Washington Courts: Judicial News Report Detail

Washington's Judiciary: Re-Engineering for the 21st Century

As we approach the dawning of the 21st century, the new millenium, we consider how this milestone changes our lives. It represents a point at which to speculate about our future. Aside from worries regarding Y2K (a real problem for our society so dependent upon technology), we need to consider our institutions -- what are they designed to do? Are they meeting their goals? Should we try something different? This process of assessment and reassessment has lead me to consider how Washington's judiciary works -- or fails to work -- and to consider reforms designed to maintain an impartial and independent judiciary as a coordinate constitutional branch of government. These views are my own and do not necessarily represent those of the whole Supreme Court.

I submitted a law review article to the Seattle University Law Review, published recently (Volume 22, Winter 1999, Number 3), discussing principles of judicial restraint and how our courts have intruded on the role formerly filled by political institutions. This article received an interesting preview in the Wall Street Journal. There have been times when the judiciary has, for want of appropriate principles of judicial restraint, intruded too greatly upon the prerogatives of the legislative and executive branches. These branches of government are closer to the day-to-day political concerns of our society and can more readily broker the various interests in crafting public policy than the court system.

But at the same time, those political branches of government, consciously and unconsciously, have intruded upon the independence of the judicial branch of government by failing to properly fund the courts and by imposing a variety of additional responsibilities on the judicial system, responsibilities that cannot be fulfilled with our existing personnel and resources. Absent fundamental changes on the part of the political branches of government, Washington courts in the year 2000 simply cannot do all of the things the legislative and executive branch of government wish us to do. Nor can the judiciary do all the people expect of a judicial system. Part of the problem rests with the judicial branch itself. We have not changed with the times. We must revamp how we do business in order to function in the 21st century environment.

Let's consider some of the larger questions Washington's judiciary faces at the advent of the 21st century. Among those questions are the following:

1. What is a court system designed to do?

2. What is the present status of Washington's courts?

3. How should our court system be organized and administered in the 21st century to accomplish its fundamental constitutional responsibilities?

I discuss each question in turn.

A. What is a Court System Designed to Do?

The basic function of a judicial system is to fairly and impartially resolve disputes between people in society. Our Anglo-American jurisprudential system grew as a mechanism for resolving interpersonal disputes. Both the civil and criminal systems were designed to provide for dispute resolution. We long ago determined it was better to have trials by jury than violence or the will of the strong imposed on the weak. Implicit in our concept of dispute resolution is the view that the disputes should be resolved fairly, expeditiously, and at a reasonable cost to both the parties and society.

In 1889, our Washington State constitutional founders determined our court system, like that of the United States, should preserve and protect individual rights. In this function, our courts perform an often unpopular role of preventing a majority of citizens from trampling upon the rights of a minority or individual. In fact, all of the constitutional guarantees of individual civil liberties are inherently anti-majoritarian. These rights persist in a democratic society where majoritarian rule ordinarily applies.

Thus, Washington courts serve two vital social objectives. They are designed to preserve social order by providing a forum for dispute resolution so that conflicts are peaceably resolved. They resolve the interpersonal and commercial conflicts of the civil variety and they resolve the larger conflicts of society on the criminal side. But courts also protect the individual rights of citizens against governmental actions. Occasionally, these roles are in conflict.

B. Washington's Courts in 1999

But are we achieving the basic objectives for a court system in Washington State? The answer is we are doing so only sporadically because our system lacks sufficient personnel, proper funding and appropriate organization to accomplish these objectives. A careful review of the reality of Washington's court system in 1999 confirms this.

Simple statistics reflect the difficulty our courts now confront. The Office of the Administrator of the Courts (the OAC) publishes statistics on Washington's court system. In 1979, when I first began my legislative service, there were 120 superior court judges to address 148,666 total cases filed in Washington's superior courts. In 1997, there 163 superior court judges, but filings have grown to 243,318 in our superior court during the same time period. Thus, we have experienced a 64% increase in cases since 1979, but only a 36% increase in the number of judges.

The OAC also employs weighted caseload formula to justify the number of superior court positions for our state. Admittedly, this weighted caseload methodology is not the most accurate reflection of the need for judicial personnel in our court system. However, it is noteworthy that in 1979, OAC suggested a need for 155 judges in Washington superior courts (compared to 120 positions authorized) while in 1997, the same methodology suggested the need for 276 judges (as compared to 163 superior court judges actually authorized). Plainly, the number of superior court judges has not kept up with either the caseload in the superior court or the need for judges. These data do not even reference the number of district and municipal court judges who are performing additional judicial services.

Within the core functions of the courts is the need for obedience to lawful court orders. Unfortunately, court orders are frequently left unheeded. For example, as of November, 1998, there were more than 255,000 outstanding warrants in Washington involving everything from misdemeanors to felonies. Law enforcement agencies simply have not carried out these court orders. Similarly, millions of dollars in outstanding fines, forfeitures, and restitution orders continue to pile up annually in our state. We do only a minimal job of collection of these debts.

We have also seen a growing disposition on the part of public officials to expand the responsibility of the courts, particularly in the criminal arena, without matching needed resources or personnel to the increased responsibilities. A Seattle Times editorial of February 19, 1999, noted a remarkable event in the 1998 legislative session:

Last year, the State Council of Police Officers pleaded with Olympia lawmakers to impose a moratorium on contradictory, confusing and superfluous crime-fighting bills. The plea went unheeded. Smart crime-fighters would listen to the cops on the street and the judges on the bench who were saying enough is enough. Responsible lawmakers would adopt the ABA's recommendations to analyze the costs of any new criminal bill, state or federal, before it is enacted.

Washington lawmakers have added numerous additional crimes to the books and have increased penalties for offenses ("felony creep") over the last decade without seriously assessing decriminalization of existing offenses or sentencing alternatives. The last serious effort at decriminalization of offenses was by Senator Stu Halsan in 1985 - 86. It is only in recent months sentencing alternatives like drug courts have been advanced. Rep. Ida Ballasiotes' proposed review of sentencing by her House committee holds great promise.

This is not the end of the problem. Where the Legislature has imposed additional penalties for criminal cases, for example, DUI, fewer defendants plead guilty to such crimes and more demand jury trials. Prosecution and public defense costs rise because the cases are taken more seriously when more is at stake. The effect of such change is to unintentionally subvert the criminal law changes themselves because the courts are so overwhelmed by the cases, they cannot process the cases in the face of constitutional speedy trial mandates. A demand for a jury trial vastly enhances the plea bargaining position of the defendant in a system often overwhelmed by the sheer volume of cases.

The cost of prosecuting certain kinds of criminal cases can bring certain jurisdictions to their knees. An article in the Seattle Times on March 31, 1999, recounted how Okanogan County, in dealing with a capital murder case, could not readily handle the prosecution and defense expense of such a case. Okanogan County estimated the cost of the case amounted to 9 percent of the County budget and, because of the trial, the County was forced to limit or delay pay increases for County employees, defer purchasing necessary vehicles, and defer employment of necessary personnel. The State does not provide funding to a local jurisdiction like Okanogan County to handle the extraordinary cost of such a case. The Supreme Court is asked in each capital case to determine if death is a proportional penalty. We have not yet been asked to determine if the cost of a capital case in small counties alters a prosecutor's charging decision on aggravated first degree murder. I suspect that day may come.

This disposition of policymakers to add to the responsibilities of the judiciary without appropriate resources is not confined to the criminal setting. With all the best intentions in the world, the Legislature enacted the Becca Bill designed to provide greater parental control over runaway children. The Legislature was legitimately concerned about the need to make appropriate treatment available to children with problems. As part of that effort, the Legislature mandated school districts must strictly enforce truancy laws. The consequences to the court system were remarkable. In 1991, the annual truancy filings in Washington were 91. With the Becca Bill, the number of filings grew in 1996 to 10,232. Last year, in 1998, the number rose to 16,607. Regardless of feelings one way or the other about the policy of the Becca Bill (which I do not express here), the legislation plainly required human beings in black robes to make decisions about truancy petitions. Such a vast upswing in the number of truancy petitions from 91 in 1994 to 16,607 in 1998 does not go unnoticed in our judicial system. Given the limited number of judicial personnel, these cases, if processed, take the place of existing civil and criminal matters.

Washington's courts process numerous matters -- criminal cases, probate, family law, business disputes, child dependency cases, truancy petitions, and many more. On the criminal side, more and more of our cases involve drugs. Some of these cases are entitled to special priority. Constitutional, speedy trial requirements mean criminal cases get priority over all civil cases. Not all civil cases are treated alike, either. Juvenile dependency and termination of parental rights cases get priority. As a consequence, people wait for a long time to get trial dates on a variety of civil matters. In three of the major counties, across all civil cases, the time to trial is quite long. In Pierce County, it takes approximately 23 months from filing to trial. In Spokane, it is roughly the same time period. In King County, the number is 15.2 months. These numbers take into consideration all cases on the civil side of the ledger. As a consequence, if people have to wait an increasingly long time to get a trial date, more and more people look to alternatives to the traditional court system for resolution of their disputes. Many people use private alternate dispute resolution (ADR) at a cost of $300 to $400 an hour for such services. Plainly, a two-tier system of justice may be the result: for those people with the financial ability to hire private ADR, they can have their disputes handled quickly; for those people without such financial resources, they must wait an increasingly long period of time to access our judicial system. Our common law will cease developing if all justice is private. Chief Justice Guy has put it quite bluntly. He fears our traditional civil justice system will soon disappear in the face of this reality.

Finally, political branches of government have required the judiciary to take up other responsibilities than those traditionally within the purview of the courts. Such legislative mandates to the judiciary for nonjudicial-related activities intrude as much upon the independence of the judiciary as if the Legislature had ordered the courts not to decide cases. For example, the OAC has been required to develop rules regarding the licensure of court interpreters, guardians ad litem, guardians and a number of other court-related people. The judiciary becomes a licensure agency for a variety of professionals, a function the judiciary may or may not be well-equipped to address.

While I have been somewhat critical of the other branches of government in their imposition of responsibilities on the judicial system, the judiciary is not without its own responsibility for many of the problems we now face. Judges have been terribly slow in advising the public and the other branches of government of these problems I have enumerated. Additionally, the courts have been terribly slow in suggesting better ways to organize the judiciary to handle its dispute resolution responsibilities and to employ appropriate management principles and technology. The last time there was a serious effort to examine the organization and funding of Washington's courts was in 1982, 1983, and 1984. Efforts to provide additional State funding and reorganize Washington's courts were successfully enacted in those years. The 1984 Court Improvement Act, for example, eliminated a variety of outdated court functions and responsibilities dating back to the Territorial Code of 1854. In recent times, it was not until Chief Justice Barbara Durham appointed the Judicial Efficiency and Accountability Commission and later Chief Justice Richard Guy undertook a funding initiative in the 1999 session of the Legislature to improve State funding for local courts that any serious attention has been given to the operation, organization, or funding of the courts.

On the funding side, the State provides some resources for local jurisdictions, but on no consistent and clear cut basis. The State pays for the operation of the Supreme Court and the Court of Appeals. However, the State does not provide for the operation of municipal and district courts. The State and local governments share the responsibility of funding the superior courts.

From an organizational and funding perspective, Washington has a patchwork quilt of courts with no one specifically in charge of the entire system, either administratively or fiscally. This system of municipal, district, and superior courts defies rational explanation. Different jurisdictions fund different parts of the system. Overlapping responsibilities exist. Some of these jurisdictions impose court assessments not authorized by State law and then retain the revenues without sending them to the State's Public Safety and Education Account (PSEA). Many of the local courts do not directly hire and fire their own administrative personnel. Many municipal court judges are appointed by city officials. In a number of communities, including Bremerton, Auburn, Elma, and Airway Heights, there have been protracted battles between judges and elected officials over the willingness of judges to impose fines. Some local elected officials see their courts, not as independent branches of the judiciary, but as revenue generating agencies for local government. If a court is nothing but a profit center, can citizens be assured of due process and equal justice under law?

Complaints about the court system are legion. Because local governments often do not provide sufficient resources for the courts, cases take too long and cost too much to resolve. Jury duty involves too much wasted time, as people are not called to serve. The courts have long lines to pay tickets or to ask questions. People are confused about what court to use. Forms are confusing and no one can answer questions. Lawyers cost too much.

We do an inadequate job of ensuring access to justice. When we have employed people to assist the citizens with accessing the court system, such as Washington's court facilitator program, many local jurisdictions have attempted to eliminate this program. Ironically, in family law, more than 80 percent of the caseload of certain counties involve pro se litigants. Moreover, public defense costs in criminal cases take an ever-increasing part of local budgets.

In summary, because of added responsibilities without needed personnel or resources, and a patchwork system, we are rapidly approaching the point where our court system may grind to a halt and people will, of necessity, look to other ways to resolve their disputes because we cannot assure all people will have access to the judicial system at a reasonable cost. We do an extraordinary job in Washington's court system of ensuring fairness in the face of these problems -- peoples' rights are generally respected, criminal defendants receive legal counsel and speedy trials -- but because we have not considered how best to assure speedy access to justice at a reasonable cost and have not organized our court system to achieve this, we are on the brink of fundamental breakdown in Washington's court system at the dawn of the millenium.

C. What Can We Do to Better Prepare our Courts for the 21st Century?

It is now time for those of us who cherish Washington's court system to consider how best to make our court system work. We must define its objectives clearly. We must improve access to dispute resolution -- to simplify the process, to speed it up, and to lower the cost -- in order to preserve our court system. In order to accomplish this result, we are going to need to work with the Governor, the Legislature, local governments, the Bar Association, and the public to change perceptions about the judiciary and to engage in fundamental reforms.

First, the political branches of government can perform a tremendous service to the judicial system by carefully examining the existing criminal and civil codes to decide if all existing offenses need to remain in the criminal code and whether alternatives to existing penalties are sensible. I suspect many present criminal offenses can and should be decriminalized in favor of administrative infractions. The deterrent effect of the criminal law can be served by shorter jail and prison sentences or sentencing alternatives.

For the future, those same branches of government should carefully assess the court impact of criminal and civil law changes. Careful attention must be paid to fiscal and judicial impact notes. Before new crimes or increased penalties are enacted, or new civil remedies are created, the political branches must provide judicial personnel and funding to address them. Section 5 of Initiative 62 mandates no less.

Moreover, the political branches should not assume that OAC is a convenient agency to perform a myriad of functions going beyond the traditional bounds of the courts' constitutional role. We will jealously assert our constitutional prerogative to decline to perform new, nonjudicial tasks like licensure of professionals even in the face of statutory mandates.

The question of funding must also be confronted. Local and State legislators have not provided appropriate funding to the court system, either for necessary judicial positions or support personnel. The State should fund the core functions of the judicial system, such as salaries and benefits and necessary support personnel at all levels of the court system, as well as the cost of all capital cases and child dependency/parent rights termination cases.

If such additional State funding is not secured, the judiciary itself must act. We will define the core functions of the court and may decide to provide only such services. We may not undertake non-core functions. To this end, Chief Justice Guy has convened a conference of presiding judges for this summer to discuss defining the core functions, and what the courts cannot do if resources are not forthcoming.

If there is a continued failure by local and State authorities to provide necessary funding to the judiciary, a court order to mandate the provision of necessary court funding might be necessary. While the Legislature and executive branches control revenue and appropriation matters, the courts still must be funded for core constitutional functions. We have held that, if the Legislature fails to provide funding in the face of proof by clear, cogent and convincing evidence of necessary core court functions, the courts have the inherent power to compel such funding. In re Juvenile Director, 87 Wn.2d 232, 552 P.2d 163 (1976). While the courts should be sparing in the exercise of such inherent court powers to fund the court system, we should not be reluctant to confront this, if necessary, to perform our constitutionally-based core judicial services.

Next, we must turn to the organization of the court system itself. Our Washington court system was built for the year 1900 instead of the year 2000. The judiciary has an obligation to reorganize Washington courts and to define the types of cases appropriate for court resolution. We must consider whether certain disputes presently handled by the court system require judicial resolution at all. There is no particular reason why people in black robes need to decide small claims, civil infractions, probate cases, truancy matters, many of the family law issues not involving children or numerous administrative matters such as name changes, guardianship monitoring or the like. I advocate a careful review by the judiciary to see if more of our "administrative" caseload can be handled entirely by magistrates or a new system of administrative law judges.

Moreover, ADR can be used in various forms inside and outside the court system to resolve civil disputes. There is no reason we cannot have a sliding fee scale in civil cases and create a strong ADR presence inside the court system to resolve civil disputes. Moreover, we should provide opportunities for mini-trials, non-lawyer ADR, and increased small claims court activities to handle disputes. ADR may even be a concept that should extend to some minor criminal cases. But we must make dispute resolution a public function to ensure the continued development of the common law.

The court system should also be simplified to take advantage of judicial personnel and streamlined to be more appropriately managed. We should have a single level of trial courts -- no more municipal courts, district courts or the like. We should have a superior court to handle all types of trials, with a presiding judge in each county, elected by the judges, to manage the court system. This judge should have the power to manage the caseload, to move the judges physically and by case type to where they are needed. In my view, all fulltime municipal court judges, and district court judges should become superior court judges if a county opts into the reformed system. This would provide additional judges needed to resolve disputes. But, each year, we must also ask for the actual number of judges necessary to do the job of the courts.

If a single level of trial courts is not adopted, the Washington Supreme Court should promulgate rules defining what constitutes a court in Washington. We will also audit the fiscal practices of the courts of limited jurisdiction. Courts are not revenue bureaus. We have a constitutional duty to ensure that courts are independent and impartial.

Our own process should not be exempt from review. The courts must adopt rules to streamline the process of dispute resolution. Archaic evidentiary and discovery rules that permit lawyers to needlessly add expense to dispute resolution must be changed to simplify and expedite dispute resolution.

We must employ technology more creatively in the Washington court system. There is no need for us to use court reporters, for example, when the court record can be developed by audio or videotape. We can use video technology for arraignment of defendants and for the testimony of many witnesses. Courts should be accessible on-line so that people can argue cases on the Internet. Records should be stored in electronic form and materials should be provided for the court in electronic format. Briefs should be filed on disk so that our system can handle the technology readily. We can achieve substantial streamlining and cost savings by improving the technology of the court system.

Finally, we must not overlook the issue of access to the court system. At present, too many low income people do not have the benefit of legal assistance. We should encourage courthouse facilitators and provision of legal aid to low income people in our State. We should further expand non-lawyer practice to make available legal information and assistance to people in our State who otherwise would not seek the services of expensive lawyers. By our technological changes, we can improve access to the law for citizens by making forms and information available to them on the Net. We need to provide additional monies to public defense organizations, locally and at the State level, to appropriately represent low income people in criminal cases.

People may be shocked at my assertion that our judicial system is in a state of crisis. It is. The men and women of Washington's judiciary have been willing over the last many years to shoulder much of the responsibility for dealing with increased workloads and caseloads in the system. They have done so without needed additional personnel and proper funding. They have done so at the expense of the disappearance of Washington's civil jurisdiction for many of the courts in Washington. This cannot go on.

The judiciary is a coordinate constitutional branch of Washington's government. It is a quieter branch of government in many respects than either of the other more partisan branches. But justice is fundamental. We need the necessary personnel and financial support for the judicial branch of government to properly exercise its constitutional duties. The judiciary has an equivalent obligation to organize itself in such a fashion as to take maximum benefit of managerial principles and technological support to efficiently accomplish its core mission of dispute resolution and upholding of constitutional liberties.

We are at a significant crossroads as the milestone of Y2K looms. Can we fulfill the constitutional duties of an independent and impartial judiciary that resolves disputes and upholds individual liberties in our State? We can if the judiciary, the Governor, the Legislature, local governments, the Bar Association, and the public join together to make needed reforms in our judicial system to properly organize and fund judicial services for the 21st century. I trust we will do the right thing.