BOARD FOR JUDICIAL ADMINISTRATION
Two Union Square, Seattle
December 19, 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, Judge Eileen Kato, Justice Barbara Madsen, Dick Manning, Mary McQueen, Judge Robert McSeveney, Judge Kathleen O’Connor, Judge James Riehl, Dave Savage, and Judge Karen Seinfeld.
Guests present: Jeff Amram, Judge Marlin Appelwick, Jim Bamberger, Judge Mary Kay Becker, Marc Boman, Justice Tom Chambers, Pam Daniels, Betty Gould, Justice Richard Guy, Justice Charles Johnson, Jan Michels, Michelle Radosevich, and Sandy Swartout.
Staff present: Gil Austin, Jeff Hall, Janet McLane, and Yvonne Pettus.
Call to Order
Chief Justice Gerry Alexander called the meeting to order.
The minutes of the November 14, 2003 meeting were approved.
Civil Legal Needs
Justice Johnson introduced the proposal of the Task Force. Justice Chambers made a further introduction of the Task Force proposal. Ms. Michelle Radosevich highlighted the effort last year to increase the superior court filing fee and the BJA support. The Legislature failed to pass the increase, however. Ms. Radosevich referenced the Civil Legal Needs Study and the fact that the need was greater than expected. The results of the study informed the Task Force's thinking on the topic of a funding increase. Three action areas were identified as necessary to increase the chance for passage of the bill during the upcoming Legislative session. One action item is to garner support from the BJA and the broader legal community. Another action item is to focus on Senate Republican members who had reservations last year. Finally, efforts to increase the support of friends in the Legislature and the Governor’s office. The strategy was to propose an increase in the filing fee to $200, maintain the county state allocation, place the state portion in the Public Safety and Education Account (PSEA) but not allocate the state share for civil equal justice.
An effort has been made to allocate the increased amount in PSEA to civil equal justice. There is a feeling that there has been progress in working with the House leadership to include this in their budget proposal by the Democratic caucus agenda. The Governor included the entire filing fee increase for the civil equal justice in his budget.
Ms. Betty Gould and Ms. Pam Daniels spoke about the Clerk’s Association concern about budget cuts and that the filing fee had not been increased since 1992. The Association does support the fee bill but made the point that many institutions need additional funding such as the crime lab, JIS, criminal justice training commission. Judge Baker asked if the Clerk’s Association supported the Governor’s budget to allocate these funds to civil equal needs. Ms. Gould replied the Clerk's Association did not support the allocation of the entire state increase to civil legal needs.
Judge Costello referenced the Dec. 16 letter from Justice Sanders concerning the filing fee increase. Mr. Manning spoke of the December 2002 survey that showed that eight states exceeded the $200 filing fee. Mr. Savage reported that the proposal received considerable support at the Board of Governors (BOG) meeting even though the BOG has a concern with user fee increases. Judge O'Connor related that the SCJA Board discussed the proposal at two meetings and voted to support the concept. Judge Dwyer reported that DMCJA endorsed the increase.
It was moved by Judge Baker and seconded by Judge O'Connor to support the increase of the superior court filing fee and recommend to the Supreme Court to support the increase. The motion carried with Justice Madsen abstaining.
WSBA Defense Panel
Mr. Marc Boman, co-chair of the WSBA Panel on Criminal Defense, reported on the charter of the Panel. The Panel will have a report issued in February 2004. The panel is described as widely representative of the legal community and the purpose is to assess the defense services in Washington State. A great deal of data has been collected and a number of speakers have presented information. They are now in the process of organizing the data. The Panel developed a questionnaire based on the Washington Standards for Public Defense Services adopted by the WSBA. The questionnaires were distributed to judges, prosecuting attorneys and to public defender organizations.
In addition, the Panel is examining issues relating to the death penalty defense contracts for these services. Judge O'Connor asked if the mission is to only look at trial courts and Mr. Boman responded that most of the effort is focused on the trial court but there will be some appellate defense evaluation as well.
Mr. Boman said the panel is looking at procedural and educational changes as a means to enhance the system not just funding recommendations.
Judge McSeveney urged a careful review of municipal courts as there are likely few cities who have implemented the standards. Mr. Boman related there is anecdotal information that some judges may not be aware of when attorneys should be present. Judge Dwyer expressed that it would be helpful for judges if the timing of an appointment were part of the standards. He stated it is a widespread practice that arraignments occur before an attorney is appointed. Mr. Boman reported that part of the report would include a reference guide for judges and others as to the requirements for constitutional and other means of appointment.
Performance Audit Policy
Mr. Jeff Hall gave background information on the performance audit policy proposal. At the November meeting, Judge Sperline expressed concerns about the confidentiality portions of sections 7.2 and 8.4. AOC legal staff provided a legal analysis and recommendation on the issue. Judge O'Connor related that the SCJA Board reviewed the policy and supported the concept of a rule. Judge Dwyer said the DMCJA thought it was good timing for the courts to undertake this rule while a non-judicial audit would possibly be much less acceptable.
Judge Baker reviewed the bills being recommended by the BJA Legislative Committee.
Unauthorized disclosure of confidentiality of court records. The question arose whether employees needed to know the information they were disclosing was confidential. The word “knowingly” was included in Section 1 before the words access, use, or disclose.
Objective Workload analysis bill.
Certificates of discharge. Judge Costello reported this bill is necessitated as a result of the passage of SB 5990. If DOC does not supervise certain offenders, there is no means for those offenders to move the court for discharge. This proposal would allow any party to move the court for an order of discharge.
Sanctions for jury fees. Judge Costello related that this was a problem in smaller counties where if a case settles and a jury is called for that case the county is then obliged to pay the jury costs. This bill would allow the judge to sanction the appropriate party for the jury costs. Judge O'Connor said some judges are already imposing these fees in smaller counties. Mr. Manning proposed that this concept is a better subject for a court rule and Judges Churchill and Kato agreed. Judge McSeveney spoke in favor of this proposal. Chief Justice Alexander spoke in favor of referring this as a court rule. Judge O'Connor indicated that the SCJA would consider this further and consider referring this as a court rule.
Fine only misdemeanors proposals. Judge Dwyer described the effect of the bill.
Affidavit requirement for judges of the superior court.
Commission on Judicial Conduct membership by CLJ judges. Judge Dwyer related the recent history of this proposal. He indicated the DMCJA would like to have the bill move forward as passed out of the House. Judge O'Connor indicated this proposal would have to be discussed further by the SCJA Board. J. Fleck related her concern that numerous part time non-elected judges would be eligible to serve on the CJC.
Small Claims enforcement costs.
Authorizing electronic citations. The recommendation from the Legislative Committee is for the BJA to allow the DMCJA time to review the bill before taking a position. Mary McQueen indicated the electronic citation project has been funded by the legislature for two years and JIS is moving forward but cannot implement the project until the statutory issues are resolved.
No action was taken.
Removing Driver’s License from Jury Source List.
It was moved and seconded that BJA oppose this bill. The motion carried.
Judge O'Connor asked about SB 6018 and whether it has been reviewed. Mr. Hall said the Legislative Committee did discuss it but did not take a position. The BJA Executive Committee will deal with this bill as it arises during the legislative session. Judge O’Connor explained some of the features of the bill.
Long Range Planning Committee
Mr. Hall said the committee reviewed the Florida long range plan and determined that this is a good model. Jeff Hall will present a model for the BJA Long Range Plan at the next meeting.
Court of Appeals
Judge Brown reported the Executive Committee met recently and is responding to Legislative question on the supplemental budget request. Judge Seinfeld reported Div. II is looking at ways to reorganize staff to maximize resources in light of the increasing caseload.
Judge O'Connor reported on the lengthy discussion of GR 31 at the SCJA Board meeting. The SCJA will be asking the Supreme Court not to pass the rule but rather establish a task force. The Board also discussed a revised judicial needs estimate which AOC will prepare for review. The proposed court rule for Technology Principles was placed on the SCJA Board February agenda. There is considerable concern among superior court judges that the Sentencing Guidelines Commission will not be sending out bound manuals this year.
Courts of Limited Jurisdiction
Judge Dwyer reported that the DMCJA Board took the same position as the SCJA on GR 31. After reviewing Judge Kessler's proposal regarding the use of unpublished opinions, it was decided this was a topic that should be discussed with the appellate courts.
Washington State Bar Association
Mr. Dave Savage related the important link between the Bar and the BJA. The BOG met in Leavenworth in November. At that meeting, they considered GR 31 and are recommending the rule be given further study. The Civil Rules are being reviewed in this cycle by the Bar rules committee. He mentioned the January BOG meeting will be in Olympia with the Supreme Court and the February meeting will be in Seattle and will focus on concerns of women and minorities in the profession.
Chief Justice Alexander asked whether the Bar and the trial judge associations were recommending a task force on GR 31. Mr. Savage replied that was the Bar's recommendation. Judge O'Connor said there was a benefit to using a task force to include the views of a variety of interested parties.
The next meeting will be on January 16 at the SeaTac Holiday Inn. It will be a joint meeting with the Court Management Council.
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