Justice in Jeopardy--It’s Time for the Bar to Join the Tax Debate
By John Cary
On a typical day, Governor Gregoire “heard constant pleas for money from the state budget. Her stock answer was a challenge: 'Please tell me where we’re going to get the money.’ “ - Seattle Times, February 22, 2005
Let me put my conclusion at the beginning. The present system for funding justice is broken. Whether it can be repaired in the context of the present Washington state tax system is questionable. As a result, the legal profession, acting through its bar associations and other appropriate professional organizations, should join with other interested organizations--civic, professional and otherwise--to consider changes that would make the state tax system adequate to meet the demands made upon it. The possibility of adding an income tax should not be omitted from the debate.
How do I reach this conclusion?
As I write, the legislature is looking a deficit of about $2.2 billion. The state has faced similar deficits in the last two legislatures. Unlike the federal government, the state must balance its budget. It cannot leave the deficit for the next generation to pay. The state must increase revenues, cut programs, or do some of each in order to balance the budget.
In recent years, voter initiatives have reduced or limited revenue from the major taxes. But expenses continue to grow as the state’s population increases and cost levels, especially health costs, go up. Budget writers say that the state has a structural budget deficit--expenses will grow faster than revenues. It will be not enough to hold programs at last year’s levels. Programs must be cut back in every budget cycle to stay within available revenues. The deficit will be with us in the future.
In this environment, the Governor’s challenge is inevitable. What else can she say but “show me the money.”
Lawyers are not on the sidelines in the budget debate. We are among the crowd of petitioners for state funds.
As Chief Justice Gerry Alexander pointed out in his State of the Judiciary address, justice is in jeopardy--underfunded trial courts unable to render timely and quality justice, a broken and crisis-ridden public defense system, and a civil legal aid program so strapped that it is unavailable to 85 percent of those who need it.
Stop-gap funding in the tens of millions has been requested for public defense, civil legal aid, and court operations. The bar also supports the state Office of Public Defense request to reform and fund parental representation programs.
This year’s requests are only a down-payment. After a two-year study, the Trial Court Funding Task Force found a $213 million short-fall in funding for the justice system. We will be back with funding requests in the next legislature and in the more distant future.
It is not only a funding gap that must be filled. The basic system for funding justice must be fixed. Since statehood, local government has funded the bulk of trial court costs--roughly 85 percent at present. The Chief Justice pointed out in his address that this funding mechanism was satisfactory when case loads were smaller and responded to local forces and when local government had fewer obligations. Today, however, laws enacted by the state legislature drive a good portion of the case load and local government has an even more serious structural budget deficit than state government. The state government must pick up a substantial share of the cost of justice. Local government can no longer carry the burden alone. And, the shift from local to state funding must be paid for.
In short, the legal profession has a sizeable agenda for state funds. As a result, we cannot ignore the Governor’s challenge.
Governor Gregoire is not the first person to ask where the money is to come from. The challenge was so inevitable that the Trial Court Funding Task Force was charged not only to estimate the funding gap but also to find a reliable source of funding. The Task Force came to somewhat disheartening, but not surprising, conclusions. There is no overlooked or unused tax. Moreover, there is no source of funding for which there are not multiple claimants. Finally, unlike roads and the gasoline tax, there is no specific tax that bears a close nexus to the courts and justice. There is no tax to which justice can assert a prior claim.
I was a member of the Task Force and contin-ue as a member of the Board of Judi-cial Administration committee formed to carry out Task Force recommendations. I came away from the Task Force experience with two strong convictions. First, the bulk of the state’s share of funding for justice should come from its general fund and not from a particular tax and certainly not from undue reliance on user fees, fines and assessments. The courts and justice are so integral to our society and system of government that they must find their support in the broadest and most general stream of revenues. As the aggregation of the largest and most general taxes, the state general fund is the proper source of justice funding. Second, we cannot ask for money from the general fund without also participating in the effort to make sure that general fund revenues are adequate.
There are also practical reasons to be a participant in the tax discussion. First is self-protection. Sales tax on legal services and B&O tax increases always lurk in the background. We might find the legislature resorting to one or the other to fill the budget gap. Second is self-interest. We want to have input not only on the taxes we pay but also on what those taxes pay for. If we are not at the table, the odds are small that our interests will be protected.
It is easy to dismiss taxes as a matter of social policy best left to the individual and to political organizations. This is usually the right answer. But I suggest that present circumstances change the answer and make taxes a proper subject for the profession.
KCBA bylaws require that it not take a position on a public issue until its board is satisfied that the issue is one of concern to lawyers and that the position of the association would be useful. The state bar is prohibited from taking positions on political or social issues that do not relate to or affect the practice of law or the administration of justice.
I suggest that taxes now fall within these strictures.
It is a clear concern of KCBA that the courts are adequately funded. At the local level we have always supported the court’s budget before the King County Council. We have greatly increased our efforts since mandatory arbitration first came under the budget ax in 1996. We have been among the leaders in calling for state reforms in court funding. KCBA has always been a prominent, reliable advocate for public defender and legal aid programs. Indeed, KCBA was present at the creation of both programs. Court funding, public defense, and legal aid are just the programs at stake in the discussion of taxes and they are of concern to us. Our position would be useful. It is perhaps enough that we are a significant voice in the community. But it would be more useful to bring the legal profession into the tax discussion. While neither King County lawyers nor the entire state bar can by themselves affect as large an issue as taxes, they could make a significant contribution to a coalition of other interests.
The analysis is similar for the state bar. Funding the courts, public defense and legal aid surely falls within WSBA’s ambit
The difficult part of the argument is making the connection between matters of clear concern to the bar--funding courts, public defense and legal aid--and discussing the structure and adequacy of state taxes. The Task Force exposed this connection. Because there is no specific tax with a strong nexus to justice, funding justice becomes a matter of the general fund. It follows that if one wants to draw out of the general fund, one must inescapably be involved with what goes into the general fund.
I do not recommend any specific changes to Washington state taxes. I merely suggest that legal profession put aside its traditional abstinence and join in the debate over state taxes.
John Cary is KCBA president. He can be reached at caryj@att.net.
