Court Funding Task Force
Participating: Wayne Blair, John Cary, David Donnan, Tammy Fellin, Judge Gordon Godfrey, Judge Bruce Hilyer, Ron Hjorth, Kirk Johns, Judge Matheson; , Ron Mattson, Mary McQueen, Barb Miner, and Glenn Olson
AOC Staff: Gil Austin, Jude Cryderman, Jeff Hall,
Review of Minutes
Approval of the April 17 and May 8 minutes was tabled.
Status Report -- May 22 Court Funding Task Force meeting
Mr. Johns indicated the timeline is of concern to all task force members. He said the assumption is that the approach will be changed to a longer exercise. The issue is whether there is ample time to prepare an initial task force report for this fall that includes long and short term recommendations. He added that the schedule is tight, but looking at long term exercise.
Mr. Johns indicated that fees are going to be subject of concern. Due to differing views serious consideration should be made to those issues. He continued it is necessary to demonstrate that we’ve looked at the matter in depth and are able to support recommendations.
Mr. Blair advised that each work group made a presentation that included where they had been, where they are, and where they are headed. In addition, time was set aside for each work group answer questions and take comments.
Mr. Blair agreed that user fees-have generated strong feelings on all sides of the issue. He said he felt the user fees are an important part of the work group’s work.
Mr. Blair said concerns were expressed over the timing of the work groups’ recommendation to the task force. He said the approach is that it can’t get all done, but if ease off on schedule momentum may be lost. He reminded the members that in Chief Justice Alexander’s letter, he asked that the task force report by the fall in anticipation of 2004 session.
Mr. Blair stated the King County issues with the courts of limited jurisdiction must be addressed in next session. He reminded the group that contracts between county and the municipalities have been terminated officially December 2004.. These Problem must be resolved. He said the negotiations between the county and cities are continuing. He asked that the work group charge ahead as much as possible. If proposals are developed for some of the issues, they will be presented to Chief Justice Alexander and the BJA.
Mr. Mattson reported comments about principles document included too much verbiage, while other felt the principles did not say enough.
Mr. Donnan felt that the task force meeting was useful in determining the progress made by the work groups, in particular the Problem Definition work group’s creation of their onion chart and the discussion whether indigent defense should be included as a core need.
Mr. Cary discussed the Public Education Work Group’s presentation and the need to prepare the legislature for the recommendations of the Court Funding Task Force. He continued, the Problem Definition Work Group seemed to present a framework with which to view the needs of court funding.
Judge Godfrey noted the educational curve will require a huge effort for a complex problem and grappling with the problem of municipal courts in King County, which could result in stifling the work of the Court Funding Task Force due to their short term funding needs.
Ms. Miner felt the discussion of civil indigent representation was important.
Ms. McQueen felt there was a major philosophical split among the task force members on the user fees issue. She emphasized the importance of having a comprehensive approach to the legislature and not having various entities go to legislature asking for user fees. She suggested some type of bill being introduced to avoid the piece meal approach with the legislature. Ms. McQueen advised that one jurisdiction has requested an AG’s opinion on issue.
Mr. Cary stated coming from King County and dealing with problems on constant basis, not realistic option to say hold-off. He indicated concerned over user fee, saying that the King County Bar supported raising fees to support civil legal justice. He expressed the need to reconcile the role of the task force.
Mr. Blair explained he had received letter from Chief Justice Alexander advising that civil equal justice will also exploring way to fund legal services. He indicated the necessity to starting working with the Civil Equal Justice Task Force.
Judge Godfrey reminded the members that we are the Funding Alternative Work Group. This is the group that should come up with some alternatives to funding the court system.
Mr. Johns agreed that it is necessary to come up with funding options prior to September full task force meeting. He continued, funding options should be identified as one of the goals prior to September meeting. In addition, the user fee issue should be studied.
Mr. Blair said the user fee issue is on the table for September task force meeting.
Judge Godfrey indicated that legislators will have their legislation drafted by September. He felt the work group will need to have any proposed legislation drafted by September. Judge Godfrey said it was important to identify what we are talking about as far as user fees.
Mr. Hall reported Julia Appel of AOC is reviewing all of the courts’ budgets for 2000. As part of that process, Ms. Appel, is identifying the dollar amount required to run the trial courts in Washington State. She has almost completed the superior courts and will begin with the information provided by the county clerks. He continued only the district courts will be included, not the municipal courts.
Mr. Hall advised that just court budgets are being reviewed. He stated that every courts does their budget in a different way, which provides for a challenge. He also advised that the state auditor’s data includes indigent defense in some counties and not others.
Judge Fleck said she found the task force meeting helpful and full of information. She also thought it was clear that there needs to be more task force meetings to ensure the members are up to speed with the work of the work groups. Judge Fleck feels it necessary to have something in place for legislation by the end of this year.
Mr. Johns said task force discussions on some issues, i.e., user fees will require lengthy discussion. He suggested putting forth the recommendation on user fees allowing ample for that discussion and dialog. He noted that the perspectives from legislative members are very valuable.
The work group next discussed the request for an attorney general’s opinion. Mr. Johns asked if it might be helpful to contact the attorney general’s office and request an opportunity to comment.
Judge Hilyer point out that the attorney general’s office would look at the legality of the issue. He said the question is to clarify the existing legal authority. of the issue. He continued the work group should look at whether user fees are a good idea. He also said the work group needs to talk about the merits of the issue.
Ms. McQueen said the user fee in King County is no different than CLJ issue in KC. She continued short term problems that are driving decisions that need to be made quickly. If King County is expanding user fees or introducing legislation relating to user fees, then discussion with King County is necessary.
Ms. Miner stated it might be necessary for Mr. Blair to not only work with the Civil Equal Justice Task Force, but also talk with King County officials.
Judge Hilyer indicated a formal request for an opinion has not been sent to the attorney general’s office. He said the user fee discussions are being driven by budget shortfalls. The King County Executive has advised that a million or million and half dollar cut may be necessary for the superior court. The county council presented another option to avoid the cuts which is for the superior court to raise revenue. The court is exploring what options are available to raise revenue instead of staff (20-30 people) lay-offs. They are look at fees charged to determine whether it is feasible to increase or expand those charged based on existing authority.
Ms. McQueen said any talk about getting credit for raising fees changes relationship between legislative bodies and the courts. Reinforces the government agency vs. co-equal branches of government.
Judge Godfrey said these discussions are hitting something goes right to core of how we arrived at problem. This patch work method of court funding has always started with King County to solve a short term problem. He continued when the short term problem is solved, King County jumps ship leaving others with problems unsolved. If these problems are core functions of the courts, then who is responsible for funding?
Mr. Johns asked that Mr. Blair and Ms. McQueen communicate with the attorney general’s office on behalf of BJA and the Court Funding Task Force regarding the opinion requested. He said this issue is central to the Funding Alternatives Work Group considerations and they would appreciate being informed of question(s) when presented.
Judge Hilyer suggested instead that Mr. Blair call Judge Eadie directly and ask about the letter and what question(s) will be included in the request to the attorney general’s office.
Civil Indigent Defense
Mr. Johns reminded the work group of the Chief Justice’s request to coordinate with Civil Equal Legal Needs Task Force. He said this should be an agenda action item in order to comply with CJ’s request.
Mr. Blair said it might be harmful to have inconsistent recommendations from the two task forces. He asked the work group to think how best to communicate and coordinate with the civil legal needs task force.
Mr. Johns reported that Justice Chambers had attended a meeting of the Problem Definition Work Group to provide an update. He advised that civil indigent defense is not core function of the courts and should no be identified as such. Mr. Johns said civil indigent defense is a major aspirational effort by the court system. He suggested a joint meeting with Problem Definition Work Group, this work group and Civil Legal Needs Task Force. The focus of this meeting would be to develop an overall strategy that serves all purposes.
Judge Fleck indicated the need for a clear outline about what this work group is about. She though the public may not have the same view of legal access funding as that of the Civil Legal Needs Task Force. If we dilute our message from funding the trial courts to taking on civil indigent defense funding that could be a problem.
Ms. McQueen advised that one of the issues is BJA endorsement of the legislative proposal which was very emotional and highly controversial. The issue came back for reconsideration with the vote down jurisdictional lines, but did passed. She indicated that we don’t want to take back to BJA.
Mr. Blair suggested rather that a formal meeting of the task forces, invite a representative from the Civil Legal Needs Task Force to make an informational presentation at the work group’s next meeting.
Mr. Johns said the informational presentation will assist in focusing the work group’s strategy and it may very well be that we don’t have a need to coordinate. He predicts that the likely recommendation will not be included in trial court funding. Mr. Johns indicated if the work group progresses and develops a position, we may be in a better position to prevail and not the access to justice folks.
Judge Godfrey said until there is a change to the constitution providing civil legal services is not constitutional requirement, funding the courts is. He continued it is unwise to sit down and take on the appearance that we are support this situation. We need to back off civil legal services are not part of our court funding issue.
Mr. Blair indicated many people don’t necessarily agree that civil legal needs are not part of funding the courts. He said it is up to the Problem Definition Work Group to decide where civil legal services fits into the onion. Mr. Blair said he would advise Chief Justice Alexander that the Civil Legal Needs Task Force will be asked to make an informational presentation to this work group.
The members next discussed information/studies relating to user fees that would be helpful to have for the next meeting. Suggestions included:
• Information from a state that has gone down this path.
• Other states that have user fees as significant source of court revenue—what happens over time—stabilized funding, has it grown?
• Pleading user fee, motion fees
• Other charges in the clerks’ offices for different kinds of services—do they include all of that?
• Standards relating to court costs fees, miscellaneous charges--COSCA 1986
• Should we choose CA as example?
• Did the court benefit by raising fees?
• Inquire of a few states—when you raised fees did it change your court’s budget?
• Recognize not just what fee is, but where it goes and what it is used for . Are those revenues used for court operation or general government.
ABA Standards Relating to Court Organization 1990
National Center for State Courts recently compiled all fines/fees that all states charge. This information is available in draft format on their website.
Suggestion: 1) gather recommendations, 2) high level analysis by staff; and 3) gather additional information from AOC in other states.
Mr. Johns said the following additions have been made to the proposed principles:
2) The judicial branch of government is critical to maintaining the rule of law in a free society
3) Trial courts are essential to the protection to the rights of all.
Discussion regarding the proposed additions to the principles followed.
• Use proposed additional principles as preamble.
• Trial court collections are not a factor in determining trial court budgets.
• Some of the principles are not quite self-explanatory. If you haven’t participated in the debate won’t understand the principles. Explanation would take care of it. Without explanation are we communicating adequately? Is old language better.
• The fines and penalties and fees imposed by the trial courts shall/should not be a factor in court funding.
• We need commentary under each principle.
• Call halt to internal improvements and develop commentary. Spell out in commentary.
• Funding that funds all courts equally. Avoid minimum funding.
• Doesn’t say trial court funding should be equal, but the administration should occur equally across the state.
Mr. Hjorth advised that he will reassemble the original committee and work on commentary sometime in the next month.
Mr. Johns directed attention to the write-ups in the materials that were distributed. The purpose of the write-ups was to define and support proposals that were made at the May 8 meeting.
The work group discussed advantages to having a master contract for interpreters. Discussions included advantages to having a master contract would provide a list of those interpreters agreeing to work in 15 minute increments rather than the minimum two hour increments; state guarantee a minimum rate if interpreter agreed to be included on master contract; “retainer” paid by state; courts would be charged by state for actual time used; possibly of creating a state committee on interpretation; creation of standard user fee; encourage courts to combine efforts.
Question arose as to whether there is adequate technology in the courts to support this proposal.
Criminal Indigent Defense
This is a local public safety issue.
Propose that a balance might be that the state accept some of the responsibility for the costs of criminal indigent defense in aggravated murder cases.
Support concept that appointment of competent legal counsel is court’s responsibility. The position should be the state funds an all encompassing indigent defense program. Current court rule creates list of qualified attorney for death penalty cases, but smaller counties unable to hire those attorneys due to cost.
Recommendation to move indigent criminal defense out of the judicial branch, make it a state funded responsibility within the pubic defender’s office.
Look at critical or core functions of the judicial branch. Doesn’t like separate office that provided defense. Court needs to know whether the defense lawyer is qualified to represent.
Consider separate organization to provide indigent defense. Problem Definition Work Group has treated indigent defense as core function of the courts. They have not considered separate funding from the courts. Problem Definition needs to consider whether some of the “onion core functions” should not be provided by the courts.
Mr. Olson stated the discussions don’t have anything to do with alternative ways to fund the courts. This work group should not look at court budgets, but look at everyone else’s budget. He said this work group, almost by definition should not be looking in the courts’ budgets for money. Mr. Olson continued, the approach with counties could be we’ll save the counties a certain amount of money, but expect 50 percent (or some other percentage) of the money saved to go to the courts’ budget.
Mr. Olson said there are three sources of funding: new money, money reallocate from other programs, and obtaining money through efficiencies or combination of all. All proposals will obtain money in one of those ways. Money will have to come from some where else to fund indigent defense.
The following proposals were a result of the discussions:
1) Form committees to look into greater depth categories of proposals;
2) Problem Definition Work Group should identify any function characterized as core function that might be removed as core function if other funding sources are identified; and
3) Categorizing as core/non-core functions right now as we go through the proposals.
The work group next discussed funding.
Mr. Hjorth said the work group needs to know what the responsibilities of the counties/municipalities/state are. If we need to find more money then we need to know where to look. If enough new money comes from the state, then need to worry about preserving money at local level. Also should decide appropriate burden for state.
Mr. Olson disagreed saying no one has any additional money. He continued counties can only do what authorized by the state. If state legislates unfunded mandates the should give the counties money. In practical terms, there is a low likelihood to get the state to increase by even 1% point.
Ms. McQueen stated there seems to be an imbalance in the responsibility of funding trial courts in this state. She questioned how close does Washington need to be to the national average?
It was suggested to let the Problem Definition Work Group determine what the problems are, as it is the charge of this group to find alternative ways to fund the courts.
Mr. Olson suggested that the work group should have an idea of the amount of money required to fund the courts.
Mr. Hjorth agreed saying that whatever number we must find the money to fund the courts. If in doing so, we come up with solutions for saving money all the better. If in finding new money, we may find new ideas.
Mr. Hjorth said new money could be found through taxing the lawyers. They have great interest in legal system. B & O taxes paid by lawyers could be earmarked to fund the courts. He asked that staff find out how much B & O tax is paid by the lawyers. One of our jobs is to find new money.
Judge Matheson suggested adding tax to judgments.
Mr. Olson said the task work group needs to know how much money is needed, then we need to find it. He reminded the work group that the Governor’s office recently faced that twist. The last budget was built on knowing how much money was available then determining what can be bought with that amount. Mr. Olson said it was important to bring a solution to the legislature then advise them of the problem.
One suggestion was to being to look at alternative funding sources. Identify the constitutionally mandated costs. There is not a lot of state or county control over those issues. It is also important to get information and begin discussions from funding alternative position what makes sense.
Ms. McQueen and Mr. Olson agreed to provide a dollars amount that could be generated if taxes are added to lawyers’ services.
Mr. Hjorth explained that we haven’t yet come to the point of debating user fees. Need to find some new money and it would be helpful not just to ask but provide solutions. One is lawyers’ B & O tax, another might be real estate tax. New money should include some new money that is not self generated. What kinds of ideas can we give the legislature about new money.
Judge Matheson said tax on judgments over certain dollar amount could be realized by adding 5% to the judgments. That money would not come from the plaintiff, but would be added on. This tax might encourage settlement and lessen courts’ workload. He continued, when the judgment is satisfied the first 5% would go directly to the state.
Ms. McQueen talked about budget philosophy. Whatever the means of acquiring additional funding money, it has to hold harmless existing budgets. Those remedies should assume courts are not going to be worse than they are in 2003. Courts should not loose any ground on their budgets.
Mr. Johns said we should make studies that address user fees a priority.
Mr. Hjorth said consider early agenda items user fees and additional taxes.
Sooner we can get the quicker we can discuss. Put at front of agenda.
Ms. Miner and Judge Hilyer will provide a list of user fees that are being considered by King County.
There being no further business, the meeting was adjourned.
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