Board for Judicial Administration
Temple of Justice
July 16, 2004
Members present: Chief Justice Gerry Alexander, co-chair, Judge Deborah Fleck, member-chair, Judge Vickie Churchill, Judge Leonard Costello, Judge Sara Derr, Judge Stephen Holman, Judge Elaine Houghton, Judge Eileen Kato, Judge Kenneth Kato, Judge Faye Kennedy, Justice Barbara Madsen, J. Richard Manning, Janet McLane, Mary McQueen, Judge Robert McSeveney, Judge Alicia Nakata, Judge Christine Quinn-Brintnall, Judge James Riehl, David Savage, Judge Evan Sperline, Judge Michael Trickey, and Ronald Ward
Guests present: Joyce Ahlering, Jim Bamberger, Wayne Blair, John Cary, Richard Carlson, Joan Ferebee, Judge Gordon Godfrey, Betty Gould, Rena Hollis, Kirk Johns, Jan Michels, Joanne Moore, Judge Kathleen O’Connor, Commissioner Sidney Ottem, Ada Shen-Jaffe, Judge Gregory Tripp, and Sara Zeer
Staff present: Jude Cryderman, Doug Haake, Jeff Hall, Rick Neidhardt, and Ramsey Radwan
Call to Order
The meeting was called to order by Chief Justice Alexander.
Chief Justice Alexander asked the members, guests and staff to introduce themselves.
Minutes
Water Courts Work Group
Judge O’Connor acknowledged the efforts of Rick Neidhardt, AOC. She also recognized the expertise of Commissioner Sidney Ottem.
Judge O’Connor reported that in addition to the recommendations provided to the BJA, the SCJA Board of Trustees had questions regarding whether the right to trial by jury were covered in these adjudications. She advised that Commissioner Ottem and Rick Neidhardt have reviewed this question and concluded that the right to a trial by jury does not attach to equitable actions.
Judge O’Connor briefly reviewed the decision points set-out in the handout. Those decision points included the following criteria for evaluating proposals: 1) increased capacity, 2) timely and fair decisions, 3) adequate and stable funding, 4) efficiency and cost-effectiveness, 5) flexibility, 6) comprehensive solution, and 7) accountability. Judge O’Connor advised that the Work Group is asking BJA to formally adopt the seven criteria for use in evaluating any water court legislation introduced in the upcoming legislative session.
Judge O’Connor next reviewed the proposals for water courts implementation, which include: 1) creating a water court, 2) types of cases to be heard, 3) state funding, 4) selecting judges, 5) terms of judges, 6) judicial referees/commissioners, 7) staffing, 8) organization of court, and 9) regional offices.
Next, Judge O’Connor covered procedural issues. Those issues are 1) affidavit of prejudice and 2) other procedural changes. Judge O’Connor pointed out the most important issue is that the affidavit of prejudice is not workable in general water rights adjudications.
In response to a question, Judge O’Connor explained that the initial selection of judges would be made by gubernatorial appointment from a list of nominees submitted by the Supreme Court. The salary and qualifications for the water court judges would be the same as that for a superior court judge.
Judge O’Connor explained that the state would be divided into regions with judges elected on a regional basis, similar to the Court of Appeals or perhaps using the Department of Ecology water basin regions as a model. Judge O’Connor pointed out that most of the water court cases are multi-county projects, so the regional approach is the most realistic. She stated that judges would initially be appointed to staggered six-year terms, then stand for election in their particular region. Although, initially the Work Group discussed a retention election model, the final recommendation is for competitive elections.
Judge O’Connor advised that 99 percent of the recommendations were unanimous. She said most of the discussion centered on election versus appointment to the court.
The Board discussed the regional concept of the water courts, focusing on how to address the fact that water basins cross county and other political boundaries. It was pointed out that not only does water flow through many counties, but also flows through more than one court of appeals division. Judge O’Connor pointed out even though litigation will cross county lines, it is important to think regionally. Judge O’Connor stated the recommendation of the Work Group is that water courts be established regionally.
Next the Board discussed the issue of the method by which the water court judges would be retained, whether by retention election or by competitive election, which is the current method for superior court judges. The Board was reminded that previously the BJA has voted to seek the election of judges at all court levels. The Board briefly discussed whether qualifications beyond a law degree are necessary. It was pointed out that only Court of Appeal judgeships have requirements in addition to a law degree.
Commissioner Ottem was asked whether special qualifications were advisable for the water court judicial positions. He responded that his work with water courts requires a large amount of writing and experience in looking at maps and understanding real estate descriptions. Commissioner Ottem went on to say that it is desirable to have some experience working with real estate and water issues, but over time those skills could be developed.
A suggestion was made to amend the decision points to add specific qualifications for water court judges. Following discussion, there was a consensus not to pursue this suggestion.
Judge Costello advised that the SCJA Board had an opportunity to review and discuss the recommendations and approved the recommendations.
Chief Justice Alexander complimented Judge O’Connor and the Work Group members for their efforts. Judge Fleck joined the Chief Justice in his comments regarding the work of the Work Group.
The final distribution of the report is to include the decision points and information relating to jury trials.
Salary Subcommittee
Ms. McLane reminded the members that at the June meeting they had agreed to establish a small group, Chief Justice Alexander, Judge Quinn-Brintnall, Judge Costello and Judge Kato, to meet with the Salary Commission for the purpose of discussing the point system evaluation project. Ms. McLane advised that the meeting with the Salary Commission will take place Friday, July 23. The purpose of the meeting is to learn about the new point system; how it works, how points are assessed and what the point system means.
Ms. McLane provided a brief history of the changes in the judge’s salary rankings since the Salary Commission was established 17 years ago. She advised the salary for Superior Court Judges in Washington State currently ranks 9th or 10th in the nation.
Mr. Manning advised that he had met with Mr. Owen, consultant to the Commission recently. He provided a brief overview of that meeting.
Access to Justice
Judge Tripp reported that the Access to Justice Board has had many accomplishments this past year including completion of the Washington State Civil Legal Needs Study.
Reports of the Courts
Court of Appeals
Judge Houghton reported that the Court of Appeals and the Supreme Court are looking at the Rules of Appellate Procedure. Any proposed revisions will be reported to the Washington State Bar Association and the Supreme Court.
Judge Houghton said that as a result of the Blakely vs. Washington case, Division II may have about 900 cases.
Judge Kennedy advised of the passing of Judge Walter Webster, retired from Division I and Judge Charles French of Snohomish County Superior Court. She said a memorial service for Judge Webster will be held in September.
Judge Kato advised of Judge Brown’s recent bicycle accident.
Superior Court Judges’ Association
Judge Costello said they are contemplating the interviewees for the Salary Commission. The SCJA has been advised by the Office of Financial Management that a Task Force on Non-economic Damages is being established. OFM has asked for Association representation on the Task Force. The SCJA is also looking at impact of Blakely.
District and Municipal Court Judges’ Association
Judge Kato reported they did not meet in July. They are also looking for judges to represent the association before the Salary Commission.
Washington State Bar Association
Mr. Savage reported that Brooke Taylor of Port Angeles was elected to the position of President-elect at the June meeting. Mr. Taylor led the group responsible for locating the space for the WSBA offices, which they will relocate to in January 2007.
New Board members include: Eron M. Berg from the 2nd district, Stanley A. Bastian from the 4th district, Lonnie David for the 7th central district, James E. Baker of the 9th district and Marcine Anderson was elected governor-elect at-large.
Mr. Savage reported that diversity has been the centerpiece of his term and he is pleased with the significant progress that has been made. He mentioned the Diversity Initiative of the Bar designed to institutionalize diversity which was adopted in May. He noted that in its 115 year history, the Bar has had only four persons of color and 16 women on the Board. Mr. Savage advised that two important programs have been created during his tenure as President: 1) the WSBA Leadership Institute, which is designed to bring six to ten fellows into leadership positions through training, and 2) the creation of a diversity advocate position within the WSBA, designed to ensure equality, diversity, and cultural competency throughout the Bar.
Mr. Savage announced the following awards will be presented at the annual awards dinner in September:
Special Lifetime Services Award M. Wayne Blair
Award of Merit David Boerner and Ellen Dial
Courageous Award Ada Shen-Jaffe
Judge Richard Jones will be presented with the Outstanding Judge Award during the Washington Judicial Conference in September in Spokane.
Mr. Savage advised that Legal Research Services will be providing a research tool to the Bar’s 25,000 members at no cost.
Mr. Savage advised that currently they are engaged in a salary and benefit review of bar association personnel. That review is expected to be completed prior to the July BOG meeting.
Chief Justice Alexander expressed the appreciation of the BJA for the continued cooperation of the Bar.
Other Business
Judicial Voters’ Pamphlet
Ms. McLane advised the voters’ pamphlet will be produced and distributed by the Seattle Times. Judicial candidate packets will be distributed by the county auditor and Secretary of State at the time of filing. The pamphlet will be distributed via daily and weekly newspapers, available in auditor’s offices and local libraries.
Ms. McQueen noted that Washington’s Judicial Voters’ Pamphlet is a national model. She went on to describe the pamphlet and the process used.
BJA August Meeting
Chief Justice Alexander indicated his preference to not hold a meeting in August. Mr. Hall indicated that the CLJ recommendations are not before the Board today. He said he hesitates to put off the review of those recommendations until September. Following discussion there was a consensus that the August BJA meeting should be held as scheduled.
Chief Justice Alexander acknowledged Mary McQueen’s last meeting is today. He recognized the sadness of losing Mary, but acknowledged the honor of Mary being selected as President of the National Center for State Courts.
Break for lunch.
Court Funding Task Force
Chief Justice Alexander thanked Mr. Blair for his hard work and leadership in chairing the Court Funding Task Force.
Mr. Blair advised the formal written report is not quite complete, but the recommendations have been provided for the Board’s review and consideration. Mr. Blair reminded the Board that the Task Force had five Work Groups charged with the study of specific areas. He proposed that the Board take these issue by issue and vote.
Courts of Limited Jurisdiction Work Group
Mr. Ward reported he had received a copy of the draft report the previous night. He will review the report over the weekend. The report will be distributed to the members for their review and then finalized.
Ms. McLane said after the review of the co-chairs, the report will be distributed to the members for their review. The report will be available for the August BJA meeting.
Problem Definition Work Group
Ms. Michels pointed out the three big issues dealt with by the WG in the development of the “context chart” were: 1) courthouse facilities, 2) indigent defense (criminal/dependency/termination) and 3) civil legal services. Ms. Michels said the WG recommended excluding facilities due to the magnitude of the effort that would be required to assess the adequacy of current facilities and quantify the cost of improving those facilities.
Ms. Michels advised that a separate group had studied Indigent Defense. That group, using 2001 figures, determined the “gap” is $118 million. Currently $72 million is being spent on public defense, while the actual amount need is $190 million. In addition, parental representation in dependency cases statewide should be $19.8 million. Next, civil legal needs quantified their gap. Ms. Michels advise that nearly $250 million in new funding is necessary to rescue “Justice in Jeopardy.”
Mr. Blair said the Task Force debated whether they should take a position and make a recommendation to the BJA regarding funding for civil legal services. The Task Force recommends that BJA seek legislation in support of the Trial Court Funding and Civil Equal Justice Funding Task Forces. Mr. Blair advised that he and Judge Fleck had met with civil legal services representatives last week to determine the best way to work together and move ahead.
It was pointed out that the Board had not adopted any of the recommendations in the Court Funding Task Force Report, and that should be done prior to approving the this recommendation.
Mr. Blair explained that the cities, counties, and state all keep their books in different manners. The next recommendation would place indigent defense in a separate category allowing for easier analysis.
It was moved and seconded to adopt the recommendation to 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. After brief discussion, the motion carried.
Mr. Hall explained the work group would be convened to determine if it’s possible to receive more detailed information. The work group would report to the BJA.
It was moved by Judge Kato and seconded by Judge Costello and passed unanimously to adopt the recommendation to convene a separate Work Group, that reports to the Board, 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, and 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.
Mr. Johns reported that the Funding Alternatives Work Group has spent considerable time discussing the PSEA and problems relating to the account. The original intent of the account was to supplement court funding, but the account has since become a “mini general fund.” Although the WG thought changes to the account were appropriate, the Work Group relied upon the principle that “Courts are not self-funding entities” in concluding that the PSEA should not be used to directly fund trial courts and therefore there is no impetus to make major changes to the PSEA. Three points that will simplify the account are: 1) seek legislation to place responsibility for setting traffic penalties with the legislature, not the Supreme Court; 2) develop a single, simple method by which funds are divided from the PSEA account; and 3) change the nature of the current JIS fee to a true JIS user fee.
Mr. Johns explained that “no-harm” means that no money would be taken from the counties. Brief discussion followed.
It was moved by Judge Costello, seconded by Judge McSeveney and passed unanimously to adopt the recommendation to conduct an analysis of the following concepts related to the Public Safety and Education Account:
• Repeal RCW 46.63.110(3) which prescribes that the Supreme Court establishes the traffic infraction penalty schedule 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 – filings fees, traffic infractions, and convictions of misdemeanors and felonies. The fee would then fund both maintenance and new development and would remove JIS from the PSEA account entirely.
Ms. Michels directed attention to the assumptions listed on page 9 of the recommendations. She believes that the methodology that resulted in the documentation of current costs and projection of adequate funding are the result of their best effort. Ms. Moore added that she participated in the combined subcommittee and also believes the methodology developed is excellent.
Mr. Johns reminded the Board that Washington is last in the nation in the state providing funding for trial courts. Nationally, States contribute an average of 45 percent of trial court funding, while in Washington the State only contributes 14.7 percent. Mr. Johns said two methodologies were considered in determining the appropriate balance between state and local governments for trial court funding: 1) a straight percentage calculation or 2) looking at what drives the trial courts’ activities and expenses. Whether those drivers are state or locally mandated were also considered. Mr. Johns reviewed the items listed in the left hand column of the nexus continuum chart.
It was moved by Judge Costello, seconded and passed unanimously to adopt the nexus continuum approach, embodied in the nexus continuum chart, as the method used to determine which costs are most appropriately shared or funded by state government and further, that BJA pursue, as a long term goal, 100 percent state funding of those items listed in the left hand column. This does not preclude the identification of additional items as appropriate for state funding participation based on the nexus approach in the future.
Mr. Johns next advised that the user fees had generated a considerable amount of discussion in the Work Group. He noted that user fees should not be used to fund the trial courts. He also pointed out that filing fees are not true user fees. Mr. Johns briefly reviewed the major changes to the user fees.
Judge Sperline voiced concern over the increase to the jury demand fee. He reminded the members that it’s a constitutional right to have a jury, but we are charging people to exercise that right. Brief discussion followed.
The members briefly discussed the need for an annual review of the fees. Justice Alexander indicated that he did not believe the AOC should recommend fee adjustments directly to the legislature as recommended by the task force. Following discussion.
It was moved by Judge Costello, seconded by Judge Derr and passed unanimously to adopt the recommendation requiring the Administrative Office of the Courts to report annually to the Supreme Court and the Board for Judicial Administration recommended adjustments to fees.
It was moved by Judge Costello, seconded by Judge Derr, and passed with one vote in opposition to adopt the recommendation to seek legislation creating:
• A fee for filing cross, counter and third party claims in Superior and District Courts (excluding unlawful detainer cases) equal to the original filing fee in civil actions, and
• A fee equal to the civil filing fee be assessed, at the discretion of the trial judge, against defendants in courts of limited jurisdiction upon a plea of guilty or conviction for misdemeanors and gross misdemeanors.
• Increases to existing court fees contained on the attached schedule
Mr. Johns explained that several approaches were used in establishing the proposed tax package. He said the tax package “menu’ is comprised of priority proposals. Mr. Johns quickly reviewed the proposed components. He then advised of a recent change to the tax package. He pointed out that a number of areas beyond legal services, such as medical services, accounting services, etc., are not subject to sales tax. A new proposal would include taxing those services in addition to legal services.
Mr. Savage, speaking for himself and not on behalf of the Bar Association, indicated his delight at the new proposal. He urged the BJA to look closely at the new proposal.
Chief Justice Alexander stated he would like to see the BJA defer passing a recommendation on the tax proposal because decisions have not been made regarding legislative proposals. Chief Justice Alexander felt it was premature to go forward with this type of taxation without having legislative proposals in place.
Mr. Blair said he agreed with deferring action on the tax package.
Judge Costello agreed to withdraw his motion, but sensed that at some time the Board will need to take action.
Judge Churchill moved to table action on the proposed tax package. The motion was seconded by Judge Derr. The motion passed with one vote in opposition.
It was moved by Judge Churchill to adopt the communications plan developed by the Public Education Work Group. The motion was seconded and passed.
It was moved by Judge Churchill and seconded to adopt the recommendation to reestablish the Public Education Work Group as a committee of the BJA with its current membership and consistent with its current charge.
Judge Derr voiced concern over the creation of the Public Education Work Group. Ms. McLane pointed out that the PEWG would be in the best position to advise the BJA about getting the message out to the public.
Mr. Blair briefly explained the purpose of the Implementation Committee.
Mr. Cary stated in order to keep the work of the Task Force moving forward, the creation of the Implementation Committee is vital. He reminded the Board that changes to legislation takes a long time to accomplish. He said this committee will need to be dedicated to a long term commitment.
It was asked whether this committee would have the authority of make decisions or make recommendations. Mr. Hall responded the Implementation Committee would operate in the same manner as the Legislative Executive Committee: during the legislative session, they would make decisions on behalf of the BJA, communicate those decisions to the BJA, subject to their approval. Currently, the Executive Committee has that role.
It was moved by Judge Sperline and seconded by Judge Costello to adopt the recommendation to establish a Trial Court Funding Implementation Committee including the BJA executive committee and a select group of Court Funding Task Force members with authority to develop strategies and positions regarding proposed legislation relating to the work of the Task Force. The motion passed.
It was moved by Judge Churchill, seconded and passed to seek legislative action to implement the recommendations in the Court Funding Task Force report as adopted by the BJA and in the report of the Supreme Court Task Force on Civil Equal Justice.
There being no further business, the meeting was adjourned.
Respectfully submitted,
Jude Cryderman
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