In attendance:

Court Funding Task Force Chair

• M. Wayne Blair

Implementation Strategies Work Group Co-Chairs

• Judge Deborah Fleck
• Judge Stephen Dwyer
• John Cary

Work Group Members

• John Alexander
• Judge Gordon Godfrey
• Camden Hall
• Senator Steve Johnson
• Representative Pat Lantz
• Judge Jim Murphy
• Judge Alicia Nakata
• Michael Runyan
• Judge John Schultheis
• Judge Chip Small
• Rowland Thompson
• Gail Stone, Advisor

AOC Staff

• Jeff Hall
• Ramsey Radwan
• Jan Nutting

Guests

• Senator Adam Kline
• Cheryl Bleakney
• Janet McLane
• Wendy Ferrell
• Joan Ferebee
• Tammy Fellin

Welcome, Introduction, and Approval of Minutes

The minutes of the last meeting were approved as submitted.

Reports and Progress

Problem Definition Work Group – Jeff Hall

The Problem Definition Work Group has met 10 – 12 times since its inception.

The chart entitled Context of Trial Court Functions for Funding Discussion is a product of much discussion and a dedicated effort to define trial court operations. This format has replaced the onion chart – it contains much of the same information, but in a more straightforward format.

The yellow section in the foreground represents the work group’s final list of trial court functions to be considered by the Trial Court Funding Task Force. Areas of note include:

• Facilities (capital) – this subject was deemed too large to include as subject matter for the Court Funding Task Force. This topic may be taken up in another phase of the funding effort.

• Criminal indigent defense and civil indigent legal services are also removed from the list of trial court functions to be considered by the Trial Court Funding Task Force at this time.

Jeff directed the group’s attention to Table 2 on Page 6 of the Report on Fiscal Year 2000 Trial Court Expenditures. Most data presented here is from Fiscal Year 2000, but (as noted) the Juvenile Court data is from FY 2001.

This summary represents a significant effort on the part of Julia Appel. Although the figures given in the report are not exact, they are probably within five percent of the actual numbers. Expenditures for the judicial branch of government (including the Administrative Office of the Courts, the Superior Courts, the Supreme Court, the Courts of Appeal, the Judicial Conduct Commission, the Office of Public Defense and the law library) total less than .3% of the Washington State budget.

Removing indigent defense costs from the totals shown was very difficult. There was some discussion regarding a future change in the method of reporting to separate the indigent defense costs from trial court costs. A change in reporting procedures would involve a policy decision and a great deal of work with the State Auditor’s Office. The impact on local government reporting would be huge, requiring communication with all affected jurisdictions. Such a change could not be implemented until FY07, with the first data reported differently being received in 2008.

Tammy Fellin remarked that a change in reporting methods would be a very large undertaking for the municipal courts.

The simulation model discussed in the Concepts for the Calculation of the Trial Court Funding Gap will be finished before the next Problem Definition Work Group meeting on November 16, 2003. The goal is to arrive at a number that will accurately represent the gap between current actual court funding and adequate trial court funding. Jeff estimates that the figure will be between $75 and $100 million (without indigent defense costs). A tremendous amount of staff time and effort are involved in reaching this figure.

Judge Godfrey praised the SimGap effort and all that it will mean for Washington State Courts. The information being made available will assist with the development of accurate fiscal notes and help governments at all levels determine how they are affected by trial court funding costs. Judge Godfrey feels strongly that the courts should proceed with the SimGap process now. He also expressed appreciation for the work done by Jeff Hall and AOC staff on this project.

Tammy Fellin spoke about the discussions necessary between branches of government in order to bring about change. Perhaps the discussions will lead to a new way of looking at municipal courts.

John Cary spoke about the fact that actual expenditure data has been used to create the basis for the model as opposed to budget data.

Judge Fleck asked the group for recommendations and requests to be taken to the Problem Definition Group as the group finalizes its written report. Does the Implementation Strategies Work Group have the information it needs to proceed? How can the Problem Definition group produce information that will be more helpful for the Implementation Strategies group?

Jeff explained that anecdotal information is being collected to illustrate the problem of inadequate funding in a more personal manner. This information may be presented to legislators and the public in the future.

The Problem Definition research staff is also exploring the correlation between funding and performance. There appears to be evidence that the amount of funding per case increases performance, with performance being defined by the ages of cases at resolution and the number of backlogged cases.

Judge Small believes that it would also be helpful to measure some specific consequences of under-funding the trial courts. Would it be possible to determine the amount spent on private mediation and arbitration services, for instance? It would be helpful to know how many dollars are spent when citizens choose to resolve a dispute quickly outside the courts.

Camden Hall noted that it would be important to separate voluntary hiring of mediators and arbitrators from court mandated mediation.

Cheryl Bleakney told of the Public Education Work Group’s effort to produce clear anecdotal examples of court funding problems. Data collected will be translated into an easily digested document that will assist legislators and voters to become informed about court funding issues. The public is largely unfamiliar with the court system and will need a good deal of teaching and explaining. The Public Education Work Group will provide specific examples to colorfully demonstrate the dilemma.

Judge Dwyer characterized this meeting as a checkpoint. The Implementation Strategies Work Group has this opportunity to be sure the Task Force is going down the right path and that no important ideas have been missed. It is vital that the Implementation Strategies Work Group members believe in the strategies they will take forward.

Camden Hall questioned the wisdom of the Court Funding Task Force’sinvolvement in municipal court structure issues and suggested that it might be better to have a separate group considering district and municipal court structure.. Judge Fleck explained that the District and Municipal Court Judges’ Association authorized AOC to address the structure of limited jurisdiction courts either through this Task Force or separately and that funding issues are integrally tied to structure at this court level. She also noted that Rep. Kagi had mentioned at the first Task Force meeting that it was critical that this issue be addressed for the Task Force to be successful. John Cary added that although the Courts of Limited Jurisdiction is a separate work group, the group’s findings will be integrated into the ‘big picture’.

Changes in structure may be needed as problems in the district and municipal courts are addressed. AOC involvement in this process is appropriate, because AOC is directed in Title II to study court processes. Although the municipal/district court situation could be removed from the Court Funding Task Force’s purview, simplifying the CFTF’s mission at this time, doing so would quite possibly complicate matters for the future.

Summary: Anecdotal information, depicting the practical realities of under funding in the courts is needed for the Implementation Strategies Work Group to begin its work. These examples along with the amount of funding needed will be identified by the Problem Definition Work Group before the next Implementation Strategies Work Group meeting.

Funding Alternatives Work Group – Jeff Hall

Results shown in the Court Funding Task Force 2003 Fall Judicial Conference Survey of Attendees reflect a shift in judges’ opinions. The prospect of state funding is now welcomed by most judges. Personnel costs are identified almost unanimously as the most under-funded area.

The Revenue Sources document reveals results reached using the SimTax program. Potential revenues are broken down into State Property Tax, State Sales Tax, and Legal Services Business and Occupation Tax tables.

The Summary of User Fee Balloting document details the results of the Funding Alternatives Work Group’s survey regarding user fees. Current user fees (e.g., filing fee, jury demand fees), including increases to them, and one or two additional user fees are widely supported, as shown in the document, but no one believes the funding dilemma can or should be solved by that means. The consensus is that user fees are not the answer, and the Task Force needs to look further.

Representative Lantz is concerned that the Funding Alternatives Work Group and the Civil Equal Justice Task Force may collide or work at cross-purposes. Judge Fleck agreed that the two groups need to reconcile their views and present a mutually agreeable approach. The following article summarizes findings of the recent report released by the Civil Equal Justice Task Force.

http://www.courts.wa.gov/newsinfo/?fa=newsinfo.pressdetail&newsid=398

The annual speech to the California Bar Association from Chief Justice George addressed court funding and was briefly reviewed. Members are invited to read it thoroughly at their convenience. With respect to user fees, Chief Justice George noted:

“First of all, simply increasing fees is definitely not the answer. Many of the recently imposed fees were set and instituted with the cooperation of bar leaders in recognition of the need to ensure that courts were not stripped of essential resources. . . . .

Fees, fines, and penalties have a place in court funding. But courts cannot and should not be expected to fund themselves. A fully functioning and accessible system of justice is essential not only for those who appear at the courthouse door, but for all of society. Every Californian, not just those who enter the courthouse doors, should be considered a direct user and beneficiary of the judicial system.

Court Funding Task Force - Funding Alternatives Work Group - Proposal RE “User Fees”

Jeff Hall reports that a subcommittee was formed within the Funding Alternatives Work Group to catalog all program fees. The group is challenged with separating true user fees from other fees that are properly characterized as taxes. A Gonzaga Law Review article titled Taxes vs. Fees: A Curious Confusion was distributed. Authored by Hugh Spitzer, the article illustrates the problem of incorrectly applied terminology. To be a user fee, the fee must relate to the cost of the service, be placed in a dedicated fund and used for that purpose. Court filing fees are therefore a form of excise tax, not a true user fee.

Topics being discussed by the subgroup include:

• The elimination or reform of PSEA and what effect such changes would have on agencies and courts.

• Realignment of state and local shares of the responsibility for trial court funding and how that realignment should occur to ensure fairness.

• New revenue sources such as taxes (sales tax, business & occupation tax, property tax, utility tax, and a tax on judgments.

Camden Hall mentioned that his firm’s research on court funding for King County Superior Court would be useful to the Task Force and that the actual budget data for the court could be redacted. Judge Fleck asked Mr. Hall to check with Presiding Judge Richard Eadie to see if a redacted copy could be made available to the Task Force.

Further research needs to be done as to the constitutionality of tax increases to support the courts.

A .03% percent increase in sales tax was approved during the last legislative session for law and justice purposes including relieving court congestion. Pierce County will vote on implementation of this additional tax in November 2003. A link to information about this proposal is below.

http://www.morecopsnow.com/crimeperofficer.html

Judge Fleck invited the group to offer feedback for the Funding Alternatives Work Group.

Senator Johnson reminded the Implementation Strategies Work Group that most legislators are unfamiliar with the courts and very few of them are attorneys. Most have little or no interaction with the trial court system. In addition, it is important to note that there are good causes (including a health care funding proposal) competing for the small amount of funding that will become available.

Judge Fleck described the California formula, in which a trust fund is established with the counties annually contributing the same amount as in a base year, with the state assuming responsibility for increases in funding requirements over time while the county portion remains the same.

Wayne Blair questioned the wisdom of bringing legislation for the coming legislative session.

Judge Murphy suggested that the Court Funding Task Force may be able to testify on funding proposals during the 2005 Legislative Session, possibly establishing placeholders for future funds. Perhaps there will be a forum this session for educating the legislators about the court funding challenge.

Senator Kline said that the pie may not stay the same size…revenues may shrink even further so that there are no funds available.

Judge Small believes that county involvement is needed to make our case. The counties are natural allies of the courts. Sophia Byrd of the Washington State Association of Counties may be able to assist.

Cheryl Bleakney agreed that the counties will be a great asset in communicating with the public and presenting the funding dilemma to both counties and cities.

Senator Johnson added that, although there will not be aggressive movement of funds for the time being, it will be helpful for Court Funding Task Force members to attend hearings and possibly testify before the Ways and Means Committee. It may also be helpful to attend the supplemental budget hearings.

Representative Lantz said that user fee issues will be heard by the House Judiciary Committee. Again, it would be helpful to avoid having testimony from the Court Funding Task Force and the Civil Equal Justice Task Force at cross-purposes.

John Cary encouraged the Implementation Strategies Work Group to work together on a recommendation for presentation to the Court Funding Task Force regarding testimony before the legislature.

Courts of Limited Jurisdiction – Janet McLane

Wayne Blair provided a history of the challenges faced by Courts of Limited Jurisdiction. These courts must decide whether to merge or remain separate and contract with each other in the future.

The Principles for Courts of Limited Jurisdiction, were unanimously approved by the work group. The second page identifies possible implementation concepts, and some of those points were highly controversial. The two most hotly contested ideas were

• election of all judges and
• civil jurisdiction in municipal courts.

It was apparent at the October 14 meeting that the jurisdiction questions will take time to resolve. The suggestion was made to stand down for the coming legislative session and work toward agreement, presenting legislation during the following session. The Courts of Limited Jurisdiction Work Group needs to consider the implications of restructuring very carefully. The cities in King County have agreements with the county through 2006, so there is a small window of time before a decision must be made.

Janet McLane distributed information about jurisdiction in limited jurisdiction courts, limited jurisdiction court structures and options, and judges in courts of limited jurisdiction. She discussed the fact that CLJ issues spark intense debate... Cost issues are significant here. There is concern about the quality of service and confusion on the part of the public as to what happens in which court.

The jurisdiction issue is complicated by the fact that counties are required to provide a forum for civil cases for both the cities and the counties adding to the counties’ burden.

Judge Godfrey stated that this Task Force’s effort represents the first comprehensive attempt to arrive at an equitable approach to challenges faced by the Courts of Limited Jurisdiction. The solutions cannot be reached quickly. Judge Godfrey recommends that the Court Funding Task Force stand down and complete further research before making recommendations to the legislature. He also recommends that municipal courts not be separated from the courts being considered by this group.

Judge Dwyer explained that ‘hierarchies’ and relationships are perceived differently in the various branches of government. The cities have somewhat horizontal relationships, whereas the courts have vertical relationships. The entities involved have few common bases and often start from entirely diverse points when considering issues. It is important to recognize these challenges when working with the various groups.

Tammy Fellin then spoke about the cities’ views.

She sees the election of judges being a significant issue to the municipalities. In addition, the second point on the Implementation Concepts paper is of concern. That item reads, “Title 3 should provide different court options for local governments to provide court services to their community.” The cities are seeking legislative clarification on that topic.

Tammy feels that the municipalities believe in an independent judiciary.

Seven of eight cases are heard at the local level. It is to the advantage of all the courts to have the highest possible volume of cases heard at the closest level. Some cities will be unable to operate courts if pushed further economically, which will threaten the public’s access to the courts.

Expenses in municipal courts exceed revenues. The municipal courts do not, as some believe, exist solely to bring revenue into the cities.

There is a long list of reasons for cities to have courts. Examples include:

• Municipal courts are able to control their own schedules. This enables them to accommodate police hours, for example, and avoid the extra costs associated with appearing in court after their regular hours.

• Municipal courts are able to hear cases and in many instances can let incarcerated persons go before the weekend, thus avoiding additional cost and inconvenience.

Some judges are not interested in the expense and hassle involved with seeking an elected position.

Cities are adept at cost containment, employ efficient court management practices, and offer the best service for the funds available.

Tammy met with Mary McQueen and Janet McLane to discuss clarification of the contracting authority. The meeting helped to relieve some pressure and paved the way for future discussions.

Tammy believes that the cities need 18 months to create new municipal courts, so the time frame to resolve these issues is mid-2005 for King County. There is not enough time before the 2004 Legislative Session, and she expressed confidence that AWC will decide not to pursue legislation to authorize joint municipal courts in 2004. AWC’s legislative committee meets in mid-November to consider their priorities for the next session.

Tammy believes that they will work with the legislative committees and prepare for the 2005 Legislative Session.

Tammy feels that continuing the conversation in the Trial Court Funding Task Force arena will not be productive. She believes that all three branches of government need to be better represented in the forum where the subjects of jurisdiction and election of municipal court judges are discussed.

Activities of Other Groups – Jeff Hall

Judge Fleck then read portions of the Civil Equal Justice Task Force’s report. The executive summary of the report may be found via this link:

http://www.courts.wa.gov/newsinfo/legalneedsexecsummary.pdf

The proposed legislation to increase the superior court filing fee (which is expected to be supported by both the Clerks and the Civil Equal Justice Task Force)will not include dedication of the state’s share of the additional revenues which will go into the PSEA account.. The Civil Equal Justice community will then approach the legislature for the state’s share of this increase to be used at least this next year to meet the state’s civil equal justice needs. Will the Court Funding Task Force be competing with the Civil Equal Justice Task Force for the extremely limited amount of funding available?

Gail Stone discussed the idea that there may be no conflict. She suggested supporting the Civil Equal Justice Task Force’s efforts, with the understanding that the state’s portion of the funding provided as a result would go to CEJ for the first year, giving that group an opportunity to establish long-term funding. The Court Funding Task Force could hopefully secure those funds in succeeding years.

Senator Johnson mentioned that it might be difficult to get funding back after allowing another group to receive it for a year.

Judge Small sees a great opportunity to forge a coalition with the Equal Justice Coalition. The lobbying power of the groups combined would be formidable.

Camden Hall voiced the concern that he is not well enough informed to vote for or against proposals by the Civil Equal Justice group.

Cheryl Bleakney suggested neither opposing nor actively supporting the other group for the time being. Senator Johnson agreed that neutrality is probably the best position for the Court Funding Task Force at this time.

Next Meeting of the Implementation Strategies Work Group

The Implementation Strategies Work Group will meet again on Monday, December 1, 2003. Other venues for the meeting will be explored, including the Court of Appeals conference room in Tacoma.

A representative from the ‘Muni Group’ will be invited to attend if Tammy is not available on that date.

A subcommittee was formed within the Implementation Strategies Work Group. This subcommittee will research and recommend a position for the Work Group to take on the Civil Equal Justice issue, filing fees, how best to deal with other groups, and other funding issues. Members of the subcommittee will include

• Camden Hall
• John Cary
• Jim Murphy
• Judge Fleck

The meeting was adjourned.