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IMPLEMENTATION STRATEGIES WORK GROUP In attendance: Court Funding Task Force Chair
Implementation Strategies Work Group Co-Chairs
Work Group Members
AOC Staff
Guests
Welcome, Introduction, and Approval of Minutes The minutes of the last meeting were approved as submitted. Reports and Information The last Court Funding Task Force meeting produced healthy discussion and definitive information. John Cary voiced his opinion that it is now time for the Implementation Strategies Work Group to begin work in earnest. This group now has the early proposals for discussion and can offer constructive input to the other work groups. Wayne Blair reported that the Court Funding Task Force will meet again on May 4 and intends to finalize its report in June. The report will confirm that both funding for underfunded needs of the trial courts (the gap) and the state paying a more reasonable share of the total cost to provide adequate, stable and long term funding are the desired outcomes. It is the work of the Implementation Strategies Work Group to formulate a strategy for selling the court funding solution to the legislature. Context of State Trial Court Functions for Funding Discussion Jeff Hall distributed the informative trial court chart developed by the Problem Definition Work Group. The chart defines state trial court functions and presents other functions for discussion. Jeff noted that in the section titled “Essential to State Trial Court Operation but Not Administered by Them,” courtroom facilities are out of the funding discussion. The other three items – criminal indigent defense, juvenile and dependency representation, and mental health commitment representation – are still being debated. The section titled “State Justice System Supports but Does Not Administer” includes civil indigent legal services. This item may be included in future funding discussions, as it is connected to the work of the trial courts. The SIM Share charts show the amount currently spent by the state’s trial courts. The total of $341,229,443 includes all Superior and District Court Clerks. Using these figures, it is apparent that just 10.8 percent of the total expense is borne by the state. Jeff then discussed the concepts used in calculating the trial court funding gap. A Blue Ribbon Panel of the Washington State Bar Association is studying the criminal indigent defense funding issue at this time. Judge Harris calculates that ‘the gap’ between current and optimum funding, including criminal indigent defense costs, is between $70 and $90 million dollars. Mr. Blair explained again that the state now pays just 10.8 percent of the current trial court costs when indigent defense is combined with the trial court costs. ‘The gap’ may be defined as the difference between current funding and adequate funding. Mr. Blair suggests that the legislature needs to be asked to help not only with ‘the gap’ but with a reasonable share of the overall funding through the nexus approach. He indicated that one approach we may want to pursue is for the state to assume all or a part of indigent defense costs. Funding Alternatives Work Group Jeff Hall and Kirk Johns, a co-chair for the Funding Alternative Work Group, presented that group’s report. The list of recommended items for state funding was described as ‘aspirational.’ The challenge now is to identify a method for shifting financial responsibility to the state. The Taxes Subcommittee’s list of recommendations was reviewed. The Court Funding Task Force will consider these items and those of the User Fees Subcommittee soon. The general expectation of the Funding Alternatives Work Group is that there will be some increase in superior court and district court filing fees. User fees and motion fees may be extended, as well. The final recommendations of the PSEA Account Subcommittee were presented. PSEA issues are controversial, and because PSEA is not a major source of potential funding, it was decided to concentrate on other options. Jeff then presented the Continuum Profile, illustrating the relationship between state action and trial court costs. Tammy Fellin expressed concern that some mandatory items affecting cities and municipal courts are not mentioned on the Funding Alternatives list as requiring future funding. Jeff Hall assured her that other items may be added to the list if appropriate. Mr. Blair added that it is vital for the cities’ input to be passed on to Kirk Johns as soon as possible. It would be advantageous for the Funding Alternatives Work Group to have that information before the group’s presentation is made to the Court Funding Task Force. Tammy agreed that the list must be produced as quickly as possible. Kirk Johns noted that the concept of reapportioning state and local contributions is understood. Although the cities’ detailed list of funding needs will probably not be received before the Funding Alternatives Group’s next meeting, the items requiring funds will not be dropped or imperiled if the list is not received in time for discussion at that meeting. He suggested that the Courts of Limited Jurisdiction Work Group should be involved in these discussions of municipal and district court funding needs, as well. Representative Lantz observed that some of the recommendations seem to be in conflict. Jeff Hall agreed and said that readjusting the percentages of the split will require changes throughout the table. The changes will reflect both added revenue [is it revenue or is it costs that will be added and shifted?] and shifted revenue, with the goal being to cause the state to accept more responsibility for court funding in the future. Kirk Johns and Wayne Blair pointed out that there are political implications, as these funding issues cross legal and political lines. This fact reinforces the importance of county officials’ active participation in the court funding effort. Judge Fleck explained that the fixed costs – those without significant deviation – would be best to shift to the state as is proposed in the nexus chart. Judge Kato reviewed the determination of judicial officers’ funding costs. The total number of judicial officers (240 FTEs) is made up of 190 superior court judges, 43 court commissioners (who should be judges), and 15 unfunded positions. The need has been established for 70 additional judges. In addition, staff must be added for each judge. Judge Schultheis remarked that an acceptable ratio of law clerks to superior court judges ensures better decisions and fewer appeals. (The BJA will define the desirable ratio of clerks to judges.) The current ratio of one law clerk to three superior court judges is clearly inadequate. It was suggested that one law clerk per judge be proposed, with the understanding that as a compromise, one law clerk per two judges would be a significant improvement over the current situation. The report, titled “Sim Share,” shows distribution of the gap based on the current state/local allocation structure. Ideally, 100% of the responsibility for the $57,803 gap would be shifted to the state. The resulting distribution would be approximately a 40/60 split between state and local funding; that ratio is near the median split for court funding among states in the United States. Representative Lantz asked about the civil indigent defense figure. Judge Harris’s calculations show that the actual cost for civil indigent defense may be as high as $90 million. More work will be done to determine the amount needed. Recent articles in the Seattle Times report a caseload crisis among Washington State’s public defenders. Gail Stone told of the Washington State Bar Association’s study on that subject, which is nearing completion. The study includes a survey of county compliance with current public defense standards (compliance is not mandatory at this time), costs for public defense, salaries incurred, maximum caseloads carried, etc. The study will also identify costs of applying mandatory standards to public defense. Allegations against Grant County – including claims that private attorneys contracting as public defenders are allowed as little as $20 per case – are being investigated at this time. Jeff told of the American Civil Liberties Union’s report which revealed that of all the cities surveyed, only one had adopted the standards recommended for public defense. Perhaps legislation is needed to make compliance mandatory. Judge Schultheis believes that priorities of some county officials will need to be shifted, as well, so that defendants are perceived as deserving quality representation. Wendy Ferrell shared the Public Education Work Group’s public relations plan with the Implementation Strategies Work Group. She stressed that the message must be easy to understand. Wendy suggested that the Public Education Work Group might partner with the Implementation Strategies Group to develop focus groups, reach voters, and get the court funding message out effectively. She expressed hope that a debate or series of debates would be held, offering the Court Funding Task Force a cost-free opportunity to fully present and explain its proposed solution. Cheryl Bleakney discussed the addition of personal stories to ‘put a face’ on the court funding dilemma. Jan Michels will provide some anecdotes for use by the work group. Public support will be garnered by educating citizens about the problem. In the end, the court funding issue may become a full-fledged political campaign. Judge Fleck reminded the group that the legislature and the public have a continued interest in “efficiencies.” Detailed proof is needed that the courts are cutting costs and saving money in every area possible. It will be important to begin the new court funding discussions with reassurance that Phase I, which was Project 2001 addressing structure and efficiencies, has been completed. In addition, she said we might consider suggesting that the Trial Court Coordinating Councils, which have been developing as one of the three main proposals from Project 2001, be placed in statute in some way. For example, the legislation might suggest that each judicial district review over a period such as five years whether a single interpreter pool, or combined jury pools between municipal, district and/or district courts be developed. Making such suggestions may be helpful in proving that the courts are actively seeking cost savings. At the same time, Judge Fleck said, the court funding effort must not be bogged down by the search for efficiencies. It is important to pursue the concept that the judicial branch requires outside funding – it cannot and should not fund itself. Judge Dwyer shared his view of the Implementation Strategies Work Group’s role, which he sees as twofold:
He observed that a much more clear idea of the proposal will be needed before a strategy can be formulated, and asked about the projected timeframe involved. John Cary expressed concern about King County’s courts and other local courts facing immediate funding problems. Court funding is both a long-term problem and a short-term problem. The long-term aspects are crucial, but the short-term problems must be addressed soon. Perhaps the Court Funding Task Force will be able to arrive at a short-term solution that will provide immediate relief for the cities and counties, allowing them to keep their vital programs, while building credibility for the Court Funding Task Force’s effort to establish a long-term solution. Judge Fleck noted that the Superior Court Judges’ Association will establish a court funding committee made up of past, present, and future organization presidents and other members. Judge Godfrey discussed our state’s unfortunate distinction of being near the bottom of the list when it comes to providing indigent defense for those accused of criminal offenses. He believes that the Implementation Strategies Work Group’s approach should be one of persuasion rather than confrontation, and sees the persuasion being accomplished in three stages.
Representative Lantz said that stable, long-term, adequate funding is what many groups are seeking – the Court Funding Task Force is not the only one asking. Health care and education are also in crisis. How can they all be funded? She believes that the legislature will need to revise the state’s tax structure to address the many funding needs. Judge Godfrey asked the group to remember that the courts are not merely ‘another group’. The courts must function properly, and the responsibilities of the courts cannot be carried out without adequate funding. Judge Murphy asked if there would be a non-supplanting mechanism included in the proposed funding plan. Tammy Fellin thanked the Implementation Strategies group for inviting her to participate. She spoke about criminal indigent defense costs, saying that she would like to focus on the points on which there is agreement. She favors an approach that would ask the state to take over indigent defense funding. Tammy stressed that there must be some incentive for all local governments to support the court funding proposal put forth, and believes that the criminal indigent defense issue brings all the important groups together. Judge Murphy voiced his agreement with Judge Godfrey’s opinion that all courts must be on board for the proposal to succeed. He agrees that the focus needs to be on the legislature, as well. Rather than simply presenting the funding request, the Court Funding Task Force will have the ability to show legislators where the funding might be found. Because the courts themselves have initiated this funding effort, the legislators will consider it a judicial project. Judge Murphy also discussed presenting the funding proposal to the public and asked that the public relations plan include working with entities able to reach Eastern Washington citizens. He stated his belief that indigent defense funding should be tied to a requirement that the guidelines for adequate defense are met. The importance of indigent defense must be communicated. Gail Stone challenged the group to come out with a compelling problem statement, clearly defining the impact of inadequate funding. Many citizens do not understand the role of the courts in their lives – their attitude is, “Why should we care?” Our problem statement must be as compelling as the health care and education advocates’ statements. Ramsey Radwan agreed that a sound bite is needed, especially considering the economic challenges faced by the state. The legislature will certainly ask, “What have you done to reduce costs?” He reinforced the importance of showing efficiencies and demonstrating that, despite cost-saving measures, justice in Washington State is truly in jeopardy. Michele Radosevich reiterated the value of building a joint platform with local government. A coalition is much more powerful than a single entity, and the counties are in desperate financial straits. She discussed the fact that the legislature is crisis-driven, making a compelling problem statement imperative. The crisis needs to be defined – the legislature needs to see the effect initiatives have had on local government and the dramatic impact on local court funding. Michele believes that structural arguments about separation of powers are not likely to persuade. The legislature is looking for savings, and we can do our part to convince them that funding the courts is a good deal. At the same time, the courts must recognize that there will be some loss of control that comes with state funding. Michele also said that the legislature is incremental in its approach to problem solving, therefore unlikely to commit to major reform. She believes the funding plan will need to span a period of 4 to 8 years, during which time the state will ideally take over criminal indigent defense and begin to pay all superior court judges’ salaries. Kirk Johns pointed out that there are two possible approaches. One is an immediate adoption and presentation of a funding package, with the implementation achieved in phases. The other is phased adoption of a funding plan. He believes that adopting a plan in phases over a period of time would result in failure. The funding crisis is deepening and the courts will be unable to meet the needs of the people without assistance. Incremental adoption of a plan also gives the impression that the crisis is not immediate. Senator Johnson explained the difficulty in persuading the legislature that the state is not doing its share for the courts. In addition, it will not be easy to convince legislators that there is a true crisis at hand. Rather, the argument that the state has a statutory, constitutional, and moral responsibility to fund the courts may be more effective. Wayne Blair encouraged the group to remain determined to see the court funding project through, despite the fact that there are no easy answers. We live in a Tim Eyman environment, with tax increases very unpopular. He suggests a timeframe of four to six years for the funding shift. Jeff Hall has found that although local courts are concerned about the loss of local control associated with state funding, they are now willing to give up some control in exchange for much-needed help. Denny Heck said that the context of this discussion is important. This is an election year with a $1 billion shortfall. Presentations to the 2005 legislature will include topics such as public employees’ desire for increased wages, the effects of the collective bargaining bill, pension contribution issues, and health care. There is little chance for court funding assistance during the next session. He believes that it would be prudent to forge relationships with legislators and become well-positioned this year to take a run at the funding effort in the future. The legislature at this time has no perception that the trial courts are in crisis. Denny Heck finds the Court Funding Task Force’s problem statement lacking. He suggests putting indigent defense in the forefront. The ACLU, the Bar Association, the Seattle Times, and a possible class action suit will bring the issue to the entire state’s attention. He observed that about 90 percent of the legislation is ‘passed’ before the session even begins, as constituents make their cases to their legislators one-on-one in their districts. He urged the group to act now – to begin with the issue that is most ready to present. He suggested making a point with a specific problem, establishing a relationship with key legislators, and then letting them know that the courts will be back for future discussions. There is an opportunity now, and we should take advantage of it. With the funding approach centered first on criminal indigent defense, the group can continue to move forward in the legislative sessions of 2005, 2007, and 2009 – making progress on a segment of the plan during each session. He noted that indigent defense is validated by third parties, making it a viable place to begin. Kirk Johns voiced the need for more information. He suggested the formation of focus groups and gathering of anecdotal evidence to put a face on the problem. He also supports the belief that working with cities and counties to develop a coalition is important, as well as supporting the criminal indigent defense task force. Dow Constantine explained that the legislature needs to know we have a workable plan – not just that we have a problem. Denny Heck agrees that it will not be possible to secure a large amount of funding in 2005. This is, however, a good time to validate the problem, provide good data, and begin to state our case. Kathy Lambert again stressed the importance of educating the legislators and the counties. Many legislators suffer from misconceptions about the judicial branch. Councilmember Lambert then suggested including juvenile dependencies and juvenile defense in the indigent defense effort. Constituents are more likely to support a program that will assist children than one that only benefits persons charged with crimes. Washington State failed the federal audit of child welfare and protection measures, so this would be an opportune time for that discussion. We may need to negotiate…what can we give? How can we help save money? Denny Heck agreed that juvenile dependency could be addressed along with criminal indigent defense. He again suggested moving ahead now rather than waiting. Dow Constantine agrees that a collaborative effort is vital. We need to organize the issues, invite public discussion, and involve the legislators. The Washington State Association of Counties (WSAC) conference will be held soon in Vancouver. That conference would provide an opportunity to bring the issue to the counties. Kathy Lambert said she was going and would take the opportunity to speak about the Task Force’s efforts and the need to work with the counties. Michelle Radosevich suggested that Councilmember Lambert might speak with everyone she encounters at the WSAC Conference who is interested in criminal indigent defense, and in so doing identify partners in local government. Michele also asked if there is a plan for handling criminal indigent defense funding. Would the state administer the programs? Would indigent defense be contracted? Gail Stone again discussed the coming report from the Bar Association, scheduled for release in mid-May. Michele asked if a recommendation will be made regarding indigent defense funding in the report. It would be better to remain silent on that subject than to misstate the goal of having 100% state funding for indigent defense, perhaps by saying that the state needs to “contribute.” The message from the Bar Association Blue Ribbon Task Force needs to be consistent with that of the Court Funding Task Force. Wrap-Up The Court Funding Task Force will work to develop a strategic approach and an action plan for criminal indigent defense. In addition, it has been determined that a partnership with local government is vital. Cheryl Bleakney will soon have a video presentation that would assist in telling the court funding story. A small group was formed to formulate a criminal indigent defense proposal. Members of that group are:
Court Funding Task Force meetings will be held in early may and mid-June. The Board for Judicial Administration will meet in July. The next meeting of the Implementation Strategies Work Group was set for Monday, May 17, from 9 a.m. until 1 p.m.
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