Board for Judicial Administration
Two Union Square
June 18, 2004
Members present: Chief Justice Gerry Alexander, co-chair, Judge Vickie Churchill, Judge Leonard Costello, Judge Sara Derr, Judge Stephen Holman, Judge Elaine Houghton, Judge Eileen Kato, Judge Faye Kennedy, Judge Gerald Knight, J. Richard Manning, Janet McLane, Judge Robert McSeveney, Judge Alicia Nakata, Judge Christine Quinn-Brintnall, Judge James Riehl, and Judge Michael Trickey
Guests present: Joyce Ahlering, Wayne Blair, Richard Carlson, Judge Charles J. Delaurenti, II, Betty Gould, Barbara Harper, Judge Frank Kurtz, Jan Michels, Judge Kathleen O’Connor, Commissioner Sidney Ottem, Judge Darrell Phillipson, Ada Shen-Jaffe and Sara Zeer
Staff present: Jude Cryderman, Jeff Hall, Rick Neidhardt, Yvonne Pettus
Call to Order
The meeting was called to order by Chief Justice Alexander.
Chief Justice Alexander asked that the members, guests and staff introduce themselves.
Minutes
Court Management Council (CMC) Proposal
Ms. McLane directed attention to Ms. McQueen’s letter of June 9, 2004 requesting that the BJA consider allowing the CMC to partner with the BJA in joint sponsorship of the Best Practices Committee.
Ms. Gould explained that some projects such as new JIS development, performance audits, etc. brought to light the need for CMC involvement in the Best Practices Committee.
Chief Justice Alexander suggested the possibility of expanded membership instead of joint membership.
Brief discussion regarding the practicality of joint membership versus expanded membership followed.
Brief discussion followed.
Salary Commission
Ms. McLane advised that the Salary Commission will begin their deliberations in February 2005. Prior to those meetings, the Commission will be undertaking a new effort for collecting information. She advised that the legislature appropriated funds to the Commission for conducting a “point factor job evaluation” for both judges and legislators. The Commission has hired consultant Fred Owen (former Commission member) to conduct the interviews with six to nine judges from all court level across the state. Ms. McLane briefly reviewed the project scope and estimated timeframe.
Ms. McLane asked that a small subcommittee be formed to identify those judges to be interviewed. She suggested a four person committee, one judge from each court level.
Judge Quinn-Brintnall asked how Mr. Owen was selected. She requested that the BJA be provided a copy of the RFP. Judge Quinn-Brintnall advised that a recent evaluation in Pierce County did not rate judges favorably as far as supervisory responsibilities.
Mr. Hall offered that he doesn’t think caseload comes into play in this type of evaluation. He added that two-thirds of the factors do not focus on management areas, but instead areas such as authority, specialized training, accountability, etc.
Judge Riehl voiced concern about BJA’s history of speaking with one voice and that the point system could very well pit the levels against each other.
Ms. McLane responded that the Commission is aware of and recognized the importance of the differentials.
Chief Justice Alexander asked Judges Houghton, Costello and Kato to identify their representatives on the Salary Committee. The Chief indicated that he will appoint the Supreme Court representative. He requested that those representatives be appointed in the next week.
Judge Houghton said that Judge Quinn-Brintnall would represent the Court of Appeals. Judge Costello indicated he would represent the Superior Courts and Judge Kato said she’d represent the District and Municipal Courts.
Judicial Assistance Services
Judge Delaurenti provided a brief history. He advised that although DRJ 14(e) was passed by the Supreme Court establishing confidentially for judges, they still did not have the expertise necessary to provide counseling services. He stated with the assistance of the Washington State Bar Association, the Judicial Assistance Services Program has been set-up.
Ms. Harper provided a brief history of the Lawyer’s Assistance Program. She advised members of the make-up of the LAP staff, adding that the WSBA is the only Association in the U.S. conducting on-site therapy. Ms. Harper said the office sees approximately 45 lawyers on an ongoing basis. Of those lawyers seen, 82% are self-referred. Although services are provided on a sliding fee scale, $0-$90 per hour, no one is turned away for lack of ability to pay.
Ms. Harper advised that training for peer counseling is provided annually. Anyone interested in becoming a peer counselor can do so by contacting the number on the materials provided.
Ms. Harper welcomed the judiciary to the WSBA program.
Chief Justice Alexander advised that the Judicial Assistance Services would be provided 15 minutes on both the Fall and Presiding Judges’ Conferences business meeting agendas.
Trial Court Coordination Council (TCCC)
Judge Holman reported that for the second year $75,000 in grant money has been made available for TCCCs. He said grants were awarded to Okanogan, Kitsap and King Counties.
Okanogan County is undertaking a remodeling project that will allow corrections staff to transport defendants into a secure courtroom directly from the jail. The courtroom will also be used to conduct hearings over the Internet.
Kitsap County trial courts will undertake a project that scans domestic violence full orders issued by all levels of court in the county into an existing website, allowing parties to review the orders 24 hours a day, 7 days a week.
King County, with three major courts located within three blocks of one another, is undertaking an initiative to review and improve customer services provided by the three King County Courts.
Judge Holman indicated that the TCCC will provide periodic updates to the Board.
Court Funding Task Force
Mr. Blair reported the Task Force last met on June 15, which could very well have been the last meeting of the Task Force.
Mr. Blair advised that the following principles have been adopted by the Task Force.
• The judicial branch must maintain its constitutional role as a separate, equal, and independent branch of government.
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• Trial courts are critical to maintaining the rule of law in a free society; they are essential to the protection of the rights and enforcement of obligations for all.
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• The primary mission of the trial courts is to fairly, expeditiously, and efficiently resolve cases and serve the community, not to generate revenue for local or state government. Trial courts should be structured and function in a way that best facilitates their primary mission.
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• To ensure the independence of the judiciary, all judges, including part-time judges, should be elected.
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• Trial courts must operate in compliance with court rules and statutes.
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• Trial courts must have adequate, stable, and long-term funding to meet their legal obligations.
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• Legislative bodies, whether municipal, county, or state, have the responsibility to fund adequately the trial courts.
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• Trial courts are not self-funding. The imposition of fines, penalties, forfeitures and assessments by trial courts are for the purpose of punishment and deterrence, and must not be linked to the funding of trial courts.
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• Trial court funding must be adequate to provide for the administration of justice equally across the state.
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• The State has an interest in the effective operation of trial courts and the adequacy of trial court funding, and should contribute equitably to achieve a better balance of funding between local and state government.
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• Courts of limited jurisdiction, will be accessible to the communities they serve and will provide a high level of customer services that enables the public to navigate through the court process with a minimum of confusion.
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• Trial courts are accountable and responsible for the funds appropriated for court operations.
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• Courts will be administered with sound management practices that foster fairness and the efficient use of public resources, and enhance the effective delivery of court services.
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Mr. Blair advised that the Task Force adopted the “tag-line” “Justice in Jeopardy” for their communications and documents.
Courts of Limited Jurisdiction Work Group
Ms. McLane advised this work group is chaired by Judge Ann Schindler and Ron Ward. She advised the following concepts were adopted by the work group.
• To promote public accountability and independence, all judges in courts of limited jurisdiction should be elected, including part-time judges.
• Title 3 should provide different court options for local governments to provide court services to their community.
• Provision should be made for expanded subject matter jurisdiction in district and municipal courts.
• A court of limited jurisdiction should be accessible to residents of the community it serves. Each court of limited jurisdiction should provide services on a regularly scheduled basis at established hours that are posted for the public.
• Costs for court services provided by another government should be calculated based on the amount of resources used.
• All statutory provisions relating to the structure, governance and operation of the courts of limited jurisdiction should be contained in Title 3.
Ms. McLane advised that not all members of the work group agreed on all of the following proposed amendments to Title 3.
• Give authority to cities to contract with one another to form regional courts with elected judges.
• Specify the process and requirements for inter-local agreements between jurisdictions.
• Elect judges, including part-time.
• Expand membership of districting committee and components of districting plan.
• Define the authority of district and municipal court commissioners, parallel to statutory provisions for superior court commissioners.
• Require jurors to be called from the area served by the limited jurisdiction court, rather than countywide.
Ms. McLane stated many on the WG believe the most desirable in the long term is to look toward a regional court of limited jurisdiction, partially state funded.
Long Term Vision
• State funded regional limited jurisdiction courts.
• Held in locations accessible and convenient to the public and law enforcement.
• Operating full time and offering a full range of services, including probation.
• Eliminate duplication of services and achieve economy of scale savings for local jurisdictions.
Ms. McLane explained that many WG members believe there is duplication within the CLJs. They believe there are ways to pool resources and be more efficient and accountable. She added one caveat of the regional courts would be that judges are elected.
Ms. McLane explained that the role of the districting committee is not very clear. The committee is not required to meet on a regular basis and there is no representation by the presiding judge.
Problem Definition Work Group (PDWG)
Ms. Michels pointed out the various areas of the context chart. She explained the functions listed under State Trial Court Functions are those budgeted and administered by the trial courts themselves. Ms. Michels briefly reviewed the items in the various boxes of the context chart.
Ms. Michels explained that of the $420 million spent on trial courts, only 10.8% is funded by the state. She went on to explain that the gap is the difference between adequate and current spending level. It is estimated that the trial court funding gap is $53.8 million.
Next Ms. Michels explained the findings of the Defense Funding Gap Group. She said this group applied statewide standards to caseload in determining the gap is approximately $131 million.
Ms. Michels said three problems have been identified: 1) funding is inadequate, 2) inequitable balance between counties and state and 3) funding mechanism is difficult to comprehend.
Recommendations of the Work Group are:
Recommend that the Board for Judicial Administration make a formal request to the Local Government Financial Reporting System Work Group, through the State Auditor, to require that expenditures for indigent defense services be reported as a separate functional group within the Local Government Financial Reporting System
Recommend that the Board for Judicial Administration convene a separate work group comprised of judges, court administrators, and local government finance officers to:
• Assess if and how all indigent defense services costs contained in court budgets can be removed from court budgets and established in a separate budget within the county or municipality.
• Review other cost areas within court budgets to determine the desirability and feasibility of establishing a limited chart of accounts for recommended use by all trial courts for specific cost areas (e.g., language interpreters, guardians’ ad litem, probation services).
• Assess the desirability and feasibility of creating an annual fiscal reporting process and report on trial court funding in Washington State administered by the Administrative Office of the Courts.
Funding Alternatives Work Group (FAWG)
Mr. Blair explained that the WG reviewed a number of areas such as user fees, PSEA account, other sources of funding and the imbalance between state and local funding of the courts.
Mr. Hall briefly reviewed the recommendations regarding the PSEA issues.
Recommend that the following PSEA issues be referred to the BJA for further review and study:
• Repeal RCW 46.63.110(3) which proscribes that the Supreme Court establishes the traffic infraction penalty schedules and eliminate all legislative assessments on traffic penalties. Develop a penalty classification schedule similar to civil infractions under Title 7 RCW.
• Adjust the state/local “PSEA division” on a “no-harm” basis to account for the elimination of the several legislative assessments and to establish a simple, single, uniform division of funds between state and local government.
• Recreate the JIS account fee not as a portion of the traffic infraction penalty, but as a user fee on all court transactions – filing fees, traffic infractions, conviction of misdemeanor or felony. The fee would then fund both maintenance and new development and would remove JIS from the PSEA account entirely.
Mr. Blair pointed out that although user fees are not the answer to the court funding problem, increasing user fees from time-to-time is an appropriate way to help pay for the cost of doing business. User fee recommendations include:
• Recommend minimal increases on a variety of ministerial fees, including costs imposed on criminal defendants, to achieve comparability within and among court levels.
• Recommend an increase to the filing fees:
To $55 in District Courts
• Recommend a new “filing fee” for cross, counter and third party claims, excluding unlawful detainer actions.
• Recommend a new $55 fee to be assessed against defendants who plead guilty or are convicted of a misdemeanor or gross misdemeanor in courts of limited jurisdiction at the discretion of the sentencing judge.
• Recommend that the Administrative Office of the Courts report annually to the state Legislature any recommended fee increases based on either inflation or other factors.
Mr. Hall briefly explained the Nexus Continuum chart. The Task Force’s recommendation for the Nexus Continuum chart is to:
• Recommend the nexus continuum approach, as embodied in the nexus continuum chart, as the method by which the BJA determines which costs are the most appropriately shared by State Government and that those items listed in the left-hand column be initially recommended for court funding. This does not preclude the identification of additional items as appropriate for state funding participation based on the nexus approach in the future.
Next Mr. Blair explained the tax package as proposed by the WG. Their recommendation is to:
• Recommend to the BJA the “tax package” with the understanding that the package represents one of the possible options which the judiciary would support to provide funding for trial courts and functions essential to the operation of trial courts.
Public Education Work Group (PEWG)
Mr. Blair advised that the WG has been collecting information and writing articles. He advised that the Communications Plan has been approved by the Task Force. Recommendations from this WG are:
• Adopted and recommends to the BJA the communications plan developed by the Public Education Work Group.
• Recommend the reestablishment of the Public Education Work Group as a committee of the BJA with its current membership and consistent with its current charge.
Implementation Strategies Work Group (ISWG)
Mr. Blair advised that there has been considerable debate over what the “legislative package” should be for the 2005 session:
• Comprehensive bill
• Limited prioritized menu
• One piece at a time
Mr. Hall added that discussions with legislators and justice system partners will take place between now and December to assist in decisions about what to take forward to the next session.
Recommendations from the ISWG are:
• Recommend the reestablishment of the Public Education Work Group as a committee of the BJA with its current membership and consistent with its current charge.
• Recommend BJA seek legislative action to implement the recommendations of the Court Funding Task Force report.
• Recommend BJA seek legislative action to implement the recommendations in the report of the Supreme Court Task Force on Civil Equal Justice.
Brief discussion followed. Mr. Blair directed attention to pages 28 through 32 of the handout, “actionable items for July 16.” He asked that the members review those items prior to the July meeting.
Chief Justice Alexander thanked Mr. Blair for his continued dedication to the administration of justice in Washington.
Access to Justice
Ms. Shen-Jaffe provide a brief report on behalf of the Access to Justice Board.
Ms. Shen-Jaffe explained her “perfect storm” chart. She reminded the Board of the importance of preserving core constitutional principles.
Ms. Shen-Jaffe indicated that EJC is working with other organizations to hold an open house on October 28 in an effort to provide education about unmet legal needs in Washington State.
Denny Heck Work Product
Mr. Hall provided a brief overview of the Denny Heck Work Product handout.
Water Courts Committee
Judge O’Connor acknowledged the tremendous efforts of Rick Neidhardt, AOC.
Judge O’Connor provided a brief update on the work of the Work Group. She reported the criteria for evaluating the options for hearing general water rights adjudications are:
1. Increased capacity.
2. Timely and fair decisions. Timeliness is critical. Acquavella has been ongoing since 1977. The average adjudication is 5-10 years.
3. Adequate and stable funding. Solid mechanism for stable and adequate funding.
4. Efficiency and cost-effectiveness. Cases should be handled fairly, but cost effectively.
5. Flexibility. Move judicial officers and staff around as needed to handle cases.
6. Comprehensive solution. Need to be able to cover all major players.
7. Accountability. Accountability to the people in the community.
Next, Judge O’Connor explained the Work Group’s proposed recommendation that a water court be created if the state decides to increase the number of general water right adjudications to be heard.
The members briefly discussed the selection of judges and extending terms from four to six years due to the length of cases. General discussion followed.
Judge O’Connor advised that the Work Group would seek BJA’s adoption or revision of the recommendations at the July meeting.
Reports from the Courts
Court of Appeals
Judge Quinn-Brintnall reported the Court of Appeals is currently involved in the budget process. She advised that the next cycle before the Court Rules and Procedures Committee are the RAP rules.
Superior Courts
Judge Costello reported their Spring Conference at Semiahmoo had been well attended. The Spring 2005 conference will be held at Skamania Lodge in Stevenson.
Judge Costello said that of the 177 members of the SCJA over 100 had volunteered to work on committee.
Judge Costello advised that the SCJA are at odds with recommendations on GR 31. They will be attending the July 8 Supreme Court Rules Committee meeting.
District and Municipal Courts
Judge Nakata reported their Spring Conference was held the first part of June. She advised the Board had discussed the implementation of a dues policy. A change to the bylaws would require that members not only have paid the Association dues, but also BJA dues to be a member in good standing. She continued, the Board is considering two conference registration fees; one for those members in good standing and another for those members delinquent in their dues.
Judge Nakata indicated that the DMCJA also has concerns about GR 31.
Washington State Bar Association
Ms. Michels reported that Port Angeles lawyer Brooke Taylor will be the Bar’s President-elect for 2004-2005.
Ms. Michels advised the following are the newly elected members of the Bar Board of Governors: Eron M. Berg, 2nd district; Stanley A. Bastian, 4th district; Lonnie Davis, 7th district; James E. Baker, 9th district; and Marcine Anderson, at large.
Other Business
Chief Justice Alexander advised the July meeting will be held in the Temple of Justice with a reception for Mary McQueen following the meeting.
There being no further business, the meeting was adjourned.
Respectfully submitted,
Jude Cryderman
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