President’s Corner > Funding Issues Facing the Courts and the Role of the WSBA

COLUMN

BY JUDGE BRIAN TOLLEFSON (RET.)

Sometimes current events give me inspiration for a topic to write about in the President’s Corner of the Bar News. My writing last month was inspired, in part, by a belief that some American institutions are becoming unfriendly to the principle of freedom of expression.11 See, e.g., www.thefire.org

This month my inspiration comes from our state Supreme Court and what pursuits the Supreme Court allows the WSBA to engage in. The activities of your WSBA are ultimately controlled by court rules promulgated by the Washington Supreme Court—GR 12 and its subparts to be precise.

The Supreme Court allows the WSBA to pursue 23 specific activities.22 Here is the complete list of permitted activities: GR 12.2(b) Specific Activities Authorized. In pursuit of these purposes, the Washington State Bar Association may: (1) Sponsor and maintain committees and sections whose activities further these purposes; (2) Support the judiciary in maintaining the integrity and fiscal stability of an independent and effective judicial system; (3) Provide periodic reviews and recommendations concerning court rules and procedures; (4) Administer examinations and review applicants’ character and fitness to practice law; (5) Inform and advise its members regarding their ethical obligations; (6) Administer an effective system of discipline of its members, including receiving and investigating complaints of misconduct by legal professionals, taking and recommending appropriate punitive and remedial measures, and diverting less serious misconduct to alternatives outside the formal discipline system; (7) Maintain a program, pursuant to court rule, requiring members to submit fee disputes to arbitration; (8) Maintain a program for mediation of disputes between members and others; (9) Maintain a program for legal professional practice assistance; (10) Sponsor, conduct, and assist in producing programs and products of continuing legal education; (11) Maintain a system for accrediting programs of continuing legal education; (12) Conduct examinations of legal professionals’ trust accounts; (13) Maintain a fund for client protection in accordance with the Admission and Practice Rules; (14) Maintain a program for the aid and rehabilitation of impaired members; (15) Disseminate information about the organization’s activities, interests, and positions; (16) Monitor, report on, and advise public officials about matters of interest to the organization and the legal profession; (17) Maintain a legislative presence to inform members of new and proposed laws and to inform public officials about the organization’s positions and concerns; (18) Encourage public service by members and support programs providing legal services to those in need; (19) Maintain and foster programs of public information and education about the law and the legal system; (20) Provide, sponsor, and participate in services to its members; (21) Hire and retain employees to facilitate and support its mission, purposes, and activities, including in the organization’s discretion, authorizing collective bargaining; (22) Establish the amount of all license, application, investigation, and other related fees, as well as charges for services provided by the Washington State Bar Association, and collect, allocate, invest, and disburse funds so that its mission, purposes, and activities may be effectively and efficiently discharged. The amount of any license fee is subject to review by the Supreme Court for reasonableness and may be modified by order of the Court if the Court determines that it is not reasonable; (23) Administer Supreme-Court-created boards in accordance with General Rule 12.3.

If you study the WSBA closely, I believe that you could put a check mark, indicating that the WSBA is achieving the specified activity, next to most of the enumerated and allowed activities. However, there are some omissions and this month I want to explore one of them.

In GR 12.2(b)(2), number two on the list of 23, the Supreme Court has authorized the WSBA to “support the judiciary in maintaining the integrity and fiscal stability of an independent and effective judicial system.” This is a very important subject matter that your WSBA and its Board of Governors should direct its attention to moving forward. The funding issues facing our courts, especially those funding issues faced by our trial courts (superior, district, and municipal), are almost identical to those that our judiciary has faced for decades. Let me explain.

The state and local courts in Washington derive their funding from a variety of sources. The Supreme Court and Court of Appeals are almost exclusively funded by the Washington State Legislature.33 See Washington Courts website: How Courts are Financed, www.courts.wa.gov/newsinfo/resources/?fa=newsinfo_jury.display&altMenu=Citi&folderID=jury_guide&fileID=financed (last viewed June 15, 2022).

It is a much different funding arrangement for Washington’s superior, district, and municipal courts. Those trial courts derive most of their funding from county and municipal sources and, to some extent, federal and state grants of one form or another. Some revenue from fines and fees those courts generate also remains at the local level. The Washington State Courts website has this to say about trial court funding:

Though local governments finance the major portion of the state’s judicial system, during recent years those expenditures have represented only six percent of all funds spent by local governments. Local funds support the cost of court administration, juries, local law libraries, court facilities, civil process services and witness expenses.44 Id.

We all know that the courts are a separate, coequal, and independent branch of government. However, in many ways, courts are less well funded than the other two branches of government.55 See “Funding our courts: Finding a balance,” www.courts.wa.gov/programs_orgs/pos_jea/?fa=pos_jea.article1. Part of the frustrations with court congestion and delays are directly related to the level of local funding courts receive.66 See “Discount Justice: State Court Belt-Tightening in an Era of Fiscal Austerity,” RAND Corporation (2017) www.rand.org/pubs/conf_proceedings/CF343.html (last viewed June 15, 2022). Another evident example is the less-than-optimal security conditions that many judges and their staff must work in.77 See “Washington State County Courthouse Security Report 2018,” presented by the Washington Superior Court Judges’ Association, www.courts.wa.gov/content/publicUpload/Reports/Courthouse_Security_Report-2018.pdf (last viewed June 15, 2022). This year, the AOC sought a supplemental budget from the Washington State Legislature to ensure that by the year 2025, all courthouses meet the minimum security standards set forth in General Rule 36 (GR 36), Trial Court Security.

This is all in part because courts have no revenue-generating powers apart from the imposition of court fees and fines as mentioned above.88 See, e.g., Martin, K. “LAW, MONEY, PEOPLE: Insights From a Brief History of Court Funding Concerns,” UCLA Criminal Justice Law Review 4(1), pp. 213-26 (2020). And, in recent years, there has been a recognition that using fines and fees to generate revenue imposes an unfair and disproportionate burden on people with low incomes and those from marginalized communities.99 Id. And see “2021: How Gender And Race Affect Justice Now,” GENDER AND JUSTICE COMMISSION, www.courts.wa.gov/subsite/gjc/documents/2021_Gender_Justice_Study_Report.pdf.

Over the years, the Washington Supreme Court has undertaken studies of court funding issues.1010 See “The Court Funding Crisis In Washington State,” Board For Judicial Administration Court Funding Task Force December 2004. Two of the more notable efforts were the Court Funding Task Force, created in 2002,1111 www.courts.wa.gov/programs_orgs/pos_bja/?fa=pos_bja.funding. and more recently, the Court Recovery Task Force of 2020-22. The later task force focused on court operational impacts from the COVID-19 pandemic.1212 www.courts.wa.gov/programs_orgs/pos_bja/?fa=pos_bja.courtRecoveryTF

To put the funding arrangements in context, these studies often compared how Washington funds its courts with how other states handle court funding. Those comparisons usually demonstrate that Washington state is near the bottom of the list for support of courts by a state legislature.1313 See note 6. The report by the Washington Superior Court Judges Association cited earlier summarized court funding in Washington as follows:

According to the Bureau of Justice Statistics, Washington State ranked 50 out of 50 in state funding for trial courts in 2012, and little has changed since. Because of the general absence of state funding for trial courts, superior courts rely almost exclusively on county funds for critical operations. In 2005, the Washington State Legislature passed E2SSB 5454 to relieve counties from this heavy financial burden, to improve access to justice, and to provide adequate trial court funding. However, in 2015, more than 80 percent of trial court costs and services were still funded by the local counties and cities [citations omitted].

At least one Washington court funding report pointed out the positive nature of local funding this way:

Many judges enjoy positive relationships with county commissioners and other executive branch officials—a professional, quality-of-life feature they could lose if their funding authority moved to Olympia. Overall, judges and administrators feel local funding is a healthy circumstance, one that allows their courts to better respond to unique, local situations.1414 See “1996 — Report of the Courts of Washington,” www.courts.wa.gov/newsinfo/index.cfm?fa=newsinfo.displayContent&theFile=content/annualReports/annual96#A2

I have been an observer of and participant in this funding conundrum for over a quarter of a century. From my experience and observations, if local government officials have a good relationship with the local judiciary, then maybe the local funding is good. But if the local government officials do not have a good relationship with the local judiciary, then maybe the funding is not so good. This seems like an inadequate way to approach court funding, but it is the reality I both experienced and observed.

The WSBA has all sorts of task forces and councils to study many different issues facing our justice system.1515 www.wsba.org/connect-serve/committees-boards-other-groups However, to my knowledge, the WSBA has not created a task force to study court funding issues. Yet legal professionals, especially those who practice regularly in Washington’s courtrooms, are greatly affected by the patchwork court funding in this state. Their perspective on how courts are funded as it pertains to access to justice, court congestion and delay, and court security should be very illuminating.  

Accordingly, I would like to immediately propose that the WSBA create its own Court Funding Task Force to focus on “maintaining the integrity and fiscal stability of an independent and effective judicial system.” This will be a very exciting and necessary opportunity for the WSBA to make a difference in providing recommendations for long-term court funding solutions.  


SIDEBAR

In May 2020, Washington’s Court Recovery Task Force was created to assess court impacts from COVID-19. At the time of this publication, I learned that the Task Force had just released its final report entitled “Re-Imagining Our Courts: Pandemic Response and Recovery Lead Courts Into the Future,” and is available at www.courts.wa.gov.

About the author

Judge Brian Tollefson (Ret.) is a principal at Black Robe Dispute Resolution Services, PLLC. He can be reached at:

NOTES

1. See, e.g., www.thefire.org

2. Here is the complete list of permitted activities:

GR 12.2(b) Specific Activities Authorized. In pursuit of these purposes, the Washington State Bar Association may: (1) Sponsor and maintain committees and sections whose activities further these purposes; (2) Support the judiciary in maintaining the integrity and fiscal stability of an independent and effective judicial system; (3) Provide periodic reviews and recommendations concerning court rules and procedures; (4) Administer examinations and review applicants’ character and fitness to practice law; (5) Inform and advise its members regarding their ethical obligations; (6) Administer an effective system of discipline of its members, including receiving and investigating complaints of misconduct by legal professionals, taking and recommending appropriate punitive and remedial measures, and diverting less serious misconduct to alternatives outside the formal discipline system; (7) Maintain a program, pursuant to court rule, requiring members to submit fee disputes to arbitration; (8) Maintain a program for mediation of disputes between members and others; (9) Maintain a program for legal professional practice assistance; (10) Sponsor, conduct, and assist in producing programs and products of continuing legal education; (11) Maintain a system for accrediting programs of continuing legal education; (12) Conduct examinations of legal professionals’ trust accounts; (13) Maintain a fund for client protection in accordance with the Admission and Practice Rules; (14) Maintain a program for the aid and rehabilitation of impaired members; (15) Disseminate information about the organization’s activities, interests, and positions; (16) Monitor, report on, and advise public officials about matters of interest to the organization and the legal profession; (17) Maintain a legislative presence to inform members of new and proposed laws and to inform public officials about the organization’s positions and concerns; (18) Encourage public service by members and support programs providing legal services to those in need; (19) Maintain and foster programs of public information and education about the law and the legal system; (20) Provide, sponsor, and participate in services to its members; (21) Hire and retain employees to facilitate and support its mission, purposes, and activities, including in the organization’s discretion, authorizing collective bargaining; (22) Establish the amount of all license, application, investigation, and other related fees, as well as charges for services provided by the Washington State Bar Association, and collect, allocate, invest, and disburse funds so that its mission, purposes, and activities may be effectively and efficiently discharged. The amount of any license fee is subject to review by the Supreme Court for reasonableness and may be modified by order of the Court if the Court determines that it is not reasonable; (23) Administer Supreme-Court-created boards in accordance with General Rule 12.3.

3. See Washington Courts website: How Courts are Financed, www.courts.wa.gov/newsinfo/resources/?fa=newsinfo_jury.display&altMenu=Citi&folderID=jury_guide&fileID=financed (last viewed June 15, 2022).

4. Id.

5. See “Funding our courts: Finding a balance,” www.courts.wa.gov/programs_orgs/pos_jea/?fa=pos_jea.article1

6. See “Discount Justice: State Court Belt-Tightening in an Era of Fiscal Austerity,” RAND Corporation (2017) www.rand.org/pubs/conf_proceedings/CF343.html (last viewed June 15, 2022).

7. See “Washington State County Courthouse Security Report 2018,” presented by the Washington Superior Court Judges’ Association, www.courts.wa.gov/content/publicUpload/Reports/Courthouse_Security_Report-2018.pdf (last viewed June 15, 2022). This year, the AOC sought a supplemental budget from the Washington State Legislature to ensure that by the year 2025, all courthouses meet the minimum security standards set forth in General Rule 36 (GR 36), Trial Court Security.

8. See, e.g., Martin, K. “LAW, MONEY, PEOPLE: Insights From a Brief History of Court Funding Concerns,” UCLA Criminal Justice Law Review 4(1), pp. 213-26 (2020).

9. Id. And see “2021: How Gender And Race Affect Justice Now,” GENDER AND JUSTICE COMMISSION, www.courts.wa.gov/subsite/gjc/documents/2021_Gender_Justice_Study_Report.pdf.

10. See “The Court Funding Crisis In Washington State,” Board For Judicial Administration Court Funding Task Force December 2004. 

11. www.courts.wa.gov/programs_orgs/pos_bja/?fa=pos_bja.funding.

12. www.courts.wa.gov/programs_orgs/pos_bja/?fa=pos_bja.courtRecoveryTF

13. See note 6.

14. See “1996 — Report of the Courts of Washington,” www.courts.wa.gov/newsinfo/index.cfm?fa=newsinfo.displayContent&theFile=content/annualReports/annual96#A2

15. www.wsba.org/connect-serve/committees-boards-other-groups

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