By Chief Justice Gerry Alexander and Judge Deborah Fleck

We undertook nothing less than the most significant reform effort of Washington’s judicial branch since statehood, an initiative that many said was impossible to launch in this era of state and local government fiscal crisis. Yet together with our partners, the judicial branch forged ahead. From the first Trial Court Funding Task Force meeting in October of 2002, through dozens of Work Group, Steering Committee and Task Force meetings, we gathered information, analyzed data and developed recommendations. Published by the Board for Judicial Administration in December, 2004, the report, Justice in Jeopardy: The Court Funding Crisis in Washington State, charts a sound course to provide adequate and stable funding for our trial courts.

We had no choice but to move forward. With Washington courts cutting staff and seriously considering other steps, we started on this path committed to avoiding the damaging, crisis-driven responses in other states. Closing courts for part of the week, cutting court staff pay by 10%, cutting court hours, eliminating critical staff and closing courtrooms, asking staff to take leave without pay, dismissing criminal cases because of an inability to provide public defenders --these cost-cutting steps in other states were simply unacceptable.

With this issue of the Bar Bulletin devoted to the Justice in Jeopardy effort, we are happy to share some good news.

As this article is being submitted, we do not yet know the final outcome of our 2005 legislative proposals. What we do know is that working together as an effective coalition, the judiciary, the bar, the indigent defense community, and the civil equal justice community have convinced the Washington State Legislature that the state must step up to help fund its trial courts.

What are the indicia for us to make that statement? To date, Engrossed Second Substitute Senate Bill 5454 (a bill devoted to court operations) passed the Senate almost unanimously with full bipartisan support--only three senators voted nay.

The bill will shift 50% of the district court judges’ salaries and those of elected municipal court judges to the state, will establish Trial Court Improvement Accounts with 50% of the local government savings from that shift, and will bring almost 13 million to the state and approximately 19 million to counties per biennium through increased filing fees and Clerks’ Office ministerial fees.

We had the full support of the counties, as well as the support of the Association of Washington Business and the Collectors’ Association. This powerful coalition persuaded Washington’s senators to vote overwhelmingly in favor of the bill.

While only the Senate was willing to pass a bill making a statutory commitment to fund increased parental representation for indigent parents in dependency and termination proceedings (Senate Bill 5903), state funding for this is provided in all three budgets issued to date. Although the state’s Attorney General brings the cases involving abused and neglected children, historically counties have borne the entire cost to meet the constitutional requirement of providing attorneys for parents.

Starting with pilot projects in Pierce and Benton/Franklin Counties, Joanne Moore, Director of the Washington State Office of Public Defense has shown that adequate funding coupled with caseload and other standards greatly improves the system by enabling more reunifications between parents and children, averaging a 50% reunification rate increase. The pilots have also shown dramatic declines in attorney delays and continuances. These changes generate significant savings potential to the state in yearly foster care payments after judicial officers determine children can be safely reunified with their families.

Given the clearly documented improvements over a system troubled with burdensome caseloads and the inability to provide minimally adequate representation, we expect the state will meet its responsibility in every county to fund this constitutional mandate.

All three budgets provide increased funding for civil legal services. After the Supreme Court’s Task Force on Civil Equal Justice Funding published the Civil Legal Needs Study, support has increased dramatically in recognition that real justice does not exist in a system unless we all have access to the courts.

Documenting that 87% of the one million low-income and vulnerable people in Washington have legal needs that go unmet each year in such critical areas as housing and domestic violence, the Civil Legal Needs Study put a face to the injustices the poor and vulnerable experience in our state.

In response, the House and Senate both passed Substitute House Bill 1747 to establish a state Office of Civil Legal Aid under the judicial branch, similar to the state Office of Public Defense. If ultimately signed by the Governor, this Office will administer and oversee state funds devoted to meeting the needs of the poor and vulnerable.

Second Substitute House Bill 1542 has also been passed by both houses of the legislature. This bill is designed to provide a state “down payment” on woefully inadequate criminal indigent defense funding, albeit with “null and void” language if funding isn’t provided.

The need for significant improvement in criminal indigent defense has been validated by the Washington State Bar Association’s Blue Ribbon Panel on Criminal Defense, the Seattle Times series of articles in 2004 on the crisis in indigent defense and by an additional American Civil Liberties Union (ACLU) study. Counties currently bear this entire fiscal responsibility.

At a minimum, we expect that the Washington State Office of Public Defense will receive sufficient funding to provide intensive training to new public defenders, to give legal advice and expert services to those public defenders, particularly in isolated areas around the state, and to work with public defenders as they enter into appropriate contracts with local government. We hope that the state will also fund some of the cost of providing constitutionally mandated public defenders, or as an alternative, fund pilot projects.

During an incredibly difficult budget year, some may wonder why our bills have received such remarkable support to date. What has made the difference when the legislature is facing a $1.6 billion budget deficit?

First, tremendous credit goes to legislators from around the state--they have listened and then acted responsibly, keeping bills alive to provide crucial funding for the trial courts. As stated in a Seattle Post Intelligencer editorial, “[w]ith the exception of the constitutionally mandated “paramount duty” to provide for public education, there is no function closer to the core of civil government or of greater priority of government than the assurance of justice to its citizens.” Legislators have recognized that fundamental principle.

This may well be one of those watershed years when the legislature begins to tackle a striking need. Some legislative years have been like that--the legislature that started the community college system is just one example. Our hope is that the 2005 legislature will be remembered as the “Legislature for Justice,” the one in which a major first step was taken to provide adequate and stable funding for our trial courts. Credit also goes to the members of the Task Force and its Work Groups and subcommittees who labored intensively for over two years creating the roadmap for funding the trial courts properly and to former Court Admini-strator Mary McQueen, current Court Administrator Janet McLane and Board for Judicial Administration Director Jeff Hall for their professional guidance and administrative support. Credit also goes to the judges and others who attended pre-session legislative dinners, met with local newspapers and civic groups and who have repeatedly met with legislators--in person, by telephone and email--as well as testified before the legislative committees. Finally, we are indebted to our legislative liaisons in Olympia for skillfully shepherding our bills each step of the way.

As leaders in the nation, we were the first state to establish a Task Force to spell out the path to adequate, stable trial court funding in the worst fiscal crisis facing courts in 50 years.

One of many strengths of Washing-ton’s Trial Court Funding Task Force was its composition--Wayne Blair, past president of both the King County Bar Association and Washington State Bar Association, devoted literally hundreds of hours providing outstanding leadership as the chair. With members from all groups that have an abiding interest in the health and well-being of the trial courts--judges and lawyers of course, business and labor, the public, the media, academia, court clerks and administrators as well as good government organizations such as the League of Women Voters--we rolled up our sleeves and developed a roadmap to achieve the goal of securing adequate and stable trial court funding.

In some ways, the work is just beginning and we are prepared to stay the course. The Board for Judicial Administration created a new Trial Court Funding Implementation Committee to do just that. We are committed to the fundamental principle that the judicial branch of government--the branch that is critical to maintaining the rule of law in a free society, that is essential to the protection of the rights and the enforcement of obligations for all--must be supported with adequate and stable funding.

Our ultimate goal is a phased-in approach over several biennia, shifting those costs to the state that have the closest nexus to state mandates, filling the gap in funding (particularly in judge positions, indigent defense, dependency representation and civil legal services for the poor) and establishing trial court improvement accounts at the local level with 50 percent of the savings from costs shifted to the state. All are key structural elements of our long-term plan.

Ours is a balanced approach, one that diversifies our funding, like the tried and true advice for an investment portfolio. We have not taken the path of our neighboring states to the south, Oregon and California, which have turned to full state funding and have not fared well. Rather, we have pursued a path that will shift to the state those items that cannot be cut such as judges’ salaries, jury and interpreter costs, and making the record, among others.

Paradoxically of course, those are the very items that local government would never cut either, leaving the courts’ administrative expenses still vulnerable at the local level. That is where our Trial Court Improvement Accounts will help Ð they are intended to be used to improve court operations, to let each locality test new innovations, efficiencies and pilot projects. To keep the stream of funding these accounts alive, courts will need to be very careful not to effectively eliminate them by funding permanent positions for judicial officers or court staff. We have brought the only money we will ever be able to bring to the table, providing much needed relief to local government if passed as well as funding at the state level to meet the first phase of the shift of responsibility to the state for its mandates.

We are indebted to KCBA President John Cary and to Washington State Bar Association President Ron Ward. Both have used their leadership platforms effectively to educate the bar and the public about the work of the Task Force and the Justice in Jeopardy plan. We urge you to view the Court Funding Task Force final report and executive summary on the courts’ website, www.courts.wa.gov (click on “Boards and Commissions”) or visit the King County Bar Association’s heading “Justice in Jeopardy.” We will need your support in the coming years to make adequate and stable trial court funding a reality.