Court Funding - Plaintiff's Opposition to State's Motion to Dismiss by The Stritmatter Firm

HONORABLE KRISTIN RICHARDSON Noted for Oral Argument Hearing Date: Sept. 10, 2021 Hearing Time: 11:00 a.m.

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IN THE SUPERIOR COURT OF WASHINGTON FOR KING COUNTY JENNIFER RALSTON, CALEB MCNAMARA AND THE ESTATE OF MCNAMARA; BRAEDEN SIMON, ABIE EKENEZER, JESSE HUGHEY, TIM KAUCHUK, JORDAN PICKETT, DANIEL PIERCE, SEAN SWANSON, JOEY WIESER, QUINN ZOSCHKE, JEFF CUSHMAN,

NO. 21-2-06462-7 SEA PLAINTIFFS’ OPPOSITION TO DEFENDANT STATE OF WASHINGTON’S MOTION TO DISMISS

Plaintiffs, v. STATE OF WASHINGTON, a governmental entity, Defendants.

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PLAINTIFFS’ OPP. TO STATE’S MOTION TO DISMISS - 1

STRITMATTER KESSLER KOEHLER MOORE 3600 15 Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777 th

TABLE OF CONTENTS

1 2

INTRODUCTION AND RELIEF REQUESTED ............................................................... 7

II.

PLAINTIFFS’ COUNTER-STATEMENT OF FACTS ................................................... 10

4 5 6

Washington Courts are facing unnecessary delays in trying civil cases due to inadequate funding ……………………………………………………………...10

The delays Plaintiffs suffer are far more than modest continuances. ................... 10

Overview of judicial funding in the State of Washington. ................................... 11

Traditionally, the counties were responsible for providing one half of a superior court judge’s salary, plus the cost of facilities and support staff. 11

Initiative 62 enacted by the voters of this state in 1979 placed the burden of funding new judgeships and the administrative costs associated with new judgeships entirely on the State. ........................................................ 12

The State eviscerated the effect of Initiative 62 on court funding by forcing a “poison pill” on counties where new judgeships are created. ............... 12

9 10 11 12 13 14

III.

COUNTERSTATEMENT STATEMENT OF ISSUES .................................................... 13

IV.

EVIDENCE RELIED UPON ............................................................................................ 13

AUTHORITY AND ARGUMENT ................................................................................... 14

The bar for granting a CR 12 (b)(6) Motion to Dismiss is extremely high and such motions should be granted sparingly and with care. ............................................. 14

Plaintiffs have standing to bring this lawsuit. ....................................................... 14

Plaintiffs are within the zone of interest. .................................................. 16

Plaintiffs have suffered a cognizable injury.............................................. 19

Plaintiffs also meet the UJDA’s standards for standing. .......................... 20

Plaintiffs also have standing because this is a matter of substantial public interest. ...................................................................................................... 20

19 20 21 22 23 24

Plaintiffs plead a legitimate cause of action. ........................................................ 21 1.

The Legislature has a mandatory constitutional duty to adequately fund our courts. ................................................................................................. 22

Washington courts have the inherent authority to assure adequately funded courts as a function of separation of powers. ............................................ 26

PLAINTIFFS’ OPP. TO STATE’S MOTION TO DISMISS - 2

STRITMATTER KESSLER KOEHLER MOORE 3600 15 Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777 th

The State misunderstands the fundamental guarantee that justice be administered openly and without unnecessary delay. ............................... 27

Unnecessary delays also implicate the right of trial by Jury. ................... 28

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VI.

There is a systemic funding crisis in our court system that cannot be remedied by motions made by individual litigants in separate civil proceedings. .................... 30

CONCLUSION .................................................................................................................. 31

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TABLE OF AUTHORITIES Cases Argersinger v. Hamlin, 407 U.S. 25 (1972).................................................................................. 22 Barnum v. State, 72 Wn.2d 928, 435 P.2d 678 (1967).............................................................. 14 Berge v. Gorton, 88 Wn.2d 756, 567 P.2d 187 (1977) ................................................................. 20

Bounds v. Smith, 430 U.S. 817 (1977), abrogated on other grounds by Lewis v. Casey, 518 U.S. 343 (1996) ................................................................................................................................. 22

Brown v. MacPherson’s, Inc., 86 Wn.2d 293, 545 P.2d 13 (1975) .............................................. 14

Cathcart-Maltby-Clearview Comm’ty Coun. v. Snohomish Cy., 96 Wn.2d 201, 634 P.2d 853 (1981) ........................................................................................................................................ 21

15 16

City of Burlington v. Washington State Liquor Control Bd., 187. Wn. App. 853, 351 P.3d 875 (2015) ........................................................................................................................................ 19

City of Fircrest v. Jensen, 158 Wn.2d 384, 143 P.3d 776, 781 (2006)......................................... 17

City of Seattle, Seattle Police Dep’t v. Seattle Police Officers’ Guild, 17 Wn. App. 2d 21, 484 P.3d 485 (2021)......................................................................................................................... 25

19 20

Commonwealth ex rel. Carroll v. Tate, 274 A.2d 193 (Pa.), cert. denied sub nom. Tate v. Pennsylvania ex rel. Jamieson, 402 U.S. 974 (1971) ................................................................. 8

Dillon v. Seattle Deposition Reps., LLC, 179 Wn. App. 41, 316 P.3d 1119 (2014) ..................... 26

Doe v. Puget Sound Blood Ctr., 117 Wn.2d 772, 819 P.2d 370 (1991) ....................................... 16

Farris v. Munro, 99 Wn.2d 326, 662 P.2d 821 (1983) ........................................................... 15, 16

PLAINTIFFS’ OPP. TO STATE’S MOTION TO DISMISS - 3

STRITMATTER KESSLER KOEHLER MOORE 3600 15 Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777 th

First Covenant Church of Seattle v. City of Seattle, 120 Wn.2d 203, 840 P.2d 174 (1992) ........ 29

Friends of N. Spokane Cty. Parks v. Spokane Cnty., 184 Wn. App. 105, 336 P.3d 632 (2014) .. 15

Gideon v. Wainwright, 372 U.S. 335 (1963) ................................................................................ 22

Grant Cnty. Fire Prot. Dist. No. 5 v. City of Moses Lake, 150 Wn.2d 791, 83 P.3d 419 (2004) .................................................................................................................................. 16, 21

5 6 7 8

Hale v. Wellpinit Sch. Dist. No. 49, 165 Wn.2d 494, 198 P.3d 1021 (2009)................................ 26 Hoffer v. State, 110 Wn.2d 415, 755 P.2d 781 (1988) .................................................................... 9 I.N.S. v. Chadha, 462 U.S. 919 (1983) ......................................................................................... 17

In re Custody of Smith, 137 Wn.2d 1, 969 P.2d 21 (1998), aff’d sub nom. Troxel v. Granville, 530 U.S. 57 (2000) .................................................................................................................... 29

In re Det. of Reyes, 176 Wn. App. 821, 315 P.3d 532 (2013) ...................................................... 27

In the Matter of Salary of Juvenile Dir., 87 Wn.2d 232, 552 P.2d 163 (1976) ............ 8, 18, 19, 26

Jackson v. Quality Loan Serv. Corp., 186 Wn. App. 838, 347 P.3d 487 (2015) .......................... 20

Judges for the Third Jud. Cir. v. Cnty. of Wayne, 190 N.W.2d 228 (Mich. 1971) ......................... 8

King v. King, 162 Wn.2d 378, 174 P.3d 659 (2007) .................................................................... 28

Ladenburg v. Henke, 197 Wn.2d 645, 486 P.3d 866 (2021) ........................................................ 24

Lane v. City of Seattle, 164 Wn.2d 875, 194 P.3d 977 (2008) ..................................................... 17

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)..................................................................... 28

Marchioro v. Chaney, 90 Wn.2d 298, 582 P.2d 487 (1978)..................................................... 16

McCleary v. State, 173 Wn.2d 477, 269 P.3d 227 (2012) ................................................ 22, 23, 24

Nelson v. Appleway Chevrolet, Inc., 160 Wn.2d 173, 157 P.3d 847 (2007) .......................... 15, 20

NLRB v. Noel Canning, 573 U.S. 513 (2014) ............................................................................... 18

O’Coin’s, Inc. v. Treasurer, 287 N.E.2d 608 (Mass. 1972) ........................................................... 8

Orwick v. City of Seattle, 103 Wn.2d 249, 692 P.2d 793 (1984) .................................. 9, 13, 14, 20

PLAINTIFFS’ OPP. TO STATE’S MOTION TO DISMISS - 4

STRITMATTER KESSLER KOEHLER MOORE 3600 15 Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777 th

Putman v. Wenatchee Valley Med. Ctr., P.S., 166 Wn.2d 974, 216 P.3d 374 (2009) ...... 16, 27, 28

Reid v. Pierce Cnty., 136 Wn.2d 195, 961 P.2d 333 (1998) ......................................................... 14

Rocha v. King Cty., 195 Wn.2d 412, 460 P.3d 624 (2020)........................................................... 19

Salary of Superior Ct. Judges, 82 Wash. 623, 144 P. 929 (1914) .......................................... 11, 24

Save a Valuable Env’t (SAVE) v. City of Bothell, 89 Wn.2d 862, 576 P.2d 401 (1978) .............. 19

Seattle Sch. Dist. No. 1 of King Cty. v. State, 90 Wn.2d 476, 585 P.2d 71 (1978)................. 18, 23

Seattle v. State, 100 Wn.2d 16, 666 P.2d 351 (1983) .............................................................. 12

Sofie v. Fibreboard Corp., 112 Wn.2d 636, 771 P.2d 711 (1989) ................................... 17, 28, 29

State ex rel. Dyer v. Twichell, 4 Wash. 715, 31 P. 19 (1892) . 24State ex rel. Weinstein v. St. Louis Cnty., 451 S.W.2d 99 (Mo. 1970) ............................................................................................... 8

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State v. Easterling, 157. Wn.2d 167, 137 P.3d 825 (2006) .......................................................... 29 State v. Howard, 106 Wn.2d 39, 772 P.2d 783 (1985)............................................................... 12 State v. Krantz, 24 Wn.2d 350, 164 P.2d 453 (1945) ................................................................... 29 State v. Moreno, 147 Wn.2d 500, 58 P.3d 265 (2002) ................................................................. 17 State v. Williams, 29. Wn. App. 86, 627 P.2d 581 (1981) ............................................................ 23 Tacoma v. State, 117 Wn.2d 348, 816 P.2d 7 (1991) .................................................................... 12 Washington Natural Gas Co. v. PUD 1, 77 Wn.2d 94, 459 P.2d 633 (1969) .............................. 16 Washington State Hous. Fin. Comm’n v. Nat’l Homebuyers Fund, Inc., 193 Wn.2d 704, 445 P.3d 533 (2019).................................................................................................................. 15 Wayne Circuit Judges v. Wayne County, 172 N.W.2d 436 (Mich. 1969), modified on other grounds, 190 N.W.2d 228 (Mich. 1971)................................................................................... 26 Williams v. Pennsylvania, 136 S. Ct. 1899 (2016) ....................................................................... 27 Yelle v. Bishop, 55 Wn.2d 286, 347 P.2d 1081 (1959) ................................................................. 23 Zylstra v. Piva, 85 Wn.2d 743, 539 P. 2d 823 (1975) .............................................................. 8, 26

PLAINTIFFS’ OPP. TO STATE’S MOTION TO DISMISS - 5

STRITMATTER KESSLER KOEHLER MOORE 3600 15 Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777 th

Statutes

RCW 2.08.061 .............................................................................................................................. 13

RCW 2.08.062 .............................................................................................................................. 13

RCW 2.08.065 .............................................................................................................................. 13

RCW 2.28.139 .............................................................................................................................. 11

RCW 43.135.060 .......................................................................................................................... 12

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Other Authorities AGO 1980 No. 3 (Jan 17, 1980) ................................................................................................... 12 The Judges v. the State: Obtaining Adequate Judicial Compensation and New York’s Current Constitutional Crisis, 72 Alb. L. Rev. 191 (2009)...................................................................... 8

Rules

CR 12(b)(6) ................................................................................................................... 9, 13, 14, 32 CR 23(b)(3) ................................................................................................................................... 25 CR 38 ............................................................................................................................................ 28 CR 8(a) .......................................................................................................................................... 18 ER 201(b)(2) ................................................................................................................................. 20

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Constitutional Provisions Wa. Const. art. I, § 1 ..................................................................................................................... 17 Wa. Const. art. I, § 10 ..................................................................................................... 7, 9, 16, 28 Wa. Const. art. I, § 21 ......................................................................................................... 9, 16, 28 Wa. Const. art. I, § 4 ................................................................................................................. 9, 26 Wa. Const. art. IV, § 1 ............................................................................................................ 18, 22 Wa. Const. art. IV, § 13 .......................................................................................................... 11, 23 Wa. Const. art. IV, § 9 .................................................................................................................. 24 Wa. Const. art. IX, § 1 ............................................................................................................ 22, 24

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PLAINTIFFS’ OPP. TO STATE’S MOTION TO DISMISS - 6

STRITMATTER KESSLER KOEHLER MOORE 3600 15 Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777 th

INTRODUCTION AND RELIEF REQUESTED

Washington courts are in crisis because they lack adequate funding to properly fulfill their

constitutional mandate of administering “[j]ustice in all cases… without unnecessary delay.” Wa.

Const. art. I, § 10 (emphasis added). For years, different Chief Justices of our Supreme Court have

repeatedly sought to bring this crisis to the attention of the legislature. For example, Chief Justice

Barbara A. Madsen wrote in 2015 that “our courts continue to struggle with high caseloads,

reduced staff, old information systems, growing needs for interpreters, and inadequate structures.

Meeting the justice needs of the people of Washington requires adequate funding from the

legislature.” 1 “Justice matters, but the stark reality is that adequate funding is still the most severe

obstacle impeding fair, accessible and timely justice for the people of Washington.” 2 In 2005, Chief Justice Gerry Alexander specifically highlighted the impact of this funding

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crisis on civil trials, stating:

[T]oo many of our trial court jurisdictions are experiencing crowded court dockets which frequently results in the postponement of trials, particularly civil trials. In three of our four largest counties, the time to trial in civil cases is over twelve months. That, ladies and gentlemen, is too long for people to wait to have their disputes resolved. 3

The problems continue, but rather than address this crisis, the State straightens deck chairs

on the Titanic, pretending disaster is not at hand. Nowhere in its Motion does the State

acknowledge this plight. Instead, it argues that courts should just “resolve legal disputes and ‘say

what the law is.’” State Mot. Dismiss Am. Compl. (“State Mot.”) 1. However, our system of

checks and balances and inherent judicial power assures the judiciary has the wherewithal to

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2015 State of the Judiciary Chief Justice Barbara A. Madsen on behalf of the courts of Washington. January2015.pdf (wa.gov). 2 Id. at 15. 3 2005 State of the Judiciary, Chief Justice Gerry Alexander, January 2005 (courts.wa.gov). 1

PLAINTIFFS’ OPP. TO STATE’S MOTION TO DISMISS - 7

STRITMATTER KESSLER KOEHLER MOORE 3600 15 Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777 th

discharge its constitutional obligations and conduct the efficient administration of justice. In

“saying what the law is,” our Supreme Court has made clear it has the authority to require

necessary resources. See, e.g., Zylstra v. Piva, 85 Wn.2d 743, 748-49, 539 P. 2d 823 (1975); In the

Matter of Salary of Juvenile Dir., 87 Wn.2d 232, 245, 552 P.2d 163 (1976).

In denying the courts this authority, which the State’s Memorandum contradictorily

concedes elsewhere, see State Mot. 12-14, the State also erroneously claims that “[n]o court, in

Washington or otherwise, has ever countenanced such an inversion of foundational separation-of-

powers principles” that would allow the judiciary to compel necessary funding for itself. State

Mot. 1. Yet the Washington cases of Zylstra and Juvenile Dir., and a host of other state supreme

courts have reached the same conclusion as the Plaintiffs here. See, e.g., Commonwealth ex rel.

Carroll v. Tate, 274 A.2d 193 (Pa.), cert. denied sub nom. Tate v. Pennsylvania ex rel. Jamieson,

402 U.S. 974 (1971) (mandamus action to require appropriation of additional $5.2 million above

approved budget for Philadelphia courts); Judges for the Third Jud. Cir. v. Cnty. of Wayne, 190

N.W.2d 228 (Mich. 1971) (holding that judges can certify their needs and require counties to pay

it); O’Coin’s, Inc. v. Treasurer, 287 N.E.2d 608 (Mass. 1972) (action by store for payment after

judge ordered allocation from the state treasury); State ex rel. Weinstein v. St. Louis Cnty., 451

S.W.2d 99 (Mo. 1970) (original action in state supreme court sounding in quo warranto to permit

judge to hire and require county to compensate employees). 4

Plaintiffs’ allegations suffice to show that: 1) the current levels of judicial funding are

inadequate; 2) our judicial system is being held together by duct tape; 3) the lack of funding has

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In addition, New York’s chief judge sued the state’s governor over a $77 million cut in the judiciary’s budget request. Before the case reached decision, it settled for nearly the full amount of the governor’s cut. Justin S. Teff, The Judges v. the State: Obtaining Adequate Judicial Compensation and New York’s Current Constitutional Crisis, 72 Alb. L. Rev. 191, 194 (2009). 4

PLAINTIFFS’ OPP. TO STATE’S MOTION TO DISMISS - 8

STRITMATTER KESSLER KOEHLER MOORE 3600 15 Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777 th

adversely affected the availability of justice without unnecessary delay and the inviolate right to

trial by jury, as guaranteed by the Constitution. Wa. Const. art. I, §§ 10 & 21; and 4) that legislative

unwillingness to fund the courts adequately has caused serious separation of powers problems.

Because the Legislature has refused to address this funding crisis, Class Representatives

Jennifer Ralston, Caleb Mcnamara and the Estate Of Mcnamara; Braeden Simon, Abie Ekenezer,

Jesse Hughey, Tim Kauchuk, Jordan Pickett, Daniel Pierce, Sean Swanson, Joey Wieser, Quinn

Zoschke, and Jeff Cushman bring this class action lawsuit on behalf of all civil plaintiffs who have

been or will be injured as a consequence of not having their cases adequately handled by

underfunded courts .

The State’s CR 12(b)(6) motion to strike seeks to dismiss plaintiff’s complaint. The

Court’s inquiry is limited to determining whether “it appears beyond doubt that the plaintiff can

prove no set of facts, consistent with the complaint, which would entitle the plaintiff to relief.”

Orwick v. City of Seattle, 103 Wn.2d 249, 254, 692 P.2d 793, 797 (1984) (citation omitted). As

set forth below, the State fails to overcome this very forgiving standard for a motion that “should

be granted ‘sparingly and with care.’” Id. (citation omitted). Because the Court must assume the

allegations are true, it “may consider hypothetical facts supporting the plaintiff’s claims,” and only

dismiss “in the unusual case in which plaintiff includes allegations that show on the face of the

complaint that there is some insuperable bar to relief,” Hoffer v. State, 110 Wn.2d 415, 420, 755

P.2d 781 (1988) (citations omitted). The State’s Motion to Dismiss is ill-grounded and should be

denied.

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PLAINTIFFS’ OPP. TO STATE’S MOTION TO DISMISS - 9

STRITMATTER KESSLER KOEHLER MOORE 3600 15 Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777 th

II.

1 A.

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constitutional imperative – by providing a history of Supreme Court Justices asking… begging… for legislative funding. 5 The State cannot dispute the magnitude of disenfranchisement as described by the Courts over a period of decades. Instead, it narrows the scope of the complaint’s focus and charges that Plaintiffs are asking the Court to commandeer the Legislature’s funding decisions based on “modest delays” amid a global pandemic. While the COVID pandemic has made this crisis worse, Chief Justice Debra L. Stephens told the Legislature that “[e]ven before the pandemic, courts strained under the weight of growing caseloads and inadequate resources.” 6 Indeed, 20 years ago, Chief Justice Richard P. Guy made similar observations, warning that “[w]ithout change, our public court system will no longer be a place to resolve civil matters,” because of growing caseloads, inadequate funding, and a higher constitutional priority afforded criminal matters. 7

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Washington Courts are facing unnecessary delays in trying civil cases due to inadequate funding.

Plaintiffs’ Complaint documents in detail the courts’ lack of ability to meet its

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PLAINTIFFS’ COUNTER-STATEMENT OF FACTS

The delays Plaintiffs suffer are far more than modest continuances.

What the State deems “modest delays” fails to appreciate the full context of these cases. For example, the Ralston Plaintiffs filed their original complaint on August 31, 2015. Today, nearly six years after the case was filed, it awaits trial with no action taken by the court since

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Plaintiffs incorporate by refence the facts set forth in their Complaint as part of this memorandum. Chief Justice Debra L. Stephens’ January 2021 “State of the Judiciary” report to the Legislature at page 3 January2021.pdf (wa.gov). See also Washington Courts Commission on Justice, Efficiency and Accountability, “Funding our courts: Finding a balance,” https://www.courts.wa.gov/programs_orgs/pos_jea/?fa=pos_jea.article1 (stating, among other things, that “courts often receive an inadequate share of local public revenues,” personal security is “dangerously inadequate,” “[p]hysical facilities in many courts are inadequate,” and that “‘Doing more with less’ is not the answer.”). 7 https://www.courts.wa.gov/newsinfo/index.cfm?fa=newsinfo.displayContent&theFile=content/stateOfJudiciary/20 0001. 5 6

PLAINTIFFS’ OPP. TO STATE’S MOTION TO DISMISS - 10

STRITMATTER KESSLER KOEHLER MOORE 3600 15 Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777 th

October 30, 2020, when it issued an amended scheduling order and heard a motion to compel. Six-

year without a trial is not a “modest” delay. In fact, Chief Justice Gerry Alexander told the

Legislature he thought that delays over a year in a civil case were too long. 8 C.

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Overview of judicial funding in the State of Washington. Traditionally, the counties were responsible for providing one half of a superior court judge’s salary, plus the cost of facilities and support staff.

Article IV, Section 13 of our state constitution provides in part that “[o]ne-half of the salary of each of the superior court judges shall be paid by the state, and the other one-half by the county or counties for which [sic] he is elected.” Historically, under this provision, as well as under statute and case law, the counties provided one half of a superior court judge’s salary, plus the cost of facilities and support staff. RCW 2.28.139; 9 Salary of Superior Ct. Judges, 82 Wash. 623, 628, 144 P. 929 (1914) (the salaries of superior court judges “as fixed by the Constitution, or as it may be fixed by the Legislature, are to be paid one-half by the county for which they are elected and one-half by the state, and their equipment such as the places of holding courts, the clerks, bailiffs, and other assistants are furnished wholly by the counties.”). As discussed in Superior Ct. Judges, this arrangement goes back to a time when state government was skeletal, and most services were delivered at the county level.

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2005 State of the Judiciary, Chief Justice Gerry Alexander, January 2005 (courts.wa.gov). The statute states that “[t]he county in which the court is held shall furnish the courthouse, a jail or suitable place for confining prisoners, books for record, stationery, lights, wood, attendance, and other incidental expenses of the courthouse and court which are not paid by the United States.” 8 9

PLAINTIFFS’ OPP. TO STATE’S MOTION TO DISMISS - 11

STRITMATTER KESSLER KOEHLER MOORE 3600 15 Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777 th

Initiative 62 enacted by the voters of this state in 1979 placed the burden of funding new judgeships and the administrative costs associated with new judgeships entirely on the State.

This changed however in 1979 when the voters of Washington passed Initiative 62, codified

as RCW 43.135.060, 10 which attempted to curtail the legislature from imposing “unfunded

mandates” on the counties, including “increased levels of service,” unless “fully reimbursed” by

the State.

In an opinion dated January 17, 1980, AG Gordon opined that when the legislature

authorizes a new judicial position, it has “increased levels of service’’ within the meaning of the

statute and is required to reimburse that county for all resulting expenses, including any “increase

in both payroll and other court costs, not the least of which might well be a necessity for additional

courtrooms as well as added court personnel.” AGO 1980 No. 3 (Jan 17, 1980).

Our Supreme Court has cited the AG’s opinion several times with approval. See Seattle v.

State, 100 Wn.2d 16, 24, 666 P.2d 351 (1983) (“the Attorney General concluded that

reimbursement was required for the cost of new superior court judgeships added by the

Legislature” because “[t]he additional judges represented an additional service to the public.”);

see also State v. Howard, 106 Wn.2d 39, 43, 772 P.2d 783 (1985) (same); Tacoma v. State, 117

Wn.2d 348, 358, 816 P.2d 7 (1991) (same). 3.

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The State eviscerated the effect of Initiative 62 on court funding by forcing a “poison pill” on counties where new judgeships are created.

Despite RCW 43.135.060‘s clear language, the State has improperly eviscerated the statute with respect to the creation of new judicial offices by requiring counties to fund all expenses of

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RCW 43.135.060 originally stated that “[t]he legislature shall not impose responsibility for new programs or increased levels of service under existing programs on any taxing district unless the districts are reimbursed for the costs thereof by the state.” 10

PLAINTIFFS’ OPP. TO STATE’S MOTION TO DISMISS - 12

STRITMATTER KESSLER KOEHLER MOORE 3600 15 Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777 th

new judicial positions beyond the State’s one-half share of the new judge’s salary as a condition

precedent to approval of new judicial positions. See RCW 2.08.061 and the official note thereto

(1996 c 208 § 4). 11 This poison pill not only flies in the face of the people’s will in passing

Initiative 62, the AG’s opinion, and our Supreme Court, but it also places an additional financial

burden directly on the counties when they try to address backlogs in our trial courts by seeking

new judicial positions. III.

ISSUE ONE: Do the class representatives and putative class members in this case have

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standing to bring this action? ISSUE TWO: Does the Legislature have a mandatory duty under our State Constitution

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COUNTERSTATEMENT STATEMENT OF ISSUES

to adequately fund our courts?

ISSUE THREE: Do our courts have the inherent authority to require adequate funding?

ISSUE FOUR: Does the Legislature’s failure to adequately fund our courts violate the

doctrine of separation of powers because it unduly interferes with the judiciary’s ability to exercise

its constitutionally assigned powers, violate the constitutional mandate that “Justice in all cases

shall be administered openly, and without unnecessary delay,” and deny the inviolate right to trial

by jury? IV.

Plaintiffs rely on the factual allegations in their Complaint, which in a CR 12(b)(6) motion

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EVIDENCE RELIED UPON

are presumed to be true. Orwick v. Seattle, 103 Wn.2d 249, 254-55, 692 P.2d 793 (1984).

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Similar official notes for new judgeships are attached to RCW 2.08.062 (new judgeships in Clark, Kitsap, Kittitas, and Benton and Franklin counties); RCW 2.08.063 (Lincoln, Skagit, Walla Walla, Whitman, Yakima, Adams, and Whatcom counties); RCW 2.08.064 (Benton, Franklin, Clallam, Jefferson, Snohomish, Asotin, Columbia, Garfield, Cowlitz, Klickitat, and Skamania counties); RCW 2.08.065 (Grant, Ferry, Okanogan, Mason, Thurston, Pacific, Wahkiakum, Pend Oreille, Stevens, San Juan, and Island counties). PLAINTIFFS’ OPP. TO STATE’S MOTION TO DISMISS - 13

STRITMATTER KESSLER KOEHLER MOORE 3600 15 Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777 th

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AUTHORITY AND ARGUMENT

The bar for granting a CR 12(b)(6) Motion to Dismiss is extremely high and such motions should be granted sparingly and with care.

Our Supreme Court set an extremely high bar for granting a CR 12(b)(6) motion. “Dismissal for failure to state a claim may be granted only if ‘it appears beyond doubt that the plaintiff can prove no set of facts, consistent with the complaint, which would entitle the plaintiff relief.’” Orwick, 103 Wn.2d at 254. For this Motion, the Court must assume that all facts alleged in Plaintiffs Complaint are true. Orwick, 103 Wn.2d at 254; Barnum v. State, 72 Wn.2d 928, 929, 435 P.2d 678 (1967). All reasonable inferences from those allegations are also taken as true. Reid v. Pierce Cnty., 136 Wn.2d 195, 201, 961 P.2d 333 (1998). CR 12(b)(6) motions should be granted “sparingly and with care.” Orwick, 103 Wn.2d at 254-55. A trial court has a duty to examine the complaint to determine if the allegations provide for relief under any possible theory, ...and that “ ‘it is unnecessary to set out the legal theory upon which a claim is based.’ “ Orwick, 103 Wn.2d at 254 (emphasis added) (internal citations omitted). Any hypothetical situation conceivably raised by the Complaint, or hypothetical facts not part of the record defeats a CR 12(b)(6) motion if it is legally sufficient to support Plaintiffs’ claim. Brown v. MacPherson’s, Inc., 86 Wn.2d 293, 545 P.2d 13 (1975). In this case, the State fails to meet the “extremely high bar” required for granting a CR 12 (b)(6) Motion to Dismiss. B.

Plaintiffs have standing to bring this lawsuit.

The State claims that the Plaintiffs do not have standing but fails to point to any authority that would prohibit the Plaintiffs, on the basis of standing, from asking the Court to exercise its PLAINTIFFS’ OPP. TO STATE’S MOTION TO DISMISS - 14

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inherent authority to compel the Legislature to adequately fund Washington’s judicial system. If

carried to its logical end, the State could entirely defund the judicial system, causing the courts to

close, and no litigant or taxpayer would ever have standing to challenge such an action.

“Standing is a ‘party’s right to make a legal claim or seek judicial enforcement of a duty

or right.” Friends of N. Spokane Cty. Parks v. Spokane Cnty., 184 Wn. App. 105, 115, 336 P.3d

632 (2014). In a case like this brought pursuant to the Uniform Declaratory Judgments Act

(UDJA), RCW 7.24.020, affords standing to a party (1) within the zone of interest protected by

statute or constitutional provision and (2) who has suffered an “injury in fact, economic or

otherwise.” Nelson v. Appleway Chevrolet, Inc., 160 Wn.2d 173, 186, 157 P.3d 847 (2007)

(citation omitted); Washington State Hous. Fin. Comm’n v. Nat’l Homebuyers Fund, Inc., 193

Wn.2d 704, 711, 445 P.3d 533 (2019). In addition, the UDJA is available for justiciable

controversies, which require that four elements be met: “(1) parties must have existing and genuine

rights or interests; (2) these rights or interests must be direct and substantial; (3) the determination

will be a final judgment that extinguishes the dispute, and (4) the proceeding must be genuinely

adversarial in character.” Id. Notably, the UDJA is “liberally construed and administered,” RCW

7.24.120, and “standing is not intended to be a particularly high bar.” Washington State Hous. Fin.

Comm’n, 193 Wn.2d at 712.

In addition, our courts recognize public-interest standing, where a case presents “issues of

significant public interest that, by analogy to other decisions, allow this court to reach the merits.”

Farris v. Munro, 99 Wn.2d 326, 330, 662 P.2d 821 (1983). This variety of standing is available

“[w]here a controversy is of serious public importance and immediately affects substantial

segments of the population and its outcome will have a direct bearing on the commerce, finance,

labor, industry or agriculture generally,” and therefore supports the proposition that “questions of

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standing to maintain an action should be given less rigid and more liberal answer.” Id. (quoting

Washington Natural Gas Co. v. PUD 1, 77 Wn.2d 94, 96, 459 P.2d 633 (1969).

3 4

Regardless of the test applied, Plaintiffs have standing to bring this lawsuit. 1.

Plaintiffs are within the zone of interest.

A plaintiff must merely be “arguably within the zone of interests to be protected or

regulated by the statute or constitutional guarantee in question” to satisfy the first standing

requirement under the UDJA. Grant Cnty. Fire Prot. Dist. No. 5 v. City of Moses Lake, 150 Wn.2d

791, 802, 83 P.3d 419 (2004). Plaintiffs here plainly satisfy that requirement.

Article I, Section 10 of the Constitution, within our State’s Declaration of Rights,

guarantees that “[j]ustice in all cases shall be administered openly, and without unnecessary

delay.” It establishes that “people have a right of access to courts; indeed, it is ‘the bedrock

foundation upon which rest all the people’s rights and obligations.’” Putman v. Wenatchee Valley

Med. Ctr., P.S., 166 Wn.2d 974, 979, 216 P.3d 374 (2009) (quoting Doe v. Puget Sound Blood

Ctr., 117 Wn.2d 772, 780, 819 P.2d 370 (1991)). It is an individual right that “must be accorded a

high priority.” Doe v. Puget Sound Blood Ctr., 117 Wn.2d at 783. If the civil justice system is

plagued by “unnecessary delay,” as alleged here, it is hard to contemplate why plaintiffs suffering

from that delay lack standing to assert the right, as they have the necessary personal stake in the

issue that affords standing to raise the constitutional question. Marchioro v. Chaney, 90 Wn.2d

298, 303, 582 P.2d 487 (1978). Plaintiffs have pleaded a violation of the Open Courts guarantee

sufficient to place themselves within its zone of interest. Am. Compl. ¶¶ 7.1-7.4.

Plaintiffs have also asserted their inviolate jury-trial right under Article I, Section 21.

Unnecessary delay burdens that right by postponing the jury trial to some unknown time in the

future. The Supreme Court has told us that “‘[j]ustice delayed is justice denied’ is literally true for

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money,” because it “deprives [a plaintiff] of its productive use during that time.” Lane v. City of

Seattle, 164 Wn.2d 875, 888, 194 P.3d 977 (2008). Delaying jury trials affects the receipt of those

funds because Plaintiffs have invoked their jury-trial rights and the constitutional guarantee

“protect[s] the jury’s role of determining damages.” Sofie v. Fibreboard Corp., 112 Wn.2d 636,

646, 771 P.2d 711 (1989). Delay, then, postpones a determination of appropriate compensation for

Plaintiffs and deprives them of productive use during that lengthy interregnum.

In addition, plaintiffs who await a verdict so that insurance claims will be paid on their

behalf may lose their homes as the result of inordinate and sequential delays of their trials. Long

overdue and unpaid medical bills may force others into bankruptcy. The toll on plaintiffs unable

to proceed with their trials is a profound and disastrous occurrence in their already compromised

and vulnerable lives. The budgetary crisis within the judiciary impairs their right to a jury trial to

determine appropriate compensation and render a judgment, which places Plaintiffs squarely

within the zone of interest of this right. Am. Compl. ¶¶ 8.1-8.3.

Plaintiffs have also asserted that inadequate funding of the judiciary impairs its existence

as a co-equal branch, in violation of the constitutional guarantee of a separation of powers. Am.

Compl. ¶¶ 5.1-5.85. That constitutes a violation of separation of powers inherent in the structure

of our government, which assures that the “‘activity of one branch [does not] threaten[] the

independence or integrity or invades the prerogatives of another.’” City of Fircrest v. Jensen, 158

Wn.2d 384, 394, 143 P.3d 776, 781 (2006) (quoting State v. Moreno, 147 Wn.2d 500, 505-06, 58

P.3d 265 (2002)). Because “governments . . . are established to protect and maintain individual

rights,” Wa. Const. art. I, § 1, separation of powers serves to prevent arbitrary government actions,

I.N.S. v. Chadha, 462 U.S. 919, 951 (1983) (according an individual standing to challenge a one-

house veto of executive action), and “can serve to safeguard individual liberty.” NLRB v. Noel

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Canning, 573 U.S. 513, 525 (2014). When adversely affected by the violation of separation of

powers, as pleaded here, plaintiffs are plainly within its zone of interest.

The State denies that Plaintiffs fit within these zones of interests, because “only the

judiciary itself can seek such funding through litigation.” State Mot. 11. The State bases this

extraordinary statement on the observation in Juvenile Dir., that the judiciary has “inherent power

. . . to compel funding of its own functions,” i.e., “the basic needs of the[] courts as to equipment,

facilities and supporting personnel.” State Mot. 12-13. It then adds that private citizens cannot

wield judicial power, only courts. State Mot. 15 (citing Wa. Const. art. IV, § 1).

The State’s misguided argument conflates the bringing of a lawsuit with the exercise of

judicial power. If the State were correct, every lawsuit would improperly constitute the exercise of

judicial power, because it seeks a judicial resolution of a dispute. A pleading “sets forth a claim

for relief,” CR 8(a); it is not an exercise of judicial power. And, if Plaintiffs prevail, it will be the

courts, not Plaintiffs, who issue any relief.

The State does not point to anything in the Constitution, in Juvenile Dir., or elsewhere that

denies Plaintiffs their day in court to vindicate constitutional rights for an expeditious resolution

of their individual lawsuits, which they have adequately alleged is prevented by funding shortfalls.

The State’s various attempts to garner applicable case law fall woefully short. One consists of a

case it claims characterized Juvenile Dir. to hold that only the judiciary has standing to bring a

case that implicates funding of that branch. Deft. Mot. 17. Instead, the case merely states that

Juvenile Dir. established “a high standard of proof for [the courts] when exercising its inherent

power on its own behalf.” Seattle Sch. Dist. No. 1 of King Cty. v. State, 90 Wn.2d 476, 528, 585

P.2d 71 (1978). If anything, the cited passage suggests that the standard of proof might be less

rigorous when the courts exercise its inherent powers on someone else’s behalf.

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Another involves a case where potentially eligible jurors sought increased pay by asserting

that, during jury duty, they should be treated as employees for purposes of the minimum wage law

or whether a non-discrimination statute applicable to jurors provided them with a private cause of

action. State Mot. 17 (citing Rocha v. King Cty., 195 Wn.2d 412, 416, 460 P.3d 624 (2020)). When

the Supreme Court in that case was asked to exercise its inherent power to remedy the juror pay

issue, the Court did not say that a lawsuit seeking that relief was improper. Instead, it chose not to

“reach these arguments because they exceed the scope of this case, not having been raised in the

complaint or the courts below.” Rocha, 195 Wn.2d at 431. There is no support for the State’s novel

argument that individuals are divested from standing to vindicate their personal rights.

Plaintiffs have suffered a cognizable injury.

The Plaintiffs have suffered palpable injury from repeated delays to their day in court. The

test for whether there is a qualifying injury “is not meant to be a demanding requirement.” City of

Burlington v. Washington State Liquor Control Bd., 187. Wn. App. 853, 869, 351 P.3d 875, 882

(2015). Plaintiffs need only show that they were “specifically and perceptibly harmed” by the

challenged action. Save a Valuable Env’t (SAVE) v. City of Bothell, 89 Wn.2d 862, 866, 576 P.2d

401 (1978). Allegations of unreasonable delays resulting in harm suffices to satisfy the

requirement.

The State argues that Plaintiffs can only satisfy this requirement if they “allege that the

courts have been so underfunded that they are unable to ‘fulfill [their] duties.’” State Mot. 18

(quoting Juvenile Dir., 87 Wn.2d at 252)). Yet, that is precisely what Plaintiffs have alleged. Am.

Compl. at ¶¶ 1.5; 5.22-5.40. The State further claims that “Plaintiffs do not allege that a single

biennial budgetary request from the Chief Justice has recently gone unsatisfied by the Legislature.”

State Mot. 18. While that is not a necessary allegation to this action and is immaterial to Plaintiffs’

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claim that the enacted budgets are inadequate, the State’s argument is really just a challenge to the

facts as alleged by Plaintiffs and not grounds for dismissal because it does not support beyond a

reasonable doubt that Plaintiffs can “prove no set of facts, consistent with the complaint, which

would entitle the plaintiff relief.” Orwick, 103 Wn.2d at 254.

Plaintiffs do allege that Chief Justices have repeatedly asserted that the judiciary is

underfunded. Am. Compl ¶¶ 5.22-5.40. The judiciary’s website, subject to judicial notice, 12 also

details the continued underfunding of the courts and its recommendation that the current funding

system of reliance on counties does not work. See Washington Courts Comm’n on Justice,

Efficiency and Accountability, “Funding our courts: Finding a balance,” 13 (stating, among other

things, that “courts often receive an inadequate share of local public revenues,” personal security

is “dangerously inadequate,” “[p]hysical facilities in many courts are inadequate,” and that

“‘Doing more with less’ is not the answer.”).

Plaintiffs also meet the UJDA’s standards for standing.

Plaintiffs also meet the four elements of UJDA standing. As already established in the prior

section, Plaintiffs have existing and genuine rights that are direct and substantial, and a final

judgment would extinguish the dispute. It is also patent that the proceeding is genuinely

adversarial. The requirements of Nelson, 160 Wn.2d at 186, are satisfied. 4.

18 19 20

Plaintiffs also have standing because this is a matter of substantial public interest.

Standing also exists “when a controversy is of substantial public importance, immediately affects significant segments of the population, and has a direct bearing on commerce,

21 22 23 24

ER 201(b)(2); see also Jackson v. Quality Loan Serv. Corp., 186 Wn. App. 838, 844, 347 P.3d 487 (2015) (in considering a motion to dismiss, “court may take judicial notice of public documents if the authenticity of those documents cannot be reasonably disputed”) (citing Berge v. Gorton, 88 Wn.2d 756, 763, 567 P.2d 187 (1977)). 13 https://www.courts.wa.gov/programs_orgs/pos_jea/?fa=pos_jea.article1 12

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finance, labor, industry, or agriculture, this court has been willing to take a ‘less rigid and more

liberal’ approach to standing.” Grant Cnty., 150 Wn.2d at 803. Even where standing would not

otherwise exist, a plaintiff may raise a controversy that “presents a question of a public nature

which is likely to recur, and it is desirable to provide an authoritative determination for the future

guidance of public officials.” Cathcart-Maltby-Clearview Comm’ty Coun. v. Snohomish Cy., 96

Wn.2d 201, 208, 634 P.2d 853 (1981).

This lawsuit is of substantial public importance to the named Class Representatives and

putative class members, as well as the citizens of this state in general. This lawsuit has a direct

bearing on those most harshly impacted by the unacceptable delays in having their cases tried:

plaintiffs whose injuries range from physical to financial, many with devastating personal and

family consequences. The court’s inability to efficiently or predictably address their claims for

compensation can be as devastating as the underlying injuries that brought them to court—

sometimes even more so than the injury that is subject to suit, for all the reasons explained supra

as part of Plaintiffs’ right to a jury trial. Moreover, the delay impairs their cases. Witnesses’

memories start to fade and evidence becomes stale, which is why we enact statutes of limitation.

Under these facts, the Class Representative and putative class members all have a personal stake

in the outcome of this controversy of substantial importance, and they should be deemed to have

standing to bring this lawsuit.

The State misunderstands the constitutional requirements invoked by Plaintiffs and seem

to believe that the rights have zero implications for adequate funding. The federal right to counsel,

U.S. Const. amend. VI, for example, does not say anything about funding, but plainly anticipates

that “[s]tate expenditures are necessary to pay lawyers for indigent defendants at trial.” Bounds v.

Plaintiffs plead a legitimate cause of action.

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Smith, 430 U.S. 817, 825 (1977), abrogated on other grounds by Lewis v. Casey, 518 U.S. 343

(1996) (citing Gideon v. Wainwright, 372 U.S. 335 (1963); Argersinger v. Hamlin, 407 U.S. 25

(1972)).

Similarly, Article IX, Section 1 states that “[i]t is the paramount duty of the state to make

ample provision for the education of all children residing within its borders, without distinction or

preference on account of race, color, caste, or sex.” Nothing in that sentence says anything about

educational funding, but the Supreme Court has read it to “confer[] on children in Washington a

positive constitutional right to an amply funded education.” McCleary v. State, 173 Wn.2d 477,

483, 269 P.3d 227 (2012) (emphasis added). Nothing less is required to assure a functioning

judiciary, a right of access to the courts without unnecessary delay, or an inviolate right to a jury

trial. Inadequate funding is never a justification for denying a constitutional right. Bounds, 430

U.S. at 825 (“the cost of protecting a constitutional right cannot justify its total denial.”).

Plaintiffs understand that they bear a high burden in order to succeed in this case, but a

high burden is not the equivalent of lacking a legitimate cause of action. Plaintiffs further recognize

that the courts in devising a remedy, should the lawsuit be successful, will be sensitive to the

appropriation prerogatives of the Legislature. Contrary to the State’s suggestion, the gravamen of

Plaintiffs’ Amended Complaint is not flaws in the state’s budget process, see State Mot. 20, but

the inadequacy of funding for the courts.

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The Legislature has a mandatory constitutional duty to adequately fund our courts.

The Constitution establishes three branches of government: legislative, executive, and judicial. The judicial branch consists of “a supreme court, superior courts, justices of the peace, and such inferior courts as the legislature may provide.” Wa. Const. art. IV, § 1. Under any appropriate construction, funding each of the three branches of government ultimately falls upon PLAINTIFFS’ OPP. TO STATE’S MOTION TO DISMISS - 22

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the State. Just as it is true that the State must fund the legislative and executive branches

sufficiently to enable their operation as the Constitution contemplates, so, too, must the State

adequately fund the judicial branch.

Only one provision of the Constitution affecting the judicial branch provides an exception

to that mandatory State responsibility. Section 13 of the judicial article splits the funding

responsibilities for superior court judges between the state and the county or counties from which

that judge is elected. Wa. Const. art. IV, § 13. If the framers had intended that counties have

constitutional responsibility for other expenses of the superior courts and such other courts as the

legislature might establish, it would have employed the same language as Section 13 to create

concurrent responsibility.

This conclusion is further bolstered by the “well-established rule of constitutional

construction, ‘expressio unius est exclusio alterius,’” which holds that that the “express mention

of one thing implies the exclusion of the other.” Yelle v. Bishop, 55 Wn.2d 286, 295, 347 P.2d

1081 (1959). The principle allows constitutional duties to be implied from an omission. Id. Put

another way, the omission excludes from the constitutionally assigned county responsibility all

which is left unsaid. Cf. State v. Williams, 29. Wn. App. 86, 91, 627 P.2d 581 (1981).

An analogy can be drawn from our school-funding cases. In McCleary, the State contended

that the trial court erred by requiring basic education to be funded by state-level sources. 173

Wn.2d at 528. There, the State, citing Seattle Sch. Dist. No. 1 of King Cty., 90 Wn.2d at 520, argued

that the legislature could discharge its duty to make ample provision for funding education by

authorizing nonstate tax sources that are otherwise “dependable and regular.” McCleary, 173

Wn.2d at 528. Specifically, the State argued that the constitution allowed it to make ample

provision for education using a combination of federal funds as well as local funds not derived

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from excess levies. Id. at 528. The Supreme Court disagreed, stating that “the State’s reliance on

local dollars to support the basic education program fails to provide the “ample” funding Article

IX, Section 1 requires. Id.

The same concerns voiced in McCleary are also present in the funding trial courts. The

ability of the counties to provide adequate funding for the operation of our trial courts varies from

county to county. As in McCleary, counties with a wealthier tax base will be able to appropriate

more funds for their courts than poorer counties who are strapped for funds. The result of this

disparity is that these poorer counties will often fall short of adequately funding their courts,

thereby affecting the equity or quality and quantity of how justice is administered in their courts.

The State ascribes too much in claiming that cases establish that superior courts are not

state responsibilities. It relies on Superior Ct. Judges, 82 Wash. at 628, which merely noted the

dual state-county nature of the judges, and wrongly asserts that Ladenburg v. Henke, 197 Wn.2d

645, 486 P.3d 866 (2021), supports its stance. However, Ladenburg held that superior court judges,

“for purposes of constitutional analysis,” are state officers, even if municipal court judges are not.

Id. at 653-54. As Ladenburg acknowledges, this has been true at least since 1892, when State ex

rel. Dyer v. Twichell, 4 Wash. 715, 720, 31 P. 19 (1892), first said so. Id. at 652. Ladenburg also

notes that the Constitution allows the Legislature to impeach “[a]ny judge of any court of record,”

which includes superior court judges, but not municipal court judges. Id. at 656 (citing Wa. Const.

art. IV, § 9). The Constitution does not abide legislative divestment of responsibility for trial courts

of record. Yet, pleas by the Judiciary to the Legislature that have gone unheeded, 14 such as when

21 22 23 24

The State also seems to think that having comparable resolution rates to sister states indicates that the problem does not exist. State Mem. 4-5. While that may be evidence that merits consideration once the case is past the pleading stage, it is insufficient, by itself, to establish that there are no systemic unreasonable delays. It may merely mean that a significant number of plaintiffs give up on trying their cases and instead settle for pennies on the dollar rather than wait indefinitely for their day in court.

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Chief Justice Gerry Alexander reminded the Legislature “there must be a rebalancing of

responsibility for the funding of trial courts so that the state government contributes in a more

equitable way, along with local government, to the operations of the superior, district, and

municipal courts” and noting “Washington State ranked 50th of the 50 states in terms of funding

for its trial courts, prosecution and indigent defense, with less than three-tenths of one percent of

the state’s budget dedicated to the funding of the judicial branch of government. 15

7 8

The disparity is constitutionally cognizable, and Plaintiffs state a claim for the harm the disparity causes.

The answer to this problem is not, as the State suggests, for individual plaintiffs to file

serial motions in every case seeking expeditious handling of their cases, but a systematic response

to a systemic issue. Cf. City of Seattle, Seattle Police Dep’t v. Seattle Police Officers’ Guild, 17

Wn. App. 2d 21, 39, 484 P.3d 485 (2021) (recognizing that Section 1983 established a “broad

remedy” for systematic violations”). While this is not a Section 1983 action, it, too, deserves a

broad remedy for systematic violations of the Washington Constitution. As a putative class action,

it is plainly superior to other possible methods for the fair and efficient adjudication of the

controversy. Through CR 23(b)(3), this suit seeks to resolve not just a single scheduling issue in a

case, but a problem in seeking justice without unnecessary delay that does not merely plague

individual cases, but the dockets of our courts throughout the state. The quandary cannot be

resolved by giving a handful of individuals trial preference, which appears to be the State’s

solution.

21 22 23 15

2006 State of the Judiciary, Chief Justice Gerry Alexander, January 2006 (wa.courts.gov).

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1 2 3 4 5 6 7 8 9 10 11 12 13

Washington courts have the inherent authority to assure adequately funded courts as a function of separation of powers.

A separation of powers violation occurs when the action or inaction of one branch threatens the integrity of another. Hale v. Wellpinit Sch. Dist. No. 49, 165 Wn.2d 494, 507, 198 P.3d 1021 (2009). The Supreme Court’s admonishment that “separation of powers … dictates that the judiciary be able to ensure its own survival when insufficient funds are provided by the other branches” bears repeating here. Juvenile Dir., 87 Wn.2d at 245. To that end, “courts possess inherent power, that is, authority not expressly provided for in the Constitution, but which is derived from the creation of a separate branch of government, and which may be exercised by the branch to protect itself in the performance of its constitutional duties.” Id. The Legislature’s power of appropriation “does not in any way impair the inherent power of the judiciary to require payment of necessary funds for the efficient administration of justice.” Zylstra, 85 Wn.2d at 748-49. In his concurring opinion, Justice Utter further explained:

In the exercise of their power to determine and compel payment of sums of money “the inherent power of courts is not exhausted when the needs of administration of justice have been declared and urged upon the legislative councils. There remains a narrower area in which the courts have inherent power to go further than merely declare the existence of a need. It is an area in which the courts have inherent power to bind the State or the county contractually.”

Id. at 756 (Utter, J., concurring) (quoting Wayne Circuit Judges v. Wayne County, 172 N.W.2d

436, 440 (Mich. 1969), modified on other grounds, 190 N.W.2d 228 (Mich. 1971).

14 15

It is not only an authority that the courts may invoke on their own initiative, as the State

suggests, but one that may also be set in motion through the exercise of Plaintiffs’ open courts

rights. See Dillon v. Seattle Deposition Reps., LLC, 179 Wn. App. 41, 78, 316 P.3d 1119 (2014)

(holding that the petition right in Wa. Const. art. I, § 4 is not a right to initiate a lawsuit as under

the federal petition First Amendment because the right resides in the Open Courts provision).

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When members of the judiciary apply to themselves through a lawsuit for additional

funding, only the doctrine of necessity prevents it from being a conflict of interest, because due

process generally holds that no person can be judge of their own case. Williams v. Pennsylvania,

136 S. Ct. 1899, 1905-06 (2016). There is certainly no constitutional bar against people of this

State, who satisfy the requirements of standing, from asking the courts to exercise their inherent

powers to remedy a need the people seek to prove exists in court – or to litigate the separation of

powers issue they have raised in the pleading.

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

The State misunderstands the fundamental guarantee that justice be administered openly and without unnecessary delay.

The State dismisses Plaintiffs’ invocation of the fundamental guarantee that justice be administered openly and without unnecessary delay as a “‘command to the judiciary’ as to how it administers ‘judicial proceedings,’ not a mandate that the Legislature provide funding.” State Mem. 24 (quoting In re Det. of Reyes, 176 Wn. App. 821, 830, 315 P.3d 532 (2013)). Reyes, however, answered a very different question: “Does a litigant have standing to assert the public’s right to attend a motion hearing in a civil case where he did not assert his own right to do so?” Id. at 823. It thus addressed the public nature of judicial proceedings. It is in that context and for that purpose that the court indicated it was a “right held by all Washingtonians,” rather than an individual right. Id. at 830. However, in Putman, the Supreme Court struck down a statutory requirement that certificates of merit be filed in medical malpractice cases on the basis of the provision. This was a command against legislative interference with the right of access to the courts. The Court held that the “people have a right of access to courts; indeed, it is ‘the bedrock foundation upon which rest all the people’s rights and obligations.’” Putman, 166 Wn.2d at 979. The Court also endorsed Chief Justice Marshall’s formulation of the right: “‘The very essence of civil liberty certainly consists in PLAINTIFFS’ OPP. TO STATE’S MOTION TO DISMISS - 27

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the right of every individual to claim the protection of the laws, whenever he receives an injury.

One of the first duties of government is to afford that protection.’” Id. (quoting Marbury v.

Madison, 5 U.S. (1 Cranch) 137, 163 (1803)). If, as in Putman, the Legislature cannot require a

certificate of merit before a plaintiff has an opportunity to invoke compulsory process for

discovery without violating Section 10, it certainly cannot interfere with the courts so as to cause

unnecessary delay by underfunding the judiciary.

King v. King, 162 Wn.2d 378, 174 P.3d 659 (2007), is inapposite. It merely held that

Section 10 provided no constitutional right to publicly funded counsel in a dissolution of marriage

proceeding. The Court’s rejection of expanding the right to include taxpayer-paid counsel in a civil

10 11 12

action has no bearing on the clear obligation of the State to fund the courts adequately. Plaintiffs have pleaded a legitimate cause of action. 4.

Unnecessary delays also implicate the right of trial by Jury.

Washington guarantees an “inviolate” right to trial by jury. Wa. Const. art. I, § 21. The

State treats this fundamental right as it does the right against unnecessary delay and says it imposes

a “duty on the part of the courts—not the Legislature.” State Mem. 26. Its basis for this bizarre

narrowing of the right is that it is implemented through CR 38‘s procedure for demanding a civil

jury. However, a rule of procedure does not alter or limit a constitutional command. Certainly, if

the legislature were attempting to do away with jury trials by statute, the courts would strike the

law down as a violation of Section 21.

In fact, when the legislature attempted to cap damages in personal injury cases, taking away

one of the prerogatives of the jury in assessing the damages, the Supreme Court struck that down

as violative of the jury-trial right. Sofie, 112 Wn.2d at 659.

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STRITMATTER KESSLER KOEHLER MOORE 3600 15 Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777 th

A violation of a constitutional right need not completely eviscerate the right so that it is

null and void in its entirety. In Sofie, for example, the plaintiffs still tried their case before a jury

and that jury reached a verdict. The damage cap invalidated in the case did only one thing: it

lowered the noneconomic damages that the jury determined was due. That restriction on giving

the plaintiff the full benefit of the right to a jury trial as understood was sufficient to render the

statute unconstitutional. Thus, a constitutional right is violated not just when the right is entirely

denied, but when the challenged law or action “burdens,” 16 “impinges,” 17 “interfere[s],” 18 with or

“implicate[s]” 19 the underlying right. So, the State is wrong when it claims Plaintiffs cannot show

their jury-trial rights were violated because they will eventually have their jury trials, State Mem.

26.

Under the State’s formulation, Plaintiffs would have no cause of action pursuant to Section

21 if the Legislature suspended jury trials for ten years for budgetary reasons. The logical

implications of the State’s position fully rebuts their argument. Certainly, such a moratorium

would burden, impinge, interfere, and implicate the jury-trial right – and its remedy would be to

require the State to provide the necessary funds so that jury trials could take place. Plaintiffs

understand the burden they bear to demonstrate that the courts are inadequately funded, that the

effect of that funding are unreasonable delays 20 in receiving the jury trials they are constitutionally

entitled to, and that increased appropriations would remedy their injury. A heavy burden at trial,

19 20 21 22 23 24

First Covenant Church of Seattle v. City of Seattle, 120 Wn.2d 203, 220, 840 P.2d 174 (1992). State v. Krantz, 24 Wn.2d 350, 354, 164 P.2d 453 (1945). 18 In re Custody of Smith, 137 Wn.2d 1, 17, 969 P.2d 21 (1998), aff’d sub nom. Troxel v. Granville, 530 U.S. 57 (2000). 19 State v. Easterling, 157. Wn.2d 167, 177, 137 P.3d 825 (2006). 20 This is a very different standard than the speedy-trial right afforded criminal defendants, and the State is disingenuous in suggesting that Plaintiffs seek the same right in civil cases. State Mem. 27. 16 17

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STRITMATTER KESSLER KOEHLER MOORE 3600 15 Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777 th

however, is not the same as a failure to plead a legitimate cause of action. Plaintiffs have borne

the burden they bear at this early stage of litigation. D.

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There is a systemic funding crisis in our court system that cannot be remedied by motions made by individual litigants in separate civil proceedings.

Every Chief Justice of our Supreme Court from Justice Richard Guy, who in 2000 inaugurated the tradition of a written State of the Judiciary Report, through Chief Justice Deborah Stephens in 2021, has identified and commented on the systemic inadequacy in funding our courts and the negative impact that this lack of funding has on the courts ability to administer justice in our state. 21 The detailed facts documented in Plaintiffs’ Amended Complaint clearly show that the State is not meeting its constitutional mandate. Civil trials are facing inordinate delays. Am. Compl ¶ 5.40. Court technology is decrepit. Id. Public defense is inadequate for those who cannot pay for legal representation. Id. Jurors are not compensated enough. Id. There is an increasing need for interpreter services that is not being met. Id. Courthouse security is inadequate. Id. Pretrial services are not available. Id. Education and training for judges and court staff is insufficient. Id. And the same overarching problem remains—local jurisdictions are burdened with, but cannot, meet the funding of a disproportionate percent of trial court costs. Id. Despite these systemic failures, the State disingenuously contends that the Plaintiffs’ lawsuit should be dismissed because they have “available” legal remedies in their underlying cases, such as motions for reconsideration of continuances, motions for expedited trial dates, or motions to perpetuate a witness’s testimony. 22 The State even goes so far as to outrageously See Plaintiffs’ Amended Complaint at The State also ironically suggests seeking discretionary review of purported errors by the trial courts, which would extend the trial date in these cases even further out as the Court of Appeals considers and rules on the petition for discretionary review. Moreover, attempting to shoehorn these additional causes of action into Plaintiffs’ other cases is also a formula for further delay of those cases.

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STRITMATTER KESSLER KOEHLER MOORE 3600 15 Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777 th

characterize this lawsuit as a “collateral attack” on the Plaintiffs’ pending individual proceedings.

But the State fails to demonstrate how these motions would remedy the funding crisis in our

judicial system, which is the underlying issue causing the delays. Plaintiffs are not asking this

Court to intervene in their personal lawsuits. Nor are any of the Class Representatives or putative

class members in this case seeking any type of relief from this Court in their individual lawsuits.

Their individual lawsuits are entirely separate from this statewide lawsuit, which is an entirely

different cause of action. Their individual cases merely give them standing to bring this lawsuit on

behalf of themselves and the class of people who are similarly situated. No review of the other

proceedings is required, and no order from this court would ever be issued to the coordinate courts

hearing Plaintiffs’ personal injury lawsuits.

This lawsuit is based on the systemic failure of the State to adequately fund our courts

statewide and the impact that the lack of adequate funding has had on our civil justice system.

Contrary to the State’s argument, motions for reconsideration of continuances, an expedited trial

date, or the perpetuation of witnesses’ testimony will not remedy these systemic failures or assure

that they do not continue. Thus, there is no adequate remedy at law. The only way to address the

problems that are crushing our court system is for the State to adequately fund our court system as

it is constitutionally required to do. VI.

CONCLUSION

This lawsuit seeks to overturn the decades long unconstitutional practice whereby the State

is violating separation of powers by inadequately funding the courts. This lawsuit is brought on

behalf of Plaintiffs who seek no individual money damages. The law firm who has brought this

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STRITMATTER KESSLER KOEHLER MOORE 3600 15 Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777 th

lawsuit is doing so pro bono. As the great civil rights Icon John Lewis said: “If not now, then

when. If not us, then who.”

3 4

This lawsuit champions the guarantees of the Constitution of the State of Washington as it affects real people seeking redress in the courts.

CR 12(b)(6) sets a very high bar for the State. The State must show beyond doubt that the

plaintiff can prove no set of facts, consistent with the complaint, which would entitle the plaintiff

to relief. Because the State fails to meet this exacting standard, its Motion to Dismiss fails and

must be denied.

DATED this 30th day of August, 2021.

I certify that this memorandum contains 8370 words, in compliance with the Local Civil Rules.

STRITMATTER KESSLER KOEHLER MOORE

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/s/ Karen Koehler Karen K. Koehler, WSBA #15325 Garth L. Jones, WSBA #14795 Daniel R. Laurence, WSBA #19697 Gemma N. Zanowski, WSBA #43259 Edward H. Moore, WSBA #41584 Counsel for Plaintiffs

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STRITMATTER KESSLER KOEHLER MOORE 3600 15 Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777 th

1 2 3 4 5 6 7 8 9 10 11

CERTIFICATION I hereby certify that on August 30, 2021, I delivered a copy of the document to which this certification is attached for delivery to all counsel of record as follows: Defendant State of Washington Kristin Beneski Attorney General of Washington 800 Fifth Avenue, Suite 2000 Seattle, WA 98104 Kristin.beneski@atg.wa.gov & Harry H. Schneider, Jr. Gregory F. Miller David T. Martin Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101 HSchneider@perkinscoie.com GMiller@perkinscoie.com Dmartin@perkinscoie.com

U.S. Mail Fax Legal messenger Electronic Delivery (via KCSC Efiling/email delivery)

12 13 s/ Krysta Renton Krysta Renton Paralegal

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PLAINTIFFS’ OPP. TO STATE’S MOTION TO DISMISS - 33

STRITMATTER KESSLER KOEHLER MOORE 3600 15 Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777 th