2004.
5 Id. at 2.
6 Ken Armstrong, Grant County faces lawsuit over public-defense system, The Seattle Times, April 6, 2004.
7 See Justice in Jeopardy: The Court Funding Crisis in Washington State (Board for Judicial Administration Court Funding Task Force), December 2004.
8 Id. at 11-13.
9 Id. at 12. In its assessment, the Task Force concluded that an additional $53.8 million was required to adequately fund trial court operations, $131.9 million was required for indigent defense services, and an additional $18.3 millions was needed for civil legal services.
10 Id. at 13.
11 See RCW 10.101.005.
12 The OPD was created by statute in 1996 to administer state-funded indigent defense services for criminal appeals. Currently, OPD handles requests from counties to the Legislature on reimbursement for “extraordinary criminal justice costs,” such as indigent defense costs associated with aggravated murder cases. The Director of the OPD is appointed by the Washington State Supreme Court and is supervised by an 11-member advisory committee.
