Courts of Limited Jurisdiction –
Delivery of Services Work Group Meeting
Two Union Square, Conference Room 5517, Seattle

May 28, 2003

Present:

Members: Judge Ann Schindler, Co-Chair; Ron Ward, Co-Chair; Judge Sara Derr; Judge Wesley Saint Clair; Judge Stephen Holman; Judge Robert McSeveney; Judge Stephen Dwyer; Judge Susan Woodard; Glenda Ward; Diane Carlson; Pam Springer; Mike Kenyon, Tricia Crozier; Jay Fossett; Ann Danieli and Jim Pearman

Guests: Zachary King (ACLU); Aaron Caplan (ACLU); Mike Doubleday (City of Bellevue); Bob Boruchowitz (Criminal Defender, King County); Colleen Kenimond (Criminal Defender, City of Burlington and Skagit County); Wayne Blair (Court Funding Task Force Chair)

AOC Staff: Mary McQueen; Janet McLane; Doug Haake; and Jennifer O’Hern

Information/Materials Presented

• Questions for Criminal Defenders

• Court Rules 3.1 (Right To and Assignment of Lawyer), 3.2 (Release of Accused), 4.1 (Arraignment), and 7.6 (Probation)

• Complete transcript of a probation revocation hearing conducted without defense counsel or any discussion of a possible waiver of defense counsel

• Letter from Wayne Blair to King County District Court contracting city mayors regarding an offer to “facilitate” formal discussions about resolution to the current King County financial crisis

• Seattle Times article, “County may extend deal to hear cities’ court cases”

• Court Funding Task Force Work Group status reports presented at the full Task Force meeting held on May 22, 2003

• List of target courts for JMI to survey

• Common Principles for Court Operations

• Trial Court Funding target chart

• Core Mission Subcommittee Final Report (JEA project – 1999)

• Minimum Services for CLJ’s (DMCJA – 1989)

• CLJ Expectations and Services (and authority for those) Chart

Co-Chair Ron Ward welcomed everyone at 10:00 AM and stated that there are developments in the negotiations between King County and the municipalities, and the work group will hear an update about this later in the meeting.

Co-Chair Judge Schindler asked for any changes to the minutes of the April 23, 2003 meeting. Hearing none, minutes were approved.

1. Presentations from court user-group; Criminal Defenders (Panel: Bob Boruchowitz; Ann Danieli; Colleen Kenimond)

   Describe your practice as it relates to district and municipal courts. Do you practice in multiple municipal and/or district courts? The problems you see, in your perspective?

   (Boruchowitz) Working on a Fellowship Grant on the access to counsel issue (40^th anniversary of Gideon) and finding that approximately 50 percent of defendants proceed without counsel. Many don’t get advised of their legal right to counsel.

   (Danieli) Now a public defender with ACA. Used to be a prosecutor in Mercer Island Formerly public defender in district court in the early 1980’s.

   (Kenimond) Was a public defender for City of Burlington and Skagit County, but in private practice now that is subsidized with defender contracts. In Skagit County, the judges are the same in district court as in municipal court. This creates a consistency in sentencing. The three largest towns contract with Skagit County District Court for prosecution which contributes to consistent outcomes. A couple of smaller cities have their own systems and contract for defense and prosecution which results in greater disparity in sentencing. The biggest problem is inaccessibility to counsel because public defense lawyers are not available.

   Are there differences in basic forms, procedures, and application of law and court rules between courts? Access to needed information and files? Availability of court staff? Differences in standards or practice for appointment of defense counsel? Availability and use of interpreters or other extra-ordinary participants? Differences in ability to accommodate disabilities?

   (Boruchowitz) Examples of documented problems
   

   • A judge in Snohomish County District Court advised a defendant if they plead guilty, they give up the right to counsel. There was no guilty plea form; if defendants wanted counsel, they must drive to Everett’s Public Defender Office.

   • In another case, a Spanish-speaking defendant was held in jail for 3 days until an interpreter could be brought in.

   • When observing a session in King County, there was no defense attorney at arraignment. It was a landlord/tenant issue incorrectly characterized as a domestic violence case by the court. The judge gave the defendant three choices: get a public defender, a private attorney or go pro se, but there was no public defender immediately available , so if the defendant wanted to proceed that day, they must do so pro se.

   • In Spokane municipal court, there was no counsel at arraignment. The defendant was invited to sit with the city attorney and plea bargain. Once the bargain was dealt, an agreed order was signed.

   These examples are not atypical situations in Washington. There are some courts that do provide counsel at arraignment, but most do not. Mr. Boruchowitz also questions the practice of not having a prosecutor at arraignment because it places the court in an improper role. His view is that DWLS is a crime of economics that affects poor people and minorities disproportionately. Many courts choose not to provide alternatives for DWLS3, even though they could save money and jail time/costs if they did.

   (Danieli) Examples of current problems:

   • Vashon Island cases are now filed in Shoreline, which makes it a very long distance for litigants to travel. Cases are shuffled from Mercer Island to Bellevue, depending on if probation is involved or if a defendant pleads guilty or not guilty (if not guilty, a public defender is appointed and defendant is sent to another court).

   • No counsel is available at arraignments in district court in Bellevue, and public defenders (if appointed) don’t get notice of probation violations.

   • In contrast, in Seattle Municipal court, public defenders are routinely present. There is a good system of “intake,” where counsel is always available to move a case forward or advise defendants on pleas of guilty. Seattle Muni has a successful license reinstatement program available.

   • No license reinstatement program available for the Mercer Island cases; fines are high; the city contracts for jail services in Yakima and/or Redmond. It creates a problem with defendants so far away.

   • District court calendaring system is cumbersome. A lot of defendants leave the court without knowing their next court date (dates are not set at hearing – they’re mailed later). This process sometimes creates confusion for the defendants.

   (Kenimond) Some observances include:

   • Burlington Municipal provides some community license reinstatement simply because the court allows continuances for this purpose . In these cases the public defenders often plays a role in getting the license reinstated. The court can reduce sentences, lower fines, and give alternatives, such as community service.

   • There are no probation services available for theft or for DWLS3. Clients really need probation services for these crimes, in order to get the treatment and services they need. Again, as a public defender I often play this role, but it is no substitute for professional probation staff.

   • In district court, public defenders are not present at arraignment because that appearance is not included in their contract. So, no pleas are allowed at arraignement. If counsel is requested, the judge appoints a public defender and requires defendant to come back later for arraignment.
     

   • Without full time public defender and prosecutors (rather than part time, contract), defendant’s don’t get adequate service.

   • Expert witnesses are a problem because the cost for them often comes out of the public defender’s budget.

   Is there an ability to resolve multiple cases filed in multiple courts for a single defendant? Coordination between courts (municipal-municipal; district-municipal)?

   (Danieli) When defendants have multiple offenses in city courts and the district court, there is no way to coordinate plea bargains. The system should support a more integrated way of disposing multiple cases in a compatible way.

   Do you have specific suggestions, from your perspective as a practitioner, for improvements in the courts of limited jurisdiction?

   (Boruchowitz)

   • Recommends that our group look at problem that is created by having no counsel at arraignments

   • Suggests that diversion alternatives be available in all courts. (Courts can save money with alternatives instead of sending defendants to jail.)

   (Danieli)

   • JIS is helpful, but it would be better if public defenders had direct access to DOL records.

   General Discussion

   • Co-Chair Judge Schindler asked the panel how we pay for additional defender costs.

   (Boruchowitz)

   • Counsel is constitutionally required. Legislative bodies must find the money.
     

   • Diversion of DWLS3 cases is a gold mine for local governments. The King County District Court, Seattle Municipal and others have effectively employed alternatives like license reinstatement programs. Getting some money is better than getting none. When people are given a reasonable chance to pay, they do. A very different resolution occurs both for the defendant and the court.

   • Citizens believe “you have a right to a lawyer,” when in fact it’s not true in many CLJs. When a person is stopped with no insurance, they get a $400 fine. Poor, uneducated people who get their car impounded usually don’t take care of the problem since they don’t have the money to pay the fines and fees that come along with impounds.

   • If the government looked at DWLS as a crime of poverty, and not a public safety issue, they would try to get diversion programs and help defendants get their licenses back so they can go to work to pay the fines.

   Judge Schindler asked if the public defenders are not available due to the cost issue, a misunderstanding or a combination of those.

   (Boruchowitz)

   • Partly it’s a lack of appreciation of the court rules. Some judges disregard the rules, some don’t view them as an obligation if it inconveniences the court or costs money to have a public defender available.
     

   • A paternalistic attitude prevails among the Bar and Bench for minor misdemeanants. (A positive aspect of this is that in some counties judges who take pleas without a public defender often will close the case without placing the defendant on probation. This lat least helps the defendant avoid minor probation violations in the future).

   • There are few misdemeanor cases on appeal because there are no attorneys available to represent defendants.

   Glenda Ward said that while she agrees that alternatives like community license reinstatement make sense, not for someone who has 20 DWLS charges. What’s the solution? In Island County, the calendars are full.

   (Boruchowitz)

   • The Legislature drives much of the need. State funding is part of the answer.

   • But diversion efforts like license reinstatement programs will save money and hopefully reduce the number of people with 20 DWLS charges. DWLS for “most” people is a crime of poverty. The reality is that most people can’t get around without driving. We can set up diversion programs with not a lot of money.

   • Both Seattle Municipal and King County District Courts are working together. They can help other courts on how to integrate such programs. We need a one-stop opportunity to resolve this issue.

   • If effective counsel is available, people do less jail time, which saves the local governments’ jail costs. Some people also are innocent. If they had an attorney, they wouldn’t get any jail time; no jail costs.

   • Probation is not a panacea; it’s costly and often ineffective.

   Judge McSeveney suggested reviewing RCW 10.101 regarding indigent defense. It requires jurisdictions to adopt standards for public defense. Most have not done so. Many paid contracts don’t require appearance at arraignment. This is a problem, since many cases could resolve with adequate counsel.

   Mr. Boruchowitz added that the Washington Defender Association publishes standards and the Bar recommends adoption of those standards. You can find a copy of those standards on their website (www.defensenet.org) or contact Mr. Boruchowitz for a copy.

   Judge Schindler asked Judge Saint Clair how King County saved money on the district court diversion (community relicensing)program.

   (Judge Saint Clair)

   • Primarily, money is saved through jail time reductions

   • Additional savings accrue by not having to appoint a public defender as the case is “diverted”.

   • Additionally, some revenue was generated from old infractions being paid. Even though somes fines were reduced it encouraged people to pay something rather than nothing.
     

   • Those that couldn’t pay the fines are sentenced to organized work crews. They are able to work off their fines or jail time ($150 per day).

   Judge Schindler asked Mr. Boruchowitz if he has observed a variation in quality of services among courts.

   (Boruchowitz)

   • It depends on the location, on the local culture and who the prosecutor is.

   • There is a consistent problem in part time courts who can’t “afford” to provide counsel at arraignment for example.

   • It doesn’t make sense to have only a handful of cases and have a court open for business. Such small courts can’t take advantage of the economies of scale that larger courts experience.

   Judge McSeveney asked if there is a difference in municipal versus district court for access to attorneys at arraignment.

   (Boruchowitz)

   The problem occurs in both municipal and district court, and is often related to prosecutorial practice. For example the Seattle Municipal has historically provided public defenders at every stage of a criminal case -they recognize there is value in doing so because cases will move more quickly through the system.

   Diane Carlson asked if there were judicial barriers to resolving multiple cases (for one defendant) in different jurisdictions.

   (Judge Saint Clair)

   • Yes, there are jurisdictional “turf” problems. He said that warrants are a good example. It is unreasonable for a district court or superior court judge not to be able to quash a warrant from a municipal court after resolving the underlying offense. King County has worked hard to implement a the warrant recall program, but it has been difficult. The Trial Court Coordinating Council is helping with this issue. Enormous savings could be implemented, if we trust other judicial officers to make good decisions and minimize the turf issues.

   ( Kenimond)

   • Some counties are huge (geographically). It’s a real problem for defendants to be required to appear in multiple courts, especially from outlying areas where there is limited public transportation.

   Mary McQueen asked others to give an estimate about what is a reasonable distance to travel to get to a court.

   (Kenimond)

   • They shouldn’t have to drive any more than an hour.

   (Boruchowitz)

   • Judges should ride circuit. There is no reason this couldn’t happen.

   (Ron Ward)

   • We need to find a balanced solution. We could think about have regional centers for densely populated areas, and in less populated areas, have judges ride circuit.

   (Pam Springer)

   • It is redundant to have municipal courts very close to district court, even in Skagit County where the municipal departments function well. We need to think of the locations for courts that make the most sense; and make sure that there is the proper “package” of services in each area, e.g. defense/prosecutor offices, probation.

   (Ron Ward)

   • We need to think of allocation of resources and adequate pay for staff and judges.

   (Judge Woodard)

   • In Yakima, the municipal and district court are six blocks from each other. Consolidating criminal calendars in one location might make sense.

2. Presentation from court user-group; ACLU (Panel: Aaron Caplan)

   Aaron Caplan thanked the Work Group for inviting them to this meeting and introduced an intern, Zachary King, a law student.
   

   Mr. Caplan report that the ACLU receives information regarding CLJ practices primarily from:

   • calls from the public,
   • attorneys,
   • targeted investigations, and
   • The Court Watch Program volunteers (using prepared survey instruments).

   He noted the following problems in courts of limited jurisdiction:

   • Inconsistent standards and practices – for example the statement on plea of guilty is not compliant with the court rule in many courts (does not list elements of crime or consequences of plea) Without the availability of counsel, defendants usually have to make a choice; stay in jail while they are appointed counsel, or plead guilty and get out of jail now.

   • In small jurisdictions, the judge may wear several hats…judge, prosecutor or defense counsel. In a recent referral from the Judicial Conduct Commission, the Supreme Court recommended suspension of a judge who was also acting as a representative of the litigant.

   • Many people are NOT represented by counsel; consequently their rights are waived or ignored.

   • When a prosecutor is not present, the judge’s role is blurred.

   • Many courts use an en masse process for advisement of rights – this places defendants who are intimidated or have limited language skills at risk.

   • Some courts are “closed” or unwelcoming to the public. Some even lock courtroom doors.

   • Some court clerks resist making public files available – they tend to “grill” the requestor as to why the file is needed.

   • Some courts allow interpreters to act as a “advocate-representative” rather than simply a translator.

   • General inconsistency in practice - In some courts, prosecutors are present and proper forms and advisements are used – while in other courts nothing seems to be done correctly. It doesn’t seem to be a result of whether a court is municipal, district, urban, or rural.

   • Important decisions are made in a hurry. The usual backstops are counsel and judges; both can fail in a court without adequate resources.

ACLU Recommendations

• Judges should serve full time (fewer conflict of interest, more professionalism, more accountability). While this would trigger the election requirement for all judges, the system would be better served.

• Defenders should be full time. They build more expertise; there is greater accessibility for defendants

• Model practices and enforcement of those practices – courts have similar cases (DUI, DWLS, anti-harassment, etc.), so appointment of counsel and shorter, less confusing forms to fill out would help.

• CLJ Certification - more oversight and accountability in courts

• More money to support courts

After a brief lunch break, Co-Chair Ann Schindler asked Jay Fossett from the King County Executive’s Office to give a brief update on the situation with King County district court services.

Mr. Fossett reported that for several weeks, the county executive and council have been engaged in discussions. The critical reality is that ongoing budget reductions will continue through the next few years; there is no end in sight yet for the revenue shortfalls. Services will continue to be curtailed as needed to meet revenue predictions. The Executive is willing to consider an extension of contracts with the cities for court services, and has mailed a letter to all mayors asking that they proceed to obtain a waiver of the binding arbitration provisions to allow time for negotiation. Discussions aimed a finding a short term solution will take place during the next eight weeks.

Court Funding Task Force

Co-Chair Judge Ann Schindler reported that the Court Funding Task Force met on May 22 and intends to have at least an interim report with recommendations by this fall, recognizing that some work will need to continue into 2004

Wayne Blair, chair of the Court Funding Task Force, noted that other work groups are gathering data that will detail the cost of the court system, and investigating sources of additional revenue.

Co-Chair Ron Ward stated that it would be a mistake to think of the task of the work group as only solving a deficit in money. When the state had a surplus, many of the same problems existed in courts of limited jurisdiction

Research Project

Janet McLane reported on a contract with JMI (Justice Management Institute) regarding a survey of selected courts of limited jurisdiction. A small subcommittee of work group members met recently with JMI to begin design of the survey. The intent is to collect information about practices in various sized courts across the state, augmented with follow up interviews, resulting in a report that recommends best models of court operation. In the meeting materials, there is a list of courts that will be surveyed. JMI will pilot the survey with several courts represented on the work group. The research project is expected to go through the end of September 2003.

Common Principles

Judge Schindler mentioned that Janet McLane added some additional descriptions to the concepts from the last discussion at the last meeting. This will be a working document.

Topics/Materials for Future Meetings

• Presentation from Judicial Conduct Commission
• Caseload information
• CLJ Courts in other states
• Department of Licensing presentation
• Law Enforcement presentation
• MADD? (Peter Youngers was not able to attend today’s meeting)

Next Meeting Date and Time

The group agreed to meet next on June 25, 2003 from 10 a.m. to 2 p.m. Also a tentative date of July 31 or August 1, 2003 was set for calendars. More information will soon be forthcoming regarding the final preferred meeting date.

Meeting adjourned at 2:00 PM.