Washington State Courts: Board for Judicial Administration
Members Present: Chief Justice Richard P. Guy, co-chair; Judge James M. Murphy, co-chair; Judge William W. Baker; Mr. Wayne Blair; Judge Christine Cary; Mr. Richard Eymann; Judge James F. Gavin; Judge Robert L. Harris; Judge Vicki Hogan; Judge Stephen Holman; Judge Ronald Kessler; Judge Frank L. Kurtz; Ms. Mary McQueen; Mr. Jan Eric Peterson; Judge Michael P. Roewe; Judge Jay Roof and Justice Charles Z. Smith
October 20, 2000
Members Absent: Judge Robert McSeveney; Judge Susan Owens; Judge James M. Riehl; and Judge Karen Seinfeld
Guests Present: Ms. M. Janice Michels; Judge T. W. Small; Mr. Paul Steere; and Judge Tom Swayze (retired)
Staff Present: Mr. Rick Coplen; Ms. Jude Cryderman; Mr. Doug Haake; Ms. Janet McLane; Mr. Victor Moore; and Ms. Yvonne Pettus
- Approval of September 13, 2000 minutes.
- Approval of amendments to 2.56.020.
- Approval to create local rules coordinating work group.
- Approval to create group to review recommendations and solicit comments to the proposed rules changes to the Commission on Judicial Conduct.
Call to order
The meeting was called to order by co-chair Judge James M. Murphy.
Members were asked to introduced themselves.
It was moved, seconded and passed to approve the minutes of the September 13, 2000 meeting.
New Action Items
Proposed Amendment to RCW 2.56.020
Ms. McQueen explained that the statute contains prohibitions against lawyers in AOC practicing law. She continued, this would be an appropriate time to either remove totally (as in draft) or limit to the private practice of law, similar to the limitation on lawyers in the Attorney General's Office and prosecutors. Ms. McQueen provided several examples within AOC that could be interpreted as practicing law. In addition, in support of access to justice AOC lawyers would be able to participate in pro bono activities. Further, Ms. McQueen advised that AOC has a policy that prohibits outside employment without going through an approval process. Ms. McQueen requested approval of the amendments to RCW 2.56.020.
Brief discussion followed during which the Board further amended 2.56.020 to read as follows:
2.56.020 Appointment, compensation of assistants
-Administrator, assistants not to practice law. The administrator for the courts, with the approval of the chief justice of the supreme court of this state, shall appoint and fix the compensation of such assistants as are necessary to enable him to perform the power and duties vested in him the performance of the powers and duties invested in this office. During his term of office or employment, neither the administrator nor any assistant shall engage directly or indirectly in the practice of law in this state. [1957 c 259 §2.]
It was moved by Judge Roewe and seconded to approve the amendments to 2.56.020. The Motion passed unanimously.
Uniform Local Court Rules
Judge Murphy reported the Supreme Court established the Local Rules Coordinating Committee in the early 1990s. It came out with a recommendation for a model set of local rules and a permanent committee to draft other sets of local rules. The philosophy between model rules with option recognizes that one size can't fit all. There is such a proliferation of local rules statewide that anyone who is practicing outside of his or her own county is seeing different rules than the one to which they are accustomed. The committee's goal was to come up with uniform rules for those issues that all courts have in common, while at the same time giving local courts the option to individualize their rules to their local needs. That recommendation was passed on to the trial court judicial associations and the state bar for action. No formal action has ever been taken on the recommendation. The proliferation of local rules continues to be a problem. Justice Johnson wants to put a working group together to revisit this issue, including members of the trial courts from throughout the state, who are active in drafting local court rules.
Judge Hogan, chair of the Best Practices Committee, reported Justice Johnson had contacted her about working with this model local rules issue. She indicated that although this was not necessarily the number one priority, the committee certainly would put it in the mix for consideration.
Judge Kessler said this issue is complex enough that perhaps it may need to be handled by the task force approach as opposed to a subcommittee type approach. Judge Murphy responded that Justice Johnson had suggested a work group. The work group would be separate from the BJA. Judge Murphy continued that Justice Johnson is asking support of creating the work group.
Judge Kessler moved for the creation of a work group in favor of local rules coordinating committee. The motion was seconded by Judge Baker. The motion passed unanimously.
Ms. Michael reported the Bar has taken no position.
Reports and Information
The legislative committee has not met.
Project 2001 Committee
Judge Murphy reported the Committee had met on Monday and Tuesday, with much accomplished under the guidance of co-chairs Judge Swayze and Paul Steere. The Committee reviewed 71 recommendations during the two-day meeting. Judge Murphy asked the co-chairs to make a report on the recommendations.
Judge Swayze acknowledged that a tremendous amount of work had been accomplished by the Committee and the work groups over a six month period. The creation of Project 2001 by the BJA and Chief Justice Guy had the impetus of some legislators concern about the judicial branch of government and whether it was really serious about trying to improve itself and its efficiency, if in fact that was required. Because of those concerns, which were raised during the last legislative session, Project 2001 was formed to take a close look at the judicial branch.
The Committee divided into five main work groups which in turn report to the main Project 2001 Committee. Wayne Blair chaired the Jurisdiction and Portability Work Group, which had the main objective of taking a look at reorganization possibilities which had emerged and surfaced during the last legislative session. Judge James Cayce chaired the Trial Court Administration Work Group. Michael Donohue, superior court judge from Spokane handled Case Management. Judge Vance Peterson, Spokane District Court, took a look at a special problem, in the eyes of the legislators, that of many thousands of unenforced warrants within the system. Judge Faye Kennedy, chair of the Domestic Relations Committee of BJA, looked at domestic relations. Also, Judge Dan Berschauer chaired the Jury Commission, which looked at juries and the jury system. The Project 2001 Committee felt it was not necessary to create separate groups to study domestic relations and juries.
The Committee would like the Jury Commission's work be a part of the legislative recommendations and a part of the Project 2001 report to the legislature. Certainly jury concerns are of importance not only to the public, but to the legislature.
Several of the work groups further divided themselves in to subgroups to study very specific issues. Judge Swayze continued that people from other areas such as counties, cities, the bar, and any other groups that appeared to have an interest in the subject matter, were invited to designate a representative to the subgroups. This process engendered a lot of cooperation and interest by these other groups, particularly the counties and cities, who have a real interest in whatever is done in the area of change to the court system because of the potential fiscal impact.
Judge Swayze advised that 71 recommendations were reviewed over the two-day period. Some of the recommendations were adopted, while others were rejected. Many other recommendations were consolidated into one or more recommendations because some dealt with the same subject matter, but had been submitted from a separate work group. Probably the most glaring example of that is the area of courthouse facilitators, which was a topic of concern from the domestic relations groups, but also with other work groups seeking access to justice improvements and new methods and ways to deal with pro ses coming into the system.
Judge Swayze asked whether BJA wanted to review each of the recommendations. He continued, he understands with the presentation of the report there will be a period for the Board and constituent groups to examine the content and how it might effect various groups, with actual action on the report taking place at the next meeting.
Judge Swazye thanked the AOC staff for their support of the Project 2001 Committee. This was a massive undertaking in a short period of time and in addition to the people that devoted their time and effort into the work of the committee, the work got "dumped" as an additional task and responsibility upon the OAC's staff. They had a tremendous amount of additional work piled upon them in a short period of time in addition to their normal and regular duties.
Mr. Steere indicated the focus now should be turned to where the report should go from this point forward. He continued, Wayne Blair's group did a lot of "heavy lifting," one of the things it recognized was the idea of consolidation of the courts, which is an idea that's been floating around for a long time. Rather than finesse that issue, the Jurisdiction and Portability Work Group undertook an indepth study whether consolidation would be a good idea or not. There was a great deal of analytical thought and work that was put into the consoldiation issue. Mr. Steere continued, the rationale is not set forth here to the point that it really tells you what the scope of the work was. The Committee's conclusion is that consolidation is probably not a good idea at this time. Mr. Blair's committee started focusing on what could be done to streamline the system to accommodate access to justice, achieve economies where possible, and better utilize resources. Most of the specific recommendations follow that format.
Mr. Blair stated the series of themes that runs through the report arise from the central concept that are not going to merge the trial courts. The courts are going to, instead, set up a system of coordination and collaboration in a more formal way. Many of the recommendations follow from there to enhance the theory of cooperation. He continued, that can be covered later as the report is reviewed. The underlying theme is coordination, collaboration and cooperation of the system.
Ms. McQueen reported that several Project 2001 members and staff would attend the Bar Board of Governor's meeting to respond to questions/concerns relating to the recommendations. Letters will be sent out to the various other bar associations requesting input.
Ms. McQueen continued, BJA should sponsor a second joint meeting of the Board of Trustees of the Superior Court and District and Municipal Court Judges Associations. The Board discussed possible dates for holding the joint meeting, aiming for Monday, November 13th.
Ms. McQueen advised the Board that the Court Management Council are meeting the first part of November. Judge Murphy and Wayne Blair will be attending the opening session to make a presentation on Project 2001. The main focus of the Court Managers' Conference is a review of Project 2001.
Ms. McQueen continued, all comments will be compiled and forwarded to the BJA. It is hoped that a final decision will be made at the Board's November 17th meeting with the Court Management Council.
Ms. McQueen indicate possibly the first week in January, before a change in the Chief Justice, but as part of the transition, the presiding judges meet and possibly participate in the state of the judiciary address. She continued, it would be very effective and reinforce the judiciary speaking as one voice.
Ms. McLane stated the Project 2001 report would be available on the courts' website on Wednesday, October 25.
Chief Justice Guy advised the Board that a research position has been requested in OAC's budget. That position would provide support to the Board and its efforts.
Judge Murphy advised a number of issues discussed at the Project 2001 Committee meeting were referred to the long-range planning committee for study; some of the domestic relations issues were referred to the Domestic Relations Commission for implementation by that group rather than making them part of the Project 2001 package.
Judge Kessler asked if there is any feel for support from the state Senate and House Judiciary Committee for pushing consolidation from membership. Any idea what former Justice Talmadge might do next session? Chief Justice Guy responded that consolidation was not necessarily a "hot button." They are concerned about constituent issues, i.e., courts too slow, cost too much money. He continued, the real issue though is cost.
Judge Murphy asked that the members be prepared at the November 17th meeting to adopt those recommendations the Board feels are appropriate to adopt.
Judge Baker advised that the Legislative Committee is scheduled to meet on November 9th. Further, any input by the BJA should be to the Legislative Committee prior to their meeting. Ms. McQueen asked if the Legislative Committee could delay their meeting until after the joint meeting on November 13th. The Legislative Committee will reschedule their November 9th meeting.
Best Practices Committee
Judge Hogan explained they are in the process of appointing membership. Still needed are appointments from the district and municipal court; court of appeals and supreme court.
This committee will meet in November.
Judge Murphy said once the Board has taken a position on the Project 2001 report, they will begin to plan whole day sessions to deal with the issues that are assigned to the Long-range Planning Committee.
Access to Justice
Judge Small provided a brief report on the work of the Access to Justice Board. He also provided an update on the definition of the practice of law.
Mr. Peterson reported on the new rules that have been forwarded to the Supreme Court, defining the practice of law and creating the Practice of Law Board. The new board would make recommendations on areas of practice wherein limited licenses might be granted to nonlawyers and also investigate issues and complaints concerning the unlicensed practice of law. The Bar has not heard from the general membership.
Privacy Work Group
Ms. McQueen stated the documents provided were for information. This ongoing issue, privacy and access to court records, is being considered by the Data Dissemination Committee of the Judicial Information Systems Committee. The Committee will be reviewing access to court records, regardless of format-electronic or hard copy. The records causing most concern are those containing social security numbers, credit card numbers, and information that sometimes get imbedded into petitions. A number of proposals, including legislation and court rules, will be reviewed by the Work Group. The first meeting is scheduled for October 25.
Judge Roewe said his association's concern with the Weiss legislation is a criminal charge located at RCW 26.26. That provision says personal information about the party cannot be revealed. This could be construed to say the defendant's name, address and telephone number could not be released. He continued, the Association would appreciate the committee making sure that does not happen.
Chief Justice Guy advised the Board that due to Justice Smith's other commitments, Justice Smith had indicated to the Chief that it might be useful to the Court to replace him on the Board. Justice Madsen has agreed to replace Justice Smith.
Mr. Moore reported on November 16, the Local Government Task Force, one of the several set up in the last session, has asked that the BJA present the Project 2001 report to them. Members of the Project 2001 Committee and AOC staff will be available to make that presentation.
Proposed Rule Changes to the Commission on Judicial Conduct
Judge Murphy advised of an Executive Committee Conference call yesterday to discuss an issue of concern to the Superior Court Judges' Association Board. The proposed changes to the rules of the Commission on Judicial Conduct were referred by the SCJA Ethics Committee. The CJC held a hearing on October 6, which was attended by Judge Vicki Hogan. The changes were to take effect immediately, but Judge Hogan prevailed upon the Commission to allow additional time to review the rule and comment on the changes.
Judge Murphy briefly reviewed the proposed rule changes (copy attached).
Judge Murphy said he felt a need for further discussion of the proposed changes to the CJC rules. He advised the Board that Judge Hogan was able to get the Commission to agree to extend the comment period until January 15. He continued, because it effects all levels of court, this is a matter in which the judiciary should speak with one voice. He proposed the creation of a work group that would review the recommendations and solicit comments from the respective constituents in preparation for the next hearing.
It was moved by Judge Roewe and seconded by Judge Holman to establish a work group to review the recommendations and solicit comments relating to the proposed Commission rules. The motion passed unanimously.
Judge Hogan agreed to chair the committee. Judge Cary will represent the District and Municipal Courts. Judge Baker will coordinate with Judge Hogan.
Ms. McQueen briefly reported on proposed legislation dealing with primary elections. She noted that several of the legislators had commented that perhaps the judicial elections should be held separately. Ms. McQueen stated that both Mr. Coplen and Mr. Moore would monitor any legislation.
Mr. Coplen stated that the Secretary of State's Office has not done much more than look at the alternatives. They are waiting for the election to find out who the new Secretary is before they decide what will be done.
Chief Justice Guy reported at the last Chief Justices' Conference, Tom Phillips the Chief Justice from Texas, spoke about the high cost of judicial elections. In Texas the cost for a Chief Justice's election is about $3 million. Chief Justice Phillips advised that a foundation was prepared to underwrite the cost of an evaluation of the election process. That group is meeting in December. Justice Madsen has been asked to attend that meeting, along with Ruth Walsh, Judge Baker and Everett Billingslea.
Chief Justice Guy continued, he will be meeting with the Governor following the elections to discuss judicial elections. He continued, he will test the political waters during his meeting with Governor Locke.
Chief Justice Guy stated that Mike McKay, a member of the Salary Commission, has been able to explain to the Commission the need for increased salaries for judges; what are comparable salaries; and other relevant information. The Chief reminded the Board that basically after the last salary go round that the Commission would provide cost of living increases for judges and other elected officials.
The Chief Justice said the membership of the Commission will remain the same as it was two years ago. He continued, the judiciary was probably looking at a cost of living increase. Chief Justice Guy stated that because he would no longer be a sitting judge, he would offer his assistance to the Board. He said, it is essential that the judiciary, through the Board, work together for salary increases.
Chief Justice Guy requested that the court of appeals, superior court, and district and municipal courts designate someone to represent them in working with the Salary Commission.
OAC staff will prepare salary information for the Board's review.
Mr. Coplen advised that because the Commission members' terms all expire at the same time, after this term the membership terms will be staggered.
There being no further business, the meeting was adjourned.