A Report to the Washington State Legislature

State of the Judiciary
January 15, 2003 - 11:00 a.m.
Temple of Justice

Lieutenant Governor Owen, Speaker of the House Chopp, members of the House and Senate, state elected officials, Pastor Neuenschwander, fellow justices and judges, ladies and gentlemen.

Good morning, and welcome to the Temple of Justice. Let me first thank all of the members of the legislature for the warm welcome you have accorded me and my fellow justices on this and other occasions. Let me also extend our thanks to the leaders of this legislature for inviting me, as chief justice, to deliver this address to you on behalf of the judiciary of the state of Washington. We know that time is at a premium for senators and representatives during a legislative session. We know also that you need not accord me this privilege. The state constitution only requires the governor to deliver a message to the legislature. While that same document requires the justices of the Supreme Court to report to the governor in writing on or before January 1 of each year on defects and omissions in the law, it does not require our court to report to the legislature nor does it require you to provide us that opportunity. But by a custom that has developed over the past decade, the chief justice of the Washington Supreme Court has been invited to speak to the legislature every other year, on the state of our justice system. The fact that you provide us this opportunity speaks well of the legislative branch of government and we are most grateful for the opportunity to report to you and thereby to the people of the state of Washington.

Let me first observe that today's joint session of the legislature is historic. It is because this is the first time since the Supreme Court moved into the Temple of Justice way back in 1913 that a session of the legislature has been held in this building. Since that early time, the room we are in now has served exclusively as the courtroom of the Supreme Court. But today it is not functioning as a courtroom, but, rather, as the venue for this joint legislative session. We want you to know that despite the fact this is our normal courtroom, today you in the legislature are the home team and we on the court are the visitors.

Before I speak about the judiciary as a whole, let me say a word to you about the Supreme Court. We have a very fine court and I am immensely proud of it and my colleagues. I was very honored when two years ago they elected me to serve a four-year term as chief justice. I can assure all of you that my colleagues and I are absolutely unified in our desire to work together with our judicial colleagues at all levels of court, to keep the promise of providing equal and quality justice to all who enter the courts of this state.

The membership of the Supreme Court has not changed very much since I addressed you two years ago. Eight of the nine justices before you now were on the court then and I think most of you are somewhat familiar with us. You may not, though, be as well acquainted with our newest member, so let me say a brief word about Justice Mary Fairhurst, who swore her oath in this courtroom on Monday of this week. Justice Fairhurst comes to our court from Attorney General Gregoire's office where she served for sixteen years as an assistant attorney general, most recently as the chief of the very important Revenue, Bankruptcy and Collections Division. Justice Fairhurst is a former president of the Washington State Bar Association, only the third justice in the long history of this court to have served in that important position prior to coming to this court. Interestingly, Justice Tom Chambers who sits next to her on the bench was the second former WSBA president to come to this court.

Although it has been extensively reported, it bears repeating that Justice Fairhurst's entry onto the Supreme Court alters the gender balance of the court for the first time in our state's 114 year history, and, as I said at the induction ceremony, this is an historic event. You may recall that two years ago I told you that when Justice Owens took the oath a few days before my address to you, our court instantly had more women among its membership than any Supreme Court of the 50 states. We still enjoy that distinction, but we also have a majority of women, a distinction that is shared only by the Ohio Supreme Court. Please join me in welcoming Justice Fairhurst to the Washington Supreme Court.

Whenever a new person comes on the court it is a happy occasion, but it is always accompanied by a tinge of sadness. That is because when someone new comes on the court that means that a veteran has left to create the opening. So as happy as we are to welcome Justice Fairhurst, we will still miss our friend and colleague, Justice Charles Z. Smith, at our conference table. I have asked Justice Smith to be here today and I would like him to stand so that you can join me in thanking him for his 50-plus years of devoted service to the people of the state of Washington, as a justice, judge, educator, prosecutor, news commentator, civil rights pioneer, and in countless other activities-Justice Smith.

Let me now, in my capacity as this state's 52nd chief justice, speak to you about the state of Washington's justice system. I feel comfortable telling you, as I did two years ago, that our justice system is in relatively good shape. The system is not perfect, to be sure, but the judicial branch is managing to hold its head above water despite the many and increasing demands that have been placed upon it. This would not be true, of course, without the hard work and ingenuity of the judicial officers of this state and the many dedicated employees of the judicial branch, including the excellent elected and appointed county clerks in each of our counties.

I can't begin to convey to you the depth of my admiration for the outstanding work of the 217 full- and part-time judges of our district and municipal courts who hold forth in the towns, cities, and counties of our state and who manage caseloads made heavy with over two million filings each year. Our 175 superior court judges are equally as dedicated and hard working, managing to stay on top of caseloads that are enriched each year by over a quarter of a million new filings in those courts located in every county of our state. Collectively, our two levels of trial court entertain approximately one case filing for every 2.5 citizens each year-cases that run the gamut from parking citations to aggravated first degree murder, and from small claims to cases that involve millions and, in some cases, billions of dollars and significant public issues.

I am also very proud of our two levels of appellate courts. I have already made reference to the court on which I sit, the Supreme Court. Let me brag a bit about our State Court of Appeals, that workhorse court which sits in three divisions and doesn't get near the credit that it deserves. Unlike the Supreme Court, it is without discretion to decline an appeal-it must take all cases that are ripe for review. In 2002, that court managed to maintain its tradition of staying current despite an influx of approximately 4,200 appeals, personal restraint petitions, and other petitions.

I wish I could have invited every judicial officer in the state to be here today, but, obviously, space limitations wouldn't permit that and besides, as you can tell from my remarks, they have work to do at home. I did, though, ask a few judges to be here to represent all of our state's judges-allow me to introduce them to you. Representing the district and municipal court judges, one of our state's very fine young judges, Judge Stephen Dwyer, of the Snohomish County District Court. Judge Dwyer is president of the District and Municipal Court Judges' Association. Representing the superior courts, we have one of the state's most energetic judges, King County Superior Court Judge Deborah Fleck. Judge Fleck is president of the Superior Court Judges' Association. Representing the 23 judges of our Court of Appeals, a veteran judge and old friend, Judge John Schultheis, from Division Three in Spokane. He is presiding chief judge of the Court of Appeals.

Let me take just a few minutes to describe to you some of the really positive things that have taken place in the judicial branch since I addressed you two years ago. Frankly, it is hard to know where to begin because there is so much energy and creativity out there in the field. Consequently, I am just going to scratch the surface.

I will start by saying that one of our proudest accomplishments was gaining passage of ESJR 8208. As you know, that constitutional amendment provides our hard-pressed superior court jurisdictions with greater flexibility in harnessing the assistance of elected judges from other levels of court as judges pro tem when those courts are faced with backlog problems. Of course, we would never have achieved this important reform without the support of the 57th Legislature, of which most of you were a part. That legislature passed what was then a proposed constitutional amendment on to the people and gave it a large boost with over a two-thirds vote in each house. The people then approved the measure in November of 2001, by an almost 70% affirmative vote, the highest affirmative vote given to any ballot measure that year.

I can tell you that this amendment, which we in the judiciary refer to as the "portability of judges" amendment, is working well and is helping jurisdictions keep on top of ever increasing caseloads without having to ask you in the legislature to increase the number of judgeships. For example, in the King County Superior Court, our state's largest superior court jurisdiction, that court is utilizing the service of elected judges from other levels, primarily the King County District Court, to the tune of 4.1 full-time equivalents. That has been a life saver for that busy court, but the life ring could disappear if the number of district court judges for that county is reduced, as some have suggested.

I am proud to report to you on the progress we have made toward revising our time for trial rules for criminal cases-the so-called "speedy trial" rules. You may recall that these rules, which apply to all criminal cases in superior court and courts of limited jurisdiction, came to the attention of the 2002 session of the legislature, when the rules came under some criticism. You may recall that I thereafter appeared before a committee of the House of Representatives and indicated that even though we had not received any recommendations for modification of these rules in recent years, we were willing to look at the rules from top to bottom to see if they should be modified in light of the concerns that were then being expressed. The Supreme Court immediately followed up on that promise and appointed a broad based task force to examine the rules. Four legislators, two from the House and two from the Senate, served on that task force, which was chaired by Professor David Boerner of the Seattle University Law School, a former King County deputy prosecutor. We received the report of the task force this past October together with suggested revisions to the rules. The Supreme Court then asked the Board for Judicial Administration, which is the policy setting body for the entire court system, to consider the task force proposal and give us the benefit of their recommendations. We felt this was important because two-thirds of the membership of that board are trial judges, and it is our trial judges who are ultimately responsible for assuring compliance with the time for trial rules. That board will consider the proposal for the second time at its meeting on January 24, after which it will send its recommendations on to our court. I can tell you, speaking for myself, that the task force did a fine job in drafting rules that appear to be designed to preserve the values of the current rule-which is moving criminal cases through the system promptly-while at the same time providing trial judges with greater flexibility in managing their caseloads and dealing with unforeseen circumstances. I am confident that the Supreme Court will take action on the task force's proposal before this legislative session is completed.

I wish time permitted me to expound at length about the continued expansion of our so-called problem solving courts. I'm speaking of our drug courts, mental illness courts, and domestic violence courts. The drug courts, in particular, have been hugely successful in employing tough love to resurrect the lives of many of our young people who had literally reached bottom due to drug dependency. I am pleased to tell you that while two years ago we had drug courts in 12 of our counties, we now have them in 14 counties and more are on the way.

I wish also that time permitted me to go into detail about the court rule we enacted since I last addressed you that tightens up the qualifications that court appointed counsel must have in order to represent a person charged with a capital offense. Let me simply say that we now have the strictest rules in the nation and, again thanks to the 57th Legislature, the Office of Public Defense had funds which enabled it to provide training to interested attorneys so that we could enlarge the pool of counsel deemed qualified in cases where the death penalty is sought.

Finally, let me tell you very briefly about the rule the Supreme Court adopted very recently requiring all judicial officers in this state, from municipal court judges up to and including Supreme Court justices, to obtain the same number of continuing education credit hours as attorneys have been required to obtain. This rule also requires each judge, justice, or court commissioner to attend our State Judicial College within one year of assuming office. On Monday I spoke to the judges who are just now attending our week long Judicial College in Tacoma. I am pleased to inform you that there were about 60 judges in attendance, the largest attendance ever in the long history of the college.

Now if up to this point I sound a bit like a Pollyanna, I must plead guilty. As I have said, I am immensely proud of the many accomplishments that I have told you about and many more that I have not mentioned. At the same time I must again say that our justice system is not perfect. There is no institution that has been created by humans that can't be made better and we recognize that in the judicial branch. We are, therefore, committed to making improvements and that is what I would like to discuss with you now very briefly. Again, time won't permit me to discuss all of our goals with you. Let me, if I may, mention three, and then close by telling you about one goal in progress.

First, we are requesting the creation of five additional superior court judgeships, and one additional district court judgeship. It has been four years since the number of superior courts in this state was increased and despite the best efforts of our judges, the caseloads in some jurisdictions have expanded to the point where new judges are needed. We are requesting two additional superior court judges and one additional district court judge for Clark County, the state's fastest growing county. We are asking for one additional superior court judge for the Benton-Franklin County joint judicial district, and one each in Kittitas and Kitsap Counties.

Next, let me advise you that the judiciary is asking the legislature to increase funding for our state's judicial information system. We have, for a number of years, been fortunate in Washington to have one of the most efficient judicial information systems in the nation, one that has truly been a model for other states. Unfortunately, the system has to some extent become a victim of its own success. While it was a state of the art system 20 years ago, it is now underfunded and not entirely prepared for the internet revolution. Our Judicial Information System Committee, which is chaired by Justice Bridge, has compared our system to an eight track tape system, an aging relic that costs too much to maintain. We need to invest in JIS because judges, prosecutors, and law enforcement officers all over the state rely on it for information that they use in making decisions. We are in danger of losing this system and we hope that you will make certain that this does not happen. Because we know that money is scarce, our Administrative Office of the Courts has reduced its staff by over 6% to absorb a portion of the cost of the upgrades. Fortunately, JIS has a dedicated funding source, the State's Public Safety and Education account, and we are asking that you appropriate additional dollars from this account in order to complete the upgrading of JIS.

Let me next speak to you about a very great problem that the poor and vulnerable people of this state face. It is an increasing inability to obtain legal assistance in civil matters. Frankly, this has been a problem for some time, but it has become more acute in recent years what with dwindling support of civil legal services for the poor coming from the public purse. Indeed, it has been estimated that our state's dedicated legal services providers, both full-time and volunteers, are able to serve only a small percentage of the needs of our indigent citizens. The Supreme Court and the other courts of this state have been concerned about this for some time, and in November 2001 our concerns resulted in the Supreme Court creating a Task Force on Civil Equal Justice Funding. It is chaired by Justice Charles Johnson and has among its broad membership four members of the legislature. That task force has been charged with overseeing a comprehensive study of the legal needs of the poor and vulnerable in Washington and developing a plan for long term, sustained and permanent state funding for essential legal services for the poor.

Unfortunately, since the task force began its work, the circumstances that prompted creation of the task force worsened. In February 2002, the governor eliminated so-called TANF funding that had been previously committed for civil equal justice services. Although the 57th Legislature thankfully restored $1.5 million of the $2.4 million dollar cut, the loss of $900,000 meant that our state's two principal legal services providers, Columbia Legal Services and Northwest Justice Project, have had to reduce staff. These offices now have 20 fewer attorneys than they had in 1999. On top of that, low interest rates and reduced business activity has caused a decline in IOLTA revenue of about $1.2 million dollars annually.

In light of this bad news, the task force made an interim recommendation to the Supreme Court, asking us to support legislation that would place a $90 surcharge on the superior court civil filing fee. This would raise the fee to $200. They recommended that the split of the surcharge be in the same proportion that it is now-54% to the county general fund and 46% to the state, with the state portion being earmarked for a newly created equal justice account. The Supreme Court has approved this recommendation, as did the Board for Judicial Administration and the Washington State Bar Association. We commend it to you. Some might say, why should we support this when we face tough financial times? Well times are tough, as we heard last night, but it seems to me in America where we rejoice in the fact that we are a nation devoted to the rule of law, we should not ration access to justice. This week, we have all pledged allegiance to our flag and said these familiar words, "Liberty and justice for all." We should not make those words hollow by taking action that would say, "Justice is only for those who can afford it."

I indicated that I would mention a goal in progress. I will close with that. Many of us have been concerned in recent years about the manner in which our trial courts are funded. As you know, the great bulk of funding for both levels of our trial courts is provided by local government. This is not all bad as a concept because it results in decentralized administration of our trial courts. I, for one, endorse that idea. On the other hand, local governments are, as we know, experiencing increasing difficulties in providing support for the courts and other components of the justice system. Furthermore, the degree to which local government is able to support the courts varies widely throughout the state.

Consequently, there is growing interest in exploring the question of whether the state government should share a greater portion of the expense of what is really a state court system. You might be interested to know that currently, the state government of Washington pays the lowest percentage of the cost of its trial courts of any state government in the Union-in many states, the costs of trial courts are shared on about a fifty-fifty basis.

To address this issue, we have created yet another task force and have charged it with looking at the issue from top to bottom and making recommendations as to the fairest and most efficient way to fund our state's courts. Like the other task forces it has representatives from both houses of the legislature. It is chaired by a very distinguished lawyer, a former president of the Washington State Bar Association, Wayne Blair. (Introduce Wayne.) We plan to report to you at your next session as to the findings and recommendations of that body.

There is a lot more I could say. I understand that you may be considering sentencing issues this session as well as other issues on which the judges of this state are knowledgeable. I can assure you that the judges of this state and the Administrative Office of the Courts stand ready to give you the benefit of our views on these subjects whenever you deem it to be beneficial to you.

Let me close by thanking all of you for your service to the state of Washington and for your willingness to listen to the report on the State of the Judiciary. Thank you and best wishes.