“In these tough economic times, I want to reinforce our commitment to the rule of law in our democracy. In large part, the cornerstone of this commitment rests upon adequate and stable funding for the trial courts and related judicial services, and we pledge to stay the course in achieving this long-term goal.
“This session we look forward to partnering with the Legislature and the governor to assure that recent gains we have made together remain in place, and deliver on the promise of equal justice for all Washingtonians.”
So said Chief Justice Alexander at the outset of the 2009 legislative session in a Seattle Post-Intelligencer guest editorial.1 He was referring to the $78 million per biennium in new funding for trial courts achieved between 2005 and 2008 through the Justice in Jeopardy Initiative, the most significant reform effort of the judicial branch since statehood.
We want to update the legal community and engage you as our partners in this effort — an effort critical to maintaining an accessible, impartial and efficient judicial branch of government. There is still a long way to go before we can declare success. We need the legal community’s renewed energy and continued assistance as we move ahead.
In the 2009 legislative session, in the face of the most severe economic crisis since the Great Depression, the judiciary retained approximately $75 million/biennium, almost 96% of the new money previously authorized — a remarkable success. Because 2009 is the baseline year from which future gains, or future losses, will be measured, it was imperative that we hold onto those gains to deliver on the promise of equal justice in Washington.
King County and its trial courts retained more than $10 million/biennium in Justice in Jeopardy gains in 2009, including:
- $2.75 million/biennium in public defense funding;
- $1.1 million/biennium in district court judges’ salaries; King County must place an equal amount in the courts’ Trial Court Improvement Account;
- $1.1 million/biennium in CASA funding (some cut);
- $4.4 million/biennium in new filing and ministerial fee revenues, as estimated in 2005;
- $1 million/biennium in civil equal justice funding; and
- $110,000 in a Family and Juvenile Court Improvement grant.
Also, state juvenile courts retained all of the $16.5 million/biennium in Becca funding and almost all the $49 million/biennium in other state juvenile court funding.
Where We Started
In 2002, the Board for Judicial Administration (BJA) convened the Trial Court Funding Task Force to develop a plan to achieve “adequate, stable and long term funding” for the trial courts. The handwriting was on the wall: Counties shouldered about 90% of the burden of funding Washington’s trial courts and indigent defense, but no longer had sufficient revenue to provide adequate funding.
At the time, Washington ranked “dead last” in the State’s contribution to fund the trial courts. The State’s only contribution was to pay one-half of the Superior Court judges’ salaries and their benefits, plus some juvenile court funding and some reimbursements. More than 100 people from several stakeholder groups devoted thousands of hours over two years to this premier task force to study and recommend major restructuring of trial court funding.2
Nexus Approach
The BJA adopted the “nexus approach” recommended by the Task Force as the basis to seek state funding for the trial courts. This approach draws a nexus between those activities the State mandates by constitution or statute and those it should pay for, such as judges’ salaries, interpreters, juries, recorded proceedings, guardians ad litem, indigent criminal defense and parent dependency representation. When completed, the State and the counties will share roughly equally in the cost of the trial courts and indigent defense.
We believe this shared responsibility, like a balanced investment portfolio, is the best approach to fund Washington’s trial courts. Other state courts have shifted to total state funding with disastrous results. For example, Oregon courts have closed for certain periods, and California and many other state courts have experienced substantial cuts. The nexus approach is more secure because fixed-cost items such as judges’ salaries and jury costs are less likely to be cut. Judges can then rely on their working relationships with local elected officials to fund the balance of trial court budgets.
The Trial Court Funding Task Force issued its report in December 2004.3 To avoid this report gathering dust on the shelf, the BJA created the Justice in Jeopardy Implementation Committee chaired by Chief Justice Alexander and King County Superior Court Judge Deborah Fleck, with Wayne Blair as vice-chair, to implement this major restructuring of trial court funding over several biennia.
Fundamental Principles
The BJA adopted a number of principles that form the foundation of the Justice in Jeopardy Initiative. A few are particularly noteworthy as we continue our efforts to provide an accessible justice system in Washington.
- Branch of government – general taxes: As one of the three branches of government, courts should be funded largely by general tax revenues. Report, pages 23 and 58.
- User fees: Reasonable user fees that initiate a case (filing fees, cross-, counter- and third-party claims) are appropriate user fees to prosecute or defend a case (answer fees, motion fees, etc.) are not appropriate. Report, pages 23 and 58.
- State’s obligation: The State should contribute equitably to the cost of the trial courts. Report, pages 24 and 52.
These principles are consistent with a recent survey by the National Center for State Courts that shows an overwhelming majority of the public opposes — by 85% — the suspension of jury trials and four out of five oppose raising fees to bring cases to court.
Justice in Jeopardy Initiative
Near the time the Trial Court Funding Task Force was completing its work, the WSBA Blue Ribbon Panel on Criminal Defense issued its report. A year earlier, a Supreme Court task force issued the Civil Legal Needs study. These three task force reports identified substantial unmet funding needs, leading to the Justice in Jeopardy Initiative.
In 2005, the courts brought a filing fee increase to the table, producing $19.8 million/biennium in new revenue for local government general funds. The State devoted 100% of its $12.7 million/biennium share of the filing fee increase to Justice in Jeopardy Initiative goals — court operations, indigent criminal defense, parent dependency representation and civil legal aid for the poor.
By “speaking with one voice” as the judicial branch of government, we achieved $78 million/biennium in new revenue to the counties, cities, trial courts and judicial branch at the local level in four years. We made progress in almost all of the nexus chart items for court operations — limited jurisdiction court judges’ salaries, interpreters, guardians ad litem (CASA), family and juvenile court improvement grants, and a juror pay pilot project.
The State assumed all costs for parent dependency representation in 67% of the state and 10–15% of costs for indigent criminal defense. We also reached about one-third of the original goal of funding civil legal aid for the poor, although the number of low-income households has now increased.
2009 and the Economic Crisis
In the fall of 2008, the judicial branch planned to seek the next phase of funding for parent dependency representation, including a portion of the $6.6 million needed in King County, and the next phase of interpreter funding, which included King County. We planned to seek a phased-in juror pay increase, and more indigent criminal defense and civil legal aid funding, as well as 10% more in state contribution to the counties for limited jurisdiction court judges’ salaries.
As the economic outlook became increasingly grim, our plans for modest increases changed to an all-out campaign to simply hold onto our gains obtained through Justice in Jeopardy and our juvenile court funding. This was absolutely necessary to avoid cuts to trial court and county justice system funding recently assumed by the State. Working with the judicial branch organizations — the BJA, the Superior Court Judges’ Association (SCJA), the District and Municipal Court Judges’ Association, the state Office of Public Defense, the Office of Civil Legal Aid and the Administrative Office of the Courts — the Legislature honored its commitment to the trial courts in 2009.
Approximately $75 million/biennium of the new revenue to trial courts, counties, cities and the judicial branch at the local level has been preserved. This includes $36 million for indigent criminal defense and parent dependency representation; $19.8 million in the filing fee increases; $6.4 million for district court judges’ salaries; most of the $6 million for GALs for dependent children (CASA); most of the $1.9 million in interpreter funding; and most of the $1.6 million in Family and Juvenile Court Improvement grant funding. We retained $8.7 million for civil legal aid for the poor that has allowed four legal aid offices in rural areas to be reopened and the CLEAR legal services referral program to finally reach King County.
In addition, all of the $16.5 million/biennium for juvenile court Becca funding was preserved, as well as almost all of the $49 million/biennium the courts receive from the State for a variety of other juvenile court needs.
BJA request legislation passed, allowing jurors to respond online, which should save significant sums for trial courts. SCJA request legislation passed, giving trial courts access to 10% of the criminal justice treatment account for court operations that should help preserve drug courts in the 19 counties that have them.
Eleven days before the session ended, a bill was filed that places a two-year civil filing surcharge of $30 in Superior Court and the Court of Appeals, $20 in District Court and $10 on small claims, with the funds deposited in a new state account for judicial branch needs. Although there was never a chance that this two-year surcharge would be split with the counties, it has raised concerns because the revenue goes into a state dedicated fund. Without this bill, another $10.7 million/biennium would have been lost to the counties, trial courts and judicial branch.
Counties including King County would have faced much deeper cuts, such as in state contributions for indigent criminal defense, CASA and possibly for the District Court judges’ salaries, as examples. Instead, retaining Justice in Jeopardy gains saved far more for the courts and the justice system, as well as for the counties, than a split of the two-year surcharge would provide. Nor does it raise concerns about a precedent, in light of the State contributing its entire share of the 2005 filing fee increase to Justice in Jeopardy goals. The BJA and SCJA also supported our counties’ successful efforts with 2SSB 5433, freeing up revenue by allowing counties to replace some prior spending with newer revenue sources.
What Lawyers Can Do
Until the Justice in Jeopardy Initiative is completed, the bulk of funding for the trial courts is still borne locally. Once again, we are asking our colleagues in the bar around the state to join with the judiciary to maintain an open, accessible and fair justice system. Talking with your local elected officials about the need to maintain stable funding is one way you can help make a difference.
The trial courts’ workload increases during times of economic crisis in cases such as domestic violence, family law, juvenile court, housing, public benefits claims and certain crimes. Courts have no control over their workloads. Over 40% of the cases filed in Superior Court deal with children, families or domestic violence. A significant percentage of criminal defendants have drug and alcohol problems and many have mental health issues.
Just as our state legislators recognized that maintaining accessible trial courts is critical to the rule of law in our democracy, we believe our King County executive and councilmembers understand that now, more than ever, we must maintain adequately funded trial courts.
We are fortunate in King County that our councilmembers care about justice — truly, the “business of government.” As a group they have demonstrated their commitment to constitutional requirements and ensuring that in King County we have a system of justice accessible to all. The budgets adopted last year recognized that some government functions, such as the courts, are constitutionally mandated and need to be prioritized over other very important county undertakings in tight budget times.
Working closely with the other branches of government, we have been able to retain our innovative, problem-solving court system.4 King County District Court is a national leader in its mental health court and its relicensing program. The Superior Court is among the first in the nation to develop adult and juvenile drug courts, family treatment court, a unified family court and a longstanding Family Court Services program providing judicial officers with the information essential to make decisions regarding domestic violence and parenting plans.
We continue to appreciate the support our system of justice receives from the state and local bar associations, such as KCBA, in making the case for adequate funding at both the state and the local level. Your help was invaluable last year and in past tight budget cycles. We are also developing plans to actively engage you in helping to achieve adequate and stable funding for the trial courts as we move forward with the Justice in Jeopardy Initiative.
As we all can agree, the people of King County expect that their justice system will not be dismantled in difficult financial times. Courts are the one place where people are able to resolve their civil disputes and know that their community remains safe by processing criminal cases.
In these tough economic times, the commitment to the rule of law in our democracy has never been so critical.
Deborah Fleck is a King County Superior Court judge and serves as co-chair with Chief Justice Alexander of the BJA Justice in Jeopardy Implementation Committee. Judge Fleck can be contacted at Deborah.Fleck@kingcounty.gov.
Wayne Blair is an arbitrator and mediator with JAMS and serves as vice-chair of the BJA Justice in Jeopardy Implementation Committee. Blair can be contacted at mblair@jamsadr.com.
1 Seattle Post Intelligencer, January 21, 2009; State courts do more with less, by Gerry Alexander. http://www.seattlepi.com/opinion/396963_judicial22.html
2 Sen. Adam Kline and Rep. Ruth Kagi; King County Councilmembers Kathy Lambert and Dow Constantine; KCBA President John Cary; WSBA President Ron Ward; KCBA and WSBA past President Wayne Blair, chairman; lawyers, court clerks and administrators, business, labor, good government groups; Judges Fleck, Hilyer, Kato, McSeveney, Schindler and Dwyer; Chief Justice Alexander, among many others.
3 http://www.courts.wa.gov/programs_orgs/pos_bja/wgFinal/wgFinal.pdf
4 See King County Bar Bulletin articles on King County’s problem-solving courts in the December 2008 issue http://www.kcba.org/newsevents/barbulletin/archive/2008/08-12/index.aspx (King County’s Family Treatment Court Model, by Judge Philip Hubbard and Jill Murphy; A Community Responds to Drug Addiction by Judge Wesley Saint Clair) and the January 2009 issue http://www.kcba.org/newsevents/barbulletin/archive/2009/0901/index.aspx (Challenges and Opportunities in 2009, by Judge Jim Doerty; Mental Health Court Marks 10th Anniversary by Judge Arthur Chapman; District Court Adds DWLS 3 Re-licensing Program, by Judge Barbara Linde).
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