Court Funding Task Force
Members present: Wayne Blair, chair, Cheryl Bleakney, John Cary, David Donnan, Judge Stephen Dwyer, Judge Deborah Fleck, Judge Gordon Godfrey, Ron Hjorth, Rena Hollis, Judge Stephen Holman, Kirk Johns, Senator Adam Kline, Representative Lois McMahan, Mary McQueen, Judge Robert McSeveney, Ron Mattson, Jan Michels, Andra Motyka, Retired Judge James Murphy, Judge Michael Roewe, Judge John Schultheis, Ron Ward and Judge Tom Warren
Guests present: Tammy Fellin and Gail Stone
Staff present: Jude Cryderman, Wendy Ferrell, Doug Haake, Jeff Hall, Janet McLane and Yvonne Pettus
Mr. Blair asked members to introduce themselves.
Overview of Major Research and Information Gathering
Mr. Hall the reviewed expenditures and revenue in Washington revisited
Initial Estimate of Expenditures
Initial estimates based on State Auditor’s Local Government Financial Reporting System (LGFRS) data.
LGFRS data includes indigent criminal defense expenditures, whether in the court’s budget or an independent office of public defense.
Revised Estimate of Expenditures
Revised Estimate relies upon three sources of data:
Revised estimate breaks out:
Revised estimate for Municipal Courts:
Revised estimate will change shifting some costs from Juvenile Court to criminal indigent defense.
Revised Estimate of Expenditures
Criminal Indigent Defense Expenditures
Municipal Court Expenditures
Indigent criminal defense costs estimated at 25% for Independent municipal courts.
New Estimate of Expenditures
State and Local Revenues
Revenue and Expenditures
The members discussed assessments allowed by law and cost recoupment.
Judge Dwyer pointed out the difference in local revenue between the cities and the counties and advised that if the structure is easy to manipulate there is no reason to believe that counties will continue to acquiesce to the cities keeping larger revenue amounts.
Mr. Ward said it’s not a question of efficiency of one branch of the courts, but courts are starving for funds and have been for long time, which in turn erodes the independence of the judiciary. The focus, he continued, should be on what we are going to do to facilitate greater state participation in the funding of the courts.
Judge Roewe asked why bother using the courts as financial resource for state, counties or cities? They end up competing with each other for available dollars. The courts are here to dispense justice not generate revenue.
Judge McSeveney said there is an incentive under the existing financial structure for the municipal court judge not to impose a fine, but to require reimbursement of costs back to the city. Reimbursement of costs back to the city is 100% and is not subject to the state/local split.
Mr. Ward stated if the state picked up criminal indigent defense and judges salaries, we wouldn’t be having this discussion.
Other States Experiences
Mr. Hall provided a brief overview of the handout relating to the court funding experiences in Arizona, Florida, Kansas and Missouri. Mr. Hall stated the bottom line is that the information gathered was not of much use.
Status of Work Group Activity--Overview
Courts of Limited Jurisdiction (CLJWG)
Mr. Ward advised the members of the work group’s charge:
Mr. Ward said that although the work group has come a long way, the work of the group is not finished. Mr. Ward directed the members’ attention to the principles developed by the work group.
Judge Schindler and Ron Ward reviewed the principles being discussed by the work group.
Problem Definition (PDWG)
Ms. Michels advised of the charge for the problem definition work group. That charge follows:
Ms. Michels next reviewed the principles adopted by the work group.
Ms. Michels briefly reviewed the Trail Court Function Analysis chart that was provided to the members.
Funding Alternatives (FAWG)
Mr. Johns reported that the principles for the work group were adopted early on, dovetailing with principles of PDWG and CLJWG.
Mr. Johns briefly reviewed the work group’s charge:
Mr. Hjorth indicated that work on principles is ongoing. He said the issue is in developing principles that reflect appropriate state financial burden in comparison to the local governments. In addition, the issues are the appropriate role of user fees and what kinds of taxes can we look to for a greater financial contribution by the state? The work group would like to be able to provide suggestions or assistance to legislative bodies.
Ms. Michels noted one area of overlap among the work groups is the form of grant money back to local courts and equitable sharing of expenses.
Senator Kline asked if the work group intends to include sources of additional revenue. He said that if the state is being asked to spend more money it would be helpful for the work group to make suggestions from where that money should come.
Public Education (PEWG)
Judge Warren briefly reviewed the speaker packet that was provided to the members.
Ms. Bleakney added that the education piece is a long term project requiring education at different levels and at different times.
Implementation Strategies (ISWG)
Judge Fleck stated that the work group is waiting on other work groups before the ISWG could really begin its work. The work group has held two meetings, during one Glenn Olson, Clark County, made a presentation on local funding.
Judge Fleck identified three issues before the work group: 1) CLJ court issue in King County; 2) civil equal justice task force issue; 3) issue of county clerks pursing a filing fee increase.
Discussion of Significant Work Group Issues
Judge Schindler said the first implementation concept generated a great deal of discussion in work groups. That concept is “to promote public accountability and independence, all judges in courts of limited jurisdiction should be elected, including part time judges.”
Mr. Ward said that there is potential for conflict and threat to independence of judiciary for judges who are not elected.
Mr. Blair advised that the Project 2001 group noted that a number of municipal court judges sit part-time and infrequently, should they have to be elected? He pointed out that other part-time officials (such as mayors and city council members) are elected and judges shouldn’t be treated differently than any other part time official.
Ms. Hollis pointed out that small rural cities/counties may not have anyone in city limits to serve on the court.
Mr. Blair responded that those cities can contract with the county for court services.
Judge Holman said the group should consider the possibility of person that runs for office not to be required to live in that city.
Judge McSeveney said there is no requirement that the judge live within city limits. He said the two big issues are: first, whether the judge is a department therefore, should be subject of city manager and, second, that the municipal court generate fees. Judge McSeveney said he feels it is critical that judges be elected and pointed out that doesn’t mean you’ll necessarily get a good judge. He said the reluctance to give up power and control over who the judges is on the part of the cities.
Judge Schindler said the second implementation concept is “Title 3 should provide different court options for local governments to provide court services to their community.”
Judge Schindler advised that a group is in the process of reviewing and proposing amendments to Title 3.
Mr. Ward read the common principle that provides, “The primary mission of courts of limited jurisdiction is to expeditiously, efficiently, and fairly resolve cases and serve the residents of the community, not revenue generation and collection.” Mr. Ward reminded the members that revenue generation and recoupment of costs are not the primary mission of the courts.
Ms. McLane pointed out that it is necessary to determine how we value county resources used by the city when contracting with district courts for judicial services. Such contracting arrangements are not supposed to be money making ventures. The implementation concept, she added, is designed as part of the contract to define the amount of county resource the city is using.
Judge Schindler stated the fourth implementation concept is “A court of limited jurisdiction should be accessible to residents of the community it serves. Each court of limited jurisdiction should provide services on a regularly scheduled basis at established hours that are posted for the public.”
Ms. McQueen said that when municipal courts are established they should provide that information to AOC. She pointed our that this requirement is not burdensome, there needs to be a way of knowing that the court is officially and legitimately established.
Judge Schindler next advised that the fifth concept is, “Provision should be made for concurrent jurisdiction between municipal court and district court.”
The sixth concept is “all statutory provisions relating to the structure, governance and operation of the courts of limited jurisdiction should be contained in Title 3.”
Judge Schindler felt there may be a interest by some in promoting the “mega muni” bill again this year. Ms. McQueen said the group is looking for suggestions as to what the bill might look like this session.
Senator Kline stated that if all judges are required to be elected, cities may argue, then the cities should be allowed to contract with each other.
Judge Dwyer offered the fifth concept may not be as economically dramatic as it appears. The economic sense is that the impact would be the ability to spread loss over all courts including municipal courts.
Mr. Ward said the work group is taking comprehensive look at all of the models and hoped to develop something for the best of all worlds.
Defining the Scope of Court Funding
Ms. Michels reported on the chart that the “Trial Court Functions” box are those that are generally funded, managed or administered by the trial courts.
Ms. Michels said there were several problem areas that the work group wrestled with:
Ms. Michels reported the items to be completed include:
Mr. Blair pointed out that although facilities are outside the scope of our mission, they will need to be included as a component of a long-term plan for funding the trial courts.
The members discussed the placement of some of the function in the various boxes. For instance, a tentative decision was made to move dependency representation outside of the trial court functions.
Mr. Blair reminded the members that the Chief Justice has two separate task forces making recommendations that may counter each other. He reminded them of the Chief Justice’s concerned about inconsistency of recommendations. Mr. Blair reminded that group that it is necessary to coordinate these recommendations.
Judge Godfrey suggested eliminating discretionary items, just including mandatory functions.
The Task Force briefly discussed the importance of civil indigent legal services, pointing out that although this is an important function it is not a function required by the constitution. Mr. Ward said although civil indigent legal services may not be codified or be required by the constitution, he nonetheless sees the concept of assurance of equal access as a very important function for the trial courts.
Mr. Ward pointed out that we benefit from a number of rights that have been promulgated by the Supreme Court and which have not been codified, but are viewed as essential—such as indigent defense legal services.
The Task Force continued discussions relating to civil indigent legal services.
Defining the Gap Between Current Funding and Adequate Funding
Next Mr. Hall reviewed the Simgap information. Mr. Hall explained that the Simgap information projects how much money is required based on people currently employed, but does not address who should pay what.
Ms. Michels said that deferred prosecution presents a new problem. She indicated sometimes laws get out of sync with good public policy and decision making.
The Task Force briefly discussed deferred prosecution.
Senator Kline pointed out it would be advantages when the report is final if it would illustrate the areas which could save money. He indicated that by connecting a tax to a benefit it will help connect the seemingly unconnected. He said he would appreciate, when the report is finalized, if it would identify some specific tax mechanism.
Mr. Johns advised that a questionnaire had been distributed to superior court judges, administrators and clerks in an effort to obtain accurate funding information.
He advised that the PSEA is broken, doesn’t work and needs to be fixed. Although it hasn’t been determined what the fix is, it could include: 1) keep PSEA as a means for court funding, but fix it; 2) abandon it, or 3) some combination of the above.
According to Mr. Hjorth, the “fix” must take into consideration the amount of revenues the state received from local government and the amount returned by the state to local government. Currently the national average is 47% of court funding is provided by the state, while Washington only provided 14% of the funding.
Ms. McQueen said that the work group has not yet recommended (but is working on) how allocations between state and local funding should be made. In addition, the work group is determining a nexus (reasonable relationship) between state requirements and state support and how to spread new state dollars to trial courts.
Mr. Johns provided an overview of the work in progress by defining user fees as fees imposed by the courts for specific court services such as filing fee. Fines and penalties imposed are not included in the definition.
Mr. Johns said the realities are driven by current consideration of court funding, along with what other branches and the public might do or say about user fees.
Mr. Johns continued the duties and functions of the trial courts have merged over time. The current funding crisis may require the task force to do something that it might be uncomfortable doing such as imposing some type of user fee structure. He continued the public may accept the rationale of user fees if they are geared toward the use of the court system. Mr. Johns said if user fees are to be re commended they should supplement, not be the primary source of trial court funding.
Mr. Johns suggested that mandatory court proceedings should not be subject to user fees, but perhaps user fees might be imposed for discretionary proceedings.
Mr. Johns said that a host of specific user fees will be put before the work group for consideration. Those fees could include a fee based on number of pages in document, filing fee based on number of parties, filing fee based on amount in demand. Other possibilities are user fee for evidentiary hearing based on hourly rate or fee on judgments which involve award of money.
It was pointed out that user fees should not become an alternative form of taxation. It was also pointed out that user fees are collected by clerks’ office, which is part of the executive branch. The clerks’ office can raise revenues for the benefit of the executive branch, but they won’t help court system per se. Some were concerned that only a small body of cases might be impacted. Others were concerned with the high number of cases that might be impacted. Need to make sure that by adding user fees, this concept does not create a system for only those that can afford to pay.
Judge Godfrey pointed out that it is not the job of the court system to be raising money. He said he feel a lot of time and energy is being wasted to raise a few dollars.
Mr. Hjorth said that although the co-chairs (Kirk Johns and Ron Hjorth) tend to favor the user of user fees to some extent, he is concerned about the depth of feelings that are involved. Need to look at this issue as part of a package to take to the legislature. He continued that he doesn’t relish battling over deeply principled issues.
Mr. Mattson said although user fees are tempting, they are administratively complex. He is concerned that once started down the path with user fees, where will it end?
Mr. Hjorth said the barrier to access to justice is not court fees, but instead attorney fees. He continued access to justice is not just what happens when you get to courthouse door, but also before.
Mr. Johns said that relatively modest user fees can generated substantial revenues, along with 1% judgment tax. He stated if the task force decided against user fees, they need to be prepared to explain why we did not recommend user fees.
Mr. Blair said the task force is expecting recommendations from the work groups. Mr. Blair said the user fee issue will be divisive no matter how comes up. The task force will look to the FAWG to come up with a recommendation.
Next Task Force Meeting
The next task force meeting will be October 14, with a subsequent meeting in November at a time yet to be determined.
There being no further business, the meeting was adjourned.
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