Board for Judicial Administration
September 16, 2007
Hilton
Vancouver, Washington

Members Present: Chief Justice Gerry Alexander, Chair; Judge Vickie Churchill, Member Chair; Mr. Stan Bastian; Judge Leonard Costello; Judge Sara Derr; Judge Susan Dubuisson; Judge Deborah Fleck; Justice Barbara Madsen; Judge Larry McKeeman; Judge Robert McSeveney; Judge Marilyn Paja; Judge Linda Portnoy; Judge John Schultheis; Judge Stephen Shelton; and Mr. Butch Stussy

Guests Present: Chief Judge Robert Bell, Maryland Court of Appeal; Judge Joan DuBuque; Judge Steven Gonzalez; Ms. Kathy Martin; and Judge Michael Trickey

Staff Present: Mr. Rick Coplen, Ms. Beth Flynn, Mr. Doug Haake, Mr. Jeff Hall, Ms. Regina McDougall, Mr. Chris Ruhl, and Mr. Dirk Marler

The meeting was called to order by Chief Justice Alexander. Chief Justice Alexander recognized the outstanding service Judge McSeveney provided over the past two years as Member Chair of the BJA by presenting him with a clock.

July 20, 2007 Minutes

It was moved by Judge Schultheis and seconded by Judge Paja to approve the July 20, 2007 meeting minutes. The motion carried.

Courthouse Public Safety Standards

Judge Gonzalez spoke on behalf of the BJA Court Security Committee regarding the Washington State Courthouse Public Safety Standards. The Committee worked with the United States Marshall’s Office and reviewed standards from across the country to develop standards that are relevant for each court level. They tried to recognize the differences in each court level and provide security standards applicable to each court level. Judge Gonzalez hopes the BJA will approve the standards that were presented at the July meeting.

Judge Gonzalez brought in a display box containing some of the weapons that are a concern for courts. Several of the examples are made of composite material that do not show up on an x-ray machine. They are the kind of things the Committee planned for when they developed the standards. The average number of weapons per year, per judicial officer where there is courthouse security in Washington, is about 1,000 weapons per year.

Courts have a duty to protect not only the judicial officers and employees but also the litigants in the courts.

Judge McKeeman asked if the standards are a mandate throughout the state or a recommendation. Judge Gonzalez clarified that they are the best practices and although he would like to see them mandated throughout the state, funding is an issue so they can’t all be implemented right away.

Mr. Stan Bastian asked if any county is currently following the best practices or do all counties need improvement? Judge Gonzalez replied that they all need improvement.

It was moved by Judge Fleck and seconded by Judge McKeeman that the BJA adopt the Washington State Courthouse Public Safety Standards as a best practice and encourage courts around the state to implement the standards. The motion carried.

Chief Justice Alexander thanked Judge Gonzalez for the presentation and asked him to extend his thanks to Judge Casey and the other members of the Court Security Committee.

Publication of Protection Orders on the Internet

Judge Shelton informed the BJA that this issue was brought to the attention of the DMCJA by the Gender and Justice Commission recently.

The issue is that the federal law regarding access to case information and Washington court rule appear to conflict.  The DMCJA is concerned about the potential for injury to victims and loss of federal money that may result from following Washington’s more liberal access rules.  The DMCJA requests that the BJA direct research into whether victims have been or could likely be injured as a result of protection order information being posted on the Internet.

Justice Madsen introduced Judge DuBuque who came to talk about this issue. The Gender and Justice Commission administers STOP funds that are granted to the courts of this state to pay for domestic violence programs. Congress passed some amendments to the Violence Against Women Act (VAWA) that our state’s practices might be in conflict with at this point.

The rationale behind the national legislation was safety related. Each state handles the information differently and the federal government wants it dealt with uniformly. It has been a few years since GR 31 has been reviewed and it is probably a good time to look at the rule to ensure it is in compliance with federal law and protecting victims.

The Commission asked the DMCJA and the SCJA to give them feedback regarding this issue. The Commission has learned that by using just a name a great deal of information about a victim of domestic violence can be found on the Internet, even items that are confidential are accessible, such as UA reports and reports from alcohol treatment providers.

Addresses are confidential and medical information is also supposed to be confidential. It is suspected that the manner in which the data is entered into the computer is causing the medical information to be available on the Internet. Judge Dubuque stated this is a complex issue because courts have not considered the impact of the information available regarding domestic violence victims on the Internet.

Judge McSeveney asked if there are any documented cases on this. Judge DuBuque will get that information from Ms. Grace Huang and bring it back to the BJA. Information regarding this issue was attached to the letter that was sent to the DMCJA and the SCJA.

Mr. Hall stated that the JIS Data Dissemination Committee has been dealing with this issue for a long time. The conclusion that the Data Dissemination Committee has reached is that the federal law only applies to foreign protection orders.

Judge Fleck stated that even if that is the case, the clear purpose behind the Violence Against Women Act is to provide protection to victims of domestic violence. She suggested that if the court rule is to be modified to comply with restrictions on publishing foreign protection orders on the Internet, any modification should cover all persons who are protected by such orders in order to comply with the spirit of the law.

Judge Shelton indicated that he would ultimately like studies to be conducted by the trial courts regarding this issue.

Judge Churchill suggested using common sense here. She suggested that even if there hasn’t been any incident doesn’t mean that it’s not a potentially violent situation. Her opinion is that the information should not be so easily accessible on the Internet.

Judge Trickey asked if there is a technical solution to this issue in the new CMS. Mr. Stussy responded that it would be difficult to modify our legacy systems to accommodate a policy change. He cautioned that a change in the policy at this time would likely not be incorporated into the new CMS for the initial implementation.

Chief Justice Alexander stated they received a lot of comments on GR 31 when it was adopted and at that time they did not favor a two-tiered system in which some data was available online and some in the courts. It was pointed out that even if the information is not available on the Internet, it will still be available at the courthouse.

Judge Portnoy asked if it is difficult to do a review of other states to find out if there is language we can look to for a model. Mr. Hall responded that states have done it both ways. The broader questions are what information would really be blocked? Someone could receive a speeding ticket in Spokane that would have a home address even though the same address is blocked on a protection order.

Judge Shelton moved and Judge Fleck seconded that the BJA refer this issue to the trial court associations for further consideration and possible recommendations to the BJA in the future. The motion carried.

General Rule 33

Judge Shelton shared that General Rule 33 concerning court access for individuals with disabilities became effective September 1, 2007. Many small limited jurisdiction courts do not have expertise in the area of disabled access (ADA, Washington statutory and case law, and GR 33). Nor do many courts of limited jurisdiction have access to resources to assist with understanding and implementing this complex area of law. The DMCJA requests that the BJA determine what resources the judiciary can make available to assist presiding judges to meet their obligations under GR 29 and GR 33.

Mr. Stussy indicated AOC has provided limited ADA assistance to courts.

Mr. Hall reminded the BJA members that there was a legislative request put forward last session for an ADA coordinator at AOC. Certainly, there was a determination at one point in time that AOC needed staff to assist courts with ADA issues.

One issue to consider is if the AOC should be making determinations about how courts should/could implement GR 29. Should AOC play that role?

Mr. Haake commented that AOC’s role isn’t to give courts legal advice about how to implement the rules; DMCJA’s request is for a resource to help assist courts with ADA and other court administration issues. In the past, the responses AOC has given to presiding judges facing ADA and other issues have been extremely limited in value. Mr. Haake noted receiving requests from judges who did not feel they had other resources asking for assistance with ADA and other issues.

Mr. Stussy said that AOC has not developed the capacity to respond to ADA requests from courts even though AOC has received inquiries. If AOC is able to secure funding, maybe a contractor could be hired to assist courts with ADA compliance issues. Mr. Stussy would like to figure out what resources would be needed. He also stated AOC does not have the expertise at this point in time to provide assistance to courts.

It was moved by Judge Shelton and seconded by Judge Dubuisson that AOC read GR 29 and determine if the agency is able to provide a resource center to the presiding judges of local courts regarding human resources issues, ADA compliance, and disability issues and report back to the BJA. The motion carried.

Mr. Stussy welcomed the opportunity to sort out what new or enhanced AOC services are needed to enable presiding judges to carry out responsibilities set forth in GR 29.

Mr. Bastian stated this is an area of law he practices in. He thinks this is where the AOC can really help because this is the intersection between human resources, ADA issues and GR 29. The county commissioners think they run their staff and GR 29 gives courts a duty that the county commissioners aren’t aware of. It is new and most county commissioners are not aware of it.

UFC Work Group Update and Executive Summary

Judge Trickey acknowledged the superb staff work Mr. Hall, Mr. Ruhl and especially Ms. McDougall provided for the Unified Family Court Work Group. He then presented a brief overview of the Washington State Family and Juvenile Court Improvement Plan.

The Improvement Plan responds to the needs to improve the family and juvenile court system. Keys to successful implementation are establishing court leadership, providing specialized education, and acquiring state funding.

For courts to receive funding, the Implementation Plan requires each court to identify a chief family court judge for two years and requires specialized education for judicial officers hearing family and juvenile court calendars.

There is a four-year implementation plan divided up into the following phases:

Phase I – Appoint Chief Judge, hire case coordination staff, attain specialized education, establish local court leadership

Phase II – Maintain base budget for staff and education, advocate funds for targeted improvements

Phase III – Improvement funds and expand to more courts

The Work Group has kept Representative Kagi in the loop. She is pleased with the education piece but is concerned about the length of rotation—she would like longer rotations.

Ms. McDougall assured the BJA members that the Work Group took into account all the various issues and concerns. The judges had a lot of concerns about what it would do to their local court process.

Justice Madsen asked about the parallel UFC track being pursued by Justice Bridge. How similar are the plans? Judge Trickey’s perception is that Justice Bridge’s group hasn’t developed a plan yet. Ms. McDougall commented that Justice Bridge has conducted a survey to find out what courts are currently doing for juvenile and family courts. At this point in time, nothing crosses purposes.

Justice Madsen wants to hear a report back from the Supreme Court Commission on Children in Foster Care. She will feel more comfortable adopting this Implementation Plan after hearing from the Commission.

Judge Trickey encouraged the BJA members to read the Implementation Plan. The SCJA Board of Trustees will review it and make a recommendation. The Implementation Plan will come back to the BJA for a vote in October.

BJA Long-range Planning Committee

Judge Churchill reported that the Long-range Planning Committee worked with the commissions/committees/task forces to determine if the long-range planning recommendations approved over the last 20 years, but not yet implemented, were still valid.

The question for the BJA to answer on the recommendations included in the meeting materials is if the BJA is working on each item, planning to work on it or if it should be dropped.

1. BJA, working in collaboration with the other branches of government, both state and local, and with trial court judges, clerks, court administrators, lawyers, citizens, and other state and local officials, should initiate a request to the Legislature to establish a funding mechanism to support trial court coordination activities. Funds should be administered by the Administrative Office of the Courts at the direction of the Board for Judicial Administration, to cover expenses associated with action by the trial courts in a jurisdiction to coordinate judicial and other court resources and services. The BJA should establish criteria for the award for funding to trial court jurisdictions for developing and implementing a trial court coordination plan.

   Judge Fleck moved and Judge McKeeman seconded that Trial Court Coordination grants should be referred back to the Long-range Planning Committee. The motion carried.

2. The BJA should recommend methods of providing courts adequate funding and resources to include staff and facilities that meet the ADA and security standards. Additionally, it should evaluate the trend towards fee justice.

   Judge Fleck moved and Judge McSeveney seconded that this recommendation be referred back to the Long-range Planning Committee. The motion carried.

3. The Board for Judicial Administration should study whether all legal financial obligations (LFO) in criminal cases, except those related to restitution should be decriminalized.

   Mr. Hall thinks this one can be dropped.

   Judge Dubuisson moved and Judge Fleck seconded to study the assessment, collection and consequences of imposing LFOs. The motion carried.

   Judge Paja proposes that this issue be studied by a committee that is a little larger than just the BJA—she proposes financial and funding agency representatives and probation department representatives—at least in an advisory capacity.

Justice Madsen explained that part of the reason the Long-range Planning Committee members wanted the BJA to review the recommendations was they didn’t think they had the authority to refer the plans back to each organization for further study.

Justice Madson moved and Judge Dubuisson seconded the motion to have the BJA authorize the Long-range Planning Committee to make decisions whether the recommendations can be forwarded to other organizations for their consideration. The motion carried.

WSBA

Over next year the WSBA will be going over long-range and strategic planning. The BJA can certainly help by participating and sharing the views of the judiciary.

Justice In Jeopardy Retreat

Chief Justice Alexander reported that the Justice In Jeopardy retreat was held last Friday and was very successful and well attended.

Judge Fleck reminded the BJA members that the purpose of the JIJ Initiative is to seek adequate, stable and long-term funding for the trial courts. The initial JIJ members knew it would take at least 10 years to fully fund the Initiative and they have been quite successful since beginning the process in 2002. Because judicial and bar leaders have changed, they needed to invigorate the process and engage new leaders who will become energized as well. Judge Fleck was very interested in developing a timeline during the retreat. Although they didn’t develop a specific timeline, they received some good input.

They received a lot of helpful feedback for steps to finalize the Initiative. Future work of the Court Funding Implementation Committee will include identifying what accomplishments will close the book on the JIJ Initiative, addressing the proposals regarding the courts of limited jurisdiction and developing the timeline, among other strategic planning tasks.

Mr. Hall thanked Chief Justice Alexander for the contributions and presentation he made during the retreat. This wouldn’t have gotten off the ground if he hadn’t provided the support for the JIJ Initiative.

A revised chart of the Court Funding Implementation Committee, which re-charters the group and changes the membership somewhat, will be distributed at the next BJA meeting.

Reports from Courts

Supreme Court: Justice Madsen shared that the highlight of last month was going to Gonzaga Law School for oral arguments. The justices toured the campus, spoke in undergraduate and law school classes, had a barbeque with students and also met with the local judiciary. They had good participation from the students and an opportunity to meet informally with a number of the faculty, Dean and President of the university. The Supreme Court plans to visit one law school per year so every law student in Washington will have an opportunity to see the Supreme Court at least once in their three years of law school.

Court of Appeals: Judge Schultheis reported that Division III has a new judge—Debra Stephens. She is a delightful person, very sharp and easy to get along with.

Superior Court Judges’ Association: Judge Churchill stated that the BJA has already heard about many projects today taking place in the SCJA such as the UFC Work Group and the Long-range Planning Committee which will be referring recommendations back to the SCJA. She had nothing to add to the reports already given.

District and Municipal Court Judges’ Association: Judge Shelton shared that one of the DMCJA’s goals is to try to maintain the autonomy of the courts of limited jurisdiction and be a full partner with the judicial system.

There being no further business, the meeting was adjourned.