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November 2009Justice in Jeopardy 101by Chief Justice Gerry Alexander, Judge Deborah Fleck, and Jeff Hall We knew two things when we started down this path in 2002: first, that justice is the business of government; and second, that justice was in jeopardy in the state of Washington. Why Should We Care? If you ask anyone, "Should trial courts dispense justice?" No doubt the answer will be a resounding "Yes!" But what if our trial courts struggle to provide an accessible, fair forum to promptly resolve cases because they lack adequate and stable funding? Why should every lawyer, every person living in Washington, care? Just imagine that you cannot speak English and that no one in court can translate what is happening for you. Or imagine that your children have been taken away, or that you are charged with a crime but your case has been assigned to a defense attorney burdened with too many cases. Consider the effect on your business or your life when you can't receive a timely trial because of crowded court calendars. What if you cannot get even the most elementary legal advice on how to obtain a domestic violence protection order because you are poor? In 2002, these were just a few examples of the state of affairs faced by Washington's trial courts. These conditions have profound implications for our justice system. The cause is an antiquated county- and city-based funding structure. "Year after year, the trial courts faced budget woes that interfered with the judges' ability to provide equal, timely, and accessible justice," said Wayne Blair, a past president of the Washington State Bar Association and chair of the Trial Court Funding Task Force. "It was clear that we needed to restructure how trial courts are funded." Our goal was nothing less than to achieve adequate, stable, and long-term funding for the trial courts, and ultimately for indigent criminal defense, parent dependency representation, and civil legal aid for the poor. First, the Good News Between 2005 and 2008, the Washington Legislature provided $78 million per biennium in new funding for the trial courts, the counties, indigent criminal defense, parent dependency representation, and civil legal aid. Even in 2009, in the worst economic crisis since the 1930s, we retained $75 million per biennium — almost 96 percent — a success by any measure. The Justice in Jeopardy Initiative continues to be the most significant reform effort of the judicial branch since statehood. We are on the right path, and we will continue working with the Legislature until we can deliver on the promise of equal and accessible justice for all. Where We Started For over 100 years, the counties and cities shouldered almost the entire financial burden of the trial courts. By 2002, it was clear that local government lacked sufficient revenue sources to fund the trial courts and related judicial branch services adequately. Here's a snapshot: Crowded calendars in trial courts across the state resulted in long delays. In 2002, in one county, courts were jammed with approximately 6,000 felonies in addition to civil cases. Some judges were hearing 70 cases a day. One man, freed when his case was not tried by the deadline, broke into a home and raped a young mother. Then, while fleeing police, he crashed into a young man on his way home from work and killed him instantly. Crowded calendars also delayed dependency hearings, in one case contributing to the death of a three-year-old girl. Public defense was so poorly funded in many counties that convictions were being overturned as a result of ineffective counsel. In an eastern Washington county, one man served his full five-year sentence before his conviction was reversed, as did a 14-year-old boy, who served one year in a juvenile facility for robbery before an appeals court reversed the conviction, calling his attorney's performance "inexplicable." In 2002, in a western Washington county, one defender had a caseload of 587 cases, more than six times the recommended national standard. The American Civil Liberties Union filed suit against another county for failing to provide adequate public defense, and the Seattle Times chronicled the state's uneven public defense system in a special series entitled "An Unequal Defense: The Failed Promise of Justice for the Poor." Civil legal aid for the state's low-income residents continued to decline. The number of legal aid attorneys shrunk from 140 to just over 100 because funding was cut back by nearly a third between 1980 and 2004. During the same period, the state's low-income population doubled. A ground-breaking study released in 2003 surprised even long-time civil legal aid advocates, showing that only 15 percent of Washington low-income residents with serious civil legal problems received any help. These serious problems made headlines, but there was more. Thousands of dependent children had no legally required guardians ad litem, the need for qualified interpreters mushroomed, and crowded court calendars meant cases were repeatedly continued. Our information systems desperately needed upgrades. Probation services were being slashed, leaving no one to supervise offenders. For three decades, seven judicial branch task forces and commissions recommended that the Board for Judicial Administration (BJA) [1] directly address the problem of trial court funding. In 2002, the BJA did just that, creating the Trial Court Funding Task Force. More than 100 people from every stakeholder group [2] devoted thousands of hours from 2002 to 2004 to this effort, studying and then recommending how to achieve "adequate, stable, and long-term funding for the trial courts." Its report, Justice in Jeopardy: The Court Funding Crisis in Washington State, was published in December 2004. By that time, the WSBA had completed its examination of public defense, and the Supreme Court's Civil Equal Justice Task Force had published its ground-breaking report. [3] These three reports became the core of the Justice in Jeopardy Initiative, which seeks to completely restructure how trial courts, indigent criminal defense, and parent dependency representation are funded and calls for additional funding for civil legal aid for the poor. Nexus Approach The BJA adopted an approach that draws a nexus between those activities the state mandates by Constitution or statute and those it should pay for, such as judges' salaries, juries, interpreters, guardians ad litem for children, recordings of proceedings, and costs for criminal indigent defense and parent dependency representation. When the Justice in Jeopardy Initiative is completed, the state and counties will share roughly equally in trial court costs and indigent defense. Like maintaining a balanced investment portfolio, we believe this shared responsibility is the best approach for funding Washington's trial courts and related judicial branch services. Other states have shifted to total state funding with disastrous results. Courts have been forced to close for certain periods in Oregon and California, for example, and judicial branch budgets have been slashed in many states. The nexus approach appears more secure, because required costs such as jury and interpreter expenses and judges' salaries are less likely to be cut, leaving judges to work with local elected officials for the balance of court budgets. Several principles adopted by the BJA form the foundation of the Justice in Jeopardy Initiative. A few are especially important to remember as we continue our efforts to ensure that Washington's trial courts are fair, timely, and accessible: Branch of government — general taxes. As a branch of government, courts should be funded largely by general tax revenues, not by user fees. User fees. Reasonable user fees that initiate a case (filing fees, cross, counter, and third-party claims) are appropriate. User fees to prosecute or defend a case (answer fees, motion fees, etc.) are not appropriate. State's obligation. The state should contribute equitably to the cost of the trial courts. These principles are consistent with a 2009 survey by the National Center for State Courts [4] that shows four out of five members of the public oppose raising fees to bring cases to court. The public understands that even if they never use it themselves, an accessible, fair court system is critical to a free society, similar to publicly funded education, police, and fire departments. Gaining Ground When we introduced the Justice in Jeopardy Initiative during the 2005 legislative session, we knew there was a tough road ahead. The report was published one month before the session started. We were seeking major policy changes by asking the state to take over substantial trial court and related expenses it had never paid before, when the state faced a $1.6 billion budget deficit. But our state's legislators stepped firmly up to the plate, devoting 100 percent of the state's share of a filing fee increase — $12.7 million per biennium — to trial court operations, indigent criminal defense, parent dependency representation, and civil legal aid, as well as providing money from the state's general fund. Legislators agreed that the state has an obligation to participate more fully in funding the state's trial court system "ensuring equal justice for all citizens of the state." Legislators also established the Office of Civil Legal Aid within the judicial branch. "We prioritize K–12 education, human services, and business health in our state when we allocate dollars, but the soundness of our justice system needs to be right up there, high on that list," said state Senator Margarita Prentice, a strong supporter of the Justice in Jeopardy Initiative from its inception. Overburdened counties and cities also gained $19.8 million per biennium in new revenue to local general funds from their share of the 2005 filing fee increase. Speaking with One Voice Hearing the judicial branch "speak with one voice," the state Legislature provided $78 million per biennium between 2005 and 2008, and in 2009, honored its commitment to the trial courts by preserving 96 percent of these gains. For the courts, this has been a good start. The state has now begun sharing in the costs of limited jurisdiction court judges' salaries, interpreters, and Court Appointed Special Advocates (CASAs) for dependent children. It also provides family and juvenile court improvement grants and has funded a juror-pay pilot project. The state also pays 100 percent of the cost of parent dependency representation covering two-thirds of the state, and pays 10 to 15 percent of the cost of indigent defense in the state, costs formerly paid solely by the counties. The state added about one-third of the funding needed for civil legal aid, although the need has now increased. "The counties have borne an unequal burden in paying for the judicial system in Washington, and we greatly appreciate state lawmakers recognizing that as part of this initiative," said King County Councilmember Kathy Lambert. "We hope state legislators will continue to keep the counties in mind as they work toward equalizing funding of the judicial system." We Need Your Help There is a long way to go to reach the Justice in Jeopardy Initiative's funding goals. Even now, only seven-tenths of one percent of the state budget goes to the judicial system, and Washington remains last in the nation for state participation in judicial system funding. In addition, the heavy reliance on local funding of courts has caused painful cuts this year. As a co-equal branch of government, courts are vital to our society and should not be subjected to "across-the-board" cuts similar to other government functions that are not constitutionally required. Juror pay, a constitutionally required item, still must be addressed. The $10 per-day reimbursement has not increased in 50 years. To bring juror pay to today's minimum wage, starting on the second day of jury service, will cost about $27 million per biennium. This will not only help increase economic and racial diversity on our juries, it is simply the right thing to do. No one is forced to work for $10 a day, and jurors should not be required to do so, either. Although jury service is a civic responsibility, the current juror pay is, frankly, an embarrassment to Washington state. When economic times improve, we will seek an increase in juror pay and CASA funding, as well as funding to extend the Family and Juvenile Court Improvement Plan and the interpreter funding program to every county. We also plan to seek the remaining contribution for district and elected municipal court judges' salaries, bringing the state's contribution to the same 50 percent it pays for superior court judges. Judges see significant improvements because of new state funding for criminal indigent defense and parent dependency representation, as well as for civil legal services. To finish the job, we need to bring state funding of parent dependency representation to the remaining third of the state, achieve a more equitable share of criminal indigent defense funding by the state, and increase civil legal aid. Attorney voices during this effort have been invaluable, and we need your participation as we move forward. The current locally funded structure threatens our ability as an equal branch of government to provide justice. Will we become a society where only those who can afford it will have access to the courts? We cannot let this happen. When government provides adequate funding for its courts, it helps ensure that justice is fair, timely, and accessible to all — a true hallmark of a democratic society. After all, justice is the business of government. Gerry Alexander is the chief justice of the Washington State Supreme Court. Deborah Fleck is a King County Superior Court judge. Jeff Hall is the Washington State Court administrator. NOTES |
