Board for Judicial Administration
SeaTac, Holiday Inn
November 14, 2003
Members present: Chief Justice Gerry Alexander, co-chair; Judge Deborah Fleck, member-chair; Judge William Baker; Judge Stephen Brown; Judge Vickie Churchill; Judge Leonard Costello; Judge Sara Derr; Judge Stephen Dwyer; Judge Stephen Holman, Justice Barbara Madsen; Dick Manning, Judge Robert McSeveney; Judge Kathleen O'Connor; Judge James Riehl; and Judge Evan Sperline.
Guests present: Wayne Blair, Donald Horowitz, Justice Charles Johnson, Jan Michels, Paul Sherfey, and Judge Gregory Tripp.
Staff present: Gil Austin, Doug Haake, Jeff Hall, Janet McLane, Rick Neidhardt, and Yvonne Pettus.
Call to Order
Judge Deborah Fleck called the meeting to order.
The minutes of the October 17, 2003 meeting were approved.
Mr. Rick Neidhardt gave a status report concerning the Water Dispute Resolution Task Force. The Task Force has been considering ways to resolve water rights disputes, such as the Yakima area dispute. The task force has been considering court or administrative actions to deal with the issue. The Task Force report should be out shortly. There may be some legislation drafted for this session based on the Task Force recommendations.
The proposal recommended by the Task Force is for a superior court water court with 3 divisions based on the COA districts. Some of the details of the recommendation include: Judges would serve four year terms. Judge would be nominated by the Supreme Court and then appointed by the Governor. Retention elections would be held thereafter. The water court would primarily address general adjudications but could hear appeals from the Pollution Control Hearings Board; deal with in-stream flow decisions; etc. The water court would be headquartered in Olympia. Commissioners could be appointed. A fall back recommendation is the appointment of water commissioners under the Supreme Court who would then be available to assist the superior court judges with their expertise. There is no projected sunset period anticipated for the water court.
Judge O'Connor expressed concern about the scrutiny these judges would face and suggested it would be desirable to have six year terms.
Judge Brown asked about dealing with affidavits of prejudice. Mr. Neidhardt responded the Task Force had discussed the issue but could not reach consensus so it was likely this issue would not be addressed in the Task Force report. Judges O'Connor and Fleck both stressed this was an important issue to address.
Judge Baker asked if the Task Force was considering any changes to the appellate process. Mr. Neidhardt responded the Task Force had discussed appellate court issues but could not reach any consensus on recommendations.
Justice Madsen indicated the administrative agencies have the expertise to deal with the issues and the judiciary may not be the appropriate place to resolve these disputes. Judge Sperline thought the Task Force might be responding to a perception from the public that there is a lack of control over administrative agencies and moving these cases to judicial resolution process would be preferable.
Access to Justice – Technology Bill of Rights
Mr. Don Horowitz presented the Access to Justice Technology Principles. He reported on the numerous groups that have endorsed the principles including the Judicial Information Systems Committee, the Superior Court Judges Association, and the District and Municipal Court Judges Association. Mr. Horowitz is requesting the BJA support the Principles and proposed Rule.
Judge Dwyer indicated the sole concern of DMCJA was the cost of adopting these principles for local government. Mr. Horowitz responded that these principles have been developed to avoid being an unfunded mandate and that in the medium and long range these should become cost neutral and may actually save funds.
Chief Justice Alexander asked wither the SCJA and DMCJA have endorsed the rule. Mr. Horowitz responded they had not.
Chief Justice Alexander asked if both trial court associations would discuss the proposed rule in time for the December BJA meeting.
Performance Audit Policy
Judge Sperline spoke of the past BJA Best Practices Committee’s efforts to develop performance audits. The policy before the BJA is a statement of policy regarding how the measures and standards should be developed. It is not expected that these policies be adopted today but perhaps at the December meeting. Judge Sperline said there is some impetus to move ahead with auditing the performance of the courts in lieu of having this promoted by local or statewide entities.
Judge Sperline pointed out that a court audit will always include some specific measures and become the base measures that would always be used for any performance audit. If a Presiding Judge wanted a limited review of court operations that would be something that AOC could provide but does not rise to the level of a court performance audit. Judge Sperline highlighted sections 7.0 and 8.4. There needs to be some study of when results would be publicly available. There are some statements in this regard but ultimately it is difficult to assure that the disclosure provisions could be maintained. Judge Sperline asked Mr. Hall to strike the first line of 4.2.
Judge Baker asked if this policy would apply to all levels of court. Judge Sperline responded “yes.” Judge Baker indicated there might be a problem testing the measurements in a minimum of three courts since there are only three divisions of the Court of Appeals.
Judge Costello asked about development and approval of measures and standards. Judge Sperline replied that the measures would be developed and approved by the Best Practices Committee. The standards would be developed by the Best Practices Committee and approved by the BJA.
Justice Madsen asked about establishing a standard based on information from three courts. Mr. Hall responded that the experience in the past of developing measures was that measures did not always provide valuable information or were cumbersome to implement. Therefore, it is recommended to test the measures in three courts before deeming the measures established and accepted.
Justice Johnson asked about the authority of the Supreme Court to order AOC to conduct performance audits.
Judge O'Connor asked if other jurisdictions had been investigated as to what they have done and if there is something that might be used to make the development of the process more efficient. Mr. Hall said some research has been done examining other state’s work but it has not provided very much useful information.
Staff will discuss when this can best be put on the BJA agenda for approval of the policy.
Civil Legal Needs
Chief Justice Alexander reminded the Board that last year the Task Force was asked to develop a needs study which has been completed. The Task Force is considering what recommendations should be made to the Supreme Court.
Justice Johnson reported that the subcommittee chaired by Justice Chambers has recommended to the Task Force to support the filing fee proposal drafted by the Equal Justice Coalition. Task Force members have until November 26 to vote on the recommendation.
Judge Costello requested information regarding the Task Force's vote prior to the December 6 SCJA Board meeting.
Ms. Michels reported that the Equal Justice Coalition has asked groups to support the draft legislation. The WSBA has not taken a position yet and is interested in what the other groups are doing.
Judge Fleck mentioned the Court Funding Task Force discussion as to whether this is a user fee for the service being provided or whether it is a general tax.
Court Funding Task Force
Mr. Blair provided an update on the work of the Court Funding Task Force. The Task Force has adopted Principles. He highlighted Principle #4 which provides for the election of all judges. Mr. Blair stated this was not a controversial principle, except from the cities' viewpoint. Principle #8 focuses on courts not being self funding. Principle #10 asserts that the state has an interest in trial courts and should contribute equitably to achieve a better balance of funding.
The concept of expanding the jurisdiction of municipal courts has created some controversy and is still being discussed by the work group. There was an agreement between the Task Force and cities that the cities would not propose their own legislation in 2004, but the cities may request legislative support for another task force to study courts of limited jurisdiction.
Mr. Blair indicated the Task Force has voted to include criminal indigent defense costs in the trial court funding effort. Ms. Michels reported that the study of indigent defense by the Bar will not indicate the actual fiscal gap but will provide information from which a gap can be calculated based on the indigent defense standards.
Mr. Hall described the methodology being used to estimate the gap in funding needed for the trial courts. The gap is mainly being defined in terms of personnel costs. Other costs will be added as appropriate. There is still much work to be done before the gap analysis can be completed.
Mr. Blair reported that the Funding Alternatives work group is now divided into five subcommittees. The five subcommittees are working on the following areas: 1) Public Safety and Education Account; 2) allocation of funding; 3) user fees; 4) taxes (sources of new revenue); and 5) protection of funding sources.
Judge Fleck reported the Implementation Strategies work group is considering the increase in the civil filing fee. There was no motion presented to support or not support this increase. The other topic being considered is the cities moving forward in spite of the tentative agreement.
Justice Madsen asked whether the programs being evaluated were effective. Mr. Blair responded this was not being done but based on a review of other studies this was not part of the charge of the Task Force.
Chief Justice Alexander expressed concern regarding the principle requiring election of part time municipal court judges. Mr. Blair responded that some legislators have suggested compromises to this principle. Judge McSeveney related that he is not sure that all cities are opposed to electing judges, rather than at a certain level they might be appointed by a specialized body.
Best Practices Committee
Judge Sperline reported on the enterprise framework effort. He indicated it is an effort to combine data, technology and business process principles in support of decision making.
Court of Appeals
Judge Brown reported the Court is adjusting to the budget reductions. Divisions I and II are working together to allocate the workload.
Judge O'Connor reported the Association is working on GR 31. There seem to be few who are in favor of the current draft. The Association is starting to review legislative issues and working on alternative sentencing options which might provide more discretion to superior court judges.
Courts of Limited Jurisdiction
Judge Dwyer related the DMCJA Board meets in a week and that the principal work relates to the many task force efforts.
Access to Justice
Judge Tripp reported the ATJ Board is coping with the funding issues for legal services.
Washington State Bar Association
Ms. Michels reported on items being considered at the January Board of Governors meeting. Those items include the Panel on Defense; proposals from the legislative committee; and a project on opportunities for women and minorities in law firms.
The next meeting is December 19, Two Union Square. The February meeting will be held in Seattle instead of Olympia.
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