Courts of Limited Jurisdiction –
Delivery of Services Work Group Meeting
Red Lion Hotel Seattle Airport
May 7, 2004
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
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
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.
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:
Other increase proposals adopted by the Task Force:
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:
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.
Co-Chair Judge Schindler reminded the work group of last meeting’s conversation regarding jurisdiction. Items discussed were:
District Court Civil Practice
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:
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:
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:
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:
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:
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.
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:
The CLJ Work Group still has to present to the full Court Funding Task Force the following:
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.
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