Board for Judicial Administration
March 18, 2005
Temple of Justice, Olympia

Members present: Chief Justice Gerry Alexander, co-chair; Judge Deborah Fleck, co-chair; Judge Vickie Churchill; Judge Leonard Costello (by phone); Judge Sara Derr; Judge Stephen Holman; Judge Elaine Houghton; Judge Eileen Kato; Judge Kenneth Kato; Judge Gerald Knight (arrived following the UPC presentation and vote); Ms. Janet McLane; Judge Robert McSeveney; Judge Alicia Nakata; Judge Christine Quinn-Brintnall; Judge James Riehl; and Judge Evan Sperline

Guests present: Justice Bobbe Bridge; Judge C. C. Bridgewater; Mr. Richard Carlson; Judge Paula Casey; Judge Richard Eadie; Ms. Renee Townsley; and Mr. Dwight Williams

Staff present: Mr. Gil Austin; Ms. Colleen Clark; Mr. Doug Haake; Mr. Jeff Hall; Ms. Yvonne Pettus; Ms. Janet Skreen; and Ms. Ann Sweeney

Call to Order

The meeting was called to order by Chief Justice Gerry Alexander, co-chair.

Minutes

Hearing no objection, the minutes of the February 18, 2005 meeting were approved as published.

Unified Family Court Principles

Justice Bobbe Bridge explained that she is seeking a motion to endorse the five Unified Family Court (UFC) Principles and direct them to the Court Funding Implementation Committee to identify the fiscal impacts. Justice Bridge continued by offering an overview of her presentation given to the BJA at the February 18, 2005 meeting.

Justice Bridge added that adoption of these principles will impact a large percentage of cases. A study done by the AOC found that 45 percent of the superior courts' caseload is devoted to family-related matters.

Justice Bridge noted that there has been a remarkable consistency of the recommendations among various studies and commissions. These studies have shown that there is a need for the principles and that adoption of the principles will improve outcomes for families.

In closing, Justice Bridge said that with the BJA endorsement of these five principles, it will be an acknowledgement of recommendations of established groups; validate the work done to date; and support a continuation of efforts.

It was moved to endorse the five Unified Family Court principles as best practices and direct the Court Funding Implementation Committee to identify fiscal impact. The motion was seconded and passed unanimously.

Appeal Mandate Work Group Report

Judge Bridgewater reported that the work group met and has come up with a recommendation. He added that the work group included members from the AOC, superior courts, appellate courts, ACLU and WSP. They looked at two main areas:

1. What happens to the defendant upon issue of a mandate?

2. What happens to the criminal history?

The appellate clerk is responsible for issuing mandates. The mandate in criminal cases is distributed to the presiding judge of the trial court, to trial counsel of record, and to the clerk of the trial court.

If the case is affirmed, there is not an issue. If the case is a complete reversal, however, the contract with the appellate assigned counsel terminates at the mandate. The result is that the defendant no longer has counsel. Therefore, unless the prosecutor or the trial court issues a dismissal, the defendant will not be released from prison and his or her criminal history will not be updated. The work group's proposed solution for these cases is to amend the appellate counsel's contract to require him or her to move for a dismissal in the trial court.

If the case is reversed and remanded for new trial or resentencing, the defendant's trial counsel is no longer appointed to represent the defendant and the prosecutor may not have an incentive to place the case before the trial court. The work group's proposed solution is to include a line in the caption of the mandate that reads, "Court Action Required." In the body of the mandate there would be a sentence stating, "Court Action Required: The sentencing court or criminal presiding judge is to place this matter on the next available motion calendar for action consistent with the opinion". The work group is also proposing a court rule requiring the trial court to schedule an appropriate hearing within 30 days of the receipt of the mandate.

Once the trial court issues a new judgment and sentence or enters an order dismissing the case, the county clerk can make the appropriate entries in SCOMIS.

The WSP receives a report from ACORDS regarding the disposition of the appellate case. However, the WSP does not use this report to update a defendant's criminal history. The WSP must wait for a new judgment and sentence or order of dismissal to be entered by the trial court. Once the county clerk enters the new judgment and sentence in SCOMIS, the updated information is transmitted to the WSP and the defendant's criminal history is updated.

Judge Sperline expressed concerns about the court's responsibility for setting the hearing, notifying the participants, locating the defendant in prison, getting the defendant transported to the court hearing, etc. He thought the prosecutor would be the better person to charge with the responsibility of placing the matter on the calendar and notifying the participants.

Judge Quinn-Brintnall raised concerns about the correct information getting on the mandate since it is prepared by the appellate clerk rather than the authoring judge. She thought that when there is a dismissal, the onus should be on the defense attorney to get the matter on the trial court calendar. Putting COURT ACTION REQUIRED on top of mandate will alert everyone that something needs to occur which is a positive step.

Judge Sperline indicated that the traditional role of the judge is to sit back and wait for cases to come to him. This would require a new more proactive role. It is discomforting to him to think of the judge/court as the originator of action.

Judge Bridgewater indicated that Judge Paris Kallas served on the work group and indicated that the King County criminal presiding judge preferred the court to assume this role rather than the clerk. In Cowlitz County, the clerk currently sets every mandate on the criminal docket.

Washington Association of Prosecuting Attorneys (WAPA) was asked to participate in the second work group meeting but did not attend the meeting.

Judge Fleck noted that this is not on the action calendar this month. The BJA will discuss this issue at next month's meeting.

National College of Probate Judges’ Report and Recommendations

Chief Justice Alexander said he received a notice from the National College of Probate Judges; and although we do not have individual probate courts, he felt Washington should be represented. He asked Judge Eadie if he would represent Washington at their 2004 National Fall Conference.

Judge Eadie reported that this conference focused on guardianship law. There are 37 states with some form of public guardianship – more often located within the executive branch, with a smaller number in the judicial branch. He also noted that RCW 11.88.010 (superior courts - authority to appoint guardians) goes into effect January 1, 2006. The conference looked at five different areas (detailed in the report provided).

1. Collection of Data on Guardianship cases.

2. Confidentiality of Individual Guardianship cases.

3. Adoption of Uniform Standards and Procedures for Interstate Transfer of Guardianship cases.

4. Training, Support and Technical Assistance to Non-Professional Guardians.

5. Meaningful Oversight of Guardianship cases: Need for a Public Guardian.

This all leads to a nationwide discussion of the need for public guardians. Some people have no funds and no family members to assist them as a guardian. The fiscal impact is a concern, but there are real cost benefits for an advocate to move a person from a placement in a state facility into a lower cost group home.

It was discussed that this might be a good fit for volunteers with a staffed, centralized office to oversee them. Judge Eadie noted that Columbia Legal Services is also addressing public guardians.

The starting point is the collection of data. There are many levels of data to look at.

• What is the experience in other counties?
• Is this an urban or statewide issue?
• How are individual counties collecting data?
• Are the guardianship caseloads in individual counties growing?
• Are counties experiencing moves from institutions to less restrictive measures?

It was agreed that more data needs to be collected, possibly by a questionnaire. Chief Justice Alexander asked Ms. McLane if AOC would be able to gather data with the Certified Professional Guardian Board assisting. The BJA can then discuss the issue at the next meeting. Ms. McLane responded that AOC would do this.

Judge Eadie wanted it to be clear that this is about people other than the Certified Professional Guardians (CPG). These are the cases not administered by CPGs. He also noted that guardianships have traditionally been statutorily supervised by courts.

It was moved to request AOC to report back at next month’s meeting on a data collection plan. BJA will then decide if a committee should be established. The motion was seconded and was passed unanimously.

Best Practices Committee Report

Judge Sperline reported that this committee met on March 4 to weigh the merits of court performance audits and to discuss the base measures to be applied in these audits. Judge Julie Spector is leading a subcommittee to address questionnaires for the audits – how they should look and what they should ask.

Judge Sperline continued that as the courts are asking for funding from the legislature this session, it is expected there will be more interest in court performance. The committee will be meeting again on May 6, a month earlier than their usual schedule to continue work on the base measures.

Governor’s Task Force on Noneconomic Damages Report

Ms. McLane reported that this task force was formed in January 2005 and has had two meetings. The Office of Financial Management has the lead for staffing with assistance from AOC, the Senate and the House of Representatives. Judges Bruce Hilyer and Craig Matheson are the SCJA representatives on the task force.

The task force has been directed to provide a report to the Legislature in October of this year. However, it appears it might take them until December to complete it. Ms. McLane suggested that the BJA might ask one of the judges to report on their work at a future meeting.

Salary Commission Report

Ms. McLane reported that the first major presentation was in January. Justice Madsen, Judge Houghton, Judge Costello and Judge Eileen Kato gave a presentation to the Commission. At this meeting, the Salary Commission adopted a preliminary schedule.

Ms. McLane continued that we were asked to speak again at the February meeting. Chief Justice Alexander, Judge Costello and Judge Eileen Kato addressed the Commission, focusing on why the Federal Judiciary is an appropriate group to use as a benchmark for salaries. They also addressed the number of judges that have left the state bench to go to the Federal bench or into arbitration/mediation services.

The next Commission meeting is March 24 in Vancouver, Judge Bridgewater, Judge Eileen Kato and Judge Costello will attend. There will be a final meeting on April 28 in Wenatchee. We will not be making presentations at these meetings, but will attend to show support and be available to respond to any questions from the Commission.

Courthouse Security

Chief Justice Alexander felt that in light of recent events, a discussion on courthouse security was appropriate. A copy of the Courthouse Public Safety Standards (May 1996) was provided to the members.

Chief Justice Alexander reported that the National Center for State Courts (NCSC) has received $100,000 from the Justice Department to lead a review on court safety in April. He asked if anyone present would like to represent Washington. Judges McSeveney and Riehl volunteered.

Judge Fleck suggested a questionnaire be sent to all the courts asking the presiding judges about current security provisions, needed security, and concerns about security.

There was discussion about the current level of security in Washington. Some courts do have security precautions in place, but many courts have minimal to no security precautions. Other thoughts and concerns include:

• Availability of funding.
• Standardizing security levels across the state.
• An impetus to remove home addresses of judges from public record.
• Obligation to provide the public with a safe place to do business.
• The need for everyone to be protected – litigants, family, staff and judges.

Further discussion and a review of the standards will begin after the NCSC court safety summit.

Long-range Planning Report

Judge Fleck reported that their goal is to complete the BJA long-range plan, then begin work on the judicial branch long-range plan. The goal is to begin working on the judicial branch long-range plan by early summer. The amended BJA long-range plan was provided to the members. Judge Fleck asked to have the plan approved as amended. After some discussion, it was decided to carry this over to the April 15 meeting so members would have more time to consider the amendments.

Judge Fleck asked members to email her any suggested changes.

Legislative Report

Mr. Hall reported that the BJA was doing well with sponsored legislation with the exception of SB 5322 (district court civil jurisdiction increase) which was a non-starter and SB 5712 (local and district courts) which will be taken up next session. There are companion bills on all but one of the Court Funding Task Force related bills. SB 5454 has moved out of the Senate, with a just a couple of amendments agreed to by the BJA. One of the amendments was the elimination of the jury fee increase and the state payment of one-half of the jury fees and mileage. The jury provisions will be pursued next session.

Mr. Hall continued that there are $3 million new dollars for civil legal services, and money to support indigent defense. He also noted that SB 6023 (facilitating interlocal agreements for court services among municipalities) is dead.

Judge Fleck added that judges are meeting periodically and making a concerted effort to make joint decisions. Judges throughout the state have been very responsive when asked to contact their legislators regarding bills. This has had a positive impact. Mr. Hall said that all the lobbyists are working together (SCJA, DMCJA, OPD, and WSBA) and that it is also making a difference.

Judge Quinn-Brintnall inquired about HB 1226 (adjusting application of campaign contribution limits). She is concerned that we are not raising issues that need to be addressed. BJA has taken a ‘no position’ on this bill. Judge Quinn-Brintnall said she is not recommending that we oppose or support the legislation, just that the appropriate questions be asked. Chief Justice Alexander asked her to come up with four or five questions for legislators.

Access to Justice Report

Mr. Dwight Williams was in attendance for Judge Tripp. Mr. Williams thanked the BJA on behalf of the ATJ board and community for BJA’s interest and participation over the years.

Mr. Williams reported that the ATJ is now 11 years old and has seen a great deal of development and maturity. They have begun a long-range planning process and will be having informal meetings throughout the state. He also noted that Washington State was the first state in the nation to have an ATJ Board. Currently there are more than 30 states with ATJ Boards.

Mr. Williams stated that the ATJ is very pleased with how everyone has come together on the justice in jeopardy bills. He noted that the Equal Justice Coalition is a subcommittee of the ATJ.

The ATJ Board has been charged to come up with the civil needs study implementation. As they do not have any funds of their own, Chief Justice Alexander was approached regarding funding. Chief Justice Alexander added that a request for ATJ funding has been included in the Supreme Court budget request. This was appropriate because the ATJ was created by the Supreme Court.

REPORTS FROM THE COURTS

Court of Appeals

Judge Quinn-Brintnall said that this was Judge Houghton’s last BJA meeting. She added the spring Conference of Appellate judges will be in Walla Walla beginning on April 3.

Judge Quinn-Brintnall reported that Division II is in a resource crisis. There are two judicial assistants on medical leave and they are trying to replace a staff attorney. The staff attorney position has been offered to a couple of people, but it has been turned down – they are unable to compete in the market place.

Judge Ken Kato reported that Division III will have a law student from the University of Washington this summer. He added that Judge Kurtz is one of three finalists for a bankruptcy court position in Yakima.

Superior Courts

Judge Deborah Fleck reported that work is ongoing on a Blakely response bill. She also reported that HB 2015 (Community DOSA) has passed out of the House. This bill is strongly supported by the SCJA.

District/Municipal Courts

Judge Eileen Kato said that two bills sponsored by the DMCJA are moving forward: HB 1294 (revising standards for anti-harassment), and HB 1297/HJR 4201/SB 5433 (adding municipal court judges to the Judicial Conduct Commission).

Judge Eileen Kato also noted that the American Bar Association's Judicial Division network has awarded nine subgrants to improve the American jury system. One of these subgrants was awarded to Skagit County.

Judge Fleck said that the BJA would like to recognize Judge Robert McSeveney for speaking up about electing judges, which is not always a popular subject.

Judge McSeveney elaborated that Federal Way City Councilman Jim Ferrell worked with his fellow council members to achieve this. The current (appointed) Federal Way judge position ends this year. The City Council voted 5-1 to make the position an elected position.

Other Business

The next meeting is scheduled for April 15 at the SeaTac Facility.

There being no further business, the meeting was adjourned.

Respectfully submitted,
Colleen Clark