County Budgets and the Crisis in Our Courts

by Bob Ferguson

Across the state of Washington, counties are grappling with significant budget challenges. The cuts in court services experienced this year will slow the administration of justice across the state, and unless lawmakers in the current session of the state Legislature fix the antiquated revenue structure that supports counties, the state's local courts will soon be unrecognizable.

Statewide, local leaders are struggling to balance budgets. King County faced a $93 million general fund shortfall for 2009. Snohomish County laid off 160 workers to close its $21 million gap. Clark County dialed back services to 1980 levels, and Pierce County dipped into its reserves to close its budget shortfall.

Last fall, I served on the King County Council's budget leadership team, the bipartisan group charged with crafting the council's budget. It was my third consecutive year in this role, and easily the most difficult. No choice was a good one: whether to shut down public health clinics, lay off sheriff's deputies, fund food banks, or pay for tuberculosis control.

As a lawyer, I was particularly troubled with the tough tradeoffs that confronted our county's legal system. Competing for funds with other core government functions, such as elections, the sheriff, and the jail, meant that every element of our justice system — from Superior Court to District Court, public defense to the prosecuting attorney — took significant cuts in 2009.

Our courts will feel the impact. Processing delays will become more common. Public defense attorneys will have a mountain of cases and mere minutes to spend with their clients. Judges will have fewer resources to review cases, and prosecutors less time for investigations. All of us will be affected, including those who do not practice in the courts every day. As members of the Washington State Bar, we all share a common interest in maintaining the integrity of the justice system.

This article explores some of the reasons for the budget crisis, how the courts are affected, and how we might avert a long-term crisis.

Why are county budgets in crisis?

For most counties, the epicenter of the budget crisis is the general fund, which constitutes the main source of dollars for core government services, including the sheriff, courts, jails, elections, public health, and human services. For counties, the sales tax and the property tax make up the two pillars of general fund revenue. Both have budgetary flaws:

• Property tax. State Initiative 747, adopted by voters and recently codified by the Legislature, caps property tax revenue growth at one percent plus taxes on new construction. Due to this artificial ceiling, property tax revenues are insufficient to keep up with the inflationary costs of doing business because fuel, health care, and other costs rise by nearly four to five percent annually. In recent years, the state's strong economy and the housing boom compensated by providing ample taxes from new construction.

• Sales tax. Sales tax revenue is directly linked to the health of the economy. As we have seen in the last several months, when times are tough, consumers reel in spending and sales tax revenues plummet. At the time this article was written, statewide revenues dropped below 2007 levels in 10 of the previous 11 months. In November alone, revenues were down nearly nine percent compared to the previous year.

While cities receive revenues from a variety of sources, including utility taxes and business and occupation taxes, counties must survive on a two-legged stool that is unsustainable. This structural funding gap and our weakening economy have helped create a perfect storm for county finances.

How are our courts affected?

For most counties, the bulk of general fund dollars are spent on criminal justice and public safety. When general fund revenues shrink, the criminal justice system is unavoidably impacted. For example, King County criminal justice agencies comprise more than 73 percent of general fund expenditures, with nearly 30 percent directly related to funding the courts. Consequently, it is not surprising that courts around the state are feeling the impact of budget cuts.

In Spokane County, the prosecutor's office, juvenile court, and district court all shed positions. Snohomish County cut nearly 10 percent of its prosecuting attorneys and changed filing standards to send more cases to municipal courts, passing the budgetary burden on to the cities.

In King County, we cut $3.6 million from Superior Court's budget and nearly $3 million from the prosecuting attorney's budget. Our elected judges and the prosecuting attorney took the lead in changing the way we do business in order to meet these reductions. Both District Court and Superior Court will be moving to paperless filings, saving the county millions of dollars in processing costs once fully implemented. District Court worked with the Prosecuting Attorney's Office to develop a new filing system for low-level felony drug cases, which will enable swifter justice and achieve cost savings. Additionally, Superior Court agreed to suspend new civil jury trials during the last weeks of January and February, saving jury-related costs for those periods.

However, even with these efficiencies, the cuts to our justice system were difficult. For example, the Prosecuting Attorney's Office cut 20 deputy prosecutors, and District Court cut approximately 12 clerical and professional staff positions. Moreover, Superior Court must process more than 10,000 felony cases and nearly 24,000 civil cases with 29 fewer positions. Undoubtedly, this will impair the administration of justice.

The budget process also raised a number of important policy questions regarding the courts:

1. Furloughs. In order to balance the 2009 budget, King County relied on labor savings achieved through a 10-day furlough. Approximately one day a month this year, county government will be shut down and employees will not be paid. A seemingly simple concept, the furlough created numerous implementation problems, particularly for the courts.

The state Constitution requires that Superior Court "shall always be open, except on non-judicial days," and state law dictates that the District Court "shall be open except on non-judicial days." Chief Justice Gerry Alexander of the Washington State Supreme Court concluded that county furlough days did not constitute non-judicial days. The courts must be open to process justice.

Similarly, prosecutors are required by state law to prosecute all felonies and unincorporated area misdemeanors. On furlough days, the Prosecuting Attorney's Office is required to handle rush filings and first appearance calendars.

To achieve the needed cost savings, the courts implemented the furloughs in ways that preserve access to justice, but help the county achieve savings. Because the courts cannot be closed on any given day, Superior Court will institute a rolling four-day furlough for its employees, with staff members selecting one day in each of the months of January, February, April, and October to be on unpaid furlough. The elimination of new civil jury trials during the last weeks of January and February will aid with this implementation. District Court will be open, but operate on a limited basis during the county's 10 furlough days. On these days, only the cities' calendars, jail calendars, emergency protection, and civil ex parte orders will be heard on a normal schedule.

2. Raising Fees. An alternative to making cuts is instituting fee increases to generate additional revenues. However, policymakers must weigh the impact of fees on the provision of justice. While charging those who use a service for the cost of that service makes good business sense, a public-good question arises if certain segments of the population cannot access the justice system due to insufficient funds, or if other segments of the population can pay a premium for faster justice.

In King County, we chose to implement a number of fees, including a $30 ex parte fee and new fees for family law facilitator services. These fees will raise significant revenue that will keep drug court, mental health court, and unified family court functioning.

3. Funding Discretionary Court Programs. The vast majority of our courts and court services are legally mandated. As a result, the few discretionary programs are subject to the chopping block during a budget crisis. Unfortunately, these are often programs that save King County dollars by helping our courts run more efficiently and achieving better outcomes. For example, the county's award-winning drug court serves more than 500 clients a year and reduces the recidivism rate by eight to 10 percent. The county's mental health court reduces jail usage by 90 percent among its graduates, and the family court services division of Superior Court provides judges with professional assistance in difficult family matters.

All three of these discretionary programs faced elimination this year. However, given the cost savings and improved outcomes they generate, the County Council chose to fully fund these programs in 2009 by cutting expenditures in other areas of the budget. In future years, however, it is not clear how these discretionary programs will be funded, which may in turn lead to higher jail and social services costs.

2010 and beyond

Even as the ink dries on county budgets for 2009, we must turn our attention to 2010 and beyond. The outlook is bleak. As the nation settles into a deepening recession, counties are predicting revenue shortfalls for the foreseeable future.

In King County, our latest forecasts show a $40.8 million shortfall in the general fund for 2010 and another $62.3 million short in 2011. Without a change in how counties are financed, the future is uncertain for our courts.

Counties have some potential options for expanding the general revenue base. For instance, each county has the authority to levy up to 3/10 of 1 cent in a sales tax for criminal justice purposes. The levy must be approved by the voters and the revenues are split with the cities located within the county based on population. However, current state law contains "non-supplantation" language requiring that these revenues be used only for expanded services. They cannot be used to fund the existing core of our justice system. While this option may provide relief, it worsens the reliance on sales-tax revenue. As such, counties must seek other tools from the state that address the long-term financial challenges. Of course, the state has its own budget challenges, so we are not asking for a blank check. Rather, we are requesting more tools in our tool box, including more revenue options and greater flexibility with some of the options we already possess.

I have faith that the legislative session will yield relief for county finances and provide funding options for our courts and justice system. If not, King County Superior Court Presiding Judge Bruce Hilyer may be right in predicting that we are headed for "a train wreck."(1) 

King County Councilmember Bob Ferguson is a graduate of New York University Law School. He clerked for Judges William Fremming Nielsen (U.S. District Court, Eastern District of Washington) and Myron H. Bright (8th Circuit Court of Appeals). He is now a litigation associate at K&L Gates. He was elected to the King County Council in 2003.  

NOTES
 1.  Ervin, Keith, "King County's budget passes, but more cuts are ahead next year as shortfalls are expected to grow," Seattle Times, November 25, 2008.

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http://www.wsba.org/media/publications/barnews/county+budgets.htm

Last Modified: Monday, February 02, 2009