January 2004
Justice in Jeopardy: Inadequate Funding of Our Trial Courts
by Jan Michels, WSBA Executive Director
Democracy means agreeing to submit to conditions of being governed — a social contract — in exchange for a voice in how that governance is enacted. The rule of law is simply the statement of this social contract.
The principles that underlay the conditions of our social contracts are based on the Constitution and the Bill of Rights, and are elaborated through law both civil and criminal and legal decisions. The U.S. Congress and state legislatures are responsible for citizens' social contracts, the fibers that weave and manage our interactions with each other in a way that permits an orderly social system where we can interact safely with strangers. Living under these social contracts requires the means to enforce laws consistently, timely, and under agreed and predictable procedures. We depend on the law to spell out ways to bring grievance, and allow recourse and redress for violations. The rule of law depends on the courts to judge the degree of transgression and the remedy. Without a consistent, timely, and predictable forum for conflicts, we deteriorate into feudal, corrupt, and/or bifurcated justice, where outcome is based on extraneous factors such as race, family, income, power, or wealth.
The Court Funding Task Force — a response to the jeopardy
In response to the growing gap between current and adequate funding of the trial courts, the Board for Judicial Administration created the Court Funding Task Force. Chief Justice Gerry Alexander asked Wayne Blair to chair the task force. The task force divided into five workgroups to tackle the issues: define the problem, develop funding alternatives, resolve the structural questions in the courts of limited jurisdiction, implement the funding recommendations, and educate the public on the importance of adequate funding. The workgroup chairs have collaborated to develop a list of 13 preliminary principles to govern their work, including:
• Funding the trial courts is a general government responsibility.
• State and local governments should equitably share responsibility for funding the trial courts.
• Court structures must support the independence of the judicial branch.
• The mission of the trial courts is to resolve disputes under the law; they are not self-funding nor meant as revenue generators.
• Trial courts are accountable for the funds appropriated to court operations.
The problem defined
The functions of Washington trial courts have been delineated within the broader contexts of the judicial branch, the justice system, and the public to include judicial decision-making, decision-making support, staff support, court records (county clerks), and juvenile court operations. The actual expenditures for trial court functions were calculated at $417 million in 2000. A carefully crafted formula used for projecting adequate funding (needed judicial and staff positions, and non-personnel costs funded) was applied to 2000 figures to demonstrate a current estimate of the 2003 need for $452 million — a $60 million gap.
Funding alternatives
With the known gap of $60 million, the search for a viable revenue source and equitable state/local funding formula is proceeding. Right now, the state of Washington pays 10.9 percent of the cost of operating our trial courts — the lowest state contribution to trial courts in the nation. A workgroup is exploring Washington's tax structure, current and possible court-revenue sources, the viability of the public safety and education account, and other states' experience with court funding to develop recommendations for stable and adequate future funding. The task force recognizes that there may not be enough state general-fund revenue to meet the needs of education, health care, and general government, and that the hard choices may come down to the "T" word, but citizens have demonstrated a willingness to fund public-safety and justice-system functions before.
Courts of limited jurisdiction (CLJ) structure
The search for a CLJ structure that satisfies citizen access, judicial independence, and the interests of cities and counties has been daunting, and is not yet finished. Issues regarding the election/selection of judges, existing jurisdictional options, and inter-court contracting options are being examined with CLJ judiciary, cities and counties, and local elected officials.
Implementation strategy
The task force is planning to have the funding strategy ready for the 2005 legislative session. Details of the plan will be disseminated and discussed as they are developed in the coming year. No one doubts that implementing a new trial-court-funding plan will be hard fought and long term, but we also know that adequate funding of the trial courts is a must, and that the current mechanisms, if allowed to continue, will not be able to assure fair and equitable justice. Adequate, stable funding must start with a plan.
Education
To move to adequate funding of the trial courts, we need grassroots citizen, bar association, legislative, judicial, and state and local elected-official support. The task force has a huge array of compelling anecdotes and documentation about what happens to justice and citizens when the courts are not inadequately funded — these need to be put to use as education tools. The story is so much more than cold calculations and dollar figures!
Conclusion
So back to justice in jeopardy. Not adequately funding the trial courts over the long-term is a danger to our democracy. We joke about being "Californificated" with pop-culture values and movie-star surrealism, but we could also be "Oregonized" with court closures, non-prosecution of misdemeanors, and years-long waits for a "day in court." We cannot let inadequate funding jeopardize our democracy. Let's not let this happen in Washington!
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