Washington's trial courts and criminal indigent defense programs are funded almost entirely by local governments. And expenditures on law enforcement, prosecutors, courts, jails and public defense make up 70% of King County's general fund (other counties have similar or higher percentages).
Beginning in the late 1990s, local governments in Washington found themselves in a structural deficit - increases in property tax revenue were capped at a rate lower than the rate of increase in costs. In King County, we saw the impact on the trial courts - year after year, the courts eliminated programs and stretched their staffs to do more with less. Other Washington counties faced the same (and sometimes worse) problems.
In April 2002, the Washington Board of Judicial Administration commissioned the Trial Court Funding Task Force. Drawing on the efforts of about 100 volunteers with broad-based backgrounds and working through five work groups, the Task Force examined every aspect of trial court funding - from unmet needs to sources of funding.
In December 2004, the Task Force issued its recommendations and presented two major conclusions. First, there was a significant gap in funding between needs and revenue, estimated to be about $54 million annually. Second, the funding system itself, which dates from the time of statehood, was far out of date.
The system worked well while local governments' revenues were as robust as the State's and when disputes were mostly local. But the State now has much greater financial strength than local governments. Moreover, the State drives the workload with an ever-increasing number of statutes and state mandates.
The Task Force recommended reform, but rather than moving to an entirely state-funded approach, the Task Force recommended a balanced, incremental approach in which the State and local governments share the burden. Rather than simply shift local government expenses to the State in one dramatic reorganization, a year-by-year approach was envisioned to reduce the gap in funding as opportunities arise and make a gradual transition to a balanced state-local funding system.
At the same time, the Supreme Court's Task Force on Civil Equal Justice Funding and the Washington State Bar Association's Blue Ribbon Panel on Criminal Defense also recommended significant additional state funding ($132 million annually for indigent defense and $18 million for civil legal aid). Together, the three groups reported an annual funding gap of nearly $204 million. Under the theme of Justice in Jeopardy, the groups behind the task forces agreed to approach the Legislature in a coordinated effort and to use an incremental approach.
Structural Reform
In 2005, SB 5454 acknowledged the State's responsibility for justice system funding and created a budget mechanism for disbursing funds, including: (1) at the state level, an Equal Justice account dedicated to public defense, civil legal aid, and district and municipal court judges' salaries; and (2) at the local level, Trial Court Improvement accounts to capture new state funding for new projects to improve court operations.
Moreover, the Legislature expanded the mandate of the state Office of Public Defense (OPD), which had previously focused on appeals in criminal cases and parental representation, to include a new statewide program to assist and improve public defense. Finally, the Legislature created an independent Office of Civil Legal Aid (OCLA) within the judicial branch with authority to administer state-funded legal aid programs for low-income persons.
Working on the Funding Gap
Increased fees under SB 5454 were divided between the new state and local government accounts. Each of the following measures increases the total amount of funding for the system, thereby reducing the funding gap, and, at the same time, gradually increasing the State's share of funding.
District and Municipal Judges: The Washington constitution requires the State to pay 50% of Superior Court judges' salaries. SB 5454 directs state funds to district and municipal courts for the first time. Since 2005, the State has paid local governments about $10,000 per judge. Hereafter, up to half of the Equal Justice account balance will go to district and municipal court judges' salaries, eventually reaching about 50% of the load. This will free local funds for the Trial Court Improvement account projects.
Juror Pay: Juror pay has been $10 per day since 1959, which is believed to be one reason for the dismal rate of responses to jury summonses. In 2006, the Legislature funded pilot projects in Des Moines Municipal Court and Superior and District Courts in Franklin and Clark counties. The projects pay jurors the minimum daily wage - about $61 per day - and these courts are tracking juror response rates and demographics. Improved pay is expected to result in: (1) jury pools being more representative of the community; (2) reduced costs of summoning a jury pool; and (3) decreased court time on hardship excuses.
Court Interpreters: The Legislature's one-time promise to provide court interpreters left it to local governments to pay the bill, leaving the promise unfulfilled. The Supreme Court requested $7.8 million from the 2007 Legislature for interpreters over the next biennium, proposing pay of $50 per hour for certified and registered interpreters, with the State bearing half the cost.
CASA: State and federal laws require the appointment of a guardian ad litem for all abused or neglected children in dependency cases. CASA volunteers are able to represent only about half the children who need their assistance. Washington CASA requested $13.6 million in the current legislative session to expand the program to unserved counties and to fund additional CASA coordinators to recruit and organize volunteers. The plan is to leverage state, county and private funds with the services of local community volunteers to increase the extent and quality of representation.
Indigent Criminal Defense
Until 2005, the burden of indigent criminal defense was borne almost entirely by local governments. Under SB 5454, the State recognized its responsibility and designated the OPD to upgrade public defense throughout the state. It gave OPD funding for pilot programs in three jurisdictions to increase the number of public defenders, reduce caseloads and provide quality control.
The State's contribution was a modest $3 million in 2006. OPD has requested $9.5 million for 2007. OPD also is responsible for parental representation in dependency and termination cases. The Legislature expanded the program in 2005 and 2006. In the current legislative session, OPD requested another $8 million to expand the program to the entire state.
Civil Legal Aid
In 2005, the Legislature appropriated an additional $3 million for civil legal aid as the first step in closing an $18 million gap. In 2006, responding to reprogrammed federal funding, OCLA continued services that otherwise would have been terminated. The Legislature supported the effort with a $600,000 appropriation.
In the end, OCLA was able to upgrade its domestic violence program with specialized intake, advice and emergency assistance to domestic violence survivors and victim advocates and to continue emergency services to its clients. OCLA requested an additional $4.8 million from the 2007 Legislature for the next biennium.
Your Support Is Needed
The mechanisms for reforming the funding system are in place. A modest start has been made on the funding gap. But - no surprise - the hard work of actually closing the gap remains ahead of us. Like this year, you can expect to see requests for trial court, indigent defense and civil legal services programs under the banner of Justice in Jeopardy in every session of the Legislature for a number of years. Individually, the program changes may seem small, but, taken together, they will represent the greatest change in the justice funding system since statehood.
Your support is needed. Let your legislators know that the Justice in Jeopardy program is the foundation of a strong system of justice for Washington.
John Cary was the 2004-05 president of the King County Bar Association and served as a member of the Trial Court Funding Task Force.
Wayne Blair was the 1987-88 President of the King County Bar Association and the 1998-99 president of the Washington State Bar Association, and served as chair of the Trial Court Funding Task Force.
