Court Funding Task Force
Members present: Wayne Blair, chair, Jeff Amram, Linda Bell for Pam Springer, Cheryl Bleakney, John Cary, Edsonya Charles, Judge Leonard Costello, David Donnan, Judge Deborah Fleck, Judge Gordon Godfrey, Judge Robert Harris, Dean Ron Hjorth, Rena Hollis, Judge Stephen Holman, Kirk Johns, Representative Ruth Kagi, Judge Eileen Kato, Ron Mattson, Representative Lois McMahan, Mary McQueen, Judge Robert McSeveney, Retired Judge Jim Murphy, Glenn Olson, Judge John Schultheis, Ron Ward, and Judy Warnick
Guests present: Chief Justice Gerry Alexander, Sophia Byrd, Tammy Fellin, Senator Adam Kline, Karen Koehler, and Gail Stone
Staff present: Gil Austin, Jude Cryderman, Wendy Ferrell, Doug Haake, Jeff Hall, and Janet McLane
Call to Order
Mr. Blair called the meeting to order. Those in attendance introduced themselves.
Mr. Blair explained his hope for the meeting is to bring the members up-to-date with work of the work groups. At the May meeting, votes will be taken on the recommendations from the work groups. He hoped that the final task force report can be approved at the June 15 meeting, with the final report and recommendations being presented to the BJA at its July meeting.
Mr. Blair introduced Chief Justice Alexander. Chief Justice Alexander said he wants the product to be that of the task force, not influenced by the Chief Justice or the Supreme Court. He advised that he will be attending the Task Force meetings, so that he is informed when the recommendations are presented to the BJA.
Chief Justice Alexander advised the members that the Seattle Times is publishing a series on criminal defense in Washington.
Chief Justice Alexander thanked Mr. Blair for his hard work and dedication to the Task Force. Mr. Blair thanked the committee members.
It was moved by Judge Schultheis and seconded by Ms. Bleakney to approve the minutes of the November 10, 2003 meeting as published. Motion carried.
Mr. Blair reported the work groups, particularly Problem Definition and Funding Alternatives, have continued to meet regularly over the last five months.
Mr. Blair reported that the following presentations about the work of the task force have been made:
In addition, Mr. Blair, Ms. Michels, Mr. Ward and Mr. Johns will make a presentation to the Superior Court Judges during their Spring Conference the end of April.
Work Group Reports and Proposals
Problem Definition Work Group (PDWG)
Mr. Blair directed attention to the final report submitted by the PDWG.
Mr. Hall indicated the WG has a good handle on what was spent on courts for fiscal year 2000, approximately $341.2 million. He advised the current spending estimate for indigent defense for fiscal year 2000 is $78.7 million. Mr. Hall reported that he will be meeting with an advisory committee from the state auditor’s office to develop a separate sub-code for tracking indigent defense costs. He said that data available in August will provide a further breakdown of information. He continued saying that we will then begin to have easily obtainable information on how much is spent on courts in Washington State.
Mr. Hall advised that the SimShare data is based on actual budgets. He said he did not rely on state auditor’s information because it included indigent defense costs.
Mr. Hall reviewed the methodology (concepts) for estimating the Trial Court Funding Gap. Mr. Hall advised that concepts 9-12 are still under development. Mr. Hall said that probation and indigent defense information is still needed to complete the gap.
Mr. Hall explained that salaries had originally been estimated at 50% of range, but it was the general consensus by PDWG that because court employees tend to remain working in the courts for long periods of time that the estimate should be changed to 90% of the salary range.
Mr. Hall explained the gap is primarily based on personnel costs. He added anywhere from 80-90% of expenses are personnel related. He continued, witness’ fees, mandatory arbitration in superior court, training, publication, travel, court interpreters, etc., are not included in the calculation.
Dean Hjorth pointed out that in order to get the “real” gap, indigent defense also needs to be included in the calculations. He also questioned other costs not included, stressing the importance of complete information for the Funding Alternatives Work Group to complete its work.
Mr. Hall reminded the members that the joint indigent defense work group of the WSBA will have their final report sometime in May. He advised that the PDWG has created an indigent defense subcommittee which has divided into three smaller groups. Those smaller work groups will be calculating costs on hourly basis, calculating costs on caseload standards, and examining expert witness’ fees; all in an effort to estimate the gap.
Chief Justice Alexander asked if court reporters were included in the number. He suggested that court reporter information should be fine-tuned. He suggested limiting to recording equipment and only adding court reporters for new judicial positions.
Judge Fleck suggested that it’s time for staff to fine-tune the court reporters estimate costs. She indicated estimates should be the cost of digitized recording equipment for each judge involved.
It was pointed out that the Best Practices Committee of the BJA needs to develop staffing measures.
Mr. Blair asked how much money do we need for current spending and how much is needed for adequate spending? Mr. Blair said other questions that require resolution are: if the state is currently paying 10% of operation of courts, should the state pay more? If so, how much more should the state assume? Where will the revenue come from? What percentage of the gap should the state assume?
Mr. Blair reminded the members that the legislature has to be convinced of the need to increase funding for the courts. Public education of the need for increased funding is also essential. As part of the education piece, Mr. Blair stated that any anecdotes should be forwarded to Ms. Ferrell.
Courts of Limited Jurisdiction Work Group (CLJWG)
Mr. Ward reported in February that he and Jan Michels had participated in a presentation concerning court funding at the ABA mid-year meeting. Ms. Michels’ presentation was focused on the work of the PDWG and SimGap. Mr. Ward spoke about court funding and the experience at the trial level. The presentation was attended by judges and lawyers from around the country. At the end of the presentation, the Washington Court Funding Task Force received kudos. Because Washington is on the cutting edge, Washington may be approached to incorporate our fundamental principles to “kick start” studies in other states. Mr. Ward said both he and Ms. Michels had received positive feedback.
Mr. Ward advised that the next WG meeting is scheduled for April 7. At that meeting the remaining issues will be addressed. Presentations will be made by Bob Boruchowitz, Diane Carlson, and Judge Wesley Saint Clair. Mr. Ward indicated that although many issues are being reviewed by the WG, court consolidation is not one that is being considered.
Representative Kagi urged the Task Force, as part of its task, to consider recommendations that will make the court system run more efficient.
Brief discussion followed.
Public Education Work Group (PEWG)
Ms. Bleakney directed the members’ attention to the “Justice in Jeopardy” communications proposal.
Ms. Ferrell advised the proposal was broken down into a number of sections, such as public relations plan, timeline, speaker’s packet, public education materials, and sample campaign materials. Ms. Ferrell briefly reviewed the proposed timeline. Ms. Ferrell said the speaker’s packet will be distributed to all judges at the fall conference in September. She went on to explain the press releases, community reports and surveys, and the campaign materials.
Ms. Bleakney stressed the importance of conveying the need for adequate court funding to the public. She identified the key target groups as the public, legislators, stakeholders, and grassroots organizations. She reviewed the goals and tactics. Ms. Bleakney next spoke about focus groups which can provide valuable feedback at nominal cost. Ms. Bleakney continued her explanation of the public relations piece of the plan pointing out the necessity of a spokesperson for press conferences and editorial board tours. In addition, arrangements can be made for “op ed” pieces and broadcasting of television and radio debates. Ms. Bleakney did state it may be necessary to raise funds for the public outreach programs. Brief discussion followed.
Mr. Blair relayed the strategy used for the portability constitutional amendment.
Mr. Ward asked if the PEWG was going to do something to personalize the court funding issue.
Ms. Ferrell responded that the PEWG will try to locate individuals to come forward with actual stories. A survey will be distributed to attorneys to identify specific individuals with compelling stories.
Mr. Johns pointed out two other groups are essential to moving forward, namely the counties and cities. He said the Task Force would be well advised to have focus group meetings with counties and cities. Members agreed that the counties and cities should be added as key target groups.
Ms. Ferrell said additional information will follow after the WG’s April 20 meeting.
The members briefly discussed whether a constitutional amendment, initiative or statutory change will be forthcoming. The members agreed the nature of the recommendation will determine the public relations requirements.
Mr. Cary requested that the speaker materials be made available on PowerPoint.
Implementation Strategies Work Group (ISWG)
Judge Fleck stated the proposal put together by the PEWG encompasses most of what the ISWG is doing.
Judge Fleck proposed the use of “Justice in Jeopardy” as a “tag line” for the task force because it best expresses the concept that long-term, inadequate court funding puts justice in jeopardy.
It was moved by Judge Fleck and seconded by Mr. Cary to use “justice in jeopardy” as a tag line. The motion carried.
Mr. Cary then added that ISWG is waiting for the recommendations of the task force to determine what recommendations there are to implement.
IS will be holding a meeting the end of April and will have more to report to the Task Force at the May meeting.
Funding Alternatives Work Group (FAWG)
Mr. Johns reported the work group has had a total of 15 meetings. In an effort to focus on specific areas, the WG broke down into five subcommittees: taxes, user fees, state/local share, PSEA, and constitutional/statutory. The subcommittees met in lieu of the WG in an effort to get recommendations completed and fine tuned by the April Task Force meeting.
User Fees Subcommittee
This subcommittee’s recommendations were simple—some of the existing user fees should be increased and new user fees should be added. The WG adopted a series of new fees: third party claims, amended pleadings, and class actions.
The subcommittee revisited an increase to the civil filing fee, since the filing fee bill was defeated during this year’s legislative session. The subcommittee’s proposal provided three options: increases to $200, $225 or $250. In addition, Judge Fleck pointed out an inflationary filing fee increase will also be discussed at the WG.
Mr. Johns indicated that the WG will be discussing the reconsideration of certain user fees such as amended pleadings and class certification at their April 22 meeting. The recommendation for reconsideration will be based on the de minimus revenue generated when compared to the amount of additional work necessary to implement the fee increases.
A discussion of the indigent defense funding gap then occurred. For purposes of estimating a gap for indigent defense funding work groups have been using an estimated figure of $20,000,000. Judge Harris, who is a member of the joint committee trying to estimate the gap, advised that the $20,000,000 dollar number was likely low. Judge Harris then explained the method he used to calculate the indigent defense gap based on 2002 case filings which was considerably more. Judge Harris advised the figure did not include major crimes. The members briefly discussed the amount of the indigent defense gap and the timing for receiving a more reliable estimate from the joint committee.
The members discussed how much money actually comprises the gap. They discussed the $57.8 million gap for court operations, plus the indigent defense gap, plus the shift to state funding. The indigent defense gap and appropriate amount of the shift in state funding are yet to be established.
State/Local Share Subcommittee
Mr. Johns explained that the national average for the amount the state contributed to courts, prosecution, and criminal indigent defense is 45%. Washington State only contributes 10.8%, the lowest percentage in the country; but that figure only includes the courts and indigent defense.
The subcommittee is in the process of determining the funding of trial courts at a fair and equitable level. While researching trial court funding by other states it became apparent there is no consistent rationale for funding levels. One of the goals of the subcommittee is reallocation of the state/local share using a logical and rational approach.
The continuum profile was developed to illustrate activities or functions of trial courts that are mandated by state law. It is proposed for discussion that the state should pay the cost of all of the functions on the left side of chart, including criminal indigent defense, which functions are mandated by state law, bringing the state’s percentage up to 39.5.
Mr. Hall briefly explained the SimGap chart.
Judge Fleck suggested that the term “gap” be reserved to denote the difference between current spending and adequate spending as it applies to court operations and for indigent defense. The term “shift” or “reallocation” should denote the amount transferred from local to state government.
Ms. Byrd pointed out that the local numbers would change if the initiative reducing property taxes by 25% passed.
Senator Kline referenced the initiative coming up in September which would take another 25% off the top of local share property taxes. Political pressure is for these numbers to go down, creating a larger gap resulting in a larger number for the state to come up with. He said there needs to be an explanation to voters outlining the correlation between initiatives and services provided.
Mr. Johns said in order to move on and make recommendations the WG adopted the following recommendations:
Ms. Charles pointed out that different statutes govern judicial positions in municipal courts in cities with over 400,000 population.
Mr. Johns directed attention to the methodology which included consideration of increases to existing taxes and the possibility of new taxes.
The different rationales for possible recommendations included the principled approach, piggy-back approach, nexus approach, untaxed activities/transactions approach, and the pragmatic approach.
The subcommittee adopted two recommendations, thus far:
Option #1 The Principled Approach
The Dow Constantine Approach – The Courts should receive a specific percentage of all major state taxes.
B&O Surtax Approach – Add a surtax for the courts on top of all existing B&O taxes.
Option #2 The Hybrid Approach – Transfer county revenue from court fees, fines, forfeitures, penalties and so forth to the state in return for state assuming the obligation to fund totally certain services such as indigent defense services.
Funds available $59 million
Gain to counties $70 million (current spending on criminal indigent defense)
The members briefly discussed the “hybrid approach.” It was pointed out that although this might be a net gain for the counties, the counties’ share of the fines, fees and penalties is relied on by the counties.
Mr. Olson pointed that there are a number of ways to build a win-win situation, so counties would continue to dedicate money to indigent defense and the state would assume new costs of indigent defense. The state would not be able to shoulder the full responsibility.
Representative McMahan suggested not including B&O surtax in option 1. She pointed out that Washington’s unemployment rate is the third highest in the country. She continued if the state is going to ask business to create more jobs then Washington needs to be more business friendly.
The members were advised that the subcommittee believed that of all the broad based taxes, B&O seemed to be the least objectionable.
Ms. McQueen said she sees it as the responsibility of the members of the judiciary and bar to help garner broad based support for the option. Judges would talk to local grassroots groups to obtain support.
Representative McMahan said the group is only looking at one point of view—raising revenue. She continued, areas of state funding that are not constitutional mandates should not be priorities of government.
Senator Kline said generally throughout the long list of government functions, many can be identified as needing efficiencies. Need to find out what within the legal system can be done to make the system more efficient. He suggested, a more rational system of sentencing would be an efficiency. He continued, if looking for efficiencies in court system, look at length of the court system’s sentencing and functioning of SRA in general.
The Task Force discussed the possibility of a tax on cable and satellite services. They next discussed rate based property tax. It was explained that prior to the increase in the amount of the gap, it was thought to seek a nickel or dime increase exclusively for courts, such as “a dime for justice” which would include some portion going to criminal justice. In addition, the subcommittee considered various other taxes, such as judgment tax and utility tax; they were rejected.
Mr. Johns reported that although the WG recognized the problems with PSEA, they did not feel compelled to get into the PSEA and tinker with it.
Constitutional and Statutory Amendments
Mr. Johns reported the WG is looking to the subcommittee for amendment language to achieve the shifting of financial responsibilities from the local to the state. He pointed out that, in his view, I-62 does not pertain to additional judicial positions because the limitations in the statute apply to an increased level of service. Additional judges is an increase in staffing, not a level of service. The subcommittee work-up will be discussed at the next meeting.
Mr. Cary pointed out it would be most useful to have several tax options to choose from. He indicated an incremental approach makes the most sense. He continued the recommendations must make sense in context of the demands of the legislature. The recommendation must prove that the TF is not just another exercise in writing a report, but actually gets something done.
Mr. Johns said the state/local share recommendation is quite precise and direct with the nexus approach. There are some adjustments, but he feels it is a tight recommendation.
Mr. Cary suggested the most useful final report should set forth a problem statement with a principle response that lays out major items that we’ve discussed, along with basic fees. It should include a statement of principles and overview.
Mr. Johns said the tax package is as specific a recommendation as the WG is going to make. He continued it can be left up to Implementation Strategies to make the final recommendation.
General discussion followed regarding how/which recommendations would be forwarded to the Implementation Strategies WG.
It was moved by Ms. McQueen and seconded by Judge Fleck to adopt the nexus continuum approach to determine the appropriate allocation of costs to be assumed by the state.
General discussion followed regarding the motion. Ms. McQueen said in principle the state should pay for the costs they mandate and there should be a better balance between state and local funding.
Judge Godfrey said he agreed with Mary’s concept. He said as a matter of concept this is a direct connection to the courts.
Representative McMahan said it is entirely appropriate to make the recommendation because if the state mandates they probably should pay for it. She said it was appropriate for this group to talk about savings within the state system. It is also appropriate for this group to suggest taxes, fees within the court system, but ultimately the decision for any other taxes is in the legislature.
Senator Kline agreed as a matter of philosophy with Representative McMahan. He said if services are required by state/federal constitution, why hasn’t the state assumed all of the costs? He asked why 100% of criminal indigent defense should be borne by the county.
Mr. Blair asked whether the intent of the motion was to adopt the principle of the nexus approach, not the percentages and not the specific categories listed in the left-hand column. Is the motion that the state should pay a greater portion of the items in the left-hand column of the continuum chart, which could eventually mean 100% of those items.
Ms. McQueen clarified her motion. The motion is to adopt nexus continuum approach to the state/local share of the funding responsibility with the aspirational goal of the state paying 100% of mandated costs including the statutory nature of municipal courts’ judicial positions. The motion carried.
The members briefly revisited users fees. It was stated that the FAWG will probably recommend the filing fee be raised and a new fee of a cross claim, third party claim, and third party will be instituted.
Judge Fleck asked for the legislators thoughts on the filing fee increases, specifically, the inflationary amount of $147 or the proposed increases to $200, $225 or $250.
Senator Kline responded that user fees are probably the favorite. He said generally citizens may be comforted by the fact the tax is on lawyers.
Representative McMahan believes the filing fee with an inflationary adjustment every two to five years would be the most practical solution. She said no decision by the court should ever be made based upon the money, because equal justice should not based on financial standing.
Ms. Bleakney said she is opposed to tax on judgments or increasing fees, so that courts are not available to all citizens.
Mr. Blair asked if there was any additional business for the Task Force’s attention. Hearing of none, Mr. Blair adjourned the meeting.
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