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SUPERIOR COURT OF WASHINGTON, KING COUNTY ______________________________________________________
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JENNIFER RALSTON, CALEB MCNAMARA
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AND THE ESTATE OF MCNAMARA;
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BRAEDEN SIMON; ABIE EKENEZER;
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JESSE HUGHEY; TIM KAUCHUK;
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JORDAN PICKETT; DANIEL PIERCE;
) 21-2-06462-7
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SEAN SWANSON; JOEY WIESER; QUINN
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ZOSCHKE; JEFF CUSHMAN,
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Plaintiffs, vs.
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STATE OF WASHINGTON, a
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governmental entity,
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Defendant.
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______________________________________________________ VERBATIM REPORT OF RECORDED PROCEEDINGS
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HEARING BEFORE THE HONORABLE KRISTIN RICHARDSON
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______________________________________________________
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SEPTEMBER 10, 2021
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RECORDING TRANSCRIBED BY:
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ELEANOR J. MITCHELL, RPR, CCR 3006
MITCHELL REALTIME REPORTING 7829 Center Boulevard SE, Suite 247, Snoqualmie, Washington 98065 425.503.3645
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A P P E A R A N C E S
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FOR THE PLAINTIFFS:
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(Appearing Remotely)
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KAREN K. KOEHLER Stritmatter Kessler Koehler Moore 3600 15th Avenue West, Suite 300 Seattle, Washington 98119 206.448.1777 karenk@stritmatter.com FOR THE DEFENDANT: (Appearing Remotely) KRISTIN BENESKI Assistant Attorney General 800 Fifth Avenue, Suite 2000 Seattle, Washington 98104 206.464.7459 kristin.beneski@atg.wa.gov GREGORY F. MILLER Law Office of Gregory F. Miller 1201 Third Avenue, Suite 4900 Seattle, Washington 98101 832.722.9881 gregory.franklin.miller@gmail.com
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ALSO PRESENT:
NONE
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MITCHELL REALTIME REPORTING 7829 Center Boulevard SE, Suite 247, Snoqualmie, Washington 98065 425.503.3645
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I N D E X
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ARGUMENT BY MS. BENESKI
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ARGUMENT BY MR. MILLER
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ARGUMENT BY MS. KOEHLER
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FURTHER ARGUMENT BY MS. BENESKI
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FURTHER ARGUMENT BY MS. KOEHLER
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MITCHELL REALTIME REPORTING 7829 Center Boulevard SE, Suite 247, Snoqualmie, Washington 98065 425.503.3645
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MORNING SESSION; SEPTEMBER 10, 2021
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--oOo--
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(Recording begins at 11:05 a.m.)
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(Transcription begins at 11:05 a.m.)
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THE COURT:
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MS. KOEHLER:
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THE COURT:
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We are on the record with
Who do I have for plaintiffs?
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MS. KOEHLER:
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THE COURT:
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MS. BENESKI: State.
Karen Koehler, Your Honor. And for defendants? Kristin Beneski for the
I'm also here with Greg Miller. THE COURT:
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Good morning, Your Honor.
Ralston v. State of Washington, 21-2-06462-7.
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Good morning.
Okay.
This is a motion by the
defense to dismiss, so -- hang on just a minute.
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So the State will go first.
I'm going to give
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you twenty minutes on this one to start, and if you
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feel like you need more time, tell me.
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And we'll start with you, Ms. Beneski.
Please
go ahead. MS. BENESKI:
Thank you, Your Honor.
Again, my name the Kristin Beneski, First Assistant Attorney General for the State of Washington.
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And I'm here are Greg Miller, who's a Special Assistant
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Attorney General on this matter.
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this morning asking the Court to grant our motion to
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dismiss.
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The State is here
With the Court's permission, I will be
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addressing the plaintiffs' constitutional claims, and
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then Mr. Miller will address standing and the
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availability of legal remedies.
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THE COURT: MS. BENESKI:
Okay. And we'd like to reserve
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five minutes for rebuttal, if we may.
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THE COURT:
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MS. BENESKI:
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All right. Thank you.
Your Honor, this lawsuit alleges a problem
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that can't be fixed through private litigation.
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It's -- it's not a problem with no solution, and there
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are certainly political means for private parties to
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advocate for more court funding, but overhauling the
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entire court-funding system in this state, which is
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what the plaintiffs hope to do, that can't be done with
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a quick-fix lawsuit.
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I -- I sympathize with the plaintiffs'
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concerns, as I think we all do, but I want to be clear
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about what they're asking for.
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Court to order the state legislature to enact new laws
They are asking this
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specifically to subsidize civil litigation.
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unprecedented.
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would disrupt the checks and balances in our
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constitutional system.
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That is
It's unprecedented everywhere, and it
The plaintiffs haven't identified any
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authority that gives them the power to compel
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legislative funding.
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Washington or anywhere else.
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claims aren't even in the zone of interests protected
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There's no precedent for this in In fact, the plaintiffs'
by the constitutional provisions they invoke.
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Those provisions protect individual rights
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within the context of a court case, not -- not a
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free-floating right to statewide funding.
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plaintiffs don't have standing, and their claims fail
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as a matter of law. THE COURT:
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So
Would anyone ever have
standing for something like this?
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MS. BENESKI:
No, Your Honor.
There's no
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standing to seek funding on behalf of the judicial
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branch.
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court lacks sufficient funding to fulfill its
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constitutional functions, courts can advocate on their
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own behalf to obtain that funding, but private
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plaintiffs cannot.
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In the extraordinary circumstance where the
THE COURT:
Okay.
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MS. BENESKI:
I'd like to start by
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addressing Section 10 of Article I of the Constitution.
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This provision recognizes every Washingtonian's right
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to access the courts.
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to observe open court proceedings, as well as
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individual litigants' rights to have their disputes
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resolved through our justice system.
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supports plaintiffs' reading of Section 10, and binding
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case law establishes that Section 10 creates a duty
It includes the public's right
No precedent
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owed by the courts to the public and to the litigants
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before them.
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As a judicial obligation, Section 10, the duty
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to administer justice without unnecessary delay, what
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that means is that courts shouldn't delay cases without
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good cause.
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managing their dockets in accordance with the civil
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rules and their sound discretion based on the
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particular needs of each case.
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doesn't establish any right or duty related to
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legislative funding, and so that claim fails as a
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matter of law.
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And of course, courts fulfill this duty by
Section 10 simply
Plaintiffs' claim under Section 21 also has
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nothing to do with legislative funding.
It guarantees
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the right to a trial by jury.
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provide a jury trial is owed by the court to the
And again, the duty to
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litigants before it, and here, plaintiffs' underlying
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tort cases are set for jury trials so there's no
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Section 21 problem here.
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The plaintiffs argue that they are facing
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delays in their jury trials, but there's no right under
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the Constitution to a speedy civil jury trial.
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right to trial by jury under the Constitution simply
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means that factual issues -- disputed issues of
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material fact -- must be decided by a jury, and there's
The
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no suggestion that that will not happen in the tort
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cases here.
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And again, just to reiterate:
The fact that
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Section 21 doesn't apply to legislative funding is
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dispositive both on the merits and for standing because
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plaintiffs are not within the zone of interests
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protected by Section 21 because they haven't alleged
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that material factual issues will be decided without a
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jury.
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The plaintiffs also cite a few other
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constitutional provisions in their briefing, but none
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of those are the basis for a cause of action that
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they've pleaded.
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briefing, and so I won't spend any time on them this
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morning unless Your Honor has questions about those
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provisions.
We addressed those arguments in the
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THE COURT:
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MS. BENESKI:
No.
That's fine.
Thank you.
Go ahead.
So just to
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briefly -- to conclude my portion of the presentation
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this morning, the plaintiffs fail to state an
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actionable claim, and their case must be dismissed.
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And so I'll now turn it over to Mr. Miller who
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will discuss the other independent grounds for
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dismissal of this case.
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THE COURT:
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MS. BENESKI:
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MR. MILLER:
Thank you. Thank you, Your Honor. Thank you, Your Honor.
I'm
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Gregory Miller on behalf of the State of Washington
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acting as a special assistant to the attorney general.
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May it please the Court, I would like to go to
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the question that you asked my co-counsel, Judge
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Richardson, which is:
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bring a lawsuit like this?
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footnote 14, page 17 of our brief, where, because of
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General Rule 14, we did not make an argument based on
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Woolery, but we have only been able to identify only
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one precedent in Washington that addresses the standing
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issue, and I would direct you to footnote 22 and the
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accompanying text of that opinion.
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Does anyone have any standing to And I would direct you to
Woolery was a case where an individual wanted to -- had a pending civil trial for a personal injury
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arising from a traffic accident, and he believed that
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his trial had been delayed because of funding cuts to
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the Spokane -- Spokane Superior Court.
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a private action separately trying to compel funding on
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behalf of the superior court.
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Court of Appeals held in affirming dismissal is, and I
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quote [as read]:
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authority holding that a private citizen has standing
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to sue for court-funding relief based on alleged
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He then brought
And what the Washington
There was not any Washington
separation of powers violation.
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And it went on to note, citing the Juvenile
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Director and Zylstra opinions that we cite in our
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brief, that, quote [as read]:
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standing to sue to compel funding for its own
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operations or to ensure its own survival when relations
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with its coequal branchs of government break down,
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unquote.
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The judiciary has
And so I think that answers your question,
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Judge Richardson, is the entity that would have
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standing during a lawsuit is the court or the members
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of the judiciary themselves.
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footnote 3 of Juvenile Director is that when that power
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is invoked, it ought to be invoked at the county level
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as opposed to aimed at statewide budgetary authorities,
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and it ought to be aimed at discrete budgetary items
And the instruction from
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that have previously been established as necessary for
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the court.
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commanded by Washington Supreme Court precedent but is
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also a far more pragmatic way to go about handling this
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issue if this need does arise.
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And that approach is not only what is
The one thing that the precedents
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don't [unintelligible] because there has never before,
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other than Woolery, been a private plaintiff bring this
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kind of lawsuit, it's just how wildly inefficient a
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private lawsuit -- particularly a class action -- is as
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compared to the judiciary itself invoking the -- the
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inherent power.
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They aren't before you today, but I can tell
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you there have already been 17 interrogatories and 23
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requests for production submitted to the State.
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friend on the other side has graciously agreed to stay
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any need to answer those until this motion has been
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resolved, but what it speaks to is the court already
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knows what its budgetary needs are.
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needs to be invoked, it's far more efficient, like in
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prior precedence, for the court to issue a mandate and
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then seek to enforce it in another county, not to have
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a class action, all of the procedural hurdles that come
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with that, and all of the inefficiencies of going
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through an adversarial discovery process where private
If this power
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litigants try to educate themselves about the court's
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funding needs, particularly trying to educate
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themselves about the funding needs of every superior
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court throughout the state.
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THE COURT:
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MR. MILLER:
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THE COURT:
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Okay.
Could I have you --
That is not -Could I have you back up for a
minute? MR. MILLER: THE COURT:
Yes. You were talking about the
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Court should iss- -- or could issue a mandate.
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you tell me about that?
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MR. MILLER:
Yes.
Could
So I think if you look
at Juvenile Director --
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THE COURT:
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MR. MILLER:
Right. -- it said the -- the
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mechanism that they used was there was a writ of
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mandate issued by one superior court, and it went to
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the neighboring superior court to seek enforcement of
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that writ of mandate.
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So he instituted a lawsuit to enforce the writ
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of mandate in a separate superior court.
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[Unintelligible] also touch- --
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THE COURT:
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MR. MILLER:
Okay.
So it was a writ.
Yes, ma'am.
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THE COURT:
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MR. MILLER:
Okay.
Go ahead.
And it also touches on
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another problem I think of a statewide class action is
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the plaintiffs here are asking you, as a judge, to sit
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in review of your own budgetary needs, even though
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in -- in their own brief, they note that there are
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serious due-process concerns with a judge effectively
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resolving the case by deciding what his or her own
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courtroom needs might be and issuing a judgment that
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benefits them.
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The direction from Juvenile Director avoids
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that problem where if you have superior-court-specific
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actions that are brought and you have a neighboring
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superior court resolving that, you don't have a judge
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sitting in judgment and review of what their own
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reasonable needs are for the continuation of their
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court.
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as compared to a judge being in a situation where they
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are tempted, as all human beings would be, by the
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benefits that might accrue to them if they resolve the
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case in one way or another.
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The case can be resolved by a neutral arbiter
And so that, I think, is why plaintiffs have
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not been able to identify a single case in any state
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where a court has authorized a private lawsuit, period,
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much less one that seeks to bring a class action where
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a single trial judge would effectively be assuming
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centralized permanent statewide control of the judicial
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budget.
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THE COURT:
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MR. MILLER:
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THE COURT:
So what's to be done? That would be -What's to be done?
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money.
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you do if you don't do this?
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question is --
In the initiative process, an option -- what do
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MR. MILLER:
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THE COURT:
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There's no
I mean, I -- I guess my
It --- should there be some
reaching out to try to create new avenues for funding?
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MR. MILLER:
Well, Your Honor, I think
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there are openings in the normal budgetary process for
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the judiciary to make its requests.
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makes an annual budgetary or a bian- -- biennial
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budgetary request --
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THE COURT:
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MR. MILLER:
The Chief Justice
Right. -- formally to that -- to
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them, and then the legislature will answer it.
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point out in our brief, plaintiffs aren't able to
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identify any instance where those requests have been
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unanswered.
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As we
I'm not familiar with the individual workings of particular counties' budgetary processes on a
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statewide level, but the -- I think the answer would be
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something similar to what you see in the interaction
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between the Supreme Court and the legislature is you
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see this in -- also in -- in the federal branches where
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there are legislative hearings or a supreme court
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justice will appear to make testimony about the state
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of the budgetary needs of the courts.
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The -- the courts can make public statements. They can make requests where the budgetary process
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allows them to do that.
And what Juvenile Director
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says is it is only when those kind of avenues have
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broken down that litigation, where the inherent
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judicial power is invoked to compel funding, can be
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done.
It is -- it is truly the last -- last resort. THE COURT:
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Right.
Well, as you're well
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aware, 12(b)(6) is not something that the appellate
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courts like to have granted.
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granted.
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would match the complaint that would allow it to
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survive under 12(b)(6)?
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It's very sparingly
And can you think of no hypothetical that
MR. MILLER:
No -- no, Your Honor.
The --
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it is clear that private citizens legally are not
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authorized to invoke the judicial power.
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hypothetical fact in -- in existence that would allow a
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suit like this to proceed forward.
There is no
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THE COURT:
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MR. MILLER:
Okay. And they certainly have --
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their burden would have been, in the briefing, to
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proffer hypothetical facts that would permit it, but I
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think Woolery and Juvenile Director and other cases are
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clear that legally private parties cannot invoke this
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process.
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there is no authority for the lawsuit.
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So as a matter of law, regardless of facts,
THE COURT:
So how do we get past the --
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if we assume that all the allegations in the complaint
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are true, as we must for 12(b)(6), is this a situation
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where it is appropriate to use it sparingly and with
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care?
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motions to survive.
It's just so rare that they like 12(b)(6)
MR. MILLER:
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I'm sorry, Your Honor.
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When -- what is the referent when you ask about it
17
being sparingly or rare?
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THE COURT:
12(b)(6) motions being
granted. MR. MILLER:
Yes.
It -- it would
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unquestionably be appropriate to adopt it here.
It's
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when you have a nonviable legal theory of the case, as
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a matter of law there is no claim for relief.
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not legally authorized to bring this claim.
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therefore, you have no claim -- no -- you fit squarely
You are And
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within the text of -- of Rule 12(b)(6). THE COURT:
Okay.
Thank you.
Go ahead.
I'm sorry to interrupt. MR. MILLER:
No.
I -- I welcome the
5
question and am glad to give it.
And I -- I think
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that, unless you have any other questions, that is the
7
clear answer here, is we have binding Washington
8
Supreme Court precedent that says that this is a power
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that can be invoked only by the judiciary.
We have
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repeated teachings from the Supreme Court that it
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should -- that the judiciary should not be intruding on
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the legislature unless it is absolutely necessary and
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only in the rare case.
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And plaintiffs are asking to make judicial
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oversight of the legislature's budgetary process a
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permanent fixture of Washington governance.
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is absolutely forbidden as a matter of law by binding
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precedent, and therefore, dismissal would be entirely
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proper and, in fact, I would say required.
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THE COURT:
MS. KOEHLER:
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THE COURT:
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Thank you.
Ms. Koehler?
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Okay.
And that
Good morning, Your Honor. I have a question for you
to -- out of -MS. KOEHLER:
Yes.
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THE COURT:
-- out of the bag:
What would
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the be -- money be used for?
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assume that I deny the motion and say the legislature
4
has to fund the courts better because of COVID.
5
that going to speed along the COVID cases?
6
going to solve the problem that we're in now with the
7
backlogs?
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I mean, how if -- let's
How is
How is it
What would the money be spent on? MS. KOEHLER:
Right.
So the allegations
of the plaintiffs' case are not -- not -- are not
10
dependent upon the fact that we are in the middle of a
11
pandemic.
12
that -- that has been pending for quite a while before
13
the pandemic --
The -- the lead case, the Ralston case,
14
THE COURT:
15
MS. KOEHLER:
Um-hmm. -- occurred.
And the
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hist- -- historical chart, I guess, that we included in
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the complaint based upon the Supreme Court's state of
18
judiciary goes back to 2000.
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THE COURT:
20
MS. KOEHLER:
Right. So we have outlined in the
21
complaint much more broadly the various ways that the
22
courts are underfunded, but the gist of the plaintiffs'
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complaint and the reason they have standing is that
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they're alleging that their -- that they are unable to
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have their cases timely heard because of inadequate
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court funding.
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And of course that could be explored later on,
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but for a hypothetical which isn't even hypothetical,
4
there's some very particular areas where this can occur
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because they have been set forth by chief presiding
6
crimi- -- civil -- well, chief presiding judges around
7
the state -- in particular, in King County -- where the
8
request has been made to hire more judges so that the
9
dockets can move forward.
So that's just one example
10
of how you can get the cases -- excuse me -- moving
11
forward more timely.
12
So, yes, there's a -- a big breadth of problem
13
related to lack of court fundy- [phonetic] coming --
14
fund- -- funding systemically.
15
plaintiffs' specific area of concern in order to
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specifically lock down standing is the untimeliness of
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trial.
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THE COURT:
19
MS. KOEHLER:
20
THE COURT:
21
But in this case, the
Who decides what's -One of the reasons -Who decides what's untimely?
I mean, all --
22
MS. KOEHLER:
23
THE COURT:
Yeah. -- that the Constitution says
24
is unnecessary delay.
And as we know, there -- in
25
criminal cases for example, there are some states where
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ten years is not considered a violation of speedy
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trial. Who decides what's an unnecessary delay?
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MS. KOEHLER:
Well, for example, some of
5
the items that we've already asked for in discovery,
6
which has been postponed, are help -- help because
7
there's a lot of statistics that are kept in terms of
8
length from filing to trial.
9
THE COURT:
10
MS. KOEHLER:
Uh-huh. Those statistics have been
11
used over the decades to come up with different
12
judicial programs such as, you know, the
13
complex-versus-noncom- -- different tracks -- quick
14
track, nontrack- -- there's been many different studies
15
in -- in those areas, so we want all those documents,
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for example.
17
We believe that, through experts, we can show
18
the patterns of trial delays -- excessive trial delays
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and how, over time, they are getting worse. THE COURT:
20 21
excessive?
22 23
But who's deciding what's
Your expert? MS. KOEHLER:
No, Your Honor.
The Court
would be.
24
THE COURT:
25
MS. KOEHLER:
Okay. The Court is the adjudicator
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of the disputed facts --
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THE COURT:
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MS. KOEHLER:
4
THE COURT:
Right. -- before it. So it's just -- because it's
5
undefined, it makes it difficult to call -- say what's
6
an unnecessary delay.
7
six years?
Is it, you know, a year?
8
MS. KOEHLER:
9
THE COURT:
10
MS. KOEHLER:
Is it
Sure. That's a problem.
Right?
We -- we agree -- we agree
11
that there is gray area that needs to be addressed, but
12
gray area is part of your lives as trial lawyers.
13
You -- you -- you go and you get documents from the
14
court administrator and the State, and you get a whole
15
lot of stuff, and you hire experts, and you have
16
different facts developed, and you analyze and study
17
it, and you present it to the Court from both sides,
18
and the Court makes a decision if, Well, this is
19
impossible, or, No, we can see here.
20 21
I mean that's the ju- -- that's the power of judicial forum.
22
THE COURT:
Isn't that kind of happening
23
now, though?
I mean, with -- like, if I deny a
24
continuance because I think it's an unnecessary delay
25
or it's gotten to that point, isn't that accomplishing
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1
the same thing?
2
MS. KOEHLER:
3
THE COURT:
As?
I'm sorry.
As what you're asking for.
I
4
mean, if it's the Court's ultimate decision and we have
5
co- -- some control over our calendars by the
6
continuance factor, it seems like that would accomplish
7
the same thing.
8
MS. KOEHLER:
Well, it may -- it -- it may
9
accomplish the same thing for the Court in that it's
10
going to push off cases so that the Court can -- can
11
handle, you know, a limit- -- more limited number of
12
cases that are right before it.
13
But in terms of the plaintiffs, it is very --
14
very hard on a plaintiff to have their case continually
15
continued -- continually continued.
16
THE COURT:
17
MS. KOEHLER:
Um-hmm. That's one of our points
18
that we've made, Your Honor, is that -- and why we
19
believe that we have standing, is that the damage done
20
to an already injured or victimized plaintiff is
21
extraordinary the longer it goes on.
22
THE COURT:
23
MS. KOEHLER:
Okay.
Go ahead.
Sorry.
Justice -- of course we all
24
know, you know, justice delayed is justice denied.
25
that's the reason for that.
And
There -- there's so many
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1
reasons why delaying justice is -- is a terrible thing
2
even if you're not a criminal defendant entitled to a,
3
quote/unquote, speedy trial.
4
Your Honor, if I may, I do have a PowerPoint
5
that I would like to share, and I will file it
6
afterwards so that it's part of the court record.
7
THE COURT:
8
MS. KOEHLER:
9
THE COURT:
11
MS. KOEHLER: have done that.
13 14
Your Honor, can you see
that?
10
12
Okay.
Okay.
Oops.
I shouldn't
It messes -- it messes stuff up.
THE COURT: show.
Yes, I can.
You may want to start a slide
That might... MS. KOEHLER:
15
Oh.
Got it.
Is it still --
16
well, see, what happens when I do that is it moves it
17
to my third screen, and it messes it all up.
18
THE COURT:
19
MS. KOEHLER:
20
THE COURT:
21
So let's see if I -It does not matter to me.
can watch the main slides.
22 23
Okay.
MS. KOEHLER:
So... Okay.
Can you see it now,
Your Honor?
24
THE COURT:
25
MS. KOEHLER:
I
I can. All right.
So obviously
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1
we've gotten to this point of knowing, you know, of
2
separation of powers, but the crux of this case is:
3
Can the people have a role in ensuring that they are
4
protected, that their constitutional rights are
5
protected, you know, within this whole argument?
6
That's what -- what kind of the crux is.
7
And I want to start with the defendant's
8
position that the people have no role and that that's
9
absolute.
And taking us to a footnote of an
10
unprecedented case that they indicated they would not
11
be arguing on and yet have taken the time to point out
12
to the Court as binding authority here multiple times,
13
I think, is very disingenuous on behalf of the State.
14
The Woolery case was unpublished.
It should
15
not have been mentioned.
16
precedent for cases.
17
in this case, this law firm has brought the case
18
pro bono, and the plaintiffs have asked for no personal
19
money from the case.
20
that?
21
because of the commitment of dedicated plaintiffs and
22
their counsel.
23
There is sometimes no
And I'll tell you why:
Because
How many lawyers are going to do
So sometimes unprecedented litigation occurs
The case that the State has not talked about
24
at all is McCleary.
And in McCleary -- which is, in
25
our opinion, the blueprint for why there is standing
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1
and why this case may be brought -- children and
2
parents brought this case.
3
this case to -- that ultimately resulted in the State
4
having to properly fund education.
5
They were allowed to bring
The people have the right to participate in
6
any type of government they can to have their
7
constitutional rights protected.
8
voting, but it also includes bringing litigation.
9
Yes, that can include
And Your Honor, you know the McCleary case,
10
and I'm not going to r- -- you know, repeat it for you.
11
But it's this question of:
12
much is enough?
13
it being, quote, ample.
14
How much is enough?
How
In McCleary, the Court was fine with
The State there argued that that wasn't their
15
duty.
16
using local funds or, you know, school districts,
17
federal, just as here where the State alluded and
18
argued as much in their -- their argument can ask the
19
counties to provide that.
20
also a crux that we'll lean into is the counties' role
21
in all this and what the State has expected of them.
22
Inadequate funding is never a justification for denying
23
a constitutional right, and this is why the plaintiffs
24
in this case have brought this lawsuit.
25
It could make ample provision in other ways
And that's -- that's kind of
Another fact of the case that's a little bit
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slightly different is that it is brought under the
2
Uniform Declaratory Judgment Act.
3
to the first two factors of standing, there are
4
additional factors that are available.
5
those in a second.
6
And so in addition
I'll go into
The rights that are being sought here go back
7
to the beginning of our -- our country.
I -- I -- I
8
still cannot believe that the State would argue that
9
the citizens of this state have no role in assuring
10
that they have full access to the courts and that the
11
courts are functioning so that they can do their job so
12
that the clients' cases can be heard in a
13
constitutional manner.
14
We've talked a little bit about inherent
15
authority, and the division that we have on the
16
question of in- -- inherent authority of the courts is
17
not whether it exists.
18
Court has inherent authority to adequately fund the
19
courts.
20
Both sides acknowledge that the
In the case of what we just saw to adequately
21
fund the schools, the courts have an inherent
22
authority.
23
the courts have this inherent authority.
24
checks and balances do.
25
The courts act through their judicial powers.
Even though there's a separation of powers, That's what
That's how the courts can act.
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So if the courts don't act, then the
2
separation of powers is in jeopardy.
3
don't act by just bringing lawsuits by themselves.
4
haven't changed the world through litigation because
5
the courts are suing the government.
6
able to render decisions because citizens or other
7
people in this country bring litigation when their
8
right- -- right -- rights are violated.
9
inherent authority.
10
And the courts We
The courts are
The Court has
They judici- -- the Juvenile Director case was
11
written by Justice Utter.
12
that case is the amount of pages that are devoted to
13
the separation of powers.
14
the context of funding.
15
apart for that reason.
16
And even though this case did not result in the -- the
17
funding being granted, the principles that were
18
enunciated here are the precedent which we have to work
19
with.
20
And what's amazing about
It is -- it -- in the -- in This -- this case does stand
It is the most important case.
This is not an unprecedented case because
21
Juvenile Director and Justice Utter laid out the
22
reasons why the courts, even though in awkward
23
situations, may enter orders that affect the
24
legislature doing their job to provide things like
25
salaries for the courts.
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Justice Utter also wrote the concurrence in
2
the Zylstra case.
3
compare the Zylstra opinions on the s- -- on the
4
separation of powers and Justice Utter's writings on
5
them -- and Zylstra came out -- let's see here -- gosh,
6
you know, ten months before Juvenile Director -- he was
7
able to move from being the concurrence in Zylstra to
8
the leading author in Juvenile Director.
9
Again -- and again, there -- if you
And it's clear that his desire was to make
10
sure that the courts knew that they had this power to
11
adjudicate on these issues.
12
either of these -- these two cases which are really I
13
believe the most important cases -- not once does he
14
say that the people cannot bring litigation for the
15
court to rule on to advance constitutional issues that
16
have been impeded by separation-of-powers interference.
17
And nowhere, not once in
Constitution Article I, Section 21 is the --
18
it's the -- it's the backbone of what I do as a
19
plaintiff personal injury lawyer, and it's the reason
20
why our clients are -- are here.
21
inviolate right to trial by jury.
22
It is an invi- --
The defense argument is basically that, Well,
23
no one said that they're not going to eventually have a
24
jury trial.
25
or whatever years later, but they're going to get it.
They can have one.
It may be two or ten
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1 2
And so, therefore, there is no violation. But the cases -- and I did cite all the
3
sub-cases -- on issues of constitutional impingement,
4
the whole right doesn't have to be denied.
5
are burdening, impinging, interfering.
6
enough of an interference with a constitutional right
7
for there to be a -- an actionable cause.
8 9
THE COURT:
That is good
Who says so?
Who says that
interference --
10
MS. KOEHLER:
11
THE COURT:
12
MS. KOEHLER:
13
THE COURT:
14
The actions
Well -I mean, the -Your Honor, I -I'm sorry.
I -- I don't mean
to interrupt you rudely.
15
MS. KOEHLER:
16
THE COURT:
No.
[Unintelligible].
Who -- where is your authority
17
for saying that the right to a trial by jury is
18
interfered with because it's delayed?
19
just -- is that considered to be a -- an -- an axiom or
20
something that's quite obvious that it's burdening or
21
impinging on the right or interfering with the right if
22
it's delayed?
Or is that
23
Because the -- it's -- it strikes me that the
24
Constitution very clearly has a speedy trial right for
25
criminal but not for civil.
Right?
So...
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1
MS. KOEHLER:
Yes.
The -- the -- the --
2
the -- the s- -- the quote is that justice delayed is
3
justice denied.
4
criminal.
And that applies to civil as well as
5
THE COURT:
6
MS. KOEHLER:
7
THE COURT:
8
MS. KOEHLER:
9
Right.
Okay.
That's the authority. Okay.
Okay.
Thank you.
Thank you, Your Honor.
So I wanted to just take a moment, Your Honor,
10
to -- to show you why we -- what -- what we believe is
11
unconstitutional currently.
12
So the Constitution Article IV, Section 13
13
says that half the salary of each superior court judge
14
is to be paid by the other -- by the state and half by
15
the county.
16
that said that the counties were supposed to pay all
17
the costs of the facilities and support -- support
18
staff.
19
And there was also then an RCW, an old one
Then in 1979, a new statute was enacted that
20
prohibited unfunded mandates by counties, and then
21
Attorney General Gordon specifically dialed down into
22
that with respect to the courts and said that, When the
23
legislature authorizes a new judicial position and it
24
increases those levels of service, etc. -- like needing
25
more payroll or more courtrooms or more buildings or
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1
more court staff -- that the state has to pay for all
2
of that.
3
1996 that required counties to fund expenses of new
4
judicial positions.
5
And then another law was act - -- enacted in
These statutes which -- which -- this is a
6
statutory history.
These statutes are what the
7
plaintiff, especially the last one, believes is causing
8
a lot of problems here, and it's unconstitutional.
9
problem -- the -- the very -- the very simple problem
The
10
that we see, even in the cases that are brought before
11
it, can be seen with respect to Grant County versus --
12
which is a small county which is a lar- -- versus a
13
large county.
14
The small counties, many of them are -- cannot
15
even do Zoom still.
16
it's a four-hour -- four-hour drive,
17
three-and-a-half-hour drive.
18
pre-COVID they didn't allow anything to happen by
19
telephone because they didn't have the -- they didn't
20
have a good enough tele- -- telephonic system so that
21
a -- a counsel not in town would have to drive over
22
there for something as small as a motion -- filing a --
23
a motion to compel or -- or some other nondispositive
24
motion.
25
We have -- I mean, Grant County --
And they didn't allow --
In fact, if -- it was -- it was so -- it has
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been such an issue that there is a case on the books of
2
one small county which was granted a new judge -- well,
3
not even granted, at least one small county, if not
4
more, that have gone back to the legislature and said,
5
Take back the judge.
6
salary for one judge, or if we can pay for the salary
7
of a judge, we can't pay for the courthouse, the
8
security, etc.
9
We can't afford to pay half the
Many small counties or other counties who have
10
not been able to pay for security where we have the
11
case especially in -- I want to call it Ocean County.
12
But over the -- in Aberdeen/Hoquiam, Grays Harbor where
13
the judges were attacked and the -- and the security
14
was shot because their -- they didn't have funds for
15
adequate se- -- court security.
16
So I'll keep going.
17
THE COURT:
18 19
Dave?
Sorry.
Okay. Thank you.
MS. KOEHLER:
And -- and this again was
20
not touched on much by the -- the State but I can't
21
even say this.
22
wizardy spell, but basically, if the framers had
23
intended that counties have constitutional
24
responsibility, it would have used that same language
25
in Section 13 to create that incumbent responsibility.
It looks like a Harry Potter, you know,
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Instead, the legislature has been act- --
2
enacting statutes putting its own responsibility for
3
funding -- just like in McCleary, the State has a
4
responsibility to fund [unintelligible].
5
doing it and putting it upon the counties.
They've been
6
[Unintelligible] to standing, Your Honor, the
7
Uniform Declaratory Judgment Act affords a standing to
8
a party, and the -- and the two issues that were
9
discussed by the State involve No. 1 and No. 2.
10
There -- but there are three different means of getting
11
standing.
12
There's the first part, which we'll discuss.
13
There's No. 2, which is a four-part test for
14
justiciable controversies.
15
I don't know if I even have it down here.
16
[unintelligible]...
17
And No. 3, there is -- oh, But
So let's start off with No. 1 and No. 2.
18
No. 1, the plaintiffs are within the zone of interests.
19
Now, the State categorically stated in a one-sentence
20
explanation that the plaintiffs are not within the zone
21
of interests.
22
Article I, Section 12, Section 21, and separation of
23
powers just briefly.
24 25
They went through the constitutional
Your Honor, we -- we believe, and I've pretty much already enunciated for you why we believe that the
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plaintiffs are absolutely within the zone of interests
2
in bringing this case.
3
injured, or their parent or someone else killed.
4
have brought litigation.
5
They have -- they have been
And I'll just use one example:
They
The -- the
6
Ralston case, the case has languished in a small county
7
that did not have available phone service when I've
8
been there.
9
feel that it was very inappropriate for the State to --
And, you know, I have to say, I -- I do
10
to say, Well, you know, you're supposed to just review
11
the items in the plaintiffs' complaint, but here's a
12
whole bunch more stuff.
13
Ms. Koehler was sued for defamation.
14
And by the way, you know,
I mean, that's so -- that's so petty and so
15
silly, not mention- -- not to mention that -- that that
16
allegation was thrown out of court very quickly and
17
upheld on appeal.
18
complaint satisfy No. 1.
But the facts as set forth in the Absolutely, they do.
No. 2, have they suffered an injury in fact --
19 20
economic or otherwise?
21
in the complaint, which we've -- we've attached but
22
also just in explaining a little bit about the Ralston
23
case.
24 25
Again, I have gone through that
And this is not supposed to be a demanding requirement.
We don't have to show exactly, with --
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1
with specificity, each item of harm, especially at a
2
12(b)(6) stage.
3
And the second way of finding standing is
4
through justiciable controversies.
5
"Plaintiffs must have existing and genuine rights or
6
interests," which we believe are the right to justice
7
not delayed; "that those rights have to be direct and
8
stan- -- substantial," no one here has argued that
9
these lawsuit- -- lawsuits were bogus or trivial in any
10
manner; "that there be a determine [verbatim] that will
11
be a final judgment that extinguishes the dispute; and
12
"the proceeding must be genuinely adversarial in
13
character."
14
And that's that,
We've gone through this in detail in the
15
brief, and -- and -- and I will move forward to the
16
final test, which is that "public interest standing
17
exists," "where a controversy is of serious public
18
importance and immediately affects substantial segments
19
of the population, and its outcome will have a direct
20
bearing on the commerce, finance, labor, industry, or
21
agricultural generally."
22
We believe most certainly that there is public
23
interest standing here for the people to have courts
24
that can hear their adjudications adequately, that they
25
have been funded adequately so that they can do their
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1
job.
2
We have, Your Honor, been told publicly that
3
if adequate funding is not provided, that we will be
4
years and years of delay, that there is so much backlog
5
from COVID -- and this is where COVID does come in to
6
heighten an already bad situation.
7
unless this -- this court-funding situation is dealt
8
with, the plaintiffs are still going to be pushed down
9
the road.
10
And unless --
And I want to -- I do want to address one
11
issue.
12
the -- the defense says, Well, even if -- even if this
13
case comes and -- and the plaintiffs prevail on this
14
case, their case will probably have been heard or maybe
15
their case will have already been heard, but
16
[unintelligible] a class action complaint and not if
17
the class is certified as we hope it will be.
18
This is a proposed class action complaint.
And
Your Honor, as you can see, this -- this
19
lawsuit was brought by dedicated people who want to
20
have their day in court on this issue who would like to
21
have discovery occur so that, instead of hypotheticals,
22
we can talk in much more concrete terms in the future.
23
12(b)(6) is premature, in our opinion, and we
24 25
thank you for your time. THE COURT:
Thank you, Ms. Koehler.
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1
Ms. Beneski?
2
MS. BENESKI:
I'd like to just address a
3
few -- a few key points.
4
textbook case in which dismissal under 12(b)(6) would
5
be appropriate.
6
we have covered today and in our briefing, without
7
having sought legal remedies that are available to them
8
in their underlying cases, and without a cause of
9
action that protects the interests that are asserted
10
First of all, this is a
Without standing for all the reasons
here, this case cannot proceed.
11
And -- and I'd like to just highlight that the
12
Woolery case, which Mr. Miller discussed, that was a
13
case in which the dismissal was pursuant to 12(b)(6),
14
and the -- the Court of Appeals upheld that, albeit in
15
an unpublished opinion. Your Honor asked the plaintiffs' counsel what
16 17
would the money they're seeking be used for?
And the
18
answer is, Well, that it's not the job of private
19
parties or the courts to decide how to spend public
20
money.
That is a job for the legislature.
21
And I -- I'd like to read, if I may, a quote
22
from the Washington Supreme Court last year in a case
23
called Rocha v. King County that we cite in our
24
briefing.
25
compensation.
This case had to do with the juror
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1
And the Supreme Court said, quote:
While we
2
should continue to cooperate with the other branches of
3
government in an effort to address the longstanding
4
problems identified by petitioners and amici, these
5
concerns are best resolved in the legislative arena,
6
unquote.
7
And that really goes to the heart of the
8
separation-of-powers issue that we discuss in our
9
briefing.
The legislature decides how to spend money.
10
The courts hold the legislature to account and make
11
sure that its laws do not violate the Constitution.
12 13
THE COURT: McCleary issue?
How do you deal with the
I mean McCleary involved --
14
MS. BENESKI:
15
THE COURT:
16
MS. BENESKI:
McCleary -Yeah, go ahead. Of course.
McCleary
17
involved a constitutional provision that the Supreme
18
Court has emphasized is unique.
19
within the Washington constitution, but it's unique
20
among states.
21
has a duty to offer or to provide an education to
22
children in this state.
23
that that's what that constitutional provision
24
established, the right to an education and the duty of
25
the State to provide it.
It's unique not only
And it expressly provides that the State
There was no dispute that --
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1
Here, the rights and duties at issue have
2
nothing to do with funding.
3
to do with accessing the courts and the right to a jury
4
trial.
5
things.
6
that, you know, provide for cases to move forward at a
7
reasonable pace and by ensuring that parties have the
8
opportunity to demand a jury when they're entitled to
9
one.
10
The rights at issue have
And it's the court's duty to provide those And again, courts do that by adopting rules
Your Honor asked earlier, How do we determine
11
what delay -- what amount of delay is unnecessary?
12
I think Your Honor hit the nail on the head by
13
indicating that it is the job of the courts who are
14
overseeing those cases to ensure that there is no
15
unnecessary delay.
And
I'd point the Court to another Supreme Court
16 17
case.
18
Center; the citation is 117 Wn.2d 772.
19
of that opinion, the Supreme Court says:
20
rules recognize and implement the right of access under
21
Section 10.
22
This one is called Doe v. Puget Sound Blood And at page 782 The court
Just for example, CR 6, that case allow- --
23
or, excuse me, that rule allows for enlargement of time
24
for cause shown and at the Court's discretion.
25
how we ensure that cases are not unnecessarily delayed
MITCHELL REALTIME REPORTING 7829 Center Boulevard SE, Suite 247, Snoqualmie, Washington 98065 425.503.3645
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40
1
under the Constitution.
2
I'd also like to point out, you know, this
3
case raises issues of such magnitude that, if this
4
lawsuit were to proceed, it would place the -- the
5
court system into -- into conflict with the
6
legislature, which is responsible for making funding
7
decisions.
8
but a decision to do that should not be undertaken
9
lightly.
10
And it's not that that can never happen,
And that is why the Court in Juvenile Director
11
located the right to seek judicial funding from the
12
legislature in the court's inherent power which cannot
13
be exercised by private parties.
14
is only for the courts, and it should be exercised only
15
under extraordinary circumstances and with great
16
restraint.
17
THE COURT:
Okay.
That inherent power
I'm sorry, Ms. Beneski,
18
to go back to this, but I'm having trouble reconciling
19
that with McCleary because your distinguishment of
20
McCleary is that that had to do with funding, not with
21
access.
22
parties seeking the legislature -- or asking the
23
legislature to do something.
24 25
But what we're talking about is private
How is this different? MS. BENESKI:
Of course.
And -- and to be
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clear, it is not the State's position that private
2
parties can never seek to vindicate constitutional
3
rights.
4
Of course they can. And in McCleary, again that case involved a
5
constitutional provision that gave the plaintiffs and
6
their children a right to an education.
7
into court seeking to vindicate that right.
And they came
8
Here what we have are constitutional
9
provisions that provide rights within the context of a
10
court case and Juvenile Director, which specifically
11
addressed the issue of judicial funding -- not funding
12
for education, judicial funding -- the Court in
13
Juvenile Director said those types of claims can only
14
be brought by the courts.
15
One way to think about it, Your Honor, is if
16
you look at the structure of -- of the Constitution.
17
Article I establishes a series of individual rights,
18
including the right to free speech, the right to free
19
exercise of religion, due process.
20
are invoked here -- the right to access the courts and
21
the right to a jury trial -- those are individual
22
rights under Article I.
23
education is in Article IX, which pertains to
24
education.
25
And the rights that
The right to funding for
If there were a constitutional provision that
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entitled parties to seek judicial funding, you would
2
expect it to be in the portion of the Constitution that
3
pertains to the judiciary that's Article IV.
4
fact, the only provision that applies to judicial
5
funding -- Article IV, Section 13 -- pertains to
6
judicial salaries of that -- that is in Article IV.
And in
7
There's nothing else in Article IV or anywhere
8
else in the Constitution that says private parties have
9
a right to have the court system fully funded and may
10
sue to vindicate that right.
11
THE COURT:
12
MS. BENESKI:
13
Okay.
Thank you.
Thank you, Your Honor.
Just as one final point, you know, I think
14
there's an important distinction to be drawn between
15
challenging an action of the legislature versus asking
16
the Court to order the legislature to make a new law.
17
Setting McCleary aside, which again addressed a -- a
18
very unique constitutional provision that directly gave
19
a right to education, the -- the only scenario in which
20
a private party might be able to file a claim against
21
the legislature with respect to court access or the
22
right to a jury trial is when the legislature takes
23
some step that interferes with the Court's ability to
24
provide those rights to litigants.
25
For example, if the legislature were to pass a
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law saying there will be no jury trials for the next
2
ten years, private plaintiffs could challenge that law
3
as unconstitutional if they had standing to do so.
4
that's not what's happening here.
5
are asking this court to say, Hey, Legislature, you
6
need to make a new law that provides for a host of new
7
judicial programs.
8
But
Here, the plaintiffs
And -- and just as another point to highlight,
9
it's -- it appears to be undisputed that, for over a
10
hundred years, the Washington Supreme Court has made
11
clear that funding for the superior courts is the
12
responsibility of the counties, not of the state, aside
13
from judicial salaries under the constitutional
14
provision I just mentioned.
15
THE COURT:
16
MS. BENESKI:
17
THE COURT:
No.
Ms. Koehler, I'll give you one minute, if you
19
21
So that's all I have, Your
Honor, unless you have any further questions.
18
20
Okay.
want it. MS. KOEHLER:
Yes, Your Honor.
The -- I
22
think that -- I thought I just outlined that the --
23
that the State has enacted statutes that we contend are
24
en- -- encroaching on the Constitution mandate that the
25
state fund the judicial -- that, you know, the --
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the -- the -- the judicial branch [unintelligible]
2
separation of powers.
3
supposed to -- that we're asking for the State to enact
4
new laws, I don't remember us doing that.
5
to not have laws that impede what their constitutional
6
mandate is to allow the courts to continue to do their
7
business of protecting the citizens of this state by
8
engaging in their roles as a judiciary.
9 10 11
So the thought that we're
We want them
Thank you, Your Honor. THE COURT:
Thank you.
Thank you, Counsel, for your time and your
12
excellent briefing.
13
cases again, think about this, and I will have
14
something to you sooner, hopefully, rather than later.
15
But I can't give you a timeline because it's
16
significant issues so I want to be careful.
17
And I need time to look at the
Thank you very much.
18
MS. KOEHLER:
Your Honor, thank you.
19
MS. BENESKI:
Thank you, Your Honor.
20
THE COURT:
All right.
21 22
(Transcription ends at 12:04 p.m.)
23
(Recording ends at 12:04 p.m.)
24
* * * * *
25
MITCHELL REALTIME REPORTING 7829 Center Boulevard SE, Suite 247, Snoqualmie, Washington 98065 425.503.3645
45 TRANSCRIPTION CERTIFICATE
I, ELEANOR J. MITCHELL, the undersigned Certified Court Reporter in and for the State of Washington, do hereby certify: That the foregoing transcript was transcribed under my direction; that the transcript is true and accurate to the best of my knowledge and ability to hear the audio; that I am not a relative or employee of any attorney or counsel employed by the parties hereto; nor am I financially interested in the event of the cause.
WITNESS MY HAND and DIGITAL SIGNATURE this 15th day of September 2021.
________________________________ ELEANOR J. MITCHELL, RPR Washington Certified Court Reporter, CCR 3006