Members: Co-Chair Judge Ann Schindler; Co-Chair Ron Ward; Justice Susan Owens; Judge Sara Derr; Judge Wesley Saint Clair; Judge Stephen Holman; Judge Robert McSeveney; Judge Eileen Kato; Judge Richard Fitterer; Tricia Crozier; Joe McGuire; Linda Bell and Pam Springer

Guests: Judge Corrina Harn; Wayne Blair (Court Funding Task Force Chair); Bonnie Woodrow;

Toni Rezab (King County District Court Budget Office); Sophia Byrd (WSAC); and Tammy Fellin (AWC)

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

Information/Materials Presented

• Minutes of April 7, 2004

• ACLU Report Summary and full Report, “The Unfulfilled Promise of Gideon; Washington’s Flawed System of Defense for the Poor,” March 2004

• Washington Defender Association Standards for Public Defense Services

• The Washington State Civil Legal Needs Study Executive Summary

• Multiple Agency Fiscal Note Summary regarding Crimes Against Property

• Ideas for civil and criminal jurisdiction changes – by Judge Corinna Harn May 4, 2004

• Memo from Doug Haake, AOC, to Tammy Fellin, AWC, regarding Civil Jurisdiction changes and projected numbers of cases that might be involved

• Principles, Implementation Concepts, Proposed Structure, and Proposed Implementation Steps for Courts of Limited Jurisdiction

Co-Chair Ron Ward welcomed Co-Chair Judge Ann Schindler, Wayne Blair, Court Funding Task Force Chair, and members of the CLJ Work Group at 9:00 AM. Ron asked that everyone introduce themselves.

Co-Chair Judge Ann Schindler asked for a motion to approve the minutes of the April 7, 2004 meeting. A motion was entered and seconded. Motion passed.

Overview and Status of Task Force Activities

Wayne Blair reported that at the May 16 Board of Governor’s meeting, the Bar’s Indigent Defense Committee reported that indigent defense costs are about $140 Million, but those costs are still changing. With trial court spending at $400 Million plus the $200 Million overall gap, where does the money come from? The state currently pays 10.6 percent of the trial court costs ($46 million) and they should pay more. The Task Force adopted the Nexus approach to show the increase and the mandated operations. The Task Force is still working with the Nexus.

Wayne added that the Funding Alternatives Work Group is trying to determine the gap in funding. The Task Force approved a series of fee increases that group recommended, although not the long term solution:

• Superior Court Filing fee increase from $110 to $200
• District Court filing fee increase to $55. (There would be no change in the state and county split.)

Other increase proposals adopted by the Task Force:

• Increase the B&O tax on legal services from 1 percent to 2 percent (this would raise $30 million.)
• Plus Two possible tax increases; Either

  • An additional surcharge on the B&O tax; or
  • 1/10 of a percent property tax increase per $1,000 value

  At the next Task Force Meeting, they will decide between two additional alternative tax increases:

  • Gates tax or
  • Cable television tax

The Task Force is also deciding on what the overall strategy will be to move ahead, in the short term and in the long term. In the short term, the Task Force has to decide what to do in the next legislative session; present the information in pieces or in a whole package, and how to present it.

Title 3 changes will be proposed to help the counties and the Public Education Work Group will start their work after the full Task Force is complete with their work.

Mary McQueen asked if the Bar’s indigent defense plan was available yet. Janet McLane said that we will get it soon.

Sophia Byrd added that she is a member of the Problem Definition Work Group and the Bar’s Indigent Defense group. They looked only at indigent defense in its current structure.

Mary noted that the AOC was the one that suggested the Legislature create the Office of Public Defense. It has saved money for the state plus there is only one agency for oversight.

Judge Derr asked if the proposal by the Task Force will ask that the money be earmarked for trial court costs, or will it just go into the General Fund? Wayne responded that they are looking at a proposal to earmark the money.

Co-Chair Ron Ward commented on two things that the Task Force will have to try to accomplish:

• Increased State Involvement; and
• How to get everyone/society to buy in (part of our job is to make it real for the people of Washington state – courts are a priority)

Judge Eileen Kato asked what comments were made by the ABA.

Co-Chair Ward responded that he and Jan Michels presented at the ABA regarding court funding. From the beginning, it became apparent that Washington is on the cutting edge of the court funding process. A couple of states will ask our BJA for “how tos” to jump start their own court funding task forces.

Wayne said that Judge Warren commented regarding that presentation by saying that the ABA is comparing the Colorado approach to court funding (litigate and fight hard) with the Washington approach (stakeholders all discussing the issues and working things out to benefit all court users); The ABA is leaning toward the latter approach.

Co-Chair Ward urged members to read the materials that were requested at the April 7 meeting, and provided in this meeting materials packet.

Jurisdiction

Co-Chair Judge Schindler reminded the work group of last meeting’s conversation regarding jurisdiction. Items discussed were:

• Legislature to redefine the property crime thresholds

• DUIs – outcomes vary among and between courts

• DWLS, Indigent Defense and the costs related

• On this issue, the work group agreed to recommend a statewide task force be created to look at best practices for re-licensing programs

• Concurrent or exclusive jurisdiction?

District Court Civil Practice

• Choice to Litigate in District Court – Why or Why Not?
• Discovery Rules

Co-Chair Ron Ward explained his experience in litigation. He said that five years ago, there was an explosion in the trial de novo process in civil practice (followed by the insurance industry boom). The typical case: cost $7,500; parties settled or received mandatory arbitration in 150 days. For the $7,500 cost, the decision was handed down for $8,000, and then a trial de novo petition was filed for a full blown trial with the costs involved in that. Now statistics say there is a slight decline in these cases, but his office is still seeing the same level. A few years ago, lawyers tried to push these cases to the district court. It was more cost effective and you could get an expedited timeframe for completion of the cases in district court. What resulted was discovery expansion, which led to continuances. This in turn took more time for completion, and therefore was no longer cost effective. Most attorneys decided that if they could take cases with a $75K ceiling and end within 120 days, they would settle in district court right there.

Co-Chair Ward introduced John Scholbe (plaintiff’s counsel).

Mr. Scholbe described that he was an attorney in Seattle (tries cases mostly in King County and some in Pierce County). He is a WSTLA member and received a listserv message asking why the district court is not being used like it used to be. His response was:

1. There is a difference in arbitration of $35,000 in district court and $50,000 in superior court. It’s faster to complete a case in arbitration.

2. The rewards are better in arbitration. Eight to nine times out of ten, arbitration awards the plaintiff, versus in district court. Things that might help district court:
   • Create and provide a case schedule. It helps alleviate continuances, streamlines the process and keeps it cohesive.

   • Possibly raise the limits to $150,000. (most attorneys don’t have a lot of clients worth that much, but if they do now, they take those cases to superior court).

Mr. Scholbe added that the MAR Rule punishes de novo requesting attorneys. It might be a change in strategy, not sure, but there is an increase in depositions.

Co-Chair Ward added that the increase in the relaxed rules of evidence may have decreased de novos somewhat, but in his office, they show 75 percent statistics for de novo cases.

Discussion ensued regarding reasonableness of medical treatment.

Co-Chair Ward introduced James Dixon (defense counsel). Mr. Dixon started by introducing himself as staff counsel for Allstate Insurance. He stated that the decision between filing in superior

court versus district court is made by the plaintiff. He personally, likes district court cases, since it moves faster. The problem he sees with district courts is that they (King County) are available only one week per month to hear these cases. This results in dates set out too far in advance, losing the benefit of faster completion. The interrogatories in superior court and the lack of depositions is problematic. He would like to see limits raised also. He added that these cases need 12 jurors; 6 is less desirable. With 12 jurors, there is more dialogue. If courts continue with 6 person juries, then the limits should not be raised.

He added that he would also love to see a system come in for pre-trial, scheduled trial dates. The case schedule idea would be good to move cases forward and might encourage more district court filings.

Judge Kato said that six years ago, the limit was $25,000, then it went to $35,000. Civil and criminal cases were on the same schedule for pre-trials, but they are separated now so that civil cases don’t get continued in favor of speedy trials for the criminal cases. The case schedule should be added to district court. There should be no additional depositions allowed. As an example, a case filed in March 2003 went to trial in October. District court can get cases filed and to trial within 6 months. A way to shortcut that timeframe would be to limit depositions.

James Dixon further said that two depositions should be the limit.

Co-Chair Judge Schindler asked Mr. Dixon his opinion about arbitration versus district or superior court.

Mr. Dixon said that the number of appeals seems to be going down. There are more plaintiff attorneys than defense attorneys acting as arbitrators. Arbitration awards versus trial awards: the difference is that arbitration awards are higher. He would prefer not to have arbitration in a lot of cases, but it works sometimes.

Judge Kato said that district courts in general are not geared up to handle civil jury trials.

Mr. Scholbe added that it is frustrating to go before a judge who does not hear many civil cases. Where the plaintiff attorney files, depends on the judge and county.

Co-Chair Ward asked what the optimum level would be for the district court award ceiling. Mr. Scholbe replied $75 to $100K. Mr. Dixon responded that $75K would work. Judge Kato said that $75 to $100K is good ($150K is too high); limited discovery is not worth their time.

Other Jurisdiction topics

Judge Corinna Harn put together a proposed jurisdiction change for discussion. This idea came about through a group of judges who discussed CLJ jurisdiction changes. Judge Harn thought it would be a good idea to discuss this with this work group.

Judge Harn said the basic idea is:

1. Give cities exclusive jurisdiction over all infractions and misdemeanor cases (but not gross misdemeanors). The cities could have their own court, contract with each other, or contract with the district court to provide those services. This would mean that cities would be able to generate some revenue from the infractions and continue to have jurisdiction over the types of cases that have, in the past, caused them to form their own court; i.e. prostitution, soliciting, etc.

2. Make all gross misdemeanors state offenses (i.e. just like felonies are only state offenses) and require that they be prosecuted exclusively by the state, just like felonies.

3. Give the District Court exclusive jurisdiction over gross misdemeanors and class C felonies. This would expand the district court’s jurisdiction without reducing the penalty for any crime. Under this scenario, the legislature could also increase the penalty for repeat DUI offenders to a class C felony (probably a very marketable improvement from the public’s perspective). This would also allow the district courts to impose active probation and closely monitor the DV and DUI folks --- something the district courts do much better than the Department of Corrections. It would also be a modification to coincide with what is happening already --- i.e. many class C felonies are reduced to gross misdemeanors as a result of plea bargains in superior court. Also under this scenario, district court would be exclusively a “state court” and therefore, should be funded by the state the same as superior court. (Cities who chose to contract with the district court would pay the actual cost for that service.) District court would also still be responsible for the infractions and misdemeanors from the unincorporated parts of counties and State Patrol, Department of Game and Fisheries, etc.

Example of how the new structure may look:

Judge Stephen Holman commented that this proposal shifts costs around like a shell game. He thinks it begs the question as to who will pay for the costs. It might work well with some counties, but not well in others. County probation does a better job of probation/monitoring, but some cities in some counties do better at monitoring.

Mary added that in the “Administration of Justice,” Dean Roscoe Pound reported that the public is dissatisfied with justice; with a proliferation of court levels. The public needs to have predictability and that fact needs to drive our decisions. Her concern is that we are creating a two-tier district/municipal court structure. We need to keep those principles in mind when making decisions. If the state pays or assumes costs, will they provide the probation? We need assumptions about the business case. She added that regional courts make the most sense. All judges serve and each of the cities, counties and state pays a portion.

Judge Holman agreed that is the long term aspiration, but not for this session.

Judge Wesley Saint Clair stated that GR 29 allows for that to happen now (portability of judges).

Mary said that distributing the costs is the challenge.

Judge Saint Clair said that there is one issue missing – look at the implementation plan – the regional process needs to be overarching. We are too involved with “turf Dom” – this is a prime opportunity to get rid of that and go forward to the Legislature.

Sophia Byrd said that brings in the jail issue again. Some courts are already on the “regional” structure (Chelan).

Judge McSeveney added that cities mostly follow the state laws now. Cities have control over the “delivery” of those laws. The regional court structure would be good – more consistent.

Tammy Fellin reported on the issue of regionalization of jails. The Sentencing Guidelines Commission is currently looking at this issue. She suggested it would be worthwhile to look at their final report. On the issue of regional courts, the AWC is calling them “community courts” and will recommend the allowance of cities to contract with other cities or contract with the county district court. We will work through the jurisdiction issues and who sits where, etc. With this proposed new jurisdiction change (as presented by Judge Harn), it may mean losing community courts or result in fewer courts.

Judge Saint Clair said not necessarily. Judge Holman opined about regionalization. It may mean fewer courts; It depends on which county you’re in. Those four hour courts will probably go away.

Judge Sara Derr stated that regional courts don’t equal “centralized courts.” It’s not in the interest to serve people. In the centralized court structure, the judges go to the community needing the service. The other issue is how this would occur: strengthen the districting committee, jail costs are still an underlying issue. The county handles jail and probation. There will be ongoing issues between the county and cities – the new structure needs to be proactive.

Justice Susan Owens stated that the assumption that we’ll lose courts and/or accessibility is not true. In Clallam County, the cities currently contract with the county.

Anti-harassment; expansion of civil, small claims – continue discussion from last meeting

Janet McLane pointed out the anti-harassment and other materials in the packet. She reported that Tammy Fellin, AWC, asked the AOC to put together guesstimates regarding shifting to concurrent jurisdiction for municipal courts.

Tammy added that they were pleased with AOC’s fast response to the request. She said that AWC asked for an estimate because we react to taking on additional caseload; more work, more costs, with no money to help. It’s easy to take on if the money is attached. If there is a separate source of funds, but attached to the cases; or if two were contingent, then there is no problem taking the cases. We asked for an estimate for exclusive jurisdiction for estimated municipal filings. The results include the 75,000 cases per year heard in district court now, but shifted to the cities/municipal courts. Tammy added that this reinforced the idea that this would increase the caseload of the municipal courts too much and be an unfunded mandate.

Janet asked Tammy if AWC discussed adding anti harassment jurisdiction.

Tammy responded that there was an overwhelming response that this would also increase the caseload and be an unfunded mandate. Although it wouldn’t be 75,000 cases, cities expressed a strong sentiment for allowing jurisdictions to take on anti-harassment as a local option.

Joe McGuire added that smaller courts can’t handle more cases.

Options for Court Structure

Co-Chair Judge Schindler pointed to page 84 of the materials. Under Courts of Limited Jurisdiction Proposed Structure, the proposed long term goal should be a regional court with jurisdiction over state law and county and city ordinances. Regional courts will increase convenience and one-stop shopping for the public. The short term or interim options are:

• District Courts
• Independent Municipal Courts, and
• Contract / Interlocal agreements between: cities and counties, or multiple cities.

Implementation Steps

Judge Schindler also explained that as part of the Proposed Implementation Steps, the CLJ Work Group will recommend to the Court Funding Task Force the following improvements in Title 3:

• Strengthen the districting committee
• Clarify the contracting process (not call it “interlocal agreements”)
• Clarify the role and authority of Commissioners

Title 3 Clean Up Proposal

Janet McLane reported that she will send around a draft soon. There are three major clean up topics for discussion:

1. Better articulate the contracting process in Title 3,

2. Strengthen the role of the Districting Committee in statute; and

3. Articulate the role of Commissioners.

She added that Title 3 is confusing and the contracting provisions are unclear. Nothing specifies now what the agreements should say. We would go a long way in moving forward, to clarify:

1. Options for court structure:
   • Preserve the language in Title 39; Create parallel language in Title 3:

     1. Acknowledge (as Title 39 does) that municipalities are responsible for crimes and infractions committed in their respective jurisdictions.

     2. Clearly authorize the choices that municipalities have to fulfill their responsibility for enforcing crimes and infractions, e.g. establish independent court or negotiate interlocal agreement with another jurisdiction.

     3. Describe how an interlocal agreement (contract) is to be initiated and the timing of it so that a city’s request for court services is coordinated with election cycles.

     4. Specify what should be in an interlocal agreement for court services e.g. judge resources needed, types of cases to be handled and services to be provided, apportioning of expenses, whether traffic violation bureaus will be used – and how.

     5. Set the term of interlocal agreements to coincide with judicial terms, and require periodic reviews of the provisions.

     6. Allow either party to terminate the agreement with adequate notice, again timed with judicial election cycles.

     7. Make provisions for the use of binding arbitration for disputes that arise during the periodic reviews.

   Tammy Fellin responded that preserving Title 39 language would be preferable and helpful to the AWC. AWC is supportive of clarifying the contract provisions in Title 3. In terms of what is in an agreement, it should be left to the negotiating parties. It is a question of approach.

   Sophia Byrd said that she thinks it is basically a good idea to spell out in Title 3 that Title 39 applies for contracting. The overall concern is that we don’t create a statute that makes more harm than good. We could draft in “should consider” so things aren’t overlooked while preparing a contract. She added that termination of the contract is a concern at the counties. If the county increases staffing and then the contract goes away, what happens when the caseload isn’t there anymore.

   Tricia Crozier added that there needs to be an agreement for who pays for the ongoing cases in the district court after the termination of the city contract.

2. Districting Committee Membership
   • Strengthen the Committee by:

     1. Having the presiding judge participate, instead of having one appointed.

     2. Require the districting committee to meet at least once every 4 years.

     3. Require the districting committee plan to include provisions for identifying the number and location of municipal courts as well as district courts, the types of services offered at each court, the existence of interlocal agreements for court services, and the method to be used for determining what portion of district court expenses are to be paid by the cities.

     4. Make provisions for how amendments to the plan will be considered.

   Justice Owens said these are good ideas, and would suggest they meet every two years instead of four.

   Doug Haake said that more communication is good.

   Joe McGuire said he is not clear as to the role of the districting committee. Do they discuss and advise or are they the power?

   Janet responded that the districting committee makes the plan, which is presented to the county council. It is advisory now, but we need to make it so that the plan has to be acted upon by the council.

   Sophia said that the county commissioners will like more clarity, but NOT like “bureaucracy.”

   Judge Richard Fitterer said that it would be nice to allow antiharassment and DV cases as local options.

   Co-Chair Judge Schindler said the principles were adopted by the Court Funding Task Force, but they have not adopted the expanded jurisdiction implementation concept. They also voted on the issue of elected judges. We are now focusing on expanded jurisdiction.

   Tammy said the county has the option to veto the districting plan. AWC would like to request that everyone come to the table and make decisions and then no veto should be allowable afterwards.

   Janet McLane said we should articulate and be descriptive of how the plan should look.

3. Clean up the role of court commissioners in Title 3. It would be wise to describe the authority of municipal and district court commissioners.
   • Borrow the language regarding superior court commissioner authority

Judge McSeveney said he didn’t think there was a problem with abuse of district court commissioner authority. The problem he could see with a municipal court commissioner is that they can also be pro tem judges in district court. The dilemma is which hat they wear when.

Co-Chair Judge Schindler said that the Legislature and people who come to court are concerned that only elected judges hear jury trials.

Co-Chair Judge Schindler asked members to think about the proposed implementation step “Consider limitation of RCW 3.50 (independent municipal court option) to municipalities related to population or caseload size. (Principle I, VI; Implementation Concepts 1-6).”

Several members responded that population is not a good basis for limiting.

Judge Kato said that in her experience as President of the DMCJA, she is realizing that smaller jurisdiction judges will get weeded out by the election mandate. We need to hold them to a standard.

Ms. Fellin said, since this is the first time hearing this proposal, her first reaction is that since there are 181 cities in this state that are below 5,000 population, most cities in the state would lose their ability to have a court.

Co-Chair Judge Schindler asked about looking at mandatory services that a court must do to be considered an independent court.

Ms. Fellin said that cities could look at that option. It would be better than looking at population. Eliminating municipal courts would mean paying more money to the county for contracting.

Pam Springer said a study was done on costs, and the cities aren’t paying more. Some small courts don’t follow the rules properly and that doesn’t serve the community well.

Judge Holman added that it is not good for us to adopt this notion without more knowledge of the consequences.

Timelines

Co-Chair Judge Schindler said that we need to conclude the work of the work group and start on a report to the Task Force.

So far the Court Funding Task Force has adopted the following recommendations by this work group:

• Principles
• Implementation Concepts (except expanded jurisdiction)

The CLJ Work Group still has to present to the full Court Funding Task Force the following:

• The “city to city contract provision”; and
• Long term goal proposal.

Wayne Blair would like to have the final report to the CFTF by June 15, but we may not, realistically, get the draft done by that timeframe.

The proposed draft report will be e-mailed to the Work Group and after comments are incorporated, we can then decide if we need another meeting.

Co-Chair Ron Ward said in closing, it was a pleasure and a privilege to work with everyone and thank you for your time. He informed the group that he will soon be the WSBA President, and the issue of court funding will be advocated during his tenure.

Meeting adjourned at 12:45 PM.