January 2003

The Board's Work

by Lindsay Thompson

EVERETT, December 6-7, 2002 — The Road Show rolled into Everett and, while there, the govs handled the usual sorts of things — reports, appointments, deciding whether to support legislation in Olympia — but mostly they worked on what to do about funding indigent legal services. State funding reductions, falling IOLTA funds and their interest rates, and no inflation adjustments to legal-services funding in a decade, taken together, puts legal services for the poor in a world of hurt.

Various bodies in The Legal System, considering the matter in the last few months as the shortfalls got bigger, more or less concluded through autumn and early winter that no one will escape Governor Locke's budget ax, and there won't be any new taxes adopted for anything. So to hold the line until the economy turns around and state revenues reach their customary levels, and longer-term solutions to court and indigent-services funding can be developed, there has to be a new revenue source for legal services.

The proposed solution? Raise the civil case-filing fee to $200, maintaining the current state/county split of filing-fee revenue to the new, higher fee, and dedicating the state share to legal-services funding.

Politics being politics, the logrolling started in December, giving the matter its urgency. Something like this has to have all the major players — courts, WSTLA, defense bar, county clerks, WSBA, county governments and others — singing off the same page.

The question percolating at this meeting was: do the govs sign off on the proposal right then and there, or try and get as much input as they can in a very short time? WSTLA and the King County Bar, through their liaisons, asked the govs to hold off a little while — a week or so — so their governing bodies could think the matter through and maybe offer some alternatives.

One WSTLA idea that floated through the room was that a filing-fee increase will fall most heavily on its members and family law attorneys: maybe an answer fee could be imposed to spread the burden around a bit. That, of course, implicates interests of the defense bar and the Family Law Section, so you gotta go out and ask what they think, too (nobody, mind you, was suggesting not consulting around as broadly as possible. The issue was how much can get done in a very short time?). And if you tinker with the state/county split on filing fees, the counties roll into action.

WSBA Legislative Committee Chair Michelle Radosevich and WSBA Legislative Director Gail Stone laid out the political/budget situations for the board. All the major players support legal services as a state responsibility, they reported. The trouble is there's no dedicated funding source. Governor Ken Davidson recalled funding came for years from the Public Safety and Education account, but in the '90s it got shifted to the General Fund, and now is looking at being moved back to PSEA. Even if you have a dedicated fund, there is no assuring it won't get reallocated or moved over time.

The Washington Women Lawyers' representative suggested the filing-fee increase will hit people who can't afford the current fee, and suggested trying to float a graduated fee scale. WSBA Executive Director Jan Michels said that Joan Fairbanks, WSBA's justice programs manager, is working on a revision of the in forma pauperis rules to try and take such issues more into account.

Governor Jon Ostlund thought $200 may be too high to sell, and suggested $110 to $150. Davidson — and for that matter, all the governors — said their constituent e-mail broke roughly half and half. Davidson's constituents wrote the longest responses opposing answer fees. Governor Paul Lehto said it's inequitable just to charge plaintiffs. He's willing to support an emergency measure but not an increase that will last forever. Stone and Radosevich reminded the board there's a Supreme Court task force on court operations and funding that is looking at the broader issue of how the courts are being strangled by lack of funds, but there's nothing it can come up with as part of a global solution in time to address the legal-services funding crisis.

Governor Ron Ward, a WSTLA member, said if he were acting out of self-interest he'd oppose the increase. "But we are supposed to represent the interests of the justice system as a whole. The political reality is that this is the only thing that will likely pass now. The other ideas to spread the burden around will have to come later."

Governor Bill Hyslop said his eastern Washington constituents worry the Legislature, having jacked up the filing fee, may decide to move the money earmarked for legal services somewhere else in the future. They expressed concerns that landlord-tenant, family law, and employment/wage-dispute litigants will shoulder the burden of the increase. "This is not lawyers' money. It's clients'."

Attorney Julian Dewell, the Access to Justice Board rep, reminded the BOG that people his age could remember when there was, in fact, an answer fee in Washington, so it wouldn't be something new under the sun if one were re-adopted.

After discussion Friday and Saturday, the board voted to have a special meeting December 19 in Seattle to make a decision on whether to endorse the proposed increase.

SEATTLE, December 19, 2002 — The board reconvened at the WSBA office to review the situation. Eight were present in person; the rest participated by telephone. WSTLA president Steve Toole and lobbyist Larry Shannon presented some financial-impact information developed to see how the increase would hit some types of litigants harder than others, and proposed that in counties with mandatory arbitration, a credit be given in light of the charge of up to $220 counties can levy to help finance MAR programs. Family Law Section liaison Pete Karademos argued for exempting antiharassment cases as well.

Others responded that special pleading, however valid, would be one of the quickest ways to kill the filing-fee bill. Those opposed to it would be able to latch on to one or another type of filing not being exempted, and use that as a more palatable basis for opposition than coming right out and saying they don't like funding indigent legal services. Gail Stone and Michelle Radosevich expressed concern that a piecemeal approach would also make it easier to splinter the coalition that will be needed to get a bill through.

Several govs made clear they'd support the filing-fee increase but with some considerable distaste. Paul Lehto likened it to a poll tax and Andrea Brenneke worried that jacking up the filing fee to preserve access to justice for some could be seen as creating its own impediment to access to justice for others. State courts administrator Mary McQueen, who doesn't speak up often and so gets paid attention to when she does because you know it's important, said she is really afraid for the future of legal-services funding in the current fiscal climate. She urged the board to keep the filing-fee bill simple and let the Legislative Committee and Stone deal with alternate ideas — like the MAR exemption that might come up once the bill is introduced.

The consensus emerged fairly quickly that a solid front behind a simple plan is the best bet — a complicated, nuanced bill that tries to placate every interest will die of a thousand amendments.

After 90 minutes' debate the board voted to support the filing-fee increase with a resolution making clear it is a stopgap, and pledging to work with the courts and Legislature on more equitable, long-term solutions.

The board and the bill now move to Olympia; the governors meet there in January.