Justice in Jeopardy -- The Legislative Program
By John Cary
In previous columns, I have written about the problems that put justice in jeopardy. The problems lie in three main areas: public defense, civil legal aid, and trial courts. In each area, the dominant issue is inadequate funding.
The gap in public defense funding is $132 million, $54 million in trial court funding, and $18 million in civil legal aid funding. The total bill is $204 million.
But inadequate funding is not the only issue. The quality of locally administered public defense programs varies greatly across the state--ranging from programs that win national awards to programs that give rise to scandal.
Civil legal aid is a decentralized complex of privately and publicly funded programs. Public funds flow through the Department of Community, Trade and Economic Development but no office is truly responsible for administration and oversight of the program. Although trial courts are funded largely by local government, the state plays a large role in determining the work load of the courts.
Responsibility for funding does not match authority for work load. Structural reform is necessary to bring greater rationality and accountability.
The first steps in the justice in jeopardy legislative program will be taken this January in Olympia.
Public Defense
Legislation on public defense will have two components. The Washington State Office of Public Defense (OPD) has submitted a budget request that will allow it to:
- Expand its program for parental representation in dependency cases (now operating as pilot programs in two counties) to full state coverage;
- Establish a training program for public defense lawyers;
- Fund a resource center to assist public defense lawyers; and
- Advise and assist local government in contracting for public defense services and otherwise in administering quality public defense programs.
The second component will be legislation jointly advanced by the Washington State Bar Association and the Board of Judicial Administration (BJA), the policy body of the courts, that will:
- Require local government to comply with state statutory standards in the design of public defense programs;
- Appropriate $25 million to OPD to be distributed to local government according to a formula based on population and criminal caseload;
- After 2006, require demonstration of compliance or substantial progress toward compliance with state standards as a condition for continued state financial assistance;
- Require that public defenders who handle the most serious cases either have appropriate qualifications for such cases or confer with qualified resource attorneys; and
- Require local government to fund investigators and expert witnesses separately from funding for public defense attorneys.
In the eight years since its creation, OPD has proved itself capable of reforming and administering a decentralized appellate defender system. Its pilot programs in parental representation have been a great success, bringing not only quality representation to clients but also demonstrating that good representation reduces costs by reuniting families, avoiding appeals and retrials, speeding case resolution and reducing the need for other government services.
The legislative proposals build on OPD’s successes and lay the groundwork necessary for OPD to assist local programs to meet state standards and, when necessary, to enforce those standards. In addition, they make a down payment on the funding gap.
Civil Legal Aid
The Equal Justice Coalition will ask the legislature to increase funding for civil legal aid by $18 million per year over the next few biennia and to start with a meaningful increase in funding this year. In addition, EJC will ask the legislature to establish a new Office of Civil Legal Aid for administration, funding, and oversight of state participation in civil legal aid.
The new office is based on OPD as a model and, like OPD, would be located in the judicial branch, accountable to the Supreme Court, and operate under the guidance of an oversight board of judicial and legislative members.
The new office will establish a clear locus for responsibility and accountability for the state legal aid program. Location in the judicial branch of government will allow a more intense focus on justice than is now possible in the Department of Community, Trade and Economic Development.
Trial Courts
Three subjects are on the legislative agenda for trial courts. The first two are intended to move in the direction of increased state funding and a more equal partnership between state and local government in funding responsibility. In addition, they carry out needed structural reforms. The third proposal raises revenue.
Jury Costs. The jury fee paid in King County, as in most counties, is $10 a day. The fee has not been increased since its adoption in 1959. If simply adjusted for inflation, the fee would be more than $55. That compensation for one of the most important civic duties has been neglected for so long is unacceptable.
The Board of Judicial Administration will propose that fees be increased to $30 per day after the first day of service. In addition, BJA will propose that the state pay half of juror fees and mileage.
Judges Salaries in District and Municipal Courts. Counties and cities currently pay 100 percent of the salaries of district and municipal court judges. In contrast, the state and counties each pay half of the salaries for superior court judges.
BJA will propose that district and municipal judges be treated the same as superior court judges with the state responsible for 50 percent of their salaries and local government for the remainder. (For municipal court judges, the proposal will apply only to elected judges, 19 of the about 100 municipal court judges in the state.)
Fee Increases. Filing and many other court fees have remained unchanged for 12 years. BJA will propose an increase in these fees. The most significant increase will be in the filing fee, increasing the basic Superior Court filing fee from $110 to $200. This is the same level of increase that has been proposed in the last two legislative sessions. In those sessions, the new money was intended to fund civil legal aid. This year, the new money would be treated the same as existing filing fees.
The District Court filing fee would go from $31 to $55 and the small claims fee from $10 to $18, both roughly in line with the increase in the Superior Court fee. The jury demand fee in District Court would be increased from $50 to $125 for a six-person jury and from $100 to $250 for a 12-person jury, bringing them in line with the fees in Superior Court.
Conclusion
The legislative proposals for the up-coming session represent a down payment on the funding gap and the beginning of necessary structural reforms. I urge you to inform yourself about these legislative proposals. If lawyers are not knowledgeable and articulate advocates for the proposals, who will be?
In addition to urging your support for these proposals, I must also point out that the legal community cannot just ask the legislature for funding. The money has to come from somewhere. The legislature faces a billion dollar deficit. The legal community must also be prepared to support the taxes necessary to provide funding it seeks.
John Cary is KCBA president. He can be reached at caryj@att.net.
